General Terms and Conditions

General Terms and Conditions of Hermes Technologie GmbH & Co. KG for business transactions with entrepreneurs

§ 1 Personal scope of application

These GTC apply exclusively to business transactions with entrepreneurs. Entrepreneurs are natural or legal persons or partnerships with legal capacity who are acting in the exercise of their commercial or independent professional activity when concluding the legal transaction.

§ 2 Applicable law

(1) The mandatory, directly applicable law of the European Union and the Federal Republic of Germany shall always take precedence.

(2) Otherwise, any disputes arising from contracts concluded with us in the area of dispositive law shall be governed primarily by any individual agreements, any special General Terms and Conditions for individual orders, then these GTC and finally the dispositive law applicable in the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

§ 3 Temporal and material scope of application

(1) These General Terms and Conditions shall apply to all current and future contractual relationships after their initial inclusion, even if they are not expressly included again.

(2) They apply equally to the sale of goods and the provision of work and services.

(3) They also apply to the purchase of goods and the use of works and services by us, unless the following provisions expressly refer to the sale of our goods or the provision of our services or works.

§ 4 Deviating GTC of the contractual partner

Deviating general terms and conditions of the contractual partner shall only apply with our express consent within the framework of an individual agreement.

§ 5 Services before conclusion of the contract

Our delivery of samples and the transmission of cost estimates shall be remunerated appropriately. Passing on our samples or cost estimates to third parties is prohibited.

§ 6 Conclusion of contract

(1) Descriptions of our goods or services in any advertising, including in connection with prices, do not constitute an offer to conclude a contract, but rather an invitation to our customers to submit an offer. By ordering goods, a service or work, the customer submits a legally binding offer. The customer is bound to his offer for 5 working days. A contract is concluded when we accept the customer's offer. This is usually done by means of an order confirmation in text form.

§ 7 Agreement on quality/guarantee

(1) Agreements on the quality of our goods must be made expressly in each individual case. Product advertising, for example in catalogs and brochures as well as illustrations on our homepage in written or pictorial form do not constitute a quality agreement.

(2) The same applies to the agreement of a guarantee.

§ 8 Quantity deviations

Quantity deviations in our deliveries of up to 10 % are due to technical reasons and correspond to the contractual quality.

§ 9 Commercial letter of confirmation

Our silence in response to a commercial letter of confirmation from the contractual partner or negotiating partner does not constitute a contract or an amendment to a concluded contract. Amendments to a concluded contract always require our express consent.

§ 10 Prices

(1) In the absence of an individual agreement on a price, our price lists valid at the time of conclusion of the contract shall apply, provided that they were made known to the contractual partner before or at the time of conclusion of the contract.

(2) Unless otherwise agreed, prices are quoted in euros ex works plus packaging, statutory VAT, insurance costs and, in the case of export deliveries, plus any customs duties, other public charges triggered by the delivery and the costs of using the transport routes (e.g. tolls).

(3) The granting of a cash discount requires an express agreement.

§ 11 Price changes

If, at the customer's request, we deliver later than four months after conclusion of the contract, we shall be entitled to increase the prices in the same proportion as the price index for producer prices of the Federal Statistical Office for industrial products has risen in the same period.

§ 12 Prepayment or provision of security in the event of recognizable payment difficulties

In the event of recognizable payment difficulties, such as those evidenced by late payment, we shall be entitled to make further deliveries to the contractual partner only against advance payment or provision of security.

§ 13 Delivery periods

(1) Delivery periods applicable to us require an express agreement.

(2) The time agreed with us for our performance shall only remain binding if the contractual partner has also previously complied with the time agreed with him for his obligations to cooperate, insofar as his obligations to cooperate are a prerequisite for the timely fulfillment of our performance obligation.

(3) If shipment has been agreed, our delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with transportation.

§ Section 14 Acceptance period for purchase on call and consignment stock transactions

If, in the case of a purchase on call, a deadline for the call is not specified, our goods must be called no later than six months after conclusion of the contract. The same applies to consignment stock goods, whereby the period begins with the storage.

§ 15 Partial deliveries

We are entitled to make partial deliveries if the partial delivery can be used by the customer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the customer does not incur any significant additional work or additional costs as a result.

§ 16 Reservation of self-supply

(1) If we have concluded a congruent hedging transaction in good time and our timely performance becomes impossible due to a failure to deliver on the part of our supplier for which we ourselves are not responsible, our obligation to perform shall lapse.

(2) In this case, we shall not be obliged to pay compensation. Any advance payments made for services not yet rendered shall be reimbursed by us without delay.

§ 17 Transfer of risk

The risk shall pass to the customer upon handover of our delivery item to the forwarding agent, carrier or other third party designated to carry out the shipment as soon as the loading process has been completed.

§ 18 Storage costs after transfer of risk

Storage costs after the transfer of risk shall be borne by the contractual partner.

§ 19 Obligations to inspect and give notice of defects

(1) The inspection and complaint obligations of § 377 HGB (German Commercial Code) also apply to entrepreneurs who are not merchants.

(2) The contractual partner must inspect the goods immediately. If a defect becomes apparent, the contractual partner must notify us of this immediately. If the contractual partner fails to notify us, the goods shall be deemed approved unless the defect was not recognizable.

(3) Notwithstanding § 377 HGB, the notice of defects must be made to us in text form, otherwise it shall be irrelevant. Also in deviation from § 377 HGB, the timeliness of the complaint shall depend on its receipt by us.

(4) Any information and recommendations provided by us shall in no way release you from the obligation to satisfy yourself of the suitability of our products for the respective intended use. In any case, the processor is obliged to know and comply with the relevant technical rules and regulations.

§ 20 Prohibition of offsetting

Offsetting with counterclaims against our claims is only permissible if these are undisputed, legally established or ready for decision at the time of the declaration of offsetting.

§ 21 Retention of title

(1) We reserve title to the goods until all claims arising from the current business relationship have been settled in full. This shall also apply in the event of the existence of a current account relationship. In this case, the reservation refers to the recognized balance.

(2) The customer is entitled to resell the goods in the ordinary course of business. However, he hereby assigns to us all claims in the amount of the invoice amount (including VAT) which accrue to him against third parties as a result of the resale. We hereby accept the assignment. After assignment, the entrepreneur shall be entitled to collect the claim for our account until revocation or suspension of his payments or until an application for the opening of insolvency proceedings has been filed.

(3) In the event of default of payment by the entrepreneur as well as in the event of suspension of payment and/or business and in cases where an application for the opening of insolvency proceedings has been filed, we may demand that the contractual partner discloses the claims assigned to us and their debtors and, for his part, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. The right on our part to disclose the assignment in such cases and to collect the claims ourselves shall remain unaffected. Claims which the entrepreneur has assigned to us in the above context may not be assigned to third parties. The same applies to pledges; transfers by way of security are not permitted.

(4) The contractual partner is obliged to inform us immediately of any access by third parties to our sole ownership or co-ownership, for example in the event of seizure. The same shall apply in the event of any damage to or destruction of the goods. The contractual partner must also notify us immediately of any change of ownership of the goods and any change of his place of business.

(5) If the contractual partner culpably breaches the above obligations in accordance with paragraph 4, we shall be entitled to demand the return of the goods; this shall also apply if we do not withdraw from the contract at the same time. If we take back the goods, this shall not constitute a withdrawal from the contract with respect to companies, unless we have expressly declared this. In the event of cessation of business or payment and - subject to the rights of an insolvency administrator - in insolvency proceedings, the above sentences 1 and 2 shall apply accordingly.

(6) After taking back the goods, we are authorized to utilize them. The realization proceeds shall be credited against the contractual partner's liability - less reasonable realization costs.

(7) We undertake to release the securities to which we are entitled at the request of the contractual partner to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10 %; we shall be responsible for selecting the securities to be released.

§ 22 Claims for defects and liability

(1) We shall be liable without limitation in accordance with the statutory provisions for damages resulting from injury to life, limb or health, in the event of the assumption of a guarantee for the quality of the work and in the event of damages under the Product Liability Act.

(2) We shall also be liable without limitation in accordance with the statutory provisions in all cases of intent and gross negligence and in the event of fraudulent concealment of a defect.

(3) If a case of paragraph 1 or 2 does not exist, our liability for the breach of essential contractual obligations and slight negligence shall be limited to the foreseeable damage typical for the contract. Essential contractual obligations are obligations whose breach would jeopardize the achievement of the purpose of the contract as well as obligations whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner may regularly rely.

(4) If a case of paragraph 1 or 2 does not exist, liability for slightly negligent breaches of duty is excluded in the event of a breach of insignificant contractual obligations.

(5) If a case of para. 1 or 2 does not exist and if goods delivered by us are not intended for a building and have caused its defectiveness, the limitation period for claims for material defects shall be one year.

§ Section 23 Industrial property rights

(1) Each contracting party shall inform the other contracting party immediately in text form if third-party property rights are asserted against it as a result of the performance of the contract.

(2) If we manufacture goods on the instructions of the contractual partner and if third-party property rights are therefore asserted against us, the contractual partner shall indemnify us against all resulting financial claims.

(3) The rights from any technical invention created in our company on the occasion of the execution of an order of the contractual partner shall always remain with us. This applies in particular to the right to apply for a patent.

§ 24 Contract language

(1) The contractual language is German.

(2) This also applies if communication has taken place in another language.

§ 25 Place of jurisdiction and place of performance

If the customer is a merchant, the place of jurisdiction for all disputes arising from contracts concluded with us shall be the registered office of our company.

© BWL Attorneys at Law, Hagen, April 2020