TERMS & CONDITIONS
Standard terms and conditions of sale for the company hawo GmbH (hereafter referred to as “hawo“) for use in business relationships with companies, legal entities and public bodies (hereafter referred to as “buyer”)
1. General
The deliveries, services and offers from hawo result exclusively on the basis of these standard terms and conditions of sale. The terms are valid for this contract and also future transactions. Differing terms of business from the buyer will not be acknowledged, unless they are specifically agreed to in writing.
2. Formation of a contract
1. A contract exists only after written order confirmation or after delivery of the goods by hawo. Hawo has the right to undertake technical modifications on the delivery, so long as no limitation of the function or worsening of the goods to be delivered results.
2. Hawo retains the exclusive ownership and intellectual property rights for cost estimates, drawings, designs samples or other documents. They may not be made available to 3rdparties. The buyer must return all documents, connected to the offer, immediately on request.
3. Offers, Prices
1. All offers are without obligation until acceptance, unless something else is clearly stated by hawo in the offer.
2.Unless otherwise agreed in writing, all prices are Ex Works (Incoterms 2010) plus the legal sales tax and excluding all additional costs such as packaging, travel and transport costs, customs duties and subsistence allowances.
3. Should the prices increase between the time of the order confirmation and the delivery, if this time is more than 4 months, due to increased material, wage, transport costs or another reason outside hawo’s control the prices at the time of delivery are valid.
4. Delivery
1. The delivery is Ex Works Mosbach, Germany in accordance with Incoterms 2010. Delivery times are non binding as long as nothing else has been agreed. Agreed delivery times begin with the day, when the order confirmation from hawo is received by the buyer.
2. The agreed delivery times extend for the period of time, in which unexpected obstacles or other issues, which are beyond the control of hawo, and which delay the completion of the delivery occur; the same applies for the case that hawo are not delivered to on time or properly themselves.
3. Additionally, hawo has the right to carry out part deliveries. These will be invoiced separately.
4. If delivery from hawo is delayed and a causal damage is proven, the buyer is entitled to claim compensation for every completed month of delay of 0.5% per month, however not more than 5%, of the price of the part of the delivery, which cannot be taken into operation due to the delay, as long as hawo cannot prove a lower damage.
5. Warranty claims from the buyer due to delay in the delivery and compensation claims above the limits named in number 4 are not possible. This does not apply to cases of intent or gross negligence or by compelling liability resulting in injury of life, body or health. The buyer is entitled in accordance with the legal regulations to cancellation of the contract if the delivery delay is caused by hawo. These rules do not affect the burden of proof of a disadvantage to the buyer.
6. By delays in the delivery time at the request of the buyer, hawo is entitled to charge storage costs of 0.5% of the price of the delivery per month started, however not more than 5% in total, so long as the buyer does not prove a lower damage.
5. Credit-Worthiness of the Customer
1. A requirement of delivery is the unconditional credit-worthiness of the customer. Should hawo receive information after the formation of the contract that the entitlement of hawo to remuneration from the buyer is endangered due to lacking capacity, hawo is entitled to demand advance payment or securities.
2. If no securities or advance payment are received from the buyer inside a time limit of 1 week, hawo is entitled to cancel the contract and demand compensation.
6. Transfer of risk, Collection
1. Deliveries, including returns, are at the risk of the buyer; even when the delivery takes place free of freight costs unless it relates to a valid warranty claim. The risk is transferred to the buyer as soon as the delivery has left the plant; this applies also to part deliveries and orders, which include additional goods and services.
2. If a formal collection and approval has been agreed, this governs the transfer of risk. The collection must punctually take place on the date of the delivery. The buyer is not permitted to refuse the approval due to an insignificant defect. If the buyer does not arrive on the arranged collection date, hawo has the right to set a time limit of 7 days, with the note that the goods will be considered collected, should the buyer not collect the goods inside 7 days or refuses to collect the goods.
3. If samples, spare parts, films, accessories or devices are sent to hawo for repair, this takes place at risk and cost of the buyer. The return of such objects also takes place at risk and cost of the buyer. All deliveries are free of cost for hawo. On delivery of the material, hawo confirms receipt of the packaging unit, an obligation to inspect the goods does not exist.
7. Impossibility
If the delivery from hawo is impossible, the buyer can demand compensation unless hawo is not responsible for the impossibility. The compensation entitlement is however limited to 10% of the value of the part of the delivery, which cannot be taken into operation for the intended purpose due to the impossibility. The compensation entitlement of the buyer is not limited in case of intent or gross negligence or by compelling liability resulting in injury of life, body or health; a change in the burden of proof to the detriment of the buyer is not incorporated.
8. Conditions for return of goods
An entitlement to the return of goods delivered in accordance with the contract does not exist.
9. Payment Terms, Delivery for Trial
1. As far as nothing else has been agreed in the individual contract, the payment is due with the issuing of the invoice; at the latest on receipt of the goods by the buyer. Payments are to be made free of cost to hawo. The buyer is late if he does not pay within 14 days of the due date.
2. If the buyer is late with payment, hawo is entitled to demand the return of the delivered items. The legal entitlement after payment delay to cancellation of the contract and to compensation remains unimpeded.
3. In the case of cancellation of the contract, the customer is obliged to pay compensation of at least 1/24 of the price for every started month of use, unless hawo proves a higher damage or the buyer a lower damage.
4. For a purchase or delivery for trial or to view, the goods are supplied for trial or to view. Hawo sets an acceptance deadline, after which the goods are considered purchased. The delivery and the return of the goods supplied for trial or to view inside the acceptance deadline takes place in every case at the expense and risk of the buyer. Any costs for refurbishing the article are for the account of the buyer.
10. Retention of Property
1. Delivered goods remain the property of hawo until all entitlements to hawo from the buyer, irrespective of their legal basis, have been fulfilled. This applies also when payments have been made for specifically identified demands.
2. The buyer is entitled until revocation to divest the goods in the usual business practice in accordance with normal terms and conditions, under condition that the buyer has agreed retention of property with his partners; the right to divest the goods is not applicable if the buyer is in arrears. The buyer transfers the demands resultant from the divestment of the goods to hawo in advance.
3. If delivered objects, which are under retention of property are combined or mixed with goods that do not belong to hawo, hawo gains co-ownership of the total product. In the case that the buyer attains sole ownership through the combination, the buyer transfers already the co-ownership to hawo in accordance with the proportion of the value of the goods under retention of property and the value of the goods not owned by hawo at the time of the combination.
4. The buyer however remains entitled to collect the demands, which have already been transferred to hawo. hawo can recall this entitlement at any time. The buyer is not entitled to transfer the demands by the entitlement to collect the demands. For the case that the goods under retention of property are in a foreign country, the buyer is obliged to cooperate in all measures and declarations to obtain hawo securities of the same value.
5. hawo commits to release the securities of its choice, which it is entitled to, on demand of the buyer, when the value of the demands to be secured is exceeded by 20%.
6. The buyer is not entitled to pawn or transfer ownership as security of any goods, which are under retention of property.
7. hawo is to be immediately notified in the case of intervention of third parties or pawning or other disposal of the goods.
8. If the buyer behaves contrary to the contract, in particular if he is in arrears after a reasonable time limit, and after a reminder hawo is entitled to withdraw from the contract and retrieve the goods under retention of contract and the buyer is obliged to had these over. For this purpose, hawo is entitled to access the business premises of the buyer during their usual business hours. Hawo is entitled to take the goods under retention of contract and sell, auction or utilize in some other way. The resulting costs are for the account of the buyer.
11. Liability for material defects
1. The goods delivered by hawo are only intended for use for the purpose described in the product description for the delivered device type. Beyond that, hawo gives no warranty and in particular no implied warranty for the any other application or the character of the goods.
2. The buyer is only entitled to claim for deficiencies if there are significant deficiencies in the delivery. All defective delivered goods are to be repaired without cost or replaced at hawo’s choice, provided that the cause of the defect occurred before the point of the transfer of risk.
3. The period of limitation for claims for supplementary performance is 12 months from the legal beginning of the limitation period. The same applies for withdrawal or abatement. If the law prescribes longer periods for fraudulent concealment of a defect or non fulfilment of a function guarantee, then these apply. The legal regulations regarding limitation, suspension of expiration of prescription and restarting time periods remain unaffected.
4. Obvious deficiencies or other complaints regarding the delivered goods – also deviations in quantity – must be claimed immediately in writing to hawo at the latest 10 days from receipt of the goods. Non obvious deficiencies must also be claimed immediately in writing to hawo at the latest 10 days from identification of the fault. If deficiencies or other complaints are not claimed within the above mentioned time limits, then all warranty entitlements of the buyer against hawo are excluded.
5. If the buyer claims deficiencies with the delivery, the buyer is entitled to reserve payment to an amount in an appropriate relationship to the defect; this presumes that there can be no doubt about the correctness of the claim. The buyer may not reserve payments if his deficiency claim is time-barred. In case of unjustified deficiency claims, hawo can claim compensation for costs which have been incurred.
6. hawo must be granted opportunity of supplementary performance twice within a suitable time.
7. The buyer is entitled to cancellation or reduction of the contract if the second supplementary performance is not successful.
8. The buyer has no entitlement to compensation from hawo due to a product defect unless the defect was maliciously concealed, a property guarantee was not fulfilled, death, injury of illness was caused or there was a deliberate or negligent breach of duty from hawo or a neglect of significant contractual duties. A change in the burden of proof to the detriment of the buyer is not associated with this ruling. The buyer is not entitled to further or other defect claims, which exceed (11).
9. hawo is only liable to the extent of foreseeable and contract typical damages, however not more than the value or amount of the contract. The buyer has no right to consequential damages, consequential damages caused by defect or pure financial damages.
10. Replacement for consequential damages caused by defect, in particular damages for loss of earnings and lost profit will not be granted. The liability for defects does not relate to the natural wear and furthermore not to damage which occurs after the transfer of risk due to poor or inappropriate handling of the goods.
11. The warranty obligation expires if the machines are modified or through the installation of parts from another manufacturer and the cause of the deficiency is in connection with this change.
12. In the case of unsuccessful supplementary performance or non timely replacement, the buyer can only demand reduction of the payment after unsuccessfully setting a deadline.
13. In the last case, the level of the compensation for the damage is limited to the price of the delivered goods.
14. Further demands from the buyer, in particular a demand for damages which have not occurred on the delivered goods themselves are excluded.
12. Intangible property rights, title defects
1. hawo is only obliged within the Federal Republic of Germany to deliver free of intangible property rights of third parties (proprietary rights). Should a third party make a justified claim on the buyer due to infringement of proprietary rights through goods delivered by hawo and used in accordance with the contract, hawo is liable to the buyer within the limits defined in (11) No. 3 as follows:
1.1. hawo has the choice, at its own cost, for the relevant delivery to either obtain a right of use, make a change so that the proprietary rights are not infringed or to swap the goods. If this is not possible under proportional conditions, the buyer is entitled to the statutory rights.
1.2. The extent of the compensation is measured in accordance with (13).
1.3. hawo is only obliged in accordance with the rules mentioned above if the buyer informs hawo immediately in writing about the claim from a third party, does not acknowledge any infringement and all possible defence options and settlement negotiations remain open. Should the buyer cease further use of the goods due to damage minimisation or other important reasons, they are obliged to inform the third party that this cessation of use does not represent recognition of the infringement of proprietary rights
2. The buyer can make no claim, if and as far as he is responsible for the infringement of proprietary rights.
3. The buyer also has no claim, when and as far as an infringement of proprietary rights is caused by
3.1. Requirements of the buyer
3.2. An application, which cannot be anticipated by hawo
3.3. Change of the delivery by the Buyer
3.4. Use of the delivered goods together with goods not delivered by hawoukten
4. In the case of infringement of proprietary rights, the buyer has the rights covered in 1.1, the provisions of (11) No. 5, 6 and 9 also apply.
5. For other title defects, the provisions of (11) apply.
6. The buyer has no further or other rights against hawo or hawo’s vicarious agents with regard to title defects other than those listed in (12).
7. The buyer must release hawo from obligations of third parties in the cases 3.1 - 3.4.
8. hawo is responsible in accordance with (13).
13. Other compensation entitlements, limitation of time
1. All other compensation entitlements of the buyer are excluded.
2. Mandatory liability, e.g. in accordance with product liability laws or where gross negligence, death, injury of illness was caused or there was a deliberate or negligent breach of duty from hawo or a neglect of significant contractual duties are excluded. The compensation entitlement for the infringement of significant contractual liabilities is however limited to the contract typical and foreseeable damages, as long as there is no intent or gross negligence or death, injury of illness caused. A change in the burden of proof to the detriment of the buyer is not associated with this ruling.
3. Compensation entitlements and entitlements in connection with measures for limiting damage lapse in 12 months; in the case of compensation entitlements under the product liability laws the statutory time limitations apply.
14. Place of fulfilment, court of jurisdiction and applicable law
1. If declarations are to be given in writing, telefax and e-mail are included.
2. If not expressly agreed to the contrary, place of fulfilment is Mosbach, Baden; the place of business of hawo.
3. Exclusive jurisdiction for all disputes in connection with the contract is Mosbach. hawo is however entitled to take action at the main location of the buyer.
4. German law applies for all legal relations between the buyer and hawo, under exclusion of the UN agreements about contracts for the international sale of goods (CISG).