of business of Rotpunkt Küchen GmbH
§ 1 Scope of Application
1. These Terms and Conditions of Business apply to all current and future business relations.
Any differing, conflicting or supplementary general terms and conditions of business shall not become an integral part of the contract, even if we are aware of them, unless their validity has been expressly approved.
§ 2 Conclusion of the contract
Our offers are unbinding and subject to change. Orders shall only become binding if we have confirmed them in writing within two weeks. Our written order acknowledgement is authoritative for the contents and scope of the contract. Collateral agreements with passengers, commercial agents and employees as well as any amendments or additions, etc. are subject to our written confirmation.
§ 3 Deadlines, dates, contract handling
For deliveries and services that are delayed due to the occurrence of unforeseen unusual events and which we could not avert despite exercising the necessary diligence reasonable for the circumstances in the individual case (even if they occur at suppliers), e.g. strikes, lock-out, operational disruption, subsequent difficulties in materials acquisition, rejects in the case of an important work item, an official directive, etc., the delivery period shall be extended by the duration of the hindrance plus an appropriate start-up time to meet our operational requirements. If the above circumstances make the delivery or performance impossible without it being our fault, we shall be exempt from the obligation to deliver without the customer having the right to demand compensation.
If, after the conclusion of a contract, we learn of facts indicating an inability of the customer to pay, in particular of any substantial deterioration in its financial position (e.g. resulting from the customer having judgement enforced upon it, insolvency, stoppage of payments, liquidation, pledging of goods, inventories or outstanding debts or use of these as a guarantee or failing to pay due invoices more than once in spite of reminders), we will be entitled to refuse performance and call in all receivables from the customer issuing from the business relationship if those facts are such as to jeopardise our claim to remuneration. This right to refuse performance will cease to apply if claims are settled or security for them is provided.
We may set the customer a reasonable deadline before which the customer must, as it sees fit, either pay the remuneration or provide security as a concurrent condition of our performance. After fruitless expiry of the deadline we can withdraw from the contract.
In the case of a non-acceptance of ordered goods, we are entitled to charge 15 per cent of the value of the goods for costs already incurred and loss of profit. The customer is permitted to submit evidence that we have not suffered any damages or that our damages are substantially less than the lump sum.
Clearance of all goods which we dispatch shall be at the risk and expense of the customer, even if post-paid delivery has been agreed. Transport insurance shall only be taken out on the express instructions and at the expense of the customer. The risk of accidental loss shall pass to the customer when the goods are transferred to the party engaged to transport them, however, no later than at the time they leave our factory. This shall also apply if and to the extent that the goods are dispatched using our own means of transport. If dispatch is delayed due to fault on the part of the customer or because the customer fails to co-operate when it had an obligation to do so, risk shall be transferred to the customer on the day notification is given that the goods are ready for dispatch. We are entitled to store the goods at the cost and risk of the customer or to charge our own storage expenses. Forwarding instructions by the customer shall only be binding if they were agreed in writing.
§ 4 Prices, remuneration
Our prices do not include the statutory value added tax. It is invoiced separately.
The customer is obliged to pay at the latest 30 days after receipt of the invoice. At the end of this time period the customer is in default. A discount of the agreed cashback is only permitted on payments within 10 days after receipt of the invoice. If the customer defaults on payment, it must pay interest on the debt at 8% above the base rate. The right to assert further claims for compensation is reserved.
In the case of special productions of small quantities, a surcharge shall be imposed and billed separately. Separate small invoice surcharges will be calculated for small orders. If the supply of goods or provision of services takes place later than 4 months after conclusion of a contract and thereafter the wage and materials costs or the prices of our suppliers increase, we are entitled to raise the contractual price accordingly. Additional costs for express freight or other surcharges shall be borne by the recipient and deliveries to addresses outside the Federal Republic of Germany shall take place free to the German border, duty unpaid and excluding incidental expenses. Special packaging will be billed separately.
The customer may offset against our claims or assert a right of retention if its counterclaims are undisputed or have been finally established in law. This does not apply for the right of retention if the customer’s counterclaims are based on a defective performance.
§ 5 Warranty
A material deficiency exists if the merchandise does not have the quality agreed in the contract, if the merchandise is not suitable for the use designated in the contract and/or does not show the quality normally found in material of the same kind and which can be expected by the buyer according to the nature of the material. The samples identify only the quality of the object of the contract and do not constitute a guarantee (§ 276 BGB – German Civil Code) or a quality guarantee (§ 443 BGB). Written and spoken recommendations for the use and application of our products based on existing experiences and the current state of knowledge do not constitute a quality that has been agreed between the parties or is assumed and do not free the buyer from the obligation to check the products for their suitability for the intended purpose and processing operations on its own responsibility.
Obvious defects, of whatever kind, and the delivery of goods that are obviously not those ordered must be notified in writing immediately upon acceptance of the goods. Non-obvious defects, of whatever kind, and the delivery of goods not obviously different from those ordered must be reported in writing within one week after detection.
The customer’s rights from defects of quality are restricted to subsequent performance. Subsequent performance shall be effected at our discretion either by elimination of the defect or delivery of a defect-free item. If the subsequent performance fails, the customer is entitled, after expiry of a grace period to be fixed of 10 working days, to withdraw from the contract, obtain a reduction of the purchase price or, if we are at fault, demand compensation. Non-negligent liability is only taken into account if there is an explicit written transfer of a guarantee (§ 276 BGB) or quality guarantee (§ 443 BGB).
Insofar as the customer asserts claims for material deficiencies against us based on public statements made by us or our assistants, in particular in advertisements or in characterising certain properties, the customer must prove that the statement has been instrumental for the order placement. We are not liable for statements made in third-party advertisements.
It does not apply to the customer’s right of withdrawal if we are responsible for the defect.
If the customer has had to take back the sold, newly produced item from a consumer or entrepreneur as a result of its defectiveness or the customer’s buyer has reduced the purchase price, the customer’s statutory rights for defects shall apply without the restrictions of warranty rights specified in this provision with the exception of claims for compensation (§ 478 BGB).
§ 6 Retention of title
1. The delivered goods shall remain our property until the purchase price has been paid in full together with all ancillary claims and all claims already existing under the business, relationship as well as all claims arising in future from the business relationship.
2. The customer may neither pledge nor transfer by way of security our goods. However, it may resell or process them in the course of its ordinary business, unless it had effectively assigned its claim against its contracting party to a third party in advance or agreed to a prohibition of assignment.
3. The processing of our goods to create a movable item shall take place on our behalf and with effect for us without giving rise to any liabilities on our part. In the case of processing with other goods which do not belong to us, we shall acquire joint title of the new item in the ratio of the value (delivery price including value added tax without deducting any discount) of the goods we delivered to the other goods at the time of processing. In the event that the purchaser acquires sole or joint title to the new item through processing, combination, blending or mixing, it shall hereby already assign such sole or joint title to us as security for the satisfaction of all our claims in the ratio of the value of the goods supplied by us to the other goods at the time of processing.
4. The customer shall hereby already undertake to hold the new item in safekeeping on our behalf free of charge with the due care and diligence of a prudent businessman. In the event of the resale of our goods or of the new goods produced therefrom, the purchaser shall draw its buyer’s attention to our ownership. The purchaser shall hereby already assign to us as security for the satisfaction of our claim all its future claims resulting from the resale with all incidental rights up to the amount of the value of our property or our shared property with priority before the remaining portion of its claims. In the event that the customer sells our goods (together with other goods which are not our property) or new goods produced from our goods, or combines, blends or mixes our goods with movable goods belonging to a third party and acquires a claim therefor which also covers its other performances, it hereby already assigns such claim on account of the same claims, together with all incidental rights up to an amount corresponding to the value of our property or of our share of the property with priority over the remaining portion of its claim. The same applies on the same scale to any rights based on the processing of our goods and in the amount of our total outstanding claims. We hereby accept the customer’s declaration of assignment. In the event of a default on the part of the customer, upon our request it shall provide proof of each of such claims and shall make the assignment known to subsequent purchasers with the request to make payment to us of an amount corresponding to our total claims. We also have the right to inform subsequent purchasers at any time of the assignment and to collect any claims against them. In the event that the purchaser collects the claims assigned to us, it hereby already assigns to us its respective residual claim to the amount corresponding to these parts of the claim. The entitlement to the payment of the collected amounts is not affected; the customer may not assign its claims against subsequent purchasers to third parties, nor pledge them, nor agree to a prohibition of assignment with its subsequent purchasers.
5. In cases where third parties access the reserved goods, particularly in the case of distraint or other impairments of our rights through third parties, the customer shall draw attention to our property and notify us without delay; the customer shall hand over to us all of the documents necessary for intervention. If the third party is not able to reimburse us for the in-court or out-of-court costs which we incur in this connection, the customer shall be liable therefor.
6.If the value of the goods delivered provided as security and/or in which we reserve title exceeds our total claim more than temporarily by more than 20%, then, upon request from our contractual partner, we shall be obliged to release such security to this extent. The amount of security shall be calculated on the basis of the delivery prices including value added tax without deducting discount.
7. Upon full payment of our entire claims under the business relationship, property in the goods in which title is reserved shall be transferred to the customer. At the same time, the customer shall acquire the claims which it has assigned to us as security for our claims as set forth in the above provisions.
§ 7 Liability, compensation
Claims for damages against us due to breach of duty are excluded regardless of the legal basis, especially due to impossibility, delay, defective performance, breach of contractual extra obligations and any other obligations under the contract and tortious act.
This does not apply
1. to damage arising from loss of life, personal injury or illness,
2. to other damage if it
a) is based on an intentional or grossly negligent breach of duty by us or one of our executive employees,
b) an essential contractual obligation (cardinal duty, in particular a main contractual service obligation) has been breached,
c) another duty not falling under b) has been breached by simple vicarious agents intentionally or through gross negligence.
In cases b) and c), the liability sum is limited to compensation of the typically foreseeable damage.
If our liability has been excluded or restricted in sections 1. and 2., this also applies to the personal liability of our salaried employees, workers, associates, representatives and vicarious agents.
The aforementioned exclusion of liability does not apply to claims under the Product Liability Act.
If the customer requires us in place of performance to reimburse it for expenses which it has incurred in reliance on our performance instead of claiming damages (§ 284 BGB), these expenses shall be limited in amount to what would have been spent by a sensible third party.
The customer will only be entitled to withdraw from the contract on the basis of a breach of obligation by us not consisting of defective performance if we have been culpable.
§ 8 Miscellaneous
1. The assignment of the customer’s claims against us which arise from the business relationship is excluded, with the exception of monetary claims within the meaning of § 354 a HGB (German Commercial Code).
2. The place of performance for all deliveries and payments is Bünde, Germany.
3. The sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship, including actions relating to bills of exchange or cheques, is Bünde.
4. German law to the exclusion of the provisions of the uniform UN Convention on Contracts for the International Sale of Goods (CISG) applies exclusively to these Terms and Conditions of Business and all legal relationships between the contracting parties.
5. Should individual provisions of our Terms and Conditions of Business or the provisions within the scope of other agreements be or become void or invalid, the validity of any other provision or agreement shall not be affected thereby. The ineffective part shall be replaced in the process of interpretation by a permissible provision which corresponds as closely as possible to the ineffective provision and fulfils the desired economic result to the greatest extent.