General terms and conditions of Business
of the Hamberger Flooring GmbH & Co. KG, 83003 Rosenheim
All our legal relationships, including consultancy services performed within their scope, that are not the subject-matter of a separate consultancy agreement, shall be based on our “General Terms and Conditions of Business.” In addition, all and any deliveries of wood effected within the Federal Republic of Germany shall be subject to the procedures used according to customary trade practice in the wood-processing industry, and in particular to the provisions of what is known as the “Tegernseer Gebraeuche“ in the latest version applicable at each respective time, including all its annexes and its appendix – to the extent that they are not contradictory to these General Terms and Conditions of Business. The wording of said provisions is understood to be known. Otherwise the text shall be sent upon request. Our General Terms and Conditions of Business shall be applicable to all and any legal transactions with contractors within the meaning of §14 of the German Civil Code [BGB]. We shall not recognise any terms or conditions of purchase on the part of any party contracting with us, or any agreements in deviation of our General Terms and Conditions of Business, unless their applicability is acknowledged in our order confirmation.
2. Offers – Conclusion of Contract – Prices
Our offers shall be subject to confirmation. A contract shall not be deemed to be concluded until the order is confirmed or executed by us. Our offers shall be subject to prior sale! The specifications, drawings and illustrations, as well as descriptions relating to delivery and performance contained in our brochures, catalogues, price lists, or in the offer or documents pertaining to the offer, are approximate values in accordance with customary trade practice, unless in the order confirmation they have expressly been referred to as binding. We reserve the right to make changes in the manufacturing process and shape of the delivery item, to the extent that such changes are acceptable for the purchaser. If an offer is made on a sample basis, the colour and texture of the sample shall not be deemed warranted qualities. Samples provided will only represent an average condition of the goods. Specifications as to dryness, weight, etc. will be given according to the best of our knowledge, but shall be without engagement. Our prices are quoted ex works, free lorry or wagon, plus VAT. If flooring or panelling for walls or ceilings is installed by ourselves, our quotations shall comprise delivery free construction site. Prices quoted in our offers shall be binding on us for 30 calendar days. In the event of an essential change of certain cost factors – wages, packing material, or freight – occurring between the conclusion of a transaction and delivery, the agreed price may be adjusted, within reasonable limits, according to the influence of the relevant cost factors, but by no more than a maximum of 5%. In the event of price increases, the purchaser shall have the right to declare his repudiation of the contract.
When accepting orders, we shall assume that the contractor is solvent. If it turns out that this condition was not fulfilled, or noticeably is no longer fulfilled, we shall be entitled to revoke credit terms granted, claim cash in advance of further deliveries, demand payment or securities against return of all bills of exchange and cheques accepted by way of payment, or rescind the contract. This shall also apply if the contractor is in delay regarding the payment of earlier invoices, in the event of a returned debit note, protest of a cheque or bill of exchange, or if a substantial deterioration of his financial circumstances becomes known.
4. Delivery and Passing of Risk – Shipment and Packing
Delivery times shall not be deemed fixed dates unless expressly referred to as such. Part shipments shall be admissible within reasonable limits and shall have to be accepted. In the event of delays in delivery or performance due to force majeure or as a result of occurrences making performance substantially difficult or impossible – these include particularly operational disturbances, strike, lockout, natural phenomena, government acts and disturbance of traffic routes –, we shall be released from the obligation to deliver or perform for the duration of such impediment plus a reasonable preparation time. The same shall apply in the event that supplies delivered to us are incorrect or do not arrive in due time, unless we are responsible for this. If so requested, our contractor shall have to declare whether he repudiates the contract as a result of the delay, or whether he insists on delivery. Any claims for damages, even on the grounds of delays going beyond the limits outlined above, shall be ruled out unless we are liable due to intent or gross negligence or on the grounds of injury to life, body, or health. This shall not involve any change in the burden of proof to the disadvantage of our contractors. If the delivery of orders placed on an on-call basis is not requested within one month after expiry of the agreed deadline, we shall be entitled to optionally either insist on immediate acceptance or immediately rescind the contract without fixing another deadline. The same shall apply in the case of orders to be performed on call with no particular deadline agreed for demanding delivery, if more than 4 months have elapsed without any request for delivery since the order was confirmed. Contractors shall not be entitled to assert any rights before granting us a reasonable final deadline of at least eight workdays.
Wood is a natural product. Its natural properties, variations and features are therefore to be taken into account in any case. In particular, the purchaser shall have to consider the biological, physical, and chemical properties when buying, processing and using wood. The natural range of variation in terms of colour, texture, and other characteristics within one species of wood is typical of wood as a natural product and shall not represent any cause for complaint or liability claims. If need be, our contractor shall have to seek appropriate technical advice. Only our product description shall be deemed agreed for the condition of goods. Public statements or extolling in advertisements shall not represent any additional indication as to the condition of goods under the contract. Any complaints referring to immediately noticeable defects in terms of quality, inadequate installation, delivery of the wrong goods, and quantity variance shall have to be notified in writing without delay, at the latest within 8 days after receipt of the goods or performance of the work. Complaints shall have to be stated at any rate before processing or using the goods. Once the delivery or performance has been accepted, any subsequent objections shall be ruled out. If goods have been made available for collection and neither the contractor nor any other person authorised by the same appears to collect them, such goods shall be deemed accepted. Defects that are not obvious, or defects occurring during or after processing or installation, shall have to be notified in writing without delay, at the latest within 10 workdays after being discovered. The burden of proof for the date of finding such defect shall be on the contractor. In the case of bilateral mercantile transactions between merchants, §§ 377 & 378 of the German Commercial Code [HGB] shall remain unaffected. The purchaser shall have to inform us of any circumstances bringing warranty into operation in favour of a consumer, as soon as possible after learning about the case. In the event of justified objections, we shall deliver any quantities missing and otherwise provide free remedy, grant a price reduction, replace or take back goods, whichever we may chose. To the extent that our products are also installed by us (e.g. flooring, panelling of ceilings and walls), the contractor shall assume the responsibility for adequate and safe intermediate storage of the products delivered. If remedying or substitute delivery fails or becomes impossible, our contractor shall be entitled to cancel the contract – except if involving the performance of building work – or to reduce the purchase price, whichever he may chose to satisfy his claims. We shall assume liability for the absence of warranted qualities only to the extent that such warranty shall serve the particular purpose of covering the contractor against the consequential damage resulting from the absence of such qualities. The mere reference to DIN or EN standards shall not make their contents a warranted quality. Claims based on defects of quality shall become statute-barred in 12 months. This shall not apply in the event that the law prescribes longer periods of limitation pursuant to § 438, para. 1, item 2 (Buildings and Items for Buildings), § 479, para. 1 (Claim under a Right of Recourse), and § 634 a), para. 1, item 2 (Constructional Defects) of the German Civil Code [BGB].
Reciprocal claims for damages, no matter what the legal basis may be, in particular on the grounds of neglect of contractual obligations and damage claims in tort, shall be ruled out unless otherwise provided in the following. This shall also apply in particular to consequential damage and claims for compensation of expenses. In the event that essential obligations under the contract should be neglected, liability shall be limited to such damage as is typical of the contract and is predicable. This shall not apply in cases where liability is mandatory, e.g. under the product liability statute, in cases of intent or gross negligence, or on the grounds of injury to life, body, or health. If delivery or performance is impossible and we are responsible for this, the contractor’s claim for damages shall be limited to a maximum of 10% of the value of that part of the delivery which cannot be put to appropriate use as a result of such impossibility. The right to cancel the contract shall remain unaffected.
6. Performance of Installation:
If we undertake to perform installation work (flooring), we shall assume that the substrate will permit immediate installation of the goods delivered and that site measurements specified to us are correct. Any costs resulting from defects in the substrate shall be at the expense of the principal. Special treatment of the substrate and measurement of rooms shall only be performed by us if such services are part of the contract and expressly mentioned in our order confirmation. All and any extra services shall be separately charged by us. Additional costs due to incorrect specification of site measurements or of dates on the part of the principal shall be at his expense. On completion of special measures as well as on completion of the installation work, the principal shall have to confirm to the installer in charge that the work performed and the measurements of the finished surface laid are correct. The provisions of the German Standard Building Contract Terms [VOB], Part B and Part C, shall be applicable unless the contractor is a consumer pursuant to § 13 of the German Civil Code [BGB]. Site measurements shall be calculated including thresholds and recesses according to dimensions in unfinished state. Mouldings and expansion gaps shall not be deducted. Areas that are to be left uninstalled, such as the bases of pillars, chimneys, etc., with a surface up to 0.5 m2, shall not be deducted either.
7. Reservation of Title
All and any goods delivered (goods under reservation) shall remain our property until the purchase price and all other claims due to us as a result of the business relationship have been fully paid. Pledging or transfer or ownership by way of security shall not be admissible without our consent. Any processing of goods under reservation shall take place on our behalf, free of charge, and without any obligation to regard us as Manufacturer within the meaning of § 950. The purchaser shall assign to us co-title in the new goods in the proportion of the invoiced value of the goods under reservation to the other goods processed as at the time of processing. All and any new goods resulting from such processing shall be deemed goods under reservation. If the goods delivered are combined with a movable item of goods in such a way that they become an essential component of another item of goods that is to be regarded as the main item, the purchaser shall hereby assign to us co-title in the new item on a quota basis. In such case he shall hereby assign to us all and any claims for remuneration that may arise against any third party, together with all subsidiary rights, in the amount of the value of the goods under reservation, and he shall authorise us to collect such claims, with the proviso of revocation. We do hereby accept such anticipatory assignment and authorisation. The purchaser shall be permitted to resell and process such goods as set forth hereinabove only in the ordinary course of business, and only on condition that said claims do in fact devolve upon us. This shall include that the purchaser receives payment from his customer or makes the reservation that ownership shall not go to his customer before the same has fulfilled his obligations in terms of payment. The purchaser shall agree so with his sub-purchaser. In the event of attachment, seizure, or any other action or intervention by a third party, the purchaser shall have to notify us immediately and completely. In the event that the purchaser falls behind with payments, we shall be entitled, without fixing another deadline, to terminate the purchaser’s right of title by unilateral declaration and claim return of the unprocessed material. All and any of the purchaser’s rights mentioned herein shall lapse in the event of discontinuation of payments and / or institution of insolvency proceedings. This shall not apply to the rights of the trustee in insolvency. The assertion of the reservation of title through us shall require no cancellation, whereas the purchaser shall be obligated to promptly grant us any access so that we may make appropriate establishments and dispose of the goods under reservation. If the value of the securities granted exceeds our claims, possibly reduced by down payments or instalments, by more than 20%, we shall be obligated to reassign title or release goods in the same measure, whichever we may chose. On settlement of all our claims arising from the business relationship, ownership of the goods under reservation and all and any claims assigned to us shall devolve on the purchaser.
8. Conditions of Payment:
Our invoices shall be issued under the date of shipment of goods or, in the case of orders for installation, upon completion of the work. Unless otherwise agreed, they shall be due for payment without any deduction within 30 days. Any claims or performance in part shall be invoiced separately and shall each be payable individually, independently of the total scope of delivery or performance. Payments made on account shall be set against part deliveries according to the order in which such deliveries shall be made. If any payments are deferred or received after maturity, we shall be entitled to charge interest as from the date of maturity in the amount of loan costs incurred by us. Otherwise the legal provisions pursuant to §§ 286 ff of the German Civil Code [BGB] shall apply in the event of any default in payment. Any further claims shall remain unaffected. A right to set off shall only exist in the event of undisputed claims or for claims that have been conclusively determined by a court. In cases of justified deficiency claims, retention of payments shall only be admissible to such an extent as shall represent a reasonable relation to the actual defect of quality. Our sales representatives and agents shall not be entitled to collect bills unless they produce our written authorization to collect debts.
9. Data Protection:
We shall be entitled, within the limits allowed by the German Data Protection Act, to process any information concerning the contractor with regard to or in connection with the business relationship, no matter whether such data have been received from the contractor himself or from any third party.
10. Place of Performance – Place of Jurisdiction – Applicable Law:
83071 Stephanskirchen shall be the place of performance and jurisdiction regarding deliveries and payments (including legal action based on dishonoured cheques or bills of exchange) as well as all and any disputes that may arise between the parties hereto, if the contractor is a merchant or a legal entity under public law, or if he represents special funds under public law. We shall, however, also be entitled to sue the purchaser at his registered domicile. The relations between the contracting parties shall be governed only and entirely by the law applicable in the Federal Republic of Germany, exclusive of the UN law on sales.
11. Final Provisions:
Should any of the provisions herein be found to violate any statutory prohibition(s) or to be invalid for any other reason(s), this shall not affect the validity of the other provisions. In lieu of such invalid provisions, if any, it shall be deemed agreed what would have been closest to the economic interest and to the presumed will of the contracting parties in accordance with the other terms and conditions of business. The same shall apply in the event of any gap(s) herein. The contracting parties shall undertake to make a serious effort to contribute to the completion of substitute provisions to such effect.