- contracts with any individual acting in their professional capacity, either in employment or self-employed (entrepreneur);
- contracts with any legal entities under public law or any special funds under public law.
- These Conditions shall govern all goods and services contracts and specific agreements, if any. Any contradicting Buyer’s conditions of purchase shall not become part of the contract by the Seller accepting an order. Unless otherwise agreed, the contract shall be deemed to become effective by the Seller acknowledging the order in writing.
- No arrangement shall be effective unless agreed by the parties in writing. Any guarantee or other commitment shall be identified as such.
- The Seller reserves title and all rights with respect to any samples, quotations, drawings and similar information, physical or otherwise, also if provided in electronic form; these must not be disclosed to any third party. The Seller undertakes not to disclose to any third party without the Buyer’s prior consent any confidential information or documentation provided by the Buyer.
II. Price and Payment
- Unless otherwise agreed, prices shall be deemed to be ex works inclusive of loading at the plant but exclusive of packaging materials. Prices are quoted less statutory value-added tax.
- Unless otherwise agreed, payment shall be made in full into the Seller’s bank account as follows; 50% down payment upon receipt of the confirmation of the order, 30% upon notification to the Buyer that the main parts are ready for shipment, the balance shall be due for payment within 20 days of commissioning and/or hand-over, but within 60 days of the passing of risk at the latest.
- The Buyer shall not have the right to defer payment or set it off against any claim, unless such claim is undisputed or based on final court decision.Price and Payment
III. Lead Time, Default
- The lead time shall be agreed between the Parties. The Seller shall meet the lead time subject to all commercial and technological issues being clarified between the Parties and the Buyer having met all its obligations, such as obtaining and submitting any necessary permission from authorities and making a down payment. Otherwise, the lead time will be extended by an appropriate period. This shall not apply where such delay is attributable to the Seller.
- The Seller undertakes to meet the lead time subject to it receiving correct and timely supplies from its own suppliers.
- The lead time shall be deemed to have been met if, at its expiration, the goods have been dispatched from the Seller’s plant or notice has been given that the goods are ready for shipment. This shall also apply if an acceptance inspection has to be carried out.
- In the event that shipment or acceptance of the goods are delayed for any reason attributable to the Buyer, any resulting cost shall be charged to the Buyer, beginning one month after notification that the goods are ready for shipment or buy-off.
- In the event that delay or default is caused by force majeure, industrial action or any other event beyond the Seller’s control, the lead time shall be extended by an appropriate period. The Seller shall notify the Buyer of the beginning and end of such circumstances at the earliest date possible.
- The Buyer may withdraw from the contract without notice if complete contract performance proves to be impossible for the Seller prior to the passing of risk. Moreover, the Buyer may terminate the contract if delivery proves impossible for part of the goods ordered and the Buyer has a justified interest in not accepting delivery by instalments. Where this is not the case, the Buyer shall pay that portion of the contract price that corresponds to the part delivery. The same shall apply where the Seller is unable to deliver. For further consequences refer to section VII.2. Where such impossibility or frustration of performance occurs while the Buyer is in default in taking delivery or if the frustrating circumstances are solely or largely attributable to the buyer, then the Buyer shall be obliged to pay the consideration.
- Where the Buyer suffers a loss caused by a delay on the part of the Seller, the Buyer shall be entitled to claim lump sum damages. For each complete week of the delay, such damages shall amount to 0.5%, but not more than 5% in total, of the value of such portion of the contract goods which cannot be used in time, or in accordance with the contract, because of the delay.
- If, with due consideration of exceptions covered by law, the Buyer grants a reasonable period of grace for the Seller in default to perform and the Seller fails to perform within such period, then the Buyer shall have the right to cancel the contract as provided by law.
- Any further right to claim from default in deliveries shall be governed exclusively by section VII.2 of these terms and conditions.
- Passing of Risk, Acceptance
- Risk shall pass to the Buyer once the consignment of goods has been dispatched from the plant, even where delivery is made in instalments or where the Seller has agreed to perform other obligations as well, such as shipment cost, or delivery and installation. Any acceptance inspection, if agreed, must be carried out on the date agreed or, immediately upon notification from the Seller that the goods are ready, as the case may be. The Buyer may not refuse to take delivery except on the basis of a substantial defect detected.
- Where dispatch or acceptance inspection is delayed or not performed because of any circumstances not attributable to the Seller, risk shall pass to the Buyer on the date of the notification that the goods are ready. The Seller undertakes to take out, at the Buyer’s expense, such insurance policies as the Buyer shall request.
- Delivery by instalments shall be allowed to the extent acceptable to the Buyer.
- Reservation of Title
- The Seller reserves title to the goods until all the contract payments have been received.
- The Seller shall have the right to insure the contract goods at the Buyer’s expense against theft, breakage, fire, water and other damage, unless the Buyers can prove to have taken out such insurance policies itself.
- Without the Seller’s prior written consent, the Buyer must not sell, pledge nor assign the contract goods as collateral. In the event that the goods are seized or confiscated or otherwise disposed of by any third party the Buyer must notify the Seller forthwith.
- Failure on the part of the Buyer to perform its contractual obligations, especially default in payment shall entitle the Seller to repossess the contract goods after sending a reminder, and the Buyer shall be obliged to return the goods. Any enforcement of this reservation of title and seizure of the contract goods by the Seller shall not be deemed a cancellation of the contract.
- Where the Buyer, in its regular course of business, will be reselling the contract goods, the Buyer herewith assigns to the Seller, up to the total amount of its invoice (inclusive of VAT), all amounts receivable from the Buyer’s customers or any third party, irrespective of whether or not the contract goods have been resold following further processing. The Buyer shall remain entitled to collect such receivables even after the assignment. This shall not affect the Seller’s right to collect the receivables itself. The Seller undertakes, however, not to collect such receivables as long as the Buyer makes due payments from its income, does not default in payment and, in particular, no petition in bankruptcy has been filed or cessation of payments has occurred. Otherwise, the Seller is entitled to request that the Buyer disclose the receivables assigned and the debtors concerned, and all the information needed for collecting the receivables, and hand over the relevant documentation and notify the debtors (third parties) of the assignment.
- Any processing or reconstruction of the contract goods by the Buyer shall be deemed to be carried out for the Seller. Where the contract goods are processed together with other goods, which do not belong to the Seller, the Seller shall become a co-owner of such portion of the new goods as corresponds to the value, at the time of processing, of the contract goods in relation to the other goods processed. The new goods produced in the process shall be subject to the same conditions as the contract goods supplied under reservation of title.
- Where the contract goods are inseparably mixed with other goods, which do not belong to the Seller, the Seller shall become a co-owner of such portion of the new goods as corresponds to the value, at the time of mixing, of the contract goods in relation to the other goods mixed. Where the goods are mixed in such a way that the goods belonging to the Buyer shall be considered to be the main part, then the Buyer shall agree to transfer proportionate co-ownership to the Seller. The Buyer shall hold and keep the property so created safe for the Seller.
- The Buyer shall assign to the Seller as security for the payments to be received by the Seller such receivables as shall accrue against any third party from any connection of the contract goods with any real estate property.
- The Seller undertakes to release on the Buyer’s request any security it is entitled to in so far as and to the extent that the value of the securities exceeds the outstanding payments to be secured by more than 20%. Selection of the securities to be released shall be at the Seller’s discretion.
- The Seller shall have the right to cancel the contract and require the Buyer to deliver up the goods forthwith if a petition in bankruptcy or insolvency is filed for the Buyer.
Subject to section VII and to the exclusion of any other claim, the Seller guarantees the goods to be free of defects of quality and deficiencies in title as follows: Defects of new contract goods
- Any part which should prove to be defective within 12 months of the delivery date as a consequence of circumstances which occurred before the passing of risk shall, at the Seller’s discretion, be repaired or replaced free of charge. The Seller shall be notified forthwith of any such defect detected. Any part replaced shall become the property of the Seller.
- In order for the Seller to carry out any repair and/or replacement it deems necessary, the Buyer shall, upon consultation with the Seller, allow the necessary time and opportunity; otherwise the Seller shall not be liable for any resulting consequences. The Buyer must not attempt to rectify any defect itself or have it rectified by a third party, and claim compensation for necessary expenses from the Seller, unless in an emergency to ensure operational safety or in order to prevent excessive damage, in which case the Seller shall be notified forthwith.
- Of the costs of repair or replacement, insofar as the complaint proves justified, the Seller shall bear the costs of the replacement part, including any freight and reasonable costs of removal and installation and, if equitable in the given circumstances, the cost of sending its fitters and auxiliary staff, if necessary. Should the Buyer move the contract goods, or parts thereof, from any agreed place of installation to any third place, then the Seller shall bear any resulting extra cost, in particular any extra cost of travel incurred by the Seller.
- The Buyer shall have the right to withdraw from the contract to the extent allowed by law, if the Seller, with due consideration of the exceptions granted by law, fails to make use of a reasonable period of grace set for him to repair or replace any defect detected. In the event of an insignificant defect the Buyer shall be entitled to claim a reduction in the contract price only. In any other case, there shall be not right to any reduction in the contract price.
5: No warranty shall be accepted, in particular, in the following cases: unsuitable application or improper use, faulty installation or commissioning by the Buyer or any third party, natural wear and tear, improper or negligent handling, failure to observe proper maintenance, use of unsuitable operating media, defective building quality, unsuitable ground, chemical, electrochemical or electrical impact, insofar as these are not attributable to the Seller. 6. The Seller shall not be liable for any consequences resulting from any repair carried out improperly by the Buyer or a third party. The same shall apply where the Buyer makes any changes to the contract goods without obtaining the prior consent of the Seller. Special terms with respect to defects in used contract goods
- Unlike the above, there shall be no warranty for any used contract goods. This shall not apply to any case of wilful concealment of a defect or breach of a guarantee. Otherwise, the contractual rights of the Buyer shall not be affected where the contract goods supplied are used ones.
Deficiencies in title
- In the event that the use of the contract goods should lead to an infringement of any domestic industrial or intellectual property right, the Seller shall, at its expense and as a matter of principle, obtain the right of continued use for the Buyer or modify the contract goods in a way acceptable to the Buyer and such as to eliminate the infringement of any property right. Where this should prove to be impossible to be done at a reasonable expense or within a reasonable period of time, the Buyer shall have the right to cancel the contract. In the aforementioned circumstances, the Seller shall also be entitled to cancel the contract. Moreover, the Seller shall indemnify the Buyer against any undisputed or unappealable claims of the owners of any intellectual property rights concerned.
- The obligations of the Seller stated in section VI.8 shall be subject to VII.2 for the infringement of industrial or intellectual property rights.
They shall not apply, unless
- The Buyer notifies the Seller forthwith of any infringement of industrial or intellectual property rights claimed,
- The Buyer supports the Seller to a reasonable extent in its defence against the claims made, or makes it possible for the Seller to carry out any modifications as per section VI.8, as the case may be,
- The Seller has the privilege of choosing what defence action to take, including any settlement out of court,
- The deficiency in title is not attributable to any instruction made on the part of the Buyer,
- The infringement has not been caused by the Buyer making an unauthorised change to the contract goods or using them in a way not stipulated by the contract.
- If, because of any failure on the part of the Seller to carry out completely or correctly any suggestions or counselling made prior to or after the contract or any breach of other contractual arrangements, such as in particular any operating or maintenance instructions for the contract goods, the Buyer cannot use the contract goods in the way intended by the contract, then the stipulations of sections VI. and VII. 2 shall apply accordingly, excluding any other claim on the part of the Buyer.
- The Seller shall not be responsible, on any legal grounds whatever, for any damage caused other than to the contract goods proper, unless
- For intent,
- For gross negligence of its owner/ its executive bodies or its executives,
- For culpable harm caused to life, body and health,
- For any defect it has willfully concealed or whose absence it has guaranteed,
- For any defect in the contract goods insofar as liability is applicable under the product liability act to any injury or damage to property in products for non-commercial use.
In the event of any culpable breach of essential contract obligations the Seller shall accept responsibility also for gross negligence of non-executive staff and for slight negligence, in the latter case limited to the reasonably predictable damage typical in the context of the contract. No other claim shall be accepted. VIII. Limitation All claims the Buyer may have on any legal grounds whatsoever shall fall under a time limitation of 12 months. The statutory time limits shall apply to any case of intent or wilful deceit and any claim under the product liability act. Likewise, they shall apply to any defect in a building structure or to contract goods which, in accordance with their usual application, have been used for a building structure and have caused the defectiveness of the latter.
- Use of Software
Insofar as the contract goods contain any software, the Buyer is granted a non-exclusive right to use the goods supplied inclusive of their documentation. It is provided for use on the contract goods for which it is intended. The software must not be used on more than one system. Thy Buyer may not reproduce, revise or translate the software or change it from the object code into its source code to any extent other than allowed by law (§ 69 ff. UrhG copyright act). The Buyer undertakes not to remove or change without the Seller’s express prior consent any labelling stating the manufacturer and, in particular, any copyright marking. Any other rights in the software and the documentations, including the copies thereof, shall remain with the Seller or the software supplier, as the case may be. Sublicensing shall not be allowed.
- Applicable Law, Jurisdiction
- All legal relations between the Seller and the Buyer shall be governed exclusively by the relevant legislation of the Federal Republic of Germany applicable to legal relations between domestic parties.
- This contract shall be governed by German law.
- The court at the place of the Seller’s headquarters shall have jurisdiction. However, the Seller shall have the right to go to court at the place of the Buyer’s headquarters.
General Terms and Conditions of Sale Häcker Automation GmbH (12/2014)