General terms and conditions
Last revised: January 2023
1. Scope of validity, form
1.1 These Terms and Conditions (hereinafter T&Cs) for Hydroflex Group GmbH (hereinafter Hydroflex) are applicable only between Hydroflex and customers who are traders within the meaning of Sec. 14(1) BGB (German Civil Code) (i.e. natural or legal persons or partnership with legal personality which, when concluding a legal transaction, acts in exercise of their trade, business or profession), legal persons under public law, or public-law special funds.
1.2 Hydroflex makes deliveries and renders services exclusively on the basis of these T&Cs. Terms and conditions of customers which deviate from, run counter to or supplement that provisions of these T&Cs shall constitute an integral component of contract only insofar as Hydroflex explicitly consents to such in each case.
1.3 In any case, individual agreements shall take priority over these T&Cs. Such agreements shall be set out in text form.
2.1 Quotes from Hydroflex are subject to change and constitute a non-binding invitation to the customer to place an order. They are made subject to prior sale unless they are explicitly indicated as binding or containing a defined acceptance period. Insofar as a quote from Hydroflex indicates a period of validity, an acceptance period or a time limit, the customer may only accept the quote within the period of validity or by the deadline indicated.
2.2 Hydroflex may accept orders or assignments within 14 (fourteen) days of receipt or reject such without giving reasons.
2.3 Information provided by Hydroflex concerning the content of the delivery or service (e.g. weights, dimensions, user values, durability, tolerances and technical data) and illustrations of the same (e.g. drawings and figures) are rough estimates only, unless such must conform precisely in order to be usable for the contractually agreed purpose. This information constitutes descriptions or designations of the delivery or service, not guaranteed properties. Hydroflex reserves the right to industry-standard deviations and deviations which arise from legal regulations or constitute technical improvements, and to replace components with components of equal value, insofar as this does not impair the usability of such for their ordinary purpose or a special purpose agreed individually between the customer and Hydroflex.
2.4 It is incumbent on the customer to inspect whether goods to be procured from Hydroflex are suitable and usable for their intended purpose before conclusion of contract. Unless otherwise agreed explicitly in each case, Hydroflex does not guarantee any properties or suitability for specific applications.
3. Assignment, right of set-off and right of retention
3.1 Hydroflex is entitled to assign claims from the contractual relationship with the customer.
3.2 The customer has a right of set-off and right of retention with respect to counter-claims that are due and which have been legally asserted or are uncontested only. In the event of defects in the performance of Hydroflex, the opposing rights of the customer are unaffected.
4. Prices and payment
4.1 All Hydroflex prices are given in EUR ex works, plus packaging, statutory VAT and, in the case of export deliveries, customs, fees and other public duties. For orders under EUR 500.00, Hydroflex charges a minimum quantity fee to the amount of EUR 30.00; deliveries of samples are excluded.
4.2 Sums arising from Hydroflex invoices are payable immediately and without cash discounts.
4.3 All payments shall be made debt-discharging effect only to AKTIVBANK AG, Herriotstraße 1, 60528 Frankfurt am Main, to whom Hydroflex has assigned current and future payment claims arising from the contractual relationship.
4.4 Hydroflex is entitled to make outstanding deliveries or render outstanding services subject to payment on account or provision of a security only, insofar as Hydroflex becomes aware, after conclusion of contract, of circumstances which are liable to significantly impair the creditworthiness of the customer and which jeopardise payment of Hydroflex's outstanding receivables by the customer from the respective contractual relationship (including other individual orders subject to the same framework agreement).
5. Place of performance, delivery, transfer of risk
5.1 Place of performance for all obligations arising from contracts with Hydroflex is the registered office of Hydroflex in Buseck, unless otherwise indicated.
5.2 If delivery to a place other than the place of performance has been agreed upon request of the customer, delivery times shall refer to the time, at which goods are handed over to the haulier, carrier or other third party commissioned to transport the goods. The risk shall also transfer to the customer at time of handover. Hydroflex is not liable for damages in transit. Hydroflex shall ensure the delivery against theft, breakage, damages in transport, fire damage and water damage or other insurable risks at the explicit request and at the expense of the customer only.
6. Delivery times, storage costs, partial deliveries
6.1 Deadlines and periods announced by Hydroflex for deliveries and services are only ever approximates, unless a fixed deadline or period has been explicitly agreed. Adherence to the deadlines or periods agreed requires that the customer has rendered all such cooperation which he is required to render for the delivery in advance, in particular any necessary clarification of all technical issues and timely submission of all documents which the customer is to provide, e.g. export papers, permits, certificates, approvals, plans.
6.2 If no delivery period or delivery time has been agreed between Hydroflex and the customer, Hydroflex shall make delivery as soon as possible.
6.3 If the customer wishes to postpone agreed delivery times, Hydroflex shall accommodate this request as far as possible and reasonable for Hydroflex in each case or where agreed. If delivery is delayed at the request of the customer or for reasons, for which the customer is responsible, the time of the notice of readiness shall be considered the delivery time and Hydroflex shall store the goods at the risk of the customer. Hydroflex shall notify the customer immediately if and insofar it happens that Hydroflex cannot adhere to an agreed delivery time.
6.4 In the event of a delay in the delivery time of more than 2 (two) weeks, for which the customer is responsible, Hydroflex shall be entitled to charge the customer storage fees. Storage fees are charged at a flat rate of 0.25% of the purchase price of the goods to be stored per full week, up to a maximum of 5.00% of the purchase price. Hydroflex and the customer reserve the right to demonstrate higher or lower storage costs.
6.5 Notwithstanding its rights arising from default on the part of the customer, Hydroflex may demand from the customer that delivery and performance periods or delivery and performance times be postponed for as long as the customer fails to fulfil his contractual obligations towards Hydroflex.
6.6 If Hydroflex delays in making a delivery or rendering a service, or if Hydroflex is unable to make a delivery or render a service, for whatever reason, then Hydroflex's liability shall be limited to compensation for damages pursuant to Sec. 9 of these T&Cs.
6.7 Hydroflex is not liable for an inability to make a delivery or for delays in deliveries insofar as these are caused by force majeure or other events which were unforeseeable at time of conclusion of contract (e.g. war, operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, labour shortages, energy or raw material shortages, difficulties procuring the necessary public permits, pandemics or epidemics, government actions, or non-delivery, incorrect delivery or untimely delivery of goods by suppliers despite Hydroflex concluding a congruent hedging transaction) and which Hydroflex is not responsible for. Insofar as such events make delivery or performance extremely difficult or impossible for Hydroflex and this hindrance is not merely temporary, Hydroflex shall be entitled to withdraw from the contract. In the event of temporary hindrances, the delivery or performance times or periods shall be extended or postponed by the amount of time of the hindrance, plus a reasonable lead time. Insofar as it is not reasonable for the customer to accept the delivery or performance as a result of the delay, the customer may withdraw from the contract by giving Hydroflex immediate written notice.
6.8 Unless otherwise explicitly agreed in writing, Hydroflex is entitled to make partial deliveries only if and insofar as:
• the customer is able to use the partial delivery within the confines of the contractual intended use;
• delivery of the remaining goods order is assured; and
• the customer does not incur any significant additional effort or additional costs as a result (unless Hydroflex declares a willingness to assume these costs).
7. Warranty, material defects
7.1 The warranty lasts one year from delivery or, if acceptance is required, one year from acceptance. This does not apply to claims of the customer to damages arising from loss of life, physical injury or harm to health, from the German Product Liability Act (Produkthaftungsgesetz), or from wilful or grossly negligent breaches of duty on the part of Hydroflex or its agents which expire according to the statutory regulations applicable to each.
7.2 Claims of the customer to defects require that he has properly fulfilled his duties of inspect and notice according to Sec. 377 HGB (German Commercial Code). The item delivered must be carefully inspected immediately upon delivery to the customer or to a third party designated by the same. With respect to obvious defects or other defects which could have been identified during an immediate, careful inspection, the item shall be considered accepted by the customer unless Hydroflex receives a written notice of defects within seven working days of delivery. With respect to other defects, the item purchased shall be considered accepted by the customer as long as Hydroflex does not receive a notice of defect within 7 (seven) working days after such time as the defect became apparent. However, if the defect was obvious at an earlier time during ordinary use, this earlier time shall be considered the start of the period for notifying defects. Items which are subject to a complaint shall be returned to Hydroflex carriage paid upon request of the same. In the event of a legitimate notice of defects, Hydroflex shall reimburse the costs for the most affordable means of delivery; this does not apply insofar as these costs increase because the item is located in a different place to the place of intended use.
7.3 In the event of material defects in the items delivered, Hydroflex shall be obliged and entitled to initially rectify the defect or deliver a new item within an appropriate period set by Hydroflex at its discretion. Should such actions fail, i.e. rectification or delivery of a new item is impossible, unreasonable, refused or unreasonably delayed, the customer may withdraw from the contract or reduce the purchase price by an appropriate amount.
7.4 If a defect is due to the fault of Hydroflex, the customer may demand damages subject to the conditions stipulated under Sec. 9.
7.5 In the event of defects in components provided by other manufacturers which Hydroflex cannot resolve for reasons of fact or licensing law, Hydroflex may enforce its warranty claims against the manufacturer and supplier for the account of the customer or assign such claims to the customer at its discretion. Warranty claims against Hydroflex are valid with regards to such defects subject to the other conditions of and pursuant to these T&Cs only insofar as the enforcement of the aforementioned claims against the manufacturer and supplier before a court of law was fruitless or appears futile, e.g. due to an insolvency. The limitation period for the respective warranty claims of the customer against Hydroflex is suspended for the duration of the legal dispute.
7.6 The warranty is voided if the customer modifies the item without the consent of Hydroflex or has such modified by a third party and this renders remedying of defects impossible or unreasonably difficult. In any case, the customer shall bear the additional costs incurred for remedying of defects as a result of this modification.
8. Retention of title
8.1 The following retention of title serves to secure all current and future claims of Hydroflex against the customer arising from the existing supply relationship, including current account balance claims arising from such relationship that is limited to this supply relationship. If the customer breaches the contract – in particular in the case of default on payment – and Hydroflex withdraws from the contract as a result (enforcement), Hydroflex shall be entitled to demand return of reserved goods.
8.2 The goods which Hydroflex delivers to the customer remain the property of Hydroflex until all secured receivables have been paid in full. These goods and those goods which are covered by the retention of title in place of such according to the following provisions are hereinafter referred to as "reserved goods".
8.3 The customer shall keep the reserved goods save at no cost to Hydroflex. The customer is obliged to handle reserved goods with care and to sufficiently insure such as-new against theft, and fire and water damage at his own expense. He shall conduct maintenance and inspections at his own expense.
8.4 The customer is entitled to process and sell the reserved goods in the course of ordinary business until enforcement occurs. However, he may not pledge the reserved goods or assign such as security.
8.5 If the customer processes the reserved goods, it is agreed that this processing shall be undertaken on behalf of and for the account of Hydroflex as manufacturer and that Hydroflex shall immediately acquire ownership or – if the processing involves materials of multiple owners or the value of the item processed is higher than the value of the reserved goods – co-ownership (fractional ownership) to the newly created item at the ratio of the value of the reserved goods to the value of the newly created item. For the event that Hydroflex is not to acquire such ownership, the customer hereby assigns his future ownership or co-ownership of the newly created item to Hydroflex as security.
8.6 If the item is inseparably mixed with other items which do not belong to Hydroflex, then Hydroflex shall acquire co-ownership of the new item at the ratio of the value of the reserved goods to the other mixed items at time of mixing. For the event that the reserved goods are connected or mixed in such a way that the customer's item is to be considered the main item, the customer and Hydroflex hereby agree that the customer shall transfer proportional co-ownership of this item to Hydroflex. Hydroflex accepts this transfer.
8.7 For the event that the reserved goods are resold, the customer hereby assigns the receivable with the purchaser which arises from such – or a corresponding portion of such in the case that Hydroflex has co-ownership of the reserved goods – to Hydroflex. The same applies to other receivables which replace the reserved goods or otherwise arise with respect to the reserved goods, e.g. insurance claims or claims from tortious acts in case of loss or destruction. Hydroflex grants the customer irrevocable authority to collect the receivables assigned to Hydroflex on his own behalf. The right of Hydroflex to collect these receivables itself is not affected. However, Hydroflex shall not enforce these receivables itself and shall not revoke this authority to collect receivables for as long as the customer properly fulfils his payment obligations. However, insofar as the customer breaches the contract – in particular if he defaults on payment of a receivable – Hydroflex may demand that the customer inform Hydroflex of the assigned receivables and the respective debtors, notify the respective debtors of the assignment, and provide Hydroflex with all documents and information which Hydroflex requires to enforce the receivables.
8.8 If third parties take hold of the reserved goods, in particular due to such being pledges, the customer shall notify such parties immediately of the title of Hydroflex and shall inform Hydroflex in order that Hydroflex can enforce its rights of ownership. If the third party is unable to reimburse Hydroflex for legal or extra-judicial costs incurred in this regard, the customer shall be liable for such with respect to Hydroflex.
8.9 Upon demand of the customer, Hydroflex shall release the reserved goods and the items or receivables replacing such insofar as their realisable value exceeds the value of Hydroflex's outstanding receivables against the customer by more than 10%. Hydroflex shall be at liberty to decide which items shall be released.
9. Liability, limitations of liability and disclaimers
9.1 The liability of Hydroflex to pay damages, on whatever legal grounds, in particular due to impossible, delayed, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations, and tortious acts, is limited according to the provisions of this Sec. 9, insofar as such is dependent on culpability in each case.
9.2 Hydroflex is not liable in the event of simple negligence on the part of its organs, legal representatives, employees, or other agents, except in the event of a breach of cardinal contractual obligations. Cardinal contractual obligations are such which are necessary in order for the contract to be executed and the adherence to which the customer may regularly rely on. Cardinal obligations include the obligation to perform timely delivery and, where applicable, installation of the item, that such item be free from defects of title and such material defects which impair the functionality or usability of such to more than an insignificant degree, and advisory duties, duties of protection and duties of care which are intended to enable the customer to use the item in the contractual manner or to protect the life or limb of the staff of the customer or to protect the property of the same against significant damages.
9.3 Insofar as Hydroflex is liable to pay damages on the merit of a claim pursuant to Sec. 9.2 of these T&Cs, this liability shall be limited to damages which Hydroflex foresaw upon conclusion of contract as a typical consequence of contract or must have foreseen if Hydroflex had applied ordinary due diligence. Moreover, indirect damages and follow-up damages which are the result of defects in the item shall be compensated only insofar as such damages are typically to be expected during proper use of the item. The above regulations of this Sec. 9.3 do not apply in the event of wilful intent or gross negligent on the part of members of organs or senior employees of Hydroflex.
9.4 In the event of liability for simple negligence, Hydroflex's obligation to pay damages for material damages and additional financial losses arising therefrom is limited to an amount of €3,000,000 per damage event, and to a maximum of €1,000,000 per damage event for financial losses, up to a maximum of two insured events per year (equivalent to the current amount of coverage provided by the third-party liability insurance policy), even if cardinal contractual obligations have been breached. Hydroflex shall send the customer a copy of the insurance policy upon request. In the event that the insurer is not required to pay out and this is due to a breach of care on the part of Hydroflex, Hydroflex undertakes to reimburse the customer from its own funds to the amount of the insurance coverage.
9.5 The above limitations of liability and disclaimers apply to the same extent in favour of the organs, legal representatives, employees and other agents of Hydroflex.
9.6 Insofar as Hydroflex provides technical information or offers advice and this information or advice is not included in the contractually agreed scope of service which Hydroflex is liable to provide, such information and advice is made free of charge and under exclusion of any and all liability.
9.7 The restrictions of this Sec. 9 do not apply to the liability of Hydroflex for wilful intent, for guaranteed properties, for loss of life, physical injury or harm to health, or liability according to the Product Liability Act.
10. Applicable law, place of jurisdiction
10.1 All contracts established between Hydroflex and the customer are subject to the law of the Federal Republic of Germany only, under exclusion of the UN CISG.
10.2 The courts of Frankfurt am Main have exclusive jurisdiction for all disputes arising from or in connection with contractual relationships between Hydroflex and its customers.