General Terms and Conditions (GTC) of hofmann CERAMiC GmbH
§ 1 Validity
(1) All deliveries, services, and offers by the Seller are made exclusively on the basis of these General Terms and Conditions (hereinafter referred to as “GTC”), insofar as Client is an entrepreneur, a legal person under public law, or a special fund under public law. These GTC are a component of all contracts concluded between hofmann Ceramic GmbH (hereinafter referred to as “hofmann Ceramic”) and its contractual partners (hereinafter referred to as “Clients”) for the services or deliveries it offers. They also apply to all future services, deliveries, or offers to Clients, even if they are not agreed separately in these instances.
(2) Terms and Conditions of the Client or third parties shall not apply to said services, deliveries, and orders, even if hofmann Ceramic does not reject their validity in each individual instance.
§ 2 Offer, conclusion of contract, and written form
(1) If an order qualifies as an offer, we can accept it within 2 weeks.
(2) Amendments and supplements to the agreements concluded, including these GTC, shall require text form to be valid. With the exception of managing directors or authorized representatives, the employees of hofmann Ceramic are not entitled to conclude any deviating oral agreements. Transmission via fax shall be deemed to fulfill the written form requirement.
(3) hofmann Ceramic reserves ownership or copyright for all documents or objects (offers, cost estimates, drawings, images, calculations, models, etc.) transferred or sent by it. Clients may not make these documents and objects accessible to third parties without the express agreement of hofmann Ceramic, nor may they disclose them or use or copy them themselves or through third parties.
§ 3 Prices and payment
(1) Prices shall be valid for the agreed and listed scope of delivery and performance. Additional supplementary, or special performances shall be calculated separately. Prices shall be understood as being in euros and ex works, and do not include packaging, statutory VAT, duties in case of export deliveries, as well as fees and other public contributions.
(2) Discount deductions shall require an express agreement.
(3) Offsetting with counter-claims by Client or the retention of payments due to such claims shall only be permitted, insofar as said counter-claims are uncontested or have been established by a court of law.
§ 4 Delivery and delivery time
(1) hofmann Ceramic’s planned deadlines and dates for deliveries and services shall apply, if a fixed deadline or fixed date has been expressly agreed to. If shipment has been agreed, said delivery and supply deadlines shall apply to the time of handover to the shipping company, freight forwarder, or other third party commissioned with transporting the goods. All technical and commercial questions shall be clarified before the start of the indicated delivery and service term.
(2) hofmann Ceramic shall not be liable for impossible deliveries or for delayed deliveries, if these are caused by force majeure or by other events that were unforeseeable at the time the contract was concluded (e.g. operational interruptions of all kinds, difficulties in purchasing materials or energy, transportation delays, strikes, lawful lockouts, lack of staff, energy or raw materials, or a missing, delayed, or incorrect delivery from suppliers), insofar as hofmann Ceramic is not responsible for said issues. If such events make it significantly more difficult or impossible for hofmann Ceramic to provide its deliveries or services, and if such impediments are not simply temporary issues, hofmann Ceramic shall be entitled to withdraw from the agreement. In case of temporary impediments, the delivery or service deadlines shall be extended or shall be delayed by the time of the impediment plus a reasonable starting period. Insofar as it would be unreasonable to expect Client to accept the delay or service due to the delay, it may withdraw from the agreement by providing a prompt written declaration to hofmann Ceramic.
(3) hofmann Ceramic is entitled to make partial deliveries, if the partial delivery can be used by Client within the framework of its contractual purpose, if delivery of the remaining ordered goods is ensured, and if Client does not incur any significant additional work or costs because of said deliveries.
(4) If hofmann Ceramic falls into default with a delivery or service, or if it is impossible for it to provide a delivery or service for any reason, hofmann Ceramic’s liability for damages shall be restricted in accordance with sec. 7 of these GTC.
§ 5 Place of fulfillment, transfer of risk, acceptance
(1) The place of fulfillment for all obligations under the contractual relationship is the headquarters of hofmann Ceramic, insofar as not otherwise agreed. If hofmann Ceramic is also responsible for installation, the place of fulfillment shall be the location where the installation is to take place.
(2) Risk shall be transferred to Client upon delivery by the shipping company, freight forwarder, or other third party commissioned with shipment. This shall also apply if partial deliveries are made, or if hofmann Ceramic has taken on further services as well ( such as shipment or installation). If the shipment or handover is delayed due to circumstances for which Client is responsible, risk shall be transferred to Client on the date on which the delivery object is ready for shipment and hofmann Ceramic has provided Client notification of said readiness. Client shall bear warehousing costs following this transfer of risk.
(3) Formal acceptance must take place if requested by one of the Contractual Parties. If no acceptance is requested, the service shall be deemed accepted 12 business days after written notification is provided that the service is completed. If no acceptance is requested and if Client has begun using the services or parts of the service, services shall be deemed accepted 6 business days after the start of use, if not otherwise agreed.
§ 6 Material defects, claims for defects
(1) Information from hofmann Ceramic on the object of the delivery or service, as well as representations of the same, shall be authoritative if usability for the contractually agreed purpose requires said information to be correct. Said information does indicate guaranteed characteristics, but rather descriptions or designations of the delivery or service. Typical deviations and deviations due to legal requirements or technical improvements, as well as components replaced with equivalent components are permitted, if such measures do not affect usability for the contractual purpose.
(2) The warranty term shall be one year from delivery or from acceptance, if acceptance is required.
(3) Claims for defects shall require that Customer has properly fulfilled its duties of inspection and filing of complaints in accordance with Sec. 377 HGB (German Commercial Code). Sec. 377 HGB shall also apply to service contracts. After transfer of risk or acceptance of the product, Customer shall promptly inspect it to ensure it is functional and shall report any defects found to us promptly and in writing, including hidden defects after their discovery, and at the latest within 7 days.
(4) If a defect is the fault of hofmann Ceramic, Client may demand compensation for damages under the specific requirements indicated in Sec. 7.
(5) Claims for damages shall be eliminated if Client modifies the delivered goods without the approval of hofmann Ceramic or allows third parties to modify it, and if such modifications cause a correction of the defect to become impossible or unreasonable. In every case, Client shall bear the additional costs to correct the defect incurred due to the modification.
§ 7 Liability and claims for damages
(1) hofmann Ceramic’s liability for claims for damages, on any legal basis whatsoever, and in particular due to impossibility, delay, defective or incorrect delivery, contractual violation, the violation of obligations during contractual negotiations, and prohibited actions are restricted pursuant to this Sec. 7 if it is not culpable for said damages.
(2) hofmann Ceramic is not liable in case of simple negligence by its bodies, legal representatives, employees, or other agents if no cardinal contractual obligations are violated. A cardinal contractual obligation is an obligation in which Client trusts and should regularly be able to trust. Cardinal contractual obligations include, for instance, the obligation to provide on-time deliveries and to install delivered products free from significant defects, as well as consulting, protective, and care obligations intended to facilitate use of the delivered goods themselves or to protect the lives or physical safety of Client personnel.
(3) Insofar as hofmann Ceramic is in principle liable for claims for damages under Sec. 7 (2), this liability shall be restricted to damages hofmann Ceramic has foreseen as the possible consequence of a contractual violation upon conclusion of the agreement, or which it should have foreseen if applying due care and diligence. Indirect damages and subsequent damages caused by defects in the delivered goods are also only eligible for compensation if such damages should typically be expected if the delivered goods were used as intended.
(4) In case of liability for such negligence, hofmann Ceramic’s obligation to pay compensation for damages and further resulting pecuniary losses shall be limited to € 2.5 million in each instance, for a maximum of two insured instances per year (according to the current coverage amounts of the business liability insurance), even if the violation of a cardinal contractual obligation is involved. Upon request, hofmann Ceramic shall provide a copy of the insurance policy to Client. In case of a release of liability towards the insurance company following a violation of obligations by hofmann Ceramic, hofmann Ceramic shall reimburse Client up to the coverage limit from its own funds.
(5) Exclusions and restrictions of liability shall apply to the same extent in favor of the bodies, legal representatives, employees, and other agents of hofmann Ceramic.
(6) The restrictions of this Sec. 7 shall not apply to Seller’s liability for intentional acts, for guaranteed characteristics, for injury to life, body, or health, or under the Product Liability Act.
§ 8 Retention of ownership, security
(1) hofmann Ceramic reserves ownership of the delivered goods until it receives all payments due under the business relationship. In case of behavior by Client which violates the agreement, hofmann Ceramic shall be entitled to retrieve the delivered goods. This retrieval shall also be deemed withdrawal from the agreement. hofmann Ceramic is entitled to sell the delivered goods after retrieving it, and the proceeds from this sale shall be offset against Customer’s liabilities, minus reasonable liquidation costs.
(2) Client shall be obligated to treat delivered goods carefully; in particular, it shall be obligated to insure them sufficiently against fire and water damage and theft at its own cost. Insofar as maintenance or inspection work is required, Client must complete such work promptly and at its own cost.
(3) Client is entitled to sell the delivered goods to another party as part of its normal business activities; however, it already assigns hofmann Ceramic all claims in the amount of their final invoiced total (including VAT) which Client receives from the sale to its buyers or third parties. Customer shall continue to be entitled to collect this claim, even after assignment. hofmann Ceramic’s entitlement to collect this claim itself shall remain unaffected. However, hofmann Ceramic hereby undertakes not to collect the claim if Client fulfills its payment obligations from the proceeds received, does not fall into default of payment, and in particular if no application to open insolvency proceedings has been opened against it.
(4) Processing or converting the delivered goods by Client is always undertaken on behalf of hofmann Ceramic. If the delivered goods are processed using other objects not belonging to hofmann Ceramic, hofmann Ceramic shall obtain co-ownership of the new object in relation to the value of the purchased object (final invoiced amount, including VAT) to the other processed objects at the time of processing.
(5) If the delivered goods are inextricably mixed with other objects not belonging to hofmann Ceramic, hofmann Ceramic shall obtain co-ownership of the new object in relation to the value of the purchased object (final invoiced amount, including VAT) to the other mixed objects at the time of mixing. If mixing is completed in such a way that the material of Client is to be seen as the main material, Parties agree that Client transfers sole co-ownership to hofmann Ceramic. Client shall therefore preserve sole ownership or co-ownership for hofmann Ceramic.
(6) Customer shall also assign third party claims to us arising from a combination of the purchased goods with a property.
(7) hofmann Ceramic shall undertake to release the securities it has received upon the request of Client insofar as the realizable value of our securities exceeds the claims to be secured by more than 10 %; hofmann Ceramic shall be entitled to select the securities to be released.
(8) In case of an international delivery, hofmann Ceramic shall be entitled to demand the provision an unlimited, directly enforceable security subject to German law at a credit institution located within the EU from Client for the purpose of securing its claims for payment.
§ 9 Place of jurisdiction, choice of law, final provisions
(1) The place of jurisdiction shall be the headquarters of hofmann CERCeramicAMiC; however, we are entitled to lodge claims against Customer in its home court of law.
(2) The law of the Federal Republic of Germany shall apply exclusively, under exclusion of UN Sales Law (CISG).
(3) Insofar as the agreement or these GTC contain contractual gaps, legally valid regulations shall be selected to fill said gaps which the contractual partners would have agreed in accordance with the economic objectives of the agreement and the purpose of these GTC, if they had recognized the contractual gap.