General Terms and Conditions of Delivery of Hydrosonic



§1 Validity

(1) All deliveries, services and offers of Hydrosonic Technology & Metering GmbH (hereinafter referred to as "Seller") are made exclusively on the basis of these General Terms and Conditions of Delivery (GTC). These are an integral part of all contracts that the Seller concludes with its contractual partners (hereinafter referred to as "Client") regarding the deliveries or services offered by it. They also apply to all future deliveries, services or offers to the Client, even if they are not separately agreed again.

(2) Differing, conflicting or supplementary terms and conditions of the Client or third parties shall not apply, even if the Seller does not specifically object to their validity in individual cases. Even if the Seller refers to a letter that contains or refers to terms and conditions of the Client or a third party, this does not constitute consent to the validity of those terms and conditions.

(3) Individual agreements made with the Client in individual cases (including ancillary agreements, additions or amendments) shall in any case take precedence over these General Terms and Conditions.

§2 Offer and conclusion of contract

(1) All offers from the seller are non-binding and subject to change unless they are expressly marked as binding or contain a specific acceptance period. The seller can accept orders or contracts within 14 days of receipt.

(2) The sole basis for the legal relationship between the seller and the client is the written purchase contract, including these General Terms and Conditions. This fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Verbal promises made by the seller prior to the conclusion of this contract are legally non-binding and verbal agreements between the contracting parties are replaced by the written contract, unless expressly agreed otherwise between the contracting parties.

(3) Additions and amendments to the agreements made, including these General Terms and Conditions, must be in writing to be effective. With the exception of managing directors or authorized representatives, the seller's employees are not authorized to make oral agreements that deviate from the written agreement. To comply with the written form, telecommunication transmission, in particular by fax or email, is sufficient.

(4) Information provided by the seller on the subject of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as representations of the same (e.g. drawings and illustrations) are only approximately relevant unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or markings of the delivery or service. Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible as long as they do not impair the usability for the contractually intended purpose.

(5) The seller reserves ownership or copyright of all offers and cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the customer. The customer may not make these items accessible to third parties, either as such or in terms of content, without the express consent of the seller, or disclose them, use them himself or through third parties, or reproduce them. At the seller's request, the customer must return these items in full to the seller and destroy any copies made if they are no longer required by him in the normal course of business or if negotiations do not lead to the conclusion of a contract. This does not include the storage of data made available electronically for the purpose of normal data backup.

(6) If changes are made to the Seller's products after conclusion of the contract - as part of the ongoing development of the Seller's products - the Seller is entitled to deliver the changed version, provided that the quality of the products is at least equal to that agreed in the contract. We are entitled to deviate from models, samples, plans, illustrations, drawings, descriptions, colors, weight, dimensions and other information, provided that the quality and technical conditions of use of the products are not changed as a result.

§3 Prices and Payment

(1) The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. The prices are in EUR ex works plus packaging, statutory VAT, customs duties for export deliveries, fees and other public charges.

(2) If the agreed prices are based on the Seller's list prices and delivery is not to take place until more than four months after the conclusion of the contract, the Seller's list prices valid at the time of delivery shall apply (each less an agreed percentage or fixed discount).

(3) Invoice amounts are to be paid within thirty days without any deductions, unless otherwise agreed in writing. The date of payment is the date of receipt by the seller. Payment by check is not possible unless separately agreed in individual cases. If the customer does not pay when due, the outstanding amounts will be subject to interest at 5% pa from the due date; the assertion of higher interest and further damages in the event of default remains unaffected.

(4) Set-off against counterclaims of the Client or withholding of payments due to such claims is only permissible if the counterclaims are undisputed or have been legally established or arise from the same order under which the delivery in question was made.

(5) The Seller is entitled to carry out or provide outstanding deliveries or services only against advance payment or security if, after conclusion of the contract, it becomes aware of circumstances which are likely to significantly reduce the creditworthiness of the Client and which endanger the payment of the Seller's outstanding claims by the Client from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).

§4 Delivery and delivery time

(1) Deliveries are made ex works.

(2) Deadlines and dates for deliveries and services promised by the seller are always approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport, unless expressly stated otherwise by us.

(3) The Seller may – without prejudice to its rights arising from the Client’s default – demand from the Client an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Client fails to fulfil its contractual obligations towards the Seller.

(4) The Seller shall not be liable for impossibility of delivery or for delays in delivery if these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, pandemics or epidemics, official measures or the failure, incorrect or untimely delivery by suppliers despite a congruent hedging transaction concluded by the Seller) for which the Seller is not responsible. If such events make delivery or performance significantly more difficult or impossible for the Seller and the hindrance is not only of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service due to the delay, he may withdraw from the contract by immediately notifying the seller in writing.

(5) The Seller shall only be entitled to make partial deliveries if

• the partial delivery can be used by the customer within the scope of the contractually intended purpose,
• the delivery of the remaining ordered goods is ensured and
• the customer does not incur any significant additional expenditure or costs as a result (unless the seller agrees to cover these costs).

(6) If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for him, regardless of the reason, the Seller's liability for damages is limited in accordance with Section 8 of these General Terms and Conditions.

§5 Place of performance, shipping, packaging, transfer of risk, acceptance

(1) The place of performance for all obligations arising from the contractual relationship is Dachau, unless otherwise specified. If the seller is also responsible for installation, the place of performance is the place where the installation is to take place.

(2) The method of shipping and packaging are subject to the Seller’s reasonable discretion.

(3) If shipping of the goods has been agreed and the seller has not taken over transport or installation, the risk shall pass to the customer at the latest when the delivery item is handed over (the start of the loading process is decisive) to the forwarding agent, freight carrier or other third party appointed to carry out the shipment. If the shipment or handover is delayed due to a circumstance for which the customer is responsible, the risk shall pass to the customer from the day on which the delivery item is ready for shipment and the seller has notified the customer of this.

(4) Storage costs after the transfer of risk are to be borne by the customer. If the goods are stored by the seller, the storage costs amount to (0.25)% of the invoice amount of the goods to be stored per week. The right to assert and provide evidence of additional or lower storage costs remains reserved.

(5) The shipment will be insured by the Seller against theft, breakage, transport, fire and water damage or other insurable risks only at the express request of the Customer and at the Customer’s expense.

(6) If acceptance is to take place, the purchased item shall be deemed to have been accepted if

• the delivery and, if the seller is also responsible for installation, the installation has been completed,
• the seller has informed the customer of this, referring to the acceptance fiction according to this § 5 (6) and has requested the customer to accept the goods,
• 10 working days have passed since delivery or installation or the customer has started using the purchased item (e.g. has put the delivered system into operation) and in this case 10 working days have passed since delivery or installation and
• the customer has failed to accept the goods within this period for a reason other than a defect reported to the seller which makes the use of the purchased item impossible or significantly impairs it.

§6 Warranty, material defects

(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance. This period does not apply to claims for damages by the customer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by the seller or his vicarious agents, which in each case become time-barred according to the statutory provisions.

(2) The delivered items must be carefully inspected immediately after delivery to the customer or to the third party designated by him. With regard to obvious defects or other defects that would have been apparent upon immediate, careful inspection, they are deemed to have been approved by the buyer if the seller does not receive a written complaint within 7 working days of delivery. With regard to other defects, the delivered items are deemed to have been approved by the buyer if the complaint is not received by the seller within 7 working days of the time at which the defect became apparent; if the defect was already apparent at an earlier point in time during normal use, this earlier point in time is decisive for the start of the complaint period. At the seller's request, a defective delivery item must be returned to the seller carriage paid. If the complaint is justified, the seller will reimburse the cost of the cheapest shipping method; this does not apply if the costs increase because the delivery item is located at a location other than the location of its intended use.

(3) In the event of material defects in the delivered items, the seller is initially obliged and entitled to repair or replace the goods at his discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of repair or replacement, the customer may withdraw from the contract or reduce the purchase price appropriately.

(4) If a defect is due to the fault of the Seller, the Customer may claim damages under the conditions set out in Section 8.

(5) In the case of defects in components from other manufacturers which the seller cannot remedy for licensing or practical reasons, the seller will, at its discretion, assert its warranty claims against the manufacturers and suppliers on behalf of the customer or assign them to the customer. Warranty claims against the seller for such defects exist under the other conditions and in accordance with these ALB only if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or, for example due to insolvency, is futile. During the duration of the legal dispute, the limitation period for the relevant warranty claims of the customer against the seller is suspended.

(6) The warranty shall be void if the customer modifies the delivery item or has it modified by a third party without the consent of the seller and this makes the rectification of the defect impossible or unreasonably difficult. In any case, the customer must bear the additional costs of rectifying the defect resulting from the modification.

(7) The delivery of used items agreed with the customer in individual cases is subject to the exclusion of any warranty for material defects.

§7 Protection Rights

(1) The Seller guarantees, in accordance with this Section 7, that the delivery item is free from industrial property rights or copyrights of third parties. Each contracting party shall immediately notify the other contracting party in writing if claims are made against it for the infringement of such rights.

(2) In the event that the delivery item infringes a third party's industrial property right or copyright, the seller will, at its own discretion and at its own expense, modify or replace the delivery item in such a way that no third party rights are infringed, but the delivery item continues to fulfil the contractually agreed functions, or procure the right of use for the customer by concluding a license agreement with the third party. If the seller does not succeed in doing this within a reasonable period of time, the customer is entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the customer are subject to the restrictions of Section 8 of these ALB.

(3) In the event of infringements of rights by products from other manufacturers supplied by the Seller, the Seller shall, at its discretion, assert its claims against the manufacturers and suppliers on behalf of the Client or assign them to the Client. In these cases, claims against the Seller shall only exist in accordance with this Section 7 if the legal enforcement of the aforementioned claims against the manufacturers and suppliers was unsuccessful or, for example due to insolvency, is futile.

§8 Liability for damages due to negligence

(1) The Seller's liability for damages, regardless of the legal basis, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, is limited in accordance with this Section 8 to the extent that fault is relevant in each case.

(2) The seller is not liable in the event of simple negligence on the part of its bodies, legal representatives, employees or other vicarious agents, unless this involves a breach of essential contractual obligations. Essential contractual obligations include the obligation to deliver and install the delivery item on time, its freedom from legal defects and material defects that impair its functionality or usability to a greater than insignificant extent, as well as advisory, protective and care obligations that are intended to enable the customer to use the delivery item in accordance with the contract or that are intended to protect the life or limb of the customer's personnel or to protect their property from significant damage.

(3) To the extent that the seller is liable for damages in accordance with Section 8 (2), this liability is limited to damages that the seller foresaw as a possible consequence of a breach of contract when concluding the contract or that he should have foreseen when exercising due care. Indirect damages and consequential damages that are the result of defects in the delivery item are also only compensable to the extent that such damages are typically to be expected when the delivery item is used as intended. The above provisions of this paragraph 3 do not apply in the case of intentional or grossly negligent conduct by members of the board or senior employees of the seller.

(4) In the event of liability for simple negligence, the Seller's liability for damage to property and any resulting financial loss is limited to an amount of EUR 1 million per claim, even if it involves a breach of essential contractual obligations.

(5) The above exclusions and limitations of liability shall apply to the same extent to the bodies, legal representatives, employees and other vicarious agents of the Seller.

(6) If the Seller provides technical information or advice and this information or advice is not part of the contractually agreed scope of services owed by him, this is done free of charge and to the exclusion of any liability.

(7) The limitations of this Section 8 shall not apply to the Seller’s liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.

§9 Retention of title

(1) The retention of title agreed below serves to secure all existing current and future claims of the Seller against the Buyer arising from the delivery relationship existing between the contractual partners regarding the Seller's products (including balance claims from a current account relationship limited to this delivery relationship).

(2) The goods delivered by the seller to the buyer remain the property of the seller until all secured claims have been paid in full. The goods and the goods covered by the retention of title replacing them in accordance with the following provisions are hereinafter referred to as "reserved goods".

(3) The Buyer shall store the reserved goods for the Seller free of charge.

(4) The buyer is entitled to process and sell the reserved goods in the ordinary course of business until the event of realisation (paragraph 9) occurs. Pledging and transfer of ownership by way of security are not permitted.

(5) If the reserved goods are processed by the buyer, it is agreed that the processing is carried out in the name and for the account of the seller as manufacturer and that the seller immediately acquires ownership or - if the processing is carried out using materials from several owners or the value of the processed item is higher than the value of the reserved goods - co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership occurs by the seller, the buyer hereby transfers his future ownership or - in the above ratio - co-ownership of the newly created item to the seller as security. If the reserved goods are combined with other items to form a single item or are inseparably mixed and one of the items is to be regarded as the main item, so that the seller or the buyer acquires sole ownership, the party to which the main item belongs transfers proportionate co-ownership of the single item to the other party in the ratio specified in sentence 1.

(6) In the event of the reserved goods being resold, the buyer hereby assigns to the seller, as security, the resulting claim against the purchaser - in the event of the seller's co-ownership of the reserved goods, proportionately in accordance with the co-ownership share. The same applies to other claims that take the place of the reserved goods or otherwise arise in relation to the reserved goods, such as insurance claims or claims arising from tort in the event of loss or destruction. The seller revocably authorizes the buyer to collect the claims assigned to the seller in his own name. The seller may only revoke this direct debit authorization in the event of realization.

(7) If third parties seize the reserved goods, in particular by seizure, the buyer will immediately inform them of the seller's ownership and inform the seller of this in order to enable the seller to enforce its ownership rights. If the third party is not in a position to reimburse the seller for the judicial or extrajudicial costs incurred in this connection, the buyer is liable to the seller for this.

(8) The Seller shall release the reserved goods and the items or claims replacing them if their value exceeds the amount of the secured claims by more than 50%. The selection of the items to be released thereafter shall be at the discretion of the Seller.

(9) If the Seller withdraws from the contract due to the Buyer’s breach of contract – in particular default in payment – (enforcement event), the Seller shall be entitled to demand the return of the reserved goods.

§10 Final Provisions

(1) If the customer is a merchant, a legal entity under public law or a special fund under public law, or if he has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all possible disputes arising from the business relationship between the seller and the customer shall be Dachau or the customer's registered office, at the seller's discretion. In these cases, however, Dachau shall be the exclusive place of jurisdiction for claims against the seller. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this regulation.

(2) The relationship between the seller and the customer is subject exclusively to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply.

(3) To the extent that the contract or these General Terms and Conditions contain regulatory gaps, the legally effective provisions that the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions if they had known about the regulatory gap shall be deemed to have been agreed upon to fill these gaps.