General Terms and Conditions
of theHUD Agency & Distribution GmbH, Hanover
§ 1 General – Scope
1) Our terms and conditions apply exclusively to the business relationship with our customers. We do not recognize any terms and conditions of the customer that conflict with or deviate from our terms and conditions unless we have expressly approved them in writing. Our terms and conditions shall also apply if we carry out the delivery without reservation despite being aware of terms and conditions of the customer that conflict with or deviate from our terms and conditions.
2) All agreements, representations, ancillary agreements, or other changes or additions to the terms and conditions entered into between us and the customer for the purpose of executing individual contracts or all contracts must be recorded in writing and require our written confirmation to be effective. This confirmation can only be made by one of theHUD GmbH's managing directors or an employee authorized by them in writing. In particular, independent commercial agents working for us are generally not authorized to enter into other arrangements that deviate from these terms and conditions without our consent.
3) Our terms and conditions also apply to businesses.
§ 2 Offer – Conclusion of the Contract
1) The order placed by the customer with us constitutes a binding offer, regardless of whether it is placed in writing, by telephone, or by email.
In the case of immediate orders, we are entitled to accept this offer within 10 days. In the case of pre-orders, the acceptance period is extended to 6 months. Acceptance occurs either by sending an order confirmation or by delivering the ordered goods to the customer. If the customer does not receive an order confirmation or if the ordered goods are not delivered, a contract between the customer and the customer is not concluded. The submission of an offer by the customer does not create any legal obligations on the part of theHUD GmbH.
2) If the customer's order was preceded by an offer from us, this offer is subject to change.
3) We reserve the right to make changes and deviations from the ordered goods, provided that the subject matter of the contract does not undergo any changes that are unreasonable for the customer. Any claims for damages against us due to the delivery of goods that contain reasonable changes compared to the order are excluded.
§ 3 Prices – Terms of Payment – Reminder Fee
1) The prices for our products are based on the currently valid price list. Prices are "ex works Hanover," i.e., delivery costs are additional.
2) The purchase price is payable net (i.e., without deductions) within 10 days of the invoice date.
The payment period begins upon receipt of the goods by the customer, but not before receipt of the invoice.
If the customer defaults on payment, we are entitled to demand default interest as flat-rate compensation as follows:
1. 1% per month based on the final invoice amount from the end of the first month after the default occurs;
2. 2% per month based on the final invoice amount from the end of the second month after the default occurs.
In any case of late payment, the customer is obligated to pay us default interest at a rate of 5 percentage points above the respective base interest rate of the ECB. In any case, the customer is entitled to provide evidence that we have suffered no or significantly less damage. The compensation shall then be reduced accordingly. We reserve the right to prove higher damages caused by the delay, and we shall then be entitled to claim such damages.
3) The deduction of a discount requires a special written agreement with a managing director of theHUD GmbH or a third party authorized by him in writing.
4) We reserve the right, at our discretion, to deliver ordered goods cash on delivery, in cash, or only against advance payment. The payment terms will be agreed upon with TheHUD GmbH on a case-by-case basis. TheHUD GmbH reserves the right to unilaterally change the payment terms at any time for the future.
5) The customer is only entitled to offsetting rights if his counterclaims have been legally established or acknowledged by us in writing. The customer may only withhold performance if his counterclaim is based on the same contractual relationship. A deduction from his performance without a prior credit note issued by us is not permitted unless the counterclaim has been legally established or acknowledged by us in writing.
6) For each required reminder, the customer will be invoiced an amount of €5.00 to cover additional administrative costs.
§ 4 Partial Delivery – Transfer of Risk – Delivery Deadlines – Delayed Acceptance
1) Partial deliveries are permitted as long as they are reasonable for the customer.
2) If shipping or delivery is delayed by more than two weeks at the customer's request, theHUD GmbH reserves the right to cancel the order and charge a cancellation fee of 30% of the order value.
For "custom products (SMU)" specially manufactured at the customer's request, the cancellation fee is 100%. Furthermore, theHUD GmbH reserves the right to assert all rights, in particular, theHUD GmbH reserves the right to cease delivery to the customer if the cancellation fees are not paid.
3) Deliveries must be accepted by the customer, even if they have minor and therefore acceptable defects.
4) Unless otherwise stated in the contractual terms, delivery is "ex works," i.e., the customer bears the risk of accidental destruction or loss of the goods after the goods have been dispatched for transport. This does not apply if freight and packaging are covered by theHUD GmbH.
In other cases, at the customer's request, we will cover the delivery with transport insurance; the customer shall bear any costs incurred in this regard.
5) Compliance with agreed delivery deadlines requires the timely receipt of all documents to be provided by the customer and compliance with the agreed payment terms.
§ 5 Warranty for Defects
1) If the customer is not a "consumer," the assertion of warranty rights for defects requires that the customer inspects the goods delivered to him within 48 hours of receipt of delivery and, if a defect is discovered, immediately notifies theHUD GmbH. If the customer fails to do so, the goods shall be deemed approved, unless the defect was not detectable during the inspection. If such a defect becomes apparent later, theHUD GmbH must be notified immediately, i.e., within 48 hours of discovery; otherwise, the goods will be deemed accepted even with regard to this defect. Timely dispatch of the notification is sufficient to preserve the customer's rights. If theHUD GmbH has fraudulently concealed the defect, we cannot invoke this provision.
2) If the goods are defective for which we are responsible, we are entitled, at our discretion, to remedy the defect or to replace the goods. In any case, we have the right to inspect and test the defective goods before remedying the defect. In the event of remedying the defect, we are obligated to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labor, and material costs, unless these are increased by the goods being transported to a location other than the place of performance.
3) The customer has the right to withdraw from the contract within the framework of the statutory provisions if we – taking into account the statutory exceptions – fail to meet a reasonable deadline set for us to remedy the defect or deliver a replacement due to a material defect. If the defect is only minor, the customer is only entitled to a reduction in the purchase price.
4) The return of defective goods is only permitted after a return number has been issued.
5) Unless otherwise stated below, further claims by the customer – regardless of the legal basis – are excluded. We are therefore not liable for damages that did not occur to the delivered item itself; in particular, we are not liable for lost profits or other financial losses suffered by the customer.
6) The above exclusion of liability does not apply if the cause of the damage is based on intent or gross negligence. It also does not apply if the customer asserts claims for damages due to non-performance due to the lack of a guaranteed quality.
7) To the extent that we negligently breach a primary contractual obligation, such as a delivery obligation or a material contractual obligation, our liability for damages is limited to the typical, foreseeable damages. Further claims for damages are excluded.
8) The duration of our warranty obligation is one year, calculated from the transfer of risk. This period is a limitation period and also applies to claims for compensation for consequential damages, provided no claims for tort are asserted. In particular, it is not a guarantee period, i.e., theHUD GmbH is generally only liable for defects that exist at the time of transfer of risk.
§ 6 Total Liability
1) Any liability for damages beyond that provided for in § 5 paragraphs 5.) to 7.) is excluded – regardless of the legal nature of the asserted claim.
2) To the extent that our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives, and vicarious agents.
§ 7 Retention of Title
1) The goods delivered by us remain our property until all payments under the delivery contract have been received. In the event of breach of contract by the customer, in particular in the event of late payment, we are entitled to demand the return of the delivered goods. Our demand for the return of the goods does not constitute a withdrawal from the contract unless we have expressly declared this in writing. Seizure of the goods by us always constitutes a withdrawal from the contract. After taking back the goods, we are entitled to dispose of them. The proceeds of the disposal shall be credited to the customer's liabilities, less reasonable disposal costs.
At the customer's request, theHUD GmbH will provide advertising material, such as "displays," for the purpose of promoting theHUD GmbH products.
These advertising materials remain the property of theHUD GmbH, even if they are installed or otherwise permanently attached to the customer's property. Pledging or selling the advertising materials is prohibited. The customer is obligated to keep the advertising materials in good condition. They may not alter the advertising materials. All advertising materials may be used exclusively for the sale, presentation, and other purposes for the benefit of theHUD GmbH products. Any other use is hereby expressly prohibited. This may lead to termination of the supplier contract.
2) In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can take appropriate legal action to defend ourselves. If the third party is unable to reimburse us for the legal or extrajudicial costs of these legal measures, the customer is liable for any loss incurred by us.
§ 8 Restrictions on the Use of Delivered Goods – Contractual Penalty
1) We only supply selected retailers in accordance with theHUD GmbH guidelines. Therefore, the customer may only offer for sale or otherwise display the goods delivered based on their order in the retail locations specified in the order and approved by us in writing. In particular, the customer is prohibited from reselling the goods to commercial resellers (other wholesalers and/or retailers) or otherwise distributing them. It is in line with theHUD GmbH's sales philosophy that, based on the respective population density and purchasing power, only a limited number of retail stores can offer theHUD GmbH products. It would be contrary to this market policy if our customers were adversely affected by resellers from other areas. Therefore, it is also prohibited to sell the ordered goods via e-commerce or mail order without theHUD GmbH's authorization.
2) If the customer violates the prohibition agreed in Section 8, Paragraph 1.) by offering goods delivered by us for sale outside the store(s) specified in the order confirmation or outside the authorized e-commerce or mail order business, or by reselling the goods to commercial resellers or otherwise distributing them to them, the customer shall pay theHUD GmbH a contractual penalty of €15,000.00 for each proven individual case. Goods of the brands we distribute that were not placed on the market by us in the EEA are considered counterfeits. The sale of these also constitutes a breach of contract, which is punishable by a contractual penalty of €15,000.00 for each individual case. The sale of all counterfeits constitutes a breach of contract, which is punishable by a contractual penalty of €15,000.00 for each individual case.
3) In the event of a violation of the prohibitions in Section 8, Paragraphs 1 and 2, we are entitled, at our discretion, to terminate the contract with immediate effect and/or to refrain from delivering any outstanding partial deliveries.
4) The customer agrees that the goods delivered to him may be marked in a manner that is not recognizable to the customer in order to verify compliance with these prohibitions.
§ 9 Cancellation Fee
1) In the event that the goods are not accepted or not executed for reasons attributable to the customer, we are entitled to cancel the order. In the event of cancellation, the customer agrees to pay us a flat-rate fee of up to 30% (100% for custom products/SMU) of the order value as flat-rate compensation. The customer remains free to prove that lesser damages actually occurred, while we are free to prove that greater damages occurred. The same applies if a cancellation agreement was concluded between the customer and us due to a cancellation request from the customer.
2) If an order is not canceled in accordance with Section 1 or a cancellation agreement was concluded, the customer must pay in full for any goods not accepted or returned that are free of defects, despite the return. Storage is at the customer's risk and expense.
§ 10 Prohibition of Assignment
The customer's rights arising from contracts concluded with us are non-transferable, and in particular non-assignable.
§ 11 Protected Trademarks and Logos
The customer is only authorized to use the protected logos and trademarks of the goods delivered to him in any commercial manner outside of the delivered goods with our express written permission.
§ 12 Data Protection
The customer agrees that his company and personal data received by us within the scope of the business relationship will be stored in an IT system and processed automatically. (See also Privacy Policy)
§ 13 Severability Clause
Should any of these provisions be invalid or incomplete, this shall not affect the validity of the remaining provisions. The incomplete or invalid provision shall be replaced by a provision that most closely approximates the intended economic purpose of the parties.
§ 14 Place of Jurisdiction – Place of Performance
1) If the customer is not a consumer but a merchant, the place of jurisdiction shall be our registered office in Hanover, at our discretion. However, we are also entitled to sue the customer at the court of his or her place of residence.
2) Unless otherwise stated in the order confirmation, the place of performance shall be our registered office.
3) The contractual relationship shall be governed by the law of our registered office, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).