General terms and conditions of Hanns Loersch GmbH & Co. KG

(hereafter called AIRWORKS)

1 Applicability of the conditions

The following terms and conditions apply exclusively for all deliveries and services of AIRWORKS to companies. All current and future legal relationships between AIRWORKS and the orderer are subject to the general terms and conditions of AIRWORKS in the currently applicable version. Deviating conditions, in particular purchasing conditions of the orderer, only become part of the contract if they are expressly agreed to in writing by the parties.

If master contracts have been established between the parties, they take precedence. The same applies with regard to special provisions in the delivery contract itself. The provisions apply with the following priority:

Delivery contract / Order / Purchase order
Master contract between the parties (if established)
General terms and conditions of AIRWORKS
Legislation

2 Establishment of the contract / proposal

In order to take effect, orders and delivery contracts must be confirmed in writing by AIRWORKS. This written form requirement itself can only be waived based on a written agreement to that effect. Proposals from AIRWORKS are always non-binding and valid for up to three months from receipt by the orderer.

3 Special conditions for services

Services provided by AIRWORKS for products (hereafter called “object(s) of service”) and their utilisation by the operator/customer are subject to special conditions. The operator’s basic obligations include use according to the instruction manual, function checks and the replacement of consumables and wear parts at recommended intervals, as well as maintenance/care as per the operating instructions. Should a malfunction occur, the operator must take suitable measures to protect people and property and inform AIRWORKS immediately. As soon as a defect is identified, the object of service must no longer be used until cleared for use by AIRWORKS.

If an on-site visit by a technician is required, the customer will provide AIRWORKS with unimpeded access to the object of service. The customer ensures that qualified contacts are present when service is performed. Moreover, the customer must ensure that the required supply connections are available and that the objects of service are not used in other operational processes. AIRWORKS reserves the right to separately invoice the orderer for costs arising in connection with waiting time, e.g. if agreed-upon appointments cannot be kept or if access to the equipment must first be established.

If sending defective objects of service to AIRWORKS, the service order is accepted by means of a written order confirmation. After that, repairs or repair/replacement deliveries are carried out as soon as possible. Specified repair and delivery times are always non-binding unless agreed upon otherwise.

Cost estimates are only issued upon express request by the orderer. If the customer does not issue an explicit objection within five days of receiving the cost estimate, the repair order is considered placed according to the non-binding conditions named in the cost estimate. AIRWORKS will inform the customer if additional effort of at least 20% of the initially estimated repair costs arises during the repair work. If the customer objects in time, AIRWORKS sends the device back to the orderer unrepaired and charges a flat fee of 85.00 EUR plus VAT for the cost estimate.

Should repair loan equipment provided by AIRWORKS upon request not be returned to AIRWORKS within the granted return period (five business days after the return of the repaired objects of service), a fee of 45.00 EUR plus VAT will be charged for each day the equipment is overdue. After a period of four weeks, the customer will be charged the full purchase price for the equipment. Should repair loan equipment be returned in an unsatisfactory condition, AIRWORKS reserves the right to invoice the customer up to 30 percent of the new merchandise value for restoration of the equipment.

Should AIRWORKS not receive an object of service for repair in the case of repairs using the advance exchange process within two weeks following dispatch of the advance exchange equipment, the customer will be invoiced the price of new merchandise delivered in exchange.

4 Prices / payment terms

Deliveries and services are provided by AIRWORKS at the prices and conditions contained in the delivery contract/proposal or the order confirmation from AIRWORKS. The prices stated therein are binding. The prices are generally understood to be ex works/warehouse of AIRWORKS, including packaging (ex works as per INCOTERMS 2010), plus any legally stipulated value added tax incurred.

All dispatch costs incurred for service provision are always borne by the customer. Should AIRWORKS render services outside of Germany, the customer will reimburse AIRWORKS for all incurred foreign taxes and duties relating to the service.

In the case of customer-specific products (e.g. printed film), the orderer is obligated to accept and pay for quantities determined based on technical aspects as long as they are not more or less than the original order quantity by more than 10 percent. In case of partial deliveries, each delivery can be invoiced separately.

All invoices from AIRWORKS are payable without deduction within 14 days of issue data unless agreed otherwise in writing. For the payment to be considered on time, the date on which AIRWORKS has access to the payment is relevant. In case of late payment, default interest at the discretion of AIRWORKS in the amount of normal banking interest or the legally stipulated interest (Art. 288 of the German Civil Code (BGB)) will be charged.

Where bills of exchange are accepted, AIRWORKS will do so only on account of performance and not in lieu of performance. AIRWORKS is entitled to revoke the deferral based on the acceptance of a bill of exchange at any time. The bank discount and collection expenses on the date of expiry will be borne by the orderer. In case of delayed payment, AIRWORKS will moreover be entitled to withdraw from the contract and demand compensation after setting an appropriate extension period without a refusal to accept performance. The orderer does not have the right to withhold any payment due to claims they may have against AIRWORKS or to offset such claims against any payment, unless their claim(s) has/have been acknowledged by AIRWORKS and is/are legally valid.

5 Delivery

Agreed delivery dates or service dates are non-binding unless otherwise expressly specified in the written order confirmation/call-off/contract. Partial deliveries are permissible. The delivery period begins upon dispatch of the order confirmation, however not before procurement of the objects, documents, permissions and approvals to be obtained by the orderer or prior to the receipt of any advance payment which may have been agreed upon. Should the orderer not fulfil their obligations to cooperate, an agreed delivery period will be extended by one month plus an additional month for each partial month.

The delivery period is considered fulfilled if the object of delivery has left the works or AIRWORKS have provided notification of readiness for dispatch prior to its expiry. Furthermore, the delivery period will be extended appropriately in the case of measures which are part of labour disputes, in particular strikes and lockouts, as well as in the case of unforeseeable hindrances, if such hindrances are verifiably of considerable impact on the production or delivery of the object of delivery. This also applies if these circumstances arise with AIRWORKS subcontractors. AIRWORKS is not responsible for the aforementioned circumstances even if they arise during an already existing delay in delivery. In crucial cases, AIRWORKS will notify the orderer of the beginning and end of such hindrances as soon as possible. In the case of delivery delays of less than two months, compensation for delays is excluded.

Beyond this, or if the compensation absolutely must be provided, the following will apply:

Should dispatch or delivery be delayed by more than one month after indication of readiness to dispatch due to a request or action of the orderer, AIRWORKS may charge the orderer a storage fee in the amount of 0.5 percent of the price of the objects of delivery concerned, but no more than a total of 10 percent of the value, for each partial month. The orderer is at liberty to prove that storage costs should be lower. After setting a suitable deadline without result, AIRWORKS is also entitled to dispose of the object of delivery otherwise and to deliver to the orderer subject to an appropriately extended deadline. Further claims, in particular rights from Art. 293 ff. of the German Civil Code (BGB) or Art. 280 ff. of the BGB also remain reserved by AIRWORKS, as does the claim to performance.

6 Transfer of risk

Risk is transferred to the customer no later than when the shipment leaves the works premises of AIRWORKS, including carriage-paid delivery.

Should dispatch/delivery be delayed due to circumstances attributable to the orderer, the risk is transferred to the orderer even prior to delivery starting from the day on which AIRWORKS indicates readiness for dispatch and declares the orderer in default of acceptance in writing. Delivered objects which exhibit insignificant defects must be accepted by the orderer without prejudice to warranty law as per No. 9 below.

7 Refusal of purchase

Should the orderer refuse to purchase the object of the contract or the delivery or service by AIRWORKS, AIRWORKS may set an appropriate deadline for purchase or acceptance. If the orderer has not purchased or accepted the object of the contract or the service by AIRWORKS within the period set by them, AIRWORKS will be entitled to withdraw from the contract or demand compensation due to non-fulfilment. Without prejudice to the right to claim the actual damages which have arisen, AIRWORKS will be entitled to claim 100 percent of the net order value as lump-sum compensation in the event that customer-specific special solutions are ordered which AIRWORKS cannot otherwise utilise after production. The orderer is at liberty to prove that the actual damages should be less.

8 Retention of ownership

All deliveries and services by AIRWORKS occur subject to the retention of ownership. Delivered merchandise, including repair replacements and exchange merchandise, remains the property of AIRWORKS until full payment of the purchase price is remitted, including all fees and expenses and all other receivables to AIRWORKS by the orderer of the current business relationship. Should merchandise be further processed or exploited by the orderer, such further processing/exploitation occurs for AIRWORKS, who apply as the manufacturer as per Art. 950 of German Civil Code (BGB) and acquire ownership of the intermediate or finished product. In the case of processing with other merchandise not belonging to the orderer, AIRWORKS acquires shared ownership of the new product in proportion to the value of the merchandise supplied by them to the value of the other merchandise at the time of processing. The orderer is revocably entitled to the resale of delivered merchandise and to further licencing within the scope of the agreement made at any time within the scope of proper business operations. As security, the orderer already assigns to AIRWORKS all receivables in connection with resale and their business relationship with their buyer with ancillary rights in the amount of the value of the respective merchandise supplied in each case. AIRWORKS is entitled to notify the orderer’s buyer of such assignment of receivables at any time. The orderer must immediately inform AIRWORKS of the name and address of the buyer upon request.

The orderer is obliged to insure the object of delivery, at their own expense, against theft, breakage, fire, water damage and other insurable damage for as long as AIRWORKS remain the owner of the retained merchandise, and to verify this insurance upon request. The orderer assigns to AIRWORKS any claims which may arise against the insurer for the loss or deterioration of objects of delivery under reserved ownership. AIRWORKS accepts the assignment. In the event of an insurance claim, AIRWORKS is authorised to notify the insurance company of the assignment and to liquidate the insured amount there.

The orderer may not pledge the object of delivery or use it as a security. In the event of pledges, as well as seizure or any other rights of disposal by third parties, the orderer is required to notify AIRWORKS of this immediately. Should AIRWORKS suffer any loss due to the failure to notify or due to late notification (e.g. by loss of rights), the orderer will be liable to pay AIRWORKS compensation.

In the case of conduct by the orderer in breech of contract, in particular in the case of delay in payment, AIRWORKS is entitled to take back the objects of delivery after a warning is issued without result, and the orderer is obligated to relinquish them.

9 Warranty

AIRWORKS products are manufactured according to national regulations and the specifications agreed upon with the customer. AIRWORKS assumes liability for defects initially at their own discretion through repair of the defects or replacement delivery. No liability is accepted for the typical wearing of wear parts, unsuitable or improper use or incorrect installation or commissioning of the objects of delivery by the orderer or a third party commissioned by the orderer. The same applies in case of natural wear, improper or careless handling of the objects of delivery, improper maintenance, the use of unsuitable operating materials and in the case of chemical, electrochemical or electrical influences for which AIRWORKS is not responsible.

In the event of a defect, the orderer must first give AIRWORKS sufficient opportunity to remedy the defect. Should this fail after at least two attempts, the orderer may, at their discretion, request a decrease in the price (reduction) or rescission of the contract (withdrawal). However, withdrawal is excluded in cases of negligible defects.

The orderer’s right to warranty claims is conditional on proper fulfilment of the examination and notification obligations as per Art. 377 of the German Commercial Code (HGB). The orderer must examine the delivered objects for quantity deviation, transport damage and defects immediately, at the latest within one week following receipt of the merchandise. The examination also includes a functional check. Any identified defects must be reported in writing to AIRWORKS within a further period of one week from receipt of the merchandise. If examination of the reported defect reveals that there is no defect or that the operator /customer is responsible for the defect, AIRWORKS will be entitled to invoice the customer for costs incurred by the examination and, if applicable, elimination. Repair or replacement delivery does not lead to a restart of the warranty limitation period.

In the case of reported defects, payments by the orderer my only be withheld to an extent which is appropriate in relation to the material defects present.

If the orderer chooses to withdraw from the contract following a failed remedy attempt of a justified material defect, they are not entitled to any damage claims due to the defects. If, following a failed remedy attempt, the orderer chooses to claim compensation for damages, they will retain custody of the merchandise if this is deemed reasonable. The compensation for damages will then be limited to the difference between the purchase price and the value of the defective object. This does not apply if AIRWORKS committed the contractual violation in a malicious way.

The warranty period is 12 months from delivery/purchase of the merchandise/service, or 18 months in the case of a warranty claim, calculated from the point in time of indication of readiness to provide on the part of AIRWORKS. This period does not apply to wilful acts on the part of AIRWORKS or a malicious failure to disclose the defect.

In terms of the properties of the merchandise, only the specific product description from AIRWORKS is considered to be agreed. Public statements, recommendations or advertisements of a third-party manufacturer or third party do not form part of the contractually agreed properties of the merchandise. All information about our products, in particular about content by percentage or mixture ratios, are average values determined through testing under laboratory conditions and are therefore non-binding. Unless limitations for permissible deviations have been expressly established and described as such in the order confirmation, customary deviations (manufacturing tolerances) are permissible. The same applies to deviations which, despite all due care during manufacture of the merchandise and determination of the values, are unavoidable.

Insofar as we provide application-related information or consulting, it will be based on our previous experience and is non-binding. Information and consultations do not release the orderer from performing their own tests and examinations. The orderer is responsible for compliance with statutory and regulatory requirements when using the merchandise.

AIRWORKS does not guarantee that merchandise to be exported or used outside of Germany complies with the export and import restrictions of the German Foreign Trade and Payments Law or the foreign trade and payments law of the state of purchase outside of Germany. The orderer themselves must observe these provisions and take them into account as part of specification/commissioning.

Defect claims by the orderer with regard to expenditures required for eliminating defects, such as transport and material costs, are excluded insofar as these expenditures have increased due to the object of delivery having been subsequently provided to a location other than the delivery location evident in the contract documents by the orderer should this provision not apparently correspond to the intended use of the object of delivery.

10 Force majeure

In cases of force majeure, AIRWORKS is exempted from any liability for delays/non-fulfilment of contractual obligations and are entitled to delay provision of service appropriately. Force majeure is considered to be any unforeseeable or unavoidable event or chain of events and incidents outside the usual area of influence of AIRWORKS which hamper fulfilment of contractual obligations.

11 Legal deficiencies/Property rights/Non-disclosure

AIRWORKS and the orderer are mutually obligated to treat all business and technical details of which they become aware as a result of their business relationship as business secrets.

All rights to patents, utility designs, registered designs, brands, outfitting, other property rights and copyrights relating to the object of the contract and the services remain with the respective rights holders. This also applies to product designations for software and for name and trademark rights. Photos, videos, text, diagrams etc. provided by AIRWORKS exclusively for advertising purposes may only be used in the form in which they have been approved by AIRWORKS in writing for this specific use.

Drawings, tools, software, moulds, devices, models, templates, samples and similar objects delivered, used or provided by or for AIRWORKS are, and remain, the property of AIRWORKS. They may not be passed on to or otherwise made accessible to unauthorised third parties. If the aforementioned objects are produced for AIRWORKS, they are already the property of AIRWORKS when created/manufactured. The reproduction of such objects is only permissible within the scope of operational necessity and provisions of patent-law, trademark-law, copyright-law and competition-law.

Should any claim be brought against the orderer by third parties due to direct infringement of property rights including copyrights related to the deliveries or services supplied by AIRWORKS, AIRWORKS will indemnify them for compensation claims against them which have been accepted or established by agreed settlement and for court and legal fees, subject to the following conditions:

In the event of a claim or a warning being issued by a third party, the orderer will notify AIRWORKS immediately and prior to taking any action to defend the case and/or involving an attorney. This does not include any urgent action which may need to be taken before AIRWORKS can be notified.
Only AIRWORKS will be entitled to take action to defend the case, hire attorneys for the purpose of conducting the defence, and/or make representations and/or conduct other negotiations. If so requested by AIRWORKS, the orderer will, at the expense of AIRWORKS, hire an attorney to conduct the defence.
The orderer will inform AIRWORKS immediately and regularly about the matter and will, in particular, make available any required information and documents.

AIRWORKS will not be liable in cases where the infringement of a third-party right is attributable to a change to the object of the contract or parts thereof, if the object of the contract itself does not infringe a right. Furthermore, AIRWORKS will not be liable in cases where the orderer, after being warned by a third party or after becoming aware of the potential infringement of a right owned by a third party, continues using the relevant item, unless AIRWORKS has agreed to such use in writing.

If it has been established by way of a legally effective decision that the use of the object of the contract, if continued, will infringe on property rights, including copyrights, owned by a third party or if, in the orderer’s opinion, there is a risk of a lawsuit being filed on grounds of infringement of property rights or copyrights, AIRWORKS may, at their discretion and expense, either procure the right to continue to use the object of the contract or exchange or modify the object of the contract in such a way that infringement no longer occurs or at least makes infringement less probable. Such action will not entitle the orderer in any way to assert any further claims against AIRWORKS.

12 Liability

AIRWORKS is not liable for damage which has not occurred to the object of delivery itself if caused due to slight negligence. This does not apply in the case of damage caused by malicious failure to disclose defects, to culpable injury to life, body or health or to damage for which liability for personal injury or material damage to privately used objects is compulsory according to German product liability law.

Liability is not accepted for the improper/unintended implementation of information provided during a telephone consultation or information in training documentation. Under no circumstances is AIRWORKS liable for damage attributable to the owner/customer, as a result of not having implemented a repair recommendation issued by AIRWORKS, which was caused by the owner/customer due to improper operation, improper assembly or installation or other actions and omissions, or which can be traced back to external causes outside the control of AIRWORKS. Liability for lost profit is excluded.

Compensation claims by the orderer against AIRWORKS generally lapse within one year as from delivery/acceptance of delivery/service. This does not apply in the case of compensation claims according to German product liability law. The respective legally prescribed limitation period applies in those cases.

13 Place of fulfilment/Place of jurisdiction

The place of fulfilment for deliveries and services of AIRWORKS and the place of jurisdiction for all obligations resulting from the contractual relationship with the orderer is the headquarters of the AIRWORKS company which carries out the delivery or, at their discretion, the location of a branch responsible for the delivery/service. AIRWORKS is also entitled to take legal action at the headquarters of the orderer or at the place of fulfilment. The laws of the Federal Republic of Germany apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Unless agreed upon otherwise, the language of the contract is German.

14 Written form/Severability clause

As a rule, ancillary agreements are only valid if they have been made in writing. Changes and/or supplements must be made in writing. This also applies to waiving the written form requirement itself. Should a provision of these conditions be or become ineffective or should the provisions exhibit an omission, the legal validity of the other provisions remains unaffected. In place of the ineffective provision, an effective one is considered agreed that approximates most closely the parties’ initial intent; the same applies in the case of an omission.

Hanns Loersch GmbH & Co. KG (AIRWORKS)
Last updated: October 2019