General Terms and Conditions of Sale and Delivery

I. General information, scope

1. These General Terms and Conditions of Sale and Delivery (Terms and Conditions) apply exclusively to all business relationships between us (Supplier) and our customers (Purchaser). These Terms and Conditions therefore also apply to all future business relationships in the version valid at the time of the order, even if they are not expressly agreed again. 

2. Purchasers within the meaning of these Terms and Conditions are exclusively entrepreneurs (Section 14 BGB, German Civil Code), legal entities under public law or special funds under public law.

3. The Supplier does not recognise any conflicting, deviating or supplementary general terms and conditions of the Purchaser. This also applies if the Supplier carries out the delivery to the Purchaser without reservation in the knowledge of conflicting, deviating or supplementary general terms and conditions of the Purchaser.  

4. References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply insofar as they are not directly amended or expressly excluded in these Terms and Conditions. 

II. Offer and conclusion of contract

1. Offers of any kind and in any form made by the Supplier are subject to change and non-binding. The ordering of goods by the Purchaser is considered a binding offer to enter into a contract. Unless otherwise stated in the order, the Purchaser is entitled to accept this offer to enter into a contract within 14 days of its receipt by the Supplier.

2. A contract is concluded upon acceptance of the order by means of a written order confirmation (fax or email is sufficient) sent to the Purchaser.  

3. With the exception of managing directors or authorised signatories, the Supplier’s employees are not authorised to make verbal agreements that deviate from the written agreement. However, for deviating agreements to be valid, transmission by fax or email is sufficient.   

III. Price and payment

1. Unless otherwise agreed, prices are FCA >place of dispatch< (Incoterms 2020) plus packaging and statutory value added tax.  

2. Unless otherwise agreed, the purchase price is due immediately upon delivery and receipt of the invoice, without any deductions. The date of payment shall be determined by the date of receipt by the Supplier. The Supplier is entitled to make outstanding deliveries or provide outstanding services only against advance payment or security if, after conclusion of the contract, circumstances become known to him which are likely to significantly reduce the creditworthiness of the Purchaser and which jeopardise the payment of the Supplier’s outstanding claims by the Purchaser arising from the contractual relationship.  

3. HAKO reserves the right to adjust the prices for products not yet delivered to the extent that the manufacturing costs for the products not yet delivered have increased overall since the conclusion of the contract due to an increase in material costs or an increase in customs duties, taxes or other charges. If the adjustment exceeds 10 %, the Purchaser is entitled to withdraw from the purchase contract. The withdrawal must be declared to HAKO within 7 days of receipt of the price adjustment request.  

4. The Purchaser shall only be entitled to set-off or retention rights to the extent that his claim has been legally established or is undisputed.

5. Payment shall only be deemed to have been made when the Supplier has access to the amount. In the case of bank transfers, payment shall only be deemed to have been made on the date on which the amount is credited to the Supplier’s business account without reservation.  

6. The Supplier reserves the right to offset incoming payments against the oldest claim plus any costs and interest incurred thereon.

IV. Delivery, transfer of risk, default, impossibility

1. Unless otherwise expressly agreed, delivery shall be FCA >place of dispatch< (Incoterms 2020). This shall also apply if the Supplier has also undertaken to set up or install the goods at the place of destination and acceptance has been agreed.  

2. Deadlines and dates for deliveries and services promised by the Supplier are non-binding unless they have been expressly agreed as binding.

3. The Supplier may, without prejudice to his rights arising from default on the part of the Purchaser, demand from the Purchaser an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period during which the Purchaser fails to fulfil his contractual obligations towards the Supplier.

4. The Supplier shall not be liable for the (temporary) impossibility of delivery or for delays in delivery for which he is not responsible. The occurrence of a delay in delivery on the part of the Supplier shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the Purchaser is required.  

5. If the Supplier has concluded a congruent covering transaction with another supplier, the delivery shall be subject to the Supplier’s correct and timely delivery by his own suppliers, provided that the Supplier is not responsible for the non-delivery or delay in delivery by his respective supplier. The Supplier shall inform the Purchaser immediately of any non-delivery or delay in delivery by another supplier. If delivery by the Supplier’s own suppliers can no longer be expected (e.g., due to breach of contract, insolvency or destruction of that particular supplier’s production facilities) or if the goods are still not available after expiry of the new delivery period, the Supplier shall be entitled to withdraw from the contract and shall immediately reimburse the Purchaser for any payments already made.  

6. A delivery deadline shall be deemed to have been met if the Supplier has notified the Purchaser that the goods are ready for dispatch by the end of the delivery period.  

7. If acceptance is required, the goods shall be deemed to have been accepted if

• the delivery and, if the Supplier is also responsible for installation, the installation has been completed,
• the Supplier has notified the Purchaser of this with reference to the deemed acceptance clause in this Section IV.7 and has requested the Purchaser to accept the goods,
• twelve working days have elapsed since delivery or installation or the Purchaser has started using the goods (e.g., has put the delivered equipment into operation) and, in this case, six working days have elapsed since delivery or installation, and
• the Purchaser has failed to accept the goods within this period for a reason other than a defect notified to the Supplier which renders the use of the goods impossible or significantly impairs it.

8. If delivery is delayed due to circumstances for which the Purchaser is responsible, the risk shall pass to the Purchaser on the day on which the goods are ready for dispatch and the Supplier has notified the Purchaser thereof. Storage costs after transfer of risk shall be borne by the Purchaser. If storage is provided by the Supplier, the storage costs shall amount to 0.25 % of the invoice amount of the goods to be stored per completed week. The Supplier reserves the right to assert and prove further or lower storage costs.

9. If delivery is delayed for reasons beyond the control of both the Purchaser and the Supplier by more than six months, both the Purchaser and the Supplier shall be entitled to withdraw from the relevant purchase contract.  

10. Partial deliveries are permissible if

• the partial delivery is usable for the Purchaser within the scope of the contractual purpose,
• delivery of the remaining goods ordered is ensured, and
• the Purchaser does not incur any significant additional expenses or costs as a result (unless the Supplier agrees to bear these costs).

V.         Export control

1. The Supplier’s performance of the contract is subject to the proviso that there are no obstacles to performance due to national and international export and import regulations or other legal provisions.

2. The Purchaser is obliged to comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations, and to provide all information and documents required for the export or import of the goods to another country. The Supplier is not obliged to deliver until these documents have been submitted.  

3. The Purchaser undertakes to indemnify the Supplier against all claims by third parties resulting from a culpable breach of the obligations of this Section V. by the Purchaser.

VI.        Cooperation obligations of the Purchaser

The Purchaser is obliged to provide all information and cooperation necessary for the execution of the contract in a timely manner and free of charge, in particular to grant all approvals and releases necessary for the performance of the services in good time. Delays or costs resulting from failure to cooperate shall be borne by the Purchaser.

VII. Retention of title

1. The Supplier retains title to the goods until all current and future claims of the Supplier against the Purchaser arising from the purchase contract and an ongoing business relationship (secured claims) have been settled in full.  

2. The Purchaser may not sell, pledge or assign as security the goods subject to retention of title (reserved goods) before the secured claims have been paid in full. 

3. In the event seizures, confiscation or other dispositions by third parties, the Purchaser shall inform the third party of the Supplier’s ownership and notify the Supplier immediately so that the Supplier can enforce his ownership rights. If the third party is unable to reimburse the Supplier for the judicial or extrajudicial costs incurred in this connection, the Purchaser shall be liable to the Supplier for these costs.

4. The Supplier is entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods subject to retention of title if the Purchaser acts in breach of contract, in particular in the event of default in payment. This also applies if an application is made to open insolvency proceedings against the Purchaser’s assets.

5. At the request of the Purchaser, the Supplier shall release the goods subject to retention of title insofar as their value exceeds the amount of the secured claims by more than 50 %.

6. The Supplier is entitled to ensure the goods subject to retention of title against theft, breakage, fire, water and other damage at the expense of the Purchaser, unless the Purchaser can prove that he has taken out insurance himself, he shall assign to the Supplier any claims against the insurance company for destruction, damage, loss or theft of the goods subject to retention of title. The Supplier accepts the assignment.

7. The Supplier reserves all property rights and copyrights to samples, cost estimates, drawings and other information of a physical and non-physical nature, including in electronic form; they may not be made accessible to third parties.  

VIII.      Confidential information

1. All information, decisions, results, data and documents disclosed in the course of the execution of a contract offer and upon conclusion of the contract between the parties (hereinafter referred to as ‘confidential information’) shall be subject to confidentiality, regardless of the form in which they are contained, how they are communicated or received (e.g., by unencrypted email) or whether they are expressly marked as confidential (e.g., ‘confidential’ or ‘secret’).

2. The parties undertake to disclose confidential information to third parties only with the consent of the other party.  

3. These confidentiality obligations shall remain in force for a further period of three (3) years after termination of the services, regardless of the nature of the termination.

IX. Warranty

1. The Purchaser’s rights in respect of defects presuppose that he has fulfilled his obligations to inspect and give notice of defects in accordance with Section 377 HGB (German Commercial Code). If a defect becomes apparent during the inspection or later, the Supplier must be notified of this defect immediately in writing (fax or email is sufficient).    

2. If the goods are defective, the Supplier may, at his own discretion, remedy the defect (repair) or deliver new goods free of defects (replacement delivery). The Supplier’s right to refuse subsequent performance under the statutory conditions remains unaffected. If the goods are defective, the Supplier shall bear the costs necessary for subsequent performance. Otherwise, the Supplier may demand reimbursement from the Purchaser for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the defect was not apparent to the Purchaser.

3. The Purchaser shall give the Supplier the time and opportunity necessary for the subsequent performance owed, in particular to hand over the rejected goods for inspection. In the event of subsequent delivery, the Purchaser shall return the defective goods to the Supplier in accordance with the statutory provisions. Subsequent performance shall not include the removal of the defective item or its reinstallation if the Supplier was not originally obliged to install it.

4. Agreements regarding the quality and availability of the delivery item shall only be deemed a guarantee if they are expressly designated as such.  

5. The warranty period is 12 months.

X. Liability

1. Claims by the Purchaser for damages and reimbursement of futile expenses against the Supplier, regardless of the legal basis, in particular due to breach of contract and/or tort (claims for damages), are excluded.  

2. The above exclusion of liability shall not apply in the event of intent or gross negligence on the part of the Supplier and/or in the event of a breach of essential contractual obligations. Essential contractual obligations are obligations whose fulfilment is essential for the proper execution of the contract and on whose fulfilment the Purchaser regularly relies and may rely.  

3. In the event of unintentional and non-grossly negligent breach of essential contractual obligations, the Supplier’s liability shall be limited to compensation for the foreseeable damage typical for this type of contract.  

4. The above exclusions and limitations of liability shall apply to the same extent in favour of the Supplier’s organs, legal representatives, employees and other vicarious agents.

5. The above limitations of liability shall not apply insofar as the Supplier is mandatorily liable, e.g., under the Product Liability Act, for damage resulting from injury to life, limb or health, for claims arising from fraudulent conduct on the part of the Supplier, or for the assumption of a guarantee for the quality of the delivery item.

XI.        Force majeure 

1. The Supplier shall not be liable for failure to fulfil obligations due to force majeure. The Supplier shall inform the Purchaser immediately of the occurrence and termination of the force majeure.  

2. Force majeure within the meaning of this contract shall be any event that occurs independently of the Supplier’s will and prevents the Supplier from fulfilling one or more contractual obligations (e.g., war, terrorism, riots, natural disasters, official orders due to a pandemic).  

3. In cases of force majeure, the Supplier shall be released from his obligation to deliver for the duration and to the extent of the impact.

XII.       Limitation period

1. All claims of the Purchaser against the Supplier, regardless of their legal basis, shall become statute-barred 12 months after delivery of the goods to the Purchaser. If acceptance is required, the limitation period shall commence upon acceptance. Special statutory provisions for claims in rem by third parties (Section 438 (1) No. 1 of the German Civil Code (BGB), in the event of fraudulent intent on the part of the Supplier (Section 438 (3) BGB) and for claims in supplier recourse in the event of final delivery to a customer (Section 479 BGB) shall remain unaffected.

2. The above limitation period pursuant to Section IX.1. Sentence 1 shall not apply to claims for damages based on intent or gross negligence or on the breach of essential contractual obligations, nor to claims for damages in the cases specified in Section VIII. 4 in which the Supplier is mandatorily liable. In these cases, the statutory limitation periods shall apply exclusively.

XIII. Software use

1. If software is included in the scope of delivery, the Purchaser is granted a non-exclusive, temporally and spatially unlimited, non-transferable and non-sublicensable right to use the delivered software, including its documentation. It is provided for use on the delivery item for which it is intended. Use of the software on more than one system is prohibited.

2. The Purchaser may only reproduce, revise, translate or convert the object code into source code to the extent permitted by law (Sections 69a et seq. of the German Copyright Act (UrhG). The Purchaser is not entitled to transfer the copy of the software provided to him or any backup copy to a third party in accordance with Sections 69a et seq. of the German Copyright Act (UrhG). In particular, the Purchaser is not permitted to sell, lend, rent or otherwise licence the software or to reproduce or make the software publicly available. The Purchaser undertakes not to remove manufacturer’s information – in particular copyright notices – or to modify it without the prior express consent of the Supplier.

3. All other rights to the software and documentation, including copies, remain with the Supplier or (in the case of integrated standard software from third parties) with the respective software supplier. The granting of sub-licences is not permitted.

4. The Purchaser is obliged to take appropriate measures to protect the software from access by unauthorised third parties, in particular to store all copies of the software in a secure location.

5. The Purchaser is not permitted to modify, manipulate, suppress or circumvent the software. The same applies to the separation of the software from the delivery item or in the event that the Purchaser removes or deactivates the software from the delivery items. Any damage resulting from such handling of the software shall be borne by the Purchaser. In this case, the Supplier shall not be liable for the security/ safe usage of the delivery item.

6. If the Purchaser violates the provisions of this Section X and thereby infringes the rights of third parties, the Purchaser shall indemnify the Supplier against any claims asserted by the third party in this regard.

7. The Purchaser shall be obliged to notify the Supplier of any defects in the software immediately upon discovery in writing (fax or email is sufficient). In the case of material defects, this shall be done with a description of the time at which the defects occurred and the detailed circumstances.

XIV. Use of software data

1. Data generated by the Purchaser during use of the delivery item using the above software, collected by it or transmitted to it, shall be automatically synchronised with the Supplier’s system via radio; this data falls into the following categories (‘log data’):

• Duration of use of the product
• Frequency of use
• Error messages
• Information about maintenance
• Energy consumption

2. Data that allows conclusions to be drawn about identifiable persons will not be collected or transmitted (personal data). This includes, in particular, information about the respective user of the product or specific usage data that, due to its nature, allows conclusions to be drawn about individual persons. The Supplier therefore ensures that any synchronisation with data relating to the delivery item takes place exclusively in anonymised form.

3. The Supplier evaluates the transmitted log data in order to obtain data for development, service, preventive service or sales, among other things. If new findings are obtained from this analysis (‘analysis data’), the Supplier shall be entitled to the exclusive rights to this analysis data.  

4. The Purchaser has the option of concluding a separate contract with the Supplier for the provision of the analysis data by the Supplier. In this case, the Purchaser shall receive the non-exclusive, non-transferable, non-sublicensable right to use the analysis data for the duration of the analysis data contract.

5. The Purchaser is not permitted to influence the software in such a way that it obtains knowledge of the analysis data other than in the manner described in Clause 4.

XV. Applicable law, place of jurisdiction, place of performance

1. These Terms and Conditions and all legal relationships between the Supplier and the Purchaser shall be governed exclusively by the laws of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.  

2. The place of performance for all obligations of the Supplier arising from the contract is Bad Oldesloe. If the Supplier is also responsible for setting up or installing the goods, the place of performance shall be the location where the installation is to take place.

3. The place of jurisdiction is the court responsible for the Supplier’s registered office. However, the Supplier is entitled to bring legal action at the Purchaser’s place of business.

Last updated: 05/25