I. Scope of application
Our terms and conditions of delivery and payment, with which our customer agrees when placing an order, shall apply exclusively. They shall only apply in business transactions with merchants and with legal entities under public law. They shall apply to all delivery orders and our other services in current and future business relations, even if no special order confirmation is issued within the framework of a business relationship. Deviating agreements and terms and conditions are only binding if they have been confirmed by us in writing.
It is agreed that German law shall apply. The United Nations Convention on Contracts for the International Sale of Goods (CISG) and the rules of private international law shall not apply.
II. Terms of sale
We only deliver on the basis of our general terms and conditions. Series-produced furniture is sold according to sample or catalogue and is delivered as true to sample as possible, otherwise the goods are delivered according to average type and quality. Customary minor deviations in colour, grain, pattern and shape are in accordance with the contract. If the goods cannot be delivered in the condition offered at the time of conclusion of the contract because changes have been made to series products in the meantime, we shall be entitled to withdraw from corresponding delivery contracts or to deliver the changed version. We reserve the right to minor deviations in colour, dimensions or equipment of the ordered product in the aforementioned case.
Offers made by us are subject to change. All orders must be confirmed by us in writing. In the case of purchase or acceptance of goods ex works or ex warehouse, the delivery note shall be deemed to be the order confirmation. Oral subsidiary agreements also require written confirmation. Objections to the order confirmation or the confirmation of subsidiary agreements must be communicated to us immediately within 3 working days at the latest. Purchasing conditions of the buyer, even if reference is made to them in the order, are not recognised.
All prices are quoted with delivery free domicile including packaging, unless otherwise agreed. Any deduction (e.g. of discount etc.) requires a separate agreement. The prices valid at the time of delivery shall apply. All prices are subject to the applicable value added tax.
- All cases of force majeure, operational disruptions, shortages of raw materials or operating materials, strikes of any nature whatsoever, and all acts of government which impair our ability to deliver shall release us from our obligation to comply with delivery deadlines for the duration of their effect without any obligation to pay compensation and shall also entitle us to withdraw in whole or in part from any delivery obligations entered into without compensation. We shall have the same rights if unforeseen price increases occur on the material and wage market which make delivery at the agreed prices unreasonable for us.
- Furthermore, non-compliance with delivery dates and delivery periods by us shall only entitle the buyer to assert the right to which he is entitled if he has granted us a reasonable period of grace of at least 4 weeks.
- Unless otherwise agreed in writing, shipping and packaging shall be at the expense of the buyer. form1 shall choose the shipping route and method; delivery shall be made to the business address of the buyer which allows for commercial delivery in an appropriate manner. Deviating unloading points must be agreed in writing.
- In the event of shipment by vehicle or contract carrier form1, the risk of delivery shall pass to the buyer upon handover of the goods. The buyer is obliged to provide sufficient personnel and technical equipment (fork-lift truck, etc.) for unloading the furniture at his own expense. If the goods are collected by the buyer’s vehicle or contract carrier, the risk shall pass to the buyer when the goods are made available at the business premises or warehouse. The goods remain uninsured; the buyer is responsible for taking out transport insurance if he deems such insurance necessary.
- In the event of unjustified non-acceptance of the delivered goods, all consequential costs and damages shall be borne by the buyer.
- Return shipments of delivered goods will not be accepted without the prior written consent of the seller.
- In the event of agreed installation, the customer shall be obliged to ensure proper access directly to the premises to be installed. Insofar as means of transport such as cranes and lifts are available, these shall be made available to us or the commissioned subcontractors free of charge.
- The buyer shall be liable for the storage of the delivered movables at the installation site. This includes in particular the theft-proof and dry storage of the items.
- The buyer shall ensure that the assembly can be carried out without delay; in particular, that the assemblers are not hindered by other craftsmen. Furthermore, the rooms to be set up in the assembly area shall be kept ready, if necessary, heated, cleaned, sufficiently lit and provided with electricity. The costs for electricity and water consumption shall be borne by the buyer. Floors must be made non-slip and adequately covered by the buyer so that soiling or damage cannot occur.
- If, in the course of the installation, connections with objects of the buyer or third parties (e.g. fastening to masonry) are to be made, the buyer shall be obliged to inform us of hazardous locations before commencing the work, in particular the exact course of electricity, gas, water and other piping systems shall be disclosed.
- We are not obliged to examine the properties of the walls or objects to which fastenings are to be made in the course of the installation. On the other hand, the buyer is obliged to inform us of any properties of the walls or objects that could jeopardise easy and problem-free assembly. Any additional expenses incurred due to unknown properties of the walls or objects shall be borne by the buyer.
- Additional costs for overtime and assembly delays caused by the buyer as well as work not included in the order confirmation or work resulting from defective stock shall be charged separately in addition. This shall also apply in the event that we have undertaken the assembly work at a flat rate or the assembly work has been granted as a discount.
- The cleaning of the premises after installation is to be carried out by the buyer at his own expense. In the absence of contractual agreements to the contrary, the installation services offered by us do not include the installation and connection of electrical appliances of all kinds or lighting fixtures. Unless otherwise agreed, this work is to be carried out by the buyer. Any packaging material is to be disposed of by the customer at his own expense.
VI. Acceptance, call-off
If the buyer does not specify a certain delivery date within a period of one week despite being requested to do so, we shall be entitled to deliver the entire ordered quantity without setting a further deadline or notification or to store it with us or a third party at the buyer’s expense. Upon expiry of the one-week period, the risk of accidental loss and deterioration shall pass to the buyer. The same applies accordingly if, in the case of purchase on call, the buyer has not called off the order quantity within 4 weeks after completion of the goods.
In the aforementioned cases, the purchase price is due immediately after the expiry of the one-week period. We are entitled to claim storage charges.
- Unless otherwise agreed, our invoices are payable net cash within 30 days from the date of invoice, in the case of partial deliveries on a pro rata basis.
- Invoices are dated on the day of loading.
- If the buyer or his customer is not present on the delivery date despite prior notification and if he has not informed us of this immediately in advance, the buyer shall reimburse all additional costs incurred as a result, in particular delivery attempts or storage costs. Furthermore, the claim for payment shall become due immediately upon a futile delivery attempt, provided that the buyer was aware of this and did not notify the customer of his inability to attend in due time.
- A set-off on the part of the buyer is only permissible with undisputed or legally established claims. The assertion of a right of retention by the buyer is excluded, unless it is based on the same contractual relationship or the counterclaims are undisputed or legally established.
- Our invoice claims shall bear interest from the due date, even without a reminder, at a rate of 5% above the applicable base rate of the ECB. The buyer is at liberty to prove that damage caused by default did not occur or did not occur in this amount. § Section 353 of the German Commercial Code (HGB) and Section 286 of the German Civil Code (BGB) shall remain unaffected. The assertion of a higher damage caused by default is not excluded.
- With regard to deliveries not yet made, we shall be entitled in the aforementioned cases to withhold outstanding deliveries and to demand advance payment or the provision of security, irrespective of the further statutory options. The same shall apply in the event that events occur with the buyer which make his creditworthiness appear doubtful or if such circumstances existing prior to the conclusion of the contract only become known to us subsequently. If the advance payment or the provision of security is not made within a certain period of grace, we shall be entitled to withdraw from the contract or to claim damages for non-performance.
- Notices of defects do not release from the obligation to pay in due time.
VIII. Compensation for damages due to non-performance
VIII Compensation for damages due to non-performance
If the buyer does not accept a properly ordered good or if the buyer declares prior to delivery, literally or analogously, also by silence in response to a corresponding written request containing a corresponding reference to the legal consequences of this paragraph, that he will not accept the good, we may withdraw from the contract without further reminder and demand damages instead of performance. We may demand 20% of the purchase price as liquidated damages, subject to proof of higher damages. The buyer is free to prove that no damage or significantly lower damage has been incurred.
IX. Retention of title
- We reserve title to the object of sale until receipt of all payments (purchase price, transport remuneration, interest on arrears, other damage caused by default) arising from the existing business relationship with the customer. In the event of conduct in breach of contract on the part of the customer, in particular in the event of default in payment, we shall be entitled to take back the object of sale. This does not constitute a withdrawal from the contract unless we declare this in writing. The seizure of the object of sale by us shall always constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to realise it; the proceeds from its use shall be set off against the customer’s liabilities less reasonable realisation costs.
- We are entitled to take possession of the object of sale ourselves; the customer expressly agrees to this, so that this does not constitute unlawful interference.
- The customer is obliged to treat the object of sale with care; in particular, he is obliged to insure it adequately at his own expense against fire, water and theft at its replacement value.
- In the event of seizures or other interventions by third parties, the purchaser must inform us immediately in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
The purchaser shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) accruing to him against his customers or third parties from the resale or processing, irrespective of whether the object of sale has been resold without or after processing. The seller hereby accepts the assignment. The buyer shall remain authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, as long as no application has been filed for the opening of insolvency proceedings or for the implementation of out-of-court settlement proceedings with the creditors concerning the settlement of debts (§ 305 I No. 1 InsO), and as long as there is no protest of a cheque or bill of exchange or no suspension of payments. However, if this is the case, we may demand that the customer informs us of the assigned claims against the debtor, provides all information necessary for collection, hands over the relevant documents and informs the debtor (third party) of the assignment. The collection authorisation relates to the entire balance claim.
- We provide a warranty for the delivered goods for a period of 24 months from the date of delivery. The warranty period for electrical appliances and associated lighting supplied by us is six months. Excluded from the warranty are in particular
- Goods provided by the buyer
- Damage resulting from defects in the existing building (e.g. defective masonry, dampness in the living space, etc.).
- Compatibility of the materials used by us with other parts and properties of the room to be furnished, e.g. foreign furnishings, light colours, room climate, heating and/or the like Improper use, faulty operation or handling, failure to observe the installation recommendations, natural wear and tear
- The buyer shall be obliged to inspect the goods immediately for any defects and to notify us in writing of any material defect without delay, while not recognisable defects and faults shall be notified immediately upon their discovery. The type and extent of the alleged defect must be clearly evident from the notice of defect. If defects and faults are not notified in time, the delivery shall be deemed to have been approved and the assertion of the warranty claim shall be excluded.
The buyer fulfils his obligation to inspect if, without opening the packaging, he inspects the goods by suitable methods for externally recognisable quantitative or qualitative defects. Suitable inspection methods are in particular, but not conclusively, (i) the inspection of the quantity of goods delivered, (ii) the visual inspection of the packaging and (iii) the inspection of the goods for externally recognisable transport and/or other damage.
Complaints about packaging, mirrors, glass, etc. must be noted on the delivery note upon receipt of the goods.
Until a complaint has been dealt with, the defective goods may neither be sold nor changed without our consent; otherwise the buyer loses his warranty rights.
- In the event of a justified notice of defect, we may, at our discretion, repair the goods, take them back or replace them. In the event of two failed attempts at repair, the buyer shall be entitled to withdraw from the contract. Further warranty claims, in particular claims for damages due to non-performance, are excluded. In the event of rectification of defects, the buyer shall, upon request, send the goods to us in the manner determined by us. If additional expenses are incurred in connection with the rectification of defects because the purchased item has been taken to a place other than the buyer’s commercial establishment after delivery, the buyer shall bear the additional costs incurred as a result.
- In the event of repair or replacement, the warranty shall be limited to the original period of time pursuant to clause 1.
XI. Right of retention/offset
The assertion of a right of retention is excluded unless the Buyer is entitled to recognised or legally established warranty claims against a purchase price claim from the same contractual relationship. Similarly, offsetting with counterclaims is excluded unless these are undisputed or have been legally established.
XII. Compensation for Damages
Claims for damages against us, our legal representatives and vicarious agents on the grounds of tort, breach of duties during contract negotiations, positive breach of contract due to delay and other claims for damages are excluded. This shall not apply if our legal representatives and vicarious agents are guilty of intent or gross negligence.
XIII. Data Protection
We are entitled to store and use the data arising from the business relationship in accordance with the Federal Data Protection Act.
It is agreed that objects furnished by us may be used for advertising purposes (reference lists, brochures, press publications, etc.) with mention of the buyer’s name as well as pictorial representations of the furnished object. In this context, the buyer grants us the right to take photographs of the furnished objects.
Sample books, catalogues, photos, illustrations, sketches etc. remain our property and may be reclaimed at any time. Our products and trademarks which are subject to patent, copyright or design protection may not be imitated, even if design protection does not exist. Documents which are exclusively intended for the buyer may not be made accessible to third parties. Samples and products or surface samples shall be regarded as approximate illustrative pieces for quality, dimensions and colour. They do not constitute warranted characteristics; this applies in particular to DIN specifications.
XVI. place of jurisdiction
The local court of Rheda-Wiedenbrück shall have jurisdiction for all legal disputes irrespective of the amount in dispute. This agreement on the place of jurisdiction shall only apply in business transactions with fully qualified merchants and legal entities under public law.
XVII Severability clause
Should individual provisions be invalid or become invalid due to a circumstance occurring at a later date, this shall not affect the validity of the remaining provisions.