General terms and conditions of Humbaur GmbH
I. General Points
The following conditions apply to all tenders, purchasing and supply contracts with reference to the products of Humbaur GmbH in the capacity of seller. We do not accept counter-conditions of the purchaser that deviate from our general terms and conditions; such acceptance only becomes applicable if the seller has agreed in writing to the validity of these counter-conditions. The scope of each delivery is solely dependent on the details in the written order confirmation. All verbal ancillary agreements and any subsequent changes to the contract only become valid if they are explicitly confirmed in writing by the seller. The relinquishment of this formal requirement also requires the written form. These sales conditions also apply to all future business with the purchaser. The documents in the catalogues, advertisements, price-lists or associated with the tender contain details, drawings, illustrations, technical data, weight, dimensional and performance descriptions that are only approximate general values, unless clearly designated as being definitive in the order confirmation. The seller reserves the right to make design and shape modifications during the delivery period, provided that the subject of the delivery and its appearance are not changed significantly. The seller is bound to his tender for a period of four weeks, unless other agreements are made to the contrary. The order, signed by the purchaser, is a binding tender. The purchase is considered complete if the seller confirms his acceptance of the order for the purchased item, as described in more detail, to the purchaser within a period of four weeks, in writing or if the purchased item is delivered by him. Overt calculation errors or errors in the price quotation or description of the goods can be subsequently rectified by the seller.
Plans, drawings, calculations, photos, diagrams, logos or other documents will only be made available by the seller with the protection of his property rights and copyrights. Forwarding to third parties may only be carried out where the seller has specifically agreed to this in advance in writing.
The respective words for "purchaser" and "seller" are used as gender-neutral and do not imply discrimination against one of the genders.
The definitive prices are those quoted in the seller's order confirmation. All prices in accordance with the current price list are ex-works and exclude packaging, freight, postage, insurance and other delivery costs. Any agreement made concerning discounts or early payment discounts needs to be confirmed in writing. All prices are listed exclusive of the statutory value added tax applicable on the day of creation of the invoice. The supplier reserves the right to change his prices to the extent that cost reductions or increases become applicable after conclusion of the contract, based on collective agreements or changes in material costs. This will be substantiated to the purchaser by the supplier on request. All ancillary charges, public fees, or any newly applied taxes, freight charges etc. or their increases, that apply to or are charged to the delivery in the medium term and immediately, are to be borne by the purchaser, unless mandatory legal regulations provide countermanding detail. The prices quoted in the tender by the seller apply with the caveat that the order details on which the tender is based remain unchanged and are confirmed in writing by the seller. In the event of orders placed by or delivered to third parties, the seller shall be deemed to be the customer, where no other explicit agreement has been entered into.
III. Terms of payment
Unless otherwise stated in the order confirmation, the purchase price for new purchased goods immediately becomes due for payment on advice of the readiness for shipment of the goods in question, but at the latest within 10 days, usually before collection/delivery of the goods in question. Invoices may be sent by mail, fax or e-mail.
Payments must be made directly to the seller, all payments to representatives or other persons are at the risk of the payer. Cheques and other such methods of payment are accepted only for payment, not as the full discharge of an obligation. If the purchaser is in default with two payments with regard to the agreed stage payments for longer than 10 calendar days, the remaining outstanding amount then becomes payable. The remaining purchase price is subject to interest at a rate of 9% above the relevant basic interest rate, in accordance with Section 288 BGB (German Civil Code) from the time at which it becomes payable. The purchaser can only offset or implement a right of retention in the event of an uncontested or legally binding claim. The seller has the right to withdraw from the contract if, after concluding the contract, business circumstances of the purchaser become evident to them that makes their rights seem no longer to be adequately secured. In this case the seller may also request an advance payment or security, retain any goods not yet delivered, retain securities on delivery or demand the re-issuing of such securities, or suspend further work. If the purchaser rejects pre-payment or security, the seller can, after the fruitless expiry of a new deadline of 14 days, withdraw from the contract and / or claim damages. These rights are also available to the seller if the purchaser is in default of payment for deliveries based on the same legal relationship. The seller thus explicitly retains the property rights to delivered but unpaid for goods and has a right of retention to goods paid for but not yet delivered. In the event of payment default, default interest at a level of 9% above the individual basic interest rate is to be paid in accordance with Section 288 BGB (German Civil Code). The seller is entitled to charge an additional flat fee of 40 euros when a debtor who is not an end user pays late. The enforcement of additional default damages is not precluded by this stipulation. Several purchasers are liable as the joint and several debtor. The following applies to special vehicles or vehicles which are modified or built at the specific request of the purchaser: 60% down-payment of the net value of the goods on receipt of the order confirmation, manufacture only on receipt of the payment, balance of payment prior to delivery or collection.
IV. Retention of title
The delivered goods remain his property until full payment has been received for all the seller's claims against the purchaser up to the date of the invoice. The purchaser is only entitled to resale as part of his normal business process. The purchaser hereby transfers his claims resulting from the resale to the seller. The seller hereby accepts this transfer. The purchaser is obliged to name the debtor for the transferred claim at the latest in the event of a late payment as part of the guaranteed right to information. In the event of processing or modification of goods delivered but remaining the property of the seller, the seller must be considered as the manufacturer in accordance with Section 950 BGB (German Civil Code) and retains ownership of the products at all points of the process. If third parties participate in the processing, the seller is limited to a joint property share to the value of the invoice for the retained goods. The property acquired in this way is considered to be property subject to retention of title. In the event of access to the property subject to retention of title by third parties, the purchaser must indicate the property of the seller and inform the seller without delay. Any costs and damages are borne by the purchaser.
The enforcement of the retention of title shall only be deemed to constitute a withdrawal from the contract if the seller has explicitly declared this in writing. The seller retains the right to withdraw from the contract in the event of filing for insolvency. The purchaser is obliged to surrender all delivered goods before initiating insolvency proceedings.
The obligation to delivery in dealings with companies, exists with the caveat that correct or timely delivery has been made to the seller, unless incorrect or delayed delivery is the fault of the seller.
Delivery periods and deadlines only count as approximately agreed, unless the seller has issued a written approval to be binding. The delivery period starts on the date of the order acceptance or on receipt of the order confirmation, but not before complete clarification of all execution details and timely fulfilment of all obligations by the purchaser, such as making the downpayments in accordance with III. Short-selling is excluded. For sales ex-works, the delivery periods and deadlines are maintained if the goods leave the factory within the delivery period or to meet the deadline. The delivery period will be considered to be on-time with the declaration of readiness for shipment if the shipment becomes impossible for reasons not attributable to the seller. The delivery period is extended proportionally in the event of force majeure, industrial action, unrest, official measures, lack of delivery from suppliers and other unforeseeable, unavoidable and major events for the duration of the disturbance. Notwithstanding the rights of the seller resulting from the default of the purchaser – the agreed delivery period shall be extended by the time period for which the purchaser is in default with his obligations resulting from this or a different agreement. The expiry of specific delivery periods / deadlines does not relieve the purchaser, who wishes to withdraw from the contract or who wishes to claim damages for non-fulfilment, from setting a reasonable new deadline, generally four weeks, to complete performance and the declaration that he will reject the performance once the deadline has expired. If there is slight negligence on behalf of the seller, the damages are limited to the extra expenditure for a covering purchase or substitute performance. Damage claims arising from non-fulfilment or delayed fulfilment are excluded for contracts with contractors. The purchaser cannot reject partial deliveries.
The supplier does not take back transport packaging and all other packaging, in accordance with the ordinance on packaging. It is the customer's responsibility to dispose of the packaging properly, at his own expense.
VI. Handover conditions
If the purchaser withdraws from the contract after conclusion of the contract and before the goods are manufactured, the seller is entitled to demand 15% of the purchase price as an indemnity, whilst the right to enforce additional damages remains in place. If the purchaser withdraws from the contract after conclusion of the contract and while the goods are being manufactured, the seller is entitled to demand 20% of the purchase price as an indemnity, or 50% in the case of special products or special vehicles, whilst the right to enforce additional damages remains in place.
If the purchaser fails to accept his order after being informed of its readiness or fails to fulfil his payment obligations or to furnish any security agreed upon for a period of more than 10 calendar days, the seller shall be entitled to withdraw from the contract or to claim damages resulting from non-fulfilment of the contract, after allowing a further 14 calendar days for fulfilment. In this case, the seller is entitled to demand at least 15% of the purchase price as an indemnity, or at least 80% of the purchase price in the case of special products or special vehicles, whilst the right to enforcement of additional damages explicitly remains in place.
During the period in which the purchaser's acceptance of the product is delayed, the seller will keep this product safe for the purchaser at the latter's risk and with the explicit agreement that the seller will accept no liability. The seller is entitled to charge the purchaser an appropriate holding fee of at least € 10 (ten) per product per day.
The onus is on the purchaser to provide proof that the contract infringement applied to him has not caused damage, or has caused less damage or has not resulted in a reduction in value, or that such losses incurred by the supplier are considerably less than the pre-defined lump sum.
VII. Dispatch and risk transfer
1. All deliveries will be made from the manufacturer's works (place of fulfilment), with the simultaneous transfer of risks to the purchaser, as soon as the consignment has been handed over to the person responsible for transport or has left the seller's warehouse for dispatch purposes. Delivery requested by the customer is undertaken in his name and at his cost, ex-works from the manufacturer and exclusively at the risk of the purchaser. Any warranty based on any delivery instructions given is not accepted by the seller.
2. The supplier does not take back transport packaging and all other packaging, in accordance with the ordinance on packaging. It is the customer's responsibility to dispose of the packaging properly, at his own expense.
1. The seller grants a guarantee on the quality of the processed materials, the design and execution of the purchased goods to the initial consumer, with regard to newly manufactured passenger vehicle trailers up to 3.5 tonnes, which extends for a period of 24 months from the transfer of risks. The seller provides the initial customer with a guarantee for a period of 12 months from the transfer of risks for newly produced trailers with air brakes, provided that the customer is a trader or corporate body under public law or a special fund under public law. With used goods, show vehicles, demonstration vehicles or special bargain offers, all warranties are excluded, provided that the consumer is a trader or a corporate body under public law or a special fund under public law. In the case of consumers as the first purchaser, the legal regulations apply.
2. Complaints and deficiencies resulting from recognisable, incomplete and incorrect delivery or any transport damage must be noted in writing, immediately, or at the latest on receipt of the goods, on the shipping documents / CMR, and the seller must be advised in writing. Faults which it is impossible to discover within this period, even with most careful inspection, must be reported in writing, immediately after they have been discovered. In the case of commercial negotiation between traders, Sections 377 and 378 of the HGB (German Commercial Code) remain unaffected. Notification of a claim under the warranty must be made using the appropriate notice form provided by the seller.
In the event of a justified complaint, the seller is obliged to carry out repairs (max. 3 attempts) and/or replacement at his discretion and with the exclusion of any other claims. In the event of fault repair, the seller is obliged to bear the costs incurred by the seller in the repair of the fault, particularly the costs of labour and materials incurred by the seller. The dispatch of parts for fault repair will only be initiated by the seller to dealers or workshops selected by the seller. The purchaser's transport costs to/from the place of fulfilment are not covered by the seller. The purchaser is obliged to provide the seller with the faulty parts or must allow them to be collected by the seller.
3. In the case of delayed, uncompleted or unsuccessful repair (maximum 3 attempts) or replacement, the customer may demand a reduction in the payment or withdraw from the contract. Replacement and repair are covered by warranty in the same way as is the original delivery item. Technically contingent modifications to the design or the shape, and variations in the paint or shade of colour, do not represent faults, provided that they are considered to be reasonable to the purchaser in regard to the interests of the seller.
Fault claims will not be deemed valid where they concern negligible deviations from the condition agreed upon, where the usability of the product is only slightly affected, where the prescribed service intervals have not been adhered to, in the case of natural wear and tear or damage resulting from faulty or careless handling, unreasonable stress on unsuitable equipment after the transfer of risk or in the event of special external influences which are not covered by the contract.
The warranty remains in force, however, only until the expiry of the warranty period for the original item, provided it is not covered by any statutory regulation. Complaints do not release the customer from his obligation to meet the agreed payment conditions. Guarantee of qualities requires the customer's written declaration and a statement of confirmation, in each instance.
4. For parts which the supplier has not manufactured himself, he accepts only a warranty in which the manufacturing works guarantee these parts for him and preferably only in the form of ceding such claims to the purchaser.
5. The guarantee provided by the seller expires, for example, when the purchaser or a third party perform inappropriate repair work on the object delivered or when it was changed by installing third-party parts or when the purchaser does not adhere to the specifications of the seller regarding the handling of the object delivered or when it is determined that the total weight or the permissible gross weight according to the road traffic licensing ordinance or the payload or the carrying capacity of the chassis according to the purchasing contract was exceeded and when the damage is causally related to such change or treatment. The resulting consequences will not give rise to any fault-based claims. The warranty also lapses if it is established that there is an excess in the total authorised weight according to the relevant terms of the road traffic regulations or the axle loads or in the payload on which the supply contract is based, or in the chassis load-bearing capacity. Natural wear and damage which can be attributed to careless and/or unskilled handling are excluded from the warranty.
6. Deviations in paint colours and the colour shades of parts and covers of all kinds, as well as digital printing to the extent technically permitted and possible do not constitute any faults. As far as the introduction and conversion to REACH-compliant paints and manufacturing processes is concerned, no guarantee can be given as to the colour fidelity of paintwork, parts and covers of all kinds or digital prints on new vehicles, in comparison with vehicles previously delivered.
1. The seller is only liable for damage caused by wilful or negligent actions, and for the infringement of significant contractual obligations, insofar as the achievement of the purpose of the contract is endangered, for the failure to provide the promised characteristics and in cases of binding liability in accordance with product liability laws. In the event of culpable infringement of significant contract obligations, liability is only for contract-typical foreseeable damages.
2. The same principles apply to the liability of ancillary and vicarious agents of the seller.
3. An exclusion or limitation of liability does not apply to damages resulting from death, injury or damage to health that is the consequence of neglect of the seller's obligations.
X. Vehicle body
The regulations in Clauses I - IX, XII and XIII of these general terms and conditions also apply to vehicle bodies of all kinds with the following supplements:
1. We only accept liability for faults in third-party objects that we have sourced from suppliers or other manufacturers (e.g. cooling systems, hydraulic platforms, other systems and accessories not manufactured directly by us) by ceding all defect claims due to us against the manufacturer and/or preliminary supplier to the purchaser and further agree to provide our contract partner with all information and documents required to pursue these claims. The guarantee conditions of our respective supplier or manufacturer shall apply in the event of such faults.
2. Processing or rebuilding the object of delivery by the purchaser is always performed in our name. When the object of delivery is processed with other objects not owned by us, we acquire co-ownership of the new object within the framework of retention of title at the ratio of the value of the object or service delivered by us to the value of the other, processed objects at the time of processing. Moreover, the rules applying to the object delivered under retention of title also apply to the object created by processing. The retention of title only ends after full payment of the price agreed upon.
When the object of delivery is inseparably connected or mixed with objects not belonging to us, we acquire co-ownership of the new objects at the ratio of the value of the delivered object to the value of the other, connected or mixed objects at the time of connection or mixing. If this connection or mixture results in the purchaser's objects being the main part, it is deemed to be agreed that the purchaser transfers co-ownership to us in proportion to our share. The purchaser shall in this case safeguard the sole ownership or co-ownership for us.
If the vehicle intended for the installation of the superstructure is subject to the retention of title or forms part of collateral security of a third party, the purchaser must inform us in advance and ensure that the third party guarantees our share of the retention of title or collateral security. The purchaser must provide an appropriate declaration by the third party. We shall receive the sole retention of title or lien possession when the right of the third party ends.
Selling, pledging or mortgaging, leasing or other cessation of the order object shall not be permitted without our prior written agreement, while retention of title or collateral ownership persist for our benefit. If the order object is sold by the purchaser with our consent before payment, the purchase price claim against the third-party buyer of the order object must be ceded to us on conclusion of the contract for reselling the order object. The purchaser is only entitled to collect the purchase price on our behalf.
3. The purchaser entitles the vehicle manufacturer to award sub-contracts and to perform test and transfer drives.
The vehicle manufacturer reserves the right to design and shape changes, deviations in hue as well as changes to the delivery scope in as far as no major changes to the previous appearance of the vehicle or its functions are made and the changes are reasonably acceptable for the purchaser, considering the interests of the vehicle manufacturer and fact that the same quality standards apply.
4. The information in the descriptions regarding the performances, weights, operating costs, speeds, etc. are under all circumstances approximate values. This concerns the actual vehicle as well as the vehicle body provided by us. Descriptors consisting of characters or numbers used by the vehicle manufacturer or by us to identify the order cannot be used to derive any rights.
5. The purchaser has the right to inspect the vehicle on our company premises and to perform a test drive with the vehicle within the limits of usual test drives within eight days after receipt of the notification that the goods are ready for collection. The costs of an additional test drive must be borne by the purchaser. The right to a test drive is deemed to be waived when the test drive is not performed within the period stipulated. After handover to the purchaser or his representative, the vehicle and the superstructure are deemed to have been accepted and orderly delivered. The purchaser is explicitly informed of these consequences in the notification that the goods are ready for collection. If case the vehicle is driven by the purchaser or his representative during the test drive, the purchaser shall be solely liable for damage caused to the vehicle.
6. While the condition of retention of title or collateral security persists, the vehicle must be insured by the purchaser with regard to third party liability and comprehensive cover, with the stipulation that the claims from the insurance are due to us. The purchaser shall leave a copy of the insurance certificate with us as proof. Appropriate payouts by the insurance must be fully used for the repair of the vehicle and its body, e.g. after damage. In the event of a total write-off, payment of our claims shall take priority when allocating the insurance payout. The customer is entitled to the remainder.
7. With regard to our claim resulting from the works and material contract, the customer under all circumstances provides us with a contractual pledge regarding the objects provided within the framework of this contract, as long as they are in our possession. This pledge also applies in connection with claims for previous work, spare parts deliveries and other services provided by us, in as far as they are part of the basic contract.
XI. Spare parts
The regulations in Clauses I - IX, XII and XIII of these general terms and conditions also apply to spare parts with the following supplements:
1. Spares from the current spares tender of the seller are sold with pre-payment or against invoice. Delivery includes packaging but excludes freight costs.
2. The delivery must be checked immediately. A special return delivery note is included with the goods for any return deliveries, and this will be sent by the seller on request. Goods returned to the seller on a freight forward basis or goods returned without a return delivery note will not be accepted by the seller.
3. In the event of incorrect ordering of spare parts from the current list by the purchaser, the purchaser is obliged to return the goods to the seller undamaged and carefully packed at his own cost. In this case the seller is entitled to demand, for the resulting administration and stores expenditure, a handling cost of 10% of the net value of the goods.
4. In the event of wrong delivery of spare parts from the current list by the seller, or in the case of a valid warranty claim for spare parts, the purchaser is obliged to advise the seller immediately and to keep the goods safe. The seller is entitled and obligated to have the goods collected from the purchaser at his own cost.
5. The seller will not accept the return of duly delivered special parts or special tarpaulins or any parts manufactured at the request of the purchaser.
6. If delivery is executed at the express wish of the purchaser by night freight without a depot, the purchaser will bear the exclusive risk from the point of transfer of risks.
7. During the period in which the purchaser's advance payment within a specific period or the acceptance of spare parts by the purchaser is delayed, the seller will keep these products safe for the purchaser at the latter's risk and with the explicit agreement that the seller will accept no liability. The seller is entitled to charge the purchaser an appropriate holding fee of at least 4 (four) € per product per day.
XII. Data protection
1. Processing your data
The purchaser will collect, store and process data in compliance with the statutory regulations as part of the negotiation, conclusion and termination of a purchase agreement. When visiting the website of the seller, the IP address, date, time, browser type and computer operating system on the purchaser's PC as well as the pages the purchaser has visited are logged. However, tracing of personal data is in this way not possible and also not intended.
The personal data the purchaser provides to the seller, e.g. while placing an order or sending an e-mail (e.g. name and contact data) will only be used in the correspondence with the purchaser and only for the purpose for which the purchaser has provided the data to the seller. The seller only forwards these data to the shipping service appointed in as far as this is required for delivering the goods. The seller provides the payment data of the purchaser required to complete the payment only to the bank tasked with handling the payment.
The seller guarantees that these personal data are not forwarded to third parties for other purposes, except when the seller is legally obliged to do so or when the purchaser has previously agreed to it. All services and processes performed for the seller by third-party service providers comply with the provisions of the Federal Data Protection Act (Bundesdatenschutzgesetz) and the German Telemedia Act (Telemediengesetz).
2. Storage period
Personal data that the purchaser has provided to the seller through his website, his web shop, online sales portals such as Mobil.de or social media such as Facebook, will only be stored until they have fulfilled the purpose for which they were entrusted to the seller. According to trade and tax laws, storage periods for certain data may be up to 10 years.
3. Rights of the purchaser
Should the purchaser no longer agree to the storage of the personal data or when the data have become incorrect, the seller will arrange for deletion, correction or locking of these data after receiving appropriate written instructions within the framework of the statutory regulations. The purchaser shall receive information regarding all personal data stored by the seller with regard to the purchaser after an appropriate request in writing.
XII. Place of fulfilment, legal domicile and amendments to the General Terms of Business
1. Any legal disputes resulting from the contract between the parties shall be subject to German law, with the exclusion of the UN Sales Convention (CISG). Depending on the legal limits for the amounts disputed, either the Augsburg District Court or the Augsburg Regional Court will be responsible.
2. In addition, Gersthofen shall be the place of fulfilment for all deliveries and services rendered and for the execution of any repair work required.
3. The seller is entitled to make editorial changes to the text of the General Terms and Conditions. The purchaser waives his right to be kept informed of such changes. In the case of major text changes, the seller will inform the purchaser of the coming into force of the modified General Terms and Conditions. German is an acknowledged official language of the EU for the compilation of contracts as well as the interpretation of texts.
Valid from 15/09/2016.