General Terms and Conditions of Business of the Company
HYDEWA GmbH, Hydewaplatz 1-3, D-95466 Weidenberg, Germany, for Purchasing, Selling, Delivering and Exporting
1. Scope of Application
In principle, these General Terms and Conditions of Business shall apply to all, including future, offers, purchase orders, repeat orders, deliveries and services of the company HYDEWA GmbH, Hydewaplatz 1-3, D-95466 Weidenberg, Germany, hereinafter called "HYDEWA", except where these are expressly amended or excluded in writing. Deviating General Terms and Conditions of Business shall not be recognised.
If General Terms and Conditions of Business of the supplier or customers wholly or partly conflict with these General Terms and Conditions of Business, HYDEWA's General Terms and Conditions of Business shall apply without any further declaration being required for this. Anything contrary hereto shall apply only if HYDEWA approves explicit deviations from the following terms and conditions. Upon the execution of the contractually agreed service, the supplier or customer shall, in all other respects, be deemed to have expressly recognised the following General Terms and Conditions of Business. If the customer or the supplier is not in agreement with the foregoing, it shall give the ordering party prompt written notification thereof before the order is carried out/the service is taken receipt of. In such case, HYDREWA shall reserve the right to cancel the order/acknowledgement of the order. The supplier or the customer shall not be entitled to any claims whatsoever in such case.
2. Conclusion of the Contract
2.1 Offers from HYDEWA shall be non-binding. Representatives of HYDEWA shall not have the power to enter into contracts, but merely the power to broker contracts. The acceptance of an order and, therefore, the conclusion of a contract shall be brought about by HYDEWA's acknowledgement of the order.
2.2 Details provided by HYDEW in the documents forming part of the offer, as well as illustrations, drawings, details of weights or dimensions, specifications of services or of other features, and other information on contractual products and services shall not constitute any warranty of features.
Certain features of the goods to be delivered by HYDEWA shall be deemed guaranteed only if expressly agreed upon in writing. Any reference to standards or agreed specifications alone shall merely comprise a more detailed description of the goods or services and not a warranty of features.
2.3 Except where otherwise expressly agreed upon, prices from HYDEWA shall ensue from the respective price lists valid for the individual ordering party. All prices shall be deemed to be ex works HYDEWA and shall exclude value-added tax, which shall be added at the German rate, and packaging. Ordering parties within the European Union shall quote their VAT ID number when entering into a contract. Ordering parties (consignees) domiciled outside of the European Union shall not be charged value-added tax.
2.4 In the absence of a specific agreement, packaging shall, at HYDEWA's option, be subject to a charge. The ordering party shall be responsible for disposing of the packaging. HYDEWA shall be entitled to demand that packaging material be returned free of charge to the place of dispatch or to the works. In particular, this shall apply to containers, wire-mesh crates and pallets, which shall only be loaned and shall remain HYDEWA's property.
2.5 Shipment by HYDEWA shall occur at the ordering party's expense and risk.
3.1 All deliveries by HYDEWA shall, unless otherwise agreed upon in writing, occur exclusively ex works HYDEWA.
3.2 HYDEWA shall be permitted to make sub-deliveries.
3.3 If, in relation to HYDEWA, the supplier deviates from HYDEWA's purchase order from a quantitative or qualitative perspective, these deviations shall be legally binding upon HYDEWA only with HYDEWA's express written approval. If HYDEWA does not give its approval, HYDEWA shall be entitled to reject non-approved deliveries or sub-services at the supplier's expense.
3.4 In the event of discrepancies in weight and/or dimensions, the dimensions ascertained by HYDEWA shall be binding in relation to the supplier.
3.5 The supplier shall ensure in relation to HYDEWA that the goods and products delivered by the supplier are free of third-party rights. This shall particularly apply to retention of title and comparable third-party collateral rights, as well as to claims to intellectual property.
3.6 Every order shall be legally independent. Therefore, any set-off or right of retention in relation to HYDEWA on the basis of other purchase orders shall be excluded. Anything contrary hereto shall apply only insofar as the supplier/customer is entitled to claims determined on a final and non-appealable basis or recognised by HYDEWA.
3.7 Insofar as a supplier/customer uses the services of third parties, e.g. a forwarding company, to fulfil its obligations in relation to HYDEWA, these shall be deemed to be employees of this supplier/customer in contractual terms and under the law on compensatory damages. An exclusion of liability in favour of the supplier/customer for these third parties is hereby expressly excluded.
4. Delivery Periods, Default, Rescission
4.1 Delivery dates stated by HYDEWA shall constitute approximate periods. The delivery period shall begin when the acknowledgement of the order is sent off, but not before the documents, drawings and permits to be provided by the ordering party have been furnished, all other formalities have been fulfilled, and any agreed advance payment has been made.
4.2 In the event of default in delivery for which HYDEWA is at fault, the ordering party may, insofar as it satisfactorily shows that it has suffered a loss as a result thereof, demand for every full week of default, with further claims being excluded, flat-rate compensation for default at the rate of 0.5 %, but no more than 5 %, of the value of the part of the delivery that cannot be used as intended owing to default. Subsection 7.5 shall apply mutatis mutandis.
4.3 Insofar as the maximum amount of compensatory damages under subsection 4.2 has been reached, the ordering party may, with due regard being given to the statutory exceptions and the statutory provisions and after having set a reasonable period for payment, declare nullification of the contract regarding the delayed part, unless HYDEWA performs beforehand.
4.4 If, in relation to HYDEWA, the ordering party defaults upon a material obligation arising from the contractual relationship, HYDEWA shall be entitled to extend the delivery period by the period of default. Subsection 5 shall apply mutatis mutandis.
Deliveries from HYDEWA shall, even if they have insignificant defects, be taken receipt of by the ordering party regardless of its defect-related rights. The ordering party shall bear the costs in connection with storage, insurance, protective measures etc. incurred as a result of late acceptance. In the absence of specific proof, the ordering party shall pay at least 0.5 % of the order value for every week of delay, but at most 5 %.
HYDEWA may set the ordering party in writing a reasonable period for acceptance, if the ordering party does not accept the goods at the time of delivery. HYDEWA's right to demand payment of the purchase price shall remain unaffected.
After a time limit has been set, HYDEWA may wholly or partly nullify the contract by written declaration and demand compensatory damages.
6.1 Unless otherwise agreed upon, all payments to HYDEWA shall be made within 10 days of the invoice date with a 2 % cash discount or within 30 days of the invoice date net without any deduction. All payments shall be made in euros free of charge to HYDEWA's point of payment. Bills of exchange or cheques shall be accepted only subject to clearance. In the case of combined invoices where more than 10 calendar days lie between the delivery date and the invoice date, there shall be no entitlement to a cash discount for the corresponding amount invoiced.
6.2 If payment is not made in due time, HYDEWA may, from the due date onwards, charge interest at the rate of 9 % above the base interest rate of the European Central Bank. HYDEWA may suspend the implementation of the contract in this respect. If the ordering party has not made the agreed payment within a reasonable grace period, but within one month of the due date at the latest, HYDEWA may, by written notification, declare nullification of the contract and demand compensatory damages.
6.3 A right of set-off against payment claims of HYDEWA shall exist only if the obliger's claim set off has been determined on a final and non-appealable basis or is undisputed. The party obliged to make a payment to HYDEWA may exercise a right of retention only insofar as its counter-claim is based on the same contractual relationship.
7. Responsibility for Conformity of the Goods with the Contract (Defects as Regards Quality or Title)
7.1 The ordering party shall inspect the goods promptly upon receipt. In this respect, it shall proceed in accordance with the recognised technical rules. In any event, the ordering party shall lose the right to plead non-conformity with the contract, if, after the point in time when it discovered the defects or ought to have discovered the defects, the ordering party does not give HYDEWA prompt written notification of the defects with a precise description of these. The ordering party shall, subject to agreement with HYDEWA, ensure that all evidence is secured.
7.2 The ordering party shall be responsible for treating the goods with care and properly storing the goods.
7.3 If the goods do not conform to the contract, the supplier shall, also in the case of significant defects, first of all, at its option, rectify the defects or deliver a replacement within a reasonable period, at least within 2 weeks of a request from the ordering party. Rectification may, subject to agreement with HYDEWA, also be carried out by the ordering party. The ordering party shall, within reason and subject to the reimbursement of costs, be obliged to co-operate with rectification in accordance with HYDEWA's instructions. If rectification fails, the ordering party shall, within the scope of the statutory provisions and subject to the expiration of any necessary time limit set beforehand, be entitled to rescind the contract. In the case of merely insignificant defects, the ordering party shall only be entitled to a reduction in the purchase price in accordance with Sections 440 and 323 (5), sentence 2 BGB [German Civil Code].
7.4 If non-conformity with the contract is not remedied by HYDEWA by rectification or replacement in accordance with subsection 7.3, the parties to the contract shall agree upon an appropriate reduction in the purchase price.
7.5 Unless provided for in subsections 4.2, 4.3 or 7.1 to 7.4 or in Sections 9 or 10, HYDEWA shall, regardless of the legal basis, not be responsible for any non-conformity with the contract, for any loss or for any breaches of duty on the part of its statutory representatives or authorised agents. This shall apply to any defect-related loss or defect-related consequential loss, in particular to loss that cannot be remedied by rectification or replacement or that has not resulted from the delivery item itself, including loss of production and lost profit. In the case of any breach of material contractual duties, i.e. duties that need to be fulfilled in order for the contract to be properly implemented in the first place and that the ordering party may normally expect to be complied with, HYDEWA shall be liable for any degree of fault. However, liability in the case of a breach of material contract duties shall be limited to the reasonably foreseeable loss typical of this type of contract. In any event, however, HYDEWA shall be liable for any degree of fault in the case of wrongful intent or gross negligence, including wrongful intent or negligence on the part of its statutory representatives and authorised agents, for guarantees specifically given, in the case of fraud and in the case of mortal injury, physical harm or health damage, as well as in the case of liability under the Produkthaftungsgesetz [Product Liability Act] for physical harm or property damage to privately used items.
7.6 Deviations in terms of quantity (up to 10 %), dimensions, quality, weight or the like shall be permitted to the extent customary in the trade. The right to make equivalent constructive changes shall remain reserved.
7.7 Instructions from HYDWA concerning conditions and applications regarding the contractual products shall be complied with by the ordering party. Otherwise, defect-related claims shall not be recognised.
8. Maintenance of Secrecy, Plans, Samples
The parties to the contract hereby agree to maintain secrecy in respect of all commercial and technical details of their mutual business relationship, as long as these details have not entered the public domain. This shall also apply to the samples, devices, tools, drawings, drafts and plans produced by HDEWA, in particular patent rights, copyrights and invention rights. Insofar as such things are made available to the ordering party by HYDWA, they shall remain HYDEWA's property and be returned on request.
9. Responsibility for Subsidiary Duties
HYDEWA shall, in accordance with the provisions in Section 4, subsection 7.5 and Section 11, be exclusively accountable for the performance of the contractual or pre-contractual subsidiary duties.
10. Non-delivery, Impossibility, Inability
The statutory provisions (in particular Sections 275, 323 and 326 BGB) shall apply in cases of impossibility of performance by HYDWA and to the ordering party's rights of rescission and rights to compensatory damages. The limitations in subsection 7.5 and Sections 9 and 11 shall apply mutatis mutandis.
11. Force Majeure
11.1 Neither Party shall be accountable for the non-performance of any of its duties, if non-performance is due to an impediment outside of its control or, in particular, due to one of the following reasons:
fire, natural disasters, war, seizure or any other official measures, a general shortage of raw materials, a restriction in the consumption of energy, labour disputes or cases where non-conformity with the contract by suppliers is due to one of these reasons.
11.2 Either Party may discontinue the contract by written notice, if its implementation is hindered as per subsection 11.1 for longer than 6 months.
12. Other Responsibilities
Unless expressly stipulated in these GT&Cs, all further contractual or statutory claims against HYDEWA, in particular claims to nullification of the contract or to compensation for loss of any kind, including loss that has not resulted from the delivery item itself, shall be excluded. Subsection 7.5, sentences 3 and 4 shall apply mutatis mutandis.
All claims of the ordering party on the basis of non-conformity with the contract shall become statute-barred within 12 months of the passage of risk (Section 3). HYDEWA's responsibility shall be limited to non-conformity with the contract that occurs within this period. This shall not affect statutory limitation on account of any intentional, grossly negligent or fraudulent conduct on the part of HYDEWA or one of its authorised agents, on account of statutory claims under the Produkthaftungsgesetz, on account of claims to compensation for physical harm or health damage due to a defect for which HYDEWA is at fault, on account of installation of the delivered products into buildings (Section 438 (1), no. 2 BGB) or in cases of supplier recourse (Sections 478 and 479 BGB).
14. Retention of Title
14.1 All goods delivered shall remain HYDEWA's property until all claims arising from the business relationship have been fully paid. This shall apply even if some or all of HYDEWA's claims have been included in a running account, and the balance has been established and recognised. The ordering party shall be entitled to on-sell or on-process in the ordinary course of its business the goods remaining HYDEWA's property (goods under retention of title). The ordering party hereby assigns to HYDEWA in advance all claims arising from such on-selling. This shall also apply, if the goods under retention of title have become third-party property as a result of processing, as a result of being connected to a plot of land or as a result of acquisition of title on any other statutory basis. If the total value of the claims assigned exceeds the purchase price owed by more than 10 %, HYDEWA shall assign back all claims exceeding this 10 % threshold. The ordering party shall support HYDEWA in all measures necessary for protecting its property. The ordering party shall promptly inform HYDEWA, if risks to its title arise. This shall particularly apply to third-party dispositions or official measures (attachments, seizures etc.).
14.2 Any re-working, processing or remodelling of the delivered goods by the ordering party shall take place in HYDEWA's name and on behalf of HYDEWA. In the event of processing with other goods not belonging to HYDEWA, HYDWA shall acquire joint title to the new item in the ratio of the value of HYDEWA's goods under retention of title (final amount invoiced, including value-added tax) to the acquisition price of the other processed goods at the time of processing. The same shall apply in the event of mixing and connection to a plot of land.
14.3 For the goods delivered, the ordering party shall, at its expense, take out insurance against theft, fire damage, water damage and other risks until the purchase price has been fully paid.
14.4 If the ordering party acts contrary to the contract, particularly in the event of default in payment despite a prior reminder or in the event that the ordering party is seriously at risk of becoming insolvent, HYDEWA shall be entitled to repossess the goods that are under retention of title, and the ordering party shall be obliged to surrender possession. In this case, HYDEWA shall issue a credit note in the following sum:
If saleable goods are returned, the full amount invoiced shall be credited. If non-saleable goods are returned, only the so-called "crumb value" shall be credited. In both cases, a 10 % processing fee shall be charged. HYDEWA hereby reserves the right to invoice the ordering party for the disposal costs in cases where non-saleable goods are returned. This provision shall also apply in cases where goods under retention of title are returned in the course of ongoing insolvency proceedings.
15. Place of Performance, Place of Jurisdiction, Applicable Law
15.1 D-95466 Weidenberg, Germany, the place where HYDEWA's registered office is situated, shall be the place of performance, unless otherwise ensues from the nature of the obligatory relationship.
15.2 D-95444 Bayreuth shall be the place of jurisdiction in the case of an ordering party or a supplier that has its registered office in one of the Member States of the European Union or in the European Free Trade Association (EFTA). In any event, HYDEWA shall also be entitled to bring the matter before the courts that have jurisdiction over the place where the ordering party's registered office is situated.
15.3 For ordering parties and suppliers as per subsection 15.2, all business relations with HYDEWA shall be governed exclusively by German law. The contractual language is German and/or English. For ordering parties and suppliers that do not have their registered office in a Member State of the European Union or in the European Free Trade Association (EFTA), the UN Sales Law shall apply.
15.4 If any provisions in the contract or in these Terms and Conditions of Business are or become ineffective in whole or in part, this shall not affect the validity of the remainder of the Terms and Conditions of Business. The parties to the contract shall, within reason and in good faith, replace ineffective provisions with provisions that bring about the commercial result in a legally effective manner. Supplements or amendments to the above terms and conditions shall only be effective in writing. This shall also apply to any amendment of this written form requirement.
16 Data Storage
The data of HYDEWA's ordering parties / suppliers shall be stored in accordance with Section 28 BDSG [German Federal Data Protection Act].