General business terms and conditions of HÜNGSBERG GmbH
Status August 2023
1 SCOPE OF APPLICATION
1.1 These general business terms and conditions („General Business Terms and Conditions“) shall apply for all services provided by HÜNGSBERG GmbH vis-a-vis the other contracting party (“customer”).
1.2 In addition to the offer conditions of HÜNGSBERG for the specific products and services, these General Terms and Conditions of Business apply exclusively. Deviating, supplementary or conflicting terms and conditions of the customer do not apply, even if HÜNGSBERG does not object to them in individual cases. The customer hereby declares his agreement. In the event of contradictions between the offer conditions and these GTC, the respective offer conditions take precedence.
1.3 These General Terms and Conditions also apply to all future contracts with the customer or services for the customer, even if HÜNGSBERG does not expressly refer to them.
1.4 These General Terms and Conditions shall apply only for entrepreneurs (§14 BGB), legal persons under public law and special funds under public law, according to § 310 BGB.
2 QUOTATION AND CONCLUSION OF CONTRACT
2.1 All quotations of HÜNGSBERG are non-binding.
2.2 HÜNGSBERG can accept offers within two weeks upon receipt. Orders of the customers are binding offers. Orders are accepted either by way of declaration, delivery of the product or performance of a service.
2.3 If HÜNGSBERG confirms the receipt of an electronically transmitted order, the confirmation of receipt does however not constitute acceptance of the order. Confirmation of receipt can however be linked with the declaration of acceptance („order confirmation”).
3 SERVICES OF HÜNGSBERG AND THEIR AMENDMENTS
3.1 The quality of performances of HÜNGSBERG is exclusively related to the product description provided by HÜNGSBERG.
3.2 All public statements, presentations, examples, samples, designs, descriptions, general information as well as advertising and any further statements of HÜNGSBERG serve the sole purpose of allowing an overview over the services, they shall not be part of the contract.
3.3 HÜNGSBERG shall be entitled to change services at any time, insofar as these changes are necessary due to appropriate legal or magisterial requirements or safety regulations or as they concern technical characteristics and as they do not considerably affect the agreed services and as the changes are reasonable for the customers.
3.4 HÜNGSBERG shall be entitled to engage subcontractors in order to meet its contractual obligations.
4 PARTIAL DELIVERY; PERIOD OF DELIVERY AND PERFORMANCE; DELAY
4.1 HÜNGSBERG shall be entitled to execute orders in form of partial deliveries as far as it is of reasonable interest to the customer.
4.2 Delivery periods are binding only if HÜNGSBERG has explicitly confirmed them as binding in written. The delivery period commences only when all technical issues, necessary for the performance of services are settled.
4.3 HÜNGSBERG shall be entitled to deny services if the customer does not fulfil his duties and obligations properly and in due time, especially if he does not effectuate advance payments, as agreed upon with HÜNGSBERG or if he fails to perform acts of cooperation, necessary for a complete and timely performance of services by HÜNGSBERG.
4.4 Delivery deadlines shall be considered as agreed, if by the expiry of the period for delivery, readiness for dispatch has been notified or the item of delivery has left the premises of HÜNGSBERG.
4.5 Events of force majeure entitle HÜNGSBERG – also within the delay – to postpone the delivery or service for the dura-tion of the hindrance. All circumstances for which HÜNGS-BERG is not responsible and by which the provision of the delivery or service is temporarily made impossible or unrea-sonably difficult are equal to force majeure, in particular lawful strike or lockout, late self-delivery for which HÜNGSBERG is not responsible, official measures, import and export bans, shortage of energy and raw materials as well as war. HÜNGSBERG will inform the customer immedi-ately about this.
4.6 If the hindrance lasts for more than two months, the customer shall be entitled, after a reasonable period of grace, to withdraw from the contract, if he proves that the partially still outstanding fulfilment of the contract is, due to the delay, no longer of interest to him. The period of grace to be set by the customer shall be at least 4 weeks and in writing.
5 TERMS OF LICENCE
The customer is aware and agrees that in particular software products delivered by HÜNGSBERG are subject to the licence conditions of the respective manufacturer. The corresponding licence conditions are stated in the order.
6 TRANSFER OF RISK; DELIVERY
6.1 Deliveries shall be made ex works by HÜNGSBERG (EXW Incoterms 2010). Any transport is effected at the expense and risk of the customer (paragraph 9.1). In case the delivery is delayed due to reasons beyond the control of HÜNGSBERG, the risk shall be transferred to the customer on receipt of the notification of readiness to dispatch.
6.2 Moreover the risk shall be transferred to the customer with the handover of the goods. It’s in par with the handing over, if the customer gets in delay with the acceptance.
7.1 If the defect is caused by a defective product of a supplier and if he becomes not active as vicarious agent of HÜNGSBERG, but HÜNGSBERG only passes on the product of a third party to the customer, any warranty claims of the customer are in the first instance confined to the assignment of the warranty claims to its supplier. This term shall not apply if the defect is a result of improper handling of the suppliers products by HÜNGSBERG. If the customer cannot claim his warrants against the supplier out of court, the subsidiary liability of HÜNGSBERG for claims of defects is not affected according to the following regulations.
7.2 Warranty rights of the customer are subject to the customers due compliance with inspection and complaint stipulations in accordance with § 377 HGB. Unless otherwise agreed upon, HÜNGSBERG shall immediately be notified in writing on apparent defects, however within two weeks upon receipt of the products at the latest. Hidden defects shall be given notice of in writing without delay, at the latest however within two weeks upon their discovery.
7.3 HÜNGSBERG guarantees that the services correspond to the product description. The product description does not constitute a guarantee regarding special characteristics, unless the parties have explicitly agreed upon in writing.
7.4 HÜNGSBERG shall correct product defects optionally either by elimination of the defect (remedy) or by delivery of a defect-free product (replacement delivery). Movable goods, handed over to the customer in the framework of the fulfilment of services, which have been replaced by a replacement delivery, shall optionally be rendered to HÜNGSBERG or properly be disposed of respectively be destroyed at the expense of HÜNGSBERG.
7.5 Within the scope of the warranty any return of hardware products shall be effected with the original packaging.
7.6 HÜNGSBERG is entitled to make the owed subsequent performance dependent on the fact that the customer will settle the agreed payment on the due date, reduced by an amount which is adequately related to the defect.
7.7 The warranty period shall be one year for new products and six months for used products. The period shall start with the delivery of the relevant products. Any compensation claims due to defects are, moreover, based on paragraph 8.8 of this General Terms and Conditions.
7.8 HÜNGSBERG points out that errors, occuring during the installation of products, carried out by the customer himself or conflicts with third party programs do not constitute a case of warranty.and that HÜNGSBERG declines any liability for it. It is recommended to consult HÜNGSBERG prior to any installation of external software.
7.9 At any problems, occuring only in connection with the existing system environment (hard- and software) and which are not generally comprehensible, the customer has the obligation to provide HÜNGSBERG at his own expense with the according system environment for the purpose of error elimination respectively to provide HÜNGSBERG with all required and necessary information. If it turns out that the problem is not due to a material defect of the product provided by HÜNGSBERG, the customer is obliged to reimburse HÜNGSBERG all costs and expenses (for personnel, too), arisen during the checking process.
8 LIMITATION OF LIABILITY
8.1 Claims for defects and liability claims of the customer shall become statute-barred within 12 months in the case of used products within 6 months.
8.2 In the event of injury to life, limb or health, gross negligence or wilful misconduct, culpable breach of cardinal obligations, breach of warranty and claims under the Product Liability Act, the statutory limitation provisions shall apply.
8.3 The commencement of the limitation period shall be determined in accordance with the statutory provisions.
9 PRICES, INVOICING, WITHHOLDING OR SET-OFF OF PAYMENT
9.1 Prices of HÜNGSBERG are quoted plus the currently valid VAT rate and any possible indirect taxes and duties. Our service prices apply to the standard working time Mo – Fr from 8.a.m. to 5 p.m., public Bavarian holidays excepted. Outside standard working hours the following surcharges apply for all services: For services on weekdays from 6 a.m. to 8 a.m. and from 5 p.m. to 8 p.m. the surcharge is 25%. From 20:00 – 22:00 a surcharge of 50% applies to our services. For services after 10:00 pm and on Saturdays a surcharge of 75% applies. A surcharge of 100% applies to services on Sundays, 125% on public holidays and 150% on public Bavarian holidays.
9.2 For shipment within Germany shipping and handling fees (S&H) up to € 26,00 will be charged. For international shipping, fees up to an amount of € 76,00 can arise. In case the actual shipping costs should exceed the S&H fees HÜNGSBERG shall be entitled to charge the customer with the additional costs; HÜNGSBERG shall inform the customer in advance.
9.3 In providing services HÜNGSBERG shall be entitled to be reimbursed for travel and entertainment expenses and any other costs, necessary for the fulfillment of the services, in addition to the price agreed upon.
9.4 The customer will be charged for a software licence with the delivery of the download link. For customer specific new developments or EDI mappings HÜNGSBERG charges 50% with confirmation of the order. The remaining 50% are invoiced with the delivery. Services are invoiced upon performance. All invoices must be paid within 14 days without any deductions. When the period has run out the customer is in default of payment without any further reminder. This regulation applies for customers from D-A-CH (Germany, Austria, Switzerland).
9.5 By way of derogation from paragraph 8.4 customers from abroad (with exception of A, CH) are obliged to pay in advance.
9.6 The customer shall only be entitled to set-off, if his counterclaim has become res judicata, if it is undisputed or acknowledged by HÜNGSBERG. The same shall apply to the customers rights of retention or his right to refuse performance according to § 320 BGB. The customer can furthermore assert his rights to set-off and to refuse performance if his counterclaims are based on the same contractual relationship. With current business relations every single order shall be classified as a separate contract.
9.7 HÜNGSBERG is entitled to issue electronic Invoices according to § 14 section 1 sentence 7 UStG respectively according to the currently valid version of UStG (Sales Tax Act). The customer hereby gives his consent.
9.8 In case HÜNGSBERG is charged with any costs in the framework of an order- or payment process which are due to a fault of the customer, HÜNGSBERG will pass on the charges to the customer with a processing fee of 20,00 €. This regulation applies as well for any additional efforts for which HÜNGSBERG is not responsible.
10 LIABILITY AND INDEMNIFICATION
10.1 HÜNGSBERG shall be liable without limitation for intent and gross negligence. In the case of simple negligence, HÜNGSBERG shall only be liable and limited to the foreseeable damage typical of the contract, insofar as an obligation is breached, the fulfilment of which is essential for the proper fulfilment of which makes the proper execution of the con-tract possible in the first place and on the observance of which the customer may regularly rely (cardinal obligation).
10.2 The above limitations or exclusions of liability shall not apply in the event of fraudulent concealment of a defect, from the assumption of a guarantee, for claims under the Product Liability Act and for damages arising from injury to life, limb or health.
10.3 As far as the liability of HÜNGSBERG is excluded or limited, this also applies to the personal liability of HÜNGSBERG’s employees, workers, representatives and vicarious agents.
10.4 The liability for loss of data is limited to the typical recovery expenditure which would have occurred if back-up copies had been made regularly and in accordance with the risk profile.
10.5 The customer indemnifies HÜNGSBERG, their employees, workers, representatives and vicarious agents from all claims of third parties on first demand which are asserted against HÜNGSBERG and/or the named persons due to a culpable violation of the contract by the customer. The customer has to reimburse HÜNGSBERG and the named persons for all reasonable expenses necessary for legal defence.
11 RETENTION OF TITLE
11.1 HÜNGSBERG reserves the title to all products until receipt of all payments deriving from the according contract and all other claims against the customer, which are based on the business relationship.
11.2 The customer is obliged to handle with care all products subject to retention of title. He is furthermore obliged to insure such products at his own expense against loss, fire or water damages, theft and natural hazards in the amount of the purchase price. Possible maintenance or inspection work shall be carried out by the customer at his own expense.
11.3 The customer shall be entitled to retail products, subject to retention of title, in accordance with a normal business transaction, as long as he is not in default of payment. The customer assigns HÜNGSBERG in advance all claims covering the total sum of the invoice of HÜNGSBERG (VAT included), arising from the retail to his purchasers or a third party, regardless whether the products have been retailed after or without any further processing respectively any combination. HÜNGSBERG shall accept this assignation. The customer shall remain authorised to collect the due amount even after assignation to HÜNGSBERG. The entitlement of HÜNGSBERG to collect the claim itself, remains hereof unaffected. HÜNGSBERG undertakes however, not to collect the due amount as long as the customer meets the payment obligations arising from the revenues collected, does not get into default of payment and in particular no application is filed for the opening of insolvency proceedings regarding his assets or payments, are suspended. However if any of these circumstances arise, HUENSBERG shall be entitled to demand from the customer to name the assigned claims and their debtors, to furnish all information, required for collection, to hand over the relevant documents and to notify the debtors (third parties) about the assignation. If a third party distains products, subject to retention of title, or if he affects in other ways the property of HÜNGSBERG, the customer has to inform HÜNGSBERG immediately. The customer is additionally obliged to inform the third party and the bailiff that the respective product is in the ownership of HÜNGSBERG. As long as the third party is not capable to reimburse HÜNGSBERG judicial and extrajudicial costs for safeguard measures, the customer shall be liable to HÜNGSBERG for costs, not paied by the third party.
11.4 The customer is obliged to inform HÜNGSBERG without delay on any damages or on a change in ownership of products subject to retention of title as well as on a change of registered office.
11.5 In case of withdrawal from contract HÜNGSBERG shall be entitled to demand return of the products subject to retention of title.
12.1 Commercial secrets, process flows, techniques, drawings, product information, offers as well as all related documents, prices, technologies, designs, customer lists, market opportunities and business of HÜNGSBERG, its customers, suppliers or companies, are confidentially, regardless of the medium on which or the format in which they are saved or represented (“Confidential Information”). The customer shall treat disclosed confidential information:
12.1.1 In the strictest confidence and maintain their secrecy towards third parties, unless a disclosure or transfer is allowed or necessary in order to comply with the fulfilment of contract
12.1.2 and it shall undertake all measures necessary to prevent any unauthorised access to confidential information.
12.2 The customer shall be entitled to disclose confidential infor-mation to his employees and organs, as far as they need the confidential information in order to fulfill the contract. Dis-closure towards statutory auditors and consultants shall be effected only for the purpose of the annual audit respective-ly consulting. Disclosure according to paragraphhall only take place as long as it is guaranteed that the persons in question will comply with the obligations according to para-graph 12. as well.
12.3 The obligation to confidentiality shall not apply to information, which
12.3.1 becomes publicly known without infringement of paragraph 12.1;
12.3.2 is already known to the customer and if the customer is not obliged to confidentiality with regard to this already known information;
12.3.3 the customer has received lawfully from a third party who is not obliged to confidentiality with regard to this information;
12.3.4 the customer has developed, irrespective of the confidential information provided; or
12.3.5 has to be communicated or published on the basis of legal, official or judicial order or based on stock exchange regulations.
13 FURTHER REGULATIONS; JURISDICTION
13.1 The customer shall not be entitled to assign or transfer the contract or rights under the contract, prior to written consent of HÜNGSBERG. § 354a HGB (German Commercial Code) shall stay unaffected. HÜNGSBERG shall be entitled to remunerate the customer, regardless of an assignment with discharging effect.
13.2 Any notifications or declarations of the customer to HÜNGSBERG shall take place in written form. For terms and interpretation of contracts, their amendments or supplements, as well as for individual agreements, written acknowledgement or written confirmation by HÜNGSBERG is decisive.
13.3 The contract is subject to the law of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
13.4 The exclusive place of jurisdiction is the place of business of HÜNGSBERG. HÜNGSBERG can also sue the customer at its general place of jurisdiction.
13.5 Only the German versions of the contract are authoritative for the legal relations of the contracting parties.