DELIVERY AND PAYMENT TERMS International
I. Scope of Application, Exclusive Applicability, Future Business
These terms are exclusively applicable to all business transactions, in case of ongoing business relations also to all future transactions for deliveries of Hawle Armaturen GmbH, Liegnitzer Str. 6, 83395 Freilassing, Germany (“Supplier“), with customers abroad (“Customers“), unless otherwise agreed in accordance with these terms.
Il. Conclusion of Contract, Written Form, Deadlines, Delivery, Place of Performance, Self Supply, Force Majeure, Default in Acceptance
1. Supplier’s offers are subject to change. Contracts for delivery are concluded through the written acceptance by Supplier of Customer’s order or upon Customer’s acceptance of delivery at the latest. Modifications of these terms upon contract conclusion have to be made in writing.
2. Specifications relating to deadlines, terms of delivery and quantities are not binding. Supplier’s compliance with the obligation of delivery requires Customer’s due performance of all duties and obligations; Supplier can enforce a right of retention. If applicable, the term of delivery does not begin before Supplier provided a security according to Section V. of these terms.
3. Deliveries are made ex works Freilassing (INCOTERMS 2000) to Customer’s domicile; place of performance shall be at the domicile of Supplier. Supplier is entitled to partial deliveries unless unacceptable for the Customer.
4. In case of a default in delivery, Customer can declare the contract avoided if a reasonable respite (at least two weeks) has been granted, except for delays in delivery due to non-effected self-supply with ordered goods or services for reasons for which Supplier is not responsible, or due to force majeure (e.g. strike, sudden import restrictions, etc.). In these cases, agreed or set deadlines/time-limits are extended by the time performance is impaired due to these circumstances. However, if such impairment entails a deferment of performance by more than 1 month, either party can declare avoidance of the contract, without further claims on compensation.
5. For the duration of a default in acceptance by Customer, the Supplier shall without prejudice to further rights be entitled to store the goods to be delivered at the Customer’s expense. For storage, the Supplier may also make use of a forwarding agency.
III. Prices, Payment, Price Adjustment, Right of Retention, Right to Offset
1. Delivery is made on basis of the price list applicable at the conclusion of the contract plus possible shipment costs if shipment (on Customer’s risk) is requested (plus legal VAT if applicable).
2. The purchase price is due immediately and payable within 30 days from the date of invoice. Default interest for arrears amounts to eight percentage points above the current German basic interest rate.
3. In the event of a substantial increase or reduction in the prime cost (especially labour and material cost) that has been taken as the quotation basis, the Supplier shall be entitled to make a reasonable adaptation of his selling price, provided that the Supplier delivers his supplies and renders his services not earlier than four months after the contract date. A change of prime cost as defined by sentence 1 is present especially if there is an increase in prices for labour or supplied goods or materials, an increase in customs duties or other import charges, or a considerable change in the parity of exchange to the Supplier’s disadvantage compared with the circumstances prevailing at the contract date. A price adaptation because of an increase in the cost is deemed to be reasonable if the extent of the adaptation remains within the scope of the increase in cost that has happened meanwhile. If the price adaptation results in an increase in the selling price of more than 20%, and if the Supplier does not comply with the Customer’s request to limit the price adaptation to a scope of 20% within two weeks’ time, the Customer shall be entitled to declare avoidance of the contract. Such declaration of avoidance shall be effected immediately. At the Customer’s request, the Supplier shall demonstrate the reasons that were decisive for the price adaptation.
4. The Supplier can declare avoidance of the contract, if the Customer gets into arrears with payment and if the Customer has incorrectly informed the Supplier about his credit standing, if he has made an affirmation in lieu of an oath or if the Customer’s assets have been subjected to insolvency or composition proceedings.
5. Customer can only exercise a right of retention or offset against claims of Supplier because/on basis of undisputed or legally established claims.
IV. Repurchase of Goods
1. The repurchase of goods on the part of the Supplier shall be contingent upon the latter’s previous consent; Supplier will by no means be obliged to repurchase any goods and will decide on a case by case basis. Goods can be repurchased only if they are in perfect condition, in case of carriage, import and custom duties paid for the return consignment to Supplier’s warehouse in Freilassing and against a copy of the original invoice or delivery note. In return for the repurchased goods, the Customer will receive a credit minus a handling fee of 20% of the net invoice value upon receipt of the goods at the designated warehouse of Supplier. Any reconditioning costs or other necessary and adequate costs incurred by the Supplier as a consequence of the repurchase (such as import duties etc.) will be charged to the Customer who will be informed in writing about such charges. The Supplier shall be entitled to deduct these costs directly from the credit.
2. Supplier will under no circumstances repurchase special models or goods especially designed on the customer’s request, as well as goods that are no longer in keeping with the current version of the Supplier’s sales documents.
As of a goods value of 100.000,00 EUR and at Supplier’s request, Customer provides an unconditional, unlimited and absolute payment guarantee of a European bank waiving the benefit of discussion or a letter of credit as security for the purchase price.
VI. Obligation of Inspection, Warranty, Liability
1. Customer will inspect the goods right after receipt of delivery and will notify Supplier in writing of evident defects within 5 working days after delivery and of all other defects within 5 working days from discovery, by defining the defect in detail and declaring which claims are asserted.
2. Customer has to grant a reasonable respite of at least 30 days for remedying defects. In case of minor defects, only a reduction of price can be claimed instead of a remedy of defects. Defects are remedied by replacement delivery or rectification upon discretion of Supplier. Fitting and removal as well as the assumption of costs incurred for fitting and removal are not owed in case of a remedy of defects. Defects are remedied at the place of performance of Supplier.
3. In case of defects, a fundamental breach of duty is only assumed, if the supplied goods cannot be used by the Customer at all; also in these cases, the Customer has to grant a respite for remedy of defects.
4. Avoidance of the contract can only be declared within no later than ten days after a third trial to remedy defects turned out unsuccessful. In such case, Supplier will bear the shipment costs for returning the goods.
5. Supplier shall not be liable for breaches of duty due to impediment beyond its control, which are not at least due to gross negligence or not fundamental. Any damage foreseeable to Supplier amounts at maximum to – unless differently advised by Customer in writing within no later than 10 days from the order – the (i) ordinary purchase price of the goods for the damage of a reduced value of the goods due to defects, (ii) 10% of the purchase value for loss of profits and business and (iii) by Supplier insured amount for each single damage (to the maximum of EUR 10 Mio./year) for other liabilities and consequential damage. Customer’s claims for warranty and/or compensation of damages shall be statute-barred after five years from the beginning of the statutory period of limitation.
This limitation of liability shall not apply in cases of intent, guarantees, injury to life, body and health or product liability.
6. Supplier shall not be liable for default of or any damages caused by its vicarious agents or auxiliary persons or any 3rd parties (e.g. suppliers etc.).
VII. Governing law, place of jurisdiction
1. All legal relations between Supplier and the Customer are exclusively governed by German law, the UN Sales Convention explicitly included.
2. Exclusive place of jurisdiction for all disputes arising out of the contract and the related relationships thereto shall be at the seat of Supplier. Supplier may at its own discretion sue the Customer at any other legal place of jurisdiction or, as plaintiff instead of appealing an ordinary court decide to file for settlement by binding arbitration in compliance with the arbitration rules of the German Institution for Arbitration (DIS); such arbitration proceedings shall be conducted in Munich and the language of the proceeding shall be English.