Gen­er­al Terms of Sale and Deliv­ery – Deco Design Fürus GmbH

As of Jan­u­ary 2020

1. Appli­ca­tion of the terms

  1. The fol­low­ing Terms of Sale and Deliv­ery (the “Terms”) apply to entre­pre­neurs, legal enti­ties under pub­lic law, and spe­cial funds under pub­lic law (col­lec­tive­ly the “Buy­er”).
  2. We make our offers and ren­der our deliv­er­ies and ser­vices on the exclu­sive basis of these Terms of Sale and Deliv­ery. They will also apply to all future trans­ac­tions with Buy­er.
  3. Dif­fer­ing or con­tra­dic­to­ry con­di­tions will not be acknowl­edged unless we have agreed to their appli­ca­tion in writ­ing.

2. Offers; Cost esti­mates; Order con­fir­ma­tion; Scope of deliv­ery; Enter­ing into a con­tract

  1. Any offers we make are sub­ject to change. Any agree­ments entered into oral­ly or over the tele­phone are invalid unless we con­firm them in writ­ing.
  2. The doc­u­ments asso­ci­at­ed with our offers and order con­fir­ma­tions, such as illus­tra­tions and draw­ings; infor­ma­tion on weight, mate­ri­als, and dimen­sions; and infor­ma­tion in brochures; are only approx­i­ma­tions unless we express­ly des­ig­nate them as bind­ing. We reserve all copy­rights, author’s rights, and oth­er pro­pri­etary rights to all ten­der doc­u­ments. Such doc­u­ments may not be made acces­si­ble to third par­ties. Buy­er shall return all ten­der doc­u­ments to us with­out undue delay at our request, pro­vid­ed they are no longer need­ed dur­ing the ordi­nary course of busi­ness. This also applies to all oth­er doc­u­ments, drafts, sam­ples, tem­plates, mod­els, etc.
  3. Buy­er shall pay the cost esti­mates.
  4. Orders become bind­ing for us when we express­ly con­firm them in text form (includ­ing through invoic­es or deliv­ery notes) or fill them, espe­cial­ly (but not exclu­sive­ly) by ship­ping the goods. Oth­er­wise, all agree­ments must be con­firmed by us in text form. The same applies to sup­ple­ments, amend­ments and col­lat­er­al agree­ments.

3. Prices and pay­ment con­di­tions

  1. Unless oth­er­wise agreed, prices apply ex works.
  2. Our invoic­es are due for pay­ment with­in 30 days from the respec­tive invoice date. If Buy­er pays an invoice with­in 10 days from its invoice date, Buy­er may deduct 2% from the net price unless the Buy­er is in arrears with oth­er invoic­es.
  3. For orders of goods, we may demand a down pay­ment of up to 100% of the order val­ue.
  4. Buy­er is enti­tled to rights of setoff or reten­tion only inso­far as its claim is uncon­test­ed or has been final­ly adju­di­cat­ed.
  5. If it becomes recog­nis­able after the con­tract has been entered into that our claim to the pay­ment is jeop­ar­dised by Buyer’s insol­ven­cy, we may refuse to per­form the ser­vice we owe and either demand pro­vi­sion of secu­ri­ty or spec­i­fy a peri­od for pay­ment pari pas­su against deliv­ery. If that peri­od expires to no avail, we may with­draw from the con­tract and demand dam­ages. No peri­od needs be set if Buy­er seri­ous­ly and defin­i­tive­ly refus­es to pay or if spe­cial cir­cum­stances exist that jus­ti­fy our imme­di­ate with­draw­al when con­sid­er­ing rec­i­p­ro­cal inter­ests.

4. Deliv­ery peri­od

  1. Time lim­its and dead­lines we pro­pose for deliv­er­ies and ser­vices are always approx­i­ma­tions unless a fixed time lim­it or dead­line has been agreed. If ship­ping has been agreed, deliv­ery peri­ods and dead­lines refer to the date of han­dover to the freight for­warder, freight car­ri­er, or oth­er third par­ty com­mis­sioned with trans­port. We will com­ply with deliv­ery dates only if we have received all the doc­u­ments that Buy­er must deliv­er and Buy­er has com­plied with the agreed pay­ment con­di­tions and its oth­er oblig­a­tions.
  2. An agreed deliv­ery peri­od is deemed com­plied with if the ship­ment is sent or picked up with­in that peri­od. If the deliv­ery is delayed and Buy­er is to blame, the time lim­it will be deemed met if the com­ple­tion or readi­ness for ship­ment is report­ed with­in the agreed peri­od.
  3. Par­tial deliv­er­ies are per­mis­si­ble to the extent that Buy­er finds accept­able.
  4. If we are pre­vent­ed from meet­ing our oblig­a­tions by the occur­rence of unfore­see­able extra­or­di­nary cir­cum­stances that we could not have avert­ed even by exer­cis­ing the dili­gence called for by the respec­tive cir­cum­stances (includ­ing with­out lim­i­ta­tion break­downs, offi­cial inter­ven­tions, delays in the deliv­ery of key raw mate­ri­als, or dif­fi­cul­ties in ener­gy sup­ply), whether those cir­cum­stances affect our fac­to­ry or our upstream sup­pli­ers, the deliv­ery peri­od will be extend­ed for as long as we are pre­vent­ed from per­form­ing, unless the deliv­ery or ser­vice is impos­si­ble. If those cir­cum­stances pre­clude the deliv­ery or ser­vice, we will be exempt from our deliv­ery oblig­a­tion.
  5. The deliv­ery peri­od will also be extend­ed appro­pri­ate­ly if strikes or lock­outs occur. If the deliv­ery or ser­vice is impos­si­ble, we will be exempt from our deliv­ery oblig­a­tion. If the deliv­ery peri­od is extend­ed by more than two months in the afore­men­tioned cas­es, Buy­er may with­draw from the con­tract. Buy­er may not assert claims for dam­ages.
  6. We may plead the cir­cum­stances men­tioned here only if we have informed Buy­er there­of.

5. Ship­ping; Trans­fer of risk

  1. Risk is trans­ferred to Buy­er on han­dover of the deliv­ery object to the freight for­warder, freight car­ri­er, or oth­er third par­ty nom­i­nat­ed for the dis­patch (“han­dover” for these pur­pos­es means when the load­ing pro­ce­dure begins), if not before. This also applies if par­tial ship­ments are made, or if we have tak­en on oth­er ser­vices (such as ship­ping or instal­la­tion). If ship­ping or han­dover is delayed and Buy­er is to blame, the risk will be trans­ferred to Buy­er as of the day on which the deliv­ery object is ready to be shipped and we have noti­fied Buy­er there­of.
  1. We shall insure the ship­ment against theft; dam­age from break­age, trans­port, fire, or water; or oth­er insur­able risks; only on Buyer’s express request.

6. Reten­tion of title

  1. The deliv­ered goods will remain our prop­er­ty until all agreed prices have been paid in full, includ­ing all claims aris­ing from the busi­ness rela­tion­ship and future receiv­ables, and until all cheques and bills of exchange have been redeemed (those goods, the “Reserved Goods”).
  2. Buy­er may resell the Reserved Goods in the due course of busi­ness. Buy­er here­by assigns to us its claims aris­ing from the resale of the Reserved Goods, includ­ing with­out lim­i­ta­tion the pay­ment claim against its buy­ers. We accept this assign­ment. Buy­er shall inform its debtors of the assign­ment at our request. Buy­er shall inform us of its receiv­ables and the names of its debtors.
  3. Buy­er may col­lect receiv­ables aris­ing from the resale. If the pay­ment is late, or if cir­cum­stances arise that in our com­mer­cial dis­cre­tion are suit­ed to lessen Buyer’s cred­it­wor­thi­ness, we may with­draw that right of col­lec­tion.
  4. Any pro­cess­ing of the Reserved Goods is deemed per­formed on our behalf as the man­u­fac­tur­er for the pur­pos­es of § 950 of the Ger­man Civ­il Code (“BGB”), but will not oblig­ate us in any way. If the Reserved Goods are processed or com­bined with oth­er items not belong­ing to us, we will acquire co-own­er­ship of the new item in the ratio of the net invoice val­ue of the Reserved Goods to the net invoice val­ue the oth­er goods had when they were processed or com­bined.
  5. Goods that are our prop­er­ty may not be trans­ferred by way of secu­ri­ty. If third par­ties take action against the Reserved Goods (includ­ing but not lim­it­ed to seizure), Buy­er shall inform them of our own­er­ship, report the mat­ter to us imme­di­ate­ly, and, if applic­a­ble, send us a copy of the seizure report.
  6. If Buy­er breach­es the afore­men­tioned oblig­a­tion in accor­dance with § 324 BGB and behaves in a man­ner con­trary to the con­tract, we may with­draw from the con­tract and demand the return of the goods we have deliv­ered.

7. Purchaser’s rights regard­ing defects

  1. If the pur­chase con­sti­tutes a com­mer­cial trans­ac­tion for Buy­er, Buy­er shall noti­fy us in text form of any defects with­out undue delay, but no lat­er than 12 days after the goods are received. Mate­r­i­al defects that could not be detect­ed with­in that peri­od even with the most dili­gent inspec­tion must be report­ed in writ­ing with­out undue delay after their dis­cov­ery.
  2. We may assign to Buy­er any claims against sup­pli­ers of mate­r­i­al third-par­ty prod­ucts. If we have made such an assign­ment, Buy­er may hold us liable for those defects only if pri­or judi­cial recourse against the third-par­ty sup­pli­ers fails. Pri­or extra­ju­di­cial recourse will be suf­fi­cient if the third-par­ty supplier’s reg­is­tered office is out­side Ger­many. Buy­er shall noti­fy us of any recourse tak­en against our sup­pli­ers and, on request, shall keep us updat­ed regard­ing nego­ti­a­tions.
  3. If a sub­stan­ti­at­ed notice of defect is sub­mit­ted, we may pro­vide improve­ment or a replace­ment deliv­ery, at our dis­cre­tion, with­in a rea­son­able time peri­od of 30 days. If the sup­ple­men­tary per­for­mance fails and the breach of con­tract is sig­nif­i­cant, Buy­er may reduce the price or with­draw from the con­tract. Buy­er may also demand dam­ages or reim­burse­ment for expens­es where appro­pri­ate. If Buy­er with­draws from the con­tract, Buy­er shall return the deliv­ery object to us.
  4. We are not oblig­at­ed with­in the scope of sup­ple­men­tary per­for­mance to reim­burse Buy­er for the nec­es­sary expens­es for remov­ing the defec­tive item and installing or attach­ing the improved or sub­se­quent­ly deliv­ered item. Nei­ther are we oblig­at­ed with­in the scope of recourse against sup­pli­ers under § 445 a BGB to reim­burse removal costs for defec­tive deliv­ery objects or instal­la­tion costs for defect-free replace­ment deliv­er­ies. Buyer’s oth­er recourse claims against us remain unaf­fect­ed. Any right of recourse against us is also exclud­ed if Buy­er incurs increased expens­es when cur­ing a defect because Buy­er or a third par­ty sub­se­quent­ly moves the deliv­ery object some­where oth­er than the deliv­ery loca­tion. This does not apply if relo­cat­ing the deliv­ery object cor­re­sponds to its intend­ed use or was agreed when the con­tract was entered into.
  5. We shall be liable for dam­age result­ing from the deliv­ery object’s defec­tive­ness only if we or our vic­ar­i­ous agents act­ed inten­tion­al­ly or with gross neg­li­gence or breached a mate­r­i­al con­trac­tu­al oblig­a­tion. A con­trac­tu­al oblig­a­tion is “mate­r­i­al” if it must be com­plied with for the con­tract to be exe­cut­ed and Buy­er may rely on its being met. To that end, there is no oblig­a­tion to pay com­pen­sa­tion for unfore­see­able dam­age. The pre­ced­ing restric­tion express­ly does not apply to breach­es of duty that jus­ti­fy lia­bil­i­ty for dam­age aris­ing from injury to life, limb or health.
  6. Pro­vi­sions of the pre­ced­ing item 4 that lim­it lia­bil­i­ty do not apply if we have guar­an­teed that the deliv­ery object will have cer­tain char­ac­ter­is­tics. Claims under the Prod­uct Lia­bil­i­ty Act remain unaf­fect­ed.
  7. We are not liable for the goods’ suit­abil­i­ty for the pur­pose Buy­er intends unless that pur­pose has become a con­tract com­po­nent.
  8. Defec­tive goods may be returned only after Buy­er gives us writ­ten notice stat­ing the arti­cle, quan­ti­ty, and rea­son for the return, and we con­firm that notice in writ­ing. If no such writ­ten notice is giv­en in advance, we may refuse accep­tance. Returns < 7.5 m are non-refund­able.

8. Lim­i­ta­tion of lia­bil­i­ty; Dam­ages

  1. We shall pay com­pen­sa­tion for dam­age caused by intent or gross neg­li­gence, regard­less of legal grounds. In the event of ordi­nary neg­li­gence, we shall be liable only for a) dam­age result­ing from injury to life, limb or health, or b) dam­age result­ing from the breach of a mate­r­i­al con­trac­tu­al oblig­a­tion (a con­trac­tu­al oblig­a­tion is “essen­tial” if it makes prop­er con­tract exe­cu­tion pos­si­ble in the first place and Buy­er nor­mal­ly relies, and may nor­mal­ly rely, on it being com­plied with). The restric­tions of lia­bil­i­ty do not apply if we mali­cious­ly con­ceal a defect or have guar­an­teed that the deliv­ery object will have cer­tain char­ac­ter­is­tics. Nei­ther do the restric­tions of lia­bil­i­ty apply to Buyer’s claims under the Prod­uct Lia­bil­i­ty Act.
  2. Inso­far as we are liable under the pre­ced­ing item for com­pen­sa­tion on the mer­its, that lia­bil­i­ty will be lim­it­ed to dam­age that we fore­saw – or ought to have fore­seen if we had exer­cised cus­tom­ary dili­gence – as a pos­si­ble con­se­quence of a breach of con­tract when we entered this agree­ment. Indi­rect dam­age and con­se­quen­tial dam­age ensu­ing from defects of the deliv­ery object are also com­pens­able only if they can be typ­i­cal­ly expect­ed when the deliv­ery object is used as intend­ed.
  3. Buy­er may with­draw or ter­mi­nate due to a breach of duty not asso­ci­at­ed with a defect only if we are respon­si­ble for that breach of duty. Oth­er­wise, the statu­to­ry require­ments and legal con­se­quences will apply.
  4. In the event of default, Buyer’s claim to dam­ages is lim­it­ed to 5% of the new pur­chase price, unless we caused the delay in deliv­ery inten­tion­al­ly or with gross neg­li­gence.

9. Statute of lim­i­ta­tion

  1. By way of dero­ga­tion from § 438(1)(3) BGB, the gen­er­al lim­i­ta­tion peri­od for claims due to mate­r­i­al defects or defects of title amounts to one year from deliv­ery. If an inspec­tion and accep­tance pro­ce­dure has been agreed, the lim­i­ta­tion peri­od will begin with accep­tance.
  2. If the deliv­ery object is used for a build­ing, in accor­dance with its nor­mal use, and caus­es that building’s defec­tive­ness (build­ing mate­r­i­al), the lim­i­ta­tion peri­od will be five years from deliv­ery. Oth­er spe­cial statu­to­ry reg­u­la­tions gov­ern­ing the lim­i­ta­tion peri­od, includ­ing with­out lim­i­ta­tion § 438(1)(1), § 438(3), § 444, and § 445(b) BGB, also remain unaf­fect­ed.
  3. The lim­i­ta­tion peri­ods under sales con­tract law also apply to Buyer’s con­trac­tu­al and non-con­trac­tu­al claims aris­ing from defec­tive goods, unless apply­ing the nor­mal statu­to­ry lim­i­ta­tion peri­od under §§ 195 and 199 BGB would lead to a short­er lim­i­ta­tion peri­od in an indi­vid­ual case.
  4. The lim­i­ta­tion peri­ods of the Prod­uct Lia­bil­i­ty Act remain unaf­fect­ed. Claims for dam­age aris­ing from the injury to life, limb or health will become time-barred in accor­dance with the statu­to­ry lim­i­ta­tion peri­ods.

10. Place of ful­fil­ment; Forum; Applic­a­ble law

The place of ful­fil­ment for all oblig­a­tions aris­ing from the con­trac­tu­al rela­tion­ship is Krefeld. If Buy­er is a mer­chant, a legal enti­ty under pub­lic law, or a spe­cial fund under pub­lic law, the forum for dis­putes aris­ing from the con­trac­tu­al rela­tion­ship is Krefeld. How­ev­er, we may bring an action at the court hav­ing com­pe­tence for Buyer’s reg­is­tered office. Only Ger­man law will apply, under the exclu­sion of the Unit­ed Nations Con­ven­tion on Con­tracts for the Inter­na­tion­al Sale of Goods (CISG; the Vien­na Con­ven­tion) from 11 April 1980.