1 General
1.1 These terms and conditions of sale (these "Terms") govern the sale of the goods ("Goods") and services ("Services") by Haeny, Inc. ("Haeny") to the purchaser of Goods and Services ("Buyer," and together with Haeny, the "Parties"). Buyer accepts these conditions by submitting a written order (an "Order") to Haeny.
1.2 Any conditions stipulated by Buyer which are in contradiction to these Terms shall only be valid if expressly agreed to by Haeny in writing.
1.3 Should a provision of these Terms prove to be wholly or partly invalid, the Parties shall jointly seek an arrangement which has a legal and economic effect as similar as possible to the invalid provision. The invalidation of any provision shall not invalidate or render unenforceable any other provision of these Terms.
2 Orders and confirmations
2.1 Buyer shall place a written Order, on the form provided by Haeny, containing all relevant information with regard to invoice instructions, delivery address, import licenses, transport markings, requested delivery date, as well as preferred transportation method.
2.2 The Goods and Services to be provided, as well as the delivery date, shall be specified in the Order and appendices thereto. Orders shall only become binding upon Haeny’s express written confirmation and acceptance.
3 Plans and technical documents
3.1 Prices and specifications set forth in brochures, catalogues, or websites are not binding, and Haeny is not liable for any errors or omissions therein. Data in technical documents are only binding if they have been expressly stipulated as such in writing by Haeny.
3.2 Each Party retains all rights to plans and technical documents provided to the other. The Party receiving such documents recognizes these rights and shall – without previous written consent of the other Party – not make these documents available to any third Party, either in whole or in part, nor use them for purposes other than negotiation and placement of an Order.
4 Prices
4.1 Unless otherwise agreed, all prices shall be “ex factory” (Incoterms 2010), excluding VAT, packaging, freight, postal charges, insurance costs and other costs, port fees, export and import duties and all other fees and taxes. Buyer shall bear any and all taxes, fees, levies, customs duties and the like as well as the related administrative costs which are levied out of or in connection with the Order or its fulfilment. If such costs, taxes etc. are charged to Haeny or to persons employed or appointed by Haeny to perform any of his obligations, they shall be refunded by Buyer upon presentation of the receipts.
4.2 Haeny reserves the right to adjust the prices in case wage rates, raw material prices, or exchange rates vary between the submission and acceptance of the Order. In addition, an appropriate price adjustment shall apply after an order is accepted by Haeny, in case:
- the delivery date has been subsequently extended due to any reason stated in Clause 7.3, or
- the nature or the scope of the agreed Goods or services has changed, or
- the material or the execution has undergone changes because any documents furnished by Buyer were not in conformity with the actual circumstances, or were incomplete, or
- an amendment has been made to applicable laws, regulations or the principles of interpretation or application.
5 Terms of payment
5.1 Payments shall be made by Buyer according to the terms of payment agreed upon in the Order, without any deduction for cash discount, expenses, taxes, levies, fees, duties, and the like.
Unless otherwise agreed, the price shall be paid in the following instalments:
- one third as advance payment within one month after receipt of the Order acknowledgement by Buyer,
- one third on expiry of two thirds of the agreed delivery date,
- the remainder within one month after Haeny notifies Buyer that the Goods are ready for shipment.
Payment shall be deemed to be effected when payment has been made available to Haeny in U.S. Dollars.
5.2 If the advance payment is not provided in accordance with these Terms, Haeny shall be entitled to adhere to or to terminate the contract, and shall in both cases be entitled to claim damages.
If Buyer, for any reason whatsoever, is delayed with a further payment, or if the Haeny has reasonable concern that it will not receive payments in total or in due time because of circumstances having taken place since acceptance of the Order, Haeny, without being limited in its rights provided for by law, shall be entitled to refuse further performance of the Order and to retain the Goods until new terms of payment and delivery have been agreed and until Haeny has received satisfactory payment or guaranty of payment. If such an agreement cannot be reached within a reasonable time, or if Haeny does not receive adequate payment or guaranty of payment, Haeny shall be entitled to terminate the Order and to claim damages.
5.3 If Buyer does not adhere to the agreed terms of payment, it shall be liable, without reminder, for interest with effect from the agreed date on which the payment was due at a rate depending on the terms prevailing at Buyer’s domicile, but not less than 4 per cent over the current 3-month CHFLIBOR target. The right to claim further damages is reserved.
6 Reservation of title
Haeny shall remain the owner of all Goods until it has received the full payment in accordance with these Terms.
Buyer shall cooperate in any measures necessary for the protection of Haeny’s title. In particular, upon submitting the Order, it authorizes Haeny to enter or notify the reservation of title in the required form in public registers, books or similar records, all in accordance with the relevant national or state laws, and to fulfil all corresponding formalities, at Buyer’s expense.
During the period of the reservation of title, Buyer shall, at its own cost, maintain the Goods and insure them for the benefit of Haeny against theft, breakdown, fire, water and other risks. Buyer shall further take all measures to ensure that Haeny’s title is not compromised or rescinded.
7 Delivery date
7.1 The delivery date shall be deemed to be observed if, by that time, Haeny has sent a notice to Buyer informing Buyer that the Goods are ready for shipment.
7.2 Compliance with the delivery time is conditional upon Buyer’s fulfilment of his contractual obligations.
7.3 The delivery date shall be reasonably extended:
a) if the information required by Haeny for the performance of the Order is not received in time, or if Buyer subsequently changes it thereby causing a delay in the delivery of the Goods or services;
b) if hindrances occur which Haeny cannot prevent despite exercising the required care, regardless of whether they affect Haeny, Buyer or a third Party. Such hindrances include, but shall not be limited to, epidemics, mobilization, war, civil war, acts of terrorism, riots, political unrest, revolutions, sabotage, serious breakdown in the works, accidents, labor conflicts, late or deficient delivery by subcontractors of raw materials, the need to scrap important work pieces, actions or omissions by any authorities or state or national bodies, embargoes, unforeseeable transport problems, fire, explosion, and natural catastrophes;
c) if Buyer or a third Party is behind schedule with work it has to execute, or with the performance of his contractual obligations, in particular if Buyer fails to observe the terms of payment.
7.4 In case a specific date is fixed instead of a delivery period, this date shall correspond to the last day of a delivery period; Clauses 7.1 to 7.4 apply by analogy.
7.5 Any delay of the Goods or services does not entitle Buyer to any rights and claims other than those expressly stipulated in this Clause 7. This limitation does not apply to unlawful intent or gross negligence on the part of Haeny, but does apply to persons employed or appointed by Haeny to perform any of its obligations.
8 Packing
Packing shall be charged for separately by Haeny and packaging materials shall not be returnable.
9 Passing of benefit and risk
9.1 The benefit and the risk of the Goods shall pass to Buyer upon the Goods departing Haeny’s facility.
9.2 If shipment is delayed at the request of Buyer or due to reasons beyond Haeny’s control, the risk of the Goods shall pass to Buyer at the time originally foreseen for their leaving the works. From this moment on, the Goods shall be stored and insured on the ac- count and at the risk of Buyer.
10 Inspection and acceptance of the Goods and Services
10.1 As far as being normal practice, Haeny shall inspect the Goods before shipment. If Buyer requests specific testing, at Buyer’s expense, this testing must be specifically agreed upon in advance in writing.
10.2 The customer shall inspect the Goods and Services within fourteen (14) days after receipt and shall immediately notify Haeny in writing of any deficiencies. If Buyer fails to do so, the Goods and services shall be deemed to have been accepted.
10.3 If Haeny has been notified of deficiencies in accordance with Clause 10.2, it shall remedy them as soon as possible, and Buyer shall give Haeny the opportunity to do so. After remedy of such deficiencies, an acceptance test in accordance with Clause 10.4 (a “Goods Test”) will be carried out at the request of Buyer or Haeny.
10.4 Subject to Clause 10.3, the execution of a Goods Test as well as the stipulation of the conditions related thereto require a special agreement. In the absence of such an agreement the following shall apply:
- Buyer and Haeny must agree in advance upon a time and location for a Goods Test.
- A report shall be prepared which shall be signed by both Buyer and Haeny or by their representatives. Such report shall either state that the acceptance has taken place, or that it has taken place under reservations, or that Buyer has refused it. In the last two cases, the deficiencies shall be listed individually in the report.
- In case of insignificant deficiencies, in particular those which do not substantially hinder the efficient functioning of the Goods or Services, Buyer shall not be entitled to refuse acceptance of the supplies or services and refuse to sign the report. Haeny shall remedy such deficiencies within a reasonable time.
- In case of significant deviations from the Order or serious deficiencies, Buyer shall give Haeny the opportunity to remedy these within a reasonable time. Thereafter, a further Goods Test shall take place.
If during this second Goods Test, significant deviations from the Order or serious deficiencies appear again, Haeny may, in its sole discretion, repair the Goods or provide a price reduction. If, however, the deviations and deficiencies which appear during the test are of such significance that they cannot be remedied within a reasonable time and provided the Goods cannot be used for their specified purpose, or such use is considerably impaired, then Buyer shall be entitled to refuse acceptance of the defective part or, if partial acceptance is economically not justified, to terminate the Order. In this case, Haeny can only be held liable for reimbursing the sums which have been paid to Haeny for the parts affected by the termination.
10.5 Acceptance shall also be deemed completed:
- if the customer does not participate in the Goods Test despite being requested in advance to do so;
- if the Goods Test cannot be carried out on the date provided for due to reasons beyond Haeny’s control;
- if Buyer refuses the acceptance without being entitled to do so;
- if Buyer refuses to sign the report prepared in accordance with Clause 10.4;
- as soon as Buyer uses the Goods or Services.
10.6 Deficiencies of any kind in Goods or Services shall not entitle Buyer to any rights and claims other than those expressly stipulated in Clauses 10.4 and 11 (warranty, liability for defects).
11 Limited Warranty
11.1 Warranty period
Haeny warrants to Buyer that the Goods will be free from defects in material and workmanship for the periods set forth below:
- For machines and systems:
The warranty period begins on the date that Haeny notifies Buyer that the Goods are ready for shipment (“Shipment Notification Date”), and ends on the earlier of (i) 30 months from the Shipment Notification Date, and (ii) 24 months from the date the Goods are accepted by Buyer in accordance with Section 10.
- For revisions and spare parts:
The warranty period begins on the Shipment Notification Date and ends on the earlier of (i) 18 months from the Shipment Notification Date, and (ii) 12 months from the date the Goods are accepted by Buyer in accordance with Section 10.
The warranty period shall not begin again for any replaced or repaired parts.
The warranty shall expires prematurely if Buyer or a third Party undertakes modifications or repairs or if Buyer, in case of a defect, does not immediately take all appropriate steps to mitigate the damage and give Haeny the possibility to remedy the defect.
11.2 Liability for defects in material, design and workmanship
Haeny shall, in its sole discretion, repair, replace or provide a refund for any parts of the Goods which, before the expiry of the warranty period, are proven to be defective due to bad material, faulty design or poor workmanship. Replaced parts shall become Haeny’s property.
11.3 Exclusions
All deficiencies which cannot be proven to have their origin in bad material, faulty design or poor workmanship, e.g. those resulting from normal wear, improper maintenance, failure to observe the operating instructions, excessive loading, use of any unsuitable material, influence of chemical or electrolytic action, building or installation work not undertaken by Haeny, or resulting from other reasons beyond Haeny’s control are excluded from Haeny’s warranty and liability for defects.
Buyer will bear the costs of access, transport and travelling expenses, accommodation, disassembly and assembly costs as well as any other third-party costs) and transportation of the Goods to Haeny and back to Buyer.
All wear parts and consumables, including, without limitation, shaft seals and cutting systems, are excluded from this limited warranty.
11.5 Supplies and services of subcontractors
For Goods and Services of subcontractors requested by the customer, Haeny assumes the warranty and liability for defects, only to the extent of the subcontractors’ warranty and liability obligations.
11.6 Exclusivity of warranty claims
With respect to any defective material, design or workmanship as well as to any failure to fulfil express warranties, Buyer shall not be entitled to any rights and claims other than those expressly stipulated in Clauses
11.1 to
11.5.
If Buyer reports a defect and no defect is found for which Haeny is liable, Buyer is responsible for compensating Haeny for the work undertaken and other expenses and costs.
EXCEPT FOR THE WARRANTY PROVIDED FOR HEREIN, HAENY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
11.7 Liability for additional obligations
Haeny is only liable for unlawful intent or gross negligence for claims arising out of inadequate advice and the like or out of breach of any additional obligations.
12 Termination of the Order by Haeny
The Order shall be adapted appropriately, if unforeseen events considerably change the economic effect or the content of the Goods or services or considerably affect the activities of Haeny, or if performance subsequently becomes impossible. If such an adaptation is economically not justifiable, Haeny shall be entitled to terminate the Order or the parts affected thereby.
If Haeny wishes to terminate the Order it shall – after having recognized the consequences of the event – immediately inform Buyer; this applies even if an extension of the delivery date has been agreed beforehand. In case of termination of the contract, Haeny shall be entitled to payment of those parts of the Goods and services which have already been carried out. Claims for damages on the part of the customer because of such termination are excluded.
13 Export control
Buyer recognizes that the Goods may be subject to European and/or foreign legal provisions and regulations on export control and are not allowed to be sold, leased or otherwise transferred or used for a purpose other than the agreed without an export or re-export permit of the competent authority. Buyer undertakes to comply with such provisions and regulations and is aware that these may change and that they apply to the Order in the current valid wording.
14 Software
If the Goods and services delivered by Haeny include software, Buyer is granted a non-exclusive right of use of the software together with the delivery item, unless otherwise agreed. Buyer is not entitled to copy (except for archival purposes, trouble- shooting or to replace faulty data carriers) or to edit the software. In particular, Buyer may not disassemble, decompile, decrypt or reverse engineer the software without the prior written consent of Haeny. In case of infringement, Haeny may withdraw the right of use. For third-Party software, the conditions of use of the licensor apply, and the licensor, as well as Haeny, may also assert a claim in the event of infringement.
15 Exclusion of further liability on Haeny’s part
IN NO EVENT SHALL HANEY BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT HAENY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL HAENY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO HAENY FOR THE GOODS SOLD HEREUNDER.
All cases of breach of Order and the relevant consequences as well as all rights and claims on the part of Buyer, irrespective on what ground they are based, are exhaustively covered by these Terms. This exclusion of further liability on Haeny’s part does not apply to unlawful intent or gross negligence on the part of Haeny, but does apply to persons employed or appointed by Haeny to perform any of its obligations.
16 Right of recourse of Haeny
If personal injury or damage to the property of third par- ties occurs through actions or omissions of Buyer or of persons employed or appointed by him to perform any of his obligations, and if a claim is made against Haeny, then the latter shall be entitled to take recourse against Buyer.
17 Returns of Goods
17.1 Haeny may, in its sole discretion, accept returns of accepted Goods. In order to request a return, Buyer shall contact Haeny and request a Return Voucher. Without a Return Voucher no refund can be made. To cover administration and handling, Haeny may reduce any applicable credit by 10 - 50% of the net price. In the event parts or products are returned damaged, Haeny must also charge any expenses incurred to repair such damage. No refunds will be made for parts under $50.00.
There will be no returns accepted for Goods which were especially manufactured or purchased to order.
18 Jurisdiction and applicable law
18.1 This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia without regard to any conflict of law provisions. This Agreement shall not be governed by the United Nations Convention on Contracts for International Sale of Goods, or any similar or subsequent international convention or treaty, in any respect. Any legal action or proceeding with respect to this Agreement shall be brought in the courts of the state of Georgia or of the United States for the Northern District of Georgia, and by execution or delivery of this Agreement, each party hereto irrevocably accepts for itself, generally and unconditionally, the jurisdiction of such courts. Each party irrevocably waives any objection to the jurisdiction of the above referenced courts in any action concerning this Agreement.
