General Terms and Conditions of Sale and Delivery

HWR Spanntechnik GmbH
D–28876 Oyten
November 2014

1. Offer, Contract Conclusion and Contract Contents

Our General Terms and Conditions of Sale and Delivery apply exclusively; terms and conditions differing from or contrary to our General Terms and Conditions of Sale and Delivery will not be recognized by us, unless we expressly agree to their application. Our General Terms and Conditions of Sale and Delivery will even apply if we perform the delivery to the buyer unconditionally despite knowledge of general terms and conditions of the buyer differing from or contrary to our General Terms and Conditions of Sale and Delivery.
Unless expressly described as binding, our offers are non-binding. Contract conclusion requires our written confirmation and performance/delivery of the contract’s contents. In case of performance/delivery without undue delay without confirmation, the invoice will serve as order confirmation.
Our General Terms and Conditions of Sale and Delivery only apply to entrepreneurs in the sense of Section 14 of the German Civil Code [Bürgerliches Gesetzbuch, BGB].
Costs for producing drawings for special constructions must be borne by the buyer if the offer does not result in an order for reasons for which we are not responsible.
All information about weight, dimensions, performance and technical data provided in our print material, catalogs, price lists or other contractual documents merely represent approximations, unless expressly described as binding.
Construction and form changes to the contractual object remain reserved if there will be no unreasonable changes for the buyer.
Documentation consists of an instruction manual with an assembly drawing, a parts list labeling wear and replacement parts and assembly instructions. In German and English. This free documentation will be delivered either in paper or digital form. If digital, drawings, parts lists and text will be provided in PDF format. Further documentation can be provided for a fee or requires a special agreement.
For tests involving certain temperatures, times and other measurement or standard values, the measuring method must be specified and recognized by both sides prior to delivery. If there is no such specification, our measurement methods will be applied.
Samples will only be provided at additional cost.
Assurances, side agreements and contract changes must be issued in written form to be effective. This requirement cannot be waived.
Orders placed are irrevocable, unless the supplier agrees to the cancelation in writing.
For export transactions, deliveries will be performed at the conditions specified in the order confirmation. In addition, the International Commercial Terms (Incoterms 1953) of the International Chamber of Commerce for interpreting commonly used contract forms apply in their respectively version.
In addition to our General Terms and Conditions, our “product information,” technical leaflets and other product-specific publications apply and must be observed in their respectively valid version.

2. Prices

With a separate written agreement, prices in the Federal Republic of Germany are valid “ex works” recipient plus VAT. For export transactions, the delivery object will be sold “ex works,” unless another form of sale is specified by the contract.
Please note that we will only perform the delivery if requested by the customer. Section 5 will remain unaffected.
We invoice the prices valid at the time of contract conclusion and based on the cost factors applicable at this time. If these cost factors (especially materials, wages, energy, etc.) change between contract conclusion and the agreed delivery period, we may adjust prices correspondingly. For export transactions, the supplier has the right to annual or adjust the prices for the non-performed part of the order in case of depreciation of the currency in which the contract is concluded.
If concluded ex works, the goods will travel ex works at the buyer’s expense and risk. For all other deliveries, Incoterms 1953 apply in their respectively valid version to insurance and risk bearing.
For parts/products produced according to the buyer’s specifications, we will report our production quantity to the buyer. The buyer must accept the quantity confirmed to him.
Excess or short deliveries of up to 5% or, for special tools, up to 10%, though no less than 2 units, are permissible. The respective delivery will be invoiced.

3. Payment Conditions

Except in case of a separate agreement, payments are due without deduction ex paying agent within 10 days of the invoice date—including for partial deliveries.
We are not required to accept bills of exchange or checks. If we accept bills of exchange or checks in individual cases with prior agreement, this will only be done for purposes of performance while invoicing discount and collection expenses which must be settled by the customer in cash without undue delay. Bills of acceptance and checks will be credited following their redemption. Bills of exchange and checks will be accepted without prejudice to subsequent payment obligations. We will not be liable for timely submission, notification and returns of or objections to bills of exchange in case of non-redemption.
If the target is exceeded, interest will be charged corresponding to the credit costs determined by the banks, though at least 8% above the respective base interest rate of the ECB.
If a bill of exchange or check is not redeemed in time or if a payment target is exceeded, all outstanding claims at this time, including deferred claims and claims for which bills of exchange or checks have been issued, will become due immediately.
The buyer is only entitled to offsetting rights if the buyer’s counterclaims are uncontested and have been legally established and recognized by us. The buyer may exercise rights of retention if the buyer’s counterclaims are based on the same contractual relationship.
Payments for export transactions must be made in compliance with the agreed payment conditions.
Transaction costs, especially bank fees for foreign transfers to us, must be borne by the principal.

4. Delivery Period

The start of the delivery period specified by us requires all technical questions to have been settled. Delivery dates stated by us are non-binding and merely represent projected delivery dates.
Compliance with our delivery obligations requires adequate and on-time performance of the buyer’s obligations, especially of the agreed payment conditions. The defense of contractual non-performance remains reserved. This right also consists of non-fully performed obligations from previous deliveries.
The delivery period will commence upon the order confirmation, though not before submission of the documents, permits, approvals, etc., to be provided by the seller or before receipt of agreed advance payments.
If a fixed delivery date is agreed, the supplier must provide the delivery by this date. The delivery period will be met if the delivery object leaves the facility or if shipping readiness is reported before this period expires. On-time and correct self-delivery remains reserved. If the buyer changes parts of the delivery, the delivery period will only commence after the changes are confirmed.
Force majeure, war, unrest, strikes, lockouts or measures by authorities that, irrespective of their reason, prevent delivery and shortages of raw materials and means of transportation and theft—including theft that affects suppliers—will release the supplier from the obligation to perform the delivery within the agreed period. The buyer will be informed about such events and their projected effects without undue delay.
Deliveries prior to the expiration of the delivery period and in appropriate parts are permissible.
Compliance with delivery periods requires the fulfillment of all of the buyer’s contractual obligations.
In case of delivery delays or impossibility, Section 10 will apply.

5. Transfer of Risk and Acceptance

Risk will be transferred to the buyer, at the latest, when the delivery parts are dispatched, even in case of partial deliveries or if we perform additional services, e.g., shipping costs or delivery and setup.
If requested by the buyer, we will insure the shipment against theft, breakage and transportation, fire and water damage and other insurable risks at the buyer’s expense.
If shipping is delayed due to circumstances for which the buyer is responsible, risk will be transferred to the buyer on the shipping readiness date; however, we must provide the insurance coverage requested and paid for by the buyer.
Delivered objects must be accepted by the buyer even if they display insignificant defects and without prejudice to the rights under Section 8.

6. Acceptance Default and Call-Off Orders

If the buyer does not accept the delivery object on time, we may grant an appropriate grace period after which we may otherwise dispose of and deliver the delivery object to the buyer with an adequate extended delivery period. Our rights under Section 326 of the German Civil Code to withdraw from the contract and obtain compensation for non-performance remain unaffected.If we exercise damage claims due to non-performance, we may obtain 25% of the agreed price plus VAT in compensation. We reserve the right to exercise higher damage claims based on the actual damage.
Call-off orders confirmed by us must—unless agreed otherwise—be accepted within 1 year of the order date. The same applies in case of postponement or subsequent “call-off” conversion. Section 6.1 applies correspondingly to uncalled orders.

7. Reservation of Title

We will retain title to delivery objects (reserved goods) until all of our claims against the buyer under the business relationship have been satisfied. If the value of all security rights to which we are entitled against the buyer exceeds the value of all secured claims by more than 10%, we will release a corresponding part of the security rights if requested by the buyer.
While we retain title, pledges and security transfers are prohibited to the buyer and resales are only permitted to resellers through the ordinary course of business under the condition that the reseller will receive payment from the reseller’s customer or will require title to only be transferred to the customer after the customer satisfies the customer’s payment obligations.
In case of seizure, attachment or other disposal or intervention by third parties, the buyer must inform us without undue delay so that we can file suit under Section 771 of the German Code of Civil Procedure [Zivilprozessordnung, ZPO]. If the third party is unable to reimburse us for our court and out-of-court costs for our suit under Section 771 of the German Code of Civil Procedure, the buyer will be liable to us for any resulting deficit.
The buyer must treat the purchase object diligently; the buyer must especially insure the delivery object adequately against fire and water damage and theft at the object’s replacement value at the buyer’s expense. The buyer must have any necessary maintenance and inspection work performed in time at the buyer’s expense.
In case of breaches of duty, especially payment default, by the buyer, we may withdraw from the contract and take back the delivery object which the buyer must hand over. Taking back the delivery object or exercising our retention of title does not require withdrawal by the supplier; these actions or our seizure of the reserved goods do not represent contract withdrawal, unless expressly declared by us.
If the buyer resells the purchase object through the ordinary course of business, the buyer must already hereby assign any claims for the final invoice amount (including VAT) or to which the buyer is entitled against his buyer or third parties due to the resale, irrespective of whether the purchase object is resold without or following further processing. The buyer will remain authorized to collect this claim even after the claim has been assigned. Our authorization to collect the claim will remain unaffected. However, we will not collect the claim as long as the buyer fulfills his payment obligations for the collected revenue and is not in default and, especially, insolvency proceedings are not requested for the buyer’s assets and the buyer does not suspend payments. Should this be the case, we may require the buyer to disclose the assigned claims and their debtors and all information necessary for collection and provide all corresponding documents to us and inform the debtors (third parties) about the assignment.
If the buyer processes or modifies the purchase object, the buyer will do so for us. If the purchase object is processed with other objects not owned by us, we will acquire co-ownership of the new object for the ratio of the value of the purchase object (final invoice amount, including VAT) to the other processed objects at the time of processing. The same applies to the object produced through the processing as for delivered reserved goods.
If the purchase object is inseparably mixed with other objects not owned by us, we will acquire co-ownership of the new object for the value of the purchase object (final invoice amount, including VAT) to the other mixed objects at the time of mixing. If the mixture is so that the buyer’s object is considered the main object, the buyer must transfer co-ownership to us proportionately. The buyer must store the solely or co-owned object created thereby for us.

8. Material Defects

We will be liable for material defects as follows:

All parts or services that display defects during the limitation period—irrespective of the length of operation—will, at our discretion, be rectified, newly delivered or newly performed free of charge if the cause of the defect was already present at the time of the transfer of risk.
Material defect claims will expire after 12 months. This period will commence upon the transfer of risk (Section 6).
The buyer must report the material defect to us in writing without undue delay.
If defects are reported, payments of the buyer may be retained to an extent in appropriate relation to the material defect. The buyer may only withhold payment when reporting a defect over whose legitimacy there can be no doubt. In case of illegitimate deficit reports, we may obtain reimbursement for the expenses incurred by us from the buyer.
We must always be given an opportunity to provide rectification within an appropriate period.
If rectification fails, the buyer may—without prejudice to other damage claims—withdraw from the contract or reduce payments. The buyer may only obtain reimbursement for futile expenses if we cause the defect through intent or gross negligence.
Defect claims not are established for insignificant deviations from agreed characteristics, insignificant impairments of usability, natural wear or damages caused after the transfer of risk by incorrect or negligent treatment, excessive use, unsuited equipment or special external influences not specified by the contract or through non-reproduceable software errors. Defect claims will not be established for inappropriate changes or maintenance work by the buyer or a third party or for the resulting consequences. The same applies to non-compliance with our handling specifications or other instructions and failure to provide proper maintenance.
Claims of the buyer for expenses necessary for rectification, especially transportation, travel, work and material costs, are excluded if expenses increase because the delivery object is subsequently moved to a location other than the buyer’s establishment, unless such movement is part of the object’s intended use.
Legal recourse claims of the buyer against us will only be established if the buyer does not conclude agreements that exceed legal defect claims with his buyers.
Section 9 applies correspondingly to damage claims. Material defect claims other than or that exceed those under this Section or Section 9 are excluded.

9. Industrial Property Rights, Copyrights and Legal Defects

Unless agreed otherwise, we are only required to perform the delivery free from industrial property rights and copyrights of third parties (hereinafter: property rights) in the country of the delivery destination. If a third-party exercises legitimate claims against the buyer based on property rights infringements caused by contractually used deliveries performed by us, we will be liable to the buyer as follows for the period specified in Section 8.2:

We will, at our discretion and expense, either obtain usage rights for the respective deliveries, change the deliveries to prevent property rights infringements or replace the delivery. If we are unable to do so under reasonable conditions, the buyer may exercise legal withdrawal or payment reduction rights. The buyer may only obtain reimbursement for futile expenses in case of intent or gross negligence by us. Our obligation to provide compensation for damages follows Section 10.
Our above-stated obligations only apply if the buyer informs us in writing without undue delay about the claims exercised by the third party and does not recognize the infringement and if all defense measures and settlement negotiations remain reserved to us. If the buyer suspends usage of the delivery due to damage-reducing or other compelling reasons, the buyer must inform the third party that this usage suspension does not represent recognition of the property rights infringement.
Claims of the buyer are excluded if the buyer is responsible for the property rights infringement.
Furthermore, claims of the buyer are excluded if the property rights infringement is caused by special requirements of the buyer, applications unforeseeable to us or changes to or use of the delivery by the buyer with products not delivered by us.
In case of property rights infringements, Subsections 8.4, 8.5 and 8.9 apply correspondingly to the buyer’s claims under Section 9.
Claims of the buyer exceeding or other than those under this Section 9 against us or our vicarious agents based on legal defects are excluded.

10. Total Liability

Damage claims of the buyer—irrespective of the legal nature of the exercised claims—are excluded.
However, this does not apply to:
a) Damage caused by violations of essential contractual obligations. However, in case of simple negligence, damage liability will be limited to foreseeable and typical damage.
b) Damage caused by injuries to life, limb or health for which we are responsible.
c) Other damage based on intentional or grossly negligent breaches of duty caused by us or by our legal representatives or vicarious agents.
d) Damage caused by impossibility or incapacity.
The above regulations do not involve changes to the burden of proof to the buyer’s detriment.
Liability under the German Product Liability Act [Produkthaftungsgesetz, ProdHaftG] remains unaffected.
If liability for damage towards us is excluded or limited, this also applies to personal liability for damage of our employees, commercial agents and vicarious agents.

11. Cooperation Obligations of the Buyer

The buyer’s cooperation obligations concluded expressly or implicitly in the contract must be performed without special remuneration, unless expressly agreed otherwise.
The buyer must inform us in time about any matters due to which our stock and products we provided based on the production capacities reported to us cannot be used or cannot be used fully. The buyer must take over any remaining stock and, if necessary, bear any destruction costs in case of premature changes to the buyer’s disposition. This also applies to products we ordered with minimum order quantities about which we informed the customer in advance.
The buyer must guarantee that the products he supplies for processing are suitable for this. We are not required to tests the characteristics and suitability for processing of products delivered by the buyer. As part of existing business relationships and after a processing object has been inspected, tested and approved, the buyer must inform us in writing without solicitation about any product changes. In case of ongoing processing of objects, the buyer must continue to inspect objects to be processed by us for deviations and changes which must be reported to us for every change to production conditions at the buyer’s establishment, especially replacements of tools or machines or when introducing new production processes.
We are not required to review the accuracy of material selections or instructions or other regulations of our buyers.
The buyer must therefore review any instructions he issues to us and the quality of materials specified for or provided to us concerning compliance with legal and technical regulations.
If the buyer defaults on his provision or cooperation obligations despite receiving written notice, we may exercise our corresponding legal rights.
Goods may only be returned with the supplier’s express consent. Goods must be returned in their original packaging freight prepaid stating the order number and the delivery date. Goods must be in their original, i.e., undamaged condition. We will charge 20% of the goods’ value, though at least €50.00 plus VAT, for processing expenses. The supplier may charge greater expenses to the buyer in exchange for corresponding proof.

12. Place of Fulfillment and Place of Jurisdiction/Other Provisions

The place of fulfillment and payment is our company’s registered office in Oyten, Germany.
The contractual relationship is governed exclusively by the law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG or “Vienna Convention”) is excluded.
If the buyer is a merchant, a legal person under public law or a special fund under public law, suits concerning any disputes under the contractual relationship must be filed at the competent court of our head office. We may also file suit at the buyer’s head office.
Should a regulation of these General Terms and Conditions of Sale and Delivery be invalid for any reason, this will not affect the validity of the remaining regulations.
We will save your data in compliance with Section 23 of the German Federal Data Protection Act [Bundesdatenschutzgesetz, BDSG]