Standard Terms and Conditions
As of 30.04.2018
1. Contractual partner
The contract has been concluded with HAUBER-Elektronik GmbH, Fabrikstraße 6, 72622 Nürtingen, Germany (hereinafter referred to as “we”, “us”).
- Managing Director: Tobias Bronkal
- Telephone: +49 (0)7022 21750-0
- Fax: +49 (0)7022 21750-50
- E-mail: firstname.lastname@example.org
- Web: www.hauber-elektronik.de
- Commercial register: Nürtingen local court, HRB 221052
- value added tax identification number: DE 1462 5276 6
2. Scope of application
- Unless expressly agreed otherwise, the following standard terms of delivery and payment apply to all contracts, deliveries and other services in business transactions with companies, legal persons under public law and public-law special funds as defined by Section 310 Para. 1 of the German Civil Code (referred to below as the customer). Any of the customer’s standard terms and conditions which deviate from, contradict or supplement the above shall require our written consent, even if we are aware of these.
- Within the scope of ongoing business relations between traders, the terms and conditions shall also form part of the contract even if, in individual cases, we fail to refer specifically to them.
3. Quotes and conclusion of contracts
- Our quotes are always non-binding and subject to change without notice. Illustrations of products, figures, dimensions and weights, as well as information of any other kind, shall not be binding.
- We reserve the right to make design modifications, changes to shape, colour, weight and technical nature within reasonable bounds.
- All contracts shall come into force upon receipt of our written order acknowledgement by the customer and at the latest upon the handover of the goods. Confirmation of receipt of the order does not represent contractual acceptance.
- Subsidiary agreements and assurances of all kinds require our written confirmation to be valid; in particular, differences in graphical descriptions shall only be valid if they have been defined in detail beyond all doubt.
4. Delivery, transfer of risk and packaging
- The delivery times stated by us are non-binding unless they have been expressly agreed in writing. We dispatch our goods ex factory. We reserve the right to claim failure by our suppliers to ensure correct and timely delivery to us should we not be responsible for the failure to deliver.
- If the customer is in default with the payment of an earlier delivery, we are entitled to retain deliveries without being obligated to compensate any losses caused thereby.
- Part deliveries and part services are only permitted to a reasonable extent.
We offer the customer the option of procuring the goods within the framework of a call order.
A call order enables the customer to purchase a product in larger quantities at a specific price and to divide delivery into several part deliveries over a period of time.
Unless expressly otherwise agreed, the maximum term for call orders is one year.
The total amount and term can be freely decided by the customer. Once finalised, the timing of delivery cannot be changed.
A call order is a binding order with an obligation to purchase the entire quantity.
Call orders must be called up and purchased at the times and in the quantities agreed.
In the case of call orders without agreed terms, production lot sizes and acceptance dates, we can demand a binding agreement to this effect no later than three months after order confirmation.
If the customer does not comply with this demand within three weeks, we shall be entitled to set a two week period of grace and, should this expire to no avail, to withdraw from the contract or reject the delivery and demand compensation for damages.
If the contractual amount should be exceeded by the individual calls, we shall be entitled to deliver the surplus, but not obligated to do so. We can charge for the surplus the prices effective at the time of signing the contract or delivery.
- If we should be prevented from fulfilling the contract owing to unforeseeable circumstances for which were are not responsible (e.g., force majeure, industrial action, breakdowns, transport hindrances, lockout, raw material shortages - including vis-à-vis our presuppliers - as well as non-timely self-delivery), we shall be entitled to delay delivery by the duration of the hindrance or, in the case of non-timely self-delivery, to withdraw from the contract; in such cases, we shall notify the customer immediately stating the ordered goods are no longer available and shall reimburse services rendered immediately.
If the originally specified delivery date is exceeded by more than two weeks or should we be in default on a delivery with a date confirmed in writing, after setting a reasonable period of grace of at least 14 days, the customer is entitled to withdraw from the contract unless, by way of exception, it is not necessary to set a deadline. If the customer does not state when setting the deadline that he still wishes the contract to be fulfilled or whether he wants to assert his right of withdrawal and if such a declaration is not received by us within a further deadline of 7 days, we shall be entitled to withdraw from the contract. The customer’s right to demand compensation is based on the prerequisites stated in Number 10.
The withdrawal of both parties must be provided in text form as a minimum.
- If it should be impossible for us to fulfil the contract for the reasons stated in Number 4.5, then we shall be released from our obligation to deliver. We shall notify the customer immediately that the ordered goods are no longer available and shall reimburse services rendered immediately. The customer’s right to demand compensation is based on the prerequisites stated in Number 10.
- If the customer is in default of acceptance or should he breach other duties of cooperation, we can demand compensation for the damage incurred as well as any additional expenses and storage costs. Other claims shall remain unaffected. After setting an appropriate deadline of at least 14 days, we are entitled to withdraw from the contract.
- The risk of accidental loss and accidental deterioration of the goods is transferred to the customer once they leave our factory or our subcontractor and, in the case of sale by dispatch, upon handover of the goods to the carrier, forwarding agent or other third party charged with delivery. If the goods are ready to be dispatched and dispatch or acceptance is delayed for reasons for which we are not responsible, the risk is transferred to the customer on receipt of notification of readiness for dispatch.
- We shall choose the delivery method, transport and means of protection at our discretion. We deliver in packages customary in the trade and according to the state of the art. Pallets, containers and other reusable packaging shall remain our property and is only made available to the customer on loan. The customer must return such items to us immediately carriage free. Disposable packaging is charged at the cost price and is not taken back.
- Transport insurance is only taken out subject to explicit agreement with the customer. The customer must assert any claims for transport damage and loss immediately on receipt of the goods and have such confirmed by the carrier, forwarding agent or other third party charged with delivery.
5. Prices, payment, default
- The prices quoted by us plus the statutory applicable VAT upon delivery shall apply. They apply ex works. Costs for packaging and dispatch and, if relevant, transport insurance are invoiced separately.
- Services which go beyond our obligations as the seller, e.g., the assumption of consultation and planning services for the customer vis-à-vis third parties must be agreed separately and are only performed subject to a fee.
- Our invoices are due in Euro within 30 days of the invoice date without any deduction. A discount deduction on the gross amount invoiced is only permitted if this is confirmed in writing by us and no older, due invoices remain unpaid.
- We reserve the right to decide upon whether to accept bills and cheques on a case by case basis. They are only accepted on account of payment. They shall be credited only subject to the usual proviso. We charge the discount and collecting charges in line with banking practice.
- If we are aware or become aware of issues, especially defaults in payment for previous deliveries, after conclusion of the contract which, in accordance with commercial discretion, allow us to conclude that the purchase price claim is at risk due to a lack of customer capacity, we are entitled to demand, at the customer’s discretion, payment without delay or corresponding securities. Should the customer fail to comply, we may withdraw from the contract. In such cases, invoices for (part) deliveries become due immediately.
- For all types of payment, the date of receipt of payment is the day upon which we can finally dispose of the amount. If the deadline for payment is not met, we are entitled without additional warning, to charge default interest at the rate of nine percent above the relevant base interest rate. We reserve the right to assert greater claims for damages caused by delay. Furthermore, in such cases we shall charge a lump sum of €40 for damage caused by delay. This also applies if the payment demand is an advance payment or other instalment. The lump sum is to be offset against the due compensation if the damage is justified in the form of costs for asserting legal rights.
- Requests on the part of the customer for a subsequent reduction or cancellation of an order can only be taken into consideration on the basis of special agreements and only, should the order not be for stock goods, if the presupplier is willing to take the goods back. In any case, with all goods which are returned properly to us with our agreement, we are entitled to deduct an appropriate percentage of the net invoice amount from the credit note for handling costs, inspection and repackaging. Damaged goods are not credited. In the case of disputes over errors, as per Section 122 of the German Civil Code, we are entitled to compensation for the losses we incur.
- The customer is only entitled to assert his right of retention if his counter claim has legal force, is ready for decision, is undisputed or is based on the same contractual relationship. The customer shall not be entitled to a right of retention if he was aware of the defect or other grounds for complaint on conclusion of the contract. This also applies if he remains unaware of such a defect due to gross negligence unless we fraudulently concealed the defect or other grounds for complaint or assumed a warranty for the quality of the item.
6. Reservation of title and assignment for security
- The goods shall remain in our possession until all accounts receivable from the customer are paid, for whatever legal grounds (including bills of exchange, cheques, assignments, suretyship, compensation for damages, etc.). This shall also include contingent receivables.
- The customer shall be allowed to use, process and sell the reserved goods in the course of regular business operations; however he is not entitled to dispose of the reserved goods in any other way, in particular as an assignment as security or as a pledge.
- In the event of processing, restructuring, combining or mixing of the reserved goods as defined by Sections 947, 948 and Section 950 of the German Civil Code with other items which do not belong to us, we shall be entitled to a co-ownership share of the new item in proportion to the value of the reserved goods (invoice amount plus VAT) vis-à-vis the other processed items at the time of processing, restructuring, combining or mixing. In the event that the customer obtains sole ownership of the new item, he hereby already transfers to us a co-ownership share of the new item in the above-mentioned ratio and keeps this safe for us free of charge.
- To ensure our claims on any legal grounds whatsoever (see Number 6.1), the customer shall hereby transfer to us claims and rights based on goods from our deliveries in the amount of the value of the reserved goods. This assignment is regardless of whether the reserved goods have been resold without or following processing.
- In the event that claims of the customer arising from the resale are credited to a current account, the customer shall transfer to us its claims on its contractual partner arising from the current account. This transfer shall correspond to the amount which we charged for the reserved goods which have now been resold.
- We hereby accept the assignment of these claims. Following assignment, the customer is authorised to collect the claims until such entitlement is revoked in writing. This does not affect our right to collect the claims ourselves. We shall not, however, assert our collection authority provided the customer meets his payment obligations, including with respect to third parties, and no application for the opening of insolvency proceedings has been filed or payments have ceased.
- In the event of default in payment or if circumstances arise in connection with the customer which, in accordance with due commercial discretion, allow us to conclude that the purchase price claim is at risk due to a lack of customer capacity, the right to resell, use or process the reserved goods becomes void and the customer is no longer entitled to collect the assigned claims. This does not apply to the rights of the insolvency administrator. In this case, the customer must also allow us access to its bookkeeping documents for the purpose of ascertaining the claims transferred pursuant to Number 6.4 and provide us with all information and documents, as well giving us bills of exchange and, at our request, notifying the debtors in writing of the transfer.
- If circumstances such as those mentioned in Number 6.7 should arise, we are entitled to withdraw from the contract and to take back the reserved goods at the expense of the customer or demand assignment of the customer’s surrender claims against third parties. To this end, the customer must grant us access to the reserved goods still in his possession, send us a precise list of the goods, separate the goods and hand them over to us. Should the value of this security exceed the amount of our claim by more than 20%, we shall release to that extent the security at our discretion upon request by the customer.
- The customer shall inform us immediately in writing should third parties gain access to the reserved goods or the claims transferred to ourselves, providing the necessary documentation, and help us in every way in the intervention. The costs of this shall be borne by the customer. If the goods are high-quality items, the customer is obliged to treat the purchased item with care until the transfer of ownership. In particular, he is obliged to take out insurance at his own expense to cover the risk of theft, fire and water damage to the amount sufficient to cover the reinstatement value. If maintenance and inspection work is necessary, the buyer must perform such measures in good time and at his own expense.
- The goods shall be delivered in the design and with the attributes usual for us at the time of delivery.
- Within the warranty period, taking the nature of the defect and the customer’s justified interests into account, we shall satisfy our warranty obligation by subsequent improvement or substitute delivery at our discretion. Replaced parts which are no longer used in the ordered goods shall revert to our ownership.
- The customer must examine the quantity and quality of the goods received straight away. He must notify us in writing immediately of any obvious defects. The customer must check and confirm for himself that the goods ordered from us are suitable for their intended use. A defect only then exists if we have confirmed such suitability in writing. Section 377 of the German Commercial Code remains unaffected in the case of mutual commercial acts between traders.
- If the customer identifies defects in the goods, he must neither resell, use or process them until an agreement as regards the handling of the complaint has been reached or proceedings to secure evidence have been finalised. The customer is obliged to make the goods or samples which are the subject of the complaint available to us for the purpose of testing.
- The goods in question must be sent to us in proper packaging.
- In the case of defects in an assembly, the customer may only demand rectification.
- The warranty obligation shall not apply if the notices of defects are not notified without delay, if the customer or third party have interfered with the products, if the defect is due to natural wear and tear, is a consequence of unfavourable circumstances or violations of our operating instructions or of the rules of electrical engineering, or if our demand for return of the faulty object is not complied with within 14 days of receipt thereof. For products from suppliers, a warranty will only be granted insofar as the supplier has granted us a warranty for the specific object.
- The warranty period for our products amounts to 24 months, counting from the day of delivery ex works. The customer does not receive warranties in the legal sense from us. Manufacturer warranties remain unaffected by this. The delivery terms of the respective supplier shall apply for accessories which are not produced by us. A warranty shall in any case be limited to the amount of the invoice total for the respective piece.
- Repairing, exchanging or adding to the delivered goods shall neither inhibit nor interrupt the original warranty periods.
- If we are unwilling or unable to satisfy an existing warranty claim, the customer may, at his discretion, demand reduction of payment or withdraw from the contract; the latter and any claim for damages in place of performance shall not apply in the event of minor contractual violation.
- No further warranty shall be granted. Number 10.4 applies accordingly. For the rest, the customer’s right to demand compensation is based on the prerequisites stated in Number 10.
- Goods shall be repaired without guarantee if no notification of defects has been submitted.
- In the event of repairs, objections must be asserted within one week after the product has been received. Complaints made at a later date cannot be taken into consideration. The warranty terms stated in Number 7 apply accordingly.
9. Labelling, protective rights
- Any alterations to our goods and any sort of special stamping that could be deemed to be the original mark of the customer or of a third party, or which could give the impression of a special product, shall not be permitted.
- We shall assume liability for ensuring that the sold goods as such are free of protective rights of third parties in all countries of the world with the exception of the U.S.A. and Japan; if third parties should assert justified claims in these countries, we shall, at our discretion and our expense, acquire for the sold goods as such a license or replace them with such goods as are free of protective rights. Should this not be possible for legal or technical reasons, or unreasonable from commercial points of view, then we shall take back the goods in return for repayment of the purchase price.
10. Limitation of liability
- Claims to damages or compensation of expenses are excluded. We are unable to assume liability for damages to the delivery item itself and for all types of consequential damages, especially lost earnings and other financial losses suffered by the customer.
- In the event of delivery being delayed or rendered impossible, we are only liable for our own negligence and that on the part of our vicarious agents. We cannot be held accountable for the failings of our suppliers. However, on request, we are obliged to assign any claims against our suppliers to the customer.
- We cannot be held liable should use of the sold goods encroach upon the protective rights of third parties. We shall assume no liability whatsoever if goods manufactured according to customer's specifications should encroach upon the protective rights of third parties; this shall also apply if we cooperated in the development of or developed the goods ourselves according to the customer’s specifications.
- The above-mentioned exemption from liability does not apply if either we or our vicarious agents can be accused of intent, gross negligence or malice or within the scope of a guarantee of quality and/or durability should we have offered such a warranty in writing vis-à-vis the goods supplied. Should we negligently violate an obligation which is material for the fulfilment of this contract, liability shall be limited to the damages typical of comparable types of transactions which were foreseeable upon conclusion of the contract or at the latest upon infringement of the obligation. Claims for damages for injury to life, body or health as well as claims based on product liability law shall remain unaffected. This shall continue to apply even if we can be accused of malicious intent.
11. German Federal Data Protection Act
The customer is hereby informed that we are entitled to save and use for our own purposes all the data received concerning the customer in connection with the processing of the contract in accordance with the German Federal Data Protection Act.
12. Final provisions
- The place of fulfilment and venue for all disputes arising in connection with this contractual relationship is Nürtingen, even in the case of cross-border deliveries, unless stipulated otherwise by law. We reserve the right to call on any other court which is authorised in accordance with the law and, furthermore, we are entitled to take legal action at the customer’s place of business.
- This contract is subject to German law with the exclusion of the UN sales law.
- Should individual provisions of this contract with the customer or these Standard Terms & Conditions not be applicable for whatever reason, this shall not affect the validity of the remaining provisions and agreements.