1.1 These standard conditions of sale shall apply exclusively for any sale of goods (“Goods”) by Paul Hartmann AG (the “Company”) to any person, body, or company (the “Buyer”). Differing or contrary terms or conditions shall not apply except if expressly agreed upon in writing.
1.2 These standard conditions of sale shall also govern all future purchases of Goods from the Company and shall also apply if the Company performs delivery without knowledge of differing or contrary terms and conditions.
2. Order Process
2.1 Goods may be ordered by the Buyer through the online webshop of the Company or through any other order processes offered by the Company. Access to the webshop is limited to registered Buyers only.
2.2 Listings of Goods on any website, including any webshop, in any product list or price list or in any other general publication of the Company shall not be deemed to constitute an offer by the Company for the sale of such Goods. The Buyer may select any Goods listed in the webshop or other product list of the Company and request a quotation from the Company for such Goods in the desired quantity. The Company will then review the request and if it decides to do so prepare an individualized quotation for a sale of such Goods to the Buyer indicating the applicable pricing and shipping terms (“Quotation”).
The Company will typically process requests within one week of receipt.
2.3 The Buyer shall then confirm the Quotation within one week of its receipt in writing. A binding contract on the sale of the Goods (“Contract”) is only concluded upon the Company's receipt of such confirmation of the Quotation and is always subject to availability and credit-worthiness of the Buyer. Any Quotation that is not accepted by the Buyer within one week of its receipt shall expire. If accepted, the Quotation shall be binding basis for the delivery, including with respect to quantity, specifications, always subject to availability and credit-worthiness of the Buyer.
3.1 Unless otherwise stated in the Quotation all prices (including handling and shipping charges) are exclusive of VAT. If the Quotation is silent on the handling and shipping charges all prices shall be ex works, exclusive of the respective statutory VAT.
3.2 Where prices are expressly stated to be inclusive of VAT the Company may adjust the prices to reflect any changes in the applicable statutory VAT rate.
4.1 Unless otherwise stated in the Quotation all payments are due and payable net within 30 days from the date of the invoice. Payment shall be made by bank transfer or any other means agreed by the Company.
4.2 Without prejudice to the Company's right to prompt payment the Buyer shall pay interest at the rate of 8 percentage points above the base interest rate pursuant to section 247 (2) of the German Civil Code (Bürgerliches Gesetzbuch) announced by the Deutsche Bundesbank and published in the German Federal Law Gazette (Bundesanzeiger) in the respective version per annum on the balance of any invoice or other sum remaining unpaid from the due date of payment of the same until the date of actual payment and shall in addition reimburse the Company all reasonable costs and expenses (including legal costs) incurred in the collection of any overdue balance or accounts. The Company reserves any further rights resulting from a delay in payment.
4.3 The Company does not provide any credit facilities under this Agreement, whether as loan or as trade credit. However, the Company is entitled to cover the outstanding amount with corresponding credit insurance. The Buyer will provide all necessary information to the nominated credit insurance company or the Company directly in order to enable or extend such insurance coverage. If the insurance provided by the nominated credit insurance company does not cover the outstanding amount for any reason whatsoever, the Company in its sole discretion is entitled to either demand further securities for the uninsured gap, which the Buyer is obliged to provide or to adapt payment and delivery terms accordingly.
4.4 An exposure to loss of receivables entitles the Company to demand immediate payment of all outstanding invoices no matter if they are already due or the transfer of additional securities. This exposure will become evident if an intensive impairment on the financial circumstances of the Buyer emerges, a delay in payment occurs or the credit worthiness of the Buyer declines severely. In case of outstanding deliveries the Company is authorized to demand prepayment in order to proceed with delivery.
5. Delivery and Risk
5.1 Unless expressly stated otherwise by the Company any date or times quoted by the Company for despatch or delivery of the Goods to the Buyer are indicative only. The Company will notify the Buyer if it becomes aware of any actual or expected delay. Further rights of the Buyer based on such delay are excluded.
5.2 The risk of damage to or loss of the Goods shall pass to the Buyer upon despatch at the premises of the Company. Unless otherwise stated in the Quotation place of fulfillment shall be at the premises of the Company.
5.3 The Company reserves the right in its sole discretion to effect delivery of the Goods in instalments and to issue a separate invoice for each such delivery instalment setting out the invoice amount for each such instalment. Payment for such instalments shall be made in accordance with clause 4.
6. Retention of Title
6.1 The Company retains ownership of all Goods until receipt of all payments for the relevant Contract. In case of breach of contract by the Buyer including, without limitation, default in payment, the Company is entitled to take possession of the Goods.
6.2 The Buyer may only resell Goods that are subject to the retention of title in the ordinary course of his business. The Buyer hereby assigns to the Company all claims arising from such resale, including any ancillary rights until all of the Company's claims with respect to the relevant Goods are completely settled. The Company herewith accepts such assignment. The Buyer shall be entitled to continue to collect the payment on the assigned claims. The Company will not demand payment on the assigned claims as long as and to the extent the Buyer complies fully with all his payment obligations.
7. Registration of Buyer and Goods
The Buyer warrants that it is in possession of all legally required registrations and licenses necessary for the conduct of its business, the purchase of the Goods and, where applicable, the distribution of the Goods in its country. In particular, the Buyer warrants to have obtained all legally required registrations and licenses (for itself and the Goods) as are necessary to import the Goods into its country and (to the extent the Buyer acts as distributor) to distribute the Goods in such country. At the request of the Company the Buyer shall provide the Company copies of these registrations and licenses, including English translations of the same.
8.1 If the Company believes that a recall of any Goods or any other safety related action in relation to the Goods in the country of the Buyer is desirable or required by law or the competent authority has ordered any such action (“Recall”), the Company will notify the Buyer accordingly.
8.2 In the event of a Recall the Buyer shall fully cooperate with the Company in relation to such Recall and shall comply with any requests of the Company in relation to the Goods. In particular, if so requested by the Company, the Buyer shall immediately take any action required for the identification and/or retrieval of the relevant Goods and shall cease the use or distribution of such Goods.
8.3 Upon request, the Buyer will inform the Company of his stocks of the relevant Goods and discard/destroy such Goods in accordance with the instructions of the Company or ship such Goods to the Company at the Company's costs (if explicitly so requested by the Company). The Company will then at its discretion either resupply or reimburse any such recalled Goods at its own expense. The Company may require adequate proof of Goods having been discarded/destroyed. If such proof is not provided to the reasonable satisfaction of the Company, the Company may charge for any Goods re-delivered at standard rates.
8.4 In case the Buyer is a distributor the Buyer shall also procure that the recall is implemented with respect to its customers.
8.5 If the Buyer reasonably believes that a recall of any Goods or any other safety related action in relation to the Goods in the country of the Buyer is desirable or required by law or the Buyer receives an order by a competent authority to that effect, the Buyer shall immediately notify the Company giving reasonable particulars of the matter. For the avoidance of doubt, it is the Company's exclusive right to issue recalls, safety alerts, advisory notices or similar remedial actions with respect to the Goods.
9.1 The Buyer shall examine the Goods without delay after delivery, insofar as reasonably feasible in the ordinary course of its business. Any defect identified shall be notified to the Company without delay. If the Buyer fails to make such notification the Goods shall be deemed accepted, unless the defect was undiscernible upon examination. If a defect that was undiscernible upon examination becomes apparent later, the Buyer shall notify the Company without delay upon discovery of the defect; otherwise the Goods shall be deemed accepted with regard to such defect. The Company may request evidence of the claimed defect (e.g. by the provision of samples or analytical results).
9.2 In case of defects the Company will in its sole discretion either repair the defective Goods, replace the defective Goods with identical goods or with goods of comparable quality or issue a credit note to the Buyer to enable the Buyer to order from the Company new Goods free of charge. If an attempted remedy has failed for the third time, the Buyer is entitled to either reduce the purchase price or to withdraw from the Contract with respect to the defective Goods (or from the entire Contract if being bound to the remainder of the Contract would cause an undue burden for the Buyer). The right to withdraw from the Contract is excluded in case of only minor defects.
9.3 Defective Goods shall be discarded/destroyed in accordance with the instructions of the Company or be shipped to the Company at the Company's costs (if explicitly so requested by the Company).
9.4 Warranty claims shall be time-barred 12 months after the date of shipment.
10. Product Use; Liability
10.1 The Buyer shall only use the Goods as intended and described by the Company, including as indicated on the packaging and shall fully comply with any product information, instructions, manuals and product warnings issued by the Company.
10.2 In no event shall the Buyer repack or modify any Goods or the packaging thereof, remove any information or labels of the Goods or the packaging thereof. Upon distribution, any product information, instructions, manuals and product warnings issued by the Company shall be made available to any customers by the Buyer.
10.3 Any distribution by the Buyer shall be made in full compliance with any instructions issued by the Company and using only such statements, information and claims regarding the Goods, any of their properties and the use of the Goods as are used or authorized by the Company. The Buyer shall refrain from making or giving any additional, modified or different statements, information and claims regarding the Goods, any of their properties or the use of the Goods, except with the prior written consent of the Company.
10.4 The Company shall not be liable for any loss or damage arising directly or indirectly from or in relation to any misuse of the Goods by the Buyer or any of its customers, including any breach of the Buyer's obligations pursuant to this clause 10. The Company shall further not be liable for any damage or loss arising from any unusual or remote events and circumstances unforeseeable for a prudent businessman. This exclusion shall not apply in cases of gross negligence or intentional acts.
11. Offset, Right to Retain
The Buyer shall be entitled to offset only insofar as the Buyer's counterclaim is acknowledged, undisputed or assessed in a legally binding judgment. The Buyer is entitled to claim retention rights only to the extent such rights are based on the same Contract.
12. Force Majeure
Should delivery of any Goods be prevented or delayed by reason of any strike, war, fire, act of God, government action, or any other comparable cause outside the control of the Company, the Company shall have the right to suspend deliveries without incurring any liability towards the Buyer. Such suspension shall be without prejudice to the Company's right to payment for any Goods (including partial delivery) already delivered.
13. Buyer's Default
If the Buyer defaults in paying any sum as and when such sum becomes due under a Contract or commits any breach of any of its obligations to the Company, or if distress or execution is levied on any of the Buyer's assets, or if the Buyer makes any arrangement with its creditors or commits any act of bankruptcy, becomes insolvent or goes into liquidation or if a receiver or manager is appointed for the whole or any part of its assets, the Company may in its sole discretion suspend any shipments of Goods until payment is made either in advance or the default has been made good.
14. General Provision
14.1 Should one of the provisions of these standard conditions of sale or of any additional stipulations agreed herein be or become invalid then the validity of the remaining part of these conditions shall not be affected thereby. The parties shall replace the invalid provision or stipulation by another – with respect to the commercial effect – equivalent provision or stipulation, in so far as this is possible.
14.2 The laws of the Federal Republic of Germany (excluding any conflict of laws rules) shall exclusively apply to these standard conditions of sale and any Contract. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
14.3 Parties will use their best efforts to amicably resolve all disputes between them.
In case an amicable settlement cannot be reached, any dispute arising out of or in connection with these standard conditions of sale or any Contract hereunder or any dispute with regard to the performance of any obligation hereunder by the Company and/or Buyer shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by three (3) arbitrators appointed in accordance with the said rules. Place of Arbitration shall be Zurich, Switzerland. Language of Arbitration shall be English. The award shall be final, binding and in writing, and shall specify the reasons for and the facts on which such decision was reached. The Company and Buyer hereby waive their right to any form of appeal insofar as such waiver can validly be made.
However, in case of interim legal protection the Company and/or Buyer shall be entitled to call for such interim legal protection at the competent courts of the ordinary jurisdiction at the business seat of the defendant.
Valid from: 01/2015