(1) Scope: These terms and conditions shall apply to our offers and order confirmations and to all services to be provided by us. The customer within the meaning of these terms and conditions is also the client. Supplementary assembly conditions shall apply to assignments involving the secondment of our assembly personnel, and supplementary transport conditions and codes of conduct shall apply to dispatch.
(2) Exclusivity: These terms and conditions shall apply exclusively. Conflicting or deviating terms and conditions of the customer shall not become part of the contract; they cannot supersede our terms and conditions. This shall also apply if we do not object to such terms and conditions of the Purchaser despite knowledge thereof and perform our services without reservation, unless an individual written agreement is involved which deviates from these terms and conditions. With foreign purchasers, the application of German law is agreed.
(3) Future transactions; foreign transactions: Our terms and conditions shall apply to all future transactions with the Purchaser. With foreign purchasers, the application of German law is comprehensively agreed to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(4) Non-transferability, continued validity: Rights arising from the contractual relationship may only be transferred to third parties with our prior written consent; we do not have to accept unauthorized transfers against us. The Purchaser warrants to us that these Terms and Conditions may be given unrestricted effect in legal transactions with its own contractual partners and other third parties.
§ 2 Offer and Placing of Order
(1) Meaning, written form: Offers are non-binding. The nature and scope of our obligation to perform shall be determined exclusively by these Terms and Conditions and our written order confirmation, which conclusively regulates the nature and scope of our obligations; services not included therein shall be invoiced separately. Agreements on deviations from the terms and conditions, from the offer or order confirmation as well as collateral agreements shall only be effective with our written confirmation.
(2) Irrevocability: Orders once placed are irrevocable. In the event of cancellation at the request of or due to the fault of the customer, we shall be entitled, without further proof, to demand lump-sum compensation from the customer amounting to 25% of the value of our invoice. We shall be entitled to prove that the damage was higher, and the purchaser shall be entitled to prove that the damage was lower.
(3) Technical specifications, reservation of right of modification: Technical data and specifications, sketches, illustrations and descriptions are only approximate; we reserve the right to deviations. Under- and overruns of numerical data by approx. 15% are considered usual and are to be tolerated by the purchaser as being in accordance with the contract. Even without prior notice, we are entitled to change the design, equipment and type of execution contrary to the order confirmation if this appears to us to be technically or economically necessary and expedient at our discretion. We shall endeavor to notify the customer of any major changes prior to execution. Deviations and their effects on price and duration of performance shall be deemed to have been approved by the customer if he does not submit a written objection to us within 14 days from the date of notification of the change. In the event of timely objection, the content of the order confirmation shall remain unchanged; however, we shall then be granted a reasonable extension of the performance period.
(4) Documents, samples and specimens: We reserve all copyrights and property rights to calculations, plans, construction and all other documents which the customer receives from us with the offer or otherwise within the framework of the business relationship and which represent our own personal, intellectual creations. The documents are only intended for the personal use of the customer and may not be made accessible to third parties. Samples and specimen pieces as well as trial work only provide a certain indication of the quality of our respective performance; we reserve the right to make changes in accordance with paragraph (3). The samples and specimen pieces remain our property. In the event of infringement of our copyrights, we shall be entitled to claims for damages at least in the amount of a planning fee, taking into account saved expenses; we reserve the right to assert further claims for damages upon proof.
§ 3 Prices
(1) Basic information: Prices are net prices plus value added tax at the respective statutory rate, ex works, duty unpaid, without freight and insurance and without hardship surcharges. Packaging will be charged additionally at cost and will not be taken back.
(2) Additional services: Services which are additionally incurred for reasons for which we are not responsible shall be invoiced separately on the basis of our current in-house tariff. We shall be entitled (but not obliged) to provide such services even without express agreement and without notice if they appear to us to be necessary for the performance of the contract.
(3) Period of validity, daily price: Our prices shall always apply only to the respective order. We shall be entitled, without notice, to adjust our prices appropriately to any increase in our costs in the meantime (daily price), even after confirmation of the order for deliveries and services four months after conclusion of the contract.
§ 4 Terms of payment
(1) Mode of payment, due date, discount: Unless otherwise agreed, payments shall be made in cash or by bank transfer free Hansa Saterland payment office within 10 days of the invoice date with a 2% discount or within 30 days without deduction. Discount is granted on the final net invoice value (value of goods) after deduction of all ancillary items and assumes that the customer has fulfilled all our claims arising from the business relationship. If we base the calculation of the payment term on more than one date of issue, the date which entitles us to the earliest possible assertion of our claim for payment shall apply. Representatives shall not be authorized to collect payments; anything to the contrary shall only apply in individual cases in the event of an express written power of attorney to receive payments.
(2) Offsetting and retention: The customer shall only be entitled to offsetting rights if its counterclaims have been legally established, are undisputed or have been acknowledged by us. The same shall apply to the exercise of a right of retention.
(3) Means of payment: Checks, bills of exchange and other means of payment shall only be accepted by agreement and only on account of performance subject to receipt of funds. The costs incurred in accepting the means of payment shall be borne by the customer. Payment by bill of exchange excludes cash discount.
(4) Timeliness of payment, default: A payment shall be deemed to have been made on the day the value is credited to our account if and to the extent that it proves to be final. If the purchaser exceeds a payment deadline contained in these terms and conditions or an agreed calendar payment deadline, he shall be in default without a reminder.
(5) Consequences of default: Upon the occurrence of default, all our claims arising from the business relationship shall become due immediately, even if the payment periods applicable thereto have not yet been exceeded, and any claims to discounts, bonuses, rebates, etc. shall expire at the same time. In the case of partial delivery, we may withhold our remaining performance in the event of default until all our claims have been settled in full or definitively refuse performance in whole or in part. As of the occurrence of default, we shall be entitled to interest on arrears in the amount of at least 8% above the respective Bundesbank discount rate without proof; we reserve the right to assert further proven damages caused by default.
(6) Deficiencies in the Customer's creditworthiness: If it becomes apparent after conclusion of the contract that the Customer's circumstances do not (or no longer) justify the granting of credit or the granting of payment terms, or if judicial or extrajudicial insolvency proceedings relating to the Customer's assets are pending, the Customer shall be subject to the consequences of default set out in paragraph (5) above. In addition, we shall be entitled to demand immediate advance payment or the provision of sufficient securities in respect of all our claims or to refuse performance until payment has been made in full or until the securities have been provided or to withdraw from the contract or to claim damages for non-performance, without providing evidence, amounting to at least a flat rate of 25% of the total invoice amount. We shall be entitled to prove that the damage was higher, and the customer shall be entitled to prove that the damage was lower.
§ 5 Place of Performance, Shipment, Transfer of Risk
(1) Place of performance is Saterland-Strücklingen.
(2) Shipment at the risk of the Purchaser: Shipment shall always be at the expense and at the risk of the Purchaser within the meaning of § 447 of the German Civil Code (BGB), even if carriage paid delivery has been agreed. Insurances shall only be taken out at the request and expense of the Purchaser.
(3) Mode of shipment: For all modes of shipment, the Purchaser shall observe the rules customary in the industry for the respective mode of transport. Truck deliveries shall end on paved roads before the construction site boundary. Deliveries "free domicile" or "free construction site" are normal freights, which are transported as additional or partial freight without assumption of a guarantee for delivery dates. If express freight or direct forwarding is desired, we will offer to provide delivery dates upon request; all agreements in this regard must be in writing to be effective.
(4) Transfer of risk: The risk shall pass to the Purchaser as soon as the goods have been handed over to the forwarder or other persons designated for shipment or have been made available to the Purchaser by notification of readiness for shipment or collection, but no later than when the goods leave our works or one of our warehouses. If dispatch or collection is delayed for reasons for which we are not responsible, the transfer of risk shall take place correspondingly earlier. In the case of work performances, the risk shall pass to the Purchaser upon acceptance, and in the case of a delay in acceptance for which we are not responsible, upon notification of readiness for handover (cf. § 7 para.(2)).
(5) Transport defects and damage: All discrepancies relating to the shipment shall be notified to us in writing immediately upon receipt of the goods in accordance with our transport conditions, which are enclosed with each delivery. A special inspection or acceptance requires an explicit agreement for both parties. Any costs incurred shall be borne by the Purchaser.
(6) Packaging, unloading: Any packaging required shall be charged at cost price and shall not be taken back; its proper disposal shall be the responsibility of the Purchaser. The Purchaser shall be responsible for unloading the entire delivery and transporting it to the place of use at its own risk and expense. Unloading must be carried out without delay; any delays shall entitle us to make a separate charge.
§ 6 Delivery, delivery and performance times
(1) Delivery and performance in parts: We shall be entitled, even without prior agreement, to deliver or perform and invoice in partial quantities at our discretion, provided there is an objective reason for doing so and expediency so requires.
(2) Binding nature of performance dates: Delivery and performance dates stated by us are only approximate and non-binding, unless we have expressly guaranteed specific dates in writing.
(3) Preconditions for meeting deadlines: Compliance with any delivery obligations shall be subject to the timely and proper fulfillment of the Purchaser's contractual obligations, in particular its payment obligations.
(4) Force majeure and other obstacles: Force majeure and unforeseen events shall entitle us to withdraw from the contract or to extend the execution period. This shall also apply if the execution of the contract subsequently proves to be objectively or subjectively impossible; we shall notify the Purchaser immediately upon realization thereof. He shall only be entitled to claims due to non-performance if we are intentionally responsible for the impossibility. Cases of force majeure (such as war, natural disasters, etc.) shall be deemed equivalent to, among others, strikes, lockouts, transport obstacles of any kind, official measures, operational disruptions, delivery problems, etc. If the circumstances delaying or precluding performance are the fault of one of our upstream suppliers/subcontractors, we shall assign all claims against the contracting party concerned to the Purchaser; the latter shall accept the assignment and thereby waive all claims against us in this respect. We shall not be responsible for force majeure and equivalent circumstances even if they occur during an already existing delay.
§ 7 Handover, Acceptance
1) Obligation to inspect and give notice of defects: The customer shall immediately and competently inspect goods delivered by us and services rendered by us for completeness and recognizable or obvious defects. Any deviations from the contractually owed quality are to be reported to us in writing at the latest within 7 days after the transfer of risk, if necessary in compliance with our transport conditions. Hidden defects that are not recognizable despite proper and timely inspection must be reported in writing immediately after they become apparent. The letter of complaint must contain a concrete statement of the points of complaint. In the event of failure to comply with the obligation to inspect and give notice of defects, our performance shall be deemed to have been approved by the Purchaser in accordance with the contract.
(2) Acceptance obligation, acceleration: The Purchaser shall be obliged to accept the performance as soon as he has been notified that the goods are ready for delivery or that the work has been completed. Notwithstanding any other agreements, the Purchaser shall accelerate the acceptance as far as possible; if payment is agreed only upon acceptance by the Purchaser's customer or client, the Purchaser shall immediately arrange for a partial acceptance of our services by its customer/client at its own expense. In the event of a breach of these obligations to cooperate, acceptance shall be deemed to have been completed by the customer at the latest 6 weeks after handover to the customer or notification of readiness for handover. Even in the case of agreed acceptance tests, acceptance shall be carried out without delay. If the Purchaser does not carry out the acceptance within 14 days of notification of readiness for handover, it shall be deemed to have been carried out unconditionally, provided that the Purchaser has been advised of the fact that acceptance is not mandatory. Experts to be named by us may participate in the acceptance tests, the results of which are to be recorded in a protocol.
(3) Refusal of acceptance, returns: Minor defects or shortfalls within the usual commercial limits shall not entitle the Buyer to refuse acceptance. Otherwise, the customer shall bear all costs and consequences arising therefrom. We shall accept returns only after written approval, otherwise we shall be entitled to refuse acceptance and return the goods at the risk and expense of the customer. The costs incurred by us in handling and processing the return shall be borne by the customer.
(4) Consequences of a delay in acceptance: If the Purchaser is in default of acceptance of a delivery of goods, we shall be entitled, after warning and setting a deadline, to sell the goods on the open market at any price we deem acceptable for the account of the Purchaser, taking into account our claims, without being bound by § 373 of the German Commercial Code (HGB); our claims for compensation for any further loss of profit and for reimbursement of the costs of the sale shall remain unaffected.
(5) Effects of acceptance: Upon acceptance, our liability for identifiable defects shall cease unless the Purchaser has reserved the right to assert a specific defect in writing. This shall also apply in the case of tacit acceptance and also if successor contractors still attach to our services or parts thereof.
§ 8 Retention of title
(1) Principles, duration of reservation: All items delivered by us, materials, equipment and tools installed or provided by us in the course of work or services shall remain our property (goods subject to reservation of title/secured goods) until full payment of the price agreed for the respective order and of all other claims arising from the business relationship with the customer and still to arise in the future. As long as we are still entitled to claims against the purchaser, he may neither pledge nor assign the reserved goods as security in any other way. He shall only be entitled to dispose of the goods subject to retention of title and of claims and rights which he has acquired and will acquire through the utilization of our performance or which otherwise take the place of the goods subject to retention of title in accordance with these conditions.
(2) Assignment: The customer hereby assigns to us all claims in the amount of the final value of his invoices (including value added tax) to which he is entitled or will be entitled in the future against his customers or other third parties from the sale, processing, installation or other utilization of the goods subject to retention of title, even if the goods subject to retention of title were/will be resold only after processing. We accept the assignment and thus become the creditor of these claims and all associated rights without any further declaration being required. Should the customer receive checks or other means of payment on the occasion of legal acts which directly or indirectly concern the reserved goods, it is agreed that we hereby become the owner of the checks, etc.; these shall be deemed to have been assigned to us and shall be held in safekeeping for us by the customer until they are surrendered to us. The customer shall always assign to us the most valuable part of the claims acquired by him together with all ancillary rights. This shall also include the rights accruing to him against third parties as a result of the connection of the goods subject to retention of title with real property, including the right to demand registration of a security mortgage in accordance with § 648 of the German Civil Code (BGB).
(3) Duty of care and insurance: The Customer shall handle the reserved goods with care and mark them as our property. For the duration of the retention of title, he shall insure them at his own expense against fire and water damage as well as against theft sufficiently at replacement value. We shall be entitled to information in this respect; the insurance policy and documents shall be handed over to us on request. The retention of title provision of these terms and conditions shall be included in the insurance contract. The customer shall assign to us any compensation payments from the insurance.
(4) Processing and transformation: The customer shall take custody of the goods subject to retention of title on our behalf with the diligence of a prudent businessman. He shall carry out any processing, combination, mixing or other transformation of the reserved goods on our behalf. We shall become the owner of the resulting new item, insofar as this is legally possible, without the need for any further declarations. The newly created item shall be deemed to be goods subject to retention of title. If the original reserved goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of our item to the other items at the time of processing, as far as legally possible. The same shall apply in the event of mixing, but with the proviso that our item shall be regarded as the main item. Acquisition of ownership by the purchaser of the new goods subject to retention of title is excluded, irrespective of the way in which they have been processed or transformed. Should legal barriers prevent us from establishing sole or proportional co-ownership of the new item, the customer shall do everything in its power to enable us to acquire ownership. In the event of loss of title due to combination, mixing and processing within the meaning of Sections 946 to 950 of the German Civil Code (BGB), the Purchaser shall be liable pursuant to Section 951 of the German Civil Code (BGB).
(5) Payments by third parties to the Purchaser: Partial payments received by the Purchaser on claims assigned under these provisions may not be asserted to our disadvantage.
(6) Access by third parties to the collateral: The customer shall notify us immediately of any access by third parties to all types of collateral and to the claims assigned to us, submitting all necessary documents. Otherwise he shall be liable to us for the loss. Any costs incurred by us as a result of interventions shall be borne by the customer.
(7) Exercise of the reservation of title: In the event of conduct by the Purchaser in breach of the contract, in particular in the event of default in payment, or in the cases of § 4 para. (6) (deficiencies in creditworthiness), we shall be entitled, but not obliged, to take back the goods subject to reservation of title after prior warning and setting of a deadline. The repossession does not constitute a withdrawal from the contract, unless we have expressly declared this in writing. We shall be entitled to freely dispose of the goods subject to retention of title that have been repossessed and to satisfy our claims from the proceeds of such disposal, taking into account any outstanding claims.
(8) Collection of the assigned claims: We authorize the customer, subject to revocation at any time, to sell or process the goods subject to retention of title in the ordinary course of business and to collect the claims arising and still arising from the realization itself. Upon request, the customer shall provide us at any time with such comprehensive information about the fate of the goods subject to retention of title and the details of their realization that we are enabled to enforce the rights and claims assigned to us against the respective third parties without further ado. He shall submit to us all contracts concluded by him with regard to the reserved goods and the relevant documents. If the customer is in compliance with the contract, we shall not exercise the right of withdrawal. However, if the conditions for exercising the right of retention of title (para. 7) are met, such as default in payment or weakness in payment on the part of the customer, we may disclose the assignment on his behalf and collect the claims assigned to us ourselves.
(9) Release of securities: If the value of the securities granted to us exceeds our respective claims by more than 20%, we shall, at the request of the Purchaser, release corresponding securities to that extent at our discretion; the choice of the securities to be released shall be ours.
§ 9 Warranty
(1) General: Warranty rights of the purchaser presuppose that he has properly fulfilled his obligation to inspect the goods and to give notice of defects (§ 7, para. 1). Complaints not made in due form or time in the case of recognizable defects shall be irrelevant to us.
(2) Limitation period: Unless otherwise agreed in writing, the warranty period for newly manufactured items shall be one year, otherwise six months, calculated from the date of transfer of risk (cf. § 5, para. 4). This period is a limitation period and shall also apply to any claims for compensation for consequential harm caused by a defect. The period shall not be extended by rework or replacement deliveries and shall apply irrespective of whether acceptance has been agreed or not. Defects of rework or replacement deliveries must also be claimed in accordance with § 7 para. 1, otherwise they are irrelevant for us.
(3) Special provision for purchased and individual parts: If defects occur in our performance which are caused by third-party products such as motors, pumps, thermostats, etc., or by defective performance of subcontractors, it is agreed with the Purchaser that we assign our claims against our suppliers/subcontractors to the Purchaser and that the Purchaser accepts this assignment waiving any further claims, to the extent permissible, without any further declarations being required. The extent of our liability towards the purchaser shall correspond to the extent to which the upstream supplier/subcontractor is liable to us and shall in no case go beyond this. In the case of delivery of individual parts, we shall only be liable for execution in accordance with the drawing.
(4) Content of the warranty: In all other respects, we shall be liable for defects, which shall also include the absence of warranted characteristics, to the exclusion of further claims as follows: Parts or services which demonstrably prove to be unusable or considerably impaired in their usability as a result of a circumstance occurring prior to the passing of risk shall, at our discretion, be repaired or replaced ex works or, in the case of shipment, ex port of shipment. We shall be entitled to commission third parties with the rectification of defects, with whom the customer shall cooperate in the same way as with us. In the case of rectification of defects and replacement delivery, we reserve the right to choose a design that deviates from the contract if it is suitable for fulfilling the presupposed task. The purchaser shall give us the opportunity, free of charge, to examine the facts of the case and to take all measures we deem necessary; otherwise we shall be released from liability for defects. We may carry out the work deemed necessary by us at our works, at the works of a partner or at the Purchaser's premises.
(5) Replacement and substitution: If the purchaser provides us with an item or service that we deem to be in need of repair, with a request for warranty, we shall initially be entitled to provide supplementary performance, but we shall not be obliged to provide a replacement free of charge. We shall not be obliged to provide a replacement item for the duration of the repair; such services shall be paid for in accordance with our price lists. Parts taken back or replaced shall become our property.
(6) Indemnification and limitation of liability: Claims for damages are excluded as far as legally permissible. In particular, we shall not be liable for consequential and indirect damages, for the consequences of the use of parts supplied by us and services rendered by us, for claims of third parties against the customer and for lost profits or savings not realized. Damages which do not affect the interest in performance shall not be compensated. This shall only not apply if the cause of the damage is based on intent. Our liability relates exclusively to the performance itself owed by us and is always limited to the amount of the net invoice value of the performance as invoiced to the purchaser.
(7) Exclusion of warranty: Our warranty liability shall not apply in the following cases: improper use, faulty assembly or commissioning by the customer. (7) Exclusion of warranty: Our warranty liability shall lapse in the following cases: improper use, faulty assembly or commissioning by the Purchaser or third parties; natural wear and tear, faulty or negligent handling, excessive stress; use of unsuitable operating materials, non-original replacement parts and materials; faulty construction work, unsuitable building ground; reworking, modifications, repairs or other third-party interventions carried out without our prior consent and all other equally serious circumstances for which we are not responsible. Liability for material or construction defects shall not apply if the material is specified by the customer or our performance is to be carried out according to his documents. In such cases, we shall not be obliged to raise any objections, even if the defects in the customer's preliminary performance are quite obvious.
(8) Withholding of warranty: We shall be entitled to refuse performance of warranty claims as long as the customer has not fulfilled his obligations towards us.
(9) Prohibition of assignment: Only the direct purchaser shall be entitled to warranty claims against us and such claims may not be assigned without our prior consent.
(10) Costs of unjustified claims: If the Purchaser has made unjustified warranty claims against us, the Purchaser shall reimburse us for all expenses and damages incurred thereby, in particular the costs incurred by the request for employees and auxiliary personnel.
§ 10 Place of Jurisdiction
The place of jurisdiction is Cloppenburg/Oldenburg. This applies to all disputes arising directly or indirectly from the contractual relationship, including actions on checks and bills of exchange.
§ 11 Final Provisions
The invalidity of individual provisions shall not affect the validity of the remaining provisions. In the event of the invalidity of any of the foregoing provisions, a provision that corresponds as closely as possible to the economic meaning of such provision shall be deemed to have been agreed by the parties.
Status: October 2017 HANSA Klimasysteme GmbH - 26683 Saterland