General terms and conditions of purchase and sale of goods
I. Common conditions for the purchase and sale of goods
§ 1 Scope
These general terms and conditions for the purchase and sale of goods apply to all contracts between Hertz & Selck GmbH & Co. KG (hereinafter “Hertz & Selck”) and contractual partners regarding the sale and purchase of goods. They also apply to all future similar contracts as a framework agreement, regardless of whether their validity was expressly stated in the follow-up contract. Differing or supplementary contractual terms and conditions of the contractual partner will only become part of the contract if Hertz & Selck expressly agrees to their validity in writing.
§ 2 Content of the contract
Individual contractual agreements and legally relevant declarations of intent (e.g. setting a deadline, reminder, withdrawal) must be in text form.
Property rights and copyrights exist in samples, product specifications, recipes and similar information sent by Hertz & Selck. Such documents must be used exclusively for the contractual service and must be returned after completion of the contract. The documents must be kept secret from third parties, even after the contract has ended. The confidentiality obligation only expires if and to the extent that the knowledge contained in the documents provided has become generally known or written consent has been given. At the request of Hertz & Selck, a separate confidentiality agreement will be concluded in this regard.
§ 3 Place of performance, place of jurisdiction, applicable law
The exclusive place of jurisdiction for disputes arising from contracts concluded with Hertz & Selck is Hamburg. However, Hertz & Selck is entitled to sue contractual partners at their general or another legal place of jurisdiction.
The contract is subject to German substantive law. The application of the uniform UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
The place of performance for all contractual obligations is the headquarters of Hertz & Selck.
§ 4 Relationship of the English translation to the original German version
If there is an inconsistency or an interpretation problem in the English translation compared to the original German version, the original German version is authoritative.
II. General conditions for purchasing goods
§ 5 Delivery
An order from Hertz & Selck is binding if it is not objected to in text form within one week.
The supplier is obliged to notify Hertz & Selck immediately if an agreed delivery time is unlikely to be met.
If the supplier is in default, Hertz & Selck can, in addition to legal claims, demand flat-rate compensation for the damage caused by the delay in the amount of 0.25 % of the net price per completed calendar day, but in total not more than 5 % of the net price of the goods delivered late. Hertz & Selck reserves the right to prove that greater damage has occurred; the supplier can provide counter-evidence that no or lesser damage has occurred.
Hertz & Selck is not obliged to accept partial deliveries and partial services.
§ 6 Payment, further processing
The remuneration stated in the order is binding and includes statutory sales tax if this is not stated separately. The remuneration includes all services provided by the supplier as well as all additional and transport costs.
The agreed remuneration is due for payment within 30 calendar days of complete delivery and service and receipt of a proper invoice. If Hertz & Selck pays within 14 calendar days, the remuneration is reduced by 3 % discount. A bank transfer is deemed timely if Hertz & Selck's transfer order is received by Hertz & Selck's account-holding bank before the payment deadline has expired. Hertz & Selck is not responsible for delays caused by the banks involved in the payment process.
Hertz & Selck does not pay interest on maturity.
Hertz & Selck is entitled to withhold payments due as long as claims against the supplier still exist. The supplier only has a right of offsetting or retention due to legally established or undisputed counterclaims.
The transfer of ownership of the goods to Hertz & Selck takes place unconditionally and without regard to payment of the price. A simple and/or extended retention of title by the supplier is excluded. However, if Hertz & Selck accepts an offer from the seller for transfer of ownership that is conditional on payment of the purchase price in an individual case, the seller's retention of title expires at the latest upon payment of the purchase price for the delivered goods. Even before payment of the remuneration, Hertz & Selck is authorized to resell the goods in the ordinary course of business. If the delivered goods are further processed, Hertz & Selck is the manufacturer and acquires ownership of the product in accordance with legal regulations.
§ 7 Transfer of risk, shipping, packaging
The supplier is not entitled to have the service owed by him provided by third parties without the prior consent of Hertz & Selck.
The supplier bears the procurement risk for his services unless otherwise agreed in individual cases.
Delivery within Germany takes place “free of charge” to the location specified in the order. If the destination is not specified and nothing else has been agreed, delivery must be made to Hertz & Selck's registered office in Hamburg (Tarpenring 23, 22419 Hamburg). The respective destination is also the place of fulfillment for any subsequent fulfillment.
The delivery must be accompanied by a delivery note stating the date (issue and dispatch), content of the delivery and the order identification from Hertz & Selck (date and number). If the delivery note is missing or incomplete, Hertz & Selck is not responsible for any resulting delays in processing and payment. Separate from the delivery note, a corresponding shipping notice with the same content must be sent to Hertz & Selck by email or fax.
The risk of accidental loss and accidental deterioration of the item only passes to Hertz & Selck upon handover at the place of performance.
§ 8 Warranty
Contrary to Section 442 Paragraph 1 Sentence 2 of the German Civil Code (BGB), Hertz & Selck is entitled to unrestricted warranty claims even if the defect remained unknown at the time the contract was concluded due to gross negligence. For Hertz & Selck, the commercial obligation to inspect and give notice of defects (§§ 377, 381 HGB) is limited to defects that become apparent during an incoming goods inspection under external inspection, including the delivery documents, or which are evident during quality control in a sampling procedure. What is also important is the extent to which an investigation is feasible in the normal course of business, taking into account the circumstances of the individual case. The obligation to report defects discovered later remains unaffected. Without prejudice to the obligation to inspect, a complaint is deemed to have been made immediately and in a timely manner if it is sent within ten working days of discovery and, in the case of obvious defects, of delivery. The dispatch of the complaint by Hertz & Selck is decisive. If the supplier does not fulfill its obligation to provide supplementary performance, at Hertz & Selck's discretion, by eliminating the defect or by delivering a defect-free item within a reasonable period of time set by Hertz & Selck, Hertz & Selck can remedy the defect itself and demand replacement from the supplier the necessary expenses or a corresponding advance payment. If subsequent fulfillment by the supplier has failed or is unreasonable for Hertz & Selck, no deadline is required. If the same goods are repeatedly delivered defectively, Hertz & Selck is entitled to withdraw from the contract after a reminder if the delivery is defective again, even for the unfulfilled scope of delivery.
§ 9 Supplier recourse
If a customer makes a claim against Hertz &S elck due to faulty delivery, the supplier must be notified of this and asked for a written statement explaining the facts. If a substantiated statement is not made within a reasonable period of time and no amicable solution is reached, the claim for defects actually granted by Hertz & Selck in relation to the supplier is decisive.
Hertz & Selck's claims from supplier recourse (§§ 445a and 445b BGB) also apply if the defective goods were further processed by Hertz & Selck or another entrepreneur.
§ 10 Producer liability
If the supplier is responsible for product damage, he must indemnify Hertz & Selck from all third-party claims if the cause lies within his area of control and organization and he himself is liable externally. As part of its indemnification obligation, the supplier must reimburse expenses in accordance with Sections 683 and 670 of the German Civil Code (BGB) that arise from or in connection with third-party claims, including recall campaigns carried out by Hertz & Selck. Hertz & Selck will consult the supplier as far as possible and reasonable about the content and scope of recall measures. Further legal claims remain unaffected. The supplier must take out and maintain product liability insurance with a flat-rate coverage of at least EUR 10 million per personal injury/property damage.
§ 11 Limitation
The limitation period for claims for defects is three years from the transfer of risk. The three-year limitation period also applies to claims arising from defects of title, whereby the statutory limitation period for third-party claims for restitution (Section 438 Paragraph 1 No. 1 BGB) remains unaffected; In addition, claims arising from defects of title do not become time-barred under any circumstances as long as the third party can still assert the right against Hertz & Selck, particularly in the absence of a statute of limitations. The limitation periods of the sales law, including the above extension, apply to the statutory extent for all contractual claims for defects. If Hertz & Selck is also entitled to non-contractual claims for damages due to a defect, the regular statutory limitation period applies, unless the application of the limitation periods of the sales law leads to a longer limitation period in individual cases.
§ 12 Compliance with minimum ethical standards
The supplier will not participate actively, passively or indirectly in any form of bribery or corruption, the violation of human rights or discrimination against its employees, forced labor or child labor. In this context, the supplier undertakes not to employ employees who are not at least 15 years old. In countries that fall under the exception for developing countries under ILO Convention 138, the minimum age may be reduced to 14 years. The supplier also undertakes to inform Hertz & Selck if there are indications that the aforementioned standards were not adhered to in the production chain of the goods. The supplier must take measures to obligate its own suppliers accordingly. A breach of the aforementioned obligations constitutes a serious breach of the business relationship and entitles Hertz & Selck to withdraw from the contract.
III. General conditions for the sale of goods
§ 13 Delivery date
Compliance with the agreed delivery date requires the prior fulfillment of all commercial and technical obligations incumbent on the customer (duty to cooperate). Delays in the customer's area will postpone the delivery date accordingly.
In the event of force majeure or operational disruptions occurring at Hertz & Selck and/or a supplier that prevent Hertz & Selck from delivering on the agreed date through no fault of their own, the agreed delivery times will be extended accordingly. If this results in a delivery delay of more than three months, Hertz & Selck and the customer can each withdraw from the contract by means of a written declaration. Other cancellation rights remain unaffected.
Compliance with the agreed delivery date is subject to complete and timely self-delivery.
Hertz & Selck is liable in the event of delay in accordance with the statutory provisions if the legal representative or a vicarious agent is guilty of intent or gross negligence. In all other cases of delay in performance, the customer's claims for damages for the period of delay are limited to 0.5 % per completed week, but a maximum of 20 % of the agreed purchase price, unless Hertz & Selck proves that the customer was not entitled to any or all damages significantly less damage occurred. Any liability beyond this for any delay in delivery for which Hertz & Selck is responsible is excluded.
If Hertz & Selck agrees to the complete or partial cancellation of the contract at the customer's request, 20 % of the purchase price of the delivery in question can be demanded as flat-rate compensation without further proof. However, the customer has the opportunity to prove that Hertz & Selck suffered either no damage at all or significantly lower damage as a result of the cancellation of the contract. The customer has no right to cancel the purchase contract.
If the customer defaults on acceptance, fails to cooperate or if the delivery of the goods is delayed for other reasons for which the customer is responsible, Hertz & Selck is entitled to demand compensation for the resulting damage, including additional expenses such as storage costs. A flat-rate compensation of 0.5 % of the agreed purchase price per calendar week, but a maximum of 10 %, is due, starting with the delivery period or notification that the goods are ready for dispatch. Proof of greater damage and additional statutory claims for damages remain unaffected. The customer reserves the right to prove that Hertz & Selck incurred no damage at all or only significantly less damage than the above flat rate. Hertz & Selck is entitled to make partial deliveries and partial services at any time, provided this is reasonable for the customer.
§ 14 Payment
The agreed remuneration is due for payment net without deductions immediately upon receipt of the invoice by the customer, unless a payment term has been granted contractually. A cash discount is not permitted.
The customer is only entitled to offset or assert retention rights if his counterclaims have been legally established, recognized by Hertz & Selck or are undisputed. The customer can only assert a right of retention if his counterclaim is based on the same contractual relationship.
§ 15 Transfer of risk, shipping, packaging
Unless otherwise agreed in individual cases, shipping takes place ex works (EXW).
§ 16 Warranty and notices of defects
The warranty is based on the legal regulations. Contractual service descriptions do not represent a guarantee of quality and/or durability.
Obvious defects must be reported in writing within five working days of delivery and defects that cannot be identified during inspection within the same period of discovery. If the customer fails to properly inspect and/or report defects, Hertz & Selck's liability for defects is excluded.
Hertz & Selck is entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. The customer is entitled to withhold a portion of the purchase price that is appropriate in relation to the defect.
If it turns out that the customer has wrongly complained about a defect, Hertz & Selck can demand reimbursement of the costs arising from the unjustified request to rectify the defect, such as testing and transport costs.
§ 17 Retention of title
The delivered goods (reserved goods) remain the property of Hertz & Selck until all claims have been met, including all current account balance claims to which Hertz & Selck is entitled against the customer now or in the future.
In the event of late payment, Hertz & Selck is entitled, after a reasonable period of time has expired, to take back the reserved goods and sell them privately. After deducting an appropriate amount for the costs of exploitation, the proceeds of exploitation must be offset against the amounts owed by the customer.
The customer may properly sell, mix and/or process the reserved goods in the course of business (§§ 948, 950 BGB). The customer hereby assigns to Hertz & Selck as security any claims arising from resale or other legal grounds (e.g. insurance, tort) relating to the reserved goods in the amount of a maximum of 120 % of the claims. The customer is entitled to collect the assigned claims in his own name until a written revocation by Hertz & Selck is permitted in the event of late payment. Hertz & Selck undertakes not to collect the claim as long as the customer meets his payment obligations, there is no defect in his ability to perform and Hertz & Selck does not assert the retention of title. However, Hertz & Selck can demand that the customer inform Hertz & Selck of the assigned claims and their debtors, provide all information required for collection, hand over the associated documents and notify the debtors (third parties) of the assignment. In this case, Hertz& Selck is also entitled to revoke the customer's authority to further sell and process the goods subject to retention of title.
If the reserved goods are processed with other items that do not belong to Hertz & Selck, Hertz & Selck acquires co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including sales tax) to the other processed items at the time of processing. If the customer's item is viewed as the main item as a result of the mixing, the customer hereby transfers proportional co-ownership of the item to Hertz & Selck. The customer shall keep the resulting sole or co-ownership safe for Hertz & Selck.
§ 18 Liability and statute of limitations
Hertz & Selck is liable in cases of intent or gross negligence on the part of a legal representative, employee or vicarious agent in accordance with the statutory provisions. Otherwise, Hertz & Selck is only liable for injury to life, body or health or for culpable violation of essential contractual obligations. However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage that is typical for the contract. Liability for damage caused by the delivery item to other legal interests of the customer is excluded. This does not apply in the case of intent or gross negligence or injury to life, body or health.
The regulation of the previous paragraph extends to any compensation for damages, regardless of the legal basis, in particular due to defects, the breach of obligations arising from the contractual relationship or from unlawful acts. It also applies to the claim for reimbursement of wasted expenses. Liability for delay is conclusively regulated in Section 13. Liability under the Product Liability Act remains unaffected. A change in the burden of proof to the detriment of the customer is not associated with the above regulations.
The limitation period for customer claims is one year from delivery of the goods. This also applies to contractual and non-contractual claims for damages that are based on a defect in the goods. Excluded from this are claims due to injury to life, body, health and claims based on gross negligence on the part of Hertz & Selck as well as claims under the Product Liability Act.
As of: January 2019