Terms and conditions
General Terms and Conditions of Business and Delivery
§ 1 Validity
(1) All deliveries, services and offers from Humbach
GmbH & Co. KG (hereinafter referred to as "Supplier") are made exclusively on the basis of
of these General Terms and Conditions of Business and Delivery. These are an integral part
of all contracts that the supplier concludes with its contractual partners (hereinafter also referred to as
"Customer") about the deliveries or services offered by him
shall apply. They shall also apply to all future deliveries, services or
offers to the customer, even if they have not been separately agreed again.
become.
(2) Terms and conditions of the customer or third parties shall not apply.
shall not apply, even if the supplier does not agree to their validity in individual cases.
contradicts separately. Even if the supplier refers to a letter,
which contains the terms and conditions of the customer or a third party or
such, this does not imply any agreement with the validity of those
Terms and conditions.
§ 2 Offer and conclusion of contract
(1) All offers of the supplier are subject to change and
non-binding, unless they are expressly labelled as binding.
or contain a specific acceptance period. Orders or commissions
may be accepted by the supplier within 30 days of receipt.
(2) The legal relationship between the supplier and the customer shall be solely
and the customer is the contract concluded in writing, including this
General Terms and Conditions of Business and Delivery. This specifies all agreements between
The contractual parties' agreements on the subject matter of the contract. Verbal
Promises made by the supplier prior to the conclusion of this contract are legally
Non-binding and verbal agreements between the contracting parties are
written contract, unless expressly agreed otherwise in each case.
agreed between the contracting parties.
(3) Additions and amendments to the agreements made
Agreements including these General Terms and Conditions
Terms of delivery must be in writing to be valid. With the exception of
of managing directors or authorised signatories, the employees of the supplier are not
authorised to make verbal agreements that deviate from the written agreement.
meet. Telecommunication is sufficient to fulfil the written form requirement,
in particular by fax or e-mail.
(4) Information provided by the supplier on the subject matter of the delivery or
performance (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and
technical data) as well as representations of the same (e.g. drawings and
illustrations) are only approximate, unless the usability for the intended purpose
contractually intended purpose requires an exact match. They
are not guaranteed characteristics, but descriptions or descriptions of the
Labelling of the delivery or service. Customary deviations and
Deviations that occur due to legal regulations or technical
improvements, as well as the replacement of components with
equivalent parts are permitted, provided they do not jeopardise the usability of the
not impair the contractually intended purpose.
(5) The supplier reserves the right of ownership or copyright
to all offers and cost estimates submitted by him and to the customer
drawings, illustrations, calculations and brochures provided,
catalogues, models, tools and other documents and aids.
The Purchaser may not use these items without the express consent of the Supplier.
make them accessible to third parties, either as such or in terms of content,
use or reproduce the goods himself or through third parties. At the request of the supplier, he shall
return these items in their entirety to the latter and to return any manufactured
copies if they cannot be destroyed by him in the ordinary course of business.
are no longer required or if negotiations do not lead to the conclusion of a
contract. Excluded from this is the storage of data electronically for
data provided for the purpose of standard data backup.
§ 3 Prices and payment
(1) The prices are valid for the period stated in the order confirmations.
listed scope of service and delivery. Additional or special services
will be charged separately. The prices are in EUR ex works plus VAT.
packaging, the statutory value added tax, customs duties for export deliveries and
fees and other public charges. Any cost estimates for
Packaging, loading, freight, installation and the like are non-binding. It
the actual costs incurred will be charged to the customer.
(2) In the case of export deliveries, all duties, fees, charges and taxes shall be borne by the customer,
taxes, costs for technical inspections, etc., which are incurred outside the Federal Republic of Germany.
Germany are to be borne by the customer; the same applies to the costs for any
Necessary legalisation of originating products, consular invoices, etc.
The delivery parts
correspond in principle to the standards applicable in the Federal Republic of Germany.
technical regulations. For tests and acceptance that go beyond the usual
The customer shall bear the costs of any inspection at the supplier's works.
Tests according to foreign standard regulations, in the country of the supplier
are to be carried out in the Federal Republic of Germany.
authorised inspection companies at the expense of the customer,
unless the contract itself expressly provides otherwise.
(3) For deliveries within Germany, the value added tax is
will be invoiced additionally. The price valid at the time of delivery shall apply.
VAT rate. This also applies to partial services.
(4) Invoice amounts are payable within thirty days after
receipt of the invoice without any deduction, unless otherwise agreed.
is agreed in writing. If the time of receipt of the invoice or the
payment request, the invoice amount must be paid within 30 days at the latest.
after the due date and receipt of the consideration. Decisive for the
The date of payment is the date of receipt by the supplier. Payment by cheque is
excluded unless agreed separately in individual cases.
However, cheques are only accepted on account of payment and are only valid after
successful redemption as payment. If the customer pays by the due date
the outstanding amounts are due from the due date at 5 % per annum.
interest; the assertion of higher interest and further damages in the event of
of the delay remains unaffected.
(5) The supplier shall be entitled, despite contrary
provisions of the customer, the payments shall initially be applied to the customer's older debt,
if there is more than one, to the oldest debt. If costs and/or debts have already been
interest, the supplier is entitled to initially defer the payments to
the costs, then the interest and finally the principal claim.
(6) Offsetting against counterclaims of the customer or the
The retention of payments due to such claims is only permissible,
insofar as the counterclaims are undisputed or have been recognised by declaratory judgement
or arise from the same order under which the delivery in question was made.
has taken place.
(7) The Supplier shall be entitled to demand payment of outstanding
Deliveries or services only against advance payment or provision of security
to perform or provide services if, after the conclusion of the contract, circumstances
become known that could significantly affect the creditworthiness of the customer.
and through which the payment of the outstanding receivables can be minimised.
of the supplier by the customer from the respective contractual relationship
(including from other individual orders for which the same framework agreement
applies) is jeopardised.
§ 4 Delivery and delivery time
(1) Deliveries are ex works excluding packaging
and despatch.
(2) Deadlines and dates promised by the supplier
for deliveries and services are always only approximate, unless
a fixed deadline or a fixed date has been expressly promised or agreed
is. If despatch has been agreed, delivery periods and delivery dates shall be
Delivery dates, unless expressly stated otherwise by the supplier, are based on the
the time of handover to the forwarding agent, carrier or other person authorised by the
third parties commissioned with the transport or the receipt of the notification of readiness for dispatch
with the customer.
(3) The Supplier may - without prejudice to its rights arising from default
of the customer - an extension of delivery and payment deadlines
performance deadlines or a postponement of delivery and performance dates by
the period in which the customer fulfils his contractual obligations.
obligations towards the supplier.
(4) The supplier shall not be liable for the impossibility of
delivery or for delays in delivery, insofar as these are caused by force majeure or
other events not foreseeable at the time of conclusion of the contract
(e.g. operational disruptions of all kinds, difficulties in the supply of materials or
Energy procurement, transport delays, strikes, lawful lockouts,
shortages of labour, energy or raw materials, difficulties in
Procurement of necessary official authorisations, pandemics or epidemics,
official measures or the lack of, incorrect or non-existent
timely delivery by suppliers despite the supplier's failure to deliver
congruent hedging transaction), which the supplier is obliged to fulfil.
for which the supplier is not responsible. Insofar as such events prevent the supplier from
or performance significantly more difficult or impossible and the hindrance
is not only temporary, the supplier is entitled to withdraw from the contract.
contract. In the event of obstacles of a temporary duration, the
delivery or service deadlines or if the delivery or service deadlines are postponed
the period of the hindrance plus a reasonable period of time.
start-up period. If, as a result of the delay, the customer is unable to accept the
delivery or service is unreasonable, he may cancel the contract by immediately
The customer may withdraw from the contract by written declaration to the supplier.
(5) The Supplier shall only be entitled to make partial deliveries if
–
the partial delivery for the customer within the scope of
of the contractual purpose,
–
the delivery of the remaining goods ordered
is ensured and
–
the customer does not suffer any significant
additional work or additional costs are incurred unless the supplier
agrees to bear these costs.
(6) If the supplier falls behind with a delivery or service, the
default or is refused a delivery or service, for whatever reason,
impossible, the supplier's liability for damages shall be limited in accordance with the
The scope of delivery is limited to § 10 of these General Terms and Conditions of Business and Delivery.
(1)
If the customer cancels a framework agreement because there are changes to the
product design does not lead to agreement between the customer and the supplier.
or the product is returned by the customer for technical or commercial reasons.
or is no longer required in the previous quantities, the customer shall be
nevertheless obliged to deliver any remaining quantities still available to the supplier.
the conditions agreed in the framework agreement. The
The purchase obligation shall extend to the entire volume of the
available and any raw material that may still be available.
(2)
If the customer concludes a framework agreement for the reasons stated in paragraph 1
where amortisation of tooling costs has been agreed is not applicable, the
The supplier shall be entitled to recover any unpaid tooling costs after suspension of
of the contract separately.
§ 6 Place of fulfilment, dispatch, packaging, transfer of risk, acceptance
(1) Place of fulfilment for all obligations arising from the
The contractual relationship is the supplier's plant, unless otherwise specified
is.
(2) The mode of dispatch and packaging shall be subject to the
discretion of the supplier. Disposable packaging, which is included in the invoice
or are labelled as such on the shipping documents are not
taken back. For other goods returned carriage paid within a reasonable period of time
half of the invoiced price will be refunded for returned packaging,
if the packaging is in perfect condition.
(3) If dispatch of the goods has been agreed, the risk shall pass to
and the supplier has not undertaken the transport or installation,
at the latest with the handover of the delivery item (whereby the beginning of the
loading process is decisive) to the forwarding agent, carrier or other person responsible for
The title to the goods shall pass to the customer after the dispatch has been carried out. Delayed
dispatch or handover is delayed as a result of a circumstance whose cause lies with the
the risk passes to the customer from the day on which the goods are delivered to the customer.
the delivery item is ready for despatch and the supplier informs the customer of this.
has displayed.
(4) Storage costs after the transfer of risk shall be borne by the customer. In case of
storage by the supplier, the storage costs amount to 0.25 % of the
invoice amount of the delivery items to be stored per elapsed week. The
Assertion and proof of further or lower storage costs shall remain unaffected.
reserved.
(5) The consignment shall only be delivered by the supplier upon express
at the customer's request and expense against theft, breakage and damage,
Transport, fire and water damage or other insurable risks
insured.
(6) If acceptance is to take place, the goods shall be deemed to be
removed when
–
the delivery and, if the supplier is also responsible for the
installation, the installation is completed,
–
the supplier informs the customer of this by
of the fictitious acceptance in accordance with this § 6 para. 6 and to demand acceptance.
has requested,
–
14 working days since delivery or installation
have passed or the customer has started to use the goods (e.g.
has commissioned the delivered system) and in this case has been in operation since
14 working days have elapsed since delivery or installation and
–
the customer has not accepted the goods within this
period for a reason other than a defect notified to the supplier.
defect that makes the use of the purchased item impossible or significantly impairs its
has failed to do so.
§ 7 Warranty, material defects
(1) The warranty period is one year from delivery
or, if acceptance is required, from the date of acceptance. This period shall apply
not for claims for damages by the customer arising from injury to life,
or health or due to intentional or grossly negligent behaviour on the part of the
breaches of duty by the supplier or his vicarious agents, which
in each case in accordance with the statutory provisions.
(2) The delivered items shall be returned immediately after
delivery to the customer or to the third party designated by the customer carefully
to examine the goods. They shall apply with regard to obvious defects or other
Defects that are recognisable during an immediate, careful inspection
shall be deemed to have been approved by the customer if the supplier is not notified within
a written notice of defects is received seven working days after delivery.
With regard to other defects, the delivery items shall be deemed to have been delivered by the customer.
approved if the notice of defects is not submitted to the supplier within seven working days after
the time at which the defect became apparent; if the defect was present at the time of
normal use is already evident at an earlier point in time, is
However, this earlier date shall be decisive for the start of the period for lodging a complaint. On
At the request of the supplier, a rejected delivery item must be sent carriage paid to
to the supplier. In the event of a justified complaint, the supplier shall reimburse
the costs of the most favourable shipping route; this shall not apply if the costs
increase because the delivery item is located at a place other than the place of delivery.
of the intended use.
(3) The agreed quality of the delivered item
results from the supplier's product description. The specifications of the
Supplier on the object of delivery and performance in catalogues, brochures and
Price lists are merely descriptions, labelling or guide values.
unless otherwise stated in the order confirmation.
Minor, insignificant deviations from the information in the catalogue or
goods delivered earlier shall not be considered a defect. The exclusion
deviations customary in the industry require the express written consent of the
Agreement. Information provided by the supplier on the properties of its products
correspond to the results of the supplier's measurements and calculations. The
The customer must check for himself whether the goods ordered from the supplier are suitable for
suitable for the intended use. The unsuitable goods
shall only constitute a defect if the supplier has provided the purchaser with proof of suitability
confirmed in writing. For delivery of installation plans,
The supplier only assumes a guarantee for the implementation drawings and installation plans
for the correctness of the dimensions of his own part of the delivery. The supplier is liable
not if defects are attributable to measures or constructions which
the customer has expressly requested, or to materials or products
which the customer has supplied himself.
(4) In the event of material defects in the delivered items, the supplier is
after its election to be made within a reasonable period of time, initially to
The customer shall be obliged and entitled to rectification or replacement delivery. In the event of
failure, i.e. the impossibility, unreasonableness, refusal or
unreasonable delay in the rectification or replacement delivery, the customer may
withdraw from the contract or reduce the purchase price appropriately.
(5) If a defect is due to the fault of the Supplier,
the customer can choose from the
§ 10 under certain conditions.
(6) In the event of defects in components from other manufacturers which the supplier
cannot be eliminated for licensing or factual reasons, the
the supplier may, at his discretion, assert his warranty claims against the
manufacturers and suppliers for the account of the purchaser or to
to the customer. Warranty claims against the supplier exist
in the event of such defects under the other conditions and in accordance with
of these General Terms and Conditions of Business and Delivery only if the judicial
Enforcement of the aforementioned claims against the manufacturer and
supplier was unsuccessful or, e.g. due to insolvency, has no prospect of success.
is. During the duration of the legal dispute, the limitation period for the relevant
Warranty claims of the customer against the supplier shall be suspended.
(7) The warranty shall not apply if the customer, without
the supplier changes the delivery item or has it changed by third parties
and this makes it impossible or unreasonably difficult to remedy the defect.
is made. In any case, the customer shall bear the costs arising from the change.
additional costs of remedying the defect.
(8) If the
goods have already been delivered to an end consumer, the customer is generally
shall only be entitled to assert those claims for defects against the supplier,
which his customer asserts or has asserted against him. This does not apply,
insofar as the goods were delivered due to a goodwill arrangement agreed with the supplier
has been taken back. In addition, the Buyer shall be liable to the Supplier
The customer is not entitled to withdraw from the contract if he had to take back the goods for this reason,
because he has not properly fulfilled his duty of subsequent fulfilment,
in particular because he culpably failed to meet a deadline set for subsequent fulfilment.
expire without result. For the reimbursement of expenses pursuant to § 439 para. 2
BGB, the supplier shall only be obliged to the extent that the purchaser
immediately and in writing of a request for rectification by its customer.
the intended type of subsequent fulfilment as well as the
the approximate costs involved and the supplier does not
has objected immediately. The customer shall be obliged to
supplier, which relate to a more favourable variant of subsequent performance, must be followed.
to perform.
(9) An agreement reached with the customer in individual cases
Delivery of used items shall be made to the exclusion of any
Warranty for material defects.
§ 8 Retention of title, security interests
(1) The supplier
retains title to the delivery item (goods subject to retention of title) until
all claims of the Supplier against the Purchaser arising from the
business relationship, including claims arising in the future, including
from contracts concluded at the same time or later. This
shall also apply if individual or all of the supplier's claims are included in a
current account and the balance has been drawn and recognised.
The supplier shall not destroy the delivery item and the items replacing it.
or claims to the extent that their value exceeds the amount of the secured claims.
receivables by more than 50%. The selection of the receivables to be released
The responsibility for the delivery items lies with the supplier.
(2) For
The supplier may withdraw from the contract if the customer is in default of payment. In
the repossession of the delivery item as well as in the seizure of the
delivery item to the customer by the supplier constitutes a cancellation of the contract.
contract only if the supplier expressly declares this in writing.
Further statutory claims of the supplier remain unaffected by this.
(3) Gripping
third parties to the delivery item, in particular through seizure, the
the purchaser immediately informs them of the supplier's ownership and the
inform the supplier of this in order to enable him to enforce his property rights.
to make it possible. If the third party is not in a position to provide the supplier with the
costs incurred in this connection, whether in or out of court
the customer shall be liable to the supplier for this. If the supplier
behaviour of the customer in breach of the contract (enforcement event),
he is entitled to demand the return of the delivery item.
(4) The customer
shall be entitled to keep the goods subject to retention of title in the
to process and sell the goods in the ordinary course of business. Pledges
and transfers by way of security are not permitted.
(5) If the
goods subject to retention of title are processed by the customer, it is agreed that the
processing is carried out in the name and for the account of the supplier as manufacturer and
the supplier directly acquires ownership or - if the processing consists of materials
of several owners or the value of the processed item is higher than
the value of the reserved goods - the co-ownership (fractional ownership) of the new
created in the ratio of the value of the reserved goods to the value of the newly created item.
created object. In the event that no such acquisition of ownership
the Supplier, the Purchaser hereby assigns to the Supplier his right to
future ownership or - in the above-mentioned ratio - co-ownership of the new
created item to the supplier as security. If the goods subject to retention of title are
combined or inseparably mixed with other items to form a single item
and if one of the items is to be regarded as the main item, so that the supplier or the
If the customer acquires sole ownership, the party to whom the main item is transferred
the other party co-ownership of the uniform item on a pro rata basis.
in the ratio stated in p. 1.
(6) In the case of
resale of the goods subject to retention of title, the customer hereby assigns
the resulting claim against the purchaser by way of security - in the case of
co-ownership of the supplier in the reserved goods in proportion to the
co-ownership share - to the supplier. The same applies to other
Claims that take the place of the goods subject to retention of title or otherwise
arise with regard to the goods subject to retention of title, such as insurance claims or
Claims arising from unauthorised action in the event of loss or destruction. The supplier
revocably authorises the Purchaser to use the claims assigned to the Supplier for the
to collect claims in its own name. The supplier may not
Direct debit authorisation only revoked in the event of realisation.
(7) Insofar as the
law whose scope of application the delivery item is subject to, the
reservation of title, but allows the supplier to acquire other rights of ownership.
rights to the delivery item; can the supplier reserve all rights to the delivery item?
of this kind. The purchaser is obliged, in the case of measures taken by the supplier
to co-operate in the protection of his property or instead of his property of a third party.
other right to the delivery item.
§ 9 Property rights
(1) The Supplier shall be liable in accordance with this § 9,
that the delivery item is free from industrial property rights or
copyrights of third parties. Each contracting party shall inform the other
immediately notify the contractual partner in writing if the contractual partner
claims due to the infringement of such rights.
(2) In the event that the delivery item is a commercial
property right or copyright of a third party is infringed, the supplier will
its choice and at its expense, modify the delivery item in such a way or
that the rights of third parties are no longer infringed, the
However, the delivery item continues to fulfil the contractually agreed functions
or to the customer by concluding a licence agreement with the customer.
third parties the right of use. If the supplier succeeds in doing so within
within a reasonable period of time, the customer is entitled to demand that the
to withdraw from the contract or to reduce the purchase price appropriately. Any
Claims for damages by the customer are subject to the restrictions of § 10
of these General Terms and Conditions of Business and Delivery.
(3) In the event of infringements of rights by goods supplied by the supplier
products of other manufacturers, the supplier shall, at his discretion, assert his claims
against the manufacturers and upstream suppliers for the account of the customer
or assign them to the customer. Claims against the supplier exist in
in these cases in accordance with the provisions of this § 9 only if the judicial enforcement
the aforementioned claims against the manufacturers and upstream suppliers
was unsuccessful or has no prospect of success, e.g. due to insolvency.
(4) Claims of the customer are excluded insofar as he
is responsible for the infringement of property rights. The supplier has no obligation,
the production specifications submitted by the customer with regard to possible
to examine infringements of industrial property rights.
(5) Claims of the customer are also excluded,
insofar as the infringement of property rights is caused by special specifications of the customer,
caused by an application not foreseeable by the supplier or caused by
the delivery is modified by the customer or combined with goods not supplied by the
products supplied by the supplier.
§ 10 Liability for damages due to fault
(1) The Supplier's liability for damages, irrespective of
legal grounds, in particular due to impossibility, default, defective or
incorrect delivery, breach of contract, breach of obligations in the event of
contract negotiations and unauthorised action, insofar as it relates in each case to
fault, in accordance with this § 10.
(2) The supplier shall not be liable in the case of simple
negligence of its bodies, legal representatives, employees or agents
other vicarious agents, insofar as it is not a violation of the law
essential contractual obligations. Material contractual obligations are the obligation
for the timely delivery and installation of the delivery item, whose
freedom from defects of title and such material defects that could jeopardise its
Functionality or usability more than insignificant
as well as duties of advice, protection and care, which are incumbent on the customer.
enable the contractual use of the delivery item or to fulfil the contractual
protection of life and limb of the customer's personnel or the protection of
property from significant damage.
(3) Insofar as the supplier, in accordance with § 10 para. 2, is entitled to
compensation for damages, this liability is limited to damages which the supplier
foreseen at the conclusion of the contract as a possible consequence of a breach of contract
or which he could have foreseen if he had exercised due care.
must. Indirect damage and consequential damage resulting from defects in the
are only eligible for compensation insofar as such damages are
typically to be expected when the delivery item is used as intended
are. The above provisions of this paragraph 3 shall not apply in the case of
intentional or grossly negligent behaviour on the part of members of executive bodies or
executive employees of the supplier.
(4) In the event of liability for simple negligence
the supplier's obligation to pay compensation for damage to property and resulting
further financial losses is limited to EUR 2,000,000.00 per claim, including
if it is a breach of material contractual obligations.
(5) The above exclusions and limitations of liability
apply to the same extent in favour of the executive bodies and legal representatives,
employees and other vicarious agents of the supplier.
(6) Insofar as the supplier provides technical information or
and this information or advice does not relate to the business activities of the company.
contractually agreed scope of services owed, this is done
free of charge and to the exclusion of any liability.
(7) The restrictions of this § 10 do not apply to the
Liability of the supplier due to intentional behaviour, for guaranteed
quality characteristics, due to injury to life, limb or health
health or under the Product Liability Act.
§ 11 Final provisions
(1) If the customer is a merchant, a legal entity of the
public law or a special fund under public law, or has he
the Federal Republic of Germany, the place of jurisdiction shall be
Place of jurisdiction for any disputes arising from the business relationship
between the supplier and the customer, at the discretion of the supplier, the head office
of the supplier or the registered office of the customer. For legal action against the supplier
in these cases, however, the supplier's head office shall be the exclusive
Place of jurisdiction. Mandatory statutory provisions on exclusive jurisdiction
Jurisdictions remain unaffected by this provision.
(2) The relationship between the Supplier and the Purchaser
are subject exclusively to the law of the Federal Republic of Germany. The
United Nations Convention on Contracts for the International Sale of Goods
Sale of Goods of 11 April 1980 (CISG) does not apply.
(3) Insofar as the contract or these General Terms and Conditions
delivery conditions contain loopholes, the following shall apply to fill these loopholes
gaps, those legally effective provisions shall be deemed to have been agreed which
the economic objectives of the contract and the economic
purpose of these General Terms and Conditions of Business and Delivery,
if they had been aware of the loophole.
