1. Scope of application
The following General Terms and Conditions of Business (hereinafter referred to as the “General Terms & Conditions of Business”) shall apply to all of the supply business of Hallufix AG (hereinafter referred to as “Hallufix”) with customers who are consumers within the meaning of section 13 of the Bürgerliches Gesetzbuch [the German Civil Code], to the extent that no agreement to the contrary is reached.

2. Offers, the conclusion of an agreement and sales brochure
2.1 Any offers made by Hallufix and any sales brochures produced by Hallufix shall be subject to modification and shall constitute an invitation to the customer to place an order with Hallufix.

2.2 The order placed by a customer shall constitute a binding offer which Hallufix may accept within four weeks from the date of its receipt by issuing a written confirmation of acceptance of the order or by making the delivery.

2.3 The agreement shall come into existence when the customer receives from Hallufix the written confirmation of acceptance of the order or when the delivery is made.

3. INSTRUCTIONS IN RELATION TO CANCELLATION

3.1 The right to make a cancellation. THE CLIENT SHALL FOR A PERIOD OF ONE MONTH BE ENTITLED TO MAKE A CANCELLATION BY WITHDRAWING ITS CONTRACTUAL DECLARATION IN A WRITTEN FORM (E.G. BY LETTER, FAX OR E-MAIL) WITHOUT STATING ANY REASONS OR BY RETURNING THE GOODS. THIS PERIOD SHALL NOT BEGIN TO RUN BEFORE THE DATE ON WHICH THE GOODS ARE RECEIVED BY THE CUSTOMER AND ITS RECEIPT OF THE INSTRUCTIONS IN RELATION TO CANCELLATION IN A WRITTEN FORM. IN ORDER TO MAKE A CANCELLATION WITHIN SUCH PERIOD, IT SHALL BE SUFFICIENT TO DISPATCH THE NOTICE OF CANCELLATION OR THE GOODS IN DUE TIME. THE NOTICE OF CANCELLATION SHOULD BE SENT TO: Hallufix AG, Tulbeckstr. 32, D-81925 Munich; Tel: 0049 89 96057790; Fax: 0049 89 9605779-99; email: info@hallufix.com.

3.2 Consequences of cancellation. IN THE EVENT OF A VALID CANCELLATION THE PAYMENTS AND DELIVERIES MADE BY BOTH PARTIES SHALL BE RETURNED AND IF APPLIACBLE ANY BENEFITS RECEIVED (E.G. INTEREST) SHALL BE PAID OUT. IF THE CUSTOMER IS UNABLE TO RETURN ALL OR PART OF THE DELIVERY MADE TO IT, OR IF IT IS ONLY ABLE TO RETURN SUCH DELIVERY IN A DETERIORATED CONDITION, IT SHALL PAY APPROPRIATE COMPENSATION TO HALLUFIX. THIS PROVISION SHALL NOT APPLY IF THE DETERIORATION OF THE GOODS IS EXCLUSIVELY ATTRIBUTABLE TO AN INSPECTION OF THE GOODS, WHICH FOR EXAMPLE A CUSTOMER MIGHT CARRY OUT IN A RETAIL OUTLET. FURTHERMORE THE CUSTOMER MAY AVOID THE OBLIGATION TO PAY COMPENSATION BY NOT BEGINNING TO USE THE GOODS AS THEIR OWNER AND BY REFRAINING FROM ANYTHING WHICH MIGHT HAVE A NEGATIVE IMPACT ON THE VALUE OF THE GOODS.

3.3 Returns. GOODS WHICH ARE CAPABLE OF BEING SENT IN A PACKAGE MUST BE RETURNED. THE COSTS OF SUCH RETURN SHALL BE BORNE BY THE CUSTOMER, IF the VALUE OF the GOODS TO BE SENT BACK DOES NOT EXCEED 40.00 EUROS OR if, IN A CASE WHERE THE GOODS TO BE RETURNED COST A HIGHER PRICE, THE CUSTOMER HAS NOT PROVIDED CONSIDERATION OR MADE ANY PARTIAL PAYMENT ON THE DATE OF CANCELLATION, UNLESS THE GOODS AS DELIVERED DO NOT CORRESPOND TO THE GOODS ORDERED. OTHERWISE THE customer SHALL NOT be required TO BEAR THE COSTS OF ANY RETURNS. GOODS WHICH ARE NOT CAPABLE OF BEING SENT IN A PACKAGE SHALL BE PICKED UP FROM THE PREMISES OF THE customer.

END OF THE INSTRUCTIONS IN RELATION TO CANCELLATION. 

4. Prices and payment
4.1 The prices payable shall be those set out in the relevant current price list.

4.2 All of the pricing information provided by Hallufix shall be denominated in euros, including value-added tax at the prevailing statutory rate and plus transport and delivery costs.

4.3 Customs charges, consular fees and any other taxes, deductions and charges etc. which are payable pursuant to any foreign laws, as well as any costs associated therewith, shall be borne by the customer.

4.4 Hallufix shall ensure that any foreign packaging, weighing and customs regulations are complied with, to the extent that the customer provides precise information in relation hereto in good time. Any additional costs associated herewith shall be borne by the customer.

4.5 To the extent that no agreement to the contrary is reached, the invoices of Hallufix shall be payable once they are received by the customer and shall be settled immediately and in full, but within ten days from the date of receipt at the latest. The place of payment shall be the place of business of Hallufix.

4.6 Should the customer’s payment be delayed, Hallufix shall be entitled to demand default interest in the amount of 5 % per annum above base rate. Hallufix shall moreover be entitled to demand a higher rate of interest on any other legal ground or to assert any other claims.

4.7 The customer shall not be entitled to withhold payment pursuant to any counterclaims or set off any counterclaims, unless such counterclaims are undisputed or have become legally binding.

5. Delivery deadlines and force majeure
5.1 To the extent that the customer does not comply with its obligations to co-operate or does not punctually make any required advance payments, delivery deadlines shall be rescheduled accordingly. In the event of a culpable breach by the customer of any obligation to co-operate, and in particular in the event of non-acceptance of the goods, Hallufix shall be entitled to demand compensation for any loss suffered and additional expense incurred as a result hereof.

5.2 In the event of any delays in delivery due to unforeseen events which are beyond the control of Hallufix (e.g. due to a strike or lock-out, a disruption of operations or a delay in the procurement of materials as the result of a late delivery by any of our suppliers for which Hallufix is not responsible – which provision shall also apply to the suppliers of Hallufix –,  civil war, acts of terror, natural disasters, bans on import and exports, energy shortages or shortages of raw materials), the agreed delivery deadlines shall be extended for the duration of the unforeseen event causing the delay. Should it prove in the long term impossible for Hallufix to make the delivery as a result of force majeure, but for a period of four months at least, Hallufix shall be released from its obligation to make such delivery. In such an event the customer shall be entitled to withdraw from the agreement.

6. Place of performance, shipment and transfer of risk
6.1 To the extent that nothing is agreed to the contrary, the place of performance shall be the place of business of Hallufix.

6.2 If, at the request of the customer Hallufix itself takes over responsibility for the shipment of the goods or entrusts such shipment to a third party, the choice of the method of shipment and the choice of route shall be at the discretion of Hallufix. Packaging and shipment costs shall be invoiced separately to the customer, unless it has been expressly agreed that such costs shall be included in the prices charged by Hallufix. Deliveries shall only be insured at the express request of the customer and at its expense.

6.3 The risk of an eventual loss or deterioration of the goods shall be transferred to the customer the moment the goods leave the distribution warehouse of Hallufix, in the case of dispatch when they are handed over to the haulier, shipper or collecting party. If shipment is delayed by the customer, risk shall be transferred to the customer once Hallufix issues a notification of readiness for shipment.

7. Retention of title
7.1 The delivered goods shall remain the property of Hallufix until they are paid for in full. In the case of an open account, each respective demand for payment of an outstanding balance shall constitute a lien.

7.2 To the extent that the liquidable value of the liens held by Hallufix in the long term exceeds the sum of all secured claims by more than 10%, Hallufix shall at its discretion release an appropriate number of the liens.

7.3 If the retention of title is not valid in the form set out above pursuant to the laws of the country of destination, the customer shall co-operate in the creation of a lien for EADS which corresponds to the laws of its country.

8. The rights of the customer in the event of defects
8.1 Should the goods prove to be defective, the customer may at its discretion and by way of supplementary performance demand that any defect is remedied or that goods are delivered which are free of defects.

8.2 Hallufix may make such supplementary performance contingent upon the customer making a part of the contractually agreed payment which corresponds to the value of the defective goods. Hallufix may refuse supplementary performance in the manner requested if it involves disproportionately high costs.

8.3 If the remedy provided by Hallufix fails on two occasions, or if Hallufix refuses to provide both types of supplementary performance, or if Hallufix does not provide supplementary performance within an appropriate period which is stipulated by the customer, the customer shall be entitled to reduce the purchase price or to withdraw from the agreement. Moreover the purchaser may in lieu of performance demand the reimbursement of unnecessary expenditure incurred by it or compensation for any loss suffered. The right of the customer to withdraw from the agreement and to the payment of compensation in lieu of performance shall not be available should the defect in the goods be merely of an insignificant nature.

8.4 The customer shall not have any rights as the result of defects which are caused by normal wear and tear or by any treatment of the goods by the customer or by third parties which does not comply with any one of the stipulations set out in the instructions for use or other written recommendations provided by Hallufix (e.g. improper use, maintenance or storage), or which are of a purely visual nature.

8.5 Any claims which may be asserted by a customer shall expire two years from the date on which the goods are delivered.

8.6 Should a consumable item (e.g. a brace) have an average life cycle which is shorter than the prescription period in accordance with this clause (e.g. three months for a brace), the rights of the purchaser which arise pursuant to any defects must be asserted within the average life cycle. In the case of consumable items supplementary performance shall be limited to the exchange of the consumable item. The statutory prescription period applicable to fraudulently concealed defects shall not be affected hereby.

9. Liability
9.1 Hallufix shall have unlimited liability for acts of intentional and gross negligence, and in the event of death, physical injury or damage to health shall also have unlimited liability for acts of simple negligence.

9.2 Furthermore Hallufix shall also only be liable for simple acts of negligence to the extent that fundamental contractual duties (cardinal obligations) are breached, which liability shall be limited to foreseeable damage which is typical for the type of agreement entered into and to a maximum amount equivalent to the value of the goods which give rise to the damage. Cardinal obligations shall be deemed to mean those obligations which the agreement imposes upon a party to the agreement in accordance with the sense and purpose of the agreement, or those obligations with which compliance actually makes it possible properly to execute the agreement and upon which compliance a party to the agreement may duly rely.

9.3 Liability for indirect and unforeseeable damage, such as damage resulting from defects, lost profit, the loss of an opportunity to make savings and financial loss pursuant to the claims of third parties shall in the event of simple acts of negligence – save in the case of death, physical injury or damage to health – be excluded.

9.4 Any liability other than the liability provided for in these General Terms & Conditions of Business shall be excluded irrespective of the legal nature of the claim which is asserted.

9.5 The limitations on or exclusions of liability in accordance with sections 9.2, 9.3 and 9.4 shall not apply in the case of strict liability which is prescribed by statute regardless of negligence or fault, and in particular pursuant to a guarantee or the Produkthaftungsgesetz (the German Product Liability Law).

9.6 To the extent that the liability of Hallufix is excluded or limited in accordance with sections 9.2, 9.3 and 9.4, such exclusion or limitation shall also apply to the personal liability of its employees, workers, committees, representatives and servants.

10. Industrial property rights and copyright
10.1 Hallufix reserves without limitation all proprietary rights, industrial property rights and copyright in illustrations, drawings, technical specifications and other documentation (hereinafter referred to as “documentation”). Third parties may only be granted access to documentation once Hallufix has given its prior written consent.

10.2 Should a third party assert any valid claim against the customer pursuant to the breach of a protected proprietary right by goods delivered by Hallufix which have been used in accordance with the agreement, Hallufix shall at its discretion and at its own expense acquire a licence to use the relevant goods, or modify the goods in such a manner that a breach of a protected proprietary right no longer exists, or exchange the goods. To the extent that it is not possible or reasonable for Hallufix to do so, the statutory rights to withdraw from the agreement or to reduce the contract price shall be available to the customer. Claims for compensation shall only exist in accordance with section 8. Any claims which may be asserted by the purchaser shall expire within the prescription period set out in section 8.5.

10.3 The obligations of Hallufix pursuant to section 10.2 shall only apply to the extent that the customer immediately informs Hallufix in writing of any claims asserted by third parties, does not accept that it bears liability for the breach and all rights in relation to the taking of measures to defend and settle such claim are reserved to Hallufix. Should the customer cease using the goods on the grounds that it wishes to mitigate damage or for any other material reason, it shall notify the third party of this fact so that no acknowledgement of a breach of a protected proprietary right is associated therewith.

10.4 The customer may submit no claim to the extent that it itself is responsible for the breach of a protected proprietary right, or to the extent that the breach of a protected proprietary right is caused by a use of the goods which Hallufix did not foresee or when the goods are modified by the customer or when they are used together with products which have not been supplied by Hallufix.

11. Applicable law, place of performance, place of jurisdiction and severability clause
11.1 Any amendments or supplements to these General Terms & Conditions of Business shall require the written form. This provision shall also apply to the amendment of this clause requiring the written form.

11.2 All legal relations between Hallufix and the customer shall be governed exclusively by the laws of the Federal Republic of Germany subject to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (the CISG).

11.3 The sole place of jurisdiction for all disputes arising out of any commercial relationship shall be the place of business of Hallufix, to the extent that this is permitted by the law. 

11.4 Should any individual provisions of these General Terms & Conditions of Business or parts hereof be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions of these General Terms & Conditions of Business. In place of the invalid provision the parties shall insert a valid provision which from a factual, legal and commercial perspective replicates as closely as possible the invalid provision. The same procedure shall be followed should these General Terms & Conditions of Business prove not to contain a provision which they should contain.