General Terms and Conditions of Sale of Holmenkol GmbH
Valid: January 2024
Section 1 General - Scope
(1) These Terms and Conditions of Sale apply exclusively. Unless expressly agreed in writing, we do not recognise customer’s terms and conditions that either conflict with or deviate from our Terms and Conditions of Sale. Our Terms and Conditions of Sale also apply if, unconditionally, we execute delivery to the customer despite being aware that terms and conditions of the customer either conflict with or deviate from our Terms and Conditions of Sale. This provision applies in particular to private label agreements.
(2) All agreements made between our company and the customer for the purpose of execution of the contract are recorded in writing in the contract.
(3) Our Terms and Conditions of Sale apply to consumers as well as to businessmen within the meaning of section 310 para. 1 BGB (German Civil Code).
(4) Legally relevant declarations and notifications by the customer concerning the contract (e.g. deadlines, notification of defects, withdrawal or reduction in price) are to be submitted in writing. Written form within the meaning of these Terms and Conditions of Sale includes written and text form (with or without signature), for example letter, e-mail, fax. Statutory legal formalities and supporting documentation, in particular in case of doubt concerning legitimation of the declaring party, remain unaffected.
(5) References to the applicability of statutory regulations serve the purposes of clarification only. Even without such clarification, statutory regulations therefore apply unless specifically amended or expressly excluded in these Terms and Conditions of Sale.
Section 2 Offer - Offer Documentation
(1) Our offers are subject to change and non-binding. Price indications are non-binding. Conditions and prices applicable at the time the order is placed are decisive.
(2) If the order is to qualify as an offer in accordance with section 145 BGB, we have a period of 2 weeks in which to accept it. Acceptance can be expressed either in writing (e.g. by order confirmation) or by delivery of the goods to the customer.
(3) We reserve rights of ownership and copyright to illustrations, drawings, calculations and other documents. This also applies to written documents designated as "confidential". The customer requires our express written consent prior to passing such documents on to third parties.
Section 3 Prices - Terms of Payment
(1) Unless otherwise stated in the order confirmation, our prices are quoted in euro "ex works". In the case of sale to destination (section 5 para. 1), the customer bears the transport costs ex works.
(2) Statutory value added tax is not included in our prices but is indicated separately on the invoice at the statutory rate applicable on the day of invoicing.
(3) The purchase price is due and payable within 30 days of invoicing and delivery of the goods, unless a different payment period has been agreed in writing.
(4) Statutory regulations regarding the consequences of default payment apply. We reserve the right to assert claims for any further damages caused by default. In connection with business conducted with businessmen, our claim to commercial maturity interest (section 353 HGB - German Commercial Code) remains unaffected.
(5) 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 customer's counter-rights, in particular pursuant to section 6 para. 4 sentence 2 of these Terms and Conditions of Sale, remain unaffected.
Section 4 Delivery Deadlines and Delayed Delivery
(1) The delivery deadline is agreed individually and/or specified by us upon acceptance of the order.
(2) If we are unable to meet binding delivery deadlines for reasons for which are not our responsibility (non-availability of the service), we will inform the customer immediately about this situation, and at the same time communicate the expected new delivery date. If the service remains unavailable within the newly communicated delivery period, we will be entitled to withdraw entirely or partially from the contract. In such a case, we will immediately reimburse any consideration already paid by the customer. Such a case of non-availability of the service is deemed to arise in particular if our supplier fails to deliver to us in good time, provided that we have concluded a congruent covering transaction, neither we nor our supplier are at fault or we are not required to procure in the individual case.
(3) A delivery delay on our part is deemed to take place in accordance with the statutory regulations. A reminder from the customer is however required in any case.
(4) The rights of the customer pursuant to section 7 of these Terms and Conditions of Sale and our statutory rights, in particular in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent fulfilment), remain unaffected.
Section 5 Delivery, Shipping Costs, Transfer of Risk, Acceptance, Default in Acceptance
(1) Delivery takes place "ex works". This also constitutes the place of fulfilment. At the customer's request and expense, it is possible for goods to be dispatched to another destination (sale to destination). Unless otherwise agreed, we are entitled to determine the type of dispatch (e.g. transport company, dispatch method, packaging) ourselves. For parcel shipping within Germany up to an order value of EUR 249.99, we charge a flat rate shipping fee of EUR 10.50 per order and delivery address and for order values upwards of EUR 250.00 parcels are delivered free of charge. Shipping costs for international parcel shipping differ and will be provided upon request.
(2) If the customer is an entrepreneur, we are entitled - within reason - to make partial deliveries.
(3) The risk of accidental loss and accidental deterioration of the goods passes to the customer at the latest upon handover. In the case of sale to destination, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay passes to the customer at the time the goods are transferred to the forwarding agent, carrier or other person or institution designated to execute the delivery. If acceptance has been contractually agreed, the time of acceptance is decisive for the transfer of risk. Also in all other respects, the statutory regulations governing contracts to produce a work apply accordingly to a contractually agreed acceptance. If the customer is in default of acceptance, this is deemed equivalent to handover or acceptance.
(4) If the customer is in default of acceptance, fails to co-operate or if our delivery is delayed for other reasons for which the customer is responsible, we are entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this we charge a lump sum compensation of 0.5% of the delivery value per calendar week, up to a maximum of 10% of the delivery value, beginning with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for dispatch. Proof of higher damages as well as our statutory claims (in particular, reimbursement of additional expenses, reasonable compensation, cancellation) remain unaffected; however, the lump sum is to be offset against further monetary claims. The customer has the right to prove that we have incurred no damage at all or only significantly less damage than the above lump sum.
Section 6 Liability for Defects
(1) Statutory regulations apply concerning the customer's rights in the event of material defects and defects of title, unless otherwise specified below. In all cases, statutory regulations concerning the purchase of consumer goods (sections 474 et seq. BGB) and the rights of the customer arising from any separately issued guarantees remain unaffected.
(2) If the customer is a businessman, claims for defects on the part of the customer require the customer to have duly fulfilled his obligations to inspect the goods and give notice of defects in accordance with section 377 HGB.
(3) If the delivered item is defective and the customer is a businessman, we may choose whether to provide subsequent fulfilment by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). If the customer is a consumer, he may first of all choose to request either remedy of the defect (subsequent improvement) or delivery of a defect-free item (replacement delivery). Our right to refuse subsequent fulfilment under the statutory conditions remains unaffected. Expenses necessary for the purpose of inspection and subsequent fulfilment, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, are to be borne by us if a defect actually exists. However, if the customer's request to remedy a defect proves to be unjustified, we may demand reimbursement from the customer of the costs incurred.
(4) We are entitled to make subsequent fulfilment dependent on the customer paying the purchase price due. The customer, however, is entitled to retain a reasonable proportion of the purchase price in accordance with the defect.
(5) If a reasonable deadline for subsequent fulfilment, which is to be set by the customer, has expired unsuccessfully or is dispensable in accordance with statutory regulations, the customer may withdraw from the purchase contract or reduce the purchase price in accordance with statutory regulations. In the case of an insignificant defect, however, there is no right of cancellation.
(6) Claims of the customer for damages or reimbursement of futile expenses (section 284 BGB) only exist in accordance with section 7 below, even in the case of defective goods.
(7) If the customer is a businessman, the limitation period for claims for defects is 12 months, as from transfer of risk. This does not apply if the purchased item is normally used for a building and has caused the defect. If the customer is a consumer, the limitation period is determined by law. Mandatory statutory special regulations on the limitation period remain unaffected.
Section 7 Joint and Several Liability
(1) Unless otherwise stated in these Terms and Conditions of Sale, including the following provisions, we are liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory regulations.
(2) We are liable for damages - irrespective of the legal grounds - within the scope of fault-based liability in cases of intent and gross negligence. In the event of simple negligence, we are liable only for damages resulting from injury to life, body or health and for damages arising from breach of an essential contractual obligation.
(3) The limitations of liability resulting from the above paragraph 2 also apply to third parties.
(4) The customer may only withdraw from or cancel the contract due to a breach of duty that does not constitute a defect if we are responsible for the breach of duty.
Section 8 Securing Retention of Title
(1) In the case of contracts with consumers, we reserve title to the goods sold until the claim arising from the purchase contract has been settled in full. If the customer is a businessman, we reserve title to the goods sold until full payment of all our current and future claims arising from the purchase contract and the ongoing business relationship.
(2) The customer is obliged to treat the purchased item with care.
(3) In the event of seizure or other interventions by third parties, the customer must inform us immediately in writing.
(4) Claims arising from resale are hereby assigned to us.
(5) Any processing or remodelling of the purchased item by the customer is carried out on our behalf.
(6) In the event of mixing, we acquire co-ownership.
(7) At the customer’s request, securities will be released.
Section 9 Place of Jurisdiction – Applicable Law – Place of Fulfilment
(1) If the customer is a businessman, the place of jurisdiction is Ludwigsburg.
(2) The law of the Federal Republic of Germany applies; application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
(3) Unless otherwise stated in the order confirmation, our place of business is the place of fulfilment.