for StyleVision Hotel Supplies GmbH, Munich (Status 01.06.2006)
1. cope of Application
1.1 hese General Terms and Conditions of Sale and Delivery (hereinafter the ‘Terms and Conditions’) shall exclusively govern all sales and deliveries of goods to the buyer (hereinafter the ‘Customer’) in the present and future. Any general Terms and Conditions of the Customer that add to or diverge from these Terms and Conditions shall not be applicable.
1.2 ur Terms and Conditions apply only to persons who, at conclusion of contract, are acting in their vocational capacity as tradespersons or self-employed persons (entrepreneurs within the meaning of Section 14 German Civil Code (Bürgerliches Gesetzbuch – BGB).
2. onclusion of Contract, Condition of our Goods
2.1 As a basic principle, our offers are non-binding. Contracts are not concluded until our written confirmation of order has been received.
2.2 Our offer, our confirmation of order and these Terms and Conditions are authoritative with regard to the content of the contract unless we have explicitly agreed same with the Customer. Such agreements must be recorded in writing.
2.3 The contractually agreed conditions of our goods are those properties and features that are specified in our offer and our confirmation of order. If we have shown or sent the Customer specimen products prior to conclusion of contract, the properties and features of the specimen goods are deemed to be the contractually agreed condition. Other, or more extensive properties and features shall not constitute a contractually agreed condition unless this is explicitly agreed. Any such agreement must be recorded in writing.
2.4 Statements on our part regarding the condition of the goods shall not constitute a guarantee of condition or shelf life unless we have explicitly designated them to be such a guarantee of condition or shelf life. The rights of the Customer in the event of a guarantee claim shall derive exclusively from our statement of guarantee. The statement of guarantee must be recorded in writing.
3.1 Unless otherwise agreed, deliveries shall be effected ex works or warehouse (Incoterms 2000). The risk of accidental loss of, or accidental damage to the goods shall pass to the Customer when we hand over the goods to a forwarder or carrier, at the latest, however, when the goods leave our factory or warehouse. This principle shall also apply when ‘carriage paid to CPT’ has been agreed upon and in the case of partial deliveries.
3.2 We have the right to make partial deliveries when this is reasonable for the Customer.
3.3 We reserve the right to exceed or shorten the delivery of up to ten (10%) of the ordered quantity and in respect of each partial delivery.
3.4 If the Customer defaults on the agreed call-off of the goods or on their acceptance, we may set the Customer a reasonably extended deadline and claim compensation instead of performance if the deadline expires to no avail.
4. Delivery Time, Impediments to Delivery, Rights of Withdrawal
4.1 Unless otherwise agreed, the term of delivery is fifteen (15) working days. Delivery times refer to dispatch ex works or, in the case of delivery to the Customer’s place of business (‘frei Haus’), the date of receipt at the Customer’s place of business.
4.2 If we have concluded a congruent transaction with our own supplier in timely manner, any delivery and service terms we specify are subject to the provison that we ourselves are properly supplied in timely manner.
4.3 Cases of force majeure interrupt our duty to delivery for their duration and to the extent of their impact, even when we have already defaulted on delivery. Cases of force majeure include unforeseen circumstances and events that cannot have been avoided by exercising due diligence (e.g. strike and lock-out, war, fire, traffic disruptions, scarcity of raw materials, official measures).
4.4 In the cases specified in clauses 4.2 and 4.3 above, we are entitled to withdraw from the contract. In that event, we are obliged to notify the Customer without delay that the performance cannot be rendered and to reimburse the Customer without delay for any counter-performance rendered.
5. Prices and Payments
5.1 Contracts are concluded on the basis of the prices we have specified or confirmed in writing. Unless explicitly agreed otherwise, the prices are ex works or warehouse and exclusive of packing, freight, postage and transport insurance.
5.2 If our product-related costs increase through no fault of our own (e.g. fluctuations in exchange rates, increases in raw material prices, wages, taxes, etc.), we reserve the right to raise our prices accordingly, provided that such rises are notified prior to delivery. The same principle shall apply if the Customer requests a change in delivery date.
5.3 Invoices are payable within thirteen (30) days of the invoice date, without deductions of any kind. Payment is not deemed effected until we can finally dispose of the amount in question. Late payment shall entitle us to change default interest at eight percentage points (8%) above the basic rate of the European Central Bank.
5.4 If the Customer calls off the goods after the agreed call-off period has expired, the prices payable shall be those applicable on that date.
5.5 All costs incurred by cashing bills or cheques shall be borne by the Customer.
5.6 If our claim to payment appears to be at risk due to the Customer’s deteriorating financial status, we shall be entitled to demand immediate payment of all receivables arising from our entire business relationship with the Customer, provided that we have already rendered the deliveries and services. The principle shall also apply in cases where we have already accepted bills or cheques. Claims are deemed at risk if information from a bank or information service indicates that the Customer is not creditworthy. The same principle applies if the Customer is two (2) invoices or more in arrears. In such a case, we are also entitled to set the Customer a reasonable deadline by which, concurrently with performance of the outstanding deliveries and services, he must either render counter performance or provide security. We may withdraw from the contract if this deadline expires to no avail. If the Customer ceases to render payment or is over-indebted, no extension of payment term need to be granted.
5.7 The Customer is not entitled to set off claims unless they are undisputed or have been established as final and conclusive by a court of law. If set-off is not permitted, the Customer shall have no right of retention; for the rest, any right of retention is restricted to claims deriving from the same contract.
6. Rights and Duties of the Customer in respect of Defective Goods
6.1 Obvious defects must be notified without delay, at the latest within ten (10) working days after taking delivery (dispatch of the notice suffices). Hidden defects must be notified in writing immediately after discovery. These duties to examine and report any defects apply also to goods destined for further transportation. The Customer may not base a claim on defects that were notified late.
6.2 In the case of justified any timely notification of defects, the Customer’s claims shall be restricted initially to remedy of such defects. This provision shall not apply if it is unreasonable for the Customer to accept such remedy of defects. In the case of remedy, we may choose, at our discretion, to repair the defective goods or to redeliver. If efforts of remedy fail twice, or are refused by us, the Customer may claim his statutory rights (reduction of the purchase price, withdrawal from the contract).
6.3 The Customer does not have a right of withdrawal if the defect is minor.
6.4. The damage claim of the Customer is subject to the provisions in item 7 below.
6.5 If only few of several delivered products are defective, any statutory right of withdrawal on the part of the Customer shall be limited to those products. The principle shall also apply if the products are sold in combination, unless the defective products cannot be separated from the others without damage occurring, or the Customer proves that such separation would be unreasonable for him.
7. Liability, Exclusion of Withdrawal in the Case of Certain Breaches of Obligations
7.1 We shall bear liability unrestrictedly in the event of personal injury to life, body or health in the event ofmalicious non-disclosure of defects, in warranty cases and in accordance with the Product Liability Act (Produkthaftungsgesetz).
7.2 In the event of culpable violation of important contractual obligations (so called “cardinal obligations”) we shall bear unrestricted liability in cases of deliberate action or gross negligence; in the case of ordinary negligence liability to pay damages shall be limited to the reasonable foreseeable damages associated with this kind of contract.
7.3 In all other cases, compensation claims against us, regardless of their legal basis, shall be excluded unless damages were due to deliberate of grossly negligent breach of obligations by our legal representatives or persons we employ in performing our obligations. Our liability in cases of gross negligence is limited to the foreseeable damages typically associated with this kind of contract.
7.4 If our liability is excluded or limited pursuant to the preceding clauses, this shall also apply to liability on the part of our executive organs and persons we engage in performing our obligations.
7.5 The Customer has no right to withdraw from the contract on account of a breach of obligations that does not consist in any defect in the goods and for which we bear no fault.
8. Periods of Limitation
8.1 The period of limitation for claims asserted by the Costumer on account of defective goods is one (1) year.
8.2 At variance from clause 8.1 above, the period of limitation is ten (10) years for claims asserted by the Customer on account of a defect in the goods that consist of a third party’s right in term to surrender of the good.
8.3 The period of limitation for all other contractual claims based on breaches of obligations is also one (1) year. This shall not apply to the Customer’s right to withdraw from the contract in account of a breach of obligation that does not consist in a defect in the goods.
8.4 All other claims on the part of the Customer are barred by limitation after one (1) year.
8.5 At variance from clauses 8.1 till 8.4 above, the statutory periods of limitations shall apply in cases of personal injury to life, body or health, breach of a major contractual obligation, or due to deliberate or grossly negligent breach of another obligation by ourselves or persons we employ in performing our obligations. The same principle shall apply in cases of malicious non-disclosure of defects, or of a claim to reimbursement of expenses pursuant to Section 478 (2) German Civil Code.
8.6 Our claims to payment against the Customer shall be barred by limitation in accordance with statutory regulations.
9. Retention of Title
9.1 The goods shall remain our exclusive property until all claims against the Customer arising for whatever legal reason now or in the future (including all current account debit balances) have been settled in full.
9.2 Processing of transformations of our goods by the Customer is always on our behalf as manufacturer. If our goods are processed, transformed or inseparably combined or mixed with other goods that are not our property, we acquire co-ownership of the new object in proportion to the value of our goods and the value of the other object at the time of such processing, transforming, mixing or combination , if the other object of the Customer is to be deemed the primary object. It is hereby agreed that the Customer shall transfer proportionate co-ownership to us. We hereby accept said transfer of proportionate ownership. The Customer shall keep our (co-)ownership on our behalf at no charge.
9.3 The Customer has the right to process and to sell the reserved title goods in the ordinary course of business as line as he does not default on his payments to us. The reserved title goods may not be pledged, or ownership of them transferred as a form of security. The Customer hereby assigns to us by the way of security all claims if may acquire from resale of the goods (including all current account debit balances) as well as any insurance claims and claims against third parties due to damage, destruction, theft or loss of the goods. We hereby accept this assignment of claims. If we are entitled only to co-ownership of the reserved title goods, anticipatory assignment shall be confined to that part of claim corresponding to our share in co-ownership (based on the invoice value). When reselling the goods, the Customer must retain ownership of the reserved title goods until his customers have paid the purchase price in full. The Customer shall not be entitled to resell the goods to third parties if assignment of the purchase price claim accruing from resale is prohibited.
9.4 We authorise the Customer, subject to revocation, to collect the claims assigned to us to his own account and in his own name. This authorisation to collect may be revoked if the Customer fails to properly meet his obligations to render payment to us, or if our claims to payment seem jeopardised by the Customer’s deteriorating financial status. The Customer shall inform us, on request, of the debtors owing the assigned claims. If the Customer assigns his claims from resale to a factor, the Customer shall notify us of said fact. The Customer hereby assigns to us his claim to payment from the factor to the amount of receivables to be secured.
9.5 If third parties seize or confiscate the reserved title goods, the customer shall draw attention to our ownership and notify us accordingly without delay. Our expenses for intervening shall be borne by the Customer, to whom we shall assign any claim to reimbursement that we may acquire against the third party concurrently with payment of the interventions expenses.
9.6 The Customer has the right to require us to release claims to the extent that the recoverable value of our security our securable claims by more than ten (10) %. We shall select the claims to be released at our own discretion.
9.7 If the law of the country in which the goods are delivered or in which the goods are located does not permit a retention of ownership pursuant to the above provisions, but said laws permit the buyer to retain similar rights to the object of delivery in order to secure his claims, or to have such granted to him, then such rights shall be darned on conclusion of contract as having been retained on our behalf and granted to us by the customer. The Customer agrees to collaborate in all measures that we wish to take in order to protect our ownership rights or other rights to the reserved titled goods in place of those ownership rights. In the case of exported goods, we may also require that the Customer provides us with banker’s guarantees as security for all our claims under the contract.
10. Applicable Law, Place of Performance, Place of Jurisdiction
10.1 The contract is governed exclusively in accordance with the laws of the federal Republic of Germany excluding the principles of conflicts of laws (Art. 3-46 EGBGB) hereof and the United Nations Convention on the International Sale of Goods (CISG).
10.2 The sole place of performance for our delivered so our registered business address. The latter is also the place of payment for the Customer.
10.3 If our Customer has merchant status (is a “Kaufmann”), the sole place of national and international jurisdiction for both parties and or all disputes arising directly or indirectly from the contract is Munich, Germany. However, we have the right to institute judicial action against the Customer at the latter’s general place of jurisdiction.