HEWI Catalog Hardware Page 445
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International terms and conditions of sale § 10 Duty of examination and notification (1) Without prejudice to the legal provisions, the buyer is obliged to examine the goods comprehensively in respect of deviations as regards type, quantity, quality and packaging. If necessary, the buyer is obliged to conduct the examination with the help of external third parties. (2) Notice of non-conformity has to be made in within ten (10) calendar days. For very obvious non-conformities, the period for such notification starts with the delivery of the goods, in all other cases after the buyer has discovered the non-conformity or ought to have discovered it. Notice of non-conformity has to be given in writing. The notice of non-conformity has to clearly indicate and describe the non-conformity in such a way that we can take remedial actions. (3) Apart from the aforesaid as well as with respect to defects in title, the statutory provisions apply. a. We are not liable for the conduct of our suppliers or subcontractors. Neither are we liable for damages to which the buyer has contributed. b. The buyer has to prove that either our directors or employees or other members of staff have deliberately or negligently breached contractual obligations owed to the buyer. c. In case of liability, the amount of damages for late delivery is limited to 0,5 per cent for each full week of delay, up to a maximum of 5 per cent of the purchase price of the goods delivered late or not at all, and in case of remedies because of delivery of non-conforming goods and/or goods with a defect in title and in case of all other breaches of obligations is limited to the purchase price of the goods affected. d. Irrespective of § 12 sec. 5 c), we are not liable for loss of profit. e. The aforesaid limitations in § 12 sec. 5 do not apply (1) In case of delivery of non-conforming goods, the buyer can claim delivery of substitute goods, rectification of a non-conformity by repair, reduce the purchase price or declare avoidance of the Contract of Sale only in accordance with the legal provisions. Delivery of substitute goods and rectification of a non-conformity by repair does not include the removal of the non-conforming goods nor the assembly of the repaired or of the substitute goods. (2) To the extent any costs associated with performing remedies are increased by the fact that the buyer has removed the goods to a place not stated in the Order Acknowledgement or, in the absence of such an indication, to a place other than the buyer’s place of business, these costs will be borne by the buyer. (3) Delivery of substitute goods or repair does not lead to a restart or extension of the limitation period. (4) If we deliver non-conforming goods or goods with a defect in title or breach any other obligation resulting from the Contract of Sale or the business relationship with the buyer, the buyer is entitled to demand damages only in accordance with the following provisions and any recourse to concurrent bases of claim (in particular of a non-contractual nature) is excluded: (6) The place of performance for delivery is governed in § 5 sec. 2, the place of per-formance for the payment in § 8 sec.1. For all remaining obligations and irrespective of the agreement of a differing Incoterms-clause, the place of performance is agreed to be 34454 Bad Arolsen/Germany, including for a replacement delivery, for the rectification of non-conformities and for the restitution of the contractual obligations in case of avoidance of the Contract. (7) All communications, declarations, notices etc. (hereinafter collectively “Notices”) are to be drawn up exclusively in German or English. Notices by means of fax or email fulfil the requirement of being in writing. A signature is not required, unless these International Terms and Conditions of Sale explicitly require a signature. § 15 Agreement on arbitration and jurisdiction § 11 Limitation Period § 12 Remedies in case of non-conforming goods and goods with a defect in title; Limitation of Liability (5) The buyer is not entitled to assign his rights and obligations against us to a third party. i. to injury of life, body or health, ii. if we have acted maliciously, grossly negligent or intentionally, Without prejudice to claims resulting from a malicious, grossly negligent or intentional conduct as well as claims due to injury of life, body or health, the buyer’s claims in respect of the delivery of non-conforming goods and goods with a defect in title become time-barred one (1) year after delivery of the goods. (4) Any amendments to a concluded Contract of Sale require our written confirmation, duly approved by signature. iii. if we are liable according to mandatory product liability laws, and iv. to liabilities which may not be excluded or limited according to the applicable laws. (5) Apart from the aforesaid, the statutory provisions apply. § 13 Right to use Software; Rights in documents etc. (1) In case the goods include software, with the delivery of the goods the buyer is hereby granted a non-exclusive, royalty-free license to use the software, but strictly and only in connection with the goods purchased under this Contract of Sale. With the exception of the right to make one backup copy, the buyer is not entitled to copy the software. (2) We reserve all intellectual property rights in any documents, pictures, drawings etc. (collectively “Documents”) arising in connection with the performance of the obligations arising under the Contract of Sale and such Documents shall belong exclusively to us. § 14 Other Provisions (1) Title of the goods that have been delivered remains with us until all of our claims against the buyer have been settled. (2) We are not obliged to perform any obligations not stated in the written Order Acknowledgement or in these International Terms and Conditions of Sale. (3) There are no side agreements to the Contract of Sale. (1) If the Buyer’s place of business is located within the European Economic Area and/or within Switzerland, for all disputes, including disputes under insolvency law, arising out of or in connection with a Contract of Sale and/or these International Terms and Conditions of Sale, including its validity, invalidity, violation or cancellation as well as other disputes arising out of the business relationship between the Buyer and us, the state court which has jurisdiction for 34454 Bad Arolsen/Germany shall have exclusive jurisdiction. Instead of bringing an action before the state court which has jurisdiction for 34454 Bad Arolsen/ Germany, we are also entitled to bring an action before the state court of the Buyer’s place of business. (2) If the Buyer’s place of business is located outside of both the European Economic Area and Switzerland, all contractual and extra-contractual disputes, including disputes under insolvency law, arising out of or in connection with a Contract of Sale and/or these International Terms and Conditions of Sale, including its validity, invalidity, violation or cancellation as well as other disputes arising out of the business relationship between the Buyer and us shall be finally settled in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers’ Arbitration Institution in force on the date on which the Notice of Arbitration is submitted in accordance with these Rules. The place of the arbitration shall be Zurich/ Switzerland, the language used in the arbitral proceedings shall be English. § 16 Severability If provisions of these International Terms and Conditions of Sale should be or become partly or wholly ineffective, the remaining provisions will continue to apply. We and the buyer 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. HEWI Hardware | 443 General Information (2) The goods are not free from rights or claims of third parties if at the time the risk passes they significantly deviate from the requirements set out in § 4 sec. 3.
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