GENERAL TERMS AND CONDITIONS OF BUSINESS
These General Terms & Conditions apply to all contracts with companies, legal persons, legal persons governed by public law and special funds under public law. These Terms & Conditions form an integral part of the contract. They shall also apply to all future goods and services to the Customer without having to be expressly stated again.
The acceptance of an offer from HAWEKA AG shall be treated as acknowledgement of these General Terms & Conditions and these General Terms & Conditions shall not be invalidated by conflicting General Terms & Conditions of the Customer. The acceptance of an order by HAWEKA AG shall be treated as the rejection of all conflicting General Terms & Conditions, so that these General Terms & Conditions shall apply exclusively to the applicable transaction. This shall only not be the case if conflicting provisions are expressly and separately acknowledged by HAWEKA AG by written confirmation.
The delivery terms of the Zentralverband Elektrotechnik (ZVEI; Central Association of the Electrical Engineering and Electronics Industry) shall apply to the electrical and electronic accessories of brand-new machines and the regulations of the Association of German Electrical Engineers shall apply to execution.
In the case of individually negotiated contracts with deviating conditions, these General Terms & Conditions shall apply subject to and as a supplement to those conditions.
All offers by HAWEKA AG are non-binding and subject to confirmation. Statements regarding dimensions, weights, space, performance and properties are approximate and non-binding, as are model designations, the year of manufacture, the descriptions and illustrations in offers and printed materials. Statements in the general technical documents in brochures and catalogues only become integral parts of the contract if referred to directly in writing.
Offers of service are similarly non-binding and subject to confirmation. The specified prices are net plus statutory VAT. HAWEKA AG is entitled to have the services in an offer performed by sub-contractors.
The costs of freight, packaging and transport insurance are not included in the price and must be paid by the Customer. All prices are plus VAT. Unless other agreed, all deliveries are ex warehouse from HAWEKA AG in Burgwedel, Duderstadt or Herzberg.
Payments must be made in cash or to one of the accounts of HAWEKA AG within the agreed period without deductions. If no payment period is expressly agreed or specified on the invoice, invoices from HAWEKA AG are due for payment immediately, irrespective of receipt of the goods by the Customer. The assertion of warranty rights shall not prevent invoices falling due for payment. Payment orders, bills and cheques are only accepted after separate agreement and only as an undertaking to pay.
If payment is not received by HAWEKA AG after the expiry of the payment period agreed in writing or 10 days after the invoice is issued, the Customer shall enter into default without notice. Once the Customer is in default, HAWEKA AG shall be entitled to demand statutory default interest.
If instalments are agreed, the total outstanding purchase price shall become due if the Customer is late paying an instalment by more than one week.
In the event of late payment and justified doubt as to the Customer's solvency or creditworthiness, HAWEKA AG – without prejudice to its other rights – shall be entitled to demand securities or pre-payments for outstanding deliveries and to make all claims arising from the business relationship due for payment immediately. In the event of non-performance, HAWEKA AG shall be entitled to withdraw from the contract in whole or in part or to demand damages for non-performance.
The Customer is not permitted to offset HAWEKA's claims against counterclaims, unless the counterclaim is undisputed or legally established. The Customer is not permitted to assert a right of retention for counterclaims not legally established.
HAWEKA AG shall be entitled to make delivery of goods dependent on prepayment. In this case, HAWEKA AG may exercise its right to withhold performance until receipt of the prepayment.
5. Delivery period and acceptance
The delivery period shall begin on the day of the final order confirmation, but not before clarification in full of all details of execution and the submission of all documents required to execute the order. Delivery within the agreed delivery period is subject to timely receipt of all documents, necessary certificates and approvals to be supplied by the Customer and compliance with the agreed terms of payments and other obligations. In the event of non-compliance, HAWEKA AG shall be entitled to extend the period of delivery accordingly.
Delays in delivery and performance as a result of force majeure, including labour disputes or disruptions to operation, shortages of raw materials and energy, machine or tool breakage, transport problems or other circumstances for which HAWEKA AG is not responsible shall entitle HAWEKA AG to extend the agreed delivery deadline.
An agreed delivery period, depending on the agreement, shall be treated as complied with on notice of readiness to dispatch or delivery to the carrier. If the delivery is delayed for reasons for which the Customer is liable, notice of readiness to dispatch shall be sufficient to comply with the delivery period. Partial deliveries are permitted. In the event of default by HAWEKA AG, the Customer shall be entitled to withdraw from the contract, after setting an appropriate grace period, if the delivery is not made within the grace period. Claims for damages arising from non-compliance with the delivery deadlines or delivery periods are excluded, unless such claims are based on intent. If HAWEKA AG withdraws from the contract as a result of impossibility of timely delivery, for which it is not liable, or as a result of destruction or damage of the goods for delivery, claims by the Customer for damages shall be excluded.
Delivery shall be performed by a carrier selected by HAWEKA AG. HAWEKA AG accepts no responsibility for the cheapest shipping method.
6. Force majeure
Force majeure includes circumstances and events that cannot be prevented by proper management. Instances of force majeure shall suspend the parties' contractual obligations for the duration of the disruption and to the extent of its impact. If consequential delays exceed a period of 6 weeks, both parties shall be entitled to withdraw from the contract to the extent that performance is affected. Other claims are excluded.
7. Retention of title
HAWEKA AG retains title in all delivered goods until receipt of all payments, including secondary claims (e.g. transport, installation, delivery of spare parts etc.), by the Customer, from any transaction. HAWEKA AG is entitled to offset all payments at its choice. The Customer's right under Section 366 BGB is excluded. For current accounts, the reserved title shall serve as security for the outstanding balance.
The Customer shall take possession of the purchased goods on behalf of HAWEKA AG free of charge. As long as retention of title applies, the Customer must not pledge, assign as security, rent, lend, gift, move to a different location or surrender the purchased goods to third parties without the written consent of HAWEKA AG.
In the case of permissible disposal in the ordinary course of business, the claim against the buyer shall take the place of the delivered goods, whereby the claim shall be treated as hereby assigned to HAWEKA AG to the extent of HAWEKA AG's claims against the Customer. If the Customer resells to third-party recipients, the Customer must validly retain title in the purchased goods on behalf of HAWEKA AG during retention of title by HAWEKA AG and must keep incoming monies separately and immediately pay them over to HAWEKA AG. At HAWEKA AG's request, the Customer must name the third-party recipient and notify the recipient of such assignment. The Customer is only entitled to collect claims from resale while not in default. When the Customer is in default, the right to collect the claims transfers to HAWEKA AG.
If the purchased goods become an integral part of other goods by reason of combination or processing, HAWEKA AG shall acquire co-ownership in the new goods at the time of processing/mixing in the proportion of the value of the delivered goods to the goods created by mixing or processing. This shall also apply if mixing occurs in such a way that the Customer's goods are to be considered the primary goods. If the goods are sold to third parties, the Customer must make corresponding reservations vis-à-vis the third-party recipient in order to safeguard HAWEKA AG's rights.
For the duration of retention of title, the Customer must maintain the purchased goods in good working order and have any necessary repairs performed at its expense. The Customer must insure the purchased goods against machine damage, fire, water, theft and burglary, subject to HAWEKA AG being entitled to the rights conferred by the insurance. If no evidence of insurance is provided at HAWEKA AG's request, HAWEKA AG shall be entitled to insure the purchased goods at the Customer's expense.
If the purchased goods are attached by a third party, the Customer must inform HAWEKA AG immediately by sending the attachment order and, in the case of imminent risk, the Customer must recognise HAWEKA AG's rights.
HAWEKA AG retains title in parts added during repairs and maintenance that are not integral parts of the repaired or maintained goods, until all claims under the contract are settled. If the Customer is in default or does not meet its obligations arising from retention of title, HAWEKA AG may demand the goods back from the Customer for the purpose of removing added parts. All the costs of collecting and of removing the parts, including labour and transport costs, shall be borne by the Customer.
8. Transfer of risk
All costs and risks of shipping shall transfer to the Customer on leaving the factory, even if carriage paid delivery is agreed in deviation from these General Terms & Conditions. If the shipment is delayed due to the fault of the Customer, the risk shall transfer to the Customer on the date of readiness to dispatch.
9. Liability for defects
HAWEKA AG shall rectify or make a replacement delivery at its option in the event of defects in the goods. If such cure fails, the Customer may demand reduction of the price (reduction) or reversal of the contract (withdrawal). In the event of a merely minor contravention of contract, in particular for merely minor defects, however, the Customer shall not have the right to withdraw from the contract.
The Customer must give written notice of obvious defects within a period of 2 weeks of receipt of the goods. Otherwise, claims for damages with regard to such defects shall be excluded. Timely dispatch of notices of defect shall be sufficient to comply with the period. The Customer bears the full burden of proof for all preconditions of the claim, in particular for the defect itself, for the time at which the defect is discovered and the timeliness of notice of defect.
If the Customer opts to withdraw from the contract after failed cure on account of a legal or material defect, the Customer shall then not also be entitled to damages for the defect. If the Customer opts for damages after failed cure, the goods shall be retained by the Customer, if reasonable for the Customer. Damages shall be limited to the difference between the purchase price and the value of the defective goods, unless HAWEKA AG is liable for gross negligence or intent.
Malfunctions that are caused by damage, incorrect connection or incorrect operation by the Customer, damage as a result of force majeure, e.g. lightning strike, defects as a result of wear from overloading mechanical, electro-mechanical or electronic parts, as a result of unintended use or defects as a result of dirt and damage caused by exceptional mechanical, chemical or atmospheric influences are excluded from any warranty. The Customer must notify HAWEKA AG of obvious defects in performance no later than 5 working days after acceptance, otherwise HAWEKA shall be free of any liability. Timely dispatch of notices of defect shall be sufficient to comply with the period. The Customer bears the full burden of proof for all preconditions of the claim, in particular for the defect itself, for the time at which the defect is discovered and the timeliness of notice of defect.
HAWEKA AG shall be liable for damage and loss of the goods of the order to the extent that HAWEKA AG or its agents are at fault. In the case of damage, HAWEKA AG shall be obliged to perform repair free of charge. If repair is not possible or involves disproportionate costs, the replacement value must be paid. Greater claims, in particular claims for damages by the Customer, are excluded, unless they are there is intent or gross negligence on the part of HAWEKA AG or its agents.
10. Warranty period/quality of goods
The warranty period is 1 year from delivery of the goods. This period shall not apply if the Customer has not given timely notice of the defect. The manufacturer's product description shall generally be considered the agreed description with regard to quality of the goods. Public statements, sales statements or advertising from the manufacturer, on the other hand, are not contractual statements regarding the quality of the goods. If assembly instructions are defective, HAWEKA AG shall only be obliged to deliver assembly instructions free of defects and only if the defect in the assembly instructions prevents proper assembly.
11. Limitations of liability
The following limitations of liability do not apply to claims for damages as a result of injury to life, limb or health of the Customer. Furthermore, they do not apply to claims by the Customer under product liability law.
HAWEKA AG shall not be liable for breaches of minor contractual obligations as a result of slight negligence.
The Customer's claims for damages on account of a defect shall expire by limitation 1 year from delivery of the goods, unless the damage was caused as a result of HAWEKA AG's gross negligence or intent.
12. Place of performance & place of jurisdiction
Place of performance is Burgwedel. Place of jurisdiction for all disputes arising from this contract is Burgwedel, unless a different jurisdiction is required by law. Furthermore, HAWEKA AG is entitled to bring a claim at the Customer's registered office.
13. Closing provision
If individual provisions of these General Terms & Conditions are invalid, the remaining provisions shall be unaffected. Subject to other individual agreements, German law excluding the UN Convention on the International Sale of Goods applies to the entire legal relationship between HAWEKA AG and the Customer.
Last updated: October 2015