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1. The following terms and conditions shall provide the contractual foundation for our business relationships with the purchasers of our products and shall become an integral part of agreement on the date of accepting any contractual offer. Status August 2013. Any contrary or deviating terms and conditions of business of the purchaser shall be considered to have been contracted out. We explicitly oppose any contrary ban on assignment. The acceptance of the offers of our purchasers to be declared by us shall be made exclusively on the foundation of our Terms and Conditions of Sale, Delivery, Assembly and Repair.
2.1 We are entitled to assign the claims from our business relationship. Our claims are assigned to BFS finance GmbH, Verl. Payments may only be made to BFS finance GmbH in full discharge of obligations. The bank details are provided on the invoice.
2.2 Our offers are subject to confirmation. We shall only be bound by our offers if these have been explicitly declared as legally binding; they shall otherwise apply as 'invitation ad offerendum' (invitation to submit offers). In such cases, our written confirmation of the order shall be required for the contract to be concluded. Our written confirmation shall be required for any verbal ancillary agreements and warranties on the part of our employees and representatives to become legally binding.
3. Place of performance for our duties to perform is our business domicile or the respective distribution warehouse. Our duty to deliver shall be satisfied by appropriation (provision) and transfer (Section 243 German Civil Code - BGB) of the goods to the forwarding staff. We shall not bear the costs of shipping the goods; the purchaser must assume these costs which shall also include the taxes and customs duties or similar caused by shipping.
4. The appropriation (provision) of goods shall cause the performance risk to be transferred to the purchaser. If there are no specific instructions from the purchaser, we shall be free to select a suitable forwarder. However, this shall not substantiate any liability on our part.
5. Our prices are net prices ex works or warehouse exclusive of the statutory rate of value added tax. The cost of packaging and any assembly on site plus ancillary costs shall be added thereto. If more than four months have passed between confirmation of order and delivery, we are entitled to charge the applicable price on the date of delivery.
6. Delivery periods are only binding if they have been marked explicitly as such in our order confirmation. Otherwise, they shall be viewed to be guide times which may be exceeded by up to six weeks without the purchaser being able to derive any rights from this whatsoever. If it emerges after confirmation of order that we will not be able to perform or not within the specified period or within the period of grace, we are entitled for our part to withdraw from the agreement without this substantiating any recourse claims. Any advance payments received must be reimbursed. Part deliveries are admissible insofar as this is financially viable for the purchaser.
7. If the purchaser withdraws from the agreement without us providing him with any reasons so to do, he shall owe us lump sum damages which do not require substantiation in the amount of 12.5% of the net order value (incl. VAT).
8. The same obligation shall apply to the purchaser if we are compelled by reasons which become known subsequently and are attributable to the purchaser to withdraw from the agreement. Any such reasons shall be the insolvency of the purchaser without it being necessary to apply for insolvency proceedings, the submission of an affirmation in lieu of oath and any circumstances becoming known which would decisively impair the credit standing of the purchaser or any failed efforts to obtain funding or leasing insofar as these have not been explicitly made a condition subsequent.
9. We limit our liability to wilful intent and gross negligence.
10. The purchaser must notify us in writing of any evident defects within a period of two weeks from receipt of the goods. Otherwise, the assertion of a warranty claim shall be precluded. A punctual sending of the notification shall be sufficient to meet the deadline. The purchaser is fully responsible for providing evidence of the satisfaction of all claim prerequisites, in particular about the defect itself, the time of determining the defect and the timeliness of complaining of defect.
11.1 We shall provide warranty for defects to the goods either by repair or new production as we so chose. If we seriously and finally refuse satisfaction, if we refuse to rectify the defect or refuse to provide subsequent satisfaction due to disproportionate costs, if the subsequent satisfaction fails or is not reasonably acceptable for the purchaser, the purchaser may only request a reduction in remuneration or the rescission of the agreement as he so chooses. However, the purchaser shall have no right of rescission in the case of only a slight contractual infringement, in particular in the case of only a small defect.
11.2 Guarantee/Warranty/Authorisation. An authorisation shall be given after service training with the corresponding order of a service technician.
11.3 Exclusion of liability in the case of non-authorised service work on Hermann products.
12. If the purchaser chooses to withdraw from the agreement due to a legal or material defect following the failure of subsequent performance, he shall have no further claim to damages on the grounds of the defect. If, after failed subsequent performance, the purchaser chooses damages, the goods shall remain with him if this is acceptable to him. Damages shall be restricted to the difference between the purchase price and the value of the defective object. This shall not apply if we fraudulently caused the infringement of agreement.
13. Rights on the grounds of defects which do not refer to a building or a work which consists in the provision of planning and monitoring services shall become statute barred one year after delivery of the goods. This shall not apply if the purchaser did not notify us of the defect in good time.
14. Warranties in the legal sense shall not be given to the purchaser by us. This shall not affect any manufacturer's warranties.
15.1. We reserve ownership to the goods until full payment of any outstanding claims has been made.
15.2 The purchaser is obliged to treat the goods with care. If service and inspection work is necessary, the purchaser must perform such at his own cost on a regular basis.
15.3. The purchaser is obliged to notify us immediately of any third party access to the goods such as in the event of attachment or any damage to or destruction of the goods. A change in the possession of the goods must be reported immediately. The purchaser must advise us immediately about any change in possession of the goods and about his own change in address.
15.4. We are entitled to withdraw from the agreement and to request the return of the goods in the case of any behaviour which is contrary to agreement on the part of the purchaser, in particular in the case of payment default or in the case of an infringement of a duty pursuant to Clause 16.2. and 16.3. of this agreement.
15.5. The purchaser is authorised subject to revocation to resell the goods during the ordinary course of business; however, he shall hereby assign to us all claims to payment of the purchase price (in the amount of invoice end amount (including turnover tax)) accruing to him from the resale or processing from his customers or third parties and irrespective of whether the goods have been further used excluding or including processing. We shall hereby accept the assignment. If a current account relationship exists between us and the purchaser pursuant to Section 355 (2) BGB HGB, the advance assignment shall also refer to the acknowledged balance. We shall be authorised to collect this claim also after the assignment. Our authorisation to collect the claim ourselves shall not be affected by this. However, we undertake not to collect the claim for as long as the purchaser satisfies his payment commitments from the collected revenue, is not in default of payment and, in particular, no application has been filed for the initiation of insolvency proceedings or the conducting of an out-of-court settlement procedure with creditors about the settlement of debts (Section 305 I 1 German Insolvency Ordinance - InsO), no cheque or bill of exchange procedure is in progress and payments have not been discontinued. However, if this is the case, we may demand that the purchaser discloses to us the assigned claims and their debtors, provides us with all information necessary for collection, hands over the accompanying documents and advises the debtor (third party) of the assignment. The collection correction refers to the entire balance in demand.
15.6. The processing or alteration of the goods by the purchaser shall always be performed for us. If the goods are processed with other objects which do not belong to us or are combined with them in any other way, we shall acquire the co-ownership to the new object in the relationship of the value of the goods to the other processed objects at the time of processing. The same shall otherwise apply to the object resulting from processing as to the goods supplied under reservation of ownership.
15.7. If the goods are inextricably combined with other objects which do not belong to us, we shall acquire co-ownership to the new object in relationship of the value of the goods to the new objects at the time of combining. If the goods of the customer are to be viewed as the main object, the customer must transfer proportionate co-ownership to us.
15.8 It shall not be necessary to rescind the agreement to assert the reservation of ownership unless the customer is a consumer.
15.9 On frustration of the collection authorisation set out in point 5 of this Clause, the purchaser is no longer authorised to install, inextricably combine or process the goods under reservation of ownership.
15.10 The purchaser shall also assign to us the claims against third parties accruing against a third party by combining the goods with landed property. This shall also cover the right to granting a claim-securing mortgage (Sicherungshypothek) taking priority over the rest. We hereby accept this assignment.
15.11 Anyone incorporating the reservation goods of the purchaser as a main element in his own landed property shall here and now assign to us the claims arising from the commercial sale of the landed property or landed property rights in the amount of the value of the reservation goods with all ancillary rights and taking priority over the rest. We hereby accept this assignment.
15.12 We undertake to release the securities attributable to us at the request of the purchaser if the realisable value of our securities exceeds the claims to be secured by more than 20%. The purchase prices of the purchaser or, in the case of processing the reservation goods, the costs of manufacturing the security goods or the co-ownership share, must be taken as realisable value insofar as the purchaser does not provide evidence of a lower realisable value of the reservation goods, less an admissible deduction of a maximum of 45% of the claim to be secured due to possible lower revenue. We are entitled to select the security to be released.
16.1 Our invoices shall be payable within two weeks of invoicing. Payments must be made without deduction unless a different arrangement has been explicitly made in writing.
16.2 The supplier is entitled to assign his claims from deliveries and services for the purposes of financing.
17.1 Insofar as payment by instalments has been approved in writing, the residual claim shall fall due for immediate repayment if an instalment falls into arrears for longer than one month or the instalments are not completely and/or punctually paid for the third time.
17.2 If the purchaser defaults on a payment, all other claims shall fall due immediately for payment without any separate action being required.
18. Offsetting with counterclaims of the purchaser shall be ruled out for all conceivable cases unless the counterclaims are undisputed or have been finally determined.
19. Insofar as we are required to perform assembly or repair work by way of an additional order, the following shall apply: any prior work of the purchaser must have been performed correctly and completely; in particular the earth, foundation, construction and scaffolding work including any incoming and outgoing lines necessary for commissioning must have been completed in accordance with the combined foundation plans to be placed at our disposal. The purchaser must provide at his own expense auxiliary staff and equipment for transportation/unloading of heavy assembly parts and dry, heated and lockable rooms for our fitters and the requisite power. He must furthermore unpack and provide the objects intended for assembly before start of work.
20. Any exchanged parts shall become our property. An offset shall only be made if this has been explicitly agreed in writing.
21. The costs of assembly shall be calculated in accordance with the hours worked and materials used. Our fitters are obliged to conduct work reports which must be initialled by the purchaser. The daily rates applicable on the date of invoicing for working, travel and waiting time as well as the ancillary costs such as daily allowance, accommodation and travel expenses shall be charged.
22.1 These General Terms and Conditions of Business shall also apply in dealings with foreign customers. The UN Convention on the International Sale of Goods dated 1.7.64, and the Hague conventions relating to a uniform law on the international sale of goods dated 17.7.73 shall be contracted out.
22.2 It shall be explicitly agreed for deliveries and services to purchasers abroad that all costs of legal prosecution by the supplier shall be borne by the purchaser in the event of payment default on the part of purchaser as well as all court and out of court expenses.
23.1. Insofar as the contracting party is a merchant, the place of jurisdiction for all resultant disputes shall be the registered office of the company of the supplier. However, the supplier is entitled to bring action at the place of jurisdiction of the contracting party.
23.2. The contractual relationship shall be exclusively governed by the law of the Federal Republic of Germany for both parties.
24. Insofar as individual provisions are inadmissible, the inefficacy shall be restricted to the respective clause. Any such provisions must be interpreted by way of supplementary contractual interpretation under consideration of the intentions of both parties and the legal requirements which comes as close as possible to the clause concerned.
