(1) All deliveries, services and offers of Motorenfabrik Hatz GmbH & Co. KG (hereinafter referred to as "HATZ") relating to the provision of Services shall be made exclusively on the basis of these General Terms of Service. These shall be integral part of all contracts concluded by HATZ with its contractual partners (hereinafter also referred to as "Customer") for the supplies or services offered by HATZ in the service business. They shall also apply to all future deliveries, services or offers to the Customer, even if these are not the subject of a further special contract. The object of the Service deliveries and performance of Services may include, but is not limited to, the following work: repair, maintenance, overhaul, technical assistance, training. If only spare parts are delivered, the HATZ Terms and Conditions of Sale (www.hatz-diesel.com/en/gc/general-terms-of-delivery/) shall apply exclusively to such deliveries.
(2) Business conditions of the Customer or of third parties do not apply, even in cases where HATZ does not separately contradict the validity of such business conditions. Even when HATZ makes reference to written documentation that contains the business conditions of the Customer or of a third party, or alludes to such a business condition, this does not constitute agreement with the application of such business conditions.
(1) All offers and cost estimates made by HATZ are subject to change and are non-binding provided that they are not expressly identified as being binding or do not contain a definite deadline for acceptance. HATZ may accept orders or commissions within fourteen days after receipt.
(2) The sole authoritative document for the legal relationships between HATZ and Customer is the respective purchase contract, the service contract or the work and service contract including these General Terms of Service. It fully reflects all agreements between the contracting parties relating to the object of the contract. Oral promises of HATZ made prior to conclusion of this contract are not legally binding and oral agreements of the contracting parties will be replaced by the contract unless the contracting parties expressly state they will continue to be binding in each case.
If spare parts or other goods are used in the performance of the Services, they shall be delivered exclusively on the basis of the General Terms of Delivery of Motorenfabrik Hatz GmbH & Co.KG (available at www.hatz-diesel.com/en/gc/general-terms-of-delivery/).
(3) Any supplements and modifications of the agreements reached including these General Terms of Service require the written form in order to be effective. To comply with the written form, transmission by fax or e-mail is sufficient; otherwise, transmission by means of telecommunications is not sufficient.
(4) HATZ retains the ownership of and copyright on all offers and cost estimates as well as the drawings, illustrations, calculations, brochures, catalogs, models, tools, and other documents and resources provided by Hatz to the Customer. The Customer is not entitled to make these items accessible to third parties, neither as such nor with regard to their content, to disclose them, use or reproduce them, or allow their use or reproduction without the express approval of HATZ. Upon request of HATZ, the Customer must return these items in their entirety to HATZ and destroy any copies made if the Customer no longer needs them in the ordinary course of business or if negotiations do not result in conclusion of a contract.
(1) The Customer shall support the Service personnel in the performance of the Service at its own expense. The support must ensure that the Service performance can be started immediately after arrival of the Service personnel and can be carried out without delay until completion/acceptance by the Customer.
(2) The Customer shall take the special measures necessary for the protection of persons and property at the location of the Service. He shall also inform the Service personnel about existing special safety regulations or about special conditions at the location of the Service or of the Service Object, insofar as this is of importance for the Service personnel.
(3) The Customer shall be obliged to provide technical assistance at its own expense, in particular to:
a. Provision of necessary, suitable support staff in the number and time required for the Service; the support staff must follow the instructions of the Service personnel. HATZ shall not assume any liability for the support staff. If a defect or damage is caused by the support staff as a result of the instructions of the Service personnel, the provisions of Sect. 7 and Sect. 8 shall apply mutatis mutandis,
b. Carrying out all necessary preparatory work, including procurement of the necessary supplies,
c. Provision of the necessary devices and heavy tools as well as the necessary commodities and materials,
d. Provision of heating, lighting, operating power, water, including the necessary connections,
e. Provide necessary, dry and lockable space for storage of Service personnel's tools.
f. Protection of the operation site and materials from harmful influences of any kind, cleaning of the operation site.
g. Provision of suitable, theft-proof day rooms and work rooms (with heating, lighting, washing facilities, sanitary facilities) and first aid for Service personnel.
h. Providing the materials and performing all other actions necessary to carry out a test as provided for in the contract.
(4) If the Customer fails to comply with its obligations, HATZ shall be entitled, but not obligated, to perform the actions to which the Customer is obligated in the Customer's place and at the Customer's expense after having set a deadline to no avail.
(1) If HATZ provides a cost estimate, such cost estimate shall be non-binding unless otherwise expressly agreed in writing. If a binding cost estimate is provided, the Customer shall be obliged to pay the invoiced remuneration if the remuneration for the Services performed does not exceed the figures of the cost estimate by more than 20%. HATZ shall be bound by the binding cost estimate for four weeks. If no order is placed after the cost estimate has been prepared, HATZ may invoice the Customer for the work performed in preparing the cost estimate (including fault-finding time). In any case, HATZ shall be entitled to claim a lump-sum reimbursement of expenses of EUR 100.00, unless the Customer can prove that the work was performed at a lower cost. The Service Object need only be restored to its original condition after a successful diagnosis at the express request of the Customer against reimbursement of the costs.
(2) Services shall be invoiced on the basis of the time spent by the Service personnel, including preparation time, travel time and materials used. Waiting times for which HATZ or the Service personnel are not responsible shall be borne by the Customer. The prices of the HATZ spare parts price list valid at the time shall apply. Prices are all stated in EUROS plus packaging, the legally applicable value added tax, customs fees in the case of exports, as well as fees and other official charges.
(3) HATZ is entitled to demand an advance payment or a security deposit in an appropriate amount upon conclusion of the Contract or prior to shipment of the Service Object.
(4) Invoiced amounts are to be paid within fourteen days without discount unless agreed otherwise in writing. Decisive for the date of payment is the receipt thereof by HATZ. If the Customer does not pay by the due date, interest will then be charged on the outstanding amounts at a rate of 5% p.a. as of the due date. In the case of default, interest will be charged at the rate of 10 % p.a. on the amounts standing; the assertion of a higher interest rate and further damages remain unaffected.
(5) Offsetting with counterclaims of the Customer or the reservation of payments due to such claims is only permissible to the extent that the counterclaims are undisputed or were legally established.
(6) HATZ is entitled to effect or render outstanding Services only against advance payment or provision of a security if, after conclusion of the contract, HATZ gains knowledge of circumstances of a nature that considerably reduce the Customer's creditworthiness and due to which the payment of HATZ' outstanding claims from the respective contractual relationship (including those from other individual orders subject to the same framework agreement) by the Customer is put at risk.
(1) If the Service is performed at HATZ's plant, the Customer shall deliver the Service Object to HATZ's plant in ... at its own risk and expense, unless other shipping arrangements have been expressly agreed in writing. All attachments and accessories, storage media and other parts that are not part of the Service Object shall be removed prior to shipment to HATZ. The Customer shall also properly prepare the Service Object for shipment (including, but not limited to, cleaning, completely emptying, activating transport locks) and pack it in a manner customary in the trade. All hazardous, toxic, harmful substances with which the Service Object has come into contact shall be removed by the Customer absolutely residue-free. After completion of the Service, the Customer shall receive a notification of readiness for shipment and the Service Object shall be collected by the Customer immediately at its own risk and expense. If the Customer is in default of taking delivery of the Service Object, the costs and risk of storage shall be borne by the Customer and HATZ may charge storage fees for storage.
(2) Deadlines and dates for the performance of Services indicated by HATZ shall be binding only if they have been expressly confirmed or agreed as fixed deadlines or fixed dates. If the scope of the work has not yet been determined, the statements of deadlines are based on estimates and are not binding. If additional or extension orders have been placed at a later date or if additional Service work arises in the course of the performance of the Service, the agreed time for performance shall be extended accordingly.
(3) Notwithstanding its rights with respect to default on the part of the Customer, HATZ may ask the Customer for an extension to the Service terms by the period of time for which the Customer fails to meet its contractual obligations, plus a reasonable set-up time. Compliance with the performance dates also requires timely receipt of all documents and information, approvals and releases.
(4) HATZ is not liable for the impossibility of Service or for delays in Service insofar as these have been caused by force majeure or other events which were not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of all types, difficulties in procurement of materials or power, transport delay, strikes, lawful lockouts, deficiencies in employees, energy or raw materials, difficulties in acquiring the necessary official approvals, official measures or non-delivery or incorrect or late delivery by suppliers) for which HATZ is not responsible. Insofar as such events make it considerably more difficult or impossible for HATZ to render the Service and the obstacle is not merely of a temporary duration, HATZ is entitled to withdraw from the contract. In the case of obstacles of a temporary duration, the terms for Services will be extended or the delivery and completion deadlines will be postponed by the period of the obstruction plus an appropriate running-in period. Insofar as the Customer cannot be expected to accept the Service as a result of the delay, the Customer may withdraw from the contract by means of an immediate written notification to HATZ.
(5) If HATZ is in default with the performance of a Service, the statutory provisions shall apply. If HATZ has to pay damages pursuant to such provision, such damages shall amount to a maximum of 0.5% for each full week of delay, but not more than 5% of the order value of the Service not performed in time. Any further claims for damages shall be excluded. The foregoing limitation of liability shall not apply in case of intent or gross negligence, in case of a so-called transaction for delivery by a fixed date within the meaning of Sect. 286 para. 2 no. 4 of the German Civil Code or Sect. 376 of the German Commercial Code or in case the delay in delivery for which HATZ is responsible is due to a culpable breach of a fundamental contractual obligation. Except in the case of an intentional breach of contract for which HATZ is responsible, HATZ's liability for damages in such cases shall be limited to the foreseeable, typically occurring damage.
(1) Insofar as, according to law, a performance of work is to be rendered and an acceptance has to take place in this respect, the Service performance shall be deemed to have been accepted if:
– the provision of the Service has been completed,
– HATZ has notified the Customer of this with reference to the notional acceptance according to Section 6 (3) and has requested that the Customer accept the goods,
- twelve working days have elapsed since the completion of the Service or the Customer has started using the Service Object (e.g. has put the Service Object into operation), and
– the Customer has not effected acceptance within this period for a reason other than a defect notified to HATZ which makes use of the Service Object impossible or essentially impairs use.
(2) The Customer shall bear the costs of acceptance.
(3) HATZ may insist on the preparation and signing of a written acceptance report. The Customer may not refuse acceptance in the event of immaterial defects. A defect is immaterial, among other things, if the defect does not or only insignificantly affect the functionality of the Service Object.
(4) If HATZ uses spare parts, replacement parts, accessories or other parts in the performance of the Services, such parts shall remain the property of HATZ until the Service price has been paid in full. If a connection is made with the Service Object, HATZ shall be entitled to a co-ownership share in the Service Object in proportion of the value of the installed part to the value of the Service Object.
(5) In addition to statutory liens, HATZ shall have a lien on the Service Object that has come into its possession under the Service order on account of its claims arising from the performance of the Service. The lien shall also cover claims arising from the provision of earlier Services, spare parts deliveries or other services by HATZ.
(1) To the extent that the Service provided is to be considered a performance of work, HATZ assumes liability for defects. The warranty period shall be one year from the date of performance of the Service and, to the extent that acceptance is required, from the date of acceptance.
(2) The Service Object shall be carefully inspected by the Customer immediately after performance of the Service. The Service Object shall be deemed to have been accepted if HATZ has not received a written notice of defect with respect to obvious defects or other defects that were apparent upon prompt, careful inspection within seven business days after performance of the Service or otherwise within seven business days after discovery of the defect.
(3) In the event of defects as to quality, HATZ shall first be obligated and entitled, at its option to be made within a reasonable period of time, to remedy the defect or to provide a replacement. The repair or replacement shall take place at the contractual place of performance of the Service. If the contractual place of performance of the Service was the plant of HATZ, the rejected Service Object shall be returned to HATZ, freight prepaid, upon HATZ's request. In the event of repeated failure, i.e., impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement, the Customer may rescind the contract or reasonably reduce the Service fee.
(4) If a defect is due to the fault of HATZ, the Customer may, after repeated unsuccessful rectification, claim damages under the conditions set forth in § 8.
(5) The warranty becomes void if the Customer modifies the Service Object or has it modified by a third party without HATZ's consent and if this makes it impossible or unreasonably difficult to remedy the defect. In any case, the Customer shall bear the additional costs of remedying the defect resulting from the modification.
(1) HATZ’s liability for damages, regardless of the legal grounds but in particular due to impossibility, delay, defective or incorrect Service, contractual infringement, of duties during contract negotiation, and action in tort is, insofar as there is a question of blame in each case, limited in accordance with this Section 8.
(2) HATZ is not liable in the event of simple negligence by its agents, legal representatives, employees, or other vicarious agents insofar as this does not amount to an infringement of essential contractual obligations. Essential contractual obligations are obligations to perform the Services on time as well as consulting, duties of protection and care which allow the Customer to use the Service Object as contractually intended or which serve the purpose of protecting the life and limb of personnel of the Customer or the protection of the Customer's property against considerable damage.
(3) Insofar as HATZ is liable for damages on the grounds of and in accordance with Section 8 (2), this liability is limited to damage which HATZ has foreseen when the contract was concluded or which should have been known to HATZ with due diligence. Furthermore, indirect damage and consequential damage resulting from defects in the object of delivery are only eligible for compensation insofar as such damage is typically to be expected with intended use of the object of delivery. In no event shall HATZ be liable for loss of use or loss of profit.
(4) In the event of liability for simple negligence, HATZ's liability for compensation for property damage and any resulting further financial damage is limited to an amount of EUR 1,000,000.00 per claim (corresponding to the current limit of liability of HATZ's product liability insurance or liability insurance), even if this is a case of a breach of essential contractual obligations.
(5) The above liability exclusions and limitations apply to the same extent in favor of HATZ's agents, legal representatives, employees, and other vicarious agents.
(6) Insofar as HATZ provides technical information or acts as an adviser and this information or advice is not part of the due and contractually agreed scope of Services, this is carried out free of charge and with exclusion of any liability.
(7) The restrictions of this Section 8 do not apply to HATZ's liability for willful conduct, for guaranteed quality features, for injuries of life, body, or health, or under the product liability law.
The provision of the Services is subject to the express reservation that there are no obstacles to the fulfillment of the contract due to national or international export control regulations as well as embargos or other restrictions. Upon request, the Customer shall immediately provide and submit any information, documents or declarations (in particular end-use declarations) required for the export/transfer/import.
(1) In the course of providing the Services, HATZ may collect non-personal data from engines, machines, equipment, control units or other devices. This is use-independent data, such as licensing data and software series status, as well as use-dependent data, such as operating status, maintenance data and diagnostic data. This data is processed and stored by HATZ for the purpose of providing the Service and for general product development and improvement. Confidential information of the Customer will be used solely for the purpose of providing the Service. Confidential information of the Customer will not be used for any other purpose.
(2) When the Customer is a merchant, legal entity within public law, or a special fund under public law, the place of jurisdiction for all any and disputes arises out of the business relations between HATZ and the Customer is then the registered office of HATZ or the registered office of the Customer according to the choice of HATZ. For any legal action taken against HATZ, the exclusive place of jurisdiction is the registered office of HATZ. Mandatory legal provisions on sole places of jurisdiction remain unaffected by this ruling.
(3) The relations between HATZ and the Customer are subject exclusively to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG) does not apply.
(4) Insofar as one of the provisions of the contract or these General Terms of Delivery be or become void, ineffective, or unenforceable, this will not affect the effectiveness of the remaining terms. The parties undertake to agree replacement of the void, ineffective, or unenforceable provision by an effective and enforceable provision which comes as close as possible to the commercial aims of the void, ineffective, or unenforceable provision. This also applies accordingly in the case of a gap in the contract.
Note:
The Customer takes note of the fact that Hatz stores data arising from the contractual relationship pursuant to Article 28 of the German Federal Data Protection Act for the purposes of data processing and reserves the right to transmit the data to third parties (such as insurance companies) as far as this is necessary for fulfillment of the contract.
DECLARATION OF INCORPORATION IN THE SENSE OF THE EC MACHINERY DIRECTIVE 2006/42/EC, Annex II, Part 1, Section B
The HATZ engine is a partly completed machinery in the sense of the EC Machinery Directive 2006/42/EC and is manufactured in accordance with the generally accepted rules of technology. Through the installation and final assembly, additional hazards arise due to the interaction between the HATZ engine and the complete machine.Therefore a separate risk assessment of the complete machine must be carried out by the manufacturer.He must also create operating instructions for the complete machine on this basis.
The product may only be put into operation if it is installed or completely mounted in the machine or the equipment for which it is intended, and this fully meets the requirements of the EC Machinery Directive.
During installation and commissioning, the documents provided by HATZ (manual for diesel engine with declaration of incorporation, assembly instructions, wiring diagram if necessary) must be heeded.
Motorenfabrik Hatz GmbH & Co. KG, Ruhstorf a. d. Rott