General Terms and Conditions for resellers/dealers

General Terms and Conditions of Hamberger Flooring GmbH & Co. KG, 83003 Rosenheim, Germany, for resellers/dealers

§ 1 Scope; form

1.1 These General Terms and Conditions (T&Cs) apply to all business relationships with our customers ("Customer"). The T&Cs shall apply only if the Customer is an entrepreneur (§ 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
1.2 The T&Cs shall apply in particular to contracts for the sale and/or delivery of movable items ("Goods"), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 of the BGB), and to any fitting services. Unless agreed otherwise, the T&Cs in the version valid at the time of the Customer's order or in the version last made available to the Customer in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
1.3 Our T&Cs shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Customer shall only become part of the contract if and to the extent that we have expressly consented to their validity. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Customer without reservation in knowledge of the Customer's T&Cs.
1.4 Individual agreements made with the Customer in individual cases (including subsidiary agreements, supplements and amendments) shall take precedence over these T&Cs in all cases. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
1.5 Insofar as they do not contradict these T&Cs or the individual agreements, the customs in the timber trade, in particular the "Tegernseer Gebräuche - Gebräuche im inländischen Handel mit Rundholz, Schnittholz, Holzwerkstoffen und anderen Holzhalbwaren" (Tegernsee Customs - Customs in the Domestic Trade in Round Timber, Sawn Timber, Timber Materials and Other Semi-finished Timber Products) in the respective current version with all annexes and their appendix shall apply within the Federal Republic of Germany to all deliveries of timber. The wording of said provisions is assumed to be known. Otherwise the text shall be sent on request.
1.6 Legally relevant declarations and notifications by the Customer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be submitted in writing, i.e. in written or text form (e.g. by letter, e-mail, fax). Statutory form requirements and further evidence, in particular in the event of doubts regarding the legitimacy of the person making the declaration, shall remain unaffected.
1.7 References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these T&Cs.

§ 2 Offers/conclusion of contracts – prices

2.1 Our offers are subject to change without notice and are non-binding, unless they are expressly identified as binding or contain a specific acceptance deadline. This shall also apply if we have provided the Customer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or papers – including those in electronic form.

2.2 A contract shall not be deemed to be concluded until the order is confirmed or executed by us. Our offers shall be subject to prior sale. The specifications, drawings and illustrations, as well as descriptions relating to delivery and performance contained in our brochures, catalogues, price lists or in the offer or documents pertaining to the offer, are approximate values in accordance with customary trade practice, unless they have expressly been referred to as binding in the order confirmation. We reserve the right to make changes to the manufacturing process and form of the delivery item, to the extent that such changes are acceptable for the Customer. If an offer is made on the basis of a sample, the colour and structure of the sample shall not be deemed warranted qualities. Samples provided shall only represent an average condition of the Goods. Specifications as to dryness, weight etc. are given according to the best of our knowledge, but shall be without obligation. Our prices are ex works, free to the truck or wagon, plus VAT.

2.3 If floors are laid by ourselves, our offer prices include delivery free to the construction site.

2.4 Prices quoted in our offers shall be binding on us for 30 calendar days.

2.5 If a change in certain cost factors – manufacturing costs (as defined in § 255 (2) of the German Commercial Code (HGB)), packing material or freight – of more than 3% occurs between conclusion of the transaction and delivery, the agreed price may be adjusted by us to reflect the relevant cost factors, whereby price reductions in other cost factors shall be taken into account in the adjustment in favour of the Customer. In the event of price increases of more than 25%, the Customer shall have the right to withdraw from the contract.

§ 3 Creditworthiness

3.1 When accepting orders, we shall assume that the Customer is solvent. If it turns out that this was or is not the case, and if our claim to remuneration is jeopardized as a result, we shall be entitled to refuse performance and – if necessary after setting a deadline – to withdraw from the contract. We shall also be entitled to revoke payment terms granted and to demand payment in advance for further deliveries, against return of all bills of exchange and cheques accepted on account of payment, payment or securities. The clause above shall apply in particular if the contractual partner is in arrears regarding the payment of earlier invoices, in the event of a returned debit note, protest of a cheque or bill of exchange or if a substantial deterioration of his financial circumstances becomes known.

§ 4 Delivery and passing of risk – shipping and packaging

4.1 Delivery times shall not be deemed fixed dates unless expressly referred to as such.
4.2 Partial deliveries are permissible to a reasonable extent and must be accepted.
4.3 Unless agreed otherwise, delivery shall be ex works (EXW Incoterms 2020). We shall only be required to deliver free to the construction site if this has been explicitly agreed. The risk of accidental loss of and accidental deterioration in the Goods shall be transferred to the Customer, at the latest, when the Goods are handed over. In the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay shall already pass upon delivery of the Goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the passing of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply accordingly to
an agreed acceptance. If the Customer is in default of acceptance, this shall have no bearing on the handover or acceptance.
4.4 If, despite proper and sufficient coverage of requirements prior to the conclusion of the contract, we are not supplied by our supplier/sub-supplier, or not supplied on time, or not supplied correctly, through no fault of our own, we shall inform the Customer of this in text form or in writing immediately after becoming aware of the problem. In such a case, we shall have the option to postpone delivery for the period of the impediment or to withdraw from the contract in whole or in part, provided that we have informed the Customer of the impediment and have not assumed any procurement risk pursuant to § 276 of the BGB or a delivery guarantee.
4.5 Section 4.4 shall also apply in the event of force majeure. Force majeure refers to any event beyond the control of the respective contracting party that prevents it from fulfilling its obligations in whole or in part. This includes any circumstance that makes delivery difficult or impossible, permanently or temporarily, with a duration of at least 14 working days, in particular route closure, impediments to shipping, strikes, lockouts, natural disasters, fire, war, warlike events, insurrection, official orders, pandemics etc.
4.6 If we have already delivered partial quantities, the Customer shall be obliged to accept the Goods already delivered under the terms and conditions agreed for the order as a whole.
4.7 If the Customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). In this case, we shall charge lump-sum compensation amounting to 0.5 % of the order sum per calendar week, but not more than 5 %, starting from the beginning of the delay. Our entitlement to prove greater damage and our legal claims (in particular compensation of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum is to be credited against further monetary claims. The Customer shall be entitled to prove that we have incurred no damage at all or significantly less damage than the lump sum mentioned above.
4.8 If the delivery of orders placed on an on-call basis is not requested within one month after expiry of the agreed deadline, we shall be entitled to either insist on immediate acceptance or withdraw from the contract after setting another deadline. The same shall apply in the case of orders to be performed on call with no particular deadline agreed for demanding delivery, if more than four months have elapsed without any request for delivery since the order was confirmed.
4.9 The inspection and complaint obligations pursuant to 5.5 shall also apply to transport damage.
4.10 The occurrence of our default shall be determined in accordance with the statutory provisions. In all cases, however, a reminder by the Customer with a grace period of at least eight working days is required.

§ 5 Warranty

5.1 Unless stipulated otherwise below, the statutory provisions shall apply to the Customer's rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper fitting or defective fitting instructions). In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed Goods to a consumer, even if the consumer has processed them further (supplier recourse pursuant to §§ 478 of the BGB). Claims from supplier recourse are excluded if the defective Goods have been further processed by the Customer or another entrepreneur, e.g. by installation in another product.
5.2 The basis for our liability for defects is above all the agreement reached regarding the condition of the Goods. Only our product description shall be deemed to have been agreed for the condition of Goods. Public statements or extolling in advertisements shall not represent any additional indication as to the condition of Goods under the contract. The mere reference to DIN or EN standards shall not make their contents a warranted quality.
5.3 Wood is a natural product. Its natural properties, variations and features are therefore to be taken into account in all cases. In particular, the Customer shall have to consider the biological, physical and chemical properties when buying, processing and using wood. The natural range of variation in terms of colour, structure and other characteristics within one species of wood is typical of wood as a natural product and shall not represent any cause for complaint or liability claims. If need be, the Customer shall seek appropriate expert advice.
5.4 If the quality was not agreed upon, it is to be judged according to the legal regulation whether a defect is present or not (§ 434 (1) Cl. 2 and 3 of the BGB).
5.5 Under no circumstances shall we be liable for defects of which the Customer is aware at the time of conclusion of the contract or is not aware owing to gross negligence (§ 442 of the BGB). Furthermore, the Customer's claims for defects presuppose that he has fulfilled his statutory obligations to examine the Goods and give notice of defects (§§ 377, 381 of the HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must be carried out immediately before processing. If a defect is identified during delivery, inspection or at any later time, we must be notified of this in writing without delay. In all cases, obvious defects should be reported in writing within eight working days of delivery and defects not detectable upon inspection within the same period from discovery. If the Customer fails to properly inspect the Goods and/or notify us of defects, our liability for the defect not reported or not reported on time or not reported properly shall be excluded in accordance with the statutory provisions.
5.6 If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering an item free of defects (replacement delivery). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
5.7 We shall be entitled to make the subsequent performance owed dependent on the Customer paying the remuneration due. The Customer shall however be entitled to retain a part of the remuneration that is reasonable in relation to the defect.
5.8 The Customer shall grant us the time and opportunity required to provide subsequent performance, in particular to hand over the goods complained about for inspection purposes. In the case of a replacement delivery, the Customer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall include neither the removal of the defective item nor the reinstallation if we were not originally obliged to install it.
5.9 We shall bear or reimburse the costs of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if a defect is actually present. Otherwise, we may demand that the Customer reimburse the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not obvious to the Customer.
5.10 In the event of a return, the Customer shall pack the delivered item in a manner suitable for its transport. In the case of goodwill returns, the delivered item should be returned in the original packaging.
5.11 If subsequent performance has failed or if a reasonable period to be set by the Customer for subsequent performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Customer may withdraw from the purchase contract or reduce the purchase price. However, in the case of a minor defect, the Customer shall have no right of withdrawal.
5.12 Claims on the part of the Customer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with § 6 and shall otherwise be excluded.

§ 6 Other liability

6.1 If nothing to the contrary arises from these T&Cs including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
6.2 We shall be liable for damages – irrespective of the legal grounds – within the scope of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in our own affairs; insignificant breaches of duty), only
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of an essential contractual obligation (obligation whose fulfilment allows the proper execution of the contract and on compliance with which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation of the foreseeable, typically occurring damage.
6.3 The limitations of liability resulting from 6.2 shall also apply to third parties as well as to breaches of duty by persons (also in their favour) whose fault we are responsible for in accordance with statutory provisions. They shall not apply if a defect was fraudulently concealed or a guarantee for the quality of the Goods was assumed and for claims of the Customer under the Product Liability Act.
6.4 The Customer may withdraw from or terminate the contract due to a breach of duty that does not consist of a defect only if we are responsible for that breach of duty. A free right of termination on the part of the Customer (in particular according to §§ 650, 648 of the BGB) is excluded. The statutory requirements and legal consequences shall otherwise apply.
6.5 The parties are required to mitigate damage (§ 254 (2) of the BGB). If damages from a breach of contract by the other party are foreseeable, the respective other party shall inform the contractual partner of this and of the foreseeable extent as well as foreseeable damage mitigation measures. The other party must be notified of measures to prevent or remedy damage in advance, unless they need to be taken immediately. If the respective other party is aware of or has the possibility of mitigating the damage, it shall point out this fact to the notifying party.

§ 7 Limitation period

7.1 Notwithstanding § 438 (1) No. 3 of the BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from the date of delivery. If an acceptance procedure has been agreed upon, the limitation period shall commence upon acceptance.
7.2 If the Goods are a building structure or an item that has been used for a building structure in accordance with its customary use and this use has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (§ 438 (1) No. 2 of the BGB). Other special statutory provisions regarding the limitation period (in particular § 438 (1) No. 1, Sect. 3, §§ 444, 445b of the BGB) shall likewise remain unaffected.
7.3 The above limitation periods as set out in the law on sales also apply to contractual and non-contractual claims for damages on the part of the Customer based on a defect in the Goods, unless the application of the regular statutory limitation period (§§ 195, 199 of the BGB) would lead to a shorter limitation period in individual cases. Claims for damages on the part of the Customer pursuant to 6.2 Sect. 1 and Sect. 2 (a) as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.

§ 8 Fitting services

8.1 If we undertake fitting services (laying of floors), we shall assume that the substrate permits immediate fitting of the delivered Goods and that the measurements given to us are correct. Any costs resulting from defects in the substrate shall be at the expense of the Customer.
8.2 If our products are fitted by us (e.g. laying of floors, panelling of ceilings and walls), the Customer shall assume responsibility for adequate and safe intermediate storage of the products delivered.
8.3 Special treatment of the substrate and measurement of rooms shall only be performed by us if such services are part of the contract and expressly mentioned in our order confirmation. Any extra services shall be separately billed by us. Additional costs due to incorrect specification of site measurements or of dates on the part of the Customer shall be at his expense. On completion of special measures as well as on completion of the fitting work, the Customer shall have to confirm to the fitter in charge that the work performed and the measurements of the finished surface laid are correct. The provisions of the German Construction Contract Procedures (VOB), Part B and C apply. The measurements are calculated according to the shell dimensions, including thresholds and niches. Mouldings and expansion gaps shall not be deducted. Areas that are to be ignored such as the bases of pillars, chimneys etc., with a surface up to 0.5 m², shall not be deducted either.

§ 9 Retention of title

9.1 Any items delivered (goods under reservation) shall remain our property until the purchase price and all other claims due to us as a result of the business relationship have been fully paid. Pledging or transfer or ownership by way of security shall not be admissible without our consent. Any processing of goods under reservation shall take place on our behalf, free of charge and without any obligation to regard us as the manufacturer within the meaning of § 950 of the BGB. The Customer shall transfer to us co-ownership of the new item in the ratio of the invoice value of the goods under reservation to the other processed goods at the time of processing. Any new items resulting from such processing shall be deemed goods under reservation. If the Goods delivered are combined with a movable item in such a way that they become an essential component of another item that is to be regarded as the main item, the Customer shall hereby assign to us co-ownership of the new item on a quota basis. In this case, he shall assign to us any claims for remuneration that may arise against any third party, together with all subsidiary rights, in the amount of the value of the goods under reservation, and he shall authorise us to collect such claims, with the proviso of revocation. We accept such anticipatory assignment and authorisation. The Customer shall only be permitted to resell, process or modify the Goods in the ordinary course of business and only on condition that the claims are actually transferred to us. This includes the Customer receiving payment from his customer or making the reservation that ownership is not transferred to his customer until the customer fulfils his payment obligations. The Customer shall reach similar agreements with his customer.
9.2 In the event of seizure, confiscation or other dispositions or interventions by third parties, the Customer must notify us without delay and in full.
9.3 In the event that the Customer falls behind with payments, we shall be entitled, without setting another deadline, to terminate the Customer’s right of title by unilateral declaration and demand return of the unprocessed material.
9.4 All of the Customer's rights mentioned herein shall lapse in the event of discontinuation of payments and/or institution of insolvency proceedings. This shall not apply to the rights of the insolvency administrator.
9.5 The assertion of the reservation of title by us shall not require withdrawal. However, the Customer is obliged to grant us any access without delay so that we can make appropriate determinations and dispose of the goods under reservation.
9.6 If the value of the securities granted exceeds our claims, possibly reduced by down payments or instalments, by more than 20%, we shall be obliged to reassign title or release Goods in the same measure, whichever we may chose.
9.7 On settlement of all our claims arising from the business relationship, ownership of the goods under reservation and any claims assigned to us shall be transferred to the Customer.

§ 10 Payment terms

10.1 Our invoices shall be issued bearing the date of shipment of Goods and, in the case of orders involving fitting, upon completion of the work. Unless agreed otherwise, they shall be due for payment without any deduction within 30 days.
10.2 Any claims or performance in part shall be invoiced separately and shall each be payable individually, independently of the total scope of delivery or performance.
10.3 Payments made on account shall be offset against part deliveries according to the order in which such deliveries are made.
10.4 If payments are deferred or made after the due date, interest may be charged at the rate of 1% per month from the due date, including for the period of delay. Otherwise the legal provisions pursuant to §§ 286 ff of the BGB shall apply in the event of any default in payment. Any further claims shall remain unaffected.
10.5 A right to set off shall only exist in the event of undisputed claims or for claims that have been conclusively determined by a court.
10.6 In the event of justified notices of defects, payments may only be withheld to an extent that is in reasonable proportion to the material defects that have occurred.
10.7 Our sales representatives and agents are not entitled to collect debts unless they produce our written authorisation to do so.

§ 11 Place of performance – place of jurisdiction – applicable law

11.1 D-83071 Stephanskirchen shall be the place of performance and jurisdiction regarding deliveries and payments (including legal action based on dishonoured cheques or bills of exchange) as well as any disputes that may arise between the parties hereto, if the contractual partner is a merchant or a legal entity under public law or if he represents special funds under public law. However, we shall also be entitled to sue the Customer at his registered domicile.
11.2 The relations between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods dated 11.04.1980 (CISG).

§ 12 Data protection

12.1 Our data protection information in accordance with Art. 13 of the GDPR is available via the following link: https://www.haro.com/en/data-protection/

§ 13 Final provisions

13.1 Should one or more of these provisions violate a legal prohibition or be legally ineffective for other reasons, the validity of the remaining provisions shall remain unaffected. In lieu of the invalid provision, it shall be deemed agreed what would have been closest to the economic interest and to the presumed will of the contracting parties in accordance with the other terms and conditions of business. The same applies to any loopholes. The contracting parties undertake to contribute earnestly to the completion of this replacement provision.

Status: 10/2021