General Terms and Conditions for Sale and Delivery, Hohner Maschinenbau GmbH
1.1 No contract may be deemed to have been concluded with us, except on the basis of these Terms and Conditions of Sale and Delivery (General Terms) to the exclusion of any other terms or conditions. This applies also in cases where deliveries are performed without any separate provision on our part.
1.2 These General Terms also apply to future transactions with the Customer, even where no specific reference is made by us to the applicability of our General Terms.
2. Offers, General
2.1 Our offers are not binding. Until acceptance of offers (order-confirmation), we are entitled to revoke offers without reason.
2.2 Technical and mould modifications are admissible, provided they are reasonable for the Customer and they do not constitute a deterioration in quality or economy.
3. Prices, Price Adaptation
3.1 Unless otherwise stated in our offers, order-confirmation letters or invoices, our prices are ex works plus packaging. The prices are exclusive of any applicable value added tax which the Customer shall be additionally liable to pay to us. Price quotations in our catalogues and brochures are non-binding and exclusive VAT.
3.2 Our prices are based on the wages, material, energy and fixed costs at the time of confirmation of order. Should these costs increase within four months between conclusion of contract and delivery, we shall be entitled to increase the prices accordingly, unless we are in default of delivering on time or we are liable for cost increase for other reasons.
4. Delivery Period, Delays
4.1 Only agreed-upon delivery periods are binding.
4.2 An agreed-upon delivery period begins with the receipt of our order confirmation, but not before the provision by the Customer of any necessary documents, drawings, plans approvals, releases, disposals, which have to be obtained or before the arrival of an agreed or legitimately demanded advanced payment. The delivery period has been complied with, if before its expiration the goods are ready for dispatch and this has been notified, or the contractual goods have been handed over to the carrier.
4.3 The delivery periods shall be reasonably extended in the event of disruptions for which we cannot be held accountable, such as: strikes, lockouts or delivery delays outside of our area of responsibility. In such cases, the Customer shall be entitled to withdraw from the contract, after granting a reasonable grace period not less than six weeks. Any claims for damages are excluded. Should a disruption for which we are not responsible last for longer than six weeks, we are entitled to withdraw from the contract, without any obligation to compensate the Customer.
4.4 In the case of delay on our part, provided the Customer is able to provide evidence of damage, we shall be deemed liable for 0,5 % of the net price for each completed week of the delay, but no more than a total of 5 % of the net price for the affected part of delivery. This liability restriction shall not apply in cases of mandatory liability due to premeditation or gross negligence. On default of payment based on gross negligence, our liability is limited to typical and foreseeable damages.
5. Delivery, Transfer of Risk, Conciliation
5.1 Partial deliveries are admissible, provided they do not constitute an unreasonable inconvenience to the Customer.
5.2 Deliveries occur ex works (EXW) Tuttlingen (Incoterms 2010). At the wish and the expense of the Customer, we insure deliveries against typical damage in transit.
5.3 We only take back undamaged reusable package at the settling place Tuttlingen. In all other cases, the Customer shall remove waste package at its own expense.
5.4 Where we accept the return of goods as a conciliatory gesture, they shall be sent at the risk and expense of the Customer. The time of delivery shall be two weeks from the date of our shipping note. The Customer has to attack a copy of the shipping note. In case of cancellation, we issue credit notes after deduction of 20 % of the invoice amount plus VAT, but at least € 40,00 and at most € 200,00 plus VAT to cover administrative and exploitation expenses (compensation). The compensation shall be determined higher or lower if we prove a higher or if the Customer proves a lower compensation.
6.1 As far as different is not agreed upon our invoices become due 30 days after layout ready at the settling place Tuttlingen and notification of this to the Customer without deduction. The receipt of invoice is not condition of payability.
In case of payment within 8 days, counted starting from the date of invoice, we give a discount of 3 % and in case of payment within 14 days, subject to these conditions, we give a discount of 2 %. For the timeliness of receipt of payment, the date of accounting on us is deciding.
6.2 In cases where we have raised an objection of uncertainty (circumstances which place the creditworthness of the Customer in doubt excepting in cases where such circumstances were recognizable on conclusion of contract, German Civil Code Art. 321) or if the Customer is in default of payment for a total amount of EUR … or more we are entitled to revoke any agreed-upon paymentschemes and to make all claims immediately payable. We are entitled to announce the cancellation of contract, if the Customer has made false statement concerning his financial standing unless the Customer immediately makes advance payment.
6.3 The Customer is not authorised to withhold payment or to set off counterclaims unless a right to do so has been determined with legal force or is undisputed or recognized as obvious by all parties.
6.4 Payment discounts are granted exclusively subject to adherence to our terms of payment.
7. Reservation of Title
7.1 The supplied goods shall remain our property until all our claims arising from the business relationship with the Customer have been met in full (reserved goods). Without our prior consent, the Customer is not entitled to mortgage or to transfer ownership of reserved goods by way of security. The Customer is entitled to sell or process/integrate the goods in the regular course of business.
Only in the case of a deterioration in the financial circumstances of the Customer, we shall be entitled to prohibit the sale/processing, integration or mixture of reserved goods.
7.2 Resale by the Customer is permitted, provided that the Customer (reseller) imposes the provision on the subsequent purchaser that title passes to the Customer’s purchaser only after his payment obligations relating to the reserved goods have been met in full (simple reservation of title). By now the Customer cedes to us all amounts due from resale of the reserved goods up to the amount of our claim.
7.3 The Customer is entitled to collect assigned claims. This entitlement shall lapse in the event of a default of payment or in case of a material deterioration in the financial circumstances of the Customer. In such cases, we are entitled to inform the customers of the assignment and to collect outstanding claims ourselves.
The Customer is required to provide the necessary information for the assertion of assigned claims, and shall permit the review of this information. He shall, in particular, provide us on request with a precise list of claims owing to him with the names and addresses of customers, the amount of the individual claims, date of invoice etc. at his expense and shall afford us entry to his premises to review this information.
7.4 If the reserved goods are joined, mixed or processed by the Customer to create a new movable item, this is done without any obligation arising for us. By joining, mixing or processing the reserved goods, the Customer shall not acquire title to the new item in accordance with Artt. 946 ff. of the German Civil Code. If reserved goods are joined, mixed or processed with items not belonging to us, we shall acquire co-title to the new item at a ratio proportionate to the invoice value represented by our reserved goods.
7.5 The Customer shall inform us without delay in the event of a discontinuation of payments, a material deterioration in his financial circumstances or the attachment of property. The names and addresses of attachment creditors shall be made known to us. The Customer shall bear all necessary costs, which are spent for abolition of measures of distraint by mortgagees and for a replacement of the goods.
7.6 In the event of discontinuation of payments by the Customer, or a material deterioration of his financial circumstances, in particular when application is filed for the initiation of insolvency proceedings over his assets, we are entitled to demand surrender of the reserved goods. A demand for surrender constitutes a withdrawal from the contract. Under such circumstances, the granting of a period for performance may be dispensed with.
7.7 The Customer shall hold the reserved goods in safekeeping on our behalf at no charge. He shall provide adequate insurance cover for the goods against customary risks such as fire, theft water and transport damage. He hereby assigns any claims to damages due to him as a result of damage from third parties to us to the full extent of the invoiced value of the goods.
8. Tools, Special Products
8.1 As not otherwise agreed upon, tools to be needed to manufacture goods for the Customer, remain our property, even if the Customer has paid for them, provided that we gain intellectual property right to these tools or the tools or their evolution constitute(s) trade secret.
8.2 If products have been made especially on demand of the Customer, we have no liability in respect of any infringement by the specially manufactured products of third party intellectual property rights. The Customer shall at all times, indemnify and keep indemnified us against all or any costs, claims, damages or expenses incurred by us, all for which we may become liable with respect to any third party intellectual property rights claims referring to these specially manufactured products.
9.1 No warranty cover shall be afforded for insignificant defects.
9.2 The Customer will examine the goods immediately after receipt or hand-over to the carrier and has to provide notice of any evident damage right away, but within fourteen days after risk transfer at the latest. Non-evident damage shall be reported without delay upon discovery, but within seven days of discovery at the latest. The same applies to direct deliveries to third parties nominated by the Customer. The Customer has to ensure that complaints by third parties are made in good time.
9.3 In the event of significant defects occurring within the warranty period (s. 9.4) and if the Customer has provided notice of these defects within the time as set forth in 9.2, we are entitled and obliged to repair up to three times or to replace the defect goods within a reasonable period, provided the root cause of the defect already existed at the time of risk transfer. The latter Customer has to furnish proof. Should the third remedy fail, the Customer may either withdraw from the contract or reduce the payment accordingly, without prejudice to any claims for damages as outlined under 10.
9.4 Claims to damages shall lapse in one year. This shall not apply in cases of injury to life, body or limb, premeditated or grossly negligent breach of duty on our part, on part of our vicarious agents or of malicious failure to disclose a defect. This shall not affect statutory regulations relating to suspension of the period of limitations and recommencement of warranty periods.
9.5 Claims on the part of the Customer for expenses incurred in remedying a defect, in particular transport, travelling, labour and material costs shall be excluded in the event that the expenses incurred increase due to transfer of the delivered object to a location other than the Customer’s place of business.
9.6 For claims to damages based on material defects 10. shall apply. The Customer shall not be entitled to assert any claims above and beyond those regulated by 9. in conjunction with 10.
9.7 Should the Customer make an unsubstantiated warranty claim, we reserve the right to charge the Customer for any costs thereby incurred.
10. Claims for Damages
10.1 Claims for damages and expenditure on the part of the Customer (compensation for damages) whatever their legal grounds, in particular due to the infringement of obligations arising from the contractual relationship or on the basis of tort are excluded.
10.2 The exclusion of liability in accordance with 10.1 shall not apply in cases where our liability is mandatory, e.g. in accordance with product liability legislation, in case of premeditated action, gross negligence, injury to life and limb or the infringement of pertinent contractual obligations. Contractual obligations are deemed pertinent, if compliance thereof makes the execution of the contract possible in the first place and if compliance can normally be expected by the Customer. In the case of infringement of such pertinent contractual obligations, however, our liability shall be limited to contractually-typical, foreseeable damages, except in cases where premeditation or gross negligence, injury to life and limb may be said to exist. A change in the burden of proof to the detriment of the ustomer is in no way implied by these provisions.
10.3 Claims for damages due to material defects (s. 9.) shall lapse in accordance with 9.4.
11. Assignment, Place of Performance, Legal Venue, Applicable Law
11.1 Without our prior consent, the Customer shall not assign, transfer, charge, encumber or otherwise deal with any rights of contracts with us.
11.2 Place of performance for all deliveries and obligations is Tuttlingen.
11.3 The legal venue for all direct or indirect disputes arising from the contractual relationship shall be Tuttlingen.
11.4 The contractual relationship is subject to substantive and procedural German Laws. Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.