General terms and conditions of sale of acrylic couture Oliver Raatz & Nicole Seidel GbR
Section 1 Scope
- These terms and conditions of sale apply exclusively and only vis-á-vis companies, corporate bodies under public law and special funds governed by public law pursuant to section 310, sub-section 1 of the German Civil Code (BGB). We only accept the customer’s contrary terms and conditions or terms and conditions of the customer that differ to ours if we have agreed explicitly to their application in writing.
- These terms and conditions of sale also apply to all future transactions with the customer in so far as they concern legal transactions of a similar nature.
Section 2 Offers and conclusion of contract
- Our offers are always submitted subject to confirmation by us. Quotations are always non-binding and we assume no liability for the correctness of quotations and cost estimates.
- If a contract is not already concluded orally or telephonically as in normal commercial practice, it only becomes effective on written acceptance by us. Changes to orders must be made in writing.
- If an order may be considered an offer pursuant to section 145 of the German Civil Code, we can accept it within two weeks.
- All prices or price lists named are subject to change without notice. The offer alone shall apply.
Section 3 Associated documents
- We reserve title and copyright to all documents such as, for example, calculations, drawings, patterns, etc. given to the customer in connection with the placement of an order. These documents may not be made accessible to third parties and are to be returned forthwith if the offer is not accepted.
- The company acrylic couture acquires the right to photograph objects created with materials delivery by us and to publish same for the purposes of self-promotion.
Section 4 Prices, delivery
- If not agreed otherwise in writing, our prices are quoted ex works/warehouse excluding packaging and excluding the applicable rate of value added tax. Free delivery may be agreed separately. Otherwise delivery is effected at the customer’s expense.
- The merchandise is packed with the greatest of care. The costs of packaging are invoiced separately. We only take back packaging, means of protection and transport aids if we are obligated to do so by law or have explicitly declared our agreement to same.
- Shipment is effected at our discretion. If the goods are shipped to the customer at his request, the risk of accidental loss or accidental deterioration passes over to the customer on dispatch to the customer, albeit at the latest on departure from our works/warehouse. This applies irrespective of whether the goods are shipped from the place of performance or who bears the costs of carriage.
- We are entitled to effect partial deliveries to a reasonable extent.
- If the customer changes a legally-binding order, we are entitled to charge a fee of five percent of the net value of the order. Changes must be made in writing.
- If the customer cancels a legally-binding order, we are entitled to charge 10 percent of the net value of the order as well as for the goods already manufactured.
Section 5 Payment
- Payment of the purchase price is to be rendered solely to the account named overleaf. Deduction of an early payment discount is only permitted if same has been agreed separately in writing. If not agreed otherwise, the purchase price is due immediately after invoicing without deductions.
- Interest on arrears will be charged at eight percent above the respective base rate per annum. We reserve the right to claim a higher loss from default.
- If the customer is in default with his payment obligations from other deliveries, we are entitled to declare all our receivables that are uncontested due for payment.
- If a fixed price agreement has not been reached, we reserve the right to adjust our prices for deliveries that are to be effected three months or more after conclusion of contract to a reasonable extent due to changes in wage, material and marketing costs.
- The customer is only entitled to set off our receivables against his claims if these counter claims have been established as final and absolute or are uncontested. The customer is only entitled to exercise a right of retention if his counter claim devolves from the same contractual relationship.
Section 6 Delivery period
- The delivery period commences on sending of the acceptance of the order, albeit not before the documents, permits and approvals to be obtained by the customer and any down payments or sureties have been provided. We reserve the right to plea non-performance of the contract.
- The delivery period shall be deemed to have been observed if by its expiry the object of delivery has left the works or is ready for shipment.
- In the event of force majeure or other unpredictable circumstances or circumstances beyond our control, e.g. strikes, disruptions in operations or insufficiency of means of transport, the delivery period shall be extended reasonably also within any period of default if we or our suppliers are hindered in punctual performance of our respective delivery obligation as a result.
- If the customer delays acceptance or if he culpably breaches other duties of co-operation, we are entitled to claim compensation for losses, including any additional expenditures, incurred as a result. We reserve the right to assert further claims. If the above circumstances exist, the risk of accidental loss or accidental deterioration to the object of delivery passes to the customer at the time in which he enters into default of acceptance or payment.
- In so far as we are obligated to render compensation for default in delivery or impossibility thereof not caused wilfully or through gross negligence, this claim is limited to at most 10 percent of the value of that (partial) delivery that could not be used as a result of the default or impossibility. Compensation for more distant losses is ruled out.
Section 7 Retention of title
- We reserve title to the object of delivery until full payment of all receivables from the contract for delivery. This also applies to all future deliveries even if we do not in each case explicitly refer to this. We are entitled to take back the goods if the customer is in breach of contract.
- The customer is obligated to look after the goods with care as long as title to them has not passed to him. In particular he is obligated to insure them adequately at replacement value against theft, fire and water damage. As long as title has not passed to him, the customer must inform us forthwith in writing if the goods delivered are attached or subject to other intervention by third parties. If the third party is not able to reimburse us the judicial and extra-judicial costs of a suit pursuant to section 771 of the German Code of Civil Procedure (ZPO), the customer shall be liable for our resultant loss.
- The customer is entitled to resell the goods subject to retention of title in the normal course of business. For such a case the customer assigns all receivables including all subsidiary rights devolving upon him from the resale to us. This assignment applies irrespective of whether the goods were resold with or without further processing. We shall not collect the receivables as long as the customer fulfils his payment obligations and in particular a petition for opening of insolvency proceedings has not been filed or the customer has not ceased payments. If the customer is in arrears with his payments, we may demand that the customer inform us of the assigned receivables and their debtors, give us all particulars necessary for collection and surrender all associated documents. In this case we are obligated and entitled to inform the debtor of the assignment.
- Should the retention of title terminate through combination or processing with other goods, we are entitled to co-ownership of the new goods in the proportion of the invoice value of the goods originally subject to retention of title and the invoice value of the other goods used. In the event of resale of the new goods the customer assigns all receivables devolving upon him from the resale to us up to the value of our performance. For the rest point 3 applies. To secure our receivables from the customer, the customer also assigns such receivables to us that devolve upon him from a third party from combination of the goods originally subject to retention of title with a property; for example, also the granting of a surety mortgage to the customer. We already accept this assignment now.
Section 8 Warranty, notice of defects and recourse/manufacturer recourse
- The customer must inspect the delivered goods for deficiencies, quality, warranted properties and quantity discrepancies immediately after receipt thereof.
- In the case of obvious deficiencies a notice of defects must be submitted in written form immediately, albeit at the latest within a period of three days; the period is defined by the time of delivery and day of receipt of the notice of defects.
- Claims for defects lapse 12 months after delivery of the goods by us to our customer. The above terms do not apply if the law pursuant to section 483, sub-section 1, no. 1 of the German Civil Code (buildings and things for buildings), section 479, sub-section 1 of the German Civil Code (recourse claims) and section 634a, sub-section 1 of the German Civil Code (building defects) prescribes longer limitation periods. Our consent must be sought before goods are returned to us.
- In the case of justified claims for deficiencies that already existed at the time of risk passage we will, subject to timely notification of the deficiencies, at our discretion and excluding other warranty rights either repair the goods or deliver replacements. We must at all times be granted the opportunity for supplementary performance within a reasonable period.
- Should supplementary performance fail, the customer may withdraw from the contract or reduce the remuneration.
- Claims for defects do not exist in the case of insignificant deviations from the agreed quality, insignificant impairment of usability, natural wear and tear and damage arising after the passage of risk due to faulty or negligent handling, excessive strain or special external influences not presupposed by the contract. If the customer or a third-party undertakes improper repair work or changes, the customer also has no right to a claim for defects for this and any consequences resulting therefrom. All dimensions are subject to natural variations; contact us for details on dimensional tolerances.
- No liability can be accepted for weaving flaws and material deviations in the material poured or worked into the product series “acrylic couture”. Air inclusions and bubbles as well as changes in the poured material caused by the processing process are not defects if they do not significantly impair the functionality or visual quality. We point out that due to the manufacturing process the dimensions, colours and quality of the delivered goods can differ slightly from the samples presented. We cannot guarantee exact replication of the samples presented. Particularly products with natural materials can vary regarding the samples, surface quality and surface gloss. The natural products and textiles worked into the product series “acrylic couture” can change in the course of time regarding colour and other visual appearance. This is not a defect if this does not significantly impair the functionality or visual quality.
- Depending on the material worked into the products, the actual plate thicknesses of the product series “acrylic couture” can differ considerably from the specified plate thicknesses. These differences can in the case of certain materials exceed 15 percent of the specified thickness and 3 percent in the length dimensions from case to case. This does not entitle the customer to a claim for defects.
- The customer only has rights of recourse against us if the customer has not reached agreements with his customers going beyond compulsory statutory claims for defects.
Section 9 Compensation for damages
- The customer has no rights to compensation for damages against us or our legal representatives or vicarious agents – for whatever legal reason – particularly due to defects in the delivered goods, culpable impossibility of delivery or delay in delivery, positive breach of contract, breach of duties in contractual negotiations and illegal actions.
- This does not apply in so far as we or our vicarious agents are liable compulsorily in cases of intent, gross negligence, lack of warranted properties and breach of contractual duties that are of essential significance in order to achieve the objective of the contract.
- Our above-mentioned liability for all types of claims for compensation for damages is restricted in amount to the damage whose occurrence was recognisable and foreseeable by us at the time the contract was concluded.
- Any other claims pursuant to the German Product Liability Act are not affected by this.
Section 10 Miscellaneous
- This contract and the complete legal relationship between the parties are subject to the law of the Federal Republic of Germany under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
- The place of performance and sole place of jurisdiction for all disputes arising from this contract is our registered place of business unless stated otherwise in our acceptance of the order.
- All agreements reached between the parties for the purposes of implementation of this contract are recorded in this contract in writing.
- Should individual provisions of this contract be or become ineffective or contain an omission, this shall not affect the other provisions.