TERMS AND CONDITIONS OF SALE AND DELIVERY
Scope of Application
The following General Terms and Conditions of Business (GT&Cs) shall apply only in commercial transactions between Hahn Kunststoffe GmbH (supplier) and companies, merchants, legal entities under public law and special funds under public law.
I. GENERAL
- Orders shall become binding only as a result of the supplier's order acknowledgement. Changes and additions must be in text form. All offers shall be subject to change without notice, unless designated as fixed offers.
- These terms and conditions shall also apply to all future transactions between the supplier and the orderer without having to be expressly referred to again.
- The orderer's terms and conditions of business shall not apply, unless expressly accepted by the supplier.
- The orderer shall be responsible for the completeness, accuracy and timely submission of the execution documents to be obtained or drawn up by the orderer.
- If production capacities are reserved at the orderer's instigation, and execution fails to materialise or is delayed for reasons attributable to the orderer, the orderer shall be liable for the loss incurred as a result thereof.
- The supplier shall not be liable for evident printing errors.
- If any individual provisions are or become ineffective, this shall not affect the remaining terms and conditions.
II. PRICES
- Unless otherwise specifically agreed, the prices shall be understood as being ex works excluding freight charges, customs duties, import levies, incidental levies and packaging, plus value-added tax at the statutory rate.
- The prices have been calculated under the premise that pricing conditions will remain stable. If the prices (price of materials, wages, manufacturing costs etc.) materially change between the time of the conclusion of the contract and the actual delivery date, the supplier and the orderer shall agree upon an adjustment of the prices and of the cost portions for moulds. In the event of unforeseeable cost increases equal to least 20% of the total cost, the supplier may rescind the contract if no agreement on a price adjustment is reached. The same shall apply to the orderer in the event of corresponding cost reductions.
- If it is agreed that the price shall depend upon the weight of the parts, the final price shall ensue from the weight of the samples approved.
- If the supplier has agreed to carry out installation or assembly, the orderer shall, in addition to the agreed fee, bear all customary incidental expenses such as travel expenses, the cost of transporting the tools of the trade and personal luggage, as well as the separation allowance, unless otherwise agreed.
- In the event of new orders (= follow-up orders), the supplier shall not be bound by previous prices.
- For orders where the net value of the goods is below 100.00 €, a surcharge for quantities below minimum may be charged by us in the sum of 20.00 € net per order.
III. DUTY TO DELIVER / DUTY TO ACCEPT DELIVERY
- Unless otherwise agreed, the place of performance for the delivery shall be the works, the supply depot or the company operating on the supplier's behalf. Any delivery to a place other than the place of performance shall take place on the orderer's account and at the orderer's risk.
- Delivery periods mentioned in the offer or in the order acknowledgement shall be deemed to be merely approximate, unless fixed delivery periods have been expressly agreed. In principle, the delivery periods shall begin to run upon receipt of all documents and information necessary for the execution of the order, upon receipt of the down payment and upon timely delivery of the material to be supplied by the orderer. Unless otherwise expressly stipulated in the order acknowledgement, these periods shall relate to the provision of the goods for hand-over or shipment at the works or the supply deposit. If shipment is delayed or impossible through no fault of the supplier, the delivery period shall be deemed met upon notification of readiness for shipment.
- If, through the supplier's own fault, an agreed delivery period is not met, the orderer shall, unless it acted with gross negligence or wrongful intent, be entitled to demand compensation for default, or rescind the contract, upon the expiration of a reasonable grace period in writing, further claims being ruled out. The compensation for default shall be limited to a maximum of 5% of the portion of the delivery that has not been carried out in conformity with the contract. Rescission shall be ruled out if the orderer itself defaulted on taking receipt.
- If, after the contract has been concluded, there are emerging indications that the orderer is insolvent or is solvent only to a limited extent, or indications of a considerable deterioration in the orderer's credit-worthiness, the supplier shall have the right to deliver concurrently with payment, unless the orderer provides sufficient security beforehand. The duty to deliver shall be suspended as long as the orderer is in arrears with a due amount owed to the supplier.
- Appropriate subdeliveries as well as reasonably acceptable deviations from the ordered quantities by up to plus/minus 10% shall be permissible.
- In the case of call-off orders where the term, the manufacturing batch sizes and the date for acceptance have not been agreed upon, the supplier may, no later than three months after having acknowledged the order, demand that these details be bindingly specified. If the orderer fails to comply with this request within three weeks, the supplier shall be entitled to set a two-week grace period and, upon the expiration thereof, demand immediate delivery concurrently with payment, rescind the contract and/or claim damages, at its option.
- If the orderer fails to meet its duties to accept delivery, the supplier shall, without prejudice to other rights, not be bound by the provisions concerning a self-help sale. Rather, the supplier may sell the delivery item on the open market after having given the orderer prior notice.
- With a view to the use of recycled material, the supplier shall be entitled to use raw materials and other materials deviating from the order acknowledgement and the sample provided, insofar as the usability of the goods is not materially restricted as a result of the use of such materials. This shall particularly apply to the colour and the surface finish of the material.
- Events of force majeure shall entitle the supplier to postpone the delivery for the duration of the hindrance plus a reasonable start-up period. In the case of permanent or longlasting hindrances to delivery, the supplier shall be entitled to wholly or partly rescind the contract in respect of the portion not yet fulfilled. Strike, lockout or unforeseeable, unavoidable circumstances, e.g. operational disruptions that make it impossible for the supplier to deliver on time despite reasonable efforts, shall be deemed equivalent to force majeure; the supplier shall be required to furnish proof thereof. This shall apply even if the aforementioned hindrances occur during a period of default or at a subsupplier. The supplier shall notify the orderer without delay if a case of force majeure, as set out in subsection 9, occurs. It shall keep to a minimum any adverse effects on the orderer.
- Contractual penalties shall enter into effect only as a result of an express written agreement.
- Packaging brought onto the market by the supplier shall be taken back at the works or the supply deposit within the scope of the statutory obligations, provided that the packaging is completely empty and clean and has been sorted and delivered by the buyer or at its expense.
- Returning of goods shall only be possible with the supplier's consent. 10% of the net value of the goods, but at least 50.00 € net per order, shall be charged as a restocking fee. This shall also apply to orders already packed, but not yet collected.
- Entry Certificate / intra-Community delivery
a) The customer takes note that, if it collects the goods itself (or has the goods collected by a carrier engaged by the customer), and the goods enter another EU Member State, the customer will receive an invoice excluding value-added tax. This tax exemption for intra-Community deliveries shall be conditional upon the customer confirming that the goods have entered another EU Member State. Within three months of having collected the goods itself, the customer shall therefore confirm to us in writing that the goods have entered another EU Member State. By giving this confirmation, the customer declares that the goods have actually entered another EU Member State (Entry Certificate).
b) If we do not receive the Entry Certificate from the customer within three months of the customer having collected the goods itself, we shall be entitled to correct the invoice. By way of such invoice correction, we shall be permitted to include in the invoice the value-added tax arising if we do not receive the Entry Certificate. In this case, the customer must pay the valueadded tax to us immediately.
c) If the customer does not send us an Entry Certificate in due time, we shall, in the case of future purchases by the customer, be entitled to charge value-added tax even if the goods are collected by the customer itself and enter another EU Member State. In this case, we shall refund the valueadded tax to the customer if the customer sends us an Entry Certificate.
IV. PACKAGING, SHIPMENT AND PASSAGE OF RISK
- Unless otherwise agreed, the supplier shall choose the packaging, the method of shipment and the shipment route.
- The risk of destruction or deterioration of the goods delivered shall pass to the orderer when the goods leave the supply works or the supply depot, even if "delivery carriage-paid" has been agreed. If dispatch is delayed through the fault of the orderer, the risk shall already pass upon notification of readiness for shipment. In these cases, the orderer shall obliged to bear the storage costs.
- Where "delivery carriage-paid" is agreed, this shall be subject to suitable access roads and to unloading by the orderer without delay; otherwise, the orderer shall be liable for any incurred loss and additional expenditure.
- At the orderer's written request, the goods shall, at the orderer's expense, be insured against risks to be specified by the orderer.
V. SECURITY RIGHTS
- The deliveries shall remain the supplier's property until all claims to which the supplier is entitled against the orderer have been satisfied, even if the purchase price for specifically designated claims has been paid. In the case of a running account, the retained title to the deliveries (goods under retention of title) shall be deemed to be security for the supplier's invoice balance. If the supplier becomes liable on the basis of a bill of exchange in the context of the payment of the purchase price, the retention of title shall not cease to exist before the bill of exchange has been honoured by the buyer as the drawee.
- Any reworking or processing by the orderer shall be undertaken on the supplier's behalf without any possibility of acquisition of title in accordance with Section 950 BGB [German Civil Code]. The supplier shall, in a proportion equivalent to the ratio of the net invoice value of its goods to the net invoice value of the goods to be reworked or processed, become co-owner of the thus resulting item, which, as goods under retention of title, shall serve to secure the supplier's claims under subsection 1.
- If the orderer processes (combines/mixes) the delivery item with other goods not belonging to the supplier, the provisions under Sections 947 and 948 BGB shall apply, with the consequence that the supplier's co-ownership share in the new item shall then be deemed to be goods under retention of title within the meaning of these terms and conditions.
- On-selling of the goods under retention of title by the orderer shall be permitted only in the ordinary course of business and on condition that the orderer likewise reaches an agreement with its customers on retention of title in accordance with subsections 1 to 3. The orderer shall not be entitled to make any other dispositions in respect of the goods under retention of title, in particular to pledge these goods or assign them as security.
- In case of on-selling, the orderer hereby assigns to the supplier in advance, until all the supplier's claims have been satisfied, the claims ensuing from on-selling as well as the other legitimate claims against its customers, along with all subsidiary rights. At the supplier's request, the orderer shall be obliged to provide the supplier, without delay, with all information and documents necessary for the assertion of the supplier's rights in relation to the orderer's customer.
- If the goods under retention of title are, by agreement in accordance with subsection 2 and/or 3, on-sold by the orderer together with other goods not belonging to the supplier, the assignment of the purchase-price claim under subsection 5 shall apply only to the invoiced value of the supplier's goods under retention of title.
- If the value of the security existing for the supplier exceeds the supplier's total claims by more than 20%, the supplier shall, to this extent, release security of the supplier's choosing at the orderer's request.
- Any pledging or seizure of the goods under retention of title by a third party shall be reported to the supplier without delay. Intervention costs resulting therefrom shall invariably be chargeable to the orderer, unless borne by third parties.
VI. DEFECTS IN QUALITY
- Upon receipt of the delivery, the orderer shall, without delay, check whether the goods have been made available faultlessly and completely, and shall immediately report in writing any detectable defects. In all other respects, Section 377 HGB [German Commercial Code] shall apply. Subject to VI. (5), the samples approved by the orderer in writing shall determine the quality and design.
- All parts or services exhibiting a defect within the limitation period under VI. (4) shall, at the supplier's option, be rectified, replaced or rendered anew free of charge, insofar as the cause of such defect already existed at the time of the passage of risk. If the supplier fails to meet this obligation within a reasonable period, or if such rectification fails despite a repeated attempt, the orderer shall be entitled to reduce the purchase price or rescind the contract. Further claims, in particular expenditure reimbursement or damage claims on account of a defect or on account of defectrelated consequential loss, shall exist only within the scope of the provisions relating to X. Replaced parts shall be returned to the supplier, carriage unpaid, on request.
- If the supplier has advised the orderer outside of its contractual service, it shall be liable for the functionality and suitability of the delivery item only if this was expressly warranted beforehand. Insofar as the supplier has made statements relating to the usability of the products, such statements shall constitute a separate advisory service only if this has been expressly agreed in writing.
- Unless otherwise agreed, all quality-related defects shall become statute-barred twelve months after the passage of risk. Insofar as the law mandatorily prescribes longer periods, these shall apply. Damage claims shall be subject to statutory limitation. However, damage claims on account of a breach of the duty to render supplementary performance shall not be assertable if supplementary performance can be lawfully refused in accordance with sentence 1.
- The use of recyclate may lead to fluctuations in the quality, particularly the colour, of the products. In this respect, the samples that are, on request, presented to the orderer by the supplier for examination shall constitute non-binding viewing items. Minor deviations therefrom shall not give any entitlement to lodge a complaint. The reference to technical standards shall serve as a service specification and not be interpreted as a guarantee of specific qualities. Defects in quality shall not exist if the items delivered are suitable for the use intended under the contract, or for the customary use, and exhibit a quality customary of items of the same kind, and which the buyer can expect of this type of item. In this respect, the use of recyclate shall be particularly taken into account. For this reason, agreements on desired colours shall also be possible merely within the scope of such manufacturingrelated fluctuations in colour. If the item delivered is used outdoors and is exposed to the weather for a relatively long period, it must be additionally taken into account that air pollution, "acid" rain and other effects of the weather (in particular UV radiation) can alter the surface and colours. However, this shall not affect the useful life. Guarantees of colour fastness (particularly in the case of white) are ruled out. Additionally, fluctuations in the dimensions (of up to 3%) may arise. Temperature-dependent fluctuations of +/- 1.5% in length are customary in the case of plastic profiles and must be taken into account when installing. These fluctuations in length shall be excluded from liability.
- Any autonomous rectification work and improper handling by the orderer shall cause all defect-related claims to be lost.
- Wear and tear to the customary extent shall not give rise to warranty claims.
- Recourse claims under Sections 478, 479 BGB shall exist only insofar as the claim brought by the consumer was justified, and only to the statutory extent, but not for goodwill arrangements not agreed upon with the supplier, and shall be conditional upon compliance with obligations to give notification of defects.
VII. TERMS OF PAYMENT
- Unless otherwise confirmed by us, payments, including payments for subdeliveries, shall be made in cash within 7 days of the invoice date with a 2% cash discount or within 21 days without any deduction, all expenses being borne by the buyer. A prerequisite for the granting of the cash discount is that all undisputed invoices due earlier must have been settled. No cash discount shall be granted for any payments by bill of exchange.
- Planned custom-made products shall be paid at the rate of 30% upon placement of the order, 60% upon notification of readiness for delivery For more information visit » www.hanit.de 159 APPENDIX and 10% upon delivery of the goods.
- All payments shall be made in € (euros) exclusively to the supplier. Agents shall not be entitled to collect payments.
- Transportation and pallet costs as well as labour costs and the cost of merchandise included in the delivery shall not be subject to a cash discount.
- If the agreed date for payment is exceeded, interest shall be charged at the statutory rate, unless the supplier proves a higher loss. The orderer reserves the right to prove that it is not at fault.
- We shall decide on the acceptance of bills of exchange on a case-by-case basis; acceptance thereof shall only be on account of payment; crediting shall be subject to the bills of exchange being honoured. The orderer shall bear all costs, discount charges and payment collection charges. There shall be no possibility of a cash account in the case of bills of exchange. In the case of third-party bills of exchange, we shall provide no warranty for timely collection or timely protestation.
- If a bill of exchange or a cheque is not honoured in due time, or the buyer does not meet its payment obligations, or we become aware of circumstances that call into question the buyer's credit-worthiness, all claims shall fall due immediately, even if deferment has been approved.
- The orderer shall be entitled to rights of set-off only if its claims have been established by a final and non-appealable court judgement, are undisputed or have been acknowledged by us. The orderer shall be authorised to exercise a right of retention insofar as its counter-claim is based on the same contractual relationship.
- Unless otherwise expressly stipulated regarding redemption, any payment received shall serve first of all to settle any due, outstanding items still existing, and the surplus amount shall then be credited against the invoice for which the payment was intended.
- Claims against us shall not be assigned to third parties.
VIII. MOULDS (TOOLS)
- The supplier is, and shall remain, the owner of moulds manufactured in connection with the order by the supplier itself or by a third party engaged by the supplier. Any charging of (prorata) mould costs shall not indicate that the orderer is to become the owner of the moulds. Moulds shall be used exclusively for the orderer's orders as long as the orderer meets its obligations to pay and accept. If the moulds become unusable due to wear and tear in the course of normal use, the supplier may charge (pro-rata) mould costs anew. The supplier shall be obliged to replace these moulds free of charge if these moulds are necessary for fulfilling an output quantity guaranteed to the orderer. Subject to prior notification of the orderer, the supplier's obligation to hold such moulds in safekeeping shall cease to exist two years after the last delivery of parts from the mould.
- The price for moulds shall also include the costs for one single supply of samples, but not the costs for testing and machining devices, nor for alterations brought about by the orderer. Costs for any additional supply of samples for reasons attributable to the supplier shall be borne by the supplier.
- If the orderer is to become the owner of the moulds by agreement, this shall require an express written agreement. In this case, title shall pass upon full payment of the purchase price. Instead of the moulds being handed over to the orderer, the moulds shall be held in safekeeping for the benefit of the orderer. Regardless of the orderer's statutory right to recover possession, and the service life of the moulds, the supplier shall be entitled to exclusively possess the moulds until the contract has ended. The supplier shall mark the moulds as third-party property and, at the orderer's request, insure them at the orderer's expense.
- In the case of the orderer's own moulds as per subsection 3 and/or moulds made available by the orderer on loan, the supplier's liability regarding safe-keeping and maintenance shall be limited to the diligence that it applies in its own affairs. Servicing and insurance costs shall be borne by the orderer. The supplier's obligations shall cease to exist if the moulds are not collected within a reasonable period following completion of the order and a corresponding request to the orderer. As long as the orderer has not fully met its contractual obligations, the supplier shall invariably be entitled to retain the moulds.
IX. SUPPLY OF MATERIAL BY THE ORDERER
- If material is supplied by the orderer, this material shall, at the orderer's expense and risk, be supplied in due time and in faultless condition with an appropriate quantity surplus of at least 5%.
- If these prerequisites are not met, the delivery period shall be reasonably extended. Except in cases of force majeure, the orderer shall bear the resulting extra costs, including costs in connection with interruptions in manufacture.
X. DAMAGE CLAIMS
- Damage claims against us or our agents, on whatever legal basis, in particular also for indirect and consequential loss, are ruled out. This shall not apply in cases of wrongful intent, gross negligence, absence of features warranted, mortal injury, physical injury or health damage or in cases of culpable breach of duties material to the contract. In the case last mentioned, our liability shall be limited to the foreseeable loss typical of this type of contract.
XI. PROPERTY RIGHTS
- If the supplier is required to deliver on the basis of drawings, models or samples from the orderer or using parts supplied by the orderer, the orderer shall be accountable that no third-party property rights in the country of destination of the goods are infringed as a result thereof. The supplier shall point out to the orderer any rights known to it. The orderer shall indemnify the supplier against third-party claims and compensate for any loss incurred. If a third party pleading a property right belonging to it prohibits the supplier from manufacturing or delivering, the supplier shall be entitled, without examination of the legal position, to discontinue the work until the legal position has been clarified by the orderer and the third party. If the delay makes it unreasonable to expect the supplier to continue the order, the supplier shall be entitled to rescind the order.
- Any drawings and samples that have been made available to the supplier and have not led to an order shall be returned on request; otherwise, the supplier shall be entitled to destroy them three months after having submitted the offer. This obligation shall apply to the orderer accordingly. The party entitled to undertake such destruction shall give the contractual partner timely prior notification of its intention to undertake such destruction.
- The supplier shall be entitled to the copyrights and, where applicable, industrial property rights, in particular all rights of use and exploitation, in the models, moulds, devices, drafts and drawings created by the supplier or by third parties on its behalf.
- If other defects in title exist, No. VI. shall apply to these accordingly.
- Unless otherwise agreed, the orderer shall be obliged to deliver free of third-party industrial property rights and copyrights merely in the country of the place of delivery. Insofar as a third party asserts legitimate claims against the orderer on the basis of an infringement of property rights as a result of deliveries used in conformity with the contract, the orderer shall, within a limitation period of one year from delivery, at its option either obtain a right of use for the delivery concerned, modify the delivery in such a way that the property right is not infringed, or exchange the delivery. If this is not possible for the orderer on reasonable terms, the orderer shall be entitled to the statutory rights of rescission and price reduction, damage claims of any kind being ruled out. This limitation shall apply only insofar as the supplier, its statutory representatives or its agents have not acted with wrongful intent or gross negligence. The aforementioned obligations shall exist only insofar as the orderer gives, without delay, written notification of the claims asserted by the third party, an infringement is not acknowledged, and all defensive measures and settlement negotiations remain reserved to the supplier. Claims of the orderer shall be ruled out insofar as the orderer is at fault for the property right infringement. This shall also apply insofar as the infringement of the property right is due to specific instructions given by the orderer.
XII. PLACE OF PERFORMANCE AND PLACE OF JURISDICTION
- The place where the supplier's company headquarters are situated shall be the exclusive place of jurisdiction. The supplier may, at its option, also bring an action at the place where the orderer's headquarters are situated.
- German law shall apply exclusively. The application of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (BGB 1989, p. 586) for the Federal Republic of Germany (BGB 1990, p. 1477) is ruled out.
Hahn Airport, 1 January 2020