Terms and Conditions
(Last updated: April 2003)
The following terms and conditions apply exclusively to all contracts, including future contracts, with our contracting partners as part of trade in goods and services. The contracting partner’s terms and conditions will not be recognised, even if no objection has been made to their inclusion in individual cases.
The invalidity of individual conditions does not affect the validity of the remaining conditions. The same applies if individual conditions do not become part of the contract.
2. Entering into the contract
Our offers are without obligation. Orders become legally binding as soon as we confirm them in writing or execute them immediately after receipt of the order or on schedule. If contracts are entered into subject to written or telex confirmation, the content of our letter of confirmation is authoritative.
Our samples and specimens serve as product descriptions and do not represent any warranty of properties. We only warrant properties in writing.
Unless otherwise agreed, payment for our deliveries and services must be made without any deduction immediately upon receipt of the invoice. In the case of deliveries or services on credit, the term of payment is calculated according to the invoice date. Complaints concerning our invoices must be raised immediately. We shall charge interest of 8% above the base interest rate on claims due or deferred. The contracting partner’s cheques shall be deemed to have been received in accordance with the wording of the bank credit memo. Our employees can only accept payments against authority to collect.
Our contracting partner may only offset counterclaims that are not disputed by us or have been legally established. Our contracting partner may not exercise a right of retention which is not based on the same legal relationship.
Claims for damages by the contracting partner, irrespective of the legal basis, even due to breaches of duty by our representatives or vicarious agents, are excluded. This does not apply if liability is mandatory by law. The above provisions do not change the burden of proof to the detriment of the contracting partner..
5. Claims regarding defects
We are liable for defect claims for 1 year. We shall only be liable for public statements, in particular advertising, which we have used for our own purposes or expressly included in the contract.
6. Place of performance / jurisdiction
Place of performance and jurisdiction for merchants is Kempten. The law applicable at the place of performance shall apply, even if the litigation is conducted abroad.
For our deliveries, the provisions of Clauses 7-10 shall apply additionally:
We are also entitled to make partial deliveries. If delivery on call has been agreed, the contracting partner shall order within a reasonable period of time.
If delivery is rendered impossible or excessively difficult by force majeure, epidemics, official measures, plant shutdowns, strikes, extreme weather conditions or similar circumstances, including those affecting our suppliers, we shall be released from our obligation to deliver for the duration of the hindrance and its after-effect. We choose the type of dispatch. Shipping risk and loss of weight during transport, even if we carry out the transport, shall be borne by the contracting partner.
8. Notices of defects
The contracting partner must inspect the goods immediately upon receipt for material defects, e.g. quantity, quality, condition and is required to note obvious defects on the receipt. For cold storage goods, notifications of defects must be made within 72 hours, for all other goods without delay, but for recognisable defects, no later than within 3 days of receipt of the goods and before processing or passing on to third parties. Defects which cannot be detected within this period even after careful inspection must be reported to us immediately after detection. Goods subject to complaints must be stored and handled properly. They can only be returned in agreement with us. Apart from that, Section 377 German Commercial Code (HGB) applies. Proper and justified notices of defects entitle us to make a replacement delivery. If such a delivery is not possible within a reasonable period of time or if we forgo this, the contracting partner may demand a reduction or withdraw from the contract.
Section 478 German Civil Code (BGB) remains unaffected.
9. Performance disruptions
The purchase price becomes due immediately if the contracting partner definitively refuses payment of the purchase price. In the event of a definitive refusal to pay the purchase price, we may refuse performance of the purchase contract even without setting a grace period and demand reimbursement of all costs and expenses incurred and compensation for depreciation. The contracting partner shall be in default of payment in accordance with the legal requirements.
In the event of default in acceptance by the contracting partner, we may store the goods at our premises or at the premises of a third party at the expense and risk of the contracting partner or exploit them in a suitable manner for the account of the contracting partner, without this requiring any notification.
In the case of delivery on call, we shall only be bound to the agreed purchase price for the agreed delivery period in the event of default in acceptance by the contracting partner. If the current price is higher in the case of delayed call-off, this shall be used as the basis. We may demand immediate payment of all claims, make deliveries dependent on advance payment or the provision of security or withdraw from the contract if there is a significant deterioration in the financial circumstances of the contracting partner or if there is a significant threat to its assets.
10. Retention of title
The delivered goods shall remain our property until full payment of the purchase price and all claims which we have against the contracting partner from the business relationship with the latter or will acquire in the future. We are entitled to withdraw from the contract if the buyer is in default with payment.
If the reserved goods are inseparably mixed, blended or combined with other goods, we shall acquire co-ownership of the whole of the combined product in proportion to the value of our reserved goods in relation to the value of the goods mixed with them at the time of mixing, blending or combining.
By treating or processing the reserved goods, we shall acquire ownership of the new item; the contracting partner shall keep it in safe custody for us. The contracting partner is required to insure the reserved goods against loss and damage; it must prove this upon request.
The contracting partner is only entitled to resell the goods, including the goods produced by mixing, blending, combining, processing or treating, as part of its normal business operations. It is not authorised to dispose of these goods in any other way, in particular to pledge them or assign them as security.
The contracting partner hereby assigns to us all claims arising from the resale of the reserved goods or the goods manufactured from such goods by treatment or processing. Of the claims arising from the sale of goods in which we have acquired co-ownership by mixing, blending or combining, the contracting partner hereby assigns to us a first-priority partial amount corresponding to our co-ownership share of the goods sold. If the contracting partner sells goods owned or co-owned by us together with other goods not belonging to us at a total price, the contracting partner hereby assigns to us a first-ranking partial amount of this total claim corresponding to the proportion of the reserved goods.
Subject to revocation at any time, the contracting partner is authorised to collect the assigned claims from the resale. Upon request, it shall name to us the debtors of the assigned claims, notify them of the assignment or hand over the notifications of assignment to us. As long as the contracting partner meets its payment obligations, we will not disclose the assignment. If the realisable value of the securities existing for us exceeds the secured claims by more than 10% in total, we are obliged to release securities of our choice in that scope at the request of the contracting partner.
Albert Herz GmbH