CONNECTIONS TO RELY ON.
General Terms of Sale – INTERNATIONAL
HAIDRO GmbH
I. Scope of Application, Exclusion of other Terms, Conclusion of Contract, Written Form
These Terms are exclusively applicable to all contracts, agreements and provisions concerning deliveries and services (“Transactions”) of HAIDRO GmbH (“Supplier“), with customers abroad (“Customers“), unless otherwise agreed between Supplier and Customer (“Parties”) in accordance with these Terms (for Transactions with national customers please see the General Terms of Sale – INTERNATIONAL, (www.haidro.com/gtc). These Terms apply for Customers who are commercial companies, corporate entities under public law, special funds under public law and/or other merchants (acting in the course of commercial activity or self-employed activity). In case of ongoing business relations these Terms also apply to all future Transactions.
General terms or conditions of Customer do not apply unless otherwise agreed or explicitly accepted by the Supplier or in compliance with these Terms of the Supplier; this also applies if the Supplier conducts a Transaction without reservation.
Contracts are concluded through Supplier´s confirmation of Customer’s order; such confirmation shall be in written form or in text form (including EDI, e-mail). In case of doubt, manner and extent of Transactions shall be determined by the Supplier´s order confirmation. In the absence of such order confirmation a contract is concluded upon Customer's acceptance of deliveries and services at the latest, whereby such contract shall be determined by these Terms and the Supplier´s offer.
Modifications of these Terms upon conclusion of contract have to be made in written form or in text form (including EDI, e-mail); this also applies for deviations from this formal requirement as well as for changes after a conclusion of contract.
II. Offer, Right of Modification, Alterations, Confidentiality, Legal Requirements
Supplier’s offers are subject to change and non-binding and documents relating to the offer, such as illustrations, subscriptions, weights and measurements are considered approximate, unless these details are explicitly stated as binding. If these details are explicitly stated as binding, the Customer can place an order within the validity period of the offer (receipt by the supplier is decisive), which the supplier can confirm with an order confirmation (see above) to conclude a contract.
Changes in the technical design shall be permitted, unless leading to substantial change in functionality or unacceptableness for the Customer which Customer has to prove; changes due to technical improvements, official or legal requirements or marked expectations are not considered unacceptable.
Offers, cost estimates, drawings, illustrations, models, plans and other documents and information in physical and nonphysical form (especially electronic form) and all data, experience, know-how, inventions, industrial property rights, designs, samples and trademarks (all together “Information”) of Supplier concerning the Transaction are and remain in Supplier´s property and Supplier exclusively reserves all rights, including exploitation rights, in such Information. Any Information must be kept secret and must not be made available to any third party unless the Information is obvious. Physical and nonphysical Information must be returned immediately and electronical Information must be deleted immediately upon Supplier´s request or without request in cases where conclusion of Transaction fails.
Upon Supplier´s request the Customer will provide all necessary details for the fulfillment of legal requirements. (e.g. EU entry certificate, CE labeling, Reach, RoHs, etc.). It is within Customer’s responsibility to comply with export and import conditions and restrictions as well as technical standards, norms and rules and Customer will upon Supplier´s request provide all necessary information in this context; in case of a violation of such conditions and restrictions by Customer, the Customer will indemnify the Supplier from all claims and sanctions.
III. Prices, Default of Payment, Price Adjustment, Right of Retention, Right to Offset
Supplier´s prices are in EURO ex works (Incoterms®2020) Freilassing plus VAT if owed by law, unless otherwise agreed between the Parties. Costs for international delivery documents (e.g. certificates of origin, etc.) shall be reimbursed by Customer.
Prices are due immediately to the conclusion of the contract; complete delivery of goods, documents and services is no condition for payment. Unless otherwise agreed (for example prepayment) the net price is payable within 30 days from the date of invoice without deduction, otherwise Customer is in default with payment. Objections of any kind in respect of the invoice must be submitted within 14 days after receipt of the invoice, otherwise the invoice is deemed accepted.
Payments must be made to the bank account of Supplier and Customer has to bear all costs of money transfer.
If Supplier renders its performance not earlier than four months after conclusion of the contract date, the Supplier shall be entitled to make a reasonable adaptation of his selling price, in the event of a substantial increase or reduction in the prime cost (especially labour and material cost) that has been taken as the quotation basis. A change of prime cost as defined by sentence 1 is particularly given, if there is an increase in prices for labour or procured goods or materials without fault of Supplier or if customs duties or other import charges increase or in cases of considerable changes in the parity of exchange rates to the Supplier's disadvantage compared with the circumstances prevailing at the date of contract conclusion. A price adaptation due to cost increase is deemed to be reasonable if and to the extent the adaptation remains within the scope of the increase in costs. At Customer’s request, the Supplier shall demonstrate the reasons for the price adaptation. If the price adaptation results in a price increase of more than 20 %, and if the Supplier does not comply with Customer’s request to limit the price adaptation to a scope of 20 % within two weeks’ time, the Customer shall be entitled to declare avoidance of the contract without further claims of Customer. Such declaration of avoidance shall be declared immediately.
If Customer is in default with payment, the Supplier shall be entitled to reimbursement of reminder costs and, without prejudice to further rights and claims, to demand default interest at 9 % per year; Supplier shall also be entitled to suspend all deliveries and services until all open invoices are settled. Furthermore, the Supplier may, at his own discretion, ask for prepayments and/or demand payment security; the Supplier is not obliged to undertake further measures to secure fulfilment of delivery dates or volumes (e.g. purchase of materials or production preparations, etc.). This also applies if there is a substantial deterioration of the financial circumstances of the Customer which jeopardizes the fulfillment of the Supplier´s claims by Customer.
Customer may exercise a right of retention with regard to claims of Supplier only if based on claims from the same contractual relationship which are uncontested, ready for a decision or established by final enforceable judgment. Customer may not offset against any claims, unless the counter-claim is established by final enforceable judgment, ready for a decision or uncontested.
IV. Repurchase of Goods
The repurchase of goods by the Supplier shall be contingent upon the Supplier’s previous consent; the Supplier will by no means be obliged to repurchase any goods and will decide on a case by case basis and goodwill. Goods can be repurchased only if they are in perfect condition and with transportation, costs and duties paid by Customer and against a copy of the original invoice or delivery note. In return for the repurchased goods, the Customer will receive a credit minus a handling. The amount of the handling charge will be determined when the return authorization is granted. Any reconditioning costs or other costs incurred by the Supplier as a consequence of the repurchase will be charged to the Customer. The Supplier shall be entitled to deduct these costs directly from the credit.
Supplier will under no circumstances repurchase special models or goods especially designed or purchased on the Customer’s request, as well as goods that are no longer compliant with the current version of the Supplier’s sales documents.
V. Delivery, Terms of Delivery, Force Majeure, Default in Delivery, Impossibility, Additional Period of Time
Deliveries are made ex works (Incoterms®2020) Freilassing. The Supplier is entitled to partial and additional deliveries unless unacceptable for the Customer. Partial and additional deliveries are charged separately.
Stated terms or dates of delivery are not binding unless explicitly declared binding by the Supplier. Compliance with terms of delivery and delivery dates is preconditioned by correct and timely delivery of the Supplier itself, unless Supplier acted culpably with respect to its choice of the subsupplier or the concrete procurement. The Supplier shall inform the Customer as soon as possible about delays.
Deliveries ex works are fulfilled with the provision of goods so that they are ready for collection by the Customer. If the Supplier´s employees load transport-vehicles of the Customer with such goods, they are deemed to act as vicarious agents of the Customer and Supplier may invoice the costs to Customer.
Unless otherwise agreed, potential terms of delivery do not commence before all necessary documents to be provided by Customer have been received by Supplier and all technical and business questions have been solved between the Parties. Furthermore, the term of delivery is conditioned by the provision of necessary public certificates and authorizations and/or prepayments (either agreed or requested in accordance with these Terms) of the Customer, and/or the Customer´s fulfilment of its cooperation duties; if applicable, a term of delivery does not begin before Customer's due performance of all duties and obligations.
Delivery terms are extended - even during delay or default by Supplier – in cases of force majeure or other unforeseeable impairments after the conclusion of contract for which the Supplier is not responsible by the time performance is impaired. This also applies if such impairments occur at Suppliers’s subsuppliers or subcontractors thereof. Such impairments particularly include currency and trade related measures, strike and lockout, official directives, marketbased sourcing difficulties, sudden export or import restrictions, etc. The Supplier will inform the Customer as soon as possible about the beginning and the end of such impairments. With respect to such deliveries and services that have not been delivered yet, the Customer can demand from the Supplier a notification if it declares the contract avoided or will deliver within a reasonable period of time. If the Supplier does not deliver a statement accordingly in time, the Customer may declare the contract avoided with respect to such deliveries and services that have not been delivered yet. The Supplier is entitled, without further request of the Customer, to declare the contract avoided if impairments prevent the delivery of goods and services for more than 4 months. In such cases the Customer cannot claim compensation for damages against the Supplier. A retransfer of deliveries and services is possible only if the Customer does not have any interest in such deliveries and services.
In case of a default in delivery or performance of services, the Customer has to grant Supplier an additional period of time for delivery or performance of services. If Customer is entitled to demand compensation from Supplier due to default according to legal provisions, such compensation is limited to the damages predictable by the time of the conclusion of contract and at a maximum of 5 percent of the value of deliveries and services in default, provided that such deliveries and services cannot be used appropriately due to the default. This restriction to compensation does not apply in cases where the Supplier is liable without limitation due to gross negligence or willful misconduct.
If deliveries or services become impossible for Supplier, the Customer can declare the contract avoided without granting an additional time, with respect to such deliveries and services that haven’t been delivered yet. In such cases Supplier can also declare the contract avoided with respect to such deliveries and services that haven’t been delivered yet, unless Supplier is responsible for its impossibility. The Parties in such cases may declare the contract avoided with respect to fulfilled deliveries and services if there is absolutely no interest in such partial fulfilment. In case of responsibility for such impossibility, statutory liability shall apply as modified by these Terms.
Statutory provisions that require the Customer to grant Supplier an additional and reasonable period of time remain unaffected by these Terms. A reasonable additional period of time shall be at least half of the original term of delivery and not less than 30 business days. In cases of imminent danger (urgent cases to the threat to operational safety or to prevent disproportionate damage) the additional period of time must consist of 20 business days at least.
VI. Default in Acceptance
For the duration of any default by Customer in accepting delivery (including late call-off of any delivery and execution of Suppliers’s right to suspend deliveries due to non-payment or substantial deterioration of the financial circumstances of the Customer) Supplier, without prejudice to its further rights and remedies, may place the deliverables in storage at Customer’s expense; Supplier may also commission a forwarding agent for this purpose. In addition to that, the Supplier is entitled to compensation for other necessary additional costs (such as insurance premiums) as actually incurred and retain delivery until payment; further legal rights of the Supplier remain unaffected.
Supplier may also require Customer to accept (or call off) a delivery and grant a reasonable additional period of time or exercise rights for non-performance; without prejudice to the foregoing, Supplier may after expiry of the additional period of time declare the contract avoided and claim fixed damages in the amount of 25 % of the price of the goods whose delivery has not been accepted/called off, while Customer reserves the right to prove that Supplier has sustained no or only a smaller loss.
If the Customer is in default with acceptance when impossibility of the Supplier occurs or the Customer is exclusively or predominantly responsible for such circumstances, the Customer remains liable for its contractual obligations.
VII. Passing of Risk
The passing of risk is subject to agreement; otherwise it occurs in accordance to these Terms (ex works, Incoterms®2020) or in cases where Customer is in default with acceptance.
All return shipments shall be made at the expense and the risk of the Customer, unless agreed otherwise.
VIII. Security, Retention of Title
For deliveries and services at a value of 100.000,00 EUR and more and at Supplier's request, Customer provides an unconditional, unlimited and absolute payment guarantee of a European bank or a letter of credit as security for the payment of the price.
Transfer of title with respect to delivered goods does not take place prior to the complete payment of the price. All claims of the Customer resulting from a resale of delivered goods will be assigned by the Customer to the Supplier. Until further notice the Customer is authorized to collect such claims.
IX. Obligation of Inspection, Warranty for Defects, Liability
Customer will inspect the goods and services right after receipt of delivery and will notify Supplier in writing or in textform (including EDI, e-mail) of evident defects within 5 working days after delivery and of all other defects within 5 working days from discovery, by defining the defect in detail and declaring which claims are asserted/which remedies are requested; otherwise all warranty is excluded. Customer’s warranty rights for defect deliveries (not services) shall be the rights under the governing law modified as follows.
Customer has to grant a reasonable additional period of time of at least 30 days for remedying defects. In case of minor defects (defects that have no material influence on the fitness for purpose), only a reduction of price can be claimed instead of a remedy of defects. Non-minor defects are remedied by replacement delivery or rectification upon discretion of Supplier; disassembling and assembling and/or demounting and mounting of defective and defect-free goods as well as the assumption of costs incurred therefore are not owed in case of a remedy of defects. Defects are remedied at the place of performance of Supplier.
In case of defects, a fundamental breach of contract is only assumed, if the supplied goods cannot be used by the Customer at all; even in these cases, the Customer has to grant an additional period of time for remedy of defects.
Avoidance of the contract can only be declared in cases of fundamental breach of contract and within no later than 10 days after a third trial to remedy defects within an additional period of time turned out unsuccessful.
Supplier shall not be liable for breaches of contract due to impediments beyond its control nor for breaches which are not based on gross negligence by Supplier nor for breaches which are not fundamental. Any damage foreseeable to Supplier amounts at maximum to - unless differently advised by Customer in the order - the (i) purchase price of the deliveries for the damage of a reduced value of the deliveries due to defects, (ii) 10 % of the purchase price for loss of profits and business and (iii) the insured amount by Supplier for each single damage for other liabilities and consequential damages.
Customer’s claims for warranty for defects shall be statute-barred after five years from the beginning of the statutory period of limitation (in cases of doubt that shall be the time of delivery); any additional warranty extensions (warranty extensions shall not apply to standard goods) are subject to separate agreements and in these cases the following applies: conditions for a warranty extension of 5 years are appropriate storage and proper transport and installation, commissioning and maintenance must comply with the supplier's requirements, as well as the valid standards and the DVGW regulations (www.haidro.com/downloads).
Compensation claims shall be statute-barred after one year after existence of the claim, unless otherwise agreed
This limitation of liability shall not apply in cases of intent, guarantees, injury to life, body and health or product liability.
Supplier shall not be liable for default of or any damages caused by its vicarious agents or auxiliary persons or any 3rd parties (e.g. suppliers etc.).
X. Governing Law, Place of Jurisdiction, Place of Performance
All legal relations between the Supplier and the Customer are exclusively governed by German law, the UN Sales Convention explicitly included.
Exclusive place of jurisdiction for all disputes arising out of the contract and the related relationships thereto shall be at the seat of Supplier. Supplier may at its own discretion sue the Customer at any other legal place of jurisdiction or, as plaintiff instead of appealing an ordinary court, decide to file for settlement by binding arbitration in compliance with the arbitration rules of the German Institution for Arbitration (DIS); such arbitration proceedings shall be conducted in Munich and the language of the proceeding shall be English.
Place of performance shall be at the domicile of Supplier. This applies for the delivery of goods and services as well as for payments.
XI. Miscellaneous
If one or more provisions of the contract or of these Terms should be invalid, both partially and in total, the validity of the contract and the remaining provisions remain unaffected. In such case the invalid provision is reactively replaced by a valid provision that corresponds best to the intended purpose.
Unless otherwise agreed in these Terms or in the contract, the Customer is not entitled to transfer rights to third parties arising out of these Terms or the contract.
The relevant version of these Terms is the English language version. This also applies if there is a translation of these Terms into another language and such version is additionally used.