General Terms and Conditions

General Terms and Conditions


of Horn GmbH, Am Hasenbiel 35, 76297 Stutensee, Germany

 

§ 1 Scope of application
1. As wholesalers, we supply exclusively individual persons and legal entities who/which conclude contracts with us in their business or professional capacities (“entrepreneurs”), bodies incorporated under public law and special funds or entities established under public law. We do not supply consumers. In placing an order, the person placing the order confirms that he/she is placing the order not as a consumer but exclusively as an entrepreneur or on behalf of a business, a body incorporated under public law or a special fund or entity established under public law.
2. Our offerings and our deliveries are subject exclusively to the General Terms and Conditions set out below. Business conditions or purchase conditions of our customers deviating herefrom shall not be binding, even where we do not explicitly reject them. Our General Terms and Conditions shall be applicable to all future contracts even where we do not explicitly refer to them. The applicable provisions shall be those displayed on our website at the time when an order is placed.

 

§ 2 Description of goods and services
1. The manner in which our goods and services are portrayed in the online shop, in catalogues, in price lists and in other advertising material shall not constitute a legally binding offer, but shall be without obligation in respect of prices, delivery dates and other content.
2. Descriptions of our goods and services in text and image in the online shop, in catalogues, in price lists and in other advertising material serve only as a general indication and do not constitute the giving of a guarantee, except insofar as any such guarantee is expressly confirmed by us in writing.
3. It is the sole responsibility of the Customer to examine whether the goods ordered are suitable for the purpose envisaged by the Customer.

 

§ 3 Orders/Conclusion of contracts
1. Any order addressed to us shall be deemed to be a binding offer to enter into a contract.
2. No contract shall be deemed to have been entered into until we have accepted the order by means of a written order confirmation or supply the goods ordered to the Customer. The confirmation sent by e-mail after the receipt of an order through our online shop shall not constitute an order confirmation or the acceptance of an offer, but is merely an automated confirmation of receipt reproducing the content of the order.
3. Where some products in an order are available but other products in the same order are not, no contract of sale shall be deemed to have been entered into in respect of the unavailable products.
4. Any supplementary agreements and any additions or alterations to the contract shall be valid only if confirmed by us in writing. This agreement on the need for the written form shall apply also to any agreement to dispense with the written form.

 

§ 3a Special agreements for orders through our online shop
1. Access
The use of our online shop for purposes of soliciting, initiating or transacting business is permitted only to Users who are entrepreneurs, bodies incorporated under public law or special funds or entities established under public law who have previously registered as Users and who accept the supplementary Conditions of Use for our online shop.
2. Electronic ordering procedure
The order shall be binding on the Customer once he has placed the goods in his shopping basket and has dispatched his order to us by clicking the “Order” button. The Customer is required to check the details of his order for errors before clicking “Order”.
3. Conclusion of the contract
The order dispatched by the Customer shall constitute a binding offer to us to enter into a contract. Having dispatched the order, the Customer will receive an e-mail confirming the content and the receipt of the order (confirmation of receipt). Such confirmation of receipt does not yet constitute acceptance of the Customer’s offer by us. A contract of sale shall not be deemed to have been entered into until we have dispatched the article ordered to the Customer and have confirmed the dispatch by means of a further e-mail (confirmation of dispatch).
The Customer will only receive confirmation by e-mail if he has furnished us with his valid e-mail address.
4. Internet prices
Any updating of our website shall render all prices and other details of goods previously displayed on the internet invalid. The price as displayed and valid at the time when the order was bindingly placed shall be applicable. To the extent that we have agreed individual prices or conditions of payment with the Customer, these shall also govern business transacted through our online shop.

 

§ 4 Prices
1.The prices quoted by us are net prices and relate to the number of pieces stated. In addition, the Customer must pay value added tax at the rate as from time to time statutorily determined, and also forwarding charges, except where delivery free of forwarding charges has been agreed.
2. The minimum value of goods that may be ordered shall be €50 net. Should the value of the goods ordered be below this amount, a small-order surcharge of €10 shall be due.
3. In respect of goods that are not due to be delivered until more than four months after the conclusion of the contract we shall be entitled to implement price increases to an extent corresponding to any increase in cost brought about by changes in material prices, wages, foreign exchange rates, taxes, customs duties or other costs. Should such a price increase amount to more than 20%, the Customer shall be entitled to rescind the contract.

 

§ 5 Payment
1. Where no other terms of payment have been agreed, invoiced amounts are due and payable immediately upon performance (date of invoice).
2. If the Customer is in default of payment, we shall be entitled to charge default interest at the rate provided for by law. If we are able to demonstrate higher losses as a result of the default, we shall be entitled to claim compensation therefor.

 

§ 6 Set-off, retention, assignment
1. The Customer shall have no right of set-off, except in respect of counterclaims that are undisputed or have been finally established by due process of law.
2. The Customer shall be entitled to exercise a right of retention only to the extent that his counterclaim rests upon the same contractual basis and is undisputed or has been finally established by due process of law.
3. The Customer shall not be entitled to assign any rights or claims under the contract to any third party.

 

§ 7 Delivery/Passage of risk
1. We shall be under no obligation to deliver if this is rendered impossible by force majeure. Any purchase price already paid shall be refunded without delay.
2. If the goods ordered cannot be supplied, we shall inform the Customer without delay and where appropriate propose the supply of comparable goods. If no comparable product is available or if the Customer does not wish to be supplied with a comparable product, any consideration already rendered shall be returned without delay. Any further claims shall be excluded.
3. We shall also be entitled to make partial deliveries. Partial deliveries may also be invoiced.
4. The place of performance in respect of all delivery obligations shall be Karlsruhe. All deliveries shall be made from our warehouse. Shipping shall be at the Customer’s risk, even if it is effected using our vehicles.
5. Should a Customer not be at home when the consignment is delivered and the consignment not be collected from the post office within seven working days, or should the Customer refuse to accept the consignment, we shall be entitled to rescind the contract and to cancel the order. The Customer shall bear the costs of the unsuccessful attempt to deliver.

 

§ 8 Reservation of title
1. We reserve title to goods supplied until the purchase price has been paid in full ("goods subject to reservation of title").
2. The Customer may not dispose of the goods subject to reservation of title except in the ordinary course of business for cash or subject to reservation of title. He shall not be entitled to make any other kind of disposition, in particular to assign them as collateral or pledge them, or to include them in any sale of his entire stock or in a clearance sale.
3. The Customer assigns to us already in advance any claims arising out of the onward sale of the goods subject to reservation of title, including any such claims arising out of cheques or bills of exchange, together with any accessory rights; the Customer is empowered to collect the claims in his own name on our behalf. This empowerment shall be subject to revocation at any time. Should the goods subject to reservation of title be sold onwards by the Customer together with other goods that are not our property at an inclusive price, the assignment shall apply only in the amount of the sum invoiced to him by us.
4. The Customer shall assign to us all insurance or other claims acquired as a result of the loss of or damage to the goods subject to reservation of title.
5. We accept all the assignments set out above.
6. The Customer shall, at our request, furnish us with a list of the assigned claims and all information and documents required to enforce them.
7. Should the Customer suspend payments or should any application be made for insolvency proceedings to be opened in respect of his assets, the Customer may no longer make any dispositions with regard to the goods subject to reservation of title, and we shall be permitted to disclose the assignments made by the Customer and entitled to rescind the contract and demand the immediate surrender of the goods subject to reservation of title. For the purposes of such surrender the Customer shall store the goods subject to reservation of title separately from the Customer’s other stock, shall label them as having been supplied by Horn GmbH subject to reservation of title, shall desist from making any dispositions in respect of them, and shall furnish us with a list of the goods subject to reservation of title.
8. The Customer shall inform us immediately in writing of any attachment of or recourse to the goods subject to reservation of title or the assigned claims by third parties and shall assist us in every way in the assertion of our rights.
9. The Customer shall inform us immediately in writing of any seizure or other execution measures affecting the assigned claims or the goods subject to reservation of title, in order to enable us to initiate appropriate legal measures in a timely fashion.
10. Should the value of the goods subject to reservation of title or of the claims assigned to us by the Customer exceed our claims against the Customer by more than 20%, we shall on request release the excess collateral, whereby the choice of the items to be released shall be at our discretion.

 

§ 9 Warranty
1. The Customer shall be required to notify us of obvious defects in writing without delay, or in any case not later than two weeks after receipt of the goods. After the expiry of this period no claims for obvious defects shall be admissible.
2. If at the time of the passage of risk the nature or properties of a product do not correspond to what has been agreed, we may at our discretion either remedy the defect or supply a replacement product. Where this involves replacing parts, the parts replaced pass into our ownership without consideration.
3. If the defect is not successfully remedied or if the replacement is not delivered within a reasonable period of time, the Customer shall be entitled to reduce the purchase price or, to the extent that the defect is not immaterial, to rescind the contract. The Customer must allow three attempts at remedy, except insofar as in any individual case the Customer cannot reasonably be expected to allow repeated attempts at remedy or we unjustifiably refuse to remedy the defect or delay such remedy to an unreasonable extent.
4. Except in cases where the defect is caused by deliberate intent on our part, the warranty period shall be one year.
5. In respect of claims for compensation or reimbursement of expenses, this Section 9 shall apply mutatis mutandis.
6. The Customer shall not be entitled to claim remedy for defects arising as a result of improper use, operation or storage, negligent or incorrect care or maintenance, overloading or overstressing, improper repair by an unauthorised service partner or modification to the object that had not been approved in advance. Improperness shall be determined in accordance with information furnished by the manufacturer.
7. If a notification of defect is unjustified, we shall be entitled to require reimbursement of any expense occasioned.
8. Where the Customer becomes part of a supply chain within the meaning of Article 478 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), this shall be without prejudice to the rights set out in Articles 478 and 479 of the BGB. The Customer shall however forward to us without delay any notifications of defect addressed to him by any customer of his.

 

§ 10 Liability
1. We bear unlimited liability for loss or damage caused by deliberate intent or gross negligence.
2. In cases of simple negligence we bear liability only to the extent that we have infringed essential contractual obligations (so-called “cardinal obligations”). Cardinal obligations are contractual obligations of such a nature that it is only through their fulfilment that the contract can be properly executed at all and in respect of which the contracting party may be expected to rely on their fulfilment. Furthermore, we bear liability for simple negligence in cases where the loss or damage arises from a risk that we alone were in a position to control. In both cases, compensation shall be limited, in its grounds and in its amount, to loss or damage whose occurrence might reasonably have been predicted in the circumstances prevailing at the time when the contract was concluded. Compensation for purely financial loss, such as loss of production or loss of profits, shall be limited in accordance with the general principles of good faith, for example if the amount of the loss is disproportionately higher than the returns from the sale of products.
3. Irrespective of the question of blame, we shall bear liability in cases of fraudulent concealment of a defect or where we have given a guarantee.
4. Personal liability of our legal representatives, agents and employees for loss or damage caused by them though slight negligence is excluded.
5. The limitations on liability set out in this Section shall not apply to cases involving loss of life, bodily injury or injury to health, nor to claims under the Product Liability Act (Produkthaftungs¬gesetz).
6. In cases of concurrent claims in tort, the provisions of this section shall apply mutatis mutandis.

 

§ 11 Onward conveyance abroad
We draw attention to the fact that the export of goods may be subject to German and foreign export regulations and to the approval of the responsible authorities in each case and of the manufacturer; the Customer shall inform himself about such regulations and necessary approvals if he wishes to export the products.

 

§ 12 Sundry provisions
The law of the Federal Republic of Germany shall apply exclusively, to the explicit exclusion of the UN Sales Convention (CISG).

Place of performance for all obligations under the contract shall be Stutensee, Germany, postcode 76297, where our registered office is located.

Place of jurisdiction for any disputes arising out of the contract shall also be Stutensee, Germany, postcode 76297, where our registered office is located.

Should any individual provision of these General Terms and Conditions be invalid, ineffective or null and void, in whole or in part, this shall be without prejudice to the validity or effectiveness of the remaining provisions. The ineffective provision shall be replaced by a provision that fulfils the commercial purpose intended by the Parties.