OUR GENERAL TERMS AND CONDITIONS
- The following terms and conditions of Hermos AG
(Hermos) apply to all present and future business relations between us and
All tender submissions, deliveries and services
are made exclusively on the basis of the following terms and conditions.
Any conflicting terms and conditions of the customer are invalid.
- Persons exercising their commercial or
independent professional activities (business operators) and
- Legal persons governed by public law and
special funds under public law.
A contract is concluded – in the absence of any
special agreement – when Hermos issues a written order confirmation.
Legally relevant statements and other agreements
require the written form to be considered effective.
- The tender prices are quoted net ex works. These
prices do not include the legally applicable sales tax, packaging,
freight, customs, insurance and assembly. Hermos is bound to tenders and
tender prices for three months.
- The tender price is only valid for a total award
of the deliveries and services offered. We reserve the right to change
prices for partial awards or partial deliveries.
- The tender price for
services such as project planning, drawings, assembly, maintenance, documentation
and commissioning refers – in the absence of any other agreement – solely to
the devices delivered by Hermos within the scope of the contract relationship.
- Hermos is entitled to issue an invoice on the
day of delivery and, for advance invoices, on the day the goods are
ordered. The contractually agreed payment terms apply in general.
Otherwise the invoice amount must be paid within 30 days without
deductions. Software products and components are only delivered against
payment in advance or payment on delivery. Repair, customer service and
other wage-related invoices or parts of invoices must be paid immediately
upon receipt of invoice without any deductions.
- A payment is only considered rendered when the
funds are made available to Hermos. In the case of checks, payment is
considered rendered when the check is cashed. Payment orders, checks and
bills of exchange are only accepted upon special agreement and only for
payment, not in lieu of fulfillment.
- In the event of a delay in payment, default
interest in the amount of 8% above the base interest rate will be charged
subject to the reservation of further damages. If the customer delays
fulfillment of its obligations – including those arising from other
contracts with Hermos – or if the customer suspends payments or is
otherwise in breach of contract, then all claims vis-à-vis the customer
are due immediately and without any deductions.
- After exceeding the payment deadlines, the
customer is no longer entitled to further process, join or combine with
other objects the goods supplied by Hermos under retention of title.
- Hermos is also entitled to request the return and
take possession of retained goods free of charge, to deliver outstanding
deliveries only against advance payment and to enforce its legal rights to
claim for delays. Enforcement of the right of retention and the seizure of
the supplied goods by Hermos do not constitute withdrawal from the
contract unless this is expressly declared in writing.
- Customers who are not listed with Hermos and have
not provided proof of creditworthiness will only receive delivery against
advance payment; for large orders Hermos reserves the right to request a
deposit or the provision of a security.
- The application for initiation of insolvency
proceedings authorizes Hermos to withdraw from the contract and demand the
immediate return of the delivered goods.
- Partial deliveries and services may be invoiced
- The customer is only entitled to retain payment or
offset payment with counterclaims if such claims are undisputed or
III. INDUSTRIAL RIGHTS
- Hermos reserves the rights of ownership and
copyright to cost estimates, drawings and other documents.
- The documents may only be made accessible to third
parties after prior consent from Hermos and must be returned immediately
on request if Hermos is not awarded the contract.
- Goods are delivered ex works at the customer’s
expense and risk.
- This also applies to partial deliveries, to which
Hermos is entitled provided it is reasonable to expect the customer to
- Packaging is considered to be correct and proof
thereof supplied as long as the goods are accepted by the shipper or
freight forwarder without any objections.
- The customer may not refuse acceptance of deliveries
due to minor defects.
- To the extent that the Packaging Ordinance
requires Hermos to accept returned packaging used for transport and the
customer requests this, the customer shall bear the costs for the return
transport of the packaging used.
- If Hermos accepts the return of the correctly
delivered goods, then Hermos is entitled to invoice the customer for an
appropriate administration fee for the expenditure incurred.
- The delivery times indicated are non-binding and
Hermos will make every effort to comply with them. In order to be
considered binding, delivery dates or deadlines must be expressly agreed
to as such.
- Compliance with deadlines for deliveries is
subject to the timely receipt of all documents to be delivered by the
customer, all necessary approvals and releases, in particular plans, and
compliance with the agreed payment terms and other obligations by the
customer. If these prerequisites are not fulfilled on time, then the
deadlines shall be extended accordingly; this does not apply in cases
where Hermos is responsible for the delay.
- If non-compliance with deadlines is the result of
force majeure, e.g. mobilization, war, unrest or other similar events,
e.g. strikes, blockades, then the deadlines shall be extended accordingly.
- If Hermos is in default, then the customer –
provided it can offer sufficient proof that it sustained damages as a
result of said default – may demand compensation of 0.5% for each complete
week of the delay, but not more than 5% in total of the price for the part
of the deliveries that could not be effectively put into operation because
of the delay.
- Both the customer’s claims for damages due to
delayed deliveries and claims for damages in lieu of performance exceeding
the limits specified in No. 3 above are excluded in all cases of delayed
delivery and following expiry of any delivery deadline set by Hermos. This
does not apply to the extent that liability is mandatory in cases of
intent, gross negligence or due to injury to life, limb or health. The
customer may only withdraw from the contract within the framework of the
legal provisions provided that Hermos is responsible for the delivery
delay. A change in the burden of proof to the customer’s disadvantage is
not associated with the provisions outlined above.
- At the request of Hermos and within a reasonable
period of time, the customer is obliged to declare whether it will
withdraw from the contract as a result of the delay or if it insists on
- If shipping or delivery is delayed at the request
of the customer by more than one month following notification of readiness
for shipment, then Hermos may charge the customer a storage fee of 0.5% of
the price of the delivery items, but not more than 5% in total. The
contract parties are free to provide proof of higher or lower storage
- The customer must perform the installation and
assembly at its own expense and in due time:
Before beginning the assembly work, the Customer
must provide the necessary information on the location of any covered
power, gas and water lines or similar installations along with the
required static data without being requested to do so.
- All ground, construction and other ancillary work
including all necessary skilled and unskilled labor, construction
materials and tools,
- The equipment and materials required for
assembly, such as scaffolding, lifting gear and other equipment, fuels
- Energy and water at the point of use including
connections, heating and lighting,
- At the assembly site, for the storage of machine
parts, apparatuses, materials, tools, etc., adequately sized, suitable
dry and lockable premises and for the assembly personnel suitable work
and break room facilities including sanitary facilities appropriate to the
circumstances; for the remainder the customer must take all measures at
the construction site required to protect Hermos’ possessions and the
assembly personnel at the construction site as it would for its own
- Protective clothing and protective equipment
required as a result of the special circumstances at the assembly site.
Before beginning installation or assembly, all of
the materials and objects required to commence work must be located at the
installation or assembly site and all preliminary work required prior to
starting installation must be far enough along to allow for the
installation or assembly to begin in accordance with the contract and to
be continued without interruption. Access roads and the installation or
assembly site must be leveled and cleared.
If installation, assembly or commissioning is
delayed due to circumstances beyond Hermos’ control, then the customer
shall bear a reasonable amount of the costs incurred for waiting periods
and any additional travel required by Hermos or assembly personnel.
The customer must inform Hermos of the duration of
the work to be performed by the assembly personnel and certify the end of
the installation, assembly or commissioning without delay.
If Hermos requests acceptance of the delivery
following completion, then the Customer must provide this within a period
of two weeks. If this does not occur, then acceptance is considered
effected. Acceptance is likewise considered effected if the delivery –
including after completion of an agreed test phase – is put into
If Hermos is responsible for commissioning control
systems, then the required operating materials (media) must be provided in
the necessary amounts. Hermos must be provided with notice of
commissioning in due time. Customer employees who are familiar with the
system must be on hand during the commissioning phase. The customer must
ensure that the devices to be commissioned are accessible. If device
assembly and installation is not included in Hermos’ scope of contract,
then the customer must ensure that field devices are wired and assembled
and that all control panel devices are connected.
VI. RETENTION OF TITLE
- All goods remain the property of Hermos until all
obligations arising from the business relationship, regardless of their
nature, are met in full. This applies in particular to subsequent claims
arising from repair services, spare parts and accessory deliveries.
- The customer is authorized to resell and/or
process the goods covered under the retention of title in the ordinary
course of business. In this case, the following supplemental provisions
- The retention of title clause covers products
resulting from the processing, mixing or combining of our goods at their
full value, whereby we are considered the manufacturer. If, when processing,
mixing or combining our goods with those of third parties, the ownership
rights of the third parties are retained, then we also acquire joint
ownership of the processed, mixed or combined goods according to the share
of the invoiced amounts. For the remainder, the same provisions apply to
the resulting product as for the goods delivered under the retention of
- The customer hereby assigns to us as any claims
against third parties arising from the resale of the goods and the resulting
product in full or in the amount of our co-ownership share by way of
security in accordance with the preceding paragraph. We hereby accept this
- Both Hermos and the customer remain authorized to
recover the debt. We hereby agree not to collect said debt as long as the
customer meets its payment obligations to us, does not delay payment, does
not initiate insolvency proceedings and there are no other shortcomings in
its performance capability. Should this be the case however, we may demand
that the customer make all assigned demands and their debtors known,
provide us with all information and documentation relevant to collecting
the debt and inform the debtors (third parties) of the assignment of the
- If the realizable value of the securities exceeds
our claims by more than 20%, then we will release securities of our
choosing at the customer’s request.
- As long as our retention of title exists, renting,
pledging, transferring security or any similar transfer of goods to a
third party is not permitted without our written consent.
- In cases where the customer’s creditors intervene,
in particular in cases where the goods are pledged, the customer must
notify us of this immediately by registered letter and bear the costs of
any measures required to rectify the intervention, in particular by
bearing the costs of intervention processes if they cannot be recovered
from the counterparty. To secure our claims, the customer grants us the
right to enter its business premises during normal business hours and to
inspect the business documents required to secure our claims.
- The customer is obliged for the duration of the
retention of title to keep the goods in proper condition and have any
necessary repairs performed immediately at its own expense.
VII. RIGHTS IN THE EVENT OF PERFORMANCE/LIABILITY DEFECTS
- Hermos will, at its own discretion, either repair
or redeliver the parts deemed to be defective as a result of circumstances
arising prior to the transfer or risk. The customer must give Hermos the
necessary time and opportunity to remedy the situation and, at its own
expense, ensure that Hermos has unrestricted access to the defective parts
so that it is possible to inspect and repair them. Only in urgent cases of
danger of operational safety or prevention of disproportionately large
damages is the customer authorized to undertake these repairs itself. In
any event, Hermos must be informed immediately of these circumstances.
Following such actions, Hermos will not be held responsible for any
defective wiring, improper handling and assembly that it did not carry out
itself. The customer must notify Hermos of any defects it detects
immediately in writing; replaced parts shall become the property of
- Hermos shall bear the costs arising from repair
and/or redelivery – to the extent that the complaint proves to be founded
– for the replacement goods along with shipping including reasonable costs
of removal and installation. All other costs are borne by the customer.
- Unless otherwise stipulated in these terms and
conditions including the following provisions, we are liable in accordance
with the relevant statutory provisions in the event of a breach of
contractual and non-contractual obligations.
- We are liable for compensation for damages –
regardless of the legal grounds – in cases of intent and gross negligence.
In cases of minor negligence, we are only liable
The aforementioned liability limitations do not
apply in cases where we fraudulently conceal a defect or have taken over a
guarantee for the condition of the goods. The same applies to claims of
the customer under product liability law.
- For injury to life, limb or health,
- For damages resulting from a breach of a material
contractual obligation (obligation whose fulfillment makes proper
execution of the contract possible in the first place and compliance with
which the contract partner readily relies and can readily rely on); in
this instance, however, our liability is limited to compensation for
foreseeable, typically occurring damage.
To the extent that our liability is excluded or
limited, this also applies to employees, representatives and agents.
All claims of the
customer are subject to a limitation period of twelve months. The legal
limitation periods apply to intentional, fraudulent behavior and in case of
claims arising from product liability law. These also apply to defects in
buildings and delivery items that were used in accordance with normal
guidelines for a building and caused the defect to arise in the first place.
Hermos and the customer hereby agree that the IT components included in the
delivery items are not considered to be used for a building in accordance with
their normal use, even if they control the building management system.
VIII. IMPOSSIBILITY OF PERFORMANCE; CONTRACT ADJUSTMENTS
- Should any unforeseeable events (including but not
limited to operating malfunctions, delays in the delivery of essential
materials, the effects of labor disputes, government interventions,
strikes) significantly modify or interfere with the economic meaning or
contents of the delivery or Hermos operations, then the contract shall be
appropriately adjusted in good faith.
- If, from an economic
standpoint, it would not be reasonable to do so, then Hermos is entitled to
withdraw from the contract. Should Hermos wish to make use of this right of withdrawal,
then the customer must be notified of this recognizing the implications of the
event, even if the delivery period was initially extended in agreement with the
IX. SOFTWARE USE
- If software is included in the scope of delivery,
then the customer will receive a single, non-exclusive right of use to
said software including its documentation.
- The customer is only authorized to use the
software on the delivery item supplied specifically for this purpose. Use
on any other system is prohibited and requires an additional agreement.
- The customer may only reproduce, revise or
translate the software or transfer object code into source code to the
extent legally permitted (Sections 69 a et seq. Copy Right Act (UrhG)).
- The software may only be linked with other
software following an express agreement with Hermos. The customer agrees
to compel any legal successor to recognize the conditions of use. Granting
sublicenses is not permitted.
- All other rights to software and documentation, in
particular ownership rights, remain with Hermos.
- The customer has a non-exclusive right to use the
software with the agreed performance features in unaltered form on the
agreed devices. The customer may create a backup copy without express
- Hermos is authorized to update the software at its
own discretion, but is not obliged to offer the customer these updates. If
a software maintenance contract was concluded, then the updated software
is an object of the same. However, new functions and performance features
must be ordered and remunerated separately.
- Although Hermos
develops the software with the greatest possible diligence and care, it is not
always to possible exclude the risk of errors based on the current state of the
art. Hermos is liable in accordance with VII of these terms and conditions for
any reproducible errors that occur. If reproducible errors cannot be corrected
and the software is thus rendered unusable, the customer will afford Hermos the
necessary time and opportunity to attempt to develop a modified version of
the software based on the written error report provided by the customer.
- Any liability for the software’s suitability for
use outside of the contractually agreed technical control application
scenarios is excluded.
X. FINAL PROVISIONS
- The applicable laws of the Federal Republic of
Germany for legal relations among domestic parties apply exclusively to
all legal relations between Hermos and the customer.
- The venue of jurisdiction is the court that
officially presides over the district in which Hermos is located. However,
Hermos is entitled to file a lawsuit at the customer’s place of business.
The place of performance for both parties is the seat of Hermos.
- If one provision in these terms and conditions or
a provision made in the scope of any other agreements should be or become
invalid, then this shall not affect the validity of any of the remaining
provisions or agreements. The completely or partially ineffective
provision will then be replaced by a provision that most closely approximates
the economic purpose of the invalid provision.
Last updated May 2012