These General Terms and Conditions of Sale, Delivery and Payment apply to business transactions with entrepreneurs, legal persons under public law and special funds under public law.
1. GENERAL, OFFER AND PURCHASE ORDER
1.1 Our deliveries and other services are exclusively rendered on the basis of these Conditions of sale, delivery and payment (hereinafter „Conditions“) and the „Important information“ printed on our respective price list. These Terms and Conditions also apply to all future transactions, even if this is not expressly agreed again.
1.2 We shall not be bound by deviating, conflicting or supplementary terms and conditions of the Customer unless we have expressly agreed to their application. This also applies if we are aware or ought to be aware of the Customer‘s Terms and Conditions and we do not expressly object to them or we make the delivery to the Customer without reservation.
1.3 Our quotations and orders produced for the Customer remain non-binding until we confirm them in text form. A contract first materialises on the basis of our order confirmation in text form.
1.4 Oral agreements or agreements made on the telephone do not become part of the contract until we have confirmed them in text form.
2.1 Prices are quoted in EURO and include packaging, value added tax at the applicable rate, customs duty and fees and other public levies ex our warehouse. Transport costs are not included, unless otherwise agreed.
2.2 Unless a price has been expressly agreed, our price list applicable when the contract is concluded is decisive for calculating the cost. This also applies to follow-up orders. References by the Customer to earlier orders („as usual“) refer to the model numbers only.
2.3 We reserve the right to adjust prices where cost reductions or increases are incurred, in particular due to collective wage agreements, material and energy price adjustments or changes to transport costs, after the contract has been concluded, provided that the delivery is not made within two months of contract conclusion. Evidence of the increase in costs will be provided to the Customer on request. Offsetting will take place insofar as an increase in a cost factor will be compensated by falling costs in other areas and vice versa.
3. HANDLING AND PROCESSING OF CUSTOMER SUPPLIED COVER MATERIALS
3.1 Cover materials (fabric, leather, synthetic leather, etc.) supplied by the Customer to be handled and processed by us are to be sent to us in a condition suitable for handling or processing free of charge to our factory, rolled up and carefully packaged with a delivery note with details of the commission.
3.2 The defined amount of material required for processing of single colored flat-weaves shall be calculated from the selvage. If this type of cut is not possible, any additional material necessary will be subsequently requested. In the case of pattern repeat coverings and cut-edge processing (on request) the amount of material has to be determined in advance.
3.3 Cover materials supplied by the Customer are not checked for their suitability before they are used. We assume no liability and no warranty claims may be made for creasing, weaving faults or other defects resulting from an unsuitable characteristic of the supplied cover materials for handling or processing. The Customer shall bear the additional costs that we incur on the basis of cover materials supplied in a condition unsuitable for handling or processing, particularly returns, greater difficulty in processing, etc.
4. DELIVERY AND DELIVERY PERIOD
4.1 The products to be delivered will be determined on the basis of the order confirmation. Information in advertising and printed material is not legally binding.
4.2 Slight deviations from the sample on show or information contained in the brochure which are customary in the trade in terms of dimensions, finish and colour can arise from the type of products which we manufacture. They do not give the Customer a right to assert claims for defects. In particular, we are unable to guarantee identical colours in the case of materials and leathers, veneers and lacquer work. This also applies to follow-up orders.
4.3 We reserve the right to make part-deliveries unless they would be unreasonable for the Customer. Part-deliveries shall be deemed unreasonable if the part-deliveries cannot be used by the Customer in the framework of the contractually designated use and the Customer will incur significant additional expenses or additional costs as a result.
4.4 All deliveries are EXW from our warehouse (INCOTERMS 2010), unless otherwise agreed in an individual contract. The delivery times we give shall not be binding as a matter of principle unless we have committed to or agreed a fixed delivery period or delivery date. Any delivery period committed to or agreed or delivery date committed to or agreed shall cease to apply in the event that amendments are made to the contract unless the amendment is insignificant. If shipping has been agreed, the delivery times and delivery dates refer to the time when the delivery items are handed over to the carrier.
4.5 Force majeure, particularly government sanctions and industrial action such as strikes and legal lock-outs, and other obstacles to performance for which we are not responsible, will result in a reasonable extension to the delivery or performance period. We shall inform the Customer about the beginning and end of such circumstances. The same applies if one of our suppliers does not supply the correct items to us or does not supply them on time.
4.6 The rights of both parties regarding termination and rescission are subject to the law. Customers may only assert a claim for damages under the conditions described in section 9.
4.7 On our request, the Customer shall declare within a reasonable period whether it wants to rescind the agreement as a result of the delay in delivery and/or is demanding compensation in place of delivery in accordance with 9. or is insisting on performance. If the Customer does not exercise this right to choose within a reasonable period, its right to performance shall lapse.
5. PASSAGE OF RISK AND DEFAULT OF ACCEPTANCE
5.1 Shipment requested by the Customer is at the Customer‘s risk. Risk is transferred when loading starts. If transport is delayed for a reason for which the Customer is responsible, risk passes to the Customer when the products are ready for dispatch and the Customer has been notified of this.
5.2 If the Customer does not pick up the ordered products in due time, we will store the products at the Customer‘s expense and risk and invoice the Customer for this, irrespective of our right to fulfilment or other rights. We shall only take out insurance at the express request and at the cost of the Customer. In the event that the goods are stored on our own site, we reserve the right to claim a fixed price of EUR 1 per m³ for each day of storage. The parties reserve the right to prove that lower or higher costs were incurred.
6. TERMS OF PAYMENT
6.1 The purchase price shall be due for payment in accordance with the respective terms of payment.
6.2 We only accept cheques and bills of exchange by prior arrangement; acceptance shall be as conditional payment. The Customer shall bear any costs associated with acceptance.
6.3 We reserve the right to only make outstanding deliveries or to provide outstanding services in return for advance payment or security if, after entering into the agreement, the Customer‘s financial situation or the recoverability of any security furnished deteriorates significantly or this becomes clear after entering into the agreement and this puts the payment of an account payable to us at risk - even if any security furnished is realised. Deterioration of the recoverability of a security shall also include, in particular, the case where a commercial credit insurance policy which we have chosen to take out to cover the Customer‘s outstanding debts is no longer sufficient. If, after we have set a reasonable deadline, concurrent payment has not been made or a security furnished, we may rescind the agreement after fruitless expiry of the deadline.
6.4 The Customer shall only be entitled to a right of retention or right of set-off with counterclaims if we have acknowledged its counterclaims, they are undisputed or have been determined with binding legal effect.
7. RETENTION OF TITLE
7.1 The products sold remain our property until full payment of all of our claims arising from our business relationships, including those arising in future. When balancing the account, the retention of title acts as security for the balance claim.
7.2 The Customer is only permitted to sell the products in the ordinary course of business. For the event that the Customer sells the goods on to a third-party, the Customer hereby assigns to us, now in advance as security, all claims and rights in their entirety which accrue to it from the sale. We hereby accept this assignment.
7.3 The Customer is entitled and is under an obligation to collect the assigned claims in the framework of its ordinary course of business providing that it is not in default with its payment obligations to us. Our right to collect these claims ourselves remains unaffected. Providing that the Customer meets its payment obligations to us and its creditworthiness and reliability are not impaired, we shall not, however, revoke its authority to collect the claims and shall not collect the claims ourselves.
7.4 If the collection authority is revoked in a justified manner, the Customer shall inform the debtors of the assignment without undue delay and provide us with all information necessary to collect the claims and provide us with all of the documentation we require for this purpose. Any securities to which the Customer is entitled for the assigned claims shall be surrendered or transferred to us as appropriate.
7.5 If the retention of title or the assignment of claims should be invalid or unenforceable as a result of mandatory foreign legal provisions, the security which corresponds to the retention of title or assignment of claims in the respective legal system shall be deemed to have been agreed. If the Customer‘s cooperation is necessary for this, it shall take, at its own cost, all measures necessary to explain the situation and obtain the security.
7.6 The Customer is required to inform us without undue delay in writing of attachments of the products and/ or the assigned claim or other claims that third parties assert with respect to the products. In the case of attachments, it shall also simultaneously send us a copy of the attachment report so that we can take action against this, especially third-party proceedings to prevent the execution of a judgment pursuant to section 771 of the German Code of Civil Procedure (Zivilprozeßordnung). Where the third-party is not in a position to reimburse us the court or out-ofcourt osts of a claim, the Customer shall be liable for the damage we incur unless it was not responsible for this.
7.7. Asserting retention of title, taking delivered products back and seizing the delivered products by us shall not constitute rescission of the contract if we do not expressly declare that we are rescinding the contract. In the event that we take products back, we are entitled to dispose of the products, after a prior warning and after expiry of a reasonable period, at our free discretion in the best possible manner. After deduction of the costs associated with the sale, the proceeds from the sale shall be set off against our purchase price claim and any other claims, especially to compensation owing to default with payment.
8.1 The presence of a defect shall be conclusively determined on the basis of the quality agreement as reached in the respective contract. Unless otherwise expressly agreed in the respective contract, the information about our products, including the pictures, drawings, descriptions and references to standards and specifications in our offers and brochures as well as other public statements made by us or our vicarious agents do not constitute guaranteed characteristics and/or guarantees within the meaning of sections 434, 443 of the German Civil Code but are only non-binding descriptions or labels. The same applies to samples supplied.
8.2 The duty to examine the goods and report defects shall be in accordance with the statutory provision in section 377 of the German Commercial Code. If, in an exceptional case, we bear the risk of shipment, any defects shall be reported to us and the carrier observing the requirements set out in section 428 of the German Commercial Code. The Customer is required to examine products prior to installation for products that are to be installed or mounted in another item, in particular.
8.3 Should products be defective at the time risk passes and this have been duly reported pursuant to section 8.2, the Customer must initially give us the opportunity to remedy the defects at our discretion or provide replacements („subsequent performance“) with a reasonable set deadline. A reasonable deadline is also required where the Customer must take the products re-sold by it back from the purchaser due to their defectiveness or the purchaser of the Customer has reduced the purchase price, unless the last contract in the supply chain was the purchase of consumer goods in the case of a supplier recourse (sections 445a, 478 of the German Civil Code). The Customer is also entitled to rescind the contract or reduce the purchase price in accordance with the statutory provisions. The Customer may only demand compensation in accordance with section 9.
8.4 The expenses required for subsequent performance, particularly transport, travel, labour and material costs, shall be borne by us if a defect is actually present. Should the customer have installed defective products in another item or mounted these on another item, the costs borne pursuant to the above clause shall not include the necessary expenses for removing the defective products and the installation or mounting of the repaired or supplied defect-free products, unless the last contract in the supply chain was the purchase of consumer goods in the case of a supplier recourse (sections 445a, 478 of the German Civil Code). In any case, the above clause is without prejudice to any compensation of removal and installation costs as damages in accordance with section 9. Claims of the Customer for the reimbursement of the expenses necessary for the purpose of subsequent performance are excluded to the extent that the costs increase as a result of the products having been subsequently moved to a location which is not the Customer‘s place of business, unless moving the item to another location corresponds to the designated use. If the Customer‘s request that defects be remedied turns out to be unjustified, the Customer shall bear the resulting costs, unless it was not responsible for these. We are not liable for damage to the products which results from natural wear and tear, unsuitable or improper use or use which is not in line with the contractual use, from faulty assembly, excessive use or improper modification, improvement or repair work by the Customer or a third-party, or from faulty or negligent treatment, unless we are responsible for this.
8.5 Claims of the Customer on account of defects, with the exception of compensation for damages or expenses pursuant to section 9, shall lapse within one year of delivery of the respective product to the Customer. The statutory provisions on the limitation period for product liability claims (section 12(1) of the German Product Liability Act), in the case of fraud (section 438 (3) no. 1 of the German Civil Code) and arising from supplier recourse (sections 445a, 478 of the German Civil Code), where the last contract in the supply chain was the purchase of consumer goods, remain unaffected.
9. COMPENSATION AND COST REIMBURSEMENT CLAIMS
9.1 We shall be liable for our own intent and gross negligence as well as the intent and gross negligence of our statutory representatives or vicarious agents. Where our statutory representatives or vicarious agents cannot be accused of intent, our liability shall, however, be restricted to the foreseeable damage typical for the type of contract.
9.2 We shall also be liable without restriction in the event of culpable injury to life, body or health by us, our statutory representatives or vicarious agents, and in the event that a defect is fraudulently concealed or in respect of a warranty. In the latter case the scope of the liability shall be in accordance with the warranty declaration.
9.3 We shall also be liable in the case that we, our statutory representatives or vicarious agents culpably breach such duties, which must be fulfilled in order to make performance of the contract possible in the first place and on which the Customer regularly relies and is en-titled to rely. Where our statutory representatives or vicarious agents cannot be accused of intent, liability shall, however, be restricted to the foreseeable damage typical for the type of contract.
9.4 We shall still be liable in cases of mandatory statutory liability in accordance with the respective provisions, for example under the German Product Liability Act (Produkthaftungsgesetz).
9.5 In all other respects, liability for compensation and cost reimbursement claims is excluded - irrespective of the legal grounds.
9.6 Where our liability is excluded or restricted, this also applies to the personal liability of our employees, workers, staff, representatives and vicarious agents.
9.7 The Customer shall inform us without undue delay and in detail and consult with us if it intends to file a claim against us in accordance with the above provisions. The Customer shall give us an opportunity to examine the claim.
10. FINAL PROVISIONS
10.1 Should individual provisions of these Terms and Conditions be or become invalid, this shall not affect the legal validity of the other provisions. In such a case the parties shall conduct negotiations on the basis of the principles of good faith with the objective of replacing the invalid provision with a valid provision which reflects as closely as possible the economic intention of the invalid provision This applies accor dingly in the event of a lacuna.
10.2 Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this contractual relationship, including matters concerning bills of exchange or cheques, is Herrenberg. We also reserve the right to file a claim against the Customer at its general place of jurisdiction at our discretion.
10.3 The contractual relationship is exclusively subject to German law excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
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