Scope of Application, Subject Matter
Hemmerle Juweliere GmbH (referred to hereinafter as “Hemmerle”) sells and delivers goods solely on the basis of these standard terms and conditions (referred to hereinafter as “T&C”). On making an offer, the Customer acknowledges the legally binding nature of these T&C. Derogations therefrom shall only apply insofar as they have been acknowledged in writing by Hemmerle.
Hemmerle reserves title to and copyright in all the goods as well as any pictures, drawings, calculations and other documents. This also applies to any written documents marked “confidential”. Express written permission from Hemmerle is required before the Customer may disclose same to third parties.
No Tacit Guarantees
It is made clear that no guarantee is assumed under any statement and/or description issued (e.g. specifications of performance, quotations, drawings, weights and measures) or under any claims that are made in public or are perceptible to the public (e.g. advertising). In case of doubt, only those express written statements on assuming a guarantee shall be decisive that are specifically issued by Hemmerle.
Prices, Terms of Payment
Subject to the provision contained in Item 2 below, the purchase price given shall be binding. Unless otherwise agreed, the purchase price includes statutory turnover tax (VAT). If any additional taxes or other levies fall due, they are to be paid by the Customer.
Prices may be altered if a period of more than four months lapses between the conclusion of the contract and the agreed delivery date. If wage costs or the cost of materials alter between the end of such period and the date of delivery, then Hemmerle shall be entitled to alter the price reasonably in keeping with the increase or decrease in costs. The Customer is only entitled to withdraw from the contract if a price increase more than slightly exceeds the rise in the general cost of living occurring between the date of order and the date of delivery.
The Customer shall only be entitled to setoff if its counterclaims have been declared res judicata, or are undisputed, or have been acknowledged by Hemmerle.
All consignments abroad are delivered duty unpaid.
Cheques and bills of exchange are accepted for processing only. All payments are made at the Customer’s risk and expense.
Payments in instalments are only accepted on the basis of a specific written agreement. If the Customer defaults in the payment of all or part of an instalment, then the entire outstanding amount shall fall due for immediate payment.
In the context of normal credit and factoring arrangements, Hemmerle is entitled to assign its receivables from Customers to third parties.
Period of Performance
Any delivery periods given are without obligation, unless a binding commitment to deliver on a particular date is made by way of an exception. In the case of binding delivery dates, said dates shall be extended by the length of the delay in the event of strikes or force majeure. The same shall apply if the Customer fails to perform any obligations to collaborate.
If the Customer refuses to accept all or any of the goods on the agreed delivery date, then Hemmerle may demand either performance of the contract or – after a reasonable period of grace set by Hemmerle has expired – compensation for non-performance.
Liability for Defects, Handling Instructions
Pictures of products may differ from the actual appearance of the goods delivered, in particular as regards colour and size. This shall not create any claims for defects insofar as the Customer may reasonably be expected to tolerate the difference.
In the event of a defect, Hemmerle shall be liable in accordance with statutory regulations unless any limitations ensue from the following provisions. The Customer must report any obvious defects to Hemmerle in writing within two weeks of the defect appearing. If the defect is not reported within the aforesaid period, then any guarantee rights shall lapse. This does not apply if Hemmerle has fraudulently concealed the defect or assumed a guarantee for the item’s quality characteristics.
The right is reserved to make any differences in size, colour, structure and quality to the extent that is normal in the branch; such differences shall not give cause for any claims on the part of the Customer. This applies in particular to natural products. In the case of natural products – no matter whether precious stones, metals, wood or similar are involved – differences in structure and colour may occur. This does not constitute a defect or inferior quality, and is solely due to the very fact that they are natural products.
Natural materials may change over the course of time; this applies in particular to their colouring. This does not constitute a defect either, and is merely the result of a natural process.
The goods must be stored and cared for in accordance with the handling instructions provided. Hemmerle shall not be held responsible if the goods are damaged due to improper handling, and in particular due to failure to follow the handling instructions.
Natural wear and tear and signs of use do not constitute defects. Ring sizes are specified by the Customer and are not therefore a guarantee issue.
Claims for defects become statute-barred after two years, commencing on the passing of risk.
Liability for Damages
Hemmerle’s liability for breaches of contractual duty and liability in tort is limited to intent and gross negligence. This does not apply to mortal injury, bodily harm or health damage suffered by the Customer, claims based on a breach of contractual obligations essential to attainment of the contractual purpose (cardinal duties), or compensation for losses or damage caused by default (Sect. 286 of the Civil Code [BGB]). In these instances, Hemmerle shall be liable for any degree of fault.
The above exclusion of liability also applies to breaches of duty due to slight negligence on the part of Hemmerle’s vicarious agents.
In the event of a merely negligent breach of duty by Hemmerle or its vicarious agents, liability shall be limited to the predictable damage typical for the type of contract. In the event of a merely negligent delay in delivery, any loss or damage suffered by the Customer due to the delay shall be limited to a maximum of 5% of the agreed purchase price.
Where Hemmerle’s liability for damages is excluded or limited, this shall also apply to the personal liability for damages on the part of Hemmerle’s employees, workers, staff, representatives and vicarious agents.
Retention of Title
Hemmerle shall retain title to the goods until the purchase price has been paid in full.
The Customer must immediately notify Hemmerle about any execution measures levied by third parties on the reserved goods, and at the same time hand over any documents required for intervention; this also applies to impairments of whatsoever nature. Irrespective of this, the Customer must inform the third parties concerned beforehand about the rights existing in the goods.
Any statements and notices relevant in law which the Customer has to issue to Hemmerle or to a third party must be done in writing.
Choice of Law, Venue
Unless otherwise stated in the contracts concluded with Hemmerle, place of performance and place of payment shall be our registered business location.
German law shall apply. Special consumer protection regulations in the Customer’s country of residence shall be complied with within the limits laid down in Art. 29 of the Introductory Law to the Civil Code [EGBGB]. CISG is excluded.
The following is agreed as regards venue:
If the Customer has no general place of jurisdiction in Germany, then Hemmerle’s registered location shall be sole venue for all and any disputes arising from contractual agreements with Hemmerle, provided such disputes are not based on Hemmerle’s commercial operations being exercised in or geared towards the Customer’s country of residence. The same applies if the Customer moves its place of residence abroad after conclusion of the contract, or if its normal place of abode is unknown at the time when action is filed.
If Hemmerle engages in commercial operations outside Germany in countries belonging to the European Union (EU) or the European Economic Area (EEA) or makes any manner of arrangements for commercial operations in said countries, and if a contract is thus brought about, then a Customer whose place of residence is in any such EU/EEA Member State may only be sued before the courts of that particular country.
If Hemmerle engages in or arranges for commercial operations outside the sovereign territory of the European Union (EU) or European Economic Area (EEA), and if a contract is thus brought about, then Hemmerle’s registered location shall be sole venue for all and any disputes arising from contractual agreements with Hemmerle.