1.1 Scope of application
These General Terms and Conditions of Business shall apply in the version valid at the time of conclusion of the contract to all business relations between us of Herberholz GmbH, Pregelstraße 6, 58256 Ennepetal and you. Should you use conflicting general terms and conditions, these are hereby expressly contradicted.
1.2 Contractual Agreement
The contractual language shall be German. In the sense of these General Terms and Conditions, customers are exclusively entrepreneurs in the sense of § 14 BGB (German Civil Code).
1.3 Individual conclusion of the contract (e.g. by mail or using our price list)
The conclusion of the contract takes place individually by offer and acceptance. Unless otherwise agreed, the usual procedure is that you send us an inquiry and receive a binding offer from us, which you can then accept within four weeks. With your acceptance, the contract is concluded. Separate storage of the contract text by us does not occur, but the contract content results in each case individually from the agreement reached.
If desired, we will also send you our price list using which an order can be made.
Work contract: A contract in which an entrepreneur undertakes to produce work. Work can be understood as producing or modifying an object and another success to be achieved through work or service.
Contract for work and materials: A contract for delivering movable goods to be manufactured or produced. For the classification of the contract as a purchase or work supply contract on the one hand or as a contract for work and services, on the other hand, it depends on which of the two services is the main focus in the required overall view.
Purchase contract: A contract between a seller and a buyer for a specific object of purchase at a previously fixed purchase price.
We are specialists for industrial valves. We develop and produce industrial valves for shut-off, throttling, and control of gaseous media for our customers.
We specialize in shut-off, throttle, control, and check valves for gas distribution and exhaust systems, e.g., industrial term processing plants. In addition, we automate valves for you precisely according to your wishes and specifications.
2.2 Partial deliveries
We are entitled to make partial deliveries if this is reasonable for you. In the case of partial deliveries, however, you will not incur any additional shipping costs.
2.3 Delays in delivery and performance
Delays in delivery and performance due to force majeure and due to extraordinary and unforeseeable events which cannot be prevented by us even by exercising the utmost diligence and for which we are not responsible (this includes in particular strikes, pandemics, official or judicial orders and cases of incorrect or improper self-delivery despite covering transactions to that effect) shall entitle us to postpone delivery for the duration of the impeding event.
2.4 Exclusion of delivery
Post office box addresses shall not be supplied.
2.5 Delay in acceptance
If you are in default of acceptance of the ordered goods, we shall be entitled, after setting a reasonable grace period, to withdraw from the contract and to claim damages for default or non-performance. During the delay in acceptance, you shall bear the risk of accidental loss or accidental deterioration.
2.6 Time of performance
In principle, the delivery or performance times shall be agreed with you individually. All issues relevant to the order must be clarified between the contracting parties before delivery or performance. If advance payment is approved, initial payment is required. If the prerequisites are not met, the performance or delivery period shall be extended accordingly.
Suppose the shipment or acceptance of the delivery item is delayed for reasons for which you are responsible. In that case, you will be charged for the costs incurred by your delay after a reasonable period has elapsed following notification that the delivery item is ready for shipment or acceptance.
2.7 Place of the performance agreement
The place of performance for all obligations arising from the business relationship is Ennepetal.
3.1 Prices and shipping costs
All prices are exclusive of value-added tax. In addition, the costs for packaging and shipping, which are shown separately in each case, shall be added, unless collection by you at our place of business is agreed.
For order values below 300,- euro net, an additional handling fee of 75,- euro net will be charged.
3.2 Default of payment
Unless expressly agreed otherwise, you will be in default of payment if we do not receive the payment within 30 days of receipt of the invoice. No discount can be granted. In the event of late payment, interest will be charged at a rate of 9 percentage points above the prime rate of the European Central Bank. If you default with your payments, we reserve the right to charge 2.50 euro reminder fees. We reserve the right to claim damages over this amount. You have the opportunity to prove that we have incurred no or less damage.
3.3 Right of retention
You shall only be entitled to assert a right of retention for counterclaims that are due and based on the same legal relationship as your Obligation.
You are solely responsible for the content and accuracy of the data and information you submit. You also undertake not to transmit any data whose content infringes the rights of third parties or violates existing laws. By sending data to us, you confirm that you have complied with copyright regulations.
You shall indemnify us against all claims asserted against us by third parties on account of such infringements. This also includes the reimbursement of costs of necessary legal representation.
4.3 Data backup
You are jointly responsible for backing up the information sent to us. Unfortunately, we cannot be held responsible for the loss of your transmitted information, as we do not provide a general data backup guarantee.
The goods, works and materials supplied by us shall remain our property until all present and future claims arising from the business relationship have been fully satisfied. You assign any claim or compensation you may receive for the damage, destruction or loss of such items. Unless otherwise agreed below, you are not entitled to sell, give away, pledge, or assign the items delivered to you under retention of title by way of security.
5.2 Seizure and other impairments
Suppose the item subject to retention of title is seized or otherwise impaired by a third party. In that case, you must notify us immediately to take action by §771 ZPO (German Code of Civil Procedure). Insofar as the third party is not in a position to reimburse the court and out-of-court costs of an action under §771 ZPO, you shall be liable for the loss incurred by us.
You shall be entitled to resell the reserved goods in the ordinary course of business. You hereby assign to us the customer’s claims arising from the resale of the goods subject to retention of title in the amount of the agreed final invoice amount (including value-added tax). This assignment shall apply regardless of whether the purchased goods have been resold without or after processing. You shall remain authorized to collect the claim even after the assignment. The authority of us to collect the claim ourselves shall remain unaffected. However, we shall not collect the claim as long as you meet your payment obligations from the proceeds collected, are not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.
5.4 Alteration, processing and transformation
The processing or transformation of the object of sale by you shall always be carried out in our name and on our behalf. In this case, your expectant right to the object of sale shall continue to apply to the transformed object. Suppose the object of sale is processed with other objects not belonging to us. In that case, we shall acquire co-ownership of the new object in the ratio of the objective value of the object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing. Suppose the mixing is carried out in such a way that your item is to be regarded as the main item. In that case, it shall be deemed agreed that you transfer co-ownership to us on a pro rata basis and hold the sole ownership or co-ownership thus created in safe custody for us. In order to secure the claims against you, you shall also assign to us such claims as accrue to you against a third party as a result of the combination of the goods subject to retention of title with a property; we hereby accept this assignment.
5.5 Taking back
In the event of a breach of contract by you, in particular in the event of default in payment, but also in the event of an application for insolvency proceedings against your assets, we shall be entitled to take back the item. In this case, taking back the item does not constitute withdrawal from the contract unless we expressly declare this in text form.
5.6 Release of securities
If the value of the securities exceeds the value of the secured claims by more than 15 percent, we shall be obliged to release securities at your request.
6.1 In the case of a contract of sale and a contract for work and materials
There are statutory warranty rights. However, a warranty claim can only arise about the properties of the goods; reasonable deviations in the aesthetic properties of the goods are not subject to the warranty claim. In particular, with regard to the descriptions, representations and information in our offers, brochures, catalogs, on the website and other documents, there may be technical and design deviations (e.g. color, weight, dimensions, design, scale, positioning, etc.), provided that these changes are reasonable for you. Such practical reasons for changes may result from fluctuations customary in the trade and technical production processes. If guarantees are given in addition to the warranty claims, you will find their exact conditions with the product in each case. Possible contracts do not affect the warranty rights.
6.1.2 Warranty claim
In the event of a defect, we shall, at our discretion, provide subsequent performance in the form of rectification of the defect or new delivery. In this case, the risk of accidental loss or deterioration of the item shall already pass to you upon handover to the person designated for transport. You must report apparent defects immediately and non-obvious defects immediately after discovery in text form; otherwise the assertion of the warranty claim is excluded. Timely dispatch is sufficient to meet the deadline. You shall bear the full burden of proof for all claim prerequisites, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect.
6.1.3 Rights in case of an insignificant defect
In the event of an insignificant defect, you shall only be entitled to a reasonable reduction of the purchase price to the exclusion of the right of rescission.
6.1.4 Compensation for defects
No warranty shall be provided for damage resulting from improper handling or use. Express reference is made to the following exclusion of liability.
The warranty for used goods is excluded and for new goods, it is 1 year. Excluded from this is the right of recourse according to § 478 BGB (German Civil Code). The shortening of the limitation period expressly does not exclude liability for damages resulting from injury to life, body or health or in the case of intent or gross negligence. The provisions of the Product Liability Act shall also remain unaffected.
6.2 In the case of a contract for work and services
6.2.1 Warranty claim
There are statutory warranty rights. If the work is defective and you demand subsequent performance, we may, at our discretion, remedy the defect or produce new work. If defects are not fixed even after at least two attempts at subsequent performance, you shall be entitled to rescission or reduction.
6.2.2 Rights in case of insignificant defects
In the event of an insignificant defect, you shall only be entitled to a reasonable reduction of the agreed remuneration for the work, to the exclusion of the right of rescission.
6.2.3 Compensation for defects
No warranty shall be provided for damage resulting from improper handling or use. Express reference is made to the following exclusion of liability.
6.2.4 Transfer of risk
The risk of accidental loss or deterioration of the work shall not pass to you under the warranty until the work has been accepted.
6.2.5 Obligation to give notice of defects
By § 377 HGB (German Commercial Code), you must notify us in text form of obvious defects without delay and of non-obvious defects without delay after discovery; otherwise the assertion of the warranty claim shall be excluded. Timely dispatch shall be sufficient to meet the deadline. You shall bear the full burden of proof for all claim prerequisites, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect.
6.2.6 Statute of Limitations
Warranty claims shall become statute-barred within one year after the passing of the risk, unless it concerns the construction of a building or a work, the success of which lies in the provision of planning or supervision services for this purpose. In these cases, the limitation period shall be five years. The shortening of the limitation period expressly does not exclude liability for damages resulting from injury to life, body or health or in the case of intent or gross negligence. The provisions of the Product Liability Act shall also remain unaffected.
6.3 Non-existence of the warranty right
A warranty claim shall not exist in the following cases in particular, insofar as the defect complained of is caused by:
• Unsuitable or improper use,
• faulty assembly or commissioning by you or third parties,
• natural wear and tear,
• false or negligent handling,
• improper maintenance,
• unsuitable operating materials,
• Improper rectification by you or third parties; the same shall apply to modifications of the delivery item made without prior consent, which is not expressly provided for.
We, as well as our legal representatives and vicarious agents, are only liable for intent. Suppose essential contractual obligations (i.e., obligations whose compliance is of particular importance for achieving the purpose of the contract) are affected. In that case, we shall also be liable for gross or slight negligence. In this case, liability shall be limited to the foreseeable damage typical for the contract.
7.2 Reservation of liability
The above exclusion of liability shall not apply to liability for damages resulting from injury to life, body or health. The provisions of the Product Liability Act shall also remain unaffected by this exclusion of liability.
8.1 Place of jurisdiction
Our registered office is agreed as the exclusive place of jurisdiction for all legal disputes arising from this contract, provided that you are a merchant, a legal entity under public law or a special fund under public law.
8.2 Choice of law
Unless mandatory statutory provisions according to your home country’s law conflict with this, German law shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
8.3 Severability clause
The invalidity of individual provisions shall not affect the validity of the remaining general terms and conditions.
1.1 Scope of application
These General Terms and Conditions of Purchase shall apply in the version valid at the time of conclusion of the contract to all orders placed by the Contractor with Herberholz GmbH, Pregelstraße 6, 58256 Ennepetal. Should the Contractor use contrary terms and conditions, these are hereby expressly rejected.
These Terms and Conditions shall apply irrespective of whether the Customer places the order in its own name for its own account, in its own name for the account of a third party or in the name of a third party for the account of a third party.
The terms “order, contractor and client” shall be understood in the commercial sense. The term “order” refers to the contractual relationship between “contractor” and “client” without regard to the respective type of contract, the term “contractor” refers to the person who owes the main performance and the term “client” refers to the person in whose name the order is placed, who must receive the main performance and pay the remuneration.
“Delivery” means both the handing over of goods, the rendering of services, and the production of a work. This is usually done by the “supplier”.
“Contractor” shall be the contractual partner of Herberholz GmbH.
Herberholz GmbH is from now on referred to as the “Customer” for short.
1.3 Contract agreement
Contractual languages are German and English. Contractors within the meaning of these General Terms and Conditions of Purchase are exclusively entrepreneurs within the meaning of § 14 BGB (German Civil Code).
1.4 Conclusion of contract
The conclusion of the contract takes place individually by offer and acceptance. Unless otherwise agreed, the usual procedure is that the Client submits a free inquiry to the Contractor and receives a binding offer, which can then be accepted within two weeks. The offers must correspond exactly to the questions of the client. Any unavoidable deviations must be expressly pointed out in the offer. The offer is binding and the preparation of the offer is free of charge. However, the Customer reserves the right to accept only parts of an offer, provided that fulfillment remains possible for the Contractor and partial acceptance can be reasonably expected. Prices shall include packaging and freight costs. Freight costs shall be shown separately. The offer shall state the amount to be reimbursed for packaging in the event of a freight-free return. The prices shall be stated as fixed prices.
The contract shall be concluded upon acceptance. The Contractor shall send the Customer an order confirmation and a confirmation regarding the start of execution within three days after the conclusion of the contract.
1.5 Changes to the contract
The Customer reserves the right to change orders, provided that this can be reasonably expected of the Contractor. The Contractor may then prepare a new offer. The new request must be about the original offer. In doing so, the Contractor must consider the effects on additional or reduced costs and the delivery dates.
1.6 Subsequent amendment of the terms and conditions of purchase
The Customer shall be entitled to make subsequent amendments and additions to the General Terms and Conditions of Purchase about existing business relationships, insofar as changes in legislation or case law make this necessary or other circumstances result in the contractual equivalence relationship being disturbed to a more than insignificant extent. A subsequent amendment to the Terms and Conditions of Purchase shall become effective if the Contractor does not object within six weeks after notification of the amendment. At the beginning of the period, the Customer shall expressly inform the Contractor of the effect of its silence as acceptance of the contractual modification and shall allow it to make an express declaration during the period. If the Contractor objects within the time limit, both the Customer and the Contractor may terminate the contractual relationship extraordinarily unless the Customer allows the contractual relationship to continue under the old General Terms and Conditions of Purchase.
2.1 Deadlines and delivery periods
The respective performance time is individual and results from the contract concluded between the Customer and the Contractor. The agreed dates and delivery periods shall be binding and understood as arriving at the Customer’s works. If the Contractor does not perform by the stated delivery date, he shall be liable for this accordingly. The Contractor shall be obliged to choose the most cost-effective transport route.
The Contractor shall send a dispatch note to the Customer. The order number and order abbreviation with the date and the shipping note specified in the notice shall be indicated on the shipping documents (consignment note, parcel or express goods card, delivery notice), the shipping notices and the invoices. In addition, the same information shall be indicated on the stickers or tags of the general cargo, also in the case of consolidated shipments, if these different concern orders. Any costs incurred by us due to non-compliance with these shipping instructions and inaccurate or defective information shall be charged to the Contractor. If applicable, the shipping documents shall state “Partial delivery” or “Remaining delivery”.
2.2 Delay in delivery
The Contractor shall inform the Customer immediately of any impending delay in delivery. The acceptance of a new delivery date shall be agreed with the Purchaser. After the Customer’s expiry of a subsequent performance period, the Customer shall be entitled to claim damages for non-performance and/or to withdraw from the contract.
Withdraw from the contract. The setting of a deadline shall not apply if the Contractor seriously and finally refuses performance.
2.3 Place of performance
Unless otherwise agreed in text form, the Contractor shall send the delivery at its own expense and risk to the delivery address stated in the order, which shall also be the place of performance.
The agreed prices are net prices, which are understood as fixed prices. They already include the costs for customs, packaging and shipping, unless collection by the Customer at the Contractor’s place of business is agreed or delivery by the Contractor is free domicile. The agreed price may not be exceeded. In the event of changes and additions requested by the Customer, the Contractor shall inform the Customer without delay whether separate remuneration is to be paid for this.
3.2 Due date
Unless otherwise agreed, payment shall be due within 14 days of receipt of invoice and goods. In this case, a 3% discount shall be granted. Otherwise, the invoice shall be due 60 days after acceptance of the goods and after receipt of all transport and freight documents.
Invoices shall be submitted in duplicate immediately after delivery/service. Invoices for monthly deliveries/services must be submitted by the 3rd of the following month at the latest. Invoices that do not comply with point 2.1 or otherwise obviously do not comply with the contract shall be returned by the Customer to the Contractor. Payment deadlines shall be taken into account only after receipt of properly issued invoices.
The invoice issued to the Customer shall comply with the requirements of the VAT law and shall be sent by e-mail to firstname.lastname@example.org and/or by post to the address indicated by the Customer. In the event of dispatch by mail, the requirement of double submission of the invoice shall not apply.
3.4 Right of retention
The Contractor shall only be entitled to assert a right of retention for counterclaims that are due and based on the same legal relationship as its obligation.
The Contractor shall be solely responsible for the content, correctness and completeness of the data and information transmitted by the Contractor (e.g. information on shipping documents). The Contractor also undertakes not to transmit any data whose content infringes the rights of third parties or violates existing laws.
Furthermore, it is the Contractor’s responsibility, if applicable, to ensure that the subject matter of the contract is not burdened with the rights of third parties or that it has the necessary rights of use. For example, suppose a claim is made against the Customer by the Licensor because the third-party license material was not used properly. In that case, the Contractor shall be liable to compensate the Customer for the resulting damage.
4.2 Delivery call-off and interim storage
Insofar as a delivery is called off or interim storage takes place, the Contractor shall be obliged to ensure proper storage and appropriate insurance of the subject matter of the contract.
The Contractor shall be obliged to keep secret all business and trade secrets and information designated as confidential which are disclosed and/or become known to him by the Customer during the performance of the contract.
The obligation to maintain secrecy shall also apply for the time after termination of the order.
The client is also obligated to this, as far as the order does not require a passing on to third parties. For example, the client is expressly permitted to process or have processed by third parties the personal data entrusted to him in the context of the provision of services. In the context of a legal dispute, the Client shall be entitled to disclose internal information of the Contractor in order to protect its interests, even without prior release from the obligation of confidentiality. Confidentiality shall not apply to information that is generally accessible, is published by the other contracting party itself or has become known from a third party.
If a confidentiality agreement has been concluded between the Contractor and the Client, this shall remain unaffected by the above provisions.
4.4 Information provided by the Customer
The contractor shall always execute the order by the information provided by the Customer. Should he still require information, he shall notify the Customer thereof without delay. The Customer reserves the right to claim against the Contractor for any damage caused by delay due to a failure to consult the Contractor and for which the Contractor is responsible.
Transport containers, reusable packaging, containers, etc. which the Customer has received from the Contractor and which remain in the Contractor’s ownership shall only be returned after the expiry of 4 weeks after handover.
Instructions/instructions for the storage and handling of the goods shall be handed over by the Contractor to the Customer upon delivery without being requested to do so. The Contractor shall be obliged to hand over to the Customer all necessary product information, in particular safety information, labeling regulations, assembly instructions, occupational safety measures, operating and usage information, certificates of origin, customs tariff numbers, etc., upon delivery.
The Contractor shall have the permits, authorizations and insurances required to transport the goods and undertakes to present them to the Customer upon request.
All deliveries and services shall comply with the latest state of the art, the relevant international and national legal provisions and the regulations and guidelines of authorities, trade associations and professional associations.
The client has the copyright or the exclusive right of use or ownership of the materials made available to the contractor (e.g. concepts, drafts, drawings, models, tools, etc.). The Contractor shall not be entitled to make the materials above available to third parties, whether for a fee or free of charge, to use them for purposes other than those agreed upon or to dispose of them without the Customer’s express consent.
Insofar as the Contractor uses different tools or means of production, these shall become the Customer’s property upon payment, insofar as this has been agreed.
In addition, the Contractor shall be responsible for the proper storage, care and maintenance of the materials above of the Customer for the duration of the contractual relationship. Insofar as an item owned by the Customer is stored on the Contractor’s premises beyond the specific contractual relationship in order to be able to use it again within the scope of follow-up orders, the Contractor shall also be responsible for proper storage, care and maintenance for the period of storage.
The Contractor shall bear any replacement costs or repair costs incurred due to the Contractor’s improper handling of the Customer’s materials. Replacement costs or repair costs arising from normal wear and tear by the employee shall be reported to the Customer without being requested to do so.
In case of execution measures against the Customer’s property, the Contractor is obliged to inform the Customer immediately.
6.1 Claims for defects and damages
The statutory warranty rights shall apply. Possible installation and removal costs, as well as all ancillary and consequential costs, shall be borne by the Contractor, insofar as the Contractor is responsible for them.
6.2 Weights and quantities
The Customer reserves the right to reject goods with short weights/short quantities. However, he shall only pay for the weight/quantity determined in his works if he accepts them.
6.2 Excess delivery
An excess delivery is not permitted. In the event of such an excess delivery, the Customer shall be free to refuse acceptance of the excess delivery. If there is interest in the additional delivery, this shall be agreed and reimbursed separately.
6.4 Notification of defects by the customer
Notices of defects on the part of the Customer shall be deemed to have been given in good time if they are given within 10 working days of delivery or, in the case of non-obvious defects, of discovery. The timely dispatch of the notice of defects shall be sufficient to meet the deadline. Payments shall not constitute a waiver of the right to give notice of defects.
The Contractor shall commence subsequent performance immediately after the notice of defect. The Customer shall be entitled to remedy the defect by self-performance if a reasonable period set for the Contractor to remedy the defect has expired without success or if there is imminent danger.
The Customer and its legal representatives and vicarious agents shall only be liable for intent. Liability for gross or slight negligence shall only apply if essential contractual obligations (i.e. obligations whose compliance is of particular importance for achieving the purpose of the contract) are affected. In this case, liability shall be limited to the foreseeable damage typical for the contract.
The above exclusion of liability does not apply to liability for damages resulting from life, body or health injury. Accordingly, the provisions of the Product Liability Act shall also remain unaffected by this exclusion of liability.
8.1 Place of jurisdiction
The exclusive place of jurisdiction for all legal disputes arising from this contract shall be the Customer’s place of business, provided that the Contractor is a merchant, a legal entity under public law or a special fund under public law.
8.2 Choice of Law
Unless mandatory statutory provisions according to the Contractor’s home country law conflict therewith, German law shall be deemed agreed to exclude the UN Convention on Contracts for the International Sale of Goods.
8.3 Severability clause
The invalidity of individual provisions shall not affect the validity of the remaining General Terms and Conditions of Purchase.