Terms and conditions
General Conditions of Business of Hans Hagemann GmbH
Applicable to business transactions with companies, legal entities under public law and special funds under public law.
The following general conditions shall apply exclusively and in particular for all services rendered by HAGEMANN including services rendered in business relations in progress. They shall apply with regard to companies or public entities. General conditions of the customer shall not apply even if HAGEMANN does not expressly reject their inclusion.
2. Orders Execution
Orders shall be binding only upon written order confirmation of HAGEMANN which is decisive for the nature and the quantity of the delivery. Changes or modifications by the customer shall be legally binding only if they have been confirmed in writing by HAGEMANN. Changes of or amendments to existing agreements by email require confirmation by letter or telefax with identical wording and valid signature. Documents of the offer such as drawings, descriptions or technical specifications shall only be understood approximate unless they are expressly marked compulsory. HAGEMANN shall remain the sole owner of property rights and exclusive exploitation rights of all documents, files, models and information made available to the customer. They shall be entrusted, handled confidentially and shall not be used outside the business relation without written consent of HAGEMANN. This obligation to secrecy and the restriction of use shall survive the contract. As far as the agreed purpose of use (only written agreed purpose shall be decisive) is not affected, HAGEMANN shall be entitled to technical modifications or changes of their services under the condition that quality of service as a whole shall not be diminished. The customer warrants and guarantees that his order and the specifications herein do not violate proprietary rights of third parties and the customer shall discharge HAGEMANN of all corresponding claims.
Prices shall be EX WORKS excluding package, freight, insurance and VAT. As far as there is a period of minimum six weeks between execution of the contract and the agreed delivery date the price determined by HAGEMANN for the delivery day shall apply in case of increasing costs. The same applies in case of delay of delivery if HAGEMANN is not responsible for the delay. If the agreed price of parts depends on their weight, the actual price shall be determined according to the weight of the released samples. The agreed prices or adjustments of prices include profits of rationalization; beyond that adjustments for profits of rationalization are not accepted. If the forecasted quantity which is the basis for the price calculation (annual quantity of items or total quantity) are not achieved without HAGEMANN being responsible, HAGEMANN shall be entitled to payment according to section 649 of the German Civil Code for deliveries not called up in this year or per the end of the agreed delivery period; alternatively, the price of each item shall be adjusted.
4. Delivery and Purchasing Obligations
Delivery periods shall begin upon receipt (sales/logistics dept.) of all documents required for performance of the order, the agreed down payment and, if applicable, making available of materials or tools/forms in time by the customer. Delivery dates shall be met if readiness for sending has been notified in time. Partial deliveries and modifications of the order quantities up to 10 % shall be allowed. HAGEMANN is prepared to agree upon follow-up orders with reasonable delivery periods as long as they are entitled to use special forms of the customer. Prices shall be renegotiated. With respect to call orders without agreement on delivery period, quantity of delivery and calling-up schemes, HAGEMANN shall have the right to request binding agreement there upon. If the customer does not comply with this request within three weeks, HAGEMANN shall be entitled to withdraw from the contract after an additional remedy period has expired, further remedies not being affected. In cases of force majeure at HAGEMANN or its subcontractors, delivery times for still feasible deliveries shall be extended reasonably. This applies in particular in case of labour disputes, operational disturbances without fault, unrest and governmental measures.
5. Supply of Materials by Customer
The customer shall supply materials in correct condition and in time at its own expense and risk with a reasonable quantity premium of at least 5%. If the customer fails to perform its obligation in time, the delivery period in any case shall be extended reasonably. Further claims of HAGEMANN shall remain unaffected.
6. Packaging, Passing of Risk, Insurance
Unless agreed upon otherwise, HAGEMANN shall have the right to choose the packaging and type of shipping at its own discretion. The risk shall pass to the customer upon leaving the deliverers facilities even if free carriage was agreed. In case of delay of consignment due to circumstances for which HAGEMANN is not responsible, the risk passes to the customer upon notice of readiness for dispatch. Upon written request of the customer the goods shall be insured against damage or loss due to storing, breaking, transport and fire.
7. Reservation of Title
The goods delivered shall remain the property of HAGEMANN until all claims arising from the business relationship with customer, existing or coming into existence, shall have been fulfilled. The customer may use the delivered goods for the regular course of business. He may sell the goods and process them but may not make any extraordinary dispositions which would endanger or burden the property of HAGEMANN (pledging, transfer by way of security). The customer must immediately inform HAGEMANN of every debt enforcement for the goods delivered subject to reservation of title. The same applies in this case for the transferred claims according to clause 7. The customer shall be liable to pay damages if he does not immediately inform HAGEMANN of attachments of third parties on the goods supplied with reservation of title as well as of other losses and impairment. In the case of immediate danger, the customer must undertake the required measures to maintain the goods advancing the costs, if necessary. In the case that the goods which have been delivered subject to reservation of title are resold, the claim for the purchase price against the third party amounting to the trade accounts receivable of the HAGEMANN, shall be regarded as having been transferred. The customer shall be obliged to render, to HAGEMANN, an account of the outstanding claims towards third parties at any time. HAGEMANN shall be entitled to disclose the transfer and demand that the third party address payment to HAGEMANN. The risk of damage to the goods delivered or the loss of the goods shall also be at the expense of the customer even if he shall not be responsible or if there is a case of force majeure. In so far as HAGEMANN’s goods shall be connected or processed by the customer with other objects, HAGEMANN shall acquire co-ownership of the new object in the ratio of the value of his goods to the other objects. The claims the customer is entitled to from the resale are hereby transferred in advance to HAGEMANN and also to the extent to which the goods are connected or processed with other objects. In this case the transferred claim shall serve as security for HAGEMANN amounting to the value of the sold reserved goods. HAGEMANN shall undertake to release the claims transferred to it if HAGEMANN so desires upon request by the customer if the claims to be secured exceed more than 20 percent and arise from deliveries already paid for. The right to resell, use or process the goods under reservation of title as well as the authorization to collect the assigned claims expire upon suspension of payment, filing or institution of insolvency proceedings or institution of an extrajudicial settlement proceeding. The same applies in case of protests of cheque or bill transactions. In these cases HAGEMANN shall be entitled to retract the goods under retention of title. If customer has mixed goods under retention of title with other goods HAGEMANN shall be entitled to separate the goods under retention of title according to the invoice documents by mutual consent with the customer. If customer does not take part HAGEMANN shall be entitled separate the goods on its own with the help of an expert. The enforcement of rights that accrue from the retention of title does not require rescission of the contract. Section 449 paragraph 2 of the German Civil Code does not apply.
8. Conditions of Payment
Unless otherwise stipulated the purchase price shall be payable
a) for forms and other production facilities, by 50 % at the time of the order confirmation and 50 % 30 days after presentation of samples. In case of modification orders, all costs accrued prior to the completion of the forms and other production facilities shall be reimbursed to HAGEMANN immediately.
b) for delivery of items or other services, with 3 % cash discount for immediate payment in case of prepayment, with cash discount of 2 % for payment within 14 days and without cash discount for payment within 30 days upon invoice date. The cash discount requires that all invoices which have fallen due earlier have been paid by customer.
Cheques and bills of exchange are only accepted on account of payment. All costs accrued therewith shall be borne by customers. Customer shall only have a right to set off or withhold payment if the counter claim is undisputed or legally binding. If after execution of the contract reasonable doubts regarding solvency or credit worthiness of the customers should arise, HAGEMANN shall be entitled to claim down payment or additional security interests. If the customer should not comply with this request HAGEMANN shall be entitled to rescission of the contract without losing further claims, and may claim reimbursement of expenses from the customer.
9. User Specific Production Appliances (Forms, Equipment, etc.)
Prices for forms include sampling cost, but do not include costs for modifications, test control units and handling devices. Unless agreed upon otherwise, HAGEMANN is and remains owner of production appliances that it has manufactured by itself or through a third person. If agreed upon expressly, these production appliances shall only be used for orders of the customer as long as the customer fully meets its obligations to pay and accept. HAGEMANN shall store the production appliances for at least two years after the last delivery of items produced with the form. If it is agreed that the customer shall acquire the title in the production appliances, ownerships is transferred to him after payment of the agreed purchase price. HAGEMANN shall have the exclusive right of possession of the production appliances until acceptance and payment of the agreed minimum number of items or until expiration of the agreed period of time. Upon request HAGEMANN shall mark the production appliances after transfer of the title as third party property, and upon request insures it at the expense of the customer. With respect to the appliances of the customer used for production HAGEMANN shall only be liable to apply the standard of care that it applies in its own affairs. Costs for maintenance and supply shall be borne by the customer. The obligations of HAGEMANN expire as soon as the customer does not recollect the appliances after performance of the orders and corresponding request. HAGEMANN in any case shall have a right to withhold the appliances if the customer does not perform his duties entirely.
Unless an express development agreement is executed, any assistance of HAGEMANN relating to the design of the items to be delivered shall be understood as an act of courtesy free of charge which does not lead to liability regarding functional capability of the items and their fitness for use. The samples approved by the customer shall be decisive for quality and accomplishment. In case of defects of quality HAGEMANN shall at its own choice remedy any failure to perform, supply new parts free of charge or provide a credit for the reduction of the value of the goods. If despite the price reduction the performance has veritably no value to the customer the customer shall, prior notice, be entitled to rescind the contract. According to section 377 of the German Commercial Code, defects shall be notified to HAGEMANN immediately including a description of the defect; customer shall indicate the invoice number and send to HAGEMANN additional documentation, samples, bill of parcels and bill of control. Warranty shall be excluded in case of improper handling or processing and in case of inappropriate maintenance or modification at the customer or a third party without prior consent of HAGEMANN. In urgent cases customer shall have the right to eliminate the defect by its own and ask for the necessary expenses if HAGEMANN has been previously informed in this regard. The period of limitation is 12 months as of passing of the risk. Cases of mandatory longer limitation periods shall remain unaffected, e.g. section 438 paragraph 1 No. 2, section 479 paragraph 1 of the German Civil Code, or in cases in which the abbreviation of the limitation period results in inadmissible limitation of liability, e.g. in the case of section 276 paragraph 3 of the German Civil Code. Regarding damage claims, clause 11 (liability) shall apply; except as provided for in this clause, any other or further damage claims of customer with regard to defects are excluded. Otherwise claimed analogue application of section 474 to 479 of the German Civil Code (regressive liability) in cases other than that provided for by law shall be rejected.
HAGEMANN shall be liable for fatal, bodily and physical injury if HAGEMANN is responsible for the obligation, and for other damages due to intentional or grossly negligent breach of duty. Breach of duty by HAGEMANN is equal to a breach of duty by its legal representatives or persons whom it employs to perform its obligations (“Erfüllungsgehilfen”). Cases of compulsory liability, e.g. liability according an applicable Product Liability Act, liability under possible guarantees or, given the case, breach of fundamental obligations of the contract, shall remain unaffected. In case of compulsory liability based on the breach of fundamental obligations of the contract, liability shall be limited to damage which is foreseeable and typical for this type of contract. HAGEMANN shall not be liable beyond liability according to clause 11 sentence 1 to 4. If HAGEMANN is liable for the breach of duties, customer shall substantiate any claim for damages precisely; provisions relating to liquidated damages, contractual penalties or the like, even for the case of culpable delay in delivery, cannot be accepted.
12. Venue and Applicable Law
Place of Performance and venue for all legal disputes arising either directly or indirectly out of contractual relationships based on these Terms and Conditions of Purchase shall be Heilbronn. The contractual relationships shall be governed exclusively by German law excluding the conflict of law provisions and the UN Convention on Contracts for the International Sale of Goods (CISG).
If one of the provisions of these Terms and Conditions and of additional agreements reached should be or become ineffective, this shall not affect the validity of the Terms and Conditions in other respects. The parties hereto are obliged to agree upon a provision to replace the ineffective provision that approximates as closely as possible the economic intent of the ineffective provision.
Purchasing Terms and Conditions of Hans Hagemann GmbH
Applicable to business transactions with companies, legal entities under public law and special funds under public law.
Our Terms and Conditions of Purchase apply exclusively; general business terms and conditions of the supplier conflicting with or deviating from our Terms and Conditions of Purchase are only recognized insofar as we expressly agreed to them in writing. Acceptance or payment of goods and services from the supplier (hereinafter referred to as Products) does not constitute agreement.
2. Conclusion of and Modifications to the Contract
Orders, contracts and order releases as well as modifications and supplements thereto must be placed and made in writing. Oral agreements of any kind - including subsequent modifications - must be confirmed by us in writing to become effective. The written form requirement is also deemed complied with if communications are sent by remote data transmission or facsimile transmission. Cost estimates are binding and are not to be compensated unless otherwise expressly agreed. We are entitled to cancel the order if the supplier does not accept the order within one week of receipt thereof. Order releases within the framework of order and order release planning become binding if the supplier does not object within two working days of receipt thereof.
Deliveries deviating from our contracts and orders are only admissible if given our prior written approval. Agreed periods and dates are binding. Punctual compliance with the delivery periods and delivery dates is determined by the date of receipt of the goods by us. If the supplier is responsible for setup or installation and unless otherwise agreed, the supplier shall bear all the necessary incidental costs such as travel expenses, provision of tools and daily allowances, subject to the reservation of divergent regulations. The provisions of statute shall apply if agreed dates are not met. Besides the right to compensation, we are entitled to demand a contractual penalty in the amount of 1% of the total price of the order for each week or part thereof by which the time limit is exceeded, but not totalling more than 10%. The unconditional acceptance of a delayed delivery or service does not constitute a waiver of claims to which we are entitled due to the delayed delivery or service; this applies pending full payment of the amounts owed by us for the delivery or service in question. Partial deliveries are inadmissible in principle unless we expressly agreed to them or can reasonably be expected to accept them. The values established by us during the incoming goods inspection shall determine the quantities, weights and measurements subject to the reservation of different values being proved. We have the right to use software belonging to the scope of delivery, including the software documentation, to a legally permissible extent (§§ 69a ff. UrhG [German Copyright Act]). We also have the right to use such software, including the software documentation, with the agreed performance characteristics and to the extent necessary for the use of the product in accordance with the agreement. We also have the right to make a backup copy even without an express agreement.
4. Force Majeure
Acts of God, labour disputes, operational disturbances without fault, unrest and governmental measures discharge us from our obligation to take punctual delivery for the duration of such event. During such events and for a two week period thereafter we are entitled - notwithstanding our other rights - to withdraw from the contract in whole or in part, provided that such events are not of inconsiderable duration and our requirements are considerably reduced as the goods have to be procured elsewhere as a result thereof.
5. Advice of Dispatch and Invoice
The details in our orders and order releases shall apply. An invoice showing the invoice number and other allocation references is to be sent in one copy to the respective printed mailing address; the invoice must not be enclosed with the shipments.
6. Pricing and Passing of Risk
Unless otherwise agreed, the prices are “Delivered Duty Paid” (DDP Incoterms 2000) including packaging. Value added tax (VAT) is not included. The supplier bears all risks of loss or of damage to the goods until the goods are received by us or by our representative at the location to which the goods are to be delivered in accordance with the contract. The supplier is liable for damage to goods in transit due to inadequate or unsuitable packaging, even if we undertake shipment of the goods to their destination, unless we did not object to the packaging defects after information.
7. Payment Terms
Unless otherwise agreed, the invoice shall be paid either within 14 days subject to deduction of a 2 % discount or within 30 days without any deduction, with effect from the due date of payment and receipt of both the invoice and the goods or performance of the service. Payment is subject to invoice verification.
8. Claims Based on Defects
The supplier grants us full warranty of title and quality. The supplier is liable for the faultless condition and fitness of his delivery, both for ordinary applications and for that notified to the supplier, and for warranted characteristics of the goods. Except in the event of evident damage to goods in transit or aliud delivery we are not obliged to examine the supplier’s goods for defects on delivery, even by way of spot checks. Defects in the goods can be notified at any time during the entire warranty period, before and/or after processing and/or resale. We will give notice of any defects found immediately after their discovery. To this extent the supplier waives the objection to delayed notification of defects. The provisions of statute relating to defects as to quality and defects of title apply except insofar as otherwise provided hereinbelow. In principle we have the right to select the type of supplementary performance. In the event that the supplier does not commence rectifying the defect immediately after our request to remedy it, in urgent cases, especially to ward off acute danger or to prevent greater damage, we are entitled to undertake such rectification ourselves or to have it undertaken by a third party at the expense of the supplier. In case of defects of title, the supplier shall also hold us harmless from any third party claims possibly existing, unless the supplier is not accountable for the defect of title. The limitation period for claims based on defects is 3 years – except in cases of fraudulent misrepresentation – unless the thing has been used in a building construction in accordance with its customary use and caused the defectiveness thereof. The limitation period commences when the Product is delivered (passing of risk). Should we incur expenses as a result of the defective delivery of the Product, in particular transport, carriage, labour costs or costs of material, such costs shall be borne by the supplier.
In the event a product defect claim is asserted against us, the supplier is obliged to hold us harmless from such claims if the defect was caused with a probability bordering on certainty by the Product supplied by the supplier. In the cases above, the supplier assumes all costs and expenses, including the costs of any legal action. This also applies to any recall action of the Product supplied by the supplier or objects including a Product supplied by the supplier. Prior to any recall action which is partially or wholly due to a defect in a Product supplied by the supplier, we shall notify the supplier, give the supplier the opportunity to collaborate and discuss with the supplier the efficient conduct of the recall action, unless no notification of or collaboration by the supplier is possible on account of the particular urgency.
10. Conducting Work
Persons who carry out work on our factory premises in fulfilment of the contract must observe the respective plant regulations.
11. Provision of Materials
Materials, parts, containers and special packaging provided by us remain our property. These may only be used as designated. The materials are processed and parts assembled for us. It is agreed that we are co-owner of the products manufactured with our materials and parts in proportion to the value of the materials or parts provided in relation to the value of the whole product; such products shall be kept safe for us by the supplier to this extent.
12. Documentation and Confidentiality
The supplier shall keep confidential with respect to third parties all business and technical information made available by us (including features which may be derived from objects, documents or software provided and any other knowledge or experience) as long and to the extent that it is not proven public knowledge, and it may only be made available to those persons in the supplier’s business facility who necessarily need to be involved in the use thereof for the purpose of delivery to us and who are also committed to confidentiality; the information remains our exclusive property. Without our prior written consent, such information must not be duplicated or exploited commercially – except for deliveries to us. At our request, all information originating from us (if appropriate also including any copies or records made) and loaned items must be, without undue delay, returned to us in full or destroyed. We reserve all rights to such information (including copyright and the right to file for industrial property rights such as patents, utility models, semiconductor protection, etc.). In the event this is provided to us by third parties, the reservation of rights also applies for the benefit of such third parties. Products manufactured on the basis of documentation drafted by us such as drawings, models and the like, or based on our confidential information, or manufactured with our tools or with tools modelled on our tools, may neither be used by the supplier itself nor offered or supplied to third parties. This also applies analogously to our print orders.
13. Intellectual property rights
The supplier will indemnify us in respect of the goods delivered or parts thereof against claims arising from the intellectual property rights of third parties, such as patents, copyrights, trademarks and suchlike. The supplier undertakes to intervene at our request in any legal proceedings brought against us, or to conduct the action in place of us at his own expense and/or to bear the cost and compensation consequences arising from the action.
14. Export Control and Customs
The supplier shall be obliged to inform us about any applicable (re-) export licence requirements for the Products under German, European or US export control law and customs regulations as well as the export control law and customs regulations of the country of origin of the Products. Therefore, at least in his offers, order confirmations and invoices the supplier shall provide the following information with respect to the Products:
- export list number (Ausfuhrlistennummer) pursuant to Annex AL to the German Foreign Trade and Payments Regulation (Außenwirtschaftsverordnung) or any comparable export list information of applicable export lists;
- ECCN (Export Control Classification Number) for US-goods (including technology and software) pursuant to the US Export Administration Regulations (EAR);
- country of origin of the Products and of the components thereof, including technology and software;
- any transport of the Products through USA, manufacture or stocking of the Products in the USA and whether the Products have been manufactured by using US technology;
- HS-Code of the Products; and
- a contact person in his organisation to provide further information to us upon request.
Upon our request the supplier shall provide any other foreign trade data with respect to the Products and their components in written form and shall inform us on all changes to such data without undue delay and prior to supply to us.
15. Social Responsibility and Protection of the Environment
The supplier shall comply with the respective statutory provisions governing the treatment of employees, environmental protection and health and safety at work and to work on reducing the adverse effects of its activities on human beings and the environment. Further, the supplier shall comply with the European Community Regulation REACH (EC 1907/2006), and delivered products or parts must not contain any product, material or substance prohibited by the legislations or regulations applicable in the supplier’s country, the European Union and all countries in which the products or parts are marketed and used.
16. Place of Performance
The place of performance is the place to which the goods are to be delivered in accordance with the contract or where the service is to be rendered.
If one of the provisions of these Terms and Conditions and of additional agreements reached should be or become ineffective, this shall not affect the validity of the Terms and Conditions in other respects. The parties hereto are obliged to agree upon a provision to replace the ineffective provision that approximates as closely as possible the economic intent of the ineffective provision. The contractual relationships shall be governed exclusively by German law excluding the conflict of law provisions and the UN Convention on Contracts for the International Sale of Goods (CISG). The venue for all legal disputes arising either directly or indirectly out of contractual relationships based on these Terms and Conditions of Purchase shall be Heilbronn. We further have the right to take legal action against the supplier at a court with jurisdiction over the registered office or branch office of the supplier or at the court with jurisdiction over the place of performance at our discretion.