Terms and Conditions

I. Application of the International Conditions of Sale
(1) These International Conditions of Sale apply to all customers of Holter Regelarmaturen GmbH & Co. KG - hereinafter referred to as HORA - if the place of business of the customer concluding the contract is not in Germany. For customers whose place of business is in Germany, the General Conditions of Sale (Allgemeine Verkaufsbedingungen) of HORA apply, which will be forwarded on request.
(2) These International Conditions of Sale apply to all contracts made on or after 1 January 2024 whose preponderant object is the sale of goods to the customer. Additional obligations assumed by HORA do not affect the application of these International Conditions of Sale.
(3) Conflicting or deviating terms of business of the customer do not bind HORA, even if HORA does not separately object or unconditionally renders performance or accepts the customer's performance. Similarly, HORA shall not be bound if the customer's terms of business, irrespective of the contents of these International Conditions of Sale, deviate from statutory provisions.
(4) These International Conditions of Sale do not apply, if the customer buys the goods for personal, family or household use and if HORA knew or should have known that at the time of the formation of the contract.
II. Formation of the Contract
(1) The customer is under an obligation to give written notice to HORA prior to the formation of a contract if
• he concludes the contract for a third, undisclosed person, or
• the goods to be delivered are to be fit not only for normal use or the customer orders on the assumption of a particular purpose or his expectations are based on public statements, advertising messages or other circumstances outside the specific contract, or
• the goods to be delivered will be used in circumstances which are unusual, or which present a particular risk to health, safety or the environment, or which require a more demanding use, or
• there is a risk of atypical damages or unusual amounts of loss, in particular exceeding the limits set up in section VII.-1.-e), of which the customer is or ought to be aware, or
• the goods to be delivered are intended for use in a region/country subject to economic sanctions by the EU or one of its Member States or the US, or in case of resale such use cannot be excluded, or
• the goods to be delivered are intended for use by a natural or legal person, entity or body listed on a sanctions list of the EU or one of its Member States or the US or is 50% or more owned or otherwise controlled by one or more persons listed therein, or in case of resale such use cannot be excluded, or
• the customer is involved in proceedings for violation of foreign trade regulations, or
• the customer acquires the goods for the sole purpose of end use.
(2) Orders of the customer are to be put in writing. If the customer's order deviates from the proposal or the tender submitted by HORA, the customer will emphasize the differences as such.
(3) All orders, in particular also those received by employees of HORA, will take effect exclusively if followed by a written acknowledgement of the order by HORA. The actual delivery of the goods ordered, any other conduct of HORA or silence on the part of HORA does not allow the customer to assume the formation of the contract. HORA can dispatch such written acknowledgement of the order up to and including fourteen (14) calendar days after the customer's order has been received by HORA. Until this time, the customer's order is irrevocable.
(4) The written acknowledgement of the order by HORA shall be received in time if it is received by the customer within fourteen (14) calendar days after its date of issue. If, however, HORA requests a signature by the customer of the acknowledgement of the order, the contract only comes into effect if HORA receives a copy of the acknowledgement of the order legally signed by the customer, within fourteen (14) calendar days from the date of the written acknowledgement of the order. The customer will inform HORA without delay in writing if the written acknowledgement of the order is received with delay.
(5) The written acknowledgement of the order by HORA sets out all the terms of the contract and brings the contract into effect even if - except for the description, the price for the goods and the quantity to be delivered - the written acknowledgement is not consistent with the declarations of the customer in every respect, especially with reference to the exclusive application of these International Conditions of Sale. There are no verbal collateral agreements. The contract will fail to come into existence if the customer objects in writing that the acknowledgement of the order by HORA is not completely consistent with his declarations, the customer specifies the deviations not accepted by him in writing and if the objection is received by HORA within a short time, at the latest seven (7) calendar days, after receipt of the written acknowledgement of the order by the customer.
(6) Particular wishes of the customer, namely particular expectations of the customer regarding the usage or the condition of the goods, guarantees or warranties with reference to the goods or the performance of the contract, as well as performance declarations, instruction manuals or safety-related information requested by the customer, require express written confirmation by HORA in every case.
(7) Confirmations of the contract produced by the customer are of no effect without any objection by HORA being necessary. In particular, neither the actual delivery of the goods, any other conduct of HORA or silence on the part of HORA shall give rise to any belief by the customer in the relevance of his confirmation.
(8) HORA´s employees, consultants, commercial agents, or other sales intermediaries are not authorized to dispense with the requirement of a written acknowledgement of the order by HORA or to make promises which differ from its content or guarantees. If and to what extent such persons are authorized to make or receive declarations with effect for or against HORA, is to be determined according to German law.
(9) Amendments to the concluded contract always require written confirmation by HORA.
III. Obligations of HORA
(1) Subject to a failure of delivery on part of his suppliers irrespective of a congruent covering transaction or to an exemption according to section VII.-1. c) HORA must deliver the goods specified in the written acknowledgement of the order and transfer the property in the goods. HORA is not obliged to perform obligations not stated in the written acknowledgment of the order by HORA or in these International Conditions of Sale, in particular HORA is under no obligation if not explicitly agreed upon in writing to furnish documents or certificates regarding the goods, to deliver accessories, or to advise the customer.
(2) HORA’s obligations under the contract made with the customer are owed only to him. Third parties not involved in the formation of the contract, in particular the customer's clients, are not entitled to assert any claim arising from the customer’s contract with HORA. The customer's entitlement to take delivery continues to exist even if he assigns rights to third parties.
(3) Taking account of the tolerances customary in trade, HORA undertakes to deliver to the customer goods of the agreed description and quantity in a quality that corresponds to the standards customary in Germany and ensures that at the time of delivery the goods are free from rights or claims of private third parties which could prevent its use within the European Union. If the goods cannot be delivered in the condition offered at the time of the formation of the contract because technical improvements to goods of series production were made, HORA is entitled to deliver the goods with the technical improvements. HORA is entitled to make part deliveries and to invoice them separately.
(4) If further specification is required in relation to the goods to be delivered, HORA will carry this out having regard to his own interests and to the identifiable and legitimate interests of the customer. A request to the customer to specify the goods, or to participate in the specification, is not required. HORA does not undertake to inform the customer of the specification he has made or to give the customer the option of a differing specification.
(5) HORA undertakes to place the goods in the packaging customary at HORA and with the markings and labels customary in Germany at disposal for collection by the customer FCA (Incoterms 2020) at the place of delivery indicated in the written acknowledgement of the order or - if a place of delivery is not indicated - at the premises in 33758 Schloß Holte-Stukenbrock/Germany at the agreed time of delivery. Previous separation or marking of the goods or notification to the customer of the goods being placed at disposal is not required. Under no circumstances is HORA obliged to inform the customer of the delivery or a failure to take delivery of the goods in time, to examine the goods with respect to their conformity with the contract on the occasion of delivery, to check the operational safety of the means of transport and the transportation safe loading or to furnish proof of the delivery being effected. The agreement of other clauses of the Incoterms or of clauses such as "delivery free......." or similar ones merely involve a variation of the provisions as to the transportation and the transportation costs; besides that, the provisions laid down in these International Conditions of Sale remain applicable.
(6) The transport and the insurance of the goods are none of HORA’s obligations. If the customer does not give a counter instruction in writing in time, HORA is entitled to contract in the customer’s name and at the customer’s expense on terms usual in Germany for carriage of the goods at the customer’s risk and for reasonable insurance of the transport to the destination indicated by the customer and - if such a destination is not indicated - to the place of business of the customer.
(7) Compliance with agreed delivery times shall be conditional upon the customer providing containers for the transport of the goods in good time, providing documents, releases, permits, approvals, licences or any other authorizations or consents to be obtained in good time, opening letters of credit and making down-payments as agreed and performing all other obligations incumbent upon him properly and in good time, public documents being able to be obtained in good time and official pre-shipments inspections not causing any delay. In case of doubt, agreed delivery time-periods begin on the date of the written acknowledgement of the order by HORA. Notifying the customer of the delivery date HORA is entitled to deliver earlier than at the agreed delivery time or to select the date of delivery within the agreed period for delivery.
(8) Without prejudice to his continuing legal rights, HORA is entitled to fulfil his obligations after the time agreed upon, if the customer is informed that HORA will exceed the time limit and of the time period for late performance. Subject to aforesaid conditions, HORA is entitled to make repeated attempts at late performance. The customer can object to late performance within reasonable time if the late performance is unreasonable. An objection is only effective if it is received by HORA before commencing late performance. HORA will reimburse necessary additional expenditure, proven and incurred by the customer as a result of exceeding the time agreed upon to the extent that HORA is liable for this under the provisions laid down in section VII.
(9) Risks as to price and performance even in relation to goods which are not clearly identifiable to the contract and without it being necessary for HORA to give notice to the customer about the goods being placed at disposal, pass to the customer with delivery pursuant to section III.-5., albeit irrespective thereof with readiness for delivery by HORA according to the originally agreed delivery times, if these are postponed for reasons for which the customer is responsible, or as soon as the title to the goods has passed to the customer. The agreement of other clauses of the Incoterms or of clauses such as "delivery free......." or similar ones merely involve a variation of the provisions as to the transportation and the transportation costs; besides that, the provisions laid down in these International Conditions of Sale remain applicable.
(10) HORA is neither obliged to clear the goods for export nor to take care of customs advance declarations. However, HORA will apply for necessary export licenses and operate customs formalities necessary for the export if the customer has requested HORA to do so and has furnished HORA with the data essential for the export in a written notice dealing with this purpose exclusively. The data essential for the export to be furnished by the customer may include an end-user-certificate (EUC). If the goods are not cleared for export without any intentional or grossly negligent fault on the part of HORA, HORA is entitled to avoid the contract in whole or in part without compensation. The agreement of other clauses of the Incoterms or of clauses such as "delivery free......." or similar ones merely involve a variation of the provisions as to the transportation and the transportation costs; besides that, the provisions laid down in these International Conditions of Sale remain applicable.
(11) Unless expressly agreed otherwise in written form, HORA is not obliged to obtain proves of delivery, certificates of origin, documents, certificates, licences, or other authorizations necessary for the export, transit or import, or to achieve security clearance of the goods required for the carriage or otherwise or to render assistance to the customer in obtaining them. The agreement of other clauses of the Incoterms or of clauses such as "delivery free......." or similar ones merely involve a variation of the provisions as to the transportation and the transportation costs; besides that, the provisions laid down in these International Conditions of Sale remain applicable.
(12) HORA is in no case liable to perform duties associated with the making available of the goods on the market outside Germany, to bear levies, duties and charges accruing outside Germany, to comply with weight and measuring systems, packaging, labelling, or marking requirements or registration or certification obligations applicable outside Germany or to comply with any other legal provisions applicable to the goods outside Germany. The customer will arrange for translations in any language other than German of instructions, safety information, performance declarations or other written materials about the goods at his risk and expense.
(13) Without prejudice to his continuing legal rights and without a previous notice to the customer being necessary, HORA is entitled to suspend the performance of his obligations as long as, in the opinion of HORA, there are grounds for concern that the customer will wholly or partly fail to fulfil his obligations in accordance with the contract. In particular, the right to suspend arises if the customer insufficiently performs his obligations to enable payment to HORA or a third party or pays late or if the limit set by a credit insurer has been exceeded or will be exceeded with the forthcoming delivery. Instead of suspending performance HORA may at his own discretion make future deliveries, even if confirmed, conditional on payment in advance or on opening of a letter of credit confirmed by a major German commercial bank. HORA is not required to continue with performance of his obligations if an assurance given by the customer to avoid the suspension does not provide adequate security or could be challenged pursuant to an applicable law.
(14) Except as provided in section III.-8., HORA is only obliged to inform the customer of possible disruptions in performance, once the commencement of the disruption is unavoidably definite for HORA.
IV. Obligations of the Customer
(1) Irrespective of continuing obligations of the customer to guarantee or to enable payment, the customer undertakes to pay the agreed price for the goods in the currency specified in the written acknowledgement of the order transferring it without deduction and free of expenses and costs to one of the financial institutions designated by HORA. To the extent that a price for the goods has not been agreed, the price which is at the time of delivery HORA's usual selling price for the goods will apply. HORA's employees, consultants, commercial agents or other sales intermediaries are not authorized to accept payments.
(2) The payment to be made by the customer is in any event due for payment at the time specified in the written acknowledgement of the order or - if a time for payment is not indicated - on receipt of the invoice. The due time for payment arises without any further pre-condition and, in particular, does not depend on whether the customer has already taken delivery of the goods or the documents or has had an opportunity to examine the goods. The periods granted for payment will cease to apply and outstanding accounts will be due for immediate payment, if insolvency proceedings relating to the assets of the customer are applied for, if the customer without providing a justifiable reason does not meet fundamental obligations due towards HORA or towards third parties, if the customer has provided inaccurate information regarding his creditworthiness or to the extent that the cover given by a credit insurer for the customer is reduced on grounds for which HORA is not responsible.
(3) Regardless of the currency and of the jurisdiction of any arbitral tribunal or court, HORA is entitled at his own discretion to set off incoming payments against claims existing against the customer by virtue of his own or assigned rights at the time of payment.
(4) The customer undertakes to provide HORA with the data for applying for customs formalities according to section III.-10. in reasonable time ahead and in writing, to make agreed call-offs, to take delivery of the goods at the place of delivery resulting from section III.-5. and at the delivery time without taking any additional period of time and shall fulfil all the duties imposed by the contract and these International Conditions of Sale and insofar as not regulated therein by the rules of the ICC for the use of the agreed clause of the Incoterms® 2020 and by statutory provisions. The customer is only entitled to refuse to take delivery of the goods if he avoids the contract in accordance with the provisions in section VI.-1.
(5) The loading of the goods and their transport and insurance from the relevant place of delivery according to section III.-5. are the responsibility of the customer unless the contracts for the transport and insurance of the goods are concluded by HORA according to section III.-6. sentence 2. The customer shall ensure that the carrier is obliged to load and stow or to check the loading or stowage of the goods carried out by HORA or third parties.
(6) The customer warrants to have the goods transported abroad, not to transfer the right of disposal to third parties as long as the goods are in Germany, and to fulfil all legal requirements and documentations for the handling regarding customs laws and value added tax of the delivery or any service according to the applicable provisions in Germany. To the extent that HORA has to pay German or foreign customs duties, or German or foreign value added tax, the customer will indemnify HORA in all and every respect without prejudice to any continuing claim by HORA. The indemnity is granted by the customer waiving any further requirements or other defences, in particular waiving the defence of limitation or prescription and includes the reimbursement of the expenses incurred by HORA.
(7) The customer will not agree to or undertake any actions in relation to the goods purchased from HORA which are prohibited under applicable laws or by the terms of an export license issued for the contract. In particular, the customer undertakes to act in accordance with all applicable (re-)export control and sanctions regulations – including regulations of third countries – insofar as this does not conflict with German or EU law. To the extent that the customer is unsure whether such prohibitions exist, the customer shall seek consultation with HORA in writing.
(8) The customer will monitor the goods purchased from HORA in the market and will inform HORA without delay in writing of any concern that the goods might pose a risk for third parties. Moreover, the customer will, without any demand being necessary, inform HORA in writing if HORA has to observe any particular duties of reporting or registration or providing information or prior notification or other requirements for access to market or has to comply with obligations to retain documents, under the provisions which apply in the country of the customer or of the use of the goods initiated by the customer.
(9) Any statutory rights of the customer to set-off against claims of HORA, to withhold payment or taking delivery of the goods, to suspend the performance of his obligations or to raise defences or counterclaims are excluded, except where the corresponding claim of the customer against HORA is in the same currency, is founded in the customer's own right and is either due and undisputed or has been finally adjudicated or where despite written warning by the customer HORA has committed a fundamental breach of his obligations due and arising out of the same contract, and has not offered any adequate assurance.
(10) Irrespective of any statutory provisions, the customer shall at his own cost take care of or in any other way ensure renewed utilization, material recycling or otherwise prescribed waste-disposal of the goods delivered by HORA to the customer and of the packaging material.
V. Delivery of non-conforming Goods or Goods with Defective Title
(1) Without prejudice to any reduction of liability of the seller provided by law, goods do not conform with the contract if the customer proves that, taking into account the terms in section III., at the time the risk passes the packaging, quantity, quality or the description of the goods is significantly different to the specifications laid down in the written acknowledgement of the order, or in the absence of agreed specifications, the goods are not fit for the purpose which is usual in Germany. Changes in design, construction or material which reflect technical improvements do not constitute a lack of conformity with the contract. Regardless of the stipulation established in sentence 1, the goods shall be deemed to conform with the contract to the extent that the regulations applicable at the place of business of the customer do not prevent the usual use of the goods. Second-hand goods are delivered without any liability for their conformity.
(2) To the extent that the written acknowledgement of the order by HORA does not contain an explicit statement to the contrary, HORA is in particular not liable for the goods being fit for a purpose which is not usual in Germany or for complying with further reaching expectations of the customer or for possessing the qualities of a sample or a model or for their compliance with the legal regulations existing outside Germany, for instance in the customer's country. Any assurance or guarantee required by the customer must always be agreed to as such in the written acknowledgement of the order, also in subsequent dealings. HORA shall also not be liable for any non-conformity with the contract that occur after the transfer of risk. To the extent that the customer makes attempts not coordinated with HORA to remove non-conformities HORA will be released from his liability.
(3) The customer is obliged vis-à-vis HORA to examine or to have examined every single delivery comprehensively for any discoverable or typical lack of conformity with the contract and moreover as required by law.
(4) Without prejudice to any reduction of liability of the seller provided by law, goods have a deficiency in title if the customer proves that the goods are not free from enforceable rights or claims of private third parties at the time risk passes. Without prejudice to further legal requirements, third parties’ rights or claims founded on industrial or other intellectual property constitute a deficiency in title only to the extent that the rights are registered, made public and in legal force in the European Union and prevent the usual use of the goods in the European Union. Regardless of the stipulation established in sentence 1, title to the goods shall be deemed not to be defective to the extent that the regulations applicable at the place of business of the customer do not prevent the usual use of the goods.
(5) Without prejudice to the statutory obligations of the customer to give notice within reasonable time, the customer is obliged to give notice to HORA of any lack of conformity with the contract or any deficiency in title at the latest within one (1) year after taking delivery in accordance with section IV.-4. Such notice must be made in writing and directly to HORA, formulated in such a precise manner as to enable HORA to effect remedy measures and to secure claims against HORA’s suppliers, specify the root cause of the nonconformity to the extent possible, and moreover as required by law. In any case, transport damage must be reported directly to the transport company in writing without delay; the customer must send a copy of the report to HORA. HORA’s employees, consultants, commercial agents or other sales intermediaries are not authorised to accept notices outside HORA’s premises or to make any statements concerning lack of conformity with the contract or of title and its consequences. Statements by HORA as to the lack of conformity with the contract or as to the deficiency in title are for the purpose of explaining the factual position only, but do not entail any waiver by HORA of the requirement of proper notice.
(6) After correct notification in accordance with clause V.-5., the customer may demand in accordance with the terms of the UN Sales Convention delivery of substitute goods or repair of HORA or reduce the price for the goods. The delivery of substitute goods or repair does not lead to a recommencement of the limitation period. The reduction of the price for the goods is limited to the damages suffered by the customer. The customer shall have no remedies not provided for in these International Conditions of Sale or claims of a non-contractual nature. HORA is always entitled in accordance with the provision in section III.-8. to repair goods which do not conform with the contract or to supply substitute goods or to avert the customer's remedies by giving him a credit note of an appropriate amount.
(7) The customer is not entitled to remedies for delivery of non-conforming goods or goods with a deficiency in title, insofar as the customer is liable vis-à-vis third parties for conditions of the goods or their fitness for a use which are not subject of the agreement with HORA, or if the customer’s claim is based on foreign law.
(8) In the event of notice not having been properly given, the customer may only rely on remedies if HORA has intentionally concealed the lack of conformity with the contract or the deficiency in title.
(9) In case of unjustified assertion of remedies for delivery of non-conforming goods or goods with a deficiency in title, although the customer is or ought to have been aware that a non-conformity or a deficiency in title does not exist or that the cause for such non-conformity or deficiency in title claimed are not to be attributed to HORA, the customer is obliged to reimburse HORA for expenses incurred due to the unjustified assertion of claims.
VI. Avoidance of the Contract
(1) The customer is entitled to declare the contract avoided, if the applicable legal requirements are complied with, after he has threatened HORA in reasonable time after the facts justifying the avoidance of the contract had occurred with avoidance of the contract in writing and an additional period of time of reasonable length for performance fixed in writing has expired to no avail. In any event, the customer must give notice of avoidance of the contract within reasonable time after the additional period of time has expired in writing and to HORA directly. If the customer claims delivery of substitute goods, repair or other performance, he is bound for a reasonable period of time to the chosen remedy, without being able to exercise the right of declaring the contract avoided.
(2) Without prejudice to his continuing legal rights, HORA is entitled to avoid the contract in whole or in part if the customer objects to the application of these International Conditions of Sale, if the implementation or performance of the contract is or becomes prohibited by law in whole or in part, if on grounds for which HORA is not responsible the written acknowledgement of the order by HORA is received by the customer more than fourteen (14) calendar days after its date of issue, if insolvency proceedings relating to the assets of the customer are applied for, or if for other reasons HORA cannot be expected to fulfil his obligations by means which - taking into consideration his own interests and that of the customer as far as ascertainable and legitimate at the time of formation of the contract - are unreasonable, in particular in relation to the agreed counter-performance and efforts to reach an amicable solution have failed.
(3) Without prejudice to his continuing legal rights, HORA is entitled to avoid the contract in whole or in part after prior warning if the customer does not place call off orders as agreed, if he does not furnish HORA with the data necessary to apply for customs formalities in due time, if without providing a justifiable reason he does not meet fundamental obligations due towards HORA or towards third parties, if he has provided inaccurate information regarding his creditworthiness or to the extent that the cover given by a credit insurer is reduced on grounds for which HORA is not responsible.
VII. Damages
(1) Without waiving the legal requirements, HORA is only obliged to pay damages due to the breach of obligations resulting from contracts concluded with the customer, contractual negotiations carried on with the customer or the business relation with the customer in accordance with the following provisions. These provisions apply equally for all of HORA’s obligations to reimburse expenses or to pay penalties or liquidated damages.
a) The customer is obliged in the first instance to claim damages from other parties and can only claim damages from HORA to the extent that compensation cannot be obtained from another party.
b) The customer is required in the first instance to rely on other remedies and can only claim damages in the event of a continuing deficiency. The customer cannot claim damages as an alternative to other remedies.
c) HORA is not liable for the conduct of suppliers, subcontractors, carriers, or freight-forwarders, for damages to which the customer has contributed or for the consequences of customer interference with the security and/or safety measures of the delivered goods. HORA is not liable if the contract cannot be performed as agreed at the time of its formation due to statutory or sovereign measures. Neither is HORA liable for impediments which occur, as a consequence of natural or political events, pandemics, industrial disputes, sabotage, accidents, terrorism, biological, physical or chemical processes or comparable circumstances and which cannot be controlled by HORA with reasonable means. Moreover, HORA is only liable for injury culpably caused to life, body or health of persons or to the extent that the customer proves that the executive bodies or members of staff of HORA have deliberately or grossly negligent breached obligations owed to the customer.
d) In the event of liability, HORA will compensate within the limits of lit. e) the losses of the customer to the extent that the customer proves that he has suffered losses that cannot be avoided in any other way, that this loss was caused by a breach of an obligation owed to the customer by HORA and that the occurrence of the loss and the amount of the loss were foreseeable for HORA as a result of the breach of obligation when the contract was concluded. Moreover, the customer is required to mitigate his loss as soon as a breach of contract is or ought to be known.
e) HORA is not liable for loss of profit or damage to reputation. Moreover, the amount of damages for late or non-delivery is limited to 0.5 per cent for each full week of delay, up to a maximum of 5 per cent, and in case of remedies because of delivery of non-conforming goods and/or goods with a deficiency in title is limited to an amount of 200 per cent of the value of the non-conforming part of the contract. However, this subparagraph does not apply to injury of life, body or health of persons or to intentional concealment of the non-conformity or deficiency in title of the goods.
f) For breach of contractual, pre-contractual or obligations resulting from the business relation owed to the customer, HORA is obliged to pay damages exclusively in accordance with the provisions of these International Conditions of Sale. Any recourse to concurrent bases of claim, in particular of a non-contractual nature, is excluded. Equally excluded is any recourse against HORA’s company organs, employees, servants, members of staff, representatives and/or those employed by HORA in the performance of his obligations on grounds of breach of obligations owed by HORA.
g) Insofar as the limitation period may not already have barred the claim or subject to damage caused intentionally, claims for damages brought by the customer are excluded after six (6) months beginning with the rejection of the claim for damages by HORA.
(2) Irrespective of continuing statutory or contractual claims, the customer is obliged to pay damages to HORA as follows:
a) In the event of delay in payment, the customer will pay a lump sum of EUR 50.00, the costs of arbitral, judicial and extra-judicial means and proceedings, usual and accruing within the country and abroad, as well as (without evidence being necessary) interest at the rate applicable in 33758 Schloß Holte-Stukenbrock/Germany for unsecured short-term loans in the agreed currency, at least however interest at 9 per-cent points over the base rate of the German Federal Bank (Deutsche Bundesbank).
b) In the case of a late taking delivery of the goods by the customer by more than two (2) weeks, HORA is entitled to claim damages without evidence being necessary of 5 per cent of the value of the goods to be delivered. In the case of a late taking delivery of the goods by the customer by more than six (6) weeks or an entire failure to take delivery as well as in the event of non-delivery due to a breach of contract by the customer, HORA is entitled to claim damages without evidence being necessary of 20 per cent of the value of the goods to be delivered.
c) In the event of other breaches of obligations, the customer shall pay damages in accordance with the statutory provisions.
d) If the contract has been avoided by the customer without justification, HORA is entitled, insofar as he consents to the avoidance, to claim damages without evidence being necessary in the amount of 20 per cent of the value of the goods to be delivered.
(3) Within the bounds of what is legally possible as well as within what is usual in the trade, the customer is in his commercial relationships with his clients obliged to limit his liability both in principle and in amount.
VIII. Other Provisions
(1) Title of the goods that have been delivered remains with HORA until settlement of all claims existing against the customer. The allocation of risk as to price and performance in section III.-9. is not affected by the reservation of title. The customer shall take any measure necessary according to the applicable law to secure the reservation of title as far as possible.
(2) Irrespective of continuing statutory or contractual claims, the customer will indemnify HORA without limit against all claims of third parties which are brought against HORA on the grounds of product liability or similar provisions, to the extent that the liability is based on circumstances which - such as, for example, the presentation of the product - were caused by the customer or other third parties without express written consent of HORA. In particular, the indemnity also includes the reimbursement for expenses incurred by HORA and is granted by the customer waiving further conditions or other objections, in particular without requiring compliance with control and recall obligations and waiving any defence of limitation.
(3) The place of delivery results from section III.-5. of these International Conditions of Sale and applies likewise to the delivery of substitute goods or the repair of delivered goods. The place of payment and performance for all remaining obligations arising from the legal relationship between HORA and the customer is 33758 Schloß Holte-Stukenbrock/Germany. These provisions also apply if HORA assumes the costs of money remittance, renders performance for the customer somewhere else or payment is to be made in exchange of documents or goods or in the case of restitution of performances already rendered. HORA is also entitled to require payment at the place of business of the customer. The agreement of other clauses of the Incoterms or of clauses such as "delivery free......." or similar ones merely involve a variation of the provisions as to the transportation and the transportation costs; besides that, the provisions laid down in these International Conditions of Sale remain applicable.
(4) In relation to pictures, drawings, calculations and other documents and computer-software, which have been made available by HORA in a material or electronic form, the latter reserves all proprietary rights, copyrights, other industrial property rights as well as know-how rights.
(5) Within the scope of the negotiation, performance and termination of the contract concluded with HORA, the customer shall ensure compliance with Regulation (EU) 2016/679 (General Data Protection Regulation) and other legal requirements applicable to the processing of personal data in the specific case, i.e. in particular the lawfulness and transparency of the processing and the transfer to third countries. In case of transfer of personal data from one party to the other, the responsibility of the receiving party starts from the moment of transfer of the personal data.
(6) Data attachments to e-mails in pdf or TXT format shall be deemed to have been received upon receipt of the e-mail. The transmission of electronic documents (EDI) requires special agreements.
(7) All communications, declarations, notices etc. are to be drawn up exclusively in German or English. Communications by means of fax or e-mail fulfil the requirement of being in writing.
IX. General Basis of Contracts
(1) The United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (UN Sales Convention / CISG) in the English version governs the legal relationship with the customer. The UN Sales Convention applies above and beyond its own area of application and regardless of reservations adopted by any state, to all contracts to which these International Conditions of Sale are to be applied according to the provisions of section I. above. Where commercial terms are used, in case of doubt the Incoterms® 2020 of the International Chamber of Commerce apply taking into account the provisions stipulated in these International Conditions of Sale.
(2) The formation of contract, including but not limited to agreements as to the jurisdiction of courts or arbitral tribunals, its amendments or alterations, and the contractual rights and obligations of the parties, also including but not limited to the liability for death or personal injury caused by the goods to any person and for non-compliance with pre-contractual and collateral obligations, as well as the interpretation are exclusively governed by the UN Sales Convention specified in section IX.-1. together with these International Conditions of Sale. Subject to differing provisions in these International Conditions of Sale, the rest of the legal relationship between the parties is governed by the Swiss Code of Obligations (Obligationenrecht).
(3) All contractual and extra-contractual disputes as well as disputes under insolvency law, arising out of or in connection with contracts to which these International Conditions of Sale apply, including but not limited to their validity, invalidity, or cancellation as well as other disputes arising out of the business relationship with the customer shall be submitted to the Swiss Arbitration Centre and shall be finally resolved, without recourse to the ordinary courts of law, by arbitration according to the Swiss Rules of International Arbitration (Swiss Rules) in force on the date when the Notice of Arbitration is received in accordance with these Rules. The Tribunal shall consist of three (3) arbitrators, one (1) of them shall be nominated by the claimant, one (1) of them by the respondent and the chairman of the Tribunal shall be designated by the two arbitrators so nominated, or if the amount in dispute is inferior to € 250.000 (EURO two hundred and fifty thousand), there shall be one (1) arbitrator appointed according to the Swiss Rules of International Arbitration. The place of the arbitration shall be Zurich/Switzerland, the languages used in the arbitral proceedings shall be German and/or English. The competence of the Arbitral Tribunal excludes especially every statutory competence of state courts, which is provided by reason of a personal or substantive relation. If this arbitration clause is ineffective or ceases to be effective, the non-exclusive local and international jurisdiction of the courts which have jurisdiction for 33758 Schloß Holte-Stukenbrock/Germany is agreed for any dispute instead. If the place of business of the customer is within the European Economic Area (EWR) or Switzerland, irrespective of any ineffectiveness of the arbitration clause and instead of bringing an action before the Arbitral Tribunal, HORA is also entitled to bring an action before the State Court which has jurisdiction for 33758 Schloß Holte-Stukenbrock/Germany or the State Court of the customer’s place of business, or any national court with jurisdiction according to domestic or foreign law.
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Code of Conduct
We at Holter Regelarmaturen GmbH & Co. KG are convinced that economic success and social responsibility are inextricably linked with each other. Only the persons and companies who fulfill their responsibilities to society and to their employees can have permanent economic success. Adherence to the following value system is therefore part of our day-to-day work. We expect our employees and business partners to actively pursue the same aims and adhere to the following mandatory minimum requirements:
1. Compliance with laws
It goes without saying that we comply with the applicable laws and regulations. We expect the same from you. You are obliged to comply with all laws and regulations applicable to you. We expect you to be aware and get acquainted with the laws and regulations applicable to you and to make sure that they are complied with. This applies in particular but without limitation to compliance with antitrust and competition laws.
2. No corruption and no bribery
Any kind of corruption as well as any kind of bribery is prohibited.
3. No forced and no child labor
Any kind of forced as well as child labor is prohibited. The laws governing the minimum age of employees muss be adhered to.
4. Fair working conditions
If you have employees yourself, you are obliged to provide fair working conditions. Wages and social security benefits must at least meet the legal standard. If you have employees yourself, you also respect your employees’ rights to freedom of association.
5. Prohibition of discrimination
We condemn any kind of discrimination and likewise expect you to actively strive against any kind of discrimination. This includes in particular but without limitation that any decisions regarding the employees, e.g. recruiting and promotion, are made irrespective of the ethnic origin, nationality, gender, any disability, sexual orientation, religion or age.
6. Respect for human rights
You respect and promote compliance with internationally recognized human rights.
7. Environmental protection
You are obliged to comply with all applicable laws regarding the protection of the environment. You moreover actively promote an environmentally responsible use of natural resources.
8. Protection of health and occupational safety
You are obliged to establish a working environment which is safe and which promotes health. Accidents and injuries must be prevented.
9. Compliance of this Code of Conduct in the further supply chain
You as our supplier must make sure that your suppliers adhere to this Code of Conduct or at least the same minimum requirements.
10. Implementation
You as our supplier or other business partner must communicate to your employees the content of this Code of Conduct and the requirements as regards their conduct resulting therefrom. You must make sure that your employees adhere to the requirements stipulated in this Code of Conduct, if necessary by making adjustments to internal policies and processes.
11. Customs & Export control
Holter Regelarmaturen GmbH & Co. KG is a globally operating company with a high export share to more than 60 different countries. We comply with all relevant and applicable laws, rules and regulations in the field of foreign trade, customs and export control and are alwaysable to register legislative changes at short notice and implement them internally. This affects all activities related to the export and transfer of products, technical assistance, financial transactions and recipient and use verification. These legal requirements to be complied with also include economic sanctions and anti- terrorism regulations as well as compliance with prohibitions and restrictions.
12. Taxes
We assume responsibility for complying with tax obligations. To this end, we comply with local tax laws in the countries in which we operate. Each of us contributes to compliance with laws, regulations and rules in this area.
I. General, Scope of Application
(1) These International Conditions of installation, maintenance and repair - hereinafter referred to as International Conditions of installation, maintenance and repair - of Holter Regelarmaturen GmbH & Co. KG - hereinafter referred to as HORA - shall apply to all contracts entered into with customers not resident in Germany on or after 14 November 2017 that predominantly involve the performance of installation and/or maintenance and/or repair - hereinafter individually and collectively referred to as “work” - by HORA. Additional obligations assumed by HORA do not affect the application of these International Conditions of installation, maintenance and repair.
(2) No terms and conditions other than these International Conditions of installation, maintenance and repair shall apply; HORA does not accept terms and conditions conflicting with or deviating from these International Conditions of installation, maintenance and repair or terms and conditions deviating from statutory provisions, unless HORA has expressly agreed to their validity in writing. These International Conditions of installation, maintenance and repair shall also apply if HORA is aware of customer’s terms and conditions which conflict with or deviate from these International Conditions of installation, maintenance and repair and unconditionally renders performance or unconditionally accepts the customer's performance.
(3) These International Conditions of installation, maintenance and repair shall only apply if the customer is an entrepreneur (Unternehmer according to § 14 German Civil Code (BGB)), a legal person under public law (juristische Person des öffentlichen Rechts) or a special asset under public law (öffentlich-rechtliches Sondervermögen).
(4) Any references made to statutory provisions are for clarification purposes only. Therefore, even without such clarification, the statutory provisions shall apply unless they were expressly amended or excluded in these International Conditions of installation, maintenance and repair.
II. Offers, Conclusion and Subject Matter of Contract
(1) Offers to perform work made by HORA shall be non-binding and without engagement, unless they are expressly marked as binding or contain a precise term within which the offer can be accepted. Non-binding in this sense means that HORA shall be entitled to revoke its offers during a period of up to two (2) days after receipt of order from the customer.
(2) An order placed by the customer is a binding offer to conclude a contract. HORA shall be entitled to accept this offer within fourteen (14) days of receipt, unless stated otherwise in the order.
(3) If a previous offer made by HORA was non-binding, the conclusion of contract will require a written order confirmation by HORA.
(4) The customer shall be under obligation prior to the conclusion of contract to inform HORA in writing if (a) work can only be performed under unusual conditions, or if (b) work may pose special risks to health and/or safety.
(5) All agreements made between HORA and the customer at the time of conclusion of contract for the purposes of the performance of this contract are laid down in writing in the contract and these International Conditions of installation, maintenance and repair. Subsequent alterations to the scope of work, especially with respect to extensions can be made verbally. The customer shall be obliged to inform HORA promptly in writing if the contact person named to HORA and/or actual contact person is not authorised to make on behalf of the customer legally effective alterations to the work initially ordered. The customer is aware that alterations to the agreed scope of work may result in additional cost for the customer.
III. Remuneration, Disbursements, Surcharges and Lump Sums
(1) Unless a fixed rate was expressly agreed upon, the agreed remuneration for work is determined by HORA’s price list for installation and repair work valid at the point of conclusion of contract. The customer will be informed separately by HORA about the current price list for installation and repair work. Expenses, surcharges and lump sums in accordance with these International Conditions of installation, maintenance and repair are to be paid in addition by the customer.
(2) The agreed remuneration as well as possible disbursements, surcharges, lump sums and other costs based on the price list for installation and repair work are quoted exclusive of value-added tax. This is to be paid in addition by the customer.
(3) The times taken as a basis for the remuneration are governed by section 4 of these International Conditions of installation, maintenance and repair.
IV. Times and Surcharges taken as a Basis for Remuneration
(1) Subject to the following provisions, the actual time needed for work will be invoiced.
(2) Travel times shall be deemed working hours and – whilst taking into account possible surcharges – will be charged to the customer according to the charge rates on the price list for installation and repair work by HORA.
(3) If HORA has to make preparations before embarking on an outward and/or return journey, the actual time required will also be charged to the customer as normal working hours, however, capped at a maximum of five (5) hours for the outward journey and five (5) hours for the return journey, respectively.
(4) With the exception of public holidays at HORA’s registered office and with the exception of Saturdays and Sundays, regular daily working time shall be 7.5 hours. If additional work is performed in line with labour law, this will be classified as overtime for which additional surcharges will be due on top of the normal working time.
(5) The surcharges for (a) overtime hours, (b) night work (that is between 7 p.m. and 6 a.m.), (c) work on Saturdays, (d) work on Sundays and normal public holidays at HORA’s registered office as well as (e) work on special public holidays, that is New Year’s Day, Easter Sunday, May 1st, Christmas Eve and Christmas Day and Boxing Day shall be charged in addition to the actual time needed according to the surcharges on the price list for installation and repair work and are to be paid for by the customer. If employees of HORA – hereinafter referred to as “HORA assembly personnel” – are not able to work at the job site [e.g. due to holidays, plant shutdown on Sundays or for other reasons for which HORA is not responsible (nicht von HORA zu vertreten)] but still have to remain on site for further work, the customer will be charged a full working day for each day, plus any applicable surcharges and lump sums.
(6) If there is a delay in the work due to non-performance of customer's obligations, any waiting periods shall be deemed working hours and shall be invoiced to the customer according to the provisions stated in these International Conditions of installation, maintenance and repair.
(7) In the event of work interruptions for which HORA is not responsible, the customer will be charged for times caused by this in accordance with these International Conditions of installation, maintenance and repair. This shall also apply in so far it is necessary to withdraw the HORA assembly personnel and to reassign the HORA assembly personnel due to interruptions of work for which HORA is not responsible.
(8) In addition to the remuneration, – based on the time needed – the customer will be charged an absence lump sum. The absence lump sum for job sites outside of Germany is available to the customer upon request.
(9) The usual lead time for work is at least two (2) weeks. If the customer demands an earlier start of work, additional lump-sum surcharges will be charged in accordance with the price list for installation and repair work, depending on the job site and the desired start of the work.
V. Disbursements
(1) If an overnight stay of the HORA assembly personnel is required, the customer has to pay to HORA (a) EUR 90.00 per night if no receipt for the cost of the overnight stay is available, otherwise (b) the actual accommodation costs incurred. HORA shall be entitled to choose overnight accommodation with three (3) stars (EU stars). HORA shall also be entitled to choose an overnight accommodation of a higher standard than that of three (3) stars (EU stars), provided the costs incurred for this do not exceed the costs of other available overnight accommodation options with three (3) stars (EU stars) and/or if HORA bears any additional cost. If the customer provides accommodation, HORA shall be entitled to refuse such accommodation if it does not meet at least the standard of the aforementioned three (3) stars (EU stars). In such a case, HORA may choose a different accommodation and the customer has to pay the costs of accommodation in accordance with section 5, para. 1 sentence 1 and sentence 2.
(2) The customer shall also pay to HORA for the actual travel costs incurred from flights, rental cars, public transport, passport procurement, visa procurement, required luggage surcharges and the like. If HORA personell assembly use their own motor vehicles and/or motor vehicles provided by HORA, a lump sum per kilometre will be charged for cost (inclusive cost of fuel) in accordance with the price list for installation and repair work which is to be paid by the customer. In the case of flight times exceeding six (6) hours, HORA shall be entitled to allow HORA assembly personnel to travel Business Class, in the case of less than six (6) hours, however, Economy Class.
VI. Exchange of HORA Installation Engineers
HORA reserves the right to replace HORA assembly personnel at any time at its own expense. If the customer wishes to replace HORA assembly personnel without this being caused by a culpable breach of contract of the HORA assembly personnel, the customer will be obliged to reimburse HORA in accordance with the provisions in these International Conditions of installation, maintenance and repair for any resulting remuneration, disbursements, surcharges and lump sums.
VII. Obligations of the Customer to cooperate
(1) The customer is obliged to inform HORA in writing of any special legal, governmental/ official or other regulations on the job site if they have an impact on the work and/or its preparations.
(2) The customer is obliged at his own expense and risk to take all the preparations and measures required with regard to HORA assembly personnel and materials in good time, so that orderly start of work, trouble-free execution as well as proper completion of work are possible. Unless special instructions are given by HORA for this purpose, these include in all cases: a.) The appropriate structural preparation of the workplace (removal of insulation, etc.), its safe accessibility and the creation of acceptable ambient conditions (lighting, air quality, cleanliness etc.); b.) Unlocking the plant areas in the course of the customer’s log out – tag out procedure as well as the warranty (Gewährleistung) that the plant components are disconnected from the power supply at the start of work; c.) The provision of all the required devices (such as tie-bars, chain hoists, cranes, scaffolding etc.), tools, appliances, materials, raw materials and supplies, changing and sanitary facilities, auxiliaries and other work aid, provided they can be made available by the customer without unreasonable effort and/or if it cannot reasonably be expected of HORA that they are procured by HORA; d.) An organised provision of tools and/or spare parts which have been sent i advance by HORA to the customer; all costs arising from this, in particular freight and shipping charges, shall be born by the customer.
VIII. Insurance and other Obligations of the Customer
(1) The customer shall be obliged to keep all tools and accessories brought by HORA assembly personnel in safe custody, not to damage them and to provide to HORA assembly personnel with safe, lockable storage facilities.
(2) Furthermore, the customer is obliged to take all precautionary measures for the health and safety of the HORA assembly personnel at the place of work, in particular the clearance of all plant components to be worked on as well as to ensure that they are not subject to any energy (such as electricity, pressure, mechanical energy) and shall prove this prior to the start of work to the HORA assembly personnel. The HORA assembly personnel have the final decision to start working or not.
(3) If and to the extent that safety instructions or the like are required prior to the start of work, the customer shall be obliged to inform and train the HORA assembly personnel accordingly in advance. Times incurred for this are regarded as working hours and will be charged to the customer, even if these safety instructions, training sessions etc. are not held at the job site, but via remote communication (e.g. online). If the HORA assembly personnel were not able to carry out a remote communication training course in advance, the customer is obliged to provide training at the job site or to ensure that it can be carried out at the job site.
(4) In the event of local hazard situations and unrest, the customer shall ensure that HORA assembly personnel are fully integrated into his safety concept (private security organisations, SOS International, Control Risks and on the like). For the period of installation the HORA assembly personnel explicitly enjoy the same rights as the customer’s employees. This includes, in particular, the personal protection for life and limb, evacuation and repatriation to their home country, medical care, food and access to communication means.
IX. Consumables, Spare Parts
If consumables and/or spare parts are required to carry out the work, these will be charged in addition to the customer.
X. Additional Work due to imminent danger
For work that was necessary for the fulfilment of the contract and where approval by the customer could not be obtained due to imminent danger (Gefahr im Verzug), HORA shall be entitled to perform such work on the basis of these International Conditions of installation,maintenance and repair and to charge the customer accordingly. However, the customer must be informed about this additional work as soon as possible.
XI. Documentation
Unless otherwise agreed, the HORA assembly personnel shall draw up a daily report for each day that work was performed and shall compile an end of project report (hereinafter referred to as “final report“) on work completion. This shall contain all important facts relating to the contractual performance, such as weather conditions, workers and device status, material deliveries, performance progress, quality and functional tests, managerial performance as well as any other circumstances, insofar as they are relevant.
XII. Deadlines and Delays
(1) If the HORA assembly personnel can foresee that they will not be in a position to complete the work on schedule, they shall inform the customer thereof without undue delay (unverzüglich) and, wherever possible, shall inform the customer of the expected completion date.
(2) HORA shall also be entitled to an appropriate extension of the completion period if a delay is attributable to:
a) Any circumstances for which HORA is not responsible, such as labour disputes, natural disasters, armed conflicts, general mobilisation, riots, seizure, embargo, restrictions to energy consumption;
b) If unforeseeable alterations are required by law;
c) If changes to the scope of work were necessary and/or if special or additional requests of the customer had to be taken into account;
d) An act or omission on the part of the customer or other circumstances within the customer’s control (such as arrears with payment) or where the customer does not meet the obligations necessary for the performance of the work.
(3) Without prejudice to other provisions in these International Conditions of installation, maintenance and repair, the timely performance of the work is subject to the fact that all technical issues have been clarified with the customer and that the customer has fulfilled all his obligations in a timely and orderly manner time. HORA reserves the right to raise the defence of an unperformed contract (Einrede des nicht erfüllten Vertrages).
XIII. Acceptance (Abnahme) of Work
(1) The drawing up of the daily report/s and the final report takes place at the job site and constitutes a part of the working time to be remunerated.
(2) The customer shall be obliged to verify and sign the final report. Subject to any objections and/or additions noted by the customer on the final report, the customer certifies the correctness of the final report with his signature. If the customer has raised objections concerning the final report and/or any addtions, he is obliged to make a written note of them on the final report. The signature of HORA assembly personnel on the final report does not constitute an acknowledgement of any objections raised by the customer.
(3) A copy of the final report will be made available to the customer at the customer’s request.
(4) The hourly statements contained in the final report shall be used as a basis for invoicing to the customer.
(5) Unless the final report contains material defects in the work that prevent acceptance, the work shall be deemed accepted upon the customer's signature on the final report. The customer will not be entitled to refuse acceptance due to minor defects that do not prevent acceptance. The work shall also be deemed to have been accepted by the customer taking into operation the goods which were the subject of the work without giving notice in writing of any material defects which would exclude an acceptance.
XIV. Customer’s Rights in the Event of Defects
(1) The statutory provision for customer rights shall apply in the case of material defects (Sachmängel) and defects of title (Rechtsmängel), unless otherwise stipulated below (material defects and defects of title are individually and collectively also referred to as “defect”).
(2) Claims for defects require that the customer has duly met the obligation to examination (untersuchen) the work and give notice of such defect (rügen) in accordance with these International Conditions of installation, maintenance and repair.
(3) The customer is obliged to examine the work without undue delayafter its completion. If the examination reveals that there are defects in the work, or where the customer should have discovered these during the course of a proper examination, the customer must immediately notify HORA of any complaints in detail in writing, however within seven (7) calendar days of completion of work at the latest. Latent defects must be notified without undue delay after being discovered, however at the latest within five (5) days after discovery.
(4) The notification must be made in writing and directly to HORA. It must be formulated in such a way that HORA will be able to initiate corrective actions without further enquiries from the customer. The HORA assembly personnel are not entitled to accept notifications of defects outside of HORA’s business premises or to give explanations about warranty.
(5) In the event of a defect of the Work having been notified in time, HORA shall be entitled, at its own choice, to either provide supplementary performance in the form of rectification of deficiencies or the manufacture of new work.
(6) If supplementary performance fails, the customer is – subject to the statutory provisions and subject to having threatened HORA to rescind the contract and having fixed an additional period of time for supplementary performance which has expired to no avail – entitled to rescind (zurücktreten) from the contract or reduce (mindern) the remuneration. A rectification of defects – each related to a precise individual defect – shall be deemed to have failed after the third unsuccessful attempt, unless something else is determined by the nature of defect or other circumstances.
(7) To the extent the customer has sustained a damage (Schaden) or incurred futile expense (vergebliche Aufwendungen) due to the defective work provided by HORA, the liability assumed by HORA will be governed by section 15 of these International Conditions of installation, maintenance and repair.
(8) Provided that the work does not consist of the construction of a building (Bauwerk) and provided that the work’s result does not consist in the rendering of planning or monitoring services for this purpose (Werk, dessen Erfolg in der Erbringung von Planungsoder Überwachungsleistungen hierfür besteht), any claims of the customer based on the performance of defective work shall become statute-barred one (1) year after the statutory commencement of the limitation period. However, claims arising from fraudulent (arglistiger),intentional (vorsätzlicher) and grossly negligent (grob fahrlässiger) breach of contract as well as claims arising from injury to life, limb and health shall remain unaffected. Subsequent performance does not lead in a recommencement of the limitation period.
XV. Liability for Damages and Expenses
(1) HORA’s liability for damages and futile expenses – regardless for whatever legal reason – shall only arise if the damage or futile expense was caused
a) by culpable breach of a duty (schuldhafte Verletzung einer Pflicht) the fulfilment of which was necessary for due performance of contract (deren Erfüllung die ordnungsgemäße Durchführung des Vertrages überhaupt erst ermöglicht) and on whose fulfilment the customer can normally trust (und auf deren Einhaltung der Kunde regelmäßig vertrauen darf) (essential contractual obligation; wesentliche Vertragspflicht) or
b) is due to to grossly negligent or intentional breach of duty.
(2) If HORA is liable for the breach of an essential contractual obligation in accordance with section 15 subsection 1 a) of these International Conditions of installation, maintenance and repair, HORA’s liability for damages shall be limited to the foreseeable, typically occurring damage (vorhersehbaren, typischerweise eintretenden Schaden) or – if the breach of the essential contractual obligation occurs in connection with the performance of work - shall be limited to twice the remuneration for work, whichever amount is lower. However, even in this case HORA shall not be liable for loss of profit. For damages caused by delay (Verzug), section 15, subsection 3 of these International Conditions of installation, maintenance and repair shall apply.
(3) Without waiving the statutory requirements, in the event of delay, HORA‘s liability shall be limited to 0.5% of the net price of the remuneration affected by the delay for each completed week, in total however, up to a maximum of 5% of the net price of the remuneration for the work affected by the delay. However, claims based on fraudulent, intentional and grossly negligent breach of contract as well as claims arising from injury to life, limb and health as well as liability in accordance with the Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
(4) The limitations of liability stated above in section 15, subsection 1 to subsection 3 of these International Conditions of installation, maintenance and repair will not apply to liability (a) in accordance with the Product Liability Act, (b) due to the taking over of a guarantee for the quality of the work (Übernahme einer Garantie für die Beschaffenheit der Arbeiten), (c) arising from fraudulent concealment of a defect, (d) for damages arising from culpable (schuldhaft) injury to life, limb or health as well as (e) for damages arising from grossly negligent or intentional breach of. It is clarified that HORA does not take over a guarantee for the quality of the work.
(5) The customer’s duty to mitigate damages in accordance with § 254 German Civil Code remains unaffected.
(6) HORA is obliged to pay damages for breach of contractual and/or pre-contractual obligations it owes to the customer soelely in accordance with the provisions in these International Conditions of installation, maintenance and repair. Any recourse to a concurrent basis of claim, such as culpa in contrahendo as per § 311, subsection 3 German Civil Code, positive breach of contract (positive Vertragsverletzung) as per § 280 German Civil Code or due to tort liability as per § 823 German Civil Code shall be excluded. Equally excluded is any recourse against HORA’s company organs (Organe), employees, representatives and/or persons employed in the performance of an obligation (Erfüllungsgehilfe) that arise from a violation of contractual obligations by HORA.
(7) If the customer provides his own staff or temporary workers, such action will fall exclusively within the customer’s scope of risk. If the customer insists that work is carried on despite adverse weather conditions, such action, too, will fall exclusively within the customer’s scope of risk.
(8) The provisions above shall also apply to claims by the customer for compensation of expenses (Aufwendungen), but shall not constitute a limitation to bear the expenses required for the purpose of subsequent performance (Nacherfüllung).
XVI. Payment conditions
(1) The customer is obliged to pay immediately, but at the latest within fourteen (14) calendar days from the invoice date, in full to the bank account specified in the invoice, the remuneration, disbursements, surcharges and lump sums invoiced by HORA in accordance with these International Conditions of installation, maintenance and repair, without deduction of a discount. The receipt of payment to HORA’s bank account is decisive for the timeliness of payment.
(2) In the event of default of payment, the statutory regulations shall apply. The invoice amount shall be subject to interest during the period of delay at the applicable statutory default interest rate. HORA reserves the right to assert further damages for delay.
(3) The customer shall only be entitled to rights of set-off and retention if his counterclaims have been legally ascertained (rechtskräftig festgestellt), are undisputed by HORA or based on the same contractual relationship (beruhen auf demselben Vertragsverhältnis).
XVII. Place of Fulfilment, Choice of Law and Arbitration
(1) The place of performance (Erfüllungsort) for the work shall be the job site. The place of payment and performance for all other obligations arising from the contract with the customer shall be 33758 Schloß Holte-Stukenbrock/Germany.
(2) These International Conditions of installation, maintenance and repair as well as the contractual relationship between us and the customer shall be governed by the laws of the Federal Republic of Germany.
(3) If the customer (i) has his place of business within the European Economic Area and/or within Switzerland and (ii) the customer is a merchant in the sense of the German Commercial Code (Handelsgesetzbuch), a legal person under public law or a special asset under public law, the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship with the customer shall be HORA’s registered office at 33758 Schloß Holte-Stukenbrock/Germany. In all cases, however HORA shall also be entitled to institute legal proceedings at the customer’s general place of jurisdiction. Prevailing statutory regulations, in particular with regard to exclusive responsibilities (ausschließliche Zuständigkeiten), shall remain unaffected.
(4) If the customer (i) has his place of business outside of both the European Economic Area and outside of Switzerland and (ii) the customer is a merchant in the sense of the German Commercial Code (Handelsgesetzbuch), a legal person under public law or a special asset under public law, all disputes arising directly or indirectly from the contractual relationship with the customer shall be finally settled, without recourse to the ordinary courts of law, under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The place of arbitration shall be Bielefeld/Germany. The language used in the arbitral proceedings shall be English.
XVIII. Miscellaneous
(1) If individual provisions of these International Conditions of installation, maintenance and repair should be or become void, in whole or in part, the remaining provisions shall remain in full force and effect.
(2) Neither a handwritten signature nor an electronic signature shall be required to meet the written form requirement. Communications by means of fax or e-mail shall satisfy the written form (Schriftform).
(3) These International Conditions of installation, maintenance and repair are drafted in the English language, but shall be subject to and interpreted in accordance with the laws of the Federal Republic of Germany. As a reason of this, if an English word is followed by a German term, the meaning this German term as it has according to the German law (without recourse to the CISG) shall be decisive to interpret the respective English word throughout these International Conditions of installation, maintenance and repair.
(4) Personal data required for the business transaction will be stored and treated confidentially in compliance with applicable data protection regulations.