GENERAL TERMS AND CONDITIONS OF SALE
HAILO WIND SYSTEMS GMBH & CO. KG – MARCH 2018
§ 1 General Terms, Scope of Application
(1) The following general terms and conditions of sale (“Terms”) shall govern all business relationships with our customers (“Purchaser”). These Terms shall only apply where the Purchaser is acting in the course of his business within the meaning of §14 of the German Civil Code (BGB), is a public law entity or a federal special fund.
(2) These Terms shall apply in particular to the sales and/or delivery of movable goods (“Goods”) irrespective of whether such Goods are manufactured by ourselves or procured from suppliers (§433, 651 of the German Civil Code (BGB)). Except where otherwise agreed the Terms in force at the time the Purchaser places his order, alternatively the version last provided to the Purchaser in text form, shall constitute the legal framework for all future purchases of a similar kind without us being required to indicate their application for each individual transaction.
(3) Our Terms shall apply exclusively. Any terms of the Purchaser which contradict or deviate from the terms and conditions below shall only apply where we have expressly agreed to the same in writing. Our consent is required without exception, for example where, on notice of the Purchaser’s general terms and conditions, we execute the supply without reservation.
(4) Any individual agreement made with the Purchaser (including ancillary, supplement and change agreements) shall in any event override these Terms. The written agreement alternatively our written confirmation shall be definitive in determining the content of such agreements in the absence of proof to the contrary.
(5) Material declarations and notifications to be submitted by the Purchaser after the contract has been concluded (e.g. the setting of deadlines, notification of defects, notices of rescission or deductions) shall only be valid when submitted in writing or in text form (e.g. letter, email, facsimile). Statutory form requirements and other evidence particularly concerning doubts as to the declaring party’s authority to act shall remain unaffectd by the aforesaid.
(6) Insofar as is necessary for the handling of our business we are entitled to store and process the Purchaser’s data in electronic form to the extent permitted by data protection laws.
§ 2 Contractual Declarations
(1) The range of products and services we offer is subject to change without notice. This also applies where we have provided the Purchaser with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN Norms), other product descriptions or documents – including in digital form – to which we reserve ownership rights and copyright.
(2) The purchase order placed by the Purchaser shall be deemed a binding offer. Except where otherwise provided in the purchase order the order shall be capable of acceptance for a 2 week period beginning on the date of receipt of order.
(3) Acceptance will be communicated in writing or in text form (e.g. the order acknowledgement) or will be deemed on supply of the Goods to the Purchaser.
§ 3 Term of Delivery, Default in Delivery
(1) The term of delivery shall be agreed on a case by case basis alternatively we will advise the delivery term on order acceptance.
(2) Where we are unable to fulfill binding delivery dates for reasons for which we are not responsible (non-availability of performance), we shall notify the Purchaser without delay and at the same time inform the Purchaser as to the new estimated delivery date. Where performance is still not possible by the new delivery date we are entitled to rescind the contract in part or in whole; any consideration provided by the Purchaser will be reimbursed without delay. For the purposes of this clause non-availability of performance shall include the failure of our suppliers to supply us on time despite us having placed a corresponding order to cover the transaction and neither our supplier or ourselves are at fault or where, in isolated cases, we have no procurement obligation under the contract.
(3) Where we fail to deliver upon an agreed delivery date and such failure is caused by an act or omission on our part the Purchaser shall grant us an extension in writing of not less than two weeks. Where upon the expiry of the grace period, delivery is still not forthcoming and the Purchaser desires to rescind the contract or demand damages in lieu of performance, the Purchaser shall prior thereto set a final and reasonable deadline in text form expressly indicating his intention. The Purchaser is obliged at our request to declare within a reasonable period whether he shall rescind the contract due to the delay in delivery and/or demand damages in lieu of performance or insist upon performance.
(4) Purchaser’s rights in accordance with clause 9 of these Terms and our statutory rights, in particular with regard to the exclusion of our performance obligation (e.g. where performance or supplementary performance is frustrated or becomes unreasonable) shall not be affected by the aforesaid.
§ 4 Preparatory works of the Purchaser
(1) The commencement of the delivery term quoted shall be subject to clarification of all technical matters and proper and timely performance by the Purchaser of his obligations.
(2) The Purchaser shall ensure that suitable indoor or outdoor areas are available for interim storage of elements, materials, tools and assembly aids on the construction site. The Purchaser shall advise us the exact dimensions of the storage areas no later than one week prior to delivery. Any additional cost incurred due to repeat supplies or storage at other locations and for which we are not responsible or other expenditure incurred as a result of bridging the distance between the storage location and the construction site shall be paid for by the Purchaser.
§ 5 Prices, Payment Terms, Set Off
(1) Our prices are in accordance with our price list in force at the time the contract is made, unless otherwise agreed by the parties. Our prices are ex works (EXW Incoterms 2010) i.e. excluding packaging, shipping cost, customs duties, import duties, insurance and VAT. We shall invoice the rate of VAT valid on the date of delivery. Where we have agreed to assemble or install the goods and in the absence of any agreement otherwise the Purchaser shall bear all necessary ancillary costs associated therewith including travel expenses, the cost of the shipping of tools and personal luggage and disbursements in addition to the agreed price.
(2) Where the delivery or performance date is more than 3 months after the contract date we are entitled upon timely notification to the Purchaser and prior to delivery or performance to adjust the price in such a manner as is necessitated by any general price development beyond our control (e.g. exchange rate fluctuations, currency regulations, customs duties changes, significant increases in material and production costs) or by changes of suppliers. For supplies of goods or services within three months from the contract date the contract price shall apply in any event. In relation to framework agreements with a price clause the three month period shall begin to run upon the effective date of the agreement.
(3) Unless otherwise agreed the Purchaser will remit payment of the invoice amount within 30 days from the date of the invoice. Upon expiry of the payment term the Purchaser shall be deemed in default of payment.
(4) All our demands, also those arising from other contracts with the purchaser, shall be payable immediately in the event of payment default or ceasing of payment by the purchaser, or if circumstances become known to us that lead so significant doubt as to purchaser´s ability to pay or creditworthiness. In this case we have the right to only perform outstanding deliveries against advance payment or security and when the condition or security is not issued within two weeks, to withdraw from contract without the setting of a new deadline. Further claims hereby remain unaffected.
(5) The Purchaser shall only be entitled to set off undisputed or finally adjudicated amounts against debts owed to us. The Purchaser shall only be entitled to exercise a right of retention where the claim is based on the same legal transaction.
§ 6 Shipment and Risk
(1) Delivery shall be Ex Works (EXW – Incoterms 2010). The risk of destruction, loss of or damage to the goods shall transfer to the Purchaser upon loading of the goods from our stores or where the goods are unable to be shipped or are to be collected upon notification of readiness for shipment. The aforesaid shall also apply where delivery is made by installment or where we have undertaken other services such as shipment or delivery on site and assembly.
(2) We reserve the right to select the transport route and the type of transport. We shall select packaging, protection aids and /or means of transportation on the basis of our experience at the expense of the Purchaser. Extra costs caused by the Purchaser’s special shipping requirements shall be for the account of the Purchaser. This shall also apply to increases in freight charges that occur after the contract is concluded, any additional costs for re-routing, warehouse charges, etc., unless carriage paid delivery is agreed.
(3) Part shipments and corresponding invoices are permitted except where unreasonable for the Purchaser.
(4) In relation to make and hold orders approximately the same quantities shall be called off each month except where otherwise agreed in writing. The entire order quantity shall be deemed called off one month after the expiration of the call off deadline, or in the absence thereof twelve (12) months after the contract date. Where the Purchaser fails to assign goods ordered to a certain delivery within one month after the expiry of the deadline for such assignment, or in the absence of an agreed deadline, within one month of our request for such assignment, we reserve the right to assign the goods at our discretion and deliver the same.
(5) Delivery quantities in excess or short of the agreed delivery quantities are permitted where customary in the trade.
§ 7 Force Majeure, Act of God
(1) In the event that delivery of the goods is prevented due to decrees issued by authorities and/or national or international laws we shall be entitled to suspend performance of our obligation to deliver. The aforesaid shall include export control laws and embargos and any other type of sanction. Except where otherwise agreed we shall be responsible for obtaining the requisite export permit. We do not give any guarantee that such export permit will be granted by the authorities. The Purchaser shall be responsible for obtaining the requisite import permit.
(2) Where delivery of the goods is prevented for more than 12 months both parties shall be entitled to terminate the contract. In such circumstances we shall be entitled to remuneration for the works performed at the Purchaser’s request prior to termination.
(3) Where the requisite export permit is finally refused for reasons for which we are not responsible the contract in relation to the goods for which the export permit is refused shall be rescinded. In such circumstances neither party shall be entitled to claim damages from the other party. The second sentence of the second sub-paragraph of this clause shall apply accordingly.
(4) Where delivery dates cannot be met due to acts of god to include without limitation natural catastrophes, mobilization, war, riots or other similar events such as sovereign interventions, strikes or lockouts the delivery dates shall be extended accordingly. We shall not be liable for the consequences of late delivery insofar as the delay was caused by circumstances for which we were not responsible and which we could not have overcome with any reasonable effort.
§ 8 Retention of Title
(1) We retain title to the Goods until payment of all current and future claims under the contract and any ongoing business relationship (Secured Goods) have been received.
(2) Goods which are subject to a reservation of title shall not be mortgaged or assigned by way of security to third parties prior to receipt of full payment. The Purchaser shall inform us in text form without delay where an insolvency application has been made or where levies of execution (attachment orders) are made against the Secured Goods.
(3) Where the Purchaser is in breach of his contractual obligations, in particular where he fails to remit payment of the price, we are entitled to rescind the contract subject to the statutory requirements and to demand the surrender of the Goods based on our reservation of title and the rescinded contract. Where the Purchaser fails to remit payment of the purchase price we are only entitled to enforce those rights where, prior thereto, we have set the Purchaser a reasonable deadline to remit payment or the setting of such a deadline is not required legally.
(4) The Purchaser is authorised to resell or process the Secured Goods in the ordinary course of his business unless such authorisation is revoked in accordance with c) below. In such circumstances the following shall apply:
a. The reservation of title shall extend in its full value to products which originate from the processing, mixing or combining of the Secured Goods, of which we are deemed to be the manufacturer. Where after the processing, mixing or combining of the Secured Goods with third party goods third party property rights remain in existence, we shall acquire joint title to the resulting products in proportion to the invoice value of the Secured Goods which have been processed, mixed or combined. The originating product shall otherwise be subject to the same terms which apply to the Secured Goods as set out aforesaid.
b. Claims against third parties based on the resale of the Secured Goods or the resulting products are hereby assigned by the Purchaser to us by way of security in the value of our co-ownership as set out in the preceding paragraph (a). We accept such assignment. Purchaser’s duties as set out in § 8(2) shall apply to assigned claims accordingly.
c. The Purchaser shall remain authorised to collect payment in addition to ourselves. We undertake not to collect payment for as long as the Purchaser complies with his payment obligations to us, there is no deficiency in his performance capability and we have not exercised our rights under § 8 (3) aforesaid. In such circumstances we can request the Purchaser to inform us of the assigned claims and their debtors, to provide us with any information required to collect payment and corresponding documentation and to inform the debtors of the assignment. Furthermore in such circumstances we are entitled to revoke Purchaser’s authorisation to process and resell the Secured Goods.
d. If the value of the securities provided to us exceeds our claims by more than 10 percent, we undertake to release securities of our choice on demand by the Purchaser. Where we assert a claim based on reservation of title this shall only be deemed to be rescission of the contract as well where we expressly declare the same in writing beforehand.
(5) In the event that the above retention of title clauses are void or unenforceable according to the law of the state/country in which the goods are situated, the collateral security which corresponds to the retention of title in that state/country is deemed to be agreed.
§ 9 Purchaser’s Rights in the case of Defects
(1) The Goods supplied by us correspond to the German regulations and standards currently in force. We give no guarantee that the Goods comply with other national regulations. Where the Goods are to be put into operation overseas it is the responsibility of the Purchaser to ensure that the Goods are in conformity with the relevant legal requirements and standards and where required to make appropriate adaptations.
(2) Purchaser’s rights regarding material defects or defects in title (including wrong or short delivery) are governed by the statutory provisions except where provided otherwise below. In any event the special statutory provisions in the case of ultimate delivery to a consumer (supplier recourse §§ 478, 479 BGB (German Civil Code) shall remain unaffected.
(3) Purchaser’s claims under warranty are subject to compliance with his statutory obligation to inspect incoming Goods and to notify us of any defects discovered (§§377, 381 of the German Commercial Code (HGB)). Where a defect is discovered on or subsequent to inspection, the Purchaser must inform us without delay in text form, in any event no later than 28 days after delivery. Timely dispatch of notice is sufficient to preserve Purchaser’s rights under warranty. Irrespective of the aforesaid inspection and notification obligation the Purchaser is under an obligation to notify us of obvious defects (including wrong and short delivery) without delay in text form, in any event no later than 28 days after delivery. Timely dispatch of notice is sufficient to comply with the notice requirement. Where the Purchaser fails to carry out the inspection and/or notify us of a defect, we shall not be held liable for such defect.
(4) Where the Goods delivered by us are defective we shall at our option deliver a replacement or remedy the defect (supplementary performance). The Purchaser shall grant us a reasonable period of not less than 15 working days to carry out the same. The Purchaser shall return the defective Goods for testing. Where we deliver a replacement the Purchaser shall return the defective Good in accordance with the statutory provisions. Supplementary performance does not include the disassembly of the defective object nor does it include its reassembly provided that we were not originally under a duty to assemble the Goods supplied.
(5) We bear the cost of testing defective Goods, remedying the defect or delivering a replacement including transport, travelling expenses, labour and material cost and where appropriate we shall reimburse removal and assembly costs provided that the Goods are actually defective and that the costs are not increased due to the subsequent transportation of the Goods to a location other than the original shipment location – unless the purpose for which the Goods are intended requires the same. Where the Goods are not actually defective we reserve the right to claim reimbursement of the expenses incurred (in particular inspection and transport costs) from the Purchaser except where the Purchaser was unable to identify the absence of defect.
(6) In the event that we are not in a position to remedy the defect or deliver a replacement the Purchaser is entitled to rescind the contract or to demand a reasonable reduction in the purchase price. Rescission of the contract is only permissible where the Purchaser prior thereto sets a final and reasonable deadline in text form expressly indicating his intention.
(7) Any claims of the Purchaser for compensatory damages or reimbursement of wasted expenditure based on defective Goods are subject to the provisions set out in § 10 below. Otherwise they are excluded.
§ 10 Liability for Damages
(1) Except where otherwise provided in these Terms including the following provisions we are liable for contractual and non-contractual breaches in accordance with the applicable statutory provisions.
(2) We are liable in damages for any claim irrespective of its legal basis where we have acted with willful default or in a gross negligent manner. For claims based on negligence we are liable in accordance with the statutory provisions as follows:
a. Liability for damages based on personal injury are not subject to any limitation of liability,
b. Liability for damages based on breach of a material term of the contract are limited to compensation for damages which were foreseeable and are ordinarily incurred; a material term of the contract is any term which is characteristic of performance of the contract and upon which the Purchaser could normally rely.
c. Liability for any other damages, other than those incurred by the Goods themselves, to include without limitation loss of profit or any other pecuniary loss incurred by the Purchaser, is excluded.
(3) The limitations of liability set out in § 10 (2) aforesaid shall apply to breaches of all persons for whom we are legally responsible. They do not apply where we have given a guarantee as to the quality of the Goods and in relation to claims of the Purchaser made under the Product Liability Act (Produkthaftungsgesetz).
(4) In the event of a breach which does not render the Goods defective the Purchaser shall only be entitled to terminate or rescind the contract where we are responsible for the breach. Any independent right of termination of the Purchaser (particularly in accordance with §§ 651, 649 of the BGB (German Civil Code) is excluded. Notice of termination or rescission must be in text form. Otherwise the statutory provisions shall apply.
(5) Any claim made by the Purchaser for reimbursement of wasted expenditure shall be subject to the aforesaid.
(6) Any assignment of the Purchaser’s claims under clauses 8 and 9 aforesaid is not permitted. §354a of the German Civil Code shall remain unaffected.
§ 11 Limitation
(1) Contrary to § 438 sub-paragraph. 1 No. 3 of the BGB (German Civil Code) the general limitation period for claims based on material defects and defects in title is one year from the date of delivery. Where acceptance has been agreed, the limitation period shall commence on acceptance.
(2) Where the Goods supplied are a building or an object, which in line with its customary use has been used for building construction and has caused its defectiveness (building material), the limitation period shall be 5 years from the date of delivery in accordance with the statutory provisions (§ 438 sub-paragraph 1 No. 2 BGB (German Civil Code). Additional special statutory provisions on limitation remain unaffected in particular § 438 sub-paragraph 1 No. 1, sub-paragraph 3, §§ 444, 445 b BGB (German Civil Code).
(3) The limitation periods set out aforesaid also apply in relation to contractual and non-contractual claims of the Purchaser for damages based on defective Goods except where shorter limitation periods would apply on the application of the ordinary statutory limitation periods set out in §§ 195, 199 BGB (German Civil Code). Claims of the Purchaser for damages under § 10 sub-paragraph 2 (first sentence and second sentence (a)) of these Terms and claims of the Purchaser under product liability laws shall become statute-barred exclusively in accordance with statutory provisions.
§ 12 Product Description
(1) A description of all of our products is set out in our „General Technical Instructions“, a copy of which will be provided to the Purchaser where the Purchaser so requests. It is the responsibility of the Purchaser to test our products and services as to their suitability for the purpose intended.
§ 13 Choice of Law, Jurisdiction
(1) Für diese VLB und die Vertragsbeziehung zwischen uns und dem Käufer gilt das Recht der Bundesrepublik Deutschland.
(2) Hat der Besteller seinen Geschäftssitz innerhalb der Europäischen Union, ist Gerichtsstand für alle sich aus dem Verhtragsverhältnis unmittelbar oder mittelbar ergebenden Streitigkeiten unser Geschäftssitz in Haiger. Wir sind jedoch in allen Fällen auch berechtigt, Klage am Erfüllungsort der Lieferverpflichtung gemäß diesen VLB bzw. einer vorrangigen Individualabrede oder am allgemeinen Gerichtsstand des Bestellers zu erheben.
(3) Hat der Besteller seinen Geschäftssitz außerhalb der Europäischen Union sollen alle Streitigkeiten unter Ausschluss des ordentlichen Rechtsweges durch ein Schiedsgericht abschließend entschieden werden. Das Schiedsgericht wird eingerichtet nach der Schiedsgerichtsordnung der Deutschen Institution für Schiedsgerichtsbarkeit e.V. (DIS) in der jeweils gültigen Fassung. Ort des Schiedsgerichts ist Frankfurt am Main. Verhandlungssprache ist Englisch.
SPECIAL TERMS FOR THE PERFORMANCE OF WORKS
§ 1 Sub- Contractors
Where we are instructed to perform works, to include without limitation installation works, we are entitled to use sub-contractors.
§ Purchaser’s duty to cooperate in relation to Erection and Installation Works
Where the Purchaser requires erection or installation works, he shall cooperate as follows:
(1) The Purchaser warrants that the installation site shall be freely accessible. Where this is not the case any additional cost incurred as a result shall be invoiced to the Purchaser.
(2) The Purchaser shall bear the cost of all earth, construction and other ancillary works unrelated to the work provided by us hereunder including the provision of the requisite specialists and assistants, building materials and tools, such objects and materials as are required for the assembly and installation of the goods, lifting and other devices, fuels and lubricants as well as energy and water at the point of utilization including the prompt provision of connections, heating and lighting.
(3) The Purchaser shall ensure that at the place of installation all machine parts, apparatus, materials, tools etc. are properly stored. The Purchaser shall be under an obligation to provide adequate dry lockable rooms and to place at the disposal of the installation staff adequate working and rest areas including adequate sanitary facilities. Furthermore the Purchaser shall use all reasonable endeavours to protect and treat our property and our installation staff well at all times.
(4) Protective clothing and protective equipment which are required due to special circumstances at the installation site shall be provided by the Purchaser.
(5) Prior to the commencement of installation works the Purchaser shall provide unrequested all information concerning the position of hidden electricity, gas and water mains or similar supplies and the requisite structural drawings.
(6) Prior to the commencement of erection or installation works all materials and objects required shall be available at the erection or installation site and all preliminary works shall be sufficiently advanced in order that the assembly and installation works can be commenced as agreed and executed without interruption. Access roads and the erection / installation site shall be cleared and made level.
(7) Where assembly, installation or acceptance of the works is delayed for reasons for which we are not responsible, the Purchaser shall bear the reasonable cost of any waiting time and additional travel expenditure incurred by us or our installation personnel.
(8) The Purchaser shall on a weekly basis confirm to us the working hours of the installation personnel as well as completion of the assembly, installation and commissioning of the works.
(9) Any additional material or labour cost required which was not foreseeable at the time the order was placed shall, unless otherwise agreed, be invoiced separately.
§ 3 Custom Made Goods
(1) In relation to custom made goods ordered by the Purchaser and which cannot be utilised other than by the Purchaser, the Purchaser shall only be permitted to terminate such orders where he is entitled to terminate for cause and we are responsible for the grounds of such termination.
(2) Where the Purchaser fails to accept custom made goods we are entitled to dispose of the goods at the Purchaser’s cost provided that a reasonable deadline for acceptance has been set and expired.
§ 4 Acceptance
Where we are instructed to perform installation works the following shall apply:
(1) Where for the performance of works acceptance has been agreed, we shall be entitled upon completion – where appropriate prior to the completion date – to request acceptance of performance. The Purchaser shall accept performance within 12 working days of our request; an alternative deadline can be agreed where appropriate. Where requested self-contained works can be accepted separately. Acceptance shall only be refused pending the remedy of significant defects.
(2) Where no acceptance is required the works shall be deemed accepted upon the expiration of 30 working days after written notification of completion. Where no acceptance is required and the Purchaser has commenced operation, in whole or in part, the works shall be deemed accepted 6 days after the commencement of operation, unless otherwise agreed. The use of structural equipment parts for the continuation of the performance of works shall not be deemed acceptance for the purpose of this sub paragraph.
(3) Any reservations based on known defects or contractual penalties must be claimed by the Purchaser within the deadlines set out in sub paragraphs 1 and 2 of this clause.
(4) The risk of loss and destruction shall pass to the Customer upon acceptance insofar as it has not already passed in accordance with sub paragraph 1 of clause 6 of these Terms above.