General Terms and Conditions
1. SCOPE OF APPLICATION
1.1 Subject to deviating provisions of individual contracts these General Terms and Conditions for Sales, Delivery and Repair (hereinafter referred to as “the Terms and Conditions”) shall apply to all contracts concerning deliveries and other performances (hereinafter referred to as “the Delivery”) that we, Hanse-Inno-Tech GmbH, as the performing party conclude with a company as contemplated by Section 310 para. 1 of the German Civil Code as a customer (hereinafter referred to as “the Customer”).
1.2 The Terms and Conditions apply to all current and future business contracts with the same Customer even if they are not expressly referred to.
1.3 Deviating or supplementary terms and conditions of a Customer is hereby excluded; such terms and conditions will not be binding upon us unless we have expressly confirmed such applicability in writing.
1.4 Our Terms and Conditions shall also prevail even if we are aware of terms and conditions of the Customer opposing or deviating from our Terms and Conditions but carry out an unreserved Delivery to the Customer.
2. CONCLUSION OF THE CONTRACT
2.1 A contract for services within the meaning of clause 1.1 is concluded upon the Customer’s release of the cost estimate provided by us. If the customer does not request a cost estimate, or if the services within the meaning of clause 1.1 do not exceed a value of EUR 50.00 plus value added tax, a contract will be concluded upon performance of the order.
2.2 We shall be entitled to rectify any information or errors due to data inadvertently appearing in sales literature, price lists, bid documents or any other form of documentation issued by us without incurring any liability for damages arising there from.
2.3 All offers shall be without obligation, however subject to confirmation and of change without notice. Contracts are only concluded by our written confirmation of the order, any supplements or additions that were not made in writing will only become binding upon our written confirmation of such supplements or additions.
2.4 We reserve any property rights and copyrights vested in all offers and other documents including those existing in an electronic form. These must neither be reproduced nor made available to third parties without our consent and must be returned to us after the execution of the contract or in case of a failure of the contractual negotiations without any requests from our side to do so being required.
2.4 Notwithstanding further legal claims and rights resulting from the contract, we shall be entitled to withdraw from the contract, in whole or in part, if the ordering party fails to fulfil any essential obligation, or in the event of unforeseen circumstances bringing about any essential change to the commercial importance or content of performance or having a substantial effect on our business and it not being possible to adapt the contract appropriately according to the principle of good faith, or in the event of the ordering party’s financial standing essentially worsening. If we decide to invoke the rights of withdrawal, we shall notify the ordering party thereof immediately after becoming aware of the consequences of the incident in question.
3. DELIVERY TERMS – TRANSPORTATION / RISK
3.1 Delivery deadlines are only binding if they have been expressly agreed in writing. Our obligation to perform is subject to ourselves obtaining correct and timely delivery. Delays in delivery because of events of force majeure (including epidemics, natural disasters, war, civil war or conditions similar to war or the imminence of such contingencies) or due to action involving industrial dispute, in particular strike and lockout, or other circumstances that cannot be influenced by us will lead to an appropriate extension of the delivery deadlines. This is also deemed to apply if and where such circumstances occur after we have defaulted in performance. In the event of it becoming impossible for us to perform commissioned work for a period of three months due to force majeure, obligation to effect delivery shall cease to apply. In the event of us being released from its obligation to effect delivery, the customer shall be entitled to withdraw from the contract. The customer may only assert claims for compensatory damages due to non-performance if default in delivery is based on gross negligence or malice aforethought committed by us.
3.2 Partial deliveries are allowed. In the case of a partial delivery, we are entitled to the contractual consideration attributable to the performed part of the delivery.
3.3 The delivery shall occur “ex works” as per Incoterms 2010, if no other agreements have been made, at the Customer’s expense and risk. The choice of route of shipment and means of transportation shall be at our reasonable discretion. The risk passes to the Customer upon the delivery of goods to the shipping agent, carrier or other person or entity charged with the shipment; this shall also be valid for partial deliveries and even in those cases where goods are delivered by ourselves. Should the delivery be delayed for reasons within the Customer’s responsibility the risk will pass to the Customer upon the notification of the readiness for shipment being received by the Customer.
3.4 The risk of deterioration or loss of products in transportation from the Customer, is borne by the Customer, insofar as the Customer is an entrepreneur. An entrepreneur is any natural or legal person or any partnership with legal capacity with whom business relations are taken up and who acts in exercising commercial or independent professional activities.
4. PRICES – PAYMENT
4.1 Subject to other agreements on prices and payment terms, the prices indicated in the current price list at the time of delivery shall be applicable. All prices are in EUR including statutory value added tax, plus the costs for packaging, shipment and insurance. All prices are ex works exclusive of packaging, delivery and insurance costs plus the respective statutory value added tax. All invoices are immediately due for payment without any deductions; payment to be deemed effective at the time of the receipt of the outstanding amount. In the event of the date set for payment being exceeded – irrespective of other legal claims – annual interest shall be charged amounting to 7% above the minimum bidding rate for major refinancing transactions of the European Central Bank plus value added tax, if any, without this necessitating any reminders to be sent out and without prejudice to our other or further rights. Items can be payable cash on delivery, net terms only. Any rectification of the invoice made by us or complaints made by the Customer must be effected in writing three weeks at the latest after receipt of the invoice.
4.2 If we find it necessary to refer an open account to an attorney or a collection agent, the Customer shall pay all costs of collection including, without limitation, reasonable attorneys’ fees. We may request the ordering party to effect reasonable payment in advance or to open an irrevocable confirmed letter of credit in the Federal Republic of Germany to an appropriate amount, available in instalments and free of expenses.
4.3 Payment by bills of exchange or cheques must be specially agreed upon. Bills of exchange and cheques shall be credited to the Customer by us on account of performance and free of charges. Discount charges and incidental charges customary in banking are to be compensated by the Customer in cash as soon as they occur. Sections 4.1 sentence 4 shall apply accordingly.
4.4 If, after the conclusion of the contract, the Customer’s financial standing or solvency considerably declines or we learn about such declining at an earlier point in time or the Customer does not meet his outstanding payments payable to us, in particular if he does not cash a cheque or bill, we reserve the right to claim payments before the agreed due date, to make the delivery of unpaid goods contingent upon the provision of reasonable securities or advance payment and, in case of discounted bills, to claim premature payment. If within a reasonable period of grace granted by us the Customer neither makes advance payments nor provides securities, we are entitled to rescind the contract in accordance with the applicable statutory regulations.
4.5 The Customer is only entitled to a possibly existing statutory set-off right or possibly existing statutory rights of retention or to refuse performance, e.g., because of defective goods, with respect to accounts receivable resulting from the same
contractual relationship with us or which are undisputed, final and binding or res judicata, recognized by declaratory judgement.
4.6 Ownership of the delivered goods shall remain with us until we have received full payment for such goods. Title to the goods shall first pass to the customer upon our receipt of all payments which are due under the current applicable contract.
4.7 All public dues (taxes, charges, duties, etc.) levied outside the Federal Republic of Germany from or in connection with the conclusion or handling of the contract shall be borne by the Customer.
4.8 If no lump-sum price for services were agreed, all services will be invoiced according to the costs incurred. For sales affected by delivery, any costs incurred for packaging, shipping, freight, customs or other related costs will be charged separately.
4.9 If the commissioned work cannot be implemented at the estimated cost or if additional work is deemed necessary by us for achieving the objectives of the contract, approval of the Customer shall be obtained if the quoted prices are exceeded by more than 15%.
5. WARRANTY / RIGHTS OF THE CUSTOMER IN CASE OF DEFECTS
5.1 Warranty claims of the Customer are subject to the condition that the property fulfilled his investigation and complaint obligations under Section 377 of the German Commercial Code. Apparent defects must be reported in writing within one week after receipt of the respective goods at the latest, other defects within one week after their discovery at the latest. If the Customer fails to give such notice, the products shall be deemed accepted and to conform to the terms of the contract of sale.
5.2 Upon our request, the rejected goods or the rejected parts thereof must be returned to us for examination on our account. Should the customer be entitled to any claim for subsequent performance based on a defect reported in due time, we shall be entitled to remove such defect free of charge.
5.3 Replaced parts will become our property and are to be handed over to us; additional claims, e.g. compensation for lost value, remain untouched.
5.4 Any claims of the Customer which might arise because of a defect shall be limited to the right of subsequent performance. Subsequent performance will be done, at our own discretion, by elimination of the defect or delivery of goods free from defects. If subsequent performance should fail the Customer has, at his own discretion, the right to rescind the purchase contract or reduce the purchase price.
5.5 Claims of the Customer because of defects become statute-barred after one year beginning from the passing of the risk to the Customer of the respective goods. This shall not be valid (1) in case of intent or malicious silence with regard to a defect, (2) in case of deviating content of a warranty furnished by us in accordance with Section 443 of the German Civil Code, and (3) in case of goods which were used for a building in line with its usual manner of use and caused the defectiveness of such building.
5.6 The period of limitation of one year stipulated in 5.5 does not apply to claims for damages because of defects if such defects result from acts of gross negligence by our legal representatives or executive employees. This period of limitation is also not applicable in cases of personal injury or where we are liable for unlawful acts. The statutory provisions concerning the statutory limitation of possible claims under a right of recourse in accordance with Section 479 of the German Civil Code and the limitation and preclusive periods under the German Product Liability Act shall remain unaffected.
5.7 As far as statutory regulations – for whatever legal reason – require us to compensate damages because of a defect this liability to pay compensation for damages shall be limited in accordance with Section 7.
5.8 The passing of the risk shall constitute the relevant moment for the existence of a warranty defect causing warranty claims based on Section 5 hereof. Liability for defects does not cover loss, damage, or defects resulting from: improper or inadequate maintenance by the Customer; customer- supplied software or interfacing; unauthorized modification or misuse, operation outside of the physical operating conditions for the products; or improper site preparation or maintenance.
No liability is accepted for defects caused by unsuitable or improper handling and/or defective installation or commissioning by the Customer or by third parties not instructed or authorized by us (also in reference to software interferences), natural wear and tear, false or careless treatment, unsuitable equipment, replacement materials, faulty construction, creation of chemical, electromechanical or electrical influences. Also excluded from claims for defects are changes to the products or unskilled repairs to the products which are attributable to the Customer or third parties authorized by the Customer.
5.9 The subsequent performance is carried out without acceptance of a legal obligation and does not cause the limitation period to start anew. This also applies when spare parts have been installed in the course of rectification of defects.
5.10 If used objects (including demonstration units) are subject of the contract, except as provided in Section 7, any and all liability for defects is excluded as far as we are not guilty of fraudulent behaviour or have accepted a deviating guarantee.
5.11 Warranty applies only to products purchased from an authorized reseller, and it shall remain in force only as long as the original owner retains ownership of the product. Without having obtained the prior expressed approval from us, the ordering party shall not be allowed to transfer any of the contractual rights to third parties.
5.12 Upon original purchase, we ask that you complete the warranty registration within 30 days. Registering is quick and simple and creates a record that can be used as proof of purchase or if the product is lost or stolen. Warranty will commence from date of purchase. Please retain the dated sales receipt with lens serial number as evidence of the date of purchase.
6. RETENTION OF TITLE
6.1 The goods delivered by us (hereinafter also referred to as “goods subject to our title of ownership”) remain our property until any and all accounts receivable against the Customer (including future accounts and possibly existing balances due on open account) have been paid.
6.2 The Customer has the revocable right to process or sell the goods subject to our title of ownership within the ordinary course of business and in accordance with the following provisions.
6.3 The processing or transformation of the goods subject to our title of ownership by the Customer is always accomplished for us without any obligations resulting for us thereof. If the goods subject to our title of ownership are processed together with other goods that were not delivered by us, we are entitled to co-ownership in the new object at a share that equals the partial amount in the final invoice for the new object attributable to the goods subject to our title of ownership as computed on the basis of the purchase price of the other processed or transformed goods at the time of processing.
In the event that the goods subject to our title of ownership are connected, mixed or blended with moveable goods of the Customer in a way that makes the object of the Customer the principal thing, the Customer hereby transfers to us, already by now, his ownership in the whole object at a share corresponding to the relation of the value of the goods subject to our title of ownership and that of the other connected, mixed or blended goods. If goods subject to our title of ownership are connected, mixed or blended with moveable goods of a third party in a way that makes the object of the third party the principal thing, the Customer hereby transfers to us, already by now, his right to compensation against such third party at a share corresponding to the share of the goods subject to our title of ownership in the final invoice amount.
The object resulting from processing, transformation, connection or blending (hereinafter referred to as “the new object”) or, respectively, the rights of (co-)ownership in the new object we are entitled to or that shall be transferred to us in accordance with this Section 6.3. as well as the rights to compensation assigned to us in accordance with this Section 6.3. serve to provide security for our accounts receivable in the same way as the goods subject to our title of ownership themselves as described under Section 6.1
In each case, the Customer shall hold the sole and/or co- ownership we are entitled to in safe custody.
6.4 We undertake to release securities we are entitled to upon request of the Customer if the realizable value of the securities exceeds the outstanding account to be secured by more than 20 percent; we have the right to choose the securities to be released.
6.5 Goods subject to our title of ownership or new goods may only be resold within the ordinary course of business and only under retention of title. The Customer is obliged to make sure that the accounts receivable resulting from such resale business can be transferred to us in accordance with Section 6.6. and 6.7.
6.6 The Customer’s accounts receivable resulting from reselling the goods subject to our title of ownership are assigned to us already by now. They serve to secure our outstanding accounts to the same extent as the goods subject to our title of ownership. If the Customer sells the goods subject to our title of ownership together with other goods that were not delivered by us the assignment of the accounts receivable shall apply only to that part of the final invoice amount which is attributable to the resale of the goods subject to our title of ownership. In the event of a resale of goods co-owned by us in accordance with Section 6.3. or the applicable statutory provisions concerning the connection, mixing or blending of goods, the assignment shall apply in an amount corresponding to our co-ownership share.
6.7 If the Customer includes accounts receivable from the resale of goods subject to our title of ownership in a current account with his Customers, he assigns to us, already by now, a resulting balance or a final balance to his favour corresponding to the total amount of the accounts receivable resulting from the resale of goods subject to our title of ownership included in the current account. Sections 6.3. sentences 5 and 6 shall apply accordingly.
6.8 The Customer is authorized to collect the accounts receivable from the resale of the goods subject to our title of ownership or the new objects assigned to us. Our authorization to collect the accounts receivable ourselves remains unaffected. However, we undertake not to collect the accounts receivable as long as the Customer duly meets his payment obligations with respect to the collected
proceeds. The Customer is not allowed — not even in the framework of a genuine factoring agreement — to assign the accounts receivable resulting from the resale to third parties.
6.9 The authorization to resell the goods subject to our title of ownership or the new objects in accordance with Section 6.5 and the authorization to collect the accounts receivable assigned to us in accordance with Section 6.8. may be revoked by us in the event of a delay or default in payment or stoppage of payments by the Customer or when an application to initiate insolvency proceedings has been filed or in other cases of an impaired credit standing or trustworthiness of the Customer. In the event of a
revocation of the authorization to resell goods and collect accounts receivable, the Customer is obliged to immediately inform his Customers about the assignment of accounts receivable to us and to submit to us any information and documents required for collection. In this case, he is furthermore obliged to hand over or transfer to us possibly existing securities he is entitled to with respect to accounts receivable against his customers.
6.10 The Customer is obliged to inform us immediately about attachments or other legal or factual impairments to or risks for the goods subject to our title of ownership or the other securities we are entitled to. In case of deliveries to countries with other legal systems where the aforementioned provisions concerning retention of title do not have the same securing effect as in Germany, the Customer will use his best endeavours to immediately furnish corresponding security rights. The Customer shall assist in the performance of all measures, e.g., registration, publication etc., necessary and appropriate for the effectiveness and enforceability of such security rights.
6.11 The Customer undertakes to handle the goods subject to our title of ownership with care; the Customer shall perform maintenance and inspection work on his own account and in a timely manner. We are entitled to sufficiently insure the goods subject to our title of ownership against damages through fire, water and theft at their reinstatement value on the Customer’s expense.
6.12 In case of a violation of the agreement by the Customer, in particular in case of a default in payment, we are entitled to take back the goods subject to our title of ownership upon the expiry of a reasonable deadline set by us. The taking back of the goods subject to our title of ownership does not constitute a rescission of the contract unless we explicitly gave notice of such rescission in writing. After taking back the goods subject to our title of ownership, we are entitled to realize the same; the realization proceeds are to be credited against the accounts receivable from the Customer, net of reasonable realization costs.
6.13 To facilitate these measures as well as a general inspection of the goods subject to our title of ownership or the new objects the Customer has to grant our agents access at any time.
7.1 We are liable in accordance with the statutory provisions if the Customer asserts claims for damages resulting from intention and gross negligence including acts of intention and gross negligence by our legal representatives or agents employed in the performance of our obligations. As far as we did not deliberately violate the contract, the liability remains limited to foreseeable, usually occurring damages.
We are liable in accordance with the statutory provisions if we culpably violate a material contractual obligation, in this case, the liability remains limited to foreseeable, usually occurring damages.
7.2 The liability because of a culpable injury to the life, body or health of a person remains unaffected; this shall also be valid for the liability because of the lack of a quality guaranteed by us and for the mandatory liability under the German Product Liability Act.
7.3 As far as not otherwise laid down above all further liability, apart from that provided for in these General Terms and Conditions, is ruled out.
7.4 The liability limitations stipulated in this Section 7 shall also apply to a possible liability of our legal representatives, executive employees and other agents employed in the performance of our obligations towards the Customer.
7.5 Such limitations of liability are not deemed to apply to no-fault liability provided by law, resulting in particular from guarantee or the Product Liability Act.
8. CANCELLATION POLICY
8.1 At Hanse-Inno-Tech your satisfaction is our prime concern. We will contact you in advance to confirm that you will accept delivery of your items ordered.
8.2 If and where statutory provisions prevail, the ordering party may withdraw from the contract in writing –
(a) – if it has become impossible for us to fulfil the contract. Where such impossibility affects partial performance, rights of withdrawal shall only apply if it is proved that the said partial performance is of no interest to the ordering party. In all other respects the ordering party is under obligation to accept such partial performance and may demand a reasonable reduction in price. If we are not responsible for impossibility to fulfil the contract, we shall be entitled to that portion of payment corresponding to the work performed.
(b) – in the event of defaulting in performance and the ordering party having granted us a reasonable period of grace following the stipulated date for performance and such period of grace not having been observed through the fault of us.
8.3 In the case that of electing to cancel an order, simply follow the guidelines (1-5) below.
(1) Contact us to acquire an Authorized Return Number (ARNr.).
(2) Carefully pack and protect the item safely in the item’s original or equivalent
(3) Add the ARNr. on to or in the shipping parcel.
(4) You must use Tracing / Tracking Numbers for all returns (e.g. FedEx, UPS).
(5) An allowance of 7 to 10 business days is needed to process the refund (upon
8.4 If you decide to cancel the items, the deadline is 30 days prior to the confirmed delivery date. If cancellation occurs within 20 to 30 days of the confirmed delivery date, refunds will be subject to a restocking and processing fee. Cancellation of orders with an advanced deposit will be refunded directly to the financial institution in accordance with the original payment method.
9. CONDITIONS of RETURN / REFUND POLICY
9.1 Items must be returned within 14 days of purchase in new condition.
In the event of a bona fide return the received items are to be refunded and, in the case thereof, deducted for wear and tear. In the event of usage of the item and or in a degraded state, which cannot or partially not be returned, reimbursement must be paid on the difference of the items monetary value. Shipping charges are non-refundable. The time limit begins after receipt of this instruction in text form (e.g. letter, e-mail), but not before receipt of the goods by the recipient (in case of recurring deliveries of similar goods not before receipt of the first partial delivery) and also not before fulfilling our obligations under Article 246 § 2 in connection with § 1 paragraph 1 and 2 draft law and our obligations according to § 312e paragraph 1 sentence 1 BGB in conjunction with Article 246 § 3 BGB.
9.2 The right of return does not apply to contracts for the supply of goods that are produced according to customer specifications or clearly tailored to personal needs or which are not suitable due to their condition for a return.
9.3 As of the 01.01.2011 a new law came into force within the European Community. All product repairs or returns sent from countries outside the European Community must be declared to the Customs Authorities prior to arrival. A breach of these requirements will result in a penalty. All companies in Germany are required to provide a Pro-forma Invoice six hours before the consignment is due to arrive in the European Community. This new law concerns all countries outside the European Union, except Norway and Switzerland. We would like to ask for your assistance in this matter. Please attach the documents so that they are visible on the parcel. In addition, we will need the details of your forwarder (courier or other delivery company).
10. EXPORT, RE-EXPORT; ENDUSE/ENDUSER
10.1 In case of exporting or re-exporting the goods, the Customer shall be responsible to fully comply with the pertinent export regulations.
10.2 Upon request of the Seller, the Customer shall inform about the final use and the end-user.
10.3 The Seller has the right to claim compensation if the Customer’s statement on the final use and the end-user is incorrect.
10.4 The previous provisions do not constitute a contractual obligation for us to control the fulfilment of export regulations.
10.5 The Seller may refuse the fulfilment of the obligations assumed in accordance with the order confirmation if and for as long as fulfilment violates German or European export regulations
11. PLACE OF PERFORMANCE – LEGAL VENUE – APPLICABLE LAW
11.1 The place of performance for the delivery and payment as well as the legal venue for all disputes directly and indirectly arising from the contractual relationship — also for legal proceedings related to bills of exchange or cheques — shall be Wentorf, Germany.
11.2 German law applies with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
11.3 We will submit confidential information in association with contracts based on Section 1.1 of these General Terms and Conditions on the basis of a non-disclosure agreement following our standard format furnished by us only. Confidential information in this context shall not mean information which is not already generally known or which has legitimately come to the recipient’s knowledge but which has been qualified as confidential by us using our equitable discretion taking the interests of the recipient appropriately into account. We may only accept confidential information from your side based on a written non- disclosure agreement bindingly concluded between representatives of both parties.
11.4 Rights and claims resulting from contracts with us are only allowed to be transferred with our explicit consent.
11.5 Where individual provisions are invalid, the invalidity shall be limited to such provision. The parties are obligated to replace the invalid provision by one that comes, in a valid manner, closest to the economic meaning and purpose of the invalid provision; the same applies to eventual gaps in the contract.
Version: September 2015