General terms and conditions
GENERAL TERMS AND CONDITIONS OF BUSINESS
OF HAKRO GMBH BASED IN SCHROZBERG
Status: April, 2017
1. Our general terms and conditions apply only with respect to entrepreneurs, public law legal entities and public law special trusts.
2. Our general terms and conditions shall apply exclusively; conditions contrary to or deviating from these terms and conditions shall not apply unless we have agreed to such conditions explicitly in writing. Our general terms and conditions shall apply also in the case that we execute delivery without reservation although we are in aware of the customer’s contrary or deviating conditions.
3. Our general terms and conditions shall also apply for all future business transactions with the customer even if no express reference is made to them.
II. QUOTATIONS, CATALOGUES, CONCLUSION OF CONTRACT
1. HAKRO delivers exclusively to entrepreneurs in the sense of §14 of the German Civil Code. We reserve the right to effect delivery only to such customers as have applied to us for be screened as new customers, including appraisal of creditworthiness, and have been accepted by us as speciality retailers for HAKRO products. Equally, we reserve the right to cease delivery to customers when they no longer meet our quality requirements for speciality retailers.
2. Information presented in HAKRO product catalogues, price lists, and on the HAKRO website is non-binding and subject to change without notice.
3. Placement of order by the customer is deemed to be an offer in the sense of §145 German Civil Code and may be accepted by us within a period of two (2) weeks, either by way of confirmation of order or, at our sole discretion, by despatch of the goods ordered.
4. As a matter of basic principle, samples and patterns created by HAKRO for custom-made products shall be approved by the customer in writing before manufacture commences.
II. DELIVERY PERIOD, DELAYED DELIVERY
1. All delivery deadlines are binding only when explicitly confirmed by HAKRO in writing. We will inform the customer of incipient delays in delivery forthwith.
2. Partial deliveries are permissible and shall render the customer liable to payment of the pro rata purchase price unless the customer explicitly expresses disinterest in such partial supply.
3. Compliance with our delivery commitment presupposes the timely and proper fulfillment by the customer of his obligations.
4. Inasmuch as the prerequisites for default of acceptance are present, the risk of accidental loss or deterioration of the goods shall pass to the customer at the time at which he comes into default of acceptance.
5. Inasmuch as circumstances for which we are not responsible hinder, delay or render impossible the execution of confirmed orders, we reserve the right to delay delivery/remaining delivery until such time as the hindrance is eliminated or, in the event of an impediment not of a temporary nature, to withdraw partially or completely from the contract unless we are in default. In the case of withdrawal, we are obligated to inform the customer forthwith of the unavailability and to reimburse the customer for payments already made. Partial withdrawal can only occur, if partial execution is in the stated interests of the customer. We are not liable, for example, in respect of interventions by official agencies, industrial disruption, strikes, lock-outs, disruption to work resulting from political or economic circumstances, shortages of necessary raw materials and operating supplies, transport delays deriving from disruption to traffic and unavoidable events occurring in-house, at our suppliers or in third party enterprises upon whose services our operations depend. Shortages of necessary raw materials and operating supplies entitle us to extension of the delivery period or to withdrawal from the contract only when we have concluded a specific covering agreement with our supplier prior to concluding the contract and provided we are not responsible for default in supply. In the event of withdrawal from the contract for any of the foregoing reasons, the customer shall not be entitled to claim for damages from HAKRO.
IV. TRANSFER OF RISK, TRANSPORT INSURANCE
1. Unless stated otherwise in the confirmation of order, delivery shall be ex-works.
2. Risk transfers to the customer when the subject of delivery leaves the factory, in the form that we transfer the goods to the haulier, forwarding agent or other person or institution designated to perform the shipment even when freight-paid delivery was agreed.
3. If the customer so desires, we will conclude a transport insurance for the delivery, the costs of which shall be borne by the customer.
V. DEFECTS, GUARANTEE AND LIABILITY
1. Claims for defects by the customer presuppose that he has duly fulfilled his obligations in respect of inspection and notification in accordance with §377 of the German Commercial Code.
2. Inasmuch as a defect exists in the purchased goods, for which we are responsible, we shall perform remedial action or provide replacement at our sole discretion. In either case, we are liable for the associated costs of all necessary measures, in particular, the costs of transport, road charges, labour and materials. If the rectification is unsuccessful more than twice, the customer is entitled to withdraw from the contract or to demand a reduction in price at his sole discretion.
3. The period of limitation for claims arising from defects is one (1) year from the date of delivery of the purchased goods to the customer. The period of limitation in the case of right of recourse for a delivery in accordance with §§478, 479 of the German Civil Code remains unaffected; it is five (5) years from the date of delivery of the defective goods. Likewise unaffected are the statutory periods of limitation for claims for damages on the grounds of culpable loss of life, physical injury or damage to health or other intentional or grossly negligent breaches of duty on the part of HAKRO, its legal representatives or vicarious agents.
4. HAKRO bears liability in accordance with statutory requirements for culpable violation by HAKRO of material contractual obligations. Material contractual obligations are those to which adherence is essential in order for the contract to be executed faithfully at all times and upon whose fulfillment a contractual partner can reasonably rely (so-called cardinal obligations). In the case of negligent breach of material contractual obligations, HAKRO’s liability for compensation shall be limited to the reasonably foreseeable and typical damage in such case.
5. HAKRO bears liability in accordance with statutory regulations in the case of intent or gross negligence on the part of HAKRO and/or its legal representatives and/or its vicarious agents. The same applies in the case of culpable loss of life, physical injury or damage to health by HAKRO, its legal representative or vicarious agent. In addition, HAKRO’s mandatory liability under the Product Liability Act remains unaffected.
6. Unless specified to the contrary above, HAKRO bears no liability.
VI. RETURN OF GOODS/ACCEPTANCE OF RETURNED GOODS
1. Returned goods, which were properly delivered and are free of defects, will only be accepted after prior, written agreement by HAKRO and shall be shipped carriage paid as a matter of basic principle. Risk shall remain with the customer until the goods are received by us.
2. If we accept the return of the goods, a charge of 15% of the net value of the goods with a minimum of €15.00 will be levied for the handling costs of re-storage. The customer will receive a credit note for the invoiced amount less the handling charges. The customer retains the right to prove that handling charges for re-storage were not incurred or are significantly lower.
3. Damaged goods, enhanced products and custom-made products may not be returned.
VII. SECURITY INTEREST
1. HAKRO reserves title to the goods supplied until satisfaction of all claims – including those arising in the future – deriving from the business relationship with the customer. In the event of breach of contract by the customer and in particular default of payment, HAKRO reserves the right to repossess the goods. Repossession of the goods shall not constitute withdrawal from the contract unless HAKRO has given prior, explicit notice in writing of its intention to do so. HAKRO reserves the right to dispose of the secured goods. The proceeds of the disposal less the costs will be credited to the customer against his liabilities. Any amount in excess of the liabilities will be transferred to the customer.
2. The customer is obligated to treat the goods purchased with due care; in particular, he is obligated to insure the same adequately for the original value against fire, water damage and theft at his own cost.
3. To secure HAKRO’s rights in accordance with paragraph 1, the customer transfers to us in advance all claims in the amount of the final invoice (including VAT) against his purchaser or a third party deriving from the resale of the goods purchased, and specifically, regardless of whether the
goods were further processed or not. Even after transfer of the claims, the customer retains the right to collect on the claims. HAKRO’s right to collect on the claims in its own right remains unaffected. HAKRO is obligated, however, not to collect on the claims as long as the customer fulfills his payment obligations from the funds from the resale, does not come into default of payment and specifically, no petition for the opening of insolvency proceedings has been filed and payments have not been suspended. If this is the case, however, HAKRO shall be entitled to demand that the customer inform it regarding the claims transferred and the name of the corresponding debtors, make available to us all information and relevant documents necessary to effect collection and that he inform the debtors (third parties) of the transfer. With that we accept the declaration of assignment by the customer.
4. In the case of levies of execution or other interventions by third parties in respect of the goods subject to our retention of title, the customer shall inform us immediately in order that legal action in accordance with §771 ZPO (German Code of Civil Procedure) can be initiated. If the third party is not in a position to reimburse HAKRO for the in-court and out-of-court costs associated with such legal action, the customer shall be liable for the expenses incurred by HAKRO.
5. The customer shall be entitled to re-sell or further process the purchased goods in the normal course of business unless he has already effectively transferred his claims against his contractual partner to a third party or concluded a covenant of non-assignment.
6. The processing or modification of the purchased goods by the customer shall always be made in the name of HAKRO. If the goods are combined with other materials not belonging to the customer, HAKRO acquires co-ownership of the new object in proportion to the value of the purchased goods (as per the final invoice, including VAT) to that of the other materials involved at the time of the processing. In addition, for the objects which are created by the processing, the same provisions shall apply as for the purchased goods subject to title retention.
7. On request of the customer, HAKRO undertakes to release the securities to which it is entitled when the market value of the securities exceeds the secured claims by more than 10%; the selection of the sureties to be released shall rest with HAKRO.
8. The customer shall not transfer his claims against a subsequent purchaser to a third party nor pledge the same nor conclude a covenant of non-assigment with the subsequent purchaser in respect of such claims.
VIII. PRICES AND TERMS OF PAYMENT
1. Unless otherwise stated in the confirmation of order, our prices are ex-works plus the statutory value-added tax but inclusive of packaging. Shipping costs will be invoiced separately.
2. Unless otherwise stated in the confirmation of order, the purchase price is due and payable net (without deductions) within 14 days after the invoice date.
3. Cash discounts shall conform to the provisions in the price list in the section titled ‘Ordering Information’, unless otherwise stated in the confirmation of order.
4. The customer shall be entitled to the right of set-off only if his counterclaim is uncontested, has been recognized by us, is final and absolute under a court judgement or is ready for adjudication in a legal dispute. Furthermore, the customer is only entitled to exercise a right of retention when the counterclaim derives from the same contractual relationship.
5. All our claims – in the case of respite as well – shall immediately become due and payable as soon as the customer is in default of payment or other obligations to us, discontinues his payments, or is over-indebted, insolvency proceedings in respect of his assets are applied for or initiated or the initiation of the same is rejected on the grounds of insufficient assets or circumstances become known to us that give rise to justified doubt about return of the customer's creditworthiness so that our claims appear in jeopardy. In such case we shall be entitled at our sole discretion to demand goods delivered, to make further shipments conditional upon prepayment or the provision of securities or to withdraw from the contract and damages on the grounds of non-performance of contract.
6. Bills of exchange and cheques are accepted only after prior, special agreement and only on account with deduction of discount and collection charges.
7. Incoming payments from the customer will be credited by us in accordance with §367 BGB (German Civil Code) against costs, then interest and finally to the principal, if the customer has not explicitly determined how the payment shall be credited.
IX. USAGE RIGHTS FOR LOGOS AND PRODUCT IMAGES AND TEXTS
1. Exploitation of HAKRO's logos, product images and texts by the customer is permitted only after conclusion of a separate 'Agreement concerning the use of logos and product images and texts of HAKRO GmbH' ('Conditions of Use') and then in accordance with same.
2. If the customer is in breach of the Conditions of Use, we shall be entitled to suspend deliveries and/or the acceptance of orders.
X. SPECIAL CONDITIONS OF CONTRACT
In addition to these Terms and Conditions, our special conditions of contract 'Ordering Information' in the price list shall apply. In the event of conflicts, the provisions in these General Terms and Conditions shall prevail.
XI. PLACE OF JURISDICTION, APPLICABLE LAW, PLACE OF FULFILLMENT
1. If the customer is a merchant, the place of jurisdiction shall be the registered offices of HAKRO GmbH; HAKRO is, however, entitled to bring legal action against the customer at his place of general jurisdiction.
2. The substantive law of the Federal Republic of Germany shall apply with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and the exclusion of international private law.
3. Unless otherwise stated in the confirmation of order, the place of fulfillment shall be the registered offices of HAKRO GmbH