General terms and conditions

Last revised: 15 August 2006

1 General

1.1 These Terms and Conditions of Delivery apply to all present and future business transactions, whether or not they have been separately agreed upon in each individual case, provided that they have not been expressly changed or excluded in the individual contract. Any and all earlier differently worded provisions given by C+P Möbelsysteme GmbH & Co. KG (hereinafter “Supplier”) shall become invalid herewith.

1.2 Any provisions set forth by the Customer which deviate from the Supplier’s provisions do not obligate the Supplier in any way, whether or not he expressly objects to them. By placing an order, the Customer recognises these Terms and Conditions of Delivery as legally binding for the legal relationship with the Supplier. However, these Terms and Conditions of Delivery shall be considered as agreed to and accepted no later than that point in time when acceptance of the Supplier’s merchandise by the Customer occurs.

1.3 Should individual provisions of the contract or of these Terms and Conditions of Delivery be or become invalid, in whole or in part, the remaining provisions of the contract and of these Terms and Conditions of Delivery shall not be affected.

2 Quote and entering into the contract

2.1 The Customer undertakes to consider himself legally bound to his order from the time the order is received by the Supplier. Acceptance of all orders by the Supplier is contingent upon actual availability of merchandise for delivery. Any date of delivery quoted by the Supplier is only an estimate.

2.2 The order confirmation given in writing (including fax) shall prevail with regard to the type and scope of deliveries. Any ancillary agreements and changes must be confirmed in writing by the Supplier; this also applies to any changes to the written form requirement. Unforeseen obstacles to the manufacturing process, including but not limited to force majeure, work stoppages, strikes, lockouts, shortages of merchandise and raw materials, entitle the Supplier to delay or cancel commitments to perform deliveries.

2.3 Any and all documentation, such as samples, brochures, catalogues, illustrations, drawings, weights and/or measurements are only approximate, unless they have been expressly stipulated as binding. The Supplier reserves the right to make changes in design and form during the period of delivery, provided that the object of delivery and its function and appearance have not been fundamentally changed. This shall not effect any changes in the price.

2.4 The Supplier shall retain exclusive ownership and copyright to any price quotations, drawings, or any other similar documentation; such documentation may not be made available by the Customer to any external third parties. In the event that the order is not placed with the Supplier, said documentation, including any copies made thereof by the Customer, shall be immediately returned to the Supplier upon request.

3 Prices and terms of payment

3.1 Prices and terms of freight shall apply in accordance with catalogues and price lists as most recently updated, exclusive of packing. The Supplier shall take back any packaging in accordance with the packaging ordinance, provided that the Customer makes any such packaging originally provided by the Supplier available to the Supplier free of charge at the Supplier’s place of manufacture.

3.2 In the absence of otherwise agreed terms of payment, the Customer shall be in default of payment 30 days after invoicing at the latest.

3.3 In the event that payment is not made within the time period indicated, the Supplier shall charge the Customer customary bank interest without prejudice to any other possible claims.

3.4 The Customer is not entitled to the right to retention; if the Customer is not a merchant, he shall be entitled to the right to retention insofar as this right is based on the same contractual relationship.

3.5 The Customer is entitled to set-off against claims by the Supplier only in the event that the claim to set-off is uncontested or has been legally established.

3.6 All prices indicated by the Supplier do not include the current statutory value-added tax.

4 Reservation of title, security rights

4.1 The supplied merchandise shall remain the property of the Supplier until such time as any and all claims and outstanding accounts from the business relationship with the Customer have been fulfilled and/or paid. If the claims have been entered in a current account, the reservation of title shall apply to the balance on this account.

4.2 If the Customer is culpably in breach of contract, in particular in default of payment, the Supplier shall be entitled to reclaim the merchandise, whether or not he has previously cancelled the contract. The Customer is obligated to surrender the merchandise. The reclaiming of the merchandise by the Supplier shall not be deemed cancellation of the contract unless the Supplier has expressly declared the cancellation in writing. The Customer’s account will be credited with the reclaimed goods at the value of the actual income after deduction of the exploitation and reclaiming expenses.

4.3 The Customer shall notify the Supplier immediately in writing in the event of liens or other attachments by third parties so that the Supplier can bring legal action pursuant to Section 771 ZPO (Code of Civil Procedure). If and when the third party is not able to reimburse the Supplier for the court and out of court costs of an action pursuant to Section 771 ZPO, the Customer shall indemnify the Supplier for the incurred costs.

4.4 The Customer is obligated to insure the merchandise for fire, water damage and theft as long as the reservation of title remains effective. Any and all claims against the insurer shall be assigned to the Supplier, who hereby accepts the assignment.

4.5 The Customer is entitled to sell further the merchandise in the course of ordinary business, provided that he delivers products subject to reservation of title as well. Further sale has not taken place in the course of ordinary business if and when the Customer has agreed to an effective assignment prohibition with his customers; entry in a current account, on the other hand, is permissible. The pledging or assignment by way of security, in whole or in part, without the express written consent of the Supplier is prohibited as long as the Supplier’s reservation of title is effective. Within the scope of the further sale of the reserved goods on credit, the Customer is obligated to secure the Supplier’s rights pursuant to the latter’s reservation of title. In the event of further sale, the Customer here and now assigns to the Supplier any and all claims in the amount of the final invoice amount (including VAT) which arise for the Customer against his customers or other third parties from the further sale, irrespective of whether the merchandise is sold further with or without processing. The Supplier hereby accepts the assignment. The Customer remains entitled to collect the claims even after they have been assigned. The Supplier’s authority to collect the claims himself shall not be affected; the Supplier promises not to collect the claims as long as the Supplier performs his payment obligations to the Supplier in an orderly fashion and is not in default of payment. In the latter case, the Supplier may request that the Customer disclose to him the assigned claims and their debtors, provide any and all information necessary for collection, hand over the relevant documents and notify the debtor (third party) of the assignment. If the Customer enters the claims to which he is entitled from the further sale of the reserved goods in a current account existing with his customer, he here and now assigns the current account claim against his customer in full to the Supplier. The Supplier hereby accepts this assignment as well. After balancing of the account, the recognised balance, which shall be deemed assigned up to the amount equivalent to the original current account claim, shall take the place of the current account claim.

4.6 The processing or alteration of the merchandise by the Customer shall always be performed on behalf of the Supplier. If the merchandise is processed in conjunction with other objects which do not belong to the Supplier, the Supplier shall acquire co-ownership of the new object in the ratio of the value of the merchandise to the other processed objects at the time of the processing. The object created by the processing shall be subject to the same provisions as the reserved goods; the customer claims acquired by the sale of the processed object are hereby assigned to the Supplier in the amount of his co-ownership share. The Supplier hereby accepts this assignment as well.

4.7 If the merchandise is inseparably combined or mixed with other objects which do not belong to the Supplier, the Supplier shall acquire co-ownership of the new object in the ratio of the value of the merchandise to the other objects combined or mixed with it at the point in time of the combination or mixing. If the combination or mixing occurs in such a manner that the Customer’s object is to be regarded as the primary object, it shall be deemed agreed that the Customer shall assign to the Supplier proportionate co-ownership. The Customer shall safeguard the property to which the Supplier has sole ownership or co-ownership on behalf of the Supplier.

4.8 The Customer hereby assigns to the Supplier, who accepts the assignment, any and all claims which arise for the Customer against third parties consequent to the joining of the merchandise with land to secure his claims against him.

4.9 If a petition for the initiation of bankruptcy proceedings against the Customer’s assets has been submitted, the Customer’s authorisation to sell further, process, mix or combine the merchandise shall expire. If the Customer or the temporary official receiver nevertheless sells further, processes, mixes or combines the merchandise, the Supplier shall be entitled to the income realised therefrom in full; Section 170 and Section 171 InsO (Bankruptcy Code) shall not apply. Neither the Customer nor the temporary official receiver are authorised to collect any claims which have been assigned to the Supplier.

4.10 The Supplier promises, at the request of the Customer, to release any securities to which he is entitled if and when the securities exceed the value of the claims being secured, to the extent to which they have not been settled, by more than 20%. A claim for return cannot be asserted if and when it is counteracted by a claim for release.

5 Transfer of risks

5.1 Transfer of risks to the Customer shall occur as soon as the ordered merchandise is delivered in whole or in part to the indicated delivery address or has left the Supplier’s manufacturing premises for the purpose of pickup.

5.2 If the merchandise is ready for shipment and if its shipment or acceptance is delayed for reasons, for which the responsibility does not lie with the Supplier, transfer of risks to the Customer shall occur at the time he is notified that the merchandise is ready for shipment; from that day forward, the Customer shall also bear any storage costs and other costs in the minimum amount of 3% of the invoice total for each month commenced from that point in time when notification of shipment readiness occurred.

5.3 Insofar as the Supplier has been commissioned to perform any necessary assembly, the acceptance of the merchandise shall take place promptly upon the Supplier’s request and at the Customer’s expense, in partial stages if necessary. If, within 12 business days after receipt of the notification of completion, acceptance has not occurred for reasons for which the responsibility does not lie with the Supplier, the Supplier’s performance shall be considered as accepted upon the expiration of the 12th business day, provided that the Supplier has pointed this consequence out to the Customer at the time notification of completion was made. To the extent that the Customer or his end customer has begun to use the Supplier’s merchandise, in whole or in part, the acceptance shall be deemed as completed at that point in time when the merchandise has been put to use. Any defects and/or deficiencies objected to by the Customer entitle the Customer to refuse acceptance only in the event that they adversely affect the usability of the merchandise and/or service to a substantial degree.

6 Liability for material defects

The Supplier’s liability for material defects shall be defined pursuant to the regulations below, subject to the special regulations in Section 7 of these Terms and Conditions of Sale and Delivery.

6.1 The Customer is required to inspect each and every consignment immediately for recognisable and typical deviations of quality, quantity and of any other nature and to lodge written complaint immediately, no later than within one week, commencing on the day of the delivery, of any deviations which have been determined by sending the complaint of defects to the Supplier. The Customer is required to provide to the Supplier a detailed, written description of the defects about which he is lodging the complaint. If the complaint is not submitted, or is not submitted in due time, the Customer's claims due to existing defects in the merchandise shall expire. No processing of a notification of defects by the Supplier, in particular the inspection of the merchandise after its return by the Customer, shall be deemed a waiver of the Customer’s complaint obligations.

6.2 The Customer is also required to accept delivery if the merchandise has only minor defects.

6.3 The Supplier is liable for public statements, particularly those found in advertising, only if and when he has arranged them; in such cases, an obligation to accept responsibility shall exist only if and when the public statement, in particular in advertising, has actually influenced the Customer’s decision to buy. If the Customer pleads a public statement, especially in advertising, as justification for a complaint about defects, he shall bear the burden of proving that the public statement was the fundamental cause for the decision to buy.

6.4 In the event of a defect, the Supplier is initially entitled, at his discretion, to remedy to the defect or to deliver an object which is free of defects (subsequent performance). In the event of subsequent performance, the Supplier is obligated to bear any and all expenditures, in particular costs for transport, tolls, work and materials, required for the subsequent performance, provided that said costs are not increased because the goods, since the lodging of the complaint of defects, have been moved to another location or modified. The Supplier may refuse subsequent performance only if and when it is possible only at unreasonably high expense.

6.5 Unless otherwise mandated by law, the Customer is obligated to set in writing a reasonable period for subsequent performance before he can assert other warranty rights. As a rule, the Supplier shall be granted a period of no less than three weeks for subsequent performance whenever goods have been delivered, and a period of ten business days whenever spare parts have been delivered; this provision does not apply if and when a shorter period has been agreed in individual cases, or if and when a shorter period is absolutely essential in urgent cases in which there is an imminent threat of unreasonably great loss or damage or hazards for operational security occur.

If the subsequent performance is not carried out within the above period, the Customer shall be entitled to assert legal rights, in particular to cancel the contract, to declare reduction of the purchase price or – subject to the conditions of Section 9 – to claim damage compensation. The setting of a period is not required if and when the Supplier has finally and seriously refused the subsequent performance or the subsequent performance is impossible.

6.6 Any and all warranty claims are excluded if and when the merchandise exhibits only minor defects. Defects shall in particular be deemed minor if and when the deviations from the contractually agreed characteristics are merely insignificant and if and when the usability of the merchandise presumed in accordance with the contract is impaired to a merely insignificant extent. Warranty claims shall also be excluded if and when the Customer or a third person has performed work to remedy the defect or repair the merchandise, although this action was not mandatory.

6.7 No defects shall be deemed to exist in the event of natural wear of the merchandise, of defects or damage to the merchandise caused by improper or neglectful handling, overuse or as a consequence of the sending of unsuitable operating materials after the transfer of risk, or in the event of defects or damage to the merchandise caused by special outside factors which are not contractually presumed after the transfer of risk.

6.8 Damage compensation for collateral damage which occurs independently of the subsequent performance (loss of production, claims based on default of delivery to the Customer’s customers, etc., Section 280 BGB (Civil Code)) may be asserted only if and when a reasonable period for subsequent performance set for the Supplier in writing has expired in vain. Otherwise, damage compensation claims shall be regulated pursuant to Section 9.

6.9 The warranty period, including the period for spare parts deliveries and subsequent improvement work, shall be 24 months. The period shall commence upon transfer of the risk for consignments and upon acceptance or deemed acceptance for installation services. The statutory limitation period of five years (Section 438, Subsection 1, Item 2 BGB) shall apply to defects in construction works or defects in objects which are normally used in construction works or which are the cause of the defect in a construction work; however, the five-year limitation period shall apply only if and when the merchandise is properly built into a construction by the Customer within two years as of the delivery.

6.10 If the subsequent improvement period has lapsed in vain, the Supplier shall have the right to request, setting a period of one month, that the Customer assert any and all other warranty rights against the Supplier. If the Customer does not submit such a declaration within this period, any and all warranty rights shall be excluded; this provision shall apply only if and when the Supplier has expressly referred to this legal consequence in his request and the setting of the period.

6.11 The Supplier does not give any warranty for the characteristics of the merchandise he delivers in excess of the above regulations for warranty claims. No warranties shall be given by the Supplier unless expressly stated in a separate written agreement. Any reference to DIN standards or other technical regulations serves only as a description of the merchandise and shall not be deemed as the assumption of a warranty.

7 Supplier recourse

In the event of supplier recourse following the legally required satisfaction of an end customer’s warranty claims due to defects in newly manufactured movable objects pursuant to Section 478, Section 479 BGB, the legal regulations shall apply in lieu of Subsections 6.4, 6.5, 6.6, 6.9 and 6.10 above, subject to the following supplements:

7.1 The provisions of Section 478 and Section 479 BGB shall apply only if and when merchandise which is newly manufactured and sold by the Supplier is ultimately sold by the Customer or his domestic customers to a consumer in the sense of Section 13 BGB. The provisions shall not apply to used or overhauled merchandise.

7.2 Furthermore, the simplification of supplier recourse in accordance with Section 478 and Section 479 BGB shall apply only if and when the object delivered to the end consumer is identical to the object which the Supplier delivered to his Customer. Section 478 and Section 479 BGB shall therefore not apply if and when the merchandise supplied by the Supplier is modified, processed, combined, mixed or permanently joined to other objects or converted by the Customer or his customers or buyers. Section 478 and Section 479 BGB shall also not apply if the Supplier has supplied only aggregates or parts which are installed in other products, which in turn found their way to the end consumer.

7.3 The Supplier shall not be liable by way of recourse if and when the defectiveness is pursuant to agreements regarding the characteristics of the object handed over to the end consumer which were concluded with the end consumer and which deviate from the agreements which the Supplier concluded with the Customer. The agreement regarding characteristics concluded by the Supplier with the Customer is therefore solely and exclusively authoritative for the question as to whether there is a defect, even for cases of supplier recourse in the sense of Section 478 and Section 479 BGB.

7.4 The Customer may also not plead the provisions of Section 478 and Section 479 BGB if and when the Customer or his domestic customers have modified the application of the relevant legal provisions with respect to their contract partners; this shall in particular be the case if and when the application of the UN Convention on the International Sale of Goods (CISG9 has been excluded in international trade.

7.5 The Customer is obligated, before delivery, to inspect the merchandise procured from the Supplier for recognisable and typical deviations of qualitative, quantitative or of any other nature, and in the event of recognised or suspected defects to refrain from delivering to his customers; the Customer shall document the performance of the inspection and the results.

The Customer is obligated to send to the Supplier, without waiting for a request and at no charge, a detailed list of the merchandise which is still in his possession one year after delivery by the Supplier.

7.6 The Customer’s compensation claim pursuant to Section 478, Subsection 2 BGB is limited in its amount to the costs which would have been incurred if the product delivered by the Supplier had been subsequently improved at the place of performance agreed by the Supplier with the Customer or if the Supplier had made subsequent redelivery to that place. The Supplier shall pay a lump sum in the amount of 5% of the costs described in Sentence 1 above to cover any additional expenditures which may be incurred by the Customer – irrespective of the proof of any such additional expenditures – owing to the subsequent performance or claims by way of recourse pursuant to Section 478, Subsection 2 BGB.

7.7 Section 478 and Section 479 BGB shall not apply to claims for damage compensation. In all other cases, Section 9 of these Terms and Conditions of Sale and Delivery shall apply.

7.8 In the event that the Customer, by way of recourse, is entitled to declare cancellation of the contract or reduction of the purchase price or to assert reimbursement claims for expenditures, the Supplier may assign to the Customer any warranty claims against his suppliers to which he is entitled owing to the same defect as performance.

Moreover, the Supplier is entitled to offer to the Customer a lump-sum compensation; if the Customer does not reject this offer within 14 days, any and all claims of the Customer with respect to the defect about which complaint has been lodged shall be deemed satisfied by the offered lump sum, provided that this legal consequence has been pointed out to the Customer at the time the offer is made.

8 Liability for legal defects

8.1 The Supplier shall be liable for the freedom of the delivered products from legal defects in the legally required scope. Unless otherwise agreed, the Supplier warrants that the products delivered by the Supplier do not infringe on any industrial property rights or third-party copyrights solely within the territory of Germany. The Supplier is not liable if and when the infringement on such industrial property rights results from instructions which were given by the Customer, or if and when unauthorised modifications of the products or a use of the product in deviation from the contractual use by the Customer is the cause of the infringement on the rights.

8.2 The Customer shall notify the Supplier immediately if and when third parties assert an infringement on industrial property rights. If this immediate information is not submitted, any and all warranty claims shall be excluded.

8.3 Subsection 6.9 shall apply mutatis mutandis with respect to the warranty period.

8.4 If and when justified third-party claims are asserted during the warranty period, the Supplier may at his discretion obtain a right of utilisation for the consignments in question or modify the consignments, observing the contractual purpose, in such a manner that there is no infringement on the industrial property rights, or provide comparable products which do not infringe on the industrial property rights.

8.5 Any warranty claim by the Customer shall be excluded if and when the Customer leads the negotiations with the third person himself or concludes any agreements with the third party without the Supplier’s consent, or if and when the Customer did not notify the Supplier of the third-party claims immediately.

8.6 In the event of supplier recourse following a warranty claim asserted by end consumers, Section 478 and Section 479 BGB and Section 7 of these Terms and Conditions shall apply mutatis mutandis.

9 Liability for damage compensation and fruitless expenditures

9.1 The Supplier’s liability for damage compensation and for reimbursement of fruitless expenditures – irrespective of the legal reason – shall be limited to gross negligence and intent. This also applies to breach of obligation on the part of the Supplier’s legal representatives and vicarious agents.

9.2 In the event of simple negligence, the Supplier shall be liable – irrespective of the legal reason – only for the breach of essential contractual obligations; the amount of any damage compensation claim in this case shall be limited to compensation for the typically foreseeable damage or loss. The Customer is obligated to point out to the Supplier in writing any particular risks, atypical possibilities of damage or loss and unusually high amounts of loss before conclusion of the contract. Liability for any and all subsequent losses, lack of commercial success, indirect losses and losses from third-party claims in excess thereof shall be excluded.

9.3 Damage compensation claims due to defects shall be excluded if the merchandise has only minor defects.

9.4 No limitations of liability shall apply to claims related to injury to life, body or health or to claims based on the Product Liability Act and other provisions mandating liability (Environmental Liability Act, etc.).

9.5 If the object of the purchase contract is an object defined solely generically, the Supplier’s liability shall be defined in this case as well by the regulations above; any liability independent of fault shall be excluded.

9.6 Furthermore, the Supplier shall be liable, if and when he has in exceptional cases given warranties, for the fulfilment of the warranties in the agreed scope; any such warranties must be given in writing and expressly designated as such.

10 Protection and consideration obligations

In the event of the breach of protection and consideration obligations in the sense of Section 241, Subsection 2 BGB for which the Supplier is accountable and which is not directly related to the delivery of the merchandise, the Customer shall not be entitled to assert any damage compensation claims and to exercise his right of withdrawal from the contract unless a cease-and-desist letter concerning the breach of the obligation has previously been sent to the Supplier. This provision shall not apply if and when the Supplier, his representatives or vicarious agents are culpable of intent or gross negligence or if the breach is related to injury to life, body or health.

11 Place of performance/jurisdiction

11.1 Place of performance for both Parties to this contract is the domicile of the Supplier’s plant or warehouse from which delivery was made; place of performance for the Customer’s payment obligation is the domicile of the Supplier’s main administrative office.

11.2 Place of jurisdiction for both Parties to this contract is, at the discretion of the creditor, the domicile of the Supplier’s main administrative office, insofar as the Customer is a registered merchant, a legal entity under public law, or a public fund and/or asset or if the Customer does not have a general place of jurisdiction in Germany.

12 Applicable law

12.1 The contractual relationship between Supplier and Customer shall be subject solely to the law of the Federal Republic of Germany. Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

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