General Terms and Conditions of HA-CO Carbon GmbH
A) General Terms and Conditions of Delivery and Payment of HA‐CO Carbon GmbH
I. Scope
(1) The following terms and conditions of sale shall apply to all contracts concluded between HA-CO and the purchaser for the delivery of goods, insofar as the purchaser is an entrepreneur within the meaning of § 14 BGB (German Civil Code). They also apply to all future business relations, even if they are not expressly agreed again. Deviating conditions of the buyer, which HA-CO does not expressly recognize, are not binding for HA-CO, even if HA- CO does not expressly contradict them.
2. all agreements made between HA-CO and the purchaser in connection with the purchase contracts are set out in writing in the purchase contract, these terms and conditions and HA-CO's order confirmation.
II. Offer and conclusion of contract
1. the offers of HA-CO are not-binding and noncommittal, unless HA-CO designated these expressly in written form as obligatory.
2. dimensions, weights, illustrations, drawings and other documents that are part of the non-binding offers of HA-CO remain the property of HA-CO and are only approximate, unless they have been expressly designated by HA-CO as binding.
III. Terms of payment
1. if the agreed delivery time exceeds the period of four months from the conclusion of the contract or if the delivery is delayed beyond four months from the conclusion of the contract for reasons for which the purchaser alone is responsible or which fall solely within his sphere of risk, HA-CO is entitled to charge the price valid on the day of delivery.
If the price increase concerns more than 5% of the agreed purchase price, the buyer is entitled to withdraw from the contract.
This right of withdrawal shall lapse if the Buyer does not exercise it within a period of two weeks, starting from the date of notification of the new price.
2. The prices of HA-CO apply "ex works" unless otherwise agreed with the buyer. The packaging costs are not included in the price.
3. Unless otherwise agreed with the Buyer in writing, the net purchase price (without deduction) shall be due for payment immediately upon receipt of the invoice by the Buyer.
4. The buyer is in default even without a reminder from the seller if he does not pay the purchase price within 30 days after the due date and receipt of the invoice or an equivalent payment schedule. If the purchaser is in default of payment, HA-CO is entitled to charge interest at a rate of 8% above the respective prime rate from the date in question. The proof of a higher damage by HA-CO remains reserved.
5. the buyer is entitled to offset, even if notices of defects or counterclaims are asserted, only if the counterclaims have been legally established, recognized by HA-CO or are undisputed. The buyer is only authorized to exercise a right of retention if his counterclaim is based on the same purchase contract.
IV. Delivery and performance time
1. delivery dates or deadlines that have not been expressly agreed as binding are exclusively non-binding information.
2. If the seller culpably fails to meet an expressly agreed deadline or is in default for other reasons, the buyer must grant him a reasonable grace period - starting from the day of receipt of the written notice of default at HA-CO or in the case of the calendar determined deadline. After fruitless expiration of this grace period, the buyer is entitled to withdraw from the contract.
3. HA-CO shall be liable in accordance with the statutory provisions, subject to the following limitations, if the contract is a transaction for delivery by a fixed date or if, as a result of the delay in delivery for which HA-CO is responsible, the purchaser is entitled to invoke the cessation of its interest in the performance of the contract.
4. HA-CO shall be liable to the purchaser in the event of a delay in delivery in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of duty for which HA-CO is responsible. The HA-CO is a fault of its representatives or agents to be attributed. If the delay in delivery is not due to an intentional or grossly negligent breach of contract for which HA-CO is responsible, HA-CO's liability shall be limited to the foreseeable, typically occurring damage.
If the delay in delivery for which HA-CO is responsible is based on the culpable breach of a material contractual obligation, HA-CO shall be liable in accordance with the statutory provisions, whereby the liability shall be limited to the foreseeable, typically occurring damage.
6. the further legal claims and rights of the buyer because of a delay in delivery of HA-CO remain unaffected.
7. HA-CO is entitled to partial deliveries and partial services at any time, as far as this is reasonable for the buyer.
V. Transfer of Risk ‐ Shipping/Packaging
1. loading and shipping are uninsured at the risk of the buyer. HA-CO will endeavor to take into account the wishes and interests of the purchaser with regard to the type of shipment and shipping route; any additional costs incurred as a result - even in the case of agreed freight-free delivery - shall be borne by the purchaser.
2. if the shipment is delayed at the request of or through the fault of the purchaser, HA-CO shall store the goods at the expense and risk of the purchaser. In this case, the notification of readiness for shipment is equivalent to the shipment.
VI. Warranty / Statute of Limitations / Warranty Exclusion
1. if the purchase is a commercial transaction for both parts, the buyer has to examine the received goods immediately after receipt, as far as this is feasible after proper business receipt, and, if a defect appears, to notify HA-CO immediately.
2. if the purchaser fails to give such notice, the goods shall be deemed to have been approved, unless the defect was not recognizable during the inspection. Otherwise, §§ 377 ff. HGB SHALL APPLY.
3. the claims are limited at the choice of HA-CO to removal of the defect or delivery of a defect-free item (supplementary performance). If the supplementary performance fails, the purchaser has the right to reduce the purchase price or to withdraw from the contract.
4. Any further claims of the Buyer, in particular for consequential damages, shall be excluded as a matter of principle. This does not apply in case of intent, gross negligence or breach of fundamental contractual obligations of HA-CO and in case of injury to life, limb or health. The right of the buyer to withdraw from the contract remains unaffected.
5. For new goods, the warranty period is one year from delivery of the goods.
6. For used goods, the statutory warranty is excluded, unless HA-CO fraudulently conceals an existing defect or has assumed a guarantee for the condition of the item.
VII. Retention of title
1. HA-CO retains ownership of the goods (reserved goods) until receipt of all payments under the purchase contract.
2. the buyer has to inform HA-CO immediately in writing of all accesses of third parties, in particular of execution measures as well as other impairments of his property.
The purchaser shall compensate HA-CO for all damages and costs arising from a breach of this obligation and from necessary intervention measures against access by third parties.
3. If the purchaser fails to meet his payment obligation despite a reminder from HA-CO, HA-CO may demand the surrender of the goods subject to retention of title that are still its property without setting a deadline in advance. The purchaser shall bear the transport costs incurred in this case. The seizure of the goods subject to retention of title by HA-CO shall always constitute a withdrawal from the contract. HA-CO is authorized after retention of the reservation commodity to their utilization. The realization proceeds are to be credited against liabilities - less reasonable realization costs.
VIII. Industrial property rights and copyrights of third parties
Software programs shall be provided in accordance with the license terms of the respective licensor. The scope of services results from the licensors' license conditions as well as the service descriptions and other user instructions that are printed in the corresponding user manuals or are available as a file.
This also applies in particular to restrictions on use.
IX. Liability
Insofar as a liability of HA-CO arises above, the following shall apply: HA-CO and its vicarious agents shall be liable for claims for damages of the purchaser arising from positive violation of claims, from the violation of duties during contract negotiations and from tort as follows:
a) Liability for personal injury is governed by the statutory provisions
b) The liability for property damage is limited to EUR (e.g. 250.000,-) per damage event and to EUR......(e.g. 500.000,-) in total.
c) Liability for financial loss is excluded.
The limitation of liability under b) and the exclusion of liability under c) shall not apply insofar as liability for damage to privately used items is mandatory under the Product Liability Act or in cases of intent or gross negligence or the breach of material contractual obligations or the absence of warranted characteristics for damage typically foreseeable under the contract.
X. Final provision, applicable law, agreement on place of jurisdiction
1. The relations between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany. The application of the Uniform Law on the International Sale of Goods and the Law on the Formation of Contracts for the International Sale of Goods is excluded.
2. If the purchaser is a merchant, the exclusive place of jurisdiction - also for check and bill of exchange proceedings - is the court responsible for the headquarters of HA-CO. The same place of jurisdiction shall apply if the purchaser has no general place of jurisdiction in the Federal Republic of Germany at the time the legal proceedings are initiated.
3. the buyer is not entitled to assign claims arising from the purchase contract without the consent of HA-CO.
4. Should any provision of these General Terms and Conditions of Delivery and Payment be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions of these General Terms and Conditions of Delivery and Payment.
B) General terms and conditions of HA‐CO Carbon GmbH for service/works contract services
I. Scope
1. The following terms and conditions shall apply to all contracts concluded between HA-CO and the customer for the creation of a work or the provision of services, insofar as the customer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). They shall also apply to all future business relations, even if they are not expressly agreed again. Deviating conditions of the purchaser, which the contractor does not expressly recognize, are not binding for HA-CO, even if it does not expressly object to them.
2. all agreements made between HA-CO and the customer in connection with the orders are set out in writing in the contract, these terms and conditions and HA-CO's order confirmation.
II. delivery and performance
1. The delivery or performance date or the delivery or performance period - in the following simplified always referred to as "delivery date" - is agreed according to the expected performance capacity of HA-CO and is non-binding and subject to timely self-supply and unforeseen circumstances and obstacles, regardless of whether they occur HA-CO or the manufacturer, in particular force majeure, government measures, non-granting of official permits, labor disputes of any kind, sabotage, shortage of raw materials, delayed material deliveries through no fault of HA-CO. Such events extend the delivery date accordingly, even if they occur during a delay that has already occurred. Any grace period set by the Purchaser in this case shall also be extended by the duration of the unforeseen event. If such events lead to a delay in performance of more than two months, the Purchaser may - irrespective of other rights of withdrawal - withdraw from the contract.
2. The purchaser may request HA-CO in writing to deliver or perform six weeks after a non-binding delivery date has been exceeded. Upon receipt of the request, HA-CO shall be in default, unless the exceeding of the delivery date is (also) the responsibility of the customer. In the event that the purchaser is entitled to compensation for damages caused by the delay, this shall be limited to a maximum of 5% of the agreed remuneration in the event of slight negligence on the part of HA-CO. If, in addition to asserting a claim for damages for delay, the customer withdraws from the contract or asserts a claim for damages in lieu of performance, the customer must set HA-CO a reasonable deadline for delivery/performance after the aforementioned period of six weeks has expired. However, HA-CO shall not be liable if the damage would have occurred even if the delivery date had been observed. If a binding delivery date is exceeded, a request by the purchaser is not required in order to put HA-CO in default, insofar as the legal requirements for default are otherwise met. The above provisions shall apply to the rights of the purchaser.
3. HA-CO reserves the right to withdraw from the contract if the delay in delivery/service caused by one of the above- mentioned events (or by circumstances which - at least also - lie within the purchaser's sphere of responsibility) lasts longer than six weeks and HA-CO is not responsible for this.
4. Drawings, illustrations, dimensions, weights or other performance data are only binding if this is expressly agreed in writing. Reasonable technical and design deviations from information in brochures, catalogs and written documents as well as model, design and material changes in the course of technical progress and further development are reserved, without any rights against HA-CO can be derived from this.
III. acceptance; due date
The Purchaser shall be obliged to accept the duly produced Work. Acceptance shall be effected by receipt of the work without complaint. Acceptance shall be deemed to have taken place if the Purchaser does not give notice of defect or breach of contract within 8 days after delivery. The complaint must be made in writing, the deadline is met by posting, fax or e-mail. The remuneration for the work shall be due upon expiry of the aforementioned period.
IV. Warranty
1. HA-CO shall provide warranty for defects of the work at its discretion by repair or new production if the customer demands subsequent performance.
2. if HA-CO seriously and finally refuses performance or refuses to remedy the defect and subsequent performance due to disproportionate costs, or if subsequent performance fails or is unreasonable for the contractor, the customer may, at its option, demand a reduction in price or withdraw from the contract.
The purchaser shall not be entitled to withdraw from the contract if the breach of contract is only minor or if HA-CO is not responsible for the breach of duty resulting from a defect.
4. the customer's rights in respect of defects which do not relate to a building or a work the performance of which consists of planning or supervisory services shall become time-barred one year after acceptance, unless HA-CO can be accused of gross negligence, and in the case of bodily injury or damage to health attributable to HA-CO until the loss of the customer's life.
V. Limitation of liability
Insofar as a liability of HA-CO arises above, the following shall apply: HA-CO and its vicarious agents shall be liable for claims for damages of the customer arising from positive violation of claims, from the violation of duties during contract negotiations and from tort as follows:
a) Liability for personal injury shall be governed by the statutory provisions.
b) The liability for property damage is limited to EUR. (e.g. 250.000,-) per damage event and to EUR......(e.g. 5000.000,-) in total.
c) Liability for financial loss is excluded.
The limitation of liability under d) and the exclusion of liability under e) shall not apply insofar as liability for damage to privately used items is mandatory under the Product Liability Act or in cases of intent or gross negligence or the breach of material contractual obligations or the absence of warranted characteristics for damage typically foreseeable under the contract.
VI. Final Provision, Applicable Law, Agreement on Jurisdiction
1. The relations between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany.
2. If the customer is a merchant, the exclusive place of jurisdiction - also for check and bill of exchange proceedings - shall be the court responsible for HA-CO's headquarters. The same place of jurisdiction shall apply if the customer has no general place of jurisdiction in the Federal Republic of Germany at the time the legal proceedings are initiated.
3. the customer is not entitled to assign claims arising from the contract without the consent of HA-CO.
4. Should any provision of these General Terms and Conditions for Services / Contractual Work be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions of these General Terms and Conditions for Services / Contractual Work.
Version from 09.07.2019