Terms of service

General Terms and Conditions of Sale and Delivery of Hauck Retail GmbH

§ 1 General Provisions, Scope of Application

(1) These General Terms and Conditions of Sale (GTCS) apply to all our business relationships with our commercial customers (hereinafter referred to as the “Buyer”). Accordingly, these GTCS shall only apply if the Buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB).

(2) These GTCS apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as “Goods”), regardless of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 651 BGB). These GTCS, in their respective valid version, shall also apply as a framework agreement to future contracts for the sale and/or delivery of movable goods with the same Buyer, without the need for us to refer to them again in each individual case; in this case, we shall inform the Buyer immediately of any amendments to our GTCS.

(3) Our GTCS shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement of consent shall apply in all cases, for example even if we carry out delivery to the Buyer without reservation while being aware of the Buyer’s terms and conditions.

(4) Individual agreements concluded with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTCS. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.

(5) Legally relevant declarations and notifications to be submitted to us by the Buyer after conclusion of the contract (e.g. setting of deadlines, notices of defects, declarations of withdrawal or reduction) must be made in writing in order to be effective.

(6) References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly modified or expressly excluded in these GTCS.

§ 2 Conclusion of Contract

(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents – including in electronic form – to which we reserve ownership and copyright rights.

(2) The order of the Goods by the Buyer shall be deemed a binding contractual offer.

(3) Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the Goods to the Buyer.

§ 3 Delivery Period and Delay in Delivery

(1) The delivery period shall be agreed individually or specified by us upon acceptance of the order. No guarantee shall be assumed for compliance with delivery times unless they have been expressly guaranteed within the meaning of a fixed-date transaction.

(2) If we are unable to comply with binding delivery periods for reasons for which we are not responsible (non-availability of performance), we shall be entitled to withdraw from the contract in whole or in part; any consideration already provided by the Buyer shall be reimbursed immediately. A case of non-availability of performance in this sense shall include in particular failure by our supplier to deliver to us on time if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault, or we are not obliged to procure in the individual case.

(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In all cases, however, a reminder from the Buyer shall be required.

(4) The rights of the Buyer pursuant to § 8 of these GTCS and our statutory rights, in particular in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

(1) Delivery shall be ex works, which is also the place of performance, but insured. At the Buyer’s request and expense, the Goods shall be shipped to another destination (sale by dispatch). Unless otherwise agreed, we shall be entitled to determine the type of shipment ourselves (in particular transport company, shipping route, packaging).

(2) The risk of accidental loss and accidental deterioration of the Goods shall pass to the Buyer at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay shall pass already upon delivery of the Goods to the freight forwarder, carrier or other person or institution designated to carry out the shipment. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of contract law governing contracts for work and services shall apply accordingly to agreed acceptance. Handover or acceptance shall be deemed equivalent if the Buyer is in default of acceptance.

(3) If the Buyer is in default of acceptance, fails to cooperate, or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs).

§ 5 Prices and Terms of Payment

(1) Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply ex works plus statutory VAT, excluding packaging, freight, postage, insurance, unloading and other ancillary services.

(2) In the case of sale by dispatch (§ 4 para. 1), the Buyer shall bear the transport costs from the warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer. We do not take back transport packaging or any other packaging in accordance with the Packaging Ordinance; these become the property of the Buyer, except for pallets.

(3) The purchase price shall be due and payable within 30 days from invoicing and delivery. A discount of 3% on the net amount shall be granted for payment within 10 days of receipt of invoice. For new customers, we shall be entitled to demand advance payment in the amount of the invoice value for the first two orders.

(4) Upon expiry of the above payment period, the Buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to assert further damages caused by default. Section 353 HGB remains unaffected.

(5) If the Buyer is more than 14 days in arrears with a due payment from a single delivery contract or if a significant deterioration in the Buyer’s financial circumstances occurs, the Seller shall have the following rights against the Buyer:

• Payment obligations of the Buyer arising from other ongoing delivery contracts shall become immediately due;
• the Seller shall be entitled to demand immediate advance payment for all deliveries;
• insofar as deliveries have not yet been made, the Buyer shall be obliged to make advance payment;
• the Seller shall be entitled to withhold delivery of further orders until full payment has been made.

(6) The Buyer shall only be entitled to rights of set-off or retention insofar as the claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer’s counter-rights pursuant to § 7 of these GTCS shall remain unaffected.

(7) If, after conclusion of the contract, it becomes apparent that our claim for the purchase price is jeopardized by the Buyer’s inability to perform (e.g. through application for the opening of insolvency proceedings), we shall be entitled, in accordance with statutory provisions, to refuse performance and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible items (custom-made products), we may declare withdrawal immediately; the statutory provisions regarding the dispensability of setting a deadline shall remain unaffected.

§ 6 Retention of Title

(1) The delivered Goods (Reserved Goods) shall remain our property until all claims to which we are entitled against the Buyer now or in the future have been fulfilled, including all balance claims from current accounts. If the Buyer acts in breach of contract – in particular if the Buyer is in default with a payment obligation – we shall be entitled to take back the Reserved Goods after setting a reasonable deadline for performance. The Buyer shall bear the transport costs incurred for the return. If we take back the Reserved Goods, this shall constitute withdrawal from the contract. Seizure of the Reserved Goods by us shall also constitute withdrawal from the contract. We may realize the Reserved Goods taken back by us. The proceeds of realization shall be offset against the amounts owed to us by the Buyer after deduction of a reasonable amount for the costs of realization.

(2) The Buyer must handle the Reserved Goods with care. The Buyer must insure them adequately at replacement value against fire, water and theft damage at the Buyer’s own expense. If maintenance and inspection work is required, the Buyer must carry this out in due time at the Buyer’s own expense.

(3) The Buyer may use and resell the Reserved Goods in the ordinary course of business as long as the Buyer is not in default of payment. However, the Buyer may not pledge the Reserved Goods or assign them as security. The Buyer hereby assigns to us by way of security in full all claims arising from the resale of the Reserved Goods against the Buyer’s customers, as well as all other claims relating to the Reserved Goods arising against customers or third parties for any other legal reason (in particular claims arising from tort and insurance claims), including all balance claims from current accounts. We hereby accept this assignment.

The Buyer may collect these claims assigned to us in the Buyer’s own name and for our account as long as we do not revoke this authorization. Our right to collect these claims ourselves shall remain unaffected; however, we shall not assert the claims ourselves and shall not revoke the direct debit authorization as long as the Buyer properly fulfills the Buyer’s payment obligations.

If the Buyer acts in breach of contract – in particular if the Buyer is in default with a payment obligation – we may require the Buyer to inform us of the assigned claims and the respective debtors, notify the respective debtors of the assignment, hand over all documents and provide all information required for the assertion of the claims.

(4) In the event of seizure of the Reserved Goods by third parties or other interventions by third parties, the Buyer must refer to our ownership and notify us immediately in writing so that we can enforce our ownership rights. If the third party is unable to reimburse us for judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable for these costs.

(5) If the Buyer requests it, we shall be obliged to release the securities to which we are entitled insofar as their realizable value exceeds the value of our outstanding claims against the Buyer by more than 10%. However, we may select the securities to be released.

§ 7 Buyer’s Warranty Claims

(1) The warranty period shall be one year from delivery or, insofar as acceptance is required, from acceptance. Normal wear and tear and natural wear of components are excluded from the warranty.

(2) The delivered items must be carefully inspected immediately after delivery to the Buyer or to the third party designated by the Buyer. With regard to obvious defects or other defects that would have been recognizable during an immediate, careful inspection, the Goods shall be deemed approved by the Buyer unless we receive written notice of defects within seven working days after delivery. With regard to other defects, the delivered items shall be deemed approved if the notice of defects is not received by us within seven working days after the time at which the defect became apparent; if the defect was already recognizable to the Buyer at an earlier point in time during normal use, however, this earlier point in time shall be decisive for the commencement of the notification period. At our request, a rejected delivered item must be returned to us carriage paid. In the event of a justified notice of defects, we shall reimburse the costs of the most favorable shipping route; this shall not apply insofar as the costs increase because the delivered item is located at a place other than the place of intended use.

(3) In the event of material defects of the delivered items, we shall initially be obliged and entitled, at our discretion and within a reasonable period, to repair or replace the Goods. In the event of failure after two attempts, i.e. impossibility, unreasonableness, refusal or unreasonable delay of repair or replacement delivery, the Buyer may withdraw from the contract or reduce the purchase price appropriately. Withdrawal shall only be permissible in the case of a material defect. A material defect of the item shall only exist if the costs of repair amount to at least 10% of the net purchase price.

(4) The warranty shall cease to apply if the Buyer modifies the delivered item without our consent or has it modified by third parties and this makes the elimination of defects impossible or unreasonably difficult. In any case, the Buyer shall bear the additional costs of remedying defects resulting from the modification.

§ 8 Other Liability

(1) Unless otherwise stated in these GTCS, including the following provisions, we shall be liable in the event of breaches of contractual and non-contractual obligations in accordance with the relevant statutory provisions.

(2) We shall be liable for damages – regardless of the legal grounds – in cases of intent and gross negligence. In cases of simple negligence, we shall only be liable

a) for damages resulting from injury to life, body or health,

b) for damages resulting from the breach of an essential contractual obligation (an obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable damage typically occurring. Indirect damages and consequential damages resulting from defects in the delivered item shall furthermore only be compensable insofar as such damages are typically to be expected when the delivered item is used as intended.

(3) In the event of liability for negligence, our obligation to pay compensation for personal injury and property damage shall be limited to EUR 8,000,000.00 per damage event and for resulting financial losses to EUR 1,000,000.00 per damage event (corresponding to the current coverage amount of the product liability insurance or liability insurance of the supplier), even if a breach of essential contractual obligations is involved.

(4) The limitations of liability resulting from paragraphs 2 and 3 shall not apply insofar as we have fraudulently concealed a defect or assumed a guarantee for the quality of the Goods. The same shall apply to claims of the Buyer under the German Product Liability Act.

§ 9 Limitation Period

(1) Contrary to Section 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.

(2) The above limitation periods under sales law shall also apply to contractual and non-contractual claims for damages by the Buyer based on a defect in the Goods, unless application of the regular statutory limitation periods (Sections 195, 199 BGB) would lead to a shorter limitation period in the individual case. The limitation periods under the Product Liability Act shall remain unaffected in all cases. Otherwise, the statutory limitation periods shall apply exclusively to claims for damages by the Buyer pursuant to § 8.

§ 10 Choice of Law and Jurisdiction

(1) These GTCS and all legal relationships between us and the Buyer shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG). The prerequisites and effects of the retention of title pursuant to § 6 shall be governed by the law of the respective location of the Goods insofar as the choice of German law is inadmissible or ineffective thereunder.

(2) The exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the competent court at our registered office in Sonnefeld near Coburg/Germany. However, we shall also be entitled to bring legal action at the general place of jurisdiction of the Buyer.