The Buyer's attention is particularly drawn to the provisions of clause XI
As of Stand: 01.08.2016
1. General - Field of application
1.1 The following conditions of sale apply exclusively to all goods and services, including those made in the future, even if, in the case of future business arrangements, reference is not made exclusively to them or if the purchaser uses other conditions. These other conditions are only recognised if they have been expressly confirmed by us. Our conditions of sale also apply even if, in the knowledge of contrary conditions by the purchaser, we make the delivery to the purchaser without reservation.
1.2 Our conditions of sale apply in the case of agreements on goods and other services with business people, a legal entity under public law or a trust under public law.
2. Subject of the contract
2.1 Our products are supplied with written product information containing technical data, information regarding installation (installation instructions), care of the products and their purpose in each case. Our products may only be used for the purposes mentioned in this written product information.
2.2 The suitability of the products for the intended purpose and their service life is only guaranteed if the instructions contained in the written product information on the care and assembly/installation of the products are observed.
2.3 Sealing and magnetic profiles, carriages, rollers and slides are subject to unavoidable, natural wear when used. Depending on the intensity of use wearing parts, such as sealing and magnetic profiles, carriages, rollers and slides, may only have a limited service life of 12 months.
2.4 The details in the written product information are only descriptive details. A guarantee is not accepted unless otherwise agreed expressly by the parties.
2.5 An agreement on properties, characteristics or purposes of our products that differs from the details in the written product information requires our express confirmation.
2.6 We reserve the right to make design and technical modifications customary in the trade to our products, provided that the modifications are reasonable for the purchaser and do not affect the usability of the purchased item.
2.7 In publicity material provided to customers and third parties relating to the products covered by the contract, the purchaser undertakes not to deviate from the details given in the written product information.
3. Quotations - quotation documents
3.1 If the order qualifies as a quotation in accordance with section 145 of the BGB (Civil Code), we may accept it within three weeks from the date of the order.
3.2 We retain property rights and copyright on diagrams, drawings, calculations and other documents; they may not be made accessible to third parties. This applies in particular in the case of written documents that are referred to as „confidential“; the purchaser requires our express agreement before passing them on to third parties.
3.3 The values in the diagrams and drawings in our lists, quotations and order acknowledgements are approximate values.
4. Payment conditions
4.1 Unless specified otherwise in the order acknowledgement, prices for deliveries with an order value of over 600,00 Euros are considered to be „carriage free“ including packaging. Deliveries with an order value below 600,00 Euros are sent carriage forward. Delivery of spare parts is always carriage forward.
If the purchaser expresses special wishes regarding the despatch method, the purchaser will be charged separately for the resultant additional costs incurred.
4.2 We reserve the right to increase our prices by a reasonable amount if costs increase after conclusion of the contract, especially due to tariff agreements or increases in the price of materials. The purchaser will be furnished with evidence of such increases on request. The price increase will not exceed the price that can be achieved on the market.
4.3 Our prices do not include value added tax (this also applies to our price lists). VAT will be itemised separately on the invoice and charged at the rate applicable on the date of invoice.
4.4 For passing on to the end consumer, our prices (plus value added tax) are considered as a non-binding price recommendation.
4.5 The purchase price is payable net (with no deduction) within 30 days of the date of invoice, unless specified otherwise in the order acknowledgement. If our invoice is paid within 10 days of the invoice date, we allow a 2% discount on the invoice amount.
4.6 If the purchaser exceeds the payment term given in these conditions or a specially agreed payment term, all amounts owing to us will become due immediately, even if the due dates have not yet been exceeded. No credit period will be granted for future amounts payable. In the event of arrears on the part of the purchaser, we are entitled not to provide agreed goods or services until either the arrears have been cleared or a corresponding security on the part of the purchaser or a third party on behalf of the purchaser has been provided.
4.7 If we are aware of circumstances that give cause for serious concerns regarding the purchaser‘s ability to pay or the purchaser‘s credit worthiness, we are entitled, regardless of the agreed credit period, to call all outstanding invoice amounts - including deferred items - immediately due, and to make further delivery to the purchaser subject to payment in advance or a viable security.
4.8 The purchaser is only entitled to offset with counterclaims if these have been acknowledged or legally established.
5. Delivery time
5.1 Any delivery times that we give commence on the date of the order acknowledgement.
5.2 Adherence to delivery times requires timely receipt of all documents to be provided by the purchaser, of the necessary approvals and authorisations and the purchaser‘s observation of the agreed payment conditions and other obligations. If these requirements are not met in good time, the delivery time will be reasonably extended; this does not apply if the delay can be attributed to ourselves.
5.3 Force majeure, riot, strike, lock-out, unforeseen shortage of raw materials, absence of correct, on-time delivery to ourselves and interruptions to business, where no fault is involved, will automatically extend an agreed delivery time.
5.4 If we delay, in addition to the goods, the purchaser may claim compensation for any loss that may have occurred as a result of the delay; in the case of slight negligence on the part of the company or its agents, this claim is limited to a maximum of 5% of the agreed purchase price for the part of the goods which, as a result of the delay, could not be used in the relevant operation.
5.5 If we do not provide a service when due, the purchaser may set a reasonable time for it to be made good. If we allow this time to pass without making good, the purchaser is entitled to withdraw from the contract or to claim for compensation instead of the service; in the case of slight negligence by the company or its agents, this claim for compensation instead of service is limited to a maximum of 30% of the price for the part of the supplies which, as a result of the delay, could not be used in the relevant operation. Fixing a time limit may be dispensed with under the conditions of section 281 para. 2 of the BGB.
5.6 The limits of liability specified in points 5.4 and 5.5 do not apply in so far as our liability is obligatory in cases of intent or gross negligence or in the case of claims for compensation for fatal or bodily injury or damage to health.
6. Transfer of risk
6.1 Unless specified otherwise in the order acknowledgement, delivery is agreed „ex works“, i.e. the risk passes to the purchaser as soon as the delivery item leaves the supplier‘s works or is made available to the purchaser by an announcement that it is ready for despatch or collection at the supplier‘s works. This also applies in the case of a delivery that is carriage free. If we delay despatch at the request of the purchaser or for reasons that can be attributed to the purchaser, the risk passes to the purchaser for the duration of the delay. However, in this case, we are obliged to effect the insurance required by the purchaser at the purchaser‘s request and expense.
6.2 At the purchaser‘s express wish, we will arrange transport insurance. The purchaser shall bear the costs incurred.
7.1 The deliveries are to be inspected immediately for completeness and any defects. We are entitled to make partial deliveries provided this is reasonable for the purchaser. Acceptance of a delivery cannot be refused because of slight damage or defects.
8. Requirement to give notice of defects
8.1 Obvious defects, the delivery of other items or a shortfall in the delivery must be reported by the purchaser in writing immediately, no later than 7 days after receipt of the goods at the destination. Hidden defects are to be reported in writing immediately the defect is discovered.
8.2 If on delivery, the goods display obvious packaging defects, the purchaser is obliged to note the defects on the delivery papers or to refuse acceptance of the goods.
8.3 If defects are reported, we should be given the opportunity of ascertaining the defects in situ, either ourselves or through a representative. The defective item with may not be modified without our express agreement.
8.4 If the purchaser has disposed of the goods to a consumer and the consumer reports material defects, the purchaser is obliged to advise us immediately he becomes aware of the defects reported by the consumer so that we have the opportunity of promptly checking the accuracy of such reports.
9. Material defects/shortfalls
9.1 We are liable for material defects as follows:
If we have to supply according to drawings, specifications, samples etc. from the purchaser, the purchaser bears the risk regarding suitability for the intended purpose.
9.2 Sealing and magnetic profiles, carriages, rollers and slides are subject to unavoidable, natural wear when used. Depending on the intensitiy of use waring parts, such as sealting and magnetic profiles, carriages, rollers and slides, may only have a limited service life of 12 months.
9.3 If there is a material defect, or another item was delivered or there was a shortfall in delivery, we should first be given the opportunity of making good within a reasonable time. The right to make good includes:
All parts or services displaying a material defect within the limitation period, regardless of the time in operation, the cause of which was already present when the risk was transferred, may, as we choose, be repaired by us free of charge or supplied or provided by us again.
9.4 If the purchaser has had to take back the goods from a consumer as a result of their defectiveness, or the consumer has reduced the purchase price, the time to make good specified in point 9.2 is not required. Fixing a time limit may also be dispensed with under the conditions of sections 281, para. 1, 323 para. 2, 440 of the BGB. According to these conditions, fixing a time limit is not necessary, for example in the following cases:
• in the case of serious and definitive refusal of performance on our part
• if there are special circumstances that justify immediate enforcement of the claim for compensation
• in the case of so-called short sales
• if we have refused both types of making good as specified in section 439 para. 3 of the BGB or if the type of making good that the purchaser is entitled to has failed or is unreasonable for him.
9.5 If making good fails, notwithstanding any claims for compensation in accordance with points 9.5 and 9.6, the purchaser may withdraw from the contract or reduce the payment. The same applies if, according to the legal provisions, fixing a time limit may be dispensed with. Withdrawal is not permitted if the defect is insignificant. In the case of insignificant defects, notwithstanding any claims for compensation in accordance with points 9.5 and 9.6, the purchaser may only reduce the payment.
9.6 If the making good fails or fixing of a time limit is dispensed with, the purchaser may call claim compensation instead of service or reimbursement of wasted expenditure. However, in the case of a simply negligent breach of duty on our part or by our agents, the claim for compensation instead of
service is limited to foreseeable losses which are typical for this type of contract. This limit of liability does not apply if one of the cases mentioned in point 11.1 of the conditions of sale occurs, in which case we are always liable without limitation in accordance with the legal provisions.
9.7 If other claims for compensation (such as compensation instead of service) are justified as a result of material defects, we accept liability in accordance with the provisions of point 11 of these conditions.
9.8 Claims regarding material defects lapse within the legal periods.
10. Impossibility, adjustments to the contract
10.1 If delivery is impossible, the purchaser is entitled to claim compensation unless we are not responsible for it being impossible. However, the purchaser‘s claim for compensation is limited to 10% of the price of that part of the delivery that cannot be used in the relevant operation as a result of the delivery being impossible. This limitation does not apply in so far as our liability is compulsory in cases of intent or gross negligence. Nor does this limitation apply in the case of claims for compensation as a result of fatal or bodily injury or damage to health. The purchaser‘s right to withdraw from the contract is not affected.
10.2 If unforeseeable events in accordance with point 5.3 of the conditions of sale considerably change the economic significance or the content of the supply or have a significant impact on our operation, the contract will be adjusted accordingly in good faith. If this is not economically tenable, we have the right to withdraw from the contract. If we wish to make use of this right of withdrawal, we shall advise the purchaser of this without delay once the implications of the event are known, and even if an extension of the delivery time had previously been agreed with the purchaser.
11. Other claims for compensation
11.1 In accordance with legal requirements, and to the legal extent, we are liable:
• for all fatal and bodily injuries and damage to health and
• in accordance with the product liability law and
• in the case of fraudulent deception, particularly the fraudulent concealment of material defects and
• if a guarantee is accepted for the condition of the items and
• in the case of an intentional or grossly negligent cause of damage, including that caused by our agents.
11.2 In accordance with legal requirements we are liable
• if we expressly or conclusively have accepted a qualified position of trust with regard to avoiding the loss that has occurred
• if an exclusion of liability or a limitation of liability on out part deviates incompatibly from fundamental legal thinking and
• if a breach of duty by us is so fundamental that achieving the purpose of the contractual obligation is endangered. In these cases our liability will be limited to the foreseeable losses that are typical of this type of contract.
11.3 If a loss occurs as a result of simple negligence without one of the cases mentioned in points 11.1 or 11.2 being involved, and which is not due to delay or impossibility, claims for compensation due to a breach of duty and claims for compensation because of a breach of the obligation to take account of the purchaser‘s interests, entitlements and legally protected rights, are not permitted. In this case, if the negligence is anything less than gross negligence, we are not liable for compensation instead of service or reimbursement of wasted expenditure. If the claims for compensation instead of service or reimbursement of expenditure are due to material defects, the liability from point 9.5 of these conditions still applies however.
12. Retention of title
12.1 The goods remain our property until full payment of all amounts payable arising from the business relationship with the purchaser, including those arising in the future, have been received. Retention of title remains even if individual amounts payable are included in an open account and the balance is calculated and acknowledged. If the purchaser‘s behaviour is contrary to the terms of the contract, especially if there is a delay in payment, we are entitled to recover the item purchased. Seizure of the purchased item always implies a withdrawal from the contract. After recovering the purchased item we are entitled to sell it on the open market, the proceeds from the sale are to be credited to the purchaser‘s liabilities less any reasonable selling costs.
12.2 The purchaser is not permitted to give as security or pledge goods that are subject to retention of title. In the case of distraint or other intervention by third parties, the purchaser should notify us immediately in writing so that we are able to take action in accordance with section 771 of the ZPO (code of civil procedure). If the third party is not able to reimburse us for the legal and out of court costs of an action in accordance with section 771 of the ZPO, the purchaser is liable for the loss that we incur.
12.3 The purchaser is entitled, in the proper course of business, to resell, process or install the item purchased; however, he here and now assigns to us all amounts payable to the extent of the final invoice amount (including value added tax) accruing to him from the resale, further processing or installation from his purchaser or third parties, regardless of whether the purchased item has been resold or installed before or after processing. The authority of the purchaser, in the normal course of business, to dispose of, process or install goods on which there is a reservation ends when it is revoked by us following a steady deterioration of the purchaser‘s financial situation, but no later than with his bankruptcy or when an application is made for insolvency proceedings to be opened on his assets. The purchaser is authorised to collect this debt even after assignment. Our power to collect the debt ourselves and disclose the assignment is not affected by this. However, we undertake not to collect or disclose the debt so long as the purchaser meets his payment obligations from the agreed proceeds, is not in arrears with the payment, his financial situation is not steadily deteriorating, no application has been made to open insolvency proceedings and he has not suffered bankruptcy. If this is the case, we may call for the purchaser to make the assigned debts and their debtors known to us and give us all details necessary for the collection of the debts. The purchaser shall give us all relevant documents and make the debtors (third parties) aware of the assignment.
12.4 The processing or reconstruction of the purchased item by the purchaser is always performed for us. If the purchased item is processed with items that do not belong to us, we acquire joint ownership of the new item in the proportion of the value of the purchased item to the other items processed at the time of the processing. For the items arising as a result of the processing, the same applies as for the purchased item delivered with reservation.
12.5 If the purchased item is combined with other items that do not belong to us so that it cannot be separated, then we acquire joint ownership of the new item in the proportion of the value of the purchased item to the other items it is combined with at the time they are combined. If the combining takes place in such a way that the purchaser‘s item can be considered as the main item, it is considered to have been agreed that the purchaser transfers joint ownership proportionally to us. The purchaser safeguards the sole ownership or joint ownership thus arising on our behalf.
12.6 To secure our claims against him, the purchaser also assigns to us the amounts payable accruing to him from a third party through the connection of the purchased item with a piece of property.
12.7 We undertake to release the securities that we have at the purchaser‘s request if the value of our securities are more than 20% higher that the debts being secured; the choice of the securities to be released is at our discretion.
13. Place of fulfilment and jurisdiction
13.1 If the purchaser is a business person, our place of business is the place of jurisdiction; however, we are entitled to take proceedings against the purchaser at his own domicile.
13.2 Unless specified otherwise in the order acknowledgement, our place of business is the place of fulfilment.
14. Applicable law
German law applies with the exclusion of the UN trading law agreement (CISG) of 11th April 1980.
15. Concluding conditions
If any part of these conditions of sale is found to be unlawful or invalid it shall not effect the validity or enforceability of the remaining conditions. The contracting parties undertake to reach an agreement by which the purpose of the unlawful or invalid condition can be achieved with the same end result.
HÜPPE GmbH Industriestraße
Germany - 26160 Bad Zwischenahn