General Terms and Conditions of Schilderfabrikation Moedel GmbH

Amberg, 05/15/2013

§ 1 – Scope and definitions

  1. These General Terms and Conditions (hereinafter GTC) are valid for all transactions between the Seller and the Buyer.
  2. The Seller only sells to merchants. Merchants within the meaning of these General Terms are natural or legal persons or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of its trade, business or profession. A partnership with legal personality is a partnership able to acquire rights and to incur liabilities (§ 14 BGB - German Civil Code).
  3. These GTC are also valid for all future transactions between the Seller and the Buyer.
  4. Contrary standard business terms of the Buyer are hereby excluded unless the Seller expressly consents to them.
  5. The GTC are valid in their form at the time of the conclusion of the agreement.

§ 2 – Conclusion of the agreement and order confirmation

  1. The representations of the products on websites, in catalogues and in brochures do not represent legally binding offers. Documents such as illustrations, drawings, weight indications and dimensions are only approximate values and not part of the offer until expressly stated as binding.
  2. The orders of the Buyer are binding on the Buyer. A purchase agreement is only concluded upon confirmation of the order by the Seller or, if this is not available, by transferring the goods to the supplier or the transport company. If the Buyer receives a confirmation letter, only its language is decisive for the content of the purchase unless the Buyer immediately objects by fax, e-mail or letter
  3. Drawings or technical documents made available regarding products available for order are not part of the product offer.

§ 3 – Special orders

  1. For special orders, additional or short deliveries up to 10% of the ordered amount cannot be objected to.
  2. The films and dies used for the production of special orders may be invoiced proportionally without being part of the special orders sold. They remain property of the Seller and will not be delivered.

§ 4 – Prices, payment and delivery

  1. All indicated prices are net prices, they are subject to VAT at the statutory rates and the shipping and delivery costs including packing.
  2. For contracts with a net value below 25 Euros, an extra charge for reduced quantities of 5 Euros is to be paid. The Buyer will be informed of this again before the conclusion of the agreement.
  3. The goods will be delivered by a delivery company working with the Seller. The Seller shall have met its performance obligation with regard to delivery upon delivery of conforming goods to the delivery company and the risk of accidental loss shall then pass to the Buyer.
  4. Partial deliveries are possible when reasonable.
  5. If a delivery time was not individually agreed on, all stated delivery times are approximate times. The delivery time refers to the time until delivery to the delivery company. The time taken for the delivery depends on the form of shipping and can not be influenced by the Seller.
  6. The delivery time may be reasonably extended in case of force majeure, unforeseeable operational disruptions or limitations of the Seller with no fault on its own part, official measures and the failure of supply in proportion to the length of these impairments. In the case of non-delivery or insufficient delivery to the Seller on the part of a supplier with which it has concluded a concurrent coverage transaction, the Seller is released in whole in part from its duties of delivery. In such cases, it undertakes to assign its claims against the supplier to the Buyer on request.
  7. If the goods are ready for shipping and shipment is delayed by circumstances for which the Buyer is at fault, risk transfers to the Buyer at the point at which such goods are ready for shipping. The Buyer must bear costs resulting from the delay (in particular storage costs).
  8. The place of performance / fulfilment, even in the case of cost-free shipment, is the Seller's registered place of business.
  9. In addition, the Seller is entitled to undertake price adjustments if there are more than four months between conclusion of the contract and delivery of the goods according to the contract and there have been price increases related to raw materials, wages, energy or similar costs or production-related changes or a change in raw materials used necessitates a price adjustment.
  10. We refer to agreements made between our companies with regard to subsequent price reductions.

§ 5 – Payment

  1. The purchase price is due and payable upon delivery of the goods to the Buyer. The first attempt at delivery by the delivery company during normal business hours is deemed to be delivery.
  2. The Buyer may pay the purchase price in advance or upon delivery of the goods by the delivery company. The delivery company's employees are authorised to receive payment of the purchase price
  3. In the event the Buyer does not immediately pay for the goods, the Seller is entitled to exercise its right of retention and to first release the goods upon complete payment of the purchase price including VAT and shipping and delivery costs.
  4. In the event payment terms other than those set out in paragraph 1 have been agreed and an obligation is not paid when due, all other obligations owed by the Buyer to the Seller existing as of such time become due and payable to the extent the Buyer is responsible for such circumstances. Other payment terms then in existence are superseded.
  5. The Seller reserves the right to conduct a credit check in the case of payment by invoice.

§ 6 – Default

  1. The Buyer is in default at the latest if it does not make payment within 30 days of when payment is due and receipt of an invoice or equivalent settlement statement; in the event the time of receipt of an invoice or settlement statement is uncertain, the Buyer is in default at the latest 30 days after payment is due and receipt of the goods for which payment is owed. The Buyer is not in default to the extent payment is not made due to circumstances for which the Buyer is not at fault.
  2. A cost-free reminder (1st notice) will initially be sent in the event the Buyer is in default pursuant to paragraph 1. In the event this results in no payment or incomplete payment, a fee in the amount of € 10.00 will be charged for the second notice and a fee in the amount of € 15.00 for the third notice. This is without prejudice to the assertion of other claims for default damages. The Buyer may prove that the Seller has incurred no costs or costs lower than the notice fees.
  3. In the event the Buyer is in default, the interest rate on claims for payment amounts to eight percentage points above the reference rate.

§ 7 – Advance payment obligation

In the case of new customers and special customers, the Seller reserves the right to may delivery contingent on payment in advance or cash on delivery.

§ 8 – Warranty and duty to provide notice

  1. The Buyer is obligated to immediately inspect goods upon delivery by the Seller or the delivery company hired by the Seller, as applicable, and to immediately (at the latest by the third business day) provide notice to the Seller of any obvious defects by fax, e-mail or letter. Defects for which notice is provided too late, i.e. not in compliance with the obligation set out above, will not be considered by the Seller and are excluded from this warranty.
  2. In the event a defect becomes apparent at a later date, it must be reported to the Seller immediately following discovery.
  3. Defects are not excluded from warranty protection based on a failure to comply with inspection and notice duties if and to the extent the defect was fraudulently concealed by the Seller or caused by the Seller intentionally or as a result of gross negligence.
  4. Outside sales employees of the Seller and employees of the delivery company are not authorised to receive notices pursuant to paragraphs 1 and 2. Notice under paragraphs 1 or 2 is only legally effective upon receipt by the Seller.
  5. In the event of a defect for which timely notice was given, the Seller is entitled to make repair or replacement at its option. The Buyer may only demand return of the goods or a reduction in the purchase price following the definitive failure of the Seller's chosen means of cure. The selected form of cure is deemed to have failed following a second attempt at cure without success.
  6. A return of the goods to the supplier required due to a defect should be coordinated with the Seller. In the case of a return shipment without such coordination, only those costs associated with the least costly means of shipment will be assumed.
  7. The limitations set out in § 9 of these GTC are applicable to claims for damages.
  8. The warranty period for goods which have been ordered is one year from the date on which the goods were provided to the Buyer at the designated place of destination.

§ 9 – Liability

  1. The Seller has unlimited liability to the Buyer for damage the Seller has caused either wilfully or through gross negligence, from guarantees which have been extended, under the German Product Liability Act (Produkthaftungsgesetz) as well as damages resulting from injury to the life, limb or the health of persons. Liability for simple negligence upon a breach of a material contractual obligation is capped at typical and foreseeable damages for the contract and is otherwise excluded.
  2. Material contractual obligations are those obligations which protect material legal rights of the customer under the contract, which are supposed to be granted to the Buyer based on the contents and purpose of the contract and the breach of which would endanger the achievement of the purpose of the contract; in addition, material contractual obligations are obligations that must be discharged for the contract to be performed properly and the observance of which may be, and are, consistently relied upon by the customer.

§ 10 – Set-off and right of retention

  1. The Buyer is only entitled to a set-off if its counter-claims have been finally determined by court or are not disputed.
  2. The Buyer may only exercise its right of retention if its counter-claims are based on the same contractual relationship.

§ 11 – Retention of title

  1. The goods delivered remain the property of the Seller until complete payment of the purchase price.
  2. The Buyer must immediately notify the Seller in the event actions by third parties or other events threaten the rights of the Seller. The Buyer must give notice of the Seller's ownership interest to the third party in the case of attachment or seizure of the goods. The Buyer must immediately notify the Seller of any such measures and, if available, provide a copy of the compulsory execution protocol and a declaration in lieu of an oath that the seized goods are the goods delivered by the Seller subject to a reservation of title.
  3. The Buyer is entitled to sell the goods in the ordinary course of business; however it now assigns the total of all receivables to the Seller which result from such sales of goods. The Buyer is authorised to collect payment of such receivables following assignment. This authorisation to collect payment may only be revoked in the event the Buyer does not properly satisfy its payment obligations. In particular, the Buyer does not properly satisfy its payment obligations if payments in the amount of 10% of payments due under the contractual relationship are not made in a timely manner and the Buyer, despite written demand, does not make payment within five business days.
  4. At any time, the supplier is entitled to review the Buyer's sales documentation and to inform its customers of the assignment.

§ 12 – Seller's right of revocation

The Seller is entitled to revoke the contract on the following grounds:

  1. If, contrary to the assumption made prior to the conclusion of the agreement, the Buyer is not creditworthy and the Seller's rights to payment are thereby endangered.
  2. A lack of creditworthiness may be assumed without further evidence in the case of a protested cheque, the unfounded suspension of payment by the Buyer or an unsuccessful attempt at compulsory enforcement against the Buyer. It is not necessary that a relationship between the Seller and the Buyer be involved.
  3. If it is discovered that the Buyer has provided inaccurate information regarding its creditworthiness and this information is of material significance.
  4. In the event goods subject to retained title on the part of the supplier are sold by the Buyer outside of the ordinary course of business, in particular by means of transfer by way of security or pledge.

§ 13 – Exchange and return

  1. Should the buyer not want to keep a delivered item, he must inform the seller of this in writing within 21 days of delivery, stating the reasons.
  2. The Seller is free to agree to a voluntary exchange and/or return of goods with the Buyer. However, this is fundamentally only possible in the case of standard goods. Special orders are not subject to exchange or return.
  3. The Seller charges a processing fee equal to 10% of the net value of the goods to cover costs incurred in connection with such a voluntary exchange or return plus shipping and packing costs.
  4. The return right can only be granted if the goods are received by the seller without any signs of wear, in their original packaging, and within an appropriate period of time. All risks and expenses of the return shipping are carried by the buyer.
  5. The return right does not apply to special-order items and individual goods not listed in the catalog.

§ 14 – Side agreements, place of fulfilment, jurisdiction

  1. No oral side agreements have been made.
  2. The parties agree on Amberg as the exclusive place of jurisdiction for all disputes arising under this contractual relationship. At the same time, the Seller is entitled to file suit at the registered location of its offices.
  3. German law is applicable to all disputes arising under this contractual relationship subject to the exclusion of international private law and the UN Convention on Contracts for the international Sale of Goods (CISG).