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These General Terms and Conditions of Business ("Terms and Conditions") are valid for all supplies and offers of hema electronic GmbH, hereinafter called "hema". Counter-confirmations of our customers referring to their own terms and conditions of business and purchasing will be rejected by us.
Documents forming part of offers, such as illustrations, drawings and indications of weights and dimensions, shall only be deemed approximate unless expressly stated as being authoritative. hema reserves all rights of title and copyright to cost quotations, drawings and other documents, none of which may be made accessible to third parties. hema undertakes not to make plans designated by the customer as confidential accessible to any third party except with the customer's consent.
3. Scope of supply
The supplier's written order confirmation shall be authoritative for the scope of supply. Where hema submits an offer which is firm if accepted within a specified period and the offer is accepted within the said period, the offer shall be authoritative if no subsequent order confirmation is issued. Any additional understandings or modifications shall only be valid if confirmed in writing by hema.
In the absence of any special, prior-ranking agreement, prices are quoted EXW Aalen (Incoterms® 2010), exclusive of packing. Prices are subject to the addition of value added tax at the statutory rate in force.
In the absence of any special agreement to the contrary, payments must be made by remittance to hema's account within 30 days from date of invoice without any deduction and free of charges for hema. In the case of repairs, payment must be effected within 14 days from date of invoice. In the case of supplies to new customers, delivery will only be effected in return for payment in advance as long as no other agreements are in place.
The customer may not withhold payments or make any offset on account of his own counterclaims which are disputed by hema.
5. Delivery time
a) Dates or periods for delivery shall only be binding on hema if agreed as such in writing.
b) A period for delivery shall commence on dispatch of the order confirmation, though at the earliest when any documents, permits, approvals, parts, samples etc. required to be supplied by the customer have been supplied by the customer.
c) A date or period for delivery shall be deemed to have been met if the customer has been advised of readiness for dispatch or the goods have left the works by such date or the end of such period.
d) A period for delivery shall be extended commensurately in the case of any activities in connection with industrial action, measures taken by official bodies or any unforeseen obstacles which are beyond the control of hema, provided such obstacles can be shown to significantly affect hema's ability to produce or deliver the goods. This shall also apply where hema's own suppliers are affected by circumstances of the said kind.
e) hema may not be held responsible for such circumstances even if they occur when hema is already in delay. In important cases, hema will inform the customer of the start and end of such circumstances as soon as possible.
f) If dispatch is delayed on the request of the customer, hema is entitled, while the goods are stored in hema's works and beginning one month after the advice of readiness for dispatch, to charge warehousing fees in an amount of at least 0.5 % of the invoice amount per month. hema further is entitled, after setting a deadline for the customer to take delivery of the goods and the customer having failed to take delivery of them by such deadline, to dispose of the goods elsewhere and to supply the customer with a reasonably extended period of time.
g) Compliance with delivery dates or periods by hema shall be conditional upon fulfilment by the customer of his contractual duties.
6. Passing of risk and acceptance of the goods
The risk of the goods shall pass to the customer at the latest on dispatch of the goods. This shall also apply in the case of part-deliveries and in cases where hema has also undertaken to provide other services. hema will, on the request and for the account of the customer, insure shipments against theft, breakage and fire, transport and water damage as well as other insurable risks.
Should dispatch be delayed due to reasons for which the customer is responsible, the risk shall pass to the customer on the day of readiness for dispatch. hema is prepared to obtain such insurance for the goods as requested by the customer.
The customer must accept the goods even if they have minor defects, though without prejudice to his rights pursuant to Section 7 hereof. Part-deliveries are permissible.
7. Reservation of title
hema reserves title to the goods until receipt of all payments arising from the contract of supply. In the case of any breach of contract by the customer - in particular default in payment - hema shall have the right to recover the goods and the customer shall have a duty to surrender them to hema. Recovery or attachment of the goods by hema shall not constitute any repudiation of the contract by hema unless expressly stated by hema as doing so. The customer shall inform hema without delay in writing of any interference with the goods by third parties.
The customer shall have the right to resell the goods in the ordinary course of business. However, he hereby already assigns to hema all claims arising from resale of the goods to which hema reserves title ("reserved goods"), regardless of whether the reserved goods are resold without or after any further processing. The customer is authorized to collect the said claims notwithstanding the aforesaid assignment; this shall, however, be without prejudice to the right of hema to collect the claims itself, though hema undertakes not to make use of this right for as long as the customer meets his payment obligations towards hema. The customer shall, on hema's request, inform hema in full of the assigned claims and provide hema with all necessary details and all documents relating thereto. Should the goods be resold together with other goods not belonging to hema, the customer's claim against his own customer shall be deemed assigned to hema in the amount of the delivery price agreed between hema and the customer.
Processing or refashioning of reserved goods by the customer shall in all cases be deemed done on hema's behalf. If reserved goods are combined by processing with other goods, hema shall have co-title to the new goods so created in the same proportion as that between the value of the reserved goods and the other goods involved at the time of processing. In all other respects, the same shall apply to the new goods created as aforesaid as to the reserved goods.
hema undertakes to release security to which it is entitled insofar as the value of such security exceeds the value of the claims thereby secured by more than 25 %.
8. Liability for defects
hema shall, to the exclusion of all other claims but without prejudice to the provisions of Section 9 hereof, be liable for defects as follows:
a) hema will repair or replace – the choice being at its own reasonable discretion – free of charge all parts which within half a year from being taken into operation prove to be more than insignificantly impaired in their usefulness due to a cause already existing prior to passing of risk of the goods, and in particular defective design, defective materials or defective manufacturing or workmanship. Such defects must be notified to hema without delay in writing. Parts removed for replacement shall become the property of hema. In the event of any delay in dispatch, installation or taking into operation of parts due to reasons for which hema is not responsible, hema's liability shall cease not later than 12 months after the passing of risk.
b) The customer's right to claim warranty for defects shall in all cases end 6 months after timely notice of defect, though not earlier than at the end of the original term of hema's duty to provide warranty.
c) hema will accept no liability for damage or defects arising from any of the following causes: unsuitable or improper use by the customer, defective installation or taking into operation by the customer or third parties, natural wear and tear, faulty or negligent treatment, unsuitable energy or other such media, substitute materials, deficient building work, unsuitable foundations, chemical, electrochemical or electrical influences, provided they are not due to any fault on the part of hema, as well as unusual operating conditions on which hema has no influence, e.g. humidity etc.
d) The customer shall, after notifying hema of defects, allow hema the necessary time and opportunity to make any repairs or replacement deliveries as may appear necessary; otherwise, hema shall be released from its liability for defects. In urgent cases of danger to operating safety or in order to prevent disproportionately greater damage, the customer shall inform hema immediately and may, also in the event of any delay by hema, remedy the defect himself or have it remedied by third parties and request refund from hema for the necessary costs incurred.
e) Of the necessary direct costs for repair or replacement, hema shall, in the case of justified claims, bear the costs for the replacement item including delivery as well as the reasonable costs for removal and fitting and also – to the extent this can be reasonably demanded – the costs for the provision of any necessary fitters and auxiliary personnel. All other costs shall be borne by the customer.
f) The warranty period for replacement items or repairs shall be 3 months or at least until the end of the original warranty period. The period shall be extended by the duration of the interruption to operation caused by the remedy work.
g) All warranty will be excluded should any modifications or repairs be performed improperly by the customer or third parties or without the prior consent of hema.
h) All other claims of the customer, especially to compensation for damage sustained other than by the goods themselves, are barred. This shall not apply in the case of willful intent or gross negligence on the part of hema or in the case of any culpable breach of material contractual duties. In the case of any culpable breach of material contractual duties, hema shall only be liable for such loss or damage as is reasonably foreseeable in the case of a contract of the type in question. This shall not apply in the case of willful intent or gross negligence on the part of hema. Nor shall the exclusion of liability apply in cases in which the supplier has liability under the Product Liability Act for personal injury or damage to privately used objects arising from defects to goods, or in the case of the absence of properties which were expressly warranted and where the warranty of properties had precisely the purpose of safeguarding the customer against loss or damage sustained other than by the goods themselves.
9. Liability for secondary duties
If through the fault of hema the goods cannot be used by the customer for the contractually intended purpose, namely as a result of failure to provide or faulty provision of suggestions and advice or other contractual secondary duties, Sections 8 and 11 shall apply accordingly, though to the exclusion of all other claims.
10. Liability for third-party software
hema must be notified in writing of the use of third-party software on the goods. Only if hema approves such use may the customer use such software; otherwise all liability for claims arising therefrom will be barred.
Insofar as hema does not use software produced by itself on the goods, claims for compensation against hema are barred. Excepted from this are the following cases:
- willfully defective or grossly negligent use of such software by hema
- unsuitability of such software for the intended use, which unsuitability should have come to the notice of hema through reasonable testing for the intended use.
In this case, hema assigns its warranty claims against the third-party software supplier to the customer.
11. Data protection notice
We collect, process and use your personal data, in particular your contact data for processing your order, including your e-mail address, if you provide us with it. To check your creditworthiness, we can use information (e.g. a so-called score value) from external service providers to help us make a decision and make the payment method dependent on this. This information also includes information about your address.
12. Right of the customer to repudiation and cancellation of contract and other liability of hema
a) The customer may repudiate the contract if before the passing of risk it should become impossible for hema to provide complete performance; this shall also apply in the case of incapability on the part of hema. It shall also apply if, in the case of an order for goods of the same kind, it becomes impossible for hema to supply part of the goods and the customer has a justified interest in rejecting a part-delivery; otherwise, the customer may claim a corresponding reduction in price.
b) If, in the case of any delay in performance pursuant to Section 5, the customer allows additional reasonable time with an express declaration that acceptance of the goods will be refused on expiry of such time and hema fails to perform within such time, the customer shall have the right to repudiate the contract.
c) Should impossibility of performance arise during a delay in acceptance of the goods or through the fault of the customer, the customer shall continue to have a duty to make counter-performance.
d) If, through its fault, hema allows a reasonable additional period of time granted to it to effect repair or replacement as a result of a defect pursuant to these Terms and Conditions to elapse without effecting repair or replacement through its fault, the customer shall have the right to cancel the contract. The customer shall also have this right in other cases of failure by hema to effect repair or replacement.
e) All other claims of the customer, in particular to cancellation of the contract with notice, reduction in price or compensation for loss or damage of any kind, in particular loss or damage sustained other than by the item of delivery itself, are barred. This exclusion of liability shall not apply in the case of willful intent or gross negligence on the part of hema or culpable breach of material contractual duties. In the latter case hema shall – except in cases of willful intent and gross negligence – only be liable for the loss or damage which is reasonably foreseeable for the type of contract concerned. Nor shall the exclusion of liability apply in cases in which the supplier has liability under the Product Liability Act for personal injury or damage to privately used objects arising from defects to goods, or in the case of the absence of properties which were expressly warranted and where the warranty of properties had precisely the purpose of safeguarding the customer against loss or damage sustained other than by the goods themselves.
13. Legal venue
Where the customer is a registered trader, a legal entity under public law or a special asset fund under public law, the legal venue shall be Aalen; hema shall, however, also have the right to bring legal action in the courts having jurisdiction for the customer's place of business.
14. General provisions
If a provision or part of the present agreements is or becomes invalid, illegal, contrary to law or to public policy, or unenforceable, the remaining provisions or portions thereof shall remain unaffected thereby.
hema electronic GmbH
73431 Aalen, Germany
Phone: +49 7361 9495-0
Fax: +49 7361 9495-45
Last update: May 2018