§ 1 Applicability
(1) The present General Terms and Conditions ("GTC") contain the exclusively applying conditions between you and us, HEMARU GmbH, Röttgen 173, 42109 Wuppertal, Germany, registered with the commercial register of Wuppertal under HRB 25014, represented by Dr. Sang Woon Yeo, for all contracts concluded between you and us and any and all deliveries, services and offers. These GTC become part of all contracts, which we conclude with you on deliveries or services offered by us. These GTC only apply if you are an entrepreneur (sec. 14 German Civil Code), a corporate body under public law or a special fund under public law.
(2) General terms and conditions of you or of any third party do not apply, even if we do not object its application on an individual basis. Even if we refer to correspondence containing general terms and conditions of you or a third party or refer to such, this is no approval of the applicability of your general terms and conditions.
§ 2 Offer and Conclusion of Contract
(1) The presentation of our products on our homepage www.horseheim.com, in our catalogues or other advertising media is no binding offer from our part. You submit a binding offer with your order to us.
(2) A contract between you and us is only concluded with a separate express declaration of acceptance by us, issued within five working days by facsimile, e-mail, in writing or by sending of the ordered products.
(3) Except for the managing directors mentioned in sec. 1 para. 1, our staff is not entitled to make arrangements differing from these GTC.
(4) Our specifications regarding the object of delivery or the service (e.g. weight, measure, margin and technical data) as well as our designs of these (e.g. illustrations) are only roughly relevant, if the usability for the contractually intended purpose does not require an exact consistency. They are no characteristics of state, but descriptions or specifications of the deliveries or services. Divergences customary in trade or divergences due to legal provisions or which are technical improvements are permitted as far as the usability for the contractually intended purpose is not affected.
(5) All our offers and cost estimates as well as illustrations, calculations, prospectuses, catalogues, models and other documents and media provided to you are subject to our property and/or copy right. You are not entitled to make these items accessible to any third party without our express consent, neither as such nor its content, to use them yourself or through any third party, to let them be used or copied. On our demand you are obliged to return these items entirely to us and to destroy any copies made, if any, if they are not required any more in due course of business or if negotiations do not lead to a conclusion of a contract.
§ 3 Prices and Payments
(1) The prices are valid for the scope of services and delivery listed in the order confirmation. The prices are in Euro ex works plus packaging, value added tax, at export shipment customs as well as fees and other public charges.
(2) Invoiced amounts are to be paid within the agreed upon respite. Relevant is the date of receipt of payment by us.
(3) In case of default of payment you are obliged to pay default interest amounting to 9 (nine) percentage points interest above base rate. Furthermore, we are entitled to charge a lump-sum of 40 Euro. The assertion of higher interest and/or further damages remains unaffected. The lump-sum mentioned in the second sentence of this section will be deducted from the amount owed as damages, as far as the damages are costs of assertion of rights. Vis-à-vis entrepreneurs, our right to demand commercial maturity interest (sec. 353 German Commercial Code) remains unaffected.
(4) We are entitled to carry out outstanding deliveries or services only against advance payment or security deposit, if we get to know circumstances after conclusion of the contract, which are suited to considerably reduce your credit worthiness and by which the payment of our open claims by you regarding the respective contract is endangered.
§ 4 Delivery and Term of Delivery
(1) Deliveries by us are effected ex works. On your demand and on your costs we send the products to a different place of destination. As far as nothing else is agreed upon, we are entitled to determine the type of shipment (in particular the transport company, dispatch route and packaging) on our own.
(2) The term of delivery is agreed upon individually, respectively will be specified by us when receiving the order. If shipment has been agreed upon, the terms of delivery and dates of delivery relate to the point in time of the handover to the shipper, freight carrier or any other third person entrusted with the transport.
(3) The observance of our delivery commitment requires the due fulfilment of your contractual obligations. The defence of lack of performance of the contract is reserved.
(4) If an ordered product is undeliverable because we are not supplied by our supplier without our fault, we are entitled to withdraw from the contract. In such case we will inform you immediately and refund an effected payment.
(5) Your entitlement to damages or wasted disbursements in case of delayed delivery or impossibility of performance is governed according to sec. 7.
§ 5 Place of Performance, Shipment, Packaging, Passing of risk, Approval
(1) Place of performance for all obligations from our contract is Wuppertal, Germany, as far as nothing else is determined.
(2) Type of shipment and packaging are subject to our own best judgement.
(3) The risk passes to you with handover of the delivery item to the shipper, freight carrier or any other third person entrusted with the transport at the latest. This also applies, if partial deliveries are made or if we have assumed other services (e.g. shipment).
(4) Storage costs have to be borne by you if you are in default.
(5) The transport will only be insured against theft, breakage, damage in transit, fire and water damage or other insurable risks on your explicit demand and on your costs.
§ 6 Warranty
(1) In case of defect (including wrong and short delivery) the legal regulations apply, as far as nothing else is stipulated hereinafter. The special legal stipulations regarding the final delivery to a consumer remain unaffected in each case.
(2) Basis for our liability for defects is in particular our agreed upon condition of the product. As far as a condition is not agreed upon, the legal regulations apply in order to assess, whether a defect is at hand.
(3) If a bilateral commercial transaction is given, your rights to claim damages for defects and recourse are subject to your compliance with the statutory inspection and notification obligations according to sec. 377 German Commercial Code (Handelsgesetzbuch - HGB). If during the examination of the product or at a later stage a defect appears, you are obliged to inform us immediately in writing, whereas, to meet the deadline, timely mailing shall suffice. Irrespective of this inspection and notification obligation, you are obliged to inform us about apparent defects (including wrong and short delivery) immediately in writing, whereas, to meet the deadline, timely mailing shall suffice, too. If you fail to comply with the due inspection and/or notification of defects, our liability for the defect not notified is excluded.
(4) If the product is faulty, we are entitled to choose, whether we perform supplementary performance by removal of defects (subsequent improvement) or by delivery of a product free from defects (replacement delivery).
(5) We are entitled to make the owed supplementary performance dependent on the payment of the due purchase price. You are entitled, however, to retain a part of the purchase price, which his adequate in proportion to the defect.
(6) You are obliged to give us the time and the opportunity to perform the owed supplementary performance, in particular to hand over the product found faulty for examination purposes. In case of a replacement delivery you are obliged to hand over to us the defect product according to the legal regulations.
(7) The expenditures required to examine and to perform supplementary, in particular transport, labour and material costs, are borne by us, if it is de facto defect. If your request for supplementary performance should be unjustified, we are entitled to demand reimbursement for the costs arisen therefrom.
(8) Your entitlement to damages respectively compensation of wasted expenses is subject to sec. 7 and is excluded otherwise.
§ 7 Other Liability
We are liable – irrespective of the legal basis – for damages or for the compensation of wasted disbursements according to the following provisions in para. (1) to (5):
(1) As far as nothing else results from these GTC including clauses of this sec. 7, we are liable according to the applicable legal regulations for any violation of contractual and non-contractual obligations.
(2) We are liable for damages in case of intention or gross negligence. In case of simple negligence, we are only liable
a) for damages deriving from the injury of life, body or health,
b) for damages deriving from the breach of a material contractual obligation (obligation which enables the due performance of the contract and you generally rely on that it is complied with); in such case our liability is restricted to the foreseeable, typically incurring damage.
(3) The restrictions on liability set forth in para. 2 do not apply as far as we have fraudulently concealed a defect or assumed a guarantee for the condition of the product as well as for your claims according to the German Product Liability Act (Produkthaftungsgesetz).
(4) The provisions of this sec. 7 apply accordingly for the compensation of wasted disbursements.
(5) As far as liability is excluded or restricted vis-à-vis us the same applies for the individual liability for damages of our legal representatives and our vicarious agents.
§ 8 Limitation Period
(1) The limitation period for claims due to defects is one year from delivery. If an approval is agreed upon, the limitation period begins with the approval.
(2) Statutory special provisions for claims of return of third parties, in case of fraudulent intent of the seller and for claims in recourse due to final delivery to a consumer remain unaffected.
(3) The aforementioned limitation periods of the sales law also apply for your contractual and non-contractual claims, which are based on a defect of the product, unless the application of the regular statutory limitation period leads to a shorter limitation period. The limitation periods of the German Product Liability Act remain unaffected at any rate.
(4) Besides, the statutory limitation periods are exclusively applicable for claims for the purchaser’s damages according to sec. 7.
§ 9 Retention of Title
(1) We reserve the right to ownership on the purchase products until receipt of all payments from the delivery contract. If you act contrary to the terms of the contract, in particular regarding default of payment, we are entitled to take back the purchase product. If we take back the purchase product, this also serves as a rescission of the contract. After we have taken back the purchase product, we are entitled to liquidate/sell it and to apply the proceeds towards the customer’s accounts payable – after deduction of adequate sales costs.
(2) In case of seizure or other interferences by third parties you are obliged to inform us immediately in writing.
(3) You are entitled to resell the purchase object in ordinary routine; you already by now assign to us all accounts receivables in the amount of the final amount (including VAT) of our account receivable, which you receive by reselling against your customers or third parties irrespective of the fact, whether the purchase object has been resold with our without treatment. You remain entitled to collect this account receivable after the assignment. Our right to collect the account receivable on our own remains unaffected. We commit ourselves, however, not to collect the account receivable as long as you comply with your payment obligations from the collected sales revenues, you are not in default of payment and in particular no request to open insolvency proceedings has been filed or a cessation of payments is at hand. In such case we are entitled to demand that you notify the assigned accounts receivables and its debtors to us, to give us any and all required information to collect the accounts receivables, to hand over the corresponding documentation and to inform the debtors (third parties) about the assignment.
§ 10 Final Provisions
(1) If you are a merchant in the meaning of the German Commercial Code, a corporate body under public law or a special fund under public law, as far as you have no general place of jurisdiction in Germany or you move your place of business outside Germany, the place of jurisdiction for any and all possible disputes based on our business relations is Wuppertal, Germany. Compulsory legal provisions regarding exclusive venue remain unaffected.
(2) The relations between us and you are exclusively subject to the laws of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods as of 11 April 1980 (CISG) does not apply.
(3) If single provisions of these GTC are or become invalid, the validity of the other provisions is not affected.
Version June 2018
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Telephone: +49 (0) 202-76927673