TERMS AND CONDITIONS OF SALE AND DELIVERY
Scope of Application
The following General Terms and Conditions of Business (GT&Cs) shall apply only in commercial transactions between Hahn Kunststoffe GmbH (supplier) and companies, merchants, legal entities under public law and special funds under public law.
I. GENERAL
- Orders shall become binding only as a result of the supplier's order acknowledgement. Changes and additions must be in text form. All offers shall be subject to change without notice, unless designated as fixed offers.
- These terms and conditions shall also apply to all future transactions between the supplier and the orderer without having to be expressly referred to again.
- The orderer's terms and conditions of business shall not apply, unless expressly accepted by the supplier.
- The orderer shall be responsible for the completeness, accuracy and timely submission of the execution documents to be obtained or drawn up by the orderer.
- If production capacities are reserved at the behest of the orderer, and execution fails to materialise or is delayed for reasons attributable to the orderer, the orderer shall be liable for the loss incurred as a result thereof.
- The supplier shall not be liable for evident printing errors.
- If any individual provisions are or become ineffective, this shall not affect the remaining terms and conditions.
II. PRICES
- Unless otherwise specifically agreed, the prices shall be understood as being ex works excluding freight charges, customs duties, import levies, incidental levies and packaging, plus value-added tax at the statutory rate.
- The prices have been calculated under the premise that pricing conditions will remain stable. If the prices (price of materials, wages, manufacturing costs etc.) materially change between the time of the conclusion of the contract and the actual delivery date, the supplier and the orderer shall agree upon an adjustment of the prices and of the cost portions for moulds. In the event of unforeseeable cost increases equal to least 20% of the total cost, the supplier may rescind the contract if no agreement on a price adjustment is reached. The same shall apply to the orderer in the event of corresponding cost reductions.
- If it is agreed that the price shall depend upon the weight of the parts, the final price shall ensue from the weight of the samples approved.
- If the supplier has agreed to carry out installation or assembly, the orderer shall, in addition to the agreed fee, bear all customary incidental expenses such as travel expenses, the cost of transporting the tools of the trade and personal luggage, as well as the separation allowance, unless otherwise agreed.
- In the event of new orders (= follow-up orders), the supplier shall not be bound by previous prices.
III. DUTY TO DELIVER / DUTY TO ACCEPT DELIVERY
- Unless otherwise agreed, the place of performance for the delivery shall be the works, the supply depot or the company operating on the supplier's behalf. Any delivery to a place other than the place of performance shall take place on the orderer's account and at the orderer's risk.
- Delivery periods mentioned in the offer or in the order acknowledgement shall be deemed to be merely approximate, unless fixed delivery periods have been expressly agreed. As a rule, the delivery periods shall begin to run upon receipt of all documents and information necessary for the execution of the order, upon receipt of the down payment and upon timely delivery of the material to be supplied by the orderer. Unless otherwise expressly stipulated in the order acknowledgement, these periods shall relate to the provision of the goods for hand-over or shipment at the works or the supply deposit. If shipment is delayed or impossible through no fault of the supplier, the delivery period shall be deemed met upon notification of readiness for shipment.
- If an agreed delivery period is not met due to the supplier's own fault, the orderer shall, unless it acted with gross negligence or wrongful intent, be entitled to demand compensation for default, or rescind the contract, upon the expiration of a reasonable grace period in writing, with any further claims being excluded. The compensation for default shall be limited to a maximum of 5% of the part of the delivery not carried out in conformity with the contract. Rescission shall be excluded if the orderer itself defaulted on taking receipt.
- If, after the contract has been concluded, there are emerging indications that the orderer is insolvent or is solvent only to a limited extent, or indications of a considerable deterioration in the orderer's credit-worthiness, the supplier shall have the right to deliver concurrently with payment, unless the orderer provides sufficient security beforehand. The duty to deliver shall be suspended as long as the orderer is in arrears with a due amount owed to the supplier.
- In the case of call-off orders where the term, the manufacturing batch sizes and the date for acceptance have not been agreed upon, the supplier may, no later than three months after having acknowledged the order, demand that these details be bindingly specified. If the orderer fails to comply with this request within three weeks, the supplier shall be entitled to set a two-week grace period and, upon the expiration thereof, demand immediate delivery concurrently with payment, rescind the contract and/or claim damages.
- If the orderer fails to meet its duties to accept delivery, the supplier shall, notwithstanding other rights, not be bound by the provisions concerning a self-help sale, but rather may sell the delivery item on the open market after having given the orderer prior notice.
- With a view to the use of recycled material, the supplier shall be entitled to use raw materials and other materials that deviate from the order acknowledgement and the sample provided, insofar as the usability of the goods is not materially restricted as a result of the use of such materials. This shall particularly apply to the colour and the surface finish of the material.
- Events of force majeure shall entitle the supplier to postpone the delivery for the duration of the hindrance plus a reasonable start-up period and, in the case of permanent or longlasting hindrances to delivery, to wholly or partly rescind the part of the contract not yet performed. Strike, lockout or unforeseeable, unavoidable circumstances, e.g. operational disruptions that make it impossible for the supplier to deliver on time despite reasonable efforts, shall be deemed equivalent to force majeure; the supplier shall be required to furnish proof thereof. This shall apply even if the aforementioned hindrances occur during a period of default or at a subsupplier. The supplier shall notify the orderer without delay in the event of the occurrence of a case of force majeure as set out in subsection 9. It shall keep to a minimum any adverse effects on the orderer.
- Contractual penalties shall enter into effect only as a result of an express written agreement.
- Packaging brought onto the market by the supplier shall be taken back at the works or the supply deposit within the scope of the statutory obligations, provided that the packaging is completely empty and clean and has been sorted and delivered by the buyer or at its expense.
- Goods can only be returned with the consent of the supplier and subject to the following conditions:
a) The delivered goods must not have been installed/fitted at any time.
b) The goods to be returned must have been delivered a maximum of 6 months in the past; the date of the initial delivery of the goods shall be binding when calculating this period.
c) The costs for the return delivery must be paid by the returning party; alternatively, after consulting the manufacturer, return transport may be arranged at the returning party's own expense with its own forwarding agent.
d) The returning party is responsible for ensuring that the packaging is secure and ready for shipping.
e) If the return is collected by a forwarding agent appointed by the manufacturer, the returning party must hand over/load the goods to the forwarding agent at its own expense.
The costs for returning to stock are as follows:
f) 15% of the net value of the goods for full pallets as originally packed.
g) 25% of the net value of the goods for pallets that have been opened or for full pallets are no longer as originally packed.
h) In any case, this shall be a minimum of €100.00 net per return delivery.
i) If the initial delivery was free of charge, the freight costs that would have been charged for a single order of the returned goods must be paid after the return, based on the weight of the consignment.
j) Costs for returning to stock where the return delivery consists of full pallets as originally packed and opened pallets shall be charged separately according to the above provision.
We reserve the right to charge further expenses, such as reduction in value or necessary cleaning of the returned goods.
All the above provisions shall also apply to cancellations prior to delivery from the time that the packaging of the ordered goods is complete and the ordered goods are ready to ship. - Entry Certificate / intra-Community delivery
a) The customer takes note that, if it collects the goods itself (or has the goods collected by a carrier engaged by the customer), and the goods enter another EU Member State, the customer will receive an invoice excluding value-added tax. This tax exemption for intra-Community deliveries is conditional upon the customer confirming that the goods have entered another EU Member State. Within three months of having collected the goods itself, the customer shall therefore confirm to us in writing that the goods have entered another EU Member State. By giving this confirmation, the customer declares that the goods have actually entered another EU Member State (Entry Certificate).
b) If we do not receive the Entry Certificate from the customer within three months of the customer having collected the goods itself, we shall be entitled to correct the invoice. By way of such invoice correction, we shall be permitted to include in the invoice the value-added tax that will be incurred if we do not receive the Entry Certificate. In this case, the customer must pay the value-added tax to us immediately.
c) If the customer does not send us an Entry Certificate in due time, we shall, in the case of future purchases by the customer, be entitled to charge value-added tax even if the goods are collected by the customer itself and enter another EU Member State. In this case, we shall refund the valueadded tax to the customer if the customer sends us an Entry Certificate.
IV. PACKAGING, SHIPMENT AND PASSAGE OF RISK
- Unless otherwise agreed, the supplier shall choose the packaging, the method of shipment and the shipment route.
- The risk of destruction or deterioration of the goods delivered shall pass to the orderer when the goods leave the supply works or the supply depot. If dispatch is delayed due to the orderer's fault, the risk shall already pass upon notification of readiness for shipment. In these cases, the orderer shall obliged to bear the storage costs.
- At the orderer's written request, the goods shall, at its expense, be insured against risks to be specified by the orderer.
V. SECURITY RIGHTS
- The deliveries shall remain the supplier's property until all claims to which the supplier is entitled against the orderer have been satisfied, even if the purchase price for specifically designated claims has been paid. In the case of a running account, the retained title to the deliveries (goods under retention of title) shall be deemed to be security for the supplier's invoice balance. If the supplier becomes liable on the basis of a bill of exchange in the context of the payment of the purchase price, the retention of title shall not cease to exist before the bill of exchange has been honoured by the buyer as the drawee.
- Any reworking or processing by the orderer shall be undertaken on the supplier's behalf with exclusion of acquisition of title under Section 950 BGB [German Civil Code]; the supplier shall, commensurate with the ratio of the net invoice value of its goods to the net invoice value of the goods to be reworked or processed, become co-owner of the item thus created, which shall serve as goods under retention of title for securing the supplier's claims under subsection 1.
- If the orderer processes (combines/mixes) the delivery item with other goods not belonging to the supplier, the provisions under Sections 947 and 948 BGB shall apply, with the consequence that the supplier's co-ownership share in the new item shall then be deemed to be goods under retention of title within the meaning of these terms and conditions.
- On-selling of the goods under retention of title by the orderer shall be permitted only in the ordinary course of business and on condition that the orderer likewise reaches an agreement with its customers on retention of title in accordance with subsections 1 to 3. The orderer shall not be entitled to dispose of the goods under retention of title in any other way, in particular by pledging or assigning as security.
- In case of on-selling, the orderer hereby assigns to the supplier in advance, until all the supplier's claims have been satisfied, the claims accruing to the orderer from on-selling as well as the other legitimate claims against its customers, along with all subsidiary rights. At the supplier's request, the orderer shall, without delay, provide the supplier with all information and documents necessary for the assertion of the supplier's rights in relation to the orderer's customer.
- If the goods under retention of title are, by agreement in accordance with subsection 2 and/or 3, on-sold by the orderer together with other goods not belonging to the supplier, the assignment of the purchase-price claim under subsection 5 shall apply only to the invoiced value of the supplier's goods under retention of title.
- If the value of the security existing for the supplier exceeds the supplier's total claims by more than 20%, the supplier shall, to this extent, release security of its choosing at the orderer's request.
- Any pledging or seizure of the goods under retention of title by a third party shall be reported to the supplier without delay. Intervention costs resulting therefrom shall invariably be chargeable to the orderer, unless borne by third parties.
VI. DEFECTS IN QUALITY
- The orderer shall, upon receipt of the delivery, check without delay whether the goods have been made available faultlessly and completely and immediately report in writing any detectable defects. In all other respects, Section 377 HGB [German Commercial Code] shall apply. Subject to VI. (5), the samples approved by the orderer in writing shall determine the quality and design.
- All parts or services exhibiting a defect within the limitation period under VI. (4) shall, at the supplier's option, be rectified, replaced or rendered a new free of charge, insofar as the cause of the defect already existed at the time of the passage of risk. If the supplier fails to meet this obligation within a reasonable period, or if rectification fails despite a repeated attempt, the orderer shall be entitled to reduce the purchase price or rescind the contract. Further claims, in particular expenditure reimbursement or damage claims based on a defect or on defect-related consequential loss, shall exist only within the scope of the provisions relating to X. Replaced parts shall, on request, be returned to the supplier carriage unpaid.
- If the supplier has advised the orderer outside of its contractual service, it shall be liable for the functioning and suitability of the delivery item only if this was expressly warranted beforehand. Insofar as the supplier has made statements relating to the usability of the products, such statements shall constitute a separate advisory service only if this has been expressly agreed upon in writing.
- Unless otherwise agreed, all quality-related defects shall become statute-barred twelve months after the passage of risk. Insofar as the law mandatorily prescribes longer periods, these shall apply. Damage claims shall be subject to statutory limitation. However, damage claims based on a breach of the duty to render supplementary performance shall not be assertable if supplementary performance can be lawfully refused under sentence 1.
- The use of recyclate may lead to fluctuations in the quality of the products, particularly their colour. In this respect, the samples that are presented to the orderer by the supplier on request for examination shall constitute non-binding viewing items. Minor deviations from these shall not give entitlement to lodge a complaint. The reference to technical standards shall serve as a service specification and not be interpreted as a guarantee of specific qualities. Defects in quality shall not exist if the items delivered are suitable for the use intended under the contract or for the customary use and exhibit a quality customary of items of the same kind and which the buyer can expect of this type of item. In this respect, the use of recyclate shall be especially taken into account. For this reason, agreements on desired colours shall also only be possible within the scope of such manufacturing-related fluctuations in colour. If the item delivered is used outdoors and is exposed to the weather for a relatively long period, it must be additionally taken into account that air pollution, "acid" rain and other effects of the weather (in particular UV radiation) can alter the surface and colours. However, this shall not affect the useful life. Guarantees of colour fastness are excluded. Additionally, fluctuations in the dimensions (up to +/- 3 % at the time of delivery) may arise. Temperature-dependent fluctuations in length of +/- 1.5 % are customary in the case of plastic profiles and must be constructively taken into account when installing. These fluctuations in length shall be excluded from liability.
- Autonomous rectification work and improper handling by the orderer shall cause all defect-related claims to be lost.
- Wear and tear to the customary extent shall not give rise to warranty claims.
- Recourse claims under Sections 478, 479 BGB shall exist only insofar as the consumer's claim is justified and only to the statutory extent, but not for goodwill arrangements not agreed upon with the supplier, and shall be conditional upon compliance with the default reporting obligations.
VII. TERMS OF PAYMENT
- Payments, including those for subdeliveries, shall be made by the buyer on a cashless basis into our designated bank account within 14 days without any deduction, with all expenses being borne by the buyer.
- All payments shall be made in € (euros) exclusively to the supplier. Agents shall not be entitled to collect payments.
- If the agreed date for payment is exceeded, interest shall be charged at the statutory rate, unless the supplier proves a higher loss. The orderer reserves the right to prove that it is not at fault.
- The orderer shall be entitled to rights of set-off only if its claims have been established by a final and non-appealable court judgement, are undisputed or have been acknowledged by us. The orderer shall be authorised to exercise a right of retention insofar as its counter-claim is based on the same contractual relationship.
- Unless otherwise expressly stipulated regarding redemption, any payment received shall serve first of all to settle any still existing due, outstanding items, and the surplus amount shall then be credited against the invoice for which the payment was intended.
- Claims against us shall not be assigned to third parties.
VIII. SUPPLYING OF MATERIAL BY THE ORDERER
- If material is supplied by the orderer, this material shall, at the orderer's expense and risk, be supplied in due time and in faultless condition with an appropriate quantity surplus of at least 5 %.
- If these prerequisites are not met, the delivery period shall be reasonably extended. Except in cases of force majeure, the orderer shall bear the resulting extra costs, including those in connection with interruptions in manufacture.
IX. DAMAGE CLAIMS
- Damage claims against us or our agents on whatever legal basis, in particular also for indirect and consequential loss, are excluded. This shall not apply in cases of wrongful intent, gross negligence, absence of features warranted, mortal injury, physical injury or health damage or in cases of culpable breach of duties material to the contract. In the case last mentioned, our liability shall be limited to the foreseeable loss typical of this type of contract.
X. PROPERTY RIGHTS
- If the supplier is required to deliver on the basis of drawings, models or samples from the orderer or using parts supplied by the orderer, the orderer shall be accountable that no third-party property rights in the country of destination of the goods are infringed as a result thereof. The supplier shall point out to the orderer any rights known to it. The orderer shall indemnify the supplier against third-party claims and compensate for any loss incurred. If a third party pleading a property right belonging to it prohibits the supplier from manufacturing or delivering, the supplier shall be entitled, without examination of the legal position, to discontinue the work until the legal position has been clarified by the orderer and the third party. If the delay makes it unreasonable to expect the supplier to continue the order, the supplier shall be entitled rescission.
- Any drawings and samples that have been made available to the supplier and have not led to an order shall be returned on request; otherwise, the supplier shall be entitled to destroy them three months after having submitted the offer. This obligation shall apply to the orderer accordingly. The party entitled to undertake such destruction shall give the contractual partner timely prior notification of its intention to undertake such destruction.
- The supplier shall be entitled to the copyrights and any industrial property rights, in particular to all rights of use and exploitation, in the models, moulds, devices, drafts and drawings created by the supplier or by third parties on its behalf.
- If other defects in title exist, No. VI. shall apply to these accordingly.
- Unless otherwise agreed, the orderer shall be obliged to deliver free of third-party industrial property rights and copyrights only in the country of the place of delivery. Insofar as a third party asserts legitimate claims against the orderer on the basis of an infringement of property rights as a result of deliveries used in conformity with the contract, the orderer shall, within a limitation period of one year from delivery, at its option either obtain a right of use for the delivery concerned, modify the delivery in such a way that the property right is not infringed, or exchange the delivery. If this is not possible for the orderer on reasonable terms, the orderer shall be entitled to the statutory rights to rescission and reduction of the price, with damage claims of any kind being excluded. This limitation shall apply only insofar as the supplier, its statutory representatives or its agents have not acted with wrongful intent or gross negligence. The aforementioned obligations shall exist only insofar as the orderer gives, without delay, written notification of the claims asserted by the third party, an infringement is not acknowledged, and all defensive measures and settlement negotiations remain reserved to the supplier. Claims of the orderer shall be ruled out insofar as the orderer is at fault for the property right infringement. This shall also apply insofar as the infringement of the property right is due to specific instructions given by the orderer.
XI. PLACE OF PERFORMANCE AND PLACE OF JURISDICTION
- The place where the supplier's company headquarters are situated shall be the exclusive place of jurisdiction. The supplier may, at its option, also bring an action at the place where the orderer's headquarters are situated.
- German law shall apply exclusively. The application of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (BGB 1989, p. 586) for the Federal Republic of Germany (BGB 1990, p. 1477) is excluded.
Hahn Airport, 5 September 2024