1. Scope
1.1 These General Terms and Conditions apply only to contracts with companies in the sense of § 14 of the German Civil Code (BGB), legal persons governed by public law or special funds governed by public law (“customer”).
1.2 The contractual relationship between the customer and us shall be governed exclusively by these General Terms and Conditions. Different Terms and Conditions of the customer are hereby expressly rejected. These Terms and Conditions shall also apply exclusively even if we deliver to the customer without reservation in awareness of conflicting or differing Terms and Conditions of the customer.
1.3 Subject to any changes made to our General Terms and Conditions, the agreements shall also provide the basis for future contracts
between us and the customer without the need for their re-inclusion.
2. Declarations
2.1 Unless circumstances indicate otherwise, our offers only represent invitations to the customer to send contract offers to us (“invitatio ad referendum”). We shall be entitled to accept the customer’s contract offer within three weeks. During this period, the customer is bound by his contract declarations.
2.2 When receiving orders, we require the customer to be creditworthy. In individual cases, we reserve the right to make acceptance of the customer’s order subject to the provision of a bank guarantee or a liquidity commitment by the customer’s bank in the amount of the expected invoice demand. If the lack of creditworthiness only becomes known after the conclusion of the contract, we may withdraw from the contract after consultation with the customer or demand the provision of a security within one week.
2.3 Contract offers on our part are non-binding unless the order confirmation states otherwise.
2.4 All agreements made between us and the customer for the execution of this contract must be in writing.
2.5 The customer may only consider agreements made with employees whose right of representation is not entered in the commercial register to be valid if written confirmation of the agreement is provided by the management.
3. Prices
3.1 Unless the order confirmation states otherwise, our prices are net (without VAT) “ex-factory”. VAT must be added at the applicable rate.
3.2 All taxes and other charges incurred for goods and services in the country where they are received shall be borne by the customer.
3.3 Any discounts granted to the customer shall apply only in the case of smooth settlement of business between the parties. They shall no longer be applicable, especially in the event of insolvency proceedings being instituted against the assets of the customer, the customer failed to discharge his debts within the specified period of payment or a legal dispute between the customer and us arising from or in connection with this contract.
3.4 If the customer is in default with his payment obligations, we are entitled to exclude the provision of further services or require advance payment. In the event of any such default in payment, immediate settlement of all other outstanding payments shall be required.
4. Payment arrangements, assignment of claims
4.1 The customer must meet all our payment claims immediately and without deduction. The deduction of any cash discount shall
require special written agreement. Checks and bills of exchange shall be accepted by us only subject to a separate agreement and
only on account of performance.
4.2 The customer shall only have the right to offset other payments if his counterclaims have been legally established, are undisputed or have been recognized by us. In addition, the customer is only authorised to exercise a right of retention insofar as his counter claim is based on the same contractual relationship.
4.3 To the extent legally permissible, we are entitled to assign claims against the customer relating to deliveries and services to third parties (e.g. a bank or a factorer). The customer permits the transfer of the data necessary for collection of the claims to the third party.
5. Default of payment
Subject to a prior warning, the customer shall automatically be in default no later than 14 days after the due date and receipt of an invoice, or an equivalent payment request, without the need for a reminder.
6. Right of withdrawal
If, subsequent to the conclusion of the contract, it should become apparent (e.g. by an application for the opening of insolvency proceedings) that our claim to the purchase price is placed in jeopardy due to the customer’s inability to pay, then according to statutory provisions we are entitled to refuse service and – if necessary after setting a deadline – to withdraw from the contract (§ 321 German Civil Code (BGB)). In the case of contracts for the production of customer-specific items (custom-made), we can declare our intention to withdraw immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.
7. Customer liability for damages
If, under statutory provisions, we have a claim for damages in lieu of performance against the customer, this shall be calculated at a flat rate of 10% of the agreed purchase price – subject to our providing proof of a higher damage; the flat rate for damages shall be credited against the damages actually incurred. The customer shall be entitled to prove that no damage has been incurred or that it is significantly lower than the fixed rate.
8. Delivery
8.1 To ensure efficient and streamlined delivery to the customer, the parties accept the unloading standards published by Zukunftsinitiative Möbellogistik (ZIMLog) in their current version as the sole standards for delivery and unloading. These can be downloaded from the Internet at http://dcc-moebel.org/zimlog.html or sent to the customer in text form on request.
8.2 We are entitled to over-/under-deliver in accordance with standard commercial practices. To the extent mentioned above, the customer is not entitled to refuse acceptance of the delivery.
9. Delivery time
9.1 Agreed delivery deadlines are approximate and subject in turn to our receiving correct and punctual deliveries.
9.2 Compliance with our delivery obligations is subject to the timely and proper fulfilment of the customer’s obligations.
9.3 In case of force majeure or other factors beyond our control, e.g. work stoppages, strikes, lockouts, state prohibitions, war, energy and transport problems, interruption of operations, etc., the delivery deadlines shall be extended accordingly.
9.4 If delivery is not possible, due to circumstances mentioned in Paragraphs 9.1 to 9.3, for a period of one month, without this being our fault, we shall have the right to rescind the contract.
9.5 Failure to comply with delivery times/dates and deadlines, taking into account an extension in accordance with Paragraphs 9.1 to
9.6 If we fail to deliver on time, the customer is entitled to claim for damages arising from this delay as a lump sum. The lump sum compensation shall be 0.5% of the net price (delivery value) for each completed calendar week of default, but totalling not more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the customer has suffered no loss at all or only a substantially smaller loss than the aforementioned lump sum.
9.7 If the customer does not collect the goods from the place of performance within 14 days, despite notification of the readiness of the goods for dispatch, we are entitled to rescind the contract and sell the goods elsewhere. Any resulting storage costs and risk of storage shall be borne by the customer.
10. Place of performance, transfer of risk, delivery
10.1 Unless otherwise agreed, delivery shall be “ex works” (EXW) Germersheim in accordance with Incoterms 2010.
10.2 If, in an individual case, a delivery has been agreed by us, we shall deliver the goods by unloading them from the means of transport on which they arrive and making them available to the customer at the designated unloading point in the ramp or order picking area.
11. Required quality of the goods
11.1 The required nature of the products depends on the contractual agreement. Unless otherwise explicitly stated, we assume no strict liability in this regard. This also applies for references to DIN standards.
11.2 Normal deviations in the design, structure, colours and dimensions of the purchased goods, which are due to the nature of the materials, do not entitle the customer to claim under the warranty as long as the value of the purchased goods or their fitness for general or the contractually agreed use is reduced only slightly.
12. Duty to report defects
12.1 The warranty claims of the customer require that he has fulfilled his statutory duties to inspect the goods and report defects (§§ 377, 381 German Commercial Code (HGB)). If the customer fails to carry out the proper inspection and / or provide timely reporting of defects, our liability for the unreported defect is excluded.
12.2 The customer must inspect our goods immediately, i.e. at the latest within three working days after delivery.
12.3 The customer fulfils his inspection obligations if, without opening the packaging, he inspects the goods for externally visible quantitative or qualitative defects by suitable methods (hereinafter “suitable test methods”). 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.
12.4 The customer 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.
12.5 Every notice of defect must be provided in writing.
13. Warranty
13.1 The statutory provisions, unless otherwise stated below, shall apply for safeguarding the rights of the customer in the case of material and legal errors (including incorrect and incomplete deliveries 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 German Civil Code (BGB)).
13.2 If the delivered goods are defective, we are first entitled at our own discretion to comply with the warranty by repairing the defect (rectification) or delivering replacement goods in perfect condition (replacement delivery). The right to refuse supplementary performance under statutory provisions remains unaffected.
13.3 We are entitled to make the subsequent performance owed dependent on the customer’s payment of the due purchase price. However, the customer is entitled to retain an appropriate portion of the purchase price in relation to the defect.
13.4 The customer must give us the time and opportunity required for the owed subsequent performance, in particular to hand over the rejected goods for inspection purposes. In the case of a replacement delivery, the customer must return the defective item in accordance with the statutory provisions.
13.5 The costs for inspection and subsequent performance, in particular transport, removal, travel, labour and material costs, shall be borne by us if there is actually a defect. Otherwise, we may demand compensation for the costs incurred by the customer resulting from an unjustified request to remove a defect (in particular inspection and transport costs), unless the customer was unable to recognise that the product was not defective.
13.6 If the subsequent performance has failed or a reasonable deadline set by the customer for the subsequent performance to be completed has expired without success, or is dispensable in accordance with statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price. In the case of a minor defect, however, there is no right of withdrawal.
13.7 Claims by the customer for compensation or reimbursement of wasted expenses exist, even in the case of defects, only in accordance with Section 14 and are otherwise excluded.
14. Liability
14.1 Unless otherwise stated in these GTCs, including the following provisions, we are liable in the event of a breach of contractual and non-contractual obligations in accordance with statutory provisions.
14.2 We are liable for damages – irrespective of legal basis – in the context of liability in cases of intent and gross negligence. In the case of simple negligence, our liability is subject to a milder standard of liability according to statutory provisions (for example, to the extent of the care we take in our own affairs) and only
a) for damage resulting from injury to life, limb or health,
b) for damages resulting from the substantial breach of a material contractual obligation (an obligation which is essential to the proper execution of the contract and on whose observance the customer regularly trusts and can rely); however, in this case, our liability is limited to compensation for foreseeable damage which may typically occur.
14.3 The limitations of liability arising from Section 14.2 shall also apply to breaches of duty by or for the benefit of persons for whose fault we are responsible under statutory provisions. They do not apply if we have fraudulently concealed a defect, provided a guarantee for the condition of the goods, or for claims by the customer under the German Product Liability Act.
14.4 In the case of breach of duty that is not attributable to a defect, the buyer can only withdraw from or terminate the contract if we are responsible for the breach of duty. A free right of termination by the customer (especially according to §§ 651, 649 German Civil Code (BGB)) is excluded. Otherwise, the statutory provisions and legal requirements and legal consequences apply.
15. Limitation
15.1 Deviating from § 438 para.1 (3) German Civil Code (BGB), the general period of limitation for claims arising from material and legal defects is one year from delivery. To the extent that the goods have been accepted, the period of limitation begins with the acceptance.
15.2 Further special statutory provisions for the limitation period also remain unaffected (especially § 438 para. 1 (1), para. 3, §§ 444, 445b German Civil Code (BGB)).
15.3 The above statutory periods of limitation under commercial law also apply to contractual and non-contractual claims for compensation by the customer, based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 German Civil Code (BGB)) would lead to a shorter limitation period in the specific case. However, claims for compensation by the customer in accordance with Section 14.2 (1) and Section 14.2 (2) (a) and the German Product Liability Act expire only after the statutory limitation periods.
16. Retention of title
16.1 All deliveries are subject to retention of title. The goods delivered shall remain our property until full payment by the customer of all our present or future claims against him. The customer shall be granted the revocable authorisation to process or to resell the delivered goods in the ordinary course of commerce. In the event of a breach of contract by the customer, in particular in the case of default in payment, we are entitled to withdraw from the purchase contract and demand the surrender of the reserved goods.
16.2 If the goods subject to retention of title are processed to a new movable item, the processing shall always be performed on our behalf without any resulting obligation to us. The new item shall be our property. If the goods subject to retention of title are processed together with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of our goods subject to retention of title to the other processed items at the time of processing. For the new movable items produced by said processing, the same agreements apply as for the goods delivered under retention of title.
16.3 If the goods subject to retention of title are combined, mixed or mingled with other items not owned by us, we shall become the co-owner according to the statutory provisions. If the goods are mixed in such a way that the customer’s object is regarded as the main item, it is agreed that the customer shall grant us proportional co-ownership. The customer shall store the items of our property or joint property without charge.
16.4 In the case of resale of the goods subject to retention of title, the customer shall immediately assign to us the claims due to him from the resale of the goods to his customers or third parties, regardless of whether the goods have been resold without or after processing; we hereby accept the assignment. If the resold goods subject to retention of title remain in our co-ownership, then the assignment of claims shall extend to the amount corresponding to the value our share in the joint property. If the customer is unable to make a corresponding assignment in accordance with the preceding provisions, in particular as a result of priority assignments to third parties, the further sale shall not be deemed to have been carried out by way of a proper business transaction within the meaning of that provision. Until our withdrawal, the customer shall be entitled to collect the claims assigned to us. Our authority to collect the claim ourselves shall remain unaffected. We shall be obligated, however, not to collect the claim as long as the customer meets his payment obligations from the collected proceeds, is not in default and no petition has been submitted for the initiation of insolvency proceedings or a suspension of payments. If this is the case, we may require the customer to provide us with all the information necessary for collection of the assigned claims and relating to its debtors, hand over the relevant documents and inform the debtors (third parties) of the assignment. We shall also be authorised to notify the debtor of the assignment
ourselves.
16.5 The customer shall inform us immediately of enforcement measures or other interventions by third parties relating to the goods subject to retention of title or the assigned claims, and supply the necessary documentation for legal proceedings. If the third party is unable to reimburse us for the judicial and extrajudicial costs, the customer is liable for the loss incurred to us.
16.6. The right to resell, use or install the goods and the authorisation to collect the assigned claims shall be terminated if payment is suspended or upon the initiation of judicial or extrajudicial bankruptcy proceedings; the direct debit authorisation shall also be terminated in the event of a cheque or bill protest.
16.7 If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the customer’s request.
17. Reservation of contractual penalty
17.1 A contractual penalty agreed between us and the customer in an individual case, to be enforceable, requires a declaration of thisreservation in writing by the customer upon acceptance of the goods.
17.2 A reservation of contractual penalty must be addressed to us directly. Our employees, drivers or other third parties are not authorised to receive a reservation of contractual penalty.
18. Ineffective terms and conditions of the customer
18.1 Provisions in the General Terms and Conditions of the customer are ineffective if they are in breach of statutory provisions, in particular if they (i) unduly discriminate against us in a manner that is inconsistent with the principles of good faith, (ii) are not clear and comprehensible, (iii) are irreconcilable with the key principles of statutory provisions from which they diverge, or (iv) restrict our material rights or obligations arising from the nature of the contract to such an extent that the achievement of the purpose of the contract is endangered (hereinafter collectively the “ineffective contract partner GTCs”). 18.2 The customer undertakes to refrain from (i) providing us with ineffective contract partner GTCs, (ii) including ineffective contract partner GTCs in contracts with us or (iii) applying or enforcing rights or claims resulting from ineffective contract partner GTCs.
19. Place of performance
Unless these terms and conditions and the order confirmation make different provisions, our registered office shall be the place of performance for all mutual obligations.
20. Applicable law
The laws of the Federal Republic of Germany, excluding the UN Sales Convention, shall govern all legal relations between the customer and us arising from or in connection with this agreement.
21. 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 special jurisdiction of the customer, provided the customer is a merchant, legal entity under public law or public law special fund, and the litigation relates neither to a non-proprietary claim that is assigned to the local courts regardless of the value of the matter in dispute, nor an exclusive place of jurisdiction. The same shall apply to legal disputes with persons who, after conclusion of the contract, have transferred their residence or habitual residence to a place outside the jurisdiction of the German Code of Civil Procedure, or whose domicile or habitual residence is unknown at the
time of the commencement of any action.
22. Data protection
In accordance with § 33 of the German Federal Data Protection Act (Bundesdatenschutzgesetz), we draw your attention to the fact that user data becoming available in connection with the business relationship will be stored in files.