These Terms are for use vis-à-vis:
1. A person who at the conclusion of the contract is acting in execution of their commercial or freelance professional career (contractor);
2. Legal entities under public law or a special fund under public law
The General Terms apply to all contracts starting from January 1st, 2018 for purchase, services, labor and materials of H-BAU Technik GmbH (hereinafter referred to as H-BAU Technik GmbH or Supplier). They apply without express agreement to all future business transactions of the above-mentioned type. General Terms and Conditions of Business of Orderer to which H-BAU Technik GmbH has not expressly agreed shall in no case become the subject matter of contract. Deviations from these General Terms are only effective if they have been agreed in writing in an individual contract with Orderer. This applies in particular to agreements abolishing the requirement for written form.
Documents such as illustrations, drawings or statements of weights and measures which are an integral part of the offer of H-BAU Technik GmbH allow for customary deviations insofar as they are not expressly stated to be binding. H-BAU Technik GmbH reserves ownership and copyrights to all cost estimates, drawings and other documents; they may not be made accessible to third parties without the express consent of H-BAU Technik GmbH. H-BAU Technik GmbH is obligated to make plans designated by Orderer as confidential available to third parties only with Orderer‘s consent.
1. The contract note of H-BAU Technik GmbH definitively applies to the scope of delivery insofar as nothing to the contrary has been agreed in writing outside of said note. Subsidiary agreements require the written consent of H-BAU Technik GmbH.
2. If Orderer must undertake an acceptance of the goods, Orderer must perform such acceptance on the premises of H-BAU Technik GmbH within fifteen days of receipt of the notification of readiness of acceptance. If this deadline is not met, the goods shall be considered accepted when this time period expires. Acceptance may not be refused due to minor defects; the rights of Orderer pursuant to IX remain intact in this respect, however.
1. Prices are regarded as net prices, that is in particular, without deducting taxes, fees, charges and customs ex works including loading at the plant yet excluding packaging, transport insurance and transit, import or other permits, as well as other costs caused by delivery.
2. Each invoice amount allows 2% discount when paid within fourteen days upon the date of invoice or within thirty days without any deductions to the designated account of H-BAU Technik GmbH.
3. Payment is due immediately without any deduction for repairs, spare parts and assembly.
4. Orders less than 150 euros will be charged with 25 euros of less amount surcharge and forwarding expenses.
5. Bills of exchange are not permitted as payment.
6. If Orderer should default on payment, Supplier shall be entitled to demand immediate payment in cash of all outstanding debts from the business relationship. This right shall not be excluded through deferment of payment or the acceptance of checks. Furthermore, Supplier shall then also be entitled to make outstanding deliveries only on the basis of payment in advance or the provision of securities.
7. If the financial standing of Orderer should considerably worsen after the contract is signed, Supplier can also withdraw from the contract insofar as Orderer is not willing or able to match payment with delivery or provide security.
8. Orderer can only offset such receivables as are uncontested or legally established.
9. If Orderer is in default of payment, H-BAU Technik GmbH shall charge default interest amounting to EURIBOR plus 4 %. The proof of higher or lower damage remains permissible.
10. Supplier reserves the right to adjust prices if wage rates or material prices should change between the time the offer is made and the fulfillment of the contract. Prices shall moreover be adequately adjusted if the delivery period is subsequently extended for reasons for which Orderer is responsible, or if the type or scope of the agreed services or service undergo a change, or if the material or the execution undergo a change because the documents provided by Orderer did not match the actual conditions or were incomplete.
1. The agreed delivery dates apply only under the assumption that all details of the order are clarified in due time and all obligations of Orderer are fulfilled in due time, such as providing the necessary official permits, issuing a letter of credit or making a down payment.
2. If, once the contract is signed, the delivery is delayed due to acts of God, such as war, force majeure, national unrest, forces of nature or other unforeseeable events for which H-BAU Technik GmbH cannot be held responsible, such as industrial action, interruption of operations for which H-BAU Technik GmbH is not responsible, etc., the delivery period shall be extended by the duration of the obstruction and by a reasonable start-up period.
3. If H-BAU Technik GmbH should not be able or expected to fulfill its obligations due to an obstruction stated in Section 2 above, it can withdraw from the contract; Orderer has the same right, if the delay makes acceptance unreasonable for Orderer.
4. If H-BAU Technik GmbH should default, Orderer can withdraw from the contract following a reasonable period set by Orderer in writing. The same applies if H-BAU Technik GmbH should not be able to fulfill its obligations for reasons attributable to H-BAU Technik GmbH.
5. A right of withdrawal to which Orderer or H-BAU Technik GmbH is entitled pursuant to Subparagraphs 3 and 4 above always covers only that portion of the contract not yet fulfilled. Insofar as partial deliveries or services rendered for Orderer are unusable, Orderer is also entitled to withdraw with regard to these parts.
6. All other claims against Supplier with regard to delay are excluded insofar as Supplier is not culpable owing to violation of essential contractual obligations, intent or gross negligence by H-BAU Technik GmbH.
Risk is transferred to Orderer when the goods are handed over to the carrier or forwarding agent, but at the latest when they leave the plant. The Incoterms in the version effective at the time the contract is signed shall apply. Goods reported as ready for shipment must be picked up by the agreed delivery date at the latest; otherwise H-BAU Technik GmbH shall store them at the expense and risk of Orderer and charge for them as delivered ex works. H-BAU Technik GmbH is entitled to make and charge for partial deliveries. Delivered items must be received even if they exhibit minor defects; this does not affect the rights pursuant to Section IX.
1. H-BAU Technik GmbH retains ownership of the delivered goods until all claims due to H-BAU Technik GmbH from the business relationship and still outstanding, on whatever legal grounds, are fully settled.
2. Orderer is entitled to process or combine products from H-BAU Technik GmbH with other products within the scope of its proper business operations. H-BAU Technik GmbH acquires co-ownership to the items produced through such processing or combination in order to ensure its claims stated in Section VIII.1., which co-ownership Orderer now transfers to H-BAU Technik GmbH. Orderer must hold in safe custody free of charge the items to which H-BAU Technik GmbH has co-ownership as an accessory contractual obligation. The extent of our co-ownership shall be determined by the ratio of the value the product from H-BAU Technik GmbH has to the item created by the combination at the time they are combined.
3. Orderer is entitled to a right of resale for cash or with retention of title in the ordinary course of business. Orderer now transfers all claims with ancillary rights arising from the resale to H-BAU Technik GmbH. If products belonging to H-BAU Technik GmbH are resold together with other goods, then the purchase price claim is transferred to H-BAU Technik GmbH in the amount of the price of the products from H-BAU Technik GmbH. The transferred claims serve as security for all claims pursuant to Section VIII.1. Orderer is entitled to collect the transferred claims. The rights stated in this section can be revoked if Orderer does not properly fulfill all Orderer‘s contractual obligations toward H-BAU Technik GmbH, especially if Orderer should default on payment. These rights shall expire without express revocation if Orderer ceases to make payment for longer than merely temporarily. Upon request of H-BAU Technik GmbH, Orderer must declare without delay in writing who has purchased the goods to which H-BAU Technik GmbH retains title or co-ownership and state the claims arising from the sale, as well as issuing at Orderer‘s own expense a public notarized deed on the transfer of claims to H-BAU Technik GmbH.
4. Orderer is not entitled to otherwise dispose of the items to which H-BAU Technik GmbH retains title or co-ownership, nor of the claims transferred to the latter. Orderer must inform H-BAU Technik GmbH without delay of attachments or other impairment of rights to the items or claims belonging in full or in part to H-BAU Technik GmbH. Orderer shall bear all the expenses required to keep third parties from gaining access to the goods to which title has been retained or which is pledged as security and to replace the item, insofar as they cannot be collected from third parties.
5. In the event of default of payment or culpable violation of other contractual obligations of Orderer, H-BAU Technik GmbH is entitled to demand restitution of the goods to which H-BAU Technik GmbH has reservation of title or co-ownership. If H-BAU Technik GmbH should exercise this right, then this shall only constitute withdrawal from contract if H-BAU Technik GmbH has expressly so declared in writing – regardless of any other mandatory legal provisions. If the value of the securities existing for H-BAU Technik GmbH exceeds the total claims by more than ten percent, then H-BAU Technik GmbH shall, at Orderer‘s request, release securities of its own choice to this extent.
6. If the retention of title is not effective according to the law in whose area the goods are situated, then a security corresponding to the retention of title in this area shall be considered as agreed. If the cooperation of Orderer is necessary for the formation of such rights, then Orderer must take all action necessary to establish and maintain such rights.
7. If according to the law in whose area the goods are situated, the agreement of a further retention of title provision is permissible (for example, the advance assignment of claims of the purchaser arising from a resale of the goods delivered by H-BAU Technik GmbH), said purchaser shall make an agreement of this nature with H-BAU Technik GmbH upon request.
Complaints must be indicated to H-BAU Technik GmbH without delay, in the case of obvious defects, within eight days, indicating all necessary details, such as type of device, number of device and type of failure.
1. Supplier is obligated to remedy all defects or deviations in the goods based on a defect in design, material or workmanship.
2. The warranty period is 12 months unless claims are asserted in accordance with the following paragraph 5 of this section. Valid in the latter cases are the statutory warranty periods. If the daily operating time of the delivery item exceeds the agreed scope, the warranty period will be shortened accordingly.
3. If, within the period of limitation, there should be a material defect whose cause was present at the time of risk transfer, Supplier can undertake supplementary performance by choosing either to eliminate the defect or to deliver an item free of defects. The faulty product must be sent to Supplier for repair, or to the closest after-sales service point approved by Supplier for the respective product territory. The cost of the cheapest shipment to and from the delivery address agreed with Orderer for the original delivery of the products domestically shall be borne by Supplier if the complaint should prove to be justified. The rectification of defects takes place by way of replacement or repair of the defective products by H-BAU Technik at the facilities of the customer, whereby the rectifications of defects at the installation site are only made within the framework of special agreements. The retention of title on the replaced goods continues in favour of H-BAU Technik.
4. Liability for defects shall be excluded if the product is altered by third parties or by the installation of parts of foreign origin, unless the defects are not causally related to the alterations. The foregoing exclusion also applies as far as regulations for shipping, packaging, installation, handling, use, maintenance or repair are respectively performed by unauthorised third parties or not complied with by the customer or third parties, or as far as there is demonstrable evidence of incorrect assembly or commissioning by the customer or third parties, or of an excessive use.
5. As far as the customer has installed the delivered defective item according to its nature and its intended purpose, in another item or attached it to another item, H-BAU is obliged within the framework of supplementary performance, to reimburse the customer the necessary expenses for the removal of the defective item and the installation or attachment of the repaired or delivered defect-free item (reimbursement of expenses). The rights of the customer are excluded as far as he is aware of the defect when installing or attaching the defective item. As far as the customer has remained unaware of a defect due to gross negligence, the customer can only assert rights due to this defect if H-BAU has fraudulently concealed the defect or assumed a guarantee for the quality of the item. As far as the customer has installed the delivered item in good faith, according to its nature and intended purpose, prior to the occurrence of the defect, based on a contract concluded with H-BAU before 1 January 2018, H-BAU is in derogation of the other provisions of this paragraph not obliged to reimburse expenses.
6. Natural wear and damage through improper treatment are not included in the material defect liability. In particular, Supplier shall not be liable for modifications of the state or mode of operation of the product through improper storage or unsuitable production facilities, as well as climatic or other effects. The warranty does not cover defects based on faulty design or the choice of unsuitable materials insofar as Orderer has specified the design or the material. H-BAU Technik does not assume any warranty for parts provisioned by the customer.
7. Orderer must give Supplier or a third party bound to the guarantee sufficient time and opportunity for the performance of the warranty services. Orderer is entitled to undertake such work with Supplier‘s consent. The expenses necessary for subsequent performance shall be borne by Supplier in reasonable proportion of the value of the item in a state free of defects to the significance of the defect and/or the possibility of achieving a different kind of supplementary performance; Orderer shall bear further expenses.
8. As far as the customer has an entitlement to supplementary performance and he demands the delivery of a defect-free item (replacement delivery), then H-BAU is also obliged to provide for free installation removal and removal transport of the defective item as well as for the installation of the defect-free item („removal and installation“). In the event of disproportionate costs for removal and installation, H-BAU has the right to offer the customer only the reimbursement of the costs in the amount of a reasonable sum instead of the removal and installation. When calculating the sum, the value of the item in a defect-free condition and the significance of the defect must be considered and it moreover must be ensured that the restriction to a cost participation on the part of H-BAU, does not circumvent the right of the customer to reimbursement of removal and installation costs. The right of the customer to in turn withdraw from the purchase contract or to reduce the purchase price, due to such a reduction of the costs for removal and installation costs, remains unaffected.
9. Warranted characteristics are only those expressly designated as such in the order confirmation or the specifications. This warranty applies at the longest until the termination of the warranty period. If an acceptance inspection has been agreed, the warranty is considered fulfilled if the proof of the respective characteristic has been provided at this inspection. If the warranted characteristics are only partly fulfilled or not at all, Orderer shall first be entitled to immediate reworking by Supplier. To this end, Orderer must grant Supplier the necessary time and opportunity. If the reworking is only partially successful or not at all, then Orderer shall be entitled to the damage compensation agreed for this case or, if no such agreement has been made, to a reasonable price discount. If the defect is so grave that it cannot be remedied within a reasonable period of time, and if the deliveries or services are no longer suitable for the declared purpose, or if their suitability is substantially impaired, Orderer shall have the right to refuse to accept the defective part or, if Orderer considers a partial acceptance economically unreasonable, to withdraw from the contract. Supplier can only be obligated to refund those amounts paid for the parts affected by the withdrawal.
10. Supplier shall only be liable for Orderer‘s claims based on defective advice or the like, or due to violation of any accessory obligations, in cases of intent or gross negligence.
11. The limitation period shall not be renewed during the time required for supplementary performance. It shall not begin anew.
12. If the supplementary performance should be to no avail, Orderer can withdraw from the contract or reduce the remuneration.
13. Further rights based on defects – especially contractual or non-contractual claims to damage compensation not originating in the goods themselves – are excluded to the extent stated in Subparagraph XI (see exclusion of liability).
14. If a complaint should prove to be unjustified, Supplier shall be entitled to charge Orderer for all expenses this has caused H-BAU Technik GmbH.
15. The provisions of this Subparagraph apply accordingly to defects of title not based on the violation of third-party property rights.
If items are made according to drawings, sketches or other instructions provided by Orderer, then Orderer shall bear the sole responsibility for ensuring that third-party property rights are not violated. Orderer shall not be entitled to any rights against H-BAU Technik GmbH based on violation of property rights arising from adherence to Orderer‘s documents or instructions. If a claim is made on H-BAU Technik GmbH owing to such a violation of property rights, Orderer must exempt H-BAU Technik GmbH from these claims in full.
1. Any claims of Orderer other than those mentioned above, in particular claims for damage compensation, shall be excluded. This exclusion of liability does not apply:
- in the event of intent or gross negligence of legal representatives, executives or vicarious agents of H-Bau Technik GmbH;
- in the event of initial inability to perform
- in the event of culpable violation of essential contractual obligations; in these cases, the liability is limited to reasonably foreseeable damage that is typical of the contract;
- to claims under the Product Liability Act for defects in the delivery item for persons or material damages to privately used items;
- to such risks against which H-BAU Technik GmbH can be reasonable expected to insure itself;
- if warranted characteristics are lacking, insofar as covered by the warranty in each case.
Insofar as liability of H-BAU Technik GmbH is excluded or limited, this also applies to the personal liability of its legal representatives, employees and vicarious agents.
2. All cases of violation of contract and their legal consequences, as well as all claims of Orderer, regardless of the legal grounds on which they are asserted, are conclusively provided for in these Terms. In particular, all claims for damage compensation, mitigation, cancellation of contract or withdrawal from contract not expressly mentioned are excluded. In no case is Orderer entitled to claim for compensation of damages not occurring directly on the delivery item, such as loss of production, loss of effectivity, loss of orders, loss of profits and other direct or indirect damages. This exclusion of liability does not apply in cases of intent or gross negligence on the part of Supplier, yet does apply to intent or gross negligence on the part of auxiliary persons. This exclusion of liability does not apply if it contradicts compelling law.
1. The place of fulfillment for all deliveries and services of the Parties arising from their business relationship is the head office of H-BAU Technik GmbH (Supplier).
2. The legal venue for all disputes arising from the contractual relationship, including actions on checks and bills of exchange, is the headquarters of H-BAU Technik GmbH. H-BAU Technik GmbH can at its own discretion bring an action against the contractual partner at said partner‘s main office or any other competent court. This legal venue also applies to disputes concerning the origin and effectiveness of the contractual relationship. With regard to orderers located abroad, H-BAU Technik GmbH is also entitled to have differences of opinion or disputes arising from or related to the business relationship decided according to the arbitration code of the Zurich Chamber of Commerce by one or three arbitrators appointed in accordance with this code under exclusion of ordinary legal proceedings. The arbitration court is located in Zurich, Switzerland. The arbitration proceedings will be held in German. The arbitration award shall be final and binding for both parties involved.
3. Orderer is entitled to transfer Orderer‘s claims arising from the business relationships only with the prior written consent of H-BAU Technik GmbH.
4. The laws of the Federal Republic of Germany apply exclusively, excluding its international private law insofar as it refers to the applicability of another legal system. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) and other standardizations of bilateral and multilateral treaties concerning international purchases shall be excluded.
5. The aforementioned General Terms of Delivery and Payment of H-BAU Technik GmbH exist in German and in English language. In case of any discrepancy between the German and the English version, the German version shall prevail.
Effective (date): 01.01.2018