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 “Adhesive Materials” business division and only to business entities, legal entities under public law, or special funds under public law within the meaning of § 310 (1) of the German Civil Code (BGB). The customer’s general terms and conditions do not apply. HERMA objects in advance to any subsequent introduction of such terms by the customer. 

1.2. These General Terms and Conditions also apply to all future transactions between the parties, even if they are not expressly resubmitted for subsequent transactions.

2.1. HERMA either submits an individual offer to the customer with a quoted price, or the customer places an order at a price in accordance with HERMA’s currently valid price list. All offers made by HERMA are subject to change and non-binding. The customer’s order, whether placed independently or in response to an offer from HERMA, shall be deemed a binding offer to enter into a contract. The contract is not concluded until HERMA accepts the order. Unless otherwise specified in the order, HERMA is entitled to accept the order within fifteen (15) business days of its receipt. 

2.2. Acceptance is effected by HERMA’s order confirmation in writing or via EDI. Unless the customer has provided otherwise, delivery will be made to the customer’s business address within the usual non-binding delivery time.

2.3. Changes or additions to the order made by the customer become binding only upon mutual agreement with HERMA. 

2.4. HERMA’s silence 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 fifteen (15) business day period. 

2.5. As a general rule, all agreements made upon conclusion of the contract are defined by the order/offer and the acceptance, as well as these General Terms and Conditions. 

2.6. There are no oral side agreements concerning the conclusion of the contract or its content. 

2.7. Any amendments or additions to the agreements made upon conclusion of the contract must be in writing to be effective (Section 126b of the German Civil Code (BGB)).

3.1. Prices and payment terms are determined by the underlying agreements in each individual case. 

3.2. Unless otherwise agreed in writing in individual cases, HERMA’s prices are based on “CIP Incoterms 2020.” The relevant destination is specified in HERMA’s offer or, if not specified therein, is the customer’s place of business. The prices therefore include the costs of transporting the goods to the relevant destination as well as insurance against the risks of loss or damage to the goods during transport, which are to be borne by the customer. HERMA’s prices do not include, in particular, the costs of unloading the goods at the destination, import duties, taxes, and other public levies. Statutory value-added tax is also not included in HERMA’s prices. This tax, at the statutory rate, will be shown separately on the invoice on the date of invoicing, if applicable.

3.3. Unless otherwise agreed in individual cases, payments are due net cash within fourteen (14) calendar days of the invoice date. After the due date, HERMA will charge late payment interest in accordance with Section 288(2) of the German Civil Code (BGB) and is entitled to claim a flat-rate late payment fee of EUR 40.00 pursuant to Section 288(5) BGB. HERMA expressly reserves the right to claim further damages resulting from late payment. 

3.4. If the customer fails to meet payment obligations, or if, after the conclusion of the contract, HERMA becomes aware of circumstances that are likely to significantly impair the customer’s creditworthiness and thereby jeopardize the payment of HERMA’s outstanding claims, HERMA – subject to further claims – is entitled to declare all outstanding claims immediately due, to demand security for such claims 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. 

3.5. If, after the conclusion of the contract, the cost factors relevant to pricing – in particular raw materials (especially paper), 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.

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

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

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

5.1. Unless otherwise agreed in individual cases, delivery shall be made in accordance with “CIP Incoterms 2020.” Partial deliveries are permitted to the extent that this is reasonable for the customer. 

5.2. HERMA’s compliance with its delivery obligation is contingent upon the customer’s timely and proper fulfillment of any obligations on their part. HERMA reserves the right to raise the defense of non-performance of the contract (Section 320 of the German Civil Code (BGB)) and the defense of uncertainty (Section 321 BGB). 

5.3. 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 damages, including any additional expenses. HERMA reserves the right to assert further claims. 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 any other breach of the customer’s obligations to cooperate. 

5.4. Any delivery deadlines are agreed upon on a case-by-case basis and are binding only if the respective delivery deadline is confirmed in writing by HERMA and is expressly designated as binding. Without this express confirmation, delivery dates are non-binding. 

5.5. Whether HERMA is in default of delivery is determined in accordance with statutory provisions. In all cases (whether the delivery deadlines are binding or non-binding), a reminder from the customer is required for default to occur. In the case of a non-binding delivery deadline, a reminder from the customer is required once this non-binding delivery deadline has been exceeded. If HERMA is in default, the customer must grant HERMA a reasonable grace period of four (4) weeks for delivery; upon the unsuccessful expiration of this period, the customer may withdraw from the purchase contract. 

5.6. If HERMA is liable for damages resulting from delay due to slight negligence, its liability for such damages (compensation in addition to performance) is limited to 5% of the net contract price of the delayed goods, provided that HERMA reserves the right to prove that the customer did not suffer any damages at all. Liability for injury to life, limb, or health remains unaffected. 

5.7. If delivery of the goods is delayed at the customer’s request, HERMA is entitled to charge the customer – beginning two (2) weeks after the scheduled delivery date – for the additional costs incurred due to storage until the time of actual delivery. HERMA is further entitled, after setting and allowing a reasonable grace period to elapse and after providing 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.

6.1. In cases of force majeure (resulting in a failure to perform for at least 14 calendar days) or in the event of non-delivery, defective delivery, or delayed delivery by upstream suppliers for which HERMA is not responsible (provided HERMA has sufficient inventory), HERMA will inform the customer of the occurrence 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 to be 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, when viewed objectively, were not culpably caused by HERMA. 

6.2. 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 with respect to 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. 

6.3. The provision set forth in paragraph 2 shall apply 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 in the absence of a contractual agreement on a fixed delivery date.

7.1. 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. 

7.2. The relevant quality of the goods is determined exclusively by the respective product descriptions; the information provided in the offer and acceptance is decisive. Unless expressly agreed otherwise in writing, these product descriptions shall not be construed as a representation of characteristics or as a guarantee of quality or durability. 

7.3. HERMA is solely responsible for ensuring compliance with the technical product description of the adhesive material, but not for its suitability or functionality in the customer’s specific application. The customer is obligated to verify the suitability of the adhesive material for its specific substrates, processes, and operating conditions through adequate testing. These tests are conducted at the customer’s own risk. HERMA makes no warranty that the adhesive material is suitable for the customer’s intended use, unless suitability for a specific use has been expressly agreed upon in writing. 

7.4. Changes to product descriptions that do not adversely affect the agreed-upon quality or ensure equivalent quality are permitted. If HERMA has provided a binding product description, the customer will be notified of any material changes in writing. Material changes include, in particular, changes that may affect the adhesive material’s chemical properties, physical parameters, or processing characteristics. If the customer does not object to the proposed change within 10 business days, the change shall be deemed accepted. Minor changes that do not impair the agreed-upon quality and ensure equivalent quality may be made without consent. Agreed upon product descriptions also apply to subsequent deliveries of the same product, unless otherwise agreed in writing.

7.5. Information regarding a “best before date” or other shelf-life information on Adhesive Materials or packaging does not constitute any guarantee of quality or shelf life on the part of HERMA. This information serves solely as a guide for the proper storage and processing of the products by the customer. It does not constitute any warranted characteristics within the meaning of the law. HERMA assumes no responsibility for the use of the products after such a date has expired. In particular, in this case, there is no warranty regarding the properties, functionality, or processability of the products. The customer is solely responsible for the proper storage and handling of the products, as well as for adhering to the recommended period of use.

7.6. 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 rectification, provided this is reasonable for the customer. If the second attempt at rectification also fails or if further attempts at rectification are unreasonable for the customer, the customer is entitled to reduce the purchase price or withdraw from the contract. 

7.7. The customer may assert claims for damages due to a defect in accordance with Section 8 of these General Terms and Conditions only if the remedy has failed or if HERMA has refused to provide a remedy. The customer’s right to assert further claims for damages in accordance with Section 8 of these General Terms and Conditions remains unaffected. 

7.8. Claims for defects against HERMA are available only to the customer and are not transferable. 

7.9. The statute of limitations for claims for defects is one year from the transfer of risk. This does not apply pursuant to Sections 478 and 445b of the German Civil Code (BGB) (supplier recourse), nor 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.

8.1. 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. 

8.2. HERMA shall be liable for damages – regardless of the legal basis – subject to the provisions below, only in cases of intentional misconduct 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 loss 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. 

8.3. 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 foregoing limitations of liability. 

8.4. Any further liability for damages is excluded – regardless of the legal nature of the claim asserted.

8.5. Section 5 of these General Terms and Conditions of Insurance applies to liability for damages resulting from delays.

8.6. The foregoing liability provisions apply mutatis mutandis if the customer demands reimbursement for futile expenses in lieu of a claim for damages or performance. 

8.7. 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 agents.

9.1. 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 running account (current account) and the balance has been calculated. To the extent permitted under the law of the country in which the goods are located in accordance with the contract, this retention of title shall apply. If such 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.

9.2. 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 disaster insurance that specifically covers water and storm damage. Claims against the insurance company arising from a loss involving 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. 

9.3. The customer is entitled to resell the delivered goods in the ordinary course of business. The customer is not permitted to dispose of the goods in any other way, in particular by pledging them or granting them as security. If the third-party purchaser does not pay for the goods subject to retention of title immediately upon resale, the customer is obligated to resell them only under extended retention of title, i.e., by assigning the purchase price to the purchaser. The right to resell the goods subject to retention of title shall automatically lapse if the customer suspends payments or falls into default of payment to HERMA. 

9.4. 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 customer 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 null and void. In the event that goods subject to retention of title are sold together with other items, the claim against the third-party purchaser shall be deemed assigned in the amount of the net delivery price agreed upon between HERMA and the customer, provided that the amounts attributable to the individual goods cannot be determined from the invoice. 

9.5. The customer remains authorized to collect the claim assigned to HERMA until such authorization is revoked by HERMA, which may do so at any time. However, HERMA undertakes to revoke the authorization to collect the claim 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 notify its customers immediately of the assignment to HERMA. 

9.6. If the customer includes receivables 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 final 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. 

9.7. 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 through 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 9, the customer must notify HERMA thereof immediately. In the event 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 event of recourse factoring if, under the contract with the factor, the customer cannot freely dispose of the purchase price of the receivable. 

9.8. In the event of a breach of contract attributable to the customer – in particular, in the event of late 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 return the goods and shall bear the transportation costs required for their return. HERMA’s repossession of the goods subject to retention of title 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 any amounts owed by the customer to 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. 

9.9. If the total value of the security interests held by HERMA pursuant to the foregoing provisions exceeds the secured claims by more than 10%, HERMA is obligated, at the customer’s request, to release security interests of its choice to that extent. 

9.10. Any processing or transformation of the goods subject to retention of title shall be 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 goods subject to retention of title from HERMA 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 ratio, 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. Upon 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.

10.1. The contract language for all contracts and these General Terms and Conditions is exclusively German. The German version alone is authoritative for the content and interpretation of the contract and the General Terms and Conditions. Any English versions or translations of the contract or the General Terms and Conditions are provided for informational purposes only and have no binding effect. In the event of any discrepancies between the German version and any English translations, the German version shall prevail in all cases. This provision also applies to all other contract-related statements, notices, and documents that are related to or refer to the contract. 

10.2. These General Terms and Conditions and the contractual relationship between HERMA and the customer shall be 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). 

10.3. 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 General Terms and Conditions or a prior individual agreement, or at the customer’s general place of jurisdiction. Overriding statutory provisions, in particular those regarding exclusive jurisdiction, remain unaffected. 

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