(1) All deliveries shall be made, services rendered and quotations submitted exclusively on the basis of these Terms and Conditions of Sale and Payment. They shall be deemed to have been acknowledged by virtue of the award of a contract or acceptance of a service/delivery. Any contrary or deviating conditions by the contractual partner that have not been expressly acknowledged by us in text form shall not be binding on us even if we do not expressly contradict said terms and conditions. Our terms and conditions of business shall also apply in the event that we unconditionally supply goods to the buyer in the knowledge that the terms and conditions of the buyer are contrary to or deviate from our terms and conditions of business.
(2) Any and all of the agreements entered into between us and the buyer for the purpose of executing this agreement are recorded in text form in this agreement.
(1) Our offers are non-binding unless they are subject to a stipulated expiry date or in the absence of any provision to the contrary in the order confirmation.
(2) We retain the rights of ownership and copyright over any diagrams, calculations and other documentation. This also applies to any documents in text form identified as "confidential". The buyer is not to pass them on to third parties without our express written consent.
(1) Orders, agreements, assurances etc. on the part of our staff shall only be legally valid if confirmed in text form by us or if an invoice is issued. We always confirm special orders.
(2) Please refer to the respective price lists for minimum order quantities.
(3) Call orders will be processed within the agreed period. Upon expiry of the deadline, the right of the claimant to be supplied shall expire automatically, and we shall be free to dispose of the goods by other means. In the event of call orders being extended, we shall be entitled to charge for storage and maintenance costs of up to 1.5% of the value of the goods per month.
4. Electronic transactions
(1) If the customer orders goods electronically, we shall be exempt from the statutory requirements of Section 312 e, II, sentence 2 of the BGB [German Civil Code]. We shall store the details required for processing the order; they will not be passed on to any third parties. Upon request, these details and these General Terms and Conditions shall be sent to the customer by email.
(2) The current version of our General Terms and Conditions of Business is available for reference by our customers on our website www.herres-sekt.com, where it can be called up and printed.
5. Price/Payment conditions
(1) We calculate our prices in accordance with the price lists that are valid at the time of conclusion of the agreement. Our prices do not include the legal rate of VAT, which is given separately on the invoice at the statutory rate valid on the day the invoice is issued.
(2) Our invoices are payable immediately, net, without deductions. The statutory provisions apply with regard to late payment.
(3) In the event that our terms of payment are not observed and the buyer defaults on a payment in full or in part, or in the event that we become aware of circumstances that, based on our best commercial judgement, serve to reduce our customer’s creditworthiness, all payments owed by that buyer shall fall due with immediate effect. We may also, further statutory rights notwithstanding, only make outstanding deliveries subject to advance payment and demand the provision of security, or withdraw from the agreement having set an appropriate period of grace or demand compensation for damages due to non-performance.
(4) If, when making a payment, the debtor does not stipulate the purpose of that payment, the seller may use the payment in the first instance to settle the debtor’s oldest liability. In the event that the debtor owes interest and costs in addition to the original debt, any payment made that is not sufficient to cover the entire debt shall be offset in the first instance against the costs due before being offset against any outstanding interest and, finally, against the original amount owed. Should the debtor stipulate how the payment is to be used, the seller may refuse to accept the payment.
(5) The buyer shall only enjoy rights of set-off to the extent that his counter-claims are non-appealable, undisputed or acknowledged by us. Additionally, the buyer shall be entitled to exercise a right of retention to the extent that its counter-claim relates to the same contractual relationship.
6. Delivery/Transfer of risk
(1) We deliver free of charge to the buyer’s address for quantities of 1-2 Euro pallets (original size according to price list). If the buyer orders a smaller amount or wishes a form of dispatch that is not the most favourable to us, any additional costs incurred as a result shall be borne by the buyer. Buyers who collect their own goods shall not receive payment to cover freight or carriage.
(2) In cases where delivery is made using Euro pallets with no exchange upon delivery, the pallets shall remain our property. The pallets must be returned to us immediately and no later than after two months on a carriage paid basis and in a usable condition. The buyer shall be responsible for paying us the costs incurred by us in relation to failure to return pallets or pallets that are returned in a damaged state (last valid purchase price for the pallets).
(3) Any delivery dates or periods that are not expressly agreed as binding in nature shall serve merely as non-binding information.
(4) Adherence to our delivery obligation is dependent on timely and due fulfilment of its obligations by the party placing the order/buyer. We reserve the right to claim non-performance.
(5) Should the buyer default in taking delivery or fail to adhere to other duties to cooperate due to negligence, we shall be entitled to demand compensation for any damages incurred as a result including any additional expenses. We reserve the right to make further claims.
(6) Insofar as the requirements of paragraph (5) apply, the risk of the incidental loss of or deterioration in the goods is transferred to the buyer at the time at which the buyer defaults on acceptance or payment.
(7) We shall be liable in accordance with the statutory provisions provided that the underlying purchase agreement represents a fixed-date transaction as defined in Section 286 (II)(4) BGB [German Civil Code] or Section 376 of the HGB [Commercial Code]. We shall also be liable in accordance with the statutory provisions if, as a result of delayed delivery caused by us, the buyer is entitled to assert that his interests are no longer served by further performance of the agreement.
(8) We shall also be liable in accordance with the statutory provisions if the delay in delivery is attributable to a wilful breach of contract or breach caused by gross negligence on our part. Any fault on the part of our representatives or agents shall be deemed as fault on our part. If the delay in delivery is not attributable to a wilful breach of contract on our part, our liability to pay damages shall be limited to the foreseeable level of damages typically incurred.
(9) We shall also be liable in accordance with the statutory provisions to the extent that delayed delivery for which we are responsible is the result of a negligent breach of an essential contractual obligation; in such cases, however, liability to pay damages shall be limited to the foreseeable level of damages typically incurred.
(10) In addition, in the event of delayed delivery, we shall be liable to pay a flat rate of compensation of 0.5% of the purchase price up to a maximum of 5% for each full week of the delay.
(11) The seller shall be entitled to make partial deliveries or render a partial service at any time to the extent that the buyer can be reasonably expected to accept such deliveries or services.
(12) Insurance of the goods shall only be arranged upon instruction from the buyer in text form.
(1) It is the responsibility of the buyer to check the goods immediately on receipt to ensure that they are complete, have not been damaged during transportation, do not contain any obvious faults and are compliant with the specified properties. If the purchase represents a commercial transaction for both parties, the buyer must notify the seller of any obvious faults immediately in text form and no later than 4 weeks after delivery. Notification of concealed faults in the event of a mutual commercial transaction shall be deemed to have been provided in good time if provided immediately following detection of the faults. Otherwise, the fault shall be deemed to have been notified in good time if the seller is notified within four weeks of the fault being discovered.
(2) In the event that the goods are faulty, we may choose to remedy the situation by repairing the fault or to supply a replacement. If we take action to remedy the fault, we shall be obliged to bear all expenses associated with this process, particularly transport, labour and material costs, unless such are increased by the fact that the goods were moved to a location other than the place of performance.
(3) If the action taken to remedy the fault proves unsuccessful, the buyer may choose to withdraw from the agreement or demand a reduction in price. The above rights are however excluded whilst action is being taken to remedy the fault. Action to remedy the fault shall be deemed to have failed if it remains unsuccessful on the second attempt.
(4) We shall be liable in accordance with the statutory provisions to the extent that the buyer asserts claims for damages that are based on wilful intent or gross negligence, including wilful intent or gross negligence on the part of our representatives or agents. Unless we are accused of wilful breach of contract, liability for damages shall be limited to the foreseeable damages typically incurred.
(5) We shall be liable in accordance with the statutory provisions to the extent that we negligently breach an essential contractual obligation; in such cases, however, liability to pay damages shall be limited to the foreseeable level of associated damages typically incurred.
(6) If the buyer is entitled to compensation for damages in place of the service, our liability shall also be limited to compensation for the foreseeable amount of damages typically incurred.
(7) Liability for negligent loss of life, human injury or damage to human health shall remain unaffected. This shall similarly apply to obligatory liability in accordance with the German Product Liability Act. If we are liable for consequential damage in a product liability case, the extent of our liability shall be limited to the amount of foreseeable damage and to the sum assured under the product liability insurance policy of Peter Herres GmbH. This shall not apply in the case of damaged caused intentionally.
(8) In the absence of any agreement to the contrary above, liability is excluded.
(9) Warranty claims shall become statute-barred after one year, calculated from the date of delivery of the goods.
8. Retention of title
(1) We shall retain ownership of the goods being sold until such time as all of our claims arising during the conclusion of this agreement, including all claims arising from related contracts and follow-up orders have been settled.
(2) In the event of levies of execution or other intervention by third parties, the buyer shall inform us in text form immediately so that we can bring a legal action in accordance with Section 771 of the Code of Civil Procedure (ZPO). If the third party is not in position to pay us the judicial and extra judicial costs of a legal action in accordance with Section 771 of the ZPO, the buyer shall be liable for any shortfall incurred by us.
(3) The buyer may sell the purchased goods on in an ordinary commercial transaction, in which case it shall assign to us already at this stage all claims in the amount of the final invoice amount (including VAT) constituting our claim that result from the onward sale to the buyer’s purchaser or to a third party and irrespective of whether the goods are sold on after or without having been further processed. The buyer shall be entitled to collect this claim even after its assignment. This shall not affect our right to collect the claim ourselves. We undertake, however, to refrain from collecting the claim provided that the buyer meets his payment obligations from the proceeds received and does not default on payment and, in particular, provided that no application is made for bankruptcy, composition or insolvency proceedings and provided that there is no cessation of payments. Should this be the case, however, we shall be entitled to demand that the buyer provide us with details of the assigned claims and debtors and with all the information required to collect the outstanding amounts, submit to us all the related documentation and inform the debtors (third parties) of the assignment.
(4) Any processing or transformation of the goods by the buyer shall always be done on our behalf. If the goods are processed alongside other items that do not belong to us, we shall acquire joint ownership of the resulting product based on the value of the goods compared with the value at the time of processing of the other processed items. The product created from the processing stage shall be subject to the same conditions that apply in respect of the goods supplied subject to retention of title.
(5) If the goods are mixed with other items that do not belong to us and cannot be separated again, we shall acquire joint ownership of the resulting product based on the value of the goods compared with the value at the time of mixing of the other items used in the mixing process. If the mixing takes place in such a way that that the item belonging to the buyer can be viewed as the main component, it is agreed that the party placing the order shall transfer joint ownership to us on a pro rata basis. The buyer shall store the property of which he has sole or shared ownership on our behalf.
(6) We undertake to release the security made available to us upon the buyer’s request to the extent that the realisable value of the security exceeds the value of the claims being secured by more than 10%. We shall decide which components of the security provided are to be released.
9. Place of jurisdiction/Place of performance
(1) If the buyer is a commercial entity, the place of jurisdiction shall be the place in which our registered offices are located. We may however take legal action against the buyer at the court with jurisdiction over the buyer’s place of residence.
(2) The law of the Federal Republic of Germany shall apply. Application of UN law on the sale of goods is excluded.
(3) In the absence of any provision to the contrary in our order confirmation, the location of our registered offices shall be the place of performance.
10. Invalidity of individual provisions
Should one or several of the provisions of our Terms and Conditions of Business be or become invalid, this shall not affect the effectiveness of the remaining provisions.