General Terms of Sale
Our quotations are subject to change until orders placed with us are confirmed in writing.
All deliveries are made based exclusively on our terms of sale. Other terms or conditions whatsoever specified in the contract award shall only apply to the extent that they have been confirmed by us in writing. Even without a specific disclaimer we shall not, as a matter of principle, accept any contractual penalties,. Requirements, agreements, amendments to contracts of which we are informed by phone or telegraphically shall not binding for us until confirmation in writing has been received. This shall also apply to any undertakings given by our representatives by phone or telegraphically.
The prices quoted apply ex works Velbert excluding packaging which shall be charged at cost price and shall not be taken back. The goods shall be invoiced at the prices applicable on the date of order receipt. In the event of changes to the prime costs up to the date of delivery, we reserve the right to adjust our prices in line with these prime costs changes, even after order confirmation. Tools will be charged separately unless these are already available at the purchaser's premises as a result of previous deliveries or unless they were provided by the purchaser.
Subsequent requests for changes to the order can only be taken into account if work on the order has not yet commenced and such changes shall release us from our confirmed delivery date. Costs for any changes are for the account of the purchaser.
2. Terms of delivery:
The quoted delivery date has been set conscientiously and is non binding. It shall be complied with as far as possible. Deliveries are made from ongoing production. Disruptions caused by force majeure, strike, operational disorders, measures imposed by the authorities, delayed deliveries of feedstock and of other resources and other events beyond our control shall entitle us to withdraw completely or partially from supply contracts.
HAPS shall only assume liability for any damages incurred as a result of non compliance with set delivery dates to the extent that the non compliance and the incurred damage can be proved to be attributable to deliberate act or gross negligence on the part of HAPS. In addition HAPS shall be liable in accordance with the statutory conditions to the extent that the underlying purchase contract is a firm deal as per Â¤ 286 par. 2 No.4 BGB (German Civil Code) or as per Â¤ 376 HGB (German Commercial Code). Otherwise liability shall be excluded.
Should the purchaser wish to withdraw from the contract due to delayed delivery for which HAPS is liable according to the preceding sentence, then he shall first set a period of grace of not less than six weeks for delivery under penalty of withdrawal from the contract in the event of non delivery.
Deliveries shall be made ex works and consequently for the account of and at the risk of the purchaser unless otherwise specifically agreed between the parties. In the event that express freight is specified, the purchaser shall bear the additional costs incurred. Dispatch route, method of transport and protective packaging shall be left to our discretion to the exclusion of any liability, to the extent that non liability is possible under the statutory regulations. Upon receiving notification from us that the goods are ready for dispatch on the scheduled delivery date or thereafter, the purchaser shall release the goods for dispatch at the latest within 8 days after receipt of notification of readiness for dispatch. Otherwise we shall be entitled to store the goods at the expense of and at the risk of the purchaser at our own discretion and to invoice them as delivered ex works.
3. Claims for defects:
Claims for obvious defects must be made immediately within 8 days, claims for latent defects within 12 months of receipt of the goods and such claims can only be considered if notification is given in writing. Our prior consent is required for the return shipment of defective goods. In the event that the claim is justified, we shall have the option of eliminating the defect or supplying a replacement for the defective parts. In such case, the purchaser shall not be entitled to damages.
4. Custom-made products:
We shall charge the purchaser with the costs incurred for tools which we have custom-made by a third party under contract in order to carry out a purchaser's order. We shall store the tools carefully for subsequent orders and be responsible for their maintenance.
We shall bear the costs incurred to replace tools which have become unfit for use to the extent that it can be proven that our company is to blame for their state.
The purchaser shall bear the costs incurred for modifications to the tools carried out at his instigation; such costs shall not be repaid. The tools shall remain our property under all circumstances. We shall not be obliged to hand them over. Our custody obligation expires if no subsequent orders are received from the purchaser within two years of the last delivery.
The tools shall be used exclusively for orders placed by the purchaser. Should the purchaser not settle payment for the goods supplied to him or not settle payment on time, we shall be entitled to use the tools at our discretion.
5. Intellectual Property:
Models, drasash or any operating instructions are our intellectual property. Also tools, drasash or models which we order from other companies are a priori our intellectual property and may not be passed on to a third party without our explicit written consent.
In the case of a specific custom-made product based on a purchaser's proposal, it is up to the purchaser to observe third party industrial property rights and copyrights, marking requirements, etc. This shall also apply if the custom-made product is based on HAPS' designs which were prepared in line with the purchaser's instructions.
The purchaser alone shall be liable for infringement of such rights and regulations and shall exempt us from all third party claims. In this case we shall be entitled to discontinue production and delivery and to claim reimbursement of the costs incurred to the exclusion of all claims for damages from the purchaser.
6. Terms of payment:
Unless otherwise and explicitly agreed, payment shall be made in Velbert within 8 days from the invoice date minus 3% cash discount, within 14 days minus 2% cash discount or in 30 days net in cash. Payment by bill of exchange shall preclude cash discount. Bills of exchange or cheques shall only be credited on account of performance minus the discount and encashment charges subject to the correct receipt date and shall under no circumstances count as cash payment. Should the date of payment be exceeded, we shall be entitled to charge interest at a rate 3% above the respective bank rate set by the Federal State Bank. In this case, all further accounts receivable relating to other pending payables shall become due irrespective of their date of payment without any specific notification. We shall be entitled to request advance payment of the sums invoiced prior to dispatch of the goods from companies with which we are not acquainted. Withholding of payments and offsetting shall be excluded.
7. Reservation of ownership:
The delivered goods shall remain our property until all accounts receivable from the purchaser arising from the business relationship, including any accounts receivable accruing in future, have been paid in full. In the event that the purchaser processes the delivered goods prior to payment, then an acquisition of ownership as defined in Â¤ 950 BGB (German Civil Code) shall be excluded. Any processing shall be carried out by the purchaser for us. The processed goods shall serve as surety for us solely to the value of the conditional commodity.
Should the purchaser process the conditional commodity together with any products which do not belong to us, then we shall be entitled to joint ownership of the new commodity, namely in proportion to the value of our conditional commodity compared to the value of the other processed products. Otherwise the same shall apply as for our other conditional commodity.
Accounts receivable to the purchaser in respect of the selling-on of the conditional commodity shall be ceded to us as of now, irrespective of whether the conditional commodity is sold processed or unprocessed. The ceded accounts receivable shall serve as our surety only to the value of the respective conditional commodity sold. In the event that the conditional commodity is sold by the purchaser together with other goods not belonging to us, whether without being processed or after processing, then the purchase price receivable shall only be ceded to the value of the conditional commodity which together with the other goods is subject of the purchase contract or is part of the object of purchase. In the event that our conditional property is impaired by a third party as a result of testing or by other means, then the purchaser shall be obliged to notify us thereof immediately and to submit us all documents required to enforce our claims for damages.
8. Cancellation of contract:
We shall be entitled to cancel the contract with immediate effect if bankruptcy or insolvency proceedings are opened in respect of the assets of the purchaser, in the event that the purchaser stops payments or experiences a temporary shortage of liquid funds, if subsequent to the signing of the contract the purchaser's business enterprise is transferred to another owner or if the purchaser defaults on the payment for previous deliveries or if a bill of exchange or a cheque from the purchaser is protested.
9. Place of performance and legal venue:
Place of performance for all obligations of both parties, also for cheques and bills of exchange, is Velbert. The legal venue is also Velbert. In the event that a proviso of these conditions is entirely or partially invalid, then the validity of the remaining provisos shall remain unaffected thereby. Otherwise the conditions of the German Association for the Metalworking Industry shall apply.
HAPS GmbH + Co.KG