General Terms and Conditions
general terms and conditions

General Terms and Conditions for Construction Machinery, Construction Equipment and Industrial Machinery used solely in Business with other Companies

§ 1 Offer and conclusion of contracts

  1. the below contractual conditions shall exclusively apply for all offers and orders.

    The offers of the Contractor shall be without engagement. Issued orders shall only become binding after written confirmation from the Contractor.
  2. Additions, changes or ancillary agreements must be confirmed by the Contractor in writing to become effective.
  3. The Contractor shall remain the owner of any quotes, drawings and other documentation. These documents may not be made available to third parties.

§ 2 Scope of supply obligation

  1. The written order confirmation by the Contractor shall be decisive for the scope of supply.
  2. Stated dimensions, weights, figures and drawings, as well as other documentation provided with offers shall only be approximate unless expressly specified to be binding.

§ 3 Price and payment

  1. Prices are ex works of the Contractor and exclusive of VAT.
  2. Unless otherwise agreed, the purchase price shall be paid in cash within 30 days from date of invoice without any deduction or with 2% discount if payment is made within 8 days.
  3. In case on non-compliance with the payment terms or where the Contractor finds out after signing the agreement that his entitlement to payment may be endangered as a result of an insufficient ability of the Contractor to make the payment, the Contractor shall be entitled to proceed with any outstanding supplies and performances only after receipt of prepayment.
  4. Any retention of payments or offsetting against claims by the Client contested by the Contractor shall be excluded.

 

§ 4 Period of delivery

  1. The period of delivery has been observed if the supplied object has left the store of the Contractor or the works of the manufacturer or readiness for shipment has been conveyed to the Client prior to expiry of the period.
  2. In case of industrial disputes and in the event of unforeseen obstacles that are outside the area of influence of the Contractor or in case of obstacles for which the manufacturing works is responsible, the period of delivery shall be extended accordingly. This shall also apply if the obstacles have arisen during an already existing delay.
  3. Where the Client suffers a loss as a result of a delay caused by the Contractor and, in particular where a fixed delivery date was agreed with the Contractor, the Contractor shall be entitled to claim compensation. In case of ordinary negligence, compensation shall amount to 0.5% for each full week of delay up to a total of 5% of the partial or total net order not supplied on time due to the delay. All other claims for compensation due to a culpable delay shall be excluded in case of ordinary negligence.
  4. Where shipment is delayed for reasons caused by the Client, the Contractor shall invoice the Client from the 14th day after confirming readiness for shipment for any costs of storage at third parties and, in case of storage at the Contractor, 0.5% of the invoice amount for each month of delay.The Contractor shall be entitled to use the delivery object in any other way after expiry of a granted extension period and to supply the object to the Client after an appropriate extension of the period.
  5. Fulfillment of the obligations from the Purchase Agreement by the Client is a prerequisite for compliance with the delivery period.

§ 5 Transfer of risk and acceptance of delivery object

  1. 1. The risk is transferred to the Client upon handover of the delivery object to the shipping agent, freight company or collecting party or, in case of transportation organized by the Client, at the latest upon leaving the store of the Contractor or the manufacturing works. On request by the Client, the Contractor can insure the cargo against breakage, transport, fire and water damage. The cost shall be borne by the Client.
  2. Where dispatch is delayed due to circumstances for which the Contractor is not responsible, the risk shall be transferred to the Contractor from the day the objects were ready for dispatch. Where requested by the Client, the Contractor shall insure the delivery object against damage. The cost shall be borne by the Client.
  3. Supplied object shall be accepted by the contractor even if they contain minor defects. This shall not affect the rights specified in § 7.
  4. Partial deliveries shall be acceptable.

§ 6 Retention of title

  1. 1. The Contractor shall retain the title to all supplied objects until receipt of all payments for claims due to him from the business with the Client. In case of an open account, all of the conditional goods serve to secure the outstanding payments.

    Where the estimated value of the conditional goods serving as security for the Contractor exceeds the outstanding payments by 50 %, the Contractor shall release some securities on request by the Client.
  2. The Client may neither pledge nor assign it for security In case of pledging or attachment or other disposition by third parties, the Client shall inform the Contractor immediately.
  3. In case of the Client violating the contract, in particular, in case of defaulting on payment, the Contractor shall be entitled to recover the goods after a respective warning and the Client shall have to hand over the goods.
  4. Enforcement of the retention of title and pledging of the delivery object by the Contractor are not regarded as a rescission from the contract.
  5. The Contractor shall be entitled to insure the delivery object against fire, water and other damage unless the Client has provenly taken out such insurance himself. The costs for the insurance shall be borne by the Client.

§ 7 Liability for defective deliveries

 

  1. All parts showing a redhibitory defect within 12 months from the date of delivery as a result of circumstances preceding the transfer of risk shall be either repaired or replaced, as the Contractor sees fit. The Contractor shall immediately be informed in writing of any such defects.

    Claims for redhibitory defects are statute barred after 12 months –irrespective of the legal reasons. This does not apply in case of defects of a construction or objects for a construction that have caused the redhibitory defect. In contrast to sentence 1, also the statutory periods shall apply in case of claims under the Product Liability Act or in case of intentional fraudulent conduct. Replaced parts shall become the property of the Contractor.
  2. No liability shall be accepted for damage caused by natural wear.
  3. Also, no liability shall be accepted for damage that has occurred for the following reasons:
    • Unsuitable or incorrect use
    • Incorrect installation or commissioning by the Client or third parties
    • Incorrect or negligent use of the delivery object, in particular with regard to the provided Operating Instructions
    • Excessive stressing
    • Use of unsuitable operating media and replacement material.
  4. After discussions with the Contractor, the Client shall grant sufficient time for the Contractor to carry out any necessary repairs or replacements; if insufficient time is granted, the Contractor shall be released from his liability. The Client shall only be entitled to remedy the defect himself or engage third parties for this purpose and charge such costs to the Contractor in urgent cases, where operational safety is endangered and of which the Contractor is informed immediately.
  5. From the direct costs of the repair or replacement, the Contractor shall pay the costs of the replaced part including shipping as well as appropriate dismantling and installation costs, providing that the complaint is justified. The Client shall pay for the remaining costs.
  6. Any changes or repair work carried out incorrectly by the Client or third parties or without prior approval by the Contractor shall release the Contractor from any liability for any resulting consequences.
  7. Other claims by the Client, in particular claims for reimbursement for damage not caused to the actual object of delivery shall only be accepted in case of
    • gross negligence
    • injury to life, body or health
    • culpable infringement of main contractual obligations, if this may prevent the object of the agreement to be reached with regard to the typical contractual foreseeable damage
    • liability for personal injury or material damage to privately used objects due to defects in the delivery object according to the Product Liability Act
    • characteristics missing that were expressly guaranteed and where such an assurance had the purpose of safeguarding the Client against damage that did not occur on the actual delivery object,
    • defects that were intentionally hidden or whose absence was guaranteed by the Contractor.

    All other liability shall be excluded.
  8. Used objects of delivery shall be sold without any liability for defects.
  9. Unless agreed otherwise, the Contractor shall provide his domestic deliveries free from industrial property rights or copyrights of third parties. Where, however, an industrial property right is infringed, the Contractor shall either provide a respective user right from third parties or modify the delivery object in such a way that no industrial property rights are infringed. Where this is not possible for the Contractor using appropriate and reasonable measures, the Client and the Contractor shall both be entitled to rescind from the Agreement.
  10. Otherwise the regulations of § 7 apply accordingly in case of a deficiency in title, with the Client only being entitled to make any claims if he has informed the Contractor immediately in writing of any claims brought by third parties, does neither directly or indirectly recognize an alleged infringing action, the Contractor retains all unimpeded options for defending himself, the violation not being due to the Client having changed the delivery object or used it in a manner not specified in the contract or where the defect in title is due to an instruction by the Client.

§ 8 Rights of the Client to rescind the agreement or reduce the price or other liability of the Contractor

  1. The Client shall be entitled to rescind the Agreement, where the Contractor is finally not able to provide the full performance of the transfer of risk. The same applies in case of an inability to perform by the Contractor. The Client shall also be entitled to rescind the Agreement where in case of an order of the same objects the execution of a part of the delivery is impossible because of the quantity and he has a vested interest in refusing a partial delivery. Where this is not the case, the Client can reduce the counter-performance accordingly.
  2. In case of a statutory delay in performance of the Conditions of Sale and Delivery according to § 4 and where the Client grants the Contractor an appropriate period for remedying the situation, and where the situation is not remedied within this period, the Client shall be entitled to rescind the Agreement.
  3. Where an impossibility of performance occurs during the default in acceptance or due to the actions of the Client, the Client shall be obliged to provide the counter performance.
  4. The Client shall also be entitled to rescind the Agreement, where the Contractor does not repair or remedy a defect under these Conditions of Delivery within a granted appropriate extended period and this is due to the Contractor’s fault. The Client shall also be entitled to rescind the Agreement, where the repair or replacement by the Contractor is unsuccessful.
  5. Other claims by the Client, in particular claims for reimbursement for damage not caused to the actual object of delivery shall only be accepted in case of
    • gross negligence
    • injury to life, body or health
    • culpable infringement of main contractual obligations, if this may prevent the object of the agreement to be reached with regard to the typical contractual foreseeable damage
    • liability for personal injury or material damage to privately used objects due to defects in the delivery object according to the Product Liability Act
    • characteristics missing that were expressly guaranteed and where such an assurance had the purpose of safeguarding the Client against damage that did not occur on the actual delivery object,
    • defects that were intentionally hidden or whose absence was guaranteed by the Contractor. Otherwise any further claims, in particular for termination, reduction of price or compensation, shall be excluded.

 

§ 9 Liability for ancillary obligations

 

Where the Contractor is responsible for the Client not being able to use the supplied object as agreed in the contract, because suggestions and advice available prior and after the signing of the agreement not or having been used incorrectly – in particular

§ 10 Right o Contractor to rescind Agreement (this clause can also be deleted without being replaced)

 

In the event of unforeseen events in accordance with § 4 of the Conditions of Sale and Delivery that considerably change the economic significance or contents of the performance or considerably influence the operation of the Contractor and in the event that it becomes subsequently impossible to execute the performance, the Agreement shall be adapted accordingly. As far as this is not economically feasible, the Contractor shall be entitled to rescind partially or fully from the Agreement.

The Client shall only be entitled to claim damages in case of gross negligence of the Contractor. Where the Contractor wishes to exercise his right to rescind from the Agreement, he shall inform the contractor immediately once he recognizes the effects of the events and also where an extension of the delivery period was first agreed with the Client.

§ 11 Place of jurisdiction

 

If the Client is a businessman, a legal person of public law or a public separate estate, the place of fulfillment for payments and exclusive place of jurisdiction – also in case of trial by record and summary procedures on bills of exchange – is the seat of the Contractor for both parts and for all current and future claims from the business association or – if the Contractor wishes – the seat of the subsidiary that signed the Agreement.


Erich Hügel GmbH & Co.
Baumaschinen KG

Kulturstraße 21 - 25
D-47055 Duisburg
Phone +49 203 - 77 85 50
Fax +49 203 - 77 99 97