HERMA

General Terms and Conditions of Delivery and Payment

   

Last updated: February 1, 2019

  

I. Scope of Validity
II. Offer and Order Confirmation
III. Transfer of Risk and Delivery
IV. Price and Payment
V. Retention of Title
VI. Warranty and Compensation
VII. Place of Jurisdiction, Concluding Provisions

  

I. Scope of Validity

All orders placed with us now or in the future shall exclusively be governed by these General Terms and Conditions even if Customer’s orders should contain different conditions. Such conditions, irrespective of the time at which they reach us, are express-ly opposed hereby.

  

II. Offer and Order Confirmation

  1. Our offers are non-binding. Documents, such as brochures, prospectus material, illustrations etc., if any, issued along with our offer, only contain approximate data and descriptions.
  2. Contracts shall be deemed concluded by our written order confirmation the contents of which shall be decisive. All changes or subsidiary agreements shall be in writing. We reserve the right to make technical alterations, especially in case of a manufacture according to Customer’s specifications.

  

III. Transfer of Risk and Delivery

  1. Unless agreed upon otherwise, FCA Filderstadt Fabrikstraße 16, Incoterms 2010, applies.
  2. Unless agreed upon otherwise, deliveries take place FCA Incoterms 2010 to the place of delivery stated in the order confirmation. If the place of delivery is not stated, place of delivery shall be the place of business of our delivering division.
  3. In case of delivery, the risk of accidental loss and accidental deterioration of performance shall pass to Customer upon handover at the place of performance.
  4. Unless agreed upon otherwise, concerning the following orders of stationery, we shall deliver CIP Filderstadt Fabrikstraße 16, Incoterms 2010, i.e. prices to that extent include shipment and packaging:
    - delivery to the wholesale trade, from an amount of EUR 250.00 net
    - delivery to the retail trade, from an amount of EUR 125.00 net
    In shipments of stationery below the afore-specified net amounts, we have the right to charge an allowance of EUR 5.00 for packaging and shipment. This provision shall apply per shipment also if directly sent to the mailing address communicated by Customer. In general, we do not deliver orders below EUR 40.00 for cost-saving reasons. However, upon Customer’s request and subject to our assent, in exceptional cases, delivery can be made against payment of a minimum extra fee in the amount of EUR 5.00 (plus shipment allowance).
  5. The indication of a delivery time (delivery period/delivery date) is non-binding.
  6. A binding delivery term is deemed agreed only if confirmed by us in writing.
  7. The delivery period shall commence on the date of our order confirmation or, alternatively, on the day, at the earliest, on which the order completely clarified especially in technical respects, including all items/documents required for the execution thereof, is available, and if a down-payment, if agreed, has been received by us. If changes in the order are desired by Customer after our order confirmation, the time for delivery is extended accordingly, provided that we consent to the changes desired.
  8. Observance of any scheduled delivery time requires prompt and proper performance of Customer’s contractual obligations.
  9. If delivery is postponed upon request of the Customer the risk of accidental loss and of accidental deterioration passes to the Customer upon the originally agreed upon time of delivery.
  10. The time of delivery shall be adequately extended upon measures in connection with industrial disputes, especially strikes or lockouts, or upon occurrence of unforeseeable events beyond our control, such as fire, war, embargos and other sanctions, provided that such events can be proved to have substantial impact on the production or delivery of the items to be delivered. This condition shall also apply if such events occur with our suppliers.
  11. The Customer undertakes to issue all information and documents relevant for export and shipment. Delays due to export examination or approval procedures suspend agreed upon delivery periods and dates. In the above mentioned cases we reserve the right to withdraw from the contract. Claims for damages for non-performance or derived from other legal grounds are excluded.
  12. Partial deliveries shall be permitted. Similarly, in respect of quantity deliveries we are authorized to supply excess or short deliveries of up to 10% of the quantity confirmed.
  13. Assembly work shall not be part of our scope of performance unless expressly agreed by special arrangement. To that ex-tent, special assembly conditions shall apply. Assembly work will be charged on the basis of our cost rates unless arrangements to the contrary (such as fixed prices) have been previously made.
  14. The return of goods is not permitted unless Customer is entitled to a statutory or contractual right of return. All exceptions to this provision shall require our individual previous approval as well as an agreement on the return conditions.

  

IV. Price and Payment

  1. Our prices are plus applicable VAT and plus packaging.
  2. In respect of orders execution of which requires more than four months, we reserve the right to adjust our prices to changing circumstances.
  3. Changes carried out upon Customer’s request after our order confirmation, in particular custom-made products, will be separately charged on the basis of our cost rates. The latter condition will also apply to print orders for sketches, drafts, sampling theorems, test prints, samples, copy-proofs and the like preliminary work requested by Customer.
  4. Unless agreed otherwise, invoices must be paid strictly net (without deductions) within 30 days of the invoice date. The terms governing any discount granted must be set out in a separate written agreement. Bills of exchange for payment purposes will be accepted only if previously agreed. All fees of exchange and discount shall in any case be borne by Customer.
  5. We reserve the right to charge default interest for late payment according to the current rate of the German Civil Code.
  6. Setoff or retention of payments on the grounds of counter-claims denied by us or not stated by declaratory judgement, are not permissive. This condition shall not apply to rights to refuse performance arising out of the same contract.
  7. In case of outstanding payment on the part of Customer or in the event of substantial deterioration of his creditworthiness, all claims shall be due for immediate payment also in case of deferment of the payment term or the acceptance of bills of exchange or checks. Moreover, in those cases we have the right to demand advance payment or the provision of a security, or, alternatively, to withdraw from all pending contracts after an adequate grace period.

  

V. Retention of Title

  1. The delivered goods shall remain our property until complete payment of all our claims pending within the scope of the business relationship. Re-sale of the reserved goods to third parties shall require our approval. In the event of re-sale, Customer hereby assigns his claims to us.
  2. Processing or transformation on the part of Customer shall always be on behalf of us being the manufacturer, with no obligation binding upon us being assumed. If our (co-) owner-ship right expires through compound, it shall be deemed agreed already now that Customer’s (co-) ownership right to the unitary item is passed to us on a value-prorated basis (in-voiced value).
  3. Customer is not allowed to give in pledge or assign the reserved goods as a security. In case of third parties’ re-course to the reserved goods, Customer shall notify us, with-out delay, accordingly. Customer is obliged to take out a policy against theft, damage, destruction or accidental loss (in particular, fire and water) of the reserved goods, and to furnish evidence in support thereof upon request.
  4. If the value of all our securities exceeds the amount of all our secured claims by at least 20%, we shall release a corresponding part of the securities.

  

VI. Warranty and Compensation

  1. Customer is responsible for correctness and completeness of the documents/samples, of the measurements and other specifications communicated and any additional material (da-ta carriers included) issued to us for performance of the order. Such errors/mistakes that are Customer’s responsibility can-not constitute a defective performance on our part. To that ex-tent, we assume no obligation to examine.
  2. In respect of stationery, minor deviations in terms of size, colour, rubber-coating and the like, that are customary in this trade, shall not constitute a defect.
  3. Apparent transport damage that is detectible without further inspection is to be documented on the delivery receipt and to be notified to HERMA immediately after delivery.
  4. Open defects of our delivery shall be communicated without delay or within ten days from delivery the latest.
  5. All defects correctly asserted will be remedied by us by subsequent compliance. We have the right of choice (except for purchases of consumer goods) to effect subsequent compliance either by removal of the defect or by delivery of a fault-less item.
  6. Place of performance for warranty claims is the place of delivery. The Customer bears the costs of transport back to the place of performance for warranty claims.
  7. All claims from defects of quality become statute-barred within twelve months from transfer of risk. This provision shall not apply when the Civil Code stipulates longer limitation periods relating to buildings and items for buildings, building defects and purchases of consumable goods (including claim of recourse).
  8. Customer’s claims of recourse, if any, asserted against us pursuant to Article 478 BGB (German Civil Code) shall exist to the extent only that Customer has not made any arrangements with his buyers that exceed the statutory warranty claims.
  9. Warranty is granted subject to professional treatment and maintenance of the goods supplied by us. No warranty will be assumed for damage caused by inappropriate use, faulty assembly or commissioning by Customer or third parties, natural wear, faulty or negligent treatment, unsuitable means of operation or replacement material. All warranty rights be-come forfeited in case of changes or repair work inappropriately carried out by Customer or third parties without our previous written approval.
  10. HERMA reserves the right to make changes which ensure HERMA’s ability to deliver and/or serve to keep up with or promote technical advancement without informing the Customer. HERMA shall ensure that such changes are only made if they do not have an impact on the agreed upon mate-rial specifications.
  11. All compensation claims on the part of Customer for whatever legal cause, in particular, on the grounds of non-compliance with contractual obligations or tortious acts, shall be excluded. This provision shall not apply to cases of intent or gross negligence, to cases of injury to life, body or health, to cases of liability pursuant to the Product Liability Act, to cases where we have assumed a guarantee, to cases of damage arising out of non-compliance with essential contractual obligations or other cases of a statutory mandatory obligation. Essential contractual obligations shall be the individual major terms and other (secondary) contractual obligations which, in the event of culpable violation of obligations, may endanger the attainment of the purpose of the contract. However, the liability for non-compliance with essential contractual obligations is restricted to a compensation for contract-specific, foreseeable damage, unless intent or gross negligence have occurred or liability has been assumed for injury to life, body or health.

VII. Place of Jurisdiction, Concluding Provisions

  1. The place of jurisdiction for all legal disputes arising out of business relations with Customers being merchants, a corporate body under public law or a special fund under public law, shall be our registered place of business. This provision shall also apply if Customer does not have a general place of juris-diction in the Federal Republic of Germany.
  2. These Conditions are governed by and construed in accordance with German law without reference to the conflict of law rules thereof. Application of the UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
  3. Should a part of this Agreement or of these General Terms and Conditions be invalid or non-enforceable, the validity of this Agreement or of these Conditions shall not be affected thereby.