General Terms and Conditions of Export
Status: December 2017
I. Area of Application
- These General Terms and Conditions of Export (GTCE) shall apply to all business relationships between hewitech GmbH & Co. KG (“hewitech”) and the purchaser of the respective supplies and/or services (“Customer”).
- These GTCE shall apply particularly to contracts between hewitech and the Customer for the sale and/or supply of movable goods (“Goods”) regardless of whether hewitech has manufactured the Goods itself or has procured the Goods from other suppliers, as well as for any other services which hewitech shall provide to the Customer. Unless otherwise agreed, the GTCE in effect at the time the Customer placed its order or the most recent version of the GTCE of which the Customer has been notified in writing or text (e.g. letter, e-mail, fax) shall apply as a master agreement between hewitech and the Customer governing any and all similar contracts made in the future, regardless of whether hewitech has expressly referenced these GTCE.
- These GTCE shall apply exclusively. Any terms or conditions of the Customer which deviate, contradict or supplement the terms or conditions herein shall only become part of this agreement to the extent that hewitech has expressly agreed to them. These approval requirements shall also apply when hewitech provides Goods and services to the Customer without reservation in the knowledge of deviating, contrary or supplemental customer conditions.
- Any legally relevant declarations and/or notifications made by the Customer to hewitech which are required under the terms of the GTCE (e.g. setting deadlines, notifications of defects, withdrawal or reduction), shall be in writing or text (e.g. letter, e-mail, fax) in order to be valid. Legal formalities and other matters of proof, particularly in questions of doubt as to the declarer’s authority, shall remain unchanged.
- References to the validity of statutory regulations shall only have clarifying significance. Therefore, the statutory regulations apply without such clarification insofar as they are not directly modified or explicitly excluded in these GTCE.
II. Conclusion of the Contract
- Technical documentation and product/service descriptions made in catalogues, fact sheets, samples or in any other document pertaining to the offer provided – also in an electronic form – to the Customer, shall only be binding upon hewitech if so expressly stated.
- hewitech reserves all property rights and copyrights to all illustrations, drawings, calculations, quotes, samples and any other information, tangible or intangible, including those in electronic form that are made available to the Customer. This information may only be made available to third parties with the prior approval of hewitech in written or text form (e.g. letter, e-mail, or fax) and shall be returned to hewitech immediately upon request or in the event a contract has not been concluded.
- Any assignment of rights and obligations of the Customer under the contract and/or these GTCE requires the prior approval of hewitech.
III. Foreign Trade Law
- hewitech may refuse to fulfil its obligations insofar as the fulfilment is prohibited or impaired by applicable national or international foreign trade law, especially export control and/or customs regulations, including embargos (“Applicable Foreign Trade Law”). The Customer shall support hewitech to obtain all information and documents necessary to abide by the Applicable Foreign Trade Law which have been respectively requested by authorities in that regard. Such obligations may, in particular, include information about the end customer, the destination and the intended use of the contractual supplies and/or services, as well as any existing export control restrictions.
- In case of any delay in the fulfilment of contractual obligations caused by licensing requirements, confirmations and/or corresponding procedures by the authorities with regard to Applicable Foreign Trade Law, the time of performance of such contractual obligations shall be extended accordingly.
- If Applicable Foreign Trade Law requires a license or a confirmation by the authorities with regard to the performance of hewitech’s contractual obligations and such license/confirmation is (a) denied or (b) not issued by the competent authority within a period of eight (8) months from the filing of the application, hewitech may declare the avoidance of contract or extraordinarily terminate the contract or parts of the contract without notice. However, hewitech is not entitled to exercise this right if hewitech is solely or predominantly responsible for the circumstances leading to the denial or delay. hewitech may also declare the avoidance of the contract or extraordinarily terminate the whole contract or parts of the contract without notice insofar as the fulfilment of its contractual obligations infringes Applicable Foreign Trade Law for any other reason.
- If only a part of the obligation is affected by reasons mentioned above, hewitech may declare avoidance of the entire contract if hewitech has no interest in partial performance.
- If the Customer delivers to a third party any Goods delivered by hewitech or the results of any works and/or services performed by hewitech, the Customer warrants to abide by the Applicable Foreign Trade Law. Furthermore, the Customer shall comply with the (re-)export control regulations of the Federal Republic of Germany, of the European Union and of the United States of America.
- Without prejudice to any further limitation of liability elsewhere, claims of damages by the Customer because of prohibitions or impairments based on Applicable Foreign Trade Law shall be excluded insofar as such restrictions have not been negligently caused by hewitech.
- The Customer shall indemnify and hold harmless hewitech from and against any and all liability, claims, proceedings, actions, fines, losses, costs, expenses and damages arising out of, connected with or resulting from the Customer’s infringing (by act or omission) upon Applicable Foreign Trade Law requirements. Such costs and expenses include, but are not limited to (a) investigation expenses, (b) fines imposed by the authorities and (c) fees for legal advice sought because of the infringement. This shall not apply insofar as the Customer has not acted negligently when infringing upon the Applicable Foreign Trade Law.
IV. Prices and Terms of Payment
- Unless otherwise agreed, all prices shall be in Euro. The prices at the time of conclusion of the contract shall apply ex warehouse (EXW in accordance with Incoterms 2010, as amended) plus the cost of packaging and value added tax (VAT) at the applicable rate.
- Any deduction of discount requires a separate agreement in written or text form (e.g. letter, e-mail, fax).
- Unless otherwise agreed, the purchase price shall be due for payment within 30 days from the date of the invoice. At the end of the payment period, the Customer shall be in default without any additional notification. If the Customer is a merchant, during the period of default, interest shall be charged at the applicable statutory default interest rate. hewitech reserves the right to claim damages for default.
- In cases of the delivery of supplies outside the European Union, hewitech may request an irrevocable letter of credit from the Customer in favour of hewitech, which has been confirmed by a bank having its registered offices within the European Union. hewitech is entitled to suspend performance of its obligations under the GTCE until the Customer has provided hewitech with the aforementioned letter of credit.
- In cases of legally permitted or contractually agreed upon advance or installment payments, hewitech has the right to withdraw from the contract or to request from the Customer payment of the total unpaid purchase price including any accrued interests for delay, if the Customer
- has fallen behind with advance or installment payment for two consecutive fixed payment dates or
- has fallen behind, within a period of time that goes beyond two fixed payment dates, with advance or installment payments equivalent to or exceeding the amount due for two fixed payment dates.
- The Customer may only set off claims or exercise rights of retention to the extent that its claim is undisputed or final judgment has been rendered for it.
V. Deadlines for Supplies and Services; Delay
- Binding deadlines for supplies or services shall be determined by hewitech at the time of the acceptance of the order or expressly confirmed in writing by hewitech.
- Insofar as hewitech cannot observe binding delivery deadlines for reasons for which hewitech is not responsible (“Non-availability of the Service”), hewitech shall inform the Customer hereof immediately and at the same time, inform the Customer of the expected, new delivery deadline. If the service is still not available within the new delivery deadline, hewitech shall be entitled to withdraw from the contract in full or in part; hewitech shall reimburse the Customer immediately for any already provided consideration. A case of Non-availability of the Service, within the meaning of this clause is, in particular, the non-timely self-delivery of components to hewitech from the sub-suppliers if (i) hewitech has concluded a congruent covering transaction; or (ii) neither hewitech nor its sub-supplier are at default; or (iii) hewitech is under no obligation to place orders with sub-suppliers.
- The occurrence of hewitech’s delay in delivery is determined according to the statutory regulations.
- In the event that hewitech is in delay, then the Customer shall be entitled to demand lump-sum compensation for the damages incurred by it as a result of such delay (“Liquidated Damages”). The Liquidated Damages shall be 0.5% of the net contract price of the Goods or services delayed for every full calendar week of delay. However, Liquidated Damages shall not exceed 5% of the net contract price of the Goods or services delayed. hewitech reserves the right to prove that there was no, or only limited, loss or damage incurred by the Customer. The Customer shall forfeit its right to Liquidated Damages if it has not lodged a claim in writing for such damages within two weeks after the time when delivery should have taken place.
- Liquidated Damages pursuant to para. 4 herein above shall become due at the Customer’s demand in writing but not before delivery has been completed or the contract is terminated pursuant to para. 6 herein below.
- If the delay in delivery leads to the Customer being entitled to the maximum Liquidated Damages under para. 4 herein above and if the Goods and/or services have still not been delivered, the Customer may demand delivery within a final reasonable period which shall not be less than one week (“Final Delivery Period”). The Final Delivery Period must be set in writing. If hewitech does not deliver within the Final Delivery Period and if hewitech is responsible for such default, the Customer shall be entitled to withdraw from such part of the contract for which hewitech is in default (partial withdrawal from the contract).The Customer may claim reimbursement of any consideration paid for the terminated part of the contract.
- Payment of Liquidated Damages and (partial) withdrawal from the contract pursuant to this Sec V. shall be the only remedies available to the Customer with respect to delay in hewitech’s contractual performance. No other rights or remedies against hewitech based on such delay shall be allowed except where hewitech has acted through gross negligence or wilful misconduct.
VI. Delivery, Passing of Risk
- The delivery is carried out ex warehouse (EXW pursuant to Incoterms 2010, as amended) which is also the place of performance and the place of any subsequent performance, as the case may be. At the request and costs of the Customer, the Goods will be sent to another place of destination (contract of sale involving the transport of goods). Insofar as not otherwise agreed, hewitech is entitled to determine the method of shipment (in particular transport company, shipment route, and packaging).
- The risk of accidental loss and accidental deterioration of the Goods shall pass to the Customer no later than when the Goods are handed over. With a contract of sale involving the transport of goods, the risk of accidental loss and accidental deterioration of the Goods and the risk of delay shall shift with the delivery of the Goods to the carrier, the freight forwarder or the other person or institution determined to carry out the shipment of the Goods.
- If the Customer is in default of acceptance, if it fails to provide an act of assistance or if hewitech’s delivery is delayed for any other reasons for which the Customer is responsible, then hewitech is entitled to request compensation for the resulting damages including additional expenses (e.g. storage costs). For this, hewitech shall charge a lump-sum compensation in the amount of 75 Euro per calendar day, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification that the Goods are ready for dispatch. The proof of higher damages and hewitech statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; the flat rate is however to be offset against further monetary claims. The Customer reserves the right to prove that hewitech did not suffer any damages or that the amount of damages was substantially less than the aforementioned lump-sum compensation.
- If the Goods are ready for dispatch and if delivery or acceptance of the Goods is delayed as a result of circumstances for which hewitech is not responsible, the risk of accidental loss and accidental deterioration of the Goods shall pass to the Customer with the receipt of the notification that the Goods are ready for dispatch.
- If dispatch or delivery of the Goods are delayed at the request of the Customer by more than one (1) month upon notification that the Goods are ready for dispatch, hewitech is entitled to claim compensation for the damage resulting thereof including any additional expenditures (e. g. storage costs). For this hewitech shall charge a lump-sum compensation in the amount of 0.5% of the invoiced amount per commenced calendar week, up to a maximum of 5% of the invoiced amount. The Customer reserves the right to prove that hewitech did not suffer any damages or that the amount of damages was substantially less than the aforementioned lump-sum compensation.
VII. Acceptance, Acceptance Tests, Delay in Acceptance
- If supplies or services provided by hewitech are subject to acceptance, such acceptance shall be deemed to be given if, and to the extent
- after delivery, the Goods supplied by hewitech have been sold to or made available for use by any third party;
- the Goods supplied by hewitech have been processed, mixed or combined with other items with the Customer’s consent,
- the Goods supplied by hewitech are, beyond trials or tests, used by the Customer or by any third party with the agreement of the Customer or
- the Goods supplied by hewitech to the Customer or any related services are accepted by a customer of the Customer (so called “end-customer”).
- Acceptance tests explicitly provided for in the contract shall, unless otherwise agreed, be carried out at the place of manufacture during normal working hours. If the contract does not specify the technical requirements, acceptance tests shall be carried out in accordance with standard practice in the extrusion and injection plastic molding industry.
- hewitech shall notify the Customer in writing of any impending acceptance test with sufficient time in advance to enable the Customer to attend the acceptance test. Any acceptance test to which the Customer does not attend shall be deemed accepted to be accurate and correct. hewitech shall provide a written acceptance test report to the Customer.
- If any acceptance test shows the tested Goods not to be in compliance with the specifications set forth in the contract, hewitech shall take out any rectification measures to ensure that the Goods complies with said specifications. At the Customer’s request, a repeated acceptance test shall be carried out, unless the non-conformity of the Goods was of minor importance.
- All costs for acceptance tests carried out at the place of manufacture shall be borne by hewitech. The Customer shall bear all costs for travel and accommodation incurred by it as a result of employees and/or representatives of the Customer attending any acceptance test.
VIII. Retention of Title; Securities
- hewitech holds title to the sold Goods until the full payment of all of current and future claims from the purchase contract and from any current business relationship between hewitech and the Customer (“Secured Claims”).
- The Goods subject to retention of title may neither be pledged to third parties nor assigned as collateral before the full payment of the Secured Claims. The Customer must inform hewitech immediately in writing if an application for the initiation of insolvency proceedings is filed or insofar as there are any claims of third parties to the Goods which belong to hewitech (e.g. seizures; attachments; liens).
- In the event the Customer is in breach of contract, in particular with nonpayment of the due purchase price, hewitech reserves the right to withdraw from the contract according to the statutory regulations and to claim the return of Goods subject to the retention of title.
- Payment shall not be deemed effected until irrevocably available funds have been received in full by hewitech in its designated bank account.
- Customer shall notify hewitech in writing of any objection to the validity of any invoice within five (5) days of receipt, absent such notice, the invoice shall be deemed valid and payable.
- Customer shall have no title to set off or to make any form of withholding or retention against any payment of the agreed contract price unless otherwise agreed between the Parties in writing.
- If any payment is not received by the applicable date for payment, hewitech shall be entitled to interest thereon at 8% per month and pro rata for any part thereof, without formal demand being made.
- Should hewitech learn of circumstances which may jeopardize hewitech’s right to payment, including but not limited to, a material adverse change in the Customer’s financial situation, then hewitech may require the Customer to provide sufficient securities. Alternatively, and always at hewitech’s sole discretion, hewitech may insist on partial or full payments up front, or request the Customer to immediately pay a conventional fine of ten per cent (10%) of the entire contract price, irrespective of Customer’s fault.
IX. Claims for Defects of the Customer
- Unless otherwise stipulated herein below, the statutory rights available to the Customer in case of defects of quality and title (including wrong and shortfall in delivery as well as improper assembly or faulty assembly instructions) shall apply.
- The primary basis of hewitech’s liability for defects shall be the agreement made about the specification of the Goods. All product descriptions which are subject matter of the individual contract or which hewitech has made available to the public (e.g. in brochures, catalogues or on the company’s website) are considered as an agreement about the specification of the Goods.
- In the absence of any agreed specification of the Goods, the existence of defects therein shall be determined in accordance with statutory provisions. hewitech shall not be liable for any public statements of the manufacturers or other third parties (such as Advertisements).
- The Customer’s claims for defects shall be subject to the condition that the Customer has satisfied its statutory obligations for inspection and reporting of complaints. If a defect is determined at the time of delivery, during the inspection or subsequently at any point in time then the Customer must inform hewitech immediately hereof. In any case, the Customer must notify hewitech about obvious defects within four working days from the delivery, and about hidden defects within four working days from the discovery of the defect. The notification shall be made in writing. If the Customer fails to carry out a proper, thorough and timely inspection and notification of defects, any and all claims of the Customer shall be excluded.
- In the event that the Goods delivered are defective, it shall be at the discretion of hewitech whether subsequent performance shall be made by remedying the defect (subsequent improvement) or by delivering Goods free of defects (substitute delivery). hewitech’s right to refuse subsequent performance in accordance with the statutory provisions shall remain unaffected.
- hewitech shall be entitled to make subsequent performance due conditional upon the Customer paying the purchase price due.
- The Customer shall give hewitech the time and the opportunity which may be needed for due subsequent performance, in particular, the Customer has to hand over the Goods claimed to be defective for inspection purposes. In the event of a substitute delivery, the Customer must return the defective Goods to hewitech according to the statutory regulations. Subsequent performance shall not include the removal of the defective Goods nor the installation of new Goods, provided that hewitech was not initially obliged to provide installation of the product.
- hewitech will bear the expenses necessary for inspection and subsequent performance, in particular transport, route, work and material costs (excluding costs for removal and installation) if a defect actually exists. Should the Customer’s request for subsequent performance turn out to be unjustified, then hewitech may claim reimbursement of all costs incurred as a result of the unjustified claim (in particular costs for inspection and transport), unless the lack of defectiveness could not be recognized by the Customer.
- If the Customer or a third party carries out improper remedies or rework, hewitech shall not be liable for any consequences resulting therefrom. The same applies in case of changes to the delivered Goods without prior approval of hewitech.
- hewitech has at least two attempts at subsequent performance to rectify a defect. The Customer can withdraw from the contract or reduce the purchase price if hewitech’s subsequent performance has failed or if a deadline reasonably set by the Customer has expired without change, or can be dispensed with under the statutory provisions. However, there shall be no right to withdraw from the contract if the defect is negligible.
- Claims of the Customer for damages or reimbursement of futile expenses incurred as a consequence of a defect of the Goods shall be subject to the limitations under Sec. X and are, apart from that, excluded.
- The mere subsequent performance carried out by hewitech, irrespective of its extent, shall not be considered as an acknowledgement of the defect asserted by the Customer. Only legal representatives and statutory proxyholders of hewitech are authorised and empowered to make binding declarations on behalf of hewitech and to declare such an acknowledgement.
VIII. Industrial Property Rights
- hewitech is liable for the supplied Goods to be free from industrial property rights and copyrights of third parties within the Federal Republic of Germany. hewitech shall have no such liability for any other country, in particular for the country of final destination of the Goods, unless expressly otherwise agreed between hewitech and the Customer. Each contracting partner shall be obliged to immediately inform the respective other party by giving notice in written or text form (e.g. letter, e-mail, fax) if claims are made against it due to the asserted infringement of such rights.
- In the event that any Goods supplied by hewitech infringe on a third party’s industrial property right or copyright, hewitech shall be liable to the Customer as follows:
- hewitech will, at its own discretion and at its own costs, either grant the Customer a right of use on the grounds of a license agreement or exchange or otherwise modify the Goods supplied so that this no longer breaches third party rights.
- If this turns out to be impossible to achieve under reasonable conditions, the Customer reserves its statutory rights of withdrawal or price reduction.
- The Customer’s claims for damages, if any, are subject to Sec. IX.
- Claims for defects of the Customer with respect to an infringement of industrial property rights or of copyrights held by third parties are excluded if such infringement was caused by specific instructions given by the Customer, or by improper handling in violation of the contract, or by the use of the Goods supplied in a way which could not be foreseen by hewitech, or by a modification or alteration of the Goods supplied by the Customer or by using the Goods supplied in combination with other items than the Goods supplied by hewitech, or if the Customer is responsible for the infringement of third party rights. The Customer shall indemnify and hold hewitech harmless from any claims made by third parties for the infringement of its industrial property rights or copyrights.
- To the maximum extent permitted by applicable mandatory law, the Customer’s rights and remedies as expressly agreed in writing between hewitech and the Customer shall be the Customer’s sole and exclusive rights and remedies.
- To the ultimate limits of applicable mandatory law, hewitech shall in no case whatsoever be liable for any loss of revenues or profits, loss of opportunity, production or contracts, loss of use, standby costs, loss of or damage to feed, raw materials, utilities or product, plant downtime or delays, loss of goodwill, liquidated damages or penalties imposed on the Customer by its own customers or third parties, the Customer’s own liability towards any third party, claims for recourse, recall costs, legal action costs, any damages fines or penalties payable by the Customer, or otherwise for any financial or economic losses or damages, and in each and any case, irrespective whether the losses or damages in question are deemed to be direct, consequential, special, indirect, incidental, punitive, exemplary or otherwise, howsoever caused or arising.
- To the extent permitted by applicable mandatory law, hewitech’s maximum aggregate liability shall be limited, and shall in no case exceed, the value of the net contract price received by hewitech.
- The Customer can only withdraw from or terminate the contract owing to the breach of a duty, which does not consist of a defect, if hewitech is solely responsible for the breach of duty. A free right of termination of the Customer shall be excluded. Incidentally the statutory pre-requisites and legal consequences shall apply.
X. Statute of Limitations
- The statute-of-limitations for properly notified claims from defects of quality and title under these GTCE is one year from delivery. Insofar as an acceptance has been agreed upon, the statute-of-limitations shall begin with the acceptance.
- If the Goods is a building or an object that, in conformity with its customary manner of utilization, has been inserted to the substance of the building and which has caused the deficiency of the building (building material), the statute-of-limitations is five years from delivery in accordance with the statutory provisions.
XI. Applicable Law and Place of Jurisdiction
- These GTCE and the contractual relationship between hewitech and the Customer shall be governed by the laws of Switzerland, without regard to any conflicts-of-law principles, and excluding international and supranational (contractual) legal regulations, in particular the UN Convention on Contracts for the International Sale of Goods.
- Any dispute arising out of or in connection with these GTCE and/or the contractual relationship, which cannot be amicably settled between hewitech’s and the Customer’s management within three (3) months, shall exclusively be referred to and finally resolved by the Commercial Court of Zurich, Switzerland.