General Terms and Conditions

General Terms and Conditions of Sale (T&C) of HAIDER BIOSWING® GmbH

Last updated: 01/02/2022

1. Scope of the T&C

1.1 All supplies, services and offers by the company Haider Bioswing GmbH (hereinafter “HBS”) to its commercial customers (hereinafter: “Retailers”) are based exclusively on the following General Terms and Conditions (hereinafter: “T&C”). These form part of all contracts that HBS enters into with Retailers in relation to the supplies or services that HBS offers. They also apply to all future supplies, services or offers to the Retailer, even if they are not agreed again separately.

1.2 Any terms and conditions laid down by the Retailer or by a third party do not apply, even if HBS does not expressly object to their application in a particular case. Such terms and conditions are only decisive if HBS has expressly agreed to them.

2. Offer and conclusion of contract

2.1 The legal relationships between HBS and the Retailer are subject exclusively to the written sales contract, which may also take the form of the offer and acceptance in separate documents (e.g. letters), as well these T&C. The sales contract comprises all agreements between the contracting parties with respect to the subject matter of the contract in full. Any verbal arrangements or commitments made by the contracting parties will only continue to apply if they are expressly included in the sales contract.

2.2 In order to be valid, additions and amendments to the contractual agreements must be made in writing, i.e. a personally signed document. Transmission by fax is sufficient to meet the written form requirement; text form is also sufficient for orders and the processing thereof.

2.3 Information from HMS on the object of supply or service (e.g. measurements, practical values, tolerances and technical data) as well as presentations of it (e.g. drawings and illustrations) only apply approximately, unless strict compliance is necessary for use for the intended contractual purpose. These are not guaranteed characteristics but rather descriptions or indications of the supply or service. Deviations that are typical for the industry and deviations that are made on the basis of legal provisions or technical improvements are permitted, as is the replacement of components with equivalent parts, provided that this does not impede usability for the intended contractual purpose.

2.4 HBS retains title to or copyright for all offers and quotations provided, as well as in respect of drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and resources provided to the Customer. Without express consent from HBS, the Retailer cannot provide these materials and items themselves or the content thereof to any third parties, nor cannot it publish them, use them itself or allow a third party to do so, or reproduce them.

2.5 Orders for products that have been placed with binding effect can only be cancelled if HBS agrees to this. In the case of cancellations by the Retailer relating to products that are already being manufactured, HBS is entitled to charge at least 30% of the order value plus the statutory VAT.

3. Prices, delivery, transfer of risk

3.1 The prices stated by HBS are EXW (Incoterms 2020) plus the VAT applicable on the date on which the invoice is issued and plus shipping costs in accordance with the applicable shipping cost provisions. If there are more than four months between contract conclusion and the delivery date, our prices applicable at the time of delivery apply. Unless otherwise agreed, Haider Bioswing GmbH is entitled to determine the manner of shipment itself (particularly the transport company, dispatch route, packaging).

3.2 Delivery dates and terms are always non-binding; partial deliveries are permitted. Fixed dates require written confirmation by HBS.

3.3 The risk of accidental destruction or accidental deterioration of the goods is transferred to the Retailer upon handover or, in the case of delivery to a different location, upon provision of the goods to the person commissioned to carry out the shipment. The goods will be insured at the Retailer’s cost if there is a written instruction from the Retailer to this effect.

3.4 If the goods are not accepted, HBS is entitled to charge the purchase price, withdraw from the contract and claim damages, as it chooses, once a written grace period of 10 days has passed, without prejudice to its statutory rights. We also reserve the right to claim damages on the grounds of non-performance. The same applies when a delivery term has not been agreed if the Retailer does not accept the goods following a grace period of 10 days, despite being requested to do so.

3.5 Delays in delivery resulting from force majeure (e.g. pandemics, strikes, lockouts, wars, civil unrest, power failures, raw material shortages, transport restrictions and similar circumstances) or other unforeseeable events over which HBS has no control will result in a reasonable extension of the lead time.

3.6 As a German company, HBS requires proof in the form of confirmation of arrival (Gelangensbestätigung) in accordance with Section 17 a of the Implementing Regulation on VAT (Umsatzsteuer-Durchführungsverordnung, UStDV) if the Customer wishes to be granted exemption from VAT for exports in the European Single Market. If HBS does not receive such confirmation of arrival from the Retailer, the German VAT applicable on the date of the purchase will be charged on the invoices issued. HBS also reserves the right to request a ‘deposit’ equal to the VAT that would otherwise be incurred as a security for the receipt of confirmation of arrival. In this case, a confirmation of arrival form will be enclosed with the goods. This must be completed following the arrival of the goods at their foreign destination, signed and sent back to HBS. The deposit will then be refunded.

3.7 In the case of deliveries abroad, all taxes, customs duties and other public levies due abroad or upon export abroad must be paid by the Retailer, and/or HBS must be reimbursed for them.

 

 

4. Payment

4.1 The Retailer is obliged to make cashless payment of invoices within 30 days of the date of issue. Sales representatives or employees of HBS are not allowed to accept cash payments. After this period, the Retailer is deemed to have defaulted on payment. If payment is made within 10 days, HBS grants a 2% discount. HBS charges a fixed payment reminder fee of €5.00 for every reminder.

4.2 In principle, HBS is entitled to make deliveries subject to the condition that the purchase price and shipping costs are paid in advance in a particular case.

4.3 In the event of actions by the Retailer that are in breach of contract, particularly in the case of payment default, HBS is entitled to withdraw from the contract and to demand the goods back. The same applies if HBS subsequently becomes aware of circumstances that cast doubt on the Retailer’s ability to pay. Examples of cases in which inability to pay may be assumed include: Compulsory enforcement measures, bill of exchange and cheque protests, the giving of affirmations in lieu of oath, the initiation of insolvency proceedings or the rejection of an application for insolvency proceedings due to insufficient assets. In this case, HBS is entitled to make any outstanding deliveries subject to the condition that adequate deposits are paid.

4.4 If HBS is given direct debit mandates or if a SEPA direct debit mandate has been agreed with the Retailer, HBS is entitled to collect any invoice amounts that fall due from the account designated by the Retailer by direct debit or SEPA direct debit. Prior to the first SEPA direct debit collection, the Retailer will be given notification stating the information required for this.

4.5 Any deviations in SEPA direct debit collection by up to two days compared with the date stated in the pre-notification do not give the Retailer the right to cancel the direct debit, unless it has a justifiable reason to do so. The Retailer must cover the costs of any unjustified cancellations.

5. Obligation to notify defects, warranty

5.1 The Retailer is obliged to inspect the goods supplied properly and to notify in writing any defects it finds. The provisions of Section 377 of the Commercial Code (Handelsgesetzbuch, HGB) in particular apply for the legal inspection and defect notification obligation. Sales representatives of HBS are not authorised to accept defect notifications.

5.2 HBS reserves the right to provide a cure in the form of repair or replacement, as it chooses. Parts that are replaced within the context of providing such a cure become the property of HBS and, if HBS desires, must be sent back to HBS by the Retailer at HBS’s cost. If a cure fails or if, in an exceptional case, a cure cannot be considered due to legal requirements, the Retailer will be entitled to the statutory rights. A cure is deemed to have failed if two attempts at providing a cure by HBS have not led to the remedy of the defect following reasonable grace periods set by the Retailer. This only ceases to apply if multiple attempts at providing a cure are unreasonable for the Retailer.

5.3 Withdrawal from the contract is precluded if the breach of obligation by HBS is merely minor.

5.4 The Retailer is not entitled to assign its warranty claims for defects to third parties.

5.5 All warranty claims will lapse if the Customer modifies the item delivered or has it modified by a third party without the Seller’s approval and this renders remedy of the defect impossible or infeasible.

5.6 In the event of unjustified defect notifications, HBS is entitled to demand that the Retailer reimburse it for expenses that it has occurred in attempting to remedy the defect.

6. Liability

6.1 The following provisions apply for all liability between the parties for damages or the reimbursement of expenses based on or associated with the supply relationship between HBS and the Retailer.

6.2 HBS does not accept liability for impossibility of delivery or for delays in delivery if these are caused by force majeure or other events that were unforeseeable at the time of contract conclusion and for which HBS is not responsible (e.g. pandemics, operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of staff, energy or raw materials, difficulties in obtaining the necessary official permits, administrative measures or missed, incorrect or late deliveries by suppliers).

6.3 In the event of obstacles of a temporary nature, the deadlines for the supply of goods and services will be extended by the length of the hindrance plus a reasonable start-up period. If such events are not merely of a temporary nature and HBS is not responsible for them, HBS has the right to withdraw from the contract, without the Customer being entitled to any damages or reimbursement of expenses.

6.3 In the event of culpable breaches of obligation, HBS accepts liability in accordance with the legal provisions in the case of intent and gross negligence and in the case of physical injury, damage to health and loss of life.

6.4 HBS and its agents do not accept any liability for other damage resulting from breaches of obligation caused by ordinary negligence which do not pose a threat to the performance of the contract. The above liability disclaimer for ordinary negligence does not apply for damage that arises from loss of life, physical injury or damage to health and from the breach of fundamental contractual obligations or warranties, or that relates to claims under the Product Liability Act (Produkthaftungsgesetz).

6.5 In the event of a breach of a fundamental contractual obligation as a result of ordinary negligence, the User only accepts liability for the foreseeable, typical and direct average damage based on the nature of the contract.

7. Retention of title

7.1 HBS retains title to the goods until all existing or future claims from the ongoing business relationship have been fulfilled.

7.2 The Retailer is obliged to store goods that are subject to retention of title (reserved goods) separately, to label them as the property of HBS, to handle them with care and to immediately inform HBS in the event of access to the goods, such as in the case of seizure, and in the event of damage to or destruction of the goods. Pledging them or transferring them as securities is not permitted.

7.3 In case of the resale or hire of the reserved goods – as permitted within the bounds of ordinary business operations – the Retailer hereby assigns to HBS as security any future claims against its customers to which it is entitled as a result of such resale or hire, without any special declarations being required at a later date. Until revoked, the Retailer is authorised to collect the assigned claims; it is not entitled to make use of them in any other way (e.g. through assignment), however. At our request, the Retailer must declare the above assignment to its customers and give HBS the documents and information that HBS needs to enforce the rights.

7.4 If the Retailer defaults on its payment obligation in full or in part, if the Retailer has excessive debts, ceases to make payments or experiences a significant deterioration in its financial circumstances or if an application for insolvency is filed, HBS is entitled to immediately take back all reserved goods. Requesting surrender of goods or seizing goods does not constitute withdrawal from the contract. HBS is entitled to realise the value the reserved goods with the due care and diligence of a prudent businessperson and to satisfy its claims from the proceeds thereof by offsetting them against its outstanding claims.

8. Prohibition of assignment, prohibition of offsetting

8.1 The Retailer is not entitled to assign existing claims against HBS to third parties without prior written consent from HBS.

8.2 The Retailer can only offset its claims against counterclaims that are undisputed or legally binding in terms of the basis and amount of the claim or exercise a right of retention.

9. Final provisions

9.1 The place of jurisdiction for all disputes arising from the business relationship between HBS and the Retailer is Pullenreuth, Germany. HBS also has the right to take legal action against the Retailer in the court with local jurisdiction for its subsidiary.

9.2 The relationships between HBS and the Retailer are subject exclusively to the law of the Federal Republic of Germany, to the exclusion of conflict of laws provisions laid down in German private international law and the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).

9.3 In the event that individual provisions of the contract with the contracting partner, including these T&C, are or become wholly or partially invalid or in the event that the agreements contain a loophole, this will not affect the validity of the other provisions. In such cases, the parties are obliged to replace the wholly or partially invalid provision with a valid provision, the economic success of which corresponds to the invalid provision as closely as possible.

 

 

General Terms and Conditions of Purchase (T&C) of HAIDER BIOSWING® GmbH

Last updated: 15/02/2022

1. Scope of the T&C

1.1 The purchase of all products and services by the company Haider Bioswing GmbH (hereinafter: “HBS”) from suppliers (hereinafter: “Suppliers”) is based exclusively on the following General Terms and Conditions (hereinafter: “T&C”). These form part of all contracts that HBS enters into with Suppliers in relation to the supplies or services that HBS offers. They also apply to all future supplies, services or offers from the Supplier to HBS, even if they are not agreed again separately.

1.2 Any terms and conditions laid down by the Supplier or by a third party do not apply, even if HBS does not expressly object to their application in a particular case. Such terms and conditions are only decisive if HBS has expressly agreed to them.

2. Offer and conclusion of contract

2.1 The legal relationships between HBS and the Supplier are subject exclusively to the written contract, which may also take the form of the offer and acceptance in separate documents (e.g. letters), as well these T&C. The contract comprises all agreements between the contracting parties with respect to the subject matter of the contract in full. Any verbal arrangements or commitments made by the contracting parties will only apply if they are expressly included in the contract.

2.2 Enquiries made by HBS are non-binding. Based on an enquiry, the Supplier must send HBS an offer in text form, in which any deviations from the enquiry must be expressly indicated. A contract only comes into being when HBS accepts this offer. .

2.3 In order to be valid, contractual agreements must be concluded and additions and amendments to contractual agreements must be made in text form as a minimum. If a contract is concluded by email, confirmation of receipt must be provided on request. 2.4 If the Supplier does not confirm an order from HBS within 14 days, HBS is entitled to cancel the order before receiving declaration of acceptance from the Supplier.

3. The Supplier’s notification obligations

3.1 If HBS has informed the Supplier of the intended use of the deliveries or if this is apparent to the Supplier without the Supplier even being expressly notified of it, the Supplier is obliged to immediately inform HBS if its supplies or services are not suitable for this intended purpose.

3.2 The Supplier must immediately inform HBS in writing of any changes in the composition of the processed materials or the constructional design from similar supplies or services previously provided to HBS. The changes must be approved in writing by HBS.

 

 

4. Prices

4.1 The prices stated on HBS’s order are fixed prices. They are subject to VAT and, unless otherwise agreed, include the costs of proper packaging, the costs of delivery to the place of performance and the costs of any customs duties.

4.2 Price changes must be expressly acknowledged by HBS in writing.

5. Place of performance, packaging

5.1 The place of performance for the Supplier’s supplies or services is the shipping address stated in the order. If a shipping address is not provided and the place of performance is not apparent from the nature of the contractual obligation either, the registered office of HBS is considered the place of performance.

5.2 The items to be supplied must be packaged and shipped properly. Packaging and shipping regulations must be observed. The entire delivery must comply with legal and official provisions concerning health and safety requirements.

5.3 Each delivery must contain a delivery note or a packing slip. The order numbers and the designations stipulated by HBS in the order must be stated on all documents. A dispatch note must be sent to HBS on the date of dispatch at the latest.

6. Transfer of risk, transfer of ownership

6.1 Regardless of the agreed pricing, risk is transferred upon receipt at the delivery address provided by HBS in the case of supply without set-up or installation, and upon completion of the acceptance process at HBS in the case of supply including set-up or installation. Start-up or use are not a substitute for the declaration of acceptance by HBS.

6.2 Unless ex works delivery is agreed, HBS is not responsible for obtaining insurance for the delivery, particularly freight liability insurance, or for covering such costs.

6.3 Title to the goods supplied is transferred to HBS upon payment. Any extended or enhanced retention of title is excluded.

7. Delivery dates, damage causes by delay(s)

7.1 Delivery dates and terms are always binding. Partial deliveries are only permitted with written approval from HBS. The Supplier is obliged to immediately inform HBS in writing if and when circumstances occur or it becomes aware of circumstances under which it cannot meet the agreed delivery times.

7.2 In the event of a delay in delivery, HBS is entitled to demand compensation for the delay at the flat rate of 2.5% of the delivery value per full week, but not more than 10% in total. This does not affect any further statutory claims. The Supplier has the right to prove to HBS that no damage or a significantly lower level of damage resulted from the delay. The flat rate is then reduced accordingly. HBS reserves the right to charge the flat-rate compensation until final payment has been made.

8. Invoicing and payment

8.1 Invoices can only be processed by HBS if they state the order number given on the order and the designations stipulated by HBS in the order. Payment terms only begin upon receipt of a proper invoice that fulfils the legal and tax requirements.

8.2 Payments are made on the terms laid down in the order. Unless otherwise agreed, HBS will pay the invoice amount within 14 days of receipt of the delivery and invoice with a discount of 3%, or within 30 days net from receipt of the invoice. Periods during which HBS is closed due to company holidays are not including when calculating the payment term. The deduction of discounts is also permitted in the case of offsetting or retention due to defects.

9. Obligation to notify defects, warranty

HBS shall perform an incoming goods inspection in accordance with commercial requirements. A defect notification is deemed to have been given on time if it is received by the Supplier within a period of two weeks, calculated from the date of receipt or, in the event of any concealed defects, from the date of discovery.

10. Warranty and liability

10.1 The Supplier guarantees that its supplies and services have the guaranteed characteristics, correspond to the recognised state of the art and do not have any material defects or defects of title that could nullify or reduce their value or suitability for normal use or for the use laid down in the contract.

10.2 HBS is entitled to the statutory warranty rights in full. Regardless of this, HBS has the right to demand a cure from the Supplier in the form of defect rectification or supply of a replacement, as HBS chooses. In this event, the Supplier must bear all the expenses incurred for the purpose of remedying defects or supplying a replacement. The right to damages and the right of withdrawal are reserved.

10.3 If a sample is provided, the characteristics of the sample will be deemed to be guaranteed by the Supplier.

10.4 The limitation period for claims by HBS on the grounds of material defects is 36 months from the transfer of risk in accordance with Section 6.1; the limitation period for claims by HBS on the grounds of defects of title is 5 years from the transfer of risk in accordance with Section 6.1.

11. Confidentiality, use as a reference

11.1 The Supplier is obliged to keep secret all commercial and technical information and documents which are not public knowledge that it obtains through the business relationship, particularly illustrations, drawings and calculations, and to use these exclusively to perform the deliveries and services ordered. The Supplier must place any subcontractors under a corresponding obligation. The confidentiality obligation also for the period following execution of the contract.

11.2 The Supplier may only name HBS and/or HBS’s brands when providing references or in publications with prior written consent from HBS.