General Terms and Conditions of Service and Delivery of Habermann Aurum Pumpen GmbH
1. Scope of Application
1.1 Contracts are only concluded by us on the basis of our General Terms and Conditions of Performance and Delivery (GTC or General Terms and Conditions hereinafter) valid at the time. Our GTC do not apply to private consumers. Our GTC shall apply to all subsequent transactions of the current business transaction once the customer has first received them. New versions are valid upon our written amendment notice.
1.2 We shall not be bound by any terms and conditions of the customer which are in conflict with, deviate from or are unilateral to these General Terms and Conditions. This shall also apply even if we do not expressly object to such terms and conditions or render or accept services without reservation.
1.3 In the event of a collision, however, always applying the above Section 1.2, provisions in our individual offers or order confirmations shall take precedence over the provisions of these GTC.
1.4 References to the applicability of statutory provisions are for clarification purposes only. Even without such a clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
2. Conclusion of Contract
2.1 Our offer to conclude a contract is always "subject to change", so that we remain entitled to freely revoke the offer until receipt of the Customer’s order placement. Anything else applies only if we expressly confirm the offer to irrevocably bind us.
2.2 If our offer has preceded the placing of the order by the Customer, the contract shall come into effect upon receipt of the placing of the order. If the Customer submits an offer to us or if his order placement deviates from our offer, the contract shall only come into effect upon receipt of our order confirmation. At the request of the Customer, our order confirmation will be in writing.
2.3 In the event that no order confirmation is issued by us in response to a purchase offer made by the Customer, the contract shall come into effect upon execution of our services or, if this is earlier, upon receipt of our invoice.
2.4 The Customer shall be bound by his offer to purchase for 4 weeks from the date of our confirmation of receipt.
2.5 Orders with an invoice value of less than € 150.00 net will only be processed by us with our express prior consent.
2.6 The information contained in our brochures and catalogs, such as illustrations, drawings, weights and dimensions, is non-binding unless we have expressly designated it as binding.
3.1 Our prices are ex works or warehouse and do not include packaging, freight, postage, value protection and transport insurance, unless otherwise agreed. Value added tax may be added if applicable. In the case of agreed foreign deliveries, the Customer shall bear the customs duty. Discounts, rebates or bonuses shall only be granted if separately agreed in writing.
3.2 In the case of intra-community deliveries to an EU member state other than Germany, we will not charge VAT if the customer has a valid VAT identification number. In such cases, the Customer undertakes to confirm to us within one month on a form provided by us that the goods have reached the destination within the Community (confirmation of receipt). In cases of collection, the Customer is also obliged to make all payments to us from a company account. If individual prerequisites are not met, we are subsequently entitled to charge VAT at the applicable rate.
3.3 In the event that, for other reasons, it should subsequently become apparent that the intra-community delivery is subject to tax under German VAT law, we reserve the right to invoice the respective applicable German VAT retroactively. The Customer must ensure that the intra-community acquisition in the other EU member state is taxed at the rate customary in that country.
3.4 Subject to deviating regulations in individual or framework agreements, the prices are fixed prices according to our order confirmation.
4. Due date and payments
4.1 Our claims shall become due on the date stated in the respective invoice. This also applies to possible partial payments in the case of partial payment agreements.
4.2 Discount periods granted by us shall commence on the date of invoice. Agreed cash discounts are only permitted if our Customer is not in default with other claims arising from our business relationship. The timeliness of payment shall be determined by the corresponding credit entry on our business account.
4.3 Payments are to be made in EURO free of deductions, expenses and costs to a bank institute designated by us.
4.4 If the Customer does not effect payment at the latest by the expiry of the payment period according to section 4.1, he shall be in default without a reminder. In such cases, the Customer shall already be in default if he does not effect payment at the latest one day after receipt of the invoice or on the payment date. For all commercial business transactions, we shall initially charge interest on arrears at a rate of 5 percentage points p.a. from the due date (in accordance with clause 4); from the time of default, we shall charge interest on arrears at a rate of 9 percentage points p.a. above the respective prime rate. The assertion of any further damage caused by default shall remain unaffected.
4.5 We reserve the right to use payments to settle the oldest due invoice items including interest and costs incurred in the following order: costs, interest, principal claim.
4.6 Granted payment terms shall not apply if a significant deterioration in the Customer's financial situation becomes apparent to us or if our Customer provides incorrect or incomplete information or, despite being requested to do so, does not provide any information about his creditworthiness. In these cases, outstanding receivables shall become due immediately insofar as the customer has no rights to refuse performance. Furthermore, we remain entitled to assert our security rights and make outstanding deliveries dependent on the provision of appropriate security or payment concurrently with delivery. If the Customer refuses provision of such, we can, insofar as we have not yet performed our service, withdraw from the contract without the Customer being entitled to derive any rights from this.
4.7 Bills of exchange and cheques will only be accepted by individual written agreement and only on account of performance. Bills of exchange must be discountable. Bills of exchange and discount charges shall be borne by the Customer; they shall be calculated from the due date of the invoice amount and are due immediately. The term of the bills of exchange may not exceed 90 days after the invoice date.
4.8 For orders with an invoice value of more than € 50,000.00 net, we are entitled to demand advance payments appropriate to the production process.
5. Delivery, Transfer of risk, Delivery periods, Origin of goods
5.1 The terms of delivery ex works (Incoterms 2020) shall apply. The risk of price and performance shall pass to the Customer at the latest at the end of our normal business hours on the earliest day of collection specified in our notice of readiness for delivery, but in the case of a generic debt only when we have also sorted out the goods. The goods shall only be shipped after written agreement and at the Customer's risk.
5.2 Fixed dates require our written confirmation.
5.3 Delays in delivery due to force majeure, in particular fire damage, floods, strikes, regular lock-outs, epidemics and pandemics insofar as this leads to restrictions in our production and/or in our supply chains due to official/governmental measures, shall release us from the obligation to deliver for as long as they last, insofar as we are not responsible for the disturbance. If such a disturbance is permanent, we shall be released from our obligation to deliver in total. In this case we will reimburse any advance payments made by the Customer.
5.4 If we need material from the Customer for our services, this must be made available in due time and in sufficient quantity upon request by the Customer. Delays in delivery by the Customer shall entitle us to postpone our contractual delivery date accordingly. We do not assume any liability for defects in the material provided by the customer.
5.5 If we are unable to make deliveries because we are not supplied by our own suppliers, although we have concluded congruent hedging transactions, we shall be released from our obligation to perform and may withdraw from the respective contract concerned, unless we have culpably caused the non-delivery. We will inform the customer of this. We shall reimburse the customer for any consideration already provided. In such a case, the customer is not entitled to any further claims.
5.6 There is no legal claim to the delivery of goods originating from the European Union within the meaning of preferential customs regulations, unless such origin of goods has been expressly agreed.
6. Defective Goods / Goods differing from Contract
6.1 If there is a defect in the delivered goods, we may also repair the goods instead of making a subsequent delivery.
6.2 If the subsequent performance fails or is not carried out within a reasonable period of time set by us, the Customer may withdraw from the contract or reduce the purchase price. Compensation for damages can only be claimed under the conditions set out in clause 7 below.
6.3 The statutory duties of examination and notification of defects in accordance with § 377 HGB (German Commercial Code) shall apply. Approval of first samples by our Customer does not release same from his obligations to examine and give notice of defects and does not restrict these obligations.
6.4 The warranty period is 12 months. In the case of delivery ex works (Incoterms 2020), it shall commence upon collection, otherwise upon delivery of the goods.
6.5 Operational wear and tear of wearing parts does not constitute a defect and therefore does not trigger any warranty claims by the Customer. The same shall apply mutatis mutandis to defects that occur as a result of unsuitable or improper use, faulty assembly or commissioning of the delivered goods by the Customer, in particular in the event of failure to observe our instructions for use and maintenance (hereinafter: Operating Instructions) or any other faulty treatment, unsuitable operating materials, replacement materials or other unsuitable conditions.
6.6 In the event of non-compliance with our Operating Instructions, any warranties of quality or durability we may have given to the customer shall also lapse.
7. Liability and Insurance
7.1 Customer's claims for damages, regardless of the legal basis, as well as claims for reimbursement of futile expenses are excluded, unless the cause of the damage is based either on an intentional or grossly negligent breach of duty or on at least a negligent breach of a contractual obligation, the fulfillment of which characterizes the contract and on which the Customer may rely (essential contractual obligation); in the latter case, liability is limited in amount to the damage foreseeable and typical for the contract at the time of conclusion of the contract.
7.2 The above limitation of liability according to clause 7.1 shall also apply to the personal liability of our employees, representatives and organs as well as to our vicarious agents.
7.3 The limitations of liability according to Sections 7.1 and 7.2 do not apply to personal injury, i.e. to damages resulting from injury to life, body or health, in the case of liability under the Product Liability Act and insofar as we have exceptionally assumed a guarantee.
7.4 We are not obliged to take out insurance against damages of any kind. If we take out insurance at our discretion or at the express request of the Customer, the Customer shall bear the costs.
8. Statute of limitations
8.1 The limitation period for claims of the Customer arising from any quality or durability guarantees assumed by us shall commence - unless otherwise expressly provided in a separate guarantee declaration - in the case of purchase or work and services contracts upon delivery of the goods, in the case of work and services contracts upon acceptance by the customer.
8.2 Notwithstanding § 195 BGB (German Civil Code), the regular limitation period for claims of the Customer, which is dependent on knowledge, is 24 months. The commencement of this period is governed by § 199 para. 1 BGB. Notwithstanding § 199 para. 3 No. 1 BGB, the knowledge-independent limitation period for claims for damages of the customer is five years, beginning with the emergence of the claim.
8.3 Notwithstanding Section 8.1, contractual claims for damages and claims for reimbursement of futile expenses incurred by the customer due to a defect in the goods as well as the right to subsequent performance in accordance with Section 6.4 shall become statute-barred in 12 months. Recourse claims according to § 478 f. BGB remain unaffected.
8.4 Clauses 8.1 and 8.3 sentence 1 shall not apply in the event of a willful or grossly negligent breach of duty or a breach of material contractual obligations as well as in the cases mentioned in clause 7.3. The statutory limitation periods shall apply here.
8.5 Our claims for payment and interest shall become statute-barred after five years, unless a longer period is stipulated by law. The limitation period shall commence at the end of the year in which our claim arose and we became aware of the facts substantiating the claim.
9. Reservation of title
9.1 We reserve title to the delivered goods ("Reserved Goods") until all our claims against the Customer ("Secured Claims") have been settled in full and all cheques and bills of exchange have been honored. Secured claims are all present and future claims arising from the business relationship with the Customer, including any balance claims from current account.
9.2 The Customer shall be obliged to keep the reserved goods carefully in safe custody on our behalf and - if necessary - to maintain and repair them at his own expense. The Customer is obliged to insure the reserved goods against loss and damage at replacement value to the extent usual for a prudent businessman. Upon request, the Customer shall immediately provide us with evidence of this insurance by written confirmation from the insurer. The Customer hereby assigns to us in advance his claims to corresponding insurance benefits. We accept the assignment.
9.3 The Customer processes the reserved goods for us. We become co-owners of the new item. Our co-ownership share corresponds to the ratio of the objective market value of the reserved goods to the objective market value of the new item at the time of processing. The new object is considered to be a reserved goods.
9.4 The combination or mixing of the goods subject to retention of title with other goods shall also be done for us. We shall become co-owners of the new item. Our co-ownership share shall correspond to the ratio of the objective market value of the reserved goods to the objective market value of the new item at the time of combination or mixing. The new item is considered to be a reserved goods.
9.5 If our ownership expires due to the combination or mixing of the goods subject to retention of title with a main item, the Customer hereby assigns to us his ownership of the main item in proportion to the ratio of the objective market value of the goods subject to retention of title to the main item at the time of the combination or mixing. We accept the transfer. The main item shall be deemed to be reserved goods.
9.6 The Customer shall be entitled to dispose of the reserved goods in the ordinary course of business as long as he is not in default of payment. This shall not apply if a prohibition of assignment has been agreed between the Customer and his customers with regard to the Customer's purchase price or work compensation claim. The Customer is not entitled to transfer by way of security, pledge or other encumbrances of the reserved goods, nor to sell them in order to then lease the reserved goods back ("sale-and-lease-back").
9.7 If the reserved goods are sold by the Customer, the Customer hereby assigns to us in advance its claims against its customers or third parties resulting from the resale (including any balance claims from current account) with all security and ancillary rights, including claims from bills of exchange and cheques in the amount of the secured claims. We accept the assignment. If the reserved goods are sold together with other goods at a total price, the assignment is limited to the proportionate amount of the Customer's invoice for the reserved goods also sold. If goods are sold in which we have acquired co-ownership in accordance with Clauses 9.3, 9.4 or 9.5, the assignment shall be limited to that part of the claim which corresponds to our co-ownership share.
9.8 The Customer may collect the claims assigned to us in accordance with Clauses 9.2 and 9.7 in his own name and for our account unless we revoke this authorization. Our right to collect the assigned claims ourselves remains unaffected. However, we shall not collect the assigned claims ourselves and shall not revoke the Customer's direct debit authorization, provided that the Customer is not in default with his existing performance obligations towards us or his financial situation deteriorates significantly. In such a case, the customer shall be obliged to provide us with all information and documents necessary to assert the assigned claims.
9.9 In the event of resale of the reserved goods, the Customer is obliged to secure our rights to the reserved goods in the amount of the secured claims, provided this is feasible in the ordinary course of business. This can be done by the Customer making the transfer of ownership of the goods sold by him to his customers dependent on their full payment.
9.10 The Customer may not assign his claims from the resale of the goods subject to retention of title in order to have them collected by way of factoring, unless he irrevocably obliges the factor to effect the consideration directly to us to the extent that secured claims exist.
9.11 The Customer shall inform us immediately of any enforcement measures by third parties against the goods subject to retention of title or against the claims assigned to us or other securities, and shall provide us with the information necessary for an action for intervention; this shall also apply to impairments of any other kind. If our action for intervention is successful and the third party is not able to reimburse the necessary costs incurred by us for this, the customer shall be liable for this.
9.12 We undertake to release the securities to which we are entitled in accordance with the above provisions at the request of the Customer to the extent that the value realizable from the securities exceeds 110 % or the estimated value of the reserved goods exceeds 150 % of the secured claims. The selection of the reserved goods to be released is incumbent on us. The realizable value is the proceeds to be realized in a (hypothetical) insolvency of the customer for the reserved goods at the time of our decision on the release request. The estimated value is the market price of the reserved goods at that time.
9.13 If the reservation of title is not effective under the foreign law of the country in which the reserved goods are located, the customer shall provide an equivalent security at our request. If he does not comply with this request, we may demand immediate settlement of all outstanding invoices.
10. Industrial Property Rights
10.1 By concluding the contract, the Customer shall not acquire any rights to illustrations, drawings, models, plans, software, samples and other documents. Insofar as it is absolutely necessary for the execution of the respective contract, we grant the Customer a simple right of use, revocable at any time, to illustrations, drawings, models, plans, software, samples and other documents provided for use within the scope of the project named in the individual contract. All our rights to the illustrations, drawings, models, plans, software, samples and other documents, including copyrights, trademark rights, company rights and rights to know-how, therefore always remain with us. Without our consent, illustrations, drawings, models, plans, software, samples and other documents may not be reproduced or distributed by the customer or disclosed to third parties.
10.2 Upon request or if the order is not placed, the illustrations, drawings, models, plans, software, samples and other documents must be returned to us without delay.
10.3 We shall be entitled to demand reasonable compensation for models, drawings, plans or similar documents produced by us if the order is not placed with us.
10.4 It shall be the sole responsibility of the Customer to ensure that industrial property rights or other rights of third parties are not infringed on the basis of his specifications for the nature of the goods and their further processing.
10.5 If claims are asserted against us by a third party due to an infringement of industrial property rights on the basis of a quality specification of the Customer, the Customer shall, at its own expense and at its own discretion, either obtain a right of use for the relevant quality specifications or modify them in such a way that the industrial property right is not infringed. In this respect, the customer shall indemnify us in full upon first written request from all claims of third parties, including costs of legal defense and/or prosecution.
11. Exclusion of set-off / Rights of retention
11.1 The Customer may only offset against our claims if his counterclaim is undisputed or has been legally established or is ready for decision. In the event of delivery of goods contrary to the terms of the contract within the meaning of Section 6 of these GTC, the counter rights of our Customer from the same contractual relationship shall remain unaffected. The same applies to the assertion of a right to refuse performance or a right of retention.
11.2 Furthermore, the Customer may only base a right of retention on claims arising from the same contractual relationship on which his obligation is based and only assert such a right of retention if we have not provided adequate security despite a written request by the Customer.
12. Order-related production equipment, parts to be casted in
12.1 Order-related production equipment such as models, templates, core boxes, tools, devices and control gauges provided by the customer shall be made available to us free of charge and sent to us in due time. We shall only check the conformity of the production equipment provided by the Customer with the contractual specifications or drawings or samples provided to us by express agreement. We may modify production equipment provided by the customer if this appears necessary to us for technical production reasons and the workpiece is not changed as a result.
12.2 The Customer shall bear the costs for the modification, maintenance and replacement of the production equipment.
12.3 The production equipment shall be handled and stored by us with the same care that we apply in our own affairs. We are not liable for the accidental loss or deterioration of the production equipment. We may return the Customer's production equipment no longer required by us at the customer's expense and risk or, if the customer does not comply with our request to collect the equipment within a reasonable period of time, we may store it at the usual cost and destroy it after setting a reasonable deadline and giving a warning.
12.4 The order-related production equipment which is manufactured or procured by us on behalf of the Customer shall remain our property even if we charge pro rata costs. They shall be stored by us for a period of 3 years after the last order. If, in deviation from the above provision, the customer becomes the owner, ownership shall pass to him upon payment of the agreed price or share of costs. The handing over of the equipment is replaced by our obligation to store it. The custody relationship can be terminated by the customer at the earliest 2 years after transfer of ownership, unless there is an important reason.
12.5 The Customer can only assert claims arising from copyright or industrial property rights if he informs us of the existence of such rights at the beginning of the order and expressly reserves these rights.
12.6 If the use of production equipment that can only be used once results in rejects, the Customer must either provide new production equipment or bear the costs of replacement equipment.
13. Other provisions
13.1 The place of performance shall be the registered office of our head office in Bochum. The place of jurisdiction for all disputes arising from commercial transactions with registered traders and legal entities under public law shall be Bochum for both parties (§ 38 ZPO). This also applies to bill of exchange and cheque processes. We may also assert claims against our customer at his general place of jurisdiction.
13.2 German law shall apply to the exclusion of the CISG.
13.3 Changes or amendments to these GTC must be made in writing. This shall also apply to the cancellation of this written form requirement or any deviation from it.
13.4 If individual provisions of these General Terms and Conditions or of the delivery transaction are or become invalid in whole or in part, the validity of the remaining provisions or remaining parts of such clauses shall not be affected.
13.5 In the event of any discrepancies between the German and the English language version of this General Terms and Conditions, the provisions of the German language version of this General Terms and Conditions shall take precedence over the provisions of the English language version.
Habermann Aurum Pumpen GmbH, Bochum - Status: September 2020