General Terms & Conditions
1.1All goods and services supplied by Hersa-Kantteile GmbH - hereinafter referred to as ?Hersa? for short - are strictly subject to the terms and conditions set out below. Any terms and conditions put forward by the contractual partner shall only apply if and insofar as they have been explicitly confirmed in writing by Hersa.
1.2The terms and conditions below are intended for use in business dealings with companies.
2.Conclusion of contract
2.1The specifications quoted by Hersa in brochures and advertisements, etc. shall be subject to confirmation and non-binding. We reserve the right to make changes to samples and designs in the context of further development. Drawings and structural specification documents shall remain our property and may only be passed on to third parties subject to our written consent.
2.2 Our prices are quoted ex works or from stock, excluding packaging and transport, unless agreed otherwise; no incidental or additional costs whatsoever are included. If changes occur after conclusion of contract to cost elements forming part of the agreed price, Hersa will be entitled and obliged to correct the total price in line with the cost change as demonstrated. The prices do not include the statutory sales tax; this is added to the invoice and charged at the rate prescribed by law at the time of invoicing.
2.3Any agreements which would effect an amendment of contract shall only have binding force if made by the management of Hersa. Other parties shall not be authorized to make binding amendments.
2.4Invoices shall be payable strictly net 14 days from date of invoice. They shall be deemed to have been accepted if no written objection is made within 14 days of the invoice date; Hersa will include this information with every invoice. If the contractual partner does not accept the goods in due time or in their entirety, the balance shall be payable 10 days after notification of their readiness for dispatch.
2.5Should the contract not materialize for reasons for which the contractual partner is responsible, the contractual partner shall be liable to pay 25% of the contract price to Hersa by way of damages. Hersa reserves the right to claim further damages. The contractual partner shall be entitled to demonstrate that Hersa has suffered no loss at all or a significantly lower loss than claimed.
2.6The contractual partner shall only have rights of set-off and retention if the latter?s counterclaim is undisputed or recognized by declaratory judgment.
3.1Delivery dates or delivery deadlines must be agreed in writing. Appropriate extensions shall be granted in cases of force majeure (including shipping delays, machine defects) and if the contractual partner fails to cooperate as required.
3.2We reserve the right to be supplied with the correct input materials on time by our suppliers. Hersa will inform the contractual partner immediately of non-availability of goods and will make an immediate refund to the contractual partner in the event of the latter?s withdrawal.
3.3If the dispatch of a consignment is delayed at the request of the contractual partner by more than two weeks after the agreed delivery date - or after notification of readiness for dispatch if no delivery date was agreed - Hersa may charge warehousing costs for each month (or part thereof) at a flat rate of 0.5% of the price of the items to be delivered, up to a maximum of 5%. The contractual partner shall have the right to demonstrate that Hersa has suffered a significantly lower loss or no loss at all. Hersa shall have the right to demonstrate that a greater loss has been suffered.
3.4As a general principle, Hersa delivers from stock or ex works. Packaging is not taken back, with the exception of pallets. Part deliveries are permissible if the ordered goods can be split and used successively by the contractual partner. If the contractual partner so wishes, Hersa will take out insurance to cover the consignment in transit; the contractual partner shall bear the costs incurred in this respect.
4.Reservation of title
4.1Hersa reserves title to the items delivered until such time as all the latter?s present and future claims against the contractual partner in connection with the business contract have been satisfied. The customer may not pledge or assign as security while the reservation of title applies; Hersa will notify the contractual partner immediately in case of attachment or any other dispositions or encroachments of third parties.
4.2 The goods may only be sold on to resellers in the normal course of business and on condition that the customer is paid the value of the delivery item. The customer must also enter into an agreement with the buyer stating that the buyer shall only acquire title on making said payment.
4.3 The customer may process the delivered goods, mix them with other items or connect them to other items, under the terms set out in article 950 of the German Civil Code (BGB). In the event that the goods are processed with other items not belonging to Hersa, Hersa shall be entitled to claim a co-ownership share in the new item, as measured by the value of the delivered goods which have been processed, mixed or connected in proportion to the value of the other goods processed at the time of the processing; the contractual partner hereby assigns to us the accruing property rights and inchoate rights to the new item insofar as the latter acquires sole ownership of the new item.
4.4 In the event of the sale of the delivered goods or of the new item or of its connection with real property or chattels, the contractual partner hereby assigns to Hersa by way of security its claim against the buyer from the resale or connection, along with all ancillary rights and without requiring any further separate notice. The assignment shall be inclusive of any payment balance claims, but only in the amount corresponding to the price of the delivered goods invoiced by Hersa. Priority shall be given to satisfying the portion of the claim assigned to Hersa.
4.5 Until such time as the contract is cancelled for cause (especially in case of doubt as to the collection of our receivables), the contractual partner shall be authorized to collect the claims assigned under this paragraph. The contractual partner shall forward the payments made on the assigned claims to Hersa immediately until the amount of the secured debt is paid. At our request the contractual partner shall be required to inform its buyers immediately of the assignment, unless we do so ourselves, and to provide us with the information and documents required for collection. Under no circumstances shall the contractual partner be authorized to assign the claims.
4.6If the value of our realizable security interests exceeds the secured claims by more than 10%, we will be required to release securities of our choice at the request of the contractual partner.
4.7In case of breach of duty on the part of the contractual partner we will be entitled to prohibit the processing of the delivered goods or to request the surrender of the goods or the new item; any such request on the part of Hersa shall not be tantamount to a withdrawal unless this is expressly stated.
5.Claims based on defects
5.1 Claims for defects made by the contractual partner shall be subject to the latter having duly complied with the statutory obligations to examine the goods and issue notification of any defects under article 377 of the German Commercial Code (HGB). Visible defects must be reported in writing within two weeks of delivery. Claims for defects cannot be made in case of merely insignificant instances of non-conformity with the agreed quality or in case of merely insignificant impairment of serviceability. We reserve the right to charge the contractual partner for the inspection in the case of unjustified complaints.
5.2The contractual partner shall only have a right to assert recourse claims against Hersa under article 478 of the German Commercial Code (HGB) insofar as the contractual partner has not made any agreements with its buyer over and above the statutory rights of recourse.
5.3 Hersa shall have the right to choose whether to rectify defects or supply new goods. If the contractual partner wishes to claim damages in lieu of performance or to remedy the defects itself, the attempt at rectification shall only be deemed to have failed after two unsuccessful attempts, without prejudice to the statutory option of dispensing with the need to set time limits.
5.4Claims and rights based on defects of delivery - irrespective of legal grounds - shall be subject to a limitation period of one year, except in case of fraudulent intent or warranted properties. This shall not apply, however, in the cases provided for in article 438 para. 1. subsection 2, article 479 para. 1, or article 634a. para. 1. subsection. 2 of the German Civil Code (BGB), nor shall it apply in case of claims for damages for injury to life, limb or health or in case of claims under the law on product liability.
6.1 Claims for damages shall be excluded regardless of the nature of the breach of duty, including tort, unless based on intentional action or gross negligence.
6.2If it is in breach of cardinal duties, Hersa will be liable for each instance of negligence, but not beyond the amount of foreseeable damage typically arising under such contracts. Claims cannot be asserted for lost profits and savings which could have been made, for financial losses sustained as a result of third-party claims, nor for other consequential losses.
6.3 The above limits and exclusions of liability shall not apply to claims under the law on product liability nor to claims for losses arising from injury to life, limb or health, nor shall they apply in case of liability for guaranteed product features.
6.4 Any exclusions and limitations of liability above shall apply equally to staff members, employees, representatives and servants of Hersa.
6.5In other respects, the liability of Hersa for damages in addition to and in lieu of performance shall be limited to 5% of the value of the consignment in case of delayed delivery and to 10% of the value of the consignment in case of impossibility of delivery. No further claims may be made by the contractual partner, not even after the expiry of any time allowance granted to Hersa. The above limits shall not apply in case of liability for injury to life, limb or health. The above clause shall not implicate any change to the burden of proof to the disadvantage of the contractual partner. The latter?s right to withdraw from the contract shall remain unaffected.
7 Final provisions
7.1The law of the Federal Republic of Germany shall apply to these Terms & Conditions and to the legal relations between Hersa and the contractual partner.
7.2Bad Soden-Salmünster shall be the place of performance and jurisdiction.
7.3The invalidity of individual clauses of these Terms & Conditions shall not affect the validity of the other clauses.