General Terms and Conditions (GTC)
of HERMA GmbH

1.1. These General Terms and Conditions of Sale (hereinafter: “GTC”) of HERMA GmbH (hereinafter: “HERMA”) apply exclusively to deliveries and services in the “Labeling Machines” business unit and only to business entities, legal entities under public law, or special funds under public law within the meaning of Section 310(1) of the German Civil Code (BGB). The customer’s terms and conditions shall not apply; HERMA hereby objects in advance to any subsequent introduction thereof. 

1.2. These GTC also apply to all future transactions between the parties, even if they are not resubmitted for all subsequent transactions.

2.1. HERMA offers labelers and labeling machines in two versions, as well as components, spare parts, and format sets for these machines: 

2.1.1 configured machines based on standard components according to customer-specific configuration as a contract for work and materials, 

2.1.2 custom-designed and manufactured machines under a contract for work and services, 

2.1.3 components, spare parts, and format sets for the offered labeling machines as a sales contract. 

2.2. The details, in particular the scope of services, the technical specifications, and, if applicable, project-related ancillary services (e.g., installation, commissioning, training, maintenance), are set forth in HERMA’s order confirmation. HERMA is entitled to subsequently replace individual components with others that are equivalent in functionality and quality, provided that this does not result in any significant disadvantages for the customer. HERMA shall inform the customer of this immediately. This shall not entail any additional costs for the customer.

3.1. The proposals submitted by HERMA at the customer’s request are subject to change and non-binding. The customer’s order shall be deemed a binding offer to enter into a contract. If an order deviates from the proposal, HERMA shall submit a new non-binding proposal. Unless otherwise specified in the order, HERMA is entitled to accept the order within twenty (20) business days of its receipt by HERMA. A contract is concluded upon acceptance in writing (order confirmation). Individual parameters of the agreement may still be agreed upon by the parties subsequently, at least in writing. 

3.2. The specifications of the machines are set forth in the bill of quantities established by HERMA in the order confirmation. 

3.3. Requests by the customer for changes or additions shall be deemed a new offer and require acceptance by HERMA. 

3.4. Silence on the part of HERMA regarding the order does not constitute acceptance. At the same time, the order is deemed not accepted if the customer does not receive a declaration of acceptance within the period of twenty (20) business days. 

3.5. All agreements made at the time the contract is concluded are set forth in full in HERMA’s order confirmation, including the scope of services and these General Terms and Conditions, at least in writing. There are no verbal side agreements concerning the conclusion of the contract or its content.

3.6. Any amendments or additions to the agreements made must be in text form to be effective (Section 126b of the German Civil Code (BGB)).

4.1. The prices and terms of payment are set forth in the respective underlying order confirmation from HERMA. 

4.2. Unless otherwise agreed in writing in individual cases, HERMA’s prices are FCA, Incoterms 2020, plus any packaging costs. Any freight, shipping, and insurance costs (in particular transport insurance), customs duties, and taxes are not included in the stated prices but will be invoiced separately. Statutory sales tax is also not included in HERMA’s prices. This will be shown separately on the invoice at the statutory rate on the date of invoicing, if applicable. 

4.3. Unless otherwise agreed in individual cases, payments are due net cash and within thirty (30) calendar days of the invoice date. After the due date, HERMA charges default interest in accordance with Section 288(2) of the German Civil Code (BGB) and is entitled to claim a flat-rate default fee of EUR 40.00 in accordance with Section 288(5) of the German Civil Code (BGB). The right to claim further damages resulting from default is expressly reserved. 

4.4. If the customer fails to meet payment obligations or if, after conclusion of the contract, HERMA becomes aware of circumstances that are likely to significantly impair the customer’s creditworthiness and if this jeopardizes the payment of HERMA’s outstanding claims, HERMA is entitled – subject to further claims – to declare all outstanding claims immediately due, to demand security therefor, and/or to withdraw from the current contract with the customer as well as from other contracts already concluded with the customer, and to make future deliveries contingent upon advance payment. 

4.5. If, after the conclusion of the contract, the cost factors relevant to pricing – in particular for raw materials, energy, or logistics-related costs – change by more than 5% compared to the level at the time of contract conclusion, each party is entitled to demand a reasonable price adjustment.

5.1. The customer is entitled to set off claims only to the extent that their counterclaims are undisputed or have been legally established. 

5.2. The customer is only entitled to assert rights of retention based on counterclaims arising from the same contractual relationship. 

5.3. The customer is free to assert excluded claims in court.

6.1. Unless otherwise agreed in individual cases, delivery is ex works (FCA Incoterms 2020). Any deviating delivery terms require the express confirmation of HERMA. The transfer of risk is governed by the respective agreed Incoterms clause. Partial deliveries are permitted provided they are reasonable for the customer. In the case of exports, the customer is responsible for compliance with all relevant export, customs, and foreign exchange regulations, unless expressly agreed otherwise. 

6.2. HERMA’s fulfillment of its delivery obligation is contingent upon the timely and proper performance of any obligations on the part of the customer under the contract. HERMA reserves the right to raise the defense of non-performance of the contract (§ 320 BGB) and the defense of uncertainty (§ 321 BGB). 

6.3. In the event of a delay in acceptance or any other culpable breach of the customer’s obligations to cooperate, HERMA is entitled to demand compensation for the resulting damage, including any additional expenses. Further claims remain reserved. In this case, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time of default in acceptance or other breach of obligations to cooperate. 

6.4. Any delivery deadlines are agreed upon individually and are only binding if the respective delivery deadline is confirmed by HERMA in writing and is expressly designated as binding. Without such confirmation, any delivery dates provided are non-binding.

6.5. All delivery times specified by HERMA do not begin until the customer receives the order confirmation. Binding delivery times are deemed to have been met if HERMA fulfills its respective delivery obligation in accordance with the agreed delivery terms by the time they expire. 

6.6. The occurrence of a delay in delivery by HERMA is determined in accordance with statutory provisions. In all cases (for both binding and nonbinding delivery periods), a reminder from the customer is required for a delay to be deemed to have occurred. In the case of a non-binding delivery period, a reminder from the customer is required within two (2) weeks after this non-binding delivery period has been exceeded. If HERMA is in default, the customer must grant HERMA a reasonable grace period of four (4) weeks for delivery; after this period has expired without result, the customer may withdraw from the purchase contract. 

6.7. A grace period of thirty (30) calendar days applies to specified delivery dates. Within this grace period, exceeding the deadline alone does not constitute default. A grace period of thirty (30) days applies to components, spare parts, and format sets. The grace period begins on the day following the binding delivery date. If the last day of the grace period or the following day falls on a Saturday, Sunday, or public holiday, the grace period ends at the close of the next business day. The grace period applies only to the period during which the delivery date is exceeded, but not to other delays in performance or defects in performance. The customer’s rights under statutory provisions and these General Terms and Conditions, in particular in the event of non-performance or impossibility of performance, remain unaffected by the grace period. The grace period does not apply if the delay is due to intent or gross negligence on the part of HERMA. 

6.8. If HERMA is in default of delivery due to slight negligence, its liability for damages resulting from the delay (compensation in addition to performance) is limited to 5% of the net contract price of the goods delivered late, provided that HERMA reserves the right to prove that the customer has not incurred any damage at all. Liability for injury to life, limb, or health remains unaffected. 

6.9. If delivery of the goods is delayed at the customer’s request, HERMA shall charge the customer – beginning two (2) weeks after notification of the planned delivery date – for the additional costs incurred due to storage until the time of actual delivery. HERMA is further entitled, after setting and the expiration of a reasonable grace period and following appropriate advance notice, to dispose of the affected goods otherwise and to supply the customer within a reasonably extended grace period. HERMA will notify the customer of this grace period without delay.

7.1. In cases of force majeure resulting in a failure to perform for at least 14 calendar days, and in the event of non-delivery, defective delivery, or delayed delivery by suppliers for which HERMA is not responsible provided that HERMA has secured sufficient supplies, HERMA will notify its customers in writing in a timely manner. In such cases, HERMA is entitled to postpone the delivery or service for the duration of the hindrance or to withdraw from the contract in whole or in part with respect to the unfulfilled portion, provided that HERMA has fulfilled its aforementioned duty to inform and has not expressly assumed the procurement risk pursuant to Section 276 of the German Civil Code (BGB) or a delivery or performance guarantee. The following are deemed equivalent to force majeure: strikes, lockouts, government intervention, shortages of energy and raw materials, transport bottlenecks or obstacles for which HERMA is not at fault, operational disruptions for which HERMA is not at fault – e.g., due to fire, water damage, or machinery damage – and all other disruptions that, viewed objectively, were not culpably caused by HERMA. 

7.2. If a delivery and/or service date or a delivery and/or service period has been bindingly agreed upon and the agreed-upon delivery date or delivery period is exceeded due to events described in paragraph 1, the customer is entitled to withdraw from the contract regarding the unfulfilled portion after a reasonable grace period has elapsed without result. Further claims by the customer, in particular those for damages and reimbursement of expenses, are excluded in this case. 

7.3. The above provision pursuant to paragraph 2 applies mutatis mutandis if, for the reasons stated in paragraph 1, it is objectively unreasonable for the customer to continue to adhere to the contract even without a contractual agreement on a fixed delivery date.

The customer must provide all necessary cooperation in a timely manner for the manufacture, delivery, setup, assembly, commissioning, acceptance, and training, and must in particular ensure that the technical, structural, and organizational requirements at the installation site are met (e.g., foundation, utility connections, climate, power supply, accessibility, safety). The customer must inform HERMA in a timely manner of any special circumstances affecting the project and provide test materials, labels, carrier materials, and test products in sufficient quantity and quality. If the performance of services is delayed or impeded due to insufficient cooperation, deadlines shall be extended accordingly. Any resulting additional costs shall be borne by the customer.

To the extent expressly agreed in individual cases, HERMA shall perform installation and commissioning at the site of use under the contractually stipulated terms. The customer shall provide suitable personnel for instruction and test runs. Training services shall be agreed upon and remunerated separately, unless they are expressly included in the agreed prices in individual cases.

For the manufactured machines, an acceptance inspection is conducted after commissioning based on the agreed acceptance criteria. HERMA notifies the customer of readiness for acceptance and proposes an acceptance date. Minor defects do not entitle the customer to refuse acceptance. They must be noted in the acceptance report and will be remedied under the warranty. If the customer does not respond to the request for acceptance within five (5) business days or if the customer puts the machine into operation without reservation, acceptance shall be deemed to have taken place. Any final installment agreed upon in individual cases shall become due.

11.1. In the event of a breach of contractual obligations, the customer is entitled to the statutory rights against HERMA in accordance with the following provisions. 

11.2. The relevant quality of the goods is determined exclusively by the specifications set forth in the respective individual contracts. Unless otherwise expressly agreed in writing – neither as a representation of characteristics nor as an assumption of a guarantee of quality or durability.

11.3. There is no warranty claim for wear parts.

11.4. The warranty is void in the event of improper installation, commissioning, operation, maintenance, or modification of the machine by the customer or third parties, the use of unsuitable operating materials, natural wear and tear, or failure to follow operating and maintenance instructions. 

11.5. In the event of a justified and timely notice of defects, the customer is entitled to subsequent performance during the warranty period. HERMA has the right to choose the type of subsequent performance – either rectification of the defect or delivery of a defect-free item. HERMA is entitled to make a second attempt at subsequent performance, provided this is reasonable for the customer. If the second attempt at subsequent performance also fails or if further attempts at subsequent performance are unreasonable for the customer, the customer is entitled to reduce the purchase price or withdraw from the contract. 

11.6. The customer may assert claims for damages due to a defect in accordance with Section 13 of these GTC only if the subsequent performance has failed or HERMA has refused to provide subsequent performance. The customer’s right to assert further claims for damages in accordance with Section 13 of these GTC remains unaffected. 

11.7. Claims for defects against HERMA are available only to the customer and are non-transferable. 

11.8. The statute of limitations for claims for defects is one year from the transfer of risk. This does not apply in cases covered by Sections 478 and 445b of the German Civil Code (BGB) (supplier recourse), in cases of injury to life, limb, or health, in cases of intentional or grossly negligent breach of duty by HERMA, or in cases of fraudulent concealment of a defect.

Maintenance, inspections, repairs, and spare parts deliveries must be agreed upon and paid for separately, unless expressly included in the agreed terms and conditions. A separate warranty period applies to spare parts, commencing upon delivery. Response and restoration times apply only if expressly agreed upon (e.g., in Service Level Agreements).

13.1. Unless otherwise provided in these General Terms and Conditions, including the following provisions, HERMA shall be liable for any breach of contractual and/or statutory obligations in accordance with the applicable statutory provisions.

13.2. HERMA shall be liable for damages – regardless of the legal basis - subject to the provisions below, only in cases of intent or gross negligence, as well as for the culpable breach of material contractual obligations. In the event of a breach of a material contractual obligation due to simple negligence, the amount of damages shall be limited to the foreseeable damage typically occurring in such a contract. An essential contractual obligation is an obligation whose fulfillment is essential for the proper performance of the agreement or on whose compliance the customer has relied and was entitled to rely. 

13.3. Liability in the event of injury to life, limb, or health, as well as mandatory provisions of the Product Liability Act, remains unaffected by the above limitations of liability. 

13.4. Any further liability for damages is excluded, regardless of the legal nature of the claim asserted.

13.5. Section 6 of these General Terms and Conditions applies to liability for damages resulting from delay.

13.6. The above liability provisions apply mutatis mutandis if the customer demands reimbursement of futile expenses in lieu of performance instead of a claim for damages. 

13.7. To the extent that HERMA’s liability is excluded or limited, this also applies to the personal liability of its employees, workers, staff, representatives, and vicarious agents.

14.1. HERMA retains title to all goods delivered by it (“goods subject to retention of title”) until all claims arising from the business relationship with the customer, including future claims arising from contracts concluded at a later date, have been settled in full. The same applies to a balance in favor of HERMA, provided that individual or all of HERMA’s claims have been included in a current account (overdraft account) and the balance has been calculated. To the extent permitted under the law of the country in whose jurisdiction the goods are located in accordance with the contract, this retention of title applies. If this law does not permit retention of title to the delivered goods but does permit the reservation of similar rights, HERMA is entitled to assert such rights. The customer undertakes to support all measures to protect the ownership or security interests in the delivered goods. 

14.2. The customer must insure the goods subject to retention of title in accordance with their current replacement value, in particular against fire and theft, and must take out natural hazard insurance that specifically covers water and storm damage. Claims against the insurance company arising from a loss event affecting the goods subject to retention of title are hereby assigned to HERMA in the amount of the value of the goods subject to retention of title. HERMA accepts the assignment.

14.3. The customer is entitled to resell the delivered goods in the ordinary course of business. Other dispositions, in particular pledging or granting security interest, are not permitted. If the goods subject to retention of title are not paid for immediately by the third-party purchaser upon resale, the customer is obligated to resell only under extended retention of title, i.e., against assignment of the purchase price to the purchaser. The right to resell the goods subject to retention of title shall lapse automatically if the customer suspends payments or falls into default of payment to HERMA. 

14.4. The customer hereby assigns to HERMA all claims, including security interests and ancillary rights, arising for the customer from or in connection with the resale of goods subject to retention of title against the end purchaser or against third parties. The customer may not enter into any agreement with its customers that in any way excludes or impairs HERMA’s rights or renders the advance assignment ineffective. In the event of the sale of goods subject to retention of title together with other items, the claim against the third-party purchaser in the amount of the net delivery price agreed between HERMA and the customer shall be deemed assigned, provided that the amounts attributable to the individual goods cannot be determined from the invoice. 

14.5. The customer remains authorized to collect the claim assigned to HERMA until such time as HERMA revokes this authorization, which it may do at any time. However, HERMA undertakes to revoke the collection authorization if it has a legitimate interest in doing so. Such a legitimate interest exists, for example, if the customer fails to properly fulfill its payment obligations or falls into default. At HERMA’s request, the customer is obligated to provide HERMA with all information and documents necessary for the collection of assigned claims and, unless HERMA does so itself, to immediately notify its customers of the assignment to HERMA. 

14.6. If the customer includes claims arising from the resale of goods subject to retention of title in a current account relationship with its customers, he hereby assigns to HERMA any recognized closing balance in his favor in the amount corresponding to the total amount of the claim arising from the resale of HERMA’s goods subject to retention of title that has been included in the current account relationship. HERMA accepts the assignment. 

14.7. If the customer has already assigned claims arising from the resale of goods delivered or to be delivered by HERMA to third parties, in particular due to true factoring (purchase of receivables in which the factor assumes the del credere function) or false factoring (purchase of receivables as a credit transaction, whereby the risk of non-recovery remains with the seller of the receivables), or has entered into any other agreement that could impair HERMA’s current or future security interests pursuant to Section 14, the customer must notify HERMA thereof immediately. In the case of non-recourse factoring, HERMA is entitled to withdraw from the contract and demand the return of goods already delivered. The same applies in the case of recourse factoring if, under the contract with the factor, the customer cannot freely dispose of the purchase price of the receivable. 

14.8. In the event of a breach of contract attributable to the customer, in particular in the event of default in payment, HERMA is entitled to take back all goods subject to retention of title after withdrawing from the contract. In this case, the customer is automatically obligated to surrender the goods and shall bear the transportation costs required for the return. The return of the goods subject to retention of title by HERMA constitutes a withdrawal from the contract. Upon withdrawal, HERMA is entitled to dispose of the goods subject to retention of title. The proceeds from such disposal, less reasonable disposal costs, shall be offset against the claims that the customer owes HERMA arising from the business relationship. To verify the inventory of goods delivered by HERMA, HERMA may enter the customer’s business premises at any time during normal business hours. The customer must immediately notify HERMA in writing of any access by third parties to the goods subject to retention of title or to the claim assigned to HERMA. 

14.9. If the total value of the security interests existing in favor of HERMA pursuant to the foregoing provisions exceeds the secured claims by more than 10%, HERMA shall, at the customer’s request, be obligated to release security interests of its choice to that extent. 

14.10. Any processing or treatment of the goods subject to retention of title is carried out on behalf of HERMA as the manufacturer, without, however, imposing any obligation on HERMA. If the goods subject to retention of title are processed or inseparably combined with other items not belonging to HERMA, HERMA shall acquire co-ownership of the new item in the ratio of the net invoice amount of its goods to the net invoice amounts of the other processed or combined items. If HERMA’s goods subject to retention of title are combined with other movable items to form a single item that is to be regarded as the principal item, the customer hereby transfers to HERMA, in the aforementioned proportion, co-ownership thereof. The customer shall hold the ownership or co-ownership in trust for HERMA free of charge. The co-ownership rights arising hereunder shall be deemed to be goods subject to retention of title. At HERMA’s request, the customer is obligated at any time to provide HERMA with the information necessary to enforce its ownership or co-ownership rights.

To the extent that the machine is manufactured according to specifications, drawings, or samples provided by the customer, the customer warrants that this does not infringe any third-party rights. The customer indemnifies HERMA against all claims by third parties arising from such an infringement and reimburses HERMA for all expenses incurred as a result. HERMA reserves all ownership and copyrights to drawings, plans, software, documentation, and other materials. These may not be reproduced, made available to third parties, or used for purposes other than those specified in the contract without prior consent. For software supplied with the machine, the customer receives a simple, non-transferable right of use limited to the machine covered by the contract. Any further rights require a separate agreement.

Delivery of the goods by HERMA is subject to the condition that no national or international regulations under foreign trade, customs, or embargo law preclude such delivery. The customer undertakes to comply with relevant regulations and to provide HERMA, upon request, with all necessary information and documents for this purpose.

17.1. The German version shall be decisive for the content and interpretation of the contract as well as these GTC. The English translation of these GTC is provided for informational purposes only. In the event of any discrepancies between the German version and the English translation, the German version shall prevail in all cases. 

17.2. These GTC and the contractual relationship between HERMA and the customer are governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG). 

17.3. The exclusive - including international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is HERMA’s registered office in Filderstadt. However, HERMA is also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a prior individual agreement, or at the customer’s general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, remain unaffected. 

17.4. Should any provision of this agreement, including an offer or acceptance, be or become invalid or unenforceable, or should a loophole be identified, the remainder of this agreement shall nevertheless remain in full force and effect.