1.1 The deliveries, services and offers of Hurco GmbH (hereinafter: Hurco) shall be provided exclusively in accordance with the following General Terms and Conditions. These terms and conditions shall apply to all future business relations, even if no additional agreement has been made.
1.2 The General Terms and Conditions of the customer shall not apply, even if the customer refers to these terms in connection with the order and Hurco does not object to them.
1.3 Commitments, ancillary agreements and any amendments and additions to the General Terms and Conditions must be made in writing to be effective. If written form is not required by law, e-mail shall also suffice. This shall also apply to a change of the written form requirement itself. Legally relevant declarations and notifications by the customer in relation to the contract (e.g. setting a deadline, notification of defects) must be made in writing or in text form, unless more stringent formal legal requirements are applicable.
2.1 Offers made by Hurco are subject to change and are non-binding. A contract shall only be deemed concluded when an order is confirmed in writing, by fax or by e-mail, by Hurco, at the latest upon acceptance of delivery by the customer or the provision of services. In the latter case, the invoice shall also be valid as an order confirmation.
2.2 The contents and scope of the products and services owed by Hurco shall be based exclusively on the order confirmation from Hurco.
3.1 Unless expressly agreed otherwise in writing, delivery and service dates are non-binding and shall not commence until all technical details of the order have been clarified, the customer's obligations to cooperate have been fulfilled, in particular the timely receipt of all orders, documents, investigations, releases and compliance with the agreed terms of payment by the customer. In the event that these requirements are not duly met in good time, the delivery times shall be extended as appropriate. In the case of an order change, the delivery period shall recommence upon confirmation of the change by Hurco.
3.2 In any case, Hurco shall only be in default when Hurco is responsible for the delay, the service is due and the customer has unsuccessfully set Hurco a reasonable, written grace period (at least six weeks). An agreed delivery period shall be deemed to have been met if the subject matter of the contract has left the factory before the delivery period has lapsed or the customer has been informed that the delivery is ready for dispatch or has been shipped by sea.
3.3 Delivery and service dates shall be extended for Hurco by a reasonable time in the event of disruptions due to force majeure or other hindrances for which Hurco bears no responsibility, for instance disruptions in the supply chain, of suppliers, lockouts, operational disruptions, terrorist attacks, war, epidemics and pandemics, floods, earthquakes and other natural disasters, import and export restrictions, strikes, including those affecting upstream suppliers, etc. Hurco reserves the right to rescind the contract if the delay in delivery and services caused by such events continues for longer than six weeks.
3.4 In the case of slight negligence, claims by the customer for damages due to delays in delivery and service shall be excluded. If the delay in delivery and service is not due to an intentional breach of contract for which Hurco is responsible, liability shall be limited to the foreseeable damage that could typically occur, but shall not exceed 5% of the value of the goods affected by the delay in delivery.
3.5 Should the customer default with respect to acceptance of the deliveries or services offered by Hurco or should there be a failure to cooperate in a manner that is duly required, the customer shall be obliged to compensate for the additional expenses or damages incurred as a result of the delay or failure to cooperate.
3.6 The goods shall also be deemed to have been delivered if the goods are not immediately retrieved on the delivery date following the notification of readiness for dispatch. In this case, Hurco shall be entitled to store the goods at the customer's expense and to charge a storage fee of 0.5% of the net purchase price of the delivery items for each commenced month, but no more than a total of 5% of the net purchase price of the delivery items. The contracting parties are free to provide evidence of higher or lower delivery costs. Further claims due to default of acceptance shall remain unaffected.
3.7 Hurco shall be entitled to partial deliveries and corresponding invoicing, insofar as these are reasonable for the customer. Partial deliveries shall be deemed reasonable if (i) the partial delivery can be used by the customer within the scope of the contractually intended purpose, (ii) the delivery of the remaining ordered goods is guaranteed and (iii) the customer does not incur any significant additional work or additional costs as a result (unless Hurco agrees to bear these costs).
3.8 In any case, Hurco's obligation to deliver the contractual products shall only become due when the necessary legal public permits have been granted, in particular permits from the Federal Export Office (BAFA) and the US Department of Commerce (Office of Export Administration). The customer shall be obliged to participate in the respective approval procedures and to provide all information requested and required for export.
3.9 In the event that the customer intends to lease or rent the object of purchase, Hurco shall not be obliged to consent to the lessor or renter being included in the contractual relationship.
4.1 Hurco reserves the right to make product changes, particularly in the course of further development, provided that the agreed performance data have been achieved or exceeded. However, Hurco shall not be obliged to make such changes to products that have already been completed or delivered.
4.2 Product changes shall only be communicated to the customer if they are significant changes that could affect the contractual purpose of the product.
5.1 The risk shall pass to the customer, even in the case of partial deliveries, as soon as the contractual product has been handed over to the individual responsible for the transport or when it has left the Hurco warehouse for the purpose of shipment. Any agreed acceptance must be performed immediately on the acceptance date, at the latest upon notification of acceptance readiness by Hurco. The customer may only refuse acceptance if there is a significant defect.
5.2 If the shipment is delayed at the request of the customer or through no fault of Hurco, the risk shall pass to the customer upon notification of readiness for dispatch.
6.1 Upon receipt of goods, the customer must inspect them without delay for completeness, compliance with the delivery documents and freedom from defects. If no written complaint is received within this period, the goods shall be deemed to have been approved, unless there is a defect that was not apparent during the inspection. In this case, the written complaint and notification must be made without delay following the discovery of the defect.
6.2 If the delivered goods show evident defects or deficient quantities, this must be noted by the customer on the delivery receipt of the carrier upon delivery. This note must provide a sufficiently clear description of the damage or deficient quantity (notice of defect pursuant to Section 438 German Commercial Code).
7.1 The prices stated in the order confirmation from Hurco are authoritative.
7.2 Prices are exclusive of VAT and are quoted ex Hurco’s warehouse. Prices include customary commercial packaging of the delivery products. Other ancillary services or costs, in particular freight, shall be invoiced to the customer separately. Services, in particular installation, maintenance and/or repair work as well as training, shall be charged in accordance with Hurco’s applicable hourly rates.
7.3 Unless a credit limit has been granted and there are no deviating payment agreements, payments shall become due without any deductions 14 days after invoicing and commissioning, including inspection of the main functional units. Invoicing shall take place upon delivery. In the event that the customer exceeds the payment deadlines granted, interest at a rate of 8% p.a. above the respective base interest rate of the European Central Bank shall be due on the purchase price without further reminder after the due date. The right to claim further damages shall remain unaffected.
7.4 Hurco may, and without having to cite the reasons, make the provision of services dependent on a concurrent payment (e.g. cash on delivery or bank direct debit) or an advance payment.
7.5 Notwithstanding other contrary provisions of the customer, Hurco shall be entitled to apply payments to any of the customer's older debts first. In the event that costs and interest have already been incurred due to default, Hurco shall be entitled to offset the payment initially against the costs, then against the interest and finally against the principal claim.
7.6 The customer may only offset undisputed or legally established claims. The customer may only exercise a right of retention against counter-claims that are based on the same contractual relationship.
7.7 If the terms of payment are not fulfilled without due cause, Hurco may at any time either demand payment in advance or a security deposit. All outstanding claims, including those for which payment by instalments has been agreed, shall become due for immediate payment.
7.8 Payment terms granted by Hurco shall require that a sufficient credit limit be available for each individual order. Should the order exceed this credit limit, Hurco reserves the right to demand payment in advance of the remainder of the value of the order. In the event of a subsequent change in the customer’s creditworthiness, Hurco shall be entitled to deviate from the terms of payment granted, to demand advance payment or security deposit and to withdraw from the contract in the case of non-performance.
8.1 The delivered contractual products shall remain the property of Hurco until all claims arising from the contract and from the entire business relationship with the customer have been fulfilled (reserved goods).
8.2 The customer shall not be permitted to pledge or transfer security of reserved goods or claims assigned to Hurco. In cases where third parties access the reserved goods or assigned claims or in the event of an application for the opening of insolvency proceedings against the customer's assets, the customer shall indicate that they are the property of Hurco and immediately advise Hurco thereof in writing. The customer shall bear all costs that need to be expended for abolition of third-party access to Hurco's reserved property or to property assigned by way of security and for reacquisition of the item.
8.3 Items delivered for testing and demonstration purposes shall remain the property of Hurco. The customer shall be obliged to ensure proper storage and may only use these items within the framework of the agreement.
8.4 Should the actions of the customer be in violation of the contract, in particular if there is a default in payments or any other culpable violation of essential contractual obligations, including payments due on other and future products or services supplied to the customer by Hurco, or if there is any cause to suspect a deterioration in the financial circumstances of the customer, Hurco shall be entitled to recover the delivered reserved goods to the exclusion of any rights of retention of the customer. The exercise of rights arising from the retention of title or any demand for the return of goods shall not automatically constitute a withdrawal from the contract. In the event of a withdrawal, Hurco shall, in the absence of any deviating agreement, be entitled to charge a no-fault flat-rate cancellation fee of 25% of the total net purchase price. Without prejudice to the foregoing, Hurco reserves the right to claim for damages and to withdraw from the contract. All costs of take-back and recovery shall be borne by the customer. In order to enforce these rights, Hurco may enter the customer's business premises and block the use of the reserved goods or take the reserved goods or, in the event of resale, demand the assignment of the customer’s claims for surrender against its buyers.
8.5 The customer shall be obliged to treat the reserved goods with care and to keep them in a fully resalable condition. In the event that maintenance and inspection work is required on the goods owned by Hurco, the customer must carry this work out in a timely manner at its own expense. The customer shall particularly be obliged to insure the goods at its own expense against all risks that are customary in the industry, in particular against fire, water, breakage, theft and other damage, with the insured sum being adequate to cover the replacement value. Proof of insurance and proper payment of the insurance premium must be presented at Hurco's request. Should the customer fail in its obligation to take out an insurance contract and provide evidence thereof despite Hurco's request with a grace period of two weeks, Hurco shall be entitled to take back the object of the contract or to insure it accordingly at the customer's expense.
8.6 Once the goods have been recovered in accordance with 8.4 P. 1, Hurco shall be entitled to either sell the item and credit the customer with the sales price achieved, less its own expenses, against the customer's existing liabilities, or to take back the item at the invoice price less any depreciation and to reimburse the customer an appropriate fee for the period of use, but at least 25% of the net purchase price or the agreed repair fee (net).
8.7 Insurance claims shall be assigned to Hurco on account of performance until all of Hurco's claims against the customer have been settled.
8.8 Should the customer resell the delivered contractual products in the proper course of business, the customer shall hereby assign all claims to the value of the final invoice amount (including VAT) up to the maximum amount of all Hurco's claims against the customer that have accrued on the basis of the resale to its buyers or third parties, irrespective of whether the contractual products delivered have been resold without or following further processing. The customer shall remain authorised to collect this claim even after the assignment. The right of Hurco to collect the claim itself shall remain unaffected. Notwithstanding this, Hurco shall undertake not to collect the claim as long as the customer meets its payment obligations to Hurco, is not in default of payment and, in particular, that no application for the opening of insolvency proceedings has been filed or payments been suspended. If this is the case, however, Hurco may demand that the customer discloses to Hurco the assigned claims and their debtors, provides any information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
8.9 The processing or modification of the delivered contractual products by the customer shall always be carried out for Hurco. Should the delivered contractual products be processed with other items that do not belong to Hurco, Hurco shall acquire co-ownership of the new item in the ratio of the value of the delivered contractual products to the other processed items at the time of processing. The objects created as a result of processing shall be subject to the same provisions as the object delivered under reservation.
9.1 Within the Hurco corporate group, orders are processed by means of automatic data processing. The customer shall hereby give its express consent to the processing of data that has been disclosed to Hurco in the context of contractual relationships and is necessary for order processing. The customer shall agree that Hurco may use the data received as a result of the business relationship within the meaning of the Federal Data Protection Act or the General Data Protection Regulation for Hurco's business purposes, including within the Hurco group of companies.
9.2 For the purpose of verifying the customer’s financial standing, Hurco reserves the right to obtain information on the customer’s creditworthiness from credit agencies or credit insurers and to report data to them; such reporting shall be restricted to the case of non-fulfilment of the contractual obligations, e.g. requested court order for undisputed claims, issued enforcement order, compulsory enforcement measures. Such data shall only be transferred insofar as is required to uphold Hurco’s justified interests and provided that the interests of the customer that warrant protection are not impaired. In this connection, Hurco shall comply with the relevant provisions of data protection law.
9.3 Otherwise, the currently valid data protection regulations and notices shall apply; these can be accessed on the company website at the following link: https://www.hurco.hr/zastita-podataka/.
10.1 Hurco shall ensure, within the legal requirements to the exclusion of further claims, that the contractual products do not have any significant defects and are suitable for the use stipulated in the contract or are suitable for normal use. The contractual partners are aware that it is not possible to rule out software errors under all application conditions with the current status of technology. The parties shall therefore agree that minor defects, which occur in particular when operational readiness of the delivered product is only slightly impaired, shall not entitle the customer to make warranty claims. Furthermore, the contractual partners shall agree that Hurco does not acknowledge any legal obligation to repair the subject matter of the contract and that no new warranty periods shall be stipulated thereby.
10.2 The warranty shall exclude in particular any defects or damage that can be traced back to: operational wear and tear, improper use, operating errors and culpable behaviour on the part of the customer, operation with the wrong type of current or voltage and connection to unsuitable power sources, fire, lightning, explosion or mains-related overvoltages, moisture of any kind, etc. The warranty shall also lapse if serial numbers, type designations or similar identifiers are removed or rendered illegible and/or the customer carries out repairs/interventions on the subject matter of the contract (including extensions and other modifications) itself or through third parties.
10.3 Obvious defects must be reported immediately, namely without culpable delay, but at the latest within one week after receipt of the service/delivery by the customer. Statutory regulations shall apply to hidden defects. Otherwise, the period of limitation for warranty claims shall be one year from handover of the contractual product, irrespective of the time of commissioning.
10.4 In the event of a defect, Hurco may choose between a repair or replacement delivery. Replaced parts shall become the property of Hurco. Should the customer relocate the delivery item in whole or in part from a contractually agreed installation location to a third location, the customer shall bear any resulting additional costs, in particular any additional travel costs that are subsequently incurred by Hurco. In the event that supplementary performance is required to be implemented abroad, Hurco shall only bear the costs of transport and travel to the borders of Germany. The customer shall only be entitled to withdraw from the purchase contract if the supplementary performance has failed after two attempts. However, withdrawal shall be excluded if the defect is only minor (see Section 10.1).
10.5 If the contractual product is a used machine, warranty shall be excluded for defects other than obvious ones.
10.6 Hurco reserves the right to charge the customer separately for all costs incurred for inspection of the contractual products should the complaint prove to be unjustified.
10.7 In the event that the customer, for whatever reason, asserts justified warranty claims and returns the subject matter of the contract to Hurco within the scope of the warranty, the customer must pay a usage fee for the period for which it was in possession of the subject matter of the contract, which is calculated at a flat rate of 0.05% of the net sales price for each commenced day of direct possession.
10.8 If and insofar as Hurco has not acknowledged the existence of defects in writing, the customer shall not be entitled to offset payment claims from Hurco or to assert a right of retention.
10.9 Hurco shall only be obliged to pay the costs of a remedy of defects that has been performed by the customer itself if the remedy of defects and the associated costs had previously been approved by Hurco in writing.
10.10 The assignment of warranty claims against Hurco shall be prohibited.
11.1 Unless stated otherwise in the following provisions, claims for damages by the customer shall be excluded, irrespective of the legal grounds. In particular, Hurco shall not be liable for the loss of data, loss of profit or other financial losses of the customer.
11.2 For damage that has not occurred to the subject matter of the contract itself, Hurco shall, irrespective of the legal grounds, only be liable
in the following cases:
11.3 Should Hurco's liability be excluded or limited, this shall also apply to the personal liability of employees, workers, staff members, representatives/bodies and vicarious agents.
11.4 In the event of damage to property for which Hurco is responsible, the obligation to pay compensation shall be limited to the sum insured by the product liability insurance taken out by Hurco. Hurco shall inform the customer of the corresponding insured sum upon request. Otherwise, the obligation to pay compensation shall be limited to the damage that was foreseeable at the time the contract was concluded.
11.5 All claims for damages, irrespective of the legal grounds and notwithstanding the question of guilt and knowledge, shall become statute-barred 12 months after delivery of the contractual product.
12.1 Operating software: The parties agree that the customer shall only be granted an unlimited, non-transferable license for the software provided. Hurco shall be entitled to revoke the license that was granted should the customer use the licence in a manner that is contrary to the purpose of the contract, in particular should the customer duplicate the software, make changes to it or pass it on to third parties or utilise it in any other way that goes beyond the purpose of the contract. Insofar as the contractual products are intended for resale, the customer shall ensure that its buyers comply with these license conditions. The customer must inform Hurco immediately of any (alleged) infringements of industrial property rights or associated risks (also by its buyers) and permit Hurco, to the extent that is possible, to conduct legal proceedings (including out-of-court disputes) at its request.
12.2 The customer may not remove, change, cover or in any other way render unrecognisable any references to the contractual products with regard to copyrights, trademarks or other industrial property rights. The customer shall only be entitled to translate any supplied documentation material for commercial purposes with Hurco's prior consent.
12.3 Hurco reserves ownership and copyrights to the operating software, samples, cost estimates, drawings and similar information of a physical and non-physical nature, including information supplied in electronic format; such information may not be made accessible to third parties. Hurco undertakes to only make information and documents designated as confidential accessible to third parties with the customer's consent. The editing of such documents, which are the intellectual property of Hurco, may only be carried out with Hurco's express written consent. The customer agrees that Hurco shall be exempt from any damage claims resulting from corresponding violations. This shall also apply to damage that occurs due to the use of sketches, samples, plans and such that have been modified, edited and implemented without authorisation, as well as any unauthorised changes to the operating software. Any further claims resulting from an infringement of Hurco's intellectual property rights shall remain unaffected and can be asserted separately by Hurco.
13.1 All contractual products and technical know-how shall be supplied by Hurco in compliance with the German Act on Foreign Trade and Payments (AWG) / the German Foreign Trade and Payments Regulation (AWV) / the EC Dual Use Regulation and the US export provisions currently in force and are intended for use and to remain in the country of delivery agreed on with the customer. In the event that the customer intends to re-export contractual products, the customer shall be obliged to comply with US, European and national export regulations. The re-export of contractual products contrary to these provisions is prohibited.
The customer must ensure that it is up to date on all the currently applicable provisions and regulations (Federal Export Office, 65760 Eschborn/Taunus or US Department of Commerce, Office of Export Administration, Washington D.C. 20230). Irrespective of whether the customer specifies the final destination of the delivered contractual products, it is the customer's responsibility to obtain any necessary approval from the relevant foreign trade authorities before exporting such products. Hurco shall not be obliged to provide information in this regard and offers no guarantee that the contractual products comply with the respective export regulations. The customer may not demand that Hurco adapt the contractual products to the respective export regulations.
13.2 Any forwarding of contractual products by the customer to third parties, with or without Hurco's knowledge, shall require the transfer of the export licensing conditions. The customer shall be fully liable for non-compliance with the relevant provisions.
13.3 Without prior official approval, the customer shall not be permitted to sell contractual products directly or indirectly to countries that are subject to a US embargo or to natural or legal persons in these countries or to natural or legal persons who are on US, European or national prohibited persons lists (e.g.: “Specifically Designated Nationals and Blocked Persons”, “Entity List”, “Denied Persons List”). Furthermore, it is prohibited to deliver contractual products to natural or legal persons who are in any way connected with the support, development, production or use of chemical, biological or nuclear weapons of mass destruction.
In the event that the customer is based outside Germany, it must comply with the provisions of purchase tax/import sales tax rules of the relevant economic area when purchasing the contractual products, and in particular the customer must, on its own initiative, disclose the sales tax identification number as well as any other information necessary. In the event of non-compliance, the customer must compensate for the expenses/damages incurred as a result.
The spare parts prices shall apply ex warehouse in Pliening without installation, freight or shipping costs and packaging.
16.1 The law of the Federal Republic of Germany shall be applicable. The Vienna UN Convention (UNCITRAL) on the international sale of goods shall be excluded.
16.2 The place of performance and court of jurisdiction shall be Munich. However, Hurco shall be entitled to take legal action against the customer at any other competent court of jurisdiction.
16.3 Should any of these provisions, irrespective of the grounds, become void, this shall not affect the validity of the remaining provisions. In the place of the ineffective provisions, another appropriate regulation shall apply that, to the extent that is possible, reflects the economic and legal purpose of the original provision.