General Terms and Conditions
Heumüller Holzwolle GmbH
Burghaslacher Str. 2, D-96160 Geiselwind
§1 General, Customers, Language
(1) All offers, purchase contracts, deliveries and services based on orders and requests of our customers are subject to these General Terms and Conditions.
(2) The General Terms and Conditions shall only apply if Customer is a Business Customer or a legal entity or special fund organized under public law. For the purpose of these General Terms and Conditions a „Business Customer“ is an individual, company or partnership vested with legal capacity who 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).
(3) These General Terms and Conditions shall apply exclusively. Differing, conflicting or supplementary General Terms and Conditions of the Purchaser shall not apply, even if we have not objected to their applicability separately in each case. The Purchaser's General Terms and Conditions shall not become part of the contract unless we expressly consent in writing to their applicability. This requirement of written consent shall apply in every case, even if, for example, the Purchaser refers to its General Terms and Conditions as part of the order and we do not expressly object to this. (4) Individual agreements reached with the Customer in individual cases (including side agreements, additions and amendments), as well as information contained in our order confirmation, shall have precedence over these General Terms and Conditions. The content of such agreements must be, subject to the contrary evidence, set forth in a written contract or in our written confirmation.
(5) Legally relevant statements and notifications from the Purchaser in relation to the contract (e.g. notification of defects, withdrawal or reduction) must be made in written form in accordance with Sec. 126 b of the German Civil Code.
(6) Our contracts with the Customer shall be made exclusively in the German or English language, in each case depending on whether the Customer makes the relevant purchase in English language or in German language. Therefore, if the order is made in German, exclusively the German version of these General Terms and Conditions shall be relevant. If the order is made in English, exclusively the English version of these General Terms and Conditions shall be relevant.
§2 Conclusion of Contract
(1) Our offerings are non-binding. This shall also apply if we have provided the Purchaser with catalogs or other documents - including in electronic form - to which we reserve ownership rights and copyrights.
(2) The ordering of the goods by the Customer, e.g. via our price lists, is considered as a binding contract offer. Unless otherwise stated in the order, we shall be entitled to accept this offer within 14 days of receipt thereof. Acceptance shall either be declared in writing (e.g. through the order confirmation) or through the supply of goods to the Customer.
(3) All products for which the customer does not request explicit Heumüller packaging are, unless expressly agreed otherwise, manufactured and placed on the customer's behalf and responsibility. The customer is then considered the manufacturer in the sense of the Packaging Act.
§3 Prices and Payment
(1) Unless otherwise agreed in individual cases, our current prices are quoted as ex-warehouse and do not include any shipping costs or the statutory value added tax. All applicable fees of the payment process are to be borne by the Customer.
(2) In the case of a sale with delivery to a place other than the place of performance (Section 5 (1) of these General Terms and Conditions), the Purchaser shall bear the transport costs from the warehouse and the costs of any transport insurance requested by the Purchaser. Any customs duties, taxes and similar charges have to be borne by the Customer.
(3) Unless expressly otherwise agreed by us, all of our shipments will be made upon issuance of an invoice against the customer’s account. However, we are entitled at any time, even in the context of an ongoing business relationship – and especially for new customers - to carry out a delivery in whole or in part only following payment in advance. We declare a corresponding reservation at the latest with the order confirmation.
(4) We offer the Customer the possibility of discount of 2% for transfers made within 10 days of invoice date. A discount by the Customer is excluded if we have, at the time of payment, already due claims against him. Otherwise, unless otherwise agreed, our invoices are payable within 30 days of Customer’s receipt of the invoice without deduction.
(5) The customer defaults on the expiration of the above payment deadline. Interest is to be paid on the purchase price at the respective applicable interest rate for default during the default. This shall not be construed to preclude the enforcement of higher damages caused by delay of payment. Our claim for the commercial maturity interest (Sec. 353 German Commercial Code) against merchants remains unaffected.
(6) The Customer shall have no right of set-off or retention, except to the extent that the counterclaim has not been disputed by us or been determined by a final and binding decision. In the case of defects, however, the counterclaims of the customer remain unaffected.
(7) If it becomes apparent after completion of the order (e.g. by application for insolvency proceedings) that our claim to receive the agreed remuneration is jeopardised by the customer's inability to perform, we shall be obliged to refuse performance and according to the statutory provision, if applicable after setting a deadline - entitled to withdraw from the contract (Sec. 321 German Civil Code). In contracts for the manufacture of non-fungible items (custom-made prod-ucts), we reserve the right to declare immediate withdrawal from the contract; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
§4 Delivery period
(1) The term of delivery will be agreed individually or stated by us upon acceptance of the order.
(2) Any time period relevant to determine the date of dispatch pursuant to this Section 4 (as specified by us when the order is made or as otherwise agreed upon) shall begin (a) if advance payment has been agreed, upon receipt by us of the full purchase price (including VAT and shipping costs) or (b) if payment after delivery has been agreed, upon the conclusion of the sales contract or (c) if a down payment has been agreed, on the day of receipt of the deposit.
(3) If we cannot comply with binding delivery deadlines for reasons for which we are not responsible (unavailability of the service), we will inform the Customer without delay and at the same time notify the expected new delivery deadline. If the service is not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; We will reimburse immediately any renumeration already provided by the Customer. As a case of non-availability of the service in this sense, in particular the non-timely self-delivery by our supplier, if we have concluded a congruent hedging transaction, neither we nor our suppliers are at fault or we are not obliged to procure in individual cases.
(4) Regardless of whether any product is indicated on the order form as „available“, we may sell such product at any time, provided that (a) the order form has included a notice as to the limited availability of the product or (b) an advance payment has been agreed upon and this payment amount is not received by us within a period of seven business days upon our acceptance of the order.
(5) 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 subsection 4, we shall be required to dispatch the product within a period of twelve weeks after the beginning of the delivery period pursuant to subsection 2.
(6) The occurrence of our default of delivery is governed by the statutory provisions. In any case, a reminder in written form (fax or e-mail sufficient) by the Customer is required. If we fall into delay of delivery, then the Customer can demand flat-rate replacement of its delay damage. The lump sum for each completed calendar week of default amounts to 0.5% of the net price (delivery value), but in total not more than 5% of the delivery value of the delayed delivered goods. We reserve the proof that the Customer has incurred no damage or only a much lower damage than the above flat rate.
(7) The rights of the Purchaser pursuant to Section 8 of these General Terms and Conditions and our statutory rights, in particular in the event of exclusion of the performance obligation (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§5 Delivery, transfer of risk
(1) The delivery takes place in conformity with the Incoterms 2010 FCA (“Free Carrier”) Geiselwind, from our warehouse Wasserberndorf or if so specified, from our warehouse in Gremsdorf. The place of fulfilment for the delivery and any supplementary performance is also our warehouse in Wasserberndorf. At the request and expense of the Customer, the goods will be shipped from us to another destination (sale with shipping). We are entitled, unless otherwise agreed, to determine the nature and execution of the shipment in its sole discretion, without obligation to the cheapest or fastest shipping. The goods are packed in a commercial manner. If special requirements of the packaging or transport are required or taken into account, the Customer must inform us in written form in good time prior to the conclusion of the contract.
(2) For pallet exchange, the "Cologne pallet exchange" is agreed.
(3) The risk of accidental destruction and accidental impairment of the purchased goods shall pass to the Customer when we dispose the good at our warehouse but at the latest upon handover, in Wasserberndorf. If the goods are shipped to a place other than the place of fulfilment at the instruction of the Customer, the risk of coincidental loss and delay of the goods shall pass to the Customer upon handover of the good to the forwarding agent, carrier or other person or entity otherwise responsible for carrying out the shipment. The handing over of the goods shall be deemed to have occurred even if the customer is in default of acceptance. If the delivery of the goods is delayed for reasons for which the customer is responsible, the risk of accidental destruction and accidental impairment shall pass to the Customer when we notify our readiness for dispatch.
(4) If the Customer is in default of acceptance or if he violates other duties to cooperate, or if delivery is delayed due to a failure on the Customer's part, we shall be entitled to demand lump-sum compensation for resulting damages, including any possible extra expenditure (e.g. storage costs). For this purpose we will charge a lump sum compensation amounting to 0.5 % of the value of the stored merchandise per calendar day, commencing with the delivery period or - if there is no delivery period - with the notification of shipment readiness of the goods. The proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; the lump is however to be offset against further monetary claims. The Customer is permitted to provide evidence that expenses did not occur to us or not up to the amount in question.
§6 Retention of Title and Resale
(1) We reserve the ownership of the goods sold until full payment of all our current and future claims under the purchase agreement and ongoing business relationship (secured claims).
(2) The goods subject to retention of title may not be pledged to third parties or transferred as collateral prior to full payment of the secured claims. The Customer must notify us immediately in written form if an application for the opening of insolvency proceedings is made or if third party access (for example seizure) takes place on the goods belonging to us.
(3) In case of breach of contract by the Customer, in particular in case of non-payment of the due purchase price, we are entitled to withdraw from the contract according to the statutory provisions and/or to demand the goods on the basis of the retention of title. The request for return of goods does not at the same time imply a declaration of withdrawal; rather, we are entitled only to demand the return of the goods and to reserve the right to withdraw from the contract. If the Customer does not pay the due purchase price, we may only assert these rights if we have unsuccessfully set a reasonable deadline for payment to the Customer or if such a deadline is dispensable according to the statutory provisions.
(4) The Customer is entitled until further notice in accordance with (c) below to resell and / or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions additionally apply.
(a) The retention of title extends to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed to be the manufacturer. If the property rights remain with processing, mixing or combination with goods of third parties, we acquire co-ownership in proportion of the invoice values of the processed, mixed or connected goods. In addition, the same applies to the resulting product as to the goods delivered under reservation of title.
(b) The Customer hereby assigns to us the claims arising from the resale of the goods or the product against third parties as a whole or in the amount of our possible co-ownership share in accordance with (a) above for security purposes. We accept the assignment. The provisions of para. 2 obligations of the Customer also apply with regard to the assigned claims.
(c) The Customer remains authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the Customer meets his payment obligations to us, there is no defect of his capacity and we do not violate the reservation of title by exercising a right according to para. 3. If this is the case, we can demand that the Customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the related documents and notifies the debtors (third parties) of the assignment. In addition, in this case, we are entitled to revoke the Customer’s authority to resell and process the goods subject to retention of title.
(d) If the realisable value of the securities exceeds our claims by more than 10%, we will, at the request of the Customer, release securities of our choice.
(1) The warranty is calculated according to the legal regulations, unless otherwise specified below. For damage claims by the Customer, the special provisions of Section 8 of these General Terms and Conditions apply exclusively.
(2) The agreement made on the condition of the goods (in accordance with the relevant attachments at the time of conclusion of the contract) is the basis of our product liability. In this case, all product descriptions and / or product specifications information provided by the manufacturer, that are the subject of the individual contract or have been made known by us, in the version valid at the time of conclusion of the contract, shall also be considered as Quality Agreement. Pre-deliveries or samples are always only examples of a possible condition of the goods, but in principle do not constitute a binding reference for the quality of the goods. We are entitled to change the basic as well as actual condition of the goods, as well as the agreement reached about them at any time. The Customer is then entitled to rescind the purchase contract before the delivery or their commission without damage and, if necessary, to conclude an amended sales contract with us. If the Customer does not claim his right of withdrawal without delay, he agrees, however, at the latest upon acceptance of the goods, to the change in the agreement made on the basic condition of the goods; this applies equally to a change in the purchase contract.
(3) The general limitation period is one year from the delivery date notwithstanding Sec. 438 (1) No. 3 of the German Civil Code, unless otherwise agreed. In-sofar as formal handover has been agreed, the limitation period shall com-mence with the handover. The other special statutory provisions on the limitation period shall remain unaffected. Claims for damages according to Section 8 (1) of the General Terms and Conditions for injury to life, limb, health or from the breach of essential contractual obligations (cardinal obligations), as well as liability for other damages based on an intentional or grossly negligent breach of duty by the Provider, its legal representatives or vicarious agents as well as claims for damages according to the Product Liability Act shall beblimited exclusively according to the statutory limitation periods.
(4) As a matter of principle, we shall not be liable for defects the Purchaser is aware of at the time of conclusion of the contract or is not aware of due to gross negligence (Sec. 442 German Civil Code). Furthermore, the Purchaser's warranty claims presume compliance with the Purchaser's statutory obligations to inspect and notify (Sec. 377, 381 of the German Commercial Code). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately prior to processing. The Customer must inspect the goods carefully after receiving them. The delivered goods are deemed to have been approved by the Customer if a defect does not appear to us (i) in the case of obvious defects within five working days of delivery or (ii) otherwise within five working days after discovery of the defect in written form. If the Purchaser fails to properly inspect the goods and/or notify us of defects, our liability for the defect that was not reported, not reported on time or not reported properly shall be excluded in accordance with the statutory provisions. In the case of goods intended for installation, mounting or assembly, this shall also apply if the defect only became apparent after processing as a result of a breach of one of these obligations; in this case, the Purchaser shall in particular have no claims for reimbursement of the corresponding costs ("removal and installation costs").
(5) If the delivered item is defective, we may initially choose whether to provide subsequent fulfillment by remedying the defect (rectification) or by delivering a defect-free item (replacement). If the type of subsequent fulfillment chosen by us is unreasonable for the Purchaser in the individual case, the Purchaser may reject it. Our right to refuse subsequent fulfillment under the statutory conditions shall remain unaffected.
(6) We are entitled to make the owed supplementary performance dependent on the fact that the Customer pays the due purchase price. However, the Customer is entitled to retain a part of the purchase price that is appropriate in relation to the defect.
(7) The Purchaser shall afford us sufficient time and opportunity to perform the subsequent fulfillment owed, in particular to hand over the goods in question for inspection purposes. In the event of a replacement delivery, the Purchaser shall return the defective item to us at our request in accordance with the stat-utory provisions; however, the Purchaser shall not have a claim for return. Subsequent fulfillment shall not include the dismantling, removal or disassem-bly of the defective item or the installation, attachment, or assembly of a defect-free item if we were not originally obligated to perform these services; claims of the Buyer for reimbursement of the corresponding costs ("dismantling and assembly costs") shall remain unaffected.
(8) In the event of an actual a defect, we shall bear or reimburse the expenses required for the purpose of inspection and subsequent fulfillment, in particular transport, travel, labor and material costs and, if applicable, dismantling and installation costs, in accordance with the statutory provisions and these General Terms and Conditions. Otherwise, we may demand reimbursement from the purchaser for the costs incurred as a result of the unjustified request to remedy the defect if the purchaser knew or was negligent in not knowing that there was actually no defect.
(1) Customer claims for damages and compensation for wasted expenses are excluded. This does not apply to claims for damages of the Customer resulting from injury to life, limb, health or material contractual obligations (cardinal obligations) as well as liability for other damages based on intentional or grossly negligent breach of duty by the provider, its legal representatives or vicarious agents. Significant contractual obligations are those whose fulfilment is necessary to achieve the objective of the contract.
(2) In the event of a breach of essential contractual obligations that was caused by simple negligence the provider is only liable for the contractually typical, foreseeable damage, unless it concerns claims for damages of the Customer resulting from injury to life, limb or health.
(3) The limitations of paragraphs 1 and 2 shall also apply in favour of the legal representatives and vicarious agents of the provider, if claims are asserted directly against them or in the event of breaches of duty by persons for whose culpability we are responsible.
(4) The provisions of this Section 8 shall not apply with respect to our liability for guaranteed product specifications (within the meaning of Sec. 444 of the German Civil Code), personal injury or under the German Product Liability Act or insofar as a defect was fraudulently concealed.
(5) Insofar as parts are manufactured according to drawings, samples or other information and wishes of the Customer and the Customer provides us with templates / information for use of the constitution, he affirms that he is entitled to transfer and use this templates / information. Furthermore, it is solely the Customer's responsibility that the execution of the order does not infringe the rights of third parties, in particular copyrights. The customer must indemnify the provider from all claims of third parties for such an infringement.
(6) Due to a breach of duty which does not consist of a defect, the Purchaser may only withdraw from or terminate the agreement in cases where we are responsible for the breach of duty. A free right of termination on the part of the Purchaser (in particular pursuant to §§ 650, 648 BGB) is excluded. In all other respects, the statutory prerequisites and legal consequences shall apply.
§9 Data Protection
(1) In the following we inform about the collection of personal data in business transactions. Personal data means all data that is personally available to you, e.g. name, address, e-mail addresses, payment details, ordered goods. Responsible person according to Art. 4 Abs. 7 DSGVO is Heumüller Holzwolle GmbH, Burghaslacher Str.2, 96160 Geiselwind, Germany, phone: +49 9555 8 08 78 0, fax: +49 9555 8 08 78 69, E-Mail: firstname.lastname@example.org.
(2) The data is collected, stored and, if necessary, passed on, as far as necessary to provide the contractual services. Therefore the collection, storage and dissemination is carried out for the purpose of fulfilling the contract and on the basis of Art. 6 para. 1 sentence 1 lit. b DSGVO. Failing to provide this information may lead to the situation that the contract is unable to be closed. If we deliver goods to you, we will pass on your data to the commissioned shipping company, as far as needed for successful delivery.
(3) To ensure the protection of personal date we maintain current technical measures. These are adapted to be of state-of-the-art quality at the time of use.
(4) At any time affected persons have the right to request information about the personal data stored about them (Art. 15 DSGVO). This also applies to the recipients or categories of recipients to whom this data is communicated and to the purpose of the storage. In addition, they have the right under the conditions of Art. 16 DSGVO, to correct and/or, under the conditions of Art. 17 DSGVO, to delete and/or under the conditions of Art. 18 DSGVO to demand to limit the use of. In addition, under the conditions of Art. 20 DSGVO you can request a data transfer at any time. Personal data is only stored for as long as it is necessary for the contractual purpose (this usually corresponds to the duration of the contract) or where statutory retention periods exist. In case of processing personal data for the purpose of performing public interest tasks (Article 6 (1) sentence 1 (e) DSGVO) or for attention of legitimate interests (Article 6 (1) sentence 1 (f) DSGVO), at any time you may object the processing of personal data with future effect. In the case of objection, we shall refrain from any further processing of your data for the aforementioned purposes, unless (a) there are compelling, legitimate grounds for processing that exceed your interests, rights and freedoms, or (b) the use is necessary for the establishment, exercise, defence of legal claims or litigation. You may object the use of the data for direct advertisement at any time with future effect. This also applies for profiling, which is related to direct advertisement. In case of opposition, we shall refrain from any further processing of your data for the purpose of direct advertisement.
(5) We reserve the right to transmit personal data of the Customer to credit bureaus, as far as this is necessary for the purpose of a credit check, and provided that the Customer expressly agrees in individual cases. Otherwise, we will not forward personal Customer data to third parties without the expressly agreed consent of the Customer, except insofar as we are legally obliged to surrender it.
(6) The collection, transmission or other processing of personal data of the Customer for purposes other than those mentioned in this Section 9 purposes is not permitted.
§10 Applicable Law and Competent Courts
(1) Any contracts entered into between us and the Customer and these General Terms and Conditions shall be governed by the laws of the Federal Republic of Germany under exclusion international uniform law, in particular the of the UN Convention on the International Sale of Goods (CISG), without prejudice to any mandatory conflict of law provisions. The statutory provisions restricting the choice of law and the applicability of mandatory regulations, in particular those of the state in which the Customer as a consumer has his habitual residence, remain unaffected.
(2) If the Customer is a merchant within the meaning of Sec. 1 (1) of the German Commercial Code, a legal entity under public law or a special fund under public law, the courts competent for Geiselwind are exclusively responsible for all disputes arising out of, or in connection with, the contractual relationship in question. However, we shall also be entitled in such cases to bring an action at the place of fulfillment of the delivery obligation pursuant to these General Terms and Conditions or a prior individual agreement or at the general place of jurisdic-tion of the Purchaser. In all other cases, we or the Customer may file suit before any court of competent jurisdiction under applicable law.