Terms and Conditions
ALL DELIVERIES AND SERVICES PROVIDED BY THE COMPANIES:
HKS Dreh-Antriebe GmbH, 63607 Wächtersbach
HKS Dreh-Antriebe GmbH, 01904 Neukirch
are subject to these conditions and any other separate contractual agreements. The procurer's purchasing conditions in deviation to these are not part of the contract, even if known upon acceptance of order.
Unless agreed otherwise, a contract is concluded with the supplier's written confirmation of order.
The supplier's offers are based on the details (specifications) made by the interested party. The documents associated with offers, such as diagrams and drawings or specifications of weight and dimensions, are solely approximations unless specifically designated as binding. The supplier reserves the ownership and copyrights to cost estimates, drawings and other documentation; these may not be disclosed to third parties.
The supplier is obliged not to disclose plans to third parties which the buyer has designated as confidential unless the latter has given permission to do so.
II. SCOPE OF DELIVERY
The supplier's written confirmation of order is decisive for the scope of delivery.
Auxiliary agreements and amendments require written confirmation from the supplier.
III. PRICE AND PAYMENT
- Unless specifically agreed otherwise, prices apply ex works, including loading in the works, although excluding packaging. Value-added tax is added to the prices at the prevailing rate.
- Unless confirmed otherwise in writing, invoices are payable within 30 days from the date of invoice purely net. Prices do not include VAT which is added at the prevailing rate. When settling our invoices, deductions of discount are not recognised unless all due invoices have been paid.
In the case of orders with a total value of over € 30.000, appropriate instalment payments can be agreed in the confirmation of order for the times that the confirmation of order is received and upon notification of readiness to dispatch.
- Withholding payment or offsetting any of the procurer's counter claims which are disputed by the supplier is not permissible, unless the counter claims are undisputed or have been established by law.
- In case the payment deadline is overshot, interest is charged after the due date at a rate of 2% above the current European Central Bank discount rate. Default interest can be demanded at a rate of 4% above the European Central Bank discount rate or even to the extent of the demonstrable interest damage actually incurred.
- Remittance instructions, cheques and bills of exchange are only accepted after special agreement and then only to facilitate payment, not in place of fulfilment. Renegotiation and prolongation are likewise not regarded as fulfilment. Discount charges, levies on bills of exchange and collection charges are borne by the purchaser. The supplier assumes no liability for timely submission, protest, notification or return performance.
- The date on which we can dispose over the sum or it is credited to our bank account is decisive for the punctuality of payment. This applies in particular to the arrangements made in Para. 2.
IV. DELIVERY TIME
- The delivery time is agreed between the two contractual parties. The supplier's compliance with this requires that all commercial and technical questions are clarified between the contractual parties and that the procurer fulfils all the obligations to which it is subject, such as arranging for any official certifications or approvals required, issuing releases or making agreed down-payments. The delivery time is extended accordingly if this is not the case. It does not apply, however, if the supplier is responsible for the delay.
A further pre-requirement for compliance with the delivery date is that the supplier receives its own deliveries correctly and in good time. If delays appear likely, the supplier will notify of these as soon as possible.
Delivery deadlines are extended appropriately in case of industrial disputes, particularly strikes and lock-outs, likewise if unforeseeable hindrances occur which are beyond the supplier's sphere of influence, insofar as it can be shown that these hindrances affect the production or dispatch of the object of delivery. The same applies if such circumstances occur at our upstream suppliers, even if default has already occurred.
- Delivery deadlines are regarded as met upon dispatch of the object of delivery from the works or upon receipt of notification of readiness to ship.
- Part deliveries are permissible.
- If dispatch is postponed at the procurer's request, the supplier is entitled to invoice the actual costs incurred for storing the goods, if stored in the supplier's works at least 2 % of the invoice sum for each month. However, where flat-rate costs are charged, the procurer or purchaser is entitled to demonstrate that no extra expenses were actually incurred by the storage, or that these were much lower than the flat rate.
- Once a delivery period extended at the procurer's or purchaser's request as agreed above has expired, the legal provisions governing default of acceptance apply, unless the contract makes arrangements to the contrary.
- Claims to damages due to late delivery are excluded, unless the delivery is delayed because of a contractual infringement based on malice aforethought or gross negligence on the part of the supplier, one of its legal representatives or vicarious agents.
V. TRANSFER OF RISK AND RECEIPT OF GOODS
- Risk is transferred upon dispatch of the parts to the procurer, even if part deliveries are made or if the supplier has agreed to provide further services, e.g. assuming the costs of dispatch or transport to the site and erection. At the procurer's request, and for its account, the supplier shall insure the shipment against theft, breakage and damage during transport, and against fire, water and other insurable risks.
- If the shipment is delayed for reasons which the procurer is responsible, risk is transferred to the procurer on the date that readiness to ship is notified. However, at the procurer's request, and for its account, the supplier is obliged to arrange the insurance cover required by the procurer.
- Part deliveries are permissible, insofar as these are reasonable for the procurer.
- The procurer must receive and accept the objects delivered, even if these show minor defects, although without prejudice to the rights in Paragraph VII.
VI. RESERVATION OF OWNERSHIP
- The supplier reserves ownership to the objects it delivers until the claims from the purchase contract have been paid in full, likewise those of all other existing purchase contracts, and even those concluded at a later date. In case of running accounts, the reservation of ownership serves as security for the claim to the balance of the supplier.
- The procurer or purchaser must inform the supplier without delay of attachments made to the goods under reservation of ownership or of any other restriction imposed by third parties. The procurer or purchaser may not make prior attachments or collateral assignments.
- Extended and expanded reservation of ownership applies in accordance with the provisions below.
- The procurer or purchaser is entitled to sell the goods delivered by us in regular business transactions, on the proviso that its claims from the resale are transferred to us. These claims, along with all associated rights, are hereby assigned to us. If the reserved goods are sold by the procurer or purchaser together with other goods not acquired from us, the claim from the resale is assigned to us in the amount invoiced for our reserved goods.
The procurer or purchaser is entitled to collect claims from the resale until the supplier revokes this right, which he may do at any time. At the supplier’s request, however, the purchaser is obliged to inform the third party buyer of the assignment, to provide it with the information required to assert the supplier’s rights and to submit documents to it.
- The reserved goods are reprocessed for the supplier as manufacturer in the sense of § 950 BGB (German Law Gazette), without obligation on the part of the supplier. Reprocessed goods are regarded as reserved goods which the purchaser or procurer holds in safe custody for the supplier. If the purchaser processes, combines or mixes the reserved goods with third party goods to make a new object or mixed stock, the supplier acquires co-ownership to this in the ratio of the invoice value of the reserved goods to the total value of the new object or mixed stock. If the reserved goods are combined with other objects, and if this object thus belonging to the purchaser or procurer can be regarded as the main object in the sense of § 947 Para. 2 BGB, the purchaser then assigns its co-ownership to the supplier even now in the ratio of the invoice value of the reserved goods to the total value of the new main object.
- If the procurer or purchaser is culpable of conduct contrary to contract, in particular default of payment, the supplier is entitled to take back the reserved goods until its claim has been settled in full, whilst the procurer or purchaser is obliged to return the goods. Taking back the reserved goods does not represent a withdrawal from contract unless the supplier expressly declares this in writing.
- Neither assertion of the reservation of ownership nor the supplier's attachments to the reserved goods represent a withdrawal from contract.
- Should existing securities exceed the claims to be secured by more than 20%, the supplier will release securities of its choice.
- Should the reservation of ownership not be fully workable in this form for legal reasons, e.g. foreign transactions, the procurer is obliged to secure the supplier’s trade claim in an appropriate, legally effective manner, and to cooperate in the necessary action the supplier wishes to take to protect its rights of ownership or some other right to the object of delivery in its place.
VII. WARRANTY AND LIABILITY
- Should the object of delivery be defective for reasons which occur before the transfer of risk, then at the supplier’s discretion, in consideration of economic and technical factors, the supplier will either perform rework or make a new delivery. After two attempts at rework or replacement delivery have failed, the procurer or purchaser can, at its discretion, rescind the contract or demand a reduction in price.
- We must be notified of recognisable defects in writing without delay, although at the latest 8 days after receipt of the goods.
- The warranty term for our deliveries is 6 months from commissioning, although at the longest 12 months from the date the object of delivery left the works or from receipt of notice of readiness to ship, insofar as this is not contradicted by laws. Otherwise the warranty provisions regulated by law apply.
- The supplier's liability for third party manufactures is restricted to transferring our own claims to warranty, damages or liability. The supplier gives no warranty for the quality and resistance to wear of seals or sealing glands fitted.
- No warranty is given for damage which occurs for any of the following reasons:
- Improper use or use contrary to that intended,
- Faulty assembly or commissioning by the procurer or third parties,
- Natural wear and tear,
- Improper or negligent handling,
- Improper maintenance,
- Unsuitable operating materials,
- Replacement materials,
- Faulty construction work,
- Unsuitable construction ground,
- Chemical, electro-chemical or electrical influences insofar as the supplier bears no culpability for these.
- Furthermore, no warranty is given for defects caused by materials supplied by the procurer or by a design which it specifies.
- The warranty lapses in case of the causes of defects below:
- if the defects on the object of delivery is caused by outside forces or by the installation of third party components,
- if the procurer disregards the supplier's instructions for handling the object of delivery (e.g. operating instructions), and in particular does not properly perform or arrange for the prescribed inspection and maintenance work, and the original cause of the damage is due to the change brought about by irregular handling, an inspection not carried out or maintenance work not performed properly.
- The procurer's or purchaser's claims to damages from inadequate performance or non-fulfilment of contract, from culpability upon conclusion of contract, from auxiliary contractual obligations and inadmissible handling are excluded, unless we are liable because an assured characteristic is missing or the damage incurred by the procurer is caused by infringement of contract based on malice aforethought or gross negligence on the part of the supplier or one of its vicarious agents.
The same applies to consequential damage, in particular to claims to damages resulting from positive infringement of contract.
This restriction of liability applies in the same way to our vicarious agents.
- Legal defects
Should the use of the object of delivery lead to an infringement of protected commercial rights or copyrights in Germany, the supplier will ensure, at its own expense, that the procurer obtains the basic right of further use or shall modify the object of delivery in a manner acceptable to the procurer so that protected rights are no longer infringed.
If this is not possible at financially reasonable conditions or within an appropriate time scale, the procurer then has the right to withdraw from the contract. The supplier likewise has the right to withdraw from the contract if the aforesaid pre-conditions apply.
The supplier shall furthermore release the procurer from claims made by the owner of the rights which are undisputed or have been established under law.
- The supplier's obligations detailed under Section VII. 9 are conclusive, under the proviso of Section VIII.2 in the case of infringement of protected rights or copyrights.
- These obligations only exist if
- the procurer informs the supplier without delay of any claims lodged because of the infringement of protected rights or copyrights,
- the procurer supports the supplier to a reasonable extent in defending against the claims lodged, and/or enables the supplier to perform the modification work in accordance with Section VI. 7,
- the supplier is free to take all defensive action, including extra-judicial settlements,
- the legal defect is not due to an instruction issued by the procurer and
- the legal infringement is not attributable to the fact that the procurer has altered the object of delivery without proper authority or used this in a way not foreseen by contract.
- These obligations only exist if
The provisions of Sections VII and VIII.2 apply accordingly – to the exclusion of all other claims on the part of the supplier - if the object of delivery cannot be used by the procurer as foreseen by contract due to the culpability of the supplier on account of negligent or defective execution of suggestions or advice given before or after conclusion of contract, or due to the infringement of other auxiliary obligations under the contract (in particular instructions for operating and maintaining the object of delivery).
The supplier is liable for damages not arising on the object of delivery itself – regardless of whatever legal reason – solely in case of
- malice aforethought,
- gross negligence on the part of the owner / organs or top management,
- culpability for fatalities, physical injuries or harm to health,
- defects which the supplier has maliciously covered up or the absence of which it has guaranteed,
- defects in the object of delivery, insofar as product liability laws regulate liability for personal or material damages for objects in private use.
In case of culpable infringement of major contractual obligations, the supplier is also liable for gross negligence on the part of non-managerial staff and for slight negligence, although in the latter case limited to those damages typical for the contract which should normally have been foreseen.
Further-going claims are excluded.
IX. STATUTES OF LIMITATION
All the procurer's claims – regardless of the legal basis for these – expire by limitation
after 12 months. The periods regulated by law apply to claims to damages lodged under
Section VIII. 2 a - e. They also apply to defects in a construction work or to objects of delivery which were deployed in a construction work in accordance with their intended use and which caused the defect.
X. PLACE OF JURISDICTION AND APPLICABLE LAW
- If the procurer or purchaser is a registered trader, a legal entity under public law or a public law trust, then legal action to settle disputes arising from the contractual relationship must be lodged at the court responsible for the supplier's headquarters or its branch office which made the delivery. The same applies to legal action involving deeds, bills of exchange and cheques. The supplier is also entitled to pursue its claims at the procurer's or purchaser's headquarters.
- German law shall prevail exclusively over the relationship between ourselves and the procurer or purchaser.
XI. BINDING NATURE OF THE CONTRACT
- Should individual parts of these conditions be unworkable in full or in part, this has no effect upon the remaining provisions.
- The procurer's terms of trade which contradict these conditions are invalid. They are hereby expressly contradicted.
Date of issue: 26.09.2018