of Decor-Walther Einrichtungs GmbH for entrepreneurial business transactions
(Last updated April 2019)
I. General - Scope
1. Our General Terms and Conditions of Supply (GTCS) shall apply for all our business relationships with our customers (hereinafter "Customer"), however only if the Custom-er enters into a business relationship with us as an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB) or is a legal person under public law or a separate estate under public law.
2. Our GTCS shall apply exclusively. Any differing, contradictory or supplementary Gen-eral Terms and Conditions of the Customer shall only form part of the contract if we have expressly approved their validity. This requirement for approval applies in all cas-es, for example, even if we deliver without reservation in full knowledge of the General Terms and Conditions of the Customer.
II. Offers, Conclusion of Contract, Product Specification
1. Our offers are subject to confirmation and are not binding. If a Customer makes an order, this shall be deemed to be a binding contract offer. Provided that nothing else re-sults from the order, we shall have the right to accept the order within 4 weeks from the end of the calendar week in which it is dispatched by the Customer. A contract shall on-ly come about on our written confirmation of order or on our execution of the order.
2. The supply contract concluded in writing, including these GTCS, is decisive for the sup-plier relationship between us and the Customer. Individual agreements made with the Customer in particular cases (including side agreements, amendments and supple-ments) prevail in any case over these GTCS. For the content of such individual agree-ment a written contract or our written confirmation shall be decisive. The telecommuni-cative transmission of the respective document shall be sufficient.
3. Information from us on the subject of the delivery or service (e.g. weights, dimensions, usage values, loading capacity, tolerances and technical data) as well as our represen-tations of the same (e.g. drawings and figures) are only approximately applicable, un-less its applicability for the purpose contractually intended requires exact conformity. These shall not be considered guaranteed characteristics, rather descriptions or charac-terisations of the delivery or service. Customary deviations and deviations which occur on the basis of legal regulations or represent technical improvements, as well as the re-placement of components by equal parts shall be permitted as far as they do not impair the contractually intended use.
III. Prices and Payment Conditions, Place of Performance
1. Provided that nothing else has been agreed, our prices are in euros net "ex works" ("exw") Offenbach am Main, Germany (Incoterms 2010). Shipping and packaging costs and VAT in their respective statutory amount are not included therein and are also to be borne by the Customer. For export shipments, this shall also apply for customs and other official levies.
2. The Customer shall only be permitted to offset or retain claims if its counterclaims are upheld by a court of law or are undisputed. In the event of defects Section V.4. sen-tence 2 shall remain unaffected.
3. The place of performance for all obligations for both Parties shall be Offenbach am Main, unless another place of performance has been expressly agreed for a specific obligation to perform.
IV. Delivery, Delivery Time
1. Provided that nothing else has been agreed by the order confirmation or otherwise in writing, deliveries are "ex works" ("exw") Offenbach am Main, Germany (Incoterms 2010). This also applies if we ship the merchandise to another place on the request of the Customer.
2. Partial deliveries are permitted unless they are unreasonable for the Customer with re-gard to the use expressly agreed in the contract. If permitted partial deliveries take place, the transfer of risk shall apply to these.
3. Our liability in the event of default is determined in Section VI.
V. Claims of the Customer for Defects
1. Statutory provisions shall apply for the rights of the Customer on account of material defects and defects of title, unless otherwise specified hereinafter. Statutory special provisions shall remain unaffected in all instances of unprocessed merchandise being delivered to a consumer even if such consumer has further processed the merchandise (supplier regress in accordance with Section 478 BGB).
2. The Customer’s claims for defect presuppose that it has duly fulfilled its duties of in-spection and notification of complaint (Section 377 HGB). If a deficiency arises on in-spection or later, we are to be informed of this in writing without delay. Independent of these duties of inspection and notification of complaint, the Customer is to report obvi-ous defects (including incorrect and short deliveries) on delivery thereof in writing with-out delay. Should the Customer neglect to carry out the proper inspection and / or dis-patch of a notification of defects our liability for defects that have not been reported in good time or at all shall be excluded.
3. If the delivered item is defective, we can at first decide whether we provide a supple-mentary performance by eliminating the defect (improvement) or by delivering a fault-less item (replacement). Our right to refuse the selected kind of supplementary perfor-mance under the statutory conditions remains unaffected.
4. We have the right to make the due supplementary performance dependent on the Cus-tomer paying the due purchase price/remuneration. However, the Customer shall be entitled to retain a share of the purchase price / remuneration that is reasonable in pro-portion to the defect.
5. Expenditure, particularly transport, infrastructure, labour and material costs, as well as costs for disassembly and reassembly if applicable required for the purpose of review and supplementary performance shall be borne or reimbursed by us in accordance with the statutory provisions if a defect is in fact present. If a Customers demand for repair proves to be unjustified, however, we can request that the Customer refunds the costs arising for this unless the absence of defect was not apparent to the Customer.
6. Claims on the part of the Customer for damages or compensation for wasted expenses shall exist only in accordance with Section VI. and shall in all other respects be exclud-ed.
VI. Other Liability
1. Insofar as nothing different is provided for in this GTCS including the following provi-sions, we shall be liable in the case of a breach of contractual and non-contractual du-ties in accordance with the relevant statutory provisions.
2. We shall be liable for damage - regardless of its legal basis - in the event of intent and gross negligence. In the event of slight negligence we shall only be liable for
a) Damage from injury to life, body or health,
b) Damage from the culpable breach of an essential contractual obligation (an obli-gation, the fulfilment of which is prerequisite to enable the proper implementation of the contract and upon compliance with which the contract partner regularly re-lies and should be able to rely); in this instance, our liability is limited to compensa-tion for the foreseeable damage typically occurring.
3. The limitations of liability arising from Paragraph 2 above shall not apply if we fraudu-lently hide a defect or have offered a guarantee for the properties of the merchandise. The same applies for the Customers claims in accordance with product liability law.
VII. Retention of Title
1. We retain ownership of the merchandise delivered by us until all present and future claims from the delivery contract and an ongoing business relationship (secured claims) have been paid in full; the retention shall refer to the recognised balance if the account relationship in question is a current account.
2. The Customer is obliged to look after the merchandise. The Customer is obliged to suf-ficiently insure the merchandise to its original value at its own cost against damage caused by fire, water, breakage, transport or theft and maintain this insurance for the duration of our reserved ownership.
3. The Customer is entitled to resell the merchandise under retention of title in the ordinary course of business. In this instance, the following provisions shall apply in addition.
a. Claims against third parties arising from the resale of the merchandise shall al-ready now be assigned by way of the security by the Customer to us entirely. If there is a current account relationship between the Customer and the third party, the assignment refers to the recognised balance and the "causal" balance in the event of third party insolvency. We accept the assignment.
b. The Customer shall still be authorised to collect the claim alongside us. We shall endeavour not to collect the claim, as long as the Customer meets its payment obligations to us, does not default in payment, no application for insolvency pro-ceedings is made, and its performance capacity is not otherwise deficient or lack-ing. However, if this is the case, we may request that the Customer disclose the claims assigned and the debtors in question, make all indications required for col-lection, surrender the relevant documents, and notify the debtors (third parties) of such assignment of claims.
c. If requested to do so by the Customer, we shall release securities at our discretion if the realisable value of the securities of our claims exceeds 10 percent.
VIII. Proof in Cases of Export Delivery and Intra-Community Supply of Goods, Con-tractual Penalty
1. If delivery is made by us as a VAT free export delivery or contract processing of export items or VAT free community supply of goods within the meaning of Sections 4 no. 1 lit. a and b, 6, 6a, 7 German Turnover Tax Act (UStG), the Customer is obliged to transfer all written documents on our request in accordance with Sections 8 et seqq., 17a et seqq. Tax Implementation Order (UStDV) that are required to receive VAT exemption, in particular, but not exclusively
a. An export certificate from the border customs office of a Member State of the European Union monitoring the delivery from the community area for export de-liveries or contract processing of export items;
b. for intra-Community supplies- irrespective of whether the transport or dispatch to the foreign Community area (excluding the territory of the Federal Republic of Germany) was performed by us or by the Customer - a written confirmation of the Customer that the item of delivery has entered the foreign Community area (certification of entry). The Customer undertakes to provide a written certification of entry, which must include at least the following information:
aa. Name and address of the Customer
bb. Quantity and commercial description of the delivery item including a product iden-tification number/ product identification code
cc. If the item was transported by us or dispatched by us or by the Customer, the place in the foreign Community area where the item was received as well as the month of receipt and if the item was transported by the Customer, the place in the foreign Community area where the transport of the item ended as well as the month of arrival
dd. Date of issue of the confirmation
ee. The Customer’s signature or the signature of any of his agents in charge of ac-ceptance. No signature is required if the certification of entry is transmitted elec-tronically, provided that the electronic transmission has evidently started in the Customer’s or the agent’s domain. The Customer hereby undertakes to deliver the certification of entry in writing in the form of a signed original upon our request if this should be required.
2. If the Customer does not send us the requested documents until the deadline, after we have requested the transfer thereof from him setting a deadline of two weeks, he is obliged to pay a contractual penalty to us. The amount of the contractual penalty is the amount in euros that is equal to the VAT being cancelled on the delivery, if this would arise. We reserve to claim further damages. The contractual penalty is credited against a damage as a result of any additionally demanded VAT by official authorities.
IX. Applicable Law, Place of Jurisdiction
1. For these GTCS and all legal relationships between us and the Customer, the law of the Federal Republic of Germany shall apply, excluding international and supranational (contract) law, particularly the UN Convention on Contracts for the International Sale of Goods. The preconditions and effects of the retention of title pursuant to Section X shall be subject to the laws of the respective location where the merchandise is stored, inso-far as the choice of law agreed on in favour of German law is inadmissible or invalid.
2. If the Customer is a merchant, legal person under public law or a separate estate under public law, the place of jurisdiction shall be our registered office; however, we also have the right to sue the Customer at another location or at any other permissible place of ju-risdiction in individual cases.