General terms and conditions General terms and conditions

§ 1

Application of general terms of sale and delivery

1. These terms and conditions of sale and delivery of Hilco Textil GmbH apply to all present and future business. This also applies if Hilco Textil GmbH does not explicitly point out the sales and delivery conditions in the event of subsequent transactions. The general terms and conditions of the customer are hereby expressly rejected. These shall also not be applicable even if Hilco Textil GmbH performs the delivery to the customer in the knowledge or without express objection to the deviating conditions of the customer.

2. Individual agreements made with the customer applicable to individual cases (including collateral agreements, supplements, amendments) shall in all cases prevail over these General Terms and Conditions. A written contract or the written confirmation of Hilco Textil GmbH is decisive for the content of such agreements.

3. Only the law of the Federal Republic of Germany is applicable. The applicability of the United Nations Convention on Contracts for the International Sale of Goods is also expressly excluded in the event that an application is stipulated in the customer's terms of business.

4. The place of performance for all deliveries and services is the registered office of Hilco Textil GmbH.

 

§ 2

Offers, conclusion of contract and condition of purchase

1. Offers are always non-binding and subject to change. Technical alterations and changes in shape, colour and/or weight are reserved within reasonable limits.

2. Illustrations, drawings, dimensions, weights and other performance data are only binding if this is expressly agreed in writing. If the customer’s vision is that the goods to be delivered are not suitable solely for normal use, then the customer must state their expectations and circumstances in writing. If this requirement is not complied with there are no claims for damage or compensation.

3. The agreement of a guarantee must be in the written form to be effective (§126 BGB).

4. The contract is concluded by written order confirmation or in the absence of such, by the execution of the order. Hilco Textil GmbH is entitled to accept an offer submitted by the customer by written order confirmation within 15 working days from receipt of the offer.

5. Subsequent changes or amendments to the performance owed by Hilco Textil GmbH are permissible as long as they are customary commercial practice or technically necessary and do not place an unreasonable burden on the customer.

 

§ 3

Delivery period, force majeure, partial delivery, order cancellation

1. Subject to derogation in individual cases, delivery periods are approximate.

2. In the event that the customer has agreed to make an advance payment the agreed delivery period does not commence until the customer has fulfilled the necessary preconditions for performance.

3. Hilco Textil GmbH reserve the right to put forward a defence for lack of performance.

4. An agreed delivery period is subject to full and timely delivery by our contractual partners (failure of suppliers to honour obligations).

5. In the event of force majeure the delivery period shall be extended, taking into account the duration of the obstruction and a reasonable start-up time. Energy and raw material shortages, strikes, lockouts, official measures, terrorist attacks and war unpredictable at the time of the conclusion of the contract are also considered force majeure. Hilco Textil GmbH will immediately inform the customer of the existence of force majeure and the probable end of the situation. If the state of force majeure continues uninterrupted for more than three months, or if the delivery date is extended by more than four months due to multiple instances of force majeure, both the customer and Hilco Textil GmbH are entitled to withdraw from the contract. In the case of force majeure, the assertion of claims for damages and further claims are excluded. The obligation to provide consideration is waived, payments already made are reimbursed. The provisions of this clause shall apply mutatis mutandis if the situation arises with a sub-supplier and have an effect on deliveries to Hilco Textil GmbH.

6. Hilco Textil GmbH is entitled to partial deliveries, provided this is not unreasonable for the customer. A partial delivery is not unacceptable in particular if the partial delivery can be used as intended by the customer, delivery of the remaining ordered goods is ensured and the customer does not incur any substantial additional effort or additional costs due to the partial delivery.

7. The customer is entitled to rights and claims due to default only if Hilco Textil GmbH is responsible for the delay.

8. Order quantities given by the customer when the order is placed are indicative values for subsequent delivery. However, Hilco Textil GmbH reserves the right to slightly exceed / fall short of this amount in relation to the order quantity.

9. In the event of an order cancellation, 10% of the cancelled net order value will be invoiced as a processing fee if this is possible.

 

§ 4

Prices, terms of payment, price adjustment

1. All quoted prices are in Euro.

2. The German value-added tax applicable at the time of invoicing will be added to the net prices for all deliveries to domestic customers and customers without a valid VAT ID number.

3. Invoices are issued on the day of delivery or provision of the goods. A postponement of the maturity (valuation) is not foreseen.

4. The invoices are payable as follows:

Within 10 days after invoice with 4% cash discount

From 11th to 30th day after invoice with 2.25% cash discount

From 31st - 60th day after invoicing net without cash discount

From the 61st day, a delay is deemed to have occurred pursuant to § 286 para. 2 no. 1 BGB (German Civil Code).

5. If more than twenty-two weeks have elapsed between the conclusion of the contract and the passing of the risk, and if Hilco Textil GmbH has not caused the exceeding of this period in a culpable manner, then Hilco Textil GmbH is entitled to increase the price according to the additional production costs incurred.

 

§ 5

Payment by due date

1. In the case of payment after maturity, interest will be charged at 9% above the respective base rate under § 247 BGB. § 288 of the German Civil Code (BGB) also applies.

2. Hilco Textil GmbH is not obliged to make any further deliveries from current supply contracts prior to the complete payment of due amounts including any interest. The right to assert damages due to default is reserved.

3. In the event of substantial deterioration in the asset conditions, e.g. threatened insolvency or default of payment, Hilco Textil GmbH may refuse further deliveries or withdraw from all supply contracts based on the same legal relationship or withdraw from the contract. § 321 BGB shall apply.

4. If the customer is in default of payment of a legitimate demand or if insolvency proceedings are instituted or if the opening of such proceedings is applied for or the customer’s creditworthiness is demonstrably worsened, all other demands become immediately due for payment. In such cases, Hilco Textil GmbH is entitled to demand the provision of adequate securities. In the event of multiple due invoices Hilco Textil GmbH reserves the right to use a payment, instalment or down payment by the customer to reschedule the debt that represents the lowest security and the oldest maturity.

5. The customer is only entitled to offset if its counter-claims have been legally established and are undisputed and acknowledged by Hilco Textil GmbH. The customer may only exercise a right of retention if its counter-claim is based on the same contractual relationship.

 

§ 6

Retention of title

1. Hilco Textil GmbH retains ownership of the goods until receipt of all payments under the business relationship with the customer. In the event of a breach of contract by the customer, in particular in the event of a delay in payment, Hilco Textil GmbH is entitled to take back the purchased item. The reclaiming of the purchase by Hilco Textil GmbH represents a withdrawal from the contract. After reclaiming the purchased goods Hilco Textil GmbH is entitled to credit the proceeds from the sale of the goods, net of appropriate recoveries, to the outstanding receivables.

2. The customer is obligated to handle the reserved goods carefully. In particular, the customer is obliged to adequately insure these at its own expense against fire damage, water damage and theft.

3. The customer must notify Hilco Textil GmbH immediately in writing in the event of seizures or other interventions by third parties, so that an action can be filed pursuant to § 771 ZPO. If the third party is not in a position to reimburse Hilco Textil GmbH for judicial and extra judicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by Hilco Textil GmbH.

4. The customer is entitled to resell the goods in the ordinary course of business. However, it assigns all receivables in the amount of the final invoice amount that it is due from the resale to its customers or third parties to Hilco Textil GmbH. The customer retains the authority to collect this claim even after assignment. The authority of Hilco Textil GmbH to collect the claim itself remains unaffected. However, Hilco Textil GmbH undertakes not to collect the receivables as long as the customer complies with its payment obligations from the revenue collected, does not default, and in particular there is no application for the opening of a settlement or insolvency proceedings or insolvency in existence. If this is the case, Hilco Textil GmbH may require the customer to disclose the assigned claims and its debtors, to provide all information necessary for collection, to hand over the related documents and to notify the debtors (third parties) of the assignment.

5. If the goods are processed together with other items not belonging to us, then Hilco Textil GmbH acquires the co-ownership of the new goods in the ratio of the value of the reserved goods to the other processed items at the time of processing.

 

§ 7

Transfer of risk, packaging and shipping

1. Unless otherwise agreed in writing, delivery ex works is at the expense and risk of the recipient. The cost of packing, shipment, customs fees etc. shall be shown separately on the invoice.

2. The type of packaging and shipping shall be chosen by Hilco Textil GmbH using our prudent judgement.

 

§ 8

Responsibility for defects, compensation

1. The customer's rights of defect requires that the customer has properly complied with the inspection and complaint obligations due pursuant to § 377 HGB. Notification of defects shall be made in writing stating the nature and extent of the deviation from the agreed or customary condition of the goods.

2. A deficiency of the goods is present if the goods deviate significantly from the agreed execution, quality and utilization, taking into account the regulation in § 2 paragraph 2.

3. In the event of justified complaints, the customer may demand supplementary performance in accordance with the statutory provisions. The supplementary performance shall be performed at the option of Hilco Textil GmbH by eliminating the defect or delivering new defect-free goods.

4. If the supplementary performance definitively fails the customer can return the rejected goods at the expense of Hilco Textil GmbH.

5. The limitation period for claims for defects is 12 months from the transfer of risk. Subsequent performance measures do not lead to an extension of the deadline set out in sentence 1.

6. In the event of a culpable breach of duty Hilco Textil GmbH is liable in accordance with statutory provisions for all damages resulting from injury to life, body or health.

7. In the event of a culpable violation of essential contractual obligations Hilco Textil GmbH is liable in accordance with the legal provisions. However, if Hilco Textil GmbH does not violate material contractual obligations intentionally or grossly negligently, the liability is limited to foreseeable, contract-typical damage. Contractual obligations are those which are absolutely necessary to achieve the purpose of the contract and which the customer may rely on their fulfilment.

8. Hilco Textil GmbH is liable for any grossly negligent and intentional violation of non-essential contractual obligations.

9. Hilco Textil GmbH is liable in accordance with the provisions of the applicable Product Liability Act.

10. Hilco Textil GmbH shall be liable in accordance with the guarantee declaration if a contractual guarantee has been agreed upon.

11. Liability for normal wear and tear as well as damage caused by unsuitable or improper use and handling is excluded.

12. Hilco Textil GmbH is not liable for deficiencies in an end product if the end product has parts added that are manufactured by other suppliers and the deficiency is attributable to the defectiveness of said parts.

 

§ 9

Protection rights

1. Hilco Textil GmbH accepts liability against the customer that the goods are free from third party protective rights in the Federal Republic of Germany. The prerequisite for this is, however, that the customer informs Hilco Textil GmbH without delay of claims arising from protective rights brought against it by third parties and shall proceed with Hilco Textil GmbH in the treatment of these claims and the pursuit of its rights. If this prerequisite is not met, Hilco Textil GmbH 's liability expires.

2. If the customer changes the goods or joins the goods to other goods or products, and this results in the third party property rights being infringed, any liability of Hilco Textil GmbH is void.

3. Hilco Textil GmbH shall also not be liable for any infringement of third-party property rights for goods manufactured according to drawings, developments, specifications, design, samples or other information originating from the customer. The customer shall release Hilco Textil GmbH from third-party claims in any such cases.

 

§ 10

Support in product arrest

1. The customer will not change products with regard to any safety-relevant aspects. In particular the customer will not alter or remove existing warnings concerning the danger resulting from improper use. In the event of a breach of this obligation, the customer shall indemnify Hilco Textil GmbH in the internal relationship of product liability claims of third parties, unless the customer is not responsible for the obligation resulting from the liability.

2. If Hilco Textil GmbH is obligated to initiate measures, in particular regarding product warnings or product recalls, the customer shall support Hilco Textil GmbH with its best efforts.

3. The customer shall immediately notify Hilco Textil GmbH in writing of any risks that may become known to them.

 

§ 11

Total liability

1. Any further liability for damages than that foreseen in §§ 3, 8, 9 and 10 is excluded, no matter for what legal reason.

2. Insofar as the liability against Hilco Textil GmbH is excluded under these conditions, the above also applies to the personal liability of managing directors, representatives and employees.

 

§ 12

Final provisions

1. Any customer's data processed by Hilco Textil GmbH in connection with the business relationship are processed in accordance with the Federal Data Protection Act.

2. The exclusive jurisdiction for all obligations arising from this business relationship is the registered office of Hilco Textil GmbH.

3. The place of service, payment and performance for all obligations arising from the business relationship is the registered office of Hilco Textil GmbH.

4. Should individual provisions of the contract with the customer, including these general terms and conditions of sale or delivery, be or become invalid in whole or in part, the validity of the remaining provisions shall remain unaffected. The wholly or partly ineffective regulation shall be replaced by a regulation whose economic purpose comes as close as possible to the ineffective regulation.

)