General terms and conditions

Listed below you will find our general terms and conditions

General buying conditions
(Date: 04/2015)

1. Contents of contract / applicability

These contents of contract apply to all business operations with suppliers or other contractors (subsequently collectively called “supplier“), even if they are not mentioned in later contracts.
A wide range of pre-formulated contract terms (Allgemeine Geschäftsbedingungen iSv. § 305 BGB) the supplier might have in use will not be subject matter of contracts even if HST Maschinenbau GmbH (subsequently called “HST GmbH”) does not opt out from them. Just from the acceptance of services or goods with distinctly contradiction cannot be deduced that HST GmbH accepts the contract terms of the supplier. This rather requires the explicit assent of HST GmbH.


2. Order, order confirmation, revocation

2.1.
Any order is only effectively placed when in written form and signed by HST GmbH. Verbal telephonically placed orders are only mandatory if subsequently confirmed by HST GmbH through consignment of a written form order.
Drawings (tolerances included) that have been predefined by HST GmbH in a given case are mandatory for any supplier. The supplier acknowledges being well-informed about the kind of execution and scope of performance regarding the order by taking the order in question. Obvious errors, misspellings and miscalculations in any of the documents, drawings or plans provided by HST GmbH nullify their binding nature. The supplier is bound to report such errors to HST GmbH immediately to have the order corrected and renewed. This pertains particularly to missing documents or drawings.

2.2.
In case the supplier doesn’t accept an order within duration of two weeks since placement of the order and confirms this within the same time limit by signing on the copy of said order HST GmbH may revoke the order unconditionally.

2.3.
Deviances in quality and / or quantity from text and / or content of an order as well as any other later modifications of the contract are only valid when expressly confirmed in written form. Those are valid from the moment of written confirmation on only.

2.4.
Drawings, tools, samples, models, trademarks and layouts or the like as well as finished and half-finished products which have been ceded by HST GmbH or have been produced in at the behest of them stay in their ownership and may only be delivered to third parties after being expressly permitted in written form. With reservations to other agreements these items are to be returned to HST GmbH in case of finishing of the order promptly and without further request. Products manufactured with help of such tools, trademarks and layouts may only be delivered to third parties after obtaining an expressly confirmation in written form.

3. Delivery time

3.1.
The supplier is obliged to meet designated delivery date. Stated delivery dates refer to the date the goods are handed over at the place of destination determined by HST GmbH, usually the company domicile in Dassow, Germany.

3.2.
In the case of a delay in delivery by the supplier HST GmbH is entitled to claim a lump damage caused by delay in the amount of 0.5 % of the net order value per week or part thereof, no more than 5% of the net order value at the most. Further legal claims (withdrawal and / or compensation) remain reserved. It is reserved for the supplier to prove to HST GmbH that because of the delay no or no substantial damage has been caused. HST GmbH has the right to prove that substantial damage has been caused.

3.3.
Furthermore HST GmbH may demand of the supplier an indemnity against all compensation claims, contractual penalties and other claims which has been caused by delay in delivery and could be issued against HST GmbH provided the and as far as the supplier is responsible for said delay.

3.4.
If delays are to be expected, the supplier has to inform HST GmbH immediately about this and will wait for the ruling regarding the sustaining of the contract as determined by HST GmbH.

3.5.
HST GmbH is not bound to accept a delivery ahead of schedule.

4. Delivery / transport / packaging / packing costs

4.1.
The supplier is committed to pack and load goods in a way guaranteeing the good’s intactness during loading, transport and unloading. The supplier is liable for all damage to goods on grounds of inadequate packaging.

4.2.
Delivery takes place at the supplier’s expense to a destination determined by HST GmbH. If, by way of exemption, HST GmbH has to pay freight charges the supplier has to use the transport mode required by HST GmbH, in any other case the most favorable transport mode for HST GmbH which simultaneously ensures the integrity of the transported goods.

4.3.
Packaging is included in price. I fit has been agreed upon otherwise, by way of exemption, packaging has to be charged at cost price. The supplier has to use packaging as determined by HST GmbH and has to make sure goods are protected from damage by packaging. In case of remands at the minimum two quarters of invoiced amount has to be accredited.

5. Documentation / documents

5.1.
Invoices, delivery notes and packing slips have to be enclosed to any shipment in duplicate. These documents have to include: -order number -quantity and quantity unit -gross-, net-and chargeable weight, if applicable -item description including material number HST GmbH -remaining quantity in case of partial delivery

5.2.
In case of freight shipments a dispatch note has to be conveyed to HST GmbH at the day of dispatch separately.

6. Pricing

6.1.
Prices agreed upon are binding, except both parties have agreed upon explicitly differently or the supplier deflates prices generally. The onus for such a different agreement lies with the supplier.

6.2.
The supplier will not give HST GmbH less favorable prices and / or conditions than other customers, if and in so far those present the same or equivalent conditions in a concrete case.

7. Invoices / payments

7.1.
Every order has to be invoiced separately.

7.2.
Payment deadlines begin with the receipt of all goods owed under the contract at the destination as determined by HST GmbH or with said goods’ approval if this has been contractually agreed upon or provided for by statute. In case the full invoice is received only after the receipt of all goods owed under the contract or after the goods’ approval at HST GmbH, payment deadlines begin with the day of invoice receipt.

7.3.
HST GmbH has to meet the invoice inside of 30 days starting with the beginning of the payment deadline. If payment takes place as early as 14 days after the beginning of the payment deadline HST GmbH is entitled to an abatement of 3 % cash discount. Payment in the aforementioned sense is effected by means of execution an electronic bank transfer order or by means of dispatch of an account-only check.

7.4.
Potential debt claims of the supplier towards HST GmbH may only be transferred to third parties with assent of HST GmbH. Payments will be made to the supplier only.

7.5.
Any settling of an invoice to the supplier without the raising of claims by HST GmbH is not to be assessed as an attested acceptance of debt concerning the balanced claim but as an acknowledgement of contractual deliveries or services.

8. Place of fulfillment, delivery , transfer of risk, force majeure

8.1.
The place of fulfillment is the place of destination as determined by HST GmbH.

8.2.
If no acceptance test is required by law and if this is not contractually agreed upon the danger of accidental destruction and of accidental deterioration transfers from the supplier to HST GmbH with the delivery of the goods at the place of destination, in every other case by an acceptance test according to legal requirements or contractually agreed upon.

8.3.
Industrial actions or other cases of force majeure such as war, civil war, export restrictions because of changes to political circumstances as well as strikes, lock-outs, business disruptions, operational restrictions and similar events which make a contractual performance unreasonable or impossible entitle HST GmbH to demand an appropriate contract adaption the release from obligations to take deliveries from the supplier.

9. Guarantee / warranty / reclamation

9.1.
The supplier has to provide the goods to HST GmbH from start of transfer of risk onwards to the prescription of eventual claims for defects free of all (legal) defects.

9.2.
In case the goods do have defects, against above obligations, the rights conferred to HST GmbH are determined by these terms and add to all legal entitlements.

9.3.
HST GmbH may themselves take actions as to the removal of defects, let third parties take actions or procure substitutes all at the expenses of the supplier if the supplier does not comply to a written request 
concerning the correction of defects within a reasonable time limit set by HST GmbH or an insolvency application to the assets of the supplier has been filed. This also applies without prevenient request in urgent cases of endangerment of operational safety or the prevention of greater damage, and said urgency renders it impossible to acquaint the supplier of the defect and set him a time limit to remedy the fault.

9.4.
All costs concerning supplementary performances, especially costs concerning diagnostics, retrofitting, assembly and disassembly, transport, shipment, work and material as well as customs duty, including costs making it necessary to transfer the goods to a different place than the previously designated place of delivery, bears the supplier.

9.5.
The supplier avows for the goods to be free of third-party rights, especially third-party trademark rights, which may hinder or rule out the use of said goods by HST GmbH. The supplier keeps HST GmbH and their customers indemnified from all claims resulting from the use of such rights.
The supplier accepts an obligation that any goods delivered – layout and design included – conform to specifications given by HST GmbH. Any order will be executed expertly and appropriately according to state of the art at that time.

9.7.
For a product manufactured by the supplier or for an order completed by the supplier respectively guarantee ends upon expiry of 12 months after delivery and approval.

9.8.
If not stated otherwise guarantee complies with legal requirements.

10. Producer liability

10.1.
The supplier releases HST GmbH of their producer liability, if and in so far the reason for such liability of HST GmbH is to attributed to the supplier’s area of risk and responsibility and the supplier is to avow for the reason causing this liability. This also applies if HST GmbH is held responsible of producer liability according to foreign law.

10.2.
In this sense the supplier is obliged to refund eventual return consignments in accord with §§ 683, 670 BGB, which may result from or are related to a product recall effected by HST GmbH.

10.3.
The supplier declares to avow for third-party claims resulting from defects regardless of culpability, if said defects of his goods, works or services have already been present at the time of transfer of risk.

11. Custody / property

Material provided stays in property of HST GmbH. As such, it is to be stored separately and may only be used for orders of HST GmbH. The supplier is liable for impairment or loss even if he is not to blame. All products produced with provided material are property of HST GmbH in their respective states of production. The supplier stores these products for HST GmbH; the buying price includes costs for storing products and material of HST GmbH.

13. Business secrets

The supplier is obliged to rate all orders of HST GmbH and all related commercial and technical details as business secrets.

14. Assignment, offsetting, retention

14.1.
Assignments of any kind of claims of the supplier against HST GmbH are barred.

14.2.
The supplier is not entitled to refuse actions of removal of defects owed to him until the purchase price or the salary has been paid in full.

14.3.
Rights for set-off and of retention are due to HST GmbH within the limits of statutory regulations.

15. Severability clause / venue / applicable law

15.1.
In case one clause is or becomes invalid, all other clauses remain unaffected in their respective validities.

15.2.
For all disputes resulting from or in connection of contractual relationships where the supplier is a domestic dealer, a domestic corporate body under public law or a domestic separate property regulated by public law, the court responsible for the headquarters of HST GmbH is the exclusive place of jurisdiction. For any claims of suppliers against HST GmbH where there is no general place of jurisdiction in the Federal Republic of Germany, the exclusive place of jurisdiction is also that court. For claims of HST GmbH against suppliers who do not have a general place of jurisdiction in the Federal Republic of Germany, the additional place of jurisdiction next to statutory places of jurisdiction is also the court responsible for the headquarters of HST GmbH.

15.3.
Concerning the integration of these clauses of HST GmbH and concerning all legal relationships that result from any contract and/or secondary or follow-up businesses between parties and their legal successors, the law of the Federal Republic of Germany is valid only, including all laws concerning the international purchase relevant for the purchase of moveable properties. This choice of law and jurisdiction as well as the jurisdiction clause described afore are amendable to the law of the Federal Republic of Germany, too.
General delivery and payment terms

1 Delivery scope

1.1.
Delivery scope is determined by order confirmation from HST GmbH in written form.

1.2.
Design modifications or change in shape which results from improvements of technology or
demands of the legislature remain reserved during delivery time, in so far as those do not
change the delivery item significantly and said changes are not unreasonable towards the
customer.

2. Term of delivery

2.1.
The term of delivery begins with the dispatch of the order confirmation, but not before the customer’s supplying of possibly procurable documents, permits, clearances and also not before receipt of an eventually deposit agreed upon.

2.2.
The delivery deadline shall have been complied with if the item to be delivered has left the works by the time that the deadline expires or when the Customer has been informed that the goods are ready to be shipped, in as far as the Customer is obliged to collect or ship the goods.

2.3.
The delivery deadline shall be suitably extended in the event of measures in the context of lawful labor disputes, in particular strikes and lockouts within our own factory, or in third-party factories regardless of the legality of the industrial dispute measures, in so far as we are unaffected by an blame for acceptance, precautions or preventive measures, and additionally, by the occurrence of unforeseen events such as mobilization, war, blockades, bans on exports and imports, in particular, legal or government instructions, shortages of raw materials or fuel, fire or closure to traffic, acts of God, in so far as such obstacles have a demonstrable influence on the completion or delivery of the objects of the delivery and occur to us, to a supplier or to a subcontractor and remain beyond our control.

2.4.
Partial deliveries shall be permissible, provided it is reasonable for the customer, considering
the interests of both the supplier and the customer.

3. Cancellation costs
If the buyer unjustifiably withdraws from an order that has been issued, HST GmbH can claim 10% of the sales price for the costs arising from the processing of the order and for the loss of profit irrespective of the possibility of claiming higher actual damages. The customer is explicitly reserved the right to give evidence of a lower damage.

4. Place of fulfillment, delivery and acceptance / transfer of risk

4.1.
The fulfillment location for all services mentioned in the delivery contract is the retailer's location. The customer is obliged to accept the delivery item. In the absence of any other agreement (delivery by HST GmbH) handover takes place in Dassow. The customer is entitled to examine the delivery item at the fulfillment location within fourteen days after being notified of the item’s availability or after receiving other notifications as to the completion of the goods or services. The customer is obliged to accept the item within the same time period unless he is temporarily prevented from accepting it through no fault of his own.

4.2.
If the customer falls behind of acceptance of the delivery item more than fourteen days counted from the day of dispatching the completion notification intentionally or as a result of gross negligence, HST GmbH is after giving a grace period of further fourteen days entitled to cancel the order and/or demand damages for nonfulfillment. The setting of a grace period is not required if the customer seriously and definitively refuses to make the delivery or if it is obvious that he will not be able to fulfil his obligation to pay in accordance with the purchase order at that time.

4.3.
Delivery of items will be made from domestic factory.

4.4.
The risk shall pass to the customer when the delivery item is handed over to the party responsible for transport for loading (e.g. hauler, carrier, or the like).
If the customer declares that he will not accept the item for delivery, the risk of a chance loss or a chance deterioration of the delivery item passes over to the customer at the time of the refusal. The risk also passes to customer if the delivery or the handover is delayed due to reasons the customer is responsible for or also if the customer falls into default of acceptance for any other reasons.

5. Packaging and shipping

Packaging becomes the property of the customer and will be invoiced by HST GmbH. Postage and handling will be invoice separately. Dispatch mode will be chosen at best discretion.

6. Price amendments

Price changes are allowed when more than four months lie between the conclusion of a contract and the agreed delivery date. If thereafter until completion of the delivery the wages, material costs or market-related prices increase, HST GmbH is entitled to increase the price appropriately in correspondence with the cost increases. A customer's withdrawal is only legitimated if the increase in cost exceeds the increase of common costs of living between order and consignment more than marginally.
If the customer is a merchant or a legal person under public law, price changes shall be permitted according to the foregoing ruling if more than six weeks lies between conclusion of contract and the agreed date of delivery.

7. Warranty

7.1.
We assume liability for defective shipped goods as follows:
The customer is entitled to demand the elimination of defects (rectification) for a period of six months after acceptance of the supplied goods. Should we not be able to remedy a defect subject to our warranty obligation (failure of the subsequent improvement) or should any further attempts at improvement be unacceptable to the customer, the customer may, instead of the subsequent improvement, request a reduction in the payment or withdraw from the contract. Usual wear is absolutely excluded from the warranty.

7.2.
We are only liable for further claims and rights in the event of malicious intent or gross negligence.

8. Reservation of proprietary rights

8.1.
Until payment in full of all trade accounts receivable from the business connection as a whole, including collateral receivables, claims for damages and payments of checks and bills, HST GmbH retains title to the goods delivered. Exclusion of the property remains also
after individual receivables of the seller are included into the actual invoice and the balance is determined and acknowledged.

8.2.
Insofar as in the business relationship between the HST GmbH and the customer a centralized authority is invoked that takes over del credere liability, the customer transfers with shipment of the goods the ownership to the centralized authority subject to the condition
of payment of the purchase price by the central authority. The customer will not be released before payment is made by the central regulator.

8.3.
The customer is entitled to resell and/or combine the reserved goods with other goods in the normal course only by observing the following conditions:

  1. The customer may dispose of or process the reserved goods only in the regular course of business and provided that his financial situation does not persistently deteriorate.
  2. The customer hereby assigns the claim under the resale of the reserved goods (including any current account receivables) with all ancillary rights to HST GmbH.
  3. If the goods are combined, mixed or processed and if HST GmbH has acquired coownership hereto amounting to the value of his invoice, he is entitled to the claim for the purchase price pro rata to the value of his rights to the goods.
  4. In the event that the customer has sold the claim by way of non-recourse factoring, the customer shall assign to HST GmbH the claim vis-à-vis the factor which is replacing the initial claim and shall immediately transfer the sales proceeds of products of HST GmbH to HST GmbH. The purchaser is obligated to disclose the assignment to the factor if he is more than 10 days overdue with the settlement of an invoice or if his financial situation deteriorates considerably. HST GmbH will accept this assignment.

8.4.
As long as the customer properly fulfils his obligation to make payment he is entitled to collect the assigned claims. The collection authorization expires with delay of payment of the customer or with substantial degradation of financial circumstances of the customer. In
this case, the customer hereby entitles HST GmbH to inform the customer's clients about the assignment and to collect the claims themselves.

8.5.
If the value of the guarantee for HST GmbH exceeds all his receivables by more than10% HST GmbH is obliged upon request of the purchaser to release the guarantees according to his choice.

8.6.
If HST GmbH takes the delivered good back in exercise of the right of retention, this amounts to a withdrawal of contract only if HST GmbH expressly declares it.

8.7.
The customer will store the reserved goods for HST GmbH at no charge. He is obliged to insure them with normal levels of cover against the normal risks such as e.g. fire, theft and water. The buyer hereby assigns his claims for compensation due to him for damages of the
above-mention kind against insurance companies or others obliged to pay compensation to air in the amount of the invoiced value of the goods to HST GmbH. HST GmbH will accept this assignment.

8.8.
All claims and rights resulting from the retention of title and privileges resulting from these terms and conditions remain applicable until full release from contingent liabilities (e.g. in the case of extended payment by check or draft), which HST GmbH has accepted in the
customer's interest. Referring to sentence 1 the customer is generally entitled to engage in factoring in respect of receivables outstanding. However, the customer will notify HST GmbH before assuming corresponding contingent liabilities.

9. Liability based on delict

Claims for compensation from delict are excluded, unless damage has been caused intentionally or recklessly. This also applies in the case of action by vicarious agents and employees of HST GmbH.

10. Terms of payment

10.1.
The purchase prices and fees for ancillary services shall fall due for payment upon handover of the delivery object.

10.2.
The handing over of checks and bills of exchange are only valid upon after cashing. Die acceptance of bills of exchange always needs a prior agreement with HST GmbH in written form. In the case of acceptance of bills of exchange the bank discount and collection expenses will be calculated. Those are to be paid in cash immediately.

10.3.
Default interest will be calculated at 3% p.a. above the respective Deutsche Bundesbank basic interest rate. This interest is to be defined higher or lower if HST GmbH proves a charge to be of a higher interest rate or respectively the customer proves a charge to be of a lower interest rate.

10.4.
In the case of the purchaser being a is a businessman within the meaning of the German Commercial Code, a legal entity under public law or special assets constituted under public law provision the holding back of payments because of any counterclaim by the customer is
not admissible, just as setting off against such claims is not.

11. Place of performance and court of jurisdiction

11.1.
The place of performance is Dassow, Germany.

11.2.
For all disputes resulting from or in connection of contractual relationships where the supplier is a domestic dealer, a domestic corporate body under public law or a domestic separate property regulated by public law, the court responsible for the headquarters of HST GmbH is the exclusive place of jurisdiction. For any claims of suppliers against HST GmbH where there is no general place of jurisdiction in the Federal Republic of Germany, the exclusive place of jurisdiction is also that court. For claims of HST GmbH against suppliers who do not
have a general place of jurisdiction in the Federal Republic of Germany, the additional place of jurisdiction next to statutory places of jurisdiction is also the court responsible for the headquarters of HST GmbH.

11.3.
German law shall apply exclusively, with the exclusion of laws concerning the international purchase of movable property, even if the customer has his company headquarters in a foreign country.

12. Assignments of rights, severability clause

12.1.
Transfers of the customer’s rights and duties arising from the contract with HST GmbH shall require prior written consent.

12.2.
In case one clause is or becomes invalid, all other clauses remain unaffected in their respective validities.

Examples of governing warranties:

HST GmbH is liable for material defects under the following terms:

1. All parts or services where a defect becomes apparent shall, at the discretion of HST GmbH, be repaired, replaced or provided anew free of charge provided that the reason for the defect had already existed at the time when the risk passed.

2. Claims for supplementary performance shall become time-barred within 12 months of the statutory start of the period of limitations; the same shall apply in respect of withdrawal from the contract and demands for reductions. This period of limitation shall not apply insofar as the law pursuant to §§438 section 1 No. 2 (buildings and building material), 479 section 1 (claim under a right of recourse) and 634a section 1 No. 2 (building defects) BGB requires longer deadlines in cases of willful acts, deceitful concealing of any defect as well as non-compliance with any guarantee as to quality. The legal regulations concerning expiry suspension, interruption and restart of the limitation period remain unaffected.

3. Notifications of defect by the customer have to be given in written form without undue delay.

4. HST GmbH has always to be given the opportunity to post-perform within a reasonable time-limit.

5. If the supplementary performance fails the customer my – If the supplementary performance fails according to §10 of these terms and conditions – rescind the contract or reduce the remuneration.

6. Claims for defects do not exist in case of minor deviations from the agreed or assumed quality, minor impairment of usability, natural wear or damages incurred after passing of the risk because of incorrect or negligible handling, excessive use, unsuitable operating material, faulty construction work, unsuitable subsoil or because of special external influences which are not established in the contract as well as in case of non-reproducible software errors. In the event that incorrect changes or maintenance work is undertaken by the customer or third parties, no claims for defects shall exist for such and the results thereof.

7. Claims of the purchaser derived from the expenses required to satisfy subsequent obligations, in particular, transport, in-transit, work and material costs are ruled out in as far as the expenses increase because the subject of the consignment was taken subsequently to a place other than the branch of the purchaser, unless such transport corresponds to the designated contractual use.

8. The customer’s right of recourse against HST GmbH according to § 478 BGB (recourses of the businessman) is limited to cases where the customer has not concluded an agreement with his own customers exceeding the scope of the statutory provisions governing claims based on defects. No. 7 of this clause applies mutatis mutandis in regard to the volume of the recourse claims against HST GmbH according to § 478 section 2 BGB.

9. Compensatory damages claims on the part of the customer based on such rescission shall be excluded. This doesn't apply to malicious concealment of the defect, noncompliance to a guarantee of quality, injury to life, body, health or freedom and in case of intentional or grossly negligent breach of duty by HST GmbH. No change of burden of proof to the disadvantage of the customer is connected with the preceding provisions. Any other or additional claims of the customer exceeding the claims provided for in this article, based on defects, are excluded.

Other claims to compensations

1. Claims for damages by the customer, whatever their legal foundation, in particular those that are due to a breach of duties arising from the contractual obligation and from impermissible conduct, shall be excluded.

2. This does not apply where liability is legally mandated, such as under the Product Liability Act, in cases of malicious intent, gross negligence, in cases of injury to life, limb or health, where assurance of freedom from defect was given or failure to fulfil essential contractual duties. Claims for damages for the violation of important contractual obligations are, however, limited to contract-typical, predictable damages, provided there is no intent or gross negligence, or that liability is assumed on account of damage to life, physical injury or damage to health. The above rulings do not constitute any change in the burden of proof to the disadvantage of the customer.