A MEMBER OF HEROSE GMBH

Terms & Conditions

General Terms and Conditions for all Product Sales of HEROSE Limited

All sales contracts, contracts for work and materials and our offers are subject to the following provisions. Deviations from these terms and conditions are only binding for us if confirmed by us in writing. General conditions of purchase of the purchaser shall not apply.

1. Offer and Conclusion of Contracts
Our offers are not binding with regard to price, quantity, delivery date and possibility to deliver up to the receipt of our written order confirmation. Ancillary agreements are only valid if confirmed by us in writing.

3. Delivery and Delivery time
The delivery time starts when all details of the order are clarified but not earlier than the purchaser has fulfilled all its contractual obligations to be performed up to then. The delivery time has been met if the delivery item has been dispatched by expiration thereof or, if delivery should be delayed for reasons for which we are not responsible, upon notification of readiness for dispatch within the agreed delivery term.
The right to obtain the goods duly and promptly shall be reserved.
Timely installment deliveries of the agreed quantities shall be permissible and may be invoiced separately.
If discharge of the obligation to deliver is prevented by force majeure, strike or lock-out or the consequences thereof or any other events beyond our control ‑ irrespective of, whether occurred at us or at our sub suppliers ‑ the delivery terms shall be extended for the duration of the obstruction.
If we or the purchaser cannot reasonably be expected to honor the contract due to the delay in delivery, both parties shall be entitled to withdraw therefrom. In the event of delay or impossibility for which we are responsible, the purchaser shall be entitled to cancel the contract subject to the relevant legal provisions. Proven damage due to culpable delay in delivery will be compensated by 0.5 % for each complete week of delay, with the start day being one week after the confirmed delivery date, but to an absolute maximum of 5 % of the value of that part of the whole delivery which cannot be used or taken into operation in time or according to the contract due to the delay.
If the purchaser wishes to delay the dispatch we are entitled to impose to him the costs for the storing of the goods but to a value of at least 1 % of the invoice amount for each month, beginning with the month after the receipt of the notification of the readiness for dispatch.

3. Prices
Our prices are to be understood as being ex-warehouse, with place confirmed, excluding value added tax as appropriate. The prices at the day of delivery shall apply. Packing, loading charges, customs, duty, etc., are for the purchaser’s account.

4. Passing of risk
The risk shall pass to the purchaser when the goods leave our warehouse. If the delivery time has been overrun, caused by the purchaser then the risk passes to the purchaser when it is notified that the goods are ready for dispatch.

5. Terms of payment
Unless agreed otherwise, payment is net monthly. For times of delay in payment or for times of respite of due claims, the legal interest rate has to be paid, irrespective of the compensation of possible further damages. If it should transpire after the conclusion of the contract that our claims are endangered because of lack in the financial ability of the purchaser all its debts shall fall due immediately. We shall then be entitled to effect outstanding deliveries only against the provision of security or cash in advance. Claims for any further default damages shall not be affected hereby.
Only counterclaims recognized by us or by non-appeal able unappealable declaratory judgment may be set off. The same applies to the right of retention for counter claims.

6. Reservation of title
Goods delivered shall remain our property until all claims and debts arising from the business relationship including interests and ancillary costs have been settled and any cheques and bills of exchange have been cashed. Under current account, the reserved property shall be deemed security for our balance claim.
If our goods are compounded or confused with all goods that do not belong to us, we shall be entitled to ownership of the new property or confused stock in the proportion of the invoiced value of the reserved goods to the value of the other compounded or confused goods. If the purchaser acquires sole ownership of the new property, he herewith undertakes to transfer to us co-ownership of the new property in the proportion of our invoiced value of our reserved goods to the value of the other compounded or confused items at the time of compounding or confusion and shall hold the same in safe custody for us according to the principles of sound stewardship.
Resale of goods supplied, regardless of whether compounded of confused, shall be permitted only to retailers in the ordinary course of business and only if the account receivable from resale passes to us before we are paid for the goods concerned. The purchaser shall be forbidden to pledge or mortgage the reserved goods or agree to any prohibition of assignment. If the purchaser intends to assign accounts receivable from resale by way of factoring, he must notify us in advance. Assignment by way of factoring shall be permitted only with our express consent in writing. If third parties seize goods being subject to this reservation of title the purchaser shall be obliged to inform us immediately.
The purchaser herewith assigns to us in advance and with all accessory rights all his present and future accounts receivable from resale, or claims founded on any other legal basis, in respect of the goods supplied by us. In the event of resale of our goods after compounding or confusion, or resale of the new property created by confusion, the account receivable from the purchaser’s customer shall be assigned to us in the amount of the value of the reserved goods. The value of the reserved goods shall be our amount invoiced plus a 10 % safeguarding fee, which, however, shall not be charged if in conflict with third-party rights. If we are joint owners of the goods sold, the assignment of accounts receivable shall only cover the amount corresponding to our share of co-ownership.
Should the value of the securities given to us exceed our claims by more then 10 %, we undertake, at the request of the purchaser, to relinquish securities of our choice. Upon settlement of all our outstanding debts and claims arising from the business relationship, ownership of the retained goods as well as title to the assigned claims shall passed to the purchaser.
The purchaser shall be entitled to collect the accounts receivable. The right to resale, process the goods and to collect payment shall cease upon our withdrawal of this right, above all in the event the purchaser does not orderly fulfill its payment commitments to us.

7. Guarantee
The purchaser must inspect the goods immediately upon receipt and notify in writing any patent or apparent defects or wrong shipments without undue delay, but within 10 days after receipt at the latest.  Additional or minor weights of the goods ‑ under production conditions inevitable ‑ do not entitle the purchaser to objections.
If defects become apparent later which were not recognizable upon the first check then they are to be notified in writing without undue delay. In case defects proven by it, the purchaser has the following rights: All products suffering from defects at the time of delivery shall be remedied by us or replaced at our choice without charge. Replaced parts become our property. The purchaser has to grant us reasonable time and opportunity to remedy or to replace defective goods. If through our fault we fail to meet a reasonable extended deadline set for replacement or rework, if we finally refuse replacement or rework, if replacement or rework should prove finally abortive or if replacement or rework is impossible or unacceptable for the purchaser, the purchaser shall be entitled to rescind the contract or reduce the purchase price. If we replace a defective product or if the purchaser rescinds the contract it has to pay a compensation for the use of the product. This compensation is based on the real time of use in comparison to the normal complete time of use.
Section 1 below applies for the liability to compensate damages out of guarantee.
The limitation period for claims out of guarantee is 12 months after delivery.

8. Return of goods
The return of goods is only permitted upon our prior express consent unless we are obliged by law to accept the return. The goods have to be returned freight paid. We reserve the right to invoice 20 % of the net price of the goods returned for compensation of the costs caused by the return of the goods.

9. Catalogue
All drawings in our catalogues and prospectus are not binding for the performance of the order. We reserve the right to amend the construction of the goods as far as this is opportune under technical points of view and as far as it does not reduce the suitability of the product. Deviations from given measurements and weights are permitted if the contract purpose and the quality are not endangered.

10. Copyright
All catalogues, drawings, samples and other documents remain our property and are under our copyright. Those items shall not be disclosed to third parties and shall immediately be returned at our request. If drawings or samples sent to us for the performance of the order violate patent rights or other industrial property rights of third parties the purchaser is responsible and liable for all damages including loss of profit occurring thereof and shall keep us harmless from against all claims of third parties.

11. General liability
Not-withstanding the provisions under section 2. second last paragraph above, any claims for damage and loss against us, particularly for damages not inflicted on the delivery item itself, e.g. due to non performance because of default or impossibility or other breach of contractual obligations, miscounsolling, culpa en contrahendo, tort, or for other reasons whatsoever, including loss of profit or a halting of the production shall be excluded. The liability only applies in case of gross negligence of our general management or our vicarious agents were such agents are managerial staff, in case of willful misconduct, by violation of health or other personal injury, in case of defects which we have maliciously concealed, or in case of defects of the goods, as far as the product liability law for damage to property privately used and for personal injury applies, or in case of warranted quality.
In case of culpable violation of material contractual obligations, we are liable also for gross negligence with regard to vicarious agents who are not managerial staff and in case of normal negligence of our general management and our vicarious agents were such agents are managerial staff; in the latter case the liability shall be limited to compensation for the typical speculative damage.