Version: 1 June 2012
1. Scope of the STC
1.1 All deliveries, services and offers made, provided or submitted by haidermetall Eduard Haider GmbH & Co. KG (hereinafter referred to as “HM”) to its commercial customers (hereinafter referred to as the “Dealers”) shall be governed by the following Standard Terms and Conditions (hereinafter referred to as STC). These STC shall form an integral part of all contracts concluded by HM with Dealers for the deliveries or services offered by HM. They shall also govern any future deliveries, services or offers made, provided or submitted by HM, even if they are not separately agreed upon again.
1.2 Standard terms and conditions of the Dealer or of third parties shall not apply, even if their application is not objected to by HM in the individual case. Such standard terms and conditions shall only be applicable if they have expressly been approved by HM.
2. Offer and Conclusion of Contract
2.1 The legal relationship between HM and the Dealer shall be based exclusively on the written contract of sale, which may also consist of an offer and its acceptance by means of a separate document (e.g. a letter), and on these STC. The contract of sale contains any and all agreements made between the parties in respect of the object of the contract. Oral agreements or promises made by the parties shall only be applicable if they are expressly included in the contract of sale.
2.2 Amendments to or modifications of the contractual provisions must be made in writing in order to be effective, i.e. in the form of a document signed personally by the parties. For the observance of the written form transmission by fax is sufficient, while communication in text form (e.g. by email) is not.
2.3 Any features stated by HM regarding a supplied item or provided service (e.g. measurements, functional features, tolerances, technical features) and any reproductions of them (e.g. drawings or depictions) are only approximate features, unless fitness for the contractual use requires that exact features be stated. Such features are not guaranteed characteristics, but a description or characterization of the items supplied or services provided. Deviations customary in trade, or deviations due to statutory provisions or technical improvements, and the replacement of components by equivalent parts shall be admissible, provided that they do not affect fitness for the contractual use.
2.4 HM shall reserve the title or copyright in all submitted offers and quotations, drawings, depictions, calculations, leaflets, catalogues, models, tools and other documents and materials. Without HM’s express prior approval, the Dealer shall not give any third parties access to such documents or their contents, disclose them to any third parties, or use or reproduce them himself or through third parties.
2.5 In case of cancellation of products already in the process of production, HM shall be entitled to invoice at least 30% of the order value, plus statutory value-added tax.
3. Prices, Delivery, Passage of Risk
3.1 The prices quoted by HM are exclusive of value-added tax, plus shipping costs. If a period of more than four months has lapsed between the date of the conclusion of the contract and the date of delivery, the prices valid at the date of delivery shall apply.
3.2 Delivery dates and periods are without engagement, partial deliveries are admissible. Fixed dates are subject to HM’s confirmation in writing.
3.3 The risk of accidental loss or deterioration of the goods shall pass onto the Dealer upon delivery of the goods, in case of sale to destination according to buyer’s instructions, upon delivery of the goods to the person in charge of the shipment. In case of written request by the Dealer, the goods shall be insured at his expense.
3.4 In case of non-acceptance of the goods, after the expiry of a supplemental period of ten days, HM may, at its option, notwithstanding its statutory rights, charge the purchase price, rescind the contract or claim damages for non-fulfillment. The same shall apply in case that the delivery period has not been agreed upon and, despite a request, the Dealer does not accept the goods within a supplemental period of 10 days.
3.5 Delays in delivery due to force majeure (e.g. strike, lockout, war, civil unrest, power failure, shortage of raw materials, traffic restrictions and similar circumstances) or other unforeseeable circumstances beyond HM’s control shall involve a reasonable extension of the delivery period.
4.1 Invoices shall be settled by the Dealer through non-cash payment within a period of 30 days from the date of invoice; HM’s sales representatives or staff members shall not be entitled to accept cash payments. After the expiration of this period, the Dealer is in delay of payment. For payment within 10 days, HM grants a discount of 2%. HM charges an all-inclusive reminder fee of €5.00 per reminder.
4.2 In the individual case HM shall be entitled to make deliveries conditional on the advance payment of the purchase price and the shipping costs.
4.3 In case of breach of contract by the Dealer, in particular delay in payment, HM shall be entitled to rescind the contract and claim recovery of the goods. The same shall apply if HM obtains knowledge at a later point in time of circumstances questioning the Dealer’s solvency. In such case, HM shall be entitled to make deliveries yet to be effected conditional on the provision of appropriate security.
5. Notice of Defects, Warranty
5.1 The Dealer shall be obligated to properly inspect the goods delivered and to give notice in writing of any defects he has detected. The obligation of inspection and notice of defects shall be governed, in particular, by the provisions of section 377 of the German Commercial Code. This means, among other things, that the Dealer must inspect the goods upon delivery, and to the extent possible in the ordinary course of business, promptly give notice of any recognizable defects to HM. If a defect becomes apparent at a later point in time, the Dealer must give notice of such defect upon its detection. If the Dealer does not comply with his obligation to give notice of defects, he shall lose his right to warranty. HM’s sales representatives shall not be entitled to receive notices of defects.
5.2 HM reserves the right to choose between repair and subsequent delivery in fulfilling its obligation of subsequent performance. Any items replaced within the scope of subsequent performance shall become the property of HM and, at HM’s request, be sent to HM at HM’s expense. Subsequent performance is considered to have failed if two attempts of subsequent performance by HM for which the Dealer has set a reasonable deadline have not led to the remedy of the defect. This shall not apply in case several attempts of subsequent performance are unacceptable to the Dealer. If subsequent performance has failed, or if in the exceptional case subsequent performance is not provided for by law, the Dealer may, pursuant to the statutory provisions, reduce the purchase price, or rescind the contract and claim damages or compensation for expenses incurred in vain. Rescission of the contract shall be excluded if the breach of duty on the part of HM is negligible.
5.3 The Dealer shall not be entitled to assign his warranty claims to third parties.
5.4 A right to warranty shall not exist if the customer – except for paragraph (3) – has modified the delivered item himself or through third parties and thereby made the remedy of defects unreasonable or more difficult.
5.5 In case of unjustified notice of defect, HM shall be entitled to demand from the Dealer reimbursement of any expenses incurred in the attempt to remedy the defect.
6.1 Any liability between the parties for damages or reimbursement of expenses under or in connection with the delivery relationship between HM and the Dealer shall be governed by the following provisions.
6.2 HM shall not be liable for impossibility of delivery or delay in delivery which is due to force majeure or other circumstances unforeseeable at the time of the conclusion of the contract (e.g. interruptions of operation of any kind, difficulties in the procurement of materials or electric power, transport delays, strikes, rightful lockouts, shortage of labor, electric power or raw materials, difficulties in obtaining required official permits, official measures, or lacking, incorrect or late delivery by suppliers) beyond HM’s control. In case of temporary impediments the periods of delivery or performance shall be extended or postponed for the duration of the impediment, plus a reasonable lead time. If such events are not only temporary, HM shall be entitled to rescind the contract, without the buyer being entitled to damages or reimbursement of expenses.
6.3 In case of culpable breach of duty the following shall apply: HM shall be liable without limitation in case of intent or gross negligence, and in case of harm to body, health or life. In addition, in case of slight negligence HM shall only be liable for breach of material contractual duties, i.e. such duties which are essential for the performance of the contract of sale, the fulfillment of which the Dealer was able to rely on.
7. Reservation of Title
7.1 HM shall reserve the title in the goods until all present or future claims from the current business relationship are satisfied.
7.2 Any goods subject to reservation of title (reserved goods) shall be stored separately, marked as the property of HM and treated carefully by the Dealer. He shall inform HM promptly of any seizure of such goods, e.g. attachments, or of any damage or deterioration caused to them. The pledging or assignment as security of such goods shall be inadmissible.
7.3 In case of resale or lease of the reserved goods – which is admissible in the ordinary course of business – the Dealer shall already assign as security any future claims he may have against his customers from such resale or lease, without future separate declaration of assignment being necessary. The Dealer shall be entitled until further notice to collect the claims assigned, but he shall not be authorized to make any other use of such claims (e.g. assignment). At HM’s request the Dealer shall inform his customers of such assignment and furnish HM any documents and information required for asserting their rights.
7.4 In the event that the Dealer is partly or entirely in default of payment, overindebted, suspends payments, experiences a considerable deterioration in his financial situation, or files a petition for insolvency, HM shall be entitled to immediate recovery of the entire reserved goods. Such reclaim or recovery of the goods shall not constitute a rescission of the contract. HM shall be entitled to make use of the reserved goods with the diligence of a prudent businessman and satisfy itself by offsetting its outstanding claims against the proceeds obtained from such use.
8. Prohibition of Assignment, Prohibition of Setoff
8.1 The Dealer shall not be entitled to assign to third parties any claims he may have against HM without HM’s prior written approval.
8.2 The Dealer may only offset, or exercise a right of retention in respect of, such counterclaims which are uncontested with regard to their cause and amount or which have been awarded to him by a final and absolute court decree.
9. Final Provisions
9.1 Place of jurisdiction for any disputes arising from the business relationship between HM and the Dealer shall be Pullenreuth (Germany). HM shall be entitled to sue the Dealer also before the courts having local jurisdiction for the place of his branch offices.
9.2 The relationship between HM and the Dealer shall be exclusively governed by the law of the Federal Republic of Germany, the conflict of laws rules of the German Private International Law being excluded. The provisions of the United Nation’s Convention on Contracts for the International Sale of Goods (CISG) shall not be applicable.
Observation pursuant to Section 33 of the German Data Protection Act:
The Buyer's name and address and all data required for the processing and execution of the order are stored in automated files.
Standard Terms and Conditions of Purchase
haidermetall Eduard Haider GmbH & Co. KG
Version: 1 June 2012
1. Scope of the STC
1.1 The purchase of any products and services by haidermetall Eduard Haider GmbH & Co. KG (hereinafter referred to as “HM”) from suppliers (hereinafter referred to as the “Suppliers”) shall be governed exclusively by the following Standard Terms and Conditions (hereinafter referred to as STC). These STC shall form an integral part of all contracts concluded by HM with Suppliers for the deliveries or services offered by HM. They shall also govern any future deliveries, services or offers made, provided or submitted by the Suppliers to HM, even if they are not separately agreed upon again.
1.2 Standard terms and conditions of the Suppliers or of third parties shall not apply, even if their application is not objected to by HM in the individual case. Such standard terms and conditions shall only be applicable if they have expressly been approved by HM.
2. Offer and Conclusion of Contract
2.1 The legal relationship between HM and the Supplier shall be based exclusively on the written contract, which may also consist of an offer and its acceptance by means of a separate document (e.g. a letter), and on these STC. The contract contains any and all agreements made between the parties in respect of the object of the contract. Oral agreements or promises made by the parties shall only be applicable if they are expressly included in the contract.
2.2 Enquiries by HM are without engagement. On the basis of an enquiry, the Supplier shall submit an offer to HM in which deviations from the enquiry shall expressly be pointed out. A contract shall not be concluded until HM has accepted this offer.
2.3 Amendments to or modifications of the contractual provisions must be made in writing in order to be effective, i.e. in the form of a document signed personally by the parties. For the observance of the written form transmission by fax is sufficient, while communication in text form (e.g. by email) is not.
2.4 If the Supplier does not confirm an order of HM within a period of 14 days, HM is entitled to revoke the order until receipt of the Supplier’s confirmation of acceptance.
3. Supplier’s Obligation to Advise
3.1 If HM has informed the Supplier of the intended use of deliveries or if the Supplier is able to recognize such intended use without express indication, the Supplier shall be obligated to advise HM promptly if his deliveries or services are not suitable for the intended use.
3.2 The Supplier shall inform HM promptly in writing if the composition of the materials processed or the construction design differ in any way from deliveries or services made or provided to HM in the past. Any modifications shall be subject to HM’s written approval.
4.1 The prices stated in HM’s orders shall be fixed prices. They are plus value-added tax and include the costs for suitable packaging, transport to the place of performance and, if any, customs duties.
4.2 Price changes must be expressly accepted in writing by HM.
5. Place of Performance, Packaging
5.1 Place of performance for deliveries or services of the Supplier shall be the shipping address stated in the order. If no shipping address is stated and the place of performance cannot be deduced from the nature of the obligation, HM’s business domicile shall be the place of performance.
5.2 The items to be delivered shall be shipped with proper packaging. Packaging and shipping instructions must be observed. All delivered items must be in compliance with statutory provisions and public regulations concerning safety and health requirements.
5.3 Delivery notes or packing slips shall be enclosed with each delivery. The order numbers and the marking of HM requested in the order must be stated in all documents. A dispatch note shall be remitted to HM on the day of dispatch at the latest.
6. Passage of Risk, Passage of Title
6.1 Regardless of the pricing agreed upon, in case of delivery without installation or assembly the risk shall pass on HM upon receipt at the shipping address stated by HM, or in case of delivery with installation or assembly, upon the successful completion of acceptance. Putting into operation or use of the delivered items shall not replace a declaration of acceptance by HM.
6.2 HM shall not be responsible for taking out insurance for the delivery, in particular forwarding insurance, and for the costs of such insurance.
6.3 Title to the delivered items shall pass onto us after payment. Any prolonged or extended reservation of title shall be excluded.
7. Delivery Dates, Damage Caused by Delay
7.1 Delivery dates and periods are always binding. Partial deliveries shall be subject to HM’s written approval. The Supplier shall be obligated to inform HM promptly of any circumstances which may result in the impossibility of observing the delivery date agreed upon.
7.2 In case of delay in delivery, HM shall be entitled to claim for each complete week liquidated damages in the amount of 2.5% of the value of the shipment, however not more than a maximum of 10% in total. We reserve the right of asserting further statutory claims. The Supplier shall have the right to prove that no damage or a considerably smaller damage has been caused by the delay. In such case the amount of liquidated damages shall be reduced accordingly. HM reserves the right to claim liquidated damages until final payment.
8. Invoicing and Payment
8.1 HM is only able to process the invoices if the order number stated in the order and the marking requested in the order is stated in the invoices. The terms of payment shall not begin to run until the receipt of a proper invoice in compliance with statutory and tax requirements.
8.2 Payments shall be made in compliance with the terms and conditions set forth in the order. Unless otherwise agreed upon, HM will settle the invoice with a discount of 3% within 14 days from receipt of the shipment and the invoice, or net within 30 days from receipt of the invoice. Periods during which HM is closed due to company holidays shall not be included in the calculation of the period for payment. The deduction of discount shall also be admissible in case of setoff or retention due to defects.
9. Obligation to Give Notice of Defects, Warranty
HM shall inspect the goods upon arrival in compliance with commercial requirements. Notice of defects is deemed given in due time if it is received by the Supplier within a period of 7 workdays calculated from the date of receipt of the shipment, or in case of hidden defects, from the discovery of the defects. Section 377 of the German Commercial Code shall not apply.
10. Warranty and Liability
10.1 The Supplier shall warrant that the items delivered or the services provided by him have the features guaranteed, comply with generally accepted engineering standards and do not have defects in quality or title which nullify or reduce their value or fitness for use as is customary or contractually required.
10.2 HM is entitled to the full scope of statutory warranty claims. Notwithstanding such statutory warranty claims, HM shall be entitled to demand, at its discretion, from the Supplier subsequent performance through remedy of the defect or replacement. In such case the Supplier shall bear the costs incurred in remedying the defect or replacement. HM shall reserve the right to claim damages or rescind the contract.
10.3 If samples are provided, the features of such samples are deemed guaranteed by the Supplier.
10.4 The period of limitation for HM’s claims for defects in quality shall be 36 months from the passage of risk pursuant to clause 6.1; the period of limitation for HM’s claims for defects in title shall be ten years from the passage of risk pursuant to clause 6.1.
11. Secrecy, Stating as Reference Customer
11.1 The Supplier shall be obligated to keep secret any commercial and technical information or documents of which he has obtained knowledge due to the business relationship, in particular depictions, drawings or calculations, and to use them exclusively for the delivery of the ordered items or services. Any subsuppliers shall be bound to secrecy accordingly by the Supplier. The obligation to maintain secrecy shall continue in force beyond the execution of the contract.
11.2 The supplier may state HM and/or HM’s trademarks as reference or in publications only subject to HM’s prior written approval.
12. Subcontractors, Assignment of Claims towards HM
12.1 The use of subcontractors by the Supplier for the fulfillment of the ordered deliveries or services shall be subject to HM’s prior written approval.
12.2 The assignment of claims towards HM shall be subject to HM’s express written approval.
13. Final Provisions
13.1 Place of jurisdiction for any disputes arising from the business relationship between HM and the Supplier shall be Pullenreuth (Germany). HM shall be entitled to sue the Supplier also before the courts having local jurisdiction for the place of his branch offices.
13.2 The relationship between HM and the Supplier shall be exclusively governed by the law of the Federal Republic of Germany, the conflict of laws rules of the German Private International Law being excluded. The provisions of the United Nation’s Convention on Contracts for the International Sale of Goods (CISG) shall not be applicable.
Observation pursuant to Section 33 of the German Data Protection Act:
The Supplier's name and address and all data required for the order and its execution have been stored in automated files.