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Am Heschen 4-6
CEO: Dr. Dipl. -Ing. Horst Harrer
Commercial Trade Reg.: HRB330829 / Stuttgart
Copyright: Users are not to be permitted to copy, to publish or to benefit the contents of our web sites. The web sites and the contents are trademarked by copyright.
All rights reserved by Harrer & Kassen GmbH.
General business terms
I. General provisions
- The following conditions of sale and delivery apply to all offers, deliveries and services of Harrer & Kassen GmbH. The customer accepts these conditions of sale and delivery at the
latest upon receipt of the goods or services. Deviating terms and conditions of our customers are hereby contradicted. They only apply of their validity is confirmed by us in writing by the
- Harrer & Kassen GmbH reserves its ownership and copyright exploitation rights without reservation to cost estimates, drawings and other documents (hereinafter "documents").
The documents may only be accessible to third parties with the prior consent of Harrer & Kassen GmbH and, if the order is not placed by Harrer & Kassen GmbH, they must be returned to
Harrer & Kassen GmbH immediately upon request. Sentences 1 and 2 apply accordingly to documents of the purchaser; however, these may be accessible to third parties to whom
Harrer & Kassen GmbH has permitted deliveries.
- Regarding standard software the Purchaser has the non-exclusive servitude within the contractual use of the agreed deliveries. The Purchaser is allowed to create a backup-copy of the
software without written acceptance of Harrer & Kassen GmbH.
- Partial shipments shall be permissible where the Purchaser can be reasonably expected to accept such partial Supplies.
II. Prices and Terms of Payment
- The prices are ex works excluding packaging plus applicable VAT.
- If Harrer & Kassen GmbH has taken over the installation or assembly and if nothing else has been agreed, the purchaser shall pay all necessary ancillary costs such as travel expenses,
costs for transporting the tools and personal luggage as well as triggering in addition to the agreed compensation.
- Payments are to be made to the paying agent of Harrer & Kassen GmbH.
- Buyer may only set off such claims that have been recognized by us or by court in a final judgement.
Reservation of Titels
- The objects of the deliveries (reserved goods) remain the property of Harrer & Kassen GmbH until the fulfillment of all claims arising from the business relationship.
The Harrer & Kassen GmbH, the highest of all secured claims, which exceed 20%, will release the Harrer & Kassen GmbH at the request of the corresponding part of the security rights.
- During the existence of the retention of title the buyer is prohibited from pledging or chattel mortgage and the resale is only allowed to resellers in the ordinary course of business and
only on the condition that the reseller receives payment from his customer or makes the reservation that the ownership of the customer first passes if he has fulfilled his payment obligations.
- In the case of seizures, confiscations or other dispositions or interventions by third parties, the customer must notify Harrer & Kassen GmbH immediately.
- In case of breaches of duty of the buyer, in particular in case of default in payment Harrer & Kassen GmbH is entitled to cancellation and to take the goods back after the unsuccessful
expiry of a deadline set to the buyer for service; the statutory provisions concerning the dispensability of setting a deadline remain unaffected. The buyer is obliged to hand-over the goods.
IV. Terms for delivery; delay
- The observance of deadlines for deliveries presumes the timely receipt of all documents, necessary permits and releases to be supplied by the buyer, in particular of plans as well as the
compliance with the agreed terms of payment and other obligations by the buyer. If these pre-requisites are not satisfied in time then the deadlines shall be extended by a reasonable extent;
this shall not apply if Harrer & Kassen GmbH is responsible for the delay.
- The deadlines shall be extended by a reasonable extent if the non-observance of the deadlines is due to force majeure or to similar events.
- Both claims for damages of the purchaser due to delay of the delivery as well as claims for damages instead of the performance are excluded in all cases of delayed delivery, even after the
expiration of a deadline for delivery which is set by Harrer & Kassen GmbH. This does not apply insofar as liability is mandatory in cases of intent, gross negligence or injury to life, limb
or health. The customer may only withdraw from the contract within the scope of the statutory provisions insofar as the delay in the delivery is the responsibility of Harrer & Kassen GmbH.
A change in the burden of proof to the detriment of the customer is not connected with the above regulations.
- The purchaser shall, at the request of Harrer & Kassen GmbH, make a declaration by an appropriate deadline, stating whether he is to withdraw from the contract because of the delay or
whether he is to insist on delivery
- If shipping or delivery is delayed by more than one month after notification of readiness for shipment at the request of the purchaser, the purchaser may be charged storage fee of 0.5% of
the price of the goods for each month started, up to a maximum of 5%. The proof of higher or lower storage costs remains to the contracting parties.
V. Transfer of risk
- Even where delivery has been agreed freight free, the risk shall pass to the Purchaser as follows:
- If the Supplies do not include assembly or setup, at the time when the Supplies are shipped or picked up by the carrier. Upon request of the Purchaser, the Supplier shall insure the Supplies
against the usual risks of transport at the expense of the Purchaser;
- if the Supplies include assembly or set up, at the day of taking over in the own works or, if so agreed, after a fault-free trial run.
- The risk shall pass to the Purchaser if dispatch, shipping, the start or performance of assembly or erection, the taking over in the own works or the trial run is delayed for reasons for
which the Purchaser is responsible or if the Purchaser has otherwise failed to accept the Supplies
VI. Set-up, installation, commissioning/start-up
The following conditions apply to the set-up and installation, unless other agreements have been reached in writing:
- The orderer has to bear the costs for and provide the following on time:
- all earth and construction work as well as other ancillary work to be carried out by other trades, including the qualified personnel and labour, building material and tools,
- the required equipment and consumables necessary for installation and commissioning/ start-up, such as scaffolding, lifting gear and other devices, combustion materials and lubricants,
energy and water at the point of use, including connections, heating and lighting, sufficient large, suitable, dry and lockable rooms at the place of installation to store machine components,
apparatus, materials and tools, etc., and suitable work and staff-rooms for the installation personnel, including sanitary facilities according to the circumstances; furthermore, the orderer
has to take those measures on the building site for the protection of the assets of the supplier and his installation personnel, which he would take or the protection of his own assets, and
protection clothing and protection devices required on the installation site due to special circumstances.
- Prior to the commencement of installation work, the orderer shall provide the necessary information regarding the position of concealed electric, gas and water lines or similar systems,
as well as the required information on statics without being asked.
- Prior to the commencement of set-up or installation, the required supplies and objects required for starting work have to be made available at the set-up or installation site, and all
preparatory work must have advanced prior to installation to a point that set-up and installation can commence as contractually agreed and without interruption. Access paths and the set-up
or installation site must be level and cleared.
- If set-up, installation or commissioning/start-up are delayed by circumstances not attributable to the supplier, the orderer has to bear, to a reasonable degree, the costs for waiting
time and additionally required travels of the supplier or his installation personnel.
- The orderer has to testify the duration of the weekly working time of the supplier’s installation personnel as well as the termination of set-up, installation or commissioning/start-up
- If the supplier asks for the acceptance of the supply after production is completed, the orderer has to proceed with this acceptance within a period of two weeks. Otherwise, the acceptance
is deemed to have been successfully completed. The acceptance is also deemed as carried out, when the supplied goods, upon completion of an agreed test phase, as the case may be, have been
taken into use.
The customer shall not refuse receipt of deliveries due to unimportant defects.
VIII. Material defects
The suppliers is liable for material defects as follows:
- All parts or services will be repaired, newly delivered or rendered again, at the discretion of the supplier, which show a material defect within the period of limitation, irrespective
of the time of operation, if the cause of these defects was already given at the time of transfer of risk.
Claims for defect of quality come under the statute
of limitations after 12 months. This does not apply as far as the (German)
law according to §§ 438 Para. 1 No. 2 (building structures and components
for structures), 479 Para. 1 (claims of recourse) and 634a Para. 1 No. 2
(construction defects) BGB provides longer periods, or in cases of injury to
life, body or health, in the event of a malice or gross negligent violation
of duty on part of the supplier and fraudulent conceal of a defect. The
legal rules regarding the suspension of the running of a time, suspension
and new start of the periods remain unaffected.
- The orderer is obligated to immediately contest material defects to the supplier in writing.
- In the case of notices of defect, the orderer is entitled to withhold payments at a value that reasonably reflects the magnitude of the material defects encountered. The orderer is only
entitled to withhold payments, if a notice of defect is brought forward which leaves no doubt about it being justified. If the notice of defect was unjustified, the supplier is entitled to
claim a refund from the orderer for the expenses incurred.
- Supplementary performance with a reasonable period of time.
- Should the supplementary performance fail, the orderer can withdraw from the contract or reduce payment, notwithstanding any claims for damages according to Art. XI.
- Defects can neither be claimed in cases of only minor deviations from the condition agreed to, of negligible impairment of usability, of natural wear or damage that have occurred after
the transfer of risk as a result of misuse or negligent treatment, abuse, unsuitable equipment, deficient construction work, poor subsoil or of special external influences that are not
mentioned in the contract as a prerequisite, nor for software errors that cannot be remedied. Should the orderer or third parties carry out improper changes or repair work, claims for defects
are for such action and the resulting consequences are excluded.
- Claims by the orderer relating to the expenditure incurred for the purpose of supplementary performance, especially transport costs, errand, work and material costs, are excluded, in as
far as such expenditure increases as a result of the delivery object having been transported to a location other than the branch/company site of the orderer afterwards, unless this is in
compliance with the good’s intended use.
- Claims for recourse on part of the orderer against the supplier in accordance with the German § 478 BGB (recourse of the contractor) only exist in as far as the orderer has not reached
agreements beyond the legal claims for defects with his customers. The scope of the claim for recourse on part of the orderer against the supplier according to the German § 478 Para. 2 BGB
is also subject to No. 8 accordingly.
- Art. XI (Other claims for damages) applies to claims for damages further reaching or other claims of the orderer against the supplier and his vicarious agents on grounds of a material
defect laid down in this paragraph are excluded.
IX. Industrial Property Rights and Copyrights; Rights of Use
- Unless otherwise agreed upon, Harrer & Kassen GmbH shall be obligated to render delivery free from industrial property rights and copyrights of third parties (herein after: industrial
property rights) only in the country of the place of delivery. In case a third party raises justified claims versus the Customer due to the infringement of industrial property rights due
to contractually used Supplies rendered by Harrer & Kassen GmbH, Harrer & Kassen GmbH shall be liable to the Customer within the period determined in Article XIII No. 2, as follows:
- At his option and at his costs, Harrer & Kassen GmbH shall obtain either a use right for the Supplies concerned, or change them so that the industrial property right will not be infringed,
or replace them. If he is unable to do so at reasonable conditions, Customer shall be entitled to the statutory right of rescission or reduction
- The above-mentioned obligations shall only exist as far as Customer immediately notifies Harrer & Kassen GmbH in writing about the claims lodged by the third party, does not admit an
infringement, and if all defense measures and settlement negotiations shall be reserved for Harrer & Kassen GmbH. If the Customer stops using the Supply for reasons of mitigation of damage
or other important reasons, he shall be obligated to indicate to the third party that stopping the use is not connected with an admission of an infringement of an industrial property right.
- Claims of the buyer are excluded insofar as he is responsible for the infringement of property right.
- Claims of the purchaser are further excluded, as far as the breach of property rights is caused by special requirement by the purchaser, by an application unforeseeable by us or by the
fact that the delivery is changed by the purchaser or is used in connection with products not delivered by us.
- In the event of property rights infringements, the claims of the customer stipulated in No.1 a) shall apply, in addition the provisions in Art. VIII No. 4,5 and 9 shall apply correspondingly.
- In the event of other defects of title the provisions in accordance with Art. VIII shall apply analogously.
- Further reaching claims or any claims made by the Purchaser against Harrer & Kassen GmbH and its agents other than those dealt with in this, Art. IX, and concerning warranty for defect
of quality are excluded.
X. Impossibility; Contract adaption
- To the extent that supply is not possible the customer is entitled to demand compensation unless we are not responsible for such impossibility.Compensation claims of the customer shall, however, be restricted to 10 % of the value of the delivery which cannot be used for its designated purpose owing to such impossibility.This restriction shall not apply in as far as there is liability under statute in cases of intent, gross negligence or owing to injury to life, bodilyinjury or health; any change to the burden of proof of the Customer is not associated herewith. This shall not affect the customer's right to rescind the agreement.
- Contractual Adaption As far as unexpected incidences, according to Art. IV No. 2, will have substantial effect on the commercial relevance, or on Harrer & Kassen GmbH business, or will
substantially alter the subject matter of supply in this case and regarding the principle of utmost good faith, the contract shall be adapted correspondingly.
Should the Harrer & Kassen GmbH wish to avail itself of this right of withdrawal, it must inform the orderer without delay as soon as the impact of the event has been identified,
including in cases where an extension of the delivery period has already been agreed with the orderer in the first instance.
XI. Other claims for damages
- Claims for damages and indemnity by the orderer (in the following termed claims for damages), despite on which legal ground, especially resulting from breaching obligations arising from
the contractual obligations and from unauthorized action, are excluded.
- This does not supply, if liability is mandatory, for instance, according to the product liability law, in cases of intent, gross negligence, and injury to life, body or health, resulting
from the breach of major contractual obligations. The claim for damages for the breach of material contractual obligations, however, is limited to the foreseeable damage typical for the contract,
unless in the case of intent or gross negligence, or the liability is in effect because of injury to life, body and health. The regulations mentioned above do not include the alteration of
evidence to the disfavour of the orderer.
- If the orderer is legally entitled to claims of damages in accordance with this paragraph, these will fall under the statute of limitation when the valid statute of limitation for claims
of damages according to Art. VIII No.2 Warranty expires. The legal regulations ruling the statute of limitation are valid for claims of damages according to the product liability law.
XII. Place of jurisdiction and applicable law
- Sole jurisdiction for all disputes directly or indirectly resulting from the contractual relationship is the headquarters of our company or the headquarters of the buyer, as we select.
- For the legal relationships in connection with this contract, German substantive law shall apply, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XIII. Severability Clause
Should individual provisions of these conditions be or become entirely or partly invalid or void, the effectiveness of the remaining provisions shall remain unaffected thereby.