HOBART

General terms and conditions

Status: 2011

§ 1 General

  1. For business relationships with our customers, the following aspects apply in the following order:
    a)     the specific content of contracts concluded in writing; in the case of unilateral establishment only, the content of our order confirmation applies
    b)     these Terms and Conditions (AGB) and
    c)     the relevant legal regulations
  2. The customer, unless it is not an entrepreneur, declares upon placement of its first order that it agrees for these Terms and Conditions to apply to this and all further quotations, orders, and contracts without these being agreed on a case-by-case basis.
  3. The respective contractual content, including contractual clauses that may deviate from these Terms and Conditions, is realized in the form of our written order confirmation. Insofar as the customer includes additional conditions or requirements in the written order document, these are hereby expressly negated; particularly if the customer wants to make its purchase conditions the basis of this contract. Insofar as these purchase conditions contradict our Terms and Conditions, these purchase conditions shall not become contractual content even in the case of our silence or unreserved contractual execution.
  4. Field employees and trade representatives may not conclude subsidiary agreements or specific contractual conditions.

§ 2 Quotations

  1. Our quotations are non-binding. A contract is first concluded when we provide written order confirmation, which does not require a signature if created automatically.
  2. We reserve ownership and copyright in estimates, illustrations, and quotation documents, as well as the right to reclaim these. Such documents may not be made available to third parties.

§ 3 Scope of Delivery

  1. The scope of delivery/service rendering is determined by our written order confirmation. Insofar as varying written agreements have not been concluded, our deliveries are only appropriate for use as outlined in the product description enclosed with the delivery objects. Technical amendments related to technical improvements or based on legal requirements are reserved during the delivery period, insofar as the delivery object is not significantly altered and the amendments are reasonable for the customer.
  2. Information about performance, consumption, and weight shall be deemed exemplary, unless expressly indicated as binding. The customer is responsible for ensuring that required media (e.g. softened fresh water, electricity, steam, hot water, outlets) are available according to our specification for appliance operation or installation. The customer must also ensure that required official permits are valid.

§ 4 Prices

  1. Price alterations are permitted if there is a period of more than four months between contract conclusion and the agreed delivery date. If wages, material costs or market-specific cost prices increase before the delivery has been completed, we are justified in increasing our prices appropriately in relation to the increase in cost. The purchaser may only withdraw from the contract if the price increase between order placement and delivery significantly exceeds the increase in the general cost of living. If the customer is an entrepreneur as described by § 14 of the German Civil Code (BGB), the aforementioned rule shall apply if the period between contract conclusion and the agreed delivery date exceeds six weeks.
  2. Prices include packing for domestic delivery, with the exception of accessories ordered manually or spare parts. In these cases, the prices do not include any of the following: packing ex-works or branch, shipping insurance, delivery to the place of delivery receipt, installation – even if the product had to be dismantled for delivery –, VAT as valid on the delivery date. Special requests from the customer, e.g. accelerated shipping, special packing, etc., are executed provided these are possible; the additional costs shall be charged.
  3. Connection to a necessary supply (energy, water, sewage, etc.) must be arranged by the customer at its own cost, if this was not expressly confirmed in the scope of delivery. This work may only be carried out by specialist licensed companies.
  4. If we are also commissioned with assembly, installation or supervision of the connection, we make available on request the services of our field technicians against the fees listed in the valid price table. In this case, the provisions of § 11 also apply.
  5. Fixed prices are only deemed to be valid if they are denoted as such by us in written form and are agreed as part of scheduling of delivery, assembly and work completion. Services not expressly quoted in the quotation necessary to carry out the commission, particularly mortising, plastering, earthwork, etc., are charged separately according to the valid price table if we carry out the work.  

§ 5 Delivery

  1.  We reserve the right to make partial deliveries within the delivery period stated, provided that this does not create negative effects for use.
  2. The delivery period begins when the order confirmation is sent; however, not before the adduction of necessary documents, approvals, and releases by the purchaser. This period is also subject to punctual receipt of agreed payment, e.g. receipt of the agreed down payment.
  3. The delivery period is deemed met if the shipping is ready for dispatch within the designated period and this has been communicated to the customer, or the delivery item has been dispatched from the factory. Assembly services, even if we assume this function, do not have to be executed within the delivery period, unless this has been expressly confirmed by us. Delivery reliability is subject to the purchaser meeting contractual obligations.
  4. Delay  of deliveries and services due to force majeure or events that significantly complicate delivery or make delivery impossible exempt us from our obligations. These events include subsequently occurring material procurement difficulties, operational interruptions, strikes, lockouts, lack of transport, official regulations, etc. Such delays shall cause the binding agreed delivery periods to be extended for an appropriate duration. The purchaser has the right to withdraw from the contract three months after the original delivery date.
  5. Our customer may withdraw from the contract - notwithstanding all other cases described in these provisions - if the entire delivery becomes impossible before the transfer of risk. The customer may also withdraw from the contract if part of the delivery cannot be made and the customer can prove that partial delivery/partial service rendering is not in its interest; the customer may otherwise demand an appropriate price reduction. If we fail to adhere to a binding delivery date agreed by way of exception, for reasons for which we are responsible, the customer may withdraw from the contract after notifying us in writing of its potential withdrawal and citing an appropriate period of grace, and this period then expires unsuccessfully for reasons within our control. All further claims from our customer in the scope described in § 7, no. 3 are excluded. If neither of the contractual partners is responsible for the impracticality, we reserve the right to claim appropriate partial remuneration for the service rendered.

§ 6 Installation
If installation is assumed by us and contractually agreed, the following provisions apply:

  1. The purchaser shall provide appropriate suitable rooms free of charge for storing machine parts, materials, tools, etc.
  2. Before installation commences, all of the purchaser's deliveries and services, particularly all bricklaying, tiling, and other preparatory work, should have reached such an advanced stage that assembly can take place immediately and without interruption.
  3. If installation, assembly or commissioning is delayed for reasons for which we are not responsible, the purchaser shall assume the additional costs; in particular, waiting time and possible extra journeys that arise.
  4. Surfaces to be isolated by our customer, for which the customer shall guarantee an immaculate state under all circumstances, shall be made available in a clean and level condition. In the case of room insulations, the surfaces to be covered must be plumb to the wall and cleaned of rubble and mortar.

§ 7 Defects liability/Claims for Damages

  1. Upon detection of a fault covered by defects liability, this shall be reported to us immediately. The customer is duty bound to inspect the delivered goods immediately. Obvious faults detected in the process and complaints due to incorrect and incomplete delivery shall be reported to us in writing immediately, that is within ten days of delivery. If this is not the case, the delivery object is considered as accepted, except in the case of malice by us or our legal representatives and vicarious agents. In the case of hidden faults, the three-day period applies as of when the customer detects the fault. § 377 of the German Commercial Code (HGB) applies.
  2.  We provide defects liability on possible faults - except in the case of used products for which we do not assume any defects liability - contained in our products at the time of transfer of risk for a period of 12 months, or 12 months for spare parts, in the form of supplementary performance. We shall determine the type of subsequent delivery, gratuitous removal of the fault reported to us in a timely fashion by the customer, or fault-free replacement delivery. We reserve the right to refuse supplementary performance if this involves unreasonable costs for us. Instead of supplementary performance, a price reduction shall then be demanded. Our customer has the right to reduce the agreed remuneration if reworking or replacement delivery with regard to a fault for which we are responsible finally fails after an appropriate period of grace for reworking or replacement delivery has expired, and a further reworking attempt is not acceptable to the customer or we have allowed a reasonable period of grace to expire for reasons within our control. Defects liability claims do not apply
    a)     in the case of insignificant faults that do not reduce the value or the object's suitability for purpose as detailed in the contract; in the case of delivered parts displaying early signs of wear due to their material characteristics or type of use - in particular, delivered parts listed in the product description as wear-and-tear parts; small quantity deviations are also considered to be insignificant.
    b)     in the case of faults that can be traced back to incorrect assembly, commissioning or repair by a third party.
    c)     in the case of faults that can be traced back to unsuitable or improper use; in particular, non-adherence to servicing instruction, incorrect use, natural wear and tear, inappropriate resources/spare parts, etc.
  3. Unless a provision to the contrary is stated hereinafter, all further claims from our customer are excluded; in particular, for injury to persons, damage to goods that are not contractual products, for lost profit, consequential costs, etc. This disclaimer particularly applies to all types of damage claims, provided that they are not based on intent or gross negligence on our, our legal representatives', or vicarious agents' part. We are always liable for culpable breach of contractual obligations (cardinal duties). If we covered the typical contractual risk by way of liability insurance, our liability and that of our legal representatives or vicarious agents is limited to the scope of the liability insurance, insofar as the customer is an entrepreneur and is acting in its commercial or self-employed professional capacity upon contract conclusion. If the insurer is not liable to pay, we shall make our own payments to the extent of the insurance policy. The aforementioned liability restrictions do not apply to damage that endangers life, body or health; or is related to negligent breach of duty on our part or our legal representatives and vicarious agents. The disclaimer also does not apply if loss of life or damage to privately used objects is covered in the provisions of the Product Liability Act dated 15 December 1989 and the respective relevant version includes obligatory liability.

§ 8 Payment

  1. Provided that no agreements to the contrary are made, customer service invoices shall be paid immediately; other invoices shall be paid in full within two weeks of the invoice date. 
  2. Even if customer provisions provide for the contrary, we reserve the right to consider payments as credit against old debts that may exist. If we already incurred interest and costs, we are justified in initially crediting the payments against the costs, then against the interest and finally against the main debt.
  3. Payment is only considered to have been made when we have unrestricted access to the amount. In the case of a check, payment is only considered to have been made when the check has been cashed unconditionally.
  4. We charge default interest at 8 percentage points above the base interest rate (§ 247 German Civil Code BGB). Default interest may be charged at a higher rate if we can prove that a greater debt has arisen.
  5. Our customer may only offset our debt with an undisputed, legally binding counterclaim. If the customer is an entrepreneur as described by § 14 of the German Civil Code BGB, the customer's right of retention due to alleged defects liability claims is excluded. Otherwise, the customer may only assert the right of retention up to the amount of an appropriate proportion of the purchase price debt.
  6. If the customer's financial circumstances significantly worsen after contract conclusion or this only becomes known to us after contract conclusion, and these circumstances could affect contractual fulfilment, we reserve the right not to render further services until a return service is effected or a security is lodged. This also applies if the customer does not meet its contractual obligations in a timely manner or terminates its payments.

§ 9 Reservation of Title
Until all debts, including open accounts, are met to which we have a claim or shall have a future claim against our customer based on all types of legal bases, the following securities are guaranteed to us, released on our request and at our choosing, insofar as their value consistently exceeds the debts by more than 20%.   

  1.  We reserve the right to retain ownership of the delivery objects until payment has been made in full. If the customer breaches the contract, in particular if payment default arises, we reserve the right to issue a dunning letter and ultimately seize the objects; the customer shall suffer the objects to be seized.
  2. If the customer is an entrepreneur as described by § 14 of the German Civil Code BGB, the following also applies:
    a)     Our customer has the right to resell the delivery objects in the normal course of business dealings; at this point, however, our customer shall assign all debts to us up to the sum of the purchase price agreed between us and the customer (including VAT) arising from the resale, irrespective of whether the delivery objects are sold before or after they have been processed. The customer is authorized to collect the debt after assignment. Our entitlement to collect the debts ourselves remains untouched; however, we are duty bound not to collect the debts as long as the customer is its meeting payment obligations as agreed and is not defaulting on payment. If this is the case, we have the right to demand that the customer reports the assigned debts and the debtor, provides all necessary information for seizure, provides all relevant documents, and informs third parties of the assignment. 
    b)     Processing or reshaping of goods by the customer is always performed on our behalf. If delivery objects are processed with other objects not part of the delivery, we shall acquire co-ownership in the new thing in the ratio of the delivery objects' value to the other processed objects' value at the time of processing.
    c)     If delivery objects are mixed with other objects not belonging to us so that they cannot be separated, we shall acquire co-ownership of the new thing in the ratio of the delivery objects' value to the other non-separable objects' value. The customer shall store on our behalf the co-owned things.
    d)     The customer may neither pledge nor transfer delivery goods as a security. In the case of seizure, confiscation or other writs by third parties, the customer shall inform us immediately and provide us with all information and documents necessary to maintain our rights. Bailiffs and third parties shall be made aware of our ownership.
  3. If third parties attempt to seize the delivery objects, the customer shall indicate our ownership, inform us immediately, and send us a copy of the seizure report, if necessary. The customer shall assume costs and damages.

§ 10 Claims for Damages
If our customer fails to meet the contract or if the customer withdraws from a concluded contract for an unjustified reason, we shall be able to demand 35% of the agreed contractual price, notwithstanding possible higher actual damage, for processing the contract and profit lost. If the delivery object has been delivered, this amount shall increase to cover shipping costs and costs of possible reconditioning. The customer has the right to provide evidence of smaller damage.

§ 11 After Sales Service

  1. We provide repairs and servicing through our after sales service charged according to the valid price table. Repairs are carried out by us in such a way that the object is returned to an operational state. Faulty parts are replaced if this is required for the correct function of the object. We provide defects liability on repaired and replaced parts according to the aforementioned § 7 under the condition that the defects liability deviates from this provision and only applies for a period of 12 months from the completion of work.
  2. After sales technicians may not make defects liability assurances and other declarations for which the seller is responsible.
  3. The regulations described in § 7 of these Terms and Conditions apply in the case of damage and faults arising during repair or servicing.

§ 12 Closing Provisions/Place of Jurisdiction

  1. If parts of this contract or these Terms and Conditions should be invalid, the validity of the remaining parts of the contract and Terms and Conditions remains untouched.
  2. Only German law applies to legal relationships with our customers under exclusion of the Uniform Law on the International Sale of Goods, even if the purchaser is based abroad.
  3. The place of jurisdiction for all legal disputes arising from this contract shall be Stuttgart if the customer is a commercial businessperson, a legal entity of public law/ a special fund under public law. We may also take legal action at the customer's place of jurisdiction.
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