General terms and conditions
Last updated: March 2019
1). Area of application
(a) The company Hydroflex Group GmbH, hereinafter referred to as Hydroflex, provides its deliveries and services exclusively on the basis of these general terms and conditions of business and delivery. These shall also apply to quotes made by Hydroflex and future transactions, even if Hydroflex does not expressly refer to them again upon conclusion of further business. These general terms and conditions of business and delivery only apply between Hydroflex and entrepreneurs. An entrepreneur is a natural or legal entity or an unincorporated firm, which, upon conclusion of a legal transaction, acts commercially or independently at the time of conclusion of a legal transaction. Deviating agreements are only valid if they are agreed separately in writing. Hydroflex’s general terms and conditions shall also apply if Hydroflex performs the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from Hydroflex’s general terms and conditions. Even if Hydroflex refers to a letter that contains or refers to the terms and conditions of the customer or of a third party, this shall not constitute an agreement with the validity of those terms and conditions.
(b) Changes and/or supplements to these general terms and conditions of business and delivery as well as any verbal guarantees made by Hydroflex employees shall require written confirmation from Hydroflex to be effective.
(a) Prices quoted are “ex works” (INCOTERMS 2010), without assembly, installation and packaging and plus the statutory value added tax.
(b) If a quote provided by Hydroflex has a validity period, acceptance period or binding period, the quote may be accepted until the expiry of the validity period or time limit.
3.) Contract conclusion, order acceptance, minimum quantity surcharge
(a) Every order acceptance as well as contract amendments, assurances and supplementary agreements [also concerning the waiver of the written form] and order confirmations, commercial letters of confirmation, etc. from the customer require written confirmation from Hydroflex to be effective. The content of this written confirmation is exclusively decisive for the contractual relationship. If no written confirmation has been issued by Hydroflex, a contract under the present terms and conditions shall nevertheless be entered into upon delivery of the goods.
(b) Hydroflex can refuse to accept orders without giving reasons.
(c) Descriptions and specifications specified at the time of contract conclusion represent the technical status at the time of contract conclusion. Hydroflex expressly reserves the right to make changes if these are equivalent in quality, features, conditions and suitability and do not change the price or execution and/or delivery deadlines.
(d) Hydroflex charges a minimum quantity surcharge of EURO 30.00 for order values under EURO 500.00. Sample deliveries are excluded.
(e) If the customer is an entrepreneur within the meaning of Section 14 BGB (German Civil Code), deviations customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts are permissible, provided that they do not impair the usability for the contractually intended purpose.
4.) Material specifications, advice
It is the customer’s responsibility to check the suitability and application of the goods to be procured from Hydroflex for the intended purpose prior to contract conclusion. Unless expressly agreed in writing, Hydroflex does not guarantee any suitability or application.
5.) Delivery, delivery period
(a) Adherence to the delivery or performance time requires the clarification of all technical issues as well as the timely receipt of all documents supplied by the customer, such as export papers, permits, certificates, clearances, plans, compliance with the agreed terms of payment and other obligations. Otherwise, the period can be reasonably extended. The right to raise objection to non fulfilment of the contract is reserved.
(b) If shipping has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport. If delivery is delayed for reasons for which the customer is responsible, the date of notification of readiness for dispatch shall be deemed the delivery date.
(c) In cases of strike, lockouts, war, force majeure or other obstructions for which Hydroflex is not responsible, Hydroflex shall be entitled to subsequently reject or postpone the delivery in whole or in part and/or to withdraw from the contract in whole or in part without this resulting in subsequent delivery or compensation claims from the customer.
(d) Unless expressly agreed otherwise in writing, Hydroflex is entitled to make and invoice partial deliveries at any time. In the case of sale by delivery to destination, shipping ex stock is always at the customer’s risk, even if carriage paid delivery has been agreed in individual cases or partial deliveries are made. Hydroflex shall not be liable for any damage during transport.
(e) In the case of sales by dispatch to destination, damaged or underweight deliveries must be documented on shipping documents prior to acceptance of the shipment. In the case of sales by dispatch to destination, the customer is free to take out transport insurance for the goods. Hydroflex is not obliged to take out transport insurance.
6.) Transfer of risk, liability for defects
(a) Even if carriage paid delivery or return shipping has been agreed, the risk shall pass to the customer as soon as the shipment has been dispatched by Hydroflex (handover to transport company) or collected by the customer. This will be different in the case of consumer goods purchase within the meaning of Sections 474 et seq. German Civil Code (BGB); the risk shall not pass to the customer until the shipment has been handed over. The goods are packaged with the utmost care and dispatched to the best of Hydroflex’s knowledge. If the dispatch, the commencement or the performance of the installation or the assembly is delayed at the request of the customer or for reasons for which the customer is responsible, the risk shall pass to the customer at the beginning of the delay.
(b) Claims for defects made by the customer presume that the customer has properly fulfilled his obligations to inspect and give notice of defects in accordance with Section 377 HGB (German Commercial Code). Section 377 HGB shall be applied as above for contracts for work and services. After the transfer of risk or acceptance of the product, the customer must immediately inspect it and make sure it is in working order and immediately notify us in writing of any established defects and hidden defects after their discovery, at the latest within a period of 7 days.
(c) If the contractual object is defective, Hydroflex shall be entitled to a supplementary performance of its choice in the form of remedial action or delivery of a new defect-free item. In the event of remedial action, Hydroflex is obligated to bear all expenses necessary for the remedial action, in particular transport, travel, labour and material costs. This shall not affect Hydroflex’s right to refuse the type of supplementary performance selected by the customer in accordance with Section 439 (3) BGB (German Civil Code) if it is only possible at an unreasonable cost. The customer shall bear the costs for the rest. If the supplementary performance fails, the customer can demand withdrawal or price reduction.
(d) The limitation period for defect claims is 12 months from the transfer of risk. This shall not apply to claims for damages due to defects that have been caused intentionally or by gross negligence or that have led to culpable injury to life, limb or health; in this respect the statutory time limits shall apply.
7.) Damages, liability
(a) The liability of Hydroflex for damages, for whatever legal reason, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and illegal acts, shall be limited in accordance with this section to the extent that this involves culpability.
(b) Hydroflex shall not be liable in the event of simple negligence of its corporate bodies, legal representatives, employees or other vicarious agents provided that it does not concern a violation of essential contractual obligations. An essential contractual obligation is one upon which the customer relies and should be able to rely. Material contractual obligations include, for instance, the obligation to deliver and install the object of delivery, which is to be free from material defects, on time and the obligation to provide advice, protection and care, which are to make it possible for the customer to use the object of delivery as contractually intended or protect the life, limb and health of the customer’s employees.
(c) In the event of a simple negligent violation of essential contractual obligations, Hydroflex shall only be liable for reasonably foreseeable damages typical for the contract. If the customer is an entrepreneur within the meaning of Section 14 BGB, this shall also apply in the event of gross negligence. Indirect damages and consequential damages resulting from defects of the delivery item shall only be eligible for compensation if these damages are typically to be expected when the delivery item is used in accordance with its intended purpose. .
(d) If Hydroflex is liable for damages for reasons in accordance with this section, this liability shall be limited to damages that Hydroflex foresaw at the contract conclusion as a possible consequence of a breach of contract or that Hydroflex should have foreseen if it had exercised due diligence.
(e) In the case of liability for simple negligence, the liability of Hydroflex for damages to property and personal injury is limited to the amount of € 3,000,000 per claim; in the case of financial loss to an amount of € 1,000,000 per claim for a maximum of two insured events per year (corresponding to the current sum insured of the business liability insurance), even if it is a breach of an essential contractual obligation. Upon request, Hydroflex shall send a copy of the insurance policy to the customer. In the event that the insurer is exempt from reimbursing a claim based on a breach of duty by Hydroflex, Hydroflex shall undertake responsibility for the customer from its own resources up to the amount of the sum insured.
8.) Payment conditions, retention, offsetting
(a) Unless otherwise agreed, all invoices are due for payment immediately. Discounts are not permitted without the consent of Hydroflex.
(b) Unless otherwise agreed, Hydroflex reserves the right to charge the invoice amount in advance.
(c) Hydroflex reserves the right to subsequently cancel a discount if the customer defaults on payment of another invoice issued by Hydroflex.
(d) Hydroflex reserves the right to hold back deliveries if the customer defaults on payment of another invoice issued by Hydroflex.
(e) Offsetting with anything other than undisputed or legally established claims is not allowed. The previous sentence shall not apply if a claim based on defective performance by Hydroflex is offset against this kind of claim for remuneration.
9.) Reminders, acceptance of goods
(a) Hydroflex is entitled to charge a handling fee of EURO 2.90 for each reminder.
(b) In the event of a temporary refusal to take delivery, 1% of the invoice amount for storage costs shall be deemed to have been agreed to be payable by the customer for each commenced calendar month of storage, irrespective of the claim for higher proven costs.
(c) If the customer ultimately does not accept the goods or if Hydroflex withdraws from the contract after unsuccessfully setting a deadline for acceptance, Hydroflex shall be entitled to claim 15% of the net invoice value from the customer as lump-sum compensation for costs and damages. If flat-rate damages are arranged, the customer shall retain the option of proving that Hydroflex has incurred no damage or only minor damage.
10.) Retention of title
(a) All goods deliveries are subject to retention of title. Delivered goods shall remain the property of Hydroflex until undisputed settlement of all open claims due at the time of delivery.
(b) In the event of processing, combining or mixing, the retention of title shall extend to the newly created object; the customer hereby transfers its ownership of the newly created objects to Hydroflex and shall keep them safe for Hydroflex with the diligence of a prudent businessman.
(c) The customer shall be obligated to immediately notify Hydroflex in writing of any seizure or other impairment of Hydroflex’s rights. If the Customer sells Hydroflex’s goods, regardless of their condition, it hereby assigns its own rights to Hydroflex that arise from the sale to its customers in advance, including all ancillary rights, up to the amount of the claims due to Hydroflex in accordance with the above provision, until all undisputed, outstanding claims due to Hydroflex at the time of delivery to the customer have been settled.
(d) At the request of Hydroflex, the customer is obligated to notify the purchaser of the assignment and to provide Hydroflex with the necessary information to assert its rights against the purchaser.
(e) The customer is obliged to treat the goods affected by the retention of title with care and to insure them sufficiently at their original value against fire, water and theft at its own expense. It must carry out maintenance and inspection work at its own expense.
(4) If goods are being delivered to foreign countries, Hydroflex may request that the customer provides an indefinite absolute guarantee governed by German law and issued by a bank licensed in the EU for the purpose of securing the payment claims.
(5) Hydroflex shall release the securities to which it is entitled at the customer’s request if the realisable assets of Hydroflex’s securities exceed the receivables to be secured by more than 20 %; Hydroflex shall be free to choose which securities to release.
11.) Place of performance, place of jurisdiction
(a) 35075 Gladenbach, Germany is agreed as the place of performance for all obligations arising from contracts with Hydroflex.
(b) German law shall apply to the entire contractual relationship between Hydroflex and its commercial contractual partner with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods, subject to any other individual agreements.
(c) If the contractual partner is a merchant, a legal entity under public law or a special fund under public law, Frankfurt am Main in Germany is agreed as the exclusive place of jurisdiction for all claims arising from or in connection with a contract. The same applies to persons who do not have a general place of jurisdiction in Germany or who have relocated abroad following contract conclusion or whose place of residence or regular abode is unknown at the time the action is filed.
12.) Severability clause
If one or more of the above provisions is or become invalid, this shall not affect the validity of the remainder of the general terms and conditions of business and delivery. In such a case, the parties shall undertake to replace the invalid clause with a valid clause that comes as close as possible to the economic meaning and purpose of the invalid clause.