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§1 General
In these conditions, "seller" stands for HaSoTec Hardware & Software Technology GmbH and "buyer" for the contract partner of HaSoTec Hardware & Software Technology GmbH. The seller reserves the right to templates, cost estimates, drawings and similar, physical and non-physical information - even in electronic form - intellectual and copy rights; they must not be made accessible to third parties. The seller is obliged only to make information and documentations described as confidential by the buyer, available to third parties, with the permission of buyer.
§2 Area of validity
1. All deliveries, services and offers by the seller must exclusively occur on the basis of this general sales and delivery conditions. These are a component of all contracts, which the seller draws up with the buyer, regarding the deliveries or services offered by the seller. They also apply to all future services, deliveries or quotes to the buyer, even if they are not separately agreed again.
2. The business conditions of the buyer or third parties do not apply, even if the seller does not contradict their validity in individual cases. Even if the seller refers to a letter, which contains or refers to the business conditions of the buyer, or a third party, this does not constitute an agreement on the validity of the business conditions.
§3 Quote and contract completion
1. All quotes by the seller are subject to alteration and non binding, unless they are expressly indicated as binding, or contain a certain acceptance period. A contract only comes about through the written confirmation of the order by the seller.
2. The only thing significant for the legal relationship between the seller and buyer, is the purchase agreement drawn up in writing, on confirmation of the order, including these general delivery conditions. This reflects all agreements between the contractual parties. Verbal agreements by the seller before completion of this contract are not legally binding, and verbal agreements by the contractual parties will be replaced by the written contract, unless expressly stated that they are binding and valid.
3. Subsequent additions and changes to the agreements in question, including general delivery conditions, must be in writing, and be signed by a person authorised by the seller, to be valid.
4. The seller reserves the intellectual rights and copyright to templates, quotes, cost estimates, drawings, illustrations or similar - physical and non physical information - even in electronic form. The buyer must not make this content available to third parties, announce it, use it or copy it themselves or through third parties, without the express permission of the seller.
§4 Prices, taxes and duties
1. The prices from the quote submitted by the seller are valid for a period of 60 days from the quote date, unless otherwise stated in the quote.
2. The prices are in EUROS ex works Rostock, Federal Republic of Germany, plus packaging, legal VAT, customs duty for export/import deliveries and fees, and other public contributions.
§5 Payment conditions
1. Invoice amounts must be paid within 30 days of the invoice date, net (without deductions). Receipt by the seller is crucial for the payment date.
2. Every export delivery requires the opening of an irrevocable, confirmed letter of credit in our favour, from a first class business bank. If the opening of a letter of credit is waived, due to special agreements, then the invoice amounts must be paid within 30 days net (without deductions) of the invoice date.
3. If the buyer gets into payment arrears, all outstanding amounts will be charged interest at 8% above the relevant base interest rate of the European Central Bank, from the day of entering arrears. The seller is free to enforce further damages caused by delay.
4. The buyer only has the right to withhold payments or offset with counterclaims, if the counterclaims are undisputed or legally binding.
5. The seller is authorised to carry out or render still outstanding deliveries or services, in the case of advance payment or collateral security, if he is aware of circumstances, after drawing up the contract, which reduce the creditworthiness of the buyer significantly and through which the payment of the outstanding receivables to the seller by the buyer from the relevant contractual relationship, is endangered.
§6 Retention of property rights
1. The delivered goods remain the property of the seller, until complete settlement of all outstanding receivables from the business connection with the buyer, for whatever legal reasons. The buyer can use, sell, mix, combine or consume the goods belonging to the seller, under the following conditions, revocable at any time, in the interest of proper business operation, but not pawn them or transfer them as security.
2. The processing or reconfiguration of reserved goods is always carried out for the seller by the buyer, at their own cost.
3. If the reserved goods are processed with goods that do not belong to the seller, then the seller acquires co-ownership of the new goods, at the ratio of the value of the reserved goods to the other processed items, at the time of processing. The same goes for other receivables, which take the place of the reserved goods, or otherwise emerge with regards to the reserved goods, e.g. insurance claims, or claims from unauthorised action, in the case of loss or destruction.
4. In the case of further selling of goods, the buyer hands over all receivables arising from this to the seller now, along with ancillary rights, and in the case of further selling of the processed goods, the appropriate percentage of the accrued receivable. On request, the handover must be confirmed to the seller in writing. Unless revoked, the buyer is authorised and obliged to collect the receivables handed over to the seller.
5. In the case of access by third parties to the property of the seller, or the receivables handed over to the seller, the seller must be informed immediately; the third party is informed of the rights of the seller. If the third party is not in a position to reimburse us for the legal and out-of-court costs of a law suit in accordance with sect. 771 ZPO, the buyer is liable to the seller for this.
6. On request, the buyer must provide the seller with all the necessary information, and hand over the documents required to enforce these rights at any time, and immediately. The buyer is obliged to keep the object in a proper state, for the duration of the retention of property rights, at their own cost, insure it against theft and fire, and present the seller with an insurance certificate on request. Any compensation claims against the insurance will now be transferred to the seller to secure their claim. If the buyer does not comply with the demand to insure the object within a week, then the seller is entitled to take out the insurance themselves, and charge the costs to the buyer.
7. The buyer is obliged to allow the seller or their representative access to the premises or buildings at any time to view the goods of the seller, or arrange the revocation of these reserved goods.
8. In the case of revocation of the reserved goods this does not occur, unless expressly otherwise declared, based on withdrawal from the contract, rather for the co-insurance of the receivables of the seller alone.
§7 Delivery
1. Deliveries are made ex works. The shipping type and packaging are subject to the reasonable discretion of the seller. If the buyer desires, the seller will secure delivery with special packaging and/or transport insurance; the costs incurred in this way are borne by the buyer.
2. Unless otherwise agreed, it is understood between the seller and buyer, that the risk of lost or damage, for whatever reason, is passed on to the buyer, at the time of delivery , or the point of handover to the recipient freight forwarder and/or the post office for postal transfer to the buyer, determined by the buyer. Furthermore, it is understood, that returned shipments and/or goods remain at the risk of the buyer until they have been received by the seller again in a proper state.
3. If the buyer refuses to accept the delivery, any loss which the seller suffers from this, is borne by the buyer.
4. The buyer is obliged to inspect the delivery within 1 month of receipt, and before putting it into use and/or selling it on, and convince themselves that the delivery is free from defects, and corresponds to the purpose as ordered. Within this period, recognisable defects and incomplete or false deliveries must be reported in writing, otherwise the buyer loses their claim to fulfilment or guarantee. For hidden defects, there is a notification period of 1 month after discovery.
a) If the buyer finds that the shipment is not correct, or determines defects to the material or construction within 1 month of delivery, they must notify the seller in writing immediately, and return the shipment at his own costs.
b) If the delivery is found to be defective by the seller - without prejudice in relation to sect. 9, it is at his discretion to satisfy the buyer with repair, replacement or reduction. No further obligation exists.
§8 Delivery period and force majeure
1. The delivery period arises from the agreements of the contractual parties. Adherence to these by the supplier requires that all commercial and technical issues between the contractual parties are clarified, and the buyer has fulfilled all his obligations, e.g. submission of the required official certificates or authorisations, or making an advance payment. If this is not the case, then the delivery period will be extended accordingly.
2. Adherence to the delivery period is subject to correct and on time self-delivery. The seller will report any delays which become apparent as soon as possible. 3. The delivery period is adhered to if the delivery object has left the factory of the seller on its expiry, or notification of readiness for dispatch has been provided. If acceptance must occur - apart from in the case of authorised refusal to accept - the acceptance deadline is crucial, or alternatively the notification of readiness for acceptance.
4. If the shipment and/or acceptance of the delivery object is delayed, for reasons which the buyer is responsible for, then he will be charged the costs incurred due to the delay, starting one month after notification of shipping and/or readiness to accept.
5. If the non-adherence to the delivery period is to be attributed to force majeure, industrial action or other events, which are outside of the sphere of influence of the seller, then the delivery period will be extended accordingly. The seller will notify the buyer of the beginning and end of such circumstances as soon as possible.
6. The buyer can withdraw from the contract without setting a deadline,, if the whole service is conclusively impossible for the seller, before transfer of risk. Furthermore, the buyer can withdraw from the contract, if it becomes impossible to carry out part of the delivery for an order, and he has an authorised interest in rejecting a partial delivery. If this is not the case, then the buyer must pay the contractual price incurred for the partial delivery. The same applies in the case of inability of the seller. If impossibility or inability occurs during the default of acceptance, or if the buyer is solely responsible or responsible for the majority, he is still obliged to provide a return service.
7. If the seller is in arrears, or a service is impossible for him, for whatever reason, then the liability of the seller is limited to compensation in accordance with sect. 11 of the general delivery conditions.
§9 Guarantee of claim for defects
For material and title defects, the seller guarantees the following, excluding further claims, subject to sect. 10: 1. All those parts which appear to be defective before the transfer of risk must be repaired or replaced at the choice of the seller, free of charge. The determination of such defects must be indicated to the supplier in writing immediately. Replaced parts are the property of the supplier.
2. The buyer must give the seller the required time and opportunity to carry out all the necessary repairs and replacement deliveries, otherwise, the seller is exempt from liability for the resulting consequences. Only in urgent cases of a risk to operating safety and/or to protect against disproportionately large damages, whereby the seller must be informed immediately, does the buyer have the right to eliminate the defect himself or through a third party, and demand compensation for the necessary expenditure from the seller.
3. Out of the direct costs arising from the repair and/or replacement delivery - if the complaint is justified - the seller will bear the costs of the replacement part including shipping. He will also bear the costs for any provision of fitters and assistants including travelling expenses, unless this puts a disproportionate strain on the seller.
4. In the scope of the legal requirements, the buyer has a right to withdraw from the contract, if the seller - taking into account the legal exceptional cases - has allowed an appropriate time period set for him, for the repair or replacement delivery due to a material defect, to elapse fruitlessly. If only an insignificant defect exists, the customer only has the right to reduce the contractual price. Otherwise, the right to reduce the contractual price is ruled out. Further claims are determined according to sect. 10.3 of these conditions.
5. No liability is accepted in the following cases: Unsuitable or incorrect use, defective installation or commissioning by the buyer or third party, natural wear, defective or negligent treatment, incorrect maintenance, unsuitable equipment, chemical, electrochemical or electrical influences - as long as the seller is not responsible.
6. If the buyer or a third party carries out an incorrect repair, the seller is not liable for the resulting consequences. The same applies for changes carried out to the delivery item without the prior written approval of the seller. Title defect
7. If the use of the delivery item leads to the infringement of commercial intellectual property rights, or copyrights inland, the seller will ultimately procure the right to further use at his own cost, for the buyer, or modify the delivery item in a way deemed acceptable by the buyer, so that the infringement of intellectual property rights no longer exists. If this is not possible at economically appropriate conditions, or in an appropriate time period, the buyer has the right to withdraw from the contract. Under the named conditions, the seller also has the right to withdraw from the contract. Furthermore, the seller will release the customer from undisputed or legally determined claims by the affected intellectual property right holder.
8. The obligations of the seller named in sect. 9.7 are final subject to sect. 10.3 in the case of an infringement of the intellectual property rights or copyright. This only exists if
- the buyer immediately informs the seller of the enforced infringements to the intellectual property rights or copyright,
- the buyer supports the seller to an appropriate extent, in defence against the enforced claims, and/or enables the seller to carry out modification measures in accordance with sect. 9,
- the seller reserves the right to all defence measures including extrajudicial regulations,
- the title defect is not based on an instruction of the buyer,
- the title defect is not caused by the buyer having changed the delivery item on his own authority, or having used it in a non-contractual way.
§10 Liability
1. The buyer is hereby obliged to take all necessary and sensible steps, to ensure that the delivered equipment is operated with consideration of the necessary safety regulations, and without risk to life and health.
2. If the delivery item cannot be used according to the contract - through the fault of the seller, as a result of omitted or defective execution of suggestions and advice before or after contract completion, or due to the infringement of other contractual secondary obligations - particularly instructions for operation and maintenance of the delivery item - then the regulations of sects. 9 and 10.3 apply - excluding further claims by the buyer.
3. For damages which have not occurred to the delivery item itself, the seller is only liable - for whatever legal reasons
a. in the case of intent,
b. in the case of gross negligence,
c. in the case of culpable infringement of life, body, health,
d. in the case of defects, which he fraudulently concealed or whose absence he guaranteed,
e. in the case of defects in the delivery item, if he is liable according to the product liability law for personal or material damages on privately used items.
In the case of culpable infringement of significant contractual obligations, the supplier is also liable in the case of gross negligence by non management employees, in the case of slight negligence, in the latter case limited to contract typical, sensibly foreseeable damages.
Further claims are ruled out.
§11 Statute of limitations
All claims of the buyer - for whatever legal reasons - lapse after 12 months. For compensation claims in accordance with sect. 10 a-e, the legal time periods apply. They also apply for defects to the delivery items, which were used for a building, according to its usual usage, and caused its defectiveness.
§12 Brand names / Patents
The delivery of goods by the seller does not transfer the right to the buyer
- to use the brand names of the seller
- to make use of patents of the seller, or claim compensation due to patent infringements by third parties, if the seller has not provided written permission for this. Even in the latter case, the seller reserves the right to pass on brand names, patents and claims for damages.
§13 Transfer
The buyer must not transfer a contract - which is subject to these conditions- to a third party, without the prior written consent of the seller.
§14 Written form
Any notification and/or requirements in connection with the contract must be sent to the seller in writing (by letter, fax, e-mail ).
§15 Occupational Health and Safety Act
It should be clear that every machine for destructive material testing brings certain dangers to the operator. HaSoTec Hardware & Software Technology GmbH has ensured the highest possible operational safety in the design and manufacture of its products. Before commissioning a machine, the operating instructions must be read through carefully, and the safety regulations in the handbooks must be adhered to at all times. In addition, samples used in the test operation can also form a risk for the operator. Every user of a machine must therefore be convinced that the test method used is safe, and the safety regulations for the relevant testing have been understood and adhered to by the personnel.
§16 Applicable law, place of jurisdiction
For all legal relationships between the supplier and the customer, exclusively the law of the Federal Republic of Germany applies for the legal relationships between inland parties.
2. For all disputes arising from the contract, the lawsuit must be lodged with the court locally responsible for the headquarters of HaSoTec Hardware & Software Technology GmbH. HaSoTec Hardware & Software Technology GmbH also has the right to sue at the headquarters of the buyer.
§17 Invalidity of contractual specifications
1. If individual specifications of the contract are or become invalid or null and void, this does not affect the validity of the remaining specifications of the contract.
2. The parties are obliged to replace invalid or null and void specifications with new specifications, which comply with the economic legislative content of the invalid or null and void specifications, in a legally permitted way. The same applies if a gap should emerge in the contract. To fill the gaps, the parties are obliged to work towards establishing appropriate regulations in this contract, which come as near as possible to what the contracting parties determined according to the sense and purpose of the contract, if the point had been considered by them.
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