General Terms and Conditions
0.1 The Hossbach Sensor Technologie company, referred to in the following as HST, is a supplier of products and services. In most cases HST is also the developer and manufacturer.
0.2 The term Customer in the following not only refers to the actual customer but also to potential customers, ordering parties and users who enter into a business relationship with HST.
1.1 These General Terms and Conditions of Business, Offer, Delivery and Payment apply for all purchase agreements and all HST business relationships. No other terms and conditions than these, in particular the general purchasing conditions of the customer, shall apply even if not expressly contradicted by HST.
1.2 The Customer shall recognize these General Terms and Conditions of Business, Offer, Delivery and Payment at the latest on receipt of the goods.
1.3 Deviations from these General Terms and Conditions of Business, Offer, Delivery and Payment shall only be valid if recognized expressly in writing by HST. Without this recognition, they shall not be deemed to be agreed and shall therefore not be applicable.
1.4 Should part of these General Terms and Conditions of Business, Offer, Delivery and Payment be invalid, this shall not affect the applicability of the other terms and conditions.
1.5 The Customer agrees to the processing of his data relating to business transactions.
2.1 All quotations, cost estimates, drafts, drawings and calculations shall remain the property of HST and may not be used, reproduced nor made accessible to third parties without prior agreement. They shall be returned or destroyed without delay in the event of non-placement of order.
2.2 In general, all HST quotations are subject to change without notice provided no written agreement has been made regarding a binding quotation.
2.3 The present General Terms and Conditions of Business, Offer, Delivery and Payment are part of any quotation of HST.
2.4 HST is entitled to estimate an advance payment in the case of custom designs and development contracts.
2.5 In the case of deliveries abroad, HST is entitled to deliver following agreed advance payment.
3. Delivery time
3.1 Unless special arrangements have been made in writing in individual cases, delivery deadlines and dates (delivery time) shall be viewed as approximate and are in all cases subject to clarification of all the facts required by HST for fulfillment of the order.
3.2 The delivery time shall be seen as met if the supplied object has left the company before expiry of this period or if readiness to dispatch has been notified.
3.3 If a prospective delivery date is delayed unreasonably for the Customer, he shall have the right to set HST a reasonable final deadline of at least 4 weeks and withdraw fully or partially from the purchase agreement if this final deadline passes without delivery. No more far-reaching claims shall be accepted, including compensation claims for non-fulfillment of contract.
3.4 The prospective delivery time originally set in the written purchase agreement shall be extended in the event of operational disruptions, strikes, lockouts, non-delivery by sub-contractors or other factors over which HST has no influence.
4.1 All contract negotiations between HST and the Customer, telephone agreements or other arrangements, particularly changes to the order, must be set down in writing by both sides and - if they deviate from the originally agreed purchase agreement - require written confirmation of the change.
4.2 Orders issued to HST by the Customer shall not become legally binding until confirmed in writing by HST. The invoice takes the place of the written order confirmation if the order is executed immediately or within a few days.
4.3 HST is not generally obliged to accept an offer to buy, particularly where orders are received in response to a website or trade fair or in response to circulars or price lists.
4.4 Assurance of the characteristics of a product shall only become part of the contract if expressly confirmed in writing. Brochure details shall only be accepted as expressly assured characteristics within the meaning of legislation governing the sale of goods if these are agreed expressly in writing in the individual case.
5. Development contracts
5.1 Development contracts include new developments, partial developments and adaptations as well as custom designs executed by HST at the wishes of the Customer.
5.2 The requirements in terms of development contracts must be made in written form.
5.3 Changes to the characteristics of development contracts must also be made in written form. Generally, changes result in additional expenditure that must be also be agreed in advance in written form.
5.4 The hardware and software products, components or services arising from a development contract shall be handed over subject to a special duty of care on the part of the Customer.
5.5 Claims - particularly in terms of replacement or free modifications - arising after performance of development contracts based on different, new or only subsequently notified conditions of use, requests etc. are excluded.
5.6 The development contract is successfully completed when this has either been confirmed by the Customer or a period of 4 weeks has passed without complaint by the Customer or if a subsequent order has been issued by the Customer for products or services that were the basis of the development contract.
6.1 All prices shall generally be in Euro, excluding packing for delivery ex Fuerth plus the VAT applicable on the date of invoice for deliveries within Germany, as well as any other statutory delivery charges.
7.1 If shipment of the goods has been agreed by HST, this shall be ex works at the risk and expense of the Customer. The Customer shall bear the shipping risk even if HST executes the shipment for the Customer free of charge by means of his own transportation personnel or third parties. In all cases the risk of destruction passes to the Customer with handover to the shipping personnel.
7.2 If, after completion, the goods cannot be sent or taken at the contractually agreed time as a result of circumstances that are not the responsibility of HST, risk passes to the Customer at the time when notification of readiness for shipment is sent to the Customer. The contractor shall inform HST immediately of the delay. Storage costs shall be paid by the Customer.
7.3 Partial deliveries by HST are permitted.
8. Terms of payment
8.1 HST accounts receivable shall become due for payment without deduction 14 days from date of invoice unless otherwise agreed in writing. In addition, where accounts receivable are deferred, they shall become due without deduction immediately if the customer is in default to HST with a payment or if HST become aware of a significant deterioration in his financial situation. If the period of payment is exceeded, standard bank interest shall be charged at a rate of 4% above the relevant discount rate of the German Bundesbank; this shall be without prejudice to any more far-reaching rights.
8.2 Payment with bills of exchange shall not be accepted.
8.3 If a Customer does not meet his payment or other obligations arising from the HST General Terms and Conditions of Business, Offer, Delivery and Payment, or if he stops his payments, or an application for opening bankruptcy proceedings is initiated against his assets or those of his legal representatives, the entire legal debt shall become payable immediately. In this case HST shall be entitled to declare its withdrawal from all contracts and to reclaim previously delivered goods that are still subject to retention of title as well as to demand reimbursement of all costs relating to withdrawal (e.g. retrieval, loss of value etc.).
8.4 In respect of due payments, there shall be no right of withholding payment arising from claims that do not relate to the supplied object itself; offsetting against the outstanding purchase price is only possible in the case of uncontested or legally established claims.
8.5 The Customer shall not be entitled to withhold payments neither to offset against any counterclaims unless these are recognized by HST or legally established.
9. Retention of title
9.1 HST retains the title to the delivered goods until complete payment of the purchase price, including default interest and legal costs.
9.2 Up until transfer of ownership of the goods supplied by HST to the Customer, the Customer may neither pledge them nor assign them to third parties as security. If the goods are distrained or seized, the Customer is obliged to inform HST immediately and shall bear all costs relating to release of the goods. The Customer may sell the goods in normal business operations if he is not in default with HST in respect of fulfillment of his obligations. The risk of destruction, damage or wear and tear during the period of retention of title is borne by the Customer. If the Customer combines the goods with other objects, HST acquires joint ownership of the combined items in proportion to the value of the items combined with the HST goods.
9.3 The Customer hereby assigns for security to HST his claims arising from the passing on of the goods subject to retention of title amounting to the relevant net value of the goods; HST hereby accepts this assignment.
9.4 The right of the customer to sell goods supplied by HST shall end if the Customer is in default with payment or is unable to pay. In this case the Customer can only dispose of the goods subject to retention of title with the written permission of HST.
9.5 In the event of default of payment, uncertainty regarding the financial situation or worsening of the financial situation of the Customer, the Customer shall be obliged to surrender the goods subject to retention of title at the request of HST. The taking back and distraint/seizure of the goods by HST shall only constitute withdrawal from the contract if this is stated expressly in writing. In the event of distraint/seizure or other actions by third parties, the Customer shall inform HST without delay.
9.6 The retention of title and the securities to which HST is entitled shall apply until complete release from any contingent liabilities that HST has entered into in the interests of the Customer.
10. Right of first refusal
10.1 The Customer gives HST the right of first refusal for the stock of HST products in any case of insolvency or inappropriate use.
11. Cancellation of delivery
11.1 If the Customer completely or partially cancels purchase orders and does not fulfill his obligation to take delivery, HST shall be entitled to claim compensation.
11.2 The contractual items already produced at the time of withdrawal from the contract shall be paid for at the full purchase price.
11.3 In respect of items that have not yet been produced, a compensation sum of 60% shall be paid if the cancellation did not take place earlier than 3 days before the planned delivery date.
11.4 In all other cases a compensation sum of 40% of the net delivery value shall be paid.
11.5 If the customer cancels development contracts or custom designs, a compensation sum of 60% of the order value shall be paid to HST. If the cancelled development contracts or custom design are subdivided into performance stages according to the contract, the Customer shall be obliged to make 100% payment for commenced and completed performance stages. In respect of development stages that have not yet started, the Customer shall pay 60%.
11.6 Irrespective of the above, HST retains the right to demand compensation for non-fulfillment of contract if the Customer does not pay for partial deliveries in accordance with contract and to refuse to make remaining deliveries.
12. Warranty and other liability
12.1 The following provisions apply in terms of warranty and other liability of HST resulting from defects in delivery or performance, including incorrect deliveries or services. If the contractual product or service of HST also includes assembly/installation or commissioning or if it is an independent repair order or other type of work/service contract, the following conditions shall also apply for any assembly, installation, commission, repair or other work.
12.2 HST provides a warranty in accordance with the current state of the art. In the case of representations regarding characteristics, HST shall only be liable if this is expressly reclaimed in writing by the Customer. General changes to the design or execution before delivery of an order shall not justify any claims. The same applies for changes that represent an improvement in design or delivery.
12.3 HST accepts no liability for loss or damage as a result of unsuitable or improper use, nor as a result of any incorrect assembly, installation, commissioning, modification or repair not performed by HST, nor for incorrect or negligent treatment and natural wear and tear. The same applies in respect of parts supplied by the Customer.
12.4 At the discretion of HST, the warranty shall cover either repair or replacement of the defective products or part. In individual cases HST reserves the right to issue a credit note for the amount charged to the Customer for the defective product. At the request of HST, faulty products shall be sent cost-free to HST for repair.If the products supplied by HST are repaired or modified without the involvement of HST or if maintenance and/or installation requirements have not been complied with, the warranty and other liability of HST are rendered null and void.
12.5 Only in urgent cases where operational safety or reliability is endangered or in order to avoid disproportionately large loss or damage, the Customer shall have the right - after informing HST - of rectifying the defect at his own cost. These costs shall be recompensed by HST insofar as they would have arisen if HST had undertaken the repair.
12.6 In the case of repair or replacement, HST shall be liable in the same manner as for the original delivery or service up until expiry of the period of limitation applicable for the original delivery or service, and at least for a period of three months from completion of the repair or performance of the replacement delivery or service.
12.7 The Customer is obliged to give HST the opportunity to make repairs after prior consultation. If the product is not repaired nor replaced, the Customer is entitled to withdraw from the contract after the passing of a reasonable final deadline. In all cases of justified complaints, claims over and above the claim for repair or replacement, e.g. compensation for warranty claims or for positive contractual infringement or tortious act or because of impossibility, delay, failure or non-performance of the repair, shall be limited in accordance with Point 12.
12.8 If the supplied item is not usable in accordance with contract as a result of culpable infringement of ancillary contractual obligations - particularly operating and maintenance instructions - HST shall also be liable only to the extent specified in Points 12.4 to 12.7 and 13. In the case of consultations or advice, HST shall only be liable if separate payment was agreed in writing.
12.9 Warranty and other claims expire 12 months after delivery. The making of warranty or other claims shall not affect payment obligations and dates. If the Customer does not fulfill his payment obligations or is in default with them, the above obligations of HST shall be suspended until the payment obligations are met.
12.10 Products and services based on development contracts or that are delivered in the form of Customer-specific designs are excluded from the obligation for replacement.
13. Liability for damages
13.1 Insofar as HST is liable for compensation, this liability is restricted to gross negligence by the organs of the company and executive staff.
14. Prohibition of set-off
14.1 Setting-off against claims that are not uncontested or legally established is not permitted.
15. Drawings and other documents
15.1 HST reserves its rights of ownership and copyright over cost estimates, drawings and other documents provided to the Customer. They may neither be used for purposes other than those stated by HST nor made accessible to third parties.
16.1 All deliveries by HST shall be made subject to export authorization pursuant to German international trade law; it is the responsibility of the Customer to ensure knowledge of the relevant law.
17. Place of jurisdiction
17.1 The place of jurisdiction for all disputes arising from contractual relationships between HST and Customer is Nuremberg/Germany. This also applies for claims arising from cheques as well as for tort claims, third-party notices and "summary procedures" (i.e. entirely reliant on documentary evidence).
17.2 The legal relationships between HST and Customer are subject exclusively to the law of the Federal Republic of Germany.
18.1 Copyright and rights of use and exploitation of the sold products and the services performed remain with HST, irrespective of the contractually agreed delivery to the Customer. The copying of individual delivered parts or systems of HST is not permitted. The license agreements for the supplied software shall apply.
19. Other matters
19.1 If the Customer does not meet his obligations from the purchase agreement, HST may refuse further deliveries without prejudice to the enforcement of its other rights.
19.2 If a provision in these General Terms and Conditions of Business, Offer, Delivery and Payment is legally declared invalid, replacement by a regulation that comes as close as possible to the meaning of the now invalid provision in its economic effect shall be assumed.
19.3 The Customer may not assign his rights to third parties without the prior written permission of HST.
19.4 Where a Customer falls under the personal sphere of protection of the Data Privacy Act, he gives his agreement to the processing of his data insofar as it is required for the purpose of the contract.
19.5 Products of HST or parts thereof may not be used in life-sustaining, medical or military systems without consultation with HST.