Terms and Conditions

Allgemeine Geschäftsbedingungen (AGB) General Terms and Conditions of Business, Terms of Delivery and Terms of Payment
Hörburger AG (as at 01st Oktober, 2016)

§ 1 Scope of Application / General

A contract between a Client and Hörburger AG, hereinafter referred to as Supplier, shall be concluded on the basis of these General Terms and Conditions of Business (AGB).

Such a contract governs the sale of goods and services by the Supplier.
For details of the respective offer please refer to the detailed product descriptions on the offer pages.
In case of deviating and/or supplementary agreements, express written approval by the Supplier shall be necessary for any transaction to be concluded. Any conditions set by the Client shall not become binding, not even if the Supplier neglects to expressly object to them.

The English version of these general terms and conditions of business is a translation of the German original. In cases of dispute, the German version shall prevail.

§ 2 General Terms and Conditions applicable solely to Clients who are consumers

1. Clients are consumers so long as the purpose of deliveries and performances ordered cannot be attributed to his commercial activities or self-employment.

2. All offers in the Supplier‘s Webshop are to be understood as a non-binding invitation to the Client, on the basis of which the Client places the corresponding bid (order) with the Supplier (for order process please see menu item “order processing”).
Acceptance of the bid placed with the Supplier always takes place within three business days. If no formal confirmation of acceptance of the bid by way of Email, fax or other channel ensues within that deadline, the bid shall be regarded as non-accepted.

3. Object of the contract: Goods and services specified by the Client in his order and mentioned in the order and/or sales confirmation, at the final prices quoted in the Webshop, shall be object of the contract.
Mistakes and errors there are excepted, this shall in particular apply to availability of goods.

4. Condition of the ordered goods is implied by product descriptions/sheets in the Webshop.
Images on the webpage might render a distorted picture of the product. Colours, in particular, might deviate significantly from the original for technical reasons. Such images merely serve as illustrative material and may deviate from the original product. Technical data, weights, dimensions, and specifications of performance are only approximately authoritative, as long as they are not explicitly termed as binding. The data and characteristics described herein shall not be considered deficiencies in the products delivered by the Supplier.

5. Should the Client’s choice of product not be available at the time the order is placed, the Supplier will inform the Client of the fact in the order confirmation. In case of the of the Client’s choice being permanently undeliverable/out of stock, the Supplier will desist from confirming the order. No contract is concluded in such a case.

6. If the product specified by the Client in his order is only temporarily unavailable, the Supplier will also promptly inform the Client of the fact in the order confirmation. If delivery is delayed by more than two weeks, the Client has the right to rescind the contract.
Furthermore, in such a case the Supplier, too, has the right to withdraw from the contract.
In this case, payments already effected by the Client will be reimbursed by the Supplier immediately.

7. The Supplier retains title to the goods delivered until receipt of all payments in full.

8. Delivery, respectively transfer of the goods to the shipping company, will take place immediately upon receipt of payment (in case of payment method “bank transfer”), in all other cases immediately upon order confirmation.

9. All prices quoted on the Supplier’s webpage include the respectively applicable legal value added tax.

10. Shipping costs corresponding to the Client’s order will be quoted in the order form and are to be borne by the Client. For further information please see menu item “Shipping and Costs“.

11. Payment of the purchase price becomes due immediately upon conclusion of contract.
If the point in time when payment becomes due is determined by calendar date, the Client will be in default as soon as he misses said due date. Default interest amounting to five percentage points above the base interest rate shall be paid by the Client to the Supplier in that case.
With the Client's liability to pay default interest, the Supplier does not foreclose a further claim to damages caused by delay.

12. The Client may not offset any counterclaims against our claims except and unless such counterclaims are legally established by court, undisputed or expressly recognized by the Supplier in writing.
The Client may only exercise any rights to retain if his counterclaim is based on the same contractual relationship.

13. The Supplier is liable for material defects pursuant to the applicable legal provisions in particular
Section 434 et seqq. German Civil Code (BGB).
Guarantee of quality and durability for the goods delivered by the Supplier only exists if it has expressly been granted for the article in question in the order confirmation.

14. No claims may be asserted by the Client for damages.
Claims arising from injury to life, body or health or arising from the violation of material contractual obligations (cardinal obligations) as well as liability for other damage resulting from intentional or grossly negligent breach of contract on the part of the Supplier, his legal representatives or performing agents shall remain unaffected by this.
In case of violation of material contractual obligations as described in paragraph one, the Supplier shall only be liable for contractually typical, foreseeable damage if it was caused by gross negligence, unless the Client’s claims arise from injury to life, body or health.
Material contractual obligations in the aforementioned sense are obligations prerequisite to proper execution of the contract, the fulfilment of which the Client may customarily rely on.
The aforementioned limitations shall also apply to the Supplier’s legal representatives and performing agents in cases where claims are lodged directly against them.

15. Consumer’s Right to Revoke
Insofar as the purchaser is a consumer, he shall be entitled to a right of revocation.

You are entitled to revoke this contact within fourteen days without giving any reason.
The period of revocation is fourteen days and commences:

In case of a sales contract: On the day when you, or a third party designated by you who is not the carrier or forwarder, have/has taken possession of all the goods ordered.

In case of a contract covering the sale of different goods that have been ordered by the consumer within the framework of one uniform order, but which will be delivered separately: On the day when you, or a third party designated by you who is not the carrier or forwarder, have/has taken possession of the final delivery

In case of a contract covering the delivery of goods in several partial shipments or pieces: On the day when you, or a third party designated by you who is not the carrier or forwarder, have/has taken possession of the last partial shipment or piece.

In case of a contract covering the regular delivery of goods over a certain period of time: On the day when you, or a third party designated by you who is not the carrier or forwarder, have/has taken possession of the first goods.

In case of the above alternatives coinciding, the respectively last delivery shall be applicable.

In order to exercise your right of revocation you shall have to inform us

Hörburger AG
Gewerbestraße 5
D-87448 Waltenhofen
Fon: +49 (0) 831 52241 0
Fax: +49 (0) 831 12918
Email: shop@hoerburger.de

by written definite declaration (e.g. by mailed letter, telefax message or by email) outlining your decision to revoke the contract. You may use the sample revocation form, however, this is not mandatory.

Informing us about the decision to exercise your right of revocation before expiry of the revocation deadline is sufficient to meet said deadline.

Consequences of Revocation

If you revoke this contract, we shall have to reimburse all payments received from you, inclusive of shipping costs (with the exception of additional costs arising from the fact that the Client has chosen a different type of delivery, and not the inexpensive standard delivery offered by the Supplier). Reimbursement shall be effected immediately and, at the latest, fourteen days after receipt of your notice of revocation. For said reimbursement the Supplier shall use the same means of payment used by the Client for the original transaction unless a different means of payment has been expressly agreed upon with the Client; the Client shall not be charged for the reimbursement in any case. The Supplier reserves the right to refuse reimbursement until the goods have been sent back, or until the Client has proven that he has sent back the goods, whichever event occurs first shall be applicable.
The Client shall have to send back or hand back the goods immediately, and, at the latest, within fourteen days of giving the Supplier notice of revocation to

Hörburger AG
Gewerbestraße 5
D-87448 Waltenhofen
Fon: +49 (0) 831 52241 0
Fax: +49 (0) 831 12918
Email: shop@hoerburger.de

The deadline is considered met if the Client dispatches the goods before the deadline of fourteen days expires. For that purpose the Client may use the sample revocation form provided, however, this is not mandatory.

The Client shall bear the immediate costs of sending back the goods.

The Client shall be responsible to bear costs for potential loss of value of the goods only insofar as said loss of value can be attributed to handling the goods in a way unnecessary to establish their condition, characteristics or functionality.

Information on the Supplier’s revocation policy ends here.

16. Within the framework of proper execution of contracts, the Supplier gathers data on the Client. In doing so, the Supplier complies with the relevant legal provisions. Without express consent of the Client, the Supplier shall only gather, process or utilize usage and inventory data on the Client insofar as this is necessary for proper execution of the contractual relationship and for take-up and settlement of teleservices.
Using data on the Client outside of this contractual framework, in particular passing on of data to third parties, shall be excluded.
In relation to Client’s consent and further information on the gathering, processing and utilization of data, we furthermore refer to the data privacy statement, which is available in printable form on the Suppliers webpage via the menu button “Data protection“.

17. The Law of the Federal Republic of Germany shall apply exclusively to contracts between Supplier and Client, the UN Convention on Contracts for the International Sale of Goods does not apply.

18. Place of jurisdiction for all disputes arising from the contractual relationship between the Client and the Supplier shall be the Supplier’s registered office, resp. the Client’s residence.

19. The contract shall remain valid in its other parts even if individual provisions are legally ineffective.

§ 3 Entrepreneurial Capacity

1. Every natural person or legal entity or partnership with legal capacity that exercises its commercial or self- employed independent professional activity upon concluding a contract shall be considered an entrepreneur.
The remaining following terms of contract shall apply exclusively to Clients, who are entrepreneurs, but not consumers, according to the aforementioned definition.

§ 4 Conclusion of the Contract

1. All offers, independent of whether they have been made by phone, telefax, internet, and email or in any other way shall always remain without engagement and non-committal. The Supplier has the right to withdraw from the contract in case of spelling errors, misprints and miscalculations.

2. Documentation belonging to the offer such as images, drawings, weights and dimensions or other performance-related data are only approximately authoritative, as long as they are not explicitly termed as binding. The offers depicted represent a non-committal invitation to the Client to make a bid, which the Supplier, in turn, may accept.

3. Conclusions of contracts and other agreement shall become binding through at least the Supplier’s written confirmation, respectively through delivered goods/rendered services and /or invoicing of aforementioned deliveries/services. Insofar as members of the Supplier’s sales staff, or representatives working for the Supplier, verbally enter into subsidiary agreements or grant assurances extending beyond the provisions laid out in the written sales agreement, these shall, at all times, be subject to confirmation in writing by the Supplier.

4. In case of the Supplier’s (Sigel & Stuhr eShop’s) supplier failing to deliver ordered goods in spite of having contractually undertaken to do so, the Supplier (Sigel & Stuhr eShop) shall have the right to withdraw from the contract.
In such cases, the Client shall be informed immediately about the ordered goods not being available. Purchase price payments already effected shall immediately be refunded.
Customers may not lay claim to anything beyond that against the Supplier.
Should the Supplier gain any knowledge, after conclusion of the contract, which suggests the Client may not be completely creditworthy, the Supplier shall have the right to ask for cash in advance or collateral according to the order and, in case of refusal, to withdraw from the contract. Changes of the company or a change in the person of the Client shall entitle the Supplier to withdraw from the contract.

5. The Supplier does not offer any products for underage Clients.

§ 5 Prices

1. Legal turnover tax is to be added to our prices as well as to potential incidental claims.

2. Additional services and deliveries, which are not explicitly mentioned in the order confirmation, shall be invoiced separately.

§ 6 Delivery Times and Delayed Deliveries

1. Binding and non-binding delivery times and/or delivery deadlines must be in writing in order to be effective. Compliance with delivery times agreed upon requires rendering and/or submission of necessary licences, documentation that needs to be furnished by the Client, clearances, required payments and fulfilment of any other commitment on the part of the Client in time. In the event of such commitments not being met, the deadline will be extended accordingly.

2. The delivery deadline shall be considered met if, upon its expiry, the goods to be delivered have left storage or the Client has been informed about the goods being ready for shipment.

3. The delivery deadline shall be extended (also regarding delayed deliveries) adequately in the event of acts of God, or other unforeseeable obstacles not subject to the Supplier’s control, delaying said delivery, insofar as such obstacles verifiably have a significant influence on the delivery of the goods sold. This shall also apply if such circumstances occur to the Supplier’s contractors and sub-contractors.

4. The Client’s right of cancellation after fruitless expiry of an extended delivery deadline shall remain unaffected.

§ 7 Partial Deliveries

1. The Supplier reserves the right to carry out partial deliveries and/or render performance by successive instalments.

2. Receivables due for partial deliveries and/or performance by successive instalments may be claimed by the Supplier immediately after delivery or after the service has been rendered. Any right on the part of the Client to withhold payment until the whole delivery has been received or all instalments of a service have been rendered shall be expressly excluded.

§ 8 Terms of Payment

1. In the absence of specific agreements, the Supplier’s invoices shall be payable 14 days from the date of invoice without any discounts. Repair and maintenance services are not applicable to such cash discount. As soon as the money is available on the Supplier’s account, the account shall be considered settled.

2. In case of the Client being in default, the Supplier shall have the right, without prejudice to other rights, to withhold all deliveries and/or services and to charge interest on defaulted payments according to Section 288 (2) German Civil Code (BGB), amounting to nine percentage points above the basic rate of interest, as soon as payment has been due. Furthermore, a lump-sum default payment of 40.00 euro shall be charged according to Section 288 (5) German Civil Code (BGB).

3. The Client has the right to withhold payment if he submits a written notice of defects, the justification of which is beyond any doubt.

§ 7 Dispatch

Dispatch of the goods is carried out at the Client’s risk. The same shall apply to possible return consignments. The Supplier shall decide about the carrier/ forwarding agent to be used.

§ 8 Transfer of Risk and Receipt of Goods

1. Risk shall be transferred to the Client at the latest upon dispatch of the goods/parts to be delivered, respectively upon transfer to the carrier, the same shall apply in case of partial deliveries or if further services are to be rendered by the Supplier.

2. In case of delays caused by the Client, risk shall be transferred to the Client from the day the goods are ready for dispatch.

§ 9 Installation, Assembly and Commissioning

The following terms shall apply to all installation, assembly and commissioning activities:

1. The Client shall finish all preliminary work that does not expressly belong to the scope of delivery and services in good time and notify the Supplier thereupon.

2. Insertion, installation and assembly of the components delivered shall be feasible without the help of special auxiliary means (i.e. cranes, scaffolding, and lifting equipment).

3. Before installation and assembly work is commenced, the Client shall provide the necessary information as to concealed power lines, gas lines and water conduits or similar plant components, as well as structural information, without being asked to do so.

4. In case of delayed installation, assembly or commissioning for reasons beyond the Supplier’s control or responsibility, the Client shall meet any additional expenses for waiting times and increased travel expenses (journey, accommodation, charges).

5. Work which has to be carried out under more difficult circumstances/in more difficult conditions shall be accounted separately, unless work under such circumstances/conditions is explicitly mentioned in the order confirmation.

6. Assembly, setup and/or installation by the Client, or by third parties that have not been commissioned by the Supplier, shall always be done at the Client’s risk. Damage and additional costs arising from such activities, in particular costs arising from disassembly, removal, reassembly as well as transport shall be borne entirely by the Client.

§ 10 Retention of Title

1. The Supplier reserves title in all goods delivered to the Client until all claims in connection with the business relationship in question (goods subject to retention of title) existing at the time of delivery have been settled.
In case of open accounts, retention of title to goods (goods subject to retention of title) shall be regarded as security claim for the current account balance claims of the Supplier.
If the combined value of all security interests held by the Supplier exceeds the total value of all secured claims by more than 20%, the Supplier shall, at the request of the Client, release a corresponding part of those security interests (the Supplier is entitled to choose which security interests to release in such a case).

2. The Client shall mark incompletely paid for goods as property of the Supplier (Hörburger AG).

3. The Client is permitted to resell the goods subject to retention of title in the ordinary course of business and/or process them, given that he is not/does not get into default of payment vis à vis the Supplier; he is not permitted to pledge the goods subject to retention of title or assign them as security.

4. The Client shall already now assign by way of security to the Supplier to the full extent all claims arising to the Client from the resale of the goods or from any other legal grounds (e.g. tort) as regards the goods subject to retention of title. This shall also apply to any claims from the account balance.
The Supplier authorizes the Client, until revocation of such authorization (revocation only in case of the Client’s default in payment), to collect upon claims that have been assigned arising from the resale in his own name and for his own account. In the event of seizure or confiscation of the goods subject to retention of title or any other dispositions or interventions by third parties, the Client must inform the Supplier (Hörburger AG) without undue delay. Any costs or damages incurred shall be met by the Client.

5. In the event of the Supplier demanding the return of the goods subject to retention of title, this shall not constitute withdrawal from the contract insofar as the German Instalment Act (Abzahlungsgesetz) is not applicable.

6. In the event of the Client getting into default of payment and/or disintegration of assets, the Supplier shall be entitled, after declaring cancellation of the contract, to collect the goods subject to retention of title at the Client’s premises, to enter, for this purpose, the premises the goods are stored at and to secure and store the goods for the Supplier as he sees fit.

§ 11 Warranty

1. The Supplier warrants within the framework of the following regulations that deliveries are free from manufacturing and material defects and that specifications agreed upon in writing are adhered to. In case of services, the Supplier warrants the flawless execution of said services. Warranty periods shall be limited to twelve months for new pieces of equipment and six months for replacement or servicing equipment.

2. Warranty shall be excluded for development samples, prototypes, pre-production deliveries, damage due to wear and tear or erroneous (negligent) handling (operation). In the event of the Client or third parties modifying the goods the Supplier has delivered or replacing parts thereof, any warranty shall expire.

3. The Supplier shall be notified about defects immediately (within seven days at the latest) and in writing after goods have been delivered. In the event of defects that have not been noticed even after careful examination, the Supplier shall be notified about such defects in writing within seven days after their discovery.

4. In the event of our Client informing the Supplier about goods that are defective, the Supplier shall be entitled to retouch or replace the goods in question as he sees fit.

5. In the event of defects, the Client shall grant the Supplier an appropriate period of time to remedy defects respectively for replacement delivery/indemnification. Only in the event of failed remedy or replacement delivery/indemnification shall the Client be entitled to cancel the contract (rescission) or to demand a reduction of the purchase price (abatement).

6. Only direct Clients of the Supplier (Hörburger AG) shall be entitled to make warranty claims vis à vis us. Warranty claims cannot be assigned.

7. Any liability of the Supplier to the Client regarding the goods delivered beyond that is expressly excluded. In particular the Supplier shall not be liable for indirect or consequential damage. This does not apply to promised features insofar as the purpose of said promised features was it to protect the Client from indirect or consequential damage.

§ 12 Software Performance

1. Software, circuit diagrams and schemes and other intellectual property and developments stored on paper or other storage media or the like that have been produced within the framework of proper execution of this contract or separately are subject to Copyright Law. Within the framework of the licence – said licence to be more closely determined – which will form part of this agreement, the Client shall be entitled to utilize, respectively to commercialize, such software, circuit diagrams and schemes and other intellectual property and developments. Any form of processing and alteration of the licenced materials is strictly forbidden and shall result in corresponding rights to claim damages, respectively contractual penalties. Furthermore, the source code of the software provided shall expressly not be included in the delivery.

2. Internally developed and delivered software shall be used by the Client exclusively on the CPU it has been installed on (computer, PC, SPS, RPS, etc.). Passing software on or copying it to other CPUs is prohibited.

3. The software on data carrier belonging to product documentation shall also be subject to Copyright Law. The Supplier reserves the right to activate copy protection.

§ 13 Place of Performance, Place of Jurisdiction

1. The Place of Performance shall be Weitnau, Germany.

2. In case of both parties to the contract engaging in commercial business, the Place of Jurisdiction shall be Kempten, Germany. This shall also apply to actions filed under the summary proceedings based on bills of exchange, promissory notes and cheques as well as proceedings restricted to documentary evidence. The Supplier shall, however, also have the right to bring legal action against the Client at his own general place of jurisdiction.

§ 14 Applicable Law, Validity

1. The relationship between the contracting parties shall exclusively be governed by the law of the Federal Republic of Germany. In particular, International Trade Law shall not be applicable.

2. In the event of any term/condition or part of a term/condition being or becoming invalid, all other terms/conditions respectively the remaining parts of terms/condition shall remain valid and applicable. In lieu of the invalid term/condition, the contracting parties are to negotiate a valid term/condition, the contents of which are as close as possible to the economic contents of the invalid term/condition respectively invalid part of the term/condition.