General Terms and Conditions of Trade of HANS PRIES GMBH & CO. KG
As of June 25th, 2020
(1) All offers are subject to the following delivery terms on the part of Hans Pries GmbH & Co. KG (“the Seller”). These Terms and Conditions are the basis for all offers and agreements and are considered as accepted through the placement of an order or the acceptance of delivery for the duration of the entire business relationship. Any terms to the contrary, which have not been expressly recognised in writing shall be non-binding on the Seller, even if they have not been expressly gainsaid.
(2) Buyer, Consumer, Entrepreneur
The following terminology applies to these Terms and Conditions: a “Consumer”, according to §13 of the German Civil Code [BGB], refers to any natural person who concludes a legal transaction which can be ascribed neither to his business nor to his self-employed activity.
According to §14 of the German Civil Code [BGB] an “Entrepreneur” is a natural or legal person (entity) or a partnership with legal capacity, who, when concluding a legal transaction, acts in the exercise of his/her commercial or self-employed occupation.
For the purpose of the present terms and conditions, “the Buyer” shall refer to any Consumer or Entrepreneur who concludes a purchase agreement with Hans Pries GmbH und Co. KG.
§2 Prices and Terms of Payment
(1) Unless stated otherwise on the order confirmation, all prices are to be understood ex-works and do not include transport costs; these charges will be invoiced separately.
(2) Prices do not include sales tax; the current legal rate of sales tax will be shown separately on the invoice on the day of issue.
(3) The purchase price and any prices for other services or performances shall be due when the purchased item is handed over and the invoice is either handed over or sent. This is valid as well for between Seller and Buyer agreed payment in advance.
(4) Any cash discount can only be deducted following a separate written agreement.
(5) The Buyer may only set off any amounts against the Seller’s claims if the Buyer´s counter-claim is not contested or if a legally enforceable title has been awarded by a court; he/she may only claim right of retention (lien) if this resides in his/her claims from the actual purchase contract.
(6) In the case of orders from a new company the Seller reserves the right to demand payment in advance.
(7) If, following the conclusion of a contract, the Seller becomes aware of circumstances which cast the creditworthiness of the Buyer into doubt, the Seller shall be entitled to demand payment in advance or the placing of a security payment. The same applies if the Buyer defaults in respect of any of his/her obligations towards the Seller.
If the Parties have agreed to direct debit payments or direct debit authorisation, then the Buyer hereby waives any rights he/she may have to cancel any outgoing payments, in respect of the Buyer’s banks and of the Seller, and for the duration of the business transaction and the validity of the direct debit agreement,. The Buyer shall inform his/her banks of said waiver and shall disclose this to the Seller on demand.
(8) If the Buyer defaults on any obligations to pay, then all payment deadlines shall become void in respect of all items of business concluded between the Buyer and Seller.
(9) All offers and prices apply exclusively to Buyers, who are not Consumers.
(1) Delivery dates and deadlines can be agreed as binding or non-binding, but must be agreed in
writing. Delivery deadlines shall be effective as soon as the contract has been made.
(2) If the Seller fails to deliver on time, or is unable to deliver for whatever reason, the Buyer shall
not be entitled to claim damages of any kind unless the Seller him/herself caused the delay or non-fulfilment in a grossly culpable way (i.e. by gross negligence).
(3) Any claims for damages notified to the Seller by the Buyer in printed or written manner on a Buyers form are only valid if such claims have been explicitly confirmed in writing by the Seller.
(4) Force majeure or other events which temporarily prevent the Seller, without his or her being at fault, from delivering the purchased item on the agreed date or before the agreed deadline shall entitle the Seller to prolong the delivery or service period by the length of the delay, plus a reasonable start-up time. If the stoppage or fault results in a delay in performance of more than four months, the Buyer can withdraw from the contract. In the case of such a withdrawal, other rights shall remain unaffected.
(5) The Buyer is obliged to accept the purchased item. If the Buyer defaults on acceptance, the Seller is entitled to demand compensation for the damage incurred.
(6) Any changes in design or shape, any deviations in colour or shade, and any amendments to the scope of supply on the part of the manufacturer shall be allowed during the period allotted for delivery, providing that it is reasonable to expect the Buyer to accept these changes or deviations, taking into consideration the interests of the Seller. If the Seller or Manufacturer uses lettering or numbers to describe the order or the purchased item, then no rights with regard to the ascertainment descriptions of the purchased item or the scope of supply can be derived from this fact alone.
(7) In the case of call-off contracts the Seller is entitled to procure the materials for the complete order. Therefore, any requests for changes submitted by the Buyer after such a contract has been awarded cannot be acceded to, unless the Parties have reached an explicit agreement to the contrary.
§4 Transfer of Risk
(1) The risk of accidental destruction or accidental deterioration of the item shall transfer to the Buyer on handover.
(2) If the Buyer is not a Consumer, then this risk shall transfer to the Buyer when the item is dispatched, when the item has been handed over to the person carrying out the transport or when the goods have left the Seller’s warehouse for purposes of dispatch.
§5 Liability for Material Defects
(1) According to § 434 (1) Sentence 2 No. 1 German Civil Code [BGB], the contractually required use of spare parts is restricted to their assembly into those vehicles described in our catalogues with the specific vehicle data shown. If the spare parts are fitted into any other vehicles, any tuned-up vehicles or any non-assembly-line vehicles, or used for any other purpose, then all liability for material defects shall be excluded.
(2) If the Buyer is not a Consumer, then the statutory limitation period for material defects in newly manufactured items shall be one year. Otherwise, the legal statutory limitation period of two years shall apply. In the case of used items, the limitation period shall be one year, if the Buyer is a Consumer. If the Buyer is not a Consumer, then the purchase of used items shall be excluded from any liability for defects.
(3) The above reduction in the limitation period and the exclusion of liability for defects in the case of the sale of a used item shall not apply to any liability for any damage caused by gross negligence, by a deliberate act or for damage which causes loss of life, physical injury, or damage to health, and which is caused by any dereliction of duty on the part of Seller. Any dereliction of duty on the part of the Seller’s authorised representative or vicarious agent shall represent a dereliction of duty on the part of the Seller.
(4) Any claims against the Seller to remedy a defect shall, of priority, be limited to claims for supplementary performance, i.e. claims to replace or repair. If the Buyer is not a Consumer, then the Seller shall have the choice of either repairing or replacing the item. If the remedy or replacement fails, the Buyer can declare impairment of the contract or can withdraw from the contract. The remedial action shall be considered to have failed if and inasmuch as a deadline set for Seller to complete his/her supplementary performance has lapsed without any result. The conditions for exercising the right of withdrawal are defined in §323 German Civil Code [BGB].
(5) The Seller shall be liable in accordance with current law if the Buyer claims for any damages arising from malice, deliberate intent or gross negligence, including any malice, deliberate intent or gross negligence on the part of his/her representatives or vicarious agents. Unless the Seller is charged with deliberate breach of contract, then his/her liability shall be restricted to the foreseeable typical damage in each case. If the claim for damages resides in the culpable failure to rectify a fault, then with respect to any installation and de-installation costs, the claim shall be limited to the corresponding fees contained in the DAT/Schwacke List. In other cases any liability for material defects shall be excluded; in this respect the Seller shall, in particular, not be liable for any damage caused otherwise than to the delivered item directly, unless the damage involves loss of life, physical injury and/or damage to health.
(6) If he/she decides on remedy, the Seller is obliged to bear the costs of all expenses in connection with remedying the fault, in particular transport, call-out, labour and material costs. In respect of Buyers, who are not Consumers, this only applies inasmuch as the costs do not increase if the purchased item has been transported to a different location other than the original place of fulfilment.
(7) The Buyer must press any claims in respect of remedy against the Seller.
(8) If a Buyer, who is not a Consumer, returns goods, then he/she shall initially bear the costs of that return. If the goods returned show evidence of a defect, which is the fault of the Seller, then the Seller shall reimburse the said Buyer. If a Buyer, who is not a Consumer, returns goods carriage forward, then he/she must reimburse the additional costs incurred by the Seller arising from the carriage forward delivery (the difference between the extra postage and the normal costs of a pre-paid consignment).
(9) In the case of a defect the obligation of the Seller in respect of his/her liability for a material defect only holds if the assembly or installation of the item sold has been correctly carried out by an expert. The Buyer must document and show that the assembly was correctly carried out by an expert.
§6 Commercial Regress in the case of a Sale to a Commercial Retailer
(1) If the Buyer resells the sold item to a Consumer as part of his/her commercial activity and is forced to take it back because it is defective, or if he/she has had to reduce the purchase price, then the Buyer can press his/her liability claims for material defects against the Seller without setting any deadlines.
(2) The Buyer can also demand the reimbursement of any expenses which he/she has had to bear arising from his/her relationship to the Consumer, if the defect claimed by the Consumer was already present at the transfer of risk to the Buyer. These expenses shall include, in particular, transport, call-out, labour and material costs.
(3) Within this commercial regress the Buyer has no claim for damages.
§7 Retention of Ownership
(1) The purchased item shall remain the property of the Seller until all demands due to him/her arising from the purchase agreement have been met. If the Buyer is a businessperson as defined by the German Commercial Code [HGB], then the Seller reserves the right of ownership in respect of all items delivered until all payments arising from the transaction have been made.
(2) The Buyer shall be entitled to resell the item in the proper course of business; as of now however, he/she assigns to Seller all demands to the tune of the final invoiced sum of the purchase price owed to him/her (including sales tax) which have resulted from the resale to his customer or to a third party, irrespective of whether the supplied items were resold with or without any further processing. The Seller hereby expressly accepts this assignment. The Buyer shall be empowered to collect his/her demands even after this assignment. The entitlement of the Seller to collect these demands his/herself shall remain unaffected by this. The Seller undertakes not to collect the demand his/herself as long as the Buyer fulfils his/her contractual obligations regarding payment and as long as no application has been made to open insolvency proceedings. If one of the latter circumstances has occurred, then, at the request of the Seller, the Buyer must disclose all details to the Seller which are necessary to collect the assigned demand, must hand over all the concomitant documents and must inform the respective debtors (third parties) of the assignment.
(3) If the value of the Seller’s collateral exceeds the demands to be secured by more than 20%, then the Seller shall be obliged at the request of the Buyer to release the collateral to which he/she is due. The Seller shall decide which collateral to release.
§8 Transport Damage
(1) The freight carrier shall be liable for any and all claims for transport damage compensation in all instances.
§9 Place of Jurisdiction – Place of Fulfilment
(1) The place of fulfilment is the Seller’s headquarters.
(2) If the Buyer is a ‘businessperson’ according to the definition of the German Commercial Code [HGB] or is a legal entity under public law or a special fund under public law, then the place of jurisdiction shall be the Seller’s headquarters.
§10 Concluding Provisions
(1) The business relationship between Seller and Buyer shall be governed exclusively by the laws of the Federal Republic of Germany. The Uniform Law on the International Sale of Moveable Goods and the Uniform Law on the Formation of Contracts for the International Sale of Moveable Goods dated 17.07.1973 are hereby explicitly excluded. The UN Convention on Contracts for the International Sale of Goods is inapplicable.
(2) Should any provision of these General Terms and Conditions prove or become ineffective, the remaining provisions shall remain unaffected. The ineffective provision shall be replaced by the legally effective ruling which most closely approximates to the intent and purpose of the ineffective provision.
(3) The Seller stores data in compliance with German statutes on data protection.
HANS PRIES GMBH & CO. KG
As of June 25th, 2020