As a dealer, HM Industrieservice GmbH (hereinafter: HM) supplies its customers (hereinafter: “Customer”) with chemical-technical products. The products are available as liquids, pastes, sprays or powders and are sold in different container sizes and types. The products are usually used as auxiliary and operating materials in industrial, trade and service companies or public authorities and corporations.
HM procures these products from qualified suppliers, taking quality, availability and cost aspects into account. Some of the products are sold under the brand or trade names of the respective suppliers, some under our own trade or brand names.
I. Scope of application, general
1. These General Terms and Conditions of Delivery and Payment, as amended from time to time, apply to all business relationships between HM and its customers. They only apply if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
2. These General Terms and Conditions of Delivery and Payment apply exclusively; HM does not recognize any terms and conditions of the customer that conflict with or deviate from these terms and conditions unless HM has expressly agreed to their validity. These General Terms and Conditions of Delivery and Payment also apply if HM confirms the order and/or executes the order to the customer without reservation while being aware of conflicting or deviating terms and conditions of the customer.
3. Individual agreements made with the customer in individual cases always take precedence over these General Terms and Conditions of Delivery and Payment. A written contract or a written confirmation from HM is decisive for the content of such agreements.
4. The text form of Section 126 b of the German Civil Code suffices for the written form requirement in the sense of the above clause 3 and the following provisions. In particular, legally relevant declarations and notifications that are to be submitted by the customer to HM after the conclusion of the contract (e.g. setting deadlines, notifications of defects, declaration of withdrawal or reduction) must be in text form to be effective.
5. References to the validity of legal regulations are only of clarifying importance. Even without such a clarification, the statutory provisions apply unless they are directly modified or expressly excluded in these General Terms and Conditions of Delivery and Payment.
II. Conclusion of contract
1. HM’s offers are non-binding and do not represent a binding offer unless they are expressly marked as binding or contain a specific acceptance period. This also applies if HM has provided the customer with catalogues, technical documentation, other product descriptions or documents.
2. The ordering of the goods by the customer is considered a binding contract offer. Unless otherwise stated in the order, HM is entitled to accept this contractual offer within two (2) weeks of its receipt by HM.
3. Acceptance comes about through a written order confirmation on the part of HM or with the dispatch of the goods to the customer.
4. The order confirmation or, in the case of immediate execution of the order, the goods actually delivered together with the delivery note are decisive for the scope and object of the service. If an order confirmation sent by HM contains recognizable changes compared to the customer’s order, the customer’s consent shall be deemed to have been given if the customer, in the case of an order confirmation sent by HM, does not object to this order confirmation in writing within ten (10) working days. In any case, consent is deemed to have been given at the latest when the customer accepts the service without objecting in writing within the scope of the inspection and notification obligations according to Section X, Item 3.
5. In the case of an exchange of electronic documents via Electronic Data Interchange (EDI) or in the case of a contract being concluded via e-commerce, Section XIII also applies.
III. Prices – terms of payment
1. All HM prices are ex warehouse Ubstadt-Weiher plus the statutory VAT applicable at the time the service is rendered. If the agreed performance time is more than one month after the conclusion of the contract, HM reserves the right to change its prices appropriately with a notice period of one week if, after the conclusion of the contract, there are changes in the procurement costs due to fluctuations in the price of raw materials, utilization of manufacturing capacities, exchange rates, transport costs, tariff agreements, customs duties or similar cost-driving factors outside of HM’s control. At the request of the customer, HM will document the increase factors. If the price increases by more than 20%, the customer can withdraw from the contract.
2. In the case of mail-order sales (Section VI, Item 1), the customer bears the transport costs ex warehouse and the costs of any transport insurance requested by the customer. Unless otherwise agreed, HM is entitled to determine the type of shipment itself, in particular the transport company, shipping route and packaging. Any customs duties, fees, taxes and other public charges are borne by the customer.
3. If HM takes back delivered goods without there being a legal claim on the part of the customer, HM will charge a restocking fee of 20% of the value of the goods (agreed gross purchase price) of the goods to be stored, but at least 15 – EUR.
4. For small orders with a goods value of less than EUR 50, a small quantity surcharge of EUR 25 will be charged, provided there are no deviating individual agreements. For deliveries abroad, a country-specific small quantity surcharge can be estimated, which is determined in relation to the effort.
5. Unless otherwise agreed, the agreed purchase price is due and payable in full no later than thirty (30) days after the invoice date. If payment is made up to ten (10) days after the invoice date, a 2% discount will be granted. The date of receipt by HM is decisive for the date of payment. However, for contracts with a goods value of more than EUR 5,000, HM is entitled to demand a down payment of 30% of the purchase price. The deposit is due and payable within ten (10) calendar days of the invoice date.
6. With the expiry of the payment period specified in Section 5, the customer is in default without the need for a reminder. Interest is to be paid on the purchase price during the delay at the applicable statutory default interest rate. HM reserves the right to assert further damage caused by delay. HM’s claim to the commercial default interest (§ 353 HGB) remains unaffected in relation to merchants.
7. The customer is only entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the counterclaims of the customer remain unaffected.
8. If, after conclusion of the contract, it becomes apparent that HM’s claim to the purchase price is jeopardized by the customer’s inability to pay (e.g. due to an application for the opening of insolvency proceedings), HM is entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to Right to withdraw from the contract (§ 321 BGB), alternative to renegotiating the commercial conditions (e.g. prepayment). In the case of contracts for the manufacture of non-fungible items (custom-made products), HM can withdraw immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.
9. If HM has a due payment claim against the customer from the ongoing business relationship with the customer, HM can refuse further deliveries of goods until the customer has made the payment due. This applies accordingly if a credit limit granted to the customer by HM is exceeded.
10. If payment of the purchase price owed is not made despite the due date, data will be transmitted to credit agencies or service providers for receivables management cooperating with HM under the conditions of the GDPR.
11. If HM is entitled to collect claims against the customer by direct debit due to a SEPA direct debit mandate from the customer, the customer agrees that HM will notify him no later than three (3) calendar days before the date of the intended collection of a SEPA direct debit (execution date) forwards advance information (pre-notification) about this.
IV. Retention of title
1. HM retains title to the goods sold until all current and future claims arising from the respective sales contracts and the current business relationship (hereinafter “secured claims”) have been paid in full.
2. The goods subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The customer must inform HM immediately in writing if and to the extent that third parties access the goods from HM.
3. In the event of breach of contract on the part of the customer, in particular non-payment of the purchase price due, HM is entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of retention of title and withdrawal. If the customer does not pay the purchase price due, HM may only assert these rights if HM has previously unsuccessfully set the customer a reasonable deadline for payment or setting such a deadline is unnecessary under statutory provisions.
4. The customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply.
(a) The retention of title extends to the products created by processing, mixing or combining the goods of HM at their full value, whereby HM is considered the manufacturer. If third-party goods are processed, mixed or combined with third-party goods, HM acquires co-ownership in proportion to the invoice value of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
(b) Claims against third parties arising from the resale of the goods or the product are already assigned by the customer to HM as a security in full or in the amount of any co-ownership share of HM in accordance with the above paragraph. HM accepts the assignment. The obligations of the customer specified in Section 2 also apply with regard to the assigned claims.
(c) In addition to HM, the customer remains authorized to collect the claim. HM undertakes not to collect the claim as long as the customer meets his payment obligations to HM, does not default on payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, HM can demand that the customer inform HM of the assigned claims and their debtors, provide all the information required for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.
(d) If the realizable value of the securities exceeds HM’s claims by more than 10%, HM will release securities at the customer’s request. The selection of the securities to be released is the responsibility of HM.
V. Delivery period, delivery date, force majeure and delay in delivery
1. Delivery or service periods and delivery or service dates are agreed individually within the framework of the conclusion of the purchase contract in accordance with Section II, Item 3 or specified by HM when the order is accepted. Unless expressly stated as binding, the delivery time is approximate. If mail-order sales have been agreed, the delivery periods and dates refer to the time of handover to the third party commissioned with the transport at the place of performance in accordance with Section VI, Item 1.
2. The delivery or service period individually agreed or specified by HM begins the clarification of all commercial and technical questions, in particular the timely issue of product and process approvals by the customer.
3. Compliance with the delivery or service obligation of HM also presupposes the timely and proper fulfillment of the customer’s obligations. The exception of the unfulfilled contract remains reserved.
4. In the case of an exchange of electronic documents with predefined data record structures using Electronic Data Interchange (EDI) or in the case of a contract being concluded via e-commerce, Section XIII also applies.
5. If HM itself is not supplied, not supplied correctly or not on time, although HM has placed congruent orders with reliable sub-suppliers, HM is released from its obligation to perform and can withdraw from the contract. HM is obliged to inform the customer immediately about the non-availability of the service and to reimburse any consideration already provided by the customer without delay. In this case, HM is not at fault.
6. Serious events, such as in particular force majeure, labor disputes, unrest, war or terrorist conflicts and pandemics, which have unforeseeable consequences for the performance of the service, also and in particular by affecting suppliers, release the contracting parties for the duration of the disruption and to the extent of their effect from their performance obligations, even if they should be in default. This does not automatically terminate the contract unless the delivery subsequently becomes unreasonable for one of the contracting parties due to such events. In particular, the following constellations apply to HM as unreasonable in the above sense:
(a) If HM inquires about a product from more than three sub-suppliers from the supplier base and does not receive an offer that allows a contractual service.
(b) If the usual use, the specific purpose of use of the customer and / or the specification-compliant manufacturing process of a delivery item justifies a specific claim to the performance of the sub-supplier and HM for the purpose of alternative procurement has no demonstrably competent and thus approved for the product area concerned sub-supplier in its supplier master.
(c) If an alternative procurement to fulfill the contract results in a price increase on the procurement side of HM, which means that the new procurement price is more than 10% above the price previously agreed between the customer and HM. Furthermore, the contracting parties agree to adjust their obligations to the changed circumstances in good faith in the event of such an obstacle. In any case, the contracting parties must inform each other immediately after becoming aware of such an obstacle or event. 7. If a delivery or service date or a delivery or service period has been agreed or promised by HM and the agreed delivery or service date or delivery or service period is then changed due to events according to clauses 5 and 6 above more than four weeks, or if it is objectively unreasonable for the customer to adhere to the contract in the case of a non-binding performance date, the customer is entitled to withdraw from the part of the contract that has not yet been fulfilled.
8. The occurrence of a delay in delivery by HM is determined by the statutory provisions, whereby a reminder by the customer is required in any case, in deviation from Section 286 (2) BGB.
VI. Delivery and transfer of risk
1. Delivery is ex warehouse Ubstadt-Weiher, which is also the place of performance. At the request and expense of the customer, the goods will be sent to another destination (sales by mail). Unless otherwise agreed, HM is entitled to determine the type of shipment (in particular transport company, shipping route, packaging) itself.
2. Partial deliveries are permitted as long as they are reasonable. The following cases in particular are deemed to be reasonable within the meaning of this provision:
(a) The partial delivery can be used by the customer within the scope of the contractual purpose.
(b) The delivery of the remaining ordered goods is ensured.
(c) The customer does not incur any significant additional work as a result.
3. HM reserves the right to make excess or short deliveries in individual cases, taking into account the interests involved and within the scope of what is reasonable. In particular, HM is entitled to supply and charge for the next larger packaging unit if the packaging unit desired by the customer is not available. In addition, within the individual packaging units, slight deviations in quantity due to tolerances are permissible for those products that are usually transferred to packaging units using weight-based weighing processes.
4. The risk of accidental loss and accidental deterioration of the goods is transferred to the customer at the latest when the goods are handed over. In the case of mail-order sales, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay is already transferred to the forwarding agent, the carrier or the person or institution otherwise responsible for carrying out the shipment. The handover is the same if the customer is in default of acceptance.
VII. Acceptance Agreement and Default of Acceptance
1. The existing, individual acceptance agreements shall apply to stocks which HM has procured and stored specifically for the customer on the basis of the customer’s requirements/consumption information and/or specific stockpiling agreements. In the absence of such an individual regulation, the stock of goods is to be removed in periods and quantities that are as uniform as possible. However, HM can request acceptance of the affected stock no later than 3 months after the notified or agreed availability from HM.
2. If acceptance does not take place in accordance with item 1 above, HM is entitled to charge a flat-rate fee of EUR 25 for each new calendar week that has started and for each occupied storage space. The customer reserves the right to assert and provide evidence of additional, lower or no storage costs.
3. If the customer is in default of acceptance, fails to cooperate or if the delivery is delayed for other reasons for which the customer is responsible, HM is entitled to demand compensation for the resulting damage including additional expenses (e.g. transport, re-storage, storage costs). . A minimum expense allowance of EUR 45 per affected delivery item is due. The customer reserves the right to prove that the damage was lower. The lump sum is to be offset against further monetary claims.
VIII. Property rights, provision of documents
1. Property rights within the meaning of this section are patents, utility models and registered designs as well as designs, trademarks, including their respective applications, and copyrights.
2. Unless expressly agreed otherwise, HM is obliged to provide the services free of industrial property rights of third parties only in the country of the place of manufacture and delivery.
3. The customer undertakes to inform HM immediately of any alleged infringements of property rights by third parties with regard to the products delivered by HM. In the event of an actual violation by HM, HM can (a) obtain a right of use, (b) either change or replace the services at its own expense in such a way that they do not violate the property right, but essentially still have the agreed functional and performance characteristics in the correspond to the customer in a reasonable manner, or (c) release the customer from claims against the owner of the property right. If this supplementary performance is impossible for HM or only possible under disproportionate conditions, HM has the right to take back the services concerned against reimbursement of the remuneration paid. HM’s obligation to pay damages is based exclusively on Section XI.
4. The above-mentioned obligations only exist if and to the extent that (a) the customer has not acknowledged an infringement or reached settlements with the third party, (b) the infringement of property rights was not caused by special requirements of the customer, or (c) the service from changed by the customer or linked to other services, and HM reserves the right to take all defensive measures and negotiate settlements.
5. The customer guarantees that the goods and services provided and the documents provided by the customer are free of third-party property rights. In the event of a claim being made against HM due to the infringement of such third-party rights, the customer undertakes to fully indemnify HM from such third-party claims and to reimburse HM for all costs of legal defense and to reimburse HM for any further damage, costs or expenses incurred as a result of the claim. The customer is obliged to ward off unfounded claims by third parties with regard to the rights mentioned above. If the customer refuses the indemnification and thus leaves it up to HM to decide whether the third party is entitled to claims, he must reimburse HM for the costs incurred as a result of this decision.
6. By providing documents, the customer grants HM the non-exclusive right to use them for all contractual purposes without any time or space restrictions. If items are requested on the basis of documents provided, such as drawings and specifications (drawing parts), HM is entitled to make these available to sub-suppliers for the purpose of processing the request and subsequent fulfillment of the contract. If the customer has different or additional requirements for requested drawing parts without providing HM with specifications or drawings that have been changed or supplemented by these requirements, HM is entitled to change or supplement the existing drawings of the customer accordingly.
7. The customer guarantees to HM that the documents (specifications/drawings) that he provides to HM for inquiry purposes are up-to-date, complete and correct. This also includes the notification of existing property rights of third parties.
8. If, in connection with the contractual obligations and/or the fulfillment of the contract, there is a result that is eligible for protection, HM is exclusively entitled to all property rights to this result, unless the customer was significantly involved in the creation of the result. In such a case or in all other cases in which a result capable of being protected under intellectual property law was created jointly, the contracting parties agree that HM is entitled to at least a free, non-exclusive right of use that is unlimited in terms of location, time and content. A transfer of already existing property rights of HM does not take place under any circumstances. Should it be necessary in a justified individual case for the customer to acquire rights of use to property rights from HM, then he will receive a non-exclusive and non-transferrable right of use that is limited in time for the duration of the necessary contractual use.
IX. Basis of contract and scope of services owed
1. Specific requirements of the customer in terms of processes, handling, scope of service as well as testing and quality measures only become part of the contract if these are provided to HM with the request specification for a delivery item and then agreed between the customer and HM for the individual case. General references to existing regulations and regulations of the customer in this regard only become part of the contract if HM has expressly consented to their inclusion.
2. The customer can only invoke increased requirements for the procedural control of products in the production and production-accompanying testing process if he requests the products with an initial sampling as part of a production process and product release procedure (e.g. VDA Volume 2, PPAP-Handbook AIAG). has. In doing so, the customer must notify HM of any special and/or (safety)-critical features according to VDA or IATF16949 on the basis of the inquiry specifications provided and agree on the associated error proportions and/or process capability requirements with HM.
3. Agreements, in particular verbal ancillary agreements and assurances by HM’s sales staff, only become binding once they have been confirmed in writing by HM. Obvious errors, printing, writing, arithmetic and calculation errors are non-binding and do not justify any claims. HM only assumes a guarantee if HM has expressly designated it as such in writing – to the exclusion of text form – and has agreed this with the customer.
4. HM’s offers are based on information provided by the customer, without knowledge of the customer’s circumstances or specifications. Liability for a specific application/purpose or a specific suitability is only accepted by HM to the extent that this has been expressly agreed in writing at the product level – to the exclusion of text form. This also applies if HM performs according to the customer’s drawings, specifications, samples, plans, etc.
5. Information, samples, specimens or illustrations in catalogues, price lists or other advertising material are only approximate (e.g. weight, dimensions, utility values, resilience, tolerances or technical data) unless an essential functional property is affected and / or the usability for the contractual purpose requires an exact match. A reference to technical standards serves to describe the service and is not a guarantee of quality.
6. As a retailer, HM assumes no responsibility for public statements made by the manufacturer or other third parties (e.g. advertising statements). Liability is excluded for claims for defects based on statements by the aforementioned persons.
7. If HM delivers a sample or initial sample or has it made and this is approved by the customer, the service provided by HM in accordance with the approved sample is deemed to be a contractual service. The same applies if HM has the service made according to specifications created by HM and approved by the customer. If, in the event of an agreed initial sampling, the customer requests HM to deliver the affected product even without its explicit initial sample approval and/or before the completion of the initial sample tests by HM, the initial sample approval for this product is deemed to have been issued by the customer. The products corresponding to the initial samples are then considered to be in accordance with the contract.
8. Unless otherwise agreed, instruction or advice is not owed. Insofar as HM provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services, this is done with the exclusion of any liability. If a consulting contract is in place, the limitations of liability in Section XI apply.
X. Customer’s claims for defects
1. The statutory provisions shall apply to the customer’s rights in the event of material defects and defects of title, unless otherwise specified below.
2. The basis of HM’s liability for defects is primarily the agreement reached regarding the quality of the goods. The product descriptions and specifications listed in the HM catalogs on the basis of the relevant standards (e.g. DIN, ISO) or made available to HM by the customer and subsequently agreed with HM apply as an agreement on the quality of the goods. In addition, the performance owed is determined according to Section IX.
3. The customer’s claims for defects presuppose that he has complied with his statutory inspection and complaint obligations according to §§ 377, 381 HGB upon delivery. In particular, the customer must carry out an inspection for obvious defects (including incorrect and short deliveries) and transport damage immediately after delivery. If a defect is found during the examinations or if a defect that was not apparent during the examination upon delivery occurs later, HM must be notified of this in writing without delay. The notification is deemed to be immediate if it is made within seven (7) working days after delivery and, in the case of non-recognizable defects, within the same period of time from discovery or from the point in time at which this would have been discovered in a reasonable inspection. The timely dispatch of the notification is sufficient to meet the deadline. If the customer fails to carry out the proper inspection and/or notification of defects in accordance with the above provisions, the goods in the delivery condition are deemed to have been approved within the meaning of Section 377 of the German Commercial Code.
4. Goods that are the subject of a complaint must be separated by the customer and thus removed from further processing. In particular, it must not be processed or installed. A breach of these provisions is deemed to be approval of contractual performance by the customer.
5. If the goods are used in the customer’s products which – if the goods delivered by HM are defective – pose a risk to life and limb or a not inconsiderable damage to health, the goods must first be checked/tested for their usability (e.g laboratory examination or test run). This obligation also applies if, through the use of these goods in corresponding products, a defect-related dismantling/installation as part of the supplementary performance can only be carried out with disproportionate costs and/or consequential damage that is disproportionately high in relation to the delivered products is to be feared. This regulation does not apply if a quality assurance agreement has been concluded which includes the performance of specific tests or quality assurance measures for the individually affected HM products.
6. If the delivered item is defective, HM can initially choose whether to provide supplementary performance by eliminating the defect (repair) or by delivering a defect-free item (replacement delivery). HM’s right to refuse supplementary performance under the statutory conditions remains unaffected.
7. The place of subsequent performance is the place of performance; HM is also free to provide subsequent performance at the current location, provided that there are no legitimate interests of the customer to the contrary.
8. The customer must give HM the time and opportunity required for the supplementary performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the customer must return the defective item to HM in accordance with the statutory provisions, unless a different agreement has been made in the individual case.
9. HM shall bear the expenses required for the purpose of testing and supplementary performance, in particular transport, travel, labor and material costs, subject to Section 10 below, if there is actually a defect. However, if a request by the customer to remedy the defect turns out to be unjustified, HM can demand reimbursement of the costs incurred from the customer.
10. In the event of a series defect, the claim for reimbursement of the expenses required for installation and removal is limited to EUR 1,000 per defective series, provided that the product concerned is not based on initial sampling as part of a production process and product release procedure in accordance with VDA Volume 2 or PPAP-Handbook AIAG has been delivered to the customer or the customer has otherwise credibly demonstrated the concern of higher costs before the contract is concluded. In the latter cases, reimbursement of expenses is limited to a maximum of EUR 2,000 per defective series. Statutory objections and objections to the customer’s claims for supplementary performance remain unaffected by the above provisions. A serial defect exists if a specific defect of the same type is found for individual parts from one or more delivery items by HM, which is present in the entire delivery item(s) due to its cause, type and nature.
11. If the supplementary performance fails or a reasonable period of time to be set by the customer for supplementary performance has expired without success or is unnecessary according to the statutory provisions, the customer can withdraw from the purchase contract or reduce the purchase price. In a minor defect, however, there is no right of withdrawal.
12. Claims by the customer for damages or reimbursement of futile expenses exist only in accordance with Section XI and are otherwise excluded.
XI. Other liability
1. Unless otherwise stated in these General Terms and Conditions of Delivery and Payment, including the following provisions, HM shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
2. HM is liable for damages – for whatever legal reason – in the event of intent and gross negligence. In the event of simple negligence, HM shall only be liable (a) for damage resulting from injury to life, limb or health, (b) for damage resulting from the breach of a material contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose adherence to which the contractual partners regularly trust and may trust); in this case, however, HM’s liability is limited to compensation for the foreseeable, typically occurring damage.
3. The foreseeable, typically occurring damage within the meaning of item 2 above is limited to EUR 1,000 per liability case. Liability that goes beyond this exists in cases in which the parties have agreed on a purpose of use in accordance with Section IX, Item 4 and the customer accepts the resulting risk of damage – at least in an approximate indication and, if applicable, the quantity unit on which this is based
(e.g. per piece or Time unit) – has quantified in terms of amount. If this information is (are) plausible, the liability on the part of HM increases by the amount transmitted and confirmed in this way.
4. The limitations of liability resulting from clauses 2 and 3 do not apply if HM has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods. The same applies to claims by the customer under the Product Liability Act and in the event of a claim based on data protection law.
5. Due to a breach of duty that does not consist of a defect, the customer can only withdraw or terminate if HM is responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 650, 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.
XII. Statute of limitations
1. Notwithstanding Section 438 (1) No. 3 BGB, the general statute of limitations for claims arising from defects in quality and title is one (1) year from delivery.
2. However, if the goods are a building or an item that has been used for a building in accordance with its usual purpose and has caused its defectiveness (building material), the limitation period is five (5) years from delivery in accordance with the statutory provisions (§438 (1) No. 2 BGB). Statutory special regulations for third-party restitution claims (§438 (1) No. 1 BGB), fraudulent intent on the part of the seller (§438 (3) BGB) and for claims in supplier recourse (§§478 ff., 445 ff. BGB) also remain unaffected. .
3. The above limitation periods for claims under the purchase contract also apply to other contractual and non-contractual claims for damages by the customer based on a defect in the goods, unless the application of the regular statutory limitation period (§§195, 199 BGB) would result in a shorter one in individual cases statute of limitations. The limitation of the product liability law remain unaffected in any case. Otherwise, the statutory limitation periods apply exclusively to claims for damages by the customer in accordance with Section XI.
XIII. Supplementary Provisions for Electronic Procurement
1. In the sense of these supplementary provisions, the term electronic procurement includes all business transactions in which a direct business relationship between the customer and HM is processed by means of electronic data transmission. In this respect, this includes both the Internet shop and the exchange of electronic documents using Electronic Data Interchange (EDI).
2. In the case of an EDI-based exchange of documents with specified, defined data record structures, the dates specified by HM in electronic order confirmations (in the sense of Section II, Item 3) are generally communicated as expected delivery dates, unless otherwise agreed between the customer and HM.
3. In the case of Internet purchases via the Internet shop, the customer’s consent to the validity of these General Terms and Conditions of Delivery and Payment is associated with the registration required for this purpose. This registration is a prerequisite for submitting a binding offer within the meaning of Section 4 below.
4. The presentation of products on the Internet and in electronic catalogs do not constitute a binding offer on the part of HM, but serve to prompt the customer to submit a binding offer. As a result, the customer submits a binding offer for the conclusion of a contract with HM by sending an order. A contract is then only concluded through an order confirmation on the part of HM or through the delivery of the goods by HM. An automatic confirmation of the receipt of the order does not represent acceptance of the customer’s purchase offer by HM.
5. The delivery times stored in the Internet or Internet shop, electronic catalogs or web-based platforms are general guideline values for delivery within Germany and are subject to change Stock. For deliveries abroad, the delivery times are extended by the usual transaction and transport times of standard shipping.
XIV. Subscription orders
1. The customer has the option of creating subscription orders in the online shop. Subscription orders ensure permanent and regular delivery at an interval specified by the customer. The creation of a subscription order represents an offer by the customer, which is accepted by HM on the selected day of execution with an order confirmation by e-mail. With the execution of the subscription order, an order is placed, the goods are picked and sent to the specified address by standard shipping. The respective individual purchase contract is concluded with the order confirmation or the shipment of the goods.
2. A subscription order can be created, changed, deactivated and deleted by the customer at any time free of charge in the HM online shop. In particular, the customer can change the order interval and the delivery address. Deletion, modification or deactivation on the day of execution is not possible. A subscription order can be created for different items, but only with one delivery frequency and one delivery address. Several subscription orders must be deleted individually. Subscription orders can also be canceled in writing. With the deletion of a user in the HM online shop, all subscription orders created by this user are permanently deleted.
3. HM reserves the right to remove items from the subscription service with a notice period of two (2) weeks.
4. Each contracting party reserves the right to terminate subscription orders by giving 30 days’ notice to the end of the month. The right to terminate for good cause remains unaffected.
5. HM issues an invoice for each delivery based on the agreed conditions. Unless price fixing has been agreed, HM is entitled to change the prices with a notice period of three (3) weeks. If the purchaser does not object within two (2) weeks after receipt of the notification of the price change, the consent shall be deemed to have been granted.
XV. Processing of packaging
1. All deliveries are made from the Ubstadt-Weiher warehouse. Dispatch takes place in disposable packaging, there is no obligation to take back.
2. Pallets and returnable packaging or loaned containers are excluded from this and are subject to separate processing.
XVI. Data protection and confidentiality
1. With the establishment of a business relationship, HM processes and stores personal data that is necessary for the implementation of the business relationship, in particular order processing and contract fulfillment, in accordance with the relevant data protection regulations.
2. Data is transferred to third parties in particular in accordance with Section III, Item 10.
3. The customer may not disclose prices and payment terms agreed between the contracting parties to third parties without the prior and express written approval of HM.
4. Supplier information represents business secrets for HM as a trading company, which are generally not made available to the customer. If, in individual cases, HM has disclosed this information to the customer, the customer must treat this information as strictly confidential, not pass it on to third parties and only use it to fulfill the contract in the context of which the information was disclosed.
1. Should individual provisions of these General Terms and Conditions of Delivery and Payment be or become void or ineffective in whole or in part, this shall not affect the effectiveness of the remaining provisions. In such a case, the contracting parties are obliged to replace the void or ineffective provision with an effective provision that comes as close as possible to the economic result sought with the ineffective provision. The same applies in the event of a gap in these General Terms and Conditions of Delivery and Payment.
2. The law of the Federal Republic of Germany applies to these business relationships and all legal relationships between HM and the customer, to the exclusion of uniform international law, in particular the UN Sales Convention (CISG). Prerequisites and effects of the retention of title according to Section IV are subject to the law at the respective location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective.
3. If the purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the place of business of HM in Ubstadt-Weiher. However, HM is also entitled to bring an action at the customer’s general place of jurisdiction.