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§ 1 General-Scope
1. Our terms and conditions, which the purchaser agrees to when an order is placed, apply to all present and future business transactions, including when not explicitly referred to, though they are provided to the purchaser when we confirm an order.
2. These terms and conditions also apply to both sales and deliveries by Hellux. These are uniformly referred to hereinafter as “sales”.
3. CONSUMERS pursuant to these terms and conditions are natural persons with whom business relationships are engaged without such relationships being interpretable as a commercial or autonomous professional service. ENTREPRENEURS pursuant to these terms and conditions are natural or legal persons or legal business partnerships with whom business relationships are engaged, wherein the entrepreneurs engage in commercial or autonomous professional activities in the relationship. CUSTOMERS pursuant to these terms and conditions are both consumers and entrepreneurs.
4. Any general terms and conditions of the customer which we have not expressly recognized that deviate from, contradict or supplement these terms and conditions will not become elements of any contract regardless of whether Hellux acknowledge their existence, and need not be expressly objected to by us. Agreements that deviate from these terms and conditions must be made in writing in order to be effective. This also applies to any suspension of the written form requirement. Therefore deviations shall only be effective if we recognize them explicitly and in writing.
5. We reserve unlimited ownership and copyrighted usage rights to preliminary cost estimates, drawings and other documents. Documents may only be disclosed to others with our prior permission and must be returned immediately upon request if the contract is not concluded. Clauses 1 and 2 apply accordingly to customer documents; however, they may be disclosed to others to whom we have properly forwarded deliveries. Violations of Clauses 1 and 2 are punishable by a lump sum of €1,000.00 per violation. We reserve the right to make further compensatory damage claims at any time..
§ 2 Offers, Scope of Services and Contract Conclusion
1. Our contractual offers are open-ended.
2. The scope of the contractually owed services does not take effect until our order confirmation is issued.
3. We also reserve the right to make changes in the design, material selection, specification and installed location, even after order confirmation if these changes do not contradict customer requirements at the time that the order is issued. Moreover, the customer shall provide concurrence with our proposed changes provided that they are reasonable for them.
4. Partial deliveries are allowed.
5. The documents upon which the offer or order confirmation are based, such as figures, drawings, dimensional and weight information, are in general understood to be approximations only unless they are expressly identified as being contractual.
6. Purchase orders are only effective upon issuance of an order confirmation or upon our shipping the item.
7. The contract is concluded under the condition of correct and timely supply to ourselves from our suppliers. This only applies in the event that we are not responsible for non-delivery, in particular when a matching cover transaction has been entered into with our supplier. The customer will be notified immediately about any non-availability of service. The consideration will be reimbursed immediately.
§ 3 Prices and Payment Conditions
1. Applicable invoicing prices are those in effect on the day of delivery. Prices apply ex works, excluding packaging unless otherwise agreed.
2. The minimum invoice amount is €150.00 net. Invoices are payable in full within 30 days from the invoice date.
3. We have the right to transfer entitlements from our terms and conditions. To fully satisfy the debt, all payments should only be made to VR FACTOREM GmbH, Ludwig-Erhard-Str. 30-34, 65760 Eschborn, to whom we have transferred our present and future receivables from our business relationship.
4. The customer may not offset payment against counterclaims unless the counterclaims are uncontested or legally binding. The customer may not enforce any right of retention unless it is based on the same contractual relationship or the counterclaims are uncontested or legally binding.
5. If the customer lapses into arrears with any payment obligation, all existing receivables shall immediately become due. If the payment due date is exceeded, interest will be assessed to the amount of the 3-month EURIBOR of the European Central Bank in effect at the time, plus 8%, subject to the exercising of other claims.
§ 4 Title Retention
1. In contracts with consumers, we reserve the right to the ownership of the goods until full payment of the purchase price is made.
2. In contracts with entrepreneurs, we reserve the right to the ownership of the goods until the complete fulfillment of all requirements of the current business relationship.
3. The customer agrees to notify us immediately of any third-party access to the goods, such as through seizure or in the event of damage or destruction. The customer must immediately notify us of any change of ownership of the goods and of any change to their residence/corporate headquarters.
4. The entrepreneur is entitled to resell the goods in the regular course of business. They herewith assign to us all receivables that accrue to them from the resale to a third party equal to the invoice amount. We assume this assignment to have been made. Pursuant to the assignment, the entrepreneur is authorized to collect the receivables. However, we reserve the right to collect the receivables ourselves as soon as the entrepreneur has not duly met its payment obligations and has gone into payment arrears.
5. If the entrepreneur modifies or reworks the goods, they always do so in our name on our behalf and we assume no responsibility for the same.
6. If the goods are combined by the customer together with other goods not supplied by us, the right to ownership extends also to the new item in its entirety. We attain co-ownership to that fraction equal to the proportion of the value of the other goods with respect to the goods supplied by us.
7. We have transferred any property to which we have retained the title to VR FACTOREM GmbH.
8. To enforce the entitlements from property to which we have retained the title, there shall be no need to withdraw from the contract unless the customer is the user.
§ 5 Transfer of Risk
1. If the buyer is an entrepreneur, the risk of accidental destruction and
accidental impairment of the goods passes on to the buyer upon their physical receipt, or upon their surrender to the shipper, freight forwarder, or person or agency otherwise responsible for shipment of the same in the case of contracts involving shipment by carrier.
2. If the buyer is a consumer, the risk of accidental destruction and accidental impairment of the purchased item is passed on to the buyer only upon receipt of the item even in the case of contracts involving shipment by carrier.
3. The transfer is presumed to have taken place even if the customer has delayed actual receipt.
4. In the event of delivery including assembly, the risk is passed onto the buyer upon the completion of assembly.
§ 6 Delivery Terms
11. Unless a fixed delivery date has been expressly agreed upon, delivery information is non-binding. The customer can request delivery from us within a reasonable time period 14 days after the exceeding of a non-binding delivery deadline.
2. Delivery terms begin on the day that we deliver the order confirmation to the buyer.
3. If a delivery time or delivery terms is/are agreed upon, it/they shall extend appropriately if the buyer delays or fails in providing their cooperation/assistance as required or agreed upon. Changes to the delivered goods initiated by the customer may also result in an appropriate extension of the delivery term.
4. We are not liable for inabilities to make delivery or for delivery delays caused by acts of God or by other events unforeseeable at the time the contract is concluded (such as operational disruptions of any kind; difficulties in the procurement of materials or energy; transportation delays; strikes; lawful lock-outs; workforce, energy or raw materials deficiencies; difficulties in acquiring necessary regulatory permits; regulatory actions or the lack of, incorrect or late delivery by suppliers), for which events we are not responsible. If such events significantly impair our delivery or service or render the same impossible, and if the hindrance is not of a temporary nature, we are entitled to withdraw from the contract. For hindrances of a temporary nature, the delivery or service terms shall extend, or the delivery or service deadlines shall shift, by the amount of time of the hindrance plus an appropriate buffer period. If it is unreasonable for the customer to accept delivery or service due to the delay, they can withdraw from the contract via immediate written declaration to us.
5. The delivery terms are deemed to have been met
a. if the operationally-ready shipment has left the factory within the agreed delivery period for deliveries that do not include installation,
b. as soon as installation of the system is complete, within the agreed term, for deliveries including installation.
§ 7 Guarantee
1. If the buyer is an entrepreneur, we will guarantee defects of the goods by repairing the defects or by providing replacement, at our discretion.
2. If the buyer is a consumer, they have the option of whether the cure is to be done by means of defect repair or by replacement. However, we are entitled to deny the type of cure selected if it is only possible at unreasonable cost and if the other type of cure is not substantially disadvantageous for the consumer.
3. If material fulfillment fails, the customer can at their discretion demand a reduction in payment (rebate), or cancellation of the contract (withdrawal). However, if defects are only minor, the customer is not entitled to a withdrawal.
4. Entrepreneurs must notify us in writing of any obvious defects within a period of two weeks from receipt of the goods, otherwise the guarantee claim is voided. Timely mailing shall suffice to have met the deadline if it is received by us within one week after it is sent. The entrepreneur bears the full burden of proof for all claim prerequisites, in particular for the actual defect, the time of determination of the defect and for the timeliness of the defect notification.
5. Consumers must notify us in writing of obvious defects within a period of two months after the time at which the contractually infringing condition of the goods is determined. Receipt of the report by us determines whether the terms have been met for the deadline. If the consumer fails to make such a report, the guarantee rights are null and void two months after the determination of the defect. This does not apply if the seller has acted in bad faith. The burden of proof of time of determination of the defect is on the consumer. If the consumer was induced to purchase the item through false manufacturer claims, they must provide proof concerning their decision to buy.
6. If the customer elects to withdraw from the contract due to a defect in title or in quality after a failed remedy, they forfeit their right to compensatory damage claims due to the defect. If the customer elects compensatory damages after a failed remedy, the goods remain with the customer wherever reasonable for them. The compensatory damages are limited to the difference between the purchase price and the value of the defective item. This does not apply if we have caused the contract infringement due to bad faith.
7. For entrepreneurs, the warranty period is one year after delivery, unless Hellux is liable for willful misconduct.
8. If the buyer is an entrepreneur, the quality of the goods is agreed to be basically as per the product description. Public comments, promotions or advertisements do not represent any contractual quality information of the goods.
9. If the customer receives defective installation instructions, we are only obligated to replace them with correct installation instructions and only when the defect in the installation instructions contradicts proper installation procedures.
§ 8 Limit of Liability
1. For slightly negligent contract infringements, our liability is limited to average amounts of directly foreseeable, contractually typical damages according to the type of goods. This also applies to slightly negligent contract infringements by our legal representatives or agents. We are not liable to the entrepreneur for slightly negligent infringement of non-essential contract obligations.
2. The above liability limitations do not pertain to claims by the customer due to product liability. Furthermore, the liability limitations do not apply to bodily or health injury attributable to us or to loss of life of the customer.
3. Compensatory damage claims by the customer due to a defect expire after one year from the delivery of the goods. This does not apply if we have acted in bad faith.
§ 9 Final Provisions
1. The contractual relationship is solely subject to German law, particularly the German Civil Code and the Commercial Code. The stipulations of the Uniform Law on the International Sale of Goods (CISG) do not apply.
2. The contract language is exclusively the German language.
3. If the customer is a qualified merchant, a legal person under public law or a special fund under public law, the court of jurisdiction for all disputes from this contract is exclusively Berlin or Frankfurt am Main. The same applies if the customer has no general court of jurisdiction in Germany or if their domicile or usual residence is not known at the time of the filing of the suit.
4. If any stipulations of the contract with the customer are entirely or partially ineffective, including these general terms and conditions, the validity of the remaining stipulations remains unaffected as a result. The partial or completely ineffective rule is to be replaced by a rule whose economic intent comes as close as possible to that of the ineffective rules.
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