for exclusive use in relation to companies, legal entities under public law and special funds under public law.
I. General information
- These general sales and delivery conditions (GTC) apply to all our deliveries, services and offers. These GTC are an integral part of all contracts we conclude with our customer for our deliveries and services.
- These GTC also apply to all future deliveries, services and offers to the customer, even if they are not agreed upon again separately.
- Unilateral adaptations of these GTC by us shall be notified to the customer in text form within the framework of existing contracts. They shall be deemed to have been approved if the customer does not object in text form. The objection must be received by us within six weeks after the customer has received the notification of adaptation.
- Any terms and conditions of the customer or third parties which deviate from or supplement these GTC shall not apply and shall only become part of the contract if and insofar as we have agreed to their validity in text form. This also applies if we carry out deliveries and services without reservation in the knowledge of conflicting or deviating terms and conditions of the customer or third parties or refer to letters from the customer which contain or refer to terms and conditions of the customer or third parties.
- Supplements and/or amendments to the contracts concluded between us and the customer on the basis of these GTC as well as these GTC themselves must be in text form to be effective. With the exception of managing directors and authorised signatories, our employees are not entitled to make oral agreements deviating from this.
- Legally relevant declarations and notifications made or to be made to us by the customer after conclusion of the contract require text form to be valid.
- Promises made orally by us prior to the conclusion of the contract and/or agreements made by the parties prior to the conclusion of the contract shall be replaced by the agreement made on the basis of these GTC, unless they expressly state that they shall continue to be binding in any case.
II. Conclusion of contract
- Our offers are subject to change and non-binding.
- Orders of the customer are binding and the customer is bound to his offer for a period of 14 days from receipt of the order by us. During this period we can accept the customer’s order by confirming the order in text form or by delivering the goods.
- Our product descriptions, drawings and representations of the goods and products, information on technical data and other information provided by us on the goods or on products and services are only approximate values and approximately decisive, unless the usability of the goods or services for the purpose of the contract requires exact conformity. These details and representations are descriptions of the goods or services, but not warranted characteristics. Insofar as this does not impair the contractually intended usability of the goods or services, customary deviations and deviations due to legal regulations or technical improvements are permissible. The replacement of certain components by other, equivalent parts is also permitted.
- We reserve all property rights, industrial property rights and copyrights to all samples, calculations, models, offers, cost estimates and similar information of a physical and non-physical nature — also in electronic form. The customer is not entitled to make this information available to third parties without our prior consent in text form and must return it to us free of charge or, at our discretion, destroy it if the contract is not concluded.
- Unless otherwise agreed, our prices are ex works plus value added tax, in case of delivery plus packaging, transport, freight. Any customs duties and/or other charges shall be borne by the customer.
- Unless otherwise agreed, payments are due within 14 days of receipt of our invoice by the customer and delivery or acceptance of the goods or other contractual due dates.
- The unconditional crediting to our bank account is decisive for the timeliness of payment.
- The customer shall be in default upon expiry of the payment period described above. During the period of default, the invoice amount affected by the default shall be subject to interest at the statutory default interest rate. However, we reserve the right to assert further damages caused by delay, also the claim for interest on due date according to § 353 HGB remains unaffected.
- We are entitled to make a delivery wholly or partly dependent on payment in advance; if we do so, we will declare the corresponding reservation at the latest with our order confirmation.
- The customer is only entitled to rights of retention and set-off insofar as his counterclaims are undisputed or have been legally established.
- We are entitled to charge reasonable advance payments for completed partial services. If the customer does not pay or does not pay on time on an advance invoice, we are entitled to make further fulfilment of the contract dependent on payment of the advance. If the customer does not pay or does not pay on time on an instalment invoice, we are also entitled to withdraw from the contract if we have previously requested the customer to pay in text form within a reasonable period of time. The assertion of claims for expenses and damages remains unaffected.
- Our deliveries are ex works, unless otherwise agreed.
- If we specify periods or deadlines for delivery, these are non-binding approximate values unless these periods or deadlines are expressly designated as binding or agreed as binding.
- If dispatch of the goods to the customer has been agreed, the time of handover of the goods to the forwarding agent, carrier or other third party commissioned with the transport is decisive for compliance with the delivery periods or delivery dates. Otherwise, the point in time at which we have notified the customer that the goods are ready for dispatch shall be decisive for compliance with delivery periods or delivery dates; if acceptance is required, this shall be the point in time at which we notify the customer that the goods are ready for acceptance.
- All delivery dates and delivery periods are subject to proper and timely supply to ourselves, provided that we are not responsible for the delay or incorrect supply to ourselves. We shall inform the customer immediately if there is a threat of delays in delivery dates or delivery periods due to incorrect or untimely supply to ourselves.
- We are entitled to make partial deliveries, provided this is reasonable for the customer, the partial delivery does not cause him any considerable additional work or additional costs which we do not assume, the delivery of the remaining part of the goods is ensured and a partial delivery can be used by the customer taking into account the purpose of the contract.
- We shall not be liable for delays in delivery or the impossibility of delivery caused by force majeure or other events which were not foreseeable by us at the time the contract was concluded and for which we are not responsible (e.g. labour disputes, shortage of raw materials, operational disruptions through no fault of our own). If the delivery becomes impossible for us due to such events or due to force majeure or if it becomes unreasonably difficult, taking into account the value of the goods, we are entitled to withdraw from the contract. If we are only temporarily prevented from delivering as a result of such events or force majeure, the delivery dates or delivery periods shall be postponed by the period during which the impediment to performance exists, but plus a start-up period of one week. In this case, the customer is entitled to withdraw from the contract if he cannot reasonably be expected to accept the delayed delivery and if he informs us immediately in text form after we have informed him of the impediment to performance, which we are obliged to do immediately after the impediment to performance becomes apparent. The right of the customer to withdraw from the contract in the event of impossibility of performance under the statutory conditions remains unaffected.
- The statutory provisions shall apply to the existence of a delay in delivery on our part, however, a reminder from the customer in text form is required in any case for the occurrence of a delay in delivery, unless we have seriously and finally refused delivery.
- If our delivery is delayed for reasons for which the customer is responsible (e.g. if the customer fails to perform an act of cooperation owed by him or performs it late) or if the customer is in default of acceptance, we shall be entitled to demand compensation from the customer for expenses and/or damages incurred by us as a result. We are therefore entitled to demand a flat-rate compensation from the customer in the amount of 0.25% of the value of the goods per calendar day, beginning on the day after the agreed delivery date or the notification of readiness for dispatch or acceptance by us, if no delivery date has been agreed, but not exceeding a total of 5% of the value of the goods. However, this flat-rate compensation shall not apply if the customer proves that we have actually suffered a substantially lower loss or no loss at all. Our further legal rights and the proof of higher damages remain unaffected. In any case, the lump-sum compensation shall be set off against our further claims.
- The risk of accidental loss and/or accidental deterioration of the goods shall pass to the customer upon execution of the delivery or service, unless otherwise agreed. If the dispatch of the goods has been agreed, the risk of accidental loss and/or accidental deterioration shall pass to the customer upon handover of the goods to the forwarder, carrier or other person designated to carry out the dispatch. This shall also apply if partial deliveries are made or we owe further services (such as commissioning or installation).
- We are entitled to commission subcontractors to fulfil our existing contractual obligations towards the customer.
V. Retention of title
- The goods shall remain our property until all claims we are entitled to against the customer under the contract on which the delivery is based have been fulfilled in full.
- The customer is obliged to treat the goods delivered to him under retention of title with care and to insure them at his expense against fire and water damage and against theft at replacement value.
- The customer may not pledge the goods delivered under retention of title to third parties or assign them as security as long as our claim secured by the retention of title has not been settled. If third parties seize the goods delivered under retention of title or if other access to these goods is made by third parties, the customer is obliged to inform these third parties of our ownership and to inform us immediately in text form. Necessary costs which we have to bear within the scope of the extrajudicial and judicial assertion of our property rights against the third party shall be reimbursed to us by the customer, unless they are reimbursed by the third party.
- We are entitled to take back the goods delivered under reservation of title after we have set the customer a reasonable deadline for performance and this deadline has expired fruitlessly if the customer fails to meet due payment obligations or fails to meet them on time. In this case the customer shall bear the transport costs incurred for the return. If we take back goods delivered under retention of title, this shall constitute a withdrawal from the contract; this shall also apply if we seize the goods delivered under retention of title.
- The customer may use, resell and/or process the goods delivered under retention of title in the ordinary course of business. Regarding this, the following applies in addition:
- The customer already now assigns to us the claims resulting from the resale of the goods delivered under retention of title as well as those claims in relation to the goods delivered under retention of title which he is entitled to or will be entitled to in the future against his customer or other third parties for other reasons (e.g. claims from insurance benefits or tort); we accept this assignment.
- The customer himself remains authorised to collect the above-mentioned claims and we undertake not to collect these claims ourselves as long as the customer fulfils his contractual obligations towards us, in particular is not in default of payment, no application is made for the opening of insolvency proceedings against the customer's assets and there are no other defects in his ability to pay which jeopardise our claim to remuneration. If such a case occurs, however, the customer is obliged to inform his debtors of the assignment and to name his debtors to us as well as to provide all information necessary for the collection of these assigned claims and to hand over to us the corresponding documents.
- Any processing or transformation of the goods delivered to the customer under reservation of title shall always be carried out for us. If the goods delivered under retention of title are processed with items that are not our property, we shall acquire co-ownership of the newly created item in the ratio of the value of the goods delivered to the customer under retention of title (invoice amount including VAT) to the other processed items at the time of processing. The same applies to the new object created as a result of processing as to the goods delivered to the customer under retention of title.
- In the event of inseparable connection or mixing of the goods delivered to the customer under reservation of title with items that are not our property, we shall acquire co-ownership of the new item created by connection or mixing in the ratio of the value of the goods delivered under reservation of title (invoice amount including VAT) to the other connected or mixed items at the time of connection or mixing. If the combination or mixing is carried out in such a way that the item not owned by us is to be regarded as the main item, the customer hereby assigns to us the proportional co-ownership of the newly created item and we accept this assignment.
- Insofar as we acquire co- or sole ownership of a newly created object, the customer shall hold this in safekeeping for us. At the customer's request, we shall release securities of our choice if the realisable value of the securities exceeds our claims by more than 10%.
- The customer is obliged to carefully inspect the goods immediately after delivery and to report defects in writing immediately after their discovery. With regard to obvious defects or such defects that would have been recognisable with immediate, careful examination, the goods shall be deemed to have been approved by the customer if he does not give us written notice of these defects within 7 working days of the transfer of risk. With regard to other defects, the goods shall be deemed to have been approved by the customer if the customer does not notify us of the defect in text form within 7 working days after discovery of the defect. However, if the defect was already recognisable to the customer at an earlier point in time during normal use of the goods, this earlier point in time shall be decisive for the start of the period for lodging a complaint.
- If the goods or services are defective, we may choose the type of subsequent performance. The right to refuse subsequent performance in accordance with the legal requirements remains unaffected. The subsequent performance owed by us does not include the removal of the defective item and the reinstallation of a defect-free item, if we were not originally obliged to install it.
- We are entitled to make subsequent performance dependent on the payment of the purchase price. However, the customer is entitled to retain a reasonable part of the price in relation to the defect.
- If the goods or services are defective, we shall bear the costs of subsequent performance. If the customer’s demand for the removal of defects turns out to be unjustified in retrospect, we can demand compensation from the customer for the costs incurred due to the unjustified demand for the removal of defects.
- If and insofar as the customer modifies the goods or has them modified by third parties without our consent and if this makes it impossible or unreasonably difficult for us to rectify the defect, the customer’s warranty rights shall lapse. If such changes to the goods result in additional costs for the removal of the defect, the customer shall reimburse us for these additional costs.
- If the defectiveness of a component of another manufacturer used by us leads to the defectiveness of our goods or services and if we cannot remedy this defectiveness for legal and/or factual reasons, we can assign to the customer the claims for defects to which we are entitled on our side against the third manufacturer; in this case, warranty claims of the customer against us exist only and only to the extent that the legal enforcement of the claims for defects against the third manufacturer assigned to the customer was unsuccessful or is futile. For the duration of the customer’s claim against the third party manufacturer, the limitation of the customer’s warranty claims against us is suspended.
- The customer is obliged to inform us immediately if third parties assert claims against him in relation to our goods or services on account of the infringement of industrial property rights or copyrights. If the goods violate an industrial property right or copyright of a third party and the responsibility for this does not lie with the customer (example for customers’ responsibility: the goods have been manufactured according to his specifications), we shall, at our discretion, either modify or exchange the goods in such a way that the rights of third parties are no longer violated, but the goods nevertheless continue to comply with the contractually agreed quality, or procure the right of use for the customer. If we do not succeed in doing so within a reasonable period of time, both the customer and we shall be entitled to withdraw from the contract.
- If the products are manufactured according to the customer’s drawing, we shall only be liable for compliance with the drawing.
- Otherwise, the customer’s warranty claims shall be determined in accordance with the statutory provisions.
- If the goods are free of defects in the relationship between us and our customer, we shall not be liable for defects in the relationship between our customer and his customer due to a deviation of the product from the objective requirements. Our customer shall determine quality agreements between him and us, which may lead to a deviation of the product from the objective requirements in the relationship with his cus-tomer, by independent and separate agreement with his customer.
- We shall only be liable for damages — irrespective of the legal grounds — in the event of intent and gross negligence. In the case of simple negligence, we shall only be liable
- for damages resulting from injury to life, body or health,
- for damages resulting from the breach of an essential contractual obligation (obligations the fulfilment of which makes the proper execution of the contract possible at all and on whose fulfilment the customer regularly relies on and may rely on), whereby the liability in this case is limited to the replacement of the foreseeable, typically occurring damage
2. The above limitation of liability shall not apply to claims of the customer under the Product Liability Act and to the extent that we are legally compulsorily liable or have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods.
3. A free right of termination by the customer (especially according to §§ 651, 649 BGB) is excluded. The customer may only withdraw or terminate due to a breach of duty on our part which does not consist of a defect if we are responsible for this breach of duty.
VIII. Applicable law and place of jurisdiction
- The legal relations between us and the customer are subject to the law of the Federal Republic of Germany, which applies to the legal relations between domestic contractual partners within the Federal Republic of Germany. The Convention on the International Sale of Goods (UN Sales Convention) is excluded.
- The exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship between us and the customer is our registered office in Vlotho (Bielefeld district court). Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected.
Last update: July 2020
pronorm Einbauküchen GmbH