- Scope of application; Form
1.1 These General Terms of Business (GTB) apply to all orders placed through the online shop of Jakob Hülsen GmbH & Co. KG (‘Jakob Hülsen’) having the URL https://huelsen.de/shop/. They apply only if the customer is an entrepreneur as defined under section 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), a legal entity under public law, or a special fund under public law. The offers are directed exclusively to entrepreneurs, not consumers. Only entrepreneurs, legal entities under public law, or special funds under public law may place orders through Jakob Hülsen’s online shop.
1.2 Unless otherwise agreed, the GTB apply as a framework agreement in the version that is valid when the customer’s order is placed or, in any case, in the version most recently communicated to the customer in text form. The GTB will also apply to similar contracts in the future even if Jakob Hülsen does not refer to the GBT again each time.
1.3 These GTB apply exclusively. Any of the customer’s general terms of business that oppose, supplement, or deviate from these GTB will become a contract component only if and to the extent that Jakob Hülsen expressly consents to their applicability. This requirement for consent applies in every case: even if, for example, Jakob Hülsen performs the contractually owed service for the customer unconditionally while knowing of the customer’s GTB.
1.4 References to the applicability of statutory regulations are made only for clarification purposes. This means those statutory provisions will apply even without such clarification unless they are directly altered or expressly excluded in these GTB.
- Definitions
2.1 For the purposes of these GTB, a ‘consumer’ means an individual who enters into a legal transaction for a purpose that mostly lies outside their commercial or independent professional activity (section 13 BGB).
2.3 For the purposes of these GTB, a ‘merchant’ means either someone who operates a commercial business (section 1 of the German Commercial Code, Handelsgesetzbuch, HGB) or someone who arranges for the name of their company to be entered in the Commercial Register (section 2 HGB).
2.3 A merchant within the meaning of these GTC is either a person who operates a commercial enterprise (§ 1 HGB) or a person who has the name of his enterprise entered in the Commercial Register (§ 2 HGB).
- Entering into a contract by placing orders through the online shop
3.1 When orders are placed through Jakob Hülsen’s online shop, the presentation of the goods in the online shop does not constitute a legally binding offer, but an invitation to place an order.
3.2 The customer can select products from the assortment in the online shop and collect them in their digital shopping basket. On the order completion page, the customer receives an overview of the selected products, the costs, the address data, and the payment method they have specified. There, the customer has the opportunity to identify and correct input errors by activating the appropriate buttons before submitting the contract declaration. By activating the ‘Complete Purchase’ button, the customer makes a binding offer to purchase the goods found in their shopping basket. Then, Jakob Hülsen will immediately email the customer an automatic receipt confirmation that lists the order once more. The automatic receipt confirmation documents only the fact that Jakob Hülsen has received the order. It does not constitute any acceptance of the customer’s purchase offer. The purchase contract is formed only if Jakob Hülsen accepts the purchase offer by emailing a separate order confirmation or by shipping the goods.
- Storing the contract text; Contract language
4.1 If an order is placed through the online shop, Jakob Hülsen will store the contract text after the contract is concluded. The customer can print out the contract text before placing the order by using the print function of their browser in the final step of the order. If a customer has set up a customer account, they can also view the contract text at any time online through that account under the menu item ‘My Account’.
4.2 The contract languages are German and English.
- Subject matter of the contract; Performance period
5.1 The subject matter of the contract, the scope of services, and the statement of work are primarily set forth in the individual contract in question or the product description in the online shop.
5.2 Information on the performance date is nonbinding unless Jakob Hülsen has promised a deadline or time limit in writing as binding.
5.3 If Jakob Hülsen cannot comply with binding performance dates for reasons outside its control (unavailability of the service), Jakob Hülsen shall notify the customer thereof, and of the anticipated new performance date, without undue delay. If the service is still unavailable by the new performance deadline, Jakob Hülsen may withdraw from the contract in whole or in part, in which case Jakob Hülsen shall reimburse any consideration the customer has already paid without undue delay.
5.4 Whether a default in performance has occurred is determined by the statutory provisions. But the customer must send a warning in any case.
- Delivery; Transfer of risk; Acceptance; Default in acceptance
6.1 Unless otherwise agreed, Jakob Hülsen may choose the type of shipping (including without limitation the transport company, shipping route, and packaging).
6.2 The risk of accidental loss and accidental deterioration of the goods will be transferred to the customer when the goods are handed over, if not before. If a mail-order purchase is made, however, the risk of accidental loss and accidental deterioration of the goods, and the risk of delay, will be transferred when the goods are delivered to the carrier, the shipper, or the person or institution otherwise appointed to execute the shipment.
- Retention of title
7.1 When the sold goods are delivered, Jakob Hülsen will retain ownership of them until all of Jakob Hülsen’s present and future receivables arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
7.2 The goods subject to retention of title may not be pledged to any third parties or transferred by way of security until the secured claims have been paid in full. The customer shall notify Jakob Hülsen without undue delay if a motion to initiate insolvency proceedings has been made or if third parties have interfered with the goods belonging to Jakob Hülsen (through seizures, for example).
7.3 If the customer breaches the contract (especially by not paying the due purchase price), Jakob Hülsen may withdraw from the contract sim. to the statutory provisions, demand that the goods be returned due to the retention of title, or both. Demanding that the goods be returned is not necessarily deemed a declaration of withdrawal; instead, Jakob Hülsen may merely demand that the goods be returned while reserving its right to withdraw. If the customer fails to pay the due purchase price, Jakob Hülsen may assert these rights only if (1) it first grants the customer a reasonable deadline for paying and that deadline expires to no avail or (2) such a deadline can be dispensed with under the statutory provisions.
7.4 Until withdrawal is made sim. to (c) below, the customer may resell the goods subject to retention of title, process them, or both, within the ordinary course of business. In this case, the following provisions will apply in supplement.
(a) The retention of title extends to the products arising through the processing, mixing, or combining of the goods, at their full value, whereby Jakob Hülsen will be deemed their producer. If the goods are processed, mixed, or combined with goods owned by third parties, Jakob Hülsen will acquire co-ownership in the ratio of the invoice value of the processed, mixed, or combined goods. Otherwise, the new product is governed by the same regulations as the delivered goods subject to retention of title.
(b) The customer hereby assigns to Jakob Hülsen by way of security the claims against third parties arising from the resale of the goods or the product, either as a whole or in the amount of any co-ownership share sim. to the preceding paragraph. Jakob Hülsen accepts that assignment. The customer’s obligations specified in paragraph 2 also apply in view of the assigned claims.
(c) Either the customer or Jakob Hülsen may collect the claim. Jakob Hülsen shall not collect the claim as long as the customer complies with its payment obligations toward Jakob Hülsen, the customer’s ability to pay is not compromised, and Jakob Hülsen has not asserted its retention of title by exercising a right sim. to paragraph 3. If this is the case, however, Jakob Hülsen may demand that the customer disclose to Jakob Hülsen the assigned claims and their debtors, give Jakob Hülsen all the information it needs to collect, hand over the associated documents, and notify the debtors (third parties) of the assignment. In this case, Jakob Hülsen may also revoke the buyer’s authorisation to resell and process the goods subject to retention of title.
(d) If the realisable value of the securities exceeds Jakob Hülsen’s claims by more than 10%, Jakob Hülsen shall release securities of its choice at the customer’s request.
- Remuneration and payment terms
8.1 Unless otherwise agreed in writing, Jakob Hülsen’s prices apply ex works, including packaging, plus VAT in the valid amount. Discounts may be deducted only based on a separate, written agreement.
8.2 The purchase price must be paid exclusively into the following account of Jakob Hülsen:
Bank: Sparkasse Krefeld
IBAN: DE25 3205 0000 0067 1070 11
BIC: SPKRDE33XXX
8.3 Unless otherwise agreed, the purchase price must be paid within 10 days after delivery. Default interest amounting to 8% above the respective base interest rate p.a. will be charged. The assertion of greater default damage remains reserved. Jakob Hülsen may demand payment in advance in certain individual cases. This depends on order volumes, the customer’s credit rating, and other factors.
8.4 The customer may set off its liabilities against one or more counterclaims only if those counterclaims have become res judicata, are uncontested or acknowledged by Jakob Hülsen, or are in a synallagmatic relationship with Jakob Hülsen’s claim.
- Liability of Jakob Hülsen
9.1 Unless otherwise specified in these GTB, including the following provisions, Jakob Hülsen will be liable for breaches of contractual and noncontractual obligations sim. to the statutory provisions.
9.2 Jakob Hülsen is liable for damages – regardless of legal grounds – within the bounds of fault-based liability for intent and gross negligence. In the event of ordinary negligence, Jakob Hülsen is liable only for the following, subject to statutory restrictions of liability (such as diligence in one’s own affairs; insignificant breach of duty):
- a) damage arising from injury to life, limb, or health,
- b) damage arising from a breach of a material contract obligation (an obligation is ‘material’ if it must be met to allow proper performance of the contract in the first place and the nonobligated party normally relies and may rely on its being complied with); in this case, however, Jakob Hülsen’s liability is limited to compensating for foreseeable damage typical of this type of contract.
9.3 The limitations of liability arising from 9.2 also apply to breaches of duty by or to the benefit of people for whose culpability Jakob Hülsen must be responsible sim. to statutory provisions. They do not apply insofar as Jakob Hülsen has fraudulently concealed a defect or has assumed a quality guarantee, or to claims asserted by the customer based on the German Product Liability Act (Produkthaftungsgesetz, ProdHaftG).
- Choice of law and forum
10.1 These GTB and the contractual relationship between Jakob Hülsen and the customer are governed by the laws of the Federal Republic of Germany excluding uniform international law, especially the CISG.
10.2 If the customer is a merchant for the purposes of the German Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction – including the international place of jurisdiction – for all disputes arising directly or indirectly from the contractual relationship is Jakob Hülsen’s registered office. In all cases, however, Jakob Hülsen may also bring an action at the customer’s registered office. Overriding statutory provisions, particularly those concerning exclusive competencies, remain unaffected.
- Final provisions
11.1 There are no oral side agreements.
11.2 The customer may assert a right of retention only based on counterclaims that have arisen from the respective contractual relationship.