General Terms and Conditions

General Terms and Conditions of Sale and Delivery of Wilhelm HAAS Bürstenfabrik, proprietor S. Vogel, 78166 Donaueschingen

1. General Provisions; Formation of the Contract

1.1 These Terms and Conditions apply exclusively to all current and future offers, deliveries and/or services provided to our German commercial customers, i.e. entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) who acquire these goods and/or services for commercial or professional use. This shall also apply if we do not separately confirm individual orders. Any terms and conditions of the Customer that conflict with or deviate from our Terms and Conditions shall apply only if we expressly confirm them in writing. This requirement for confirmation shall apply in all cases, including where we perform the delivery without reservation despite being aware of the Customer’s general terms and conditions. By placing the order, and at the latest upon accepting the goods and/or services delivered or provided by us, the Customer expressly acknowledges the exclusive applicability of our Terms and Conditions of Sale and Delivery. We shall be entitled to withdraw from the contract if the Customer objects to the applicability of our Terms and Conditions.
1.2 All delivery agreements, as well as any amendments, supplements, ancillary agreements, declarations relating to their termination and other declarations or notices, must be made in text form, including by fax or email, unless otherwise agreed in these Terms and Conditions. All our offers are subject to change and non-binding unless we expressly designate them as binding offers. Even in an ongoing business relationship, a delivery contract shall only be formed once we confirm the Customer’s order in writing or in text form. This may also be replaced by our delivery, in which case dispatch of the delivery shall be decisive for the formation of the contract. We will gladly take color requests into account where possible, subject to stock availability. The Customer shall have no claim to delivery of the colors ordered.
1.3 If the Customer and we have concluded a written individual contractual agreement, in particular a partnership agreement or a central settlement agreement with an association to which the Customer belongs, the provisions of such agreement shall take precedence over these Terms and Conditions insofar as the respective provisions conflict.
1.4 During the respective current sales season, the Customer must comply with the conditions specifically agreed with the Customer by us in text form for advance and subsequent orders, target agreements and similar arrangements.

2. Prices; Default in Payment; Set-Off

2.1 The prices and discounts valid on the date of delivery or performance shall apply, plus the statutory sales tax payable in each case. Unless otherwise agreed in our order confirmation or on an individual basis, our prices are based on the list prices valid during the delivery period confirmed by us, ex works or ex warehouse, excluding packaging, freight costs, customs duties and other ancillary charges, but plus any applicable value-added tax (Incoterms, 2010 edition). For order quantities that do not reach the minimum quantities and/or minimum order value specified in our applicable price list, we may charge a processing surcharge.
2.2 We shall be bound by the prices agreed for an order for a period of six weeks from conclusion of the contract. Unless expressly agreed otherwise in writing with the Customer, we shall be entitled to adjust the price accordingly in the event of unforeseeable increases in the factors underlying our price calculation for which we are not responsible, in particular due to increases in material, labor and raw-material costs, changes in currency parities, inflation-related increases, etc.
2.3 Unless expressly agreed otherwise in writing with the Customer, our invoices shall be payable by the Customer no later than 30 days after the invoice date, without deduction. If payment is made within ten days, we grant the Customer a 2% early-payment discount. Discounts granted are subject to complete and correct acceptance of the order and payment within the agreed period. In the event of returned goods, discounts already granted shall be charged back to the Customer. In the case of partial deliveries, we shall be entitled to issue corresponding partial invoices. If the Customer participates in the SEPA direct debit scheme, the payment advice shall be sent on the day on which the goods are dispatched. The minimum order value is EUR 100.00 net. Orders below the minimum order value shall be subject to a surcharge of EUR 5.00.
2.4 Payments by the Customer shall be deemed to have been made only once we have unrestricted access to the corresponding amounts. Payment instructions, checks and bills of exchange shall be accepted only on account of performance, with all collection and discount charges being borne by the Customer.
2.5 Once the Customer is in default, default interest shall be charged at a rate of nine percentage points above the applicable base interest rate of the European Central Bank in force when the payment claim fell due. We expressly reserve the right to assert further damages.
2.6 If we become aware of circumstances that call the Customer’s ability to perform into question, we expressly reserve the right to make further deliveries exclusively against advance payment or the provision of security, or to suspend such deliveries temporarily until all outstanding payments by the Customer have been made. We shall also be entitled to withdraw, in whole or in part, from delivery contracts already concluded with the Customer if the Customer fails to provide advance payments or security requested by us.
2.7 The Customer shall only be entitled to set off claims if its counterclaims have been finally adjudicated, are undisputed or have been expressly acknowledged by us in writing. The Customer may withhold payments due to defects in parts of our deliveries or services only to the extent corresponding to the reduced value of the defective delivery or service (Clause 4.6 below). We shall be entitled to avert rights of retention, including the defense of non-performance of the contract, by providing security, in particular bank guarantees. Such security shall be deemed to have been provided at the latest when the Customer is in default of acceptance of it.

3. Delivery; Impediments to Delivery; Amendments to the Contract

3.1 Delivery dates or delivery periods shall always be non-binding and approximate, except where fixed delivery dates have been expressly agreed in writing. They shall be deemed to have been met if the goods are dispatched on time or—if collected by the Customer—if notice of readiness for dispatch is given on time. In all cases, a delivery period shall not begin until all technical and other issues relating to the delivery have been clarified. We shall be entitled at any time to make partial or early deliveries. Subsequent orders and all other modifications to a previous order requested by the Customer shall be deemed to constitute a new order. In the case of orders blocked for creditworthiness reasons, the confirmed delivery dates shall become invalid; once the block has been lifted, new delivery dates to be confirmed by us in writing shall apply.
3.2 Unless expressly agreed otherwise in writing, all our deliveries shall be made for the account and at the risk of the Customer. In addition, the Incoterms of the International Chamber of Commerce in Paris, as amended from time to time, shall apply. The goods shall be deemed to have been delivered in accordance with the contract if they correspond to the product descriptions applicable to end consumers. This shall also apply in the event of minor or customary deviations in quality, dimensions, color, weight and similar characteristics, provided that such deviations do not materially impair the intended use of the goods. Other changes to the goods shall only be permissible with our prior consent.

4. Warranty; Notices of Defects; Returns

4.1 The Customer’s rights in the event of defects in quality or title, including incorrect or short deliveries and improper assembly or defective assembly instructions, shall be governed by the statutory provisions unless otherwise provided below. If our contractual performance also includes assembly of delivered goods, or if the matter concerns an independent repair order or other contracts for work and services, the following provisions shall also apply to any assembly, repair and other work and services.
4.2 Goods delivered by us must be carefully inspected immediately after delivery to the Customer or to a third party designated by the Customer. If externally visible damage to the packaging or the goods is already apparent upon delivery, the delivery must be checked for completeness and damaged goods in the presence of the driver, and the damage must be reported to the carrier in writing on the receipt. The damaged goods should also be photographed and other evidence secured in order to avoid subsequent loss of rights. In the case of obvious defects or other quantities that would have been recognizable during an immediate and careful inspection, the goods shall be deemed approved by the Customer unless we receive a written, itemized notice of defect from the Customer within seven working days after delivery. Other defects shall be deemed approved by the Customer unless we receive notice of the defect within seven working days after the date on which the relevant defect became apparent. If the defect was recognizable to the Customer at an earlier time, that earlier date shall be decisive for the commencement of the notice period. If the goods delivered by us were not manufactured by us but sourced from upstream suppliers, we shall initially fulfill our warranty obligations by assigning to the Customer all warranty claims against our upstream suppliers. The Customer accepts this assignment in settlement of the claim. In such case, we shall provide warranty coverage only on a subsidiary basis and after the upstream supplier has been pursued through legal proceedings.
4.3 In the event of an incorrect or excess delivery, the Customer shall be obliged to return the relevant goods to us immediately, in their original packaging and without any alteration to their original condition. We shall provide the Customer with a return form for this purpose. If the goods returned to us show damage or alterations to their original condition, or are no longer in their original packaging and can therefore no longer be resold without additional expenditure on our part, the amount credited to the Customer shall be reduced by 30% of the total invoice amount. We expressly reserve the right to prove and assert greater damage.
4.4 If, after inspection, the delivered goods are actually found to be defective, we shall initially be entitled to choose whether to remedy the defect by repair or by delivering defect-free goods. Our right to refuse subsequent performance under the statutory conditions shall remain unaffected. If an item is no longer available in the event of replacement delivery, it shall be replaced by another item that comes as close as possible to the unavailable product.
4.5 All warranty claims of the Customer shall be excluded if and to the extent that the Customer has failed to observe our assembly, operating, maintenance and/or care instructions. The same shall apply to damage caused by improper use or application, commissioning, alteration or repair, faulty and/or negligent treatment, and/or natural wear and tear.
4.6 We shall be entitled to make any required subsequent performance conditional upon the Customer paying the purchase price due. However, the Customer shall be entitled to withhold a reasonable portion of the purchase price in proportion to the defect.
4.7 The Customer shall be obliged to give us the time and opportunity required for the due subsequent performance, in particular to hand over the complained-of goods to us for inspection. The goods must be sent to us carriage paid and accompanied by a specific description of the defect and a copy of the invoice or delivery note. We shall bear the expenses required for inspection and subsequent performance, in particular transport, travel, labor and material costs, provided and to the extent that a defect actually exists; dismantling and/or installation costs shall not be included. If the Customer’s request for remedy of the defect proves unjustified, we may demand reimbursement of the resulting costs. If we refuse repair or replacement, if such remedy fails, or if it is unreasonable for the Customer, the Customer may, at its choice and in accordance with the applicable statutory provisions, withdraw from the delivery contract, reduce the purchase price and/or claim damages subject to the provisions of Clause 6. This shall not apply in the case of merely minor defects.
4.8 The mere specification of performance data or other descriptions of the content or performance shall not constitute a guarantee of quality or manufacture by us. We shall assume further guarantee or warranty obligations only if expressly agreed in writing. In all cases, the Customer’s claims based on defects shall become time-barred twelve months after receipt of delivery of the relevant goods by the Customer. This shall not affect the limitation provisions of Section 479 BGB or other statutory rights of the Customer based on fraudulently concealed or intentionally caused defects.
4.9 Unless covered by our liability for defects, spare-part deliveries and the return shipment of repaired goods shall be made against a reasonable flat-rate charge for shipping and packaging costs, in addition to remuneration for the services provided by us in this connection. As a general rule, we shall only accept goods that the Customer purchased from us within the last three months calculated from the invoice date. Goods not included in our currently valid price list, or whose presentation or packaging has been altered, shall generally be excluded from exchange or credit. The same shall apply to items that have already been price-marked by the Customer or are damaged.
4.10 The provisions of this Clause 4 shall apply accordingly to defects in title.
4.11 Special orders, customized products and individually printed items shall always be excluded from return.

5. Retention of Title and Other Security Interests

5.1 We expressly retain title to the delivered goods until all payments arising from the specific order have been received or, in the case of an ongoing business relationship, until all outstanding claims have been settled. If the claims are included in a current account, the retention of title shall apply to the respective balance.
5.2 The Customer shall be entitled to resell the delivered goods in the ordinary course of business. A resale shall not be deemed to take place in the ordinary course of the Customer’s business if, for example, the Customer has agreed an effective prohibition of assignment with its customer; inclusion in a current account shall, however, be permissible. In the event of resale, the Customer hereby assigns to us in advance all claims against its customers and/or other third parties in the amount of the respective final invoice total, including sales tax, ancillary costs and any interest. In the case of a current-account relationship, the retained title shall serve as security for our balance claim. The Customer shall remain entitled and obliged to collect these claims until such authorization is revoked by us, even after the claims have been assigned. In particular, if we become aware of a deterioration in the Customer’s financial circumstances, we shall be entitled to collect the assigned claims ourselves. Unless expressly agreed otherwise with us, the Customer shall be obliged, for the purpose of securing our rights in the event of resale or other disposal of the goods subject to retention of title, to disclose the existing ownership situation in relation to such goods to third parties.

5.3 Any disposal of goods subject to retention of title that impairs our rights, such as pledging, transfer by way of security or assignment, shall be prohibited. The Customer must notify us in text form by the fastest possible means of any threatened interference or disposal by third parties, in particular seizures, so that we can assert our rights. In the event of an action pursuant to Section 771 of the German Code of Civil Procedure (ZPO), the Customer shall reimburse us for the court costs and out-of-court costs incurred in this connection if the third party against whom the action was brought is unable to reimburse them.
5.4 The Customer expressly agrees that, if our security interests are threatened, we shall be entitled to collect or otherwise secure the goods subject to retention of title, and that such securing of the goods shall not constitute unlawful self-help. For this purpose, we shall be entitled to enter all storage and business premises of the Customer insofar as this is necessary to enforce our rights. The Customer undertakes to provide unrestricted cooperation in this respect.
5.5 We undertake to release existing security interests at the Customer’s request if their value exceeds the claim to be secured by 20%. In the case of an ongoing business relationship, the aforementioned percentage shall be calculated by reference to all claims existing against the Customer.
5.6 The Customer shall be obliged to insure the goods subject to our retention of title against fire, water, theft and other customary operational risks and hereby assigns to us the resulting claims against the insurer insofar as they relate to such goods.

6. Limitations of Liability

6.1 We shall be liable without limitation for damages based on intent or gross negligence. In cases of ordinary negligence, we shall be liable only for damages arising from injury to life, body or health and for damages arising from the breach of a material contractual obligation. Material contractual obligations are obligations whose fulfillment is essential for the proper performance of the delivery contract and on whose compliance the Customer regularly relies and is entitled to rely. In these cases, however, our liability shall be limited to compensation for the foreseeable damage typically occurring.
6.2 The above limitations of liability shall not apply if we fraudulently concealed a defect, for which the Customer bears the burden of proof, or if we expressly assumed a written guarantee of the quality or functionality of the relevant goods. The same shall apply to liability under applicable mandatory statutory provisions, such as the German Product Liability Act, and in cases of delay in delivery where a fixed delivery and/or performance date had been agreed.
6.3 In the event of a breach of duty that does not consist of a defect, the Customer may withdraw only if we are responsible for the breach.
6.4 In the case of information and instructions, materials or other elements of the order provided by the Customer, we shall not be liable unless expressly agreed otherwise, and the Customer shall fully indemnify and hold us harmless against all third-party claims from the time such claims are asserted.
6.5 The Customer’s claims for damages based on a defect shall become time-barred one year after delivery of the goods. This shall not apply if we are accused of fraud or in cases of injury to the life, body or health of the Customer attributable to us.
6.6 Our liability shall be limited in amount for each individual loss event to a maximum amount equal to the net annual sales generated with the Customer in the year preceding the assertion of the claim. This limitation shall not apply in cases of fraud, intent or gross negligence, to claims arising from injury to life, body or health, or to claims based on a tortious act, an expressly assumed guarantee, the assumption of a procurement risk under Section 276 BGB, or cases in which mandatory statutory provisions provide for a higher liability amount.
6.7 Any further liability on our part shall be excluded, irrespective of the legal nature of the claim asserted. This shall apply in particular to claims for damages based on culpa in contrahendo, other breaches of duty or tort claims for compensation for property damage under Section 823 BGB. The exclusions and limitations of liability contained in this Clause shall apply to the same extent for the benefit of our corporate bodies, our managerial and non-managerial employees, other vicarious agents and our subcontractors.

7. Intellectual Property Rights

7.1 The Customer expressly acknowledges our sole intellectual property rights and/or exclusive rights of use in the intellectual property rights used by us, including trademark rights, registered designs, utility models, patents, copyrights and similar rights, and shall not directly or indirectly undertake any activities that could adversely affect these rights.
7.2 For the duration of the business relationship with the Customer, we grant the Customer a non-exclusive and revocable license to use our intellectual property rights solely for the Customer’s own marketing purposes and within the scope of its role in distributing our products. This relates in particular, but not exclusively, to the use of our logos, trademarks, images, photographs, texts and similar materials, as well as all other intellectual property rights belonging to us, in advertising and sales-promotion materials expressly authorized in advance by us, whether in print, point-of-sale or internet-based media (the “Materials”). Any transfer of the Materials to third parties shall be prohibited, except where such transfer serves solely the purpose of producing advertising or sales-promotion materials using the Materials by agencies commissioned by the Customer.
7.3 In order to ensure that the Materials used by the Customer offline and online meet the quality requirements appropriate and necessary for maintaining our intellectual property and industrial property rights, we reserve the right to make any future use of these Materials subject to our express prior written consent. The use of images of persons and their names, references and similar content in connection with our products, with which we are associated for advertising or other purposes, shall in all cases require our express prior written consent.
7.4 The Customer shall promptly remove outdated product information from its marketing and advertising materials and replace it with current information.
7.5 In the event of a breach of the provisions contained in this Clause 7, particularly in the event of repeated breaches, we reserve the right, irrespective of any other rights available to us in such circumstances, to cease supplying the Customer temporarily or permanently in the future.
7.6 In every case in which the business relationship ends, irrespective of the legal grounds for such termination, the Customer shall immediately cease using our intellectual property rights and shall immediately cease using offline and online any Materials still in its possession. Materials that we have provided to the Customer for sales-promotion purposes shall be returned to us immediately or handed over to a person appointed by us.
7.7 Any further individual contractual agreements with the Customer, particularly in the area of the Customer’s B2C e-commerce activities, shall take precedence over these General Terms and Conditions of Sale and Delivery insofar as they conflict with them.

8. Data Protection; Confidentiality

8.1 We point out that, in the course of our business activities, we store and process personal data electronically at a central location, in particular for the purpose of processing orders quickly and without errors, while observing the statutory provisions. Any use beyond this shall be subject to receipt of the Customer’s corresponding express prior consent.
8.2 At the Customer’s express written request, we shall provide the Customer free of charge with information about the personal data stored concerning the Customer and shall, likewise at the Customer’s request, correct, block or delete such data insofar as we are legally obliged to do so.
8.3 For the purpose of checking the Customer’s creditworthiness and financial standing, the Customer authorizes us to exchange data with specialized external service providers, such as SCHUFA GmbH.
8.4 We shall be entitled to disclose personal data to third parties insofar as this is necessary to execute the relevant order and, insofar as compatible with the applicable statutory provisions, to use such data for our own advertising purposes.
8.5 All Materials and information provided by us to the Customer shall be treated by the Customer as strictly confidential unless they are publicly accessible, generally known or obviously intended for disclosure. The Customer may not reproduce, publish or otherwise make them available to third parties without our prior express consent. Upon termination of the business relationship with us, the Customer shall, at our discretion, immediately return them to us and/or destroy them.

9. Place of Performance; Place of Jurisdiction; Applicable Law

9.1 The place of performance for all obligations arising from the business relationship with the Customer shall be our registered office in 78166 Donaueschingen, unless the specific nature of the obligation mandatorily requires otherwise.
9.2 In transactions with merchants, legal entities under public law or special funds under public law, and unless another exclusive place of jurisdiction is established by law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be 78166 Donaueschingen. For the avoidance of doubt, this jurisdiction provision shall also apply to circumstances between us and the Customer that may give rise to non-contractual claims within the meaning of Regulation (EC) No. 864/2007. However, we shall also be entitled to sue the Customer before the court having jurisdiction at the Customer’s registered office and before any other court with jurisdiction under applicable law.
9.3 These Terms and Conditions of Sale and Delivery and the entire legal relationship between us and the Customer shall be governed exclusively by the law of the Federal Republic of Germany, excluding conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods (CISG), if the Customer’s registered office is outside the Federal Republic of Germany. It is expressly clarified that this choice of law is also intended to constitute a choice of law within the meaning of Article 14(1)(b) of Regulation (EC) No. 864/2007 and shall therefore also apply to non-contractual claims within the meaning of that Regulation. If foreign law must mandatorily be applied in an individual case, these General Terms and Conditions shall be interpreted in such a way that the economic purpose pursued by them is preserved to the greatest extent possible.

10. Final Provisions

10.1 All amendments and/or supplements to contractual agreements concluded with the Customer, including these Terms and Conditions of Sale and Delivery, must be made in writing. This shall also apply to any amendment of this written-form requirement itself.
10.2 Any complete or partial failure or delay on our part in asserting any right against the Customer shall not constitute a waiver of that right or of any other right.
10.3 Our employees, commercial agents or other representatives who are not members of our management and who have not been granted procuration or commercial power of attorney shall not be entitled to make legally binding declarations on our behalf unless we have given our express prior written consent.
10.4 Unless otherwise provided in the above provisions or by mandatory statutory liability, all claims of the Customer against us shall become time-barred within six months from the date on which the Customer became aware, or should have become aware, of the relevant circumstances, and in any event, irrespective of such knowledge, within three years from the invoice date of the relevant delivery, regardless of the nature of the claims.
10.5 If any provision of these Terms and Conditions of Sale and Delivery is or becomes invalid or legally unenforceable, the validity of the remaining provisions shall remain unaffected. We shall replace the invalid or unenforceable provision with a valid or enforceable provision that most closely corresponds to the economic purpose of the invalid or unenforceable provision.
10.6 We expressly reserve the right to amend and/or supplement these Terms and Conditions of Sale and Delivery insofar as we consider this necessary. We shall then promptly provide the Customer with the appropriately amended new version in writing, which shall fully replace the present version. The same shall apply accordingly to previous versions of these Terms and Conditions of Sale and Delivery. All orders placed by the Customer and confirmed by us before the amended new version was sent shall be performed on the basis of the previous version of these Terms and Conditions.

Legal Notice

The German original document is the legally authoritative version of these General Terms and Conditions of Sale and Delivery. This English translation is provided solely for convenience and to facilitate understanding of the content. In the event of any discrepancy, ambiguity or conflict between the German original and this translation, the German original shall prevail. The translation does not replace the German original and does not constitute independent legal advice.

Wilhelm HAAS Bürstenfabrik, proprietor S. Vogel, Eisenbahnweg 8, 78166 Donaueschingen, www.haas-manufaktur.de