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General Terms and Conditions

Sale and Delivery Conditions

between

hadewe GmbH, Grambartstraße 10, 30165 Hannover, 0511 336399-0, registered in the commercial register of the District Court of Hanover under no. HRB/A 5253, represented by the managing directors Stephan Menzel and Christian Menzel, with VAT ID No.: DE 115 680 996

– hereinafter the “Seller” –

and

the customers referred to in § 2 of the Contract

– hereinafter referred to as the “Buyer” –

 

 

§ 1

Object of the Contract

 

1.       The business relationship between the Seller and the Buyer is exclusively subject to the following General Terms and Conditions according to the version applicable at the time of placing the order. Differing conditions proposed by the Buyer will not be recognised unless the Seller agrees to their validity in writing.

 

2.       The goods in question are sold only to entrepreneurs. Any natural person or legal entity or incorporated partnership working in a commercial or independent professional capacity when concluding this contract shall be considered an entrepreneur. These terms and conditions do not apply if the Buyer is a consumer within the meaning of § 13 of the BGB (German Civil Code).

 

3.       In any case, this contract is only valid in its form in German language. Accordingly, only the German version of these terms and conditions is decisive for the conclusion of the contract.

 

 

§ 2

Offers and Conclusion of Contract

 

1.       The presentation and promotion of products on the website of the Seller or other online stores do not constitute a binding offer to conclude a purchase contract.

 

2.       The Buyer submits to the Seller a binding offer to purchase goods either via telephone or email or by submitting an order through an online shop.

 

3.       For the conclusion of the contract when placing an order through an online shop, the legally binding order is only made when the Buyer clicks the button marked accordingly. Before placing an order the Buyer has the opportunity to review the order for input errors. In this case, the Seller sends a confirmation of receipt of the order to the Buyer by email, in which the order of the Buyer is listed again, and the Buyer can print the same. The automated confirmation of receipt merely documents that the Buyer’s order has been received by the Seller and does not constitute acceptance of the request.

 

4.       The contract is only valid upon the declaration of acceptance by the Seller.

 

5.       All offers of the Seller are non-binding, unless they are explicitly marked as binding or contain a specific acceptance period. Orders and contracts may be accepted by the Seller within fourteen days of receipt.

 

 

§ 3

Prices, Shipping Costs

 

1.       All prices given in the current catalogue and on the website of the Seller are in Euros and given ex works, plus the applicable sales tax, packaging, transport costs and, for export deliveries, customs duty, as well as fees and other official charges.

 

2.       The Seller is not obliged to insure the goods. However, if the Buyer is not giving instructions to the contrary in writing immediately after conclusion of the contract, the Seller is entitled to arrange for the insurance of goods during transport and bill the Buyer for the cost of insurance.

 

3.       The shipping costs and shipping conditions are specified to the customer at the time of declaration of acceptance. The Buyer can choose another carrier than that proposed by the Seller, but the Seller must be notified of this in writing immediately after the conclusion of the contract.

 

4.       The Buyer has no right to offsets or retention unless its counterclaims are undisputed or legally binding by court order.

 

 

§ 4

Delivery Terms

 

1.       The periods and dates for deliveries and services as given by the Seller are always approximate and may therefore be exceeded by the Seller by up to three days, unless a fixed deadline or a fixed date is expressly promised or agreed. The delivery period begins from the date on which the contract is concluded.

 

2.       Deliveries are made ex works. If the goods are to be shipped, any delivery dates and periods refer to such time as when the goods are handed over to the carrier, freight forwarder or other third parties responsible for the transportation of the same.

 

3.       In the event that the product selected by the Buyer is out of stock on the date on which the order is placed, the Seller shall inform the Buyer of this without delay. If the product is permanently out of stock, the Seller will not accept the order. In this case, a contract will not be concluded.

 

4.       Information on the subject of the delivery or service (e.g. weight, dimensions, utility values, load, tolerances and technical data) as well as representations of the same (e.g. drawings and pictures) are only approximate, unless the usability for the contractually agreed purpose requires an exact match. These are not guaranteed characteristics but rather descriptions or identifications of the delivery or service. Customary deviations or deviations as a result of legal regulations or representing technical improvements, as well as the replacement of components with equivalent parts, shall be permitted provided they do not impair the usability for the contractually intended purpose.

 

5.       The Seller is not liable for impossibility of delivery or for delays in delivery  if these are caused by force majeure or other events that could not be foreseen at the point in time the contract was concluded (e.g. operational disruptions of all kinds, difficulties in procuring material or energy, transport delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties in obtaining the necessary regulatory approvals, official measures, as well as missing, wrong or late delivery by suppliers), for which the Seller is not responsible. If such events substantially complicate the delivery or service or make the delivery or service impossible to render, and the hindrance is not of only a temporary nature, the Seller is entitled to withdraw from the contract. If there are hindrances of a temporary nature, delivery or service deadlines may be extended or the delivery or service dates postponed by the period of the delay plus a reasonable start-up period. Insofar as the Buyer, as a result of the delay, cannot be expected to accept the delivery of goods or provision of service, it may withdraw from the contract by means of an immediate written notification to the Seller.

 

6.       For custom-made products, over- or under-production of up to 10% is allowed. The difference in production amount is taken into account during the calculation.

 

7.       If the Seller does not meet the agreed delivery date for delivering goods or for providing a service, or if the delivery of goods or provision of services shall prove, for whatever reason, to be impossible, the Seller’s liability for damages is limited pursuant to § 8 of these General Terms and Conditions.

 

 

§ 5

Shipping, Insurance and Transfer of Risk

 

1.       Unless otherwise agreed, the Seller determines the appropriate shipping method and the shipping company immediately after receipt of the order as per its reasonable discretion. The place of performance is the headquarters of the Seller.

 

2.       The Seller is only responsible for the timely, proper delivery of the goods to the transport company and is not responsible for delays caused by the transport company. Any shipping time indicated by it is therefore not binding.

 

3.       With the delivery of goods to the shipping company, or with the handover to the Buyer, if no shipping has been arranged, the risk of accidental loss, accidental damage or accidental destruction of the goods delivered shall pass on to the Buyer.

 

 

§ 6

Retention of Title

 

1.       Until full payment is made for all present and future claims from the purchase contract and from an ongoing business relationship (secured claims), the Seller retains title to the goods sold.

 

2.       The goods subject to retention of title may not be pledged to third parties or assigned as collateral until the secured claims have been paid in full. The Buyer must notify the Seller in writing without delay if a request is made to open insolvency proceedings, or if third parties gain access (e.g. seizures) to the goods belonging to the Seller.

 

3.       If Buyer acts in violation of the contract, especially in the case of non-payment of the purchase price due, the Seller is entitled to demand the return of the goods on grounds of retention of title, and to withdraw from the contract in accordance with the statutory provisions. If the Buyer does not pay the purchase price due, the Seller may assert these rights only if it has previously set the Buyer an appropriate deadline for payment to no avail or if setting such deadline may be waived in accordance with the statutory provisions.

 

4.       The Buyer is authorised, until further notice pursuant to (c) below, to sell the goods subject to retention of title or process them further in the ordinary course of business. In this case, the following provisions also apply:

 

a)      The retention of title shall extend to all products resulting from the processing, mixing or combining of our goods at their full value, and the Seller shall be considered the manufacturer. If third parties retain their title to products used in conjunction with the processing, mixing or combining of the delivered goods, the Seller shall acquire co-ownership in proportion to the invoice value of the processed, mixed or combined goods. In all other cases, the same shall apply to the resulting product as to the goods delivered subject to retention of title.

 

b)      The Buyer assigns any claims against third parties arising from the resale of the goods or products, in total or in the amount of the possible co-ownership share, to the Seller as a security pursuant to the aforementioned paragraph. The Buyer accepts this assignment. The obligations of the Buyer as stated in §2 para 2 above shall also apply in respect of the assigned claims.

 

c)      In addition to the Seller, the Buyer shall also be authorised to collect the claim. The Seller undertakes not to collect the claim as long as the Buyer meets its payment obligations, there is no other deficiency in the Buyer’s performance capacity and solvency and the Seller does not claim a right to retention of title pursuant to section 3. If this is the case, the Seller can demand that the Buyer inform it of the assigned claims and debtors, provide all information necessary for collection, hand over the relevant documents, and inform the debtors (third parties) of the assignment. In addition, the Seller is entitled in this case to revoke the authority of the Buyer to resell and process the goods under retention of title.

 

d)      If the realisable value of the securities exceeds the claims of the Seller by more than 10%, the Seller will release securities of the Seller’s choosing, upon request by the Buyer.

 

5.       Unless specifically agreed otherwise, the Seller also reserves the title and intellectual property rights to all offers and quotes it issues, as well as drawings, pictures, calculations, brochures, catalogues, models, tools and other documents and aids provided to the customer. The Buyer may not make these objects or their content accessible to third parties, nor disclose them to third parties, nor have them used or reproduced, either by itself or by third parties, without the express consent of the Seller. Upon the request of Seller, the Buyer must return completely any such above-mentioned objects to the Seller and destroy any copies made if they are no longer required in the regular course of business or if negotiations do not result in conclusion of a contract.

 

 

§ 7

Warranty for Defects, Guarantee

 

1.       The goods sold by the Seller only offer an additional warranty if this is explicitly stated in the order confirmation for the respective products.

 

2.       The seller is liable for defects in accordance with the applicable statutory provisions, in particular §§ 434 ff. BGB (German Civil Code), insofar as not otherwise determined below, and provided that, based on § 10 section 1 of these General Terms and Conditions, the UN Convention on the International Sale of Goods does not apply, and that binding law does not apply in line with the statutory provisions.

 

3.       The warranty period of goods supplied by the Seller is limited to 12 months from delivery, unless the parties have otherwise agreed by individual contract.

 

4.       The Buyer must carefully inspect the goods immediately upon receipt. The delivered goods shall be deemed accepted by the Buyer if the Seller is not immediately notified of a defect upon discovery thereof.

 

5.       In case of a defect, the Seller can initially act at its own discretion to repair the product (improvement) or deliver a defect-free item (subsequent delivery). Our statutory right to refuse remedy remains unaffected.

 

6.       The Buyer must give the Seller the necessary time and opportunity for the remedial performance due, in particular to hand over the rejected goods for the purposes of examination.

 

7.       The Buyer may withdraw from the contract or reduce the purchase price if the remedy fails or if a reasonable deadline for the remedy set by the Buyer expires unsuccessfully or is not required according to the statutory provisions. There shall, however, be no right to withdraw if the defect is negligible.

 

8.       Any claims made by the Buyer for damages or reimbursement of expenses incurred shall only be asserted in accordance with §8 and are otherwise excluded.

 

9.       Due to a breach of duty which does not consist of a defect, the Buyer may only withdraw from or terminate the contract if the Seller is responsible for the breach of duty. A free right of termination for the Buyer (especially pursuant to section §§ 651, 649 BGB [German Civil Code]) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

 

 

§ 8

Liability arising from negligence

 

1.       The liability of the Seller for compensation, regardless of the legal grounds, in particular due to impossibility of fulfilment, delay, defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations and tort, insofar as it is a matter of fault, is limited in accordance with this § 8.

 

2.       The Seller is not liable in cases of simple negligence of its institutions, legal representatives, employees or other vicarious agents, insofar as it is not a breach of contractual obligations. Essential contractual obligations constitute the obligation to deliver, in a timely manner, an object which is free from defects that may considerably impair its functionality or considerably reduce its suitability for use, and duties of consulting, protection and care that enable the customer to use the items delivered in the contractually prescribed manner or which serve the purpose of protecting the life and limb of the personnel of the customer or the protection of its property against considerable damage.

 

3.       If, in accordance with § 8 paragraph 2, the Seller shall be liable for damages on their merits, this liability is limited to damages which the Seller foresaw as a possible consequence of a breach of contract when concluding the contract, or that the Seller should have discovered during due diligence. Indirect damages and consequential damages which are the result of defects in the delivered item are only eligible for compensation insofar as such damages are typically to be expected under normal use of the delivered goods.

 

4.       The above exclusions and limitations apply to the same extent in favour of bodies, legal representatives, employees and other agents of the Seller.

 

5.       If the Seller provides technical information or advice and this information or advice is not part of the contractually agreed scope of owed services, this is done free of charge and without any liability.

 

6.       The limitations of § 8 shall not apply to the Seller’s liability for deliberate actions, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.

 

 

§ 9

Notes relating to the Medical Devices Act

 

1.       The Seller sells products which fall under the provisions of the Medical Devices Act, inter alia. Operators, distributors and traders who become aware of occurrences in accordance with § 29 of the Medical Devices Act must report this. The form and the manner of the notification are defined in the Medical Devices Act and the Medical Devices Safety Plan Ordinance.

 

2.       The Seller manufactures its Medical Device products principally in accordance with the standards applicable in the European Union for medical devices.

 

3.       The Seller notes that the use of products that fall under the Medical Devices Act require that the use has received training or education in the field of foot care.

 

 

§ 10

Final Provisions

 

1.       All contracts between the Seller and the Buyer shall be governed by the laws of the Federal Republic of Germany under exclusion of the UN Convention on Contracts for the International Sale of Goods. The statutory provisions limiting the choice of law and the applicability of mandatory provisions remain unaffected.

 

2.       If the Buyer is a merchant, a legal entity under public law or a special fund under public law, having its offices in the Federal Republic of Germany, the place of jurisdiction for all disputes arising from contractual relationships between the Buyer and the Seller is the Seller’s headquarters.

 

3.       If the Buyer is a person domiciled outside of Germany, all disputes arising in connection with this contract or its validity shall be definitively adjudicated according to the Arbitration Rules of the German Institution for Arbitration (DIS), excluding the regular legal process. The place of arbitration shall be Frankfurt am Main. The negotiations of the Arbitration Tribunal shall be held at the headquarters of the Seller. The tribunal shall consist of one arbitrator. The language used in the arbitration proceedings shall be German.

 

4.       Notwithstanding § 10 para. 3 of these General Terms and Conditions the parties are free to file claims, which can be asserted by means of documentary evidence (§§ 592ff. ZPO), and be limited to payments of up to EUR 20,000.00, also before ordinary courts at the headquarters of the Seller.

 

5.       These General Terms and Conditions remain binding even in the event that individual items are legally ineffective. Statutory provisions, if available shall replace the ineffective items. Insofar as this would constitute an unreasonable hardship to a party to the contract, however, the contract as a whole shall be deemed ineffective.

(valid as of 27.10.2016)