HERMA US Inc. - GENERAL TERMS AND CONDITIONS
(Version July 2016)
1. Orders for product(s), applicability
3. Payment terms, revocation of credit
5. Retention of title
6. Force majeure
7. Limited Warranty
8. Warranty terms
9. Intellectual property
10. Limitations of liability, exclusive remedy
11. Cancellation of postponement by customer
13. Governing law
16. Compliance with laws
HERMA US Inc. ("HERMA") is offering for sale its products, equipment, gear and accessories (collectively and individually, the "Product(s)") identified herein, subject to the following exclusive terms and conditions (the "Terms and Conditions"). The Terms and Conditions set forth the legally binding terms with respect to the purchase of the Product(s). The Customer (as identified by purchasers of the Product(s) and/or services offered by HERMA) ("Customer"), in consideration of the mutual covenants, agreements and provisions set forth herein and hereon, hereby agrees that the purchase of the Product(s) offered by HERMA shall be subject to and in accordance exclusively with the following terms and conditions:
1. ORDERS FOR PRODUCT(S), APPLICABILITY
All Customer order(s) for Product(s) shall be subject to these Terms and Conditions and, if applicable, an authorized quotation issued by HERMA. Such order(s), if accepted by HERMA, shall have significance as a reference document only. HERMA and the Customer (hereinafter sometimes referred to as “Party” or “Parties”) hereby agree that these Terms and Conditions shall govern and control the relationship between them, that the Terms and Conditions contained herein shall supersede the terms and conditions contained in a Customer-issued order, and that any deviation from these Terms and Conditions needs to be expressly agreed upon in writing by HERMA and the Customer. HERMA reserves the right to refuse orders in its sole discretion, or to accept such orders on a separate contract form or to limit the types and amounts of the Product(s) ordered. Marketing documentation, such as brochures, prospectus material, illustrations etc. provided along with an offer by HERMA, only contains approximate data and descriptions, thus, does not constitute a binding offer and does not create any legal obligation. Contracts shall be deemed accepted by HERMA’s written order confirmation the contents of which shall be conclusive. All changes or subsidiary agreements shall be in writing. HERMA reserves the right to make technical alterations, especially in case of an order subject to Customer’s specifications.
Prices for the Product(s) shall be the then current prices for such Product(s) in effect at the time of acceptance of an order by HERMA or in accordance with an authorized and valid HERMA quotation. Prices are exclusive of all charges for packaging, shipment and insurance, or levies of any nature, including all federal, state, municipal or other governmental excise, sales, use, occupational or like taxes now in force or enacted in the future and, therefore, are subject to an increase in amount equal to any tax HERMA may be required to collect or pay upon the sale or delivery of Product(s) purchased. If a certificate of exemption or similar document is required in order to exempt the sale from sales or use tax liability, Customer will obtain and furnish evidence of such exemption at time of placement of order. All prices are subject to adjustment on account of changes in specifications, quantities, shipment arrangements, and the like or the inclusion of Terms and Conditions which had not been part of any valid price quotation issued by HERMA.
3. PAYMENT TERMS; REVOCATION OF CREDIT
(a) Unless otherwise specified by HERMA in writing, payment terms shall be net thirty (30) days from date of invoice. HERMA shall require different payment terms for special assemblies, machines or other appliances having a net order value exceeding USD 25,000.00. For the aforementioned orders, HERMA shall be entitled to an initial payment of forty percent (40%) of the order, an additional payment of fifty percent (50%) upon delivery of the orders and a final payment for the remaining ten percent (10%) upon acceptance by Customer, or fourteen (14) days after delivery, whichever is sooner.
(b) In case of late payments, HERMA shall be entitled to charge interest of two point five percent (2.5%) or the legal statutory rate, whichever is higher, on all amounts due more than forty-five (45) days.
(c) HERMA’s obligation to ship the Product(s) or otherwise perform hereunder shall be subject to the then current credit terms and policies as established by HERMA from time to time. Further, HERMA reserves the right at any time when, in its sole opinion and discretion, Customer’s financial condition or other circumstances warrants it, to revoke, alter or suspend any credit already extended, or to require full or partial payments in advance of any shipment or other performance, or to otherwise defer or decline to make shipments under these Terms and Conditions and/or terminate these Terms and Conditions or any order accepted hereunder without liability to Customer.
(d) HERMA reserves ownership rights in the Product(s) and/or part(s) thereof until Customer has paid all outstanding charges associated with the Product(s) and/or part(s) thereof. While HERMA still holds ownership rights in the Product(s) and part(s) thereof, Customer shall not
(i) sell the Product(s) and/or part(s) thereof to a third party, unless the Parties agree to such a sale in writing and
(ii) pledge the Product(s) and/or parts(s) thereof as a security or assign the rights therein.
(e) Customer shall not be entitled to offset or retain payments on the grounds of counter-claims denied by HERMA, unless said counter-claims have been confirmed by a court or arbitration panel.
(a) All Products furnished hereunder shall be shipped Ex Works HERMA according to Incoterms 2010, whereupon the risk of loss and right of possession of the Product(s) and responsibility for all transportation expenses shall pass to the Customer upon the Product(s) availability at HERMA’s facility. Subject to HERMA’s right to stop shipment of Products already in transit, any carrier shall be deemed to be acting for and on behalf of Customer regardless of the carrier used or the freight terms. Shipment will be made “best way,” either prepaid or collect, as requested by Customer. If Customer requests prepaid shipment, actual charges incurred shall be billed and shall be due and payable to HERMA in accordance with HERMA's regular payment terms. HERMA will not assume any liability in connection with such shipment, nor shall any carrier be its agent. All shipping dates quoted or otherwise agreed to by HERMA are estimates only. HERMA will use its best efforts to meet scheduled dates, but assumes no liability for failure to do so.
(b) HERMA reserves its rights to adjust its prices for orders with a processing time of more than four months. Requests by the Customer for subsequent amendments on individualized manufacturing orders, shall be charged separately on the basis of HERMA’s cost rates.
(c) HERMA shall not be responsible for assembling Product(s), unless agreed to between the Parties in writing.
5. RETENTION OF TITLE
(a) The delivered Product shall remain HERMA’s property until complete payment by Customer of all of HERMA’s pending claims. Re-sale of the reserve merchandise to third parties by the Customer shall require HERMA’s prior written approval. In the event of a re-sale by the Customer, Customer hereby assigns any claims to HERMA.
(b) Customer may not give in pledge or assign the reserve merchandise as a security. In case of third parties’ recourse to the reserve merchandise, Customer shall notify HERMA, immediately, accordingly. Customer shall obtain an insurance policy against theft, damage, destruction or accidental loss (in particular, fire and water) of the reserve merchandise, and to provide evidence in support thereof upon HERMA’s request.
(c) If the value of all of HERMA’s security interests exceeds the amount of all of HERMA’s secured claims by at least 20%, HERMA shall release a corresponding part of the security interests.
6. FORCE MAJEURE
HERMA shall not be responsible for delays or non-performance directly or indirectly caused by governmental regulations or requirements, acts of God, unavailability of materials, work stoppages, slowdowns, boycotts or other causes beyond HERMA's reasonable control. In the event of delay due to any such cause, time for delivery shall be extended for a period of time equal to the duration of the delay, and Customer shall not be entitled to refuse delivery or otherwise be relieved of any obligations hereunder.
7. LIMITED WARRANTY
(a) All Products offered by HERMA are warranted to the original purchaser of the Product(s) (“Purchaser”) to be free from defects in workmanship and materials for a period of twelve (12) months from the date of delivery but no longer than 18 months from the date of shipment per HERMA’s records. During the term of the warranty, HERMA, at its sole discretion, will either replace any Product(s) or part(s) thereof, which prove to be defective in material and workmanship, or remove the defect from any of the aforementioned Product(s) or parts(s). Minor deviations, such as, but not limited to size, color, rubber coating for stationary, shall not be deemed a defect in accordance with industry standards. A replacement will not be made for damage due to misuse, abuse, neglect, accident, or improper installation. It does not include any damage incurred during the shipping process. (b) HERMA is not responsible and will not pay any labor charges, damage incurred during installation, repair, or replacement, damage incurred to other related part(s), injuries, loss of income, incidental and consequential damages, damages or any other loss whatsoever connected therewith.
8. WARRANTY TERMS
(a) Enforcement of Warranty Notice: The Purchaser shall notify HERMA in writing of any defects in the Product(s) that the Purchaser has detected and requires to be corrected under this Warranty. Such notice shall be made without delay, but in any case within ten (10) days of detecting the defect and during the term of the Warranty. The notice shall contain a description of the defect and a description of the probable cause of it if available. Remedy: If, after appropriate tests and inspections by HERMA, the Product(s) or a part thereof is found to have defects that fall within this Warranty, exclusive remedy shall be made, at the sole option of HERMA, by either repairing the defects or faults, or by supplying the respective correct Product or part to the Purchaser. Either HERMA or the Purchaser or a third party shall perform repairs, at HERMA's discretion.
(b) Precondition for Warranty Handling Exclusions: Excluded from the Warranty are, and HERMA shall have no responsibility for, damage of any kind as a result of one of the following events: the repair and replacement of the Product(s) or any part thereto due to normal wear and tear, vandalism, accidents, negligence, or otherwise without any fault of HERMA; repairs, alterations or adjustments to the Product(s) performed or originated by the Purchaser or any third party without HERMA's prior written consent; unsuitable raw or working materials have been used when operating the Product(s); unreasonable use, misuse, abuse, accident, alteration, modification, neglect, lack of maintenance, or use after the Product(s) is significantly worn. The Warranty described above applies only to Products manufactured by HERMA.
(c) Defective Part(s) Transportation: The Purchaser shall bear the cost and risk of transport of defective Product(s) or any part thereof to HERMA's facility, while HERMA shall bear the cost and risk of transport of repaired or replacement Product(s) or any part thereof to the port of destination. HERMA will pay for the ocean/ground freight using the same method of transportation and port of destination than for the original shipment. HERMA will not be responsible for additional duties charged for bringing a shipment of "warranted item" into any country and HERMA will not refund duties already paid by the Purchaser for the defective Product(s) or any part thereof. Defective Part(s) and their Return: At HERMA's request, defective part(s) replaced in accordance with this Warranty shall be placed at the disposal of HERMA. Any defective part(s) shall not be returned without authorization of HERMA.
(d) Payments due by the Purchaser Monies Due: Any monies due to be paid by the Purchaser to HERMA shall be paid in full, and HERMA shall credit the Purchaser for any warranty claims separately, if necessary. Deductions: Should the Purchaser make any deductions, HERMA shall immediately be discharged from the performance of its obligations under this Warranty until the Purchaser has paid HERMA such deduction in full.
(e) Other Exclusions All claims beyond those allowed in these Terms and Conditions for any loss or damage from whatever cause arising, including damage to the Purchaser's property, shall be excluded and hereby waived by the Purchaser unless such claim is made based on intentional bad acts or gross negligence by the owner or executives of HERMA. In such case, damages shall be limited to those that are reasonably foreseeable as a result of the intentional bad acts or gross negligence.
THE WARRANTIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESSED OR IMPLIED, AND THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE AND ALL OTHER WARRANTIES ARISING FROM THE COURSE OF DEALING OR USAGE OF TRADE ARE HEREBY EXCLUDED. THE REMEDIES PROVIDED HEREIN ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY FAILURE BY HERMA TO COMPLY WITH ITS WARRANTY OBLIGATIONS. CORRECTION OF THE NONCONFORMITIES IN THE MANNER AND FOR THE PERIOD OF TIME PROVIDED HEREIN SHALL CONSTITUTE COMPLETE FULFILLMENT OF HERMA'S OBLIGATIONS REGARDING DEFECTIVE PRODUCT(S), WHETHER THE CLAIMS BY THE CUSTOMER ARE BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
9. INTELLECTUAL PROPERTY
HERMA may discontinue, without liability, delivery of Product(s) if, in its opinion, their use would constitute patent, copyright, trademark or trade secret infringement.
10. LIMITATIONS OF LIABILITY; EXCLUSIVE REMEDY
HERMA will not be liable to Customer under these Terms and Conditions, whether in contract, in tort (including negligence) under any warranty or otherwise for any special, indirect, incidental or consequential loss or damage, or loss of profits or revenues even if HERMA has been advised of the possibilities of such damages. The remedies set forth in Sections 7 and 8 of these Terms and Conditions are exclusive, and HERMA’s liability for damages to the Customer for any cause whatsoever, including performance or non-performance by HERMA or Product(s) provided hereunder, regardless of the form of the action, under any warranty or otherwise will be limited to the remedies provided therein.
11. CANCELLATION OR POSTPONEMENT BY CUSTOMER
Orders accepted by HERMA may not be canceled and shipments may not be postponed except by written notice to HERMA. In the event Customer cancels or postpones an order(s) or any part thereof, HERMA’s standard cancellation or postponement charges will apply.
(a) Any of the following will constitute an act of default hereunder. Customer:
i. is or becomes insolvent or a party to any bankruptcy or receivership proceeding or any similar action, including, but not limited to, deterioration of Customer’s credit rating or standing, affecting the financial condition or property of Customer and such proceeding has not been dissolved within 30 days;
ii. makes a general assignment for the benefit of creditors; or
iii. ceases doing business in the normal course. (b) In the event an act of default occurs, HERMA shall have the right to and may elect any or all of the following remedies, which shall be cumulative and not exclusive:
i. Declare the particular order, out of which the default arises, to be immediately terminated; ii. Declare, at its option, all charges incurred but unpaid relative to the order to be immediately due and payable;
iii. Exercise any or all remedies specified in these Terms and Conditions or any supplement associated herewith; andiv. Pursue each and every remedy available at law or in equity.
13. GOVERNING LAW
These Terms and Conditions and any order accepted hereunder shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Delaware, exclusive of its conflict of laws provisions.
Except as provided below, the Parties agree to submit any disputes relating to these Terms and Conditions and the purchase of Product(s) to arbitration, applying the American Arbitration Association Rules for Commercial Disputes. The proceedings shall be held in Fairfield, New Jersey, be in English, and any award shall be enforceable in any court of competent jurisdiction according to the laws of the state of Delaware and the United Nations Convention for the Enforcement and Recognition of Arbitral Awards unless the nature of the dispute is suitable to injunctive relief thereby affording a party the right to pursue redress in court without proceeding to arbitration. Any dispute arising under these Terms and Conditions that cannot be arbitrated as provided herein shall be brought only in a court of competent jurisdiction in Essex County, New Jersey, USA, with the Parties waiving any defense of venue, personal jurisdiction, and jury trial.
Customer shall not delegate any duties or assign any rights or claims under these Terms and Conditions without HERMA's prior written consent, and any such attempted delegation or assignment shall be void.
16. COMPLIANCE WITH LAWS
These Terms and Conditions and all Product(s) purchased hereunder are subject to all laws, regulations, orders or other restrictions that may now or hereafter be imposed by the government of the United States or any agency thereof, including but not limited to all regulations relating to the sale, export, re-export or redistribution of equipment.
(a) If any of the provisions of these Terms and Conditions are found invalid or unenforceable under any applicable statute or rule of law, such provisions are, to that extent, deemed omitted, but these Terms and Conditions and the remainder of its provisions shall otherwise remain in effect.
(b) No provision of these Terms and Conditions shall be deemed waived, amended or modified by either Party, unless such waiver, amendment or modification is in writing and signed by the Parties.
(c) The waiver of one default under these Terms and Conditions shall not be deemed a waiver of subsequent or similar defaults.
(d) Each order under these Terms and Conditions shall be treated as a separate contract and default by either Party arising out of a particular order shall not constitute or be deemed to constitute a default of any other order or these Terms and Conditions itself.
THESE TERMS AND CONDITIONS SHALL SUPERSEDE AND TAKE PRECEDENCE OVER ALL PROPOSALS, CUSTOMER PURCHASE ORDERS OR ANY OTHER WRITTEN OR ORAL COMMUNICATIONS BETWEEN THE PARTIES, EXCEPT AS OTHERWISE PROVIDED HEREIN. RECEIPT BY THE CUSTOMER OF PRODUCT(S) HEREUNDER SHALL BE DEEMED CONCLUSIVE EVIDENCE OF CUSTOMER’S AGREEMENT THAT THE PURCHASE, USE AND POSSESSION OF PRODUCT(S) IS GOVERNED EXCLUSIVELY BY THESE TERMS AND CONDITIONS.