1. General / Scope
(a) All legal transactions with the customers of Herweck AG, in particular contracts for deliveries, come into being exclusively on the basis of the following Terms & Conditions, provided that such transactions are carried out for a natural or legal person or a legal partnership exercising their commercial or independent professional activities. On acceptance of the delivery or service, the customer accepts the validity of these Terms & Conditions for all future transactions.
(b) The customer’s contradictory conditions or conditions that deviate from these are rejected by Herweck AG, unless Herweck AG has expressly agreed to them in writing. The Terms & Conditions of Herweck AG also apply in cases in which Herweck AG has confirmed the order in writing with reference to these Terms & Conditions while being aware of the customer’s contradictory or deviating conditions or has completed it without reservation by the customer.
2. Quotation / Conclusion of contract
(a) Unless otherwise agreed in writing, the quotations of Herweck AG are always non-binding and subject to change until conclusion of contract and are issued subject to a positive credit check. All reciprocal legal transactions come into being only on receipt of a written order confirmation from Herweck AG, at the latest on completion of delivery.
(b) Herweck AG reserves the right to correct printing errors and mistakes and minor deviations in quality and design, providing that this does not contravene a contractual obligation, and these shall not constitute defects. The customer is bound by the submitted order for four weeks.
3. Prices / Payment / Default
(a) Unless otherwise agreed in writing, prices are pure net prices in euros and are understood to be without costs for freight, transport, insurance, packing and the statutory charges, in particular legally applicable VAT. In the case of orders with a net total of less than EUR 100, a small order surcharge, currently EUR 8.00 plus statutory VAT, shall be charged. Unless otherwise agreed, the generally applicable list price of Herweck AG on the day of delivery applies.
(b) Invoices are issued on delivery, with cash on delivery to the customer, unless otherwise agreed in writing. In the case of delivery on open account, the entire invoice amount must be paid within the payment period specified on the invoices of Herweck AG. Cheques are only accepted on account of performance and bills of exchange are not accepted as payment. Discounts may only be claimed if they have been agreed by Herweck AG on the invoice. In any event, deduction of agreed discounts is permitted only on condition that the customer is not in default on other payments. Herweck AG may cancel payment deadlines granted to or agreed with the customer by Herweck AG at any time.
(c) Default on payment comes about when the claim becomes due, without the need for a reminder. In the event of default on payment, Herweck AG is entitled to demand default interest of 9% above the base interest rate. Herweck AG reserves the right to pursue claims for greater or further damages. In the event of default on payment, all claims of Herweck AG arising from the entire business relationship shall become due immediately.
(d) The goods are fundamentally supplied for sale in Germany. Any copyright fees included in prices shall not be refunded by Herweck AG in the event of export of the goods.
4. Offsetting / Retention
(a) Offsetting by the customer is permitted only against uncontested and legally established claims.
(b) The assertion of rights of lien by the buyer is excluded. The customer’s rights of retention are also excluded, unless they are based on the same legal relationship.
4. Delivery / Shipping
(a) Deliveries are made ex warehouse in St. Ingbert on the account and at the risk of the customer. Herweck AG is entitled to deliver from a different location at any time, e.g. directly from the manufacturer’s factory. The relevant conditions then apply accordingly. Part deliveries and part performance of services by Herweck AG are permitted.
(b) Unforeseen obstacles to performance, including those affecting upstream suppliers, are not the responsibility of Herweck AG and entitle Herweck AG to suspend its delivery obligations in whole or in part and to extend delivery deadlines appropriately. Herweck AG is only obliged to provide performance if it is supplied properly, and shall not accept any liability for the risk of procurement. This also applies in the event of default on delivery that has already occurred.
(c) Specified delivery deadlines are non-binding guides. Expressly agreed delivery dates are deemed to have been met on notification of readiness for shipping and on dispatch of the goods. Delivery dates apply exclusively on condition of proper and timely supply of Herweck AG and with the exclusion of liability of Herweck AG for minor negligence. In the event of an ongoing obstacle to performance of more than three months’ duration, the customer is entitled to withdraw from the part of the contract that has not been fulfilled, having set an appropriate notice period of at least 10 working days.
(d) If a specific form of shipping has not been agreed in writing, the choice of the shipping route and type shall be made by Herweck AG without liability for finding the cheapest freight charge. Unconditional acceptance of the shipment by the railway company, freight driver or warehouse keeper is deemed to be proof that the goods and transport packaging are in perfect condition and excludes any claims against Herweck AG for damage, unless evidence to the contrary is provided. Insurance is taken out only at the express written request of the customer, who shall meet the costs. If shipping or delivery is delayed by the customer, Herweck AG is entitled to demand storage payments of at least 1/2% of the net invoice amount for each month that commences, starting 30 days from notification of readiness for shipping, unless evidence is provided that the customer is not at fault. Similarly, Herweck AG has the right to demand a higher amount if there is evidence to support this.
(e) Herweck AG shall not accept the return of transport packaging that meets the requirements of the German Packaging Ordinance from its commercial customers, apart from pallets. The customer accepts that he shall ensure that the transport packaging will be disposed of properly and at his expense, and moreover that he shall meet in full the obligations pursuant to § 4 of the German Packaging Ordinance (version as of 1.4.2009). Accordingly, the customer shall either reuse the transport packaging or recycle it.
5. IMEI registration
On purchasing a mobile handset which will be consigned by the customer to an end customer in conjunction with a mobile telephone connection (contract activation or VVL; irrespective of network provider), the customer is obliged to register the IMEI number of the hardware promptly with Herweck AG or to record it in the system, as Herweck AG is legally obliged to forward this to the service provider (§ 111 para. 2 German Telecommunications Act). If there is any confusion about recording the IMEI in the system of the respective network provider, the customer shall request the information from Herweck AG.
If the customer does not notify Herweck AG of the IMEI promptly, the customer shall be entirely liable for any losses incurred by Herweck AG as a result and shall indemnify Herweck AG to this extent against any claims by third parties, in particular if Herweck AG is accused of an offence pursuant to § 149, para. 1, no. 30 of the German Telecommunications Act.
6. Reservation of title / Security
(a) Herweck AG shall reserve title to the delivered goods (reserved goods) until all claims against the customer arising from the business relationship are settled, including future claims and claims arising from contracts concluded simultaneously or subsequently. This also applies if individual claims or all claims of Herweck AG have been included on a running invoice and the balance has been drawn up and accepted.
(b) The customer is obliged to treat the reserved goods with due care and to insure them adequately at his own cost against theft, fire and water damage. The customer is only entitled to sell on the goods to which Herweck AG has reserved title in the normal course of business if the customer hereby assigns to Herweck AG with immediate effect all existing and future claims against customers or third parties which accrue to the customer from the resale in the amount of the final invoice. The customer is not, however, permitted to pledge or transfer the reserved goods by way of security. If the reserved goods are sold unprocessed or after processing, conversion or connection with items that are the exclusive property of Herweck AG, the processing, conversion or connection shall be carried out on behalf of Herweck AG and the customer hereby assigns the claims arising from the resale to Herweck AG in the amount of the final invoice. If reserved goods are sold by the customer following processing/connection with goods that do not belong to Herweck AG, Herweck AG shall have joint ownership of the resulting goods, insofar as sole ownership of the new item has been acquired by the customer or a third party, and the customer hereby assigns the claims resulting from the resale with immediate effect in the amount of the final invoice for the reserved goods, with all ancillary rights and with priority over all other claims. Herweck AG accepts the assignment. The customer is entitled to collect these claims, including after their assignment. The authority of Herweck AG to collect the claims itself remains unaffected by this; however, Herweck AG undertakes not to collect the claims provided that the customer fulfils its payment and other obligations properly.
(c) Herweck AG may demand that the customer notifies it of the claims assigned and the debtors concerned, provides all of the information required to make collection, hands over the associated documentation and notifies the debtors of the assignment.
(d) If the value of the existing securities exceeds the claims to be secured by more than 20%, on written demand by the customer Herweck AG is obliged at its discretion to release securities above this amount.
(e) The customer is obliged to notify Herweck AG immediately in writing of any action which may compromise the title reserved for the purchased item or that may put it at risk. In doing so, the customer shall provide Herweck AG with all information required to take defensive action. The costs of defensive action which are not liable for reimbursement by third parties shall be refunded to Herweck AG by the customer.
(f) Herweck AG is entitled to demand an adequate security payment at any time, including after conclusion of a contract, to secure its claims, including those that are not due, and to make further performance in advance by Herweck AG dependent on this. This applies in particular if doubts about the creditworthiness of the customer, shortfalls or gaps in liquidity etc. arise or the original credit volume increases.
7. Warranty / Expiry
(a) The subject of the contract is exclusively the sold goods with the characteristics and features and the intended purpose as specified in the attached product description. Other or further characteristics and/or features or any purpose that goes beyond that described shall only be deemed to have been agreed if expressly confirmed in writing by Herweck AG. Herweck AG cannot provide any warranty for damage caused by unsuitable or improper use or treatment of the goods supplied, or by incorrect assembly or commissioning by the customer or third parties. The warranty also does not cover damage caused by wear, unusual external factors, moisture, heat or cold. Herweck AG is also exempt from its warranty obligation if modifications, adaptations or attempts to rectify defects have been carried out by the customer or by third parties. Similarly, exemption from liability applies to damage resulting from the use of external accessories.
(b) In the case of insignificant defects (minor damage) to new goods, Herweck AG has the right to repair them within an appropriate period of grace set by the customer. If the customer demands supplementary performance in other cases, Herweck AG may at its discretion rectify the defect or supply goods that are not defective. If supplementary performance is not provided, the customer has the right to reduce the purchase price or withdraw from the contract. If there is a dispute about the amount of the reduction, a report from an expert appointed by the Saarland Chamber of Trade and Industry shall be obtained. In the case of withdrawal, notification of which must be sent to Herweck AG in writing, the customer shall be reimbursed with the amount resulting from the so-called fair value calculation method, provided that the defective goods are returned at the cost and risk of the customer (fair value method: gross invoice price x [(average period of use – weighted use by the customer or third party) ÷ average period of use]). If the customer pursues a claim for further compensation, this is limited to the negative interests of the customer. The provisions under section 8 of these conditions also apply.
(c) The warranty period for new goods is 12 months from the date of the invoice issued by Herweck AG. Warranty for used goods is excluded. Expiry of the period shall not be affected by negotiations in relation to the warranty unless the customer has notified Herweck AG of this in writing in advance. A claim for defects may only be made immediately, within 5 working days of delivery at the latest, in writing and with a precise description of the defects, before the goods have been used and with an immediate opportunity for Herweck AG to carry out an inspection. This also applies in the event that the goods are not handed over to the customer directly but to a third party appointed by the customer, or the customer for his part forwards the goods. Claims for defects that cannot be identified even on appropriate inspection shall be pursued as soon as said defects become known. Irrespective of complaints about defects, the goods shall be accepted and stored appropriately. Warranty claims based on defects that have not been reported properly are excluded. This also applies to notification of defects after the warranty period has expired.
(d) Action by the customer against Herweck AG for expenses for warranties relating to a consumer goods purchase is excluded, if this is not taken to fulfil a legally established claim by the consumer. The right to take action shall expire two years from the date of the Herweck AG invoice, in accordance with section 7 c of these conditions.
(c) In the event of damage in transport, an immediate assessment of the damage shall be arranged by the railway company, post office, freight forwarder, package delivery service, etc. before acceptance of the goods and before they are unloaded, and written certification by the body assessing the damage shall be obtained. The customer is responsible for compliance with exclusion periods e.g. in accordance with the General German Conditions of Carriage. The customer shall guarantee protection of any rights of recourse against third parties.
(f) The standard of due care to be applied during delivery of the goods of Herweck AG is that of an entrepreneur. This also applies in cases in which the goods are delivered under Herweck AG’s own brand name.
(g) The customer is responsible for obtaining evidence of any defect and its existence at the time of the transfer of risk. If a warranty case is legitimate, the customer is obliged to make a serious attempt to assert claims against the manufacturer outside of court before pursuing a claim against Herweck AG, if the manufacturer has a registered office or branch in Germany and Herweck AG provides the customer with all of the information required for this purpose and assigns any of its own potential claims against the manufacturer to the customer on demand by the customer.
(h) If a guarantee is provided by Herweck AG, this applies only in respect of the end consumer. The customer shall support Herweck AG as far as possible in fulfilling the guarantee promise.
(i) The warranty for radio and transmission systems which are intended exclusively for operation in, or export to, non-EU countries and which are provided by Herweck AG to the customer on condition of export from the EU, can only be fulfilled if the pursuit of warranty claims is completed and the requisite evidence of the defect is provided to Herweck AG by the customer, taking account of the Ordinance on Conformity Assessment, Labelling, Certification, Circulation and Operation of Wireless Systems Not Intended for Connection to a Public Telecommunication Network and of Telecommunications Equipment (Telecommunications Authorisation Ordinance of 20 August 1997 / Federal Law Gazette I p. 2117) and of §§ 60 and 65 of the Telecommunications Act.
(j) Herweck AG cannot provide any warranty for batteries and neon tubes.
(k) There is a charge for providing estimates of costs according to the time and work involved. The costs incurred for an estimate of costs shall be charged to the customer separately in accordance with the generally applicable list price of Herweck AG, if the customer withdraws his order on completion of his consideration.
(l) If the subject of the order is not collected within four weeks of the request for collection, Herweck AG may charge an appropriate storage fee once this period has elapsed. If collection has not been made at the latest three months from the request for collection, the obligation to continue storing the goods and any liability for damage or deterioration in the goods as a result of minor negligence no longer apply. On expiry of this three-month period, Herweck AG is entitled to sell the subject of the order to cover its costs as it wishes. Any additional return shall be reimbursed to the customer.
(m) The customer undertakes to advertise the goods supplied by Herweck AG in appropriate form only. The customer is aware that incorrect advertising of features may lead to warranty claims. The customer undertakes to indemnify Herweck AG against the consequences of such advertising and to compensate for any losses incurred by Herweck AG as a result of the breach of this obligation.
(a) Liability of Herweck AG and of its legal representatives and vicarious agents is excluded unless accused of malicious intent or gross negligence. In the case of a negligent breach of essential contractual obligations, compensation is limited to damage foreseeable by Herweck AG for contracts of this sort.
(b) The exclusion of liability does not apply to personal injury or to material damage in accordance with the German Product Liability Act, provided that the injury/damage is caused to or by goods in private use. In this case, the amount of compensation is limited to the amount of coverage provided by the product liability insurance of Herweck AG, the policy for which the customer may consult on demand.
(a) Return of goods delivered by Herweck AG shall be accepted only with prior written consent from Herweck AG. The goods must be in perfect condition and in their original packaging, and they must be complete (complete, undamaged original packaging, accessories, operating instructions, all packaging materials, etc.).
(b) The cost of goods that are returned shall be reimbursed with a 10% deduction (a minimum of EUR 15.00) for processing and stock turnover costs. As a matter of principle, it is not possible to return special orders and specially produced items. All returns to Herweck AG that are carried out with its consent are shipped at the risk and cost of the sender. This also applies to the accidental destruction of the goods. The shipments must reach Herweck AG free of all transport and transport insurance costs and any other ancillary costs (e.g. delivery charges). Returns that are not free of charge or even that require cash on delivery shall not be accepted.
11. Compensation in the event of failure of acceptance
(a) If the customer does not accept the goods contrary to the terms of the contract, he shall be liable to Herweck AG for the losses incurred. A flat rate of 15% of the net invoice amount plus value added tax is agreed for this, unless evidence of a lesser loss is provided. Herweck AG also has the right to assert a claim for higher compensation if there is evidence to support this.
(b) The customer shall bear the costs for transport in both directions.
12. Commercial proprietary rights
(a) Goods supplied may not be sold without the trademark of Herweck AG or the trademark of Herweck AG’s upstream supplier. Bundles may not be separated and the individual items sold, irrespective of whether they comprise software and/or hardware. Serial numbers may not be removed or made unrecognisable.
(b) Otherwise, the customer is forbidden from any and/or further use of the trademark of Herweck AG, in particular for advertising purposes. Printing plates of Herweck AG remain the property of Herweck AG, even on full payment.
(c) In the event of a breach of commercial proprietary rights of third parties, Herweck AG shall accept liability only to the extent that Herweck AG was aware or should have been aware that commercial proprietary rights of third parties were being breached and legal action is taken against the customer to this extent. The amount of liability is limited to the final invoice amount of the goods supplied that breach the proprietary right.
13. Data protection
The customer’s data shall be stored using IT in accordance with §§ 28, 34 of the German Federal Data Protection Act.
14. Fax / e-mail circulars
Herweck AG uses fax and e-mail circulars to inform its customers of new products and offers. The customer has the right to refuse to accept this form of communication at any time.
15. Miscellaneous / Place of performance and jurisdiction / Severability clause
(a) Should any of the provisions of these Terms & Conditions be or become invalid, this shall not affect the validity of the remaining provisions. The contracting parties undertake to replace any invalid provision with a valid one that comes as close to the commercial and legal intent of the invalid provision as possible.
(b) Supplementary and alternative agreements require written confirmation by Herweck AG to become legally valid. This also applies to the suspension of the requirement for written form. E-mails do not satisfy the requirement for written form.
(c) The place of jurisdiction for all legal disputes with the customer arising from the contractual relationship and relating to the creation and validity of that relationship is St. Ingbert, the registered office of Herweck AG, unless compelling legal regulations stipulate otherwise. Herweck AG is also entitled to take legal action against the customer at its registered office. The place of performance for all obligations arising from the contractual relationship with the customer is St. Ingbert. German law applies exclusively, with the exception of the Vienna Agreement of the UN of 11.04.1980.
Herweck AG, 66386 St. Ingbert-Rohrbach