Terms of service

GENERAL TERMS AND CONDITIONS (GTC)

of hey circle GmbH, Augustenstrasse 39, 80333 Munich, Germany, represented by its Managing Director Doris Diebold,

registered with the Local Court (Amtsgericht) of Munich, Commercial Register No. HRB 266 615, VAT ID No. DE344480839

(hereinafter referred to as "hey circle")

E-mail: support@heycircle.com

1. Subject Matter of the Agreement; Scope of Application

1.1

hey circle is a provider of reusable shipping solutions designed to establish reusable packaging in parcel shipping in partnership with merchants. Depending on the respective offer, the shipping packaging is either rented out or sold to merchants in the specified quantities and sizes.

1.2

hey circle enters into contracts exclusively with businesses, i.e. natural or legal persons or partnerships with legal capacity acting in the exercise of their commercial or independent professional activity when concluding a legal transaction (Section 14 German Civil Code (BGB)). To verify the customer's status as a business, hey circle may request appropriate documentation (e.g. a business registration certificate).

1.3

These General Terms and Conditions apply to all declarations of intent, contracts, legal transactions and quasi-legal transactions between hey circle and its customers (hereinafter referred to as the "Customer"). Any terms and conditions of the Customer that deviate from these GTC shall not apply. Any confirmation or reference by the Customer to its own terms and conditions of business and/or purchase is hereby expressly rejected and shall not become part of any agreement unless expressly confirmed by hey circle in writing.

2. Conclusion of Contract

Information contained in catalogs and on the hey circle website does not constitute a binding offer. As a rule, hey circle submits a binding offer to the Customer for the conclusion of a contract. The Customer may accept this offer within the period specified in the offer or, unless otherwise stated, within two weeks by means of an explicit declaration of acceptance. Upon such acceptance, the contract shall be deemed concluded.

3. Prices and Shipping Costs

Unless otherwise agreed, the prices stated in the offer are exclusive of shipping costs and value-added tax (VAT).

4. Due Date, Payment, Default and Debt Collection

4.1

Unless otherwise agreed, payments under purchase agreements shall be due 10 days after receipt of the invoice by the Customer. Unless otherwise agreed, rental fees shall be due quarterly in advance.

4.2

Unless otherwise stated on the invoice, Customers may make payment by bank transfer (Account Holder: hey circle GmbH, IBAN: DE80 4306 0967 1215 1500 00, BIC: GENODEM1GLS, Bank: GLS Gemeinschaftsbank eG), direct debit, or credit card.

Payment must be made in full and without deduction within the deadlines specified in Section 4.1.

For payments made via SEPA direct debit, hey circle will notify the Customer of the upcoming debit at least three business days in advance (the so-called “pre-notification period”). Customers are responsible for ensuring that sufficient funds are available in their accounts on the announced debit date.

4.3

hey circle reserves the right to exclude certain payment methods in individual cases or to deliver goods exclusively against advance payment.

For newly established business relationships, the first five deliveries shall generally be made against advance payment or payment upon delivery.

4.4

For returned direct debits, hey circle shall charge a flat fee of EUR 20.00 in addition to any actual bank charges and return fees incurred.

The Customer reserves the right to prove that hey circle suffered no damage or substantially less damage than claimed. The right to claim further damages remains unaffected.

No return fee shall be charged if the debit attempt was made on a date other than the date announced by hey circle.

In the event of returned direct debits, hey circle shall be entitled to suspend further deliveries until all outstanding claims have been settled in full.

4.5

Customers shall be deemed in default of payment without the need for a reminder if payment is not received by hey circle within the period specified in Section 4.1 following receipt of the invoice by the Customer.

In the event of late payment, hey circle shall charge a reminder fee of EUR 10.00. hey circle further reserves the right to charge default interest at the legally permissible rate.

hey circle also reserves the right to engage a debt collection agency to recover outstanding receivables if invoices are not paid on time. All costs arising from the involvement of a debt collection agency shall be borne by the Customer and/or debtor.

The Customer reserves the right to prove that hey circle suffered no damage or less damage than the aforementioned lump-sum amount. The right to claim the statutory lump-sum compensation pursuant to Section 288 (5) of the German Civil Code (BGB) and any additional damages shall remain unaffected. Any lump-sum compensation pursuant to Section 288 (5) BGB shall be offset against reminder fees charged under sentence 2 above.

4.6

In the event of payment default and/or a significant deterioration in the Customer's financial circumstances, hey circle may declare all outstanding claims immediately due and payable and may, at its sole discretion, require payment upon delivery or advance payment for deliveries and services not yet performed.

hey circle shall, in particular, assume a deterioration in the Customer's financial circumstances if unsatisfactory credit information regarding the Customer is received.

4.7

Notwithstanding any contrary instructions from the Customer, hey circle shall be entitled to apply payments first to older outstanding debts and shall inform the Customer of the allocation made.

If costs and interest have already accrued, hey circle shall be entitled to apply payments first to costs, then to interest, and finally to the principal claim.

5. Delivery Periods; Grace Periods; Place of Delivery; Force Majeure

5.1

Delivery periods are specified in the respective offer issued by hey circle. Any stated delivery periods shall not be considered fixed deadlines unless expressly agreed otherwise.

5.2

If no delivery period has been agreed, hey circle shall deliver the ordered shipping solutions without undue delay and no later than 30 days after conclusion of the contract or, in the case of advance payment, within 30 days after receipt of payment.

The delivery period shall be deemed met if the goods have left the warehouse within the applicable period.

5.3

If the delivery period is exceeded, the Customer shall grant hey circle a reasonable additional period for performance.

5.4

The place of delivery shall be specified by the Customer in its request submitted to hey circle.

5.5

Delivery periods shall be extended by a reasonable period in cases of force majeure and unforeseeable circumstances occurring after conclusion of the contract which are beyond hey circle's control (e.g. pandemics, natural disasters, war, operational disruptions, power outages, etc.).

This shall also apply where such circumstances affect suppliers of hey circle.

If such disruption continues for more than twelve weeks, either party shall be entitled to withdraw from the contract.

Claims for damages arising from force majeure events are excluded.

6. Special Provisions for the Purchase of Goods

Where the Customer has agreed with hey circle to purchase goods, the following additional provisions shall apply:

6.1 Non-Delivery by Upstream Suppliers

6.1.1

If the ordered goods are unavailable or temporarily unavailable despite hey circle having entered into a sufficient covering transaction, hey circle shall inform the Customer thereof without undue delay after the order has been placed.

Until hey circle receives delivery from its upstream supplier, hey circle shall be released from its obligation to perform, unless hey circle is responsible for the non-delivery by the upstream supplier.

6.1.2

In the event of withdrawal from the contract, any amounts already paid towards the purchase price shall be refunded without undue delay.

Claims for damages by the Customer shall be excluded unless hey circle is responsible for the non-delivery by the upstream supplier.

6.2 Place of Performance, Delivery and Transfer of Risk

6.2.1

The place of performance shall be the registered office or warehouse of hey circle.

6.2.2

Unless otherwise agreed, where delivery is made to a location other than the place of performance, the risk of accidental loss or accidental deterioration of the goods shall pass to the Customer no later than upon handover of the goods to the commissioned transport company.

This shall also apply where hey circle has assumed the transportation costs.

6.2.3

If the Customer orders several items which cannot be shipped together due to immediate unavailability, hey circle shall deliver the goods in partial deliveries according to availability, unless partial delivery is clearly of no interest to the Customer due to the functional interdependence of the items or for other evident reasons.

Where the Customer bears the shipping costs, such costs shall only be charged once in the aforementioned cases.

6.2.4

Delivery shall be made by parcel service or freight carrier.

Unless otherwise agreed, goods delivered by freight carrier shall be delivered curbside ("kerbside delivery"). Any additional transportation services may be agreed directly with the carrier. Any resulting additional costs shall be paid directly by the Customer to the carrier.

6.3 Acceptance and Delay in Acceptance

The Customer is obliged to accept the goods (see Section 6.4.1).

If the Customer fails to accept the goods even after being granted a reasonable grace period, hey circle shall be entitled to claim liquidated damages amounting to:

  • 20% of the agreed purchase price for standard goods; and
  • 100% of the agreed purchase price for goods customized for the Customer,

unless the Customer proves that hey circle suffered no damage or significantly less damage than the stated lump-sum amount.

The costs of refused or uncollected shipments shall be charged to the Customer.

6.4 Inspection and Notification Obligations

6.4.1

The Customer shall inspect the goods immediately upon receipt and shall notify hey circle without undue delay, and no later than ten (10) business days after receipt, if any defect becomes apparent.

If the Customer fails to provide such notice, the goods shall be deemed approved, unless the defect was not identifiable during the inspection.

If such a hidden defect becomes apparent at a later stage, the Customer must notify hey circle without undue delay after discovery. Otherwise, the goods shall also be deemed approved with regard to such defect.

6.4.2

Any notice of defects must be submitted in writing or in electronic form (e.g. by e-mail) and must include a detailed description of the defect together with photographs of the affected products.

As a guideline, such notice should be submitted no later than ten (10) business days after receipt of the goods or, in the case of hidden defects, after their discovery.

The obligation to notify defects without undue delay shall remain unaffected.

6.5 Defects; Warranty

6.5.1

hey circle warrants that the goods provide adequate protection against damage to products suitable for shipment when used as transport packaging and thereby ensure their transportability.

The Customer acknowledges that reusable shipping packaging is a product subject to minor dimensional variations. Deviations in the dimensions of shipping bags and boxes of up to 4 mm in height, width, or length shall therefore not constitute a material defect.

6.5.2

The shipping packaging is intended for repeated use within a reusable system for deliveries and returns.

The goods are generally intended to be used by the Customer for shipping its own products. Any commercial resale of the goods to third parties requires the prior express consent of hey circle.

Signs of wear and tear resulting from the intended use of the goods after acceptance by the Customer (e.g. scratches, abrasion of the surface lamination, adhesive residue, marker pen markings, or fraying of edges) shall not constitute material defects.

6.5.3

The warranty period shall be one (1) year from delivery of the goods to the Customer.

Statutory limitation periods for recourse claims pursuant to Section 445b of the German Civil Code (BGB) shall remain unaffected.

The aforementioned warranty period shall not apply in cases of intent, fraudulent concealment of defects, or where hey circle has expressly guaranteed a specific quality or characteristic of the goods.

Furthermore, the limitation shall not apply to claims arising from injury to life, body, or health, claims under the German Product Liability Act (Produkthaftungsgesetz), grossly negligent breaches of duty, or culpable breaches of essential contractual obligations, i.e. obligations whose fulfillment is essential for the proper performance of the contract and on whose compliance the Customer may regularly rely, and the breach of which would jeopardize the achievement of the contractual purpose.

6.5.4

Warranty claims shall not apply to damage occurring after delivery of the goods due to normal use, ordinary wear and tear, or use within regular operational circulation.

Warranty claims are likewise excluded for damage caused by improper use, overloading, improper storage, transport damage, external influences, or modifications made to the goods by the Customer or third parties.

There shall be no obligation to provide free replacement goods or repairs for damage or functional impairments resulting from the operational use of the products unless a material or manufacturing defect existing at the time of delivery can be proven.

6.5.5

In the event of a defect, the Customer shall grant hey circle a reasonable period for subsequent performance (cure).

The Customer shall make the goods available to hey circle for the purpose of such subsequent performance.

hey circle shall be entitled to refuse the form of subsequent performance chosen by the Customer if it would involve disproportionate costs. This shall particularly apply where:

  • the costs of subsequent performance exceed the value the goods would have if free from defects;
  • the costs of subsequent performance exceed the reduction in value caused by the defect; or
  • an alternative form of subsequent performance is less costly and does not result in significant disadvantages for the Customer.

6.5.6

If individual goods are defective, hey circle reserves the right, at its discretion, either to refund a proportionate part of the purchase price relating to the defective item or to replace defective goods collectively.

6.6 Retention of Title

6.6.1

The delivered goods shall remain the property of hey circle until full payment of the purchase price has been received.

Furthermore, hey circle retains ownership of the delivered goods until all claims already existing at the time of conclusion of the contract, including all claims arising from follow-up orders and repeat orders (hereinafter collectively referred to as the “Secured Claims”), have been fully satisfied.

6.6.2

The Customer hereby assigns to hey circle, by way of security, all claims arising from any resale of the goods against its purchasers in full.

The Customer shall remain revocably authorized to collect such claims.

hey circle shall only revoke this authorization and collect the assigned claims itself if the Customer defaults on its payment obligations towards hey circle or if insolvency proceedings are initiated against the Customer’s assets.

6.6.3

Upon request of the Customer, hey circle shall release existing securities to the extent that their value exceeds the Secured Claims by more than twenty percent (20%).

The selection of the securities to be released shall be at the sole discretion of hey circle.

6.6.4

In contracts where the delivered goods are subject to retention of title, hey circle shall be entitled to withdraw from the contract if the Customer defaults on payment of the purchase price or any Secured Claims exceeding EUR 250.00.

This right of withdrawal shall be limited to contracts where the value of the delivered goods does not exceed 120% of the outstanding Secured Claims.

7. Special Provisions for the Rental of Goods

Where the Customer has agreed with hey circle to rent goods, the following additional provisions shall apply:

7.1 Subject Matter of the Rental Agreement; Characteristics of the Goods

7.1.1

Where the rental of goods has been agreed, hey circle shall provide the rental items specified in the offer to the Customer for the agreed rental period in return for payment.

hey circle shall deliver the rental items to the address specified by the Customer within the Federal Republic of Germany.

During the rental period, hey circle shall remedy defects in the goods and, at its own expense, collect the goods after the end of the rental period.

7.1.2

With regard to the characteristics of the goods, Sections 6.5.1 and 6.5.2 of these GTC shall apply accordingly.

7.2 Rental Period; Termination

7.2.1

The parties shall agree on the rental period specified in the offer.

Unless otherwise agreed, the rental period shall be two (2) years from delivery of the goods.

7.2.2

Unless otherwise agreed, the rental period shall automatically renew for successive periods of one (1) year unless either party terminates the agreement by giving three (3) months' notice prior to the end of the respective contractual term.

7.2.3

The parties' right to terminate the agreement for cause without notice shall remain unaffected.

For hey circle, good cause shall exist in particular if:

  • the Customer breaches any provision of Section 7.5; or
  • the Customer is more than fourteen (14) days overdue in paying the monthly rental fee, whether in whole or in part.

Termination shall not affect hey circle's claims for outstanding rental payments, default interest, or any other damages arising from the Customer's delay.

7.2.4

Upon termination of the agreement, the Customer shall return the rental items to the hey circle warehouse at its own expense.

Unless otherwise agreed, the return address shall be:

hey circle GmbH
c/o Brangs + Heinrich GmbH
Felder Straße 79–81
42651 Solingen
Germany

If the return of the rental items is delayed for reasons attributable to the Customer, the Customer shall continue to pay the agreed rental fees beyond the agreed rental period until the rental items are made available for collection.

7.3 Rental Fees, Operating Costs and Due Dates

7.3.1

Unless otherwise agreed, rental fees shall be calculated per rental item and rental period and shall be stated net of VAT, plus applicable value-added tax.

7.3.2

If the rental period begins during an ongoing calendar month, the rental fee for that month shall be charged on a pro rata basis.

7.3.3

The Customer shall bear all operating costs arising from the use of the rental items, including, without limitation:

  • shipping costs;
  • cleaning costs for the rental items; and
  • costs relating to the logistical preparation of the rental items for subsequent reuse and shipment.

7.3.4

Rental fees shall be payable monthly in advance.

The due date for payment shall be governed by Section 4.1, sentence 2 of these GTC.

7.4 Additional Rentals

The rental of additional rental items shall at all times be subject to availability.

7.5 Use of Rental Items; Notification of Defects

7.5.1

The Customer shall use the rental items exclusively for the following purposes:

  • as shipping packaging for suitable products shipped to end customers, including the return shipment of empty rental items and product returns; and
  • for the transport of suitable products in B2B shipments or the Customer's internal logistics operations.

7.5.2

The maximum permissible load of a rental item must not exceed the maximum weight specified on the website for the respective rental item.

If the Customer exceeds the maximum load capacity, the Customer shall be liable for all resulting damages, including damage to:

  • the rental item;
  • transported goods; and
  • third-party property or persons.

In such cases, no claim for free replacement or free repair shall exist.

7.5.3

Any use of the rental items for purposes other than those specified above requires the prior written consent of hey circle.

7.5.4

In the event of a culpable breach of any provision of Section 7.5, hey circle shall be entitled to terminate the rental agreement with immediate effect.

7.5.5

The Customer may offer the rental items to its online shop customers for use, either free of charge or for consideration, or may offer to sell the rental items to such customers.

Section 6.5.2 sentences 2 and 3 shall apply accordingly.

The rental agreement shall terminate with respect to any rental item that is sold.

The Customer shall pay hey circle the prices applicable to sold rental items in accordance with Section 7.7.4.

The rental or sale of rental items to any other third parties is not permitted.

In all cases where rental items are provided to third parties for use, the Customer shall remain liable for any loss of or damage to the rental items.

The Customer shall comply with all additional usage instructions issued by hey circle.

7.5.6

Unless the Customer is expressly permitted to use designated areas of the goods for branding purposes, the Customer shall not be entitled, without hey circle's prior consent, to modify the rental items (e.g. for marketing or repair purposes) or alter or remove any labels, stickers (e.g. barcodes), markings, or inscriptions applied by hey circle.

7.6 Defects; Notification

7.6.1

Upon delivery, the Customer shall inspect the rental items without undue delay with regard to quantity, size, externally visible transport damage, and any other immediately recognizable defects.

Any apparent defects must be reported to hey circle within ten (10) business days after delivery. Hidden defects must be reported within ten (10) business days after their discovery.

In all other respects, Section 377 of the German Commercial Code (HGB) shall apply accordingly.

7.6.2

No claims for defects shall arise in the event of only insignificant deviations of the condition or suitability of the rental item from the contractually agreed condition or suitability.

Likewise, claims arising from such defects shall be excluded where the deviations from the agreed condition result from improper use of the rental item or use under operating conditions not agreed upon.

The same shall apply to deviations caused by special external influences beyond hey circle's control and not contemplated under the contract.

In all other respects, Sections 6.5.1 and 6.5.2 concerning defects and warranty shall apply accordingly.

7.6.3

If a defect in the rental items occurs during the rental period, the Customer shall notify hey circle of such defect without undue delay in writing or in electronic form.

Only in such cases shall the Customer be released from the obligation to pay rent for the defective rental items as of the respective month-end.

7.6.4

hey circle reserves the right to collect defective rental items at its own expense and, where possible and subject to available capacity, replace them only if the quantity of defective rental items amounts to at least:

  • 5% of all rented boxes; and
  • a minimum of ten (10) units.

For the period during which the Customer does not have access to the full number of rental items, the rental fee shall be reduced proportionately.

7.6.5

Claims by the Customer for reimbursement of expenses (e.g. substitute performance pursuant to Section 536a (2) of the German Civil Code (BGB)) or for permission to remove installed facilities shall become time-barred three (3) months after termination of the rental agreement.

Claims under Section 536a (1) BGB shall become time-barred one (1) year after the claim arises and the Customer becomes aware of the defect.

The aforementioned shortened limitation periods shall not apply in the cases specified in Section 8.3.

7.7 Customer Liability in Rental Relationships

7.7.1

The Customer, as lessee, shall be liable to hey circle for any damage caused culpably by:

  • the Customer;
  • persons employed by the Customer; or
  • persons coming into contact with the rental item with the Customer's consent,

where such damage results from improper or negligent handling, excessive use, or special external influences.

The burden of proof shall lie with the Customer to demonstrate that the respective damage resulted solely from the contractual use of the rental items and was not attributable to the Customer.

7.7.2

In the case of damage to the rental item that would not ordinarily result solely from normal contractual wear and tear, the Customer shall bear the burden of proof that the deterioration of the rental item was neither caused nor culpably contributed to by the Customer, provided that the source of the damage may reasonably be assumed to originate from an area under the Customer's direct control, supervision, and custody.

7.7.3

The Customer shall inform hey circle on a monthly basis of any loss of rental items.

7.7.4

In the event of the loss of a rental item, the Customer's obligation to provide compensation shall be governed by the respective offer.

8. Liability of hey circle

8.1

In rental relationships, hey circle's liability shall be limited to intent and gross negligence in accordance with Section 599 of the German Civil Code (BGB).

Any strict liability of hey circle pursuant to Section 536a (1) BGB for defects already existing at the time of conclusion of the contract is excluded.

8.2

Subject to the provisions set forth below, any claims for damages arising from breaches of contractual obligations, tortious acts, or claims for reimbursement of futile expenses shall be excluded both against hey circle and its legal representatives, employees, agents, and vicarious agents, unless the damage was caused intentionally or through gross negligence.

8.3

The limitations of liability set out in Sections 8.1 and 8.2 shall not apply:

  • in the event of a breach of essential contractual obligations (see Section 6.5.3, final paragraph);
  • in cases involving injury to life, body, or health;
  • where damage results from the absence of a guaranteed characteristic or quality; or
  • where liability arises under the German Product Liability Act (Produkthaftungsgesetz).

8.4

In the event of liability for damages arising from a slightly negligent breach of essential contractual obligations, and in cases of grossly negligent breaches of non-essential contractual obligations, liability shall be limited to the foreseeable damage typical for the contract.

This limitation shall not apply in the cases set out in Section 8.3.

8.5

The Customer shall not be entitled to claim damages resulting from the avoidance of a contract by hey circle due to innocent mistakes, printing errors, or transmission errors that entitle hey circle to contest or avoid the relevant declaration.

9. Set-Off and Right of Retention

9.1

The Customer shall not be entitled to set off claims that are not directly connected to the reciprocal obligations of the parties under the contract (synallagmatic claims).

This prohibition of set-off shall not apply where the Customer's counterclaims are:

  • undisputed by hey circle;
  • finally adjudicated by a court of competent jurisdiction; or
  • ready for decision.

9.2

The Customer shall not be entitled to exercise any right of retention unless one of the exceptions set out in Section 9.1, sentence 2 applies.

10. Recycling at the End of the Product Life Cycle

In order to ensure proper disposal in accordance with the sustainable purpose of hey circle's reusable shipping solutions, Customers may return reusable shipping bags and boxes to hey circle free of charge for reuse or recycling within the circular materials economy.

For rental items, return shipment is mandatory.

Section 7.6.4 shall apply accordingly to the return process.

Individual reusable shipping solutions cannot be accepted.

The shipping costs for returns within the Federal Republic of Germany shall be borne by hey circle.

11. Data Protection

hey circle's data protection practices comply with the requirements of the General Data Protection Regulation (GDPR), the German Federal Data Protection Act (BDSG), and the German Telemedia Act (TMG).

hey circle shall use personal data provided by the Customer, including name, address, telephone number, fax number, and e-mail address, exclusively for processing orders and managing other contractual relationships with the Customer.

Further details can be found in the Privacy Policy available on the hey circle website.

12. Place of Jurisdiction

The exclusive place of jurisdiction for all disputes arising out of or in connection with the contract between the parties shall be Munich, Germany.

This shall also apply if, after conclusion of the contract, the Customer relocates its registered office or habitual residence outside the scope of the German Code of Civil Procedure (ZPO), or if the Customer's registered office or habitual residence is unknown at the time legal proceedings are commenced.

13. Final Provisions

13.1

Any oral agreements, side agreements, or other arrangements between the parties shall be confirmed by hey circle in writing or in text form.

13.2

Should one or more provisions of these General Terms and Conditions be or become invalid, the validity of the remaining provisions of both the contract and these General Terms and Conditions shall remain unaffected.

The Customer and hey circle undertake to replace the invalid provision with a valid provision that most closely reflects the economic purpose of the original provision.

13.3

The laws of the Federal Republic of Germany shall apply exclusively.

The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and German private international law is expressly excluded.

Disclaimer

This document is a translation of the original German General Terms and Conditions (GTC) of hey circle GmbH and is provided for convenience and informational purposes only.

In the event of any discrepancy, inconsistency, ambiguity, or conflict between this English translation and the original German version, the German version shall prevail and remain the sole legally binding version.

Original German GTC: https://www.heycircle.com/policies/terms-of-service