General Terms and Conditions (T&C) at Hammelmann Corporation
1. General conditions
The terms and conditions of business set down herein are binding for all current and future transactions between Hammelmann Corporation ("Hammelmann" or "supplier") and the purchaser of the goods sold and services provided by Hammelmann pursuant to the proposal and/or purchase order. Any deviations, including oral agreements, require written confirmation from the supplier before becoming effective. Any contrary terms of business held by the purchaser are not binding on the supplier, whether the purchaser is notified or not.
Unless otherwise stated in the supplier's proposal, all quotations for goods and services are valid for 90 days from the date of the proposal, subject to price changes from suppliers vendors. All technical data contained in the quotation, e.g. illustrations, drawings, weights and dimensions are to be considered approximate unless otherwise stated. All documentation and the information contained therein relating to the goods sold and the quotation remain the property and proprietary information of the supplier. Said documentation and information must be held in the strictest confidence and may only be used in connection with purchaser's use and operation of the goods sold by supplier. Passing on, reproducing, copying, transmitting in whole or in part to third parties in any form, including verbally, electronically, optically etc. is only allowed if the written permission of supplier has been obtained.
3. Scope of delivery
The scope of delivery is defined by that which is written in the supplier's confirmation of order. This also applies to services (see Section 6). Any partial supply of goods and services cannot be rejected and the purchaser is obliged to make settlement against intermediate invoices received for partial supply of goods and services in accordance with the supplier's terms of payment (see Section 7). Any installation, operation and maintenance information contained within the scope of delivery become a part of these General Terms of Business.
All prices are ex works Dayton, Ohio and are exclusive of sales tax, packing, loading, freight, duties and insurance. Orders which are not subject to fixed prices are invoiced at the list price effective on the date of delivery. The supplier retains the right to adjust the price should there be an increase in material, labor and other related costs affecting prices. Any modifications requested by the purchaser after receipt of confirmation of order are subject to the approval of supplier and may also result in price and/or delivery adjustments. In the case of servicing and repair contracts the supplier will not be required to remit or credit the value of waste or scrap material. Any cancellation of a order, except a cancellation by supplier or purchaser as provided in Section 5, shall require purchaser to promptly pay to supplier amounts due under the payment schedule through the cancellation date and any cancellation fee set forth in supplier's proposal.
5. Delivery dates
All delivery dates quoted are approximate and given without obligation. The period quoted begins two complete working days after the acceptance of all design/specification data, receipt of releases, approvals etc. and the payment to the supplier of any agreed advance payment(s). Actual delivery date is deemed to be that date upon which the supplier notifies or advises the purchaser of shipment. As a precondition of the supplier meeting the delivery date, the purchaser must supply any necessary data, approvals etc. and comply with any agreed terms and conditions of payment including those appertaining to previous transactions. Delays caused by the purchaser, supplier's subcontractors, Acts of God and other unforeseen and exceptional circumstances, including but not limited to acts of war or terrorism, lockouts, strikes, natural disasters, administrative intervention, failure of power supplies, lack of freight facilities, material shortages and operational breakdowns allow the supplier an appropriate extension of time to effect delivery. This is also the case if the supplier's subcontractors are affected by such circumstances. In the event that such circumstances prevent delivery entirely, the supplier may cancel the order and shall have no obligation to purchase for such cancellation. The purchaser will be informed upon commencement and ending of any such circumstances and if delivery is not effected within a suitable period of time, the purchaser may cancel the order, unless the delay was caused by the purchaser. In the case of an extended delivery date or if the order is cancelled by supplier or purchaser pursuant to this Section, the purchaser shall not be entitled to make financial claim against the supplier.
6. Purchaser’s obligation resulting from provision of consulting, planning, testing and troubleshooting services, etc.
Unless the proposal otherwise provides, if supplier provides consulting, planning, testing, design and/or other services to purchaser, such services shall not be considered works for hire and supplier retains all ownership and proprietary rights concerning the specifications and other information created, provided and/or disclosed to purchaser as a result of supplier's services. Any information, in any form, imparted by the supplier to the purchaser during the provision of the above mentioned services remains the property of supplier and shall not be used, appropriated or disclosed, in whole or in part, by any means without the written permission of the supplier.
7. Terms of payment
Unless otherwise agreed, the purchase price shall be paid one third at the acceptance of the order and one third when the supplier notifies the purchaser that the product, or the essential part of it, is ready for delivery. Final payment shall be made when the product is delivered. Unless otherwise stated in the proposal or approved purchase order, payment shall be made within 30 days of the date of the invoice. Whatever the means of payment used, payment shall not be deemed to have been made until received by supplier. If the purchaser fails to pay by the stipulated date, the supplier shall be entitled to interest from the day on which payment was due. The rate of interest shall be as agreed between the parties. If the parties fail to agree on the rate of interest, it shall be one percent (1%) per month. In case of late payment the supplier may, after having notified the purchaser in writing, suspend supplier's performance of the contract until supplier receives payment. If the purchaser has not paid any progress or installment payment within fifteen days of the due date, the supplier shall be entitled to terminate the contract by notice in writing to the purchaser and purchaser shall be required to pay any cancellation fee provided in the proposal. If no cancellation fee is provided, supplier shall be entitled to claim compensation for the loss supplier has incurred. The compensation shall not exceed the agreed purchase price.
8. Retention of title
The products shall remain the property of the supplier until paid for in full to the extent that such retention of title is valid under the applicable law. The purchaser shall at the request of the supplier assist him in taking any measures necessary to the product in the country concerned. The retention of title shall not affect the passing of risk under Section 11.
The supplier's liability is limited to defective materials, poor workmanship, inadequate design and misrepresentation of technical data. The warranty period is 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. Purchaser must give written notice to supplier of any claimed defect prior to the expiration of the warranty period. Supplier's warranty is contingent upon all operating and maintenance instructions being observed and general operations being carried out by trained and specialized personnel. The purchaser is obligated to immediately check the received goods for defects of any kind. The supplier must be informed in writing of any obvious defects within 90 days after delivery. The supplier must be notified of hidden defects as soon as they are discovered. The supplier must be given an opportunity to inspect any goods for which a warranty claim is made on site. Goods or parts claimed under the guarantee must be returned free of charge if requested by supplier. The purchaser is obligated to stock parts properly at purchaser's own cost. If a warranty claim is timely made and justified, the supplier may choose either to repair, remachine or replace the defective parts. Returned parts become the property of the supplier. The purchaser is obligated to allow a reasonable and appropriate time to enable the supplier to effect repairs or replacement. Should this reasonable and appropriate time be denied, the supplier is released from supplier's warranty obligations. If replacement or repair has not been effected within a reasonable time after notice to supplier and provided purchaser has provided supplier with access to the claimed defective products or goods, purchaser is entitled to cancel the contract or request a price reduction. Supplier's warranty does not extend to wearing parts, normal wear or to any defects which may result from any of the following: Unsuitable or improper use, incorrect assembly or commissioning by the purchaser or third parties, incorrect or negligent treatment, excessive stress, unsuitable operation methods, unapproved replacement parts and incorrect replacement materials, chemical and electrochemical influences as far as the same have not been caused by supplier. The supplier is not liable for any improper modifications and repair works and their consequences performed through purchaser or third parties. As far as parts from subsuppliers are concerned, supplier's liability is limited only to the sub-supplier's liability under their terms and conditions of business. If requested by the purchaser, the supplier is obliged to provide the name and address of a sub-supplier. If work is carried out in accordance to the purchaser's design features, the supplier is not obligated to check the correctness of the data provided by purchaser or for any inaccuracies. THE WARRANTIES PROVIDED IN THE OBLIGATIONS AND LIABILITIES OF SUPPLIER HEREUNDER, AND THE RIGHTS AND REMEDIES OF PURCHASER HEREUNDER ARE EXCLUSIVE IN SUBSTITUTION FOR, AND PURCHASER HEREBY WAIVES ALL OTHER WARRANTIES, GUARANTEES, OBLIGATIONS, CLAIMS FOR LIABILITIES, RIGHTS AND REMEDIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY FOR MERCHANTABILITY AND FITNESS FOR PURPOSE.
10. General limitation liability
Supplier's liability for defective goods is limited to Section 9. Supplier's liability for any other claims of purchaser shall not exceed the purchase price of the goods and/or services provided under the proposal or approved purchase order. SUPPLIER SHALL IN NO EVENT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, RESULTING FROM ANY CAUSE, EVEN IF SUPPLIER SHALL HAVE BEEN ADVISED OF THE POSSIBILITY SUCH DAMAGES COULD BE INCURRED BY PURCHASER OR A THIRD PARTY.
11. Shipping, packing and passing of risk
The risk of loss to goods sold to purchaser is transferred to the purchaser after the goods purchased have been delivered to the carrier. If goods ready for dispatch are not called for, supplier is entitled to dispatch the goods either according to its choice or store them at the purchaser's cost. If shipment or consignment is delayed upon purchaser's request, supplier is entitled to charge storage costs of 0.5 % of invoice value for each commencing month, starting one month after notification of readiness for dispatch. Storage costs are limited to 5 % of goods value unless higher costs have been incurred. Supplier, at its option, but without obligation, reserves the right to insure the goods against damage in transit in the purchaser's name and invoice the purchaser for insurance costs incurred. Packing is charged at cost and cannot be returned.
12. Restriction regarding use
Purchaser covenants, represents, and warrants that neither purchaser nor any third party shall use or resell or otherwise dispose of for use, any equipment or part thereof, or spare parts in connection with any activity or process involving nuclear fission or fusion or any use of handling of any source, special or nuclear or by-product materials, as those materials are defined in the U.S. Atomic Energy Act of 1954 (as amended). without supplier's written consent: and until such time as purchaser or such third party, at no expense to supplier, shall have arranged for insurance coverage, indemnities and waivers of liability, recourse and subrogation, all acceptable to supplier, and all fully adequate in the opinion of supplier, to protect supplier (and its subcontractors and suppliers) against liability of any kind, whether in contract, tort, strict liability, or otherwise. Without limiting supplier's rights and remedies, purchaser's failure to comply with any provisions of this Clause 12. here of, shall be cause for supplier to cancel the order, without supplier being liable to purchaser, and supplier may pursue any remedies provided at law or in equity.
13. Safety devices
Notwithstanding the Terms and Conditions, the goods and products are provided with only those safety devices to the best of supplier's understanding of OSHA and all other laws, statutes, ordinances, regulations and other legal requirements (collectively "Legal Requirements"). It is purchaser's responsibility to furnish required and/or appropriate safety guards and devices, protective clothing and training for purchaser's employees and contractors in compliance with Legal Requirements, as well as any other safety devices, clothing and training desired by purchaser. Purchaser agrees to indemnify, defend and hold supplier harmless from any and all claims for death, personal injury, and property damage caused in whole or in part by purchaser's failure to procure, install any required and/or appropriate safety guards and devices on the goods and/or failure to provide required or appropriate clothing and/or training.
Place of jurisdiction and local venue depend upon the applicable law to be observed. Place of jurisdiction for service and payment is Dayton, Ohio. Applicable is the law of State of Ohio. Any disputes arising from the contract have to be submitted to the court having jurisdiction over the place where the headquarters of supplier is situated and purchase consents to personal jurisdiction and venue.
15. Liability of contract
If one of the conditions of the general terms of business or of the other contractual agreements is or becomes no longer applicable, validity of the contract remains unaffected. The contract partners are obliged to replace the invalid term by a legally permissible arrangement which comes closest to the purpose aimed at.
16. Code of ethics
Purchaser agrees to act consistently with the Hammelmann's Code of Ethics, available at Hammelmann's website www.hammelmann.com/us/company/policy.php, and adhere to the principles of the Code of Ethics in connection with Purchaser's performance of Purchaser's obligations to and transactions with Hammelmann.