International Conditions of Sale for Customers not Resident in Germany
I. Application of the International Conditions of Sale
1. These International Conditions of Sale apply to all customers of HAWITA Gruppe
GmbH – hereinafter referred to as HAWITA – if the relevant place of business of the
customer is not in Germany. For customers whose place of business is in Germany,
the General Conditions of Sale (Allgemeine Verkaufsbedingungen) of HAWITA apply,
which will be forwarded on request. In each case, the relevant place of business is
the one which concludes the contract in its own name.
2. These International Conditions of Sale apply to all contracts made with the customer
on or after 1 October 2018 whose preponderant object is the supply of goods to the
customer. Additional obligations assumed by HAWITA do not affect the application
of these International Conditions of Sale.
3. Terms of business of the customer conflicting with or differing from these
International Conditions of Sale or the provisions applicable according to section IX.-
2. or IX.-3. do not bind HAWITA, even if HAWITA does not object to them or even if
HAWITA unconditionally renders performance or receives the customer’s
performance.
4. These International Conditions of Sale do not apply, if the customer buys the goods
for personal, family or household use and if HAWITA knew or should have known
that at the time of the formation of the contract.
II. Formation of the Contract
1. The customer is under an obligation to give written notice to HAWITA prior to the
formation of a contract if
– the goods to be delivered are to be fit not only for normal use or the customer
orders on the assumption of a particular purpose or his expectations are based
on public statements, advertising messages or other circumstances outside the
formation of the concrete contract,
– the goods to be delivered will be used in circumstances which are unusual or
which present a particular risk to health, safety or the environment, or which
require a more demanding use,
– there is a risk of atypical damages or unusual amounts of loss, in particular
exceeding the limits set up in section VII.-1.-d), of which the customer is or ought
to be aware or
– the goods to be delivered will be used in Germany or will be delivered to
customer’s clients resident in Germany.
2. Orders of the customer are to be put in writing. If the customer’s order deviates from
the proposal or the tender submitted by HAWITA, the customer will emphasize the
differences as such. Illustrations and drawings just like the measures and weight
indications featuring in HAWITA´s proposals or offers are only there as guidelines.
3. All orders, in particular also those received by employees of HAWITA, will take effect
exclusively if followed by a written acknowledgement of the order by HAWITA.
The written acknowledgement of the order can be put down as well as pro-forma-
invoice. The actual delivery of the goods ordered, any other conduct of HAWITA or
silence on the part of HAWITA does not allow the customer to assume the formation
of the contract. HAWITA can dispatch such written acknowledgement of the order up to and including fourteen (14) calendar days after the customer’s order has been
received by HAWITA. Until this time, the customer’s order is irrevocable.
4. The written acknowledgement of the order by HAWITA shall be received in time,
if it is received by the customer within fourteen (14) calendar days after its date of
issue. The customer will inform HAWITA without delay in writing, if the written
acknowledgement of the order is received with delay. If, however, HAWITA requests
a signature by the customer of the acknowledgement of the order by HAWITA, the
contract only comes into effect if HAWITA receives a copy of the acknowledgement
of the order legally signed by the customer, within fourteen (14) calendar days from
the date of the written acknowledgement of the order.
5. The written acknowledgement of the order by HAWITA sets out all the terms of the
contract and brings the contract into effect even if – except for the description, the
price for the goods and the quantity to be delivered – the written acknowledgement is
not consistent with the declarations of the customer in every respect, especially with
reference to the exclusive application of these International Conditions of Sale. The
contract will only fail to come into existence if the customer objects in writing that
the acknowledgement of the order by HAWITA is not completely consistent with the
declarations of the customer, the customer specifies the deviations in writing and if
the objection is received by HAWITA within a short time, at the latest seven (7)
calendar days, after receipt of the written acknowledgement of the order by the
customer.
6. Particular wishes of the customer, namely particular expectations of the customer
regarding the usage or the condition of the goods, guarantees or warranties with
reference to the goods or the performance of the contract, as well as performance
declarations requested by the customer in electronic or print form, require express
written confirmation by HAWITA in every case.
7. Confirmations of the contract produced by the customer are of no effect without any
objection by HAWITA being necessary. In particular, neither the actual delivery of the
goods, any other conduct of HAWITA or silence on the part of HAWITA shall give rise
to any belief by the customer in the relevance of his confirmation.
8. HAWITA´s employees, commercial agents or other sales intermediaries are not
authorized to dispense with the requirement of a written acknowledgement of the
order by HAWITA or to make promises which differ from its content or guarantees. If
and to what extent such persons are authorized to make or receive declarations with
effect for or against HAWITA, is to be determined according to German law.
9. Amendments to the concluded contract always require written confirmation by
HAWITA.
III. Obligations of HAWITA
1. Subject to a failure of delivery on part of his suppliers irrespective of a congruent
covering transaction or to an exemption according to section VII.-1. b) HAWITA must
deliver the goods specified in the written acknowledgement of the order and transfer
the property in the goods. HAWITA is not obliged to perform obligations not stated
in the written acknowledgment of the order by HAWITA or in these International
Conditions of Sale, in particular HAWITA is under no obligation if not explicitly agreed
upon in writing to establish compatibility with services or products of other
contractors, to give information regarding the goods, to furnish documents or
certificates regarding the goods, to deliver accessories or to advise the customer.
2. HAWITA’s obligations under the contract made with the customer are owed only to
the customer. Third parties not involved in the formation of the contract, in
particular the customer’s clients, are not entitled to request delivery to be made to them or to assert any other claim arising from the customer’s contract with HAWITA.
The customer gives HAWITA an unlimited indemnity against all claims made by
contracting partners of the customer against HAWITA invoking the contract made
between HAWITA and the customer. The customer’s entitlement to take delivery
continues to exist even if he assigns rights to third parties.
3. Taking account of the tolerances customary in trade, HAWITA undertakes to deliver
to the customer goods of the agreed kind and quantity which meet the common
standards applicable in Germany and ensures that at the time of delivery the goods
are free from rights or claims of private third parties which could prevent its use within
the European Union. Divergences in measure and size, weight, structure and colour
are reserved as far as they result from the nature of the materials used and are
customary in trade. HAWITA is entitled to make part deliveries and to invoice them
separately.
4. If further specification is required in relation to the goods to be delivered, HAWITA
will carry this out having regard to his own interests and to the identifiable and
legitimate interests of the customer. A request to the customer to specify the goods,
or to participate in the specification, is not required. HAWITA does not undertake to
inform the customer of the specification he has made or to give the customer the
option of a differing specification.
5. HAWITA undertakes to place the goods packaged, marked and labelled according to
German standard at disposal for collection by the customer FCA (Incoterms
2010) at the place of delivery indicated in the written acknowledgement of the order
at the agreed time of delivery. Previous separation or marking of the goods or
notification to the customer of the goods being placed at disposal is not required.
Under no circumstances, not even when other clauses of the Incoterms are agreed,
is HAWITA obliged to inform the customer of the delivery or a failure to take the goods
by the person nominated according to section IV.-6., to examine the goods with
respect to their conformity with the contract on the occasion of delivery, to check the
operational safety of the means of transport and the transportation safe loading or to
furnish proof of the delivery being effected. The agreement of other clauses of the
Incoterms or of clauses such as „delivery free…….“ or similar ones merely involve a
variation of the provisions as to the transportation and the transportation costs;
besides that, the provisions laid down in these International Conditions of Sale remain
applicable.
6. The organization of the transport and the insurance of the goods beyond the place
of delivery decisive according to section III.-5. is none of HAWITA’s obligations but is
incumbent upon the customer. If the customer does not give a counter instruction in
writing in time, HAWITA is entitled – even without the customer asking for it or without
such a commercial practice existing – to contract on terms usual in Germany in the
customer’s name and at the customer’s expense for carriage of the goods at the
customer’s risk and for insurance of the transport to the destination indicated by the
customer and – if such a destination is not indicated – to the place of business of the
customer.
7. Compliance with agreed delivery time periods or delivery dates is subject to the
customer’s procuring any required documents, releases, permits, approvals, licences
or any other authorizations or consents in sufficient time, opening letters of credit
and/or making down-payments as agreed and performing all other obligations
incumbent upon him properly and in good time and subject to no delay caused by
pre-shipment inspections mandated by non-German authorities. Moreover, agreed
delivery time-periods begin on the date of the written acknowledgement of the order
by HAWITA. After informing the customer, HAWITA is entitled to deliver earlier than
at the agreed delivery time or to select the date of delivery within the agreed period
for delivery.
8. Without prejudice to his continuing legal rights, HAWITA is entitled to fulfil his
obligations after the delivery time periods or delivery dates agreed upon, if the
customer is informed that HAWITA will exceed the delivery time limit and of the time
period for late performance. Subject to aforesaid conditions, HAWITA is entitled to
make repeated attempts at late performance. The customer can object to late
performance within reasonable time, if the late performance is unreasonable. An
objection is only effective, if it is received by HAWITA before commencing late
performance. HAWITA will reimburse necessary additional expenditure, proven and
incurred by the customer as a result of exceeding the delivery time to the extent that
HAWITA is liable for this under the provisions laid down in section VII.
9. Risks as to price and performance even in relation to goods which are not clearly
identifiable to the contract and without it being necessary for HAWITA to give notice
to the customer about the goods being placed at disposal, pass to the customer with
delivery pursuant to section III.-5., albeit irrespective thereof with readiness for
delivery by HAWITA according to the originally agreed delivery time periods or
delivery dates, if these are postponed on customer’s request, or as soon as the title
to the goods has passed to the customer. The loading of the goods is part of the
customer’s obligations. The agreement of other clauses of the Incoterms or of clauses
such as „delivery free…….“ or similar ones merely involve a variation of the provisions
as to the transportation and the transportation costs; besides that, the provisions laid
down in these International Conditions of Sale remain applicable.
10. HAWITA is neither obliged to clear the goods for export nor to take care of customs
advance declarations. However, HAWITA will apply for necessary export licences
and operate customs formalities necessary for the export if the customer has
requested HAWITA to do so and has furnished HAWITA with the data essential for
the export in a written notice dealing with this purpose exclusively. If the goods are
not cleared for export without any intentional or grossly negligent fault on the part of
HAWITA, HAWITA is entitled to avoid the contract in whole or in part without
compensation. The agreement of other clauses of the Incoterms or of clauses such
as „delivery free…….“ or similar ones merely involve a variation of the provisions as
to the transportation and the transportation costs; besides that, the provisions laid
down in these International Conditions of Sale remain applicable.
11. Unless expressly agreed in written form something different, HAWITA is not obliged
to obtain proves of delivery, documents, certificates, licences or other authorizations
necessary for the export, transit or import, or to achieve security clearance of the
goods required for the carriage or otherwise or to render assistance to the customer
in obtaining them. The agreement of other clauses of the Incoterms or of clauses
such as „delivery free…….“ or similar ones merely involve a variation of the provisions
as to the transportation and the transportation costs; besides that, the provisions laid
down in these International Conditions of Sale remain applicable.
12. HAWITA is in no case liable to perform duties associated with the making available
of the goods on the market outside Germany, to bear levies, duties and charges
accruing outside Germany, to comply with weight and measuring systems,
packaging, labelling or marking requirements or registration or certification
obligations applicable outside Germany or to comply with any other legal provisions
applicable to the goods outside Germany. The customer will arrange for translations
in any language other than German of instructions, safety information, performance
declarations or other written materials about the goods required by law or called for
otherwise at his risk and expense.
13. Without prejudice to his continuing legal rights and without a previous notice to the
customer being necessary, HAWITA is entitled to suspend the performance of his
obligations as long as, in the opinion of HAWITA, there are grounds for concern that
the customer will wholly or partly fail to fulfil his obligations in accordance with the
contract. In particular, the right to suspend arises if the customer insufficiently
performs his obligations to enable payment to HAWITA or a third party or pays late or if the limit set by a credit insurer has been exceeded or will be exceeded with the
forthcoming delivery. Instead of suspending performance HAWITA is entitled at his
own discretion to make future deliveries, even if confirmed, conditional on payment
in advance or on opening of a letter of credit confirmed by a major German
commercial bank. HAWITA is not required to continue with performance of his
obligations, if an assurance given by the customer to avoid the suspension does not
provide adequate security or could be challenged pursuant to an applicable law.
14. Except as provided in section III.-8., HAWITA is only obliged to inform the customer
of possible disruption in performance, once the commencement of the disruption
is definitely certain for HAWITA.
IV. Obligations of the Customer
1. Irrespective of continuing obligations of the customer to guarantee or to enable
payment, the customer undertakes to pay the agreed price for the goods in the
currency specified in the written acknowledgement of the order transferring it
without deduction and free of expenses and costs to one of the financial institutions
designated by HAWITA. To the extent that a price for the goods has not been agreed,
the price which is at the time of delivery HAWITA’s usual selling price for the goods
will apply. HAWITA’s employees, commercial agents or other sales intermediaries
are not authorized to accept payments.
2. The payment to be made by the customer is in any event due for payment at the
time specified in the written acknowledgement of the order or – if a time for payment
is not indicated – on receipt of the invoice. The due time for payment arises without
any further pre-condition and, in particular, does not depend on whether the customer
has already taken delivery of the goods or the documents or has had an opportunity
to examine the goods. The periods granted for payment will cease to apply and
outstanding accounts will be due for immediate payment, if insolvency proceedings
relating to the assets of the customer are applied for, if the customer without providing
a justifiable reason does not meet fundamental obligations due towards HAWITA or
towards third parties, if the customer has provided inaccurate information regarding
his creditworthiness or to the extent that the cover given by a credit insurer for the
customer is reduced on grounds for which HAWITA is not responsible.
3. The customer warrants to have the goods transported abroad, not to transfer the right
of disposal to third parties as long as the goods are in Germany, and to fulfil all legal
requirements and documentations for the handling regarding customs laws and
value added tax of the delivery or any service according to the applicable provisions
in Germany. To the extent that HAWITA has to pay German or foreign customs duties
or German or foreign value added tax, the customer will indemnify HAWITA in all and
every respect without prejudice to any continuing claim by HAWITA. The indemnity
is granted by the customer waiving any further requirements or other defences, in
particular waiving the defence of limitation or prescription and also includes the
reimbursement of the expenses incurred by HAWITA.
4. Regardless of the currency and of the jurisdiction of any arbitral tribunal or court,
HAWITA is entitled at his own discretion to set off incoming payments against claims
existing against the customer by virtue of his own or assigned rights at the time of
payment.
5. Any statutory rights of the customer to set-off against claims of HAWITA, to withhold
payment or taking delivery of the goods, to suspend the performance of his
obligations or to raise defences or counterclaims are excluded, except where the
corresponding claim of the customer against HAWITA is in the same currency, is
founded in the customer’s own right and is either due and undisputed or has been
finally adjudicated or where despite written warning by the customer HAWITA has committed a fundamental breach of his obligations due and arising out of the same
contractual relationship, and has not offered any adequate assurance.
6. The customer undertakes to furnish HAWITA with the data to apply for the customs
formalities according to section III.-10. in reasonable time ahead and in writing, to
take delivery of the goods either by himself or by a person nominated in writing by
him to HAWITA at the delivery time without taking any additional period of time and
at the place of delivery resulting from section III.-5. and shall fulfil all the duties
imposed by the contract, by these International Conditions of Sale, by the rules of the
ICC for the use of the agreed clause of the Incoterms® 2010 and by statutory
provisions. The customer is only entitled to refuse to take delivery of the goods if he
avoids the contract in accordance with the rules in section VI.-1.
7. The customer will not promise or perform any act with regard to the goods purchased
from HAWITA, if such act is forbidden under the applicable provisions in particular
of foreign trade law including the U.S. export control regulations. To the extent that
the customer is unsure whether such prohibitions exist, the customer shall seek
consultation with HAWITA in writing.
8. The customer will monitor the goods purchased from HAWITA in the market and
will inform HAWITA without delay in writing of any concern that the goods might pose
a risk for third parties. Moreover, the customer will, without any demand being
necessary, inform HAWITA in writing if HAWITA has to observe any particular duties
of reporting or registration or providing information or prior notification or other
requirements for access to market or has to comply with obligations to retain
documents, under the provisions in force in the customer’s country or in the country
where the goods are to be used.
9. Irrespective of any statutory provisions, the customer shall at his own cost take care
of or in any other way ensure renewed utilization, material recycling or otherwise
prescribed waste-disposal of the goods delivered by HAWITA to the customer and
of the packaging material.
V. Delivery of non-conforming Goods or Goods with Defective Title
1. Without prejudice to any exclusion or reduction of liability of the seller provided by
law, goods do not conform with the contract if the customer proves that, taking into
account the terms in section III., at the time the risk passes the packaging, quantity,
quality or the description of the goods is significantly different to the specifications
laid down in the written acknowledgement of the order, or in the absence of agreed
specifications, the goods are not fit for the purpose which is usual in Germany.
Regardless of the stipulation established in sentence 1, the goods shall be deemed
to conform with the contract to the extent that the legal regulations applicable at the
place of business of the customer do not prevent the usual use of the goods.
2. To the extent that the written acknowledgement of the order by HAWITA does not
contain an explicit statement to the contrary, HAWITA is in particular not liable for
the goods being fit for a purpose which is not usual in Germany or for complying with
further reaching expectations of the customer or for possessing the qualities of a
sample or a model or for their compliance with the legal regulations existing outside
Germany, for instance in the customer’s country. In particular, slogan-like definitions,
references to generally accepted norms, the use of brands, trade-marks, adverts or
prospectus do not constitute a guarantee. HAWITA shall also not be liable for any
non-conformity with the contract that did not exist at the time the risk has passed. To
the extent that the customer, either himself or through third parties, initiates the
removal of non-conformities without the prior consent of HAWITA in writing, HAWITA
will be released from his liability.
3. The customer is obliged vis-à-vis HAWITA to examine or to have examined every
single delivery comprehensively for any discoverable or typical lack of conformity with
the contract and moreover as required by law. The obligation to examine the goods
also applies to each and every instalment or part-delivery.
4. Without prejudice to any exclusion or reduction of liability of the seller provided by
law, goods have a deficiency in title if the customer proves that the goods are not
free from enforceable rights or claims of private third parties at the time risk passes.
Without prejudice to further legal requirements, third parties’ rights or claims founded
on industrial or other intellectual property constitute a deficiency in title only to the
extent that the rights are registered, made public and in legal force in the European
Union and prevent the usual use of the goods in the European Union. Regardless of
the stipulation established in sentence 1, title to the goods shall be deemed not to be
defective to the extent that the legal regulations applicable at the place of business
of the customer do not prevent the usual use of the goods.
5. Without prejudice to the statutory obligations of the customer to give notice within
reasonable time, the customer is obliged vis-à-vis HAWITA to give notice to HAWITA
of any lack of conformity with the contract or any deficiency in title at the latest within
one (1) year after taking delivery in accordance with section IV.-6. Such notice has to
be made in writing and directly to HAWITA and to be formulated in such a precise
manner as to enable HAWITA to effect remedy measures without need for further
inquiries from the customer and to secure claims against HAWITA’s suppliers and
moreover as required by law. HAWITA’s employees, commercial agents or other
sales intermediaries are not authorised to accept notices outside HAWITA’s premises
or to make any statements concerning lack of conformity with the contract or of title
and its consequences.
6. Following due notice according to section V.-5., the customer can rely on the
remedies provided by these International Conditions of Sale. The customer has no
other rights or claims whatsoever and no claims of a non-contractual nature due to
delivery of non-conforming goods or goods with defective title. In the event of notice
not having been properly given, the customer may only rely on remedies if
HAWITA has intentionally concealed the lack of conformity with the contract or the
deficiency in title. Statements by HAWITA as to the lack of conformity with the
contract or as to the deficiency in title are for the purpose of explaining the factual
position only, but do not entail any waiver by HAWITA of the requirement of proper
notice.
7. The customer is not entitled to remedies for delivery of non-conforming goods or
goods with a deficiency in title, insofar as the customer is liable vis-à-vis third parties
for conditions of the goods or their fitness for a use which are not subject of the
agreement with HAWITA, or if the customer’s claim is based on foreign law.
8. To the extent that the customer in accordance with the terms of these International
Conditions of Sale is entitled to remedies because of delivery of non-conforming
goods or goods with defective title, he is entitled to demand in accordance with the
terms of the UN Sales Convention delivery of substitute goods or repair of
HAWITA or to reduce the price for the goods. The delivery of substitute goods or
repair does not lead to a recommencement of the limitation period. The reduction of
the price for the goods is limited to the damages suffered by the customer. Further
claims for performance are not available to the customer. Irrespective of the
customer’s remedies, HAWITA is always entitled in accordance with the provision in
section III.-8. to repair goods which do not conform with the contract or to supply
substitute goods or to avert the customer’s remedies by giving him a credit note of an
appropriate amount.
9. In case of unjustified assertion of remedies for delivery of non-conforming goods
or goods with a deficiency in title, although the customer is or ought to have been
aware that a non-conformity or a deficiency in title does not exist or that the cause for such non-conformity or deficiency in title claimed are not to be attributed to HAWITA,
the customer is obliged to reimburse HAWITA for expenses incurred due to the
unjustified assertion of claims.
VI. Avoidance of the Contract
1. The customer is entitled to declare the contract avoided, if the respective applicable
legal requirements are complied with, after he has threatened HAWITA in reasonable
time after the facts justifying the avoidance of the contract had occurred with
avoidance of the contract in writing and an additional period of time of reasonable
length for performance fixed in writing has expired to no avail. If the customer claims
delivery of substitute goods, repair or other performance, he is bound for a
reasonable period of time to the chosen remedy, without being able to exercise the
right of declaring the contract avoided. In any event, the customer must give notice
of avoidance of the contract within reasonable time after the additional period of time
has expired in writing and to HAWITA directly.
2. Without prejudice to his continuing legal rights, HAWITA is entitled to avoid the
contract in whole or in part if the customer objects to the application of these
International Conditions of Sale, if the implementation or performance of the contract
is prohibited by the law in whole or in part, if on grounds for which HAWITA is not
responsible the written acknowledgement of the order by HAWITA is received by the
customer more than fourteen (14) calendar days after its date of issue, if insolvency
proceedings relating to the assets of the customer are applied for, or if for other
reasons HAWITA cannot be expected to fulfil his obligations by means which – taking
into consideration his own interests and that of the customer as far as ascertainable
and legitimate at the time of formation of the contract – are unreasonable, in particular
in relation to the agreed counter-performance.
3. Without prejudice to his continuing legal rights, HAWITA is entitled to avoid the
contract in whole or in part after prior warning if the customer does not place call off
orders as agreed, if he does not furnish HAWITA with the data necessary to apply for
customs formalities in due time, if without providing a justifiable reason he does not
meet fundamental obligations due towards HAWITA or towards third parties, if he has
provided inaccurate information regarding his creditworthiness or to the extent that
the cover given by a credit insurer is reduced on grounds for which HAWITA is not
responsible.
VII. Damages
1. Without waiving the legal requirements, HAWITA is only obliged to pay damages
due to the breach of obligations resulting from the contract with the customer, the
contractual negotiations carried on with the customer or the business relation with
the customer in accordance with the following provisions. These provisions apply
equally for all of HAWITA’s obligations to reimburse expenses.
a) The customer is required in the first instance to rely on other remedies and
can only claim damages in the event of a continuing deficiency. The customer cannot
claim damages as an alternative to other remedies.
b) HAWITA is not liable for the conduct of suppliers, subcontractors, carriers or
freight-forwarders, for damages to which the customer has contributed or for the
consequences of customer interference with the delivered goods. HAWITA is not
liable if the contract cannot be performed as agreed at the time of its formation due
to subsequent statutory or sovereign measures. Neither is HAWITA liable for
impediments which occur, as a consequence of natural or political events, acts of
state, industrial disputes, sabotage, accidents, terrorism, biological, physical or
chemical processes or comparable circumstances and which cannot be controlled by HAWITA with reasonable means. Moreover, HAWITA is only liable to the extent that
the customer proves that the executive bodies or members of staff of HAWITA have
deliberately or negligently breached contractual obligations owed to the customer.
c) In the event of liability, HAWITA will compensate within the limits of lit. d) the
losses of the customer to the extent that the customer proves that he has suffered
an unavoidable loss caused by the breach of obligations owed to the customer by
HAWITA and foreseeable to HAWITA, at the time of the formation of the contract in
respect of the occurrence of the loss and its amount. Moreover, the customer is
required to mitigate his loss as soon as a breach of contract is or ought to be known.
d) HAWITA is not liable for loss of profit or damage to reputation. Moreover, the
amount of damages for late or non-existent delivery is limited to 0.5 per cent for
each full week of delay, up to a maximum of 5 per cent, and in case of remedies
because of delivery of non-conforming goods and/or goods with a deficiency in title
is limited to an amount of 200 per cent of the value of the non-conforming part of the
contract. However, this subparagraph does not apply to injury of life, body or health,
to intentional concealment of the non-conformity or deficiency in title of the goods and
to breaches of contractual obligations due to intentional harm or gross negligence.
e) For breach of contractual, pre-contractual or obligations resulting from the
business relation owed to the customer, HAWITA is obliged to pay damages
exclusively in accordance with the provisions of these International Conditions of
Sale. Any recourse to concurrent bases of claim, in particular of a non-contractual
nature, is excluded. Equally excluded is any recourse against HAWITA’s company
organs, employees, servants, members of staff, representatives and/or those
employed by HAWITA in the performance of his obligations on grounds of breach of
contractual obligations owed by HAWITA.
f) Insofar as the limitation period may not already have barred the claim, claims
for damages brought by the customer are excluded after six (6) months beginning
with the rejection of the claim for damages by HAWITA.
2. Irrespective of continuing statutory or contractual claims, the customer is obliged to
pay damages to HAWITA as follows:
a) In the event of delay in payment, the customer will pay a lump sum of EUR
50.00, the costs of arbitral, judicial and extra-judicial means and proceedings, usual
and accruing within the country and abroad, as well as (without evidence being
necessary) interest at the rate applicable in 49377 Vechta/Germany for unsecured
short-term loans in the agreed currency, at least however interest at 9 per-cent points
over the base rate of the German Federal Bank (Deutsche Bundesbank).
b) In the case of a late taking delivery of the goods by the customer by more
than two (2) weeks, HAWITA is entitled to claim damages without evidence being
necessary of 5 per cent of the value of the goods to be delivered. In the case of a late
taking delivery of the goods by the customer by more than six (6) weeks or an entire
failure to take delivery as well as in the event of non-delivery due to a breach of
contract by the customer, HAWITA is entitled to claim damages without evidence
being necessary of 20 per cent of the value of the goods to be delivered.
c) If the contract has been avoided by the customer without justification,
HAWITA is entitled, insofar as he consents to the avoidance, to claim damages
without evidence being necessary in the amount of 20 per cent of the value of the
goods to be delivered.
3. Within the bounds of what is legally possible as well as within what is usual in the
trade, the customer is in his commercial relationships with his clients obliged to limit
his liability both in principle and in amount.
VIII. Other Provisions
1. Title of the goods that have been delivered remains with HAWITA until settlement
of all claims existing against the customer. The allocation of risk as to price and
performance in section III.-9. is not affected by the reservation of title.
2. Irrespective of continuing statutory or contractual claims, the customer will indemnify
HAWITA without limit against all claims of third parties which are brought against
HAWITA on the grounds of product liability or similar provisions, to the extent that
the liability is based on circumstances which – such as, for example, the presentation
of the product – were caused by the customer or other third parties without express
written consent of HAWITA. In particular, the indemnity also includes the
reimbursement for expenses incurred by HAWITA and is granted by the customer
waiving further conditions or other objections, in particular without requiring
compliance with control and recall obligations and waiving any defence of limitation.
3. In relation to pictures, drawings, calculations and other documents and computer-
software, which have been made available by HAWITA in a material or electronic
form, the latter reserves all proprietary rights, copyrights, other industrial property
rights as well as know-how rights.
4. Subject to written objection by the customer, personal data, which HAWITA receives
from the customer in the execution of activities covered by these International
Conditions of Sale, are processed by HAWITA and also by service providers located
in Germany or abroad.
5. The transmission of electronic documents (EDI) requires special agreements.
6. All communications, declarations, notices etc. are to be drawn up exclusively in
German or English. Communications by means of fax or e-mail fulfil the requirement
of being in writing.
IX. General Basis of Contracts
1. The place of delivery results from section III.-5. of these International Conditions of
Sale and applies likewise to the delivery of substitute goods or the repair of delivered
goods. The place of payment and performance for all remaining obligations arising
from the legal relationship between HAWITA and the customer is 49377
Vechta/Germany. These provisions also apply if HAWITA assumes the costs of
money remittance, renders performance for the customer somewhere else or
payment is to be made in exchange of documents or goods or in the case of restitution
of performances already rendered. The agreement of other clauses of the Incoterms
or of clauses such as „delivery free…….“ or similar ones merely involve a variation of
the provisions as to the transportation and the transportation costs; besides that, the
provisions laid down in these International Conditions of Sale remain applicable.
2. The United Nations Convention of 11 April 1980 on Contracts for the International
Sale of Goods (UN Sales Convention / CISG) in the English version governs the
legal relationship with the customer. The UN Sales Convention applies, above and
beyond its own area of application, and regardless of reservations adopted by other
states, to all contracts to which these International Conditions of Sale are to be
applied according to the provisions of section I.
3. The formation of contract, including agreements as to the jurisdiction of courts and
arbitrators, its amendments or alterations, and the contractual rights and
obligations of the parties, also including the liability for death or personal injury
caused by the goods to any person and breach of pre-contractual and collateral
obligations, as well as the interpretation are exclusively governed by the UN Sales Convention together with these International Conditions of Sale. Where standard
terms of business are used, in case of doubt the Incoterms® 2010 of the International
Chamber of Commerce apply taking into account the provisions stipulated in these
International Conditions of Sale. Subject to differing provisions in these International
Conditions of Sale, the rest of the legal relationship between the parties is governed
by the Swiss Code of Obligations.
4. All contractual and extra-contractual disputes as well as disputes under insolvency
law, arising out of or in connection with contracts to which these International
Conditions of Sale apply, including their validity, invalidity, breach or cancellation as
well as other disputes arising out of the business relationship with the customer shall
be finally resolved, without recourse to the ordinary courts of law, by arbitration
according to the Swiss Rules of International Arbitration (Swiss Rules) in force on
the date when the Notice of Arbitration is received in accordance with these Rules.
The tribunal shall consist of three (3) arbitrators, one (1) of them shall be nominated
by the claimant, one (1) of them by the respondent and the chairman of the tribunal
shall be designated by the two arbitrators so nominated, or if the amount in dispute
is inferior to € 250.000, there shall be one (1) arbitrator appointed according to the
Swiss Rules of International Arbitration. The place of the arbitration shall be
Zurich/Switzerland, the languages used in the arbitral proceedings shall be German
and/or English. The competence of the Arbitral Tribunal excludes especially every
statutory competence of state courts, which is provided by reason of a personal or
substantive relation. If this arbitration clause is ineffective or ceases to be effective,
the non-exclusive jurisdiction of the courts which have jurisdiction for 49377
Vechta/Germany is agreed for all disputes instead. If the relevant place of business
of the customer is within the European Economic Area (EWR) or Switzerland,
irrespective of any ineffectiveness of the arbitration clause and instead of bringing an
action before the arbitral tribunal, HAWITA is also entitled to bring an action before
the State Court which has jurisdiction for 49377 Vechta/Germany or the State Court
of the customer’s place of business.
5. If provisions of these International Conditions of Sale should be or become partly or
wholly ineffective, the remaining arrangements will continue to apply. The parties are
bound to replace the ineffective provision with a legally valid provision, as close as
possible to the commercial meaning and purpose of the ineffective provision.