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General terms and conditions

(State March 2012)

Preamble

The General Terms of Sale (GTS) regulate the contractual relationship between HERION Systemtechnik GmbH (hereinafter referred to as "HERION"), Untere Talstr. 65, D-71263 Weil der Stadt and the Customer.

1. Subject Matter of the Contract

1.1. The subject matter and components of the contractual relationship between HERION and the Customer result from these GTS. The current GTS are available to the Customer under www.herion-systemtechnik.de.

1.2. The validity of deviating or conflicting terms and conditions of the Customer is excluded, unless HERION has expressly agreed in writing to the validity of the deviating conditions. The GTS also apply if HERION, knowing of conflicting or deviating terms and conditions of the Customer, delivers without reservation.

1.3. Any agreement between HERION and the Customer relating to the purposes of implementation of this contract must be in writing.

2. Contract Documents

HERION retains ownership rights and copyright to illustrations, drawings, calculations and other documents ("contract documents"). The Customer is not permitted to allow third parties access to contract documents without the prior consent of HERION. Sec. 7 applies additionally.

3. Prices - Terms of Payment

3.1. Subject to a separate agreement with the Customer the prices in accordance with the HERION price list shall apply. The prices are quoted ex works, excluding packaging and prior to the statutory turnover tax applicable at the time.

3.2. Any cash-discount is subject to written agreement of the Parties.

3.3. Unless agreed in the confirmation of order, the net price (without deduction) is due for payment within 30 days from date of invoice.

3.4. Rights of offsetting and retention upon the part of the Customer are excluded unless its claim is undisputed, acknowledged or legally established or based upon the same contractual.

4. Delivery Period

4.1. The beginning of the delivery period stipulated by HERION presumes the clarification of all open technical questions.

4.2. A timely delivery by HERION implies a timely and proper fulfilment of obligations by the Customer; the defence of non-performance under the agreement is reserved.

4.3. If the Customer is in default of acceptance or culpably violates other cooperation obligations, HERION shall be entitled to the damages thereby, including any additional charges to be replaced. Any further claims or rights remain unaffected.

4.4. If HERION is in default in delivery, the Customer's claims for damages shall be limited to compensation amounting up to 0,5 % of the value of the goods for each week completed during which HERION is in default and shall be limited to a maximum of 5 % of the value of the delivery. Clause 6 applies additionally.

5. Warranty - Inspection of Defects

5.1. Customer`s warranty claims presume that the Customer has met his obligations concerning examination and notice of non-conformity as per Para. 377 HGB (German Commercial Code) properly.

5.2. Insofar as the purchased object does have a defect, we shall, as we see fit, be entitled to render subsequent fulfilment either by rectifying the defect or by supplying a new defect-free item. In the event of correction of the defect or of substitute delivery HERION is obliged to bear all of the necessary expenses required for such subsequent performance, in particular transport costs, route costs, work costs and material costs, provided these do not increase as a result of costs associated with transferring the goods for sale to another location than that of the place of performance.

5.3. If the subsequent fulfillment fails, the Customer can require cancellation of the contract (resignation) or reduction of the reimbursement (decrease) at his choice.

5.4. Claims of the Customer to restitution of consequential damage or reimbursement of lost expenses are subject to Sec. 6 only and otherwise excluded.

5.5. The period of limitation is 12 months, beginning with the transfer of risk. This does not apply if the purchase item is normally used for a structure and caused the defect.

6. Liability

6.1. HERION is liable in accordance with the statutory regulations if the Customer enforces claims for compensation originating from negligent or grossly negligently acts on the part of HERION or its representatives or agents. If the breach of contract is not caused by intent of HERION, liability for damages shall be limited in its amount to the foreseeable, typically occurring damage.

6.2. Furthermore, HERION is liable according to the statutory regulations insofar as material contractual obligations are violated. A material contractual obligation shall be deemed to exist if it is an obligation whose fulfilment only makes possible the proper performance of the contract and on whose observance the Customer may rely on. Insofar liability for damages shall be limited in its amount to the foreseeable, typically occurring damage.

6.3. The amount of the foreseeable, typically occurring damage in the sense of Sec. 6.1 and 6.2 is capped to the total sum of EUR 1 million.

6.4. The liability for a culpable injury of life, body or health remains unaffected. This also applies to the mandatory liability in accordance with product liability law.

6.5. A liability further and beyond this Sec. 6 is excluded, regardless of the legal nature of the claims raised. This applies in particular for damage claims from indebtedness upon conclusion of contract because of special breaches of duty (particularly the breach of collateral duties) or because of tort claims to compensation for property damage in accordance with section § 823 of BGB [German Civil Code].

6.6. The restriction of liability as defined in Sec. 6.4 shall also be applicable if the Customers claims for compensation of useless expenses instead of damage.

6.7. To the extent that compensation liability is excluded or restricted for HERION, this also applies to the personal compensation liability of members of staff, employees, workers and representatives of HERION.

7. Industrial Property Rights

7.1. If not otherwise agreed upon, HERION shall be obliged to render the delivery free of any industrial property rights and copyrights of third parties (hereinafter called: property rights) solely in the country of destination. To the extent a third party makes justified claims against the Customer because of infringement of property rights by deliveries rendered by HERION and used according to contract, HERION shall be liable to the Customer within the time-limit stipulated in Sec. 5 as follows:

7.1.1. HERION shall at their expense and discretion obtain a right of use for the deliveries concerned, modify them such that the property right is not infringed or exchange them. Should HERION not be able to do so under reasonable conditions, the Customer shall be entitled to the statutory right of rescission or reduction.

7.1.2. HERION's obligation to pay damages shall be subject to Sec. 6.

7.1.3. The above mentioned obligations of HERION shall only be given provided if the Customer immediately informs the HERION in writing about claims asserted by third parties, refuses to acknowledge an infringement, and all and any measures of protection and settlement proceedings remain reserved to the supplier. Should the Customer discontinue the use of the delivery goods for the purpose of reducing the damage or for other reasons, the Customer shall be obliged to inform the third party about the fact that the discontinuance of use does not represent an acknowledgement of the property rights infringement.

7.2. Claims of the Customer shall be excluded to the extent the Customer is responsible for the property rights infringement. Claims of the Customer shall furthermore be excluded to the extent the property rights infringement was caused by special standards stipulated by the Customer, by use not foreseeable by HERION or by the fact that the delivery goods were modified by the Customer or used in conjunction with products not delivered by HERION.

7.3. Claims of the Customer against HERION and/or its agents extending beyond the contents of point 7.1 due to legal shortcomings are excluded.

7.4. The period of limitation for legal shortcomings is 12 months, beginning as from the date of transfer of risk.

8. Retention of Ownership

8.1. HERION reserves the title in the delivery goods (reserve goods) until the Customer has made the complete payment due from the business relationship. The reservation of title shall also include the acknowledged balance, to the extent the supplier enters the claims against the Customer in current account (current account reserve).

8.2. The Customer is required to handle the purchase item with care. In particular he/she/it is obliged to adequately insure it, at his/her/its own cost, against damage from fire, water and theft, at new value. Should servicing and inspection work be required, this is to be undertaken by the Customer in good time at the Customer's own cost.

8.3. In the event of seizure or other encroachment by a third party, the Customer must notify HERION immediately in writing so that HERION can take legal action in accordance with section § 771 of ZPO [Code of Civil Procedure]. Should the third party prove unable to reimburse HERION for the court costs and out-of-court costs of such legal action, in accordance with section § 771 of ZPO, the Customer shall then be liable to HERION for the missing sum.

8.4. The Customer shall be entitled to resell the delivery goods in the proper course of business; however, the Customer already now assigns to HERION all and any claims in the amount of the final invoice amount, including value added tax, which are due to him from the resale against his purchaser or third parties, independent of the fact whether the delivery goods were resold without or after processing. The Customer shall be entitled to collect this claim also after its assignment. HERION`s power to collect the claim himself remains unaffected; HERION, however, agrees not to collect the claim as long as the Customer meets his payment obligations properly and is not delinquent. In this case, the supplier may request the Customer to disclose the assigned claims and their debtors, to provide the information required for collection, to provide the relevant documentation and to inform the debtor (third party) about the assignment.

8.5. The processing and transformation of the delivery goods by the Customer shall always be performed for HERION. If the delivery goods are processed together with other objects not belonging to HERION, HERION shall obtain co-ownership in the new object in the proportion of the value of the delivery goods to the other processed objects at the time of processing. Otherwise, the same provisions as for reserve goods shall apply to the matter created by processing.

8.6. If the delivery goods are mixed irreversibly with other objects not belonging to HERION, HERION shall obtain co-ownership in the new object in the proportion of the value of the delivery goods to the other mixed objects at the time of mixing. If the mixing is done such that the matter of the Customer is to be deemed a main component, the parties agree that the Customer shall assign to HERION proportional co-ownership. The Customer shall keep the sole property or co-property for the supplier.

8.7. The Customer shall also assign to HERION the claims for securing HERION's claims which are due to the Customer against a third party by joining the delivery goods with a real property.

8.8. If the realizable value of the securities due to HERION exceeds HERION's total claims by more than 10%, HERION shall be obliged to release in HERION's discretion securities on request of the Customer or a third party affected by the excessive security.

9. Non-Disclosure

9.1. The Customer must observe strict secrecy with respect to all illustrations, drawings, calculations and other documents and information ("information to be treated secretly") received from HERION in connection with the delivery. Third parties must not be given access to information to be treated secretly without the explicit consent of HERION.

9.2. The obligation to secrecy also applies after conclusion of the contract for a period of five years. It expires if and to the extent that the contents of the illustrations, drawings, calculations and other production know-how contained in the documents provided has become generally known.

10. Compliance

10.1. The Customer must observe all applicable laws and regulations geared to prevention of bribery and corruption, and to expert restrictions in connection with deliveries and/or the business operations of HERION. The Customer must notify HERION immediately about any violation of the above-mentioned regulations by members of its organization, senior employees, workers or representatives, or by others acting on its behalf.

10.2. HERION refers the Customer to its code of conduct on responsible and ethical company management, the "IMI Way". The IMI Way is available to the Customer under www.HERION.de. Regardless of the concrete deliveries or the business relationship to HERION, the Customer must ensure that the members of his/her/its organization, senior employees, workers and representatives correspondingly behave in ethical conformity with the relevant IMI Way regulations.

10.3. If the Customer violates the obligations contained under point 10.1 and/or 10.2, HERION is entitled to withdraw from the contract.

11. Other Provisions

11.1. The Customer can only transfer the rights and obligations associated with this contract to a third party after obtaining the prior written consent of HERION.

11.2. The place of jurisdiction is the place of the registered address of HERION. HERION is nevertheless also entitled to initiate court proceedings against the Customer in the court of jurisdiction at his/her/its place of residence.

11.3. German law applies to the contractual relationship of contract partners, to the exclusion of the UN purchase law.

11.4. Should individual provisions of these GTS prove to be invalid, whether at present or at some future date, this will not affect the validity of the remaining provisions.

 

State March 2012

 

 

General Purchase Conditions(HERION Systemtechnik GmbH)

(Date: March 2012)

 

Preamble

The General Purchase Conditions (GPC) regulate the contractual relationship between HERION Systemtechnik GmbH (hereinafter referred to as "HERION"), Untere Talstr. 65, D-71263 Weil der Stadt and the Supplier.

1. Subject of the Contract

1.1. The subject matter and components of the contractual relationship between HERION and the Customer result from these GTS and the Special Terms ("ST"). The current TS are available to the Customer under http://www.herion-systemtechnik.de

1.2. The validity of deviating or conflicting terms and conditions of the Supplier is excluded, unless HERION has expressly agreed in writing to the validity of the deviating conditions. The GTS and ST also apply if HERION, knowing of conflicting or deviating terms and conditions of the Customer, accepts a delivery from without reservation.

1.3. Any agreement between HERION and the Supplier relating to the purposes of implementation of this contract must be in writing.

2. Conclusion of Contract / Contractual Documents

2.1. The Supplier must accept HERION`s order within 2 weeks of receipt of the order; actual provision of services shall be also be deemed as performed acceptance.

2.2. HERION retains ownership rights and copyright to illustrations, drawings, calculations and other documents ("contract documents"). The Supplier is not permitted to allow third parties access to contract documents without the prior consent of HERION. These are to be used exclusively for production based on orders from HERION. After processing of the order the Customer must return the contract documents to HERION or destroy them and shall confirm proper destruction in writing. Sec. 7 applies additionally.

3. Price - Payment - Delivery Note

3.1. The prices specified in the order are binding. Unless otherwise agreed, prices are including delivery ex works to the location specified in the order (DDP, 2010) and packaging.

3.2. All invoices shall be send in single copy to the plant specified in the order. They must contain a supplier's number, number and date of the order (or completion of purchase and delivery instruction), additional supplier's data (accounts), sales tax identification number in the case of cross-border deliveries within the European Community, off-loading point, number and date of the delivery note and the quantity of the calculated goods. The invoice should be made out for one delivery note only.

3.3. Unless otherwise agreed in writing, payment will be made by HERION within 14 days of the delivery and receipt of the invoice with a 3% discount or within 60 days of receipt of the invoice.

3.4. Due date of payment is solely based on the agreed delivery date; insofar early deliveries remains unaffected.

4. Delivery Schedule

4.1. The delivery schedule specified in the order is binding.

4.2. Decisive for the observance of the delivery date or the delivery period is the receipt of the goods at the delivery address/factory of HERION. If the goods are not to be delivered "Free Works" (DDU), the Supplier shall make the goods available in time taking into account the usual time for loading and forwarding.

4.3. The supplier must immediately notify HERION of any circumstances and their impact which may delay the delivery of the goods.

4.4. In case of delayed delivery, HERION is entitled to assert legal claims; without prejudice to any further claims or rights HERION we shall be entitled to demand a contractual penalty to the amount of 0.5% of the delivery value for each completed week, although not exceeding 5% of the delivery value.

5. Quality - Warranty - Inspection for Defects

5.1. The Supplier shall warrant that his deliveries comply with the state of the art, safety standards and any agreed technical specification. Changes to the subject of delivery require the prior written approval of HERION. ST-Quality Assurance Measures applies to the Supplier`s obligation for quality control in respect to initial sample release.

5.2. HERION the customer shall be entitled to make the statutory claims for defects without limitation; in particular HERION is entitled to choose between rectifying the fault and supplying a new, defect-free delivery.

5.3. The period of warranty shall be 36 months from delivery.

6. Liability - Insurance

6.1. The Supplier shall be liable in accordance with the statutory regulations.

6.2. If the Supplier is responsible for a problem that gives rise to a product liability claim, the Supplier must on request exempt the Customer from any claims for compensation by third parties, to the extent that the Supplier himself is liable in relation to third parties.

6.3. Within the scope of his liability for claims for damages in terms of Sec. 6.2, the Supplier shall also undertake to reimburse any expenses in acc. with Art. 830, 840, 426 BGB (German Civil Code) which are incurred as a result of or in connection with recall measures initiated by HERION. As far as reasonable HERION will inform the Supplier on the scale and content of such product return and give him an opportunity to comment. Any other statutory claims shall remain unaffected.

6.4. The Supplier shall maintain products liability insurance with a blanket coverage of Euro 10 Million € per damage to person/property and to provide written proof thereof on HERION` request. The existence of a products liability shall not affect any comprehensive claims for damages of HERION.

7. Industrial Property Rights

7.1. The Supplier guarantees that all deliveries are free of rights of third parties and intellectual property rights of third parties are not infringed by his supply.

7.2. The Supplier shall indemnify HERION on first demand from all third party claims for infringement of intellectual property. This indemnification shall cover any costs incurred out of necessity by HERION as a result of or in connection with claims made by a third party.

7.3. The limitation period for legal defects (Sec. 7.1) shall be 36 months, beginning with the transfer risk.

8. Provision - Tools

8.1. HERION retains ownership of all parts, provided by HERION to the Supplier ("Retained Goods"). Processing or alteration of Retained Goods by the Supplier shall always be carried out for HERION.

8.1.1. If Retained Goods are processed with other goods not belonging to HERION then HERION shall become a co-owner of the new property in the ratio of the value of the conditional materials(purchase price not incl. sales tax) to the other processed goods at the time of processing.

8.1.2. If Retained Goods inseparably combined or mixed with with other goods not belonging to HERION then HERION shall become a co-owner of the new property in the ratio of the value of the conditional materials(purchase price not incl. sales tax) to the other combined or mixed goods at the time of processing. If this mixing is performed in such a manner that the goods of the Supplier is to be regarded as the principal good, then it is deemed agreed that the Supplier transfers to HERION a prorate co-ownership.

8.2. If HERION provides tooling t o the Supplier, HERION retains ownership of the said tooling; insofar the Supplier shall

  • use the tooling for the manufacture of the goods ordered by HERION only
  • insure the tooling at his own cost against fire, water and theft at replacement value.; the Supplier hereby assigns all claims from this insurance to HERION.
  • carry out all service and inspection work required for tools as well as any maintenance and repair work at his own cost
  • notify any instances of defects caused by tooling; should he culpably omit to do this, claims for damages remain unaffected.

9. Confidentiality

9.1. The Supplier shall treat with strict confidentiality all diagrams, drawings, calculations and other documents and information received from HERION (Confidential Information). Confidential Information shall not be provided to third parties without written consent of HERION.

9.2. This Confidentiality obligations shall remain in effect for 5 years as from conclusion of contract ; they shall be become void when and if the knowledge contained in the diagrams, drawings, calculations and other documents is in the public domain.

10. Compliance

10.1. The Supplier is hereby required to observe all applicable laws or directives concerning the prevention of bribery and corruption in connection with deliveries and/or the business of HERION. The Supplier shall immediately inform HERION about any infringement of the mentioned regulations by any of his board members, management staff, employees or representatives or any persons acting on his behalf.

10.2. HERION hereby refers the Supplier to his code of conduct to promote responsible and ethical business leadership, the IMI Way; the IMI Way is available to the supplier at www.HERION.ch. Irrespective of the actual delivery or business relationship to HERION, the supplier must ensure that his board members, managerial staff, employees or representatives conform ethically to the relevant regulations of the IMI Way.

10.3. In the event that the Supplier breaches his duties stated under Sec.10.1 and/or Sec. 10.2 then HERION reserves the right to withdraw from the contract.

11. Other Provisions

11.1. The Supplier may only assign his rights and obligations from this contract to a third with prior written consent of HERION.

11.2. The place of jurisdiction for all and any disputes arising out of the present contract shall be the registered office of HERION; HERION however shall be entitled to file action at the Supplier`s general place of jurisdiction.

11.3. German law shall apply to the contractual relationships. The UN Convention on the International Sale of Goods (CISG) shall be excluded.

11.4. Should any individual provisions of the present contract be legally ineffective, the validity of the remaining provisions shall in no way be affected.

 

(Date: March 2012)

 

HERION Systemtechnik GmbH

 


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