Terms and Conditions
General Terms and Conditions of HEPLA GmbH (as of July 2023)
Preamble
HEPLA GmbH (hereinafter: HEPLA) manufactures and imports promotional products. For commercial purposes HEPLA operates the website www.hepla.de and offers its customers — within the framework of distance selling —
products and services of various kinds for purchase. The basis of a trusting business relationship is not delivery and payment terms, but cooperation and mutual trust. Nevertheless, HEPLA finds it necessary to regulate certain points in its General Terms and Conditions that deviate from or supplement the statutory provisions for its business relationships with its customers; unless stipulated otherwise here, the statutory provisions shall apply in a supplementary capacity.
1. Scope
1.1 Customers within the meaning of these GTC are exclusively reselling companies and traders (promotional product wholesalers and advertising agencies), i.e. natural persons, legal entities or partnerships with whom business relations are established and who act in the exercise of a commercial or self-employed professional activity (hereinafter: customers). The offer is not aimed at consumers within the meaning of § 13 BGB (German Civil Code).
1.2 These GTC apply to all deliveries, services and offers between HEPLA and the customer. Customers' purchasing and order conditions are hereby contradicted, also in advance for all future transactions, unless they have been agreed in writing between HEPLA and the customer beforehand. Terms and conditions deviating from, conflicting with or supplementing these GTC do not become part of the contract — even if HEPLA is aware of them — unless their validity has been agreed in writing beforehand. Vis-à-vis entrepreneurs, they also apply to all future business relationships, even if they are not expressly agreed again. The version valid at the time the contract is concluded shall be authoritative in each case.
1.3 All agreements made between HEPLA and the customer in connection with purchase contracts are set out in writing in the GTC and the order confirmation.
2. Offers
2.1 All offers and prices are subject to change with regard to technical modifications and other modifications, such as in the shape, colour and/or weight of the product or service. Weight and dimensional specifications, drawings, explanations, descriptions and illustrations contained in the product descriptions are — insofar as not produced by HEPLA itself — the customary approximate values in the industry and are based on the manufacturer's specifications. These specifications, errors and modifications to the offer remain reserved within the scope of what is reasonable for the customer. Changes to the product range and to the technical and visual design remain reserved as far as reasonable for the customer.
2.2 In the event of errors in calculation or in the order confirmation, HEPLA is entitled to correct the prices stated up to the completion of the order placed with it (handover of the goods).
3. Conclusion of contract
3.1 HEPLA does not assume any procurement risk. The conclusion of a purchase contract is therefore subject to the reservation that, in the event of incorrect or improper supply by upstream suppliers, HEPLA may perform either not at all or only in part, unless something different has been expressly agreed in writing in an individual case. HEPLA's responsibility for intent or negligence remains unaffected.
3.2 The presentation of products in the catalogue, online shop / on the internet (at http://www.hepla.de) does not constitute a legally binding offer but rather a non-binding presentation inviting an offer. Orders placed with HEPLA by e-mail (info@hepla.de), telephone (+49 (0) 5681/9966) or fax (+49 (0) 5681/996800) are the customer's offers, by which the customer is bound for a period of 10 calendar days as a rule. With the order, the buyer bindingly declares that it wishes to purchase the goods (offer to enter into a contract). Once the customer has entered and transmitted personal data, or by clicking the "Order now" button in the final step of the online ordering process, the customer places a binding order (offer to conclude a contract) for the goods/services contained in the shopping cart. Immediately after placing the order via the webshop, the buyer first receives an acknowledgement of receipt from HEPLA by e-mail.
3.3 Acceptance of the order is at HEPLA's discretion. The purchase contract is concluded only upon HEPLA's order confirmation (acceptance of the offer) by e-mail.
4. Prices, shipping, packaging and insurance costs
4.1 All prices stated by HEPLA within the catalogue or the online offer are quoted in EUR and do not include the statutory value-added tax (currently 19%). These prices apply exclusively to orders from the catalogue currently in force or within the framework of distance selling (via www.hepla.de) and apply until revoked. The prices stated do not include the costs of promotional printing. The price only includes promotional printing if this is expressly noted in the offer.
4.2 Delivery is ex works. The costs of shipping, loading, packaging and insurance are borne by the customer. If HEPLA provides larger quantities of paper, plastic or other materials, HEPLA is entitled to demand immediate payment upon the customer's receipt of an invoice.
5. Payment terms and consequences of default
5.1 The customer can pay the purchase price by advance payment, bank transfer or SEPA direct debit. HEPLA reserves the right to exclude individual payment methods. In the case of new business relationships, HEPLA expects payment by advance payment.
5.2 Payments must be made within 14 days of the invoice date at the latest.
5.3 HEPLA reserves the right to change the payment terms after conclusion of the contract if the customer's financial circumstances deteriorate significantly or if the customer has failed to meet its contractual obligations to HEPLA in financial terms.
5.4 Tooling cost contributions are payable 1/2 in advance and 1/2 immediately upon presentation of samples, net/net.
5.5 If the customer is in default, HEPLA is entitled to demand the statutory default interest. The right to claim higher interest or further damages on another legal basis remains unaffected.
5.6 The customer has a right of set-off only if its counterclaims have been legally established or recognised by HEPLA. The customer may only exercise a right of retention if its counterclaim arises from the same contractual relationship.
6. Change in the basis of calculation
6.1 Contract adjustment
If, after conclusion of the contract, significant and unforeseeable changes occur in the jointly agreed price bases (e.g. raw materials, primary products, US dollar exchange rate) for which HEPLA is not responsible, HEPLA reserves the right to adjust the prices accordingly, provided this is not unreasonable for the customer. In such a case, the customer is entitled to withdraw from the contract if a price increase of more than 10% has occurred since the contract was concluded.
6.2 Subsequent changes (changes after print approval) at the customer's request, including any production downtime caused thereby, will be charged to the customer.
7. Delivery and reservation regarding delivery
7.1 Unless otherwise agreed in the respective order, the shipping route and means are at HEPLA's discretion. Shipping is at the customer's expense and risk, also for "free shipments"; transport insurance is taken out by HEPLA at the customer's expense unless the parties have made another agreement.
7.2 In the event of force majeure and other unforeseeable, extraordinary and non-culpable circumstances — e.g. difficulties in procuring materials, operational disruptions, strikes, lack of means of transport, official intervention, energy supply difficulties, etc. — also if they occur at upstream suppliers, HEPLA is entitled to an appropriate adjustment of the agreed delivery date or to withdraw from the contract.
7.3 If no delivery dates are agreed but a delivery time measured by certain periods, this period begins on the day the order confirmation is dispatched and ends on the day on which the goods leave HEPLA or, after completion, are placed into storage by HEPLA. For the duration of the customer's review of proofs, pre-print samples, etc., the delivery time is suspended. The suspension runs from the day the proofs, pre-print samples, etc. are dispatched by HEPLA to the customer until the day the customer's print approval is received by HEPLA. If the customer requests a change to the order after HEPLA's order confirmation which affects the production time, a new delivery time begins. In such a case, the delivery time starts upon HEPLA's confirmation of the changes. HEPLA is entitled to make partial deliveries and provide partial performance at any time.
7.4 Should an article ordered by the customer exceptionally not be available, or should the delivery period be more than two months from the order confirmation, HEPLA will inform the customer as quickly as possible of the exact delivery date — or, alternatively, that delivery cannot be made. HEPLA undertakes to refund any consideration received without delay.
8. Retention of title
8.1 HEPLA retains title to the goods delivered until all claims arising from an ongoing business relationship have been settled in full. The customer is obliged to handle the goods with care while title is retained.
8.2 As long as HEPLA still owns the goods, the customer must inform HEPLA immediately if third parties assert any rights of any kind over the goods. The customer must inform HEPLA without delay and in text form of any third-party access to the goods, in particular of enforcement measures, as well as any damage to or destruction of the goods. The customer is liable for all damages and costs arising from a breach of these obligations and from any necessary intervention measures against third-party access to the goods. In the case of breach of contract by the customer, in particular sustained default in payment, HEPLA is entitled to withdraw from the contract and demand the return of the goods.
8.3 The customer is entitled to resell and transfer ownership of the goods subject to retention of title in the ordinary course of business, or to use them within the framework of a contract for work. The customer hereby assigns to HEPLA all claims arising from such resale of the goods subject to retention of title against third parties, as security, until all claims of HEPLA against the customer have been settled. The customer is also authorised to collect these claims after their assignment. HEPLA's right to collect the claims itself remains unaffected; however, HEPLA undertakes not to collect the claims as long as the customer properly meets its payment obligations and is not in default of payment. Otherwise, HEPLA may demand that the customer disclose the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and notify the third-party debtors of the assignment. If the realisable value of the goods subject to retention of title exceeds the claims to be secured arising from the ongoing business relationship by more than 20%, HEPLA is obliged, upon request, to release goods subject to retention of title.
8.4 Any processing or transformation of the goods subject to retention of title by the customer is always carried out on behalf of HEPLA. If the goods subject to retention of title are processed with items not belonging to HEPLA, HEPLA acquires co-ownership of the new item in proportion to the value of the goods subject to retention of title to the other item(s) processed. The same applies if the goods are processed or mixed with other objects not belonging to HEPLA.
9. Tools
Tools, including those for items protected for customers, remain the sole property of HEPLA. This also applies if the customer has paid cost contributions, tool cost shares or any similarly designated amounts for tools, or if such cost shares are included in the article price. Upon termination of the cooperation, the customer likewise has no claim to reimbursement of costs for the tools or fixtures or parts thereof. In return, HEPLA bears the costs of maintenance and repair of the tools, including for custom-made products.
10. Liability for defects (warranty), written guarantees
10.1 Liability for defects is excluded for commercially customary and technically unavoidable tolerances concerning colour, quality, material and weight. For technical reasons, short or over deliveries of up to 10% of the quantity of the respective type of goods must be reserved. In the manufacture of plastic articles and similar goods, the occurrence of a relatively small number of defective items is technically unavoidable, and a share of up to 5% of the total quantity is not subject to complaint, regardless of whether the defect lies in the processing or in the printing. Colour deviations between templates, reproductions, colour-tone charts in HKS and Pantone, etc. (e.g. different printing inks and materials) do not lead to liability for defects. The same applies to colour and material deviations between any pre-print samples and the production print run.
10.2 The customer must check the preliminary and intermediate proofs sent for correction as well as the pre-print samples and notify HEPLA of any complaints in text form before issuing print approval. The risk of any defects passes to the customer upon issuance of the print approval, unless the defects only arose in the subsequent production process following the print approval. The same applies to all customer release statements for further production (see 12 below).
10.3 HEPLA is liable for lightfastness, variability and deviation of the material and printing colours as well as for the properties of rubberisations, coatings, impregnations etc. only to the extent that the defects in the materials would have been detectable upon proper inspection by HEPLA before their use.
10.4 HEPLA shall initially provide warranty for defects of the goods, at its own discretion, by way of rectification or replacement. The customer is not entitled to remedy a defect itself directly or have it remedied by third parties (self-remedy); any expenses incurred for this purpose will not be reimbursed to the customer by HEPLA. If the customer puts the complained goods to use, the complaint is deemed to be without merit. If the customer complains about the delivery, no piece of the complained goods may be consumed. If this nevertheless happens, the complaint is without merit. Defects in part of the delivered goods do not entitle the customer to complain about the entire delivery unless the partial delivery is of no interest to the customer. For significant deviations in the quality of plastic, paper and other materials procured by HEPLA, HEPLA is liable only up to the amount of its own claims against the paper and plastic suppliers and other suppliers. In such a case, HEPLA is released from its liability if it assigns its claims against the upstream suppliers to the customer.
10.5 Notification of defects (notice of quality or quantity deviations) and burden of proof
The customer is obliged to inspect the goods within a reasonable period for any quality or quantity deviations and to give timely notice of any such deviations; the notice is timely if it reaches us within five working days of handover by the carrier or, in the case of hidden defects, from discovery. If the goods are collected ex works from HEPLA, handover by the carrier is replaced by handover of the goods by HEPLA. The notice must be given in text form and must include a precise description of the quality or quantity deviations. The customer bears the full burden of proof for all conditions giving rise to a claim, in particular for the existence of the quality or quantity deviations themselves, for the time at which the quality or quantity deviations were discovered and for the timeliness of the notice.
10.6 Time limits for liability for defects
The time limit for liability for defects is one year from dispatch of the goods ex works. The time limit under 10.6 does not apply insofar as HEPLA is liable under No. 11 of these GTC.
10.7 Warranty conditions
The mere presentation of articles in the catalogue or on the website is to be regarded as a pure description of performance and in no way as a guarantee for the quality or durability of the goods. Guarantees are given only by written agreement.
11. Liability
11.1 Pursuant to the statutory provisions, HEPLA is liable without limitation for damages resulting from injury to life, body or health caused by an intentional or negligent breach of duty by HEPLA, its legal representatives or its vicarious agents, as well as for other damages caused by an intentional or grossly negligent breach of duty or fraudulent intent by HEPLA, its legal representatives or vicarious agents. In addition, HEPLA is liable without limitation for damages covered by liability under mandatory statutory provisions, such as the Product Liability Act.
11.2 For damages caused by simple negligence, HEPLA is liable insofar as the negligence concerns the breach of contractual obligations the fulfilment of which is of particular importance for achieving the purpose of the contract or whose fulfilment first makes the proper execution of the contract possible and on whose fulfilment the contractual partner may regularly rely; liability is, however, limited to the foreseeable, contract-typical, direct average damage.
11.3 In the case of slightly negligent breach of immaterial contractual obligations, HEPLA is not liable to entrepreneurs.
11.4 Any further liability is excluded irrespective of the legal nature of the claim asserted; this also applies, among other things, to claims in tort.
11.5 Insofar as liability is excluded or limited above, this also applies to the personal liability of employees, workers, staff and vicarious agents.
12. Corrections and proofs
12.1 Changes caused by illegibility of the customer's manuscript or required in deviation from the print template are charged according to the working time spent on them. Proofs and pre-print samples must be checked by the customer for typesetting and other errors, marked with the print approval and returned to HEPLA. HEPLA is not liable for errors overlooked by the customer — in particular, not for spelling errors not detected by the customer.
12.2 Texts or changes transmitted by telephone require the customer's confirmation in text form. If the customer refuses to receive a proof, HEPLA is liable for typesetting errors only on grounds of intent or gross negligence.
12.3 For print orders and supplied print templates, HEPLA is not obliged to provide the customer with a proof. HEPLA assumes no liability for the design of the print templates.
13. Material provided by the customer
Material procured by the customer, regardless of type, must be delivered free of charge to HEPLA. Receipt will be confirmed without HEPLA assuming any warranty for the accuracy of the quantity stated as delivered. When paper or cardboard is provided by the customer, packaging material and waste remain the property of HEPLA.
14. Copyrights, rights of use
14.1 All copyright-related rights of use of any kind and for any purpose in HEPLA's own sketches, drafts, originals, films and the like remain with HEPLA, subject to any express agreement to the contrary.
14.2 Production tools such as films, printing plates, clichés, screens, dies and tools remain the property of HEPLA. Templates, fair copies and the like sent to HEPLA remain at HEPLA's premises unless return shipment is expressly requested in the order.
14.3 The customer warrants that it is the holder of the rights it has designated and that its order does not infringe the protective rights of third parties. When using customer-supplied templates, HEPLA assumes that they are not encumbered with third-party rights and/or that the customer has the right of use required for the order. HEPLA is not liable for infringement of third-party protective rights for a delivery item produced according to the customer's drawings, developments or other specifications.
14.4 If the customer is held liable for infringement of third-party rights or for cessation of further use of the delivery item, it must inform HEPLA thereof without delay.
14.5 In the event of such claims, the customer must indemnify HEPLA on first demand against all claims by third parties on grounds of any kind of infringement of rights in connection with the order placed.
15. Final provisions
The law of the Federal Republic of Germany applies. The provisions of the UN Convention on Contracts for the International Sale of Goods do not apply. The exclusive place of jurisdiction for all disputes arising from this contract is HEPLA's place of business in 34576 Homberg (Efze), Germany. This also applies if the customer has no general place of jurisdiction in Germany or if the customer's place of residence or habitual abode is not known at the time the action is filed.