Version dated 01.03.2021
I. Application of the International Conditions of Sale
1. These International Conditions of Sale apply to all customers of Hanning & Kahl GmbH & Co KG - hereinafter referred to as HANNING-KAHL - whose relevant place of business is not in Germany. In each case, the relevant place of business is the one which concludes the contract in its own name.
2. These International Conditions of Sale apply to the present and all subsequent contracts whose preponderant object is the supply of goods to customers. Additional obligations assumed by HANNING-KAHL do not affect the application of these International Conditions of Sale.
3. Conflicting or differing terms of business of the customer do not bind HANNING-KAHL, even if HANNING-KAHL does not explicitly object to them or even if HANNING-KAHL unconditionally renders performance or accepts the customer`s performance irrespective of the customer`s conflicting or differing terms of business. The provisions of this paragraph equally apply insofar as the terms of business of the customer, irrespective of the contents of these International Conditions of Sale, deviate from legal provisions. If we perform assembly, repair, work or services, our Terms Governing Erection/Assembly, Maintenance as well as Work and Services for International Operations also apply along with these International Conditions of Sale. Conflicting or deviating terms and conditions only apply if HANNING-KAHL has expressly agreed to them in writing.
4. These International Conditions of Sale for customers not Resident in Germany only apply to companies, legal entities under public law or special funds under public law within the meaning of Section 310 (1) BGB.
II. Formation of the Contract of Sale
1. The customer is under an obligation to give written notice to HANNING-KAHL prior to the formation of a contract if the goods ordered are to be fit not only for normal use of the respective good/goods or will be used in circumstances which are unusual or which present a particular risk to health, safety or the environment, or which require a more demanding use.
2. Orders of the customer are to be put in writing. If the customer’s order deviates from the proposal or the tender submitted by HANNING-KAHL, the customer will emphasize the differences as such.
3. All orders, in particular also those received by employees of HANNING-KAHL, will only take effect if followed by a provisional and/or final written order confirmation by HANNING-KAHL. Actual delivery of the goods ordered, any other conduct of HANNING-KAHL or silence on the part of HANNING-KAHL does not allow the customer to assume the formation of the contract of sale. HANNING-KAHL can dispatch such provisional and/or final written order confirmation up to and including 14 calendar days after the customer’s order has been received by HANNING-KAHL. Until this time, the customer’s order is irrevocable.
4. The provisional and/or final written order confirmation has been received in time, if it is received by the customer within 14 calendar days after its date of printing. The customer will inform HANNING-KAHL without delay, if the written order confirmation is received with some delay.
5. The provisional and/or final written order confirmation by HANNING-KAHL sets out all the terms of the contract and brings the contract into effect even if - except for the purchase price and the quantity to be delivered - the written acknowledgement deviates in any other way, especially with reference to the exclusive application of these International Conditions of Sale, from the declarations of the customer. Particular wishes of the customer, namely warranties or guarantees with reference to the goods or the performance of the contract therefore require express written confirmation in every case. Regardless of the nature and extent of the deviations, the contract will only fail to come into existence if the customer objects to the deviations in writing and the objection is received by HANNING-KAHL within a short time, at the latest seven calendar days after receipt of the written order confirmation by the customer.
6. HANNING-KAHL´s employees, commercial agents or other sales intermediaries are not authorized to dispense with the requirement of a provisional and/or final order confirmation or to make promises which differ from its content or guarantees.
Changes to the concluded contract also require written confirmation from HANNING-KAHL by persons authorized to sign as evidenced by the commercial register.
III. Obligations of HANNING-KAHL
1. Subject to an exemption according to section VII.-1. b) HANNING-KAHL must deliver the goods specified in the written order confirmation. HANNING-KAHL is not obliged to perform obligations not stated in the written acknowledgment of the order or in these International Conditions of Sale, in particular HANNING-KAHL is under no obligation to render planning-services, to deliver accessories not explicitly listed, to install additional safety devices, to carry out assemblies or to advise the customer.
2. Third parties not involved in the conclusion of the contract, in particular the customer´s clients, are not entitled to request delivery to be made to them or to bring any other contractual claim against HANNING-KAHL. The customer`s responsibility to take delivery continues to exist even if he assigns claims to third parties.
3. HANNING-KAHL undertakes to deliver goods of average kind and quality taking account of the tolerances customary in trade concerning the kind, quantity, quality and packaging. If the goods cannot be delivered in the condition offered at the time of the formation of the contract because technical improvements to goods of series production were made, HANNING-KAHL is entitled to deliver the goods with the technical improvements. Performance specifications given by HANNING-KAHL are subject to trained staff, the following of the instructions relating to the machines, good operational conditions, the use of original spare-parts only and appropriate maintenance. HANNING-KAHL is entitled to make part deliveries and to invoice them separately.
4. If further specification is required in relation to the goods to be delivered and no other contractual provisions exist, HANNING-KAHL will carry this out having regard to its own interests and to the identifiable and legitimate interests of the customer. A request to the customer to specify the goods, or to participate in the specification, is not required unless otherwise agreed in an individual contract. HANNING-KAHL does not undertake to inform the customer of the specification it has made or to give the customer the option of a differing specification unless HANNING-KAHL has received corresponding information from the customer in writing in advance and has confirmed it accordingly.
5. HANNING-KAHL undertakes to place the goods at disposal for collection by the customer at the agreed time of delivery at the place of delivery indicated in the written order confirmation or by way of precaution at its premises in Oerlinghausen/Germany. Previous separation or marking of the goods or notification to the customer of the goods being placed at disposal is not required. However, HANNING-KAHL is entitled to initiate the shipment of the goods at the customer´s risk and expense in order to obtain the document in proof of tax-free-delivery.
6. Agreed delivery time periods or delivery dates are subject to the customer’s procuring any required documents, releases, permits, approvals, licences or any other authorizations or consents in sufficient time, opening letters of credit and/or making down-payments as agreed and performing all other obligations incumbent upon him properly and in good time. Moreover, agreed delivery time-periods begin on the date of the written order confirmation by HANNING-KAHL. HANNING-KAHL is entitled to deliver earlier than at the agreed delivery time.
7. Without prejudice to its continuing legal rights, HANNING-KAHL is entitled to fulfil its obligations after the delivery time agreed upon, if it informs the customer that it will exceed the delivery time limit and of the time period for late performance. The customer can object to late performance within reasonable time, if the late performance is unreasonable. An objection is only effective, if it is received by HANNING-KAHL before commencing late performance. HANNING-KAHL will reimburse necessary additional expenditure, proven and incurred by the customer as a result of exceeding the delivery time to the extent that HANNING-KAHL is liable for this under the provisions laid down in section VII.
8. The risk of accidental loss or accidental deterioration of the goods is transferred to the customer at the latest upon handover. In the case of sale by delivery, the risk of accidental loss or accidental deterioration of the goods as well as the risk of delay already exist with the delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise assigned to carry out the shipment. The same applies if the customer is in default of acceptance.
9. Including where INCOTERMS in Group F or clauses such as „delivery free.......“ or alike are agreed, HANNING-KAHL is not obliged to obtain any licences, authorizations, certificates, formalities or other documents necessary for the export, transit or import. However, HANNING-KAHL renders at the customer´s request, risk and expense every assistance in obtaining the documents that the customer has required in writing.
10. Including where INCOTERMS in Group F are agreed, HANNING-KAHL is in particular not obliged to arrange for the shipment of the goods, to insure the goods, to procure certificates or documents not expressly agreed, to procure customs clearance, to bear levies, duties and charges accruing outside Oerlinghausen/Germany, to comply with weight and measuring systems, packaging, labelling or marking requirements applicable outside Oerlinghausen/Germany, to inform the customer of the delivery or to take back packaging material from the customer. Irrespective of any legal provision, the customer shall at its own cost take care of renewed utilization, material recycling or otherwise prescribed waste-disposal. The foregoing provision applies irrespective of whether the packaging material is invoiced separately or not to the customer.
11. Without prejudice to its continuing legal rights, HANNING-KAHL is entitled to suspend the performance of its obligations as long as after conclusion of the contract, in the opinion of HANNING-KAHL, there are grounds for concern or it becomes apparent in some other way (e.g. through the opening of insolvency proceedings) that the customer will wholly or partly fail to fulfil its obligations in accordance with the contract, so that the claim of HANNING-KAHL on the purchase price is jeopardized by insufficient performance of the buyer. In particular, the right to suspend arises if the customer insufficiently performs its obligations to enable payment to HANNING-KAHL or a third party or pays late or if the limit set by a credit insurer has been exceeded or will be exceeded with the forthcoming delivery. Instead of suspending performance HANNING-KAHL is entitled at its own discretion to make future deliveries, even if confirmed, conditional on payment in advance or on opening of a letter of credit confirmed by one of the big German commercial banks. HANNING-KAHL is not required to continue with performance of its obligations, if an assurance given by the customer to avoid the suspension does not provide adequate security or could be challenged pursuant to an applicable law.
12. Except as provided in section III.-7., HANNING-KAHL is only obliged to inform the customer of delay or non-performance as soon as these are certain.
IV. Price, Payment and Acceptance of the Goods
1. Irrespective of continuing obligations of the customer to guarantee or to enable payment, the customer undertakes to pay the agreed price in the currency specified in the written order confirmation transferring it without deduction and free of expenses and costs to the financial institution designated by HANNING-KAHL. Insofar as the delivery shall not take place within 4 months after the conclusion of the contract, HANNING-KAHL shall replace the agreed price by the price which is HANNING-KAHL`s usual price at the time of delivery. To the extent that a price has not been agreed, the contract has nevertheless been validly concluded; in such a case the price which is at the agreed time of delivery HANNING-KAHL’s usual price will apply. HANNING-KAHL´s employees, commercial agents or other sales intermediaries are not authorized to accept payments.
2. The payment to be made by the customer is in any event due for payment at the time specified in the written acknowledgement of the order. The due time for payment arises without any further pre-condition and, in particular, does not depend on whether the customer has already taken delivery of the goods and/or the documents and/or has had an opportunity to examine the goods.
3. The periods granted for payment will cease to apply and outstanding accounts will be due for immediate payment, if insolvency proceedings relating to the assets of the customer are applied for, if the customer without providing a justifiable reason does not meet fundamental obligations due towards HANNING-KAHL or towards third parties or if the customer has provided inaccurate information regarding his creditworthiness.
4. The customer warrants that all legal requirements for delivery free of German value added tax will be fulfilled. To the extent that HANNING-KAHL does not receive the document in proof of tax-free-export-delivery or HANNING-KAHL is called upon to pay value added tax as a result of the terms of delivery or of circumstances allocable to the customer, the customer will indemnify HANNING-KAHL in all and every respect without prejudice to any continuing claim by HANNING-KAHL.
5. The indemnity is granted by the customer waiving any further requirements or other defences, in particular waiving the defence of limitation or prescription and also includes the reimbursement of the expenses incurred by HANNING-KAHL.
6. Regardless of currency and regardless of the jurisdiction of any court, HANNING-KAHL is entitled at its own discretion to set off incoming payments against claims existing against the customer by virtue of its own or assigned rights at the time of payment.
7. Any rights of the customer to set-off against claims of HANNING-KAHL are excluded, except where the corresponding claim of the customer is in the same currency, is founded in the customer´s own right and has either been finally adjudicated or is due and undisputed or acknowledged by HANNING-KAHL in writing.
8. The customer undertakes to take delivery of the goods at the delivery time without taking any additional period of time and at the place of delivery indicated in the written order confirmation or by way of precaution at the premises of HANNING-KAHL in Oerlinghausen/Germany. The customer is only entitled to refuse to take delivery if it exercises - in accordance with the rules in section VI. 1. - its rights to avoid the contract.
V. Delivery of non-conforming Goods or Goods with Defective Title
1. Without prejudice to any exclusion or reduction of liability of HANNING & KAHL provided by law, delivery does not conform with the contract if the customer proves that, taking into account the terms in section III., at the time the risk passes the packaging, quantity, quality or the description of the goods is significantly different to the specifications laid down in the written acknowledgement of the order, or in the absence of agreed specifications, the goods are not fit for the purpose to be reasonably expected. Changes in design, construction or material which reflect technical improvements do not constitute a lack of conformity with the contract. Irrespective of the legal requirements applicable in Oerlinghausen/Germany, the delivery conforms with the contract, to the extent that the legal requirements applicable at the place of business of the customer do not impede the usual use of the goods. Second-hand goods are delivered without any liability for their conformity.
2. To the extent that the written order confirmation does not contain an explicit statement to the contrary, HANNING-KAHL is in particular not liable for the goods being fit for any particular purpose to which the customer intends to put them or for possessing the qualities of a sample or a model or for their compliance with the legal requirements existing outside of Germany, for instance in the customer’s country. HANNING-KAHL shall also not be liable for any non-conformity with the contract occurring after the time the risk has passed. To the extent that the customer, either himself or through third parties, initiates the removal of non-conformities without the prior consent of HANNING-KAHL, HANNING-KAHL will be released from its liability.
3. The customer must examine the goods as required by law and in so doing check every single delivery in every respect for any discoverable or typical lack of conformity with the contract.
4. Without prejudice to any exclusion or reduction of liability of HANNING & KAHL provided by law, the goods delivered have a deficiency in title if the customer proves that the goods are not free from enforceable rights or claims of third parties at the time risk passes. Without prejudice to further legal requirements, third parties rights or claims founded on industrial or other intellectual property constitute a deficiency in title only to the extent that the rights are registered and made public in Germany. Irrespective of the legal requirements applicable in Germany, title to the goods is not defective, to the extent that the legal requirements applicable at the place of business of the customer do not impede the usual use of the goods.
5. The customer shall give notice as required by law to HANNING-KAHL of any lack of conformity with the contract or of any deficiency in title, and in any event directly and in writing. HANNING-KAHL´s employees, commercial agents or other sales intermediaries are not authorised to accept notices or to make any statements concerning lack of conformity with the contract or of title and its consequences.
6. Following due notice according to section V.-5., the customer can rely on the remedies provided by these International Conditions of Sale. The customer has no other rights or claims whatsoever. In the event of notice not having been properly given, the customer may only rely on remedies if HANNING-KAHL has fraudulently concealed the lack of conformity with the contract or the deficiency in title. The customer´s remedies for deficiency in title are subject to the same statute of limitations as are the remedies for lack of conformity. Statements by HANNING-KAHL as to the lack of conformity with the contract or as to the deficiency in title are for the purpose of explaining the factual position only, but do not entail any waiver by HANNING-KAHL of the requirement of proper notice.
7. In accordance with the terms of the UN Sales Convention, the customer is entitled to demand delivery of substitute goods or repair or a reduction in the purchase price. Further claims for performance are not available to the customer. Irrespective of the customer’s remedies, HANNING-KAHL is always entitled in accordance with the provision in section III.-7. to repair goods which do not conform with the contract or to supply substitute goods or to avert the customer´s remedies by giving him a credit of an appropiate amount.
VI. Avoidance of the Contract
1. Without prejudice to the compliance with the respective applicable legal requirements, the customer is only entitled to declare the contract avoided after he has threatened HANNING-KAHL with avoidance of the contract in writing and an additional period of time of reasonable length for performance fixed in writing has expired to no avail. If the customer claims delivery of substitute goods, repair or other performance, he is bound for a reasonable period of time to the chosen remedy, without being able to exercise the right of declaring the contract avoided. In any event, the customer must give notice of avoidance of the contract within reasonable time in writing and to HANNING-KAHL directly.
2. Without prejudice to its continuing legal rights, HANNING-KAHL is entitled to avoid the contract in whole or in part without compensation if the customer objects to the application of these International Conditions of Sale, if insolvency proceedings relating to the assets of the customer are applied for or commenced, if the customer without providing a justifiable reason does not meet fundamental obligations due towards HANNING-KAHL or towards third parties or if the customer has provided inaccurate information regarding his creditworthiness.
The same applies if HANNING-KAHL through no fault of its own does not receive supplies properly or on time, or if for other reasons HANNING-KAHL cannot be expected to fulfil its obligations by means which taking into consideration its own interests and that of the customer as far as ascertainable and legitimate at the time of formation of the contract, are unreasonable in particular in relation to the agreed counter-performance.
1. HANNING-KAHL is only obliged to pay damages pursuant to this contract or extra contractually if the following provisions in a) to f) are fulfilled:
a) The customer is required in the first instance to rely on other remedies and can only claim damages in the event of a continuing deficiency. The customer cannot claim damages as an alternative to other remedies.
b) HANNING-KAHL is not liable for the conduct of suppliers or subcontractors or for damages to which the customer has contributed. Neither is HANNING-KAHL liable for impediments which occur, as a consequence of natural or political events, acts of state, industrial disputes, sabotage, accidents, terrorism, biological, physical or chemical processes or similar circumstances and which cannot be controlled by HANNING-KAHL with reasonable means. Moreover, HANNING-KAHL is only liable to the extent that its executive bodies or members of staff deliberately or in circumstances amounting to gross negligence breach contractual obligations owed to the customer.
c) In the event of liability HANNING-KAHL will compensate within the limits of lit. d) the proven loss to the customer to the extent that it was unavoidable for the customer and foreseeable to HANNING-KAHL, at the time of the formation of the contract in respect of the occurrence of the loss and its amount. The customer must advise HANNING-KAHL in writing before formation of the contract of particular risks, atypical possibilities for damages and unusual amounts of loss. The same applies if the goods have to be fit not only for a normal use but also will be used in circumstances which are unusual or which present a particular risk to health, safety or the environment. Moreover, the customer is required to mitigate his loss as soon as a breach of contract is or ought to be known.
d) HANNING-KAHL is not liable for loss of profit or damage to reputation. Moreover, the amount of damages for late delivery is limited to 0,5 % for each full week of delay, up to a maximum of 5 %, and for other breaches of obligations is limited to up to 200 % of the respective delivery value. However, this subparagraph does not apply to gross negligence by the executive bodies or the management of HANNING-KAHL.
e) The above provisions b) to d) do not apply if, regardless of the choice of law in IX, point 3, statutory provisions are to be applied that mandate further liability. Insofar as German law applies, the limitations of liability do not apply to claims for damages by the customer arising from injury to life, limb, health and from the breach of essential contractual obligations (cardinal obligations), as well as liability for other damage resulting from an intentional or grossly negligent breach of duty by HANNING-KAHL, its legal representatives or vicarious agents. Essential contractual obligations are those whose fulfillment is necessary to achieve the objective of the contract. In this case, the limitations of liability do not apply if HANNING-KAHL fraudulently concealed the defect or assumed a guarantee for the quality of the item. The same applies if HANNING-KAHL and the customer have made an agreement on the nature of the item.
The provisions of the Produkthaftungsgesetz (Product Liability Act) remain unaffected.
f) The limitation period for contractual claims also applies to extra contractual claims of the customer against HANNING-KAHL, which are concurrent with contractual claims. To the extent that claims are not time-barred earlier, a six-month preclusive limitation of time for bringing an action for damages applies, starting with the rejection of the claim for damages.
g) The foregoing provisions relating to HANNING-KAHL´s liability also apply to the personal liability of HANNING-KAHL´s employees, servants, members of staff, representatives and those employed by HANNING-KAHL in the performance of its obligations.
2. Irrespective of HANNING-KAHL´s continuing legal or contractual claims the customer is obliged to pay damages to HANNING-KAHL as follows:
a) In the event of delay in payment the customer will pay the costs of judicial and extra-judicial means and proceedings, usual and accruing within the country and abroad, as well as interest at the rate applicable in Oerlinghausen/Germany for unsecured short-term loans in the agreed currency.
b) In the case of a failure to accept delivery by the customer or of seriously late acceptance of delivery by the customer, HANNING-KAHL is entitled to claim damages without evidence being necessary up to 15 % of the value of the goods to be delivered.
VIII. Other Provisions
1. Title of the goods that have been delivered remains with HANNING-KAHL until settlement by HANNING-KAHL of all claims existing against the customer. The allocation of risk as to price and performance in section III.-8. is not affected by the reservation of title.
2. Without prejudice to HANNING-KAHL’s continuing claims, the customer will indemnify HANNING-KAHL without limit against all claims of third parties which are brought against HANNING-KAHL on the grounds of product liability or similar provisions, to the extent that the liability is based on circumstances which - such as, for example, the presentation of the product - were caused by the customer or other third parties without express written consent of HANNING-KAHL. In particular, the indemnification also includes compensation for expenses incurred by HANNING-KAHL and is granted by the customer waiving further conditions or other objections, in particular without requiring compliance with control and recall obligations, and waiving any defence of limitation.
3. In relation to pictures, drawings, calculations and other documents as well as computer-software, which have been made available by HANNING-KAHL in a material or electronic form, the latter reserves all proprietary rights, copyrights, other industrial property rights as well as know-how rights.
4. The customer has a non-exclusive right to use the software delivered with the goods. The use of the software independently of the delivered goods and the passing on of the software to third parties is not permitted.
5. All communications, declarations, notices etc. are to be drawn up exclusively in German or English. Communications by means of fax or e-mail fulfil the requirement of being in writing.
IX. General Basis of Contracts
1. The place of performance and payment for all obligations arising from the legal relationship between HANNING-KAHL and the customer is Oerlinghausen/Germany. In particular, this provision also applies if HANNING-KAHL assumes the costs of money remittance, renders performance for the customer somewhere else or payment is to be made in exchange of documents or goods or in the case of restitution of performances already rendered. The agreement of INCOTERMS in Group F or Group C or agreements as to how costs are to be borne do not entail any change of the above rule as to the place of performance. HANNING-KAHL is also entitled to require payment at the place of business of the customer.
2. The United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (UN Sales Convention / CISG) in the English version as well as the usage in force in Germany govern the legal relationship with the customer. The UN Sales Convention applies, above and beyond its own area of application, and regardless of reservations adopted by other states, to all contracts to which these International Conditions of Sale are to be applied according to the provisions of section I. Where standard terms of business are used, the INCOTERMS 2020 of the International Chamber of Commerce apply taking into account the provisions stipulated in these International Conditions of Sale.
3. The formation of contract, including agreements as to jurisdiction and the inclusion of these International Conditions of Sale, and the rights and obligations of the parties, also including pre-contractual and collateral obligations, as well as the interpretation are exclusively governed by the UN Sales Convention together with these International Conditions of Sale. Outside the application of the UN Sales Convention, the legal relationship between the parties is governed by the non-uniform Swiss law, namely by the Swiss Obligationenrecht.
4. All contractual and extra-contractual disputes arising out of or in connection with contracts to which these International Conditions of Sale apply, shall be finally resolved by arbitration according to the Rules of the London Court of International Arbitration (LCIA) without recourse to the ordinary courts of law. The tribunal shall consist of three arbitrators or if the amount in dispute is inferior to € 5.000, there shall be one arbitrator. The place of the arbitration shall be Zurich/Switzerland, the languages used in the arbitral proceedings shall be German or English. In individual cases, however, HANNING-KAHL is also entitled to bring an action before the national Courts of the customer’s place of business, or other national courts having jurisdiction according to domestic or foreign law.
5. If provisions of these International Conditions of Sale should be or become partly or wholly void, the remaining arrangements will continue to apply. The parties are bound to replace the void arrangement by a legally valid arrangement, which ought to be as close as possible to the commercial meaning and purpose of the void arrangement.
1. Terms Governing Erection/ Assembly, Maintenance as well as Work and Services for International Operations – Scope and Applicability
Our terms governing erection/ assembly and repair services as well as work and services for international operations apply when we have to deliver erection/ assembly, repair, maintenance or other work and services. These terms apply in addition to our International Conditions of Sale for Customers not Resident in Germany.
2. Entering into the Agreement, Scope and Application of our International Terms of Sale, Prices
2.1 To enter into an agreement for performance that we need to deliver relevant to Item 1 and its content, the following included in Sections II, IV, Items 3, 4, 5, 6 and 7, V Items 1, 2, 3, 5, 6 and 7, VI Items 1 and 2, VII, VIII Items 2, 3, 4 and 5, IX Items 1 and 3 of our International Conditions of Sale for Customers not Resident in Germany, apply accordingly.
2.2 If we have accepted to perform erection or assembly of equipment that we delivered, all costs arising from erection or assembly work will be at the expense of the contract partner pursuant to Item 2.3. The foregoing does not apply if the agreed upon price expressly includes erection or assembly.
2.3 In the absence of a different agreement, we will charge for erection/ assembly, repair, maintenance as well as work and services performed based on the expenditure of time plus expenses incurred for travel, materials, equipment and, as applicable, disposal. Storage fees/ charges will be invoiced pursuant to Item 4.6.
3. Invoicing, Down-Payment, Interim Payments, Security Interest
3.1 We are entitled to demand a down-payment of 5% of the contract total if the contract stipulates advance performance by us. If the contract total is not determined, the amount of the anticipated total payment due takes its place.
3.2 We are entitled to ask for payments on account. The actual amount of payments on account is determined by the contract price of our respective performance delivered through a particular cut-off date. We are entitled to ask for payments on account for work completed that may not represent a specific entity i.e. work that is still ongoing. If we have to transfer title to property to the contract partner, then the contract partner may – at the time the payment on account is made - ask for the transfer of the property with retention of title pursuant to our International Conditions of Sale for Customers not Resident in Germany provided and to the extent the laws governing passing of title recognize retention of title. The offer to transfer title of property is inherent in the request for payments on account pursuant to the provisions of our International Conditions of Sale for Customers not Resident in Germany. To the extent the property remains in our possession, we will continue to hold such on behalf of our contract partner.
3.3 Other rights or claims based on laws or agreements concerning down-payment, advance payment, payment on account or security, are not affected by these terms governing assembly/ erection, maintenance as well as work and services for international operations.
4. Our Performance
It is the contract partner’s obligation to alert us prior to entering into the agreement to specific application objectives and to existing perils that the contract partner is able to discern.
In the absence of different agreements, our performance will be delivered as described in our product literature/ descriptions.
Unless otherwise agreed, we are not obligated to customize our performance for compatibility with the performance or products of other suppliers.
To the extent these terms governing assembly/ erection, repairs as well as work and services for international operations do not contain different provisions, the provisions contained in Section III of our International Conditions of Sale for Customers not Resident in Germany for assembly/ erection, repair work, maintenance services or other work and services apply accordingly meaning that these provisions apply to performance we are obligated to deliver not relative to goods/ products mentioned therein but to items in the sense of Item 1.
4.2 Repairs/Service Work
To the extent the contract stipulates unequivocally what the cause of a defect is and how such individual defect may be repaired (straightforward repair work), our performance consists in providing remedy to the underlying cause of such defect pursuant to generally accepted technical standards. Otherwise (repair of defect with concealed cause) our performance consists in the determination of the defect implementing actions that we deem appropriate and in providing remedy to the extent possible from a technical and economic aspect. Our troubleshooting efforts are governed by generally accepted technical standards. Initially, the most likely cause of a defect is investigated after which we proceed to the subsequent cause that appears most likely to have been at the root of the defect under investigation. Our claim for compensation remains unaffected i.e. compensation for a corresponding portion of the performance delivered and reimbursement of the expenditure not covered in the compensation should technical or economic considerations dictate not to provide remedy for a defect. The foregoing will not apply if we are responsible for a condition that caused the defect.
With regard to inspections, our performance consists in the determination and assessment of the actual condition of a system. The following governs the extent of required investigations: contract terms, to the extent present and made available to us, system requirements by the manufacturer of the system and potential technical rules/ regulations or generally accepted technical standards as far as known or applicable to us. To the extent customary for inspection work, potentially defect parts are exchanged during inspection and replaced at the expense of the contract partner.
4.4 Maintenance (General Overhaul)
When we perform service work, our objective is to maintain the desired condition of a system by actions that we consider appropriate and to the extent they are technically and economically feasible. The following governs the extent of required actions: contract terms, to the extent present and made available to us, system requirements by the producer of the system and potential technical rules/ regulations or generally accepted technical standards as far as known to us or to the extent they should be known to us. While performing service work we will exchange any potentially defect parts or parts whose replacement is indicated by common sense. The foregoing will be at the contract partner’s expenses.
4.5 Removed Parts
We will dispose of parts removed during the course of our work. The foregoing will be at the contract partner’s expense. However, the foregoing will not apply if we discern a special interest on behalf of the contract partner in retaining any removed parts (e.g. for providing proof/ evidence or due to an existing residual/ a salvage value).
4.6 Warehousing Costs
We will hold in our inventory during and subsequent to our services any removed parts that will not be disposed of pursuant to the previous Item as well as any objects that need to undergo repairs, inspection, or that need maintenance work. If such warehousing will exceed a period of six weeks, we will levy adequate storage charges. Lump sum storage charges will amount to € 100,00 per commenced week. The contract partner has the right to submit proof of lower storage costs while we have the right to submit back-up for higher storage costs.
We will demand that the contract partner pick up the stored object/s. If the contract partner fails to respond to this demand, or under the circumstances when we have undertaken the transportation, delivery to the contract partner is not possible, we will grant the contract partner an adequate period of additional time to pick up these stored objects. Should the contract partner fail to respond to this demand, we will be justified and authorized to make arbitrary use of the objects and/ or to dispose of them at the contract partner’s expense.
To the extent no determination to the contrary was made, training provided by us does not authorize participants to perform required maintenance work such as e.g. general overhauls.
4.8 Service Equipment Rental
If our performance means equipment rental, the following applies:
a) The rental charges are to be paid for the period from dispatch until the equipment returns in acceptable condition pursuant to the contract terms.
b) We will take out insurance cover at the expense of the contract partner, which will indemnify against loss and damage as well as liability (in this context the applicable liability is that stemming from German law). The scope of the insurance cover is determined by the insurance terms, which we will make available to the contract partner if so requested. It is imperative that the object be used and stored only in a manner that guarantees insurance protection.
We will invoice the insurance costs in addition to the agreed upon rental charges.
c) The contract partner is obligated to treat the object with due care. It is not permitted to let third parties use the rental equipment. The contract partner must inform us immediately if the object is destroyed or damaged or if third parties will file a claim concerning such object. The object will be used exclusively for the purpose we specified. Should there be perils inherent in the object or if we anticipated such when the contract was entered into, it is imperative that the object will be utilized only by appropriately trained personnel or otherwise authorized personnel.
d) If we put the object into operation and take it down, we will invoice for the operation and dismantling in addition to the agreed rental charges of Item 2 accordingly.
4.9 We are entitled to involve third parties for the contractual performance and to subcontract the order in whole or in part, provided that this does not impair the contract partner‘s interests worthy of protection.
5. Termination by the Contract Partner
If the contract partner finally rejects the performance of a contract concerning the performance as outlined in Item 1, we are entitled irrespective of other claims, to demand a lump sum compensation of 15% of the contractually agreed contract sum. We can demand such without any obligation to provide any further backup of our expenses. If a contract sum is not determined, the anticipated compensation total will be used in its place. The contract partner has the option to demonstrate that no or only substantially lower costs or losses were/ was incurred. The lump sum is subsequently reduced accordingly.
6. Right of Lien
Based on our claims we require the right of lien on objects that have come into our possession. The right of lien guarantees all claims, which we have toward the contract partner based on our business relationship. Upon the contract partner’s request, we will - pursuant to our choice - release the objects that are subject to the right of lien once the realizable value of securities in our favor exceeds the total securable claim by more than 20%.
7. Bearing the Risk
7.1 The contract partner is liable for the risk during transportation. The foregoing applies also if the transportation is performed by our employees and if we bear the transportation costs (by special agreement). If so desired by the contract partner, transportation may be insured against the insurable transportation risks. This will be done at the expense of the contract partner.
In the absence of a special agreement to the contrary, the property of the contract partner is not covered by our insurance for the time it is in our possession. Upon special instructions, the property of the contract partner will be insured against theft, breakage, fire and water damage and similar hazards. This insurance cover will be at the contract partner’s expense.
7.2 If one of the performances pertaining to erection/ assembly, maintenance or other work and services has perished, deteriorated or become impossible to deliver prior to acceptance due to circumstances that fall within the risk area of the contract partner without the contribution of circumstances for which we are responsible, we are entitled to demand compensation proportionate to the performance delivered and reimbursement of expenses not covered in the compensation amount.
If we provide new replacement for the entirely or partially perished or deteriorated, under the afore-described prerequisites, the contract partner is responsible for the additional costs
If the contract partner is at fault, further reaching rights on our part will not be affected.
7.3 If our performance is linked directly with a building structure thus being integrated with its substance, the following additional provisions apply:
If the entire or partial performance completed by us is damaged or destroyed prior to acceptance due to Force Majeure, war, riots or other inevitable circumstances beyond our control, the already completed performance is to be paid for based on contract pricing. Moreover, we are entitled to reimbursement of the costs that we have so far already incurred, which however are not reflected in the contract pricing of the already completed/ delivered performance.
7.4 We hereby assign at this stage already to third parties, subject to a condition precedent all claims due us versus the contract partner - that is all claims to which we will be entitled due to loss of performance/ objects (Items 7.1, 7.2, 7.3).
8. Collaboration on the Part of the Contract Partner
The following applies to the collaboration on the part of the contract partner:
8.1 We need to be informed in good time prior to the start of work of existing specific security regulations and other specifics to the extent such is important to us.
8.2 The contract partner has the obligation to provide technical support at the contract partner’s expense, especially to make available required qualified labor, the completion of all necessary preparatory and secondary work, especially of all construction and scaffolding work including the provision of all required building materials (e.g. installation of the earth box in the track system, transportation of the switch machine to the point (earth box), availability of the required rigs and heavy tools, availability of heating, ventilation, limiting access/ control of access to the construction site, lighting, power (especially 230 V AC and mains supply of 600 V, compressed air), water inclusive of the required hook-ups.
8.3 To the extent required by applicable security regulations, the contract partner is obligated to make available as many security personnel as required. To the extent required, a people lifter is to be provided also.
8.4 The collaboration of the contract partner (Items 8.1., 8.2., 8.3.) must guarantee that we are able to embark on our work immediately following the arrival of our employees. Should the contract partner fail to live up to the expected collaborative duties, then we have the right, but not the duty to take on the collaborative work of the contract partner in the partner‘s place and at the partner‘s expense. If the contract partner is at fault, farther reaching rights on our part will not be affected.
8.5 Before placing the order, the contract partner is obliged to inform us of all laws, ordinances, official notifications, standards and other regulations on the basis of which he wishes the service to be provided. The contract partner is also obliged to provide us with all documents, data, drawings and other information in the form requested by us, regularly in written form, which must be taken into account when the service is provided, before the order is placed. Any additional costs resulting from a breach of these obligations to cooperate must be borne by the contract partner. We are not liable for damages that can be traced back to the breach of duty to cooperate or are caused by incorrect or incomplete information being passed on to us.
If our performance requires formal acceptance, the following applies:
Our performance is deemed to have been accepted at the latest one week after the contract partner has put into operation the object of the performance (or a part thereof in case of partial acceptance) or two weeks following a written document communicating the completed performance, unless the contract partner has rejected the acceptance or demands a date for both parties to transact the acceptance date) It is our obligation to point particularly toward this consequence following the completion.
10. Claims Due to Defects
The contract partner must point out without delay obvious defects – at the latest, this must be done at acceptance. If a defect that could not be recognized at acceptance occurs at a later time, such must be pointed out without delay. Claims on behalf of the contract partner due to defects exist only if the contract partner has in fact adhered to the afore-mentioned requirement to give notice of defect/s; compulsory legal remedy in favor of the contract partner is provided under such circumstances.
Besides, the contract partner is obligated to adhere to the requirements to give notice of defect/s as outlined in our International Conditions of Sale for Customers not Resident in Germany.
11. Final Provisions
11.1 To the extent these terms governing assembly/ erection, maintenance, work and services terms for international operations lack specific rulings, the provisions of our International Conditions of Sale for Customers not Resident in Germany apply.
11.2 Beyond the regulations of these terms governing assembly/ erection, maintenance, work and services for international operations and the International Conditions of Sale for Customers not Resident in Germany, the legal relationship between us and the contract partner is determined by Swiss law.
11.3 All contractual and extra-contractual disputes from or in the context with contracts, for which the validity of these terms governing erection/ assembly, maintenance, work and services for international operations are provided, will be settled pursuant to the arbitration rules of the London Court of International Arbitration (LCIA) thereby ousting the jurisdiction by the courts of law. The arbitration tribunal consists of three arbitrators; if the value in dispute remains under € 5,000.00, there will be one arbitrator only. The place of arbitration is Zurich, Switzerland. The language of the court of arbitration may be German or English. We are, however, authorized to file a complaint in certain cases with the national courts of law at the seat of business of the customer or other domestic or foreign courts of law competent to deal in such matters.
11.4 Should individual provisions of these terms for the erection/ assembly, maintenance, work and services for international operations be totally or partially invalid, the remainder of the provisions will remain as is. The parties are encouraged to replace the invalid provision by a valid one that approximates the economic sense and purpose of the invalid provision as closely as possible.
In order to comply with our statutory obligations relating to data protection, we would like to provide you with the information required pursuant to Article 13 of the European data protection-regulation (GDPR): Who is responsible for data processing? Responsible for processing your personal data is: HANNING & KAHL GmbH & Co KG
33813 Oerlinghausen If you have any questions or wish to contact our data protection officer, Mr Wolfgang Winter is the person to contact: Wolfgang Winter
Bekscher Berg 16
Tel. 05252 – 93 46 93
email@data protection -winter.de From whom does the company receive your data? We process personal data which we receive from you within the framework of our business relationship. Where necessary for provision of a service / contract performance with you, we also process personal data which we have legitimately received from third parties (e.g. the SCHUFA [German general credit protection agency], credit agencies) for example for execution of orders, for performance of contracts or on account of consent granted by you. In addition, we process personal data which we have legitimately gained from accessible sources (e.g. trade and association registries, press, media) and which we are allowed to process. Which of your personal data do we process? For what purposes? If we have received data from you, we will only process it for the purposes for which we have received or acquired it. Data may only be processed for other purposes if there are legal requirements to do so pursuant to Art. 6 para. 4 GDPR. We will of course heed possible information obligations of the type pursuant to Art. 13 para. 3 GDPR and Art. 14 para. 4 GDPR. On which legal basis does this take place? Where there are no specific legal stipulations, the legal basis for the processing of personal data is Art. 6 GDPR where the following possibilities are listed:
- Consent (Art. 6 para. 1 lit. a) GDPR)
- Data processing for performance of contracts (Art. 6 para. 1 lit. b) GDPR
- Data processing on the basis of consideration of interests (Art. 6 para. 1 lit. f) GDPR)
- Data processing for compliance with a legal obligation (Art. 6 para. 1 lit. c) GDPR)
If personal data is processed based on consent from you, you have the right to withdraw consent from us at all times with future effect. If we process data on the basis of consideration of interests, you, as the person concerned, have the right to object to processing of personal data bearing in mind the stipulations of Art. 21 GDPR. How long is the data stored? We process the data as long as this is necessary for the respective purpose. Where statutory storage obligations exist – e.g. in tax law or in relation to health data – the personal data concerned is stored for the duration of the storage obligation. Following expiry of the storage obligation, we check whether there is a further necessity for processing and delete the data if no further necessity exists. You may of course request information on the data we have stored on your person at all times (see below) and you may request deletion of the data or restriction of processing if there no longer is a need for processing. Whom is the data disclosed to? Your personal data is only disclosed to third parties if this is necessary for performance of contracts with you, if disclosure based on consideration of interests as defined by Art. 6 para. 1 lit. f) GDPR is permissible, if we are legally obliged to disclosure or if you have granted consent to do so. Where necessary, external service providers shall be integrated as order processors in compliance with data protection regulations (Art. 28 GDPR). Where is the data processed? We exclusively process your personal data in the Federal Republic of Germany. The personal data which you provide is not transferred to a third country or an international organisation, nor is this planned. Your rights as “person concerned” You have the right to information about the personal data on your person which we process. If you submit a written request for information, we trust you appreciate that we shall require verification from you which proves that you are the person who you claim to be. Furthermore, you have the right to correction, deletion or to restriction of processing, to the extent that you are legally entitled to do so. You also have a right of objection to the processing within the scope of statutory requirements. The same applies to a right of data transfer. In particular, you have a right of objection pursuant to Art. 21 para. 1 and 2 GDPR to the processing of your data in connection with direct marketing when this takes place on the basis of consideration of interests. Right to complain You have the right to complain to a regulatory body about the processing of personal data by us. If you are of the opinion that the processing of your personal data does not comply with data protection legislation, we kindly ask you to contact our data protection officer.