Hell & Co. GmbH.
1.1 These terms and conditions apply to all current and future business relations of Hell & Co. GmbH with our customers who qualify as entrepreneurs within the meaning of § 14 BGB, regardless of whether they are natural or legal persons or legally responsible personal companies.
1.2 Terms and conditions of the customer or third parties shall not apply, even if we do not separately object to their validity in individual cases. Even if we refer to a letter that contains or refers to terms and conditions of the customer or a third party, this does not constitute an agreement to the validity of those terms and conditions.
2. Conclusion of contract
2.1 Offers on our part are subject to change without notice, unless they are expressly marked as binding or contain a specific acceptance period.
2.2 We can accept orders or contracts within a period of two weeks after receipt. Acceptance may be confirmed either in writing or implied by delivery to the customer.
2.3 We reserve the right to make technical changes as well as changes in form, color, number of items and/or weight, insofar as this does not change the essence of the performance or the usability for the contractually intended purpose requires an exact match. Statements in the offer are not guaranteed characteristics, but descriptions or identifications of the delivery and performance..
3. Prices and terms of payment
3.1 Our prices are net ex works, plus value added tax at the legally applicable rate, customs duties, fees and other public charges. The prices applicable on the date of the order shall be decisive, unless expressly agreed otherwise..
3.2 Insofar as delivery is to take place more than four months after conclusion of the contract, our prices valid at the time of delivery shall apply..
3.3 Invoice amounts are to be paid without deduction no later than thirty days after delivery, unless otherwise agreed in writing. If payment is received within 10 days after delivery, we grant a discount of 2% of the net sales price. The date of crediting to one of our business accounts is decisive for the timeliness of payment. In the case of payment by check, fulfillment shall only occur when the amount is credited to one of our business accounts..
3.4 If the customer defaults on payment in whole or in part, interest shall be charged on the outstanding amounts in accordance with the German Civil Code; we reserve the right to claim further damages (including interest damages)..
3.5 Offsetting against counterclaims of the customer is only permitted insofar as the counterclaims are undisputed or have been legally established.
3.6 We shall be entitled to make outstanding deliveries only against advance payment or provision of security if, after conclusion of the contract, we become aware of circumstances which are likely to substantially reduce the creditworthiness of the customer and as a result of which payment of our outstanding claims by the customer under the respective contractual relationship is jeopardized. If the customer is not able to make advance payment or provide security within a period of 30 days after being requested to do so, we are entitled to withdraw from the purchase contract..
4.1 Deadlines and dates for deliveries promised by us are not binding, unless the binding force has been expressly promised or agreed. In the case of shipment, the delivery period or delivery date refers to the time of handover to the carrier, freight forwarder or other third party entrusted with the transport.
4.2 In case of shipment of the goods, we shall be liable only for the careful selection of the company arranging the shipment and suitable packaging of the goods. With the handover of the properly packed goods to this company, the risk of accidental loss and accidental deterioration of our delivery passes to the customer. The handing over is equal if the customer is in default of acceptance. The goods shall only be insured at the express request of the customer and at the customer's expense and only to the extent that the risks specified by the customer are insurable.
4.3 We shall not be liable for the impossibility of delivery or for delays in delivery insofar as these have been caused by force majeure or other events unforeseeable at the time of conclusion of the contract for which we are not responsible. This applies in particular to the case of delays in the context of customs clearance, insofar as this delay is not due to circumstances caused by us.
4.4 Insofar as events make delivery considerably more difficult or impossible for us and this hindrance is not only of temporary duration, we shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery periods shall be extended or the delivery dates shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the customer cannot reasonably be expected to accept the delivery as a result of the delay, he may withdraw from the contract by giving us immediate written notice..
4.5 We are entitled to make partial deliveries, unless the partial delivery is not usable for the customer, the delivery of the remaining ordered goods cannot be ensured by us or the customer incurs not only insignificant additional expenses as a result of the partial delivery..
4.6 In the event of delays in delivery or impossibility of delivery, our liability shall be determined in accordance with Section 7 of these General Terms and Conditions.
5.1 Returns of goods delivered free of defects will not be accepted without our prior consent; we reserve the right to return the goods to the customer at the customer's expense. In these cases, the customer also remains obligated to pay the purchase price.
5.2 If we agree to the return of goods delivered free of defects, the customer shall pay a handling fee in the amount of 30% of the sales price instead of the purchase price, unless expressly agreed otherwise..
6 Warranty, material defects
6.1 The warranty period is two years from delivery of the goods. This period shall not apply to claims for damages by the customer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by us or our vicarious agents, which shall be time-barred in accordance with the statutory provisions.
6.2 As a matter of principle, only the manufacturer's product specification shall be deemed agreed as the quality of the goods, unless a deviating quality has been expressly agreed between the parties. Public statements, recommendations or advertising by the manufacturer shall not constitute an agreement on quality between us and the customer..
6.3 The delivered goods shall be inspected carefully immediately after delivery to the customer or the third party designated by the customer. With regard to obvious defects or other defects that would have been recognizable in the course of an immediate, careful examination, the goods shall be deemed to have been approved if we do not receive a written notice of defect within a period of five working days after delivery. With regard to other defects, the goods shall be deemed approved if we do not receive a written notice of defect within five days after discovery of the defect. At our request, the goods complained of shall be returned to us carriage paid. If the notice of defect is justified, we shall reimburse the return shipment, but only to the extent of the costs incurred for a return shipment from the original delivery address.
6.4 In case of material defects of the delivered goods, we have the choice to repair or to deliver replacement goods. In case of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay, the customer may withdraw from the contract or reduce the purchase price to a reasonable extent..
6.5 If a defect is due to our fault, the customer may claim damages under the conditions specified in clause 7..
7. Liability for damages due to fault.
7.1 Our liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with this Clause 7, insofar as fault is relevant in each case..
7.2 In the event of simple negligence on the part of our executive bodies, legal representatives, employees and other vicarious agents, we shall not be liable insofar as this does not involve a breach of material contractual obligations. Material contractual obligations are the obligations to deliver the goods on time, their freedom from defects of title or such material defects that impair their functionality or usability more than insignificantly..
7.3 Insofar as we are liable on the merits for damages pursuant to Section 7.2, this liability shall be limited to damages which we foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which we should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the goods shall also only be eligible for compensation insofar as such damage is typically to be expected when the goods are used for their intended purpose..
7.4 In the event of liability for simple negligence, our liability to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to an amount of EUR 3,000,000.00.00 per claim.
7.5 The above exclusions and limitations of liability shall apply to the same extent in favor of our corporate bodies, legal representatives, employees and other vicarious agents.
7.6 The limitations of this clause 7 do not apply to our liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act..
8. Retention of title
8.1 The retention of title agreed below serves to secure all our respective existing current and future claims against the customer arising from the supply relationship existing between the contracting parties (including balance claims arising from a current account relationship limited to this supply relationship)..
8.2 The goods delivered by us shall remain our property until full payment of all secured claims. The goods as well as the goods covered by the retention of title taking their place in accordance with the following provisions shall hereinafter be referred to as "goods subject to retention of title".
8.3 The customer shall store the goods subject to retention of title for us free of charge.
8.4 The customer shall be entitled to use the goods subject to retention of title in the ordinary course of business until the event of realization (clause 8.9). Pledges and transfers of ownership by way of security are not permitted.
8.5 If the reserved goods are processed by the customer, it is agreed that the processing shall be carried out in our name and for our account as manufacturer and that we shall acquire direct ownership or - if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods - co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur on our part, the purchaser shall already now transfer to us as security his future ownership or - in the above-mentioned ratio - co-ownership of the newly created item. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, we shall, insofar as the main item belongs to us, transfer to the customer pro rata co-ownership of the uniform item in the ratio specified in sentence 1..
8.6 In the event of resale of the reserved goods, the customer hereby assigns to us by way of security the claim against the purchaser arising therefrom - in the event of our co-ownership of the reserved goods, in proportion to the co-ownership share. The same shall apply to other claims which take the place of the reserved goods or otherwise arise in respect of the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. We revocably authorize the customer to collect the claims assigned to us in his own name. We may only revoke this collection authorization in the event of realization..
8.7 If third parties access the goods subject to retention of title, in particular by way of seizure, the customer shall immediately notify them of our ownership and inform us thereof in order to enable us to enforce our ownership rights. If the third party is not in a position to reimburse us for the judicial or extrajudicial costs incurred in this connection, the customer shall be liable to us for this.
8.8 We shall release the goods subject to retention of title as well as the items or claims replacing them insofar as their value exceeds the amount of the secured claims by more than 50%. The selection of the items to be released thereafter shall be at our discretion..
8.9 If we withdraw from the contract if the customer acts in breach of the contract - in particular in case of default in payment - we shall be entitled to demand the return of the goods subject to retention of title..
9. Final Provisions
9.1 If the customer is a merchant, a legal entity under public law or a special fund under public law or if he has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all possible disputes arising from the business relationship between us and the customer shall be, at our discretion, Neustadt an der Aisch or the customer's place of business. In such cases, Neustadt an der Aisch shall be the exclusive place of jurisdiction for actions against us. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision..
9.2 The relations between us and the customer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG) shall not apply.
9.3 Insofar as written form is required in these General Terms and Conditions, this form shall also be deemed to have been observed by sending the declaration in text or electronic form.
9.4 Insofar as the contract or these General Terms and Conditions contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed to in accordance with the economic objective of the contract and the purpose of these General Terms and Conditions if they had been aware of the loophole..