The following Terms and Conditions of Business have been translated from our German AGBs.
They are for reference purposes only and not legally binding.
The German language version of the General Terms and Conditions of Business ("GTC") shall apply in all legal matters.
§ 1 General
- For all deliveries and other services, the following terms and conditions of sale and delivery apply exclusively. They shall only apply to companies within the meaning of § 14 German civil code (BGB); A "Company" is hereafter known as a natural or juristic person or a partnership having legal capacity, who, at the conclusion of the contract, is exercising their commercial or independent professional activity. Any other conditions of the Buyer, which the Seller may not have expressly acknowledged, shall not become part of the contract, even if the Seller does not expressly contradict them.
- Inclusion and interpretation of these terms and conditions of sale and delivery, as well as the completion and interpretation of legal transactions with the purchaser, is governed exclusively in accordance with the laws of the Federal Republic of Germany. The application of the UN purchasing law is excluded.
- All declarations which affect the validity of the contractual relationship must be in writing. Furthermore, a change of this written-form requirement must be made in writing.
§ 2 Unlawful General Terms and Conditions of the Buyer
- The provisions of the general terms and conditions of the Buyer are invalid if they violate the statutory provisions, particularly if they (i) unduly disadvantage the Seller, contrary to the principles of good faith, (ii) are not clear and understandable (iii) are incompatible with the main principle of legislation from which they differ, or (iv) restrict significant rights or obligations of the Seller arising from the nature of the contract, so that the achievement of the contractual purpose is endangered (hereinafter referred to as the "invalid Buyer terms and conditions").
- The Buyer undertakes to the Seller, to refrain from (i) putting ineffective Buyer terms and conditions on the Seller, (ii) including ineffective Buyer terms and conditions in contracts with the Seller, or (iii) asserting or enforcing rights or claims arising from ineffective Buyer terms and conditions against the Seller.
§ 3 Reservation of the contractual penalty
- A contractual penalty agreed between Seller and the Buyer in an individual case, to be enforceable, requires a declaration of this reservation in writing to the Seller by the Buyer upon acceptance of the goods.
- A reservation of contractual penalty is to be made directly to the Seller. Employees of the Seller, drivers or other third parties are not authorised to receive a reservation of contractual penalty.
§ 4 Offers, Scope of Performance, Conclusion of Contract and Right of Withdrawal
- Contractual offers of the Seller are non-binding. The contract shall only come into effect at such a time as written order confirmation has been given by the Seller. The order confirmation of the Seller shall exclusively and authoritatively determine the scope of the contractual performance. Any additions, changes and subsidiary agreements require written confirmation by the Seller.
- In the event that the solvency of the Buyer deteriorates during the period between receipt of the order confirmation and delivery or if the Seller subsequently learns that the Buyer's solvency is in doubt, the Seller shall be entitled to demand payment prior to the agreed upon payment date, to withhold any outstanding deliveries not already made or to rescind the contract.
§ 5 Price and Payments
- Prices indicated are in euro and shall be ex works, exclusive of packaging, transport insurance, other shipping and transportation expenses and exclude any sales tax. The packaging is carried out as agreed and will be charged at cost price. It will only be withdrawn if the Seller is obliged to do so by mandatory statutory provision.
- Prices are based on current manufacturing and incidental costs and are subject to the proviso that the order details, underlying the order confirmation, remain unchanged.
- In the event the payment term is culpably exceeded, interest will be charged according to the statutory amount, reserving the right to any further claims for damages. Bills of exchange and cheques are accepted only as conditional payment and are only valid after clearing and upon receipt of the amounts as cash.
- In the case of a cheque or bill protest, all outstanding invoice amounts shall become immediately due and payable, notwithstanding any payment date which may have been agreed upon. All bills of exchange, even if they are still in circulation, must then be covered immediately in cash. Otherwise all existing payment terms will expire. The same applies in the event that the claim in not paid at maturity.
§ 6 Offsets and Retention
- Offset rights are only available to the Buyer if his counterclaims have been legally established or are undisputed. In addition, the Buyer is only authorised to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 7 Assignment of Claim; Factoring
- The Seller is entitled to assign claims against the Buyer arising from deliveries and services to the full extent permitted by law to third parties (for example, a bank or factor). The Buyer thereby consents to the transfer of the data, necessary for collection of the claim/s, to the third party.
§ 8 Performance Times, Delivery, Default Of Acceptance
- In order to ensure an efficient and streamlined delivery to the Buyer, the parties agree that for delivery and unloading, the exclusive application of the unloading standards issued by the Zukunftsinitiative Möbellogistik (ZIMLog) shall apply in their current version, which can be found on the internet at dcc -moebel.org/zimlog.html available for download or sent to the Buyer on request in text form. The Seller is entitled to make over/under deliveries as is customary in the trade. To the extent described above, the Buyer is not entitled to refuse acceptance.
- The obligation to deliver shall cease to apply for the duration of the existence of the following barriers: events within the scope of labour disputes; unforeseen events, which are beyond the control of the Seller, for example, the delay in delivery by a supplier, transport and operating errors; material or energy shortages; interference by State authorities or similar circumstances, also beyond the control of the Seller. In these cases, the contractually agreed delivery deadlines shall be extended accordingly for the duration of the delay.
- If the delivery or acceptance of the delivery item is delayed for reasons attributable to the Buyer then the costs incurred due to the delay will be charged to him, commencing one month after notification of readiness for shipment or readiness for acceptance.
§ 9 Delivery and Transfer of Risk
- The Seller delivers the goods by unloading them from the arriving means of transport and making them available to the Buyer at the designated unloading point in the ramp or picking area.
§ 10 Retention of Title
- The Seller reserves title to the delivered goods until full payment has been received. The retention of title shall also apply until all claims, including future and conditional claims, arising from the business relationship between the Seller and the Buyer have been resolved or fulfilled.
- The Buyer is entitled to resell the reserved goods but only in the ordinary course of business.
- In the event of a resale, the Buyer hereby assigns the claim arising from the resale against the third party to the Seller. The Buyer undertakes to notify his customer, at the request of the Seller, of the assignment and to hand over the purchase contracts to the Seller. Pledging or transferring by way of security before final payment is not permitted.
- If the Buyer has insured the reserved goods, the Buyer hereby assigns to the Seller the claim against the insurer arising from the insurance contract.
- If the goods have been processed or altered by the Buyer, the retention of title shall extend to the complete object inclusive of said changes or additions. The Buyer acquires joint ownership in the same proportion that corresponds the ratio of the value of their goods to the value of the goods supplied by the seller.
- If the realisable value of the securities exceeds our claims by more than 10%, we shall, at the request of the Buyer, release securities of our choice.
- In the event that Seller rescinds the contract based upon a breach of contract by the Buyer - in particular, but without limitation to, default of payment - the Buyer shall be entitled to demand restitution of the reserved goods. An application for opening of insolvency proceedings shall entitle the Seller to rescind the contract and to demand the immediate return of the delivered goods. A right of rescission also exists in the case of cheque or bill protests, cessation of payment on the part of the Buyer or in the case of a failed compulsory enforcement attempt by the Seller. The Seller shall be further entitled to rescind if it turns out that the Buyer has made misrepresentations regarding his creditworthiness and this information is of considerable importance and if the goods subject to retention of title of the Seller other than in the regular business of the Buyer are sold or disposed of, in particular by transfer by way of security or pledge.
- In the event the Seller rescinds the contract, the Buyer shall store the reserved goods separately from the other goods until their release, mark them as the Seller's property, refrain from disposing of the goods and provide the Seller with a list of his property. The Buyer must notify the Seller immediately of a seizure of or other access by third parties to the reserved goods.
§ 11 Warranty
- The statutory provisions, unless otherwise stated below, shall apply in relation to the rights of the Buyer in the case of material and legal errors (including incorrect delivery and shortfall in delivery as well as improper installation or incorrect assembly instructions). In all cases, the special statutory provisions on final delivery of the goods to a consumer remain unaffected (supplier recourse in accordance with §§ 478, 479 of the German Civil Code (BGB)).
- The basis of the Seller's liability for defects shall be determined by the agreement made concerning the quality of the goods. Insofar as the condition was not agreed, it shall be determined according to the legal regulation as to whether or not there is a defect (§ 434 (1) Sections 2 and 3 of the German Civil Code (BGB)). The Seller assumes no liability for public statements made by third parties.
- In the event the delivered goods are defective, the Seller shall be entitled to initially choose whether to render subsequent performance by rectifying the defect (rectification) or by delivering a defect-free item (replacement). The right to refuse subsequent performance under the statutory conditions, shall remain unaffected.
- The Seller is entitled to make the subsequent performance owed dependent on the Buyer paying the due purchase price. The Buyer is however entitled to withhold a reasonable portion of the purchase price in relation to the defect.
- The Buyer shall give the Seller the necessary time and opportunity required to provide the subsequent performance owed and, in particular, hand over the rejected goods for inspection. In the case of a replacement delivery, the Buyer shall return the defective item in accordance with the statutory regulations.
- The costs for inspection and subsequent performance, in particular transport, travel, labour and material costs shall be borne by the Seller, only in the event that a defect actually exists. Otherwise, the Seller may demand from the Buyer compensation for the costs incurred due to the unjustified request for removal of the purported defect(s) (in particular inspection and transport costs), unless the lack of defect was not apparent to the Buyer.
- If the subsequent performance has failed or a reasonable deadline set by the Buyer for the subsequent performance to be completed has expired without success, or is dispensable in accordance with statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of a minor defect.
- Claims by the Buyer for damages or reimbursement of futile or unnecessary expenses are applicable, even in the case of defects, only in accordance with the provisions of Section 12 and are otherwise excluded.
§ 12 Liability
- Insofar as nothing to the contrary arises from these General Terms and Conditions, including the following provisions, the Seller shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
- The Seller is liable for damages - regardless of the legal grounds - in the context of fault liability of willful and gross negligence. In the case of ordinary negligence, the Seller is liable subject to a more lenient standard of liability according to legal regulations (for example, to take care of one’s own affairs) only for damage/s arising from:
- in injury to life, limb or health,
- the material breach of a insignificant contractual obligation (the fulfillment of which enables the proper execution of the contract possible in the first place and the compliance with which the contractual partner regularly relies and can rely on); however, in this case, the Seller's liability is limited to compensation for foreseeable, typically occurring damage.
- The limitations of liability resulting from para. 2 above also apply to breaches of duty by or in favour of persons whose fault the Seller is responsible for under statutory provisions. They do not apply if the Seller fraudulently concealed a defect or assumed a guarantee for the quality of the goods and for claims of the buyer under the Product Liability Act.
- In the case of a breach of duty that does not exist in a defect, the Buyer can only rescind or terminate if the Seller is responsible for the breach of duty. A free right of termination of the Buyer (in particular according to §§ 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.
§ 13 Limitation Period
- Notwithstanding § 438 para. 1 no. 3 BGB, the general period of limitation for claims arising from material and legal defects is one year from delivery. Insofar as acceptance has been agreed, the period of limitation begins with the acceptance.
- Further statutory special regulations regarding the statute of limitations shall remain unaffected (in particular, § 438 (1) no. 1, (3), §§ 444, 445b BGB).
- The above limitation periods of the purchase right shall also apply for contractual and non-contractual claims for damages from the Buyer which relate to a defect in the Goods, unless the application of the regular mandatory statute of limitations (§§ 195, 199 BGB) would lead to a shorter statute of limitations in the respective individual case. Claims for damages by the Buyer pursuant to § 12 (2) sentence 1 and § 12 (2) sentence 2 lit. a) and according to the Product Liability Act, however, become statute-barred in line with the statutory limitation periods.
§ 14 Obligation to Give Notice
- The warranty claims of the Buyer require, where it is a company, that he has complied with his statutory inspection and complaint obligations (§§ 377, 381 HGB). If the Buyer fails to carry out the proper inspection and/or provide timely reporting of defects, the liability of the Seller for the unreported defect is excluded.
- The Buyer shall inspect the Seller's goods immediately, i.e. at the latest within three working days after delivery.
- The Buyer fulfils his obligation to inspect the goods, if, without opening the packaging, he inspects the goods for externally visible quantitative or qualitative defects via suitable methods (hereinafter “suitable methods of inspection”). Suitable methods of inspection include, but are not limited to, (i) inspection of the quantity of goods delivered, (ii) visual inspection of the packaging and (iii) examination of the goods for externally visible transport or other damage.
- The Buyer must notify us of defects immediately, at the latest within two working days. Timely dispatch of the notice of defect is sufficient to observe the period of notice.
- Every notice of defect must be provided in writing.
§ 15 Place of Performance and Jurisdiction
- The place of performance for all obligations directly or indirectly resulting from this contractual relationship, including the obligation to pay, as well as to return the goods, shall be the registered office of the Seller. The agreed jurisdiction, independent of the value or amount of the dispute, is the court having jurisdiction at the place of business of the Seller. This also applies for cheque and bills of exchange. The Seller is entitled to decide in which jurisdiction any claims against the Buyer can be made.
§ 16 Final Provisions
- If any provisions of the contract are invalid or ineffectual, the remaining provisions thereof shall remain in full force and effect. The ineffective provision shall be replaced by a legally equivalent provision.
Date: September 2018