General terms & conditions of business
Section 1 Scope of application
(1) These conditions of sale apply exclusively to entrepreneurs, to legal entities subject to public law or to special assets under public law as per Section 310 (1) of the Bürgerliches Gesetzbuch, the German Civil Code. We only recognise conditions of the customer which deviate from our own conditions of sale or which even oppose them if we have expressly agreed to their validity in writing beforehand.
(2) These conditions of sale shall also apply to all future business with the customer insofar as such business constitutes legal transactions of a similar nature (as a precautionary measure the conditions of sale should always be included in the confirmation of order).
Section 2 Offer and conclusion of contract
As far as an order can be regarded as an offer in accordance with Section 145 of the Bürgerliches Gesetzbuch, the German Civil Code, it is possible for us to accept this within two weeks.
Section 3 Submitted documents
We reserve proprietary rights and copyrights regarding all documents, such as bed patterns, calculations, sketches etc., that have been submitted to the Customer in connection with the placing of an order. Such documentation may not be made accessible to third parties unless we grant the Customer our express consent that he may do so. If we do not accept the offer/order of the Customer within the time frame as stated in Section 2, all these documents are to be returned to us without delay.
Section 4 Prices and payment
(1) Inasmuch as nothing has been agreed in writing to the contrary, our prices are ex works excluding packaging plus the relevant amount of value added tax. Packaging costs are invoiced separately.
(2) Payment of the purchasing price can only be effected by using the bank accounts stated.
(3) Provided that no other arrangement has been made, the purchasing price is to be paid net cash within 14 days. Interest on arrears is calculated to the amount of 8% above the relevant base interest rate per annum. We reserve the right to claim higher damages as a result of default in payment.
(4) Insofar as no fixed price agreement has been made, we reserve the right to make reasonable price changes to deliveries that are carried out 3 months or longer after the concluding of the contract. Such changes could result from alterations in labour costs, material costs or distribution expenses.
Section 5 Offsetting and rights of retention
The Customer is only then entitled to a form of offsetting if his counterclaims can be legally ascertained or if they are beyond dispute. The Customer is only authorised to exercise the right of retention insofar as his claim pertains to the same contractual relationship.
Section 6 Delivery time
(1) Commencement of the delivery time stated by us presupposes punctual and proper fulfilling of customer obligations. We reserve the right to object to unfulfilled contracts.
(2) Should a Customer be in default of acceptance or if he culpably violates any other obligation to co-operate, then we are entitled to demand compensation for any losses suffered by us and for all manner of additional expenses incurred. We also reserve the right to make further claims. If such aforesaid conditions prevail, the risk of accidental loss or of accidental deterioration of the goods will pass to the Customer at that time when he defaults on acceptance or on payment.
(3) In the event of a delay in delivery, all other legal claims and rights of the Customer shall remain unaffected.
Section 7 Passing of risks with goods in transit
If the Customer requests the goods to be sent to him, then at the time of dispatch to the Customer, at the very latest when the goods leave the factory/warehouse, the risk of accidental loss or of accidental deterioration of the purchased item passes to the Customer. This applies irrespective of whether or not goods are sent from the place of performance or irrespective of which party bears the freight costs.
Section 8 Retention of title
(1) We reserve the right to ownership of the goods shipped pending full and complete payment of all claims resulting from the delivery contract. This also applies to all future deliveries, even if we do not always expressly mention this condition. We are entitled to take back the purchased item if the Customer acts in a way contrary to his contractual obligations.
(2) As long as ownership has not passed to him, the Customer is obligated to handle and look after the purchased item in a careful manner. In particular, he is obliged at his own expense to insure the goods adequately and at their original value against theft, fire and water damage. If it is necessary to carry out maintenance and inspection work, the Customer has to arrange this at his own cost and in good time. As long as ownership has not passed to him, the Customer is obligated to inform us in writing and without delay if the item delivered is seized or subjected to any other third party intervention. Insofar as the third party is not in the position of reimbursing us for any judicial and extra-judicial costs incurred by a lawsuit in accordance with Section 771 of the ZPO, the German Code of Civil Procedure, the Customer shall be liable for any losses resulting.
(3) The Customer shall be entitled to resell the reserved goods in the normal course of business. The Customer shall however already assign to us the receivables from the purchaser resulting from the sale of the reserved goods to the amount of the final invoice sum agreed with us (including value added tax). This assignment applies irrespective of whether the purchased item has been resold with or without further processing. The Customer shall remain authorised to collect payment, also after assignment has taken place. Our authority to collect the receivables ourselves shall remain unaffected. We will, however, not collect the debt as long as the Customer meets his payment obligations from the proceeds received, if he is not in default of payment and, more especially, as long as no petition has been filed to open insolvency proceedings or payments have not been suspended.
(4) Processing, finishing or restructuring of the purchased item by the Customer is always carried out in the name of and on behalf of us. In such a case the Customer’s expectant right to the purchased item with the restructured element continues. If the purchased item is processed in conjunction with other items not belonging to us, then we acquire co-ownership of the new item in proportion of the purchased item’s objective value to the other finished items involved at the time of the finishing process. The same applies in the case of any blending or mixing of goods. If blending is performed in such a way as to show the item of the Customer as the main one, it shall be agreed that the Customer transfers co-ownership to us proportionately and holds in safekeeping the thus resulting sole ownership or co-ownership for us. In order to secure our claims against the Customer, the Customer also assigns such claims to us, claims accruing to him through the combination of goods subject to retention with real estate against a third party; we herewith accept this assignment.
(5) Should the Customer so wish, we undertake to release the securities to which we are entitled if their value exceeds the claims to be secured by more than 20%.
Section 9 Warranty, complaints and recourse/manufacturer regress
(1) The Customer’s warranty rights require that he shall fulfil the obligations pursuant to Section 377 of the German Commercial Code, in which is stated that he inspects the product in the due and proper manner, informing the supplier of any defects.
(2) Claims for defects lapse after 24 months following our delivery of the goods to our Customer. This clause does not apply to those orders for which the law in accordance with Section 438 (1)(2) of the Bürgerliches Gesetzbuch, the German Civil Code, (Buildings and Construction Materials), Section 479 (1) of the Bürgerliches Gesetzbuch, the German Civil Code (Right of Recourse) and Section 634a (1) of the Bürgerliches Gesetzbuch, the German Civil Code (Construction Faults) prescribes longer mandatory time limits. Prior to any returning of goods, it is imperative to obtain our agreement.
(3) If, despite all due care taken, the delivered goods exhibit a defect that was already present at the time of transfer of risk, we shall be allowed to choose either to repair the goods or to replace them, provided that the notice of defects was given in the required period of time. We shall always be given the opportunity to render subsequent performance within a reasonable amount of time. Rights of recourse remain unaffected by the preceding provision without restriction.
(4) If attempts at rectifying the defect fail, the Customer – without prejudice to any compensation claims – can withdraw from his contractual obligations or alternatively pay a reduced amount for the goods.
(5) The following do not constitute reasons for the lodging of complaints: a slight variance in the agreed nature of the product, a slight impairment of the product’s serviceability, normal wear and tear leading to damage occurring after the passing of risks and as a result of faulty or negligent handling, of excessive strain on the product, of unsuitable means of operation, of inadequate setting up, of an unsuitable base or as a result of special external influences which have not been provided for in the contract. If any maintenance work or alterations are incorrectly undertaken by the Customer or by third parties, these and their consequences are similarly not regarded as defects and do not warrant complaints.
(6) Claims made by the Customer for the purpose of subsequently meeting necessary expenses, especially transport, routing, labour and material costs, are excluded insofar as these expenses increase because the goods delivered by us have been taken, at a later date, to a location other than the Customer’s commercial establishment. This is valid unless such a transfer complies with usual practice, which has been stated beforehand.
(7) Rights of recourse for the Customer against us are only valid if the Customer has not made any agreement with his customer which exceeds the statutory claims and notification of defects. Furthermore, Paragraph 6 is accordingly valid in respect of the scope of the Customer’s right of recourse against the Supplier.
(8) In the event of fraudulent concealment of a defect or when a guarantee has been accepted for the quality of goods at the time of transfer of risks as stated in Section 444 of the Bürgerliches Gesetzbuch, the German Civil Code (Declaration by the Seller that the purchased item has certain characteristics at the time of transfer of risks and that the Seller assumes full responsibility for the consequences of any quality defects, irrespective of which party is at fault for such defects), the rights of the Customer comply exclusively with legal regulations.
Section 10 Miscellaneous
(1) These terms and the complete legal relations between the parties are subject to the law of the Federal Republic of Germany to the exclusion of UN sales law (CISG).
(2) The place of performance and the sole court of jurisdiction for all disputes arising out of these contractual terms and conditions shall be our business headquarters, provided that no other arrangements are stipulated in the confirmation of order.
(3) Amendments and supplements made to these terms and conditions require the written form in order to be effective. Even alterations to the written form clause are to be made in writing. Supplementary verbal agreements have not been concluded and therefore do not apply.
(4) Should individual stipulations of these terms and conditions be or become invalid or contain a loophole, the effectiveness of the other clauses remains unaffected.