All offers, sales contracts, deliveries and services made on the basis of any orders by our customers (each a “Customer“) via our email accounts, fax or telephone lines (other than through our Online-Shop) shall be governed by these general terms and conditions of sale (the “General Terms and Conditions“).
These General Terms and Conditions apply only with regard to contracts with Business Customers. A “Business Customer” is an individual, company or partnership vested with legal capacity who or that enters into the relevant contract in the conduct of its business or its self-employed professional activity (Sec. 14 (1) of the German Civil Code).
Contract partner of our Customers is HENK B.V., registered with Kamer van Koophandel, Rotterdam, under no. 69649243.
Standard business conditions of the Customer do not apply, regardless of whether or not we expressly object to them in a particular case.
Conclusion of Contract
By placing an order, the Customer makes a binding offer to purchase the relevant product. The offer will remain open for acceptance by us for a period ending at the end of the fifth business day following the day of the offer.
Without undue delay upon receipt of the order, we will send to the Customer by e-mail a confirmation of receipt, which shall not constitute an acceptance of the order. The order shall be deemed to be accepted by us either upon subsequent (e-mail) acceptance of the order or by shipping the product. The sales contract with the Customer shall not become effective until our acceptance.
Prices and Payment, Consequences of a Revocation
Our prices include statutory VAT, but are net of shipping costs. Any customs duties and similar public charges shall be borne by the Customer.
Unless expressly otherwise agreed, all shipments by us shall require advance payment or shall be paid cash on delivery, in each case upon receipt of an invoice.
In the event that we have agreed to payment after delivery, our invoices shall be due and payable by the Customer within ten business days upon receipt of the product and the invoice.
The Customer shall have no right of set-off or retention, except to the extent that the counterclaim has not been contested or been determined by a final and binding decision.
Shipment of the Product
Any terms or dates for the availability, the shipment, transit times or the delivery indicated by us shall be provisional forecasts and approximate only (in particular in cases where our products are manufactured in accordance to specific Customer’s request), except in the case a fixed date of shipment has been agreed upon with the Customer.
Any date of shipment agreed upon with us shall begin
if advance payment has been agreed, upon receipt by us of the full purchase price (including VAT and shipping costs) or
if cash on delivery or payment after delivery has been agreed, upon the conclusion of the sales contract.
When determining the compliance with the agreed shipment date the day on which the product is handed over by us to the carrier shall be decisive.
Regardless of whether any product is indicated on the order form as “in stock”, available or thelike we may sell such product at any time, provided that
the order form has included a notice as to the limited availability of the product or
an advance payment has been agreed upon and this payment amount is not received by us within a period of five business days upon our acceptance of the order.
In such cases, we shall only be obligated to dispatch the product within the time period agreed upon or indicated by us as long as stock lasts.
In the event that no date of dispatch has been specified or otherwise agreed upon or we are no longer required to deliver within any agreed time period pursuant to Section 4 (4), we shall be required to dispatch the product within a period of three weeks after the Relevant Date pursuant to Section 4 (1).
In the event that our supplier fails to deliver in a timely manner a product that has been indicated on the order form as “not in stock”, “not available” or thelike or has been sold off in accordance with Section 4 (4) above, any applicable delivery period pursuant to this Section 4 shall be deemed to be extended until delivery is made by our supplier plus an additional period of three business days, but in no event by a period of more than three weeks, provided that our supplier´s failure to timely supply the products is not a result of our fault or negligence and that we have without undue delay ordered the relevant products from the supplier.
In the event that the product is no longer available or cannot be timely delivered, for any of the reasons set out in Section 4 (6), we shall without undue delay inform the Customer thereof. If the product is no longer available from our suppliers within the foreseeable future, we shall be entitled to terminate the sales contract. In case of such termination, we shall without undue delay reimburse the Customer any payments which the Customer has made to us in respect of the order. The legal rights of the Customer resulting from late delivery shall not be affected by this provision; provided, however, that the Customer may claim damages only subject to the provisions of Section 8 of these General Terms and Conditions.
Partial deliveries of products included in the same order shall be permitted, provided that the products can be used separately and provided further that we shall bear any additional shipping costs caused thereby.
Shipment, Insurance and Passing of Risk
Unless expressly otherwise agreed upon, we shall be free to determine the appropriate mode of shipment and to select the carrier at our reasonable discretion.
We shall only be obliged to properly and timely deliver the product to the carrier and shall not be responsible for any delays caused by the carrier.
The risk of accidental destruction, damage or loss of the delivered product shall pass to the Customer upon delivery of the product by us to the carrier.
We shall insure the product against the usual risks of transportation at our cost and expense.
Retention of Title and Resale
We retain legal title to any product supplied by us until the purchase price (including VAT and shipping costs) for such product has been fully paid.
The Customer shall not be entitled to resell any products delivered by us which are under retention of title, except with our prior written consent.
In the event of a defect of the delivered product, the Customer shall be entitled to request from us to repair the defect or to supply another product (as ordered) which is free from defects. We shall have the right to choose between any such remedies at our discretion, provided that such choice shall be made by us by written notice (in “text form”, including by telefax or by e-mail) within a period of three business days following receipt of the Customer´s notice of the defect. We may refuse to remedy a defective product in the manner requested by the Customer if such remedy would result in unreasonable costs.
If the remedy (supplementary performance) pursuant to Section 7 (1) fails or cannot reasonably be expected from the Customer or we refuse to remedy the defect, the Customer shall be entitled to terminate the sales contract, reduce the purchase price or claim damages or frustrated expenses, in each case in accordance with applicable law; provided, however, that damage claims of the Customer shall be subject to the provisions contained in Section 8 of these General Terms and Conditions.
The warranty period shall be two years upon delivery of the Product if the Customer is a Consumer or otherwise twelve months upon delivery of the product.
The Customer shall promptly upon delivery inspect the product with due care. The delivered product shall be deemed to be approved by the Customer unless the defect is notified to us
in case of any obvious defects within a period of five business days upon delivery or
otherwise within five business days from the day when the defect has been identified.
After the expiry of the one-year or two-year warranty period, respectively, pursuant to Section 7 (3), we provide a further independent warranty (sects. 311 (1), 241 (1) of the German Civil Code) for a 10-year period beginning from the passing of the risk to the Customer on the following terms and conditions (“Extended Warranty”):
The Extended Warranty constitutes an additional promise of consideration of us thaht goes beyond the statutory rights of the Customer, but does not replace or substitutes any such statutory rights. Please be explicitly advised that the Extended Warranty does not limit or restrict the statutory rights of the Customer pursuant to secc. 433 et seq. of the German Civil Code. Such rights enable the customer in particular (but not exclusive) to assert the claims and rights pursuant to sec. 437 of the German Civil Code in accordance with these General Terms and Conditions against us (e.g. remedy of a defect by way of a supplementary performance).
The provisions set forth in Section 7 (1), (2) and (3) and the statutory provisions regarding defects liability shall not apply to the Extended Warranty. The content and the terms and conditions of the Extended Warranty shall be solely governed by the following provisions.
The Extended Warranty shall cover the freedom of (i) material and (ii) manufacturing defects relating to our products (“Warranty Event”). In case of such a Warranty Event we shall, at our discretion, either repair the defect or supply a replacement product.
If the product or one of its parts is no longer available or has been replaced by a newer model or part, we may, at our discretion, supply such replacement by a newer equivalent product or part thereof.
The Extended Warranty does not apply and there is no Warranty Event in case (i) of material defects caused by normal wear and normal or extraordinary tear, (ii) of total or partial destruction of the product, except for such destruction is caused by manufacturing defects and/or (iii) defects that have been caused by improper use of the product or non-observance of any instructions regarding use and care of the product.
Any further rights and remedies of the Customer in case of a Warranty Event shall be excluded, in particular any right to terminate the sales contract, reduce the purchase price or claim damages or frustrated expenses.
Section 8 shall apply mutatis mutandis in case of any breach of the Extended Warranty by us.
We shall not be liable for damages towards the Customer. The exceptions set forth in Section 8 (2) below shall be unaffected hereby.
Section 8 (1) shall not apply with respect to our liability
for guaranteed product specifications within the meaning of Sec. 444 of the German Civil Code,
for injury to life, body or health,
for violation of material contractual obligations (cardinal duties),
under the German Product Liability Act, or
for other losses resulting from a deliberate or grossly negligent breach of obligations by ourselves, our officers or persons we engage in the performance of our obligations.
Cardinal duties in terms of Section 8 (2) lit. (c) are duties whose breach jeopardizes the achievement of the purpose of the contract or whose fulfillment is a prerequisite for enabling the proper fulfillment of the contract and on the fulfillment of which the customer regularly relies.
In case there is a liability for damages, our liability for late delivery shall, except in cases of willful misconduct or gross negligence, be limited to an amount equal to 5 % of the aggregate purchase price (including VAT).
In case there is a liability for damages, we shall not be liable (on whatever legal grounds) for damages which may not reasonably be foreseen, assuming a normal use of the product. The foregoing limitations of liability shall not apply in cases of willful misconduct or gross negligence.
In case there is a limitation or exclusion of our liability, such limitations and exclusions shall also apply to the personal liability of our employees, representatives, officers and persons we engage in the performance of our obligations.
We may save and process any data relating to the Customer, to the extent necessary for the purpose of the execution and implementation of the sales contract and as long as we are required to keep such data in accordance with applicable law.
We shall have the right to submit personal data relating to the Customer to credit agencies, to the extent necessary for a credit check, subject, however, to the Customer´s consent in each individual case. We shall not make available any personal data of the Customer to other third parties without the express consent of the Customer, except to the extent that a disclosure is required under applicable law.
We shall not be permitted to collect, submit to any third party or otherwise process personal data of the Customer for any purpose other than those set forth in this Section 9.
Applicable Law and Competent Courts
Any contracts entered into between us and the Customer shall be governed by the laws of the Federal Republic of Germany under exclusion of the UN Convention on the International Sale of Goods (CISG), without prejudice to any mandatory conflict of laws provisions.
If the Customer is a corporation, limited liability company or commercial partnership or otherwise operates a commercial business (Kaufmann within the meaning of Sec. 1 (1) of the German Commercial Code) or is a legal entity or special fund organized under public law, the courts in Düsseldorf, Germany shall have exclusive jurisdiction in respect of all disputes arising out of or in connection with the relevant contract. In all other cases, we or the Customer may file suit before any court of competent jurisdiction under applicable law.