Terms

General Terms of Sale - INTERNATIONAL

I.    Scope of Application, Exclusion of other Terms, Conclusion of Contract, Written Form

1    These Terms are exclusively applicable to all contracts, agreements and provisions concerning deliveries and services (“Transactions”) of Hawle Armaturen GmbH (“Supplier“), with customers abroad (“Customers“), unless otherwise agreed between Supplier and Customer (“Parties”) in accordance with these Terms (for Transactions with national customers please see the General Terms of Sale – NATIONAL {Allgemeine Verkaufsbedingungen – NATIONAL} [https://www.hawle.de/agb/). These Terms apply for Customers who are commercial companies, corporate entities under public law, special funds under public law and/or other merchants (acting in the course of commercial activity or self-employed activity). In case of ongoing business relations these Terms also apply to all future Transactions.

2    General terms or conditions of Customer do not apply unless otherwise agreed or explicitly accepted by the Supplier or in compliance with these Terms of the Supplier; this also applies if the Supplier conducts a Transaction without reservation.

3    Contracts are concluded through Supplier´s confirmation of Customer’s order; such confirmation shall be in written form or in text form (including EDI, e-mail, fax). In case of doubt, manner and extent of Transactions shall be determined by the Supplier´s order confirmation. In the absence of such order confirmation a contract is concluded upon Customer's acceptance of deliveries and services at the latest, whereby such contract shall be determined by these Terms and the Supplier´s offer.

4    Modifications of these Terms upon conclusion of contract have to be made in written form or in text form (including EDI, e-mail, fax); this also applies for deviations from this formal requirement as well as for changes after a conclusion of contract.

II.    Offer, Right of Modification, Alterations, Confidentiality, Legal Requirements

1    Supplier’s offers are subject to change and non-binding and documents relating to the offer, such as illustrations, subscriptions, weights and measurements are considered approximate, unless these details are explicitly stated as binding. If these details are explicitly stated as binding, the Customer can place an order within 14 days (receipt of order at Supplier) after receipt of offer; the Supplier may confirm such order (as set out above) for conclusion of a contract.

2    Changes in the technical design shall be permitted, unless leading to substantial change in functionality or unacceptableness for the Customer which Customer has to prove; changes due to technical improvements, official or legal requirements or marked expectations are not considered unacceptable.

3    Offers, cost estimates, drawings, illustrations, models, plans and other documents and information in physical and nonphysical form (especially electronic form) and all data, experience, know-how, inventions, industrial property rights, designs, samples and trademarks (all together “Information”) of Supplier concerning the Transaction are and remain in Supplier´s property and Supplier exclusively reserves all rights, including exploitation rights, in such Information. Any Information must be kept secret and must not be made available to any third party unless the Information is obvious. Physical and nonphysical Information must be returned immediately and electronical Information must be deleted immediately upon Supplier´s request or without request in cases where conclusion of Transaction fails.

4    Upon Supplier´s request the Customer will provide all necessary details for the fulfillment of legal requirements. (e.g. EU entry certificate, CE labeling, Reach, RoHs, etc.). It is within Customer’s responsibility to comply with export and import conditions and restrictions as well as technical standards, norms and rules and Customer will upon Supplier´s request provide all necessary information in this context; in case of a violation of such conditions and restrictions by Customer, the Customer will indemnify the Supplier from all claims and sanctions.

III.    Prices, Default of Payment, Price Adjustment, Right of Retention, Right to Offset

1     Supplier´s prices are in EURO ex works (Incoterms®2010) Freilassing plus VAT if owed by law, unless otherwise agreed between the Parties. Costs for international delivery documents (e.g. certificates of origin, etc.) shall be reimbursed by Customer.

2     Prices are due immediately with conclusion of the contract; complete delivery of goods, documents and services is no condition for payment. Unless otherwise agreed (for example prepayment) the net price is payable within 30 days from the date of invoice without deduction, otherwise Customer is in default with payment. Objections of any kind in respect of the invoice must be submitted within 14 days after receipt of the invoice, otherwise the invoice is deemed accepted.

3     Payments must be made to the bank account of Supplier and Customer has to bear all costs of money transfer.

4    If Supplier renders its performance not earlier than four months after conclusion of the contract date, the Supplier shall be entitled to make a reasonable adaptation of his selling price, in the event of a substantial increase or reduction in the prime cost (especially labour and material cost) that has been taken as the quotation basis. A change of prime cost as defined by sentence 1 is particularly given, if there is an increase in prices for labour or procured goods or materials without fault of Supplier or if customs duties or other import charges increase or in cases of considerable changes in the parity of exchange rates to the Supplier's disadvantage compared with the circumstances prevailing at the date of contract conclusion. A price adaptation due to cost increase is deemed to be reasonable if and to the extent the adaptation remains within the scope of the increase in costs. At Customer’s request, the Supplier shall demonstrate the reasons for the price adaptation. If the price adaptation results in a price increase of more than 20 %, and if the Supplier does not comply with Customer’s request to limit the price adaptation to a scope of 20 % within two weeks’ time, the Customer shall be entitled to declare avoidance of the contract without further claims of Customer. Such declaration of avoidance shall be declared immediately.

5    If Customer is in default with payment, the Supplier shall be entitled to reimbursement of reminder costs and, without prejudice to further rights and claims, to demand default interest at 9 % per year; Supplier shall also be entitled to suspend all deliveries and services until all open invoices are settled. Furthermore, the Supplier may, at his own discretion, ask for prepayments and/or demand payment security; the Supplier is not obliged to undertake further measures to secure fulfilment of delivery dates or volumes (e.g. purchase of materials or production preparations, etc.). This also applies if there is a substantial deterioration of the financial circumstances of the Customer which jeopardizes the fulfillment of the Supplier´s claims by Customer.

6    Customer may exercise a right of retention with regard to claims of Supplier only if based on claims from the same contractual relationship which are uncontested, ready for a decision or established by final enforceable judgment. Customer may not offset against any claims, unless the counter-claim is established by final enforceable judgment, ready for a decision or uncontested.

IV.    Repurchase of Goods

1.     The repurchase of goods by the Supplier shall be contingent upon the Supplier’s previous consent; the Supplier will by no means be obliged to repurchase any goods and will decide on a case by case basis and goodwill. Goods can be repurchased only if they are in perfect condition and with transportation, costs and duties paid by Customer and against a copy of the original invoice or delivery note. In return for the repurchased goods, the Customer will receive a credit minus a handling fee of 20 % of the net invoice value upon receipt of the goods by Supplier. Any reconditioning costs or other costs incurred by the Supplier as a consequence of the repurchase will be charged to the Customer. The Supplier shall be entitled to deduct these costs directly from the credit.

2.     Supplier will under no circumstances repurchase special models or goods especially designed or purchased on the Customer’s request, as well as goods that are no longer compliant with the current version of the Supplier’s sales documents.

V.    Delivery, Terms of Delivery, Force Majeure, Default in Delivery, Impossibility, Additional Period of Time

1    Deliveries are made ex works (Incoterms®2010) Freilassing. The Supplier is entitled to partial and additional deliveries unless unacceptable for the Customer. Partial and additional deliveries are charged separately.

2    Stated terms or dates of delivery are not binding unless explicitly declared binding by the Supplier. Compliance with terms of delivery and delivery dates is preconditioned by correct and timely delivery of the Supplier itself, unless Supplier acted culpably with respect to its choice of the subsupplier or the concrete procurement. The Supplier shall inform the Customer as soon as possible about delays.

3    Deliveries ex works are fulfilled with the provision of goods so that they are ready for collection by the Customer. If the Supplier´s employees load transport-vehicles of the Customer with such goods, they are deemed to act as vicarious agents of the Customer and Supplier may invoice the costs to Customer.

4    Unless otherwise agreed, potential terms of delivery do not commence before all necessary documents to be provided by Customer have been received by Supplier and all technical and business questions have been solved between the Parties. Furthermore, the term of delivery is conditioned by the provision of necessary public certificates and authorizations and/or prepayments (either agreed or requested in accordance with these Terms) of the Customer, and/or the Customer´s fulfilment of its cooperation duties; if applicable, a term of delivery does not begin before Customer's due performance of all duties and obligations.

5    Delivery terms are extended - even during delay or default by Supplier – in cases of force majeure or other unforeseeable impairments after the conclusion of contract for which the Supplier is not responsible by the time performance is impaired. This also applies if such impairments occur at Suppliers’s subsuppliers or subcontractors thereof. Such impairments particularly include currency and trade related measures, strike and lockout, official directives, marketbased sourcing difficulties, sudden export or import restrictions, etc. The Supplier will inform the Customer as soon as possible about the beginning and the end of such impairments. With respect to such deliveries and services that have not been delivered yet, the Customer can demand from the Supplier a notification if it declares the contract avoided or will deliver within a reasonable period of time. If the Supplier does not deliver a statement accordingly in time, the Customer may declare the contract avoided with respect to such deliveries and services that have not been delivered yet. The Supplier is entitled, without further request of the Customer, to declare the contract avoided if impairments prevent the delivery of goods and services for more than 4 months. In such cases the Customer cannot claim compensation for damages against the Supplier. A retransfer of deliveries and services is possible only if the Customer does not have any interest in such deliveries and services.

6    In case of a default in delivery or performance of services, the Customer has to grant Supplier an additional period of time for delivery or performance of services. If Customer is entitled to demand compensation from Supplier due to default according to legal provisions, such compensation is limited to the damages predictable by the time of the conclusion of contract and at a maximum of 5 percent of the value of deliveries and services in default, provided that such deliveries and services cannot be used appropriately due to the default. This restriction to compensation does not apply in cases where the Supplier is liable without limitation due to gross negligence or willful misconduct.

7    If deliveries or services become impossible for Supplier, the Customer can declare the contract avoided without granting an additional time, with respect to such deliveries and services that haven’t been delivered yet. In such cases Supplier can also declare the contract avoided with respect to such deliveries and services that haven’t been delivered yet, unless Supplier is responsible for its impossibility. The Parties in such cases may declare the contract avoided with respect to fulfilled deliveries and services if there is absolutely no interest in such partial fulfilment. In case of responsibility for such impossibility, statutory liability shall apply as modified by these Terms.

8    Statutory provisions that require the Customer to grant Supplier an additional and reasonable period of time remain unaffected by these Terms. A reasonable additional period of time shall be at least half of the original term of delivery and not less than 30 business days. In cases of imminent danger (urgent cases to the threat to operational safety or to prevent disproportionate damage) the additional period of time must consist of 20 business days at least.

VI.    Default in Acceptance

1    For the duration of any default by Customer in accepting delivery (including late call-off of any delivery and execution of Suppliers’s right to suspend deliveries due to non-payment or substantial deterioration of the financial circumstances of the Customer) Supplier, without prejudice to its further rights and remedies, may place the deliverables in storage at Customer’s expense; Supplier may also commission a forwarding agent for this purpose. In addition to that, the Supplier is entitled to compensation for other necessary additional costs (such as insurance premiums) as actually incurred and retain delivery until payment; further legal rights of the Supplier remain unaffected.

2    Supplier may also require Customer to accept (or call off) a delivery and grant a reasonable additional period of time or exercise rights for non-performance; without prejudice to the foregoing, Supplier may after expiry of the additional period of time declare the contract avoided and claim fixed damages in the amount of 25 % of the price of the goods whose delivery has not been accepted/called off, while Customer reserves the right to prove that Supplier has sustained no or only a smaller loss.

3    If the Customer is in default with acceptance when impossibility of the Supplier occurs or the Customer is exclusively or predominantly responsible for such circumstances, the Customer remains liable for its contractual obligations.

VII.    Passing of Risk

1    The passing of risk is subject to agreement; otherwise it is occurs in accordance to these Terms (ex works, Incoterms®2010) or in cases where Customer is in default with acceptance.

2    All return shipments shall be made at the expense and the risk of the Customer, unless agreed otherwise.

VIII.    Security, Retention of Title

1    For deliveries and services at a value of 100.000,00 EUR and more and at Supplier's request, Customer provides an unconditional, unlimited and absolute payment guarantee of a European bank or a letter of credit as security for the payment of the price.

2    Transfer of title with respect to delivered goods does not take place prior to the complete payment of the price. All claims of the Customer resulting from a resale of delivered goods will be assigned by the Customer to the Supplier. Until further notice the Customer is authorized to collect such claims.

IX.    Obligation of Inspection, Warranty for Defects, Liability

1.    Customer will inspect the goods and services right after receipt of delivery and will notify Supplier in writing or in textform (including EDI, e-mail, fax) of evident defects within 5 working days after delivery and of all other defects within 5 working days from discovery, by defining the defect in detail and declaring which claims are asserted/which remedies are requested; otherwise all warranty is excluded. Customer’s warranty rights for defect deliveries (not services) shall be the rights under the governing law modified as follows.

2.    Customer has to grant a reasonable additional period of time of at least 30 days for remedying defects. In case of minor defects (defects that have no material influence on the fitness for purpose), only a reduction of price can be claimed instead of a remedy of defects. Non-minor defects are remedied by replacement delivery or rectification upon discretion of Supplier; disassembling and assembling and/or demounting and mounting of defective and defect-free goods as well as the assumption of costs incurred therefore are not owed in case of a remedy of defects. Defects are remedied at the place of performance of Supplier.

3.    In case of defects, a fundamental breach of contract is only assumed, if the supplied goods cannot be used by the Customer at all; even in these cases, the Customer has to grant an additional period of time for remedy of defects.

4.    Avoidance of the contract can only be declared in cases of fundamental breach of contract and within no later than 10 days after a third trial to remedy defects within an additional period of time turned out unsuccessful.

5.    Supplier shall not be liable for breaches of contract due to impediments beyond its control nor for breaches which are not based on gross negligence by Supplier nor for breaches which are not fundamental. Any damage foreseeable to Supplier amounts at maximum to - unless differently advised by Customer in the order - the (i) purchase price of the deliveries for the damage of a reduced value of the deliveries due to defects, (ii) 10 % of the purchase price for loss of profits and business and (iii) the insured amount by Supplier for each single damage for other liabilities and consequential damages.

6.    Customer’s claims for warranty for defects shall be statute-barred after five years from the beginning of the statutory period of limitation (in cases of doubt that shall be the time of delivery); any additional warranty extensions (warranty extensions shall not apply to standard goods) are subject to separate agreements and in these cases the following applies: conditions for a warranty extension of 5 years are appropriate storage and proper transport and installation, commissioning and maintenance must comply with the supplier's requirements, as well as the valid standards and the DVGW regulations. [https://www.hawle.de/en/products/]

7.    Compensation claims shall be statute-barred after one year after existence of the claim, unless otherwise agreed

8.    This limitation of liability shall not apply in cases of intent, guarantees, injury to life, body and health or product liability.

9.    Supplier shall not be liable for default of or any damages caused by its vicarious agents or auxiliary persons or any 3rd parties (e.g. suppliers etc.).

X.    Governing Law, Place of Jurisdiction, Place of Performance

1    All legal relations between the Supplier and the Customer are exclusively governed by German law, the UN Sales Convention explicitly included.

2    Exclusive place of jurisdiction for all disputes arising out of the contract and the related relationships thereto shall be at the seat of Supplier. Supplier may at its own discretion sue the Customer at any other legal place of jurisdiction or, as plaintiff instead of appealing an ordinary court, decide to file for settlement by binding arbitration in compliance with the arbitration rules of the German Institution for Arbitration (DIS); such arbitration proceedings shall be conducted in Munich and the language of the proceeding shall be English.

3    Place of performance shall be at the domicile of Supplier. This applies for the delivery of goods and services as well as for payments.

XI.    Miscellaneous

1    If one or more provisions of the contract or of these Terms should be invalid, both partially and in total, the validity of the contract and the remaining provisions remain unaffected. In such case the invalid provision is reactively replaced by a valid provision that corresponds best to the intended purpose.

2    Unless otherwise agreed in these Terms or in the contract, the Customer is not entitled to transfer rights to third parties arising out of these Terms or the contract.

3    The relevant version of these Terms is the English language version. This also applies if there is a translation of these Terms into another language and such version is additionally used.

2018-01-01

I. Scope/inquiries/offers/conclusion of a contract/modifications/formal requirements

These General Purchase Terms apply exclusively to all transactions between suppliers of deliveries and services and us and any of our affiliates, unless agreed otherwise. These General Purchase Terms also apply to all future transactions between us and the supplier in ongoing business relationships. Any supplier terms conflicting with these General Purchase Terms will not be accepted, unless they have been specifically approved by us in writing; in particular, silence on our part or acceptance or payment of the delivery or service shall not constitute consent.

2.  Our inquiries are without commitment and do not incur any handling charges of the supplier. We exclusively reserve full and unrestricted title, our full rights and all exploitation rights to our drawings, images, models, plans and other documents as well as information in tangible and intangible, including but not limited to electronic, form and all specifications, experiences, knowhow, inventions, industrial property rights, designs and trademarks (together the “Information”). All Information that is not public domain shall be treated confidential and not be disclosed to third parties. Tangible and intangible Information shall at any time upon request or if no transaction is concluded be returned to us without delay and electronic Information shall be erased without delay.

3.  Offers of the supplier are binding (unless explicitly marked as non-binding) and shall be fully consistent with our inquiries and Information. Any differences must be marked. Alternative solutions may be offered separately. Offers are deemed accepted and a contract thus comes into effect upon our order in writing or text form (including EDI, email, fax); when in doubt, the nature and scope of a transaction is determined by the content of our order, in particular if the supplier does not object in writing without delay. The supplier will confirm the receipt and processing of our order without delay. We reserve the right to only accept parts of any offer.

4.  We reserve the right to modify our orders at a later point in time. In the event of any such modification the supplier will submit an offer to us that is proportionate to the initial offer and to the modification, and will reasonably consider the effects in terms of additional or reduced costs and on the delivery dates.

5.  Any changes to these terms at the time of conclusion of the contract must be agreed in writing or text form (including EDI, email, fax); this also includes changes to this formal requirement and changes after the conclusion of the contract.

II. Prices/delivery/packaging/insurance/legal compliance/rights of retention

1.  The agreed prices are fixed prices. Unless expressly agreed otherwise, shipments will be DDP (Incoterms 2010). The supplier shall choose the most cost-efficient and suitable shipping option for us, except as otherwise agreed.

2.  Every shipment must include a delivery note specifying the delivered items by type, quantity and weight. Our order number and, if applicable, product name must be indicated on delivery notes, waybills, invoices and all correspondence. Any inspection certificates and approvals must always be included with the invoice or delivery note. Furthermore, the supplier shall submit to us all documents required for purposes of exportation, importation and transit or transportation.

3.  We will only accept delivery of the quantities or number of units ordered by us, at the agreed date. Excess or short delivery, delivery by instalments or schedule variance shall only be permissible upon prior agreement with us. The ordered quantities must be observed unless quantity variations have been agreed. In the event of pre-schedule delivery or services, we may refuse to accept and return or store the deliverables at our premises, at the supplier’s cost and risk, until the delivery date. In the event of pre-schedule delivery or services the supplier’s payment claims will not mature earlier.

4.  We will cover the transport insurance unless agreed otherwise. The supplier may not charge RVS/SVS (forwarding and cartage insurance). The risk of any deterioration including accidental loss remains with the supplier until the goods or work results are delivered at the place of fulfilment.

5.  The deliveries shall be packed so as to avoid damage in transit. Packaging material may only be used as necessary to accomplish this purpose.

6.  The obligation to take back packaging is governed by the applicable laws. The supplier also will comply with all other regulations imposed by law or any authority with regard to labelling, packaging, shipping, transport, importation, transit, exportation etc., and will inform us without delay of any contributions required from our side.

7.  The supplier may exercise rights of retention against us only on the basis of claims from the same contractual relationship that are undisputed, are ready for adjudication or have been established by final enforceable judgment. Any setoff by the supplier shall only be permitted on the basis of counterclaims that have been established by final enforceable judgment, are ready for adjudication or are undisputed.

III. Invoices/payment

1.  Invoices together with all related documents and data shall be submitted to us separately in due form after the delivery. Invoices that are not submitted in due form shall be deemed to have been received by us at the moment of their correction. Nothing in this shall prejudice any discount agreements as may have been made.

2.  Claims fall due only upon receipt and inspection of the complete delivery and upon receipt of the due and proper invoice documents.

3.  We may set off claims of the supplier against claims of our affiliates. This setoff is permitted whether or not the claim or counterclaim has become due. Claims that are not yet due will be brought to account on the value date.

4.  All payments by us are subject to the supplier’s due and proper fulfilment of the contract as well as to accuracy of prices and accounts. If the supplier fails to duly make delivery or perform a service, we may reasonably withhold payment until the contract has been duly fulfilled.

5.  Payment will be made within 14 days with a 3% discount, or within 30 days net, after delivery and receipt of the invoice, unless expressly agreed otherwise.

6.  If the supplier and we have agreed on billing at hourly wages, proof of the work based on hourly wages shall be documented separately and submitted to us for confirmation without delay, that is to say no later than by the beginning of the week following the performance of the work.

7.  The supplier shall have no right to assign its claims against us or have them collected by a third party.

IV. Dates and deadlines/late delivery/force majeure

1.  The dates agreed between us and the supplier are binding unless they are expressly referred to as non-binding. Compliance with a delivery date is determined by the time of arrival of the delivery at the place of fulfilment or, as the case may be, the completion or delivery of the work results in a condition ready for acceptance, including delivery of the complete documentation required by law or regulations or agreed by contract, in the German or, as may have been agreed, English language, for example approvals, certificates of inspection, certificates of conformity, operating and maintenance instructions, spare parts lists, user manual, etc.

2.  The supplier shall advise us in writing without delay of any actual or foreseeable circumstances which imply that agreed dates cannot be observed, indicating the reasons and the anticipated duration of the delay.

3.  If a delivery date cannot be observed for reasons within the supplier’s control we may, after a reasonable respite allowed by us has expired without result, claim damages for noncompliance or obtain replacement from a third party and/or withdraw from the contract. No respite has to be set where the supplier seriously and definitively refuses to make the delivery or render the service, the delivery or service ceases to be of interest to us, or other good reasons dictate immediate action.

4.  The supplier may plead absence of necessary documents, data, provision of materials, contributions and the like, to be supplied by us, only if the supplier has sent a timely written reminder and not received the contributions owed within a reasonable period of time.

5.  Force majeure and industrial conflicts release us and the supplier of our obligations for the duration of the circumstances and to the extent of their effects. We and the supplier are obliged, within reasonably acceptable limits, to immediately provide all necessary information and to adjust the obligations to the changed circumstances on a good faith basis. We are released of the obligation to accept the ordered deliveries or services or parts thereof and have the right to withdraw from the contract to the extent to which the deliveries or services – in consideration of economic aspects - cease to be of interest to us for reason of the delay caused by the force majeure event or industrial conflict.

V. Quality/compliance/guarantees/representations/warranty

The supplier shall render the deliveries and services in full conformity with the contractual agreements and/or legal requirements as well as the latest scientific and technical progress; in addition, the supplier shall perform an industry-standard quality assurance which by its nature and level is suitable, and submit proof of the quality assurance to us upon request.

1. The supplier shall ensure compliance with all legal requirements (for example with European and international product requirements and production standards such REACH, CLP, RoHs, RED, CE conformity, conflict resources; packaging, eco-design, electrical equipment, occupational safety, etc.). The supplier shall communicate all relevant information to us and indemnify us against all claims and penalties in the event of noncompliance with any conditions and restrictions. The supplier assures that it does not contravene any laws, regulations and measures imposed by authorities.

2. The supplier guarantees to have full and unrestricted control of the supplier’s deliveries and services.

3. In the case of contracts of sale and contracts for manufacture and supply, we shall report any apparent lack of conformity of the delivery to the supplier in writing without delay as soon as the lack of conformity has been determined in the ordinary course of business. Our report shall be deemed to have been made without delay if it has been made within two weeks after receipt of the delivery by us. We shall report any lack of conformity that is detectable later to the supplier within 2 weeks.

4. In the event of acceptance of the delivery or work results, the supplier shall give us 10 days’ advance notice that the goods or work results are ready for acceptance; the acceptance procedure will follow an acceptance log prepared by us in agreement with the supplier, in which any obvious lack of conformity will be documented. 

5. If the supplier fails to begin remedying any lack of conformity without delay upon our request, or in exigent circumstances, or if the matter is urgent for other important reasons, we may take the necessary measures ourselves or arrange for them to be taken by a third party, at the supplier’s expense.

6. If any remedial action/replacement delivery is impossible or remains without result, or is delayed beyond a reasonable deadline set by us in writing or is refused, we will be entitled to the statutory rights of rescission of the contract or reduction. We expressly reserve all further rights and claims for damages for improper performance or noncompliance.

7. The statutory warranty period applies. It commences no later than 12 months after full delivery by the supplier to the place of fulfilment or acceptance of the work results by us.

VI. Liability

1. If the delivery or work result involves a lack of conformity or is otherwise defective, if the supplier contravenes any contractual duties of care, custodial care or information or other contractual secondary duties, or if a contractually agreed date is not observed, the supplier shall be liable to us for any resultant loss, without any further proof of the merits of the claim being required other than proof of an objective breach of duty, of the causal link to the loss incurred, and of the amount of the loss.

2.  The supplier may only exclude its liability for a breach of duty by demonstrating absence of fault. The supplier shall be equally responsible for its own fault and for the fault of any vicarious agents engaged in the discharge of the supplier’s duties or of any upstream supplier. The supplier may not exclude its liability by demonstrating the due and proper selection or monitoring of the vicarious agents or upstream suppliers. The supplier’s liability shall not be subject to any limitation.

3.  The supplier shall maintain adequate liability insurance cover. The supplier shall adequately insure all risks arising out of product liability including the risk of recall, and submit appropriate proof of insurance upon request.

VII. IP rights

1. The supplier is responsible for that its deliveries and services do not involve any infringement of third party rights, in particular but not limited to patents, licenses or other IP rights or pending patents of third parties, and shall indemnify us against any third party claims.

2. We may, at the supplier’s expense, obtain authorisation from authorised parties to use the deliveries and services in question.

VIII. Tooling

1. Models, tools and similar devices provided to the supplier by us are subject to confidentiality and remain our exclusive property, and the supplier shall store them properly and mark them so as to clearly distinguish them as our property. The models, tools and devices must not be passed on to third parties or used by the supplier or the supplier’s legal successors to manufacture identical or similar products. They shall be protected against any kind of misuse, kept confidential from unauthorised persons, and returned to us without delay upon our request or termination of the contract. The supplier is not entitled to any counterclaim against this return obligation.

2.  Production equipment manufactured by the supplier and paid for by us shall be our property and be returned to us without delay upon our request or termination of the contract. The supplier is not entitled to any counterclaim against this return obligation. Any changes to the production equipment shall be subject to our consent; the production equipment shall be checked for proper operation and/or dimensional accuracy at regular intervals. Any lack of conformity as may be determined shall be reported to us without delay and the further steps shall be agreed.

Replacement costs or repair costs caused by any improper handling of our production equipment shall be borne by the supplier. Any replacement costs or repair costs for production equipment that are incurred by ordinary wear and tear shall be reported to us without delay and are subject to a written confirmation of cost coverage.

3. Production equipment will be preserved for at least 5 years after its last use (for example, casting). Production equipment may only be scrapped or returned after we have given our consent in writing. The cost of scrapping will be borne by the supplier.

4.  In any event of compulsory enforcement against our property or other production equipment, the supplier must notify us without delay to allow us to safeguard our rights.

IX. Termination of contract

1. In the event of any long-term impediment to delivery, late delivery, material breach of contract, significant lack of conformity, discontinuation of payment or opening of insolvency proceedings, refusal of a request to open insolvency proceedings for lack of assets or initiation of similar proceedings against the supplier, we may refuse fulfilment of the contract in whole or in part and claim damages for noncompliance. If the supplier’s insolvency is imminent or has occurred, we may also withhold a reasonable security for the duration of the applicable warranty periods.

2. We may at any time terminate the contract or parts thereof. In any such case the supplier will be entitled to receive the full remuneration for deliveries and services rendered to date and for unavoidable costs caused by the order. The profit share entitlement will be limited to 3% or less of the remaining order value.

3. If the supplier terminates the contract for any cause within our responsibility, the supplier will be entitled to receive the full remuneration for deliveries and services rendered to date and for unavoidable costs caused by the order. There exist no further or other claims.

X. Place of fulfilment/language/jurisdiction/governing law

1. Unless expressly agreed otherwise, the place of fulfilment of the delivery obligation is the shipping address or point of use requested by us.

2. The place of fulfilment for payments is any location where we maintain or where any of our affiliates maintains an account with a banking institution.

3. The language of contract is German or English. If the contracting parties use any third language, the terms of the German language version shall prevail. All correspondence and other documents and records must be in German or English.

4. The contract is governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

5. The court having subject matter jurisdiction at the registered office of Hawle Armaturen GmbH shall be the place of jurisdiction for all disputes. We reserve the right, however, to enforce our claims in any other admissible court of jurisdiction.

Amended on 1 February 2018