General terms and conditions of sale and delivery

Inhalt

  1. General information
  2. Offer and order
  3. Delivery time and shipping
  4. Payment
  5. Reservation of Proprietary Rights
  6. Warranty
  7. Resignation, conversion
  8. Liability for advice
  9. Final provisions

I. General information

For the delivery of all of our goods, also in case of the application of the work contract law, the following delivery and payment terms shall exclusively prevail. As soon as the order is placed or as soon as the delivery is accepted, they will be deemed to be accepted. In the ongoing business relationship they will be accepted even without reference in every individual case. Any deviating purchasing conditions of the buyer are only binding for us if they have been expressly confirmed by us.

II. Offer and order

  1. Our offers are always non-binding until they are confirmed in writing. Drawings, images, brochures, weights and dimensions or other documents attached to the offer are only approximately relevant and binding if this has been expressly agreed upon. In this context, we expressly reserve ownership and copyrights for all documents originating from us which are attached to the offer. They may not be used or put at disposal of third parties without our previous approval.
  2. All orders submitted to us require our previous confirmation in writing. In the case of goods which are in stock or can be delivered immediately, the order confirmation is the invoice as well.
  3. An increase in the contractually agreed prices is only allowed if the delivery period exceeds 4 months. In the case of delivery times of up to 6 months, this can be increased by up to 4%, in the case of longer delivery times by up to a further 4% per half-year.

III.Delivery time and shipping

  1. We endeavour to meet the agreed delivery dates on time. Unless no express agreement has been made, the delivery dates we specify are non-binding dates. We are only liable to the extent specified here in the following.
  2. The delivery period shall commence at the time the order confirmation is sent, however, not before the documents, permits, and releases to be provided have been procured by the purchaser and the payment of an agreed first instalment has been received.
  3. In the event a delay occurs due to circumstances for which we are not responsible, for example due to force majeure or delivery problems on the part of our upstream suppliers or in the case of dispatch by the company commissioned by us for this purpose, the delivery period will be extended accordingly. If the aforementioned circumstances significantly change the economic significance or the contractual content or have an impact on our operations, the contract will be subject to an appropriate adjustment. If there is no economic justification, we will be entitled, to the exclusion of claims for damages by the customer, to withdraw from the contract in whole or partially.
  4. In the event of a delay in delivery for which we are responsible, the customer can only withdraw from the contract after having set a reasonable grace period with an express threat of rejection. A reasonable grace period is 50% of the original delivery period. In the event we are in default, the buyer is entitled to compensation for default in the amount of 0.5% for each completed week of default. However, the said compensation must not exceed 5% of the invoice value of the deliveries and services affected by the said default. Any further claims will be excluded according to lit. VI no. 4.
  5. If the dispatch is delayed on the customer’s demand, the customer will be charged with the costs caused by the storage following a period of one month after the notice of dispatch, when stored in the work of the supplier, these costs amount to at least 0.5 % of the invoice amount for each month. However, the supplier is entitled to otherwise dispose of the delivery item after a reasonable period has been set and to no avail and to supply the client with a reasonably extended period.
  6. The dispatch takes place at the risk of the customer as soon as the goods have left our company or our warehouse. This principle applies regardless of whether we deliver freight collect from our warehouse or free station or free house of the buyer.
  7. If the buyer wishes an accelerated shipping method, the recipient will bear the additional costs,
  8. the cartage and/or the delivery charges at the receiving location.

IV. Payment

  1. Unless no other agreement has been made, our prices are deemed to be strictly net without deduction plus packaging costs. In addition, the valid statutory value added tax will be applied.
  2. The payment is due within a term of 30 days of the invoice date. Any agreed discounts will be only valid if there are no payment arrears.
  3. In this context, we are entitled to deliver against cash on delivery.
  4. In the event of a payment after the due date, we will charge interest at a rate of 8% above the respective base rate from the first day of the occurrence of the due date. Our right to claim further damage caused by default will remain unaffected by it.
  5. Bills of exchange will be accepted only on account of performance without warranty for protest and only following agreement and subject to the condition of their discountability. The discount charges will be calculated from the due date of the invoice amount plus eventually incurred collection charges. The payments by bill of exchange will only be deemed to be fulfilled after they have been redeemed. They do not entitle to any discount deduction.
  6. If the due invoice amounts including default interest have not yet been paid in full, we will not be obliged to make any further delivery according to any contract. If the buyer is in arrears with a due payment or if unfavourable information becomes known about his financial circumstances, we are entitled to demand an advance payment for all deliveries which have not yet been paid for.
  7. The customer can only offset against counterclaims which are undisputed by the supplier, or which have been legally established and only because of such counterclaims a right of retention on the purchase price which is still open insofar as the service value is reduced by the defect.

V. Reservation of ownership  

  1. The supplier reserves ownership of the delivered goods until the complete payment under the contractual conditions has been made.
  2. The customer is obliged to insure the delivery item against theft, breakage, fire, water, and other damage by bearing the incurring costs. In this context, the customer assigns his claims to the insurance company.
  3. The buyer is neither allowed to pledge the delivery item nor to use it as a deed of trust. In the case of any hypothecation or levy or any other disposition by a third party, the Purchaser shall immediately inform the Supplier thereof.
  4. In the event of conduct by the buyer contrary to the contractual regulations, in particular in the event of default in payment the supplier shall be authorised to recall and redeem the item after a reminder and the buyer shall be moreover obliged to surrender the delivery item. Enforcement of the retention of title and pledging of the delivery object by the supplier are not regarded as a rescission from the contract.
  5. The buyer is entitled to resell the delivered goods in the ordinary course of their business. However, the buyer now assigns the supplier all claims arising from the resale against the purchaser or third parties, regardless of whether the goods subject to retention of title has been resold without or after further processing. The customer shall be authorised to receive these amounts even after they have been assigned. The authority of the supplier to collect the claim himself remains unaffected by this. However, the supplier undertakes not to collect the claim as long as the customer duly fulfils his payment obligations. The supplier is entitled to demand the buyer to disclose the assigned accounts receivable and to state their debtors, to surrender any and all specifications required for collection thereof, to present the respective documents and to inform the debtors of the assignment. If the delivery item is resold together with products which do not belong to the Supplier, the Purchaser’s account receivable against the customer in the amount of the delivery price agreed between the Supplier and the Purchaser shall be deemed to be assigned.
  6. The processing or transformation of the delivery items which are subject to retention of title will always be carried out by the buyer for the supplier. If the reservation item is not processed with the items.
  7. belonging to the supplier, the latter acquires the co-ownership of the new item in the ratio of the value of the reservation item to the other processed items at the time of processing. For the goods produced by processing, the same applies as for the good of the reservation item.
  8. In this context, the supplier undertakes to release the securities to which he is entitled according to the above provisions, at his discretion at the request of the customer, insofar as the value exceeds the claims to be secured by 20%.
  9. The customer must inform the supplier immediately of any foreclosure measures taken by third parties in relation to the goods subject to retention of title or in the claims assigned in advance, by submitting the documents required for the respective intervention.
  10. Samples, drawings, and tools remain our property, even if the buyer bears the whole or partial costs for them.
  11. In the case goods are taken back by the buyer, we will credit them with the value in whose condition and age the goods are. In this context, the costs for the return will also be borne by the buyer.
  12. In the case of production according to the buyer's specifications, the latter will be fully responsible for ensuring that there is no infringement of property rights or other rights of third parties. In the event of a violation of third-party property rights, the buyer must indemnify us against all claims for damages from third parties.

VI. Warranty

  1. The warranty period is 12 months after the delivery of the delivered items. The guarantee takes place objectively through supplementary performance. In this context, we will determine the type of supplementary performance, the free elimination of defects reported in good time within a reasonable term or the defect-free replacement delivery. A reasonable grace period is 50% of the original delivery period. We will be entitled to refuse the supplementary performance if this is only associated with disproportionately high costs for us. Instead of a supplementary performance, we are entitled to request a reduction of the agreed price. Any defects must be reported to us immediately in writing. Complaints due to incomplete or incorrect deliveries or complaints about obvious defects must be reported to us in writing immediately within a period of 4 working days after delivery of the goods, otherwise the delivery item is considered approved, unless we are charged with fraudulent intent. For any hidden defects, the 4-day period from the customer's knowledge of the defect will be applied. Art. 377 of the HGB (German Commercial Code) shall apply. The further processing or installation of the delivered goods constitutes a waiver of the notification of defects, provided that the said defect was recognisable. In the case of the installation of the goods in a system, the customer will be obliged to allow us to inspect the construction documents, insofar there is a connection between the said installation and our delivery item. A refusal of the inspection will result in the exclusion of the customer's warranty claims. The liability expires 12 months after the delivery date at the latest. If the repair or replacement delivery of a defect we are liable for finally fails after a reasonable grace period for the repair or replacement delivery and if a further attempt at subsequent performance is unreasonable for the customer or if a reasonable grace period is culpably not used by us, the customer will be entitled to the reduction of the agreed remuneration or to the withdraw from the contract entered into. If the customer chooses to withdraw, he will not be entitled to any further claims for damages.
  2. Our liability will not be applied to insignificant defects which do not result in the reduction of the value or of the suitability for the use owed according to the contract and for delivery parts being subject to a premature wear caused by their nature or their method of use. Minor defective deviations are also considered to be insignificant defects. Furthermore, the liability will not be applied to defects which can be traced back to incorrect assembly or commissioning by the customer or by third parties, as well as defects due to unsuitable or improper use, incorrect operation, natural wear and tear, unsuitable equipment, etc. In the event of design-related modifications, the validity of the quality and certification mark may be restricted or omitted completely.
  3. For essential third-party products belonging to our delivery, our liability will be limited to the assignment of warranty claims we are entitled to against our sub-suppliers. In addition to the warranty claims mentioned above, all further claims of the customer, as far as no deviating agreement has been made under the following number 4, in particular due to personal injury, damage to goods which are not the subject of the contract or for lost profit, consequential costs, etc. will be excluded.
  4. This liability-related exclusion will be applied especially to any claims for damage, unless they are based on intent or gross negligence on the part of us, our legal representatives, or vicarious agents. We will be liable for culpable violation of essential contractual obligations at any time. The amount of our liability as well as the amount of the liability of our legal representatives and vicarious agents will be limited to the compensation for the foreseeable damage typical for the contract. If the damage risk typical for the contract is covered by liability insurance, our liability or the liability of our legal representatives or vicarious agents will be limited to the amount of the liability insurance provided that the customer is an entrepreneur and is acting in his commercial or independent professional activity after the conclusion of the contract. To the extent the insurer is exempt from the duty to indemnify, we shall provide indemnification up to the amount insured. The liability limitations mentioned above will not be applied to any damages resulting from injury to life, limb, or health, which can be traced back to a negligent breach of duty by us or an intentional or negligent breach of duty by a legal representative or vicarious agent. The exclusion of liability also does not apply to personal injury or damage to privately used property according to the legal provisions of the German Act on Liability for Defective Products of 15 December 1989 in its currently valid version, if a liability is mandatory.

VII. Resignation, conversion

  1. Apart from the other cases regulated in this context, the customer is entitled to withdraw from the contract if the complete delivery is finally impossible for us before the transfer of risk. Furthermore, the customer can withdraw from the contract if it becomes impossible for us to carry out part of the delivery and the partial delivery can be proven to be of no interest to the customer. In addition, he can demand a suitable price reduction. If a binding delivery date cannot be complied with for reasons we are responsible for, the customer may withdraw from the contract if he has set us a reasonable grace period in writing under threat of withdrawal and if the said grace period has expired fruitlessly for reasons we are responsible for. All further claims of the customer will be excluded. If none of the contractual partners is responsible for the impossibility, we will be entitled to the partial remuneration according to the provided service.
  2. The repair works will be carried out by us in such a manner that the item regains its complete functionality. The defective parts will be replaced if this is required for their proper function. If costs for the repair works exceed 40% of the new value, we will be entitled to offer a new device instead. For the repaired and replaced parts, we will assume liability according to the provisions mentioned above.

VIII. Liability for advice

We are only liable for advice or information if this has been given in writing and the customer has expressly instructed us to do so. The liability shall be limited to intent and gross negligence. The claims will expire one year after the information or advice has been given. Claims for damages will be limited to a maximum of 10% of the purchase price agreed in this context.

IX. Final provisions

  1. The place of performance for all obligations arising from the contract is the registered office of the supplier.
  2. The place of jurisdiction for both parts is Fulda, Germany.
  3. The law of the Federal Republic of Germany shall apply. The law on the conclusion of international sales contracts will not be applied.
  4. If one of the above provisions should not be applicable for any reason, this will not affect the validity of the remaining provisions.

Herget GmbH & Co.KG
Wachtküppelstraße 2
36124 Eichenzell
Tel.: 06659/973-0
Fax: 06659/973-40
www.herget-online.de
info@herget-online.de