General conditions of sale of haacon hebetechnik gmbh (GCS)
(1) For contracts concluded between us and the customer for the manufacture and delivery of goods, in particular for general lifting technology, components for commercial vehicles, and lifting systems, the following General Conditions of Sale (GCS) shall apply exclusively. Our GCS shall apply exclusively. General terms and conditions of the customer that differ from, conflict with or supplement our GCS shall not form part of this
contract unless we have expressiy agreed that they shall apply. Our agreement to such general terms and conditions shall be required in all cases, even where, for example, we make a delivery to the customer unconditionally while being aware ofthe customer’s GTC.
(2) If the customer is an entrepreneur, then our Terms and Conditions shall apply for the entire duration of the current and future business relationship with the customer, even if no specific reference is made to these Terms and Conditions in a subsequent transaction.
2. Basis ofthe contract
(1) Our offers are non-binding and subject to change. The same shall apply where we have provided the customer with catalogues, technical documentation (e.g. drawings, plans, calculations, estimates and references to DIN standards), other product descriptions or documents – including documents in electronic form – in which we retain ownership and copyright.
(2) Documents relating to an offer, such as illustrations, drawings and information on weights and dimensions, are approximations only unless they are expressiy described as binding. We retain right of ownership and copyright in quotations, drawings and other documents, which must not be shared with third parties.
(3) A customer’s order for goods constitutes a binding contractual offer. Unless the order stipulates otherwise, we are entitled to accept this contractual offer within five working days after receiving it. We may confirm acceptance of the order either in writing (e.g. by issuing an order confirmation) or by delivering the ordered goods to the customer. Article Il. para. 4 shall apply.
(4) All agreements made between us and the customer in connection with a contract are based on these terms of sale, our written order confirmation and our declaration of acceptance.
(5) Individual agreements made with the customer in specific cases (including subsidiary agreements, additions and amendments) shall always take precedence over these GCS. Provided that there is no evidence to the contrary, the content of such agreements shall be determined by a written contract or our written order confirmation.
(6) Some of our products are manufactured to a customer’s specific requirements. Where the customer’s cooperation is required, the performance of our services shall be contingent our receiving the proper cooperation from the customer.
3. Prices and payment
(1) Unless specifically agreed otherwise, our prices are FCA 97986 Freudenberg am Main, Josef-Haamann-Strasse 6, Germany, Incoterms® 2020, or FCA 63920 Grossheubach, Industriestrasse 3, Germany, Incoterms® 2020. Packaging, delivery and shipping costs are only included in our prices where a separate agreement has been made with the customer to this effect. Value added tax at the statutory rate is added to the prices. Any
customs duties, fees, taxes and other official charges are payable by the customer.
(2) Any legally important declarations or notifications from the customer concerning the contract (e.g. notice of a time limit, defect, withdrawal from the contract or price reduction) shall be made in written or other tangible form (e.g. letter, email, fax). Legal requirements as to form and other evidence of authenticity, in particular in the event of doubt concerning the authority of the declaring person, shall not be affected. At the customer’s written request and expense, we shall insure the consignment against theft, breakage, transport, fire and water damage
and other insurable risks.
(3) Unless agreed otherwise, the amount owed by the customer shall be paid in full within 30 days of receiving our invoice.
(4) Should payment not be made within this period, the customer shall be in default. If a customer is in default of payment, we shall be entitled to demand interest from this time onwards at a rate of five percentage points above the base rate specified in section 247 ofthe German Civil Code (BGB). For legal transactions not involving any customer, the interest rate shall be 9 percentage points above the base rate specified in section
247 BGB. We reserve the right to claim additional damages for default. If the customer is a merchant, our claim to commercial default interest (under section 353 of the German Commercial Code [HGB]) shall not be affected.
(5) The minimum order value is €150.00 net, excluding VAT. On orders below this value, there is a small-purchase surcharge of 80.00 net per order.
(6) Our prices are based on the cost factors applicable at the time the contract is concluded. If, by the time of delivery — but not within four months of conclusion of the contract — drastic increases in the cost of materials, wages and or items occur, we shall be entitled to adjust the agreed prices by a reasonable amount to cover the increased costs.
(7) Any bills of exchange or cheques accepted by us under an express agreement in a specific case shall be considered conditional payment only. \We do not assume any guarantee with respect to presentation on time. In the case of payment by bill of exchange, the date payment is received is the day the bill of exchange is honoured. Any discount and ancillary charges will be charged to the customer.
(8) No interest shall be due on advance payments from the customer in the form of cash, etc.
4. Offsetting and right of retention
(1) The customer shall be entitled to offset against our claims only ifthe customer’s claims have been finally established in a court of law or are uncontested.
(2) To be entitled to offset against our claims under a contract, the customer must raise complaints or counterclaims under the same contract. The customer may only exercise a right of retention if the counterclaim is based on the same contract.
5. Delivery and performance times
(1) Our delivery deadlines and delivery time frames are non-binding only, unless we have expressiy agreed with the customer that they shall be binding.
(2) Delivery time frames agreed to be binding generally commence when the customer receives the order confirmation. Where an agreed deposit is required or services are to be provided by the customer, our delivery time frame shall commence only on complete and proper fulfilment of the customer’s contractual obligations. Should the customer fail to perform its services, or fail to perform them completely or properly, or be unable to
perform them, then the customer must notify us to this effect in writing, without delay and no later than 14 days before the scheduled delivery date. Article VI. para. 3 shall also apply.
(3) A delivery shall be deemed timely if the delivery item has left our plant, or the customer has been notified that it is ready for shipping, by the end of the delivery time frame.
(4) The delivery time frame shall be reasonably extended in cases of force majeure, in particular industrial action, strikes and lock-outs, fire damage, flooding, and infectious disease outbreaks (including epidemics and pandemics) for which the Robert Koch Institute has assessed the risk level as at least “moderate”, or in the event of other unforeseen obstacles that are beyond our control, where these obstacles demonstrably have a
significant impact on the completion or delivery of the item in question. The same shall also apply if these circumstances affect our sub-contractors. We shall likewise not be responsible for the above-mentioned circumstances ifthey occur during an already existing delay. We will notify the customer immediately of the start and end of such obstacles.
(5) Four weeks after a non-binding delivery date or time frame has passed, the customer may request that we make the delivery within a reasonable period. If we are responsible for failing to deliver by a delivery date or within a time frame agreed as binding, or if we are behind schedule for any other reason, then the customer must grant a reasonable additional period for us to make the delivery. If we allow this additional period to elapse without effect, then the customer shall be entitled to withdraw from the contract.
(6) Subject to the restrictions in articles IX., X. and XI. below, we shall be legally liable to the customer if the contract is for delivery on a fixed date, or if the customer is entitled to assert that, because of a delay in delivery for which we are responsible, its interest in the fulfilment of the contract has ceased.
(7) We shall be entitled to make partial deliveries or provide partial services at any time, as long as the customer can reasonably be expected to accept them.
8. Transfer of risk and receipt of delivery
(1) Any risk of loss or deterioration of the goods is transferred to the customer under Incoterms® 2020. If the goods are to be shipped, all risk of loss or deterioration of the goods as well as risk of delay is transferred to the carrier, haulier or other person or organisation entrusted with the shipment when the goods are handed over to them.
(2) Where the customer is required to perform acceptance under an agreement or by law, risk shall be transferred on acceptance. \NVhere the buyer is in default of acceptance, the goods shall be deemed to have been handed over or accepted.
(3) If the customer is in default of acceptance, fails to cooperate or does not cooperate in a timely manner, or if our delivery is delayed for other reasons for which the buyer is responsible, then we shall be entitled to demand compensation for the resulting losses including additional expenditure (e.g. storage costs).
9. Incoming goods inspection and complaints
(1) Immediately upon receipt of the goods, the customer must check the type, quantity and quality of the delivered contractual products. The inspection must cover all features required and requested for the use of the contractual products. Any damage occurring during transport must be reported to us without delay. If any loss of or damage to the goods is evident on external inspection, a clear report of this loss or damage must be made directly to the carrier of the goods.
(2) Any defects revealed by the inspection shall be reported immediately and in writing within three calendar days attthe latest. Ifa defect that was not discoverable by inspection at the time of receipt ofthe goods (a hidden defect) subsequently becomes evident, then the customer must notify us without delay once it becomes aware of the defect. The determining factor is when we receive the notification of said defect. Defects that are not
evident on external inspection must be reported within seven calendar days.
(3) If a complaint is made after this period, the goods shall be deemed free from defects for the purpose of contractual and statutory claims and rights. This does not apply to claims for damages based on intentional acts or arising under the German Product Liability Act (Produkthaftungsgesetz). Articles IX., X. and XI. remain unaffected.
10. Retention of ownership
(1) Until all our current and future claims from the contract and any ongoing business relationship (secured claims), have been paid in full, we retain ownership of the sold goods.
(2) Goods in which we retain ownership may not be pledged to third parties nor assigned as collateral before the secured claims have been paid in full. The customer must inform us without delay in writing if it has made an application for insolvency proceedings or if goods belonging to us are appropriated by third parties (e.g. through seizure).
(3) If the customer is in breach of the contract, in particular by failing to pay the due purchase price, we shall be legally entitled to withdraw from the contract and/or reclaim the goods of which we retain ownership. Our reclaiming the goods shall not entail simultaneous withdrawal from the contract. We are entitled to confine ourselves to reclaiming the goods while reserving the right to withdraw. If the customer fails to pay the due
purchase price, we shall be entitled to exercise the above rights only if we have first granted the customer a reasonable period for payment to no avail, or if such a period is not required by law.
(4) The customer is, until any revocation under (c) below, authorised to resell and/or process the goods in which we retain ownership in the course of normal business activities. In this case, the following provisions shall also apply.
(a) Retention of ownership applies to the full value of any products created by processing, mixing or combining our goods. We shall be deemed the manufacturers of any goods so created. \Vhere our goods are processed, mixed or combined with goods supplied by third parties who retain ownership of these goods, we shall acquire a share of ownership proportionate to the invoice value of our processed, mixed or combined
goods. Otherwise, the resulting product shall be treated the same as the delivered goods in which we retain ownership.
(b) In accordance with the previous paragraph, the customer shall immediately assign to us as collateral any claims against third parties arising from the resale of the goods or products, in their entirety or in proportion to our share of ownership. We shall accept these assigned claims. The obligations of the customer stated in para. 2 shall also apply to the assigned claims.
(c) The customer shall remain authorised to collect these claims on our behalf. We undertake not to collect the claims, provided that the customer meets its payment obligations to us, its ability to pay is unimpaired, and we have not asserted our retained ownership by exercising any of our rights under para. 3. If, however, we choose to collect the claims, then we can require the customer to disclose the assigned claims and their debtors to us, provide all information necessary for collection, hand over the relevant documents and inform the assigned debtors of the assignment of the claims against them. In this case we shall also be entitled to revoke the customer’s authorisation to resell or process the goods in which we retain ownership.
(d) If the realisable value of assigned collateral exceeds our claims by more than 10%, at the customer’s request we shall release collateral items of our choice.
11. Customer’s defect claims
(1) Unless otherwise specified, the customer’s rights in the event of material or legal defects (including incorrect or short deliveries, faulty installation and inadequate installation instructions) shall be in accordance with statutory provisions. In any case the special statutory provisions concerning final delivery of unprocessed goods to a user shall remain unaffected, even ifthe user has processed these goods (supplier’s recourse under section 478 BGB). Claims of supplier’s recourse shall be excluded if the defective goods have been processed by the customer or another entrepreneur, e.g. by installation in another product.
(2) All product descriptions and manufacturer’s information that are included in an individual contract, or had been published by us (in particular in catalogues or on our website) at the time the contract was concluded, shall be deemed to constitute an agreement concerning the quality of the goods. We do not however accept responsibility for public statements by third parties (e.g. advertising messages) that the customer has not
reported to us as crucial to its decision to buy.
(3) In general, we are not responsible for defects that the customer is aware of or grossiy negligentliy unaware of when the contract is concluded (section 442 BGB). In addition, before making defect claims, the customer must comply with its statutory duties to inspect goods and report defects (sections 377 and 381 HGB). If the customer does not properly inspect goods or report defects, our liability for any defect that was not
reported, not reported in time or not properly reported shall be legally excluded.
(4) Should a delivered item be defective, we may cure the defect by either, at our discretion, rectifying it (remedial measures) or delivering a defect-free item (replacement). Our right to refuse to cure a defect under statutory conditions shall remain unaffected.
(5) We are entitled to make fulfilment of our duty to cure defects conditional on payment of the purchase price by the customer. The customer shall however be entitled to withhold a reasonable portion of the purchase price appropriate to the defect.
(6) The customer must allow us the time and opportunity we need in order to fulfil our duty to cure the defect, in particular by transferring the goods complained of back to us for testing. Should we deliver a replacement, the customer is legally required to return the defective item to us. The obligation to cure a defect shall not extend to removing or reinstalling the defective item if we were not originally obliged to install it.
(7) Expenses required for testing and cure of defects, in particular transport, tolls, labour and materials costs and any removal or installation costs, shall be paid or reimbursed by us to the extent required by law, ifa defect is in fact present. Otherwise we may require the customer to refund the costs (in particular testing and transport costs) incurred as a result of the invalid defect claim, unless the fact that the goods were without defects would not have been evident to the customer.
(8) If we have made two attempts to cure the defect to no avail, then the cure shall be deemed to have failed. If the attempted cure of the defect has failed, or if a reasonable period for cure set by the customer has elapsed without result or no such period is required by law, the customer may withdraw from the contract or reduce the price. However, the customer shall have no right of withdrawal in the event of a minor defect.
(9) Even where goods are defective, the customer shall have only the grounds to claim compensation for damages or for reimbursement of expenditure made to no avail provided for in section X. All other claims are excluded.
12. Rights in the event of delay, other liability
(1) Unless otherwise provided in these GTC including the Conditions below, we shall be legally liable for breaches of our contractual and non-contractual duties.
(2) We shall be liable for damages – irrespective of their legal basis — if we are at fault for an intentional act or gross negligence. In the case of simple negligence, we shall be liable, subject to the statutory provisions on liability (e.g. those on care in one’s own affairs and minor breaches of contract), only for
(a) loss arising from injury to life, limb or health, and
(b) loss arising from a breach of a major contractual obligation (an obligation that must be fulfilled in order for the contract to be properly implemented at all, and on the fulfilment of which the parties to the contract normally rely and should be able to rely), in which case, however, our liability shall be limited to foreseeable and typically occurring damage.
(3) The restrictions on liability arising from para. 2 shall also apply to third parties and breaches of contract by persons for whom we are legally responsible (even where these breaches are to their benefit). They shall not apply where a defect has been maliciousiy concealed or a guarantee of the quality of the goods has been assumed; nor shall they apply to any customer claims under the Produkthaftungsgesetz.
(4) If any loss is caused by a lack of the quality or durability guaranteed by us, without however any harm to the goods themselves, then we shall only be liable for this if the risk of such loss is clearly covered by our guarantee of quality and durability.
(5) In the event of a breach of contract other than a defect, the customer shall be entitled to withdraw from or cancel the contract only if we are responsible for the breach. A customer’s unrestricted right of withdrawal from the contract (in particular under sections 650 and 648 BGB) is excluded.
(6) For the sake of clarity, it is agreed that there are no grounds for guarantee claims in the case of unsuitable or incorrect use of the product, incorrect commissioning by the customer or a third party, natural wear and tear, or incorrect or negligent handling (including any modifications or maintenance work). The same shall apply to the use of unsuitable operating resources or replacement materials, or in the event of chemical,
electrochemical or electrical effects for which we are not responsible.
13. Limitation of claims
(1) Claims by the customer due to material or legal defects under section 438, para. 1, no. 3 BGB shall lapse one year from the date of handover or delivery of the purchased object to the customer. Where an agreement requires acceptance to be performed, the limitation period shall commence on acceptance.
(2) The same shall not apply however to consumer claims for defects, compensation claims arising from injury to life, limb or health, or compensation claims for loss due to gross negligence or intentional act.
(3) Ifthe goods are a building or an item that is normally used for construction and has caused a defect in a building (a building material), the limitation period shall be five years from the date of delivery, as required by statute (section 438, para. 1, no. 2 BGB). Other special statutory rules on limitation (in particular section 438, para. 1, no. 1 and para. 3 and sections 444 and 445b BGB) shall remain unaffected.
(4) The above-mentioned limitation periods in the law on the sale of goods shall apply to both contractual and extra-contractual customer claims for damages based on a defect in the goods, except in specific cases where applying the normal statutory period of limitation (sections 195 and 199 BGB) would result in a shorter period. The customer’s claims for damages under section X. para. 2, sentence 1 and sentence 2(a) and such
claims under the Produkthaftungsgesetz shall be limited exclusively by the statutory limitation periods.
14. Final provisions
(1) These GTC and the contractual relationship between us and the customer shall be governed by the laws of the Federal Republic of Germany; application of the UN Convention on Contracts for the International Sale of Goods shall be excluded.
(2) Insofar as the law allows, the legal venue for all disputes arising from the contractual relationship is our corporate headquarters at 97903 Collenberg-Kirschfurt (office address: Josef-Haamann-Strasse 6, 97896 Freudenberg, Germany). However, we are also entitled to take legal action at the customer’s general legal venue.
(3) It is agreed that, insofar as the law allows, Freudenberg shall be the place of performance for all obligations under this contract.
(4) Oral agreements or changes to these Conditions must be confirmed by a written agreement in order to become effective.
(5) Should one or more provisions of these General Terms and Conditions become ineffective, in whole or in part, or contain a loophole, the effectiveness of the remaining clauses shall remain unaffected.
Valid from 09/2021