General Terms and Conditions
1. Validity of the Terms and Conditions
1) The Agent shall effect deliveries, provide services and submit offers exclusively on the basis of the present Terms and Conditions. Such Terms and Conditions shall consequently be valid for any and all future business transactions although they may not expressly be agreed once more.
2) We shall not accept any conditions of the Principal contrary to our Terms and Conditions unless we have expressly agreed to the validity thereof in writing. Our terms of sale shall be valid even in the event where we carry out delivery to the Principal without Reservation although being aware of any contrary conditions or such conditions of the Principal deviating from our Terms of Sale.
2. Offer and Conclusion of the Contract
1) Offers shall be without engagement at first and shall be valid for 3 months. The acceptance of orders shall be subject to the availability of the merchandise ordered. When orders are placed on the internet, the Agent shall be entitled to refuse acceptance where the website contains errors.
2) Orders shall be valid only when confirmed in writing by the Agent. Where the Agent is in doubt about the construction works progress as required for the approval of the facilities, it shall be entitled to demand written release of the consignment.
3) Any and all agreements reached between the Agent and the Principal for the execution of the present agreement shall be made in writing.
3. Alteration of the Content, Endorsements
1) Any subsequent alteration of the order content by the Principal shall be free of additional charge only as long as no materials have been dispatched and the order has not been released for production respectively.
2) Where production has already been released, the Principal shall be charged for the necessary alteration costs. Any and all alterations shall result in delivery and assembling dates being postponed, without the Agent held liable therefore through contract penalties, deductions or delays in payment.
The individual prices indicated by the Agent in offers, catalogues and on the internet shall be quoted net, i.e. without value added tax. The individually valid value added tax shall be added to the offer sum. Special assembling and services assigned on site shall be invoiced separately on a time and material basis. Any deduction of cash discounts shall be subject to a special written agreement.
5. Deliveries and Services, Endorsements
1) Delivery shall be effected ex works free to the delivery address indicated by the Principal. Delivery periods shall be calculated in delivery weeks. The Agent shall reserve the right to determine the week of delivery. The delivery period shall commence with the date of the final and full, technical and commercial clarification of the order. Clarification of the order exists when any and all details required for order processing have been clarified, any and all drawings, documents, releases and authorizations have been given, any and all agreed payments have been effected and letters of credit have been confirmed.
2) The Principal shall ensure that delivery and installation may be effected without any hindrance at the indicated place of delivery. Since it is generally impossible to state the exact date of delivery in the construction progress at the time the order is placed, a date of delivery shall be agreed in writing not later than 6 weeks prior to the requested delivery date.
3) Where circumstances beyond the Agent’s control such as force majeure, strike, fire, official requirements, lack of material (in full or in part) delay the delivery, the delivery periods shall be reasonably extended.
4) In the event where the goods are not accepted at the agreed date, they shall be stored at the Principal’s cost and risk and payable according to the stipulations set out under 14.).
5) Delivery shall basically be effected to a point behind the first closed door at the indicated place of delivery. Any risk or damage to the merchandise following thereafter shall be borne by the Principal. Where a haulier is involved, the risk shall transfer to the Principal as soon as the merchandise has been received by the haulier.
6) In the event where assembling is included in the scope of services to be provided by the Agent, even carrying the furniture to various places in the building shall be included. Where carrying and distributing equipment in a building object are separately agreed and carried out under our direction, an amount equal to 3% shall be added to the order sum for such carrying! Where the equipment is are carried under the Principal’s own direction, we shall not assume any liability for damages arising on the site or at the furniture during such carrying process.
7) Where the value of the merchandise exceeds 2,000 euros, no additional dispatch and packaging costs shall be charged. Where the value of the merchandise amounts to a maximum of 2,000 euros pro-rata costs for packaging and freight shall be invoiced.
8) Where deliveries result from a subsequent assignment in addition to the original order (additional services), the Agent shall shall use its best endeavours to allow for delivery of the goods with the main order insofar as this can be arranged in due time. As a rule, subsequent orders are separate orders placed after the main order
with the delivery period indicated in the order confirmation starting anew.
6. Partial deliveries
1) Where processing so requires, partial deliveries and subassemblies effected by the Agent shall be allowed. Partial deliveries and subassemblies required by the Principal shall be effected upon agreement and against invoicing the additional transport costs.
Where assembling is required, the terms for assembling shall be valid which are an integral part of the present Terms and Conditions. Where preassembling is required, site clearance shall be ensured. Where, at the time of delivery, assembling is prevented by any hindrance of
the construction works, the costs arising for additional travel and additional personnel respectively shall be invoiced to the Principal.
8. Transfer of Risk
Risk shall transfer to the Principal as soon as the consignment has been surrendered to the person carrying out the transport or as soon as the consignment has left the Agent’s warehouse for dispatch. Where dispatch is delayed upon the Principal’s request, the risk shall be transferred to it upon notification of the readiness for dispatch. Where so required by the Principal, the Agent shall cover the delivery by means of a transport insurance. The cost arising therefrom shall be borne by the Principal.
9. Defects (Principal’s rights)
1) The products are delivered free from production and material defects: the period valid for asserting the claims for defects shall not exceed one year from transfer of risk.
2) Where the Agent’s operation and maintenance instructions are not observed, or where the products are modified, parts are replaced or consumable materials are used which do not comply with the original specifications, any and all claims for defects shall expire unless the Principal fails to confute a reasonable and substantiated claim saying that it was one of such circumstances that caused such defect.
3) The Principal shall notify the Agent forthwith of any defect, however not later than within one week after receipt of the delivered item. Defects which cannot be identified within this period notwithstanding careful checking shall be communicated to the Agent immediately after having been identified.
4) In the event where the Principal is notified of the fact that the products reveal a defect, the Agent, at its discretion and at its own expense, shall require as follows:
a. the defective part and device respectively shall be repaired and subsequently be returned to the Agent;
b. the Principal shall keep ready the defective part and device respectively and a service engineer of the Agent shall be sent to the Principal to carry out the repair works.
Where the Principal requires that reworks be effected at a place indicated by it, the Agent may meet such requirement without charging any exchanged parts. However, working time and traveling expenses shall be paid on the basis of the Agent’s standard rates. Where the cause of the alleged defect lies with a maloperation
on the part of the Principal and the supplier subsequently makes endeavours to remedy such defect, the Principal shall pay for such endeavour as well for traveling to its site.
5) Liability for usual wear shall be excluded.
6) Claims for defects against the Agent shall only be due to the direct Principal and may not be assigned.
The guarantee granted on products of the Agent’s group of companies shall basically be 1 year from transfer of risk. For installed fixtures, display and measuring instruments, electronic components and accessories, the Agent shall grant the guarantee given by the manufacturer. Such guarantee encompasses design, production and material defects. No guarantee shall be granted for natural wear and tear or improper handling of the merchandise and service respectively.
Where the purchased item is altered (e.g. self-building, installation of equipment and accessories), any liability on the part of the seller shall be excluded.
11. Right to Return the Goods
The goods may be returned or replaced in the event where they do not comply with the acknowledged order, where they are entirely undamaged and where they were not made to the customer’s specifications or where they are no specific version. In the event where the returned goods are accepted as a gesture of goodwill, the Agent shall charge the additional expenditure caused by such exchange/return of the goods and service.
12. Spare Parts
For the duration of 5 years from delivery of an equipment, the Agent shall supply spare parts for the same at the prices for spare times valid at that time. This does not include any alterations of decoration and shades. The cost of such return delivery and new delivery respectively shall be borne by the Principal.
13. Reservation of title
1) Until the complete satisfaction of any and all claims (including any and all balance claims resulting from the current account) the Agent may be entitled to against the Principal now or in future for whatever legal cause, the following securities shall be granted to the Agent, and the Agent shall release such securities upon request at its discration insofar as its value sustainably exceeds the value of the claims by more than 20 %.
2) The goods shall remain the property of the Agent until any and all payments resulting from the supply agreement have been received. Any processing or alteration shall always be made for the Agent as a manufacturer but without any obligation on its part. Where the (co-)ownership of the Agent expires due to combining, it shall already be agreed now that the Principal’s (co-)ownership of the uniform matter shall transfer to the Agent in proportion to its value (invoice value). The Principal shall keep the (co-)property of the Agent free of charge. Any goods the Agent may have a right of (co-)ownership to shall hereinafter be referred to as goods subject to retention of title.
3) The Principal shall be entitled to process and to alienate the goods subject to retention of title in regular business as long as it is not in default. Pledging or security transfer of title shall not be allowed. The Principal shall already now transfer to the Agent in full as a security any and all liabilities resulting from the resale of the reserved goods of from whatever other legal cause (insurance, tortuous act). The Principal irrevocably empowers the Agent to collect the transferred liabilities on the account of the Principal on its own behalf. Such collection authorization may only be revoked where the Principal fails to properly meet its payment obligations.
4) With the access of a third party to the reserved goods including but not limited to attachment, the Principal shall indicate that such goods are the property of the Agent and inform it without delay so that the Agent can assert its property rights and require payment. Where the third party is not in a position to reimburse the Agent for the legal or out-of-court expenses incurred in this connection, the Principal shall be held liable for this.
5) Where the Principal acts in a way contrary to the contractual obligations – including but not limited to default in payment – the Agent shall be entitled to rescind the contract and to require the return of the reserved goods. Taking back the purchased item by the Agent shall constitute a withdrawal from the contract.
Upon taking back the purchased item, the Agent shall be entitled to dispose of the same, the earnings from such disposal – less reasonable disposal costs – shall be offset against the accounts payable by the customer.
14. Payment, Maturity of Payment
Any and all individual prices are quoted without value-added tax, which shall be shown separately at the bottom of invoices. The value added tax rate shall result from the legal requirements. Upon the Agent’s request, a security shall be provided to secure the payments.
Upon provision of such security (e.g. unlimited and absolute guarantee of a German bank), deliveries shall be effected only as covered by the amount of the security provided. Unless otherwise agreed, payments shall be effected as follows:
Amounts below € 15,000.00: 14 days net.
For orders exceeding € 15,000.00, the following payment method may be agreed: Any partial payments agreed shall immediately be payable strictly net, value-added tax included. The balance payment shall be effected immediately upon receipt of the final payment or acceptance. For the payments oriented on the handling process the following method of payment may be agreed:
• 30 % of the order value upon receipt of the order confirmation
• 30 % with the notification of our readiness for delivery
• 30 % after delivery has been effected
• 10 % 14 days after the goods have been received and the final invoice has been issued.
Partial invoices shall be issued for the individual partial amounts. In case of default of acceptance as well as in case of postponing agreed dates for delivery and call order dates or storage due to the ordering party’s failure to accept the goods, 70 % of the value of the goods shall become due for payment. Where more than 3 weeks are exceeded, 90 % of the value of the goods shall become due as a partial payment. The ordering party shall be allowed to withhold a certain amount for security only where so agreed at the conclusion of the contract, and the Agent may clear it against bank guarantee. The purchaser shall only be entitled to set off, withhold or reduce payments, even where notice of defects or counter-claims are put forward, where such counterclaims have been asserted as indisputable or legally binding.
15. Modification of design
The Agent reserves the right to modify the design any time; however, it shall not be obliged to effect such modification at the products already delivered.
16. Patents/Property Rights/Copyrights
1) The Agent shall release the Principal and its buyers from any claims resulting from any infringement of copyrights, brands or patents unless the draft of a delivered item comes from the Principal. Such obligation to release on the part of the Agent shall be limited to the amount of the foreseeable damage. An additional condition precedent for such release shall be that the conduct of litigation be left to the Agent and that the alleged violation of rights is exclusively due to the design and characteristics of the items supplied by the Agent without any connection or use together with other products.
2) The Agent shall at its discretion be entitled to release itself from the obligations accepted with paragraph 1 by either
a. obtaining the required licenses for the allegedly infringed patents or
b. providing the Principal with a modified article of sale and parts thereof respectively, which in the event of exchange with the infringed article of sale or parts thereof respectively, would eliminate any allegations of infringement with respect to the article of sale.
17. Data Protection
In accordance with the applicable regulations for the protection of personal data, any and all personal data shall be processed and used solely for the purpose of contract implementation and for the protection of our own legitimate business interests with respect to the advising and servicing of our Principal.
1.) Claims for damages shall be excluded, irrespective of the type of infringement of an obligation including tort, unless caused by willful misconduct or gross negligence.
2.) Where material contractual obligations are infringed, the Agent shall be held liable for each and every negligence, however not exceeding the foreseeable, typically occuring damage. Claims for foregone profit, expenditure saved from compensation claims of third parties as well as for any other indirect consequential damage may not be required unless the Agent has guaranteed a particular quality characteristic of the product with the purpose of safeguarding the Principal against such damage.
3.) The liability restrictions and exclusions indicated in paragraphs 1 and 2 shall not apply to claims that have arisen due to fraudulent behavior on the part of the Agent, or where there is liability for guaranteed quality characteristics, for claims in accordance with the product liability law, or for compensation claims resulting from injury to life, body or health.
4.) Insofar as the liability of the Agent is excluded or limited, such exclusion of limitation shall also apply for the Agent’s employees, workers, representatives and vicarious agents.
19. Disclaimer for External Links
On its sites, the Agent refers to other sites on the internet. The following shall apply for such links: The Agent has no influence on the design of the contents and the linked sites. We do therefore not assume any liability or guarantee for the contents thereof. The same shall apply for any and all links and any and all contents of the sites leading to such links.
20. Samples and Drawings
The Agent reserves its rights of title and copyrights to photocopies, drawings, calculations and other documents. This shall also apply for such written documents referred to as “confidential”. Before the Principal passes on such documents to third parties, it shall obtain the explicit written approval by the Agent. After use the samples shall be collected in the course of a travel into the region. The interested party/Principal shall handle the samples with care, keep them in proper custody and surrender them at collection. Any drawings, furnishing proposals and executions plans are the intellectual property of the company and shall constitute the basis for execution by third companies. Where “execution planning” has been agreed, such planning shall become the basis for the execution of the furnishing object in all details. The latest plan agreed shall be released by the Principal countersigning it.
Where maintenance of the equipment or parts of the equipment has been agreed, the provisions under the maintenance agreement shall apply.
22. Place of Jurisdiction/Partial Nullity/Addresses/Severability Clause
1.) The present Terms and Conditions as well as any and all privities between the Agent and the Principal shall be ruled by the laws of the Federal Republic of Germany. The provisions under the UN Purchase law shall not apply.
2.) The competent court shall be the court of the Agent. Place of jurisdiction shall be the Agent’s head office. The latter shall be entitled to sue the Principal even at the court if its residence.
3.) Unless otherwise stipulated in the order confirmation, the head office of the Agent shall be the place of performance.
4.) Where any provision under the present Terms and Conditions or any provision within the scope of any other agreements is or becomes invalid, the validity of the remaining provisions or agreements shall not be affected thereof and shall be replaced by a provision close to the economic purpose of the invalid one.