General Terms and Conditions of Contract
of HAW LININGS GmbH for Contracts with Businesses
These General Terms and Conditions of Contract apply in supplement to our offers and/or confirmations of contract. The customer’s deviating terms of purchase order are hereby expressly contradicted; they shall not apply in relation to HAW LININGS.
I. Precontractual Services, Offer and Acceptance
- Initial cost estimates, including drawings and any diagrammatic views required to elaborate such cost estimates, shall be delivered free of charge. If other documents are prepared in addition thereto upon your request (drafts, plans, drawings, calculations of strength and stability, etc.) which exceed the initial offer, and if HAW LININGS is not awarded the contract, HAW LININGS shall be entitled to charge reasonable compensation in accordance with the requested special expenditure of work.
- It is agreed between HAW LININGS and you that all of the information, drawings, data, etc. mutually provided within the scope of our collaboration has been entrusted within the meaning of Sec. 18 Law Against Unfair Competition (UWG) to the respective other party and may be used exclusively within the scope of such collaboration. Any other use, including, but not limited to, a disclosure to third parties, is strictly prohibited.
- Offers shall be valid for 4 weeks from the date of issue. Verbal agreements or commitments shall only be binding for HAW LININGS upon written confirmation.
- Any conclusion of contract shall not take place until after a written confirmation of contract by HAW LININGS has been given.
- Technical data and descriptions in HAW LININGS product information, instruction sheets, etc. are merely general guidelines. They are based on technical findings from laboratory experiments and various applications in practice, and thus are in no event to be considered warranted characteristics for the specific case of application.
II. Prices and Terms of Payment
- For the delivery of goods, prices are quoted net ex works and exclusive of packaging, freight, insurance and value-added tax and without any custom duties.
In the case of installation services to be rendered, prices are based on the statutory work hours or work hours under collective bargaining agreements which are applicable for HAW LININGS. If you request overtime, night work, work on Sundays and holidays, the overtime under statute or collective bargaining agreements shall be charged additionally.
In addition to the agreed prices for hourly rates, which are net prices, the costs for the travel to and from the site for HAW LININGS employees, the compensation for travel time and the daily allowance to be paid under collective bargaining agreements shall be paid at the respective applicable rates.
- Invoices are payable no later than 30 days after the receipt of the invoice without any deductions. A set-off or right of retention in relation to HAW LININGS claims may only be exercised if the counterclaim is undisputed or has become final and absolute. Any and all costs of payment transactions shall be at your expense. HAW LININGS reserves the right to assign claims arising from our business relationship.
III. Retention of Title
- HAW LININGS reserves title to the goods delivered as security until all claims to which HAW LININGS is entitled under our present and future business relationship have been settled. Title shall extend to the new products created through the processing of goods under retention of title. In the event of the processing, blending or mixing of materials not belonging to HAW LININGS, HAW LININGS shall acquire co-ownership to the new product in the relationship of the invoiced value of our goods subject retention of title to the value of the other materials used. The exercise of our right of retention shall not require a rescission of contract if you are in default.
- Receivables arising from the (re)sale of goods to your customers which are still the property or co-property of HAW LININGS shall be deemed, on the date of sale, to have been assigned by you in advance to HAW LININGS. The scope of the advance assignment shall be limited to the amount of the HAW LININGS claim. Until revocation by HAW LININGS, you are entitled, however, to collect the receivables in your own name and forward it to HAW LININGS.
- Provided that the value of the security to which HAW LININGS is entitled exceeds the secured claims by more than 10%, such security shall be released accordingly upon your request.
- If justified doubt as to your solvency arises prior to or during delivery/execution of work, HAW LININGS may demand adequate security to secure your payment obligations and refrain from rendering delivery or the execution of work until such security has been provided. Should you be unable to provide the requested security, HAW LININGS shall be entitled to rescind the contract.
IV. Export Controls
- Because numerous HAW LININGS products are subject to export controls and their delivery is subject to compliance with the applicable export control regulations, HAW LININGS shall not be responsible for any delays in delivery and/or for non-delivery caused by compliance with the relevant export control laws. You undertake for your part to strictly comply with the respective export controls regulations when exporting the products.
V. Place of Performance and Passing of Risk
- HAW LININGS reserves the right to decide which of its Group production plants will supply the material. Place of performance for the delivery of goods is the delivering plant. In the case of deliveries with installation work, this shall be the site on which the plant is constructed. Acceptance shall be deemed to have taken place if it has not been given by you within 7 work days after completion. This shall not apply if grounds preventing acceptance exist in HAW LININGS’s sphere of responsibility.
VI. Default and Liability for Defects
- Agreed delivery dates refer to the date on which the goods are sent or, as the case may be for deliveries with installation, the date on which the work is completed. If a delivery period has been exceeded through negligence, you may assert your legal rights after having granted a reasonable time extension. Any claims for damages against HAW LININGS are limited, however, to the foreseeable scope of the damage.
Any liability is limited to the value of the contract, provided that HAW LININGS’s product liability insurance does not compensate for any further damages.
- The warranty period for claims for defects is limited to 12 months from the date on which the statutory warranty period begins, provided that HAW LININGS is not liable for intent or gross negligence or for personal injury and death. This limitation shall furthermore not apply if HAW LININGS delivers a product which has been used in accordance with its normal manner of use in buildings/structure and has caused the defectiveness of such buildings/structure.
If you claim the existence of a defect after the expiration of more than 6 months, you are obligated to prove that you have not already been aware of the defect for a longer period and that you have immediately ceased to use the respective product upon discovering the defect. If you have continued to use the products despite of your being aware of a defect for which HAW LININGS bears responsibility and if the defect becomes greater because of such use, you shall not: be entitled to any further warranty rights.
- Obvious defects must be notified in writing pursuant to Sec. 377 German Commercial Code, otherwise any warranty claims are excluded. The timely sending of the notice of defect shall suffice to comply with notice periods.
- If a notice of defect has been falsely made, you shall be obligated to HAW LININGS to reimburse, upon billing, the expenses incurred by HAW LININGS for examining the defect and reviewing the notice of defect.
VII. Other Statutory Liability
- HAW LININGS shall be liable under the statutory provisions for any personal injury for which HAW LININGS is responsible and for all actions based on intent or gross negligence. Further claims for damages– irrespective of the legal grounds thereof – including, but not limited to, claims for the breach of ancillary contractual obligations, shall be excluded to the extent this is permitted under law or if they have not been expressly conceded pursuant to these Terms and Conditions of Contract.
- Excluded is the liability for damages not directly incurred to the product itself and which exceeds the scope of damage foreseeable by HAW LININGS. A liability for consequential damages, including, but not limited to, loss of production, stoppage of production, loss of profit and the loss of information and data is excluded.
VIII. Applicable Law and Venue
- The contractual relationship between the parties shall be governed by the laws of the Federal Republic of Germany upon exclusion of the UN Convention on the International Sale of Goods. Incoterms in their most recent version as amended from time to time shall govern the interpretation of delivery clauses.
- Venue shall be at the principal place of business of the selling entity HAW LININGS is also entitled to initiate an action against you at the court having general jurisdiction over you