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 “Labels” business division and only to business customers, 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 do not apply; HERMA hereby objects in advance to any subsequent introduction of such terms by the customer. 

1.2. Within the “Labels” business segment, a distinction is made between stock items (catalog items) and custom-made products. Unless expressly differentiated below, the provisions of these GTC apply uniformly to both product groups. 

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

2.1. Stock Items (Catalog Items) 
This transaction constitutes a purchase contract. 

2.1.1 For stock items (catalog items), the customer places an order. The order may be placed in writing, by email, EDI connection, via HERMA Online-Shops, or verbally, and must include the desired items, quantities, and delivery address and date. The contract is concluded upon acceptance of the order by HERMA. Acceptance must be communicated to the customer within seven (7) business days of receipt of the order. If the customer’s order does not specify a desired delivery date, HERMA may state a standard, non-binding delivery period in the acceptance. 

2.1.2 Acceptance may be effected by an order confirmation from HERMA, by delivery of the goods, or by issuance of an invoice, provides that this unambiguously expresses the intention to accept the order. The order confirmation may be provided in writing. It shall contain the order details and the estimated delivery date. 

2.1.3 Changes or additions to the order become binding only upon mutual agreement with HERMA. 

2.1.4 For stock items, HERMA may begin delivery upon receipt of the order, unless expressly agreed otherwise. 

2.1.5 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 seven (7) business days. 

2.2 Custom-made products. This transaction constitutes a contract for work and materials. 

2.2.1 For custom-made products, HERMA submits a binding offer to the customer. The offer contains all essential terms of the contract, in particular a precise description of the custom-made products to be produced, the price, the delivery period, and, if applicable, the terms of payment. 

2.2.2 The contract is concluded upon the customer’s express acceptance of this offer. Acceptance must be declared to HERMA within the acceptance period specified in the offer, but no later than 14 calendar days after receipt of the offer. 

2.2.3 Acceptance may only be made by means of a written order confirmation.

2.2.4 Changes or additions made by the customer in the course of the order confirmation shall be deemed a new offer and require acceptance by HERMA.

2.2.5 The customer’s silence regarding the offer does not constitute acceptance.

2.3. Changes

2.3.1 For both stock items (catalog items) and custom-made products, all agreements made at the time the contract is concluded are governed by the order/offer and the corresponding acceptance, including these General Terms and Conditions. 

2.3.2 There are no verbal side agreements concerning the conclusion of the contract or its content. 

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

3.1. Prices are determined in accordance with HERMA’s price list valid at the time of the order, unless otherwise agreed in individual cases. Unless otherwise agreed in writing in individual cases, HERMA’s prices are CIP (Carriage and Insurance Paid), Incoterms 2020, plus any packaging costs. 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. 

3.2. Invoices are due for payment without deduction within 30 days of the invoice date, unless different payment terms have been agreed upon in the respective offer or order confirmation. The timeliness of payment is determined by the receipt of the invoice amount in HERMA’s business account. After the due date, HERMA shall charge 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. 

3.2.1 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 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 for them, 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. 

3.2.2 If, after the conclusion of the contract, the cost factors relevant to pricing – in particular for 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. In assessing the development of raw material prices, the RISI Index is used in particular.

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

4.2. The customer is only entitled to assert rights of retention based on 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 CIP Incoterms 2020. Partial deliveries are permitted, provided they are reasonable for the customer. 

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

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 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. 

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

5.5. Whether HERMA is in default of delivery is determined in accordance with statutory provisions. In all cases (regardless of whether 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 after this non-binding delivery deadline has been exceeded. If HERMA is in default, the customer must grant HERMA a reasonable grace period of six (6) weeks for delivery; after this period has expired without result, the customer may withdraw from the purchase contract. 

5.6. A grace period of five (5) business days applies to specified delivery dates. Within this grace period, exceeding the deadline alone does not constitute default. 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 a fixed delivery date was expressly agreed upon in the order confirmation or if the delay is due to intent or gross negligence on the part of HERMA. 

5.7. 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 goods delivered late, provided that HERMA reserves the right to prove that the customer has not incurred any damages at all. Liability for injury to life, limb, or health remains unaffected. 

5.8. If delivery of the goods is delayed at the customer’s request, HERMA will charge the customer – beginning two (2) months 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 the expiration of a reasonable grace period and following appropriate prior notice, to dispose of the goods in question in another manner 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 (causing a failure to perform for at least 14 calendar days) and in the event of non-delivery, defective, or delayed deliveries from upstream suppliers for which HERMA is not responsible provided sufficient stock is available, HERMA shall inform the customer of the occurrence in a timely manner. In this case, 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 § 276 BGB or a delivery or performance guarantee. The following are deemed to be 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 under 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. 

6.3. The foregoing provision pursuant to 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 without 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 characteristics of the goods are determined exclusively by the specifications set forth in the respective individual contracts. The information provided in the offer and acceptance for custom-made products or in the order confirmation for stock items (catalog items) shall be decisive. Unless otherwise expressly agreed in writing, these specifications shall not be construed as a representation of characteristics or as an assumption of a warranty regarding quality or durability. 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 de-fect-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. 

7.3. 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 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 8 of these General Terms and Conditions remains unaffected. 

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

7.5. The statute of limitations for claims for defects is one year from the transfer of risk. This does not apply pursuant to Sections 478, 445b of the German Civil Code (BGB) (supplier recourse), as well as in cases of injury to life, limb, or health, in the event of an intentional or grossly negligent breach of duty by HERMA, and in the event 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 Basissubject 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.

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 above 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 applies to liability for damages resulting from delay.

8.6. 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. 

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 vicarious 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 current account (current 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. 

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 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. 

9.2.1. In the event of a breach of contract attributable to the customer, particularly 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 such a case, the customer is obligated to surrender the goods without further notice and shall bear the transportation costs required for their return. HERMA’s retrieval 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 claims 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. 

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

10.1. 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. 

10.2. These General Terms and Conditions 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). 

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 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. 

10.4. Should any provision 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.