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General Terms and Conditions

Terms and Conditions for Delivery and Payment

1. General provisions, deviating provisions

The following Terms and Conditions shall apply to any order. In any event, the acceptance of our delivery by our Customer shall constitute an acknowledgement that they are exclusively binding. We shall only be bound by provisions deviating from the present Terms and Conditions if we have expressly acknowledged them. Third parties can only derive claims from the contractual relationship between us and the Customer if this is expressly agreed or arises from mandatory statutory provisions. The present General Terms and Conditions shall apply exclusively to the contract; other terms and conditions, e.g. conflicting terms and conditions of our Customer shall not become part of the contract; they are hereby expressly rejected. We shall be entitled to assign the claims arising from our business relationship. A conflicting non-assignment clause is hereby expressly rejected.

2. Quotations and conclusion of contracts

Quotations shall be subject to change, unless they expressly have a fixed term. Orders must be confirmed by us in writing in order to be legally valid. Invoices or computer printouts that we have indicated as binding shall also be regarded as a written order confirmation.

Drafts of written agreements, telephone or oral agreements and agreements with our representatives shall only become legally valid when they have been confirmed by us in writing.

3. Prices

Our prices shall be in euros ex works and shall not include VAT. We reserve the right to charge the current prices at the time of the delivery in the event of an increase in the production costs. Special packaging shall be invoiced at cost.

4. Deliveries

The place of performance is the plant in which the contractual goods have been completed. At the request of the Customer, the goods can be shipped. The risk of deterioration or loss shall be transferred to the Customer as soon as we have handed over the goods to the company specified for shipping the goods. If the Customer is a consumer in terms of Section 13 German Civil Code (BGB), Section 475 (2) BGB shall apply with respect to the transfer of risk. The shipping costs shall be borne by the Customer. If the Customer issues special instructions regarding the type of shipping, they shall bear the additional costs.

Unless exclusively binding delivery periods are agreed, our information regarding delivery periods shall be non-binding. Call-off orders and split deliveries require written agreements of delivery periods in any event. Part deliveries – insofar as they are reasonable for the Customer – shall be permissible and shall be regarded as independent transactions. The quantities to be delivered can be exceeded or undercut by up to 10%. In the case of small orders, we reserve the right to charge for a minimum quantity or a minimum lump sum for costs.

In the case of call-off orders, we shall be entitled to procure the material for the entire order and to produce the whole order quantity immediately. Any change requests on the part of the Customer can therefore no longer be taken into consideration after the order has been placed, unless this has been expressly agreed.

The registration of bankruptcy or composition proceedings, the submission of an affidavit in accordance with Section 807 German Code of Civil Procedure (ZPO), the emergence of a significant deterioration in the financial circumstances, other payment difficulties and a default in payment on the part of the Customer shall entitle us to stop our deliveries immediately, to refuse to fulfil current contracts and to demand, by way of security, the surrender of the goods subject to our reservation of title and an advance payment for deliveries that are still outstanding. Outstanding receivables shall be due for immediate payment in these cases. Return shipments must be agreed with us in advance in each case.

Events of force majeure and other circumstances for which we are not responsible and which make it impossible to execute the accepted orders on schedule shall entitle us to withdraw from the contract, precluding any claims for compensation on the part of the Customer, or to postpone the delivery by the duration of the hindrance.

A claim for compensation on account of a delay or non-performance or a right to withdraw from the contract shall be conditional upon the Customer setting us a reasonable grace period of at least three weeks and this grace period expiring fruitlessly. We shall only be liable for compensation if we or our employees are guilty of wilful intent or gross negligence.

5. Tools and equipment

Tools and equipment that are produced by us or by third parties on our behalf shall in each case be our property, even if the production costs are borne by our Customer in full or in part.

6. Securities

The delivered goods shall remain our property until all the receivables arising from the business relationship with us have been paid in full and until the bills of exchanged and cheques provided for this have been cashed.

Until further notice, the Customer shall be entitled, in the course of their ordinary business operations, to process our goods or to mix or combine them with other goods. The reserved goods shall be processed for us as conditional sellers. In the event that they are processed with other items, we, as the manufacturer, shall acquire (joint) ownership according to the ratio of the value of our reserved goods to that of the other processed items. In the event that the goods are mixed or combined with other items, we shall acquire

(joint) ownership according to the ratio of the value of our reserved goods to that of the new uniform item.

The Customer shall keep the items that are subject to our (joint) ownership safe for us free of charge with the care of a prudent businessman and shall insure them against fire and theft.

Until further notice, the Customer may, in the course of their ordinary business operations, sell the goods delivered subject to a reservation of title or the items produced from these. As security for our receivables, the Customer hereby assigns to us the receivables resulting from the sale to an extent corresponding to our (joint) ownership share of the sold item. We hereby accept the assignment. If a current account relationship in accordance with Section 355 HGB exists between us and the Customer, the advance assignment shall also relate to the acknowledged balance.

The Customer shall be entitled to collect the assigned receivables as long as we have not revoked this authorisation. We shall only revoke the right to resell the goods and to collect the receivables if the Customer does not fulfil their contractual obligations properly. It shall lapse without being expressly revoked if our Customer does not inform us immediately in writing of as to whom they have sold the goods and to which receivables they are entitled from the sale. They must, at their own expense, issue us with publicly authenticated documents regarding the assignment of the receivable. A withdrawal from the contract is not necessary in order to assert the reservation of title, unless the Customer is a consumer. If our securities in accordance with the above paragraphs exceed our receivables by more than 20%, we shall release securities at our discretion at the request of our Customer.

The Customer may, as long as our reservation of title exists, neither transfer the reserved goods or the items produced from them by way of security nor pledge them. If the aforementioned items are pledged by the Customer or confiscated, the Customer must inform us of this immediately.

We shall be entitled the Customer’s claims against all the counter-claims to which we are entitled against the Customer.

7. Payments

Unless otherwise agreed, payments shall be due, net, within 14 days of the invoice date. We have no obligation to accept bills of exchange, cheques and other promises of payment; they shall always be accepted on account of performance. An agreed cash discount shall only be granted subject to the condition that all the payment obligations arising from earlier deliveries are fulfilled.

If receivables are assigned to a third party (e.g. BFS finance GmbH, Verl,), we shall notify the Buyer of this immediately in writing. In these cases, payments can only be made with a debt-discharging effect to the third parties named by us. The third party shall be named with their bank details on the invoice to the Customer. In the event of deadlines being exceeded, we shall charge default interest in accordance with the statutory provisions for default interest (Section 288 BGB in its valid version). The Customer shall, however, be entitled to provide evidence that no or less damage has been incurred. The Customer shall only be entitled to offset or retain payments if its counter-claim is undisputed or has been legally established.

8. Property rights

We shall only be liable for infringements of property rights to the extent that property rights that are valid in the Federal Republic of Germany and are published at the time of the delivery are infringed during the contractual use of our goods. If we have delivered goods in accordance with drawings, models, designs or other documents provided by the Customer, the Customer shall give its assurance that third-party property rights are not infringed. If a third party claims, in such a case, that we are infringing a property right, for example through the production or delivery of the goods, we shall be entitled to stop our activities without closer examination, subject to our other rights. The Customer undertakes to inform us immediately of risks of an infringement that become known and alleged cases of an infringement.

9. Warranty and liability

a) Complaints on account of a defective and incomplete delivery must be asserted in writing immediately, within two weeks after the receipt of the goods at the latest, but in any case before the installation, the further processing or the resale, with a precise description of the defects. Complaints on account of hidden defects must be asserted in writing immediately, within two weeks after their discovery at the latest, with a precise description of the defects.

b) We shall only provide a warranty for deliveries and services in accordance with the following provisions:

(aa) We shall pay for major defects through rectification, replacement delivery or credit note, at our discretion, whereby we can freely dispose of the goods that have been complained about in each case. The Customer shall only have a right to a rescission of the contract or a reduction of the purchase price if the rectification or replacement delivery cannot take place or have failed. In the absence of guaranteed properties, the statutory provisions shall apply, whereby our liability shall, however, be limited to the damage against which our warranty was intended to protect the Customer. Further-reaching claims shall be excluded, unless we are guilty of wilful intent or gross negligence.

(bb) Our information about the item delivered or service provided or about the intended use (e.g. dimensions, weight, hardness, utility values) shall only be descriptions or indicators; they are only guideline values. Properties shall only be deemed to be guaranteed if they are expressly referred to as such in writing in the individual case and – in the event of a purchase according to a model – are properties of the approved model.

Minor deviations from models or from earlier deliveries or from other information shall not justify any claims of the Customer, unless they significantly impair the contractually assumed functionality. The goods are subject to customary variations (e.g. in quality, colour, thickness, weight, finish or design), unless otherwise agreed.

(cc) Unless expressly agreed otherwise, statutory warranty and limitation periods shall apply.

c) Irrespective of other limitations of liability in the present Terms and Conditions, we shall only be liable for all kinds of claims for compensation, in particular also arising from culpa in contrahendo, a positive breach of contract and tort (Section 823 ff. BGB), to the extent that we, our employees or vicarious agents are guilty of wilful intent or gross negligence and this does not unreasonably disadvantage the Customer in terms of Section 307 BGB. This shall not apply in the event of damages due to the loss of life, physical injury or damage to the health of a person. In other respects, our liability shall be limited to the typical damage that can be foreseen in accordance with the purpose of the contract. We can demand that the nature, scope and duration of the business relationship and the unit value of our goods are appropriately taken into consideration in good faith. The liability provision shall also apply to our spoken and written advice and to the performance of trials. The Customer is in particular not released from checking the suitability of our goods for their intended purpose.

d) Our liability for personal injury and material damages in accordance with the provisions of the German Product Liability Act shall remain unaffected.

e) The provisions of Section 9 a), b) (aa) and c) shall not apply to contracts with consumers.

10. Data processing

We are assuming that we are allowed to store and analyse order-related information and data in electronically administered files for the rational design of the internal procedures. Within the framework of our contractual relationship, information and data shall also be exchanged electronically to make order processing easier and faster. It is known that data that is sent over the internet is not reliably protected against third-party access, gets lost, is transmitted with a delay or can be infected by viruses. Agreements regarding encryption techniques and similar shall be agreed separately when expressly requested. Without the framework of our general business activities and the provision of services in the contractual relationship, we implement the provisions of the European General Data Protection Regulation (GDPR) and other legal requirements regarding the protection of personal data. For details, we refer you to the data policy on our website, which you can view at [www.hufa.de]. Our order confirmations and invoices are created electronically (Section 26 German Federal Data Protection Act).

11. Applicable law

The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods and other bilateral and international agreements on the standardisation of sales law.

12. Place of jurisdiction

The place of jurisdiction for all claims arising from the business relationship shall be Cologne if the Customer is a registered trader or has no place of jurisdiction of their own in Germany or has moved their domicile or usual place of residence to a place outside the Federal Republic of Germany or if the Customer’s domicile or usual place of residence is unknown at the time of the action being brought. We shall also be entitled to avail ourselves of the assistance of any other competent court.

Burscheid, 30 May 2022

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  • Hugo Fassbender Dichtungsgesellschaft mbH
    Linde 13
    51399 Burscheid

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