General Terms and Conditions of Sale and Delivery of Hofmann Megaplan GmbH for business customers
§ 1 General, scope of application
(1) These General Terms and Conditions of Sale (GTCS) shall apply to all business relations between us (Hofmann Megaplan GmbH - hereinafter also referred to as: "Hofmann Megaplan") and the customer. However, the GCS only apply if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special trust under public law.
(2) The GCS apply in particular to agreements on the sale and/or delivery of movable goods (hereinafter also referred to as "goods"), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GCS in the version valid at the time of the buyer's order or in any case in the version last notified to him in text form shall also apply as a framework agreement for similar future agreements without our having to refer to them again in each individual case.
(3) Our GTCS shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if the buyer refers to its GTC within the scope of the order and we do not expressly object to this.
(4) Individual agreements (e.g. framework supply agreements, quality assurance agreements) and details in our order confirmation take precedence over the GTCS. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract (currently 2020).
(5) Legally relevant declarations and notifications by the buyer with regard to the agreement (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing. Written form within the meaning of these GTC includes written and text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in case of doubts about the legitimacy of the declarant, remain unaffected.
§ 2 Conclusion of an agreement
(1) Offers of Hofmann Megaplan are subject to change and non-binding. Orders placed by the customer, including verbal orders or orders placed by telephone, shall be deemed to be a binding offer of an agreement. However, there is no obligation to accept.
(2) Unless otherwise stated in the order, Hofmann Megaplan is entitled to accept this contractual offer within 14 days of its receipt by Hofmann Megaplan. Acceptance may be declared either in writing or by delivery of the goods to the buyer.
§ 3 Delivery deadline and delay in delivery
(1) Quoted delivery and unloading times are always non-binding unless expressly agreed otherwise in writing.
(2) Our delivery obligation is always subject to timely and proper delivery by our own suppliers. Delivery hindrances due to force majeure or due to unforeseen events for which we are not responsible, such as operational disruptions, strikes, lock-outs, official orders (in particular for infection control), subsequent discontinuation of export or import possibilities as well as our aforementioned reservation of own delivery release us from the obligation to comply with somewhat agreed delivery or unloading times for the duration and to the extent of their effects. They also entitle us to withdraw from the contract without the buyer being entitled to damages or other claims as a result.
(3) If an agreed delivery or unloading time is exceeded without there being an impediment to delivery in accordance with the above paragraph 2, the buyer shall grant us in writing a reasonable period of grace of at least two weeks. If we culpably fail to comply with this period of grace either, the buyer shall be entitled to withdraw from the agreement, but not to assert claims for damages arising from non-performance or default, unless we are guilty of intent or gross negligence. Unless the delay in delivery is due to an intentional breach of agreement for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
§ 4 Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery shall be made ex works (the exact location is specified in our offer and/or in our acceptance of the customer's order), which is also the place of performance for the delivery and any alternative performance. At the request and expense of the buyer, the goods will be shipped to another destination (sale by delivery to a place other than the place of performance). Transport insurance shall only be taken out at the express request of the buyer. Any costs arising therefrom shall be borne solely by the buyer. Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves. Reasonable partial deliveries are permissible.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. Handover or acceptance shall be deemed to have taken place if the buyer is in default of acceptance.
(3) If the buyer is in default of acceptance, if he fails to cooperate or if our delivery is delayed for other reasons for which the buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs).
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our prices current at the time of conclusion of the agreement shall apply, ex works, plus statutory value-added tax.
(2) If there are more than six months between the conclusion of the agreement and the agreed and/or actual delivery date, our prices valid at the time of delivery or provision of the goods shall apply; if the latter prices exceed the initially agreed prices by more than 10%, the buyer shall be entitled to withdraw from the agreement.
(3) We reserve the right to increase prices appropriately if manufacturing costs increase by at least 5%, in particular due to collective wage agreements or material price increases. The increase in manufacturing costs will be proven to the buyer upon request.
(4) Any loading, unloading, transport and packaging costs, customs duties, fees and other public charges shall be borne by the customer.
(5) In the case of a sale by delivery to a place other than the place of performance, the buyer shall bear the transport costs ex works and the costs of any transport insurance requested by the buyer. Any customs duties, fees, taxes and other public charges shall be borne by the buyer.
(6) The purchase price shall be paid within 10 days from the date of invoice and delivery or acceptance of the goods. Payment shall be made by bank transfer. However, we are entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
(7) Upon expiry of the aforementioned payment deadline, the buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected.
(8) The customer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the customer's counter rights shall remain unaffected.
(9) If, after conclusion of the agreement, it becomes apparent (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardised by the buyer's inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the agreement (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.
§ 6 Retention of title
(1) Hofmann Megaplan retains title to the goods sold until full payment of all present and future claims arising from a purchase agreement and an ongoing business relationship (secured claims).
(2) The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The customer must inform Hofmann Megaplan immediately in writing if and insofar as third parties have access to the goods owned by Hofmann Megaplan.
(3) Until revoked in accordance with (c) below, the customer is entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title extends to the products resulting from the processing or mixing of the goods at their full value. If in case of processing, mixing or combining with goods of third parties their right of ownership remains, Hofmann Megaplan acquires co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects the same shall apply to the resulting product as to the goods sold subject to retention of title.
(b) The customer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The obligations of the customer stated in paragraph 2 shall also apply in respect of the assigned claims.
(c) The customer remains authorised to collect the claim in addition to Hofmann Megaplan. Hofmann Megaplan undertakes not to collect the claim as long as the customer meets his payment obligations to Hofmann Megaplan, is not in default of payment, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right in accordance with para. 4. Otherwise Hofmann Megaplan may demand that the customer discloses the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to revoke the buyer's authorisation to further sell and process the goods subject to retention of title.
(d) If the realisable value of the securities exceeds the claims of Hofmann Megaplan by more than 10%, securities shall be released at our discretion at the request of the customer.
(3) In the event of breach of the agreement by the buyer, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the agreement in accordance with the statutory provisions or/and to demand surrender of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the buyer does not pay the purchase price due, we may only assert these rights if we have previously set the buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
§ 7 Obligation to inspect and give notice of defects
(1) Upon delivery to the agreed place of destination or, in the event of collection by the buyer, upon taking over of the goods, the buyer shall be obliged to immediately
(a) examine the goods according to number of pieces, weights and packaging and note any complaints in this respect on the delivery note or consignment note or on the notice of receipt/removal from storage of the cold store, and
(b) carry out a quality check at least on a random basis to a reasonable extent, open the packaging (cartons, bags, foils, etc.) to a reasonable extent and inspect the goods themselves for external condition.
(2) When giving notice of any defects, the buyer shall observe the following forms and deadlines:
(a) The complaint must be made by the end of the working day following the delivery of the goods to the agreed destination or their taking over. In the case of a complaint about a hidden defect which initially remained undiscovered despite a proper initial inspection in accordance with the above paragraph 1, a different time limit applies, according to which the complaint must be made by the end of the working day following the discovery, but at the latest within two weeks after delivery of the goods or their taking over.
(b) The detailed notice of defect must be received by us within the aforementioned periods in writing, by e-mail or by fax. A notice of defects by telephone is not sufficient. Notices of defects to commercial representatives, brokers or agents are irrelevant.
(c) The type and extent of the alleged defect must be clearly evident from the notice of defect.
(d) The buyer is obliged to keep the goods complained about available for inspection at the place of inspection by us, our supplier or experts commissioned by us.
(3) Complaints with regard to the number of pieces, weights and packaging of the goods shall be excluded if the note on the delivery note or consignment note or receipt required in accordance with paragraph 1 (a) above is missing. Furthermore, any claim shall be excluded as soon as the buyer has mixed, reused or resold the goods or has started to process them.
(4) Goods not complained about in due form and time shall be deemed approved and accepted. Claims for defects are excluded in this case.
§ 8 Claims for defects of the buyer
(1) The statutory provisions shall apply to the buyer's rights in the event of material defects and defects of title (including wrong and short delivery as well as improper assembly/installation or defective instructions), unless otherwise stipulated in these GTCS.
(2) The basis of our liability for defects is above all the agreement reached on the quality and the presumed use of the goods (including accessories and instructions). All product descriptions and manufacturer's specifications which are the subject of the individual agreement or which were publicly announced by us (in particular in catalogues or on our Internet homepage) at the time of the conclusion of the agreement shall be deemed to be an agreement on quality in this sense. Technical improvements as well as necessary technical modifications shall be deemed to be in accordance with the agreement.
(3) Insofar as the quality was not agreed, it shall be assessed in accordance with the statutory regulation whether a defect exists or not (§ 434 para. 3 BGB). Public statements made by the manufacturer or on his behalf, in particular in advertising or on the label of the goods, take precedence over statements made by other third parties.
(4) If the delivered item is defective, we can first choose whether we provide alternative performance by eliminating the defect ( remedy) or by delivering an item free of defects ( replacement delivery). If the type of alternative performance chosen by us is unreasonable for the buyer in the individual case, he may reject it. Our right to refuse alternative performance under the statutory conditions remains unaffected.
(5) We are entitled to make the alternative performance owed dependent on the buyer paying the purchase price due. However, the buyer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
(6) The buyer shall give us the time and opportunity required for the alternative performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the buyer shall return the defective item to us at our request in accordance with the statutory provisions; however, the buyer shall not have a claim for return. Alternative performance shall not include the dismantling, removal or disassembly of the defective item or the installation, fitting or assembly of a defect-free item if we were not originally obliged to perform these services; claims of the buyer for reimbursement of corresponding costs ("dismantling and assembly costs") shall remain unaffected.
(7) We shall bear or reimburse the expenses necessary for the purpose of inspection and alternative performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions and these GTCS if a defect is actually present. Otherwise, we may demand reimbursement from the buyer of the costs incurred as a result of the unjustified request to eliminate the defect if the buyer knew or was negligent in not knowing that there was actually no defect.
(8) Only in urgent cases, e.g., if operational safety is at risk or to prevent disproportionate damage, shall the buyer have the right to eliminate the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We must be informed immediately of such self-performance, if possible, in advance. The right of self-remedy does not exist if we would be entitled to refuse a corresponding alternative performance in accordance with the statutory provisions.
(9) If a reasonable period to be determined by the buyer for alternative performance has expired unsuccessfully or is dispensable according to the statutory provisions, the buyer may withdraw from the purchase agreement or reduce the purchase price according to the statutory provisions. In the case of an insignificant defect, however, there is no right of withdrawal.
(10) Claims of the buyer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with § 9 and are otherwise excluded.
(11) No warranty shall be assumed in particular in the following cases:
Unsuitable or improper use or operation, faulty assembly or commissioning by the buyer or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences - unless we are responsible for them.
(12) If the buyer or a third party carries out improper remedy work, our liability for the consequences arising therefrom shall be excluded. The same applies to changes made to the goods without our prior consent.
§ 9 Further liability, recall of goods
(1) Insofar as nothing to the contrary results from these GTCS including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
(2) We shall be liable for damages - irrespective of the legal grounds - within the framework of fault-based liability in the event of intent and gross negligence. In the case of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g., care in own affairs; insignificant breach of duty), only
(a) for damages resulting from injury to life, body or health,
(b) for damages arising from the breach of a material contractual obligation (obligation the fulfilment of which is a prerequisite for the proper performance of the agreement and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall also apply to third parties as well as in the event of breaches of duty by persons (also in their favour) whose fault we are responsible for according to statutory provisions. They do not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the buyer under the Product Liability Act.
(4) The buyer may only withdraw from or terminate the agreement due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory prerequisites and legal consequences shall apply.
(5) In the event of a recall of goods, the customer is obliged, in consultation with us, to take all necessary and reasonable measures to avoid all possible damage.
§ 10 Statute of Limitations
(1) Notwithstanding § 438 para. 1 no. 3 BGB (German Civil Code), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) If the goods are a building or an object which has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (§ 438 para. 1 no. 2 BGB). Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) shall also remain unaffected.
(3) The above limitation periods of the law on sales also apply to contractual and non-contractual claims for damages of the buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages of the buyer pursuant to § 9 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become time-barred exclusively according to the statutory limitation periods.
§ 11 Secrecy
(1) Each party undertakes to treat the work results of the other party as well as all other information, in particular of a technical and economic nature, intentions, experience, findings, designs and documents, which become known to it as a result of the cooperation (collectively referred to as "Confidential Information") confidentially vis-à-vis third parties - even beyond the duration of the business relationship - not to make them accessible to third parties, to protect them from access by third parties and not to make them the subject of its own application for industrial property rights. Confidential information is to be regarded as business secrets and represents an economic value.
(2) Each party shall only be entitled to disclose such Confidential Information to any third party with the prior written consent of the other party, subject to the imposition of confidentiality obligations.
(3) The obligations of confidentiality shall not apply to such Confidential Information,
a) which was demonstrably already known to the recipient at the time of the agreement of the GCS or which subsequently becomes known to the recipient from a third party without violating a confidentiality agreement, statutory provisions or official orders;
b) which are lawfully publicly known at the time of the agreement of the GCS or are made publicly known thereafter, insofar as this is not based on a breach of the GCS;
c) which must be disclosed due to legal obligations or by order of a court or authority. To the extent permissible and possible, the recipient obliged to disclose shall inform the other party in advance and give the other party the opportunity to oppose the disclosure.
(4) The parties shall ensure in an appropriate manner that the employees, freelancers and subcontractors engaged by it in the performance of this contract also observe the aforementioned confidentiality.
§ 12 Technical Documentation, Software Use, Intellectual Property
(1) All technical documentation and operating instructions relating to the goods, if any, shall be in either English or German.
(2) Any technical documentation relating to the goods may only be used by the buyer for the purpose of installation, use and maintenance of the goods. Duplication, disclosure of the contents or transmission to third parties is not permitted.
(3) Insofar as software is included in the scope of delivery, the buyer is granted a non-exclusive right to use the delivered software including its documentation. The delivered software is provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited. The buyer may only copy, revise, translate or convert the software from the object code into the source code to the extent permitted by law (§§ 69 a ff. UrhG). The buyer undertakes not to remove manufacturer's details - in particular copyright notices - or to change them without our prior express consent. Other rights to the software and the documentation, including copies, shall remain with us or with the software supplier. The granting of sub-licences is not permitted.
(4) The sale or delivery of the goods shall not constitute any right of the Buyer to intellectual property (in particular patent rights, trademark rights and copyrights) relating to the goods, their illustration or description or the technical documentation relating to them. This also applies to rights of use in this respect. The intellectual property rights relating to the goods, including software, shall belong exclusively to the Seller as sole owner or, if applicable, as licensee.
(5) The buyer shall take reasonable measures to ensure that the intellectual property rights (in particular patent rights, trademark rights and copyrights) of the goods are not used by his company without our prior written consent. Reverse engineering of the goods by the buyer or third parties is prohibited.
§ 13 Further services
(1) Further services in addition to the delivery of the goods, such as in particular installation, assembly, commissioning, maintenance or training shall only be owed by us if this has been expressly agreed in advance. All costs in this connection, including personnel costs, travel, board and lodging costs, energy costs (such as electricity, compressed air and gas) as well as costs for the preparation of foundations and ducts shall be borne by the buyer.
(2) The customer is obliged to accept the work performed by us as soon as he has been notified of its completion and any contractually stipulated testing has been successfully completed.
(3) The customer may not refuse acceptance due to insignificant defects. Material defects shall be remedied by us as soon as possible and subsequently submitted to the customer for acceptance; the renewed acceptance test shall be limited to ascertaining that the deviation has been remedied. Insignificant deviations shall be recorded by the customer in writing in the acceptance declaration as a defect and shall be remedied by us within the scope of the warranty.
(4) If the customer refuses acceptance without justification or without giving reasons, we may set him a period of 14 days in writing to declare acceptance. Acceptance shall be deemed to have taken place insofar as the buyer does not accept the work within this period or does not specify in writing the material defects identified by him.
(5) In any case, the work result is deemed to be accepted when the buyer uses it or could use it. From this point in time at the latest, the warranty period begins to run and we are entitled to payment of the agreed remuneration.
§ 14 Applicable law and place of jurisdiction, final provisions
(1) The law of the Federal Republic of Germany shall apply to these GCS and all legal relationships between Hofmann Megaplan and the customer to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Munich shall be the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same shall apply if the buyer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTCS or a prior individual agreement or at the general place of jurisdiction of the buyer. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
(3) The buyer may only assign claims arising from legal transactions concluded with us with our express written consent.
(4) The invalidity of individual provisions of these General Terms and Conditions of Sale shall not affect the validity of the remaining provisions. Ineffective provisions shall be deemed to be replaced by such effective provisions that are suitable to realise the economic purpose of the omitted provision as far as possible.