General Terms and Conditions
§ 1
General Terms and Coverage
1) All sales are based exclusively on these conditions. Contradictory or differing conditions of the buyer cannot be considered, even if not expressly contradicted, unless their validity has been specifically confirmed in writing. Our terms of sale are also valid even if we know of contradictory or differing conditions of the buyer and effect delivery unconditionally to the buyer.
2) All agreements to carry out this contract which are made between Hock GmbH & Co. KG and the buyer are to be confirmed in this contract in writing.
3) Our terms of sale are only valid for companies, corporate bodies, legal entities and public special assets according to § 310 paragraph 1 sentence 1 BGB (German Civil Code).
4) Our terms of sale are also applicable for all future business with the buyer.
§ 2
Completion of Contract
1) Our offers are without obligation.
2) If the order is to be qualified as an offer according to § 145 BGB, we can accept this within 2 weeks. The acceptance can be effected in writing or by delivery of the goods (purchase matter) to the customer.
3) We will confirm receipt of electronically received orders immediately. The confirmation of the receipt does not represent a binding acceptance of the order. However, the confirmation of the receipt can be connected with the declaration of acceptance.
4) The completion of the contract is subject to us being delivered correctly and punctually by our own suppliers. Thus we can withdraw from the contract, in case we cannot effect delivery, without being liable for damages. This is only applicable in the case that delivery is not effected due to reasons which are not our fault.
In this case, the buyer will immediately be informed of the unavailability of the service. If payment has already been effected, it will immediately be returned to the buyer.
5) If the buyer orders the products electronically, we will save the record and send it to the buyer on demand by email in addition to the existing General Terms of Sale, Delivery and Payment.
§ 3
Prices and Terms of Payment
1) Prices are quoted ex works, excluding freight, if not otherwise stated in the order confirmation.
2) We reserve the right to adjust our prices accordingly if, after concluding the contract, there is a decrease or increase of costs especially due to labour agreements or increases in raw material costs. We will provide evidence for these on buyer's demand.
3) Our prices exclude VAT which will be shown separately on the invoice in percentage defined by law on day of issuing the invoice.
4) Cash discount may only be deducted after specific written agreement.
5) Unless stated otherwise on the order confirmation, the purchase price is due within 14 days net (without deduction) from date of invoice. Buyer's failure to pay at the due date shall entitle us to charge interest at the rate of 10 % p.a. above the respective base rate according to § 247 paragraph 1 BGB. Should we be able to prove a higher damage caused by the delay, we are entitled to claim it. However, the buyer is entitled to prove to us that no or considerably less damage has been caused us by the delay in payment. Also in the later case we are, however, entitled to claim from the buyer the interest on defaulted payment applicable by law.
6) The buyer is only entitled to rights of charging, deduction, withholding and refusal of service if his counterclaim is legally binding, indisputable or accepted by us.
In addition, the buyer is only entitled to practicing the rights of withholding and refusal of service insofar as his counterclaim is based on the same agreement.
7) Bills of exchange are only accepted for the sake of fulfilment without guarantee for act of protest and only after agreement and subject to its eligibility; all charges and costs will be at the buyer's expense.
8) If the buyer falls in delay of payment or we have justified doubts on the buyer's liquidity or creditworthiness, we are entitled to demand - irrespective of our other rights - securities or advance payments for outstanding deliveries and to set due date instantly for all claims of the business relationship.
§ 4
Delivery Time and Passing of Risk
1) The beginning of the delivery time indicated by us requires clarification of all technical questions.
2) The delivery time begins with dispatch of the order confirmation, however not before the buyer has provided the necessary documents (e.g. on agreement of payment to be made by credit order), approvals, clearances as well as receipt of the agreed advance.
3) The delivery time is regarded as adhered to if the goods leave the factory before its termination or if we have informed the buyer that the goods are ready for collection before its termination.
4) The delivery time is appropriately extended in case of actions in the context of labour disputes, especially strike and lock-out, as well as on the occurrence of unforeseen hindrances beyond our will (e.g. war, embargo) insofar as such hindrances demonstrably have a great influence on the production or the delivery of the goods. This applies also if such circumstances occur at our sub-supplier.
We are also not liable for the above-mentioned circumstances if they come about during a delay which already occurred. We will inform the buyer of the beginning and the end of such hindrances as soon as possible.
5) If the collection or dispatch of the goods is delayed on request of the buyer, we will charge him the costs caused by the storage. By storage in our factory however at least 0.5 % of the invoice amount for every beginning month, starting 1 week after notifying that the goods are ready for collection or dispatch.
In this case, the risk of coincidental loss and the coincidental degradation of the goods passes to the buyer at the point when we have notified him that the goods are ready for collection or dispatch.
However, we are in this case also entitled to use the goods otherwise or to deliver to the buyer with an appropriately extended delivery time, after setting an appropriate term and its unsuccessful termination for collection of the goods.
6) The compliance with the delivery time is subject to the buyer fulfilling the contractual obligations. Therefore our delivery obligation rests as long as the buyer falls behind with an obligation of a legal transaction towards us.
7) If we are liable for exceeding an agreed delivery time, the delay in delivery is only given after setting an appropriate extension of time of at least 14 calendar days.
8) If the buyer gets in default of acceptance or if he disrespects other obligations of cooperation, we are entitled to claim damages for all damage which it caused us, including possible additional expenditures. In this case also the risk of coincidental loss and the coincidental degradation of the goods passes to the buyer at the point when he gets in default of acceptance.
9) The risk of coincidental loss and the coincidental degradation of the goods also passes to the buyer when the goods are handed over, if the purchased goods are to be delivered, when the goods are delivered to the forwarder, the carrier or other person or institution appointed to effect delivery. The goods are regarded as delivered as soon as they have been picked up from the floor for purposes of loading the transport vehicle.
10) Transport and all other packaging according to the requirements of the packaging regulations as well as pallets will not be taken back. The buyer is obliged to dispose of the packaging and the pallets at his own cost.
11) We will cover the delivery by a transit insurance if requested by the buyer. All costs of the insurance will be paid by the buyer.
12) Partial deliveries are allowed.
13) We point out that all deliveries are made with jumbo or mega trucks in case the goods purchased are to be delivered. Thus the purchaser has special preparation and cooperation obligations concerning the preparation and execution of receiving the goods in such sales contract including the carriage of the goods:
a) The purchaser is to take care of the necessary approvals from the owners for driving to foreign premises, private streets, roads and squares and to indemnify us from any claims of third parties which could result out of unauthorised use of foreign premises.
b) Furthermore, the purchaser is responsible for ensuring that the ground, place and other conditions at the unloading location as well as the access roads - except for public streets, roads and squares - allow a proper and safe execution of the order. The purchaser is especially responsible for ensuring that the ground conditions at the unloading location as well as the access roads are suited for the occurring bearing load and other demands. Finally the purchaser is responsible for all indications of subsurface cable ducts, service pipes, other earth wires and cavities which may affect the bearing capacity of the ground at the unloading location or the access roads to it. The purchaser must point out unrequested the location and the existence of subsurface wires, ducts and other cavities. Should the purchaser neglect this information obligation culpably he shall be hold liable for all occurring damage out of this obligation, also for property and consequent property damage on vehicles, machines and work machinery of the vehicles we employ as well as for financial damage. Indications and declarations of third parties, which the purchaser uses for fulfilling his incumbent obligations, are considered as the purchaser's own declarations.
c) The unloading of the goods is to be taken care of by the consignee or - if he is not identical with the ultimate buyer - by a sufficient number of unloading personnel which is to be provided by the ultimate buyer. The purchaser will be hold liable for the costs of not unloading quickly enough. Waiting and unloading times of more than 1 hour are not included in the price and will be charged subsequently with € 50.00 / hour.
d) We are willing, however not obliged, to inform the purchaser of the scheduled delivery time a day before, latest on the day of the delivery an approximate delivery time, by phone according to our possibilities. The purchaser is - in case he is not identical with him - obliged to pass this approximate delivery time to the ultimate buyer by phone.
e) Should the purchaser offend the aforementioned obligations culpably, especially his preparation and cooperation obligations, so he will be held liable for us for all damage occurring out of this.
§ 5
Liability for Defective Goods
1) In case of defective goods we are liable either through remedy of the defect or through replacement (supplementary performance) at our discretion.
2) A supplementary performance period of 20 business days in each case is adequate.
3) If the supplementary performance fails twice the buyer can generally demand decrease of the remuneration (abatement) or cancellation of the contract (rescission) at his discretion. The buyer has, however, no right of rescission if the infringement of contract is only insignificant, especially in case of minor defects. The buyer's right of rescission is also excluded if he is no longer in the position to completely return us the received delivery or partial delivery except for the used part according to the following paragraph 4 / 2 for possible test processing.
4) The rights of the buyer in case of defective goods are, however, subject to him orderly fulfilling his examination and reprimand obligations according to §§ 377, 378 HGB. Thereby the buyer must immediately examine the delivered goods on receipt - as far as reasonable also through a test processing - for defects regarding quality and intended use. Otherwise the right for asserting claim for impairment of performance is excluded.
Complaints are only considered if they are asserted promptly in writing and with receipts enclosed, within 7 calendar days - for hidden defects within 7 calendar days after discovering them. Sending the written defect notification in due time is enough to keep the term.
Also with regard to hidden defects the buyer can only assert complaints within maximum 6 months after receiving the goods.
The buyer has the full burden of proof for all claim prerequisites, especially for the defect itself for which claim was asserted, the time of noticing the defect and for sending the defect notification in due time.
5) If and as far as we deliver the goods by a forwarder, the rights of the buyer in case of defective goods also assume that he has filled his orderly examination and reprimand obligations towards the delivering forwarder according to § 60 (retention of damage) of the "General German Forwarders' Conditions (ADSp)". According to these, the buyer as recipient of the goods delivered by the forwarder has the following obligations in order for us to obtain the claim against the delivering forwarder:
a) If on delivery of the goods a damage can be recognised externally, the buyer has to record this on the notice of receipt, which is to be signed by him and the delivering forwarder, stating the general type of the loss or damage.
b) The buyer must inform the delivering forwarder of damage which cannot be recognised from the outside in writing latest on the 6th day after delivery of the goods.
6) Should the buyer choose to withdraw from the contract by reason of a defect of title or goods after failure of supplementary performance he has in addition to the withdrawal no right to claim for damages because of the defect.
Should the buyer choose to receive damages after failure of supplementary performance, he is to keep the goods if it is reasonable. In this case the damages are limited to the difference between the purchase price and the value of the defective goods. This is not applicable if we have caused the breach of contract maliciously.
7) Buyer's claims for defective goods expire in 1 year after their delivery. This is not applicable if the buyer does not inform us of the defect in time according to the preceding paragraph 4 or he has not fulfilled his orderly obligations of retention of damage towards the delivering forwarder according to the preceding paragraph 5; in both last-mentioned cases the buyer has no right to claim for damages because of defects or damage of the goods.
8) Public statements, promotion or advertisement do not constitute a contractual indication for condition of the goods.
9) The following is applicable in regard to the condition of the goods:
a) We are only obliged to supply goods of average nature and quality taking into consideration the customary tolerance. We reserve the right to deviations in structure and colour as far as these are in the nature of the used materials and customary.
b) We are not liable for the goods delivered or other services rendered to be suitable for the buyer's prospective use.
10) Should the buyer receive incomplete installation instructions, we are only obliged to deliver complete installation instructions and this also only if the insufficiency of the installation instructions does not allow the correct installation.
11) We do not grant the buyer guarantees in legal terms. Manufacturer's guarantees remain intact.
§ 6
Limitation of Liability
1) We are not liable towards the buyer for slight negligent violation of insignificant contractual obligations.
2) Otherwise in case of slight negligent violation of obligations our liability is limited to the predictable, contract typical, direct average damage depending on the type of the goods. This applies also in case of slight negligent violation of obligations of our lawful representatives or auxiliary persons.
3) The preceding limitations of liability do not concern the buyer's claims for product liability. The claims for damages on injury of life, body or health are excluded if we are responsible for the violation of obligations, as well as claims on other damage caused by us through deliberate or gross negligent violation of obligations. We are also held responsible for violation of obligation if these are caused by our lawful representatives or auxiliary persons.
§ 7
Retention of title
1) The goods delivered remain our property until complete payment of all receivables of the current business relation. In case the buyer violates the contract, especially if he is in default of payment, we have the right to redeem the goods. If we redeem the goods it is not a withdrawal from the contract except we declare this explicitly in writing. The distraint of goods always represents a withdrawal from the contract. We are entitled to use the goods after redeeming them, the revenue is to be taken into account on the debts of the buyer, less reasonable cost of the use.
2) The buyer is obliged to handle the goods carefully; he is especially obliged to insure them sufficiently at his own cost for reinstatement value against fire loss, water damage and theft.
3) In case of distraint or other intervention through third parties the buyer must inform us immediately in writing so that we can file suit according to § 771 ZPO, Code of Civil Procedure, (third-party action against execution). Insofar as the third party is not in the position to refund us the legal charges and out-of-court costs of a suit according to § 771 ZPO, the buyer is liable for the loss caused to us.
4) The buyer has the right to resell the goods in orderly course of business; however, he assigns us already now all claims amounting to the final invoice amount (including VAT) of all our claims which he has received from the resale to his customers or third parties irrespective of the goods being resold without or after processing them. The buyer still remains entitled to collect this claim even after assignation. Our right to collect the claim ourselves remains intact hereof. We commit, however, not to collect the claim as long as the buyer meets his payment obligations through the received revenue, does not get in default of payment and especially has not filed for opening insolvency proceedings or has not suspended payments. If this is the case we can demand that the buyer announces us the assigned claims and their principals, gives us all necessary information and the corresponding documents and informs the principals (third parties) of the assignation.
5) The processing or the alteration of the goods through the buyer is always carried out for us. If the goods are processed with other items which do not belong us, we thus acquire a joint ownership of the new object proportionally to the value of the goods to the other mixed items at the time of processing. Incidentally, the same applies to the object made by processing as to the goods delivered under reserve.
6) If the goods are inextricably mixed with other items which do not belong us, we thus acquire a joint ownership of the new object proportionally to the value of the goods to the other mixed items at the time of processing. If the processing is made such that the item of the buyer is to be seen as the main item, it is considered as agreed that the buyer transfers us proportionally the joint ownership. The buyer retains for us the sole or joint ownership which has thus arisen.
7) The buyer also assigns us all claims for assuring our claims against him which arise against a third party through the connection of the goods with a property (e.g. the incorporation of special interior fitting in a building).
8) The following applies in the event of default of payment, payment problems and of justified doubts on the solvency or creditworthiness of the buyer:
a) We are entitled to request from the buyer the immediate inventory and the immediate release of the goods and respectively semi-finished and finished products of which we have joint ownership which have not yet been sold and which stand under retention of title. Furthermore, a general processing prohibition of our goods in this case is considered as agreed.
b) An appointed employee of our company must be allowed to control the inventory and the release of the goods. The control also includes the inspection of the accounts and other business documents of the buyer which concern the goods under retention of title.
c) After receiving the request for inventory or release of the goods under retention of title the buyer must stock for us separately of other items these goods and respectively the items of which we have joint ownership due to their processing as well as to mark items of our ownership and respectively joint ownership and to abstain from disposing of the goods. In addition he has to send us immediately a list of these items.
d) We are entitled to have the released goods sold or auctioned free-hand without prior notice. Taking back the goods under retention is effected to the obtained revenue, less cost of disposal, at most, however, to the agreed delivery price. We explicitly reserve the right to the claim of further damages on our part, especially the right to lost profit.
e) The request to release the goods under retention and their use in terms of this regulation do not free the buyer from his payment obligations.
9) We commit ourselves to release the securities due to us on buyer's request insofar the marketable value of the securities exceed the secured claim by more than 20%; it is our choice which securities are released.
§ 8
Final Clauses
1) The law of the Federal Republic of Germany is applicable. The clauses of the UN purchase right do not apply.
2) The sole place of jurisdiction for all conflicts of this contract is Karlsruhe; we have, however, the right to also sue the buyer at the court of his residence.
3) Should single clauses of the contract with the buyer including these general terms and conditions be or become completely or partly invalid, it will not affect the validity of the remaining clauses. The completely or partly invalid clause is to be replaced by a clause of which the commercial outcome is as close to the invalid one as possible.
4) As far as no other matters result from the order confirmation, the respective point of departure of the goods is the place of delivery.
