I. Application of General Terms and Conditions of Business
The following General Terms and Conditions of Business are the basis for all agreements between HAKU Fertigungstechnik GmbH & Co. KG, Hegelstraße 13, 33790 Halle (Westphalia), Germany (hereinafter: “HAKU”) and merchants (Unternehmer) (German Civil Code (Bürgerliches Gesetzbuch) (BGB) § 14), legal persons governed by public law and special funds under public law (hereinafter: “Contracting Parties”). They apply to all deliveries and other services, including work and service agreements, consulting, proposals and other ancillary services.
II. Offer documents
All data and information, in particular regarding weight, quality, dimensions, properties and condition, as well as all depictions, descriptions, assembly diagrams, perspective drawings, printed advertising materials and similar media (including the Internet) of HAKU are subject to change and non-binding. HAKU is bound on specially prepared offes 30 calender days from the date of the offer. They only become the subject matter of an agreement if HAKU makes express reference thereto upon the conclusion of a contract or designates them as binding. Qualities and dimensions are governed by the DIN-/EN standards or materials sheets in effect when the contract is entered into, except as other standards are agreed to in writing. If no DIN standards or materials sheets exist, the corresponding European standards shall apply, failing which the usage of the trade. Indications regarding qualities and dimensions are not warranties of quality.
HAKU reserves title to and copyright over all documents turned over. Documents designated as “confidential” may be disclosed to third parties only with HAKU’s consent.
III. Contract formation
Offers – particularly as regards quantity, price and time of delivery – are subject to change without notice. Orders by the Contracting Party are accepted only upon HAKU’s written confirmation. Delivery or issuance of an invoice are also valid as confirmation.
Oral agreements, promises, assurances etc. in connection with the conclusion of the agreement are only binding upon written confirmation.
In the event of doubt, INCOTERMS, in the version in effect at the relevant time, are controlling for the interpretation of trade terms.
IV. Prices and payment
Except as otherwise agreed, all prices are understood to be ex works, packaging and value added tax excluded. Packaging costs are billed separately. Value added tax is shown separately, in the applicable statutory amount.
If between the conclusion of the agreement and delivery there is a material change in order-related costs such as taxes, charges, fees etc. due to changes in legal regulations, the Contracting Parties shall come to an agreement regarding an appropriate adjustment of the prices.
Absent written agreement otherwise, all payments are due 30 days after the invoice date. Checks, drafts and other modes of payment shall only be deemed payment when the corresponding amounts have been received.
The Contracting Party may only offset counterclaims if the latter are legally binding, undisputed or acknowledged by HAKU. It may exercise a right of withholding only if the subject matter is based on the same contractual relationship.
V. Delivery and passage of risk
Except as otherwise agreed, HAKU shall deliver ex works. The risk of loss from accidental destruction or accidental deterioration passes to the Contracting Party once the item being delivered leaves HAKU’s works or warehouse, as the case may be. If delivery is delayed for reasons for which the Contracting Party is responsible, the risk of loss passes on the day of appropriation and tender of delivery.
HAKU shall only be obligated to deliver or provide services if the Contracting Party has properly fulfilled all obligations under the agreement in a timely manner. Partial deliveries are permitted insofar as no ascertainable interest of the Contracting Party runs counter thereto.
The Contracting Party’s unconditional creditworthiness is prerequisite to the obligation to deliver. HAKU may withhold delivery if, subsequent to the conclusion of the contract, serious doubts emerge regarding the Contracting Party’s ability and willingness to pay. This applies, in particular, if an insolvency proceeding has been applied for or opened or other payments under the business relationship are outstanding despite a notice to pay. In that event, HAKU may request that its deliveries or services be paid for in advance or that appropriate security be furnished, preferably in the form of bank guarantees. If no payments are made or security furnished within a reasonable period set by HAKU, HAKU may rescind the agreement.
The same is true if, under the law of the country of destination, the security rights agreed to in Section VII are not valid and the Contracting Party has not procured comparable security for HAKU.
In the event of force majeure or unforeseeable circumstances over which HAKU has no influence, an agreed deadline for delivery or performance shall be extended for the duration of the impediment. This applies, in particular, to natural disasters, business interruptions, strikes, lock-outs, civil disturbances, official directives, subsequent removal of import and export possibilities, failure of upstream suppliers to make covering deliveries and transportation hindrances. If the impediment lasts longer than three months, either side may withdraw from the contract on account of the portion not performed. The same is true if, due to unforeseeable circumstances, the commercial basis of the agreement has been so fundamentally altered that one or both sides cannot reasonably be expected to abide thereby.
Claims by either side for damages owing to the above-mentioned circumstances are barred.
VI.Duty of inspection and duty to provide notice of defects
The Contracting Party shall inspect the goods without undue delay pursuant to German Commercial Code (Handelgesetzbuch) (HGB) § 377 and provide HAKU with written notice of any defects. The notice of defects must allow the type and extent of the asserted defect to be clearly identified. Goods for which no notice of defect has been given in the proper form and by the proper deadline shall be deemed approved and accepted.
The Contracting Party must keep the goods complained of available at the place of inspection and shall provide HAKU, its suppliers or a specialized expert with an opportunity to inspect them themselves.
Complaints are barred once the Contracting Party has begun to commingle, continue to use or resell the goods delivered or to work on or process them.
VII. Export control regulations and restrictions
The Contracting Party agrees to comply with the export control regulations and restrictions of the Federal Republic of Germany or the country of destination in effect at the relevant time. The items delivered may not be shipped, either on their own or after any processing, combination or commingling, to third-party purchasers whose activities are connected to weapons of mass destruction or the like.
If the Contracting Party breaches this obligation, HAKU may demand the immediate return of the items delivered. If return is not possible, the Contracting Party must provide HAKU with a full clarification of their whereabouts.
The Contracting Party shall in this case compensate HAKU for all damages. Damages claims by the Contracting Party are barred.
In the event it takes back the items delivered, HAKU is entitled and obligated to make other disposition thereof, as best it is able. The Contracting Party is entitled to the proceeds of the disposition, after deduction of the reasonable costs of disposition and any damages claimed.
HAKU reserves title to all items delivered until receipt of all payments under the delivery agreement. If, when delivery is made, other claims under the business relationship are outstanding, the reservation of title continues to be valid until these claims too have been settled.
Prior to the passage of title, the Contracting Party is obligated to treat delivered items with care, in particular to carry out any required maintenance work in a timely fashion. In addition, it shall insure the delivered items for fire, water damage and theft, at its expense, in an amount sufficient to cover replacement value.
The Contracting Party may re-sell a delivered item in the ordinary course of business. It hereby assigns to HAKU its claims against third parties from the sale, in the amount of HAKU’s final invoice amount (including value added tax). This also applies if the item delivered was processed or commingled with other things. HAKU hereby accepts the assignment. The Contracting Party only remains authorized to collect as long as it has fulfilled its obligations under the business relation and no circumstances take place that justify doubts as to its ability and willingness to pay. In that case, only HAKU is authorized to collect the claims assigned. The Contracting Party is then obligated, at HAKU’s request, to inform its buyers of the assignment immediately. Furthermore, it shall indicate to HAKU the name and address of the third-party buyer and turn over all documents regarding the assigned claim that are required for the assertion of legal rights.
Any processing, combination or commingling by the Contracting Party of the item delivered is always done for HAKU. HAKU shall acquire co-ownership of the new item in proportion to the delivered item’s value as per the final invoice amount relative to the other goods used. Should HAKU lose title, the Contracting Party shall convey co-ownership to it in the specified ratio. The Contracting Party shall hold the new item in custody for HAKU, at no charge.
If, following delivery, serious doubts arise regarding the Contracting Party’s ability and willingness to pay, HAKU may prohibit processing, combination or commingling of the item delivered and may rescind the agreement. The Contracting Party shall then return the delivered item to HAKU. Section VI (4) shall apply, mutatis mutandis.
In the event of attachment or other third-party seizure of the item delivered, the Contracting Party shall make reference to HAKU’s title and shall notify HAKU without undue delay.
If the above security rights are not valid, in whole or in part, under the law of the country of destination, those security rights allowable under the law of the country of destination that most closely approximate the aforesaid agreements shall be deemed to have been agreed to. In case of doubt, the Contracting Party shall be obligated to procure equivalent security for HAKU.
IX. Warranty and limitation of liability
The Contracting Party may assert claims due to defects only if notice of the latter was provided in proper form by the proper deadline and HAKU had an opportunity to check the delivered item itself. Where there are objectively justified objections to the item delivered, the Contracting Party, at its election, may request cure through the elimination of defects or delivery of a defect-free item concurrently with the return of the defective item. The costs of cure shall be borne by HAKU. If the cure fails, the Contracting Party may choose between rescission of the agreement and price reduction.
Except as otherwise emerges from the above agreements, HAKU shall be liable for damages for breach of contractual and extra-contractual duties, as well as in contrahendo, only for intentional wrongdoing and gross negligence by its representatives and agents. In addition, HAKU shall be liable upon culpable breach of essential contractual duties. Except for intentional breaches of duty, liability is limited to typical, foreseeable contract damages. Further liability is excluded.
This is without prejudice to liability for culpable injury to life, body or health. The same is true for claims under the German Product Liability Act (Produkthaftungsgesetz) (ProdHaftG).
X. Place of performance and place of jurisdiction
The place of performance for all contractual and statutory claims by both sides under the contractual relationship is HAKU’s place of business. The place of jurisdiction for all disputes under the contractual relationship – including liabilities on notes and checks – is HAKU’s place of business. HAKU may also sue the Contracting Party at the latter’s place of general jurisdiction.
The law of the Federal Republic of Germany shall apply, not including U.N. sales law.
XI. Binding character of the agreement
Even if individual points of the agreement are invalid, the other portions thereof shall remain binding. This does not apply if adherence to the agreement would represent an unreasonable hardship for one party.