General Terms and Conditions of Sale and Delivery

 

 

I. General
1. The following terms and conditions shall only apply to persons or
legal entities or to partnerships with legal personality when acting in
their commercial or self-employed capacity (entrepreneurs) at the time
the contract is concluded.
2. Conflicting, deviating or supplementary terms and conditions laid
down by the purchaser shall not be recognized unless previously and
expressly approved by us in writing. Our terms and conditions shall also
apply in the case of us supplying the purchaser without reservation
after having been informed of conflicting or deviating terms and
conditions on the part of the purchaser.
3. Our terms and conditions shall also apply to any and all future
contracts with the purchaser. In each case the version valid at the
time of the contract conclusion is applicable. Deviating individual
agreements shall take precedence over these terms and conditions.

II. Quotes and contract conclusion
1. Contracts are formed through the offer to enter into a contract/order
from the purchaser and our written declaration of acceptance/order
confirmation.
2. Our quotes are non-binding in all cases. We shall be entitled to
accept the offer constituted by the purchase order within two weeks
either by sending an order confirmation or by sending the ordered
products within the same period.
3. The contract shall be concluded with the proviso that, if we ourselves
are not correctly or properly supplied, we are not obliged to fulfil the
contract, or may only partially fulfil the same. This shall only apply if we
are not responsible for the failure to deliver. We will notify the purchaser
immediately if the goods are not available or only partially available and
return all advance payments of the purchaser immediately.
4. The documentation belonging to our quotes, such as images and
measurement, weight and performance specifications, are only
approximate and are non-binding, unless they have been designated as
binding. We reserve the rights of ownership and the copyrights to cost
estimates, designs and other documentation; they may not be made
accessible to third parties without our express agreement.
5. The aforementioned quote documentation must be returned to us
without delay at our request or in the event that the order is not placed.

III. Prices
1. Prices are net cash, ex works, and do not include packaging,
carriage or assembly, unless otherwise agreed in writing.
2. The prices stated are based on the current cost factors.
Changes to the bases for prices and costs caused by changes in laws
may be passed on by us through adjustments to the contract prices.
Furthermore we are entitled to make price adjustments where a delivery
deadline of more than 4 months is agreed and the costs for salaries,
materials, assembly or our own self-supply increase demonstrably by
more than 10% and this cannot be compensated by a decrease in other
price factors.

IV. Payments
1. The purchase price must be paid in accordance with the contractual
agreements with no deductions.
2. Bills of exchange and cheques are not accepted.
3. In the event that the purchaser defaults (Section 288 sub-section 2
of the German Civil Code - BGB), we shall be entitled to charge interest
of 8% above the basic rate of interest from the default date. We shall
also be entitled to charge higher rates of interest where we provide
evidence that we have utilized credit with a higher rate of interest for the
minimum amount of the claim due.
4. In the event that the purchaser does not provide performance
despite being in default and a grace period being set, if the purchaser
discontinues payments or of there is a significant deterioration in their
financial situation, then we may refuse the performance for which we
are responsible until the purchaser's counter-performance has been
provided in full or until suitable collateral is provided for this.

V. Delivery period
1. Delivery times and periods are only binding where they are agreed in
writing in the contract. We will not be in default to the extent that delays
in providing the delivery are based on ongoing interruptions to
operations through force majeure, unforeseeable and unavoidable
events, like unforeseeable and unavoidable official interventions,
difficulties with power supplies, strikes/lockout or the shortage of raw
materials. In the event that an obstruction of this type lasts longer than
3 months, then following the setting of a grace period, the purchaser
shall be entitled to withdraw from the contract in relation to the part of
the order that has not yet been fulfilled.
2. A delivery period shall start with the date that the order confirmation
is sent and will have been met if the goods have left our
factory/warehouse by the end of the delivery period or notification has
been provided that the goods are ready for shipment where it is
possible to dispatch them.
3. Partial deliveries may be made insofar this is tolerable to the
purchaser.

VI. Retention of title
1. Our delivered goods shall remain our property until all of our already
existing claims have been paid, irrespective of their legal basis,
including where the purchase price has been paid for claims that have
been specifically designated. The retention of title shall serve to secure
our claim for the balance where a running account has been opened.
2. The purchaser's claims from any resale of the goods subject to the
retention of title are assigned to us by virtue of this agreement for the
purposes of securing all of our claims from the business relationship.
3. Regardless of the assignment, the purchaser shall nevertheless be
entitled to collect sums due from the reselling or processing of the
goods. Our entitlement to collect sums due shall not be affected by the
right of the purchaser to do the same. However, we shall not collect
sums due provided that the purchaser continues to settle his
obligations to pay. At our request, the purchaser shall be obliged to
inform the third-party of the assignment and to present us the
necessary documents to assert our rights against said third-party.
4. The purchaser must notify us without delay of any attachment or
other actual or legal impairment of our goods or our rights. The
purchaser will be responsible for any costs or damages incurred from a
breach of this obligation.
5. We hereby commit to release the appertaining securities in
accordance with the above provisions at our discretion and to the
extent that such value exceeds the secured debts by more than 20%;
however, this presupposes that the release of securities for such goods
or their replacement value occurs once they themselves have been paid
for in full.

VII. Risk
1. If the goods are sent to the purchaser at the latter's request then the
risk of accidental destruction or of accidental deterioration of the goods
shall pass to the purchaser with delivery to the carrier, irrespective of
whether the shipment takes place from the place of fulfilment and/or
irrespective of the party which is responsible for the freight costs.
2. If the goods are ready for shipment and if the shipment or
acceptance are delayed for reasons for which we are not responsible,
then risk shall pass to the purchaser with receipt of the notification that
the goods are ready for shipment.
3. If assembly of the goods has been agreed, the risk shall pass at the
date of acceptance by purchaser.
4. In all other respects the passing of risk shall be based on the
statutory regulations. If delivery or acceptance is postponed due
reasons lying in the responsibility of purchaser, the risk passes when
delivery or acceptance is offered by us.
General Terms and Conditions of Sale and Delivery
of Hafner-Pneumatik Krämer KG
Version: 2014.06
Page 2 of 2

VIII. Warranty
Our warranty is in accordance with the contractual agreements and the
statutory regulations subject to the following:
1. Our goods and services are provided and any equipment is created
in such a way that they have the agreed features and meet the
recognized technical standards and regulations.
2. The purchaser is under an obligation to examine the goods
delivered/service provided and to notify us in writing of any obvious
defects within 2 weeks since delivery.
3. Our warranty especially but not limited to is excluded for normal wear
and tear, if defects were caused by wrong information given by
purchaser, improper use, corrosion, maintenance or storage.
4. In the event that a defect should become apparent within the
warranty period which annuls or reduces the value or the usability of the
goods delivered/service provided, we will repair or replace the goods or
services at our discretion for the purposes of meeting any warranty
claims. We shall be entitled to at least three opportunities for
supplementary performance.
5. Provided that we meet our obligations related to supplementary
performance then the purchaser is not entitled to request any reduction
in price, withdrawal from the contract or damages.
The purchaser may only assert these rights if the attempts at
supplementary performance have failed or if we have refused to
provide supplementary performance on account of the
disproportionate expenditure involved.
5. Claims relating to defects in respect of the delivered goods shall
become statute-barred within twelve months as from the passing of
risk. The statutory limitation periods shall apply in cases where we can
be charged with grossly negligent or intentional behaviour.
The limitation period in the cases of delivery regress according to §§
478, 479 German Civil Code remains unaffected.

IX. Liability
1. In accordance with the statutory provisions, we shall bear unlimited
liability for damage to life, limb and health based on a negligent or
intentional breach of duty on part of us, on the part of our legal
representatives or our vicarious agents, and for damage subject to
liability pursuant to the German Product Liability Act
(‘Produkthaftungsgesetz’) and/ or mandatory foreign product liability
laws in countries the goods were agreed to be used in.
2. We shall be liable to the extent provided for by law for damage which
is not covered by Clause 1. and which is based on an intentional or
grossly negligent breach of duty or malice on our part as well as that of
our legal representatives or our vicarious agents. In that event,
however, our liability shall be limited to the foreseeable typically arising
damage unless we, our legal representatives or vicarious agents have
acted intentionally.
3. To the extent that we have issued an explicit guarantee on quality
and/or durability with respect to the goods or parts thereof, we shall
also be liable in the context of that guarantee. However, we shall only
be liable for damage based on the absence of the guaranteed quality or
durability, but which does not directly injure the goods themselves, if
the risk of such damage is clearly covered by the quality and durability
warranty.
4. We shall also be liable for damage caused by ordinary negligence, if
such negligence relates to the breach of contractual obligations the
observance of which is of particular significance to the achievement of
the contract purpose (essential obligations). However, we shall only be
liable if the damage is typically associated with the contract, and is
predictable.
5. All other forms of liability shall be excluded, regardless of the legal
nature of the claim asserted.
6. All contractual claims for damages shall become statute-barred
within twelve months as from the passing of risk. The statutory limitation
periods shall apply in cases where we can be charged with malice or
intent or damages to life, limb or health. The limitation period in the
cases of delivery regress according to §§ 478, 479 German Civil Code
remains unaffected.

X. Choice of law, place of fulfilment and jurisdiction
1. The agreement shall be governed by German Law, excluding the
UNConvention on the International Sale of Goods (CISG) and excluding
the provisions of German law on conflicts of laws that might come to the
application of foreign law.
2. Provided that nothing to the contrary has been stated in the order
confirmation our place of business shall be the place of fulfilment.
3. To the extent that the purchaser is an entrepreneur for the purposes
of the German Commercial Code (HGB), a legal entity under public law
or a special fund under public law then Stuttgart, Germany is agreed as
the exclusive place of jurisdiction for any disputes arising directly or
indirectly from this contractual relationship. The same shall apply in the
event that the purchaser has no general place of jurisdiction in
Germany or his permanent or habitual place of residence is unknown at
the time the action is brought. We shall, however, also be entitled to
take action against the purchaser at his place of residence and/or
registered place of business.
4. In the event that one of the provisions in these General Terms and
Conditions or a provision which is part of other agreements is or
becomes ineffective, this will not affect the validity of any of the other
provisions or agreements.