General terms and conditions of sales
General terms and conditions of sales (Status 2017)
1 General, scope
1.1 These General Terms and Conditions (Hereinafter referred to as the “Terms”) shall apply to any and all business transactions with private customers (hereinafter referred to as “Consumers” as well as with commercial customers (hereinafter referred to as “Businesses”). Consumers as understood in these Terms shall be deemed to include any physical persons who conclude the legal transaction for purposes not prevailingly attributable to their commercial or professional capacity. Businesses as understood in these Terms shall be deemed to include any physical person or legal entity or incorporated partnership acting in their commercial or professional capacity whenever concluding a legal transaction. Both Consumers and Businesses shall be eligible to become customers (hereinafter referred to as “Customers”) of Hejatex GmbH (hereinafter referred to as “Hejatex”).
1.2 Whenever a contract is concluded, such contract shall be concluded with the following company:
Hejatex GmbH; Küstriner Str. 15, DE - 94315 Straubing, legally represented by its managing director Mister Edgar Jakob,
Tel.: +49 - 94 21 - 96 88 4-0, Fax: +49 - 94 21 - 96 88 4-20, E-Mail: firstname.lastname@example.org, Web: http://www.hejatex.com
Register of companies HRB 10835, Straubing local court, VAT ID .: DE 813 335 594
1.3 Any and all of Hejatex’s supplies of goods and services and any use of the web sites of Hejatex shall solely be subject to these Terms as amended from time to time. No terms other than these Terms, including without being limited to any of the Customers’ terms, shall be incorporated into any contract as an integral part, even if such terms have not been expressly objected to.
1.4 These Terms shall also apply to any future business relations with Businesses without the need for a renewed express reference.
1.5 The binding contract language shall be German, even if these Terms may be and/or have been translated into other languages.
2 Orders; Conclusion of Contracts; Delivery
2.1 The presentation of products in catalogues, price lists or on the web site of Hejatex shall not be deemed to be a binding offer for sale. It shall be rather deemed to be an invitation without engagement to Customers to submit a binding offer to buy (hereinafter referred to as “Order”) on their part.
2.2 Any features mentioned in catalogues, price lists or advertising documents of any nature produced by the Hejatex are valued only as approximations for information purposes only, unless they are expressly designed as binding. The same applies to the features of the manufacturers works.
2.3 Orders may be placed by Customers in writing or by phone.
2.4 Hejatex shall be free to accept the customer’s offer of contract constituted by the order within five days of receipt thereof. The order shall be deemed to have been accepted if Hejatex delivers the ordered items.
3 Reservation of titles
3.1 For all transactions with Consumers, Hejatex reserves the property of the goods until the purchase price has been fully paid.
3.2 For all transactions with Businesses, Hejatex reserves the property of the goods until any and all claims arising from an ongoing business relation have been fully settled.
3.3 A Business shall have the right to resell the goods in the regular course of its business. The Business hereby assigns to Hejatex, and Hejatex accepts to be assigned, the total invoice amount of any and all claims against a third party arising to the Business out of the resale transaction. After such assignment, the Business shall still have the right to collect any amount receivable. Hejatex however reserves the right to collect the amount receivable itself as soon as the Business fails to duly meet its payment obligations and is in default.
3.4 If the purchased item is inextricably compounded with any other items not owned by Hejatex, Hejatex shall acquire a joint ownership share of the new item equal to the proportion of the value of the purchased item (invoice amount) to the value of the other items compounded at the time of compounding. If the items are compounded in a way as to result in the Customer’s item to be considered the principal item, it is agreed that the Customer shall assign to Hejatex a proportionate share of joint property of the new item. The Customer shall keep the sole property or joint property thus created for Hejatex.
3.5 Should the Customer combine any reserved goods with a third party real estate property, the Customer hereby assigns to Hejatex, and Hejatex accepts to be assigned, any and all claims against such third party arising from such combination including any ancillary rights.
3.6 No attachment or transfer by way of security with respect to any goods (jointly) owned by Hejatex shall be permitted. In case of attachment or any other third party encroachment upon any of the reserved goods, the Customer shall immediately point out Hejatex’s ownership and promptly notify Hejatex in writing, providing all related documentation, including without being limited to documents required for filing the formal objection.
3.7 Any right to resell, use or incorporate the reserved goods shall expire as of the filing of a petition for institution of bankruptcy proceedings, cessation of payment or engaging in out-of-court settlement proceedings.
3.8 The Customer shall handle any reserved goods with due caution and care; specifically, the Customer shall be obliged to adequately insure the value as new of any such goods against damage due to fire, water, natural disaster, vandalism and theft at its own expense. The Customer shall carry out any required maintenance and servicing work in due time, at the required regular intervals and at its own expense.
4 Delivery; Reservation of Self-Supply
4.1 The following terms and restrictions of delivery set forth in this section shall apply to Customers only if they are Businesses.
4.2 All deliveries shall be ex works and/or ex warehouse.
4.3 Any delivery dates stated are understood to be based on estimated delivery times.
4.4 Hejatex shall have the right to perform partial deliveries and services provided they are reasonably acceptable for the Customer.
4.5 Shipment and transport shall be at the Customer’s risk. The risk shall pass to the Customer as soon as the goods to be shipped have been handed over to the carrier carrying out the transport.
4.6 As soon as readiness for shipment is notified to the Customer, the risk of accidental loss and/or deterioration shall pass to the Customer, in case the shipment is delayed for reasons within the Customer’s responsibility. After the risk has passed, the storage of the goods shall be at the Customer’s expense. This clause shall not affect any further claims.
4.7 Hejatex shall not assume any procurement risk and shall not be liable for any failure to deliver on time other than due to its own fault or the fault of any of its legal representatives, executives or other agents, subject to the following provisions.
4.8 If an ordered item is not available due to the fact that a supplier fails to supply Hejatex through no fault of Hejatex in breach of the supplier’s contractual obligation, Hejatex shall have the right to withdraw from the contract. In any such case, the Customer shall be immediately informed of the unavailability of the ordered item and any payment already made shall be immediately reimbursed. In such case, Hejatex shall not be held for damages.
4.9 The liability limitations set forth in this section shall not apply if Hejatex is guilty of willful intent or negligence, further in case of damage to life, body and health caused by Hejatex as well as in case of fraudulent intent. Liability under product liability legislation shall likewise remain unaffected by this section.
All prices are quoted inclusive of the statutory German value added tax and any other price components. Any shipment costs incurred shall be charged separately.
6.1 Unless otherwise provided in the following clauses of this section, any claims of Consumers for defects in the goods shall be subject to statutory provisions and bound to statutory time limits.
6.2 For Businesses, the warranty period shall be 1 year as from delivery of the goods.
6.3 For deliveries of second-hand goods, the warranty period shall be 1 year as from delivery of the goods if the Customer is a Consumer. This clause shall be without prejudice to Section 438 subsection 1 number 2 of the German Civil Code [BGB]. Any claims for defects shall be generally excluded for deliveries of second-hand goods to Businesses.
6.4 Claims from Businesses for defects are excluded in principle in case of improper storage, unsuitable or improper use, faulty installation or commissioning by customer or third parties, natural wear and tear, faulty or negligent treatment and unsuitable operation. For Consumers, this only applies in consideration of Section 476 of the German Civil Code [BGB].
6.5 To Businesses, Hejatex shall provide warranty for defective goods at its discretion either by subsequent performance through remedy or by replacement delivery.
6.6 Businesses shall notify Hejatex of any obvious defects in the goods delivered within two (2) weeks of receipt of the goods; otherwise, no warranty may be claimed. Traders shall be subject to the provisions of Section 377 of the German Commercial Code [HGB]; traders shall be obliged to submit complaints for defects in writing or by fax.
6.7 For Businesses, the agreed quality of the goods shall be solely based on Hejatex’s product description on the confirmation of order. Apart from this, none of the manufacturer’s public statements, promoting or advertising shall be construed to be a contractual warranty and representation as to the quality of the goods.
6.8 Should the Business claim reimbursement of expenses under Section 478 subsection 2 of the German Civil Code [BGB], such reimbursement shall be limited to a maximum of 2% of the original value of the goods.
6.9 In the event of delivery recourse under Sections 478, 479 of the German Civil Code [BGB], the liability and warranty limitations set forth in this section shall not apply, except for items number 6.6 and number 6.8.
6.10 The one-year warranty period as well as the liability and warranty limitations set forth in this section shall not apply if Hejatex is guilty of willful intent or negligence, further in case of damage to life, body and health imputable to Hejatex or in case of fraudulent intent. Liability under product liability legislation shall likewise remain unaffected by this section.
In case Hejatex grants the Customer a guarantee going beyond statutory warranty rights, it may not rely on such guarantee to claim withdrawal, reduction or damages but solely remedy, unless expressly otherwise agreed. Likewise, the Customer may not claim replacement with new goods free of charge or replacement equipment for the time of repair. The guarantee period shall be deemed to commence as of delivery of the goods to the Customer, and it shall not be interrupted nor impaired by any subsequent remedy. This clause shall be without prejudice to any statutory warranty claims.
8.1 Hejatex shall solely be liable for damage due to its own fault or the fault of any of its legal representatives, executives or other agents, and subject to the following provisions.
8.2 Hejatex shall have unlimited liability for any damage caused by willful intent or gross negligence on the part of Hejatex and/or its legal representatives, executives or simple agents, as well as in cases of fraudulent intent and of damage to life, body and health. Hejatex shall likewise have unlimited liability under product liability legislation.
8.3 In cases of slightly negligent breach of an obligation the fulfilment of which, being a basic prerequisite for the execution of the contract in the first place, could be reasonably relied on (material contractual obligation), liability shall be limited to any damage to be typically foreseen and likely to be caused in the course of executing this contract (foreseeable typical contract damage). Any other liability for damage due to slight negligence shall be excluded.
8.4 Hejatex shall not be liable for any damage due to failure of phone lines, servers and other equipment beyond its control. Moreover, Hejatex shall not be liable for any damage or failure due to Force Majeure.
8.5 Hejatex shall be liable for any services provided by Hejatex free of charge (including access to free contents) only if and to the extent to which the damage was caused due to the proper use in accordance with the contract of the free contents and/or services, and only in cases of willful intent (including fraudulent intent) and gross negligence as well as in case of damage to life, body and health and under product liability legislation.
In case Hejatex should recall any goods or goods processed under contract, the Business shall immediately desist from any further resale of the goods and inform further customers in the delivery chain accordingly as needed.
10 Non-Assignment Clause
Any assignment of claims against Hejatex to third parties shall be excluded if the Customer is a Business. Section 354a of the Commercial Code [HGB] shall remain unaffected hereby.
11 Non-Disclosure Clause
11.1 The following terms of non-disclosure set forth in this section shall apply to Customers only if they are Businesses.
11.2 While cooperating with the Customer, Hejatex may come to reveal to the Customer some confidential information and documentation relating to Hejatex’s sphere of competence. Therefore, the Parties agree as follows in order to exclude any disclosure of such confidential information and documentation to unauthorized third parties.
11.3 The Customer undertakes to refrain from any disclosure to third parties in whatsoever form of the confidential information and documentation which may be revealed while cooperating with Hejatex, unless such information or documentation is expressly intended to be disclosed to third parties.
11.4 The provisions of this section shall survive the execution, termination or rescission of this agreement for a period of 5 years; as far as trade or company secrets in terms of Section 17 of the Act against Unfair Practices [UWG] are concerned, this clause is agreed to apply for an indefinite period of time.
11.5 If requested by Hejatex, any items and documents provided by Hejatex such as strategy papers, briefing documents etc. shall be surrendered to Hejatex and/or destroyed upon termination of the contract.
12 Export Clause
12.1 The (re)sale of the goods delivered may be subject to German, EU or US export control regulations as well as to export control regulations of other countries as the case may be. Any (re)sale to countries subject to embargo and/or blocked individuals and/or individuals who might use the goods delivered for weapons, nuclear technology or for military purposes shall be subject to regulatory authorization.
12.2 It shall be incumbent on the Customer to verify and as needed ensure compliance with regulations under export control legislation.
12.3 Hejatex shall be entitled to refuse the execution of the contract if such execution of the contract would be in breach of any export regulations. In any such case, the Customer shall be immediately notified and given the opportunity of ensuring compliance with the law. In case the Customer fails to ensure such compliance, Hejatex shall be entitled to withdraw from the contract. In such case, any payment already made by the Customer shall be immediately refunded. In such case, Hejatex shall not be held for damages. The latter provision shall not apply if Hejatex is guilty of willful intent or negligence, further in case of damage to life, body and health imputable to Hejatex or in case of fraudulent intent.
13 Final Provisions
13.1 The customer is agree that items data, ordering data and personal data will be collected for purpose of handling the order and to preserve justified business interests with regards to advising and supporting our customers, in accordance to the legal provisions.
13.2 These Terms as well as any and all future contracts and/or legal relations with the Customers shall be solely governed by the laws of Germany, to the exclusion of any application of the United Nations Convention on Contracts for the International Sale of Goods (CISG). For Consumers, this choice of governing law shall apply only provided any protection granted is not withdrawn due to mandatory provisions of the law of the country in which the Consumer has his, her or its habitual residence.
13.3 When dealing with Businesses, the place of performance for all contractual and legal relations shall be Hejatex’s registered place of business. This shall also apply to subsequent performance.
If the Customer is a trader in Commercial Code terms, a special fund or a legal entity under public law, Straubing shall be the sole place of jurisdiction for any claims arising from the legal relations with the Customer. This shall also apply to Customers who have no general place of jurisdiction within the European Union as well as to Customers who after concluding a contract have relocated their legal or habitual residence to a country outside of the European Union. Notwithstanding the foregoing, Hejatex shall also have the right to sue the Customer at his, her or its general place of jurisdiction.