General Terms and Conditions of Sale and Delivery
§ 1
Scope of application
(1) These General Terms and Conditions of Sale and Delivery shall only apply to contracts with entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law ("Customer").
(2) The contractual relationship between the Customer and us shall be governed exclusively by these General Terms and Conditions of Sale and Delivery. Any deviating terms and conditions of the Customer are hereby expressly rejected. These General Terms and Conditions shall also apply exclusively if we carry out the delivery to the Customer without reservation in the knowledge of conflicting or deviating terms and conditions of the Customer. Our General Terms and Conditions of Sale and Delivery shall apply in the version valid at the time of dispatch of our order confirmation, unless expressly agreed otherwise.
(3) Subject to an amendment of our General Terms and Conditions of Sale and Delivery, these contractual terms and conditions shall also form the basis of future contracts between us and the customer without requiring their renewed inclusion.
§ 2
Contractual declarations
(1) Unless the circumstances indicate otherwise, our offers are only invitations to the customer to submit definitive contractual offers to us ("invitatio ad offerendum"). We are entitled to accept contractual offers from the customer within three weeks by sending an order confirmation. During this period, the customer is bound by his contractual declarations. Our order confirmation is decisive for the content of the purchase contract.
(2) When accepting orders, we assume the creditworthiness of the customer and reserve the right in individual cases to make the acceptance of the customer's order dependent on the provision of a bank guarantee or liquidity commitment from the principal bank in the amount of the expected invoice amount. If the lack of creditworthiness only becomes known after conclusion of the contract, we may, after consultation with the customer, withdraw from the contract or demand security within one week.
(3) Contractual offers on our part are non-binding, unless otherwise stated in the order confirmation.
(4) All agreements made between us and the customer for the purpose of executing this contract must be documented in writing. Individual agreements, in particular collateral agreements, supplements or amendments made with the customer in individual cases shall take precedence over these General Terms and Conditions of Sale and Delivery, provided that the content of such deviating agreements has been made in writing or confirmed by us in text form.
§ 3
Prices
(1) Unless otherwise stated in the order confirmation, our prices are net (excluding VAT) "ex works". Value added tax shall be added at the applicable rate.
(2) All taxes and other duties incurred for deliveries and services in the country of destination shall be borne by the customer.
(3) Discounts granted to the Buyer shall only be granted in the event of smooth business transactions. They shall therefore lapse in particular if insolvency proceedings are instituted against the Buyer's assets, if the Buyer fails to settle the claim within the payment period set or if a legal dispute is pending between the Buyer and us arising from or in connection with this contract.
§ 4
Terms of payment
(1) The customer must fulfill our payment claims immediately and without deduction. The deduction of a discount requires a special written agreement. Bills of exchange and checks shall only be accepted by us on the basis of a separate agreement and only on account of performance.
(2) The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognized by us. The customer shall also have no right of retention due to disputed or not legally established counterclaims.
§ 5
Default of payment
(1) Subject to an earlier reminder, the customer shall be in default of payment no later than 14 days after the due date and receipt of an invoice or an equivalent request for payment.
(2) If the customer is more than two weeks in arrears with a payment or has suspended payments, all claims arising from the existing business relationship with the customer shall become due for payment immediately, even if payment terms have been granted in individual cases. Immediate maturity shall also occur in the event of a significant deterioration in the customer's financial circumstances which jeopardizes the realization of our payment claim.
(3) If the customer's payment behavior deteriorates, for example due to conspicuously frequent late payments, and this is accompanied by the risk that our claim or the realization of our claim from the respective legal relationship is jeopardized, we are entitled to make further delivery dependent on advance payment or an appropriate security deposit. This shall also apply if we only become aware of the deterioration in payment behavior after the conclusion of the respective contract. If the customer does not make the advance payment despite a reminder and the setting of a deadline or if he does not provide sufficient security within a reasonable deadline set for him, we are entitled to refuse performance and - if necessary after setting a deadline - to withdraw from the respective contract as well as to demand compensation. We can declare our withdrawal immediately if it concerns the production of unjustifiable items, for example custom-made products.
(4) If the customer is in default of payment, we shall be entitled to payment of a lump sum of € 40.00 in accordance with § 288 V BGB.
§ 6
Right of withdrawal
We are entitled to withdraw from the contract if there is a significant deterioration in the financial circumstances of the customer, in particular if seizures or other enforcement measures are taken against him or if judicial or extrajudicial insolvency proceedings are opened.
§ 7
Liability of the customer for damages
If we have a claim for damages against the customer instead of performance in accordance with the statutory provisions, this shall amount to a lump sum of 10% of the agreed purchase price - subject to proof of higher damages by us. The customer is entitled to prove that no damage has occurred at all or that the damage is significantly lower than the lump sum.
§ 8
Services
In the absence of any agreements to the contrary, we are entitled to make partial deliveries and render partial services, provided that the deviation is within the customary commercial tolerances or the delivery item is different pieces of furniture that do not belong together. Partial deliveries or partial services shall be paid for by the customer at the value of the partial delivery or partial service in accordance with § 4.
§ 9
Delivery time
(1) Agreed delivery periods shall be deemed approximate and subject to correct and timely delivery to us.
(2) Compliance with our delivery obligation requires the timely and proper fulfillment of the customer's obligations.
(3) Delivery periods shall be extended in the event of force majeure and the occurrence of unforeseen events for which we are not responsible, even if they occur at our factory or at a subcontractor, by the duration of the hindrance. In particular, the following shall come into question: operational disruption, strikes or lockouts at our premises or those of our suppliers, delays in the delivery of essential raw materials. Proof of a causal connection between the aforementioned cases and the subsequent delivery cannot be demanded.
(4) If delivery is not possible for a period of one month for the reasons stated in paragraphs 2 and 3 for which we are not responsible, we shall have the right to withdraw from the contract.
(5) Non-compliance with delivery dates and deadlines, taking into account an extension in accordance with paragraphs 2 and 3, shall only entitle the customer to assert the rights to which he is entitled, in particular the right to withdraw from the contract, if he has set us a reasonable grace period of at least 14 days in writing.
(6) Any claims for damages due to delay in delivery shall be limited to 15% of the purchase price (net), unless the delay in delivery was caused intentionally or by gross negligence.
(7) If the customer does not collect the goods at the place of performance within 14 days despite notification of readiness for dispatch, we shall be entitled to withdraw from the contract and to sell the goods elsewhere. Any storage costs incurred and the risk of storage shall be borne by the customer.
§ 10
Place of performance, transfer of risk, delivery
Unless otherwise agreed, delivery shall be "ex works" (EXW) Melle in accordance with Incoterms 2010.
§ 11
Target quality of the goods
(1) The target quality of the goods is based on the contractual agreements. Unless expressly stipulated, we do not assume any no-fault guarantee for this. This also applies to references to DIN standards.
(2) Customary deviations in the design, structure, colors and dimensions of the purchased goods, which are in the nature of the materials used, do not entitle the customer to assert warranty claims, provided that the value of the purchased item or its suitability for the general or contractually agreed use is only insignificantly reduced.
§ 12
Obligation to give notice of defects
Deliveries must be inspected by the customer immediately upon receipt or by the recipient designated by the customer. After unconditional acceptance of the goods by the customer or a person authorized by the customer, any subsequent complaint regarding the external condition of the delivery is excluded. Other defects in the goods, insofar as they are recognizable, can only be notified within 3 working days of receipt, otherwise only within 3 working days of discovery. Notices of defects must be made in text form.
§ 13
Warranty
(1) If there is a defect in the purchased item and this has been notified in good time, we shall initially provide warranty at our discretion by delivering faultless replacement goods or by repairing the delivered goods ("subsequent performance"). Defective goods may only be returned to us with our prior consent. If the goods are returned without our prior consent, we shall be entitled to refuse to accept them.
(2) In the event of subsequent performance, the customer shall only be entitled to reduce the agreed purchase price, to withdraw from the contract or - under the conditions of § 14 - to claim damages for delivery of defective goods after two unsuccessful attempts.
(3) We are entitled to make the subsequent performance owed by us dependent on payment of the purchase price due. However, we shall allow the Buyer to retain part of the purchase price, provided that this retention is in reasonable proportion to the defect.
(4) The limitation period for all claims for defects is 24 months. The delivery of replacement goods shall take place exclusively in fulfillment of our warranty obligations for the original goods.
(5) If, in the event of a resale of the goods to a consumer within the meaning of § 13 BGB, the customer is held liable by the consumer as a result of a defect, the customer's recourse against us shall be governed by the statutory provisions of §§ 478, 479 BGB, subject to any claims for damages which are subject to § 14 of these Terms and Conditions of Sale and Delivery. The same shall apply if recourse is taken against the customer by another intermediary in the supply chain due to warranty claims of a consumer.
(6) If the goods delivered by us are to be classified as digital products within the meaning of § 327 I 1 BGB or as goods with digital elements within the meaning of § 327 a III 1 BGB, the customer shall first attempt to obtain updates in accordance with § 327 I BGB or § 475 b III No. 2 and IV No. 2 BGB from the manufacturer of the digital product or the goods with digital elements. The statutory provisions then apply.
§ 14
Liability
(1) Our liability is generally limited to damages that we or our vicarious agents have caused intentionally or through gross negligence. We shall only be liable for simple negligence in the event of injury to life, limb or health and the breach of cardinal obligations. A cardinal obligation is an obligation whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the customer regularly relies or may rely.
(2) If we are liable for breaches of duty due to simple negligence, our liability shall be limited in amount to the typical damages for contracts of the type in question that were foreseeable at the time the contract was concluded or at the latest when the breach of duty was committed. This shall not apply in the event of injury to life, limb or health.
(3) Claims for damages, which by law do not require fault, remain unaffected by the provisions in paragraph (1) and paragraph (2).
§ 15
Retention of title
(1) All deliveries are subject to retention of title. The delivered goods shall remain our property until full payment of all claims to which we are currently or in the future entitled against the customer. The customer is revocably permitted to process or resell the delivered goods in the ordinary course of business. If the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to assert our rights arising from the retention of title, in particular to take back the goods delivered under retention of title, without prior withdrawal from the respective purchase contract.
(2) If the goods subject to retention of title are processed into a new movable item, the processing shall always be carried out for us, without us being obligated as a result. The new item shall become our property. If the reserved goods are processed together with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of our reserved goods to the processed other items at the time of processing. In all other respects, the same shall apply to the new movable item created by processing as to the purchased item delivered subject to retention of title.
(3) If the reserved goods are combined, mixed or blended with other items not belonging to us, we shall become co-owners in accordance with the statutory provisions. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall store the items owned or co-owned by us free of charge.
(4) In the event of resale of the goods subject to retention of title, the customer hereby assigns to us all claims against his customers or third parties arising from the resale, irrespective of whether the delivered goods have been resold without or after processing; we hereby accept the assignment. If the resold goods subject to retention of title are co-owned by us, the assignment of claims shall extend to the amount corresponding to the proportionate value of our co-ownership. If the customer is unable to make an assignment in accordance with the above provisions, in particular as a result of priority assignments to third parties, the resale shall not be deemed to be in the ordinary course of business within the meaning of this provision. The customer shall be entitled to collect the claims assigned to us until revoked by us. Our authorization to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed and payments have not been suspended. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. We are also authorized to notify the debtor of the assignment ourselves.
(5) The customer must inform us immediately of any enforcement measures or other interventions by third parties in the goods subject to retention of title or in the assigned claims, handing over the documents necessary for proceedings. If the third party is not in a position to reimburse us for the judicial and extrajudicial costs, the customer shall be liable for the loss incurred by us.
(6) The right to resell, use or install the reserved goods and the authorization to collect the assigned claims shall expire upon suspension of payment, application for and opening of judicial insolvency proceedings or out-of-court settlement proceedings; the direct debit authorization shall also expire in the event of a cheque or bill protest.
(7) We are obliged to release securities to which we are entitled at our own discretion if their estimated value exceeds 150 percent of the sum of the outstanding claims.
§ 16
Place of fulfillment
Unless otherwise stated in these terms and conditions and in the order confirmation, our registered office shall be the place of performance for all mutual obligations.
§ 17
Applicable law
All legal relationships between us and the customer arising from or in connection with this contract shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
§ 18
Place of jurisdiction
The place of jurisdiction for all disputes between us and domestic customers arising from or in connection with this contract shall be our registered office or, at our discretion, the general or a special place of jurisdiction of the customer, provided that the customer is a merchant, a legal entity under public law or a special fund under public law and the legal dispute does not concern a non-pecuniary claim which is assigned to the local courts irrespective of the value of the subject matter of the dispute, nor is an exclusive place of jurisdiction established. The same applies to legal disputes with persons who have moved their domicile or habitual residence outside the area of application of the Code of Civil Procedure after the conclusion of the contract, or whose domicile or habitual residence is not known at the time an action is brought.
§ 19
Data protection
We hereby inform the customer that the personal data obtained in connection with the business relationship will be processed in accordance with the provisions of the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG).