General terms and conditions of sales and delivery

    I. General

    1. 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.
    2. By placing an order, the buyer acknowledges the applicability of these terms and conditions of sales and delivery for the concerned business.
    3. 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.
    4. 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 excluded.
    5. 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 regulated.
    6. 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.
    7. 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 of buyer.

    II. Proposals, scope of services and contract

    1. 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.
    2. 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.
    3. 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.
    4. 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.

    III. Payment conditions

    1. 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.
    2. 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”.
    3. Costs for foreign remittances, service charges and other costs of monetary transactions shall be paid by the buyer.
    4. 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.
    5. 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.

    IV. Delivery

    1. 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.
    2. 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 energy etc.
      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 reimbursed.
    3. A contractually agreed delivery date is suitable extended, if the buyer delays or defaults the required and agreed cooperation on his part.
    4. Herkula is entitled to partial deliveries to a reasonable extent.
    5. 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.
    6. 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 respective countries.

    V. Obligation to accept - default of acceptance

    1. 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.
    2. 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.
    3. 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.

    VI. Risk- and transfer of ownership

    1. 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.
    2. 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 regulatory actions.
    3. 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.
    4. Herkula is even authorized to claim the rights to reservation of ownership, without withdrawing from the contract.
    5. 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.
    6. If INCOTERMS® shall be applicable the risks of accidental destruction and accidental deterioration corresponding to the INCOTERMS® applicable to the respective order are ignored.
      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 acceptance.

    VII. Guarantee - Liability of the vendor

    1. 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.
    2. 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 use.
    3. 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.
    4. 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.
    5. 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.
    6. Herkula undertakes no liability for the damages, which are caused due to incorrect handling, processing and/or storage.
    7. 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.
    8. 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.
    9. 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.
      This disclaimer 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.

    VIII. Others

    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.