General Conditions of Delivery hyco Vakuumtechnik GmbH
1. General
All business relations between hyco and the Customer shall be governed
exclusively by the following Terms and Conditions in their version
valid at the time of the order. They are also available at www.hyco.de
in a storable and printable manner. The contractual language is German.
The German version of the Terms and Conditions is binding. Said Terms
and Conditions shall also apply to all further business relations, even
if they are not expressly stipulated once again, and they are intended
for the use with respect to business entities/entrepreneurs. At the
latest by taking delivery of the goods or receiving the services, said
Terms and Conditions shall be deemed accepted. hyco reserves the right
to alter said Terms and Conditions at any time. Terms and conditions of
trade of the Customer, which deviate from the present Terms, and
Conditions shall not become contents of the contract, even if they are
not expressly objected to by hyco, and shall only apply in case of an
explicit written confirmation by hyco. Offers by hyco are made without
obligation. Supplements, commitments and other agreements deviating from
said Terms and Conditions, oral information, advertising statements of
any kind, brochures, drawings, illustrations, measures, weights or
other performance data of hyco do not constitute a warranty or a
promise of guarantee of any kind. The sales staff of hyco is not
authorized to come to oral supplements with the Customers or to give
oral warranties going beyond the content of the written contract. Only
after a confirmation of the order by hyco in writing, a contract with
the Customer shall come into existence. The minimum value for an order
amounts to € 25.00. For orders below the minimum order value, a service
charge of € 5.00 will be charged. Hyco shall not be liable for errors
resulting from incorrect orders. Representations by the Customer
preceding a conclusion of contract shall only be considered as an offer
for the conclusion of a contract.
2. Specification
When used in accordance with the instructions, the product works in
accordance with the specifications specified in the documents enclosed
with the product. The mentioned performance data are approximate
values. They are subject to the local air pressure values and the
engine speed variations and can change towards + or –. Said
specifications finally stipulate the properties of the product, include
the exclusive, contractually agreed upon quality for the product and
shall not be considered as a guarantee for the quality of the product
or as any other guarantee in the legal sense.
3. Delivery Periods, Partial Deliveries, Risk of Procurement
Statements on dates of delivery and periods of delivery have no
binding force, unless, by way of exception, they are guaranteed in
written form as binding. Periods of delivery only start when all design
details have been completely cleared up and all technical issues have
been clarified, and they require that all other necessary obligations
of participation of the Customer are fulfilled. They are always
understood to be exclusive of duration of transport. Hyco expressly
reserves the right to a partial delivery. Hyco only guarantees for the
performance of its deliveries and/or services in due time in so far as
hyco receives the necessary ancillary supplies and other services in
due time. The burden of proof that hyco is liable for a violation of
duty in connection with the obtainment of the ancillary supplies lies
with the Customer.
4. Delay in Delivery
Hyco shall be liable in accordance with the legal provisions for a
delay of the performance in cases of intent or gross negligence by hyco
or its representatives or employees or assistants. In cases of gross
negligence, the liability of hyco is limited to the contract-typical
foreseeable damage, unless one of the exceptional cases as mentioned in
sentence 5 is given. In other respects, the liability of hyco on
account of delay of performance shall be limited to 10 % of the value
of the delivery/service in case of compensation in addition to the
performance and to 15 % of the value of the delivery/service in case of
compensation in lieu of the performance. Any further claims of the
Customer shall be excluded, also after expiration of a deadline set by
hyco for the performance. The above-mentioned limitations shall not
apply in case of liability because of injuries of life, body or health.
5. Impossibility
Hyco shall be liable in accordance with the legal provisions for
impossibility of performance in cases of intent or gross negligence by
hyco or its representatives or employees or assistants. In cases of
gross negligence, the liability of hyco shall be limited to the
contract-typical foreseeable damage, unless one of the exceptional
cases as mentioned in sentence 5 is given. In other respects, the
liability of hyco on account of impossibility shall be limited to a
compensation and a reimbursement of expenses in vain to a total of 10 %
of the value of the delivery/service. Any further claims of the
Customer shall be excluded on account of impossibility of performance.
The above-mentioned limitations shall not apply in so far as in case of
intent, gross negligence or on account of injury to life, body or
health liability is mandatory. The right of the Customer to withdraw
from the contract remains unaffected.
6. Rescission Right
The Customer has the right to rescind the contract within the scope of
the legal provisions only when hyco is reliable for the violation of
duty; in case of defects, however, the statutory prerequisites persist.
In case of violations of duty, upon a request by hyco the Customer has
to declare within an adequate period of time whether the Customer
withdraws from the contract because of the violation of duty or whether
the Customer insists on a delivery.
7. Forwarding, Transfer of Risk
All consignments travel at Customer's expense and risk. The same
applies also in case of a dispatch from another place than from the
place of performance. Transport insurances will only be contracted upon
exclusive request by the Customer. No compensation will be made for
damages or loss during transport. Customer itself has to take care of
the disposal of the packing material. Should the dispatch of the
deliveries be delayed on request of the Customer by more than 2 weeks
from the stipulated date of delivery, or when, after notification by
hyco that the goods are ready for dispatch, no exact date of delivery
was agreed upon, hyco shall be entitled to charge a lump sum storage
charge in the amount of 0.5 % of the price of the delivery item for
each started month, but in no event more than 5 %. Hyco shall have the
right to prove that a higher damage has incurred. The delivery will be
“ex works” Krailling/Germany. The risk is transferred to the Customer
with the handing-over of the goods, in case of a sale by delivery with
the handing-over of the goods to the forwarding agent, the carrier or
another person or establishment commissioned with the performance of
the dispatch.
8. Formal Acceptance
If the Customer desires a formal acceptance, the Customer has to ask
for it expressly and in written form. The acceptance has always to take
place at the works of hyco. If no formal acceptance is demanded, the
acceptance is considered effected when the goods leave the works of
hyco. The costs involved in formal acceptances will be invoiced to the
Customer. The prices apply which are valid at the day of acceptance.
9. Prices
The prices are ex works, packing and transport not included. The value
added tax is not included in the prices. Our prices are based on the
current production costs. Should said production costs change
subsequently, the acknowledged prices will change accordingly. The
increase in price will become effective with a notice in writing to the
Customer. Returns of packing material will not be credited.
10. Payment, Foreign Business, Default
On the invoices of hyco the time for payment with a 2 % discount
deduction and the time for payment without any discount are indicated.
Foreign business is only performed upon prepayment respectively upon
receipt of the invoice amount on the bank account of hyco. Repair
invoices have to be paid immediately without any discount. Bills will
not be accepted. A default occurs in case of failure of performance
after expiration of said payment deadlines and entitles hyco to demand
the statutory default interests. Hyco reserves the right to prove and
claim a higher damage caused by default. The Customer shall have the
right to prove that no damage or only a substantially lower damage has
arisen for hyco. In case of a default of payment, all granted
allowances, discounts, and other privileges shall no longer be valid.
Hyco shall have the right to withhold or refuse completely or partially
any further deliveries on this contract or on other contracts and
shall have the right to demand immediate payment of all deliveries,
payments in advance as well as compensation for damages in case of
fault. All afore-mentioned rights shall be due to hyco also when
circumstances become known with respect to the Customer, its partners
or the enterprises of its field, due to which the credit worthiness
seems to be doubtful.
11. Set-Off, Retention
The Customer may set off payments only, when its counterclaims are
recognized by declaratory judgment, are uncontested or are admitted by
hyco. The Customer shall be entitled to exercise a right of retention
only insofar as its counterclaim is based on the same contractual
relation.
12. Reservation of Title
Up to the satisfaction of all claims being due to hyco on account of
any legal ground against the Customer and its affiliated companies now
or in future, the following securities shall be granted to hyco which
hyco will release upon request at hyco's discretion, provided the
estimated value of the securities exceeds the claims by a total of more
than 50 %. The goods shall remain hyco's property. A handling and
processing is always carried out for hyco as the manufacturer within
the meaning of Section 950 of the Civil Code, but without any
obligation for hyco. When the delivered goods are attached to or
processed with other objects, hyco shall obtain a joint ownership in
proportion of the invoice value of the delivered goods to the other
goods at the point of time of connection or processing. Section 947 II
of the Civil Code does not apply. The Customer shall hold in custody
the (jointly held) property of hyco free of charge. Goods of which hyco
is co-owner will be referred to in the following as 'reserved goods'.
The Customer shall be obliged to maintain the reserved goods in proper
condition at its own costs und to insure the reserved goods against
contingencies. Pledges and transfers by way of security are
inadmissible. In case of pledges or other attachments by third parties
to the reserved goods, the Customer shall draw attention to the
property of hyco and shall inform hyco immediately. The Customer shall
bear the costs and damages. The Customer shall be entitled to process
und to sell the reserved goods in the proper course of business, as
long as the Customer is not in default. The Customer shall assign
already now all claims arising from the resale or any other legal
ground (insurance, tortious act) with respect to the reserved goods
(incl. balance claims from account current) in the amount of the
invoice value of the delivered goods (incl. VAT) plus 50 % to hyco. The
Customer shall be entitled to collect the assigned claims by itself, as
long as the Customer meets its financial obligations with respect to
hyco and no petition to open insolvency proceedings or composition
proceedings has been submitted. In case of lapse of said prerequisites,
the Customer shall be obliged to make all statements required for the
collection of debts, to hand over documents as well as to notify
debtors of the assignment. In case of a behaviour of the Customer
contrary to the Terms and Conditions of the contract (in particular
default in payment), hyco shall be entitled to request security from
the Customer or to take back reserved goods or to request assignment of
claims for return against third parties and to utilize the goods at the
expense of the Customer after expiration of an adequate period of time
set forth in a warning. The taking back as well as the seizure of the
reserved goods by hyco does not constitute a withdrawal from the
contract. The Customer declares its consent that the persons entrusted
by hyco with the collection of the goods may for this purpose enter its
premises and may drive on the site where the goods are deposited. As a
supplement it applies in case of businesses in foreign countries that
hyco reserves the title in the delivered goods up to the final payment
of the purchase price in accordance with the respective legal
provisions of the country of destination. Said reservation of title is
considered as expressly agreed upon between hyco and the Customer. As
far as the country of destination allows for other security interests
instead of the reservation of title, said rights are considered as
expressly stipulated herewith.
13. Cancellations, Returns, Repairs
Orders for manufactures to Customer's specification can no longer be
cancelled after order processing. For other cancellations, for which we
are not responsible, an adequate cost contribution of at least EUR
25.00 will be charged. Delivered goods free of defects will not be
taken back, except by virtue of a prior agreement in writing and by
charging an administrative fee of 8 % of the value of the goods, at
least EUR 25.00. Freight charges, packing costs, conversion costs,
testing and processing costs etc. will be charged separately. Repairs
must be sent in free of costs to the works of hyco where the goods will
be checked and repaired, if necessary. By the sending in of the goods,
the Customer commits himself to pay the repair costs. An estimate of
costs will only be made upon a previous request.
14. Liability for Defects
The product shall be considered defect, if, at the time of transfer of
risk, the product does not have the quality as contractually agreed
upon in No. 2. Claims based on defects (warranty claims) do not exist
in case of an only irrelevant deviation from the quality agreed upon or
in case of an only irrelevant impairment of the fitness for use. The
Customer shall notify hyco in writing on recognizable defects within a
deadline of 10 days with effect from receipt of the goods, otherwise
the goods shall be considered accepted. Defects which cannot be
detected within said deadline, even in case of a careful inspection,
have to be notified hyco in writing immediately after detection of said
defect. When operating or service instructions of hyco will not be
followed, when parts are modified, parts are exchanged or consumables
are used which to not comply with the original specifications, any
claims based on defects shall expire, unless the Customer refutes a
corresponding substantiated assertion that one of said circumstances
has caused said defect. Within the scope of the remedying of defects,
hyco shall by no means be obliged to make a new delivery or a new
manufacture. In the event that the subsequent performance/warranty
repair is ineffective, the Customer is entitled at its option to reduce
the purchase price or to withdraw from the contract. The right of the
Customer to claim damages in lieu of the performance in accordance with
the legal provisions and the present Terms and Conditions remains
unaffected. If the Customer wants to claim damages in lieu of the
performance or wants to repair the defects by itself, a failure of the
warranty repair is only given after the second unsuccessful attempt to
remedy the defects. Cases in law for the dispensability of the fixing
of a time limit remain unaffected. Remedying of defects can only be
carried out at the works of hyco. If the Customer demands that the
remedying of defects shall be carried out at a place determined by the
Customer, hyco can comply with said demand, wherein replaced parts will
not be charged, while working time and travelling expenses have to be
paid at the standard rate of hyco. If hyco finds out that the product is
free of defects, the inspection costs will be charged to the Customer.
15. Reservation of Right to Subsequent Performance
In case of the existence of defects, the Customer shall not be
entitled to a right of retention, except the delivery is obviously
defective or the Customer obviously has a right to reject the
acceptance of the work; in this case, the Customer shall only be
entitled to a right of retention as far as the amount withheld is in an
adequate proportion to the defects and the expected costs of the
subsequent performance (in particular remedying of the defects). The
Customer shall not be entitled to assert any claims and rights on
account of defects, if the Customer has not yet paid payments due and
the amount due is in an adequate proportion to the value of the
defective delivery.
16. Claims against Suppliers
As far as hyco is entitled to claims against suppliers, the liability
of hyco is made by assignment of said claims to the Customer who
accepts said assignment herewith. Claims of the Customer to
reimbursement of the costs which incur in connection with the assertion
of claims against a supplier shall be excluded in any case, when
possible steps causing costs, in particular the institution of legal
proceedings, had not been previously coordinated with hyco.
17. Limitations on Liability
Hyco shall be liable for the arisen damage according to the legal
provisions only insofar as hyco or its representatives or employees or
assistants are imputable of intent or gross negligence. In other
respects, hyco shall only be liable according to the Product Liability
Act, on account of injury of life, body or health, or on account of
violation of fundamental contractual obligations. The claim for damages
for the violation of fundamental contractual obligations is limited to
the contract-typical foreseeable damage. The liability of the Customer
is also limited to the contract-typical foreseeable damage in cases of
gross negligence, if none of the exceptional cases mentioned in
sentence 2 is given. The liability for damages caused by the item of
delivery at Customer's objects of legal protection (indirect damages,
other consequential harms caused by a defect) shall be excluded. This
does not apply as far as intent or gross negligence is given or if
there is liability on account of injury of life, body or health. All
afore-mentioned regulations apply to compensation in addition to
performance as well as to compensation in lieu of performance,
regardless of the legal ground, in particular on account of defects,
the violation of duties from the obligation or from a tortious act.
They also apply to compensation for expenses in vain. The liability for
default is determined by No. 4, the liability for impossibility by No.
5.
18. Limitation of Time
The period of limitation for claims and rights on account of defects
of the delivery/service, regardless of the legal ground, shall be 1
year. The afore-mentioned period of limitation also applies to all
claims for damages against hyco which are associated with the defect,
independent of the legal basis of the claim, as well as to claims for
damages against hyco of any kind which are not associated with a
defect. In general, the period of limitation as mentioned in sentence 1
does not apply in case of intent. The period of limitation does also
not apply, if hyco has fraudulently concealed the defect. In case of a
fraudulent concealment of a defect by hyco, then, instead of the period
as mentioned in sentence 1, the legal period of limitation applies
which would apply without existence of fraudulent intent. For claims
for damages, the period of limitation does also not apply in cases of
injury of life, body or health or freedom, in case of claims according
to the Product Liability Act, in case of a grossly negligent violation
of duty or in case of violation of fundamental contractual obligations.
For all claims, the period of limitation starts with the delivery or
with the acceptance thereof. Unless expressly stipulated otherwise, the
legal provisions on the commencement of the limitation period, the
suspension of expiration of prescription, the suspension and the
recommencement of deadlines remain unaffected.
19. Place of Performance, Jurisdiction, Applicable Law, Partial Nullity, Written Form
Place of performance is Krailling/Germany. For all disputes arising
directly or indirectly from the contractual relationship, legal
proceedings have to be instituted in Munich, place of the head office of
hyco. In case of foreign businesses, hyco shall have the right to
institute possible legal proceedings also before the court having
jurisdiction for the place of business of the Customer. As a matter of
principle, German law shall apply in all cases, except in those
countries in which German law cannot be applied by reason of foreign
laws. In said cases, the valid law of the respective country shall
apply. The UN Sales Convention and the Uniform Law on International
Sale of Goods (EKG/EKAG) shall not apply. If one of the present
provisions or a provision within the scope of any other agreements shall
be or become ineffective in whole or in part, only said part shall be
ineffective. The ineffectiveness of individual provisions shall not
affect the validity of the remaining stipulations. Any amendment of the
present Terms and Conditions must be made in writing. This also
applies to an amendment of said Written Form Clause.