heroal - Johann Henkenjohann GmbH & Co. KG
Österwieher Str. 80
33415 Verl (Germany)
Phone +49 5246 507-0
Fax +49 5246 507-222
1 Scope of these terms and conditions
1.1 Our deliveries, services and offers are provided solely on the basis of these terms and conditions. They thus also apply to all future business relations, even in the absence of a subsequent, explicit agreement to that effect. It shall be assumed that these terms and conditions are accepted, at the latest upon receipt of the goods or services.
1.2 Conflicting confirmation by the customer, with reference to the customer's terms and conditions of business or purchase, is hereby excluded.
1.3 Deviations from these terms and condition are only valid if we confirm them in writing.
2 Conclusion of offer and contract
2.1 Our offers are subject to confirmation. Services and calculations are realised according to the prices indicated on the day of dispatch or collection of goods. Significant changes in costs – e.g. due to increased raw material prices or wages – while the order is in progress entitle us to request a price adjustment or, in the event of disagreement, to withdraw from the contract. No freight is charged for deliveries realised with our own HGV, for orders valued at €3000.00 and above. For other means of dispatch and for order values of less than €3000.00, the freight costs are to be met by the customer.
2.2 If an order from the customer qualifies as a binding offer (§ 145 BGB – German Civil Code), we can accept this offer within 2 weeks. This acceptance can occur in writing or by means of delivery of the goods.
2.3 Unless otherwise stipulated upon order confirmation, upon delivery or dispatch of goods, risk is passed to the customer “ex works” – i.e. as soon as the consignment has been transferred to the person responsible for transport or has left our warehouse or business premises for dispatch. If dispatch becomes impossible without culpability on our part, the risk shall pass to the customer upon notification of availability for dispatch. We do not provide transport insurance.
2.4 Unless otherwise arranged, we do neither charge for, nor take back, single-use packaging. Retrieval is not among our obligations. Special packaging, e.g. steel pallets and crates, are billed at cost. Steel pallets are to be returned by the customer at the customer's expense, without charging freight. If they are returned free of all charges, in usable condition, we shall issue a credit note for the full value.
3 Prices/payment conditions
3.1 Unless otherwise arranged, all prices are in euros and are subject to VAT at the respective applicable rate.
3.2 Unless otherwise arranged in writing, payment is to occur within 30 days after the invoice date, strictly net. Cash discounts (maximum 2%) can only be approved if payment occurs within 10 days after invoicing. Cash discounts are only granted if all due payment obligations, including those from previous deliveries, are fulfilled and the invoice sum is paid to us punctually in cash, or credited to our account, by the aforementioned due dates.
3.3 If the aforementioned payment deadline is exceeded, we are entitled to charge statutory default interest, without the need for a specific notice of default. This does not exclude the assertion of additional claims for damages.
3.4 Payment shall be deemed effected as soon as we have unconditional access to the sum. Cheques shall only be accepted on account of fulfilment. Payment shall only be deemed effected once the cheque has been honoured and we have unconditional access to the sum.
We reserve the right to accept external or internal bills of exchange. The costs and discount charges are to be met by the customer. We do not guarantee prompt discharge of prolonged bills of exchange on our part.
3.5 The customer is only entitled to offsetting rights if their counter-claims are determined to be legally valid, are undisputed or are recognised by us. Moreover, the customer is authorised to exercise a right of retention only insofar as the customer's counter-claim is based on the same contractual relationship.
4.1 The arrangement of binding deadlines or time periods must occur in writing and shall be agreed upon individually. The specified time period can only begin after all technical questions have been clarified. Upon failure to adhere to a binding deadline confirmed in writing, the customer is obliged to set us an appropriate extension period in writing. If fulfilment does not occur within the extension period either, the customer is entitled to withdraw from the contract.
4.2 Insofar as we cannot meet binding delivery deadlines, for reasons not due to any failing on our part (non-availability of performance), we shall notify the customer immediately and inform them of the estimated new delivery period. If performance remains unavailable within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we shall immediately reimburse the customer for any counter-performance already realised. In particular, if our suppliers fail to deliver to us punctually, this applies as non-availability of performance in this regard if we have concluded a congruent hedging transaction. Our legal rights of withdrawal and termination, as well as the legal regulations regarding contract remuneration upon exclusion of the obligation to perform (e.g performance and/or subsequent performance become(s) impossible or unreasonable) shall remain unaffected. The customer's rights of withdrawal and termination according to these General Terms and Conditions shall also remain unaffected.
4.3 The customer is entitled to assert claims of default insofar as we are responsible for the default. However, the customer must issue a warning in each case. In the event of only slightly negligent breach of obligations on our part or on the part of our vicarious agents, our liability is limited to the amount of damages typically foreseeable for the type of contract.
This does not affect our liability for damages resulting from injury to life, bodily injury, damage to health, intent or gross negligence. Furthermore, our liability as defined by the German Product Liability Act (ProdHaftG) shall remain unaffected.
4.4 If the customer defaults on acceptance or breaches any other obligation to cooperate, we are entitled to demand a lump-sum payment amounting to 3%, and no more than 10%, of the remuneration as compensation for our costs, without prejudice to other claims. However, the customer is permitted to submit evidence that we have not suffered any damages, or that our damages are substantially less than the lump sum referred to in sentence 1.
5 Retention of title
5.1 We retain ownership of the delivered goods until all claims with respect to the customer which result from the business relationship, including claims arising in future – also from contracts concluded at the same time or at a later date – are settled. This also applies if individual claims, or all claims, have been included in an ongoing invoice and the balance has been struck or approved.
5.2 The goods subject to retention of title may not be pledged to third parties or assigned as security until the secured claim is paid in full. If third parties access the goods which belong to us, the customer is to notify us immediately in writing, stating the extent of this access.
5.3 The customer is entitled to sell the goods on, in the ordinary course of business, provided that the receivables from the onward sale are transferred to us as follows: The customer immediately assigns to us all claims and ancillary rights which accrue to the customer against the purchaser or against third parties as a result of the onward sale, irrespective of whether the goods subject to retention of title are sold on in an adapted or unadapted form.
The customer is entitled to collect these claims even after assignment. Our right to collect these claims ourselves shall remain unaffected. However, we undertake to refrain from collecting such claims, as long as the customer fulfils their payment obligations. Upon request, the customer is to provide us with all information necessary for identification of the third party and for assertion of the assigned claims. If the goods are resold together with other goods which belong to the customer, our claim against the purchaser is regarded as assigned, to the amount of the delivery price agreed between us and the customer.
5.4 With regard to any handling and adaptation of the goods subject to retention of title, we qualify as the manufacturer within the meaning of § 950 BGB (German Civil Code), but without any further obligation. The adapted goods are regarded as goods subject to retention of title for the purposes of these terms and conditions. If the goods subject to retention of title are adapted, or inseparably mixed, with other items that do not belong to us, we shall acquire ownership of the new object in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used at the time of adapting or mixing. The resulting co-ownership rights are regarded as goods subject to retention of title for the purposes of these terms and conditions. If our goods are combined and inseparably mixed with other movable objects to form a unified item and if the other item is to be seen as the main item, it is hereby agreed that the customer shall assign co-ownership to us proportionally, insofar as the main item belongs to the customer. In addition, the same conditions apply for the item created by adapting, combining and mixing as apply for the goods subject to retention of title.
5.5 If the customer acts in breach of contract, particularly in the event of default on payment, we shall be entitled to withdraw from the contract after setting an appropriate payment deadline. We are then entitled to retrieve previously delivered goods and the customer is obliged to return them. In the event of attachments or other interventions by third parties, the customer must notify us immediately in writing, including a report of attachment and a statutory declaration as to the identity of the attached item.
5.6 Notwithstanding the customer's payment obligations, we are entitled to sell the retrieved goods to the best of our ability and to credit the proceeds in full, or upon deduction of a 25% decrease in value. The original invoice price shall serve as a basis. The regular decrease in value is determined according to the worsened condition of material, the costs of collection and the worsening of the goods caused by the return transport. However, the customer is permitted to submit evidence that we have not suffered any damages, or that our damages are substantially less than the lump sum referred to in sentence 1.
5.7 If the realisable value of securities exceeds our claims by more than 10%, upon the customer's request we shall release securities, as selected at our discretion.
6 Legal guarantee
6.1 The customer is obliged to unpack and inspect the delivered goods immediately upon receipt (§ 377 HGB – German Commercial Code). Complaints of any kind are to be made in writing within 8 days after delivery. We are to be notified of any concealed defects immediately upon discovery thereof, and no later than 10 days after discovery. After this deadline has passed, the goods are regarded as faultlessly delivered and approved.
6.2 We shall rectify defects by means of repair or replacement. If subsequent performance fails, or would entail disproportionate costs, the customer retains the right to a reduction in price and the right of withdrawal. In the event of only slight defects, or only a slight breach of obligations on our part, withdrawal is excluded.
6.3 We guarantee our goods in accordance with the respective legal guarantee period, as long as the customer uses the goods in the usual and intended manner. In this regard, we point out that the technical specifications which we issue, with respect to the contractual object and intended use, only represent the approximate character and type of the goods. Permissible tolerances defined by DIN are no grounds for complaint and do not denote defects. We shall not be held responsible for defects in the event of natural wear and tear, damage caused by improper handling, inadequate storage, or if the defect is due to the goods being used in a special manner which was not indicated to us in writing upon conclusion of the contract. The period begins when the goods are handed over to the customer.
7 Compensation for damages/liability
7.1 Unless provided otherwise below, claims for damages on the part of the customer – whatsoever the legal grounds – shall be excluded. We shall therefore not be held liable for damage not occurring to the delivery item itself; in particular we shall not be held liable for the customer's lost profit or other financial losses.
7.2 In the event of solely negligent breach of obligations on our part or on the part of our vicarious agents, our liability is limited to the amount of damages typically foreseeable for the type of contract. For damages resulting from injury to life, bodily injury or damage to health on the part of the customer, as well as from intent or gross negligence, we accept liability according to the legal requirements. This also applies if the customer, due to the absence of a guaranteed characteristic of the item or due to fraudulent concealment, desires compensation for damages in lieu of performance. Furthermore, our liability as defined by the German Product Liability Act (ProdHaftG) shall remain unaffected.
7.3 Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our salaried employees, waged workers, hired staff, representatives and vicarious agents.
8 Defence of insecurity
If, after conclusion of the contract, it becomes evident that the customer's insufficient ability to pay endangers our payment claim, we can withhold our performance. This right to refuse performance on our part shall not apply if the customer provides payment or security for payment. We are entitled to set an appropriate period, during which the customer is to progressively provide payment or suitable security against delivery. If this period expires unsuccessfully, we are entitled to withdraw from the contract.
9 Applicable law/jurisdiction/partial nullity
9.1 These terms and conditions, as well as all legal relationships between ourselves and the customer, shall be governed by the law of the Federal Republic of Germany.
9.2 Our General Terms and Conditions of Use also constitute part of our deliveries.
9.3 If the customer is a trader as defined in the German Commercial Code (HGB), a legal entity under public law or a separate estate under public law, jurisdiction shall be solely that of the district court of Gütersloh (Amtsgericht Gütersloh) and the regional court of Bielefeld (Landgericht Bielefeld) for all disputes resulting directly or indirectly from the contractual relationship, according to the value of the claim.
9.4 Should a provision in these terms and conditions of business be or become invalid, the validity of the remaining provisions shall remain unaffected. If the invalidity is based on a performance-related or time-related stipulation, the measure prescribed by law comes into force in its place.
heroal USA Inc.
7022 TPC Drive, Suite 100
Orlando, FL 32822
Phone +1 888 4376 257
1 Scope of these terms and conditions
1.1 The accompanying quotation, proposal, confirmation of sale or invoice (the “Sales Confirmation”) together with these terms and conditions of sale (these “Terms”, and together with the Sales Confirmation, the “Agreement”) are the only terms which govern the sale of the goods (“Products”) and services (“Services”) by heroal USA Inc. (“heroal”) to the buyer named on the Sales Confirmation (“Customer”). The Products, Services and Sales Confirmation are provided solely on the basis of these Terms. They thus also apply to all future quotation, proposal, confirmation of sale and invoice and all future business relations, even in the absence of a subsequent, explicit agreement to that effect between Customer and heroal, unless otherwise agreed to by the parties in writing.
1.2 This Agreement shall comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of irreconcilably conflicting terms between the quotation, proposal, confirmation of sale or invoice for the same order, the confirmation of sale shall prevail and shall be considered the Sales Confirmation for purposes contained herein. This Agreement shall prevail over any of Customer’s general terms and conditions of purchase regardless whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms or the Agreement. heroal rejects any additional or inconsistent terms or conditions offered by Customer at any time, whether or not such terms or conditions materially alter this Agreement and irrespective of Customer’s acceptance of, or payment for, heroal’s Products or heroal’s issuance of a Sales Confirmation.
1.3 Customer will be deemed to have accepted this Agreement if Customer (a) issues a purchase order in response to the Sales Confirmation, (b) signs the accompanying Sales Confirmation, or otherwise provides any indication of acceptance thereto, (c) accepts delivery of any Products or Services, or (d) makes any other indication of acceptance or agreement (including failure to promptly reject these Terms). heroal may cancel any and all Sales Confirmations and orders for Products and Services prior to delivery, upon written notice to Customer.
1.4 Customer may not make changes to the Sales Confirmation, or any part of the order, including postponement or cancellation thereof, without heroal’s prior written approval. Customer may request a change order by submitting a request to heroal in writing. heroal’s approval to any change order shall be in heroal’s sole discretion. Upon heroal’s written approval of a change order, such change order shall modify the Sales Confirmation in accordance with the terms therewith. heroal reserves the right to ask the Customer to reimburse the costs incurred as a result of such change order or any cancellation or termination of the order.
1.5 Notwithstanding anything to the contrary contained in this Agreement, heroal may, from time to time change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Sales Confirmation.
2 Delivery of Products and Performance of Services
2.1 The Products will be delivered within a reasonable time after the receipt of Customer’s purchase order. heroal shall not be liable for any delays, loss, or damage in transit.
2.2 Unless otherwise agreed to in a signed writing by the parties, heroal shall deliver the Products to Customer in heroal’s facility listed in the Sales Confirmation (the “Delivery Point”) using heroal’s standard methods for packaging such Products and Customer shall take delivery of the Products within one (1) business day of heroal’s written notice that the Products have been delivered to the Delivery Point. Customer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Products at the Delivery Point, and will unload and release all transportation equipment promptly so heroal incurs no demurrage or other expense.
2.3 Unless otherwise provided in the Sales Confirmation, delivery of the Products shall be made EXW the Delivery Point (Incoterms® 2020).
2.4 heroal may, in its sole discretion, without liability or penalty, make partial shipments of Products to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Customer’s purchase order.
2.5 If for any reason Customer fails to accept delivery of any of the Products on the date fixed pursuant to heroal’s notice that the Products have been delivered at the Delivery Point, or if heroal is unable to deliver the Products at the Delivery Point on such date because Customer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Customer; (ii) the Products shall be deemed to have been delivered; and (iii) heroal, at its option, may store the Products until Customer picks them up, provided that Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
2.6 heroal shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, provided, however, that any such performance dates are understood to only be estimates.
2.7 With respect to the Services, Customer shall (i) cooperate with heroal in all matters relating to the Services and provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by heroal, for the purposes of performing the Services; (ii) respond promptly to any heroal request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for heroal to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as heroal may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
2.8 In the event the parties agree under an executed agreement to binding delivery dates, deadlines or time periods, the period for fulfillment can only begin after all technical questions have been clarified. In the event heroal cannot meet such binding delivery deadlines, heroal shall notify Customer of the estimated new delivery period. heroal shall in no event be deemed in breach under this Agreement or any agreement among the parties for failure to deliver or perform within a binding period or by a binding date to the extent such failure was due or caused by Customer, any supplier or any third party.
3.1 The quantity of any installment of Products as recorded by heroal on dispatch from heroal’s place of business is conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence proving the contrary.
3.2 heroal shall not be liable for any non-delivery of Products (even if caused by heroal’s negligence) unless Customer gives written notice to heroal of the non-delivery within three (3) days of the date when the Products would in the ordinary course of events have been received.
3.3 Any liability of heroal for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.
3.4 Customer acknowledges and agrees that the remedies set forth in this Section 3 are Customer’s exclusive remedies for any non-delivery of Products.
4.1 If heroal delivers to Customer a quantity of Products of up to 5% more or less than the quantity set forth in the Sales Confirmation, Customer shall not be entitled to object to or reject the Products or any portion of them by reason of the surplus or shortfall and shall pay for such Products the price set forth in the Sales Confirmation adjusted pro rata.
5 Title and Risk of Loss.
5.1 Except as otherwise provided in Section 2.5 above, title and risk of loss passes to Customer upon delivery of the Products at the Delivery Point. As collateral security for the payment of the purchase price of the Products, Customer hereby grants to heroal a lien on and security interest in and to all of the right, title, and interest of Customer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest in accordance with applicable law.
6 Customer’s Acts or Omissions.
6.1 If heroal’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, heroal shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
7.1 Subject to Section 8 and Section 11 below, the Products shall conform to the specifications set forth in the Sales Confirmation or, if no specifications are listed therein, heroal’s customary specifications in effect as of the date of manufacture (the “Specifications”). Except as otherwise provided in this Section 7, heroal may modify the Specifications at any time without prior written notice to Customer, provided that heroal shall update the Sales Confirmation in the event the Prices are adjusted as a result thereof. In the event the Specifications are Customer’s specifications, Customer’s design, or otherwise result from Customer’s request to customize, adjust or otherwise modify heroal’s specifications, regardless of whether such Specifications were designed or modified by heroal or any third party (collectively, “Customer’s Specifications”), heroal may modify such Customer’s Specifications provided that heroal shall notify Customer thereof and, in the event the Prices are adjusted as a result thereof, shall update the Sales Confirmation.
8 Inspection and Rejection of Nonconforming Products.
8.1 Customer shall inspect the Products within eight (8) days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Products unless it notifies heroal in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by heroal. “Nonconforming Products” means only the following: (i) product shipped is different than identified in the Sales Confirmation; (ii) the product’s label or packaging incorrectly identifies its contents, or (iii) the products delivered do not conform to the Specifications. 2.4 Unless otherwise arranged, we do neither charge for, nor take back, single-use packaging. Retrieval is not among our obligations. Special packaging, e.g. steel pallets and crates, are billed at cost. Steel pallets are to be returned by the customer at the customer's expense, without charging freight. If they are returned free of all charges, in usable condition, we shall issue a credit note for the full value.
8.2 If Customer timely notifies heroal of any Nonconforming Products, heroal shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Products to heroal’s facility as notified by heroal to Customer in writing. If heroal exercises its option to replace Nonconforming Products, heroal shall, after receiving Customer’s shipment of Nonconforming Products, ship to Customer, at Customer’s expense and risk of loss, the replaced Products to the Delivery Point.
8.3 Customer acknowledges and agrees that the remedies set forth in Section 8.2 are Customer’s exclusive remedies for the delivery of Nonconforming Products or products that Customer ought to have identified that the products delivered were Nonconforming Products during the Inspection Period. Except as provided under Section 8.2, all sales of Products to Customer are made on a one-way basis and Customer has no right to return Products purchased under this Agreement to heroal.
9.1 Customer shall purchase the Products and Services from heroal at the prices (the “Prices”) set forth in heroal’s Sales Confirmation. In the event the Sales Confirmation is silent regarding the Prices, the applicable Prices shall be as forth in heroal’s published price list in force the date of shipment of Products or, in the case of Services, the date of the Sales Confirmation; provided that, if the Prices were to be increased by heroal before delivery of the Products to a carrier for shipment to Customer, including as a result of raw material or other supply-chain cost increases to heroal, then the Prices shall be such increased Prices and Customer shall be billed by heroal on the basis of such increased Prices.
9.2 In the event of any significant changes in costs to heroal, including an increased cost of raw material or other supply prices or wages, during the term of this Agreement, heroal shall be entitled to request a price adjustment and, if the parties fail to agree to updated Prices, may terminate this Agreement without further liability to heroal.
9.3 Customer agrees to reimburse heroal for all reasonable travel and out-of-pocket expenses incurred by heroal in connection with the performance of the Services.
9.4 All Prices are exclusive of all sales, use, value added and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, heroal’s income, revenues, gross receipts, personal or real property, or other assets.
10 Payment Terms.
10.1 Unless otherwise agreed to in a signed writing by the parties, Customer shall pay all invoiced amounts due to heroal immediately and before the product is shipped. Unless otherwise stated in the Sales Confirmation, Customer shall make all payments hereunder by credit card or wire transfer and in US dollars. Any fees related to the form of payment are to be paid by the Customer.
10.2 Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Payment shall be deemed effected as soon as heroal can unconditional access to the sum. Customer shall reimburse heroal for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which heroal does not waive by the exercise of any rights hereunder), heroal shall be entitled to suspend the delivery of any or all Products or performance of any Services and stop Products in transit if Customer fails to pay any amounts when due hereunder.
10.3 Customer shall not withhold payment of any amounts due and payable by reason of any set-off, including, but not limited to, as a result of any claim or dispute with heroal or relating to heroal’s breach, bankruptcy or otherwise.
11 Limited Warranty.
11.1 Unless a different warranty period is provided in the Sales Confirmation, heroal warrants to Customer that for a period of [twenty-four (24) months] from the date of shipment of the Products (“Warranty Period”), that such Products will materially conform to the Specifications. heroal shall not be held responsible for defects in the event of natural wear and tear, damage caused by improper handling, inadequate storage, or if the defect is due to the Products being used in a special manner which was not indicated to heroal in writing or not included within heroal’s instructions.
11.2 EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 11.1, HEROAL MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES, OR ANY OTHER GOODS SOLD BY HEROAL, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
11.3 Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products. Third Party Products are not covered by the warranty in Section 11.1. For the avoidance of doubt, HEROAL MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
11.4 heroal shall not be liable for a breach of the warranties set forth in Section 11.1 and Section 11.2 unless: (i) Customer gives written notice of the defective Products or Services, as the case may be, reasonably described, to heroal within five (5) business days of the time when Customer discovers or ought to have discovered the defect; (ii) if applicable, heroal is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 11.1 to examine such Products and Customer (if requested to do so by heroal) returns such Products to heroal’s place of business at heroal’s cost for the examination to take place there; and (iii) heroal reasonably verifies Customer’s claim that the Products or Services are defective.]
11.5 heroal shall not be liable for a breach of the warranty set forth in Section 11.1 or Section 11.2 if: (i) Customer makes any further use of such Products after giving such notice; (ii) the defect arises because Customer failed to follow heroal’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products; or (iii) Customer alters or repairs such Products without the prior written consent of heroal.
11.6 Subject to Section 11.4 and Section 11.5 above, with respect to any such Products during the Warranty Period, heroal shall, in its sole discretion, either: (i) repair or replace such Products (or the defective part) or (ii) credit or refund the price of such Products at the pro rata contract rate provided that, if heroal so requests, Customer shall, at heroal’s expense, return such Products to heroal.
11.7 THE REMEDIES SET FORTH IN SECTION 11.6 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND HEROAL’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 11.1.
12 Limitation of Liability.
12.1 IN NO EVENT SHALL HEROAL, INCLUDING HEROAL’S EMPLOYEES, REPRESENTATIVES AND AGENTS, BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT HEROAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12.2 IN NO EVENT SHALL HEROAL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO HEROAL FOR THE PRODUCTS AND SERVICES SOLD HEREUNDER DURING THE TWELVE MONTH PERIOD PRECEDING THE CLAIM.
13.1 Customer shall defend, indemnify and hold heroal harmless from any and all claims, demands, subrogation claims by Customer’s insurers, causes of action, controversy, liabilities, damages, fines, regulatory actions (including product recalls, withdrawal or regulatory requirements regarding the Product), seizures of Product, losses, costs, expenses (including, but not limited to investigations, recall and withdrawal expenses, attorneys’ fees, expert witness expenses and litigation expenses) (hereinafter “Claim”), arising from or in connection with any Claim asserted against heroal for any damage, environmental liability, patent or intellectual property infringement caused by (a) Customer’s Specifications; (b) the unintended use, modification or alteration of the Products or their use contrary to heroal’s instructions; (c) Customer’s fault, negligence, or breach of this Agreement; (d) any injury, death, loss, property damage, delay or failure in delivery of heroal’s Products caused by Customer; or (e) any other Claim, whether in tort, contract, or otherwise, relating to this Agreement, the business relationship between the parties, the Products or the Services, resulting from or caused by Customer, in whole or part.
14 Compliance with Law.
14.1 Customer shall comply with all applicable laws, regulations, and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Customer shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Customer. Customer assumes all responsibility for shipments of Products requiring any government import clearance. heroal may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the Products.
15.1 In addition to any remedies that may be provided under these Terms, heroal may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
16.1 No waiver by heroal of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by heroal. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17 Confidential Information.
17.1 All non-public, confidential or proprietary information of heroal, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by heroal to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by heroal in writing. Upon heroal’s request and at heroal’s option, Customer shall (i) promptly return all documents and other materials received from heroal or other heroal confidential information, including electronic data, or (ii) destroy all such documents, materials and confidential information, including electronic data, and certify in writing to heroal that such documents, materials and confidential information has been destroyed. heroal shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
18 Force Majeure.
18.1 heroal shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of heroal (in heroal’s reasonable discretion) and the effects of these acts or circumstances including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions or orders, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
19.1 Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of heroal. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
20 Relationship of the Parties.
20.1 The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
21 No Third-Party Beneficiaries.
21.1 This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
22 Governing Law.
22.1 All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Illinois. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
23 Submission to Jurisdiction.
23.1 Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Illinois in each case located in the City of Chicago and County of Cook, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
24.1 All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation (for heroal, with a copy to the address set forth on the first page of these Terms) or to such other address that may be designated by the receiving party in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section.
25.1 If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
26.1 Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.
27 Amendment and Modification.
27.1 These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.