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Terms & Conditions

General Business Terms and Conditions (PDF)
Terms and Conditions of Purchase (PDF)

General Business Terms and Conditions

I. Validity, defence clause, ownership/copyright and secrecy

1. All deliveries and services of the Peter Huber Kältemaschinenbau AG (supplier) shall be exclusively subjected to these general business terms and conditions (conditions) and any possible special contractual agreements. Other conditions (such as purchasing etc.) of the buyer shall not become a part of the contract, even if not specifically rejected in the order confirmation.

 

2. These conditions shall also be valid for all future contractual relations between the buyer and supplier, even if not explicitly agreed.

 

3. Even in the event of a lack of a special agreement, a contract is established between the supplier and the buyer with the written order confirmation of the supplier. The quantity of the delivery or services is exclusively determined by the written order confirmation of the supplier.

 

4. The supplier reserves all owner rights and copyright to all prototypes, drawings, models, tools, cost estimates as well as to all information, physical and non physical (also in electronic form). Information shall not be given or made available to any third party without prior permission of the supplier. In the event of an order not being requested, then the information must be immediately returned to the supplier by the buyer on request.

 

5. The parties to the contract shall undertake that all non evident business or technical details, known of through the business relationship be classed as confidential. If it becomes known to either of the parties that any confidential information has reached an unauthorised third party, or any confidential documentation has been lost, then he must immediately instruct the other party to the contract in this connection. The supplier explicitly reserves himself the right to take legal action (civil or, if need be, criminal) in the event of a breach of the confidentiality , business secrecy or similar obligations.

 

 

II. Prices and charging

1. Unless otherwise agreed, the price is ex works, not including packing, transport, insurance, customs costs and other various incidental expenses accruing. In addition to the price, the sales tax must be added at the appropriate legally valid rate.

 

2. The buyer's right to withhold payment or to charge up a counterclaim, is only possible when a counterclaim is not disputed or is legally binding.

 

 

 

III. Retention of ownership and obligation to deliver when payment is delayed

1. The goods remain the property of the supplier (title is retained) until the fulfilment of all outstanding financial claims against the buyer.

 

2. The buyer may offer the (title retained) goods within the framework of normal business, he cedes, however, already at this stage all claims resulting from this to the supplier up to the indebted sum, in order to secure payment claims of the supplier ( including VAT ). The supplier acknowledges this. This cessation is independent of whether the goods remaining the property of the supplier (title retained) have been sold before or after treatment. The buyer retains the right to the claim even after the cessation. The authority of the supplier, to make the claim himself, is not affected. The supplier will not, however, make this claim, as long as the buyer fulfils his legal obligation to pay from the incoming revenues, and is not in delay of payment, and no application to open insolvency proceedings has been filed.

 

3. Otherwise, the buyer may not mortgage, nor use the goods for security. In case of mortgage, confiscation or other uses or forms of intervention by a third party, the buyer must immediately notify the supplier.

 

4. Owing to the reservation of property rights, the supplier can only demand the goods returned when he has withdrawn from the contract.

 

5. An application to open insolvency proceedings gives the supplier the right to withdraw from the contract and to demand the immediate return of the delivered goods.

 

6. Behaviour of the buyer in breech of the contract, particularly in case of payment delays, allows the supplier, after a warning, the right to demand that the buyer return the goods immediately.

 

 

 

IV. Delivery times and delivery delays

1. The delivery time is calculated under the agreement of the contractual parties. Compliance on the part of the supplier is under the condition that all business and technical questions between the contracted parties are explained, and that the buyer has fulfilled all his obligations (such as transferring various information, permissions and plan releases to the supplier, keeping to agreed payment conditions etc) within the allotted time. If this is not the case, then the delivery time is extended appropriately.

 

2. The keeping of the delivery time is under the condition of correct, defect free and punctual delivery by parts suppliers. If delays are apparent, then the supplier is to inform this as soon as possible.

 

3. The delivery time is when items for delivery, have left the suppliers works or are ready for pick-up.

 

4. Partial delivery is allowed, as far as it is reasonable for the buyer.

 

5. Any article offered is subject to its being unsold.

 

6. If non adherence to the delivery time is due to force majeure, industrial dispute, or other occurrences that lie outside the influence of the supplier, the delivery time may be appropriately extended. The same is valid in the case of late, defective or incorrect delivery by suppliers, or in case of a reasonable delay requested by the buyer.

 

7. If the shipping of goods for delivery is delayed due to representations by the buyer, then the additional costs incurred will be calculated starting one week after the goods are available for shipping.

 

8.1 If the buyer, under consideration of the legal exceptions sets a reasonable delivery deadline to the supplier, and the deadline has not been complied with, then the buyer, within the framework of the legal regulations, is authorised to rescind from the contract. He undertakes, when requested by the supplier, to state if he will make use of the right to rescind, within a reasonable deadline.

 

8.2 Further claims by the buyer (Damages etc) due to late delivery shall be excluded, unless it is a case regulated under section IX (Liability exclusion).

 

 

 

V. Transport and passing of risk

1. The order for the transport of the goods must be placed by the buyer.

 

2. The risk is passed to the buyer as soon as the items to be delivered have left the factory. This is also valid for partial deliveries or when the supplier is contracted to perform other work (e.g. delivery, assembly and installation).

 

3. If the delivery is delayed, or omitted due to circumstances outwith the control of the supplier or because the buyer has so requested, then the risk passes to the buyer from the day the buyer is notified that the goods are ready for collection. This is also true for any default of acceptance of the goods by the buyer due to other reasons.

 

 

 

VI. Trials

If goods are supplied for testing, then it is classed as being bought by the buyer, if it is not returned within the agreed return time frame. If no return time has been agreed, this is to be taken as 4 weeks. The date of the invoice is decisive. In case of return, the buyer bears the cost of transport, checking and any other costs incurred by the supplier (Cleaning, servicing, repairs etc).

 

 

 

VII. Installation

1. The buyer is obliged to ensure at his cost, that the required conditions for correct installation of the delivered goods are provided at his facility.

 

2. The costs for installation are based on the rates quoted by the supplier, which is also a part of the contract, and must always be included with the contract confirmation, or may be seen at any time by the buyer, even before the contract is concluded.

 

3. If the Installation and mounting is delayed due to circumstances not under the control of the supplier, then the buyer, must carry the required extra costs (waiting, travel costs etc), on the basis of the agreed rates.

 

 

 

VIII. Liability for defects

The supplier is liable for material defects and deficiencies in title of the delivery, under exception from further liability – subject to section IX ( Liability exclusion) - as follows:

 

 

1. Material defects:

1.1 Notification of defects by the buyer must be done in writing without delay. Thereby the buyer must give to the supplier all relevant information concerning possible fault symptoms, error messages, incorrect functions and other documentation such as information concerning the application, machine serial number etc.

 

1.2 The buyer can only withhold payment when a notification of defect has been proved and of which there can be no doubt. The buyer has no right to withhold payment when the liability for defects is prescribed. If the defect notification is wrong, then the supplier is empowered to demand payment for the work involved. (see also section 1.6).

 

1.3 All the affected parts and services are, at the choice of the supplier, to be repaired, replaced correctly, or refitted free of charge, as long as the cause lies within time of passing of risk. Replaced parts are the property of the supplier.

 

1.4 To undertake all the supplier apparently necessary rectifications of defects and replacements, the buyer should, after an agreement with the supplier, give the supplier all the required information (section 1.1), time and opportunity required resolve the problem. If the buyer is not given adequate opportunity then the supplier is freed from liability and its consequences.

 

1.5 If at all, and in so far as the complaint is justified, of the direct costs incurred for the rectification of defects or replacement, the supplier carries only the costs of the replacement part (and if applicable, inland transport costs).

 

1.6 If however the complaint turns out to be unfounded, or is a case concerning section 1.10, the buyer carries all the costs incurred by the supplier.

 

1.7.1 The place of supplementary performance (improvement) is exclusively decided by the supplier. Normally, the repairs take place at the registered office of the supplier, or at another place deemed suitable by the supplier.

 

1.7.2 The buyer must deliver the goods to the supplier at the place named in section 1.7.1 in an orderly manner, and at his own cost (transport etc) and risk. In particular, all external products, accessories, additional products, programs, data, and storage media that are not a part of the delivered goods must be removed before shipping. The supplier hereby bears no responsibility for anything not removed by the buyer, or that was damaged before arrival at the supplier. Also, the goods to be delivered must be prepared for shipping in an orderly way (cleaned, fully emptied, transport locks activated etc), and suitably packed. The buyer, as shipper, is obliged to fully remove without residues, any dangerous or poisonous products, or products otherwise dangerous to health with which the machine has been in contact, so that there is no danger to the buyer as receiver.

 

1.8.1 The buyer has the right under the legal regulations to rescind from the contract, when the supplier, under consideration of the legal exceptions, has given a reasonable date for rectification of defects or replacement due to a material defect, which has now elapsed without success. If it is only a minor material defect, then the buyer has the right of abatement in the contract price.

 

1.8.2 The right of abatement of the contract price is otherwise excluded.

 

1.9 Further demands (damages etc) from the buyer are excluded (exempt from section IX. (Liability exclusion)).

 

1.10 Especially in the following cases, there can be no liability for defects:

 

1.10.1 Minor variations from the agreed appearance and workmanship, or only minor impairments to usability; also unsuitable, incorrect, excessive and other non intended use of the delivered goods; Unsuitable or faulty installation or commissioning by the buyer, or any third party; natural wear and tear, faulty or careless handling, incorrect servicing, unsuitable operating materials (such as non allowed thermal fluids), bad building work, unsuitable foundation, chemical, electrochemical, electrical, thermal and other effects that cause interference to the correct operation of the delivered goods, due to special external influences which were not foreseen in the contract and non-reproducible software errors.

 

1.10.2 The seller is not liable for any problems resulting from any inappropriate rectification of defects made by the purchaser or any third party. The seller is also not responsible for any alterations to equipment which have not been authorised in writing in advance.

 

1.10.3 Repairs which have not been authorised in writing by the supplier, outsourced work and modifications of any kind, non intended use, the changing or removal or manipulation of the machine label or the serial number. All rule out supplier liability for defects.

 

1.10.4 The supplier is not under any circumstances liable for damages to the buyer or end customer caused by the non availability of parts or through production stoppage (e.g. due to late parts deliveries).

 

1.11 The demand of the buyer for supplementary performance (improvement) becomes prescribed 12 months after the legal start of the beginning of limitation of claim; the same applies the above mentioned rescission and abatement. In addition, section X. ( statute of limitation).

 

 

 

2. Deficiencies in title: protection and copyright of third parties

2.1 If the use of the delivered goods leads to infringement of business protection rights or copyright of a third party in inland, the supplier will make available to the buyer, at his own cost, the right of further use, or modify the delivered goods in a way reasonable for the buyer, such that the copyright infringement is no longer present. If this is not possible under economically reasonable conditions or within a reasonable time, the buyer is authorised to rescind from the contract. Under the stated conditions, the supplier also has a right of rescission.

 

2.2 The above named supplier obligations in section 2.1 are subject to section IX. ( Liability exclusion) for concluding the case for protection or copyright infringement. They are only operative when the buyer informs the supplier immediately in writing about the claim concerning protection or copyright infringement, he supports the supplier in an appropriate way for defending the requirements claimed or enables the supplier to carry out modification operations according to section 2.1 above, he reserves the supplier all defensive measures including any out of court settlement, the buyer does not acknowledge the deficiency in title is not based on instructions from the supplier and the infringement is also not due to the buyer having modified the delivered goods independently or used the goods in a way not according in the contract.

 

 

 

IX. Liability exclusion

1. The supplier is exclusively liable for defects which have not occurred on the delivery item itself, – irrespective of the legal basis – when this defect has occurred

 

1.1 By intention,

 

1.2 By gross negligence of the owner/ his organs or leading employees,

 

1.3 By culpable injury to life, body or health,

 

1.4 By defects which were fraudulently hidden.

 

In the event of a culpable infringement of major contractual obligations, the supplier is also responsible for gross negligence of non leading employees and also for slight negligence. In this latter case, this is limited to the damage that is typical for the contract and reasonably foreseeable damage.

 

2. Any further claims are expressly excluded.

 

 

 

X. Statute of limitation

1. All claims of the buyer – irrespective of the legal basis – become prescribed in 12 months.

 

2. For all claims for damages according to section IX. 1.1 – 1.4 the statutory deadlines apply.

 

 

 

XI. Software usage

1. As far as the delivery contains software, the buyer is granted a non exclusive right to use the software and its documentation. It is given for use on the suitable delivery item. A use of the software on more than one system is prohibited.

 

2. The buyer may copy the software only within the legally allowed quantities. He may not re-work, translate or convert from the object code to the source code. The buyer is obliged not to remove or to change manufacturers' markings (e.g. copyright notices) without the previous explicit permission of the supplier.

 

3. All other rights to the software and the documentation including the copies remain with the supplier or the software supplier. The granting of sub-licences is not allowed.

 

 

 

XII. Returns according to the (German) electrical and electronic equipment regulation (Elektro- und Elektronikgerätegesetzt (ElektroG))

1. The sale price excludes the cost for return and disposal of old equipment. The buyer is considered to be different than private households in the sense of this regulation (ElektroG).

 

2. If required, the supplier can organise the return and recycling or disposal of such equipment as is distributed by the supplier, on payment of all charges so arising.

 

 

 

XIII. Contract changes, Legal jurisdiction Offenburg, Contract language, choice of law and severability clause

1. For unforeseeable occurrences which lie outside the influence for the supplier, (e.g. section IV. 6.), which largely change the business meaning or the contents of the delivery, or have a large influence on the business of the supplier, the contract would be adjusted paying attention to the principle of equity and good faith ; where it is not commercially presentable, the supplier has the right of rescission from the contract.

 

2. In the event of a dispute between the supplier and the buyer, the legal jurisdiction is agreed as D77656 Offenburg. The supplier has simultaneously the right to bring action at the head office of the buyer.

 

3. The language of this contract is German. In the event of the parties of the contract use another language as well and in the event of a conflict the German wording shall take precedence.

 

4. All legal relationships between the supplier and the buyer shall be governed by the law of the Federal Republic of Germany applicable to domestic legal relationships, under exclusion of the United Nations Convention on Contracts for the International Sale of Goods.

 

5. If a clause in these conditions is invalid, it does not change the validity of the other clauses. If a clause is partially invalid, then the other parts of the clause remain valid. The parties shall replace the invalid clause with a valid replacement clause, which comes as close as possible to the economic purpose of the invalid clause.

 

 

Terms and Conditions of Purchase

1.0  Conclusion of contract, secrecy, order change

1.1  We order on the basis of our terms and conditions of purchase. Other terms and conditions shall not form a part of the contract, even when we have not expressly disagreed with them.  If we accept the delivery or services without expressed disagreement, it cannot, under any conditions, be assumed that we have accepted your delivery terms and conditions. These terms and conditions of purchase are valid for all future contractual contacts with you, even if never expressly so agreed.

 

1.2  Our order is to be confirmed by you in writing within 10 days. After expiry of this period, we shall no longer be bound by the order.

 

1.3  Only written orders are legally binding. Only the contents of our written order are valid. For their legal validity, oral orders given by mouth or telephone must be subsequently confirmed in writing. The same also applies to subsidiary agreements or changes in the contract made verbally. Orders, the calling up of deliveries as well as changes and additions can be made via data transmission or mechanically readable data medium after prior written agreement.

 

1.4  The conclusion of the contract is to be kept confidential. You may only mention any business connections between us in advertising material after we have given written authorisation to do so.

 

1.5  Examples, drawings, models, tools and the like, made available for use are our property. We reserve all copyright in this respect. They are to be returned without being requested, and without charges, as soon as no longer required to carry out the order. They may not be used for any other purpose, nor may they be duplicated or made available to a third party without our written permission. Products made according to our specifications or documentation or made with our tools, may not, without our written authorisation, be used by the supplier or by any third party.

 

1.6  The parties to this contract commit themselves to treat all non public business or technical details that become known through the business connection, as a business secret. In particular, the supplier is under the obligation that the knowledge and experience obtained in carrying out our order, is solely used for carrying out the orders from our company, and not to bring to the attention of third parties. Sub suppliers are also bound by this obligation accordingly. If it becomes known to one of the parties to the contract that information which should be kept secret is obtained by an unauthorised third party, or that documentation which should remain secret has become lost, then this information must be immediately disclosed to the other party to the contract. We reserve the right of civil and, if necessary, criminal proceedings, if offences against confidentiality, secrecy and similar obligations take place.

 

1.7  We can request changes and corrections concerning the scope of services and in modality, in particular those that are required by us on technical grounds, or approved by us, even after the conclusion of the contract, as long as this is reasonable for you. If such changes and corrections are carried out by you without appreciable costs, then these are included in the price (see 2.1 below). Otherwise, changes and additions to the order or service, as long as it is connected with the article contracted, and is requested by us, should be carried out under the same price basis and conditions, as long as no appreciable change in the order or market requiring new prices, has taken place. If such additional orders or changes enable a price reduction, then we have claim to that. The delivery date is to be newly agreed in such cases.

 

1.8  The customary business clauses are to be laid out according to the respective valid Incoterms.

 

 

 

2.0  Price, shipping and packaging

2.1  The agreed prices are fixed prices, with free delivery. They exclude additional demands of any kind. Costs for packaging, insurance and transport to an address specified by us, or to a place of use, as well as customs formalities and duties are contained in these prices. Due to the way the price is set, the agreement concerning the place of delivery is not affected.

 

2.2  Every delivery has to be notified as soon as it is carried out with a delivery note. This shall be structured according to type, quantity and weight. Delivery notes, shipping notes, bills and other correspondence shall all contain our order number.

 

2.3  We will only take the quantities ordered by us. Over or under delivery are only accepted after prior discussion and agreement.

 

2.4  The delivery takes place entirely at your risk. The risk of any degradation, including accidental destruction remains with you until delivery at the place requested or place of use specified by us.  If, in individual cases, delivery at the place of production has been agreed, you are under an obligation to use the form of delivery specified by us, or otherwise to ensure the cheapest freight and correct declaration. In this case you are also responsible for any damage resulting from transport.

 

2.5  Your obligation to take back the packaging is determined by the statutory regulations. The goods are to be packaged so as to avoid any damage resulting from transport. Only sufficient packaging material for this requirement should be used. Only environmentally friendly packaging material should be used. If, as an exception, packaging is billed separately, we have the right to return this packaging, if in good condition, carriage paid, for the payment of 2/3 of the billed amount.

 

 

 

3.0  Billing and payment

3.1  Bills should be sent separately for each order in duplicate, with all associated documentation and data, after the successful delivery, in the correct form. All incorrect bills received are only valid from the time they are correctly received by us.

 

3.2  Payment takes place via the usual business channels, and, provided nothing else has been agreed, either within 14 calendar days with a discount of 3%, or after 30 calendar days, purely net price, calculated according to delivery/performance and receipt of bill. Our payment neither entails an acknowledgement of correct fulfilment nor a waiver of your liability for any shortcomings.

 

3.3  As far as agreements have been made concerning certification of material testing, this is an appreciable part of the delivery, and is to be delivered, together with the bill. At the latest, this should be with us within 10 calendar days of receipt of the bill.

 

3.4  With faulty delivery, we are entitled to withhold a percentage value of the payment until the delivery is correctly fulfilled. Otherwise, the rights of set-off and the rights of retention are retained in full.

 

3.5  The cessation of outstanding debts against us is only possible with our written agreement.

 

3.6  In case of advance payments, you are required, if so requested, to give a reasonable security, e.g. a bank guarantee.

 

 

 

4.0  Delivery times, delivery delays

4.1  The agreed delivery dates are binding. Decisive for the adherence to the delivery date or delivery time is the receipt of the goods, in the agreed quantity and quality at the by us named place of receipt or place of use. The delivered goods, particularly with a blanket order, should be held in an orderly storage which can be called up by us at any time.

 

4.2  If it becomes known to you that the agreed date cannot be met for some reason, you are under an obligation to immediately notify us, giving the grounds and the prospective length of the delay.

 

4.3  In case of delayed delivery, we enjoy statutory claims.

 

4.4  In case of early delivery, we reserve ourselves the right to return the goods at your expense. If an early delivery is complete, and no return is made, we will store the goods until the delivery date at your expense and risk. In the case of an early delivery, we reserve the right that payment can be made on the date initially agreed upon.

 

4.5  Part deliveries are only accepted after our express agreement. With these agreed part deliveries, the rest should follow at the given delivery completion date.

 

 

 

5.0  Liability for defects

5.1  Defects in the delivered goods, as far as examination and discovery which take place within the normal course of business, shall be claimed within 10 days after receiving the goods. Defects that are not apparent by such an examination will be claimed within 10 days of the discovery.

 

5.2  We reserve ourselves the legal right of liability claims against you. You guarantee us, within the statutory requirements, in particular against damage produced due to breach of contractual obligations. In case of supplementary performances, we have the exclusive right to choose between a removal of defects or a new replacement.

 

5.3  The statute of limitations concerning our claim and rights concerning defective goods or performance is 4 years, irrespective of legal grounds. This limitation is also valid for claims of other unrelated defects. This does not include longer legal statutes of limitations and regulations concerning start of limitation, suspension of the period of limitation, suspension and new beginning of time limits.

 

 

 

6.0  Product liability, insurance cover

6.1  You ensure as the first requirement, that we are not liable for any claims from a 3rd party, inclusive of any associated costs, for any product damage concerning the dominance and organisational area of the providers.

 

6.2  You will also reimburse costs arising from these grounds and/or also those caused by any precautionary return action started by us if necessary.

 

6.3  You are under an obligation to take out and maintain product liability insurance, including recall action risks for a reasonable sum to cover the contract items. You are required to show this policy at our request.

 

 

 

7.0  Property rights

7.1  You guarantee and assure that all deliveries are free from third party property rights. In particular that through the delivery and use of delivered goods, no patents, licences or other (trade mark / industrial etc.) property rights of a third party are infringed.

 

7.2  On first demand, you exempt us and our customers from any claims of a third party concerning any property rights infringements, and carry all costs that may accrue to us in this connection.

 

7.3  We are entitled to obtain permission to use the relevant delivered goods and service at your cost.

 

 

 

8.0  Retention of ownership

8.1  All parts and tools provided for use by us (reserved goods) remain our property. If modifications or processing is done, this takes place for us. If the reserved goods are processed using parts not belonging to us, we receive the co-ownership of the resultant new things, proportionate to the value of the parts delivered by us compared to the other parts at the time of the work taking place. The same occurs when the parts provided by us are inseparably mixed with things not owned by us. If after the mixing, the things of the supplier can be seen as the main part, then he is obliged to transfer a proportionate co-ownership. In any case, the supplier holds safe custody of our sole and/or co-ownership on our behalf.

 

8.2  All tools, parts and documentation (examples, drawings, models, tool plans and the like) received from us, may not be used nor given nor made available to a third party outside this contract without our written permission. After completion of the respective contracts, these must be returned to us without delay at your own cost.

 

 

 

9.0  Final clause

9.1  If individual parts of these terms and conditions of purchase become legally invalid, the validity of the rest of the terms and conditions are not affected.

 

9.2  You are not allowed to pass the contract, or essential parts of the contract on to a third party, without our prior written permission.

 

9.3  We will handle your personal data according to the German data protection act (Bundesdatenschutzgesetz), and expect the same on your part.

 

9.4  The place of performance and the exclusive legal jurisdiction for deliveries and payment (inclusive change and cheque disputes) as well as all disagreements between the parties concerning all completed contracts, so far as you are the merchant in the sense of the German commercial code (Handelsgesetzbuch), is D77656 Offenburg. We reserve ourselves the right to sue at any other permissible legal jurisdiction.

 

9.5  When you stop payment or are involved in insolvency proceedings concerning your assets or in judicial or extrajudicial legal composition proceedings etc., we are authorised to withdraw from the contract.

 

9.6  The language of this contract is German. As far as the contractual parties make use of another language as well and in the event of a conflict, the German wording shall take precedence.

 

9.7  All legal relationships between parties shall be governed by the law of the Federal Republic of Germany applicable to domestic legal relationships, under exclusion of the United Nations Convention on Contracts for the International Sale of Goods.

 
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