The following delivery and payment terms are a contractual component of all deliveries undertaken by the company "Hain" and apply exclusively. Fain shall not recognise any conflicting or differing terms of contract partners, unless their validity has been expressly agreed to in writing. These delivery and payment terms are also valid for any future deliveries and services of Hain.
2. Proposals (quality details) and prices
2.1 In our proposals the goods are described in terms of the type of wood, sizes and finish. If reference is made to a finish in our proposal, the goods are to be delivered in accordance with the characteristics described in this factory finish standard. The descriptions of the finish in the brochure or at www.hain.de/Sortierung/ are applicable. Samples are subordinate to the finishes unless otherwise agreed between the contract partner and ourselves.
2.2 The valid sales price excl. statutory VAT valid at the time of contract conclusion will be invoiced. The costs of shipping, freight, packaging, delivery as well as other charges shall be remunerated separately by the contract partner and are not included in the commodity price.
3. Place of fulfilment, responsibility for risk
The place of fulfilment is the headquarters of Hain. Deliveries will be made exclusively at the risk of the contract partner, even if a shipment is dispatched "ex works" as agreed with Hain where applicable. Insurance shall only be taken out at the request of the contract partner and at their expense.
4. Delivery, delayed delivery, partial deliveries, acceptance
4.1 The scope for delivery is expressly reserved. The delivery times and dates will be adhered to wherever possible, but are non-binding and above all have no fixed deadlines. Withdrawal from the contract or demand for compensation due to delayed delivery requires delay and the setting of a reasonable respite period by the contract partner. Point 8 shall incidentally apply as a result of the liability.
4.2 Hain is entitled to make partial deliveries insofar as this is not unreasonable for the contract partner.
4.3 The contract partner is obliged to ensure orderly acceptance of the goods in accordance with the specified or agreed delivery times. The contract partner shall be liable for the consequences and costs of inadequate or delayed acceptance or any late call off in breach of the contract. This also applies to partial deliveries.
4.4 If it has been agreed that the goods shall only be supplied or picked up on request of the contract partner, the remuneration is payable upon provision of the goods in the warehouse designated by Hain and invoiced accordingly. The storage of the goods ordered on request is free of charge within 2 months of the invoice date. A storage fee of 25.00 EUR net excl. statutory VAT shall be applied for each subsequent month and applicable per order. The contract partner is obliged to call up and retrieve the goods no later than within 4 months after the invoice date.
5. Payment, late payment, right of retention of Hain
5.1 Since the goods are made to order, for reasons of our entitlement protection, the total amount must be paid exclusively net in advance, unless anything otherwise has been agreed in writing. For delivery on request, the purchase price is payable upon provision of the goods in our warehouse. In the event of a delay in payment, monetary debt for transactions, in which a consumer is not involved, shall be charged as interest at a rate of 9 percentage points above the base rate in accordance with § 288 para. 2 of the German Civil Code (Bürgerliches Gesetzbuch - BGB). This shall be without prejudice to the assertion of further default damages. If the contract party delays in payment, Hain has additionally the right of retention in view of other goods deliveries.
5.2 Should it emerge after the conclusion of the contract that there is major deterioration in the financial circumstances of the contract party, which would allow Hain to assume that their payment claim may come under threat, Hain likewise has a right of retention. Otherwise, Hain trusts that upon conclusion of the contract with the contract partner, there is no financial situation which may endanger the entitlement to payment. If this is not the case, then this must be reported.
5.3 The withholding of payments on the basis of counter claims or off-setting such counter claims is not permitted, unless the counter claims are undisputed, legally ascertained or due for decision.
6. Reservation of proprietary rights
6.1 We reserve the right of property ownership of the goods delivered by us until such time as the customer has satisfied all present and future claims from the business relationship (reserved goods). The reserved ownership shall be security for our current account claims. This only applies to the consumer until they offset all claims arising from the delivery contract in relation to the goods.
6.2 The goods subject to ownership retention may neither be pledged to third parties, nor assigned as collateral before the full payment of the secured claims. The purchaser must immediately notify us if and when third parties exercise rights over the goods belonging to us.
6.3 The customer is entitled to sell on the delivered goods in the ordinary course of business. However, herewith they already transfer all claims in the amount of the invoiced final amount (including VAT) of our claim to us, which accrue to the them from the further sale of the goods to their customers or third parties, and regardless of whether the object of purchase has been resold to third parties without or following processing.
6.4 The processing or alteration of the goods is always done on our behalf.
6.5 If they are processed with other items not belonging to us, then we shall acquire joint ownership of the new item in proportion of the ratio of the value of the goods (purchase price incl. VAT) to the other processed objects at the time of processing. The same shall apply for the item created by processing as the goods delivered subject to right of ownership.
6.6 If the goods are processed inseparably mingled/combined with other items not belonging to us, then we acquire joint ownership of the new items in relation to the ratio of the value of the purchased goods with the other mingled/combined items at the time of mingling/combining. If the mingling/combining takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer transfers proportional joint ownership to us. The customer shall then retain the resultant sole or joint ownership for us. This sole or joint ownership also incidentally applies to the goods delivered under the reservation of ownership.
6.7 The customer shall also retain the right to collection after the assignment. Our authority to collect the claims ourselves remains unaffected. However, we undertake not to collect the claim as long as the customer honours their payment obligations and in particular no application is filed for the opening of insolvency proceedings or payments are suspended. But if this is the case, the customer must inform their buyers/third parties of the assignment on request and hand over all information and documents to us that we would require in order to assert our rights.
6.8 If the goods are connected to property, the customer also assigns to us any claims accruing to them through connection with a third party.
6.9 At the request of the customer and at our discretion, we undertake to release securities we are entitled to, in so far as the realizable value of our securities exceeds the claims to be secured by more than 10 %.
7. Warranty claims, right of retention and right to offset of the contract partner
7.1 The goods shall be examined with regard to their concordance with the order (type and quantity) and for defects, immediately after receipt or before further processing at the latest. The consumer need not carry out an expert examination. Incorrect deliveries and defects must be reported to us immediately, even if these appear later during installation. If the goods are installed despite obvious defects, we are not obligated to reimburse installation and removal costs in the sense of § 439 section 3 of the German civil code. This applies for consumers, if a defect remains unnoticed before installation as a result of gross negligence, unless we can be imputed with fraudulent intent, we have concealed a defect or assumed a guarantee. §§ 377, 381 of the German commercial code remain unaffected.
7.2 Warranty claims are excluded,
- if the goods show insignificant deviations from the owed quality in accordance with 2.1
- if there are minor deviation from samples
- if defects result from non-observance of care instructions, for example, incorrect maintenance, incorrect room climate.
- in the case of improper handling or use of material, e.g. during storage, processing or use.
- if defects are a result of repairs, treatments or processes undertaken by the purchaser themselves or a commissioned third party, unless these were not the cause of the notified defect.
- if natural wear and tear occurs
- if there is excessive stress on the material, which is due to an uncommon usage and which the seller would not reasonably expect (e.g.: use in a sports/dancing studio)
7.3 If a defect has been reported, Hain may initially elect to provide rectification in the form of defect repair or replacement delivery. §§ 439 section 4 and 475 section 4 of the German civil code remain unaffected.
7.4. If defective goods have already been laid or installed, buyers from Hain, who are not consumers, can only claim expenses per § 439 section 3 of the German civil code if they have previously set a period of grace for Hain to remove the faulty goods and install defect-free goods and this period has expired without a successful result. The period of grace need not be set if the execution by Hain is not reasonable for the buyer or if Hain refuses. Lost profits and processing costs are not expenses in the sense of § 439 section 3 of the German civil code.
7.5 In the case of final failure of the aforementioned measures, the contract partner may demand a reduction or cancellation of the contract, the latter case not being applicable should the goods be installed in a structure and cannot be removed without causing damages or significant loss of value. Further warranty claims are excluded, unless otherwise stipulated in point 8.
7.6 The site of rectification is the headquarters of Hain, should the contract partner not be a consumer. Transport costs for the goods to the site of rectification shall be borne by the buyer. This also applies to expenses such as travel, work and material costs, which are brought about due to the purchaser transporting the delivered goods to a place other than the headquarters of Hain. The liability of Hain remains unaffected in accordance with point 8.
7.7 Claims for defects expire 12 months after delivery of the goods, unless the law mandates a longer limitation period. A limitation period of 5 years applies to goods that have been used in accordance with their intended purpose within a structure, which has caused defectiveness, if the use was established within a period of 12 months after delivery.
7.8 § 350 of the German civil code is correspondingly applicable for the statutory right of withdrawal.
8.1 For Hain's liability for damages and/or reimbursement of fruitless expenditures due to legal regulations including claims under warranty for defects, the following applies: Hain shall accept liability for simple negligence in the case of delay, impossibility, or other forms of fault-based liability, only if an obligation is breached, whose fulfilment is essential for the purpose of the contract. This is such a contractual obligation, which facilitates proper fulfilment of the contract in the first place and the observance of which the contract party regularly trusts and is entitled to expect and whose culpable nonfulfilment endangers the purpose of the contract. The liability of Hain to such damages in the case of simple negligence shall be limited to damages typically expected to occur within the scope of a contractual relationship upon conclusion of the contract.
8.2 Hain is fully liable for gross negligence on the part of its legal representatives and/or agents. Hain is only liable in the case of gross negligence by any other employee to the extent and in accordance with the liability for simple negligence corresponding to the above mentioned liability limitation.
8.3 The liability limitation in accordance with point 8 does not apply in the case of injury to life, body or health. The regulations of the product liability law shall remain unaffected.
9. Acceptance of returned goods on a goodwill basis
The return of non-defective goods has not been agreed. If goods that are free from defects are taken back as a matter of exception, then this is done solely on a goodwill basis. A handing fee of 15% of the gross purchase price will be charged in such a case. Discounted or promotional goods shall not be taken back, not even on a goodwill basis.
10. Applicable law, court of jurisdiction
10.1 The law of the Federal Republic of Germany shall be applicable for all legal relations between Hain and the contract partner. The applicability of the UN-purchase law is excluded.
10.2 The headquarters of Hain is the exclusive place of jurisdiction, depending on factual jurisdiction, the Local Court of Rosenheim or the District Court of Traunstein.