All deliveries executed by HAZEMAG & EPRGmbH (hereinafter called „the Supplier“) are governed exclusively by the following conditions unless other co-determining documents are expressly mentioned in the quotation. Any deviating conditions quoted in the tender or the purchase order will be valid only if accepted by the Supplier in writing, even if no express objections are made. Should specific conditions be agreed for individual orders or attached to the order, then such conditions will be deemed to be subordinate and supplementary. The same applies to our General Conditions for the Supply and Erection of Plant and Machinery for Import and Export, in particular if the latter conflict with these General Conditions of Supply. Should there be any discrepancies between the German and the English texts, the German text will be binding. Only agreements in writing between the contracting parties will be valid.
Supporting quotation documentation, such as illustrations, drawings, weight and measurement data, etc. is not binding unless expressly stated as such. The Supplier reserves the ownership and proprietary rights to all price estimates, drawings and other documents; they are not to be made available to third parties, be copied or stored on computer. The Supplier undertakes not to make available to third parties any confidential documents belonging to the purchaser without the latter’s approval.
II. Scope of supply
The Supplier’s written Acknowledgement of Order is binding for the scope of supply or, if the Supplier’s quotation is based on a fixed time limit and acceptance deadline, and an Acknowledgement of Order is not received prior to expiry of the time limit, then the quotation will be binding. Any additions and alterations thereto need the written confirmation of the Supplier.
III. Prices and payment
- In the absence of any other agreement, the prices are understood to be Ex Works, excluding loading and packing, plus VAT at the current rate.
- The terms will be according to our quotation. In the absence of any other agreement, payment terms will be cash free place of receipt without any deductions as follows: 1/3 down payment following receipt of the Acknowledgement of Order, 1/3 on notification of readiness for shipment, and 1/3 within 1 month of the second payment.
- Payment retention or offsetting against any claims by the purchaser and disputed by the Supplier are not admissible.
- If an instalment is agreed to be paid on conclusion of the acceptance inspection, it will be due 3 weeks after completion of manufacture at the latest, should the acceptance inspection be delayed for reasons beyond the control of the Supplier.
- Overstepping the payment deadline will without serving of formal notice attract default interest of 3.5% above the current base interest rate. Bills of exchange will only be accepted by special agreement and then only to honour payment.
IV. Delivery date
- The delivery period commences with the date of the Acknowledgement of Order but not before the purchaser has provided the necessary documents, authorisations, clearances, etc. and has effected the agreed down payment.
- The delivery date is seen to have been met if the contractual goods have left the Supplier’s works or readiness for shipment reported prior to the expiry of the deadline.
- The delivery period will be extended appropriately in case of measures taken within the framework of industrial disputes, in particular strikes and lockouts, as well as the arisal of unforeseen obstacles beyond the will of the Supplier, insofar as such obstacles prove to have had a significant influence on the completion or delivery of the contractual goods. This also applies to such circumstances experienced by sub-contractors.The Supplier bears no responsibility for such unforeseen obstacles, even if they arise during an already existing delay. The purchaser is to be notified by the Supplier of the occurrence and clearance of such obstacles without delay.
- If the purchaser suffers damage as a result of a delay occurring within the Supplier’s sphere of influence, then the former is entitled to claim default compensation. In proven cases, the max. compensation amounts to 0.5% per full week’s delay, however maximum 5% of the value of that part of the total scope of supply which cannot be used punctually or in accordance with the contract as a result of the delay.Compensation for other damage, in particular consequential damage such as loss of production, loss of profit or similar is excluded.
- Should a shipment be delayed at the request of the purchaser, the latter will be charged with the resultant storage costs at a rate of not less than 0.5% of the invoice amount per month, beginning with the month following the notification of readiness for shipment. Furthermore, following the setting and unsuccessful expiry of a reasonable deadline, the Supplier is entitled to dispose of the contractual goods elsewhere and supply the purchaser according to an appropriately extended deadline.
- Meeting the delivery date is subject to the fulfilment of the purchaser’s contractual obligations.
V. Passing of risk
- The risk passes to the purchaser on dispatch of the contractual goods at the latest, even if part shipments are effected or if the Supplier is discharging other obligations such as the shipping costs or transportation and erection. At the request of and cost to the purchaser, the Supplier is to insure the shipment against pilferage, breakage, transport, fire and water damage as well as other insurable risks.
- Should the shipment be delayed for reasons within the control of the purchaser, then the risk passes to the purchaser on the date of readiness for shipment, however the Supplier is obliged to effect any insurance requested by the purchaser at the latter’s cost.
- Notwithstanding the rights arising under VII below, the purchaser is obliged to accept delivered items, even if they exhibit insignificant defects.
- Part-shipments are admissible.
VI. Retention of title
- The supplier maintains the right of title to the contractual goods until payment of all costs arising from the supply contract has been effected.
- Until transfer of title has been effected, the Supplier has the right to insure the contractual goods at the purchaser’s expense against pilferage, breakage, fire, water and other damage, insofar as the purchaser himself has not demonstrably taken out such insurance.
- Moreover, until title transfer, the purchaser may neither pledge the contractual goods nor assign them as collateral. He is to inform the Supplier without delay of any seizure, sequestration or other such disposal by third parties.
- Any breach of contract on the part of the purchaser, in particular default of payment, entitles the Supplier to request the return of the contractual goods and obligates the purchaser to hand them over.The enforcement of the right of title by the Supplier or the seizure of the contractual goods does not constitute withdrawal from the contract.
VII. Liability for delivery defects
The liability of the supplier for delivery defects, including the absence of expressly guaranteed features, is limited to the following:
- At the reasonable discretion of the Supplier, all parts which within 6 months of commissioning turn out to be unsuitable or the use of which is seriously impaired as a result of circumstances originating prior to transfer of risk – in particular faulty design, poor material or defective execution – are to be corrected or replaced free of charge. The discovery of such defects is to be notified to the Supplier without delay. Any replaced parts are the Supplier’s property.
- The guarantee period is 6 months from commissioning, however at the latest 9 months from notification of readiness for shipment.
- No guarantee is assumed for damage caused by the purchaser or third parties due to the following; unsuitable or incorrect use, faulty erection or faulty operation, incorrect or slipshod handling, unsuitable utilities, wrong materials, faulty civil work, unsuitable foundations, chemical, electro-chemical or electrical influences, insofar as they are not attributable to the fault of the Supplier, plus normal wear and tear.
- After prior consultation, the purchaser is to grant the Supplier sufficient time and opportunity to undertake the repairs and replacement deliveries considered necessary according to the reasonable discretion of the Supplier, otherwise the Supplier is discharged from defect liability. Only in urgent cases threatening operational safety or to avert serious damage (in which case the Supplier is to be notified without delay) or if the Supplier defaults on the elimination of the defect, is the purchaser entitled to correct the defect himself or have it corrected by third parties and to claim reimbursement of the costs involved therein.
- The Supplier is to bear the direct costs arising from repairs or replacement deliveries (insofar as the complaint is shown to be justified and the subsequent costs actuated by the Supplier), the cost of replacement parts including their shipping costs, plus dismantling and installation costs; furthermore, provided that such costs can be justifiably claimed in individual cases, the assignment costs of the Supplier’s erection supervisor and personnel. All other costs are to be borne by the purchaser.
- A three-month warranty is given on replacement parts and repair work: however, this warranty does not extend the original guarantee period for the contractual goods.
- Should the purchaser or third parties conduct improper alterations or repairs without the prior approval of the Supplier, no liability is assumed for the consequences arising there from.
- Compensation for further damages, in particular for indirect damages such as loss of production, loss of profit or similar, especially claims for price reductions is excluded.
- As a general rule, HAZEMAG & EPR GmbH damage liability will not exceed EUR 5 million.
VIII. Liability for additional obligations
If, through the fault of the Supplier, the contractual goods cannot be used by the purchaser due to lack of or faulty execution of recommendations and advice as well as other additional contractual obligations – in particular operating and maintenance instructions for the contractual goods, the conditions of VII above will apply to the exclusion of any further claims by the purchaser.
IX Claims by the purchaser following contract cancellation, withdrawal or other Supplier liability
- If the purchaser withdraws from or cancels the contract, the contract transaction is to be reversed.
- All further claims by the purchaser are ruled out, especially those for reimbursement for consequential damage, such as loss of production, loss of profit and the like. Principally, claims by the purchaser are limited to maximum EUR 5 million.
- If it is not possible for the Supplier to fulfil his contractual obligations due to default in taking delivery or due to the indebtedness of the purchaser, then the latter is obligated to provide appropriate consideration.
- The liability of supplier HAZEMAG & EPR GmbH in connection with machining/finishing damage (damage caused to a contracted item/component during the course of its treatment or as a consequence thereof) is limited to the maximum value of the machining/finishing contract.
X. Application of German law
German law will apply exclusively to the contractual relationship between purchaser and Supplier to the exclusion of all foreign laws. The UNICITRAL / CISG purchasing laws of the UN will not apply.
XI.Place of jurisdiction
In cases of litigation, the place of jurisdiction for both parties is Münster. Alternatively, the Supplier is also entitled to file suit at the purchaser’s domicile.
XII. Safeguarding provisions
Should one or more of these Conditions of Supply be or become invalid, the validity of the remaining conditions will be unaffected.
HAZEMAG & EPR GmbH 48249 Dülmen