General terms and conditions of sales and delivery
- Following terms and conditions of sales and delivery are applicable for all the deliveries
and other services of Farbwerke Herkula AG and herkula Farben GmbH - hereafter called as
“Herkula” or “vendor”. Conflicting, deviating or supplementary general terms and conditions
of business, especially purchasing terms and conditions of the buyer are integral part of
the contract only if and insofar, as Herkula has explicitly consented its enforcement in
writing. This consent requirement is applicable in any case, for example even if, Herkula
unconditionally undertakes the delivery to the buyer in knowledge of its general terms and
conditions of business.
- By placing an order, the buyer acknowledges the applicability of these terms and conditions
of sales and delivery for the concerned business.
- In given cases, the individual agreements met with the buyer (including subsidiary
agreements, supplements and amendments) shall take precedence over these general terms and
conditions of business. All the subsidiary and verbal agreements with Herkula or with its
representatives require a written acknowledgement on the part of Herkula, in principle for
every case, in order to be valid.
- Implication and interpretation of these terms and conditions of sales and delivery are
governed just as the conclusion and interpretation of the legal transactions with the buyer
itself, solely as per the rights of the state, in which Herkula has its place of business.
The application of the uniform laws on the international purchase of the goods, especially
of United Nations Conventions on Contracts for International Sales of Goods (CISG) is
- The ineffectiveness of individual terms of these general terms and conditions of business,
of purchase contract concluded with the buyer or its components does not have any effect on
the remaining regulations. The contractual partners are obligated in good faith and trust
within reasonable limits to replace an ineffective condition by an effective regulation that
equals to their economic success, provided no important change in content of the contract is
brought about, the same is applicable, if a fact in need of a regulation is not explicitly
- Place of fulfillment for all the obligations arising directly or indirectly from this
contractual relations, including the duty of payment, is the office of the vendor.
- Place of jurisdiction is the venue of company headquarters of the vendor. Herkula is also
entitled to take legal action to the court, which is responsible for the office or a branch
- Ordering of goods by the buyer is regarded as legal offer of the contract. Offers and orders
are without obligations for Herkula with respect to quantity, price, transport costs and
delivery deadline as long as they are not consistently agreed and acknowledged by Herkula in
writing. For concluding the contract and for the scope of the contractually agreed services,
solely the order acknowledgement of vendor is decisive. An order acknowledgement generated
with help of automatic device, in which signature and name is missing, is regarded as
written. If the order acknowledgement contains apparent errors, written or calculation
errors, it is not obligatory for Herkula.
- The silence of the vendors with respect to orders, requests or other declarations of buyers
is regarded only as consent, if it has been agreed before in writing.
- INCOTERMS® are used in each valid version, if it is not explicitly deviated from the same in
these general terms and conditions of sales and delivery. The exact selection of INCOTERMS®
that are to be used in each order is determined in the order acknowledgement.
- If the buyer files a petition for opening an insolvency or similar procedure for his own
property or if the justified order of a third party for opening insolvency or similar
procedure about the assets of the buyers due to lack of measurement is denied, Herkula is
entitled to withdraw from the contract partially or completely.
- Unless otherwise the contrary is stipulated, the purchase price shall be paid in full within
30 days after the billing date. The deduction of discount shall be permitted only for
special agreements in writing.
- Contractual and payment currency is the respective currency, which is mentioned in the order
acknowledgement of the vendor. Place of payment is the office of the vendor. The price is
payable without any deductions “to vendor’s free payment office”.
- Costs for foreign remittances, service charges and other costs of monetary transactions
shall be paid by the buyer.
- On expiry of the contractual payment period, the buyer shall be in default. In case of
default, the interest rate of 8% p.a. above the respective basic rate of interest of the
European Central Bank is to be paid on the billing amount. Herkula reserves the enforcement
of additional damaged caused by default. Besides, all the costs even legal expenses are
imposed on the buyer with a view to recover the payable amounts.
- Set-off and retentions on the part of buyer are excluded, unless, the off-set claim is
uncontested or is established as final and absolute.
- A delivery date is specified to the best of the knowledge on acceptance of the order. The
mentioned delivery periods and delivery dates are regarded as approximate, unless agreed
otherwise in writing.
- If the vendor does not adhere to the contractually agreed delivery dates for reasons beyond
the control, the buyer shall be informed about the same and simultaneously the estimated new
delivery date shall be conveyed. This is applicable for example, in case of measures within
industrial disputes, especially strikes and blocks as well as occurrences of unanticipated
obstacles, which are beyond the control of the vendor, e.g. war, fire, explosion, terror
strike, natural calamities, traffic and operational disruptions, lack of raw material and
If the delivery within the new delivery date is not possible, Herkula is
authorized to partially or completely withdraw from the contract, without having any claim
to damages of the buyer. An already provided consideration of buyer shall be immediately
- A contractually agreed delivery date is suitable extended, if the buyer delays or defaults
the required and agreed cooperation on his part.
- Herkula is entitled to partial deliveries to a reasonable extent.
- The delivery shall take place from the warehouse of the vendor. On demand and costs of the
buyer, the goods are dispatched to another place of destination. Unless otherwise agreed,
Herkula itself is entitled to determine the type of dispatch, especially transport company,
dispatch route, packaging.
- For the delivery of complete goods, the buyer has approval and labeling requirements to
check according to all the relevant terms, bye-laws, directives and legislative powers of
- There is an obligation to accept when placing an order, i.e. the buyer shall accept the
goods – if a contractual delivery date has been agreed upon – on the delivery date or – if
no delivery date is contractually agreed upon – promptly after informing the availability.
If the buyer is in default of acceptance, he/she refrains from the cooperation or delays the
delivery for reasons, for which the he is responsible, the vendor is entitled to charge the
goods at his choice to the buyer and to send them unsolicited to him or to store them at
buyer’s risk and costs after the unsuccessful expiry of the date appropriately specified by
him. In any case, Herkula remains authorized to resell them without particular announcement
and to demand the compensation for his damages.
- If the above mentioned pre-requisites are present, the risk of accidental destruction or
accidental deterioration of goods shall be ignored to the buyer at the point of time, when
he is in default of acceptance or of debtor.
- In case of default in acceptance, Herkula is otherwise entitled to claim resulting damages
including the potential additional expenditures (e.g. storage costs). Additional claims
shall remain reserved.
- The ownership of goods remains with Herkula until the buyer pays the full payment of
purchase price and has settled all the other claims from the business relationship.
- The buyer is not authorized to pledge the goods under ownership of title to third party or
to transfer for security. The buyer shall immediately inform the vendor, if his reservation
of ownership is at risk. This is applicable particularly for disposals of third party or
- In case of behavior of buyer contrary to the contract, particularly in case non-payment of
due purchase price, Herkula is authorized to withdraw from the contract as per the statutory
regulations and to reclaim the goods owing to the reservation of ownership and the
rescission. If the buyer does not pay the purchase price, Herkula must claim this right,
only if was unsuccessful in setting a suitable date of payment for the buyer previously or
if a current deadline is expendable as per the statutory regulations.
- Herkula is even authorized to claim the rights to reservation of ownership, without
withdrawing from the contract.
- If the goods are processed or worked by the buyer, the reservation of ownership extends to
the overall new goods. The buyer acquires joint ownership to the fraction, which complies
with the ration of the value of his goods to the value of the goods delivered by the vendor.
- If INCOTERMS® shall be applicable the risks of accidental destruction and accidental
deterioration corresponding to the INCOTERMS® applicable to the respective order are
Otherwise, these risks are passed to the customer, as soon as the products are
transferred to the person executing the transportation or leave the Herkula warehouse for
purpose of dispatching. In case of pick-up by the customer, the risks are passed to the
customer on notifying the readiness for pick-up. Sentence 1 and 2 are applicable, even when
the delivery takes place in parts or Herkula has undertaken additional services, like the
transport costs or organization of transportation.
The risk of accidental destruction or
deterioration of products is passed to the customer at the latest, when he is in default of
- The vendor guarantees the professional manufacturing of Herkula products, however there are
neither explicit nor indirect warranties regarding the ownership, qualification or results
of the delivered products. Considering the large number of substrates and object conditions,
the buyer is obliged to check the Herkula products professionally and autonomously under the
respective object conditions for their suitability for intended use and to correspondingly
process the respective status of technology.
- Technical recommendations of vendor orally and in writing are non-binding and do not justify
any contractual legal relationship and any secondary obligations from the purchase contract.
The buyer shall autonomously check the Herkula products for their suitability for intended
- In case of product developments and productions, which are executed without sufficient
storage or stability test according to the customer’s requests, no guarantee can be ensured
for the stability of the product for the entire duration of expiration date. The indication
of minimum durability is based on the experiences and analysis of the comparable products.
- The buyer shall thoroughly examine the products immediately on delivery – if necessary
through analysis, test processing or by other means - for the fact, whether they are
flawless and suitable for intended purpose. Complaints regarding quantity or quality of
delivered products are to be brought to notice to Herkula within 8 days after written
receipt and before mixing and using the products. If the buyer refrains from this
notification, the goods are valid as approved, unless, it deals with fault, which could not
be identified during the examination. Such hidden faults must be informed and described
immediately after their identification.
In case of on-time complaints, the buyer shall
provide all the evidences as per the agreement with Herkula for security.
- Incorrectly ordered goods (e.g. quantity, price, wrong item) do not show reasons for
rejection and do not oblige Herkula by no means to exchange or take back the goods.
- Herkula undertakes no liability for the damages, which are caused due to incorrect handling,
processing and/or storage.
- The processing of the products, in which faults have been determined or could be determined
with highest care at the time of usage, takes place only at the risk of buyer. Herkula is
not liable for damages, which occur through the processing of faulty products.
- If the goods are not as per the contract, the vendor may assert the conversion at his choice
or – even in case of significant faults – fix the lack of conformity by subsequent
improvement or replacement. In any case, the liability of vendor is limited to the net sales
price of respective goods.
- Unless otherwise is not explicitly agreed in writing, all the additional contractual or
legal claims against Herkula, particularly towards cancellation of contract, reduction or
compensation of damages of any type as well as those damages, which are not occurred on the
goods themselves (indirect damages or subsequent damages), is excluded.
is not valid, if Herkula has traded intentionally or with gross negligence, has fraudulently
concealed a fault or has explicitly undertaken a guarantee for consistency or durability of
the goods in writing.
Herkula reserves all the offer documents, product information, samples, information about
production processes, other information and data of entire ownership, - author and other
protection rights. Such documents and information – even after conclusion of business
relationship – shall not be made available to the third party.