• General Terms and Conditions of HDG Bavaria GmbH

Section 1 General provisions

(1) All of our deliveries, services and offers, including those not expressly mentioned during negotiations, are made exclusively based on these terms and conditions. We do not recognise opposing terms and conditions unless we make an explicit exception or refer to a letter from our contractual partner which refers to his terms and conditions. Our terms and conditions apply to all contracts with businesses, public corporations and public separate estates, including all future business relations, even if they are not explicitly agreed upon again. They also apply to contracts with consumers and will be modified accordingly. Our terms and conditions enter into effect at the very latest with the acceptance of the goods.

(2) Conditions which contradict or deviate from our conditions only apply if we have expressly agreed to their use in writing.

Section 2 Offer, conclusion of contract and documents

(1) Our salespeople, travellers or representatives are not authorised to make additional oral agreements or assurances over and above the content of the written contract. All agreements of this contract are set down in the written contractual documents; our offers are subject to change without notice and are subject to a written order confirmation. There are no additional oral agreements.

(2) Delivery time specifications are approximate and non-binding, unless their bindingness was explicitly agreed upon. Specifications for the delivery item (e.g. technical data, tolerance ranges, dimensions, weights, etc.) and its representation are merely descriptions and designations which are only binding when we explicitly confirm them. We reserve the right to make standard technical and structural modifications to the delivery item, as long as they do not unacceptably infringe upon the purchaser or affect the serviceability of the purchase item.

(3) Our offers are subject to change up to the time at which the contract is concluded.

(4) We retain the property and copy rights for design drawings, models, estimates and other physical or non-physical business objects. They are to be handled with strict confidentiality at all times. They may not be made available to third parties without our agreement. If these obligations are breached, the purchaser is liable to the full extent of the law. Reference advertising using our name is only permissible with prior agreement.

Section 3 Prices

(1) Our prices are ex works, excluding loading, excluding packaging, plus the statutory value added tax. Unloading and storage are the responsibility of the customer. The cost of an arranged transport or other insurance is paid by the customer, barring other agreements. In the case of partial deliveries, each delivery can be billed separately.

(2) Additional work which is ordered beyond the actual contract shall be invoiced by HDG on a case-by-case basis.

(3) The prices are based on the production costs at the time of the written confirmation of the supplier. If these production costs increase by the time of delivery due to an increase in taxes, prices for raw materials, auxiliary materials, energy, freight or wages, the supplier is entitled to adjust the agreed price accordingly.

(4) If, on a delivery date which is four months after the conclusion of the contract, changes occur in the price basis (for example, price increases in raw material, material, wage, transport or storage costs), we reserve the right to adjust the price accordingly after informing the customer. The price increase can only be claimed by us within two months after the occurrence of the price increases mentioned. The individual cost elements and their increase must be appropriately weighted when the new price is formed. Should individual cost elements increase while others decrease, this must also be taken into account when the new price is formed. A right of the purchaser to withdraw from the contract cannot be derived from such a price increase.

(5) If no prices have been agreed upon at the time of conclusion of the contract, our prices valid on the day of delivery shall apply.

Section 4 Terms of payment

(1) Provided the order confirmation (or the invoice) does not indicate differently, the price (without deduction) is due for payment immediately after the invoice is received.    

(2) If the customer is in default of payment, we shall be entitled to charge interest on arrears at a rate of eight percentage points above the base interest rate; if the purchaser is a heating component, the interest on arrears shall be five percentage points above the base rate. We can always prove and charge a higher interest loss. In the case of delay of payment, we are also entitled to nullify stipulated rebates, cash discounts and other benefits. We are entitled to make further deliveries only against advance payment; we can make all claims from the contract due immediately.

(3) Non-compliance with the terms of payment, default or circumstances that are likely to reduce the creditworthiness of the customer shall result in the all our claims becoming due immediately.

(4) Offsetting with counterclaims is only permissible with undisputed, legally established or recognised claims, as well as those based on the same contractual relationship.

(5) Exercising a right of retention is only permissible with undisputed, legally established or recognised counterclaims, as well as those based on the same contractual relationship.

(6) We are not obligated to accept bills of exchange or checks. Credit notes in this respect shall always be deemed to be subject to redemption (on account of payment, not in lieu of performance); they are made with value date of the day on which we can dispose of the countervalue. When they are transferred further, bills of exchange will be charged at the discount rate, along with stamp duty and bank charges, and collection charges where applicable.

(7) We retain the right to further contractual or legal claims in the case of delayed payment.

(8) In the event of several outstanding invoices, payments shall first be set off against the older claims; if interest and costs have already been incurred, payments shall first be set off against costs, then interest and finally against the primary debt, again in each case against the older invoices.

Section 5 Delivery time and obstacles to delivery

(1) The delivery period shall begin with the sending of the order confirmation, but not before the purchaser furnishes the documents, approvals and releases to be procured, as well as any agreed prepayment and clarification of all technical questions.

(2) The delivery period is upheld if, by the time of its expiry, the delivery item has left the factory or the purchaser has been notified of its readiness for delivery.

(3) If unforeseen obstacles arise which are out of our control and which we cannot avoid despite reasonable care appropriate to the circumstances – regardless of whether they arise for us or a subcontractor – such as acts of God (e.g. war, fire and natural disasters), delays in the delivery of essential raw materials, etc. – we reserve the right to partially or completely withdraw from the delivery contract or to extend the delivery period for the duration of the interference. The same rights apply in the case of strikes or blockades which affect us or our subcontractors. We shall inform the purchaser of these circumstances immediately and refund the payments they have made without delay.

(4) Correct and timely self-delivery is reserved. We will inform the purchaser of any delays. If we do not receive correct or timely deliveries from our suppliers, and we are not responsible for this, the time of performance shall be postponed by a corresponding period of time. In this case, we can also optionally declare our withdrawal from the contract with regard to the undelivered goods. To the extent permitted by competition law, we shall assign to the customer our claims against the supplier for the delivery not in accordance with the contract. Further claims for damages and reimbursement of expenses by the purchaser against us are excluded.

(5) In the event of a delay in delivery, the purchaser may withdraw from the contract after a reasonable period of time has expired to no avail; in the event of the impossibility of our performance, they shall also be entitled to this right without setting a deadline. Claims for damages (including any consequential damages) are excluded without prejudice to paragraph 5 and Section 10, which do not aim to reverse the burden of proof; the same applies to reimbursement of expenses.

(6) If a transaction for delivery by a fixed date has been agreed, we shall be liable in accordance with the statutory provisions; The same shall apply if the customer can claim that their interest in the performance of the contract has ceased to exist due to the delay for which we are responsible.

(7) If delivery is delayed at the request of the purchaser, the resultant storage costs, beginning one month after notice of readiness for delivery, are charged to him.

Section 6 Transfer of risk, acceptance of goods and partial deliveries

(1) If the purchaser is an entrepreneur, the risk of accidental loss and accidental deterioration of the goods shall pass to the purchaser in the case of a debt to be discharged at the time the goods are segregated and made available as agreed; the same shall apply in the case of an obligation to deliver goods from the time of handover to the transport person; in the case of debt to be discharged at creditor’s domicile, the risk shall pass when the goods leave the works premises; This also applies when HDG has additionally assumed responsibility for delivery and installation. The same applies in the case of a creditor delay. If the purchaser is a consumer, the risk of accidental damage or theft of goods is transferred to the purchaser upon transfer of the goods, including for contract of sale involving the carriage of goods or a debt to be discharged at the creditor’s domicile.

Shipment – All shipments shall be made at the supplier's best discretion and at the purchaser's expense. The supplier reserves the right to choose the mode of shipment; no claims against the supplier can be asserted based on that choice. Postal items under 2 kilos are dispatched postage paid, the supplier reserves the right to charge these postage costs.

Shipment to foreign countries – Shipments to foreign countries are subject to additional general terms and conditions of sale for export and other additional special agreements, if applicable. In addition, the incoterms 2010 shall apply as agreed; the supplier shall be free to make use of them.  

(2) Delivered objects are to be accepted by the purchaser, even if they have non-essential defects, notwithstanding their his rights from sections 8–10. Partial deliveries are permissible, provided they are acceptable to the purchaser.

Section 7 Reservation of ownership

(1) The goods remain our property until they are paid for. We retain the ownership of all delivered goods in deals with businesses until the purchaser has paid all the present and future receivables resulting from the business relationship. The reservation of proprietary rights also applies to replacement and exchange parts, even when they are installed, since this does not make them essential components according to Section 93 of the German Civil Code. In the event of a current account relationship (business relationship), we reserve title until receipt of all payments from the existing current account relationship; the reservation relates to the recognised balance; in such cases, the provisions of this Section 7 shall apply accordingly.

(2) If the purchaser violates the contract, especially in the case of late payment, we are authorised to take back the goods after a fruitless deadline. The mere taking back of goods represents a withdrawal from the contract only if a deadline we have set has expired fruitlessly and the withdrawal has been explicitly declared. The costs arising from the withdrawal of goods (particularly transport costs) are charged to the purchaser. We are additionally authorised to prohibit the purchaser from any resale or processing, connecting or mixing the goods delivered under reservation of ownership and revoking the collection authorisation (Section 7 5). The purchaser can only demand the delivery of the goods withdrawn without an express announcement of withdrawal after complete payment of the purchase price and all the costs.

(3) The purchaser is obliged to handle the goods carefully (including the required inspection and maintenance tasks). The purchaser is further obliged to insure the goods at their own expense against fire, water and theft at replacement value.

(4) The purchaser must neither impawn the delivered object nor transfer its title to secure a debt, nor abandon it. In the event of distraint or other actions by third parties, the purchaser must notify us immediately in writing, so that we can file suit according to Section 771 of the Code of Civil Procedure. The remaining costs from this suit must be covered by the purchaser, despite a victory the legal dispute according to Section 771 of the Code of Civil Procedure.

(5) The purchaser shall be entitled to resell, process or mix the purchased goods in the ordinary course of business; However, they hereby assign to us all claims arising from the resale, processing, mixing or other legal grounds (in particular from insurance or tort) in the amount of the final invoice amount agreed with us (incl. VAT) as well as all ancillary rights. If we are co-owners of the delivered goods due the reservation of ownership rights, the claims are ceded in proportion to the co-ownership share. If the delivered goods are resold along with the goods from a third party which are not the property of the purchaser, the resulting claims are ceded to us in the proportion of the final invoice amount for our goods to the final invoice amount for the third party’s goods. If the assigned claim is included in a current account, the customer already now assigns to us a corresponding part of the balance (including the closing balance) from the current account; If interim balances are drawn and their balance carried forward has been agreed, the claim to which we are entitled per se from the interim balance in accordance with the above provision shall be treated as assigned to us for the next balance. The purchaser retains the right to collect these receivables after cession, while our authorisation to collect the receivable ourselves remains unaffected. We are obliged, however, not to collect the receivable as long as the purchaser fulfils his obligations from the collected redemption, is not late in payment, and no request for the opening of insolvency proceedings has been made. If this is the case, however, the purchaser must inform us and the debtor of the request for the ceded claims, provide all of the data required for collection, hand over the corresponding documents, and inform the debtor (third party) of the cession. This also applies if the purchaser resells, processes or mixes the purchase item in breach of contract.

(6) The reservation of ownership also extends to the finished products resulting from processing or modification of our goods, whereby we are considered manufacturers in these processes. If, in the event of processing or transformation with goods of third parties, their ownership rights remain, the customer shall grant us co-ownership in proportion to the objective values of these goods; it is already now agreed that, in this case, the purchaser will carefully store the goods for us. If our retained-ownership goods are combined or inseparably mixed with other movable items to form a single unit and if the other item is to be regarded as the main item, the customer shall transfer co-ownership to us on a pro rata basis insofar as the main item belongs to them; the purchaser shall hold the resulting (co-)ownership in safe custody for us. The same applies to objects created in this way as for those delivered with reservation of ownership.

(7) The purchaser also cedes the claims for the safety of our claims against them, which arise out of the connection of the delivered objects with a property against a third party. Cession occurs with priority before the rest.

(8) The securities to which we are entitled shall not be recorded to the extent that the estimated value of our securities exceeds the nominal value of the claims to be secured by 10%; which collateral has been released is at our discretion.

(9) If the validity of the reservation of ownership is connected to particular preconditions or formalities in the country of destination, the purchaser is responsible for their fulfilment.

Section 8 Warranty of quality and title

In transactions with other entrepreneurs, liability is excluded for the sale of used goods; in the case of transactions with heating components, liability for the sale of used goods is limited to one year. The following regulations apply to the sale of new items.

We are liable for defects in the delivery in the following manner, provided the purchaser is a trader, but only if the examination and notification duty from Section 377 of the German Commercial Code has been properly fulfilled (notification of defects must be in writing):

(1) To the extent that there is a defect in the purchase object, we are authorised to rectify the defect or to deliver a defect-free object (supplementary performance). If the purchaser is a contractor, we are entitled to this revaluation option. The precondition for this in dealings with contractors is that the defect is not insignificant. The replaced parts shall become the property of HDG. Should either or both types of this supplementary performance be impossible or disproportionate, we shall be entitled to refuse it. We can refuse supplementary performance if the purchaser does not fulfil their payment obligations to an extent appropriate to the defect-free part of the service. In the event of rectification of defects, we shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labour and material costs, provided that these costs are not increased by the fact that the delivery items have been taken to a place other than the place contractually agreed.

(2) If the subsequent performance referred to in Paragraph 1 is impossible or fails, the customer shall have the right to choose either to reduce the purchase price accordingly or to withdraw from the contract in accordance with the statutory provisions; this applies in particular in the event of culpable delay or refusal of subsequent performance, as well as if this fails for the second time. Further claims by the purchaser based on whatever legal grounds are excluded or limited according to Section 10. The same applies to claims from default at the conclusion of the contract.

(3) The purchaser must give HDG the necessary time and opportunity to make repairs and replacement deliveries. HDG can, using equitable discretion, decide what work is necessary. Only in urgent cases (e.g. if operational safety is endangered or to prevent disproportionate damage), where even setting a short deadline is not possible or if HDG is in default with the rectification of the defect, the purchaser shall have the right to rectify the defect themselves or have it rectified by third parties and to demand reimbursement of the costs necessary for this from HDG; however, we are to be notified immediately.

(4) There is no warranty for damage due to the following causes: Inappropriate or improper use, faulty installation by the purchaser or a third party, normal wear and tear, faulty or careless handling, excessive use, unsuitable operating materials, unsuitable heating material, defective construction work, inappropriate foundation, substitute material, chemical, electro-chemical or electrical influences (provided we are not responsible for them), improper modifications or maintenance work by the purchaser or a third party without prior approval from us.

(5) In business dealings with contractors, claims due to defects with respect to the purchase of new objects become invalid one year after delivery of the purchase item, provided we are not responsible for any damage or injuries caused intentionally or by gross negligence. In contrast, the period of limitation for transactions with consumers is two years. For an item used according to its normal application for a structure, and which is responsible for the defectiveness of said structure, the claim only becomes invalid after five years. Claims for price reduction or the execution of the right to withdraw from the contract are excluded as soon as the supplementary performance claim has become invalid. In the case of sentence 3, however, the purchaser may refuse payment of the purchase price to the extent that they would be entitled to do so on the basis of the rescission or reduction; in the event of the exclusion of withdrawal and a subsequent refusal to pay, we are entitled to withdraw from the contract. A reversal of the burden of proof is not intended.

(6) Assurances and guarantees are only effectively granted when we provide them explicitly and in writing.   

Section 9 Contracts for work and services

(1) We are liable for service deficiencies based on the contract for work and services according to Section 8 1–4, 6. The purchaser shall be entitled to the statutory right of self-performance in accordance with Section 637 BGB (German Civil Code); the claim is excluded if we are also entitled to refuse subsequent performance.

(2) The claims to supplementary performance, damages and reimbursement of expenses become invalid one year after receipt, provided we are not responsible for any damage or injuries caused intentionally or by gross negligence. This shall not apply to buildings and works, the success of which lies in the provision of a planning or supervision service therefor; in this case, the limitation period is five years. Claims for self-remedy, price reduction or the execution of the right to withdraw from the contract are excluded as soon as the supplementary performance claim has become invalid and we invoke this. In the case of sentence 3, however, the purchaser may refuse payment of the purchase price to the extent that they would be entitled to do so on the basis of the rescission or reduction; in the event of the exclusion of withdrawal and a subsequent refusal to pay, we are entitled to withdraw from the contract. A reversal of the burden of proof is not intended.

(3) Cost estimates shall be remunerated, notwithstanding any deviating individual agreement.

(4) For contracts regarding the delivery of items to be manufactured or created, Section 8 applies.

(5) Accordingly, Section 10 applies for defects in contractual services.

Section 10 Withdrawal of the purchaser and other liability on our part

(1) The statutory right of the purchaser to withdraw from the contract shall – apart from the provisions in Sections 8 and 9 – neither be excluded nor limited. In the same way, none of the legal or contractual rights or claims we are entitled to should be excluded or limited.

(2) We are liable without restriction, also with respect to statutes of limitations, only for damage caused intentionally or by gross negligence (including his legal representatives and assistants) and for injuries to body and health. We are also liable without restriction for the granting of guarantees and assurances, if one of the defects they include releases our liability. There is also no restriction on liability for dangerous corpus delicti (particularly according to the Product Liability Act). Any liability due to the basic principles of contractor recourse according to Section 478 f. of the German Civil Code remains unaffected.

(3) For other negligent violations of fundamental contractual obligations (cardinal obligations), our remaining liability for foreseeable damage typical for this contract is limited. Otherwise, liability is excluded, regardless of the legal grounds (particularly claims from the violation of primary and secondary obligations, reimbursement of expenses, with the exception of those according to Section 439 II of the German Civil Code, impermissible acts and other tortious acts).

(4) The same (exclusions, limitation and exceptions to these) applies for claims based on fault at the conclusion of the contract.

(5) The preceding correspondingly applies to the case of reimbursement of expenses.

(6) An exclusion or limitation of our liability also applies to our legal representatives and assistants.

(7) A reversal of the burden of proof is not intended. Cardinal obligations are primary contractual obligations, and thus obligations which are central to the contract and which the contractual partner may trust to be fulfilled it is thus a question of the essential rights and obligations which create the preconditions for the fulfilment of the contract and are indispensable for the achievement of the purpose of the contract.

Section 11 Place of performance, place of jurisdiction, applicable law, contractual language and allocation of burden of proof

(1) The place of performance is the place of dispatch (works or storage location).

(2) The place of jurisdiction is our place of business, provided the purchaser is also a salesperson, legal person under public law or a public separate estate. The same applies if the purchaser has no general place of jurisdiction in the country. We have the right to bring an action against the purchaser at other admissible places of jurisdiction.

(3) With regard to all claims and rights from this contract, the non-unified laws of the Federal Republic of Germany (German Civil Code, German Commercial Code) shall apply. Application of the UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded. The language of the contract is German.

(4) The legal allocation of the burden of proof shall not be altered by any of the clauses agreed upon in all of the conditions.  

Section 12 Other provisions

(1) Changes to the contract can only become effective with our approval.

(2) All agreements between us and the purchaser shall be recorded in writing; the written form shall also apply to all amendments and/or collateral agreements before or after the conclusion of the contract. In this respect, the written form shall also apply to a waiver of this written form clause.

(3) Should the individual provisions of these conditions be completely or partially invalid or null and void, the rest of the provisions remain unaffected by this. The contractual partners are obligated to agree to a regulation through which the economic spirit and purpose of the invalid or null and void provision is substantially achieved.

(4) We handle all of the purchaser’s data exclusively for transactional purposes according to the applicable data protection regulations. Upon written request, the purchaser also has a right to information about their personal data that has been collected, processed and used.

(5) All terms and regulations are gender-neutral and otherwise non-discriminatory within the meaning of the General Equal Treatment Act (AGG).

(6) For the purpose of deciding on the establishment, implementation or termination of the contractual relationship, we collect or use probability values from credit agencies, in the calculation of which customer data is included.