All our legal relationships, including consulting services that are provided as part of them and are not the subject of an independent consultancy agreement, shall be governed by our General Terms and Conditions. We accept terms and conditions of purchase of our contractual partners and arrangements differing from our General Terms and Conditions only if we acknowledge in our order confirmation that they are to apply.
2. OFFERS/CONCLUSION OF CONTRACTS/SCOPE OF DELIVERY
2.1 Our offers shall be without commitment. All the details that are part of the offer define the goods or services on the basis of a fair average grade, quality and value and are subject to deviations customary in the trade, unless they are specifically indicated as binding.
2.2 The same applies to offers relating to samples.
2.3 Orders shall not be binding until we have confirmed them in writing.
2.4 The details, drawings, figures, and delivery and service descriptions contained in our brochures, catalogues, price lists or the documents in and belonging to the offer are approximations that are customary in the trade, unless they are specifically indicated as binding in the order confirmation.
2.5 The same shall apply to the qualities of a sample.
2.6 We reserve the right to make changes to design and form, provided the object to be supplied is not changed significantly and the purchaser can reasonably be expected to accept the changes.
3.1 Our prices are ex works, free on truck or on rail, and do not include statutory value-added tax at the applicable rate.
3.2 We shall be bound by the prices in our offer for 30 calendar days.
3.3 If there is a significant change in certain cost factors – wages, packaging material or freight – between conclusion of the transaction and delivery, the agreed price may be adjusted to reflect the impact of the relevant cost factors to a reasonable extent, but by no more than 5%. The purchaser shall have to right to cancel the contract in the event of price increases.
4. DELIVERY AND PERFORMANCE TIMES
4.1 Delivery periods or deadlines, which may be agreed in binding or non-binding form, must be specified in writing.
4.2 The point in time at which we are in delay in delivery shall be defined by the statutory provisions. However, a warning must always be received from the purchaser before that.
4.3 Even if binding delivery periods or deadlines have been agreed, Hamberger shall not be responsible for delays in delivery and performance due to force majeure and events that mean it is far more difficult or impossible – not just temporarily – for Hamberger to supply its goods or services; such events shall include in particular strikes, lockouts, official orders, etc., including if they occur at suppliers of Hamberger or their suppliers. They shall authorise Hamberger to postpone delivery or performance by the duration of the impediment and a reasonable start-up period or to cancel the contract wholly or in part in respect of the part of the contract not yet performed.
4.4 If the impediment lasts longer than three months, the purchaser shall be authorised, after setting a reasonable period of grace, to cancel the contract in respect of the part not yet performed. If the delivery period is extended or Hamberger is discharged from its obligation, the purchaser cannot derive any claims for damages therefrom. Hamberger can plead the said circumstances only if it notifies the purchaser without undue delay.
4.5 The rights of the purchaser under Section 8 of these GTCs and our statutory rights, in particular exclusion of the obligation to perform (such as because providing the service and/or subsequent remedy is impossible or unreasonable), shall remain unaffected.
4.6 Hamberger shall be authorised to provide partial deliveries and partial services at all times, unless the partial delivery or partial service is of no interest to the purchaser.
4.7 The purchaser must fulfil its obligations properly and on time so that the seller can comply with its delivery and performance obligations.
4.8 If the purchaser is in delay in accepting delivery or fails to provide cooperation or our delivery is delayed for other reasons for which the purchaser is responsible, we shall be authorised to demand reimbursement of damage we incur in this respect, including any extra costs (such as storage costs). We shall charge flat-rate compensation for such damage at 0.5% of the order amount per calendar week, but at most 5%, starting from the delivery deadline or – if there is no delivery deadline – when notification has been given that the goods are ready for shipment.
5. CLAIMS FOR DEFECTS ON THE PART OF THE PURCHASER
5.1 Unless specified otherwise in the following, the statutory provisions shall apply to the purchaser’s rights relating to defects or legal imperfections in title. The special statutory provisions in respect of ultimate delivery of unprocessed goods to a consumer, even if the latter has processed them further (recourse against suppliers according to Section 478 of the German Civil Code (BGB)) shall be unaffected in all cases. Claims arising from recourse against suppliers shall be excluded if the defective goods have been processed further by the purchaser or another entrepreneur, such as by being installed in another product.
5.2 The primary basis of our liability for defects shall be the arrangements agreed concerning the quality of the goods. Arrangements concerning the quality of the goods shall denote all product descriptions and manufacturer’s specifications that are the subject matter of the individual contract or were published by us (in particular in catalogues or on our Internet homepage) at the time the contract was concluded.
5.3 If the quality in question has not been agreed, it shall be necessary to assess on the basis of the statutory provisions whether a defect exists or not (Section 434 (1) Sentences 2 and 3 of the German Civil Code (BGB)). However, we do not accept liability for public statements by the manufacturer or other third parties (such as advertising statements) which the purchaser has not indicated to us as being a deciding factor in its purchase.
5.4 We shall be liable in respect of warranted qualities only if the purpose of the warranty is to safeguard the contractual partner specifically against the damage resulting from the absence of the quality. Reference alone to DIN or EN standards does not mean that their content shall become a warranted quality of the product.
5.5 If the supplied object is defective, we can first choose whether to remedy it by rectifying the defect (subsequent improvement) or by supplying an object that is free of defects (supply of a replacement). Our right to refuse remedy subject to the statutory requirements being met shall remain unaffected.
5.6 We shall be authorised to make the owed remedy of a defect contingent on the purchaser paying the due purchase price.
5.7 The purchaser shall give us the time and opportunity required to remedy the defect as owed, and in particular shall hand over the goods it has complained about so that we can inspect them. If a replacement is supplied, the purchaser shall return the defective object to us in accordance with the statutory provisions. Remedy of the defect shall not include de-installation of the defective object or re-installation of it if we were not originally obligated to install it.
5.8 We shall bear or refund the expenses required for the purpose of inspecting the object and remedy of a defect, in particular transport, travel, labour and material costs, as well as any de-installation and re-installation costs if applicable, in accordance with the statutory provisions, if a defect actually exists. Otherwise, we can demand that the purchaser reimburse us for the costs incurred from an unjustified request to rectify defects (in particular inspection and transportation costs), unless the fact that there is no defect was not apparent to the purchaser.
5.9 In urgent cases, for example if there is a risk to operational safety or to avert disproportionate damage, the purchaser shall have the right to rectify the defect itself and demand that we reimburse the costs objectively required for doing so. We must be informed about such rectification work by the purchaser itself without undue delay, where possible beforehand. The purchaser shall not have the right to carry out rectification itself and demand reimbursement of the costs for that if we were authorised to refuse such remedy of the defect in accordance with the statutory provisions.
5.10 If we are not able to deliver our goods or perform our service and we are to be blamed for that, the contractual partner’s claim for damages shall be limited to a maximum of 10% of the value of that part of the delivery that is not able to be put into useful operation due to our inability to deliver. The right to cancel the contract shall remain unaffected.
5.11 The purchaser shall be entitled to claims for damages or reimbursement of futile expenses in relation to defects only in accordance with Section 8; any claims shall otherwise be excluded.
6. PRODUCT INFORMATION/CONSULTING/EXCLUSION OF WARRANTY
6.1 The seller shall be liable under the statutory warranty provisions only if the defect is not attributable to improper use, treatment, care or fitting of the toilet seat.
6.2 Hamberger shall not assume any responsibility for the product selection made by the purchaser. In particular, the purchaser itself shall be responsible for ensuring that the product it selects meets user requirements; Hamberger explicitly points out that the selected product is not equally suitable for all application areas. In particular statements and details on the fit shall not be binding. Hamberger also does not warrant that the colours of the sold products match the colours of the materials in their intended environment.
6.3 Preservation of the products’ function, surface and appearance depends crucially on their use, treatment, care and stressing. Hamberger refers in this regard to the care and usage instructions enclosed with every product; the purchaser is responsible for complying with them and also ensuring compliance with them when the product is resold by the purchaser.
6.4 Toilet seats are movable systems. The occurrence of loosening or free dimensional tolerances with resultant play does not therefore constitute a defect. It should be noted in this connection that regular re-tightening or adjustment of the fastenings may be necessary during the life of the products.
7. OTHER LIABILITY
7.1 Unless otherwise specified in these GTCs, including the following regulations, we shall be liable in accordance with the statutory provisions if we violate our contractual or non-contractual obligations.
7.2 We shall be liable to pay damages – regardless of the legal grounds – if we are liable for wilful or grossly negligent wrongdoing. We shall be liable in the case of slight negligence – subject to statutory limitations on liability (e.g. duty of care in own matters; insignificant breach of duty) – only
a) for damage resulting from injury to life, body or health,
b) for damage resulting from violation of a cardinal contractual obligation (an obligation whose proper fulfilment constitutes a condition sine qua non for implementation of the contract and on the fulfilment of which the other party to the contract regularly relies and may rely); in this case, however, our liability shall be limited to reimbursement of the foreseeable damage that typically occurs.
7.3 The limitations of liability under Section 8.2 shall also apply to breaches of duty by or in favour of persons for which we are to blame under statutory provisions. They shall not apply if we have not disclosed a defect with intent to deceive or have warranted a quality of the goods, as well as to claims by the purchaser under the German Product Liability Law (Produkthaftungsgesetz).
7.4 A free right for the purchaser to terminate the contract (in particular pursuant to Sections 650 and 648 of the German Civil Code (BGB)) shall be excluded. Apart from that, the statutory provisions and legal consequences shall apply.
8. RESERVATION OF OWNERSHIP
8.1 We reserve ownership of the sold goods until all our current and future claims from the purchase agreement and a current business relationship have been paid in full (secured claims).
8.2 The goods that are subject to reservation of ownership shall not be pledged to third parties or assigned by way of security before the secured claims have been paid in full. The purchaser shall notify us in writing as soon as an application to instigate insolvency proceedings has been filed or there are any acts by third parties aimed at seizing goods belonging to us (such as attachment of them).
8.3 The purchaser shall be authorised to resell and/or process the goods subject to reservation of ownership in the ordinary course of business, unless such authorisation is revoked in accordance with c) below. In this case, the following provisions shall apply additionally.
a) The reservation of ownership shall extend to products – at their full value – created through processing of our goods or being mixed or combined with them, in which case we shall be regarded as the manufacturer. If our goods are processed, mixed or combined with goods of third parties and their right of ownership is retained, we shall acquire co-ownership of the resultant product at the ratio of the invoice values of the processed, mixed or combined goods. Apart from that, the same shall apply to the resultant product as to goods supplied subject to reservation of ownership.
b) The claims against third parties arising from resale of the goods or the resultant product are hereby assigned to us as security in total or to the amount of any share of co-ownership in accordance with the above subsection. We hereby accept said assignment. The purchaser’s obligations specified in Section 9.2 shall also apply with regard to the assigned claims.
c) The purchaser shall remain authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the purchaser meets its payment obligations towards us, there is no impairment to its ability to perform and meet its obligations, and we do not claim reservation of ownership by exercising a right pursuant to Section 9.3. If this is the case, however, we can demand that the purchaser inform us of the assigned claims and the parties that owe them, provide all the details required to collect the claims, hand over the associated documents and inform the parties that owe the claims (third parties) of the assignment. In such a case, we shall also be entitled to revoke the purchaser’s authorisation to resell and process goods subject to reservation of ownership.
d) If the realisable value of the security exceeds our claims by more than 10%, we shall release security, to be chosen by us, at the purchaser’s request.
9. TERMS OF PAYMENT
9.1 Our invoices shall be issued with the date of shipment. Unless otherwise agreed, they shall be due for payment without any deduction within 30 days.
9.2 Partial claims or partial services shall be billed separately and each shall be due for payment irrespective of the scope of the overall delivery or scope of services. Down-payments shall be offset against partial deliveries, in the sequence of the deliveries.
9.3 If deferred payment is granted or payments are made after they were due, interest at the level of the borrowing costs we incur can be charged as of the due date. Apart from that, the statutory provisions (Section 286 et seq. of the German Civil Code (BGB)) shall apply in the event of delay in payment. Further claims shall remain unaffected.
9.4 Only counterclaims that are not in dispute or have been legally established with final and binding effect may be offset. In the event of justified notifications of defects, payments may be withheld only to an extent that is reasonably proportionate to the defects that have occurred.
10. LIMITATION OF ACTIONS
10.1 Contrary to Section 438 (1) No. 3 of the German Civil Code (BGB), the general period of limitation for claims due to defects and legal imperfections in title shall be one year as of delivery. If an acceptance procedure has been agreed, the period of limitation shall commence upon acceptance.
10.2 However, if the goods are a building or an object that has been used in a building in accordance with its customary use and said object caused the defect to the building (construction material), the period of limitation under the statutory provisions shall be 5 years as of delivery (Section 438 (1) No. 2 of the German Civil Code (BGB)). Further special statutory regulations on limitation (in particular Section 438 (1) No. 1 and (3), Section 444 and Section 445b of the German Civil Code (BGB)) shall also remain unaffected.
10.3 The above periods of limitation under the law on sales shall also apply to contractual and non-contractual claims for damages by the purchaser due to a defect in the goods, unless application of the standard statutory period of limitation (Sections 195 and 199 of the German Civil Code (BGB)) would result in a shorter period of limitation in the individual case. However, claims for damages by the purchaser in accordance with Section 8.2 Sentence 1 and Sentence 2 (a) and under the German Product Liability Law (Produkthaftungsgesetz) shall become statute-barred solely in accordance with the statutory periods of limitation.
11. PLACE OF PERFORMANCE/PLACE OF JURISDICTION/APPLICABLE LAW
11.1 The place of performance and place of jurisdiction for deliveries and payments (including for summary action based on a cheque or bill of exchange) and for all disputes arising between the Parties shall be 83071 Stephanskirchen, Germany, if the contractual partner is a merchant, legal entity under public law or special fund under public law. However, we shall also be authorised to take legal action against the purchaser at its domicile.
11.2 The relationships between the Parties shall be governed solely by the law of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
12. FINAL PROVISIONS
12.1 If one or more of these terms and conditions infringe a statutory prohibition or are legally invalid for other reasons, the validity of the other provisions shall not be affected thereby.
12.2 An arrangement corresponding as closely as possible to the economic interests and presumptive intention of the Parties to the contract, taking into account the other general terms and conditions, shall be deemed to have been agreed in place of the invalid provision. The same shall apply to a gap in these GTCs.
13. REQUIREMENT FOR WRITTEN FORM
Any amendments to the purchase contract shall only be valid when given in writing. Written form shall also be necessary for any waiver of the requirement for written form.
Hamberger Sanitary GmbH 2019