General Terms of Sale and Delivery (GTSD) of company Herz
for business dealings with companies
I. Scope of validity
(1) All offers, deliveries and services of HERZ are effected exclusively based on these General Terms of Sale and Delivery (GTSD) in their respective valid version – without prejudice to deviating written agreements in the individual case. The GTSD also apply to all future offers, deliveries and services of HERZ.
(2) Any General Terms and Conditions of the Principal (hereinafter PR) contrary to the GTSD are herewith expressly excluded.
(3) Deviations from the GTSD require the express written consent of HERZ in each individual case in order to be legally effective.
II. Contractual bases / offers
(1) Basis for the services and/or deliveries to be performed by HERZ is the order placed by PR as well as the written documents and information provided by PR. HERZ has no obligation to examine the documents and information submitted by PR for ambiguities, incompleteness or whether they are suitable for the intended contractual purpose.
(2) Offers of HERZ are subject to change. Details and statements regarding product features of whatever kind in price lists, brochures, booklets and other printed matters or public announcements only express an approximate description and constitute non-binding statements regarding average values in any case.
(3) An order becomes binding for HERZ only upon the written order confirmation by HERZ or upon delivery. Silence on part of HERZ shall not be deemed as acceptance of an order. PR is obliged to examine the order confirmation immediately. If the order confirmation deviates from the order, the order confirmation shall be deemed as approved by PR if PR notifies nothing to the contrary within a period of 3 calendar days in writing.
(4) Cost estimates prepared by HERZ are subject to charge and non-binding.
(5) The employees, sales representatives and commercial agents of HERZ are not entitled to make commitments of whatever kind.
(1) The prices apply ex registered office HERZ or ex supplying plant and do not include packaging, shipment, freight, postage and insurance costs.
(2) The prices stated by HERZ are subject to change. Even after order confirmation, HERZ is entitled to charge price increases to PR in case of increase of significant material or raw material prices, of personnel costs due to mandatory legal provisions or provisions under collective bargaining agreements, of changes of foreign exchange rates and provisions, of the increase of duties, factory or delivery prices or the transport or supplier costs. Costs which are attributable to a subsequent change and/or adjustment of the order will be borne by PR.
(3) Besides the recipient of the goods, the orderer is at all times liable for the payment, even if the invoice is only addressed to the recipient of the goods.
IV. Terms of payment
(1) Invoices of HERZ become due for payment within 30 days after invoice date without deduction. Bills of exchange and cheques are only accepted due to express agreement and only on account of payment. The acceptance is effected under the value date of the date when HERZ can dispose of the equivalent. Account expenses and all costs in connection with the encashment of the bill of exchange or the cheque are borne by PR.
(2) Payments with debt-discharging effect can be effected only to the account of HERZ stated or to a representative of HERZ accounted for with original power for collection signed on behalf of the company.
(3) In case of default in payment, PR has to pay default interests to the legal amount. Rebates, discounts or other benefits are deemed as not granted in case of default in payment or in case of the opening of insolvency proceedings regarding the assets of PR. In case of default, PR undertakes to pay the required dunning and collection costs (e.g. legal fees, costs for debt collection agency, etc.). Incoming payments are at first credited against costs, then against interests and at last against the main claim.
(4) If insolvency proceedings are opened against PR or if the opening is rejected due to lack of assets, if the compulsory execution has been initiated, if a deterioration of the assets situation of PR occurs, if HERZ does not receive completely unobjectionable credit information or if PR is in default in payment towards HERZ, HERZ shall be entitled to claim the immediate payment of all amounts, even of those amounts not yet due for payment. Furthermore, HERZ shall be entitled in any of those cases to make dependent further deliveries - also deliveries which have already been fixed by agreement – on cash in advance or provision of a security. This also applies where cash in advance or provision of a security has not yet been expressly agreed.
V. Delivery, delivery period
(1) Delivery periods and dates are always to be understood as approximate information even if this is not expressly mentioned. However, HERZ will undertake efforts to comply with delivery dates. The compliance with delivery periods and dates requires the fulfilment of all contractual duties of PR from the current business relationship. Delayed submission by PR of data, information and documents required for the execution of the order leads to a corresponding extension of the delivery periods and dates.
(2) Impairments of production and delivery not at HERZ’s fault, such as force majeure, strike, business or delivery disruptions, supply difficulties, reduction and stoppage of working time, transport difficulties as well as authority interventions will effect an appropriate extension of delivery periods and dates.
(3) In case of a default in delivery which HERZ is culpably responsible for, PR may either request performance or declare the withdrawal from the agreement after expiry without result of a set reasonable period of grace of at least 6 weeks exclusively in consideration of the goods affected by that delay excluding further claims. The withdrawal only shall be effective if HERZ culpably fails to adhere to the period of grace expressly set. In case of successive delivery agreements, the right to withdraw only exists in consideration of each individual delivery. In case of custom-made products, the period of grace is to be determined corresponding to the character of the custom-made product in any case.
(4) HERZ is entitled also to effect partial deliveries.
(5) The determination of the mode of transportation remains reserved to HERZ and is effected in any case not unloaded. Each delivery is effected “EXW” (pursuant to Incoterms 2000) ex respective works of HERZ and at all times at costs and risk of PR. Upon shipment ex works HERZ, also the risk passes to PR if delivery “franco domicile” or “franco” was agreed. Even without express order of PR, HERZ is entitled but not obliged to conclude, at PR’s costs, an insurance against transport damage of whatever kind. Even in case of return shipment of the goods to HERZ, – for whatever reason – this return shipment is effected always at costs and risk of PR.
(6) Goods which are ordered on call or for collection or the like are stored at HERZ’s premises or, at HERZ’s choice, at the premises of a third party, as of the time of the agreed time of call or collection at costs and risk of PR. In case of default in acceptance, HERZ is entitled after previous notification to utilise the goods at its own discretion, especially to sell them to third parties.
VI. Rights and reservation of ownership
(1) All rights in documents such as drawings, plans and samples remain reserved. Without consent of HERZ, these documents may neither be worked on nor copied nor made accessible to third parties or be forwarded to them, respectively, and they are to be returned upon request.
(2) The delivered goods remain property of HERZ until the complete payment. HERZ is entitled to request return of the reserved goods in case of default in payment. PR is obliged to return the reserved goods immediately upon request. An attachment of the reserved goods effected at HERZ’s instigation shall not be deemed as waiver of the ownership. Taking back the reserved goods does not constitute a withdrawal from the agreement. HERZ will sale the reserved goods otherwise at its discretion and credit the received revenue to PR minus the expenses connected with taking back and the otherwise sale of the goods.
(3) If PR disposes of the reserved goods, all claims of PR towards third parties resulting from the sale or other disposal of the reserved goods shall be deemed as assigned to HERZ on account of payment.
(4) In case of accesses to the reserved goods by third parties including seizure, attachment and the like, PR will point to the ownership of HERZ and notify HERZ thereof immediately in writing. PR will indemnify HERZ for all expenses in connection with the defence of accesses to the reserved goods and in excess thereof take at own costs all required legal and judicial measures in coordination with HERZ for securing the rights of HERZ.
(5) After previous notification, HERZ shall be entitled to withdraw from the agreement and to collect the reserved goods if PR is in default with fulfilling its obligations or if circumstances occur which endanger the claim of HERZ.
VII. Obligations to examine and co-operate
(1) PR is obliged to examine the (partial) service and/or (partial) deliveries of HERZ immediately after receipt with PR and to notify possibly existing defects immediately in writing describing the defects exactly. Other defects are to be notified to HERZ immediately upon being discovered in writing.
(2) PR is obliged to support HERZ in determination and removal of defects and to enable all required measures (such as access, inspection of documents, etc.).
(3) If PR does not meet its obligations to examine and/or co-operate, the assertion of warranty claims shall be excluded.
VIII. Warranty Herz accepts the warranty for goods and services to the following extent:
(1) The warranty period amounts to 12 months after delivery. It is not extended by a notification of defects, negotiations about the presence of a defect or negotiations about warranty rights or by supplementary performance.
(2) In case of justified notification of defects, the defects will be removed in a reasonable period of at least 8 weeks by supplementary performance. The supplementary performance is effected at choice of HERZ by means of repair or substitute delivery. The burden of proof for the presence of a defect upon hand-over is upon PR. If the supplementary performance fails, HERZ shall take back the goods and refund the purchasing price. Further warranty rights are excluded. Return shipments of >goods to HERZ have to be made free of freight, expenses and insurance costs.
(3) Prerequisite for all warranty claims is the timely notification of defects and the proper treatment, care and conventional use of the supplied goods. Any warranty shall be excluded if the parts affected by the defect have been changed, installed or repaired. In case of improper use, intervention in the appliance and in case of normal wear and tear, no substitution shall be made; heating elements are also not subject to warranty.
(4) The guarantee given by a third party only commits the guarantor. An obligation of HERZ is excluded. The description of offered and/or delivered HERZ goods and services in own or third-party brochures, catalogues, homepages and the like does not constitute a guarantee.
(1) With exception of bodily harm, HERZ only is liable in case of slight negligence if HERZ violated cardinal duties. In this respect, the liability is limited in terms of amount to the order value of the supplied goods. In case of slight negligence, the liability is limited to the foreseeable damage typical for the agreement. The liability for indirect damage, lost profit and financial loss is excluded in any case. PR indemnifies HERZ against all claims of third parties which may arise due to the fact that HERZ carries out manufactures based on drawings, plans or other information of the principal and in doing so interferes with rights of third parties, especially industrial property rights, in this respect.
(1) HERZ delivers exclusively professional appliances for the commercial use.
(2) After termination of the use, the customer will dispose of the delivered goods at own costs complying with the legal provisions, especially the ElektroG [German Electrical and Electronic Equipment Act]. The customer releases HERZ from the obligation to take back pursuant to EU directive 2002/96/EC and/or § 10 paragraph 2 ElektroG and indemnifies HERZ against all claims of third parties connected with it. The claim for indemnification of HERZ shall not be statute-barred before the expiry of 2 years after final termination of the use. The statute of limitations shall be suspended until the notification of the customer to HERZ that the use of the appliance has been finally discontinued. The customer will inform HERZ about the termination of using the appliance.
(3) If the customer supplies further to third parties, it has to transfer the duties arising under clause X.2. to its buyer. If the customer fails to do so, it shall be obliged to take back the goods after termination of use at its costs and to dispose of them properly observing the statutory provisions. The other regulations of clause x.2. apply correspondingly.
XI. Other provisions
(1) The set-off with counterclaims or the assertion of a right of retention by PR is only admissible if the claims of PR, on which set-off or the right of retention is based, are uncontested or have been ascertained legally bindingly.
(2) The registered office of HERZ is agreed as place of performance for all obligations under the contractual relationship.
(3) The court which has jurisdiction as regards the subject matter and local jurisdiction over the registered office of HERZ is agreed as exclusive place of jurisdiction for all disputes under this business relationship. However, HERZ remains entitled to sue PR at the court which has jurisdiction over PR’s registered office. The national law of the country where the registered office of HERZ is located applies. The applicability of the United Nations Convention on the International Sale of Goods (CISG) is excluded. The contractual language is German.
(4) Oral declarations of HERZ or changes of the agreement require the written confirmation of HERZ in each individual case. Also this clause can only be changed in writing.
(5) To the extent that the written form is stipulated as requirement for validity, the submission via fax shall also satisfy this requirement. The silence on part of HERZ regarding declarations of PR constitutes no consent.
(6) A possible invalidity of individual provisions of the GTSD shall not affect the legal effectiveness of the remaining provisions; insofar, such provisions shall be deemed as agreed which are legally effective and are as close as possible to the original objective of HERZ.
(7) Return of goods can only be made with our consent. In case of return shipment free of carriage, the invoice value of the goods minus 15% blanket costs for taking back the goods is credited. Articles originating from a made-to-order production will not be taken back.
(8) With an order value of less than EUR 75.-, a surcharge of EUR 6.- is added as handling fee (We reserve the right to make changes at any time). Electric appliances may not be exported without approval