Terms and Conditions of Herbst Maschinenfabrik GmbH
– On the Basis of VDMA Standards -


I.     Offer
       

 

 

 

All documents such as designs, illustrations, data, tools, patterns and models forming part of the offer remain property of the supplier.
Without written consent of the supplier these documents shall not be disclosed to third parties. The buyer may use these documents for purposes of ordering only.
       
       
II.     Scope of Delivery
       
      Scope of delivery and performance shall be as indicated in the written confirmation of the order issued by the supplier.
       
       
III.     Price and Payment
       
  1.   Unless otherwise agreed, all prices quoted are ex works excluding the costs for loading and packing. In addition VAT will be charged at the respective current rate.
       
  2.   Unless otherwise agreed, payment shall be made net to supplier’s designated bank, after receipt of the invoice.
       
  3.   Claims of the buyer against the supplier may only be assigned after having obtained a written consent by the supplier.
       
       
IV.     Period of Delivery
       
  1.   The period of delivery shall commence as soon as the supplier has received the order and after all technical details have been clarified, but not before the buyer has submitted the requested documents and permits and paid the agreed upon down-payment.
       
  2.   The period of delivery is considered to be complied with, when until the date of expiration the goods to be delivered have left the plant and/or the customer has been notified that the goods are ready for dispatch.
       
  3.   In case of force majeure or by reason of any industrial dispute, especially strike and lockout, the period of delivery shall be extended accordingly, insofar it can be proved that such events have considerably affected the production or delivery of the goods ordered.
       
       
V.     Retention of Title
       
      The supplier of the goods shall retain title until all payments due under the contract have been received by the supplier.
       
       

VI.

 

 

Passing of Risk and Acceptance

 

 

 

 
  1.   Risk in any portion of the goods shall pass to the buyer upon dispatch of any such portion even if the supplier has yet to provide further services under contract.
       
  2.   If the dispatch is delayed for reasons attributable to the buyer, the risk shall pass to the buyer on the date when the goods are ready for dispatch. Upon request of the buyer the supplier shall effect insurance coverage at the buyer’s expense.
       
       
VII.     Liability for Defects
       
      By excluding further claims and without prejudice to article IX. the supplier shall be liable for defects of the goods as follows:
       
  1.   At the option of the supplier he shall remove all defects or replace all parts, which within a period of 6 months after first putting into operation but not later than 12 months after passing the risk to the buyer due to circumstances which occurred prior to passing the risk – especially due to faulty production, defective materials or defects in workmanship prove to be useless or unserviceable or which usefulness is impaired considerably. If such deficiencies are detected, the supplier shall be notified immediately.
       
  2.   In order to effect all repairs and to delivery all parts necessary, the buyer shall grant the supplier a reasonable period of time. In cases where operational safety is a risk or where severe loss or damage may be sustained of which the supplier shall be notified immediately, or where the supplier fails to remedy a defect within a reasonable period of time, the buyer is entitled to remedy the defect himself or cause a third party to remedy said defect and the supplier shall reimburse the buyer for all expenses incurred.
       
  3.   All expenses resulting from repairing especially with regard to costs arising from transportation, travelling, labour and material, shall be borne by the supplier, but not the expenses increased by the fact that after delivery the goods have been transferred to a different location.
       
  4.   For any parts replaced and repairs performed the warranty amounts to a period of 6 months, or at least until expiration of the original warranty period. The warranty period shall be extended by such times as operations were interrupted due to the performance of repairs.
       
  5.   Further claims made by the buyer, especially consequential damages shall be excluded, unless these damages are caused intentionally or by gross negligence on part of the supplier and/or his vicarious agent.
       
       
VIII.     Other Liabilities
       
      The provisions of article VII. apply accordingly to all claims made by the buyer concerning repairs, replacement or compensation which arise from a breach of the obligation to remedy a defect or other collateral duties or from tortuous acts.
       
       
IX.     Buyer’s Right of Rescission
       
      If the buyer has granted to the supplier a reasonable period to remedy a defect on condition that a failure to remedy such defect within the specified period shall entitle the buyer to reject any work performed by the supplier, then the buyer shall thereafter, at his option, be entitled to a reduction in price or to rescind the contract.
The buyer shall also be entitled, at his option, to a reduction in the price or to rescind the contract, if the supplier fails to perform repairs or to replace the goods at the second attempt.
       
       
X.     Supplier’s Right of Rescission
       
      In the event of any occurrences set forth in articles IV. of the terms of delivery, insofar such events considerably affect the economic purpose of the business or the scope of performance or the business undertaking of the supplier, the provisions of this contract shall be modified accordingly.
Unless this is economically not justifiable, the supplier shall be entitled to rescind the contract in whole or in part.
Rescission by the supplier under this article shall not give rise to any claims by the buyer. Should the supplier wish to exercise his right of rescission, he shall inform the buyer as soon as he becomes aware of such occurrence, notwithstanding that an extension of time for delivery has already been agreed with the buyer.
       
       
XI.     Secrecy
       
      The buyer shall be obligated to observe secrecy concerning all information disclosed to him within the scope of business operations and contained in documents provided by the supplier including specifications or regulations of technical nature, especially drawings, models, templates, sections, formulas an all other trade and business secrets.
       
       
XII.     Scope of Application
       
      Business terms contradicting these conditions shall not be accepted by the supplier, even if a successful conclusion of the contact is made dependent upon the prevailing of such terms.
       
      Providing the buyer has been entered in the commercial register, all disputes arising directly or indirectly from this contract, shall be settled by the courts of Buxtehude. the supplier is also entitled to commence proceedings at the place of the buyer’s registered office.


September 2003
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