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Terms and Conditions

General terms and conditions

As of 01.01.2012

Section 1
Applicability of the General Terms and Conditions of Sale and Delivery
1.
The terms and conditions presented here apply to all current and future transactions of the company Hemmers / Itex. These also apply if the company Hemmers / Itex does not specifically inform its clients of the terms and conditions of sale and delivery in any subsequent transactions. General terms and conditions of the client will not under any circumstances become part of the contract. This shall apply even if the company Hemmers / Itex acknowledges or does not explicitly oppose the validity thereof unless their applicability is expressly approved in writing.
2.
These general terms and conditions of sale and delivery do not apply if the client is a consumer as defined by Section 13 of the German Civil Code (Bürgerliches Gesetzbuch).
3.
In case of any doubt regarding the interpretation of trading terms, the respective applicable version of the International Commercial Terms is to be authoritative. Unless stipulated differently within these general terms and conditions for sale and delivery or in the contract, the current version of the standard conditions of the German textile industry are to apply.
4.
In case of any doubt regarding the interpretation of trading terms, the respective applicable version of the International Commercial Terms is to be authoritative. Unless stipulated differently within these general terms and conditions for sale and delivery or in the contract, the current version of the standard conditions of the German textile industry are to apply.

Section 2
Quotations, Conclusion of Contracts and Condition of the Purchased Object
1.
All quotations are non-binding. Technical alterations, such as changes to the shape, colour and/or weight shall be permitted within reason. Pictures, drawings, dimensions, weights and other performance data are only binding when these have agreed upon in writing. Before the contract is completed, the client is obliged to inform Hemmers / Itex in writing, detailing their specific expectations and circumstance if, according to the client’s expectations, the product to be delivered is not only suitable for ordinary use, if they assume that the product will be fit for a certain use or be of a certain quality, if the client plans to use the product for an unusual purpose, including the processing of unusual materials or placing it under high levels of stress or using it in a way that would involve a particular hazard for life, body, health or the environment.
2.
The company Hemmers / Itex retains ownership and copyright for all quotations, sketches, patterns and other documents. These documents should not be made accessible to third parties without explicit written authorisation.
3.
The contract is concluded with the written confirmation of the order by Hemmers / Itex or, in the absence of such, with the execution of the order. The written confirmation of any order by Hemmers / Itex is decisive for the contract’s content. This applies, subject to the short-term objections raised by the client in writing, even if these deviate from the client’s statements. Public statements, targeted promotions or advertisements do not constitute contractual details of the conditions of the goods. The client will not receive any guarantees in the legal sense of the word. If a client’s order qualifies as an offer as defined by Section 145 of the German Civil Code, Hemmers / Itex is permitted to accept this within two weeks of the order being received by Hemmers / Itex. If the order deviates from the proposals or quotation given by Hemmers / Itex, the client is to draw up the order in writing, clearly indicating such deviations.
4.
All supplements, amendments or subsidiary agreements to the contract must be made in writing or confirmed in writing by Hemmers / Itex in order to become legally effective. The employees, agents or other intermediaries of the company Hemmers / Itex are not authorised to make subsidiary agreements or to give warranties or guarantee that extend beyond the content of the written agreements.

Section 3
Price and Payment
1.
The prices are given in EUR and apply ex-works excluding packaging, unless otherwise stated in the order confirmation or in a written agreement. The prices are subject to the VAT rate as stipulated by law and in effect at the time of invoicing. With regard to additional service charges, please refer to the provisions stipulated in Section 4.
2.
Unless otherwise stated in the order confirmation, the purchasing price is due for payment upon issuance of the invoice and is to be paid within 14 days. The consequences of a possible delayed payment on the part of the client comply with statutory provisions. In particular, in the event of a late payment, the client is obliged to pay interest of 8% above the basic interest rate on the amount claimed. The deduction of any special discounts requires an additional written agreement. We retain the right only to complete delivery against advance payment or the provision of a security deposit when dealing with new clients, with existing clients who already have outstanding payments due to Hemmers / Itex or with clients who do not have or no longer have a good credit rating. Hemmers / Itex is entitled to charge the client a fee of 5.00 EUR for each payment reminder sent with legitimate reason.
3.
If a client should fail to pay an invoice on time or if insolvency proceedings have been opened or applied for against them or if their credit rating should demonstrably fall considerably, all other outstanding invoices are also due to be paid immediately. In these cases, Hemmers / Itex is entitled to demand a sufficient security deposit or to withdraw from the contract. If there are several outstanding payments, Hemmers / Itex reserves the right to use a payment, instalment or down payment made by the client to first repay the debt which has the least security; if all debts are equally safe then the oldest debt is to be repaid first and if all debts are the same age then they are to repaid commensurately.
4.
The client is only entitled to offset their debt if their counterclaims are declared legally valid and are not disputed or acknowledged by Hemmers / Itex. The client may only exercise a right of retention if their counterclaim results from the same contractual relationship.
5.
Hemmers / Itex retains the right to adjust prices accordingly if decreases or increases in costs (in particular due to labour agreements or changes in material prices) occur after the contract has been concluded. Hemmers / Itex is obliged to provide relevant evidence for this at the client’s request.

Section 4
Transfer of Risk, Packaging and Shipping
1.
Unless agreed otherwise in writing, the delivery is agreed upon “ex-works” (EXW/factory Hemmers / Itex as per Incoterms).
2.
The costs for packaging, shipping, payment transactions, customs duties etc. are to be invoiced to the client separately, unless agreed otherwise in writing.
3.
The type of packaging and the method of shipment is to be selected by Hemmers / Itex at its own discretion, exercising all due care and diligence. The return of disposable packaging requires an additional agreement. However, the client is obliged to return reusable packaging at their own expense.
4.
Insurance of the goods against damages in transit is only taken out at the express request of the client. The costs for this insurance are to be charged separately to the client.

Section 5
Delivery Times
1.
The delivery time is calculated from the information provided by Hemmers / Itex at the time the contract is concluded and is to be considered a non-binding guideline. Binding delivery times or deadlines require written confirmation from the company Hemmers / Itex to be legally valid. The beginning of the delivery period presupposes the clarification of all technical and design-related questions. Adhering to the delivery deadline presupposes that the client has met his contractual obligations and duties as agreed. If this is not the case, the delivery deadline is to be extended appropriately, unless the delay has been caused by Hemmers / Itex. This is especially valid if the client has outstanding payments due to be paid to Hemmers / Itex.
2.
If the client should fall into default of acceptance or culpably violates any other duties to cooperate, Hemmers / Itex is entitled to make a claim for any damages incurred by this, including any additional expenses. The right to make any further claims is reserved.
3.
If the prerequisites of paragraph 2 have been met, then the risk of accidental loss or accidental damage of the object of purchase is transferred to the client at the point when they enter into a delay of acceptance or payment.
4.
The adherence to the given delivery period is subject to the correct and punctual supply of goods/materials to Hemmers / Itex. This is only to apply if Hemmers / Itex is not responsible for the failed delivery of such materials, especially if a congruent covering transaction has been made with the supplier in question. The company Hemmers / Itex is to inform the client about the unavailability of the service immediately. Any payments already made are to be refunded without undue delay.
5.
Delivery times or deadlines are to be postponed or extended within reason, if Hemmers / Itex is prevented from completing their service in a timely manner due to force majeure, industrial action or other circumstances beyond the control of Hemmers / Itex. This also applies if equivalent circumstances affect the preliminary supplier. There is no legal ground for Hemmers / Itex to be held liable for damages resulting from this. Should the delay last longer than three months, the client is entitled to withdraw from the contract in regard to any part as yet unfulfilled following an appropriate deadline extension. In this event, the client is not entitled to make any claims for damages.
6.
The client is only entitled to assert rights and claims resulting from a late delivery, if Hemmers / Itex is responsible for the delay.
7.
If the client suffers damages as a result of the delayed delivery for which Hemmers / Itex is responsible, the statutory provisions are to apply. If the company Hemmers / Itex is required to pay compensation, for every full week of delay this is to amount to a maximum of 0.5% of the value of the respective part of the total delivery, which cannot be used in time or as stipulated in the contract as a result of the delayed delivery. The total amount of compensation is limited to 15% of the value of the entire delivery. Any additional claims for damages are excluded. The limitations presented here do not apply if Hemmers / Itex is found guilty of wilful intent or gross negligence or if a fixed-date transaction exists, as defined by Section 286 (2.4) of the German Civil Code (Bürgerliches Gesetzbuch) or Section 376 of the German Commercial Code (Handelsgesetzbuch), or if the delay in delivery caused by Hemmers / Itex is the result of a culpable violation of an essential contractual duty. In these cases, the liability of Hemmers / Itex for damages is limited to foreseeable and typically occurring damages, except in the case of a breach of contract deliberately caused by Hemmers / Itex.
8.
The company Hemmers / Itex is at all times entitled to made a partial delivery or partial rendering of their services, unless the client has no interest in the partial fulfilment of the contract. Partial deliveries can be invoiced separately.

Section 6
Liability for Defects / Compensation
1.
The client’s warranty rights presuppose that they have fulfilled their duty to inspect and report any defects upon receipt of goods in accordance with Section 377 of the German Commercial Code (Handelsgesetzbuch). Notice of defects must be made in writing, specifying the type and extent of the deviation from the agreed or standard quality or their suitability for use.
2.
A material defect exists if, with due consideration of the provisions of Section 2 (1.3), the goods differ noticeably from the agreed upon model, amount, quality, suitability for use or, if not otherwise agreed, from the standard quality and suitability of use that is produced in Nordhorn. A defect in title exists for the goods if, at the point that risk is transferred, they were not free from rights and claims of third parties enforceable in the Federal Republic of Germany. Further legal exclusions or liability limitations for Hemmers / Itex remain unaffected. Unless otherwise expressly agreed upon in writing, Hemmers / Itex is in particular not liable if the goods are suitable for any purpose other than that which they are normally used for, if they fulfil the client’s additional expectations or are free from rights or claims of third parties outside of the Federal Republic of Germany.
3.
In the event of justified complaints, the client is entitled to demand that the order be completed at a subsequent date in accordance with statutory provisions. The company Hemmers / Itex may choose whether to complete the order by correcting the defect or by delivering new goods, free of defects.
4.
If it should not be possible to fulfil the order at all, the client can choose to make claims for further rights in accordance with statutory provisions. The client is only entitled to make claims for damages within the scope of items 5 – 8 in Section 6.
5.
In accordance with legal provisions, the company Hemmers / Itex is liable if the client makes claims for damages that are based on issues of wilful intent or gross negligence. Except in the case of a breach of contract deliberately caused by Hemmers / Itex, then the company’s liability for damages is limited to foreseeable and typically occurring damages, this means that compensation for indirect damages such as lost profit or loss of production is excluded.
6.
In accordance with legal provisions, Hemmers / Itex is liable for damages an essential contractual duty has been culpably breached. In the event of this, the liability of Hemmers / Itex for damages is limited to foreseeable and typically occurring damages. Compensation for indirect damages such as lost profit or loss of production is excluded.
7.
Liability for culpable injury to life, body or health is to remain unaffected by the aforementioned limitations. This also applies to statutory liability as stipulated in the German Product Liability Act (Produkthaftungsgesetz).
8.
The statutory limit for claims regarding product defects is 12 months from the transfer of risk. Claims for damages regarding wilful intent remain unaffected. Additional measures taken to complete the order do not lead to an extension of the delivery period stipulated in paragraph 1 and do not cover an acknowledgement that would initiate that start of a new statutory limit for making claims.
9.
Liability is excluded for normal wear and tear as well as for damage caused by unsuitable or improper use. Any liability for defects is to be excluded if the user manual, operating guidelines, safety instructions or maintenance guidelines are not followed, if changes are made to the products, if parts are exchanged or expendable materials used that do not match the original specifications, unless the client disproves a substantiated assertion that the defect was caused by these circumstances. Likewise, the client is not entitled to make claims in the events of normal signs of wear and tear or slight differences in colour or design insofar as these seem reasonable for the client.
10.
The company Hemmers / Itex is not liable for defects on the part of the client or for parts or components supplied at their request by third parties or for defects in the final product, which can be traced back to a fault in the additional parts supplied.

Section 7
Schutzrechte
1.
Hemmers / Itex is to assume liability towards the client, guaranteeing that the goods are free from third party property rights within the Federal Republic of Germany.
2.
Prerequisite to this is that the client immediately informs the company Hemmers / Itex of any property rights claims made by third parties against them and that they proceed in dealing with these claims pursuing their rights in consultation with Hemmers / Itex. If this condition is not fulfilled then Hemmers / Itex is to be considered free from its obligations. If there is a violation of property rights for which the company Hemmers / Itex is deemed liable as per regulations and this leads to the client being legally prohibited from using or partially using the products then the company Hemmers / Itex must choose one of the following options at their own expense:
a) obtain the right for the client to use the product or
b) create a product that does not infringe any copyright or
c) replace the goods with another object that does not infringe property rights or
d) retract the goods and reimburse any payment made by the client.
3.
If the client should change the product or combine it with other goods or products in such a way that it causes an infringement of third party property right, the company Hemmers / Itex is excluded from any liability. In such cases, the client is to release Hemmers / Itex from any claims made by third parties.
4.
Likewise, the company Hemmers / Itex is not liable for the infringement of third party rights regarding goods that have been produced according to sketches, developments, specifications, designs, samples or other details from the client or if they are used in a way that was unforeseeable. In such cases, the client is to release Hemmers / Itex from any claims made by third parties.
5.
The client is not entitled to any additional or alternative claims to those provided for in Section 7. In particular, the company Hemmers / Itex is not liable for any consequent damages, such as loss of production or use or for any profit loss. These liability limitations do not apply in cases where liability is mandatory for typical contractual, foreseeable damages, such as wilful intent or gross negligence, the violation of essential contractual duties or the absence of warranted properties. The client’s right to withdraw from the contract remains unaffected.

Section 8
Overall liability
1.
Any additional claim for damages beyond the stipulations of Section 5, 6 and 7 is excluded, regardless of the legal background.
2.
If our liability is excluded as per these conditions, the same is to apply for the personal liability of our representatives, agents or employees.
3.
Provided that the company Hemmers / Itex is not liable due to intent or the client’s claim has not yet fallen under the statute of limitations, the client is obliged to raise any claims for damages within a preclusion period of six months after the claim has been rejected by Hemmers / Itex.

Section 9
Call-off Contracts
1.
Call-off contracts and their duration require an additional agreement and the written confirmation of Hemmers / Itex. Unless otherwise agreed, the duration of call-off contracts is limited to six months after the conclusion of the contract. If the goods are not requested in full within this period or within the period agreed upon, the company Hemmers / Itex is entitled to charge a storage fee from the 7th month or following the expiration of the agreed deadline, amounting to 1% of the net product value for all goods kept in storage for the client, for every calendar month or part thereof, plus value added tax at the rate applicable at the time of invoicing. Once the call period has elapsed, the agreed remuneration for the unclaimed goods becomes due for payment. The right to claim further damages is reserved.
2.
Upon expiry of the agreed upon end date, the client is obliged to accept any remaining goods still in storage as a one-off delivery. If the goods are not accepted, Hemmers / Itex is to set the client a deadline of two weeks, demanding that they collect the goods within this time and pay the agreed remuneration. If acceptance and payment are not carried out within this deadline, Hemmers / Itex is entitled to withdraw from the contract with regard to the remaining goods and to make claims for damages.
3.
If the client already has outstanding payments owed to Hemmers / Itex, they are obliged to make an advance payment or pay a security deposit in order to collect the goods..

Section 10
Reservation of Proprietary Rights
1.
We reserve the proprietary rights to the goods until all payments arising from the business relationship with the client have been received. If the client is to behave in a manner contrary to contractual obligations, in particular with regards to a delay in payment, we are entitled to take back the object purchased. Taking back the goods implies our withdrawal from the contract. After taking back a product, we are entitled to sell it and apply the proceeds from this exploitation to offset the client’s accounts payable – following the deduction of appropriate exploitation costs.
2.
The client is obliged to handle goods subject to retention of title with due care; in particular he is obliged to have adequate insurance for the product to cover its replacement cost against fire, water or theft damage.
3.
The client must inform us in writing immediately in the event of seizure or any other type of intervention by third parties, so that we are able to make a claim in accordance with Section 771 of the German Code of Civil Procedure (Zivilprozessordnung). If the third party is unable to reimburse us for the judicial and extra-judicial costs of making a claim under Section 771 of the German Code of Civil Procedure, the client is liable for the loss incurred to us.
4.
The client is entitled to resell the goods purchased within their ordinary course of business; however, they are to assign all accounts receivable up to the value of the final invoice amount (including VAT) to us now, this includes all debts resulting from the resale to their customers or third parties and irrespective of whether or not the article of sale has been changed in any way prior to resale. The client shall retain the right to recover this debt, even after its assignment to us. Our right to collect the debt ourselves remains unaffected by this. However, we undertake not to collect the debt as long as the client fulfils their payment obligations from the revenues generated, does not fall into default of payment and especially as long as no application has been made to open settlement of insolvency proceedings or if they have declared their inability to pay. If however, this is the case, we can demand that the client discloses the assigned claims and their debtors, provides all information required for collection along with the necessary documents and that they inform the debtors (third parties) of the assignment. We accept the assignment.
5.
The processing or alteration of the object of purchase is always done for us. If work is done on the object of purchase using objects that do not belong to us, we will thus acquire joint ownership of the new item proportional to the value of the object (final invoice amount, including VAT) and the other processed items at the time of manufacture. The same provisions apply for the newly created object as for the goods delivered subject to retention of title.
6.
If the object of purchase is inseparably combined with objects that do not belong to us, we will thus acquire joint ownership of the new item proportional to the value of the object (final invoice amount, including VAT) and the other items it has been with combined with as of the time of manufacture. If the combination is carried out in such a way that the client’s product is seen as the main part, it is to be considered agreed that the client is to transfer proportionate joint ownership to us. The client is to hold the resulting sole property or joint ownership for us.
7.
The client is also to transfer claims to us that support the protection of our claims against them and which arise against a third party and are the result of combining the object of purchase with a plot of land. We accept the assignment.
8.
We undertake to release the securities we are entitled to at the client’s request, insofar as the liquidable value of our securities does not exceed the receivables to be secured by more than 20%; we are free to choose which securities are to be released.

Section 11
Final provisions
1.
Client data used within the context of the business relationship is to be handled by Hemmers / Itex in accordance with the provisions of the German Data Protection Act (Bundesdatenschutzgesetz). Only the laws of the Federal Republic of Germany are to apply. The applicability of the UN Convention on Contracts for the International Sale of Goods is specifically excluded, even where its application is provided for in the client’s business conditions.
2.
The sole place of jurisdiction for all disputes arising from this contract is our official place of business. The same applies if the client does not have any general place of jurisdiction within Germany or if their domicile or common place of residence is not known at the time that a complaint is filed. The company Hemmers / Itex is still entitled to bring a case against the client at their official place of business or their commercial establishment.
3.
Nordhorn is the place where all duties resulting from this business relationship are to be performed, paid and fulfilled.
4.
If any individual conditions of the contract with the client, including these General Terms and Conditions of Sale and Delivery become invalid in part or in full, this will not affect the validity of the other remaining stipulations. The wholly or partially invalid provision is to be replaced by a regulation whose economic outcome is as close as possible to that of the original provision.