General Terms and Conditions (T&C) at Hammelmann GmbH

 
 
 
 

1. General conditions

These General Terms and Conditions are binding for all current and future transactions. Any deviations, including oral agreements, require written confirmation from the supplier before becoming effective. Any contrary terms and conditions held by the purchaser are not binding for the supplier. This also applies in the event of an objection not being explicitly made.
 
 

2. Quotations

All quotations are non-binding and are subject to change without notice. The supplier reserves the right to the prior sale of offered goods and services. All technical data contained in the quotation, e.g. illustrations, drawings, weights and dimensions, are to be considered approximate unless otherwise stated. All property rights and copyrights for the quotation, drawings and all other documents remain the property of the supplier. These documents must not be made available to third parties. The purchaser is obliged to only make plans that are designated as confidential by the supplier available to third parties with the consent of the supplier. The supplier reserves the right to request the return of said documentation at any time and without restriction.

 
 

3. Scope of delivery

The scope of delivery is defined by that which is written in the supplier’s order confirmation. This also applies to other services (see point 6). Any partial supply of goods and services cannot be rejected. The purchaser is obliged to pay intermediate invoices received for the partial supply of goods and services in accordance with the terms of payment (see point 7). The installation requirements of the supplier are a full and integral part of these General Terms and Conditions.

 
 

4. Prices

All prices are ex works Oelde and are exclusive of legal sales tax, packing, loading, freight, customs duties and insurance. Orders where fixed prices are not expressly agreed upon are invoiced at the list prices effective on the date of delivery. The supplier retains the right to adjust the price should there be a significant change in material, labor, salary and other related costs affecting prices. Any modifications requested afterwards by the purchaser will also result in price adjustments. In case of commissioned work and repair work, no remuneration is made for waste or scrap material.

 
 

5. Delivery dates

All delivery dates quoted are approximate and given without obligation. The period quoted begins two working days after the clarification of all design/specification data, receipt of releases, approvals etc. and the crediting to the supplier’s account of any agreed payments. The delivery date is deemed to be that date upon which the supplier indicates readiness for shipment or dispatch of the goods. As a precondition of the supplier meeting the delivery date, the purchaser must supply any necessary documents, approvals etc. and comply with any agreed terms and conditions of payment – including those appertaining to previous transactions. A further requirement is the correct and punctual delivery by sub-suppliers. In the case of force majeure and other unforeseeable, exceptional and other circumstances not caused by negligence, such as material procurement difficulties, operational breakdowns, strikes, lockouts, defects in transportation, interventions by public authorities, power supply difficulties, natural disasters, etc., the delivery period shall be extended in reasonable scope if the supplier is thereby hindered from the fulfillment of their obligation. This is also the case if sub-suppliers are affected by such circumstances. If in the above circumstances the delivery or service becomes impossible or unreasonable, the supplier shall be exempted from their delivery obligations. The purchaser will be informed immediately upon commencement and ending of any such circumstances. In the case of an extended delivery date or if the supplier is released from their delivery obligations, the purchaser shall not be entitled to make financial claims against the supplier.

 
 

6. Purchaser’s obligation resulting from provision of consulting, planning, testing and troubleshooting services, etc.

In the event that an order is not made following rendering of the above-mentioned services or that only these services are required, billing is made according to the service fee regulations for engineers (HOAI). In individual cases, the fee constitutes 14 % of the project value. In the case of an order being received, a portion of the fees can be deducted from the value of the order. The above-mentioned services remain the intellectual property of Hammelmann GmbH and may only be made available to third parties with the express written consent of Hammelmann GmbH. Failure to observe this condition entitles Hammelmann GmbH to claim unlimited compensation.
 
 

7. Terms of payment

Unless otherwise agreed upon, one-third of the purchase price is due on conclusion of the contract and a further one-third after the supplier notifies the purchaser that the delivered item, or essential parts of it, is ready for delivery. Final payment is due on delivery. Payment shall be made within 30 days of the date of the invoice. Irrespective of the payment method used, payment is only considered as being complete when the full invoice sum is irrevocably credited to the account of the supplier. If the purchaser fails to pay by the stipulated date, the supplier shall be entitled to charge default interest from the day on which payment was due. The rate of interest shall be agreed upon between the parties. If the parties fail to agree on the rate of interest, this shall be 8 percentage points above the rate of the main refinancing facility of the European Central Bank in force on the due date of payment. In case of late payment, the supplier may, after having notified the purchaser in writing, suspend their performance of the contract until they receive payment. If the purchaser has not paid the amount due within three months, the supplier shall be entitled to terminate the contract in writing to the purchaser and to claim compensation for losses incurred. The compensation sum shall not exceed the agreed purchase price.
 
 

8. Retention of title

The delivered goods shall remain the property of the supplier until full payment of the purchase price has been made. For goods the purchaser obtains within the scope of their commercial activity, the retention of title at the supplier applies until all receivables between the supplier and purchaser are settled in full – including future receivables from contracts placed at the same time or afterwards. The suspension of individual receivables in a current invoice, balancing of receivables and their acknowledgment shall not affect the retention of title. Receivables are only deemed as being paid upon receipt of the equivalent value by the supplier or access to the equivalent value by the supplier. If important contractual obligations are violated – in particular arrears in payment – the supplier is entitled to take back the goods and the purchaser is obliged to provide them. The supplier is entitled to collect the retained goods from the purchaser or to have them picked up, either personally or through a third party. The return of the retained goods to the supplier does not necessarily represent a withdrawal from the contract. If the retained goods are returned, the supplier is entitled to sell these by private sale at the best available price at the purchaser’s expense and to offset the proceeds against receivables that are still open, or to take the goods over at the value that the returned goods still have for the supplier. The purchaser is obliged to insure the retained goods sufficiently against all risks, particularly fire, burglary, theft and water damage. The insurance claims shall already be ceded to Hammelmann GmbH in the amount of the value of the goods. Hammelmann GmbH hereby accepts the ceding of these rights. Pledges, assignment as security or sale of the goods by the purchaser after payments have been suspended is forbidden.

The purchaser shall already cede all demands including all ancillary rights from the further sale of the retained goods to Hammelmann GmbH. Hammelmann GmbH hereby accepts the ceding of these rights.

At the supplier’s request, the purchaser shall provide details of the ceded demands and their debtors arising from the further sale. Moreover, all necessary information on the collection must be made, the respective documents handed over, and the debtors informed about the ceding of rights. If goods obtained from the supplier are sold on with third-party goods or items, then the demands of the purchaser against their debtors is considered as being ceded to Hammelmann GmbH to the value of the list price agreed upon between Hammelmann GmbH and the purchaser. The supplier shall not be subject to liabilities resulting from any processing or use of the retained goods by the purchaser. If the retained goods are processed, combined or mixed with third-party goods or objects, the supplier shall be entitled to joint ownership in the new products or equipment at a ratio equivalent to the value of the retained goods in relation to the value of the remaining processed goods at the time of the respective processing, combination or mixing. If the retained goods are resold together with other goods – whether after processing, combination or mixing or without – the prior ceding of rights as agreed above applies to the value of the retained goods. In the event of debt enforcement measures by third parties against the retained goods or the previously ceded demands, the purchaser shall notify the supplier immediately and hand over any documents required for intervention. If the value of the security rights the supplier is entitled to according to the provisions above should exceed the claims they are entitled to, the supplier can choose to either release a corresponding part of the security rights or reimburse the purchaser accordingly when the retained goods are sold.

 
 

9. Warranty

Liability applies to faultless materials, proper construction and processing, plus proper consultation made in good faith. The warranty periods begin from the day of shipment and are as follows:

  • 24 months for one-shift operations
  • 12 months for two-shift operations
  • 6 months for three-shift operations

but no more than 2000 operating hours, providing that all operating and maintenance instructions are observed in full and general operations are carried out by trained specialist personnel. The purchaser is obliged to immediately check the received goods for defects of any kind and all other features guaranteed by the supplier. Apparent defects must be reported in writing to the supplier within one week. The supplier must be notified of hidden defects as soon as they are discovered. The supplier must be given an opportunity to identify and appraise the defects on site. Goods or parts claimed under the warranty must be returned free of charge if requested by the supplier.

The purchaser is responsible for the correct storage of disputed goods at their own expense. If the complaints are justified, the supplier is responsible for having the defective goods reworked, a replacement sent or providing compensation for the loss in value as they see fit. The supplier assumes ownership of the replaced parts. The purchaser is obliged to allow a suitable and appropriate time to enable the supplier to eliminate the defects. Should this suitable and appropriate time be denied, the supplier is released from their obligations to eliminate the defects. If the supplier has allowed a reasonable deadline to pass without providing a replacement or correcting the defect, the purchaser can request a cancellation of the contract (redhibitory action) or a reduction in price (abatement). Liability for defects does not apply to natural wear or to damages resulting from the following, provided the supplier is not at fault:

Inappropriate and improper usage, incorrect assembly/commissioning by the purchaser or third parties, incorrect or negligent handling, overloading, use of unsuitable operating equipment, use of third-party spare parts and incorrect replacement materials, chemical and electrochemical influences.

Should the purchaser or third party carry out improper modifications or maintenance work, all liability for resulting faults shall be excluded. In case of components from sub-suppliers, the liability of the supplier shall be limited to ceding of the claims against the sub-supplier. If requested by the purchaser, the supplier is obliged to provide the name and address of the corresponding sub-supplier. If work is carried out according to the designs submitted by the purchaser, the supplier is not obliged to check that the documentation provided is correct. Other claims by the purchaser, in particular claims for damage not relating to the actual delivered item itself, are excluded, unless they are due to willful intent or gross negligence.

 
 

10. General limitation of liability

Liability of the supplier is based exclusively on the agreements detailed in the previous section. Compensation claims arising from impossibility of delivery or service due to breaches of contractual secondary obligations, from negligence when entering into the contract and unauthorized action are excluded, unless they are due to willful intent or negligence on the part of the supplier or their vicarious agents. All warranty claims by the purchaser shall lapse 24 months after receipt of the goods or service, at the latest.
 
 

11. Shipping, packing and transfer of risk

The risk is transferred to the purchaser after the goods have been handed over to the carrier, at the latest when they leave the company premises. If the goods are ready for dispatch and the dispatch or acceptance is delayed on grounds for which the supplier is not responsible, the risk is transferred to the purchaser as soon as they have been notified of readiness for dispatch. Should goods that have been declared ready for dispatch not be called off, the supplier is entitled to either send the goods out or to place them in storage at the expense of the purchaser.

If shipping or delivery are delayed on the request of the purchaser, the supplier is entitled to charge a storage charge of 0.5 % of the invoice amount for each commencing month, starting one month after readiness for dispatch was declared. The total storage charge may not exceed 5 % of the value of the goods, unless higher costs can be proven. The supplier is entitled but not obliged to insure the shipment against transport damages on behalf of the purchaser and at the purchaser’s expense. Collection times must be arranged in advance; no liability is accepted for waiting times. Packing materials are calculated at cost and are not returned.
 
 

12. Fulfillment and place of jurisdiction

The place of fulfillment and place of jurisdiction arise from the applicable law. The place of fulfillment for delivery and payment is Oelde. The laws of the Federal Republic of Germany apply. Furthermore, the UN Convention (CISG, “Vienna Purchasing Convention”) may be applied. If this is not the intention of the parties, a stipulation to the contrary must be expressly agreed upon. For all disputes arising out of the contractual agreement, suits must be filed at the court of competent jurisdiction for the company headquarters of Hammelmann GmbH.
 
 

13. Binding nature of the contract

Should one of the stipulations in these General Terms and Conditions or other contractual agreements be or become ineffective, the validity of the remaining contract shall remain unaffected. The contractual partners are obliged to replace the ineffective stipulation with one that is legally permissible and is close as possible to the intended purpose.
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