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General terms and conditions

Last revised: 05 Mai 2020

1 General

1.1   These General Terms and Conditions shall apply to all business transactions carried out by C + P Möbelsysteme GmbH & Co. KG (hereinafter referred to as ‘the Supplier’). The General Terms and Conditions shall only apply if the Customer is an entrepreneur (under Section 14 of the German Civil Code), a legal entity under public law or a special fund under public law.

1.2   These General Terms and Conditions shall apply exclusively. The Customer’s deviating, conflicting or supplementary General Terms and Conditions (GTCs) shall only become part of the contract if and insofar as the Supplier has expressly agreed to the validity of the same in text form. This approval requirement shall apply in any case, even if – for example – the Supplier carries out delivery to the Customer without reservation in full awareness of the Customer’s GTCs.

1.3   Individual agreements made with the Customer on a case-by-case basis (including side agreements, amendments and modifications) shall in any case take precedence over these General Terms and Conditions. Subject to proof to the contrary, an agreement in text form or our confirmation in text form shall be decisive for the content of such agreements.

1.4   Should individual provisions of these General Terms and Conditions be or become invalid either in whole or in part, this shall not affect the remaining provisions set down in these General Terms and Conditions.

2 Quote and entering into the contract

2.1   All of the Supplier’s quotations are subject to confirmation and are non-binding, unless they are marked as binding.

2.2   A contract is only concluded when the Supplier confirms the order in writing or in text form (e.g. also by fax or electronically). The order confirmation may be replaced by delivery of the goods.

2.3   Documents – such as samples, brochures, catalogs, illustrations, drawings, weights and dimensional data – are only approximate unless they are expressly declared as being binding in writing or the usability of the same for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but rather descriptions or identifications of the delivery or service.

2.4   The Supplier reserves the right to make design and shape-related modifications during the delivery period, provided that the delivery item and its function and appearance are not fundamentally modified and usability for the contractually intended purpose is not impaired. Such modifications shall not result in price changes.

2.5   The Supplier reserves the right of ownership and copyright to cost estimates, drawings and similar documents; the Customer may not make such documents accessible to third parties. If the Customer does not place an order, the documents – including any copies that the Customer has made in the meantime – must immediately be returned to the Supplier on request.

 

3 Delivery and delivery period

3.1   Dates and delivery periods stated by the Supplier are only approximate, unless a fixed period or date is expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, freight forwarder or other third party commissioned to carry out transport.

3.2   Without prejudice to their rights arising from default by the Customer, the Supplier may demand from the Customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Customer does not fulfill their contractual obligations vis-à-vis the Supplier.

3.3   Unforeseen obstacles to production, special events, force majeure, interruptions to operation, strikes, lockouts and shortages of goods and raw materials entitle the Supplier to postpone or cancel accepted delivery obligations.

3.4   If the Supplier is in default with a delivery or service or if a delivery or service becomes impossible for them to fulfill for whatever reason, the Supplier’s liability for damages shall be limited in accordance with Section 10 of these General Terms and Conditions.

4 Prices and terms of payment

4.1   Unless agreed otherwise on a case-by-case basis, the Supplier’s prices and freight terms that are valid at the time the contract is concluded shall apply, excluding packaging and plus sales tax at the statutory rate applicable at that time. A discount may only be deducted if a special agreement is made in text form.

The Supplier shall take back packaging in accordance with the provisions set down in the German Packaging Act, provided that the Customer makes the packaging supplied by the Supplier available to the same free of charge at the manufacturer’s plant for acceptance.

4.2   In the absence of otherwise agreed payment terms, the Customer shall be in default of payment 30 days after the invoice is issued at the latest.

4.3   In the event of default, the Supplier shall charge interest at the statutory rate, without prejudice to any other claims.

4.4   The Customer is only entitled to offsetting and retention rights if their counterclaims have been legally established, are undisputed or have been recognized by the Supplier. In the event of defects in the delivery, the Customer’s opposing rights shall remain unaffected.

5 Reservation of title, security interests

5.1   The delivered goods shall remain the Supplier’s property until all claims arising from the business relationship with the Customer have been settled. In the event of inclusion in a current account, the reservation of title shall apply to the balance in question.

5.2   If the Customer culpably acts in a way that breaches the contract – particularly by defaulting on payment – the Supplier shall be entitled to take back the delivery item even without withdrawing from the contract beforehand. The Customer is obligated to surrender the goods. The Supplier taking back the goods does not constitute withdrawal from the contract unless the Supplier has expressly declared the same in writing. The goods taken back shall be credited with the actual proceeds following deduction of the utilization and return costs.

5.3   In the event of seizure or other attacks by third parties, the Customer shall immediately inform the Supplier in writing so that the Supplier can take legal action in accordance with Section 771 of the German Code of Civil Procedure. Insofar as the third party is not in a position to reimburse the Supplier for the court and out-of-court costs of legal action in accordance with Section 771 of the German Code of Civil Procedure, the Customer shall be liable vis-à-vis the Supplier for the costs incurred.

5.4   As long as the reservation of title exists, the Customer is obligated to insure the delivery item sufficiently at replacement value against fire, water damage and theft. The claims against the insurance company are assigned to the Supplier, who hereby accepts this assignment.

5.5   The Customer is entitled to resell the delivery item in the ordinary course of business. Among other things, resale shall not take place in the ordinary course of business if the Customer has agreed an effective prohibition of assignment with their customer; on the other hand, it is permissible to put the goods on current account. Pledging or transfer by way of security, either in whole or in part, without the Supplier’s express written consent is not permitted as long as the Supplier’s reservation of title exists. In the context of reselling the reserved goods on credit, the Customer is obligated to safeguard the Supplier’s rights arising from their reservation of title.

        In the event of resale, the Customer shall hereby assign to the Supplier all claims in the amount of the final invoice amount (including sales tax) that accrue to them from the resale against their customers or against third parties, irrespective of whether the delivery item has been resold without or after processing. The Supplier shall hereby accept the assignment. The Customer is authorized to collect these claims even after their assignment. The Supplier’s authority to collect the claims themselves shall remain unaffected by this; the Supplier undertakes not to collect the claims as long as the Customer duly fulfills their payment obligations vis-à-vis the Supplier and is not in default of payment. In this case, the Supplier may demand that the Customer inform them of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and notify the debtor (third party) of the assignment.

        If the Customer includes the claim that they are entitled to from a resale of the reserved goods in a current account relationship existing with their customer, they shall hereby assign the current account claim against their customer to the Supplier in full. The Supplier shall hereby accept this assignment too. Once balancing has taken place, the acknowledged balance shall take the place of the current account claim, which shall be deemed assigned up to the amount of the original current account claim.

5.6   Processing or transformation of the delivery item by the Customer is always carried out for the Supplier. If the delivery item is processed with other objects that do not belong to the Supplier, the Supplier shall acquire co-ownership of the new object in the ratio of the value of the delivery item to the other processed objects at the time of processing. The same shall apply to the object resulting from processing as to the reserved goods; the Customer claims acquired through the sale of the processed object are assigned to the Supplier in the amount of their share of co-ownership. The Supplier shall hereby accept this assignment too.

5.7   If the delivery item is inseparably combined or mixed with other objects that do not belong to the Supplier, the Supplier shall acquire co-ownership of the new object in the ratio of the value of the delivery item to the other combined or mixed objects at the time of combination or mixing. If the combination or mixing is carried out in such a way that the Customer’s object ought to be considered the main object, it is deemed to be agreed that the Customer shall proportionally transfer co-ownership to the Supplier. The Customer shall keep the sole ownership or co-ownership in safe custody for the Supplier.

5.8   If a petition for the institution of insolvency proceedings is filed against the Customer’s assets, the Customer’s authority to resell, process, mix or combine the delivery item shall cease to apply. If the Customer or the temporary insolvency administrator nevertheless sells, processes, mixes or combines the delivery item, the Supplier shall be entitled to the full proceeds of such sale, processing, mixing or combination; Sections 170 and 171 of the German Insolvency Code shall not apply. Neither the Customer nor the temporary insolvency administrator shall be entitled to collect the claim assigned to the Supplier.

5.9   The Supplier undertakes to release the securities that they are entitled to at the Customer’s request to the extent that their value exceeds the claims to be secured by more than 10%, insofar as they have not yet been settled. Entitlement to restitution cannot be asserted if and insofar as a release claim is opposed to this.

7 Liability for material defects

The Supplier’s liability for material defects shall be governed by the following provisions, subject to the special provisions set down in Section 8 of these General Terms and Conditions.

7.1   Claims for defects shall lapse 12 months after delivery or, if acceptance is required, after acceptance. If there are defects in buildings or in items that were used for a building in accordance with their normal use or that caused its defectiveness, the statutory limitation period of five years shall apply (as per Section 438 (1) (2) of the German Civil Code). Other statutory special regulations on the limitation period – particularly in the case of fraudulent concealment of a defect (Section 438 (3) and Section 444 of the German Civil Code), in the case of loss of life, physical injury or harm to health or resulting from a grossly negligent breach of duty (Section 309 (7) of the German Civil Code), in the case of recourse against the Supplier (Section 8.1 of these General Terms and Conditions, Section 445b of the German Civil Code) as well as according to the German Product Liability Act – shall remain unaffected.

7.2   The original limitation period shall continue to apply to repaired delivery items; it is only extended by the time in which the delivery item is not usable. The same shall apply to replacement deliveries.

7.3   The delivered items shall be carefully inspected immediately after delivery to the Customer or to the third party appointed by the former. If they are intended for installation, the inspection shall be carried out before installation. With regard to obvious defects or other defects that would have been recognizable in an immediate, careful inspection, they shall be deemed to have been approved by the Customer if the Supplier does not receive a notification of defects in text form within seven working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the Customer if the Supplier does not receive the notification of defects within seven working days of the time at which the defect became apparent; if the defect was already apparent to the Customer at an earlier time during normal use, this earlier time shall, however, be decisive for commencement of the period for notification of defects. If the Customer fails to carry out the proper inspection and/or report defects, the Supplier’s liability for the defect that has not been reported, or that has not been reported in good time or not reported properly, shall be excluded in accordance with the statutory provisions.

7.4   The Customer is obligated to accept the delivery even if the goods have only minor defects.

7.5   The Supplier is only liable for public statements – especially in advertising – if they arranged them; in such cases, a duty to assume liability only exists if the public statement – especially in advertising – has actually influenced the Customer’s purchase decision. If the Customer refers to a public statement – especially in advertising – to justify a defect that they have reported, they shall be responsible for proving that the public statement was the reason for the purchase decision.

7.6   In the event of a defect, the Supplier is initially entitled to choose between remedying the defect or delivering a defect-free item (supplementary performance). If they opt for supplementary performance, the Supplier shall be obligated to bear all expenses necessary for the purpose of supplementary performance, particularly transport, travel, labor and material costs, plus dismantling and installation costs, if a defect is actually present. Otherwise, the Supplier may request that the Customer reimburse the costs incurred as a result of the unjustified demand to remedy defects (particularly inspection and transport costs), unless the absence of the defect was not apparent to the Customer. The Customer shall also bear the expenses necessary for the purpose of supplementary performance, insofar as they are increased by the fact that the goods have been moved to another location or modified once the notification of defects had been issued. The Supplier may refuse supplementary performance if it can only be carried out at disproportionately high costs.

7.7   The Customer shall give the Supplier the time and opportunity required for the supplementary performance owed, particularly to hand over the rejected goods for inspection purposes. If they opt for a replacement delivery, the Customer shall return the defective item to the Supplier in accordance with the statutory provisions.

7.8   If the supplementary performance has failed or a reasonable period of time to be set by the Customer for supplementary performance has elapsed unsuccessfully or is superfluous according to the statutory provisions, the Customer may withdraw from the purchase contract or reduce the purchase price. However, the Customer shall not have a right of withdrawal if the defect is insignificant.

        If a defect is attributable to the Supplier, the Customer may, under the conditions stipulated in Section 10, claim damages or compensation for wasted expenses.

7.9   Liability for defects shall not apply if the Customer modifies the delivery item or has the same modified by third parties without the Supplier’s consent and remedying of the defect is thus rendered impossible or unreasonably difficult. In any case, the Customer shall bear the additional costs of remedying the defect arising from the modification. Furthermore, liability for defects shall be excluded if the Customer or third parties have carried out remedial or repair work without this being absolutely necessary.

7.10 Delivery of used objects agreed with the Customer on a case-by-case basis shall be carried out under the exclusion of any liability for defects.

7.11 No defects are present in the event of natural wear and tear of the purchased item, in the event of defects or damage to the purchased item that occur(s) after the transfer of risk as a result of incorrect or negligent handling, excessive stress or as a result of unsuitable operating equipment being used, or in the event of defects or damage to the purchased item that occur(s) after the transfer of risk due to special external influences that are not contractually assumed.

7.12 Compensation for damages due to potential collateral damage that occurs independently of supplementary performance (loss of production, claims due to delayed delivery to the Customer’s customers, etc., Section 280 (1) of the German Civil Code) may only be claimed if a reasonable period of time granted to the Supplier in writing for supplementary performance has elapsed unsuccessfully. In all other respects, Section 10 shall apply to claims for damages.

7.13  Beyond the above provision concerning liability for defects, the Supplier does not give any guarantee for the quality of the purchased item that they deliver. The Supplier shall only give guarantees if a separate written agreement has been made. Reference to DIN standards or other technical regulations serves only to describe the purchased item and does not constitute provision of a guarantee.

8 Recourse against the Supplier

8.1    If the last contract in the supply chain is a purchase of consumer goods, the claim against the Supplier by way of recourse against the Supplier according to Sections 445a and 478 of the German Civil Code shall essentially be based on the legal regulations. However, it shall be excluded where

 

  • the Customer has violated their obligation to carry out inspections and give notice of defects in accordance with Section 377 of the German Commercial Code;
  • the goods delivered by the Supplier have been modified, processed, combined with, mixed with or permanently connected to other objects, or converted by the Customer or their customers or buyers;
  • a defect does not actually exist, particularly if the Customer makes a goodwill settlement with the end customer;
  • the Supplier’s claim refers to claims that extend beyond the mandatory legal regulations;
  • the expenses to be reimbursed increase because the end customer has taken the delivered goods to a place other than the contractually agreed destination;
  • the goods sold are used goods.
     
    8.2   Insofar as the end customer is not a consumer under Section 13 of the German Civil Code, recourse against the Supplier according to Sections 445a and 478 of the German Civil Code is excluded altogether.

9 Liability for defects of title

9.1   The Supplier shall be held liable for the delivered products’ freedom from defects of title within the scope of the law. The Supplier shall not be liable if the infringement of industrial property rights or copyrights belonging to third parties is based on instructions given by the Customer, or if the infringement is caused by unauthorized product modifications or the Customer’s use of the product deviating from the contractual use.

9.2   The Customer shall immediately inform the Supplier as soon as third parties put forward an infringement of industrial property rights. Claims for defects shall be excluded if this information is not provided immediately.

9.3   Section 7.1 shall apply accordingly with regard to the limitation period.

9.4   If justified third-party claims are asserted during the limitation period, the Supplier may – at their own expense and at their discretion – either obtain a right of use for the deliveries concerned or modify the deliveries, taking the contractual purpose into account, in such a way that industrial property rights are not infringed, or deliver comparable products that do not infringe the industrial property rights.

9.5   The Customer’s claim shall be excluded if the Customer conducts the negotiations with the third parties themselves or concludes agreements with the third parties themselves without the Supplier’s consent, or if the Customer has not immediately informed the Supplier of the third parties’ claims.

9.6           In the event of recourse against the Supplier, Section 8 of these General Terms and Conditions shall apply accordingly.

10 Liability for damages an wasted expenses

10.1 Insofar as nothing to the contrary results from these General Terms and Conditions including the following provisions, the Supplier shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.

10.2 The Supplier shall be liable without limitation for damages and for the reimbursement of wasted expenses – regardless of the legal reason – in the event of intent and gross negligence

10.3 In the event of simple negligence, the Supplier shall be liable – regardless of the legal reason – only in the event of material contractual obligations being breached. Material contractual obligations are those obligations, the fulfillment of which characterizes the contract and on the fulfillment of the same the Customer may rely. In this case, the amount of a potential claim for damages is limited to compensation of the typical foreseeable damage. The Customer is obligated to inform the Supplier in writing before conclusion of the contract of any special risks, atypical potential damage and unusual amounts of damage.

10.4 In the event of a breach of duty that does not consist of a defect, the Customer may only withdraw from or terminate the contract if the Supplier is responsible for the breach of duty. A free right of termination by the Customer (particularly in accordance with Sections 650 and 648 of the German Civil Code) is excluded. Otherwise, the legal requirements and legal consequences shall apply

10.5 All limitations of liability shall also apply in the event of breaches of duty by or in favor of persons whose fault the Supplier is responsible for according to statutory regulations. They do not apply to claims in connection with loss of life, physical injury or harm to health or to claims arising from the German Product Liability Act and other mandatory regulations that establish liability (bases for claims under data protection law, the German Environmental Liability Act, etc.).

10.6         In addition, the Supplier is liable for the fulfillment of these guarantees to the agreed extent if they have given guarantees in exceptional cases; guarantees must be given in writing and must be expressly designated as such.

 

11 Returning goods that are free from defects

Since the Supplier’s products are generally manufactured and procured to order, returning delivered goods that are free from defects is generally excluded. Should the Supplier nevertheless expressly agree to take back the goods on a case-by-case basis, all costs associated with taking the goods back such as depreciation, return delivery costs, transport damage or reconditioning shall be borne by the Customer.

12 Applicable law, place of jurisdiction

12.1 The exclusive validity of German law is agreed for the contractual relationship between the Supplier and the Customer. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

12.2 The place of jurisdiction for both Parties shall be the registered office of the Supplier’s head office, provided the Customer is a registered trader, a legal entity under public law or a special fund under public law, or if the Customer has no general place of jurisdiction in Germany. However, the Supplier is also entitled to take action against the Customer at their general place of jurisdiction.