General Terms and Conditions of Sale (GTCS) of happy rain Würflingsdobler GmbH
Section 1 - Scope of Application, General Provisions
- The present General Terms and Conditions of Sale (hereinafter referred to as: GTCS) shall apply to all of our business relationships with our customers (hereinafter also referred to as: Purchaser). The GTCS shall apply only if the Purchaser is an entrepreneur (Section 14 German Civil Code [Bürgerliches Gesetzbuch - BGB]), a legal entity under public law or a special fund under public law.
- The GTCS shall apply, in particular, to any agreements on the sale and/or delivery of movable things (hereinafter also referred to as: Goods), irrespective of whether or not we manufacture the Goods ourselves or purchase them from any component suppliers (Sections 433, 651 German Civil Code [BGB]). Unless agreed upon otherwise, the GTCS in the text form valid at the time the Purchaser places the order shall also apply to any similar future agreements, without us being obliged to point out to them again in each individual case.
- Our GTCS shall apply exclusively. Any deviating, conflicting or complementing General Terms and Provisions of the Purchaser shall become an integral part of the agreement only if and to the extent that we have explicitly given our consent to their application. Such requirement of consent shall apply in any case, including, but not limited to, those cases where we carry out the delivery to the Purchaser without reservation while being aware of the General Terms and Conditions of the Purchaser.
- Any individual arrangements concluded with the Purchaser in the individual case (including any ancillary arrangements, amendments and modifications) shall take precedence over the present GTCS in any case. Subject to evidence to the contrary, a written agreement and/or our written confirmation shall be authoritative for the contents of any such arrangements.
- Any legally relevant statements and notices made by the Purchaser in relation to the agreement (for ex. setting of a time limit, notice of defects, withdrawal or price reduction) shall be made in writing, i.e. in written or text form (for ex. letter, e-mail, telefax). Any statutory formal requirements and any further supporting documents, in particular in case of any doubts as to the legitimation of the party making such statement, shall remain unaffected.
- Our field service employees shall not be authorised to issue or accept any binding statements for us. Any statements made by our field service employees shall be binding only if we explicitly confirm them in writing.
- Any references to the application of any statutory regulations shall only have clarifying significance. As a result, the statutory regulations shall also apply without any such clarification, unless they are directly amended or explicitly excluded in the present GTCS.
Section 2 - Conclusion of Agreements
- Our offers shall be subject to change and non-binding. The same shall also apply if we have surrendered to the Purchaser any catalogues, technical documentation (for ex. drawings), any other product descriptions or documents, including in electronic form, to which we reserve rights of ownership and copyrights.
- Ordering of the Goods by the Purchaser shall be regarded as a binding contractual offer. Unless otherwise provided for in the purchase order, we shall be entitled to accept such contractual offer within a period of 14 days following the date of its receipt by us.
- Acceptance may be declared by us either in writing (for ex. by means of an order confirmation) or by us delivering the Goods to the Purchaser. To the extent that the Purchaser asks for any delivery time and/or delivery date after the expiry of a period of 14 days following the date of receipt of the Purchaser’s purchase order by us, acceptance of the purchase order may also be effected by us sending the Goods at the delivery time requested and/or as of the delivery date requested, even if we do not confirm the order in writing beforehand.
Section 3 - Delivery Deadline, Delay in Delivery
- The delivery deadlines specified by us shall always be non-binding, unless they have been expressly identified as being binding or they have been individually agreed upon with the customer as being binding. The same shall also apply to any delivery dates.
- To the extent that we are unable to comply with any binding delivery deadlines or dates for any reasons not attributable to us (non-availability of the service), we shall notify the Purchaser about this without undue delay, communicating the expected new delivery deadline and/or the new delivery date. In the event that the service will not be available within the new delivery deadline and/or up to the new delivery date either, we shall be entitled to withdraw from the agreement either in whole or in part; any consideration already given by the Purchaser shall be reimbursed by us without undue delay. Cases where the service shall be deemed to be unavailable within this meaning shall include, in particular, the failure of our component supplier to perform self-delivery in due time if we have entered into a congruent hedging transaction, if any fault is attributable neither to ourselves nor to our component supplier or if we are not obliged to perform procurement in the individual case.
- The date of occurrence of our default in delivery shall be governed by the statutory regulations. However, a reminder by the Purchaser shall be required in any case. If we come into default in delivery, the Purchaser may request liquidated damages for the damage caused to the Purchaser due to such default. The lump-sum compensation for each completed calendar week of such default shall amount to 0.5% of the net price (delivery value), not exceeding, however, a total of 5% of the delivery value of the Goods delivered late. We reserve the right to demonstrate that the customer did not suffer any damage at all or that the damage incurred is significantly lower than the lump sum referred to above.
- The rights of the customer in accordance with section 8 of the present GTCS and our statutory rights, in particular in case of any exclusion of the obligation to perform (for ex. due to impossibility or unreasonableness of the service and/or subsequent performance) shall remain unaffected.
Section 4 - Delivery, Passing of Risk, Default in Acceptance
- Unless agreed upon otherwise, delivery shall take place EXW - ex works - in accordance with the Incoterms 2010.
- The risk of accidental loss and of accidental deterioration of the Goods delivered shall pass to the customer upon delivery to the carrier, the freight forwarder or any other individual determined to carry out dispatch.
- In the event that the customer comes into default in acceptance, if the customer fails to take any act of cooperation or if our delivery is delayed for any other reasons attributable to the customer, we shall be entitled to claim compensation for the damage resulting therefrom, including additional expenses (for ex. storage costs).
Section 5 - Prices, Terms of Payment
- Unless agreed upon otherwise in the individual case, our respective current prices at the time the agreement is concluded shall apply, i.e. ex works and plus the statutory value added tax.
- The Purchaser shall bear the transport costs ex works and the costs of any transport insurance requested by the Purchaser, where applicable. Any customs duties, fees, taxes and other public charges, as the case may be, shall be borne by the Purchaser.
- The purchase price shall be due and payable within a period of 30 days from the date of invoicing and delivery and/or acceptance of the Goods. However, we shall be entitled at any time, also within the scope of any ongoing business relationship, to carry out a given delivery, either in whole or in part, only against payment in advance. Any corresponding reservation shall be declared by us with the order confirmation at the latest.
- Once the payment term specified in para. 3 sentence 1 has expired, the Purchaser shall be deemed to have come into default. During such default, the purchase price shall bear interest at the respective applicable statutory default interest rate. We reserve the right to assert any farther-reaching damage caused by such default. Our entitlement to claim the commercial interest on maturity (Section 353 German Commercial Code [Handelsgesetzbuch - HGB]) vis-à-vis merchants shall remain unaffected.
- The Purchaser shall be entitled to any rights of set-off or retention only to the extent that the Purchaser’s claim has been legally established or is undisputed. If the delivery exhibits any defects, the Purchaser’s counter-rights, in particular in acc. with section 7 para. 6 sentence 2 of the present GTCS, shall remain unaffected. If, following the conclusion of the agreement, any significant deterioration of the Purchaser’s financial situation becomes evident (for ex. due to any application filed for the initiation of insolvency proceedings), we shall be entitled to demand an adequate collateral security or to withdraw from the agreement.
Section 6 - Retention of Title
- Until full payment of all of our present and future claims from the purchase agreement and from any ongoing business relationship (secured claims) has been effected, we shall retain title to the Goods sold.
- The Goods subject to retention of title must be neither pledged nor assigned by way of security to any third parties before the secured claims have been paid in full. The Purchaser shall notify us in writing without undue delay if any application for the initiation of insolvency proceedings is filed or to the extent that any access by third parties (for ex. pledges) to the Goods belonging to us takes place.
- In the event that the Purchaser acts in any way contrary to the contractual obligations, in particular in case of any failure to pay the purchase price due, we shall be entitled, in acc. with the statutory regulations, to withdraw from the agreement and/or to demand surrender of the Goods on account of the retention of title. The request for surrender shall not include the declaration of withdrawal at the same time; rather, we shall be entitled to solely demand surrender of the Goods and to reserve the right to withdraw from the agreement. If the Purchaser does not pay the purchase price due, we may assert these rights only if we have unsuccessfully set the Purchaser a reasonable time limit in advance or in the event that the setting of any such time limit is dispensable in accordance with the statutory regulations.
- Until any revocation is made, the Purchaser shall be authorised to resell and/or process the Goods subject to retention of title in the proper course of business. In this case, the provisions below shall apply as a complement.
- The retention of title shall cover the full value of any products created by any processing, blending or combination of our Goods, with us being regarded as the manufacturer. If, in the case of any processing, blending or combination of our Goods with any goods of third parties, the right of ownership of such third parties remains in force, we shall acquire joint ownership in proportion to the invoice values of the processed, blended or combined goods. Apart from that, the created product shall be subject to the same regulations as those applicable to the Goods delivered subject to retention of title.
- The claims against third parties resulting from the resale of the Goods or of the product shall already now be assigned by way of security by the Purchaser in their entirety and/or in the amount of our joint ownership share, where applicable, in accordance with the paragraph above. We shall accept such assignment. The Purchaser’s obligations specified in para. 2 shall also apply in consideration of the claims assigned.
- The Purchaser shall remain authorised to collect the claim alongside us. We shall be obligated to not collect the claim as long as the Purchaser meets the Purchaser’s payment obligations vis-à-vis us, no defect exists in the Purchaser’s ability to perform and we do not assert the retention of title by exercising any right in accordance with para. 3. If this is the case, however, we may require the Purchaser to notify us of the claims assigned and of their debtors, to provide any information required for the collection, to hand over the associated documents and to inform the debtors (third parties) of the assignment. In addition, we shall also be entitled in this case to revoke the authority of the Purchaser to perform any further alienation and processing of the Goods subject to retention of title.
- If the realisable value of the collateral securities exceeds our claims by more than 10%, we shall release collateral securities at our option when requested to do so by the Purchaser.
Section 7 - Claims for Defects of the Purchaser
- The rights of the Purchaser in case of any material and legal defects (including cases of incorrect and short delivery as well as cases of improper installation or inadequate installation instructions) shall be governed by the statutory regulations, unless anything to the contrary is stipulated below. The special statutory regulations in case of any final delivery of the Goods to a consumer (recourse against suppliers in accordance with Sections 478, 479 German Civil Code [BGB]) shall remain unaffected in any case.
- The basis of our liability for defects shall be, in particular, the arrangement made on the quality of the Goods. An arrangement made on the quality of the Goods shall be deemed to include all product descriptions which are the subject matter of the individual agreement or have been made public knowledge by us (in particular in catalogues or on our Internet homepage).
- To the extent that no quality has been agreed upon, it shall be assessed in accordance with the statutory regulations whether or not any defect exists (Section 434 Para. 1 S. 2 and 3 German Civil Code [BGB]). However, we shall not assume any liability for any public statements made by the manufacturer, unless we are the manufacturer ourselves, or by any third parties (for ex. advertising statements).
- The claims for defects of the Purchaser shall imply that the Purchaser has met the legal obligations of inspection and notification of defects incumbent upon the Purchaser (Sections 377, 381 German Commercial Code [HGB]). If any defect becomes evident at the time of delivery, during the inspection or at any later point in time, we shall be notified thereof without undue delay. In any case, any obvious defects shall be notified within a period of five (5) working days from the date of delivery; any defects not becoming evident during the inspection shall be notified within the same time limit from the date of their discovery. If the Purchaser fails to perform proper inspection and/or notice of defects, our liability for any defect not notified at all and/or not in due time or not in a proper manner shall be excluded in accordance with the statutory regulations.
- If the delivered item is defective, we may first choose whether we will perform cure by remedying the defect (subsequent improvement) or by delivering an item free from defects (replacement delivery). Our right to refuse cure under the statutory conditions shall remain unaffected.
- We shall be entitled to make the cure owed dependent on the Purchaser paying the purchase price due. The Purchaser shall be entitled, however, to retain such portion of the purchase price that is appropriate in proportion to the defect.
- The Purchaser shall provide us with the time and opportunity required for the purposes of cure and shall, in particular, hand over for inspection purposes the Goods complained about. In any case of replacement delivery, the Purchaser shall return the defective item to us in accordance with the statutory regulations.
- The expenses required for the purposes of inspection and cure, in particular any transport, infrastructure and labour costs and any costs of material, shall be borne by us, provided that a defect actually exists. Otherwise, we may request the Purchaser to reimburse us for the costs incurred as a result of the unjustified request for remediation of defects (in particular any inspection and transport costs), unless the lack of defectiveness was not recognisable for the Purchaser.
- In urgent cases, for ex. to ward off any disproportionate damage, the Purchaser shall have the right to remedy the defect itself and to claim reimbursement from us for the expenses objectively required to this end. We shall be notified of any such self-help without undue delay, as far as possible in advance. The right to self-help shall not exist if we would be entitled to refuse corresponding subsequent performance in accordance with the statutory regulations.
- If subsequent performance has failed or in the event that any reasonable time limit to be set by the Purchaser has expired to no avail or is dispensable in accordance with the statutory regulations, the Purchaser may withdraw from the purchase agreement or reduce the purchase price. In case of any insignificant defect, however, any right of withdrawal shall not exist.
- Any claims of the Purchaser for compensation for damages and/or reimbursement of any futile expenditures, including in cases of defects, shall exist only in accordance with section 8 and shall be excluded in any other cases.
Section 8 - Other Forms of Liability
- Unless provided for otherwise in the present GTCS, including the provisions stipulated below, we shall be liable in case of any violation of contractual and non-contractual obligations in accordance with the statutory regulations.
- We shall be liable for intent and gross negligence on the basis of compensation for damages, for any legal reason whatsoever, within the framework of fault-based liability. In any case of ordinary negligence, we shall be liable, subject to a more lenient standard of liability in accordance with the statutory regulations (for ex. for due care with regard to our own affairs), only:
a) for any damage arising from the violation of life, body or health;
b) for any damage arising from the not insignificant violation of any essential contractual obligation (i.e. any obligation, the fulfilment of which is a prerequisite for enabling proper implementation of the agreement in the first place and on compliance with which the contracting partner regularly relies and may regularly rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
- The limitations of liability resulting from para. 2 shall also apply in case of any breaches of duty by and/or for the benefit of any individuals, whose fault is attributable to us in accordance with the statutory regulations. They shall not apply to the extent that we have maliciously concealed any damage or have assumed any guarantee for the quality of the Goods, nor for any claims of the Purchaser in accordance with the German Product Liability Act.
- The Purchaser may withdraw from or terminate the agreement on account of any breach of duty not consisting in a defect only if we are responsible for the breach of duty. Any free right of termination of the Purchaser (in particular in accordance with Sections 651, 649 German Civil Code [BGB]) shall be excluded. For all other cases, the statutory conditions and legal consequences shall apply.
Section 9 - Choice of Law, Place of Jurisdiction
- The present GTCS and the contractual relationship between us and the Purchaser shall be subject to the laws of the Federal Republic of Germany, to the exclusion of international uniform law, in particular of the UN Sales Law.
- If the Purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive, also international, place of jurisdiction for all disputesdirectly or indirectly resulting from the contractual relationship shall be our place of business located in Simbach am Inn. The same shall also apply if the Purchaser is an entrepreneur within the meaning of Section 14 German Civil Code [BGB]. However, we shall also be entitled in all cases to file legal action at the place of performance of the delivery obligation in accordance with the present GTCS and/or any overriding individual arrangement or at the Purchaser’s usual place of jurisdiction. Any overriding legal regulations, in particular on exclusive competences, shall remain unaffected.
Status of the present GTCS: March 2017