General Terms and Conditions
General Terms and Conditions of ALBERT Hohlkörper GmbH & Co. KG – valid as of March 2023
1. Scope, Form
(1) All of our deliveries/services to companies (Section 14 of the German Civil Code (BGB)), legal entities under public law or special funds under public law (collectively referred to as ‘Customers’) are subject to the following General Terms and Conditions. Foreign Customers in the sense of these General Terms and Conditions are companies whose registered office is outside of the Federal Republic of Germany. Foreign orders are those from Customers whose registered office is abroad.
(2) Our General Terms and Conditions shall apply in particular to contracts concerning the sale and/or delivery of movable items (‘goods’), regardless of whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433 and 650 of the German Civil Code (BGB)). Unless agreed otherwise, the General Terms and Conditions valid at the time of the Customer’s order, or in any event the most recent version made available to the Customer in text format, shall apply as a Framework Agreement also for similar future contracts even if we do not refer to them again in each individual case.
(3) Our General Terms and Conditions shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Customer shall then only become an integral part of the contract once we have expressly approved their validity. This approval requirement shall apply in every case, even if we perform the delivery to the Customer without reservation in knowledge of its general terms and conditions.
(4) Individual agreements made with the Customer in particular cases (including ancillary agreements, supplements and amendments) shall always take precedence over our General Terms and Conditions. The content of such agreements - subject to counter-evidence - shall be decided by a written contract or our written confirmation.
(5) Legally relevant declarations and notifications by the Customer with regard to the contractual relationship (e.g. setting deadlines, reporting defects, withdrawal or reduction) shall be made in writing, i.e. in written or text format (for example by letter, email or fax). Legal formal requirements and further evidence, particularly in the event of doubt over the legitimation of the declarant, shall remain unaffected.
(6) References to the validity of legal provisions are for clarification purposes only. The legal provisions shall apply even without such clarification insofar as they have not been directly modified or expressly excluded in our General Terms and Conditions.
2. Offers/Order Confirmation, Prices/Price Adjustment
(1) Our offers, unless agreed otherwise, are altogether non-binding and subject to alteration. Orders and all other agreements shall become binding only through our written confirmation. The delivery note or the commercial invoice shall also constitute such confirmation.
(2) Unless agreed otherwise, our prices are deemed to be understood as ex-works excluding packaging, freight and duties (export and import duties etc.) as well as import taxes, excluding the respective statutory VAT. Insofar as foreign Customers whose registered office is within the EU have no valid VAT ID number or do not specify it, German VAT shall apply.
(3) If there is more than an 8-week period between the Customer’s order date and the due delivery date and if the labour, material and energy costs rise by more than 7.5% during this period, both contracting parties shall be entitled to an appropriate price adaptation. A price change request shall state which aforementioned cost factor has been adapted and to what extent. Changes to a cost factor can only be passed on to the extent that these are not offset by appropriate counter changes to other cost factors.
(4) In the case of goods that are not intended for a recipient in Germany, the Customer shall submit the entry certificate required for tax purposes (within the EU) or the proof of export required for tax purposes (elsewhere) within 8 days from the delivery of the goods. After this deadline, the Customer must pay the statutory VAT for a delivery within Germany in addition to the respective invoice amount. Alternatively, for deliveries within the EU, we may request that the Customer pay 119% of the net amount (without a statement of VAT) as security, from which we shall refund 19% once the entry certificate has been submitted.
(5) Please refer to Clause 3 Paragraph 7 regarding possible price adjustments in the case of call-off contracts.
3. Delivery Time, Default of Acceptance, Terms of Delivery, Changes to the Design and the Delivery Amount
(1) The delivery shall take place from the warehouse, which is also the place of fulfilment for the delivery and any supplementary performance. At the request and cost of the Customer, the goods shall be sent to another destination (sale by dispatch). Unless agreed otherwise, we are hereby entitled to decide upon the method of shipment (in particular the transport company, dispatch route and packaging).
(2) The delivery period shall be agreed upon separately. The delivery date is the day on which the goods are handed over for shipment. If the shipment is delayed through no fault of our own, the delivery date shall be the day on which the goods are made available for shipment. Regarding agreed dates, we shall only be in default if we receive a reminder. Partial deliveries/partial services are permitted insofar as it is reasonable for the Customer to accept them in consideration of all circumstances.
If we are prevented from delivering on time, the delivery period shall be extended appropriately; we shall inform the Customer of such a circumstance in due time and - if possible - state the probable new delivery period. Events for which we are not responsible shall refer to, for example, industrial disputes, disturbances in our own operating procedures which could not be averted despite reasonable duty and care, theft, disturbances on the part of the forwarding agents, disruptions on the traffic routes, lack of energy and raw materials, official interventions/measures, extreme weather conditions, sabotage, riots, diseases, epidemics, pandemics as well as armed or terrorist conflicts and comparable events lying beyond our influence. Supply problems and other service disruptions on the part of our pre-suppliers shall only be classified as event for which we shall not be held liable if the pre-supplier in turn is prevented from providing the performance owed pursuant to p. 2. (3) If an event consistent with section 2 is given for which we are not liable, we shall be entitled to rescind the agreement with the exclusion of further claims on the part of the Customer; after notification of a probable new delivery period, however, only upon fruitless expiry of such a new deadline. If later fulfilment following a delay is of no interest to the Customer, it may withdraw from the contract with the exclusion of further claims.
(4) In the case of foreign Customers, no delivery periods shall begin before a letter of credit is opened and the necessary import licences/certificates are submitted.
(5) Customers whose registered office is within the EU are hereby also obliged to return the original entry certificate to us within 8 days of receiving the goods. If the Customer misses this deadline, German VAT shall incur with immediate effect. We may request that the entry certificate be signed by the Customer at the time of delivery in the presence of the carrier. If the Customer refuses to sign, we are hereby entitled to refuse delivery of the goods through the carrier.
(6) If the Customer is in default of acceptance, we are hereby entitled to withdraw from the contract, irrespective of further claims, owing to the late acceptance of the partial services.
(7) If the Customer, within the scope of a call-off contract, accepts at least 95% of the agreed delivery amount outside of the agreed period, we are hereby entitled within four weeks, through a unilateral declaration to the Customer, to refuse acceptance of the remaining goods and to charge the Customer the non-discounted price disclosed upon contract, into the contract (normal price) for the goods actually accepted, offset against any payments already made by the Customer for the goods. We shall not be entitled to charge the normal price if the Customer proves that it was prevented from accepting the agreed delivery amount on time through no fault of its own; the Customer shall be responsible for the fault of its bodies, legal representatives and agents. Call-off contracts consistent with these General Terms and Conditions are contracts in which the Customer commits to accept a determined delivery amount within a determined time period and we guarantee the Customer in this regard a discount from the normal price for the goods to be delivered.
(8) In the case of custom-made products, deviations from the delivery quantity of up to 15 percent may arise. In this event, the invoicing shall be calculated based on the exact number of units delivered. The right of the Customer to withdraw from the contract is hereby excluded to this extent.
(9) Changes to the design of the goods that prove to be technically or legally necessary and are reasonable for the Customer are also permissible after entering into the contract if we point out such changes upon delivery. We reserve the right to change the manufacturing process and the composition of the product insofar as the type and quality of the product is not altered unfavourably; a change is not permitted if it leads to the delivery of goods which differ from those contractually agreed upon in view of their intended use and application in a significant, unfavourable manner for the Customer.
(10) The minimum order value for domestic orders is €500.00 net. In the case of order values up to €250.00 net, we shall charge a premium of 25 percent on top of the total net order value; for net order values of €250.01 to €499.99, there shall be a surcharge of 20 percent. The minimum order value for foreign orders is €1,000.00 net. In the case of order values up to €500.00 net, we shall charge a surcharge of 25 percent; for net order values of €500.01 to €999.99 net, there shall be a surcharge of 20 percent.
(11) For agreed ‘free domicile’ deliveries, the goods shall be delivered on Euro pallets (measuring 120 x 80 x 15 cm) with a maximum weight of 1,000 kg and a maximum package height of 180 cm system used. In the case of deliveries to foreign countries disposable pallets resp. disposable IPPC pallets (measuring 120 x 80 x 15 cm) shall be used. If the Customer requests delivery in other packaging units, the Customer shall bear the resulting higher shipping costs.
4. Customer-specific products (customer-specific production cavities)
(1) Should we manufacture individual products for the Customer, the prices agreed for it (the costs of production cavities) apply to the production cycle specified by us or the parts/production quantity specified by us. Should it be necessary to replace or repair the production cavities based on the production cycle or the parts/production quantity being exceeded, the Customer shall bear any costs incurred for the latter. Should the Customer have originally borne the production cavities pro rata, it shall also accordingly bear the costs incurred for the replacement/repair pro rata. The Customer may not derive any rights from any delays in production or delivery that are attributable to the Customer not having accepted the costs of the replacement or repair of the production cavities.
(2) Ownership of the individual production cavities shall pass to the Customer upon the agreed costs being paid in full. Should the Customer bear the costs of the production cavities pro rata, it shall acquire corresponding co-ownership after settling the pro rata costs in full. Also following the transfer of ownership or the acquisition of co-ownership, we shall have a direct and exclusive right of ownership in the production cavities The Customer shall be deemed an indirect owner, and shall only be entitled to request that the production cavities owned or co-owned by it be handed over if
a) we terminate the business relationship with the Customer altogether;
b) the Customer has terminated the contractual relationship concerning the production cavities for a significant reason (cf. Sec. 314 German Civil Code (BGB));
c) we cease our business operations – for whatever reason – in whole or in part and not only temporarily; or
d) the institution of insolvency proceedings over our assets is rejected due to there being insufficient funds to cover the costs of the proceedings.
In any other cases, we are not obliged to hand over the individual production cavities.
The place of fulfilment for the handing over of the production cavities shall be the place where the latter are located at the time of receiving the Customer’s request to hand them over.
(3) We may use any production cavities that are owned or co-owned by the Customer solely for orders of the Customer. The Customer’s rights of ownership are to be pointed out by us to third parties, using suitable means.
(4) We shall be liable for any losses occurring to production cavities owned or co-owned by the Customer during the production cycle or the quantity of parts/production quantity specified which are not attributable to wear and tear, if, and to the extent that, we are bound to accept the fault and the damage is not compensated by an insurance company or other third party.
(5) If the business relationship comes to an end, the Customer may require us to destroy the production cavities owned or co-owned by it. In addition, we shall be entitled to destroy any production cavities owned or co-owned by the Customer without the Customer being able to claim any compensation for damage from us,
a) if, and to the extent that, the production cavities are no longer deployed for production due to wear and tear, and they can no longer be repaired at a reasonable cost;
b) if the Customer terminates the business relationship with us and no obligation to hand over the production cavities exists; or
c) if and to the extent that the Customer does not place any further order for the relevant production activities within a period of two years counted from the date of the last order for parts, and if we have notified the Customer of the intended destruction at least two weeks in advance in writing or in text form.
5. Transfer of risk
The risk of accidental loss or deterioration of deliveries/services shall transfer to the Customer upon delivery. In the case of sale by dispatch, the risk of accidental loss or deterioration as well as the risk of delay shall transfer to the carrier, forwarder or other person or body responsible for performing the shipment right at the time of handover of the goods to the aforementioned. If shipment is delayed through no fault of our own, the goods shall be stored at the cost and risk of the Customer; in this case, notice to the Customer of readiness for shipment shall be equivalent to shipment. If goods are returned, the Customer shall carry the risk until we receive them.
(1) We may also produce and send our invoices electronically. Our invoices are due for immediate payment unless agreed otherwise. A discount shall not be granted unless expressly agreed in advance. If the receipt of the invoice is disputed, the Customer shall default on the payment without a reminder no later than thirty days after receiving the goods. The possibility of otherwise effecting a delay shall remain thereby unaffected.
(2) If the Customer is a new customer when concluding the agreement, goods shall only be supplied against prepayment unless expressly agreed otherwise.
(3) Payments are to be made in euros. They are to be made free of charge to the paying agency specified by us. Bills of exchange and cheques shall only be accepted if they have been expressly agreed upon beforehand. They will also then only be accepted as a conditional payment and subject to their eligibility for discount. Discount and bill of exchange charges shall be borne by the Customer. The same shall apply to the costs for collection and chargeback. For bills of exchange, a discount cannot be deducted; the remaining term cannot exceed sixty days from the invoice date.
(4) During default in payment, the Customer shall owe default interest corresponding to the respectively applicable statutory rate. In the case of legal transactions in which a consumer is not involved, the interest rate for claims is currently nine percentage points above the basic interest rate. In the event of default on the part of the Customer, we shall be entitled to payment of a lump-sum fee in the amount of €40 in accordance with Section 288 subsection 5 German Civil Code [BGB; Bürgerliches Gesetzbuch]. We reserve the right to claim for any further damage caused by delay.
(5) Payments shall always be offset firstly against any costs, then against the interest, and then against the primary debt, namely the unenforceable debt first and then the older debt. The Customer is hereby not entitled to withhold and offset payments due to any claims including defect claims, unless the claims are undisputed or deemed to be legally valid.
(6) In the event of circumstances of which we become aware after entering into the contract which lead to justified doubt over the creditworthiness of the Customer, we may demand immediate payment of all of our receivables. This shall apply in particular to creditworthiness downgrades through credit agency data (starting from a ‘fair’ credit score) or to an at least comparable deterioration to the score in our commercial credit insurance. We may then request advance payment. Alternatively, the Customer may request to receive the goods in exchange for payment at the location of the goods.
7. Liability for Material Defects
(1) Catalogues, brochures, patterns, illustrations and drawings provided by a contracting party shall include a guarantee or the agreement of a condition only if we have expressly confirmed this beforehand in writing. We hereby assume no liability for product descriptions or public statements e.g. a supplier or other third parties (e.g. advertisement).
(2) Goods with a weight per piece of up to 1,000 g shall be subject to the following weight tolerances:
|Weight per piece
|Permissible weight tolerance
|up to 20 g
|± 5.0 percent
|> 20 g to 100 g
|± 3.0 percent
|> 100 g to 1000 g
|± 2.0 percent
The aforementioned weight tolerances are part of the agreed property and do not represent any defect in the goods.
(3) Our liability for defects concerning used goods is altogether excluded. Our liability for defects concerning new goods shall expire within twelve months; however, the Customer’s entitlement to claim for compensation due to material defects shall expire within fifteen months. The limitation period shall always begin upon delivery of the goods to the Customer. The aforementioned shall also apply to the Customer’s contractual and non-contractual entitlement to claim for compensation due to a defective delivery/service, unless the regular statutory limitation period leads to a shorter limitation period in the individual case. However, the Customer’s entitlement to claim for compensation for damage due to intent or gross negligence as well as claims in accordance with German Product Liability Law (Produkthaftungsgesetz) shall expire pursuant to the statute of limitations.
(4) If we are liable for defects, we shall be entitled to choose between remedying the defects and delivering the goods again, or refunding the rejected goods. Our right to refuse supplementary performance under the statutory requirements shall remain unaffected. If the Customer wishes to withdraw from the contract, reduce the price, demand compensation instead of the service or perform a self-remedy, the same must have failed in terms of supplementary performance. Supplementary performance shall be deemed to have failed only after an unsuccessful second attempt. The statutory cases in which setting a deadline is dispensable shall remain unaffected. In the event of an insignificant defect, there shall be no right to withdraw and no entitlement to claim for compensation for damage instead of the service.
(5) We shall be authorised to make subsequent performance conditional on payment of the due purchase price by the Customer. The Customer shall, however, be entitled to retain an appropriate part of the purchase price deemed relative to the defect.
(6) We shall reimburse the Customer for costs required to fulfil supplementary performance, e.g. transport, road, labour and material costs, if there is in fact a defect. These costs are excluded if the expenses increase because the goods that we delivered are subsequently transferred to a location other than the delivery address of the Customer, unless the shipment takes place in the intended course of business. We may request to be reimbursed by the Customer for the costs we have incurred as a result of an unjustified request to remedy a defect (in particular inspection and transport costs) unless the Customer was not able to recognise the lack of defect.
(7) No rights of recourse shall be assigned to us insofar as the Customer has granted rights to its buyer which exceed the compulsory statutory defect claims in Germany.
(8) The Customer shall examine the goods delivered without undue delay, in the case of goods determined for further processing by all accounts prior to further processing thereof; the Customer shall report any defects without undue delay in writing upon arrival at their destination. Hidden defects are to be reported in writing immediately upon their discovery. Immediate notification is that which takes place within two weeks. Irrespective of this obligation to examine and report, the Customer must report obvious defects (including incorrect or short delivery) in writing within two weeks upon receipt at the destination. This deadline shall be deemed observed if the notification is sent on time. If the aforementioned regulations are breached, our liability for the unreported or incorrectly reported defect shall be excluded.
8. Other Liability
(1) We hereby exclude our liability as well as the liability of our bodies and legal representatives for slightly negligent breaches of duties concerning the delivered item/scope of delivery and other legally protected assets insofar as the breaches do not concern any contractual obligations, claims resulting from death or injury to body or health, or guarantees, and no claims in accordance with German Product Liability Law (Produkthaftungsgesetz) are affected. The same shall apply to breaches of duties by our agents. The liability for the breach of essential contractual duties is restricted to foreseeable damage typical for this type; the same shall apply in the event of gross negligence except in the case of death or injury to body or health. This does not include a change in the burden of proof to the disadvantage of our purchaser. Entitlement to claims for compensation for damage in accordance with German Product Liability Law (Produkthaftungsgesetz) shall remain unaffected.
(2) The regulation in Paragraph 1 shall apply to claims for compensation for damage in addition to the service and instead of the service, regardless of the legal basis, particularly in connection with defects, consequential damage from defects, the breach of contractual duties, unlawful activity and reimbursement of wasted expenditure.
9. Retention of title
(1) Until full payment has been made of all of the receivables to which we are entitled from the Customer on the grounds of the business relationship, including ancillary claims and claims for compensation for damage, the goods shall remain our property. This shall also apply if the price is paid for a particular item specified by the Customer. In the case of a running account, the retention of title shall be valid security of our balance claim. If the realisable value of the goods subject to retention of title exceeds our receivables by more than ten percent, we are hereby obliged at the request of the Customer to transfer ownership insofar as we have defined in detail the goods subject to retention of title that are to be transferred.
(2) If goods subject to retention of title are processed by the Customer to form a new movable item, this processing shall take place on our behalf without a resulting obligation for us. The new item shall be our property. In the event of combining, mixing or processing with goods that do not belong to us, we shall acquire co-ownership of the new item in proportion of the value of our goods subject to retention of title to the total value of the processed, combined or mixed items. If the supplier acquires sole ownership through combining, mixing or processing, co-ownership shall be transferred to the supplier immediately in proportion of the value of the goods subject to retention of title to the value of the other goods at the time of combining, mixing or processing. In these cases, the Customer shall store free of charge the item in its ownership or co-ownership, which is also a valid item subject to retention of title under these conditions. If goods subject to retention of title become an essential component of the property of a third party, the Customer shall immediately assign to the accepting supplier the receivables due from third parties for remuneration amounting to the value of the goods subject to retention of title, with all ancillary rights including those to a legal mortgage, with priority over the rest; otherwise, Paragraph 2 shall apply accordingly.
(3) The Customer is hereby entitled to use the goods subject to retention of title in the ordinary course of business or to sell them to the buyer under retention of title until payment from the buyer is received. The Customer hereby assigns to us in advance all receivables that arise from the use of the goods subject to retention of title including VAT. If goods subject to retention of title are sold or used together with other objects that do not belong to us, the assignment shall comprise only the part of the receivable that corresponds to the proportion of the delivery value of the goods subject to retention of title to the delivery value of the objects that do not belong to us. The authority of the Customer to sell or process goods subject to retention of title in the ordinary course of business shall expire when we revoke it but no later than upon the Customer defaulting on payment by more than one month or upon a significant deterioration of financial circumstances (see Clause Art. 6 6). If the Customer has sold the receivable within the scope of real factoring, it has hereby already assigned to us the replacing factored receivable. If the buyer pays to one of the bank accounts of our Customer, the Customer has hereby already transferred to us the entitlement from its credit balance towards its credit institute. We hereby accept the aforementioned assignments.
(4) The Customer is hereby entitled, so long as it complies with its payment obligations, to collect the assigned receivables. This entitlement to collect shall expire when we revoke it but no later than upon the Customer defaulting on payment by more than one month or upon a significant deterioration of financial circumstances (see Clause Art. 6 6). Our authority to withdraw the assigned receivables ourselves shall always remain unaffected. We are hereby entitled to inform the Customer’s clients of the assignment and to demand payment to us so long as insolvency proceedings have not yet been opened and there are no obstructing orders from the insolvency court. Upon request, the Customer is hereby always obliged to issue us with an exact list of the receivables to which we are entitled with the names and addresses of its clients, the amounts of the individual receivables and the invoice date etc., to provide us with all of the information necessary for enforcing the assigned receivable and to allow this information to be examined.
(5) In the event of breaches of duties by the Customer, for example default of payment of more than one month or suspension of payment, we are hereby entitled without a grace period to take possession of the goods subject to retention of title, freely satisfy our claims from the goods subject to retention of title and enter the business premises of the Customer for this purpose, so long as insolvency proceedings have not yet been opened and there are no obstructing orders from the insolvency court. The resulting costs shall be borne by the Customer. If we take goods back due to the retention of title, this shall only then constitute a withdrawal from the contract if we expressly declare this or utilise the goods.
(6) Pledges or assignments as security involving the goods subject to retention of title or the assigned receivables are not permitted. The Customer must inform us immediately of third-party access to the goods subject to retention of title or to the assigned receivables (e.g. pledges or other third-party interventions). The Customer shall bear the costs of interventions against third-party access insofar as they are not reimbursed by the third party.
(7) The Customer shall store for us the goods subject to retention of title free of charge. It shall insure them adequately against the usual risks (fire, theft, water damage, etc.). The Customer hereby transfers to us the claims for compensation to which it is entitled against insurance companies or other bodies obliged to compensate as a result of the aforementioned kind of damage, to the value of the security ownership. We hereby accept the assignment.
10. Effectiveness, Applicable Law, Place of Fulfilment, Place of Jurisdiction
(1) Should individual provisions of these General Terms and Conditions be or become entirely or partially invalid, the remaining General Terms and Conditions shall nevertheless remain effective. The contracting parties shall then agree a supplementary provision that most closely approximates that which was legally invalid. Otherwise, the legal provision shall apply.
(2) The contractual relationship between the Customer and us is hereby subject exclusively to the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). The place of fulfilment for deliveries/services and payments is our registered office. The place of jurisdiction, also with regard to disputes regarding the effectiveness of the contract, these General Terms and Conditions or this jurisdiction agreement, shall be the court under whose substantive and geographical jurisdiction our registered office falls, unless there is an arbitration agreement regarding the place of jurisdiction. However, in derogation thereof, we are hereby entitled to take legal action at the place of fulfilment of the delivery obligation or at the general place of jurisdiction of the Customer. In the case of a contract translated into multiple languages, the original contract shall be the German language version.