Electromechanical Industrial Solutions Conditions for the supply of equipment
The documents belonging to the offer, such as illustrations, drawings, weights and dimensions, are only approximate unless they are expressly designated as binding. Hologic Hitec-Imaging GmbH reserves the right of ownership and copyright to cost estimates, drawings and other documents; they may not be made accessible to third parties. Hologic Hitec-Imaing GmbH is obliged to make plans designated as confidential by the customer accessible to third parties only with the customer’s consent.
II. Scope of service
The written order confirmation is decisive for the scope of service, in case of an offer of Hologic Hitec-Imaging GmbH with time commitment and acceptance in due time the offer, if no timely order confirmation is available. Additional agreements and charges require the written confirmation of Hologic Hitec-Imaging GmbH.
III. Price and payment
1. In the absence of a special agreement, the prices shall apply ex works including loading at the factory, but excluding packaging. Value added tax at the respective statutory rate shall be added to the prices.
2. Payment shall be made in accordance with the agreement. In the event that payment deadlines are exceeded, annual interest of 4 % above the respective discount rate of the European Central Bank, but at least 5 %, shall be charged without the need for a notice of default.
3. The retention of payments or the set-off because of possible counterclaims of the orderer disputed by Hologic Hitec-Imaging GmbH are not admissible.
IV. Delivery time
1. The date of the order confirmation is the determining date for the order processing. Hologic Hitec-Imaging GmbH undertakes to send the order confirmation as a rule within two weeks after receipt of the written order. The prerequisite for this is that by this date of receipt the technical execution as well as the scope of performance and delivery could be finally and unambiguously clarified in all points. If an interruption or delay occurs here, Hologic Hitec-Imaging GmbH researches the right to redefine the dates after consultation.
The stated delivery dates are based on the fact that the sub-suppliers of Hologic Hitec-Imaging GmbH deliver essential additional parts on time according to the offer. If a delay occurs in this respect, the delivery date will be adjusted to the delay.
2. The delivery deadline is met if the delivery item has left the factory or the readiness for shipment has been communicated by the expiration of the delivery deadline.
3. The delivery period shall be reasonably extended in case of measures taken in the course of industrial disputes, in particular strikes and lock-outs, as well as in case of unforeseen circumstances beyond the control of Hologic Hitec-Imaging GmbH, as far as such obstacles can be proven to have a considerable influence on the completion or delivery of the delivery item. This also applies if the circumstances occur at sub-suppliers.
The aforementioned circumstances are also not the responsibility of Hologic Hitec-Imaging GmbH if they arise during an already existing delay. In important cases Hologic Hitec-Imaging GmbH will inform the orderer as soon as possible about the beginning and end of such obstacles.
4. If the shipment is delayed at the request of the purchaser, he will be charged starting one month after notification of readiness for shipment, for the costs incurred by the storage, in case of storage in the factory of Hologic Hitec-Imaging GmbH, however, at least ½ of the invoice amount for each month.
Hologic Hitec-Imaging GmbH is, however, entitled to dispose otherwise of the delivery item after setting and fruitless expiry of an appropriate deadline and to supply the orderer with an appropriate extended deadline
5. Compliance with the delivery period requires the fulfillment of the contractual obligations of the orderer.
V. Transfer of risk and acceptance
1. The risk is transferred to the orderer at the latest with the dispatch of the delivery parts, even if partial deliveries are made or Hologic Hitec-Imaging GmbH has taken over other services, e. g. shipping costs or delivery.
At the request of the purchaser, Hologic Hitec-Imaging GmbH will insure the shipment against theft, breakage, transport, fire and water damage as well as other insurable risks.
2. If the shipment is delayed due to circumstances for which the orderer is responsible, the risk is transferred to the orderer from the day of readiness for shipment; however, Hologic Hitec-Imaging GmbH is obliged to effect the insurances requested by the orderer at the latter’s request and expense.
3. Delivered goods are to be accepted by the orderer without prejudice to the rights under section VII, even if they show insignificant defects.
4. Partial deliveries are permissible.
VI. Retention of title
1. Hologic Hitec-Imaging GmbH retains ownership of the delivery item until receipt of all payments arising from the delivery contract.
2. Hologic Hitec-Imaging GmbH is entitled to insure the delivery against theft, breakage, fire, water and other demages at the expense of the orderer, unless the orderer has demonstrably taken out the insurance himself.
3. The Purchaser may neither pledge the delivery item nor assgin it as security. In case of seizure, confiscation or other dispositions by third parties, the purchaser has to notify Hologic Hitec-Imaging GmbH immediately.
4. In case of breach of contract by the orderer, especially in case of default of payment, Hologic Hitec-Imaging GmbH is entitled to take back the delivery item after a reminder and the orderer is obliged to surrender the delivery item.
The assertion of the reservation of title as well as the seizure of the delivery item by Hologic Hitec-Imaging GmbH shall not be considered as a withdrawal from the contract, unless the law on instalments payments applies.
VII. Liability for defects of delivery
Hologic Hitec-Imaging GmbH shall be liable for defects of the delivery, which also include the absence of expressly sent properties, to the exclusion of further claims and without prejudice to Section IX, 4 as follows:
1. All those parts shall be repaired or replaced free of charge at the reasonable discretion of Hologic Hitec-Imaging GmbH, which prove to be unusable or significantly impaired in their usability within 6 months (in case of multi-shift operation up to 2 shifts) after commissioning due to a circumstance prior to the passing risk – in particular due to faulty design, poor materials or defective workmanship. Hologic Hitec-Imaging GmbH must be notified immediately in writing of the discovery of such defects. Replaced parts become property of Hologic Hitec-Imaging GmbH. If shipment, installation or commissioning is delayed through no fault of Hologic Hitec-Imaging GmbH, liability expires at the latest 12 months after transfer of risk.
For essential third-party products, the liability of Hologic Hitec-Imaging GmbH is limited to the assignment of the liability claims to which it is entitled against the supplier of the third-party product.
2. The purchaser’s right to assert claims arising from defects shall become statue-barred in all cases after 6 months from the date of timely notification of defects, but at the earliest upon expiry of the warranty period.
3. No warranty is given for damages caused by the following reasons:
Unsuitable or improper use, faulty assembly or commissioning by the purchaser or third parties, natural wear and tear, faulty or negligent handling, unsuitable operating materials, replacement materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences, unless they are attributable to a fault of Hologic Hitec-Imaging GmbH.
4. The orderer has to give Hologic Hitec-Imaging GmbH the necessary time and opportunity to carry out all repairs and replacements which seem necessary to Hologic Hitec-Imaging GmbH after consultation with Hologic Hitec-Imaging GmbH, otherwise Hologic Hitec-Imaging GmbH is released from liability for defects. Only in urgent cases of endangerment of the operational safety and to revent disproportionately large damages, whereby Hologic Hitec-Imaging GmbH is in delay with the removal of the defect, the orderer has the right to remove the defect himself or to have it removed by third parties and to claim compensation for the necessary costs from Hologic Hitec-Imaging GmbH.
5. Of the direct costs arising from the repair or replacement delivery, Hologic Hitec-Imaging GmbH shall bear – insofar as the complaint proves to be justified – the costs of the replacement part including shipment as well as the reasonable costs of removal and installation, furthermore, if this can be reasonably demanded according to the situation of the individual case, the costs of any necessary provision of its fitter and auxiliary staff. In all other cases, the purchaser shall bear the costs.
6. The warranty period for the replacement part and the repair shall be 3 months, but shall run at least until the expiry of the original warranty period for the delivery item. The period for liability for defects in the delivery item shall be extended by the duration of the interruption of operations caused by the rectification work.
7. Any modifications or repair work carried out by the purchaser or third parties without the prior consent of Hologic Hitec-Imaging GmbH shall invalidate any liability for the resulting consequences.
8. Further claims fo the purchaser, in particular a claim for compensation for damages which have not occured to the delivery item itself, are excluded, insofar as legally permissible.
This exclusion of liability shall not apply in the event of intent or gross negligence on the part of the owner or executive employees and in cases where liability is assumed under the Product Liability Act in the delivery item in the event of personal injury or property damage to privately used objects.
VIII. Liability for collateral duties
If, through the fault of Hologic Hitec-Imaging GmbH, the delivered object cannot be used by the orderer in accordance with the contract as a result of omitted or faulty execution of suggestions and consulations prior to or after the conclusion of the contract as well as other contractual collateral obligations – in particular instructions for operation and maintenance of the delivery object – the provisions of Sections VII and IX shall apply accordingly, excluding further claims of the orderer.
IX. Right of the orderer to withdraw from the contract and other liability of Hologic Hitec-Imaging GmbH
1. The orderer can withdraw from the contract, if the entire achievment becomes finally impossible for Hologic Hitec-Imaging GmbH before passage of the risk. The same applies in case of inability of Hologic Hitec-Imaging GmbH. The orderer can also withdraw from the contract if, in case of an order of similar items the execution of a part of the delivery becomes impossible in terms of quantity and has justified interest in refusing a partial delivery; if this is not the case, the orderer can reduce the consideration accordingly.
2. If the impossibility occurs during the delay in acceptance or due to the fault of the orderer, the orderer shall remain obligated to counter-performance.
3. The orderer also has the right to withdraw from the contract if Hologic Hitec-Imaging GmbH, through its own fault, allows a reasonable period of grace to elapse for the repair or replacement of a defect for which it is responsible within the meaning of the terms of delivery. The purchaser’s right of withdrawal also exists in case of impossibility or inability of repair or replacement delivery by Hologic Hitec-Imaging GmbH.
Excluded are, as far as legally permissible, all other further claims of the orderer, in particular for cancellation, termination or reduction as well as for compensation of damages of any kind, including such damages which have not occured to the delivery item itself.
This exclusion of liability shall not apply in the case of intent or gross negligence on the part of the owner or executive employees and in those cases in which liability is assumed under the Product Liability Act for personal injury or property damage to privately used objects in the case of defects in the delivery item.
X. Right of Hologic Hitec-Imaging GmbH to withdraw from the contract
In case of unforeseen events in the sense of section IV of the terms of delivery, if they change the economic importance or the content of the services significantly or have a significant impact on the operation of Hologic Hitec-Imaging GmbH, and in case of subsequent impossibility of execution, the contract will be adjusted appropriately. If this is not economically justifiable, Hologic Hitec-Imaging GmbH has the right to withdraw from the contract in whole or in part.
Claims for damages of the orderer due to such a withdrawal do not exist. If Hologic Hitec-Imaging GmbH intends to make use of the right to withdraw from the contract, it shall notify the orderer thereof without undue delay after having become aware of the consequences of the event, even if an extension of the delivery period had initially been agreed with the orderer.
XI. Place of jurisdiction
The contract shall be governed by German law to the exclusion of the Hague Uniform laws on the International Sale of Goods.
The place of jurisdiction for all disputes arising from the contractual relationship is Warstein, Germany, if the purchaser is a registered trader, a legal entity under public law or a special fund under public law. Hologic Hitec-Imaging GmbH is also entitled to sue at the headquarters of the orderer or at the headquarters of its company.