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General Terms and Conditions of Sale and Delivery

 

for commercial business transactions based on the conditions recommended by the German Machinery and Plant Manufacturers' Association

I. General, scope of application

1. These General Terms and Conditions of Sale and Delivery (Terms and Conditions) shall apply exclusively to all business relations between us (Supplier) and our customers (Purchasers). These Terms and Conditions shall therefore also apply to all future business relationships in the version valid at the time of the order, even if they are not expressly agreed again.  

2. Purchasers within the meaning of these Terms and Conditions are exclusively entrepreneurs (Section 14 BGB, German Civil Code), legal entities under public law or special funds under public law.  

3. The Supplier shall not recognise any conflicting, deviating or supplementary general terms and conditions of the Purchaser. This shall also apply if the Supplier carries out the delivery to the Purchaser without reservation in the knowledge of conflicting, deviating or supplementary general terms and conditions of the Purchaser.  

4. References to the validity 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 Terms and Conditions.

 

II. Offer and conclusion of contract

1. Offers of any kind and form of the Supplier are subject to change and non-binding. The ordering of goods by the Purchaser shall be deemed a binding contractual offer. Unless otherwise stated in the order, the Supplier is entitled to accept this contractual offer within 14 days of its receipt by the Supplier.

2. A contract shall be concluded by the acceptance of the order by means of a written (fax, e-mail is sufficient) order confirmation to the Purchaser.  

3. With the exception of managing directors or authorised signatories, the Supplier’s employees are not entitled to make verbal agreements that deviate from the written agreement. However, transmission by fax or e-mail is sufficient for the validity of deviating agreements.   

 

III. Price and payment

1. Unless otherwise agreed, the prices are EXW Bad Oldesloe (Incoterms 2020) plus packaging, plus statutory value added tax.  

2. Unless otherwise agreed, the purchase price is due without any deduction immediately after delivery and receipt of the invoice. The date of receipt by the Supplier shall be decisive for the date of payment. The Supplier shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, he becomes aware of circumstances which are likely to significantly reduce the creditworthiness of the Purchaser and which jeopardise the payment of the Supplier’s outstanding claims by the Purchaser arising from the contractual relationship.  

3. HAKO reserves the right to adjust the prices for the products not yet delivered to the extent that the manufacturing costs for the products not yet delivered have increased overall since the conclusion of the contract, either due to an increase in customs duties, taxes or other levies. If the adjustment amounts to more than 10 %, the Purchaser is entitled to withdraw from the purchase contract. The cancellation must be declared to HAKO within 7 days of receipt of the price adjustment request.  

4. The Purchaser shall only be entitled to set-off or retention rights insofar, as his claim has been legally established or is undisputed.

5. A payment shall only be deemed to have been made when the Supplier can dispose of the amount. In the case of bank transfers, payment shall only be deemed to have been made on the date on which the amount is credited unconditionally to the Supplier’s business account.  

6. The Supplier reserves the right to apply incoming payments to the oldest receivable plus the accrued interest.

 

IV. Delivery, transfer of risk, delay, impossibility

1. Unless otherwise expressly agreed, delivery shall be EXW Bad Oldesloe (INCOTERMS 2020). This shall also apply if the Supplier has also taken over the assembly or installation of the goods at the place of destination and acceptance has been agreed.  

2. Deadlines and dates for deliveries and services promised by the Supplier are always only approximate, unless a fixed deadline or a fixed date has been expressly promised or agreed.  

3. The Supplier may – without prejudice to his rights arising from default on the part of the Purchaser – demand from the Purchaser an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the Purchaser fails to fulfil his contractual obligations towards the Supplier.

4. The Supplier shall not be liable for the (temporary) impossibility of delivery or for delays in delivery for which he is not responsible. The occurrence of a delay in delivery on the part of the Supplier shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the Purchaser is required.  

5. If the Supplier has concluded a congruent hedging transaction with another supplier, the delivery shall be subject to the Supplier’s own correct and timely delivery by his suppliers, provided that the Supplier is not responsible for the absence or delay of his supplier’s delivery. The Supplier shall inform the Purchaser immediately of the non-delivery or late delivery by a supplier. If self-supply can no longer be expected (e.g., due to behaviour in breach of contract, insolvency or destruction of the supplier’s production facility) or if the goods are not available even after expiry of the new delivery period, the Supplier shall be entitled to withdraw from the contract and shall reimburse the Purchaser’s counter-performance without delay.

6. A delivery deadline shall be deemed to have been met if the Supplier has notified the Purchaser that the goods are ready for dispatch by the time the deadline expires.  

7. If acceptance is to take place, the goods shall be deemed to have been accepted when  

  • the delivery and – if the Supplier is also responsible for installation – the installation has been completed;
  • the Supplier has notified the Purchaser of this with reference to the fiction of acceptance in accordance with this Clause IV.7 and has requested the Purchaser to accept the goods;
  • twelve working days have elapsed since delivery or installation or the Purchaser has started to use the goods (e.g., has put the delivered system into operation) and in this case six working days have elapsed since delivery or installation and
  • the Purchaser has failed to accept the goods within this period for a reason other than a defect notified to the Supplier which makes the use of the goods impossible or significantly impairs it.

8. If the handover is delayed due to a circumstance caused by the Purchaser, the risk shall pass to the Purchaser from the day on which the goods are ready for dispatch and the Supplier has notified the Purchaser accordingly. Storage costs after the transfer of risk shall be borne by the Purchaser. In the case of storage by the Supplier, the storage costs shall amount to 0.25 % of the invoice amount of the goods to be stored per completed week. The Supplier reserves the right to claim and prove further or lower storage costs. 

9. If delivery is delayed by more than 6 months for reasons for which neither the Purchaser nor the Supplier is responsible, both the Purchaser and the Supplier shall be entitled to withdraw from the relevant purchase contract.  

10. Partial deliveries are permissible if

  • the partial delivery can be used by the Purchaser within the scope of the contractual purpose;
  • the delivery of the remaining goods ordered is ensured and
  • the Purchaser does not incur any significant additional expenditure or additional costs as a result (unless the Supplier agrees to bear the costs).

 

V. Retention of title

1. The Supplier retains title to the goods until all present and future claims of the Supplier against the Purchaser arising from the purchase contract and an ongoing business relationship (secured claims) have been settled in full.  

2. The Purchaser may not sell, pledge or assign as security the goods subject to retention of title (reserved goods) before full payment of the secured claims.

3. In the event of seizure, confiscation or other dispositions by third parties, the Purchaser must inform the third party of the Supplier’s ownership and will inform the Supplier immediately so that the Supplier can enforce his right of ownership. If the third party is not in a position to reimburse the Supplier for the judicial or extrajudicial costs incurred in this connection, the Purchaser shall be liable to the Supplier.

4. The Supplier shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods subject to retention of title in the event of breach of contract by the Purchaser, in particular in the event of default in payment. This shall also apply if an application is made to open insolvency proceedings against the assets of the Purchaser.

5. At the request of the Purchaser, the Supplier shall release the reserved goods if their value exceeds the amount of the secured claims by more than 50 %.

6. The Supplier is entitled to insure the reserved goods against theft, breakage, fire, water and other damage at the Purchaser’s expense, unless the Purchaser has demonstrably taken out the insurance himself. If the Purchaser has taken out insurance himself, he shall assign to the Supplier any claims against the insurance company for destruction, damage, loss or theft of the goods subject to retention of title. The Supplier accepts the assignment.

7. The Supplier reserves the right of ownership and copyright to samples, cost estimates, drawings and other information of a physical and non-physical nature – including in electronic form; they may not be made accessible to third parties. The Purchaser undertakes to make information and documents designated as confidential by the Supplier accessible to third parties only with the Supplier’s consent.

 

VI. Warranty

1. The Purchaser’s warranty rights presuppose that he has fulfilled his obligations to inspect and give notice of defects in accordance with Section 377 HGB (German Commercial Code). If a defect is discovered during the inspection or later, the Supplier must be notified of this defect immediately in writing (fax, e-mail is sufficient).  

2. If the goods are defective, the Supplier may, at his own discretion, remedy the defect by way of subsequent fulfilment (rectification of defects) or deliver new goods free of defects (subsequent delivery). The right of the Supplier to refuse subsequent fulfilment under the statutory conditions remains unaffected. If the goods are defective, the Supplier shall bear the expenses necessary for the purpose of subsequent fulfilment. Otherwise, the Supplier may demand compensation from the Purchaser for 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 recognisable to the Purchaser.

3. The Purchaser shall give the Supplier the time and opportunity required for the subsequent fulfilment owed, in particular to hand over the rejected goods for inspection purposes. In the event of subsequent delivery, the Purchaser shall return the defective goods to the Supplier in accordance with the statutory provisions. Subsequent fulfilment does not include the removal of the defective item or its reinstallation if the Supplier was not originally obliged to install it.

4. Agreements on the quality and availability of the delivery items shall only be deemed a guarantee if they are expressly designated as such.  

5. The warranty period shall be 12 months.

 

VII. Liability

1. Claims of the Purchaser for damages and reimbursement of futile expenses against the Supplier, regardless of the legal grounds, in particular due to breach of the contractual obligation and/or due to unauthorised action (claims for damages), are excluded.  

2. The above exclusion of liability shall not apply if the Supplier is guilty of intent or gross negligence and/or in the event of a breach of essential contractual obligations. Essential contractual obligations are those obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the Purchaser regularly relies and may rely.  

3. In the event of non-intentional and non-grossly negligent breach of essential contractual obligations, the Supplier’s liability shall be limited to compensation for foreseeable damage typical for the contract.  

4. The above exclusions and limitations of liability shall apply to the same extent in favour of the Supplier’s executive bodies, legal representatives, employees and other vicarious agents.

5. The above limitations of liability shall not apply insofar as the Supplier is compulsorily liable, e.g., under the Product Liability Act, for damages resulting from injury to life, body and health, in the case of claims due to fraudulent behaviour on the part of the Supplier and in the case of the assumption of a guarantee for the quality of the delivery item.

 

VIII. Limitation period

1. All claims of the Purchaser against the Supplier, irrespective of the legal grounds, shall become time-barred 12 months after delivery of the goods to the Purchaser. Insofar as acceptance is required, the limitation period shall commence upon acceptance. This shall not affect special statutory provisions for third-party claims in rem for restitution (Section 438 (1) No. 1 BGB, German Civil Code), in the event of fraudulent intent on the part of the Supplier (Section 438 (3) BGB, German Civil Code) and for claims in supplier recourse in the event of final delivery to a consumer (Section 479 BGB, German Civil Code).

2. The above limitation period according to Clause IX. 1. Sentence 1 shall not apply to claims for damages based on intent or gross negligence or on the breach of essential contractual obligations, as well as to claims for damages in the cases outlined in Clause VIII. 4, in which the Supplier is compulsorily liable. In these cases, the statutory limitation period shall apply exclusively.  

 

IX. Use of software

1. Insofar as software is included in the scope of delivery, the Purchaser shall be granted a non-exclusive, non-transferable and non-sublicensable right, unlimited in time and space, to use the software supplied, including its documentation. The software is provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited.

2. The Purchaser may only reproduce, revise, translate or convert the software from the object code into the source code to the extent permitted by law (Section 69 a ff. UrhG, German Copyright Act). The Purchaser is not authorised to transfer the copy of the software provided to him or any backup copy to a third party in accordance with Section 69a ff. UrhG, German Copyright Act. In particular, he is not permitted to sell, lend, rent, or otherwise licence the software or to publicly reproduce or make the software accessible. The Purchaser undertakes not to remove manufacturer’s details – in particular copyright notices – or to change them without the Supplier’s prior express consent.

3. All other rights to the software and the documentation, including copies, shall remain with the Supplier or (in the case of integrated third-party standard software) with the respective software supplier. The granting of sub-licences is not permitted.

4. The Purchaser is obliged to take suitable measures to protect the software from access by unauthorised third parties, in particular to keep all copies of the software in a safe place.

5. Modification, manipulation, suppression or circumvention of the software by the Purchaser is not permitted. The same applies to a separation of the software and the delivery item or in the event that the Purchaser removes or deactivates the software from the delivery item. Any damage caused by such handling of the software shall be borne by the Purchaser. In this case, the Supplier shall not be responsible for the security of the delivery item.

6. If the Purchaser infringes the rights of third parties in violation of the above provisions of this
Clause X, the Purchaser shall indemnify the Supplier against any claims of the third party in this respect.

7. The Purchaser is obliged to notify the Supplier in writing (fax, e-mail is sufficient) of any defects in the software immediately after their discovery. In the case of material defects, this shall be done by describing the time of occurrence of the defects and the more detailed circumstances.

 

X. Use of software data

1. Data generated, collected by or transmitted to the above software in the course of the use of the delivery item by the Purchaser is automatically synchronised with the Supplier’s systems via radio; this is data of the following categories (“log data”):

  • Duration of use of the product
  • Frequency of use
  • Error messages
  • Information about maintenance
  • Energy consumption

2. Data that allows conclusions to be drawn about identifiable persons are not collected or transmitted (personal data). This includes, in particular, information about the respective user of the product or specific usage data which, due to their characteristics, allow conclusions to be drawn about individual persons. The Supplier shall therefore ensure that any synchronisation with data relating to the delivery item is exclusively anonymised.

3. The Supplier analyses the transmitted log data in order to obtain data for development, service or preventive service or sales purposes, among other things. If new findings are obtained from this analysis (“analysis data”), the Supplier shall be entitled to the exclusive rights to this analysis data.  

4. The Purchaser has the option of concluding a separate contract with the Supplier for the provision of the analysis data by the Supplier. In this case, the Purchaser shall receive the non-exclusive, non-transferable, non-sublicensable right to use the analysis data, limited to the term of the Analysis Data Contract.

5. The Purchaser is not permitted to influence the software in such a way that he obtains knowledge of the analysis data other than in the manner described in Clause XI.4.

 

XI. Applicable law, place of jurisdiction, place of fulfilment

1. These Terms and Conditions and all legal relationships between the Supplier and the Purchaser shall be governed exclusively by the law of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.  

2. Place of fulfilment for all obligations of the Supplier arising from the contract is Bad Oldesloe. If the Supplier is also responsible for setting up or installing the goods, the place of fulfilment is the place where the installation is to take place.

3. The place of jurisdiction is the court responsible for the Supplier’s registered office. However, the Supplier is entitled to bring an action at the court responsible for the Purchaser’s headquarters.

 

 

Last updated: 12/23

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