General Terms and Conditions of the company HA-CO GmbH
A) General Terms and Conditions of the company HA-CO GmbH
1. The following conditions of sale apply for all agreements for the supply of goods concluded between HA-CO and the purchaser, insofar as the purchaser is an entrepreneur within the meaning of § 14 of the German Civil Code. They also apply for every future business relation, even if they are not expressly agreed once again. Differing conditions of the purchaser, which are not expressly recognised by HA-CO, are non-binding for HA-CO, even if HA-CO is not expressly contradicting them.
2. All agreements that are reached between HA-CO and the purchaser in connection with sales contracts are subjected to the sales contract, to these terms and to the order confirmation of HA-CO.
II. Offer and conclusion of contract
1. The offers of HA-CO are free and non-binding, unless they are expressly referred to as binding in a written form by HA-CO.
2. Measurements, weights, illustrations, drawings and other documents which belong to the non-binding offer of HA-CO remain in the property of HA-CO and are only relevant appoximately, unless they are not expressly referred to as binding by HA-CO.
III. Terms of payment
1. If the agreed delivery time exceeds the period of four months from the conclusion of contract or the delivery delays for four months from the conclusion of contract on reasons that the purchaser has to represent on his own or that fall within the purchasers own area of risk, then v is entitled to charge the price valid at the date of delivery.
In case that the price increase affects more than 5 % of the agreed purchase price, the purchaser is entitled to withdraw from the contract.
This right of withdrawal is dropped if it is not exercised by the purchaser within a period of two weeks beginning with the date of notification of the new price.
2. The prices of HA-CO apply ex works if no deviating agreement is reached with the purchaser. The packaging costs are not included in the price.
3. Unless there is otherwise agreed in writing, the net purchase price (without deduchtion) is immediately payable upon receipt of the invoice to the purchaser.
4. The purchaser also gets in delay without the reminder of the seller if he does not pay the purchase price within 30 days after the due date and the receipt of invoice or any equivalent payment schedule. If the purchaser falls into arrears with a payment, HA-CO is entitled from the concerning date to demand interest at a rate of 8% above the respective base rate. The evidence of a higher damage through HA-CO remains reserved.
5. The purchaser is only entitled to appeal, even though complaints or counter-claims are asserted, if the counter claims are legal determined, recognised from HA-CO or indisputable. The purchaser has no right of retention, unless his counter-claim is based on the same contract.
IV. Delivery time and Performance period
1. Delivery dates or time limits that are not expressly agreed as binding are exclusively non-binding information.
2. In case that the seller can culpably not meet the expressly agreed deadline or falls behind for other reasons, the purchaser has to accord him a resonable grace period – beginning with the day of receipt of the written notice of default at HA-CO or according to the relevant calendar date. After an effectless expiry of this grace period, the purchaser is entitled to withdraw from the contract.
3. According to the statutory provisions HA-CO has to bear liability subject to the following limitations, if the contract is in regard to short selling or if the purchaser is entitled to discontinue his interest in the fulfilment of the contract due to the consequences of a delivery delay for which HA-CO is responsible.
4. According to the statutory provisions HA-CO has to bear liability to the purchaser for delay in delivery, if the delay in delivery is based on an intentional or grossly negligent breach of duty represented by HA-CO. A fault on their representatives or their vicarious agents is attributed to HA-CO. If the delay of delivery is not based on an intentional or grossly negligent breach of contract represented by HA-CO, the liability from HA-CO is limited to the foreseeable, typically occuring loss.
5. If the delay of delivery represented by HA-CO is based on the culpable breach of an essential contractual obligation, HA-CO bears liability according to the statutory provisions, whereby the liability is limited to the foreseeable, typically occuring loss.
6. The purchaser's other statutory claims and rights due to a delay of delivery by HA-CO remain unaffected.
7. HA-CO is entitled to partial deliveries and partial performance at any time insofar as this is reasonable for the purchaser.
V. Transfer of risk - shipment / packaging
1. Loading and shipment are made non-binding at buyer's risk. With regard to the shipping method and the dispatch route HA-CO will try to take the purchaser's wishes and interests into account; thus conditional costs – even at agreed freight-paid delivery – will be at the expense of the purchaser.
2. If the shipment is delayed upon request or for default of the purchaser, HA-CO will store the goods at the risk and costs of the purchaser. In this case the notification for the readiness for shipping is equal to the shipment.
VI. Warranty / limitation / disclaimer of warranty
1. If the purchase is a commercial transaction for both parts, the purchaser immediately has to examine the received commodity after receipt, insofar as this is feasable within the ordinary course of business, and promptly has to inform HA-CO if a defect appears.
2. If the purchaser refrains this notification, the received goods are rated as approved, unless they involve a defect that was indistinguishable during the investigation. In other respects §§ 377 of the German commercial code shall apply.
3.The claims are limited to the removal of the defect or to the delivery of a fault-free item (supplementary performance) after HA-CO's option. The purchaser has the right to demand a reduction of the purchase price or to withdraw from the contract at the failure of the supplementary performance.
4. Further claims of the purchaser, in particular due to consequential damages, are fundamentally excluded.
This does not apply to intent, gross negligence or the violation of essential contractual obligations by HA-CO as well as in case of the violation of life, the body or health. The right of the purchaser to withdraw from the contract remains unaffected.
5. For new goods the statutory warranty amounts one year after delivery of the goods.
6. For second-hand goods the statutory warranty will be excluded, imsofar as HA-CO does not fraudulently keep an existing defect secret or has given a guarantee in relation to the condition of the goods.
VII. Retention of title
1. HA-CO reserves the property of the goods (reserved goods) up to the entrance of all payments from the sales contract.
2. The purchaser has to inform HA-CO in written form in case of access of a third person, in particular from enforcement measures as well as other impairments of the property.
The purchaser has to replace HA-CO all damages and costs that arise due to a breach of these obligations and due to necessary intervening measures regarding access by third parties.
3. If the purchaser defaults in payment despite a reminder by HA-CO, HA-CO can demand the publication of the goods that are still in his possession without previously setting a deadline. The purchaser has to bear the resulting transport costs. The attachement to the reservation of ownership thorugh HA-CO shall always constitute a withdrawal from the contract. After recovering the reserved goods, HA-CO is authorized to their exploitation. The utilisation proceeds are to charge on liabilities deducting appropriate liquidation costs.
VIII. Industrial property rights and copyright of third parties
The transfer of software programs shall be made in accordance with the terms and conditions of the respective licensor's licence. The scope results of the licensor's licenses as well as the performance specifications and other user instructions that are printed in the appropriate user manuals or are available as a file.
This also applies in particular for restrictions on use.
Insofar as a liability of HA-CO results it applies: HA-CO and their vicarious agents are liable for claims of damage of the purchaser from positive claim infrigement, for breach of duties and for unlawful act as follows:
a) The liability for personal injuries complies with the statutory requirements.
b) The liability for material damage is limited to EUR …….(e.g. 250.000,-) per
damage event and to EUR……(e.g. 500.000,-) in total.
c) The liability for financial losses is excluded.
The limitation of liability under b) and the exclusion of liability under c) do not apply, insofar as liability is mandatory such as in damage to private property under the German Product Liability Act, in cases of intent or gross negligence or the significant breach of contractual obligations or the lack of assured properties for contactually typical foreseeable damage.
X. Final clause, proper law, jurisdiction agreement
1. The relationship between the contracting parties will be regulated exclusively in accordance with the laws applying in the Federal Republic of Germany. The application of the Uniform Law on the International Sale of Goods as well as the Uniform Law on the Formation of Contracts is excluded.
2. If the purchaser is merchant, the court responsible for the headquartes of HA-CO shall be the exclusive venue. The same place of jurisdiction applies if the purchaser has no general place of jurisdiction in the Federal Republic of Germany on the date of institution of the court proceedings.
3.The purchaser is not entitled to assign the claims under the purchase contract without the consent of HA-CO.
4. Should any regulation of this general terms of delivery- and payment prove or become invalid or impracticable, this does not affect the effectiveness of the general terms of delivery- and payment otherwise.
B) General conditions of HA-CO GMBH at service contracts
1. The following conditions apply for all contracts concluded between HA-CO and the customer about the creation of a work or the service delivery, insofar as the customer is a contractor in compliance with § 14 of the German Civil Code. They apply for all future business relations, even if they have not been expressly agreed upon once more. Differing conditions of the customer that are not expressly recognised by the contactor are non-binding for HA-CO, even if they do not expressly contradict them.
2. All agreements that are made between HA-CO and the customer in accordance with the orders are resigned in writing in the contract, in these conditions and the order confirmation of HA-CO.
II. Delivery and performance
1. The delivery- or performance date or the delivery- or performance period - below simplified named as “delivery date“ - will be agreed to the prospective capacities of HA-CO and sees itself non-binding and conditional to timely self-delivery and unforeseen conditions and obstacles, wether or not these occur at HA-CO or at the manufacturer, espacially force majeure, government measures, non-issuance of official approvals, labour disputes of any kind, sabotage, shortage of raw materials, delayed delivery of material. Corresponding such events extend the delivery date even if they already appear during the delay.
Any period of grace set by the contractual partner in this case shall be extended for the duration of the unforeseen event. If these events lead to service delay of more than two months, the customer can withdraw from the contract regardless of other rights of withdrawal.
2. The customer may request delivery or performace in writing from HA-CO if a non-binding delivery date has been exceeded by six weeks. On receipt of the request HA-CO shall be in default, insofar as the exceeding of the delivery date does not (also) lie in the area of responsibility of the customer. In cases where the customer is entitled to compensation for delay, this shall be limitied on not more than 5% of the agreed payment in the case of slight negligence by HA-CO. If the customer withdraws from the contract additionally to the assertion of compensation for delay or should he claim damages instead of performance, then he has to set a reasonable deadline for delivery/performance for HA-CO on expiry of the above-named period of six weeks. Any liability of HA-CO shall be excluded once the damage occurs, even in the case of the compliance with the delivery date. At exceedance of a binding agreed delivery date a request by the customer is not required to put HA-CO in default, insofar as the legal preconditions exist otherwise. For the rights of the customer the regulations above apply.
3. HA-CO reserves the right to withdraw from the contract if the delivery delay caused by one of the above events (or due to circumstances that (at least) lie within the area of responsibility of the customer) lasts longer than six weeks and HA-CO is not responsible for this.
4. Drawings, illustrations, dimensions, weights or other performance data are only binding, if these are expressly agreed in writing. Reasonable technical and structual deviations from information in brochures, catalogues and written documents as well as model-, design-, and material change in the course of the technical progress and the further development remain reserved without having rights derived against HA-CO for these reasons.
III. Acceptance, maturity
The customer is obliged to take over the properly produced work. The acceptance is accomplished if the contracting party accepts the performed work without giving notice of any defect. This shall apply as accepted if the customer does not reprimand the work as defective or contray to contract within 8 days after delivery. The reprimand must take place in written form, the time limit shall be granted by posting, by dispatch via fax or via email.
1. HA-CO provides warranty by repair for defects or new production of the work at his choice, if the customer demands supplementary performance.
2. Insofar as HA-CO seriously and finally refuses the performance or the removal of the defect and the supplementary performance due to disproportinate costs, or the supplementary performance fails,or it is unreasonable for the contractor, the customer can demand reduction at his choice or withdraw from the contract.
3. The customer has no right of withdrawal, if only one slight lack of conformity is existing or if HA-CO is not responsible for a breach of duty, which is included in a defect.
4. Rights of the customer due to defects that do not affect a building or a work, whose provisions are planning-, or supervisory services become time-barred one year after the acceptance, unless HA-CO is guilty of coarse fault, as well as in case of HA-CO's personal injury and health hazards up to the loss of life of the customer.
V. Limitation of liability
Insofar as a liability of HA-CO results it is valid: HA-CO and their vicarious agents are liable for claims of damages of the customer from positive breach of obligation, from the violation of duties during contract negotiations and from unlawful act as follows:
d) The liability for personal injuries complies with the statutory requirements.
e) The liability for material damage is limited to EUR……(e.g. 250.000,-) per
damage event and to EUR……(e.g. 5000.000,-) in total.
f) The liability for financial losses is excluded.
The limitation of liability under d) and the exclusion of liability under e) shall not apply, insofar as there exists mandatory liability for damage to private property according to the product liability law or in cases of intent or gross negligence or the breach of essential contractual obligations or the lack of assured properties for contractually typical foreseeable damage.
VI. Final clause, proper law, jurisdiction agreement
1. The relationship between the contracting parties will be regulated exclusively in accordance with the laws applying in the Federal Republic of Germany.
2. If the purchaser is merchant, the court responsible for the headquarters of HA-CO shall be the exclusive venue. The same place of jurisdiction applies if the purchaser has no general place of jurisdiction in the Federal Republic of Germany on the date of institution of the court proceedings.
3. The purchaser is not entitled to assign the claims under the purchase contract without the consent of HA-CO.
4. Sould any regulation of this general terms of delivery- and payment prove or become invalid or impracticable, this does not affect the effectiveness of the general terms of delivery- and payment otherwise.