General Terms and Conditions
I. Scope of application
These General Terms and Conditions (T&C) shall apply to contracts concluded between Hächler GmbH and its customers (Client). They shall also apply to all future deliveries, services or offers to the Client, even if they are not agreed again separately. Conflicting or different terms and conditions of a customer will not be accepted unless Hächler GmbH expressly agrees to the application thereof in writing.
II. Offer
Offers made by Hächler GmbH are not binding and are subject to change without notice until Hächler GmbH has confirmed the order in writing. The documents pertaining to an offer, such as illustrations, drawings, indications of weight and measurements, are only approximate unless they have specifically been described as binding. Hächler GmbH reserves title to and copyright in cost estimates, drawings and other documents; consequently, these may not be made available to third parties.
III. Scope of delivery
The written order confirmation by Hächler GmbH shall determine the scope of delivery. In the case of customized products, Hächler GmbH reserves the right to supply up to 10% more or less than the quantity ordered for reasons relating to production, if the number of units is less than ten, two units at the most.
IV. Price und payment
1. Prices apply to the scope of performance and delivery specified in the order confirmations. Additional or special services are charged separately. Prices are in euro “Ex Works” plus packing, statutory value-added tax, and in the case of export deliveries plus customs, as well as charges and other public dues.
2. Unless agreed otherwise, invoices made out by Hächler GmbH shall become due for payment within 10 days of receipt thereof by the Client without any deduction. Any bank charges that may apply shall always be paid by the Client.
3. The Client shall generally not be entitled to offset against claims of Hächler GmbH unless the counterclaims concerned are undisputed or have been recognized by declaratory judgment in the course of a legal dispute.
V. Delivery time
1. The period of delivery will commence when the order confirmation is sent but not before the documents, permits, approvals to be procured by the Client have been provided, an agreed down payment has been received and technical or commercial details have been clarified if required.
2. The period of delivery shall be deemed to be observed if, before its expiry, the delivery item has left the works or Hächler GmbH has notified the Client that it is ready for dispatch.
3. The period of delivery shall be extended accordingly if delays are caused by force majeure or other events that are not foreseeable at the time of concluding the contract (e.g. breakdowns of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, lack of labour, energy or raw materials, difficulties in obtaining the necessary official permits, pandemics or epidemics, administrative measures or failure to supply, incorrect or unpunctual supply by suppliers despite a congruent covering transaction entered into by Hächler GmbH) for which Hächler GmbH is not responsible. With regard to an extension of the period of delivery, it is always decisive whether the obstacles concerned resulted in a delay in completion or delivery of the delivery item. This also applies if such delays are experienced by subcontractors of Hächler GmbH. Hächler GmbH shall inform the Client of the beginning and end of such obstacles without delay.
4. If, at the Client’s request, shipment takes places at a later time than agreed by contract, Hächler GmbH will charge the costs incurred as a result of storage – if stored at the works of Hächler GmbH, 0.5% of the amount of invoice – for each month or part thereof one month after notification of readiness for dispatch. Hächler GmbH is entitled to make other use of the delivery item or to supply the Client subject to a reasonable, extended period after setting a reasonable time limit and after expiry thereof without result.
5. Observance of the period of delivery presupposes that the Client has fulfilled its contractual obligations.
VI. Shipment, passing of risk and acceptance
1. In the case of delivery, shipment is effected ex works of Hächler GmbH for the Client’s account and risk. Hächler GmbH is entitled to effect part deliveries. If delivery cannot be effected on the agreed date because of circumstances for which the Client is responsible,
the risk shall pass to the Client at the time when the Client receives notification of readiness for dispatch.
2. The Client must accept delivery or performance without culpable delay after completion/readiness for dispatch has been notified. This shall also apply to any part performance.
VII. Reservation of title
1. Hächler GmbH reserves title to the delivery item until receipt of all payments under the relevant contractual relationship.
2. Hächler GmbH is entitled to insure the delivery item against theft, burglary, damage caused by fire or water and other damage at the expense of the Client unless the Client can prove that it has taken out such insurances itself.
3. The Client may neither pledge the delivery item nor assign it by way of security. In the event of attachments and/or seizures or other disposals by third parties, the Client must notify Hächler GmbH thereof without delay.
4. In the event of any conduct on the part of the Client that is in violation of the contract, especially default in payment, Hächler GmbH will be entitled to take back the delivery item after a previous term for payment has expired without result and the Client will be obligated to return the delivery item. Assertion of reservation of title and attachment of the delivery item by Hächler GmbH shall not be deemed a rescission of the contract.
5. In the event that the Client’s claims arising from a resale of the delivery item are included in a current account, the Client will assign its claims in this regard to Hächler GmbH in the amount of the purchase price, including value-added tax, that was agreed for the resold goods.
VIII. Liability for defects in delivery
Notwithstanding paragraph 4 below, Hächler GmbH shall be liable for defects in delivery as follows, to the exclusion of other claims:
1. All parts which turn out to be unusable within twelve months (in the case of machines used on a shift system, within six months) of being put into service due to a circumstance occurring prior to the passing of risk shall, at Hächler GmbH’s option, be repaired (rectification of defects) or replaced (substitute delivery) free of charge. Hächler GmbH must be notified of such defects in writing without delay. Replaced parts will become the property of Hächler GmbH. If shipment, installation or putting into service is delayed through no fault of Hächler GmbH, the warranty obligation will nevertheless expire no later than twelve months after the risk has passed.
2. Otherwise, the Client’s right to assert claims based on defects generally becomes statutebarred within twelve months.
3. No warranty is given for any damage incurred for the following reasons: inappropriate or improper use, faulty assembly or putting into operation by the Client or third parties, natural wear and tear, faulty or negligent handling, unsuitable equipment, substitute materials, chemical, electrochemical or electrical influences, unless these are attributable to the fault of Hächler GmbH.
4. The Client must give the required time and opportunity to carry out the rectifications of defects and substitute deliveries which, at the discretion of Hächler GmbH, seem necessary. Unreasonably short time limits set by the Client do not entitle the Client to substitute performance.
5. Of the immediate costs incurred as a result of rectification of defects or substitute delivery, Hächler GmbH shall – insofar as the complaint proves to be justified – bear the costs of the replacement including shipment as well as the reasonable costs of removal and installation. If, in any specific case, it is reasonable to request so, Hächler GmbH will also bear the costs of any required provision of its fitters and auxiliary staff. Otherwise, the Client shall bear the costs.
6. The warranty period for a delivery item will be extended by the duration of an interruption of business caused by rectifications.
7. In the event of any changes or repairs carried out by the Client or third parties in an improper manner without the prior consent of Hächler GmbH, liability for the consequences resulting therefrom shall be excluded.
8. Further claims of the Client, especially for compensation for any damage not affecting the delivery item itself, shall be excluded. This shall not apply in the case of intent and gross negligence and in the case of a culpable breach of material contractual obligations. In the event of a culpable breach of material contractual obligations, Hächler GmbH shall only be liable for the reasonably foreseeable damage that is typical of contracts of this kind, except in cases of intent and gross negligence.
IX. Special provisions regarding special-purpose machines
1. If a delivery item tailored to the special requirements of the Client is concerned that Hächler GmbH has not previously manufactured in that form for the specified purpose and if the Client is aware of that, the following special provisions shall apply:
2. If periods of delivery or delivery dates are exceeded due to unforeseen difficulties of a constructional or other technical nature, a delay in performance will only occur after expiry of a time limit considering the special circumstances.
3. Irrespective of the agreed performance data, the delivery item shall be ready for acceptance if it can deliver an adequate performance for the Client in consideration of the respective technical difficulties of the material to be processed and the useful effect in economic terms. Insofar as the delivery item that is ready for acceptance fails to achieve the agreed performance data, the Client will only have a right to reduction of the price if this is to be regarded as reasonable after weighing all circumstances of the individual case in good faith.
4. If any preconditions for performance of the contract given upon conclusion of the contract or assumed by Hächler GmbH without gross negligence have changed so substantially – especially due to new technical findings or experiences – that performance cannot be demanded from an economic point of view, Hächler GmbH will be entitled to rescind the contract. Claims for damages on the part of the Client shall be excluded in this respect.
X. Rescission and other liability
1. The Client may rescind the contract if it becomes definitely impossible for Hächler GmbH to effect the entire performance prior to the passing of risk. The same applies in the case of subjective inability. The Client may also rescind the contract if, when similar items are ordered, part of the delivery becomes impossible and the Client has a legitimate interest in rejecting a part performance. If this is not the case, the Client may reduce its consideration accordingly.
2. If there is a delay in performance and the Client gives a reasonable period of grace, stating expressly that it will refuse to accept performance after expiry of said period, and if such period of grace is not observed, the Client shall be entitled to rescind the contract.
3. If impossibility occurs during default in acceptance or through the Client’s fault, the Client will remain obligated to give consideration.
4. Furthermore, the Client has a right to rescind the contract if a period of grace given by it for rectification of defects or substitute delivery with regard to a defect for which Hächler GmbH is responsible under these General Terms and Conditions has expired without result through the fault of Hächler GmbH. The Client also has a right to rescind the contract in other cases of failure on the part of Hächler GmbH to remedy defects or effect a substitute delivery.
5. All other claims of the Client over and above the foregoing, especially to cancellation or reduction of the price as well as for compensation for damage of any kind, on whatever legal ground, also for damage not affecting the delivery item itself, shall be excluded. This exclusion of liability shall not apply in the case of intent or gross negligence, to injury to life, body or health, under the provisions of the German Product Liability Act and in the case of a culpable breach of material contractual obligations. In the event of a culpable breach of material contractual obligations, Hächler GmbH shall only be liable for the reasonably foreseeable damage that is typical of contracts of this kind.
XI. Place of performance, place of jurisdiction, severability
1. The place of business of Hächler GmbH shall be the place of performance.
2. Norden in the district of the Regional Court (Landgericht) in Aurich shall be the exclusive place of jurisdiction.
3. The law of the Federal Republic of Germany, to the exclusion of international standard law, in particular the UN Sales Convention, shall apply to these T&C and the contractual relationship between Hächler GmbH and its customers.
4. Should individual provisions of these General Terms and Conditions be or become invalid, the other provisions shall not be affected thereby. Any collateral agreements and changes must always be confirmed in writing.
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