General purchase terms of HORN Glass Industries AG, HORN Bau & Service GmbH and EUROX Sauerstoff Mess-Systeme GmbH (hereinafter referred to as "HORN")

 

1 Validity

1.1. The following general purchase terms (hereinafter “general terms”) are valid for all contracts between HORN and its suppliers regarding all goods, services and deliveries to be supplied (hereinafter “supplies”). Any differing conditions of a supplier not explicitly confirmed by HORN in writing  do not apply  and will not become part of the contract. For suppliers, not being merchants according to clause 1 of the German Commercial Code (Handelsgesetzbuch - HGB)  the following general terms are not valid, so the German Civil Code (Buergerliches Gesetzbuch – BGB) shall be applicable.

1.2. Submission of offers by the supplier shall be free of charge and not binding for HORN. The supplier’s quotation shall be binding for the supplier for a period of six months. To be firm, the order must be placed in writing.

1.3. Orders placed by HORN constitute a contractual agreement (hereinafter “contract”) between HORN and supplier and shall immediately be confirmed in writing by the supplier. HORN reserves the right to cancel the order, if the order confirmation has not been sent within 14 days after order placement. An order confirmation is also required for immediate delivery.

 

2 Prices

2.1. The prices agreed upon are to be understood as free delivery to HORN’s company address including freight and packing cost as well as additional charges.

2.2. In case of unfree delivery HORN shall only bear the cheapest freight cost, unless HORN has prescribed a special kind of delivery.

2.3. The prices in the orders are fixed prices; price reductions  between order date and invoice date are in favor of HORN and will be considered in the contract price.

2.4. In case of repeating orders, the prices of the first order are valid; in case of price increases, the adjusted price must be agreed between the parties in written form.

2.5. Agreed price lists are valid as long as a new one is agreed between HORN and the supplier in written form. The supplier must prove eventual actions to avoid a respective price increases.

 

3 Payments

3.1. Unless agreed otherwise in writing, the following terms of payment regarding all supplies shall be valid:

  • payment within 14 days with a 4 % discount
  • payment within 30 days with a 2 % discount
  • payment within 60 days net

upon receipt of the invoice, however, not before acceptance of the supplies (incl. technical documentation, software, software codes and other) in conformity with the contract.

3.2. For on-time payment the date of remittance proven by HORN is determining.  If a down payment has been agreed, HORN has the right to demand an approved bank guarantee in amount of the down payment at minimum.

3.3. Contrary to par. 286 subpar. 3 German Civil Code (Buergerliches Gesetzbuch - BGB) a delay in payment does not occur  without respective written reminder by supplier containing amount and due date of respective payment. In case of undue delay in payment, the supplier shall be entitled to surcharge an interest rate of 5 % per annum above the national base interest rate (“Basiszinssatz”) regarding the respective invoice amount.

 

4 Terms of Delivery

4.1. The statements in HORN’s delivery orders, dispatch order and command orders must be observed, all cost occurring out of non-observances have to be borne by the supplier. The invoice shall be send twofold with notice to HORN’s order number to the address announced by HORN and may not be sent together with the supplies themselves. Conclusion of additional transport insurances have to be agreed between HORN and the supplier in written form, otherwise supplier is responsible for covering these additional costs solely.

4.2. Unless agreed otherwise, supplies shall be delivered according to Delivered Duty Paid (DDP) – Incoterms 2020.

4.3. In case HORN was exceptionally charged packaging by separate agreement, HORN shall return reusable packing unfree and has the right to deduct the charged cost from the contract value.

4.4. In case of delivery by a forwarder, the supplier has the right to claim the freight cost accordingly to the current railway fees (“German Railways Tariff”) excluding any exceeding cost.

4.5. Partial consignments must be approved by HORN. Increased delivery or partial delivery is permitted upon the explicit approval by HORN only.

4.6. The supplier shall contact HORN in advance as soon as possible for the purpose of customs clearance and importation formalities. Expressly, the supplier is obliged to inform HORN in writing and in detail of any requirements of official permission for (re-)export of the supplies in conformity with German, European, US export and customs regulations concerning the country of origin of the supplies. In particular, the supplier shall provide the following information, records and documents:  

  • the export lists according to enclosure AL with regard to the German External Economic Relations Act or comparable list items of pertinent export lists
  • the EECN (Export Control Classification Number) according to the US Export Administration Regulations (EAR) for all US parts of the supplies
  • the origin of the supplies with regard to trade policy, including technology and software
  • explanation, if the supplies were transported through the USA, were produced or stored in the USA or whether they were produced with the aid of US technology
  • the statistical trade code (HS code) of the supplies
  • a contact person at the supplier’s company whom HORN may contact in case of any queries.

Upon request by HORN the supplier shall engage to give HORN all further foreign trade details with regards to the supplies in writing and to inform HORN immediately (before delivery) of all modifications of the afore-mentioned details in writing.

4.7. In case of deliveries effected by a EU country outside Germany, the EU turnover tax identification number of such deliveries shall be indicated. Imported supplies shall be supplied customs-cleared. The supplier shall be obliged within the framework of the executive order (EG) no. 1207/2001 to make requested declarations and give requested information at the supplier’s expense, to allow examinations by the customs authority and to deliver the required official certificates.

4.8. A delivery note shall be enclosed with each delivery, stating HORN’s order number/project number as well as the designation of the contents according to their nature and quantity.

4.9. Delivery of supplies shall usually be made in non-returnable packing customary in trade. If returnable packing is used, the supplier shall make the packing available by way of lending. Return shall be made at the supplier’s cost and risk.

4.10. Technical devices shall include a technical description, operating instructions and a list of spare parts in the ordered languages free of charge. Software products shall include the complete documentation for system engineering and for the user; software products specially designed for HORN shall additionally be delivered in source format.

4.11. Insofar as electrical, mechanical assembly and/or commissioning of the supplies is included in the scope of supply, these obligations shall be realized completely by the supplier at the place of installation.

4.12. The installation and assembly work shall be executed by observing all site rules and local working regulations, safety precautions in conformity with the regulations of the mutual indemnity associations, the trade inspection, the regulations for prevention of accidents, EU regulations, machinery safety regulations, VDE regulations, noise protection and air protection regulations (TA Lärm and TA Luft, Federal Pollution Control Act machinery safety regulations and the regulations for fire prevention and protection). The supplier shall instruct its personnel that these regulations are to be observed imperatively at the respective site of execution. The supplier shall take care that its staff will not enter the factory installations outside the working area without authorization.

4.13. The supplier shall provide and bear the cost for the legal insurances for his staff, this especially applies for an all-risk-insurance for installation and assembly, insurance for tools etc..

4.14. Delivery dates and milestones agreed upon are binding.

4.15. The supplier shall immediately inform HORN in writing of any impending delays of delivery, stating the reasons and the expected duration of such delays. The unreserved acceptance of a delayed delivery shall not be deemed as waiver of claims HORN is entitled to due to such delays. Upon request the supplier shall prove executed actions for mitigation.

4.16. During manufacturing process, HORN shall be entitled to examine the supplies within the regular business hours with regard to material, manufacturing procedure and other work upon previous notification. Furthermore, HORN shall be entitled to request a report concerning the supplies at any time, especially with regard to the status of manufacturing process.

 

5 Acceptance

For acceptance of supplier’s scope of supply a written acceptance report by HORN is mandatorily required. This acceptance report effects a transfer of title from the supplier to HORN and starts the warranty period. In case of delivery of plants or machinery this report contains a test run of sustained operation for 72 hours at least under production conditions by proving all contractual agreed technical and other parameters. In case one or several parts of the scope of supply have been marked as defective in this report, the acceptance in general has not been effected, until these defects have been eliminated. The acceptance report is valid only with signature by a HORN representative having full power of attorney. Any kind of implied acceptance (e.g. by start of production, delay in acceptance, transfer of final payment by HORN and/or end-customer) is excluded.

 

6 Force majeure

In case of industrial dispute in the company, disturbance, force majeure and other unforeseeable and inevitable incidents the party concerned is not responsible for, this party shall be exempted from his obligation of delivery respectively acceptance for the period the disturbance persists and to the extent of its impact. If the disturbance persists for more than one month after the term of delivery originally agreed has expired, each party shall be entitled excluding all other claims to terminate the contract with regard to the quantity concerned by the disturbance of delivery or acceptance. If partial performance has been supplied to HORN, HORN shall be exempted fully or partially from the obligation to accept the partial delivery/performance and HORN shall be entitled to terminate the contract insofar as the delivery or performance is not utilizable anymore because of the delay and taking into consideration economic aspects. In such case assertion of claims for damages shall be excluded.

 

7 Liability

7.1. The supplier is obliged to deliver the supplies to HORN free of defects. A defect is given in case of any variance between actual conditions and contract conditions in terms of quality, amounts, texture, technical specifications and performance parameters of the scope of supply. Product descriptions are legally binding and shall be deemed as agreement on the legal and factual nature. If such agreement is missing, a defect is given in case of missing capability of the scope of supply for the intended usage or in case the supplies differ from the typically expected quality.

7.2. Moreover, the supplier guarantees with reference to its scope of supply the fulfilment of all contractual determined technical specifications and performance parameters observance of all technical regulations during manufacturing of the supplies and correspondence with actual state-of-the art.

7.3 Upon arrival, the supplies shall be inspected for quality and completeness to the extent acceptable for and technically feasible by HORN. Notification period of apparent defects shall be 14 working days after arrival of respective supply at HORN, Plössberg, Germany, at the agreed delivery place or at the place of HORN’s appointed contract-partner in case of chain-of-delivery business. For hidden defects, the time limit for notification shall be extended to 14 working days upon ascertainment of the defect.

7.4. In case a defect pursuant to clause 7.1 or a violation of guarantee according to clause 7.2 occurs, HORN is entitled to its discretion to claim the following warranty rights being simultaneously valid::

  • right of subsequent improvement or subsequent delivery against the supplier
  • right to terminate the contract
  • right to claim for compensation (indemnification) right to reduce the contract price in amount of the reduced part of the scope of supply
  • right to claim for compensation of futile expenditures
  • right of removal of defects on the supplier’s account; the same applies in cases of imminent danger (such as -but not limited to- imminent danger to life and health, stop of production, mitigation of loss, avoidance of safety hazards etc.) or the supplier denies improvement. The execution of such substitution rights will not limit or affect the warranty rights mentioned above in any kind.

7.5. In case HORN returns defective supplies pursuant to clause 7.1, HORN shall be entitled to claim all resulting returning cost plus 5 % of the value of the defected supplies as standard administration fee to the supplier. HORN reserves the proof of higher expenses to be claimed, whereas the supplier is entitled to proof lower expenses.

7.6. The warranty period for all rights in this clause 7 shall be 24 months, for buildings it shall be five years, starting from orderly acceptance according to clause 5 unless longer warranty periods exist according to legal regulations. The same applies for subsequent deliveries.

7.7. If the acceptance pursuant to clause 5 is delayed due to the supplier’s responsibility, HORN has the right to claim for penalty in amount of 0,2% of the contract value for each calendar day of delay, but 5% of the contract value at maximum, notwithstanding the claims mentioned in clause 7.4.. HORN is entitled to reserve this penalty claim until the final payment. Any offset with other claims is excluded.

7.8. Moreover, the laws of Germany shall be applicable regarding other contract violations by the supplier.

 

8 Product liability

8.1. If HORN is held liable with regard to product liability according to German or another law, the supplier shall keep HORN indemnified against any third party or authority.  The supplier’s liability in conformity with the contract remains unaffected.

8.2. The supplier shall be liable for measures for adverting of damage, e.g. recall operations etc. as far as he is legally obliged.

8.3. Upon request the supplier shall prove to HORN the existence of liability insurance in amount of EUR 5,000,000.00 at minimum for property damage, physical injury and property loss.

 

9 Supplier’s statements

9.1. The obligation to make supplier declarations according to VO/EG 1207/01 as well as to provide proof of origin, such as certificate of origin and other supplier declarations according to regulations of local Chamber of Industry and Commerce shall be an integral part of any contract materialized in conformity with the present general  terms.  In case long-term supplier declarations are used, any modifications of the qualities of origin shall be notified to HORN immediately with the respective order confirmation without request.

9.2. In case supplier’s declarations prove to irrelevant or faulty and HORN is therefore or for other reasons placed under the obligation to present an information sheet INF4 by customs authorities, the supplier shall be obliged upon request to make immediately available to HORN faultless and complete information sheets INF4 officially certified by the customs authorities on the origin of the goods.

9.3. In case HORN or HORN’s customer is charged subsequently by a customs authority because of faulty certificates of origin or in case HORN or HORN’s customer incur other pecuniary loss for reasons attributable to the supplier due to an incorrect indication of origin by the supplier, the supplier shall be liable therefore in full.

 

10 Infringement of industrial property rights of third parties

10.1. The supplier guarantees to transfer the supplies free of any third parties’ rights. Based on his careful examination, the supplier shall explicitly confirm non-existence of any incriminatory rights of third parties at the moment of conclusion.

10.2. If HORN is held liable with regard to third parties’ rights, the supplier shall keep HORN indemnified against any third party claims. The supplier shall immediately and to the best of his ability try to eliminate such rights by objection or nullity suit or to obtain the right of use and enjoyment of such rights transferable to and free of charge for HORN.

10.3. HORN is entitled to claim for indemnification against the supplier regarding all damages incurred out of each third parties’ right violation. 

 

11 Secrecy

11.1. Tools, models, drawings and other documents made available by HORN or produced for HORN may only be used for the purpose of proper performance of  respective contract.

11.2. The transmission of products as well as of all documents and notes established during execution to third parties respectively publication thereof requires previous written consent by HORN.

11.3. Establishment as well as processing and treatment by the supplier of such tools, models, drawings and other documents in execution of the contract shall be made for HORN as manufacturer with the consequence that HORN shall acquire ownership thereof.

11.4. The supplier is obliged to keep absolute silence and to treat as own company secret all observations, perceptions and information out of  negotiations, project discussions and documents as well as information about HORN’s products in general. The supplier shall impose the same obligation on all affiliated companies, sub-suppliers and persons acting in connection with respective contract.

 

12 Social responsibility and environmental protection

The supplier shall engage to comply with the respective legal regulations for dealing with staff, for environmental protection and for safety at work and to strive for minimizing any detrimental effects on humans and the environment because of the supplier’s activities. For this purpose, the supplier shall set up and advance a management system according to ISO 9001 and ISO 14001 within the supplier’s bounds of possibility. Moreover, the supplier shall comply with the principles of the Global Compact Initiative of the United Nations. These mainly concern protection of the international human rights, the right to collective wage agreements, the abolition of forced labor and child labor, the elimination of discrimination with regard to hiring and employment of labor, the responsibility for the environment and the prevention of corruption.

 

13 General terms

13.1. A reservation of title by the supplier shall only be an integral part of the contract, if this reservation of title will be discharged upon payment of the contract price for the reserved supplies and HORN will be entitled to resell and to process it in ordinary course of business (“extended reservation of title”). A further-reaching reservation of title with regard to HORN is void.

13.2. If HORN makes goods/merchandise (hereinafter “provisions”) available to the supplier, these shall remain property of HORN (reserved goods)  during the ongoing business relation have been completed. These provisions shall be marked as another’s property and be stored free of charge separately from the supplier’s property.

13.3. Treatment and processing of the reserved goods by HORN shall be effected for HORN as manufacturer according to par. 950 German Civil Code (Buergerliches Gesetzbuch – BGB) on behalf of, but without legally obliging HORN.

13.4. If one or several supplies or the entire scope of supply is temporarily stored at the supplier, the title of ownership shall be transferred upon payment for the respective supply or the contract price. In such case the real transfer shall be replaced by a possessory agreement according to par.  930 German Civil Code (Buergerliches Gesetzbuch – BGB) and the supplier shall provide for sufficient insurance cover against deterioration and loss of the supplies. The supplies shall be marked as possession for another and shall be stored free of charge separately from the supplier’s property.

 

14 Place of delivery, applicable law and place of jurisdiction

14.1. Unless agreed otherwise, the place of delivery and performance is Ploessberg, Germany as registered office of HORN.

14.2. Applicable law shall be German law. In addition -but not substituting- to these general purchase terms, the following regulations and laws are valid in the following ranking:
German Commercial Code (Handelsgesetzbuch, HGB), German Civil Code (Bürgerliches Gesetzbuch, BGB) in their respective versions. United Nations Convention on Contracts for the International Sale of Goods (CISG) is  explicitly excluded.

14.3.Where legally permissible, place of jurisdiction for all disputes arising from the contract, shall be Weiden i. Opf., Germany notwithstanding the right of HORN to institute legal proceedings at another competent court of jurisdiction  permitted by law. This also applies to proceedings restricted to documentary evidence, summary bill-enforcement procedures and cheque proceedings.

 

15 Final provisions

15.1.Changes and supplements of any contract become valid in written form only, including the agreement itself to contract out the written form.

15.2. In case clauses of the contract become partially or entirely ineffective, residual validity shall not be affected. The contracting parties shall engage in such case to replace the ineffective clause by such agreement closest to the intended purpose of the contract. The same shall apply in case of gaps in the provisions requiring settlement.

15.3. Assignment of the supplier’s rights arising from respective contract with HORN, including potentially existing accounts receivable, are void unless written confirmation by HORN.

 

General terms of sale and delivery of HORN Glass Industries AG, HORN Bau & Service GmbH and EUROX Sauerstoff Mess-Systeme GmbH (hereinafter: „HORN“)

1 Validity

1.1. The following general terms of sale and delivery (hereinafter “general terms”) are valid for all contracts between HORN and its customers regarding all goods, services, works and deliveries to be supplied (hereinafter “supplies”). Any differing conditions of a customer not explicitly confirmed by HORN in writing do not apply and will not become part of the contract. For customers not being merchants according to sector 1 of the German Commercial Code (Handelsgesetzbuch - HGB)  the following general terms are not valid, so the German Civil Code (Bürgerliches Gesetzbuch – BGB) shall be applicable.

1.2. Submission of offers by HORN shall be nonobligatory. Documents the offer is referring to, such as pictures, drawings, colours, weights and dimensions are only approximatively relevant. Offers are valid in written form only.

1.3. Contracts shall be concluded by acceptance of the customer’s order by way of written order confirmation (hereinafter “contract”) of HORN, whereby the content of the order confirmation determines the contract conditions firmly for both parties unless the customer contradicts immediately, but within five days after order confirmation at the latest. In case of immediate delivery HORN’s invoice shall be considered as order confirmation. Real execution of the customer’s order by HORN shall be deemed as implied confirmation of the customer’s order. In each and every case these general terms shall be included even without explicit reference thereto, provided that these have been made available to the customer in an appropriate manner. This shall be the case, if these general terms are available under www.hornglas.de.

1.4. In case of permanent business relations these general terms are valid also for future contracts in which no explicit reference to these general terms is made, provided that these general terms have been made available to the customer once in a previous contract.

 

2 Prices

2.1. The prices agreed upon are to be understood as ex works, without freight, customs, duties, additional import fees, carriage and packing (EXW, Incoterms 2020) and are valid 30 days beginning with date of written offer. All occurring duties and taxes for whatever purpose applicable in the country of the customer, or country the supplies are exported to or an  installation will be executed are not included.

2.2. In case relevant cost factors escalate considerably between offer submission or order confirmation on one hand and delivery on the other hand, both HORN and customer shall enter into an agreement about adequate price adjustment and share of the costs.

2.3. As for new orders (= follow-up orders), HORN is not bound to previous prices.

 

3 Payments

3.1. Unless agreed otherwise in writing, invoices are due for payment within eight days after its receipt in the currency invoiced without deduction and free of bank charges.

3.2. Payments shall be secured by an irrevocable documentary letter of credit, opened and confirmed at an approved German Bankhouse. 3.3. Any delay in payment by the customer results in maturity of all actual receivables. Furthermore, HORN is entitled to stop processing of the contract for duration of the delay and to claim default interest in amount of 9 % per annum above respective base interest rate (Basiszinssatz) as well as to claim for indemnity in case of damages caused by such delays. In case such delay lasts more than four weeks from original payment date, HORN shall be entitled to terminate the contract or to claim for indemnity.

3.3. Any delay in payment by the customer results in maturity of all actual receivables. Furthermore, HORN is entitled to stop processing of the contract for duration of the delay and to claim default interest in amount of 9 % per annum above respective base interest rate (Basiszinssatz) as well as to claim for indemnity in case of damages caused by such delays. In case such delay lasts more than four weeks from original payment date, HORN shall be entitled to terminate the contract or to claim for indemnity.

3.4. Rejection of cheques and bills of exchange remains reserved. Cheques and bills of exchange eligible for rediscount shall only be accepted as conditional payment, all expenses in connection with this are on the customer’s account. HORN reserves the right to charge fees amounting up to 2 % of the invoice amount for possibly agreed payment by cheque.

3.5. Non-observance of payment dates or circumstances founding reasonable doubts concerning the credit worthiness of the customer shall result in immediate maturity of all receivables against the customer. Furthermore, HORN shall be entitled to demand payments in advance for open deliveries and to terminate the contract after appropriate extension of the original payment date or to claim for indemnity, also to prohibit resale and to retrieve supplies which have not been paid for at the customer’s expense.

3.6. HORN shall be entitled any time to demand appropriate securities or prepayments for its receivables.

3.7. Precondition for any discounts is settlement of all undisputed open and due invoices.  For possible payments by bill of exchange, a discount shall not be granted.

 

4 Terms of Delivery

4.1. Unless agreed otherwise, supplies shall be delivered according to EX works (EXW) – Incoterms 2020.

4.2. Appropriate partial shipments as well as minor deviations of up to +/- 10 % shall be admissible.

4.3. HORN shall neither be obliged to deliver supplies for exportation to a domestic destination nor to deliver supplies for domestic delivery to a foreign destination. HORN shall be entitled to request a certificate of export.

4.4. Packing shall be effected in accordance with ordinary trade usage, unless a special kind of packing has been agreed.

4.5. Auxiliary means of transport made available to the customer shall remain property of HORN notwithstanding deposit of a pledge and shall, unless agreed otherwise, be returned to HORN immediately and directly after the intended use, however, upon expiration of six months since HORN made them available at the latest. If the customer fails in his obligation to return the auxiliary means of transport within the time period stated above or in spite of request by HORN fixing a time-limit, HORN shall be entitled to charge the full replacement cost for the auxiliary means of transport to the customer. HORN shall be entitled to refuse acceptance of auxiliary means of transport returned late or damaged. In case of damage, the claim for damages also comprises the cost for disposal.

4.6. HORN reserves the right to alter the design of the scope of supply. Modifications on customer’s request require confirmation by HORN in written form to be valid. Price changes originated by such modifications will be indicated in written form before realization.

4.7. If the scope of supply includes assembly and/or installation work, the customer shall arrange his facilities, infrastructure etc. in such way that these works can be executed within the agreed time schedule and milestones. In case of any obstacles to execute proper performance, HORN is obliged to give notice immediately in writing or oral. The agreed time schedule and milestones will be postponed accordingly until such obstacles have been removed. Occurring costs (e.g. accommodation for fitters, additional travel expenses) shall be borne by the customer.

4.8. Agreed delivery dates are fixed subject to  receipt of all documents required for performing, receipt of the down payment (if agreed upon) and receipt of the timely orders of material (if agreed upon). If shipping is impossible or delayed due to reasons not attributable to HORN, the respective delivery date shall be replaced by HORN’s notice about readiness for shipment.

4.9. If a delivery date is not observed due to reasons fully attributable to HORN the customer shall be entitled to claim for indemnity with respect to such delays, if HORN fails to deliver subsequently after expiration of a grace period of another four weeks and if the customer additionally has indicated rejection of the delivery in writing.

4.10. The customer shall immediately inform HORN about any modification of the time schedule and/or postponement of milestones. In such case, HORN is entitled to claim all proven costs due to such postponements against the customer. In case such postponements last more than three (3) months, the parties will arrange to a revised time schedule.

4.11. As for call-orders without agreement of duration and deadlines for acceptance, HORN shall be entitled to request binding determination thereof three months upon order confirmation at the latest. If the customer does not comply with this request within three weeks, HORN shall be entitled to fix an additional time period of two weeks and to terminate the contact after expiration of this additional time period or to refuse delivery and claim all resulting damages according to German law. If the customer demands an exceeding quantity in relation to the agreed quantity of the call-order, HORN shall be entitled to its discretion either to deliver the originally ordered quantity or to deliver the exceeded quantity by charging the additional price on basis of the actual price list.

4.12. All supplies to be delivered by HORN shall be listed as entire scope of supply in the order or order confirmation. Additional supplies, performance or other extra services shall only arise from written agreement, in which these are explicitly referred to as “supplement”.

4.13. In case the customer demands additional supplies and/or services (claims) not already included in the scope of supply the following procedure shall be executed: a)change request by the customer b)claim offer by HORN c) negotiation and agreement about claim content and price in writing d)execution by HORN. Without written agreement according to lit. c) HORN is not obliged to provide or deliver any demanded claims.

 

5 Acceptance

The customer is obliged to carry out all acceptance tests, such as cold test, hot test and performance test promptly after respective notification of readiness by HORN. All results of any test shall be documented in a written acceptance report. If respective test is not carried out within 180 days after HORN’s notification of readiness, the test will be deemed as successful. The same applies in case a written acceptance report has not been created or the customer puts the supplies into operation (e.g. by start of production).

 

6 Force majeure

6.1. In case of industrial dispute in the company, disturbance, force majeure and other unforeseeable and inevitable incidents HORN is concerned is not responsible for, HORN shall be exempted from its obligation of delivery respectively acceptance for the period the disturbance persists and to the extent of its impact. If the disturbance persists for more than one month after the date of delivery originally agreed has expired, each party shall be entitled excluding all other claims to terminate the contract with regard to the quantity concerned by the disturbance of delivery or acceptance. If partial delivery has been supplied, the customer is obliged to pay this partial delivery. In such case any assertion of claims for damages shall be excluded.

6.2. The regulations in this clause 6.1 shall also apply in case the impediments stated above occur with a sub-contractor or during delay of HORN. If a case of force majeure occurs, each party shall notify the other party thereof immediately.

 

7 Liability

7.1. HORN is obliged to deliver the supplies to the customer without defects. A defect is defined as essential variance between actual and contractual determined technical specifications of the scope of supply which significantly reduces its serviceability and functionality. Variances of documents the contract is based upon, customary in trade and in this branch (e.g. pictures, drawings, colors, weights and dimensions), shall not be deemed as defect. The same applies for supplies sold as downgraded material with the customer’s approval.

7.2. Notifications of defects shall be sent immediately, but five working days upon receipt of the supplies at the latest in writing together with presenting a copy of corresponding invoice.  For hidden defects, the time limit for notification shall be extended to five working days upon ascertainment of the defect.

7.3. In case a defect occurs, HORN is obliged at its discretion to improve or replace the defective part.  If the improvement or replacement fails within reasonable period of time, the customer shall be entitled to (i)reduce the contract price in amount of the value of the defective part or (ii)terminate the contract or (iii)claim for indemnification under legal prerequisites of the German law. The customer’s right to terminate the contract is limited to such extensive and essential defects leading to complete uselessness of the entire scope of supply.

7.4. Warranty agreements must be concluded by individual agreement, designated as “warranty” and require written form to be valid. Reference to technical standards, technical specifications and performance parameters in contracts, orders, offers or other parts of the contract shall serve for project description only. If supplies differ in their nature from what was to be expected according to public statements of HORN, manufacturers or assistants, especially in advertising or for identification of certain qualities, a defect in quality shall only be deemed if these statements were explicitly made subject of a certain quality agreement between the parties.

7.5. Any liability for parts under normal wear and tear as well as for consequential damages (e.g. loss of production, loss of profit, other economic losses etc.) is excluded.

7.6. Liability is excluded as far as HORN or its vicarious agents did not act deliberate or reckless. This shall not apply for violations of essential contractual obligations, of product liability law (Produkthaftungsgesetz) and injury to life, limb or health.  

7.7. In case of assertion of damage claims, HORN’s accountability shall, however, be limited to compensation of foreseeable, typically occurring damages.

7.8. Warranty period shall be 12 months, starting from acceptance according to clause 5, but 18 months after delivery at the latest. This shall not apply to indemnity claims due to deliberated or reckless actions and claims due to violations of product liability law (Produkthaftungsgesetz) or injury to life, limb or health.

7.9. Interference, unsuitable or improper use and storage or non-observance of instructions for processing and operation as well as improperly usage with regard to supplies shall result in loss of all warranty and other rights in relation to defects. Only for mitigation of disproportionately big damages or if HORN is in delay with improvement or replacement actions the customer shall be entitled to execute subsequent improvement after previous notification to HORN and to demand reimbursement of reasonable cost.

 

8 Industrial property rights

8.1. The legal liability of HORN with respect to third parties’ rights based on industrial or other intellectual property (hereinafter “industrial property rights”) is limited to such industrial property rights being effective in the Federal Republic of Germany. . Furthermore, HORN assures that in the country of the customer’s registered office or in the country of delivery place third parties’ industrial property rights do not exist which exclude or limit operation or usage of the supplies.

8.2. If HORN is obliged to deliver according to drawings, models, samples or using parts made available by the customer, the customer guarantees non-infringement of third parties’ industrial property rights. The customer is obliged to indemnify HORN from third parties’ claims. If HORN is prohibited from production or delivery by a third party referring to an industrial property right belonging to them, HORN shall be entitled to stop work without investigating the legal situation.

8.3 HORN is appertained to copyrights and industrial property rights for models, machines, sketches and drawings made by them or by third parties on behalf of HORN. This shall also apply to such written documents designated as “confidential”. Transmission thereof to third parties by the customer requires HORN’s explicit written approval.

 

9 Secrecy

9.1. Tools, models, drawings and other documents made available by HORN or produced for HORN may only be used for the purpose of proper performance of respective contract.

9.2. Establishment as well as processing and treatment of such tools, models, drawings and other documents not explicitly included in the scope of supply shall be made for HORN as producer with the consequence that HORN shall acquire ownership thereof.

9.3. The customer shall engage to keep absolute silence and to treat as own company secrets all observations and perceptions as well as negotiations, design discussions and documents related to the contract. The customer shall impose the same obligation on all persons and suppliers acting and already acted in connection with respective contract.

9.4. Design, technology, operation of and specific technical information in context with the supplies are HORN’s knowhow and therewith business secrets.  The customer is obliged to treat this knowhow as own company secret, not to transfer this knowhow to third parties in any kind and to establish proper protection against unauthorized access (e.g. by password protection of data, IT encryption). The customer is obliged to instruct its personnel, sub-contractors and other suppliers to observe the same confidentiality within the acceptable limits of legislation. Knowhow being delivered within the scope of supply is excluded from this obligation.

 

10 General terms

10.1. In case of bankruptcy of the customer, HORN has the right to cancel the contract with immediate effect. In such case, the customer is obliged to pay for the works executed and for supplies delivered until date of cancellation.

10.2. The supplies shall remain property of HORN until full payment of the contract price and of all other receivables for deliveries and services arisen and arising from ongoing business relations between HORN and the customer (reservation of title). For current accounts, the reserved title of the supplies (reserved goods) shall be valid as security for the account balance of HORN. If a liability of HORN arising out of a bill is legally constituted in connection with a payment, the reservation of title shall not be discharged before the bill of exchange has been honored by the customer as drawee.

10.3. If HORN makes goods/merchandise available to the supplier, these shall remain property of HORN until all -also future- claims of HORN during the ongoing business relation have been completed. These goods/merchandise shall be marked as possession for another and shall be stored free of charge separately from the supplier’s property.

10.4. Treatment or processing by the customer shall be effected excluding acquisition of title according to par. 950 German Civil Code (Bürgerliches Gesetzbuch – BGB) on behalf of HORN; HORN shall become co-owner of the new merchandise created in proportion of the net invoice value of its goods/merchandise to the net invoice value of the new merchandise; the new merchandise shall serve as reserved goods for securing the claims of HORN. If the title of HORN is discharged because of adjunction, intermixture or processing, the customer shall already now transfer the rights of ownership and expectancies the customer is entitled to with regard to the new merchandise to HORN to the extent of the invoice value of the reserved goods, in case of processing in the proportion of the invoice value of the reserved goods to the invoice value of the new merchandise, and the customer shall store the new merchandise for HORN free of charge. The co-ownership of HORN itself shall be deemed as reserved goods in the meaning of these provisions.

10.5. Resale of the reserved goods is permitted to the customer – if not being in delay – on the condition that the customer also agrees upon reservation of title with his client (extended reservation of title). The customer shall not be entitled to other dispositions concerning the reserved goods, particularly pledging and transfer of ownership by way of security. Using the reserved goods for execution of contracts for work or contracts for work and materials by the customer shall also be considered as resale.

10.6. In case of resale the customer shall already now assign all claims including all subsidiary rights to HORN, which arise from the resale with regard to his clients. Upon request by HORN the customer shall be obliged to give all information and to transmit all documents required for assertion of the rights in relation to these clients.

10.7. HORN shall be notified immediately about any levy of execution or confiscations of the reserved goods by third parties. Intervention costs arising therefrom shall always be at the customer’s expense unless third parties bear them.

 

11 Place of delivery, applicable law and place of jurisdiction

11.1. Unless agreed otherwise, the place of delivery and performance is Plössberg, Germany as registered office of HORN.

11.2. Applicable law shall be German law. In addition -but not substituting- to these general terms, the following regulations and laws are valid in the following ranking:
German Commercial Code (Handelsgesetzbuch - HGB), German Civil Code (Bürgerliches Gesetzbuch - BGB) in their respective versions. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is explicitly excluded.

11.3. Within the scope of section 38 Code of Civil Procedure (Zivilprozessordnung – ZPO),place of jurisdiction for all disputes arising from the contract shall be Weiden i.Opf., Germany, notwithstanding the right of HORN to file a suit at another place of jurisdiction which is legally admissible. This also applies to proceedings restricted to documentary evidence, summary bill-enforcement procedures and cheque proceedings.

 

12 Final provisions

12.1. Changes and supplements of any contract become valid in written form only, including the agreement itself to contract out the written form.

12.2. In case clauses of the contract become partially or entirely ineffective, residual validity shall not be affected. The contracting parties shall engage in such case to replace the ineffective clause by such agreement closest to the intended purpose of the contract. The same shall apply in case of gaps in the provisions requiring settlement.

12.3. HORN is entitled to assign claims arising from respective contract and to order third parties to perform contractual obligations. HORN will give notice to customer upon request.

12.4. Any set-off of the customer’s claims against HORN’s receivables shall be excluded, unless these claims are undisputed and legally enforceable by execution.

12.5. Retention rights by the customer can only be claimed to the extent that his counterclaim is based in the same contract.