GTCs

§ 1 General remarks – Scope of application

(1) The terms and conditions of purchase of Herrmann GmbH u. Co. KG shall apply exclusively; any terms and conditions to the contrary or supplier conditions deviating from our conditions of purchase will not be recognised unless expressly agreed in writing as to their validity. The terms and conditions of purchase of Herrmann GmbH u. Co. KG shall also apply if we accept the supplier’s delivery without reservation in the knowledge that the supplier’s terms and conditions conflict with or deviate from those of Herrmann GmbH u. Co. KG.

(2) The terms and conditions of purchase Herrmann GmbH u. Co. KG shall only apply to companies in accordance with Art. 310 (1) German Civil Code (BGB).

(3) The terms and conditions of purchase of Herrmann GmbH u. Co. KG shall also apply to all future transactions with suppliers.

§ 2 Offer – Offer documents

(1) The supplier shall be obliged to accept our order within a period of 2 weeks.
(2) We retain the right of ownership and copyrights to illustrations, drawings, calculations and other documents; they may not be made accessible to third parties without our express written consent. They are exclusively for use in production on the basis of our order; after completion of order, they must be returned to us without further request. The documents referred to are subject to confidentiality with regard to third parties; in this respect, the provision of Art. 9 (5) shall apply additionally.

§ 3 Prices – Terms of payment

(1) Price stated in orders shall be binding. In the absence of deviating written agreements, prices include delivery “free domicile”, including packaging. Return of packaging shall be subject to special agreement.

(2) Prices include statutory value added tax.

(3) Invoices can only be processed, if they state the order number shown in our order in accordance with the specifications in our order. Any consequences as a result of non-compliance with this obligation shall be the supplier’s responsibility unless he proves himself not responsible for non-compliance.
(4) Unless agreed otherwise in writing, we shall pay the purchase price within 14 days, calculated from date of delivery and receipt of invoice, with 2% discount or net within 30 days upon receipt of invoice.
(5) To the extent permitted by law, Herrmann GmbH u. Co. KG shall be entitled to rights of set-off and retention.

§ 4 Delivery period

(1) The delivery time stated in the order is binding.
(2) The supplier is obliged to inform us immediately in writing if inconveniences occur or become apparent to him, indicating that delivery times cannot be met.
(3) In the event of delays in delivery, Herrmann GmbH u. Co. KG shall be entitled to statutory claims. After an unsuccessful expiry of a reasonable period, our company shall be in particular entitled to claim damages instead of demanding performance and withdrawal. If Herrmann GmbH u. Co. KG demand compensation, supplier shall have the right to prove to Herrmann GmbH u. Co. KG that he is not to be held responsible for breach of duty.

§ 5 Transfer of risk – Documents

(1) Unless otherwise agreed in writing, delivery shall be free of charge.
(2) Suppliers shall be obliged to exactly state the Herrmann GmbH u. Co. KG order number on all shipping documents and delivery notes; if customers fail to do so, delays in processing goods thus ordered shall not be attributable to Herrmann GmbH u. Co. KG.

§ 6 Inspection of defects – Liability for defects

(1) Herrmann GmbH u. Co. KG are obliged to check the goods within a reasonable period of time for any deviations in terms of quality and quantity.
(2) Herrmann GmbH u. Co. KG shall be entitled in full to statutory claims for defects. In any case, and at the discretion of Herrmann GmbH u. Co. KG, our company shall be entitled to demand from suppliers either removal of defects or replacement. The right to compensation, in particular the right to claim damages instead of performance, is expressly reserved.
(3) In the event that suppliers are in default with their subsequent performance, Herrmann GmbH u. Co. KG shall be entitled to remedy the defect themselves at the suppliers’ expense.
(4) The limitation period shall be 36 months, calculated from the transfer of risk.
Considering Herrmann`s rights of recourse within a supply chain (Arts. 445a, 445b, 478 BGB), we are entitled to demand that suppliers provide the type of subsequent performance Herrmann GmbH u. Co. KG owes to its customers in individual cases. This does not restrict our right to choose the type of subsequent performance. Before Herrmann GmbH u. Co. KG acknowledge or fulfil customer claims to remedy a defect, suppliers are usually granted the opportunity to comment on the facts of the case without, however, entering into a legal obligation to do so. If the supplier does not make any statement within a reasonable period of time, fails to make a sufficiently plausible statement or denies the existence of a defect, and if Herrmann GmbH u. Co. KG are unable to reach an agreement with the supplier, the claim granted by Herrmann GmbH u. Co. KG on account of the defect shall be deemed to be owed to our customer;
evidence to the contrary is possible and is the supplier’s responsibility. For the rest, our company’s rights of recourse shall also exist in cases in which Herrmann GmbH u. Co. KG or third parties have further processed the defective goods, in particular by installing them in another product.

(5) All other mandatory provisions concerning delivery recourse shall remain unaffected.

§ 7 Product Liability – Exemption – Liability Insurance Cover

(1) Insofar as the supplier is responsible for a product damage, he is obliged to indemnify
Herrmann GmbH u. Co. KG, on first demand, from claims for damages by third parties if the cause lies within his area of control and organisation, with him being liable himself in the external relationship.

(2) Within the scope of his own liability for cases of damage within the meaning of subsection (1), the supplier is also obliged to reimburse any expenses pursuant to Arts. 683, 670 BGB or in accordance with Arts. 830, 840, 426 BGB, which arise from or in connection with recall actions lawfully carried out by Herrmann GmbH u. Co. KG. As far as possible and reasonable, the company will inform the supplier in good time of both content and scope of such recall measures, granting him the opportunity to comment.

(3) In coordination with the supplier, Herrmann GmbH u. Co. KG will ensure all necessary information is passed to the relevant competent authority in accordance with provisions of German Product Safety Law (ProdSiG).

(4) The supplier undertakes to take out a product liability insurance. The fixing of appropriate amounts of cover is subject to product and industry. Details should be examined in each case, taking the adequacy of the damage thus specified into account. If Herrmann GmbH u. Co. KG is entitled to further claims for damages, these shall remain unaffected.

§ 8 Industrial property rights

(1) Suppliers warrant that no rights of third parties within the Federal Republic of Germany are violated in connection with their delivery.

(2) If, for this reason, third party claims are made against Herrmann GmbH u. Co. KG, suppliers shall be obliged to indemnify Herrmann GmbH u. Co. KG from those claims upon first written request. In the event of claims for damages third parties, suppliers shall be entitled to prove they are not responsible for violating third party rights.

(3) Herrmann GmbH u. Co. KG shall not be entitled to enter into a contract with a third party without supplier’s consent to reach any agreements, in particular to conclude a settlement.

(4) The supplier’s obligation to indemnify shall refer to all expenses Herrmann GmbH u. Co. KG was obliged to incur from or in connection with the third party claim.

(5) The period of limitation shall be 3 years, beginning with the transfer of risk.

§ 9 Retention of Title – Provision of Materials – Tools – Confidentiality

(1) Herrmann GmbH u. Co. KG reserve the right of ownership insofar as our company provides parts to the supplier. Processing or alteration carried out by the supplier is performed for Herrmann GmbH u. Co. KG. If goods reserved by Herrmann GmbH u. Co. KG are processed with other items not pertaining to our company, Herrmann GmbH u. Co. KG shall acquire co-ownership of the new items in the ratio of our item’s value (purchase price plus VAT) to the other processed items at the time of processing.

(2) If items provided by Herrmann GmbH u. Co. KG are inseparably mixed with other items not belonging to our company, we shall acquire co-ownership of the new items in the ratio of the reserved items’ value (purchase price plus VAT) to other mixed items at the time of mixing. If mixing is carried out in such way that suppliers’ items are to be regarded as the main items, there shall be agreement to the effect that suppliers transfer proportionate co-ownership to Herrmann GmbH u. Co. KG; suppliers shall keep sole ownership or co-ownership for Herrmann GmbH u. Co. KG.

(3) Herrmann GmbH u. Co. KG reserves ownership of tools. Suppliers are further obliged to use the tools exclusively for the production of goods ordered by Herrmann GmbH u. Co. KG. At his own expense, a supplier shall be obliged to insure tools owned by Herrmann GmbH u. Co. KG at their new value and against damages brought about by fire, water and theft. At the same time, the supplier hereby assigns to Herrmann GmbH u. Co. KG all claims for compensation from this insurance; Herrmann GmbH u. Co. KG herewith accepts the assignment. The supplier is obliged to carry out any necessary maintenance and inspection work on Herrmann GmbH u. Co. KG tools as well as all maintenance and repair work at his own expense and in good time. He must notify Herrmann GmbH u. Co. KG immediately of any malfunctions; if a supplier culpably fails to do so, claims for damages shall remain unaffected.

(4) Insofar as the security rights to which Herrmann GmbH u. Co. KG are entitled in accordance with subsection (1) and/or subsection (2) exceed the purchase price of all our reserved goods not yet paid for by more than 10%, Herrmann GmbH u. Co. KG shall be obliged, at the suppliers’ request, to release security rights according to the choice of Herrmann GmbH u. Co. KG.

(5) The supplier shall be obliged to keep all illustrations, drawings, calculations and other documents and information received strictly confidential. They may only be disclosed to third parties with the explicit consent of Herrmann GmbH u. Co. KG. The obligation of confidentiality shall also apply after execution of this contract. However, this obligation shall expire if and insofar as production knowledge contained in the illustrations, drawings, calculations and other documents provided has become generally known or was demonstrably already known to the supplier at the time of notification within the meaning of sentence 1.

§ 10 Place of jurisdiction – Place of performance

If the supplier is a merchant, the place of jurisdiction shall be the registered office of Herrmann GmbH u. Co. KG. The company, however, shall also entitled to sue suppliers at the court of their place of residence. Unless otherwise stated in the order and if the supplier is a merchant, the registered office of  Herrmann GmbH u. Co. KG shall be the place of performance. The law of the Federal Republic of Germany applies. The United Nations Convention on Contracts for the International Sale of Goods dtd. 11 April 1980 (CISG) does not apply.

Status: November 2020

§ 1 General – Scope of Application

(1) The terms and conditions of purchase of Herrmann GmbH u. Co. KG shall apply exclusively; any terms and conditions to the contrary or customer conditions deviating from our conditions of purchase will not be recognised unless expressly agreed in writing as to their validity. The terms and conditions of sale of Herrmann GmbH u. Co. KG also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions are contrary to or deviate from the terms and conditions of sale of Herrmann GmbH u. Co. KG.
(2) The terms and conditions of purchase of Herrmann GmbH u. Co. KG shall only apply to companies in accordance with Art. 310 (1) German Civil Code (BGB).
(3) The terms and conditions of purchase of Herrmann GmbH u. Co. KG shall also apply to all future transactions with the customer.

§ 2 Offer – Conclusion of contract

(1) If the order is to be qualified as an offer in accordance with § 145 BGB, Herrmann GmbH u. Co. KG can accept it in writing within two weeks, provided Herrmann GmbH u. Co. KG has not expressly agreed a different binding period on their offer.
(2) Solely decisive for the legal relationship between Herrmann GmbH u. Co. KG and the customer is the written sales contract, including these general terms and conditions of sale. These terms fully reflect all agreements made between the contracting parties concerning the contractual object. Verbally made promises made by Herrmann GmbH u. Co. KG prior to the conclusion of contract are not legally binding; verbal agreements of the contracting parties are replaced by the written contract.
(3) To be effective, additions and amendments to the agreements reached, including these general terms and conditions of sale, are subject to written form. To comply with written form, telecommunication transmission shall suffice, in particular by fax or email, provided that a copy of the signed declaration is sent.
(4) Herrmann GmbH u. Co. KG retain the property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to written documents designated as “confidential”. Prior to passing them on to third parties, customers are subject to explicit written consent by Herrmann GmbH u. Co. KG.

§ 3 Prices – Terms of payment

(1) Unless stated otherwise in the order confirmation, prices of Herrmann GmbH u. Co. KG are “ex works”, excluding packaging which is invoiced separately.
(2) Statutory value-added tax is not included in prices of Herrmann GmbH u. Co. KG; it is charged in statutory amount on the day of invoicing, stated separately on the invoice.
(3) Discounts are subject to prior special written agreement.
(4) Unless stated otherwise in order confirmations, purchase prices are net (without deduction), payable within 30 days of invoice date. Legal regulations concerning consequences of default of payment shall apply.
(5) Customers shall only be entitled to offsetting rights if their counterclaims are legally binding, undisputed or recognised by Herrmann GmbH u. Co. KG. In addition, customers shall be authorised to exercise right of retention insofar as their counterclaim is based on the same contractual relationship.
(6) Herrmann GmbH u. Co. KG shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of purchase contract, the company becomes aware of circumstances which are likely to substantially reduce the customer’s creditworthiness, thereby putting at risk the payment of our outstanding customer claims, based on the contractual relationship.

§ 4 Delivery Period

(1) The beginning of the delivery period stated by Herrmann GmbH u. Co. KG is subject to clarification of all technical queries.
(2) Compliance with our delivery obligation further requires the timely and proper fulfilment of our customers’ obligations. The defence of non-performance of contract remains reserved.
(3) If customers are in default of acceptance or culpably violate other obligations to cooperate, Herrmann GmbH u. Co. KG shall be entitled to claim related damages incurred, including any additional expenses. Further claims or rights are reserved.
(4) Insofar as conditions of subsection (3) are met, risk of accidental loss or accidental deterioration of the sales object shall pass to customers at the point in time at which customers are in default of acceptance or debtor’s delay.
(5) Herrmann GmbH u. Co. KG shall be liable in accordance with statutory provisions insofar as the underlying purchase contract is a firm deal in the sense of Art. 286 subs. 2 no. 4 of the German Civil Code (BGB) or Art. 376 German Commercial Code (HGB). Herrmann GmbH u. Co. KG shall also be liable in accordance with statutory provisions if, as a consequence of a delay in delivery which Herrmann GmbH u. Co. KG is responsible for, customers are entitled to claim that their interest in further performance of the contract has ceased to exist.
(6) Herrmann GmbH u. Co. KG shall also be liable in accordance with statutory provisions if delays in delivery are due to intentional or grossly negligent breach of contract for which Herrmann GmbH u. Co. KG is responsible. Faults of our representatives or vicarious agents shall be attributed to Herrmann GmbH u. Co. KG. Insofar as delays in delivery are due to gross negligence on the part of Herrmann GmbH u. Co. KG, our liability for damages shall be limited and based on foreseeable damage that typically occurs.
(7) Herrmann GmbH u. Co. KG shall be liable in accordance with the statutory provisions insofar as delays in delivery for which we are responsible are based on the culpable breach of an essential contractual obligation. In such case, however, liability for damages shall be limited to the foreseeable, typically occurring damage.
(8) Further legal claims and customer rights remain reserved.

§ 5 Transfer of Risk – Packaging Costs

(1) Unless stated otherwise in confirmation of orders, delivery “ex works” shall be agreed. Shipping costs are charged to customers “ex works”.
(2) Upon customers’ request, Herrmann GmbH u. Co. KG shall cover delivery by transport insurance; related costs incurred shall be borne by customers.

§ 6 Liability for Defects

(1) Customer warranty claims are subject to customers complying with their obligations according to Art. 377 German Commercial Code (HGB) in terms of inspection and notification of defects in accordance with regulations.
(2) Insofar as there is a defect in the object of purchase, the customer shall be entitled to choose subsequent performance in the form of removal of defects or delivery of a new item, free of defects. In the case of removal of defects or replacement delivery, Herrmann GmbH u. Co. KG is obliged to bear all expenses required for the purpose of subsequent performance, especially cost of transport, travel, labour and material, insofar as costs are not increased due to the sales object being transported to a location other than the place of performance.
(3) If supplementary performance fails, customers shall be entitled to withdraw from the contract at their own discretion or demand a reduction in price.
(4) In the event of defects in items or components from other manufacturers which Herrmann GmbH u. Co. KG cannot remedy for licensing reasons, we shall, at our discretion, either assert our warranty claims against the manufacturer or supplier for the customer’s account or assign them to the customer. Warranty claims against Herrmann GmbH u. Co. KG for such defects exist under the other conditions and in accordance with the General Terms and Conditions of Sale only if the legal enforcement of the above-mentioned claims against the manufacturer or supplier was unsuccessful or, for example due to insolvency, is futile. For the duration of the legal dispute, the limitation period for the customer’s relevant warranty claims against Herrmann GmbH u. Co. KG shall be suspended.
(5) Herrmann GmbH u. Co. KG shall be liable in accordance with statutory provisions if customers assert claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(6) Herrmann GmbH u. Co. KG is liable in accordance with statutory provisions if we culpably violate an essential contractual obligation. However, in this case too, liability for damages shall be limited to the foreseeable, typically occurring damage.
(7) Insofar as customers are otherwise entitled to compensation for damages instead of performance due to negligent breach of duty, liability of Herrmann GmbH u. Co. KG shall be limited to compensation for foreseeable, typically occurring damages.
(8) Liability for culpable injury to life, body or health shall remain unaffected. This shall also apply to mandatory liability under the Product Liability Act.
(9) Unless otherwise regulated above, liability shall be excluded.
(10) The limitation period for claims for defects is 12 months, calculated from the transfer of risk. Insofar as the law pursuant to Art. 438 subs. 1 no. 2 BGB (Buildings and Items for Buildings), Art. 445 b BGB (Right of Recourse) and Art. 634a para. 1 BGB (Building Defects) prescribes longer periods, these periods shall apply.
(11) All other mandatory provisions of the delivery recourse remain unaffected.

§ 7 Joint and Several Liability

(1) Any further liability for damages other than provided for in § 6 shall be excluded, irrespective of the legal claim’s legal nature. This shall apply in particular to claims for damages arising from negligence in contracting, other breaches of duty or tortious claims for compensation for property damage in accordance with Art. 823 BGB.
(2) The limitation according to subsection (1) shall also apply if customers demand compensation for useless expenses instead of claims for compensation for damages.
(3) Insofar as liability for damages against Herrmann GmbH u. Co. KG is excluded or limited, this shall also apply with regard to personal liability for damages of employees, workers, staff, representatives and vicarious agents of Herrmann GmbH u. Co. KG.

§ 8 Retention of title

(1) Herrmann GmbH u. Co. KG retains ownership of the purchased item until receipt of all payments based on the delivery contract. If customers act in breach of contract, in particular in the case of default of payment, Herrmann GmbH u. Co. KG shall be entitled to take back the object of sale. The taking back of the sales object by Herrmann GmbH u. Co. KG shall constitute a withdrawal from the contract. After taking back the object of sale, Herrmann GmbH u. Co. KG shall be authorised to dispose of it whereby proceeds of realisation are to be offset against the customer’s liabilities minus reasonable realisation costs.
(2) Customers are obliged to treat sales objects with care. Customers commit in particular, and at their own expense, to take out sufficient insurance cover against damage caused by fire, water and theft at replacement value. If maintenance and inspection works are necessary, customers must carry them out in good time at their own expense.
(3) In the event of seizure or other interventions by third parties, customers shall notify Herrmann GmbH u. Co. KG immediately in writing so that Herrmann GmbH u. Co. KG can file a lawsuit in accordance with Art. 771 (German Code of Civil Procedure, ZPO). If the third party is not able to provide Herrmann GmbH u. Co. KG with the judicial and extrajudicial costs of a lawsuit according to Art. 771 ZPO, customers shall be liable for the resulting loss incurred by Herrmann GmbH u. Co. KG.
(4) Customers shall be entitled to resell the object of sale in the ordinary course of business; however, they hereby assign to Herrmann GmbH u. Co. KG all claims in the amount of the final invoice amount (including VAT) of our claim, which accrue to them from the resale against their customers or third parties, irrespective of whether the object of sale has been resold without or after processing. Customers remain authorised to collect this claim even after the assignment. The authority of Herrmann GmbH u. Co. KG to collect the claim shall remain unaffected by this. Herrmann GmbH u. Co. KG undertakes, however, not to collect the claim as long as the customer fulfils his payment obligations from the proceeds received does not fall into arrears and, in particular, no application for initiation of composition or insolvency proceedings has been made or payments suspended. In such case, however, Herrmann GmbH u. Co. KG can demand that customer informs Herrmann GmbH u. Co. KG of any assigned claims and their debtors, while providing all information necessary for collection, handing over relevant documents and informing debtors (third parties) of such assignment.
(5) The processing or alteration of the purchased item by the customer is always carried out for Herrmann GmbH u. Co. KG. If the object of purchase is processed with other objects not belonging to Herrmann GmbH u. Co. KG, the company shall acquire co-ownership of the new object in the ratio of the value of the object of purchase (final invoice amount including VAT) to the other processed objects at the time of processing. The same shall apply to the object resulting from processing as to the object of sale delivered under reservation of title.
(6) If the object of purchase is inseparably mixed with other objects that do not belong to Herrmann GmbH u. Co. KG, the company shall acquire co-ownership of the new object in the ratio of the value of the purchase object (final invoice amount, including VAT) to other mixed objects at the time of mixing. If the mixing is carried out in such way that the customer’s item is to be regarded as the main item, it shall be deemed agreed that customer transfers proportional co-ownership to Herrmann GmbH u. Co. KG. The customer shall keep sole ownership or co-ownership thus created safe for Herrmann GmbH u. Co. KG.
(7) The customer also assigns to Herrmann GmbH u. Co. KG those claims to secure the company’s claims against him that arise against third parties based on the connection of the sales object with a property.
(8) At the customer’s request, Herrmann GmbH u. Co. KG undertakes to release securities to which the company is entitled insofar as the realisable value of Herrmann GmbH u. Co. KG securities exceeds claims to be secured by more than 10%; Herrmann GmbH u. Co. KG shall be responsible for selecting the securities to be released.

§ 9 Final provisions

If the customer is a merchant, the place of jurisdiction shall be the registered office of Herrmann GmbH u. Co. KG. The company, however, is also entitled to sue the customer at the court of his place of residence. The law of the Federal Republic of Germany shall apply. The United Nations Convention Nations on Contracts for the International Sale of Goods determined 11 April 1980 (CISG) does not apply.
Unless otherwise stated in the order confirmation and the customer is a merchant, the registered office of Herrmann GmbH u. Co. KG shall be the place of performance.

Status: November 2020