General Terms and Conditions
All our legal relationships, including consulting services rendered in this context which are not the subject of an independent consulting contract, are based on our General Terms and Conditions. We only accept the terms and conditions of purchase of our contractual partners and agreements deviating from our terms and conditions if their validity is recognized in our order confirmation.
2.1 Our offers are subject to change. All details belonging to the offer determine the quality according to average type and quality and are subject to customary deviations if they are not expressly designated as binding.
2.2 The same applies to offers relating to samples.
2.3 Orders shall only become binding upon our written confirmation.
2.4 The information, drawings, illustrations and delivery and service descriptions contained in our brochures, catalogs, price lists or the documents included in the offer and accompanying the offer are approximate values customary in the industry, unless they are expressly designated as binding in the order confirmation.
2.5 The same shall apply to qualities resulting from a sample.
2.6 We reserve the right to make changes in design and form, provided that the delivery item is not significantly changed and the changes are reasonable for the Buyer.
3.1 Our prices are ex works, free truck or wagon plus the applicable statutory value added tax.
3.2 We shall be bound by the prices contained in the offer for 30 calendar days.
3.3 If a significant change in certain cost factors - wages, packaging material or freight - occurs between the conclusion of the transaction and delivery, the agreed price may be adjusted to a reasonable extent in accordance with the influence of the relevant cost factors, up to a maximum of 5%. The buyer has the right to withdraw from the contract in the event of price increases.
4.1 Delivery dates or deadlines, which may be agreed as binding or non-binding, must be made in writing.
4.2 The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the buyer is required.
4.3 Hamberger shall not be responsible for delays in delivery and performance due to force majeure and due to events which make delivery considerably more difficult or impossible for Hamberger not only temporarily - including in particular strikes, lockouts, official orders etc., even if they occur at Hamberger's suppliers or their suppliers, even if binding deadlines and dates have been agreed. They shall entitle Hamberger to postpone the delivery or service for the duration of the hindrance or a reasonable start-up period or to withdraw from the contract in whole or in part due to the part of the contract not yet fulfilled.
4.4 If the hindrance lasts longer than three months, the customer shall be entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery time is extended or if Hamberger is released from its obligation, the buyer shall not be entitled to derive any claims for damages from this. Hamberger may only invoke the aforementioned circumstances if it notifies the customer immediately.
4.5 The rights of the buyer pursuant to Section 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
4.6 Hamberger shall be entitled to make partial deliveries and render partial services at any time, unless the partial delivery or partial service is of no interest to the customer.
4.7 Compliance with the seller's delivery and performance obligations shall be subject to the timely and proper fulfillment of the customer's obligations.
4.8 If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this we shall charge a lump-sum compensation of 0.5% of the order amount per calendar week, up to a maximum of 5%, beginning with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for dispatch.
5.1 The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title, unless otherwise specified below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has further processed them (supplier recourse pursuant to § 478 BGB). Claims arising from supplier recourse are excluded if the defective goods have been further processed by the buyer or another entrepreneur, e.g. by installation in another product.
5.2 The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions and manufacturer's specifications that are the subject of the individual contract or were made public by us (in particular in catalogs or on our Internet homepage) at the time the contract was concluded shall be deemed to be an agreement on the quality of the goods.
5.3 Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not (Section 434 (1) sentences 2 and 3 BGB). However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements) which the Buyer has not pointed out to us as being decisive for his purchase.
5.4 We shall only be liable for guaranteed qualities to the extent that the purpose of the guarantee is to protect the contractual partner against the damage incurred due to the non-existence of the quality. The mere reference to DIN or EN standards does not make their content a guaranteed quality of the product.
5.5 If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the statutory conditions remains unaffected.
5.6 We are entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due.
5.7 The Buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall not include the removal of the defective item or its reinstallation if we were not originally obliged to install it.
5.8 We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if a defect actually exists. Otherwise, we may demand compensation from the Buyer for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognizable to the Buyer.
5.9 In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the Buyer shall have the right to remedy the defect itself and to demand compensation from us for the expenses objectively necessary for this purpose. We must be notified immediately, if possible in advance, of any such self-remedy. The right of self-remedy does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
5.10 If the delivery or service is impossible and we are responsible for this, the contractual partner's claim for damages shall be limited to a maximum of 10% of the value of the respective part of the delivery that cannot be put to the intended use due to the impossibility. The right to withdraw from the contract remains unaffected.
5.11 Claims of the Buyer for damages or reimbursement of futile expenses shall only exist in accordance with Section 8, even in the case of defects, and are otherwise excluded.
6.1 The seller shall only be liable in accordance with warranty regulations if the defect is not due to improper use, improper handling, care and installation of the toilet seat.
6.2 Hamberger accepts no responsibility for the product selection made by the customer. In particular, the customer shall be responsible for ensuring that the selected product meets the user requirements, whereby Hamberger expressly points out that the selected product is not equally suitable for all areas of application. In particular, statements and information on fit are non-binding. Hamberger also assumes no guarantee that the colors of the products sold will match the colors of the target environment materials.
6.3 The preservation of the function, surface and appearance of the products depends to a decisive extent on their use, treatment, care and stress. Hamberger refers in this respect to the care and use instructions enclosed with each product, compliance with which is the responsibility of the customer and compliance with which must also be guaranteed in the event of resale by the customer.
6.4 WC seats are movable systems. Any loosening that occurs and any free dimensional tolerances with resulting play therefore do not constitute a defect. In this context, it should be noted that regular retightening or readjustment of the fastenings may be necessary during the service life of the products.
7.1 Unless otherwise stated in these GTC including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
7.2 We shall be liable for damages - irrespective of the legal grounds - within the scope of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty), only
a) for damages resulting from injury to life, body or health
b) for damages arising from the breach of a material contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
7.3 The limitations of liability resulting from 8.2 shall also apply to breaches of duty by or in favor of persons whose fault we are responsible for according to statutory provisions. They shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the Buyer under the Product Liability Act.
7.4 A free right of termination of the Buyer (in particular pursuant to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
8.1 We reserve title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
8.2 The goods subject to retention of title may not be pledged to third parties or assigned as security until the secured claims have been paid in full. The buyer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties have access to the goods belonging to us (e.g. seizures).
8.3 Until revoked in accordance with c) below, the Buyer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
b) The Buyer hereby assigns to us as security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the Buyer stated in Section 9.2 shall also apply in consideration of the assigned claims.
c) The Buyer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer meets his payment obligations to us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right in accordance with clause 9.3. If this is the case, however, we can demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the buyer's authorization for further sale and processing.
d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the buyer's request.
9.1 Our invoices are issued on the date of dispatch. Unless otherwise agreed, they are due for payment within 30 days without any deduction.
9.2 Partial claims or services shall be invoiced separately and are each due for payment separately, irrespective of the total scope of delivery or service. Advance payments shall be credited to partial deliveries in the order of delivery.
9.3 If payments are deferred or made after the due date, interest may be charged from the due date in the amount of the credit costs incurred by us. Otherwise, the statutory provisions (§§ 286 ff BGB) shall apply in the event of default in payment. Further claims remain unaffected.
9.4 A right of set-off exists only for undisputed or legally established claims. In the event of justified notices of defects, payments may only be withheld to an extent that is in reasonable proportion to the material defects that have occurred.
10.1 Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
10.2 However, if the goods are a building or an item that has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provisions (Section 438 (1) No. 2 BGB). Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) also remain unaffected.
10.3 The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. However, the Buyer's claims for damages pursuant to clause 8.2 sentence 1 and sentence 2 (a) and pursuant to the German Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
11.1 The place of performance and jurisdiction for deliveries and payments (including actions on checks and bills of exchange) as well as for all disputes arising between the parties shall be D-83071 Stephanskirchen, provided that the contractual partner is a merchant, a legal entity under public law or a special fund under public law. However, we shall also be entitled to sue the Buyer at its registered office.
11.2 The relations between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
12.1 Should one or more of these terms and conditions violate a legal prohibition or be legally invalid for other reasons, this shall not affect the validity of the remaining provisions.
12.2 In place of the invalid provision, that provision shall be deemed to have been agreed which, taking into account the other terms and conditions, would have corresponded as closely as possible to the economic interest and presumed intention of the contracting parties. The same applies to a loophole.
Amendments to this contract must be made in writing. The written form is also required for the revocation of the written form clause.
Hamberger Sanitary GmbH 2019