Hailo Katalog Professional Seite 195
Gewerbekunden Angebot**Topseller von Hailo
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(b) Claims against third parties based on the resale of the Secured Goods or the resulting products are hereby assigned by the Purchaser to us by way of security in the value of our co-ownership as set out in the preceding paragraph (a). We accept such assignment. Purchaser’s duties as set out in § 5(2) shall apply to assigned claims accordingly. (c) The Purchaser shall remain authorised to collect payment in addition to ourselves. We undertake not to collect payment for as long as the Purchaser complies with his payment obligations to us, there is no deficiency in his performance capability and we have not exercised our rights under § 7 (3) aforesaid. In such circumstances we can request the Purchaser to inform us of the assigned claims and their debtors, to provide us with any information required to collect payment and corresponding documentation and to inform the debtors of the assignment. Furthermore in such circumstances we are entitled to revoke Purchaser’s authorisation to process and resell the Secured Goods. (d) If the value of the securities provided to us exceeds our claims by more than 10 percent, we undertake to release securities of our choice on demand by the Purchaser. Where we assert a claim based on reservation of title this shall only be deemed to be rescission of the contract as well where we expressly declare the same in writing beforehand. In the event that the above retention of title clauses are void or unenforceable according to the law of the state/country in which the goods are situated, the collateral security which corresponds to the retention of title in that state/country is deemed to be agreed. § 8 Purchaser’s Rights in the case of Defects The Goods supplied by us correspond to the German regulations and standards currently in force. We give no guarantee that the Goods comply with other national regulations. Where the Goods are to be put into operation overseas it is the responsibility of the Purchaser to ensure that the Goods are in conformity with the relevant legal requirements and standards and where required to make appropriate adaptations. Purchaser’s rights regarding material defects or defects in title (including wrong or short delivery, improper installation or faulty installation instructions) are governed by the statutory provisions except where provided otherwise below. Purchaser’s claims under warranty are subject to compliance with his statutory obligation to inspect incoming Goods and to notify us of any defects discovered (§§377, 381 of the German Commercial Code (HGB)). Where a defect is discovered on or subsequent to inspection, the Purchaser must inform us without delay in text form, in any event no later than 28 days after delivery. Timely dispatch of notice is sufficient to preserve Purchaser’s rights under warranty. Irrespective of the aforesaid inspection and notification obligation the Purchaser is under an obligation to notify us of obvious defects (including wrong and short delivery) without delay in text form, in any event no later than 28 days after delivery. Timely dispatch of notice is sufficient to comply with the notice requirement. Where the Purchaser fails to carry out the inspection and/ or notify us of a defect, we shall not be held liable for such defect. Where the Goods delivered by us are defective we shall at our option deliver a replacement or remedy the defect (supplementary performance). The Purchaser shall grant us a reasonable period of not less than 15 working days to carry out the same. The Purchaser shall return the defective Goods for testing. Where we deliver a replacement the Purchaser shall return the defective Good in accordance with the statutory provisions. Supplementary performance does not include the disassembly of the defective object nor does it include its reassembly provided that we were not originally under a duty to assemble the Goods supplied. We bear the cost of testing defective Goods, remedying the defect or delivering a replacement including transport, travelling expenses, labour and material cost and where appropriate we shall reimburse removal and assembly costs provided that the Goods are actually defective and that the costs are not increased due to the subsequent transportation of the Goods to a location other than the original shipment location - unless the purpose for which the Goods are intended requires the same. Where the Goods are not actually defective we reserve the right to claim reimbursement of the expenses incurred (in particular inspection and transport costs) from the Purchaser except where the Purchaser was unable to identify the absence of defect. In the event that we are not in a position to remedy the defect or deliver a replacement the Purchaser is entitled to rescind the contract or to demand a reasonable reduction in the purchase price. Rescission of the contract is only permissible where the Purchaser prior thereto sets a final and reasonable deadline in text form expressly indicating his intention. Any claims of the Purchaser for compensatory damages or reimbursement of wasted expenditure based on defective Goods are subject to the provisions set out in § 9 below. Otherwise they are excluded. § 9 Damages Except where otherwise provided in these Terms including the following provisions we are liable for contractual and non-contractual breaches in accordance with the applicable statutory provisions. We are liable in damages for any claim irrespective of its legal basis where we have acted with willful default or in a gross negligent manner. For claims based on negligence we are liable in accordance with the statutory provisions as follows: (a) Liability for damages based on personal injury are not subject to any limitation of liability. (b) Liability for damages based on breach of a material term of the contract are limited to compensation for damages which were foreseeable and are ordinarily incurred; a material term of the contract is any term which is characteristic of performance of the contract and upon which the Purchaser could normally rely. (c) Liability for any other damages, other than those incurred by the Goods themselves, to include without limitation loss of profit or any other pecuniary loss incurred by the Purchaser, is excluded. The limitations of liability set out in § 9 (2) aforesaid shall apply to breaches of all persons for whom we are legally responsible. They do not apply where we have given a guarantee as to the quality of the Goods and in relation to claims of the Purchaser made under the Product Liability Act (Produkthaftungsgesetz). In the event of a breach which does not render the Goods defective the Purchaser shall only be entitled to terminate or rescind the contract where we are responsible for the breach. Notice of termination or rescission must be in text form. Otherwise the statutory provisions shall apply. Any claim made by the Purchaser for reimbursement of wasted expenditure shall be subject to the aforesaid. § 10 Limitation The limitation period for claims based on the supply of defective Goods and services as well as for claims for damages is one year from the date of delivery. The limitation period aforesaid shall not apply in relation to claims based on wilful default, gross recklessness, or to personal injury claims and to claims under product liability laws nor shall the limitation period apply where longer limitation periods are prescribed by law. § 11 Intellectual Property Rights, Copyright The supply of Goods or works (to include without limitation quotations, drawings and other documentation) shall not be deemed to confer the grant of a licence to use any of our intellectual property rights or copyright. Any such grant of licence shall be subject to a separate agreement. In the event that the Goods supplied violate third party intellectual property rights we shall be entitled at our option to obtain the required intellectual property rights or a licence to use the same within a reasonable period or to supply the Purchaser with an acceptable alternative. § 12 Non Disclosure During the term and after termination of this contract the parties shall not disclose to third parties or use for their own business aims without authorisation any confidential information (to include without limitation quotations, documents, samples, sketches, business intentions, personal data, problems, data and/or problem solutions, or any other know-how of any kind as well as information visually gained by the inspection of plants or facilities) received from the other party or of which the parties became aware by reason of their collaboration. The aforesaid non-disclosure obligation shall also apply in relation to the existence and content of this contract. The parties shall also impose this obligation upon their employees. This non-disclosure obligation shall not apply to information which – was already known to the other party prior to the contract; – was legally acquired from third parties; – is or comes into the public domain or is the state of the art; – cleared for disclosure by the disclosing party. Upon termination of the contract the parties shall return unrequested all confidential documents and information of the other party in tangible or non-tangible form or at the request of the other party destroy the same or insofar as technically reasonable irrevocably delete the same. The parties shall comply with data protection law requirements, in particular where access is granted to the premises or hardware or software of the other party. They shall undertake suitable measures to ensure that vicarious agents and third parties acting on their behalf shall also comply with the same. § 13 Choice of Law, Jurisdiction These Terms and all legal relations between us and the Purchaser shall be governed by the laws of Germany excluding the United Nations Convention on the International Sales of Goods (CISG). For Purchasers who are acting in the course of a business within the meaning of the German Commercial Code, public law entities or federal special funds and whose principle place of business is situated in the European Union all disputes arising directly or indirectly out of these Terms shall be resolved before the courts in D-35708 Haiger, Germany. We reserve the right to sue the Purchaser at the place of performance or before the courts of local jurisdiction situated at the Purchaser’s place of business. Overriding statutory provisions in particular rules providing for exclusive jurisdiction of a particular court, shall remain unaffected. For Purchasers whose principle place of business is situated outside the European Union all disputes arising out of these terms and conditions shall be finally settled in accordance with the Rules of the German Institution of Arbitration e.V. (DIS) without recourse to the ordinary courts of law. The place of arbitration shall be Frankfurt am Main, Germany. 195
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