IX. Right of the customer to withdraw
- The customer may withdraw from the contract if complete performance by the supplier is becomes permanently impossible before the transfer of risks. The same applies to the supplier if the supplier is unable to perform before transfer of risk. Supplier may also withdraw or suspend performance if customer does not comply with its obligations. The customer may also withdraw from the contract if there is an order for goods of the same type, and the manufacture of a part of the delivery becomes impossible in terms of numbers, and the customer has a justified interest in refusing a part delivery. If this is not the case, then the customer can correspondingly reduce the counterperformance.
- If there is a delay in performance as per section IV of the conditions of delivery, and the customer grants the supplier, who is in arrears with delivery, a suitable extension period with the express declaration that at the end of this period he will refuse to accept performance, and the extension period is not complied with, then the customer is authorized to withdraw.
- If the impossibility occurs during a delay in acceptance or at the fault of the customer, then the latter is obliged to counter performance.
- Furthermore, the customer has the right to withdraw if the supplier lets an appropriate extension period allowed to him elapse without result; such a period may be allowed for correction or replacement delivery relating to a defect for which the supplier is responsible as per the conditions of delivery. The right of the customer to withdraw exists also in the case of impossibility or inability of the supplier to perform the correction or replacement delivery.
- As far as is legally permissible, all more extensive claims by the customer are excluded, especially for conversion, termination, or reduction, as well as compensation for damages of any type whatsoever, and indeed also such damage which does not occur to the goods supplied themselves.
X. Rightof the supplier to withdraw
In the case of unforeseen events as per section IV of the conditions of delivery, to the extent that they significantly change financial intent or the content of the performance, or significantly affect the supplier's business, and in the case of subsequently resulting impossibility of execution, the contract is adapted accordingly. If this cannot be financially justified, the supplier has the right to withdraw wholly or partly from the contract. The customer has no right to a claim for damages as a result of such a withdrawal. If the supplier wishes to avail of the right to withdraw, then when he recognizes the scope of the event, he must inform the customer immediately and indeed also if an extension to the delivery period had initially been agreed with the customer.
XI. Place of jurisdiction
For all disputes arising from the contract, if the customer is a registered trader, a legal person of public law, or a separate estate of public law, Altenkirchen, Germany is agreed to be the place of jurisdiction. The supplier is also entitled to file a suit at the customer's head office.
XII. Final provisions
The invalidity of individual provisions of these general terms of business or of the contractual relationship which is based upon them does not affect the effectiveness of the provisions or of the respective contractual relationship as a whole.
Customer agrees to comply with all applicable laws and regulations in the EU and the US, including all export-related and anti-corruption-related laws.
In place of the ineffective provision, or to fill a loophole, an appropriate arrangement is deemed to be agreed. This approaches as closely as possible to what was intended when defining the provisions or entering the contractual relationship, or to what would have been intended according to the financial intent and purpose of the provisions and/or the contract if the point had been considered. If the invalidity rests on a service or a time provision, then the legally permitted value takes its place.
The documents belonging to the proposal, such as illustrations, drawings, details of weight and dimensions, apply only approximately, unless they are expressly stated to be binding. The supplier reserves property rights and copyright to costing proposals, drawings, and other documents; they must not be made accessible to third parties. Plans designated as confidential by the customer may be made accessible to third parties by the supplier only if the customer agrees to this.
II. Scope of the delivery
The supplier must accept an order in writing at its home office. Supplier's written order confirmation is decisive for the scope of the delivery in the case of a proposal from the supplier which is time-limited and whose acceptance is time-limited, when no order confirmation is received in time. Subsidiary agreements and modifications require the supplier's written confirmation.
III. Price and payment
- In the absence of particular agreements, prices are valid ex-works including loading at the works, but excluding packaging. Valued added tax at the applicable rate must be added to the prices.
- Unless otherwise agreed, the supplier's invoices are payable without deduction 30 days after presentation of the invoice.
- The supplier has the right, in spite of a provision of the customer to the contrary to firstly apply payments to the customer's older debts. If costs and interest have already built up, then the supplier has the right to apply the payment firstly to the costs, then to the interest, and finally to the main service.
- A payment is deemed to have been made only when the supplier has the sum available to him. In the case of checks, payment is deemed to have been made only when the check has been honored.
- If the customer goes into arrears, then the supplier is authorized from that point in time to calculate interest at the rate levied by commercial banks for open current accounts, and at least 5% above the applicable discount rate of the Deutsche Bundesbank, plus value added tax at the valid legal rate.
- If the customer does not fulfill his obligation to pay, especially if a check is not honored or his payments cease, or if the supplier becomes aware of other circumstances which put the customer's creditworthiness into question, then the supplier has the right to claim the entire sum, even if he has accepted checks. In addition, the supplier is entitled in this case to require payment in advance or securities.
- The customer is entitled to offsetting, retention, or reduction, even if notices of defects or counterclaims are invoked, only if the supplier has expressly agreed to this, or if the counterclaims were determined to have legal force.
- The retention of payments, or offsetting by supplier, because of possible counterclaims made by the customer and disputed by the supplier is allowed.
IV. Delivery time
- The delivery period starts with the sending of the order confirmation, but not before the customer provides documents, authorizations, and releases which are required, or before receipt of an agreed advance payment.
- The delivery period is an estimate and is complied with as long as the goods being supplied have left the works before the end of the period, or delivery readiness has been communicated.
- The delivery period of Seller is extended appropriately, and supplier is excused from its obligations, in the case of industrial disputes, especially strikes and lockouts, as well as if unforeseen obstacles arise which lie outside the control of the supplier, such as war, insurrection, floods, epidemics, fires or other severe weather, embargos, quarantines or other acts of government entities and Acts of God, as long as such obstacles can be proven to have an effect on the manufacture or delivery of the goods being supplied.
- This also applies if the circumstances affect subcontractors or suppliers to supplier. The circumstances described above are also not the responsibility of the supplier if they occur during an already existing delay. In significant cases, the supplier will inform the customer as soon as possible of the start and end of such obstacles.
- If delivery is delayed at the customer's wish, then he will be charged with the monthly costs arising from storage, beginning one month after announcement of delivery readiness, for storage in the supplier's works, to a minimum of 1/2 of the invoiced amount. After setting a suitable period which runs without producing a result, the supplier is however entitled to otherwise dispose of the goods being supplied, and to supply the customer over an appropriately extended delivery period.
- It is a prerequisite of compliance with the delivery period that the customer fulfills his contractual obligations.
V. Shipment risk
- All deliveries are transported at the risk of the customer. Goods are sold Ex-Works supplier’s dock in Krunkel, Germany and all risk of loss passes at that point..
- Even for delivery using the vehicles of HYFRA GmbH, and likewise for collection by the customer, the risk transfers as soon as the consignment has left the supplier's works or delivery depot, if the sold goods have not already been handed over to a carrier or freight forwarder within the works or warehouse.
- If the customer wishes, the consignment will be insured by the supplier at the customer's expense against theft, and damage from breakage, transport, fire, and water, as well as other insurable risks.
- If the goods are made available for collection by the customer, risk is transferred at the end of the first working day after the day that delivery readiness is communicated. Communication of delivery readiness may be made in any form. At the wish and expense of the customer, the supplier must insure goods made available, for the period after communication of delivery readiness, against theft, and damage from breakage, transport, fire, and water, as well as other insurable risks.
- The customer must accept the goods delivered to him, also if they display insignificant defects. The customer's rights under section VI remain unaffected.
- Partial deliveries are permitted.
VI. Reservation of ownership
Until the fulfillment of all obligations arising to the supplier against the customer for any legal reason now or in future, the following securities are provided to the supplier; on request, he will release these as he wishes, as long as their value permanently exceeds the demands by more then 20%:
- The goods remain the property of the supplier. Processing or transformation always take place to the benefit of the supplier as manufacturer, but without obligation for him. If the (joint) ownership of the supplier is nullified because of association, then it is already agreed at this point that the (joint) ownership of the customer in the unitary object is transferred to the supplier in proportion to its value (invoiced amount). The customer looks after the supplier's (joint) property free of charge. Goods subject to (joint) ownership by the supplier are hereafter described as goods subject to retention.
- The customer has the right to process and sell the goods subject to retention under normal business usage, as long as he is not in arrears.
- Pledging and chattel mortgages are forbidden. At this point already, by way of security, the customer fully relinquishes to the supplier the demands arising from the resale or for another legal reason (insurance, unauthorized dealing) with regard to the goods subject to retention. The supplier irrevocably authorizes the customer to collect the demands relinquished to the supplier, for the supplier's account. If the supplier so requests, the customer will disclose the assignment of debt, and provide the supplier with the required information and documentation.
- The purchaser may neither pledge nor assign the goods subject to retention by way of security.
- In the case of access by third parties to goods subject to retention, the purchaser will state that they are the property of the supplier, and will inform him immediately. The purchaser pays for costs and damage.
- If the customer acts contrary to the contract, especially with regard to arrears of payment, the supplier is authorized to take back the goods subject to retention at the customer's expense, or as appropriate to require the assignment of the customer's claims for return against third parties. As long as the Installment Purchase Law is not applied, there is no withdrawal from the contract if the supplier takes back or pledges the goods subject to retention.
VII. Defects, liability
1. Claims for defects
a. Supplier warrants to its direct customers that the goods, including service parts, shall be of merchantable quality, free of defects in material or workmanship, under normal use and service for a period of one (1) year from the date of original equipment start-up, or eighteen (18) months from the date of shipment by supplier, whichever occurs first. This warranty runs only to the original purchaser. If the goods warranted are found by supplier to be defective to our satisfaction, we may, at our option, either be repaired or replaced and returned to customer via lowest common carrier Ex-Works supplier’s dock. This is customer’s sole and exclusive remedy and supplier’s exclusive liability, except as provided below.
b. If supplementary performance fails in spite of two attempts, our customer in principle has the choice of reducing the payment (price reduction) or of rescinding the contract (rescission). In the case of trivial defects, the customer however has no right of rescission, only the right to price reduction.
c. Our customer must inform us in writing of obvious defects within a period of two weeks from receipt ofthe goods being supplied; otherwise, claiming for defects of any type whatsoever is excluded. It is enough to read the communication in time, to be in compliance with the allowed period. The burden of proof for theexistence of a defect, for the point in time of discovering a defect, and for making a claim in good time lies with the customer. Otherwise, the provisions of §§ 377ff of HGB (German Commercial Code) are unaffected.
d. A contractual property of the supplied material is fundamentally deemed to be only the description madepublic in our proposals, specifications or similar. In addition, our publicity material or advertising do not in any way represent details of contractual properties.
e. If the installation instructions given to our customer are defective, we are merely obliged to provide defect-free installation instructions, and this only if the defect in the installation instructions prevents correct installation.
f. Supplier has no liability for repairs or expenses incurred for repairs made by customer except if authorized in writing in advance by supplier. All claims under the above warranty must be made within the warranty period. THE WARRANTIES STATED IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE DISCLAIMED.
g. Exclusions. The above warranty does not apply as follows:
i. Glass is not guaranteed against breakage. If this refrigerator is equipped with a glazing assemblycarrying the manufacturer’s brand name (Thermopane, Twindow, etc.), the manufacturer’s glazing warranty in effect at the time of this shipment is extended to that assembly.
ii. Light bulbs, fluorescent lamp tubes and LEDs are not covered by any warranty for length of life or for any type of breakage.
iii. When the goods or any part thereof are damaged by accident, fire, flood, act of God, alteration, abuse, misuse, tampering, when the original model and serial number plate has been altered, defaced, or removed or used other than as recommended by supplier.
iv. When the goods or any part thereof is subject to operation on low, high or improper voltages. Low and high voltage is defined as more than a 5% drop below or 10% higher than name plate voltage ratings. NOTE: Proper field supply voltage to the equipment is the responsibility of the owner (end user).
v. To damage caused by overloading shelves or wire racks beyond the specified weight limits.
vi. When the goods or any part thereof is damaged, or when operation is impaired, due to failure to follow installation manual.
NOTE: Proper installation is the responsibility of the installer and owner (end user), not supplier, and supplier is not responsible for installation.
Defects of title
a. If the use by our customer of the materials being supplied results in the infringement of the industrial property rights and/or copyright in Germany, as a matter of principle we will at our expense create the right to continued use, or else modify the materials being supplied in a way acceptable to the customer, so that the property right or copyright infringement no longer occurs.
b. If this is not possible at financially reasonable terms or within an acceptable period, the customer has the right to withdraw from the contract. Under the abovementioned preconditions, we also have a right to withdraw from the contract.
c. We will release our customer from undisputed claims or claims from the affected rights holder which are determined to have legal force.
d. The abovementioned obligations exist only if:
i. the customer informs us immediately of claims asserted for infringements of industrial property rights or copyright,
ii. the customer supports us appropriately in the defense of the asserted claims and enables us to carry out the modification measures on the goods supplied,
iii. all means of defense remain open to us, including settlement outside the courts,
iv. the defect of title does not rest on an assignment by our customer, and
v. the infringement was not caused by our customer arbitrarily modifying the materials supplied, or using them in connection with items not supplied by us or in a way not allowed in the contract.
e. Liabilities beyond these, especially for damages, do not arise unless the circumstances of liability as per section 2 (b) exist.
2. Liability for damages
a. Claims for damages which arise not from the goods supplied themselves, but outside of these to the other assets of our customer, exist only
i. through malice,
ii. in the case of gross negligence by us or by our executive staff,
iii. in the case of fraudulent concealment of defects,
iv. in the case of a guarantee, which however exists only through the express written issue of a corresponding guarantee statement in our proposals and/or order confirmations,
v. in the case of culpable injury to life, body, or health, or
vi. in the case of damage caused through (simple) negligence by us or our agents, if and to the extent that our industrial and/or product liability insurance comes into play for such damage.
b. In the case of culpable infringement of significant contractual obligations, we are also liable for gross negligence of non-executive staff as well as generally in the case of simple negligence, subject to the other provisions of this contract, though in the latter case restricted to reasonably foreseeable damage typical for the contract.
c. If our customer chooses to withdraw from the contract after unsuccessful supplementary performance, he has no additional right to claims for damages because of the respective defect. If he demands compensation in such a case, the goods supplied remain on the customer's premises; the damages are here restricted to the difference between the agreed price and the value of the defective goods supplied.
d. Further claims are excluded.
3. Defects, liability
The commissioning of HYFRA equipment without its own electrical control system may be carried out only by an expert electrician familiar with the commissioning of such equipment; otherwise we accept no liability whatsoever for defects or compensation for faults and damage resulting from this.
b. Limitation period
All claims arising from defects, i.e. claims for supplementary performance, reduction, withdrawal from contract and/or claims for damages expire 1 year from the date of original equipment start-up or 18 months from the date of shipment, whichever occurs first months after our delivery.
c. Ban on assignment
All claims under sections 1 and 2 are available only to our direct customer who was the original purchaser, and cannot be assigned to third parties.
d. Insofar as is legally permitted, HYFRA shall not be responsible for incidental, consequential, special, punitive and similar damages, such as loss of profits, related to this contract. HYFRA’s liability for direct damages is limited to the amount paid for the applicable item.
VIII. Liability for accessory obligations
If at the fault of the supplier the supplied goods cannot be used as contractually intended, because of neglected or incorrect execution of proposals and suggestions available before or after conclusion of the contract as well as other subsidiary contractual obligations - especially instructions for operation and maintenance of the goods supplied - then the provisions of sections VII and IX apply accordingly, to the exclusion of further claims by the customer. We wish to point out that we accept liability only for the German version of the operating instructions. You are free to have the translation into other languages verified.