Conditions of sale and delivery
CONDITIONS OF SALE AND DELIVERY
§1 Generality – Scope
Our conditions of sale and delivery are the only ones applicable; no customer terms and conditions that are opposed to or deviate from our conditions of sale and will be accepted, unless we would have approved to their validity expressively in writing. Our terms and conditions of sale also apply when we proceed with a delivery to the customer without any reservation although we are aware that the customer conditions are opposed to or deviate from our terms and conditions of sale.
All agreements concluded between the customer and us for the purpose of executing this contract have been put in writing by these presents.
Our terms and conditions of sale are applicable to entrepreneurs in the sense of §24 of the Commercial Code only.
§2 Quotation – quotation documents
Must the order be qualified as a quotation under § 145 of the Civil Code, then we are free to accept the same within four weeks.
We reserve all ownership rights and copyrights to figures, drawings, cost estimates and other documents. This shall apply for such written documentation, which has been designated as confidential. Prior to the customer disclosing such information to any third party our expressive consent shall be obtained in writing.
The dimension (equal to tube length) in cm will be delivered as ordered. The next higher dimension, as listed in our price table, will be invoiced for intermediate dimensions. All dimensional details have been specified as approximate values in mm. Only full sales units (SU), will be supplied as specified for each article and each dimension in the catalogue under the “accessories” register.
You are kindly requested to draw your attention to the fact that orders having a net invoice value below €150.00 will be avoided considering their high processing cost. Miniature orders, which are unavoidable, will be delivered with the next shipment or invoiced with a mark-up for small volume purchases in the amount of €15.00, should an immediate shipment have been requested.
At any time we reserve the right to deviations from figures, descriptions and dimensions, technical modifications, and to proceed with progressive engineering, improvements plus the correction of printing errors and other mistakes.
§3 Prices and terms of payment
Unless something different be learned from the order confirmation, our prices are “ex works” excluding packaging; the same will be invoiced separately.
The statutory VAT has not been included in our prices; the statutory amount applicable on the date of the invoice is reported therein. Unless something different has been specified, all prices are applicable per set, per piece, per pair or per meter in EURO.
The deduction of a trade discount requires a specific agreement in writing.
Unless something else can be learned from the order confirmation, the purchase price is payable net (without deduction) within 30 days of the invoice date. The fact that a customer is in delay with his payments entitles us to claim interest in the amount of 5% above the base rate applicable at that time. Should we be in a position to provide evidence for a more substantial damage caused by delayed performance, we shall be entitled to assert the same. The customer, however, shall be entitled to demonstrate to us that no damage has occurred or that the damage we have suffered from in the course of the customer being in arrears with his payments has been substantially below our claim.
In the presence of defects the customer shall have no right of retention, unless this is found to be in a reasonable ratio to the defects and the expected expense to repair such defects.
The customer’s right to offset is subject to the condition that his counterclaims have been established finally and absolutely, have not been contested or have been accepted by us. He shall also be entitled to exercise a right of retention inasmuch as his counterclaim is based on the same contractual relation.
§4 Period of delivery / delay of delivery (arrears) / impossibility of performance
The commencement of the delivery period specified by us assumes a prior clarification of all technical questions.
The compliance with our terms and conditions of sale also assumes that the customer has fulfilled his obligations correctly and in due time. We reserve the right to a defence for lack of performance of the contract.
Should the customer be in arrears with his acceptance of the goods or should he violate any other one of his obligations of assistance, we shall be entitled to request a compensation of the resulting damage including any possible extra. We reserve the right to broaden our claim for compensation.
Inasmuch as the prerequisites of §3 exists, the risk of accidental loss or accidental deterioration of the purchase object will pass over to the customer by the same defaulting with his acceptance or as a debtor.
We are liable in case of a delay in performance, in cases of intent or gross negligence on our side or that of a representative or a person employed in performing an obligation under the provisions of the statute. In other cases of a delay in performance our liability to repair the damage in addition to the performance itself is limited to 5 %, and for a reparation of the damage instead of the performance to 10 % of the amount stated for the shipment (in the case of a culpable violation of substantive contract requirements, our liability, however, is limited to the predictable damage typical for the type of contract). Further customer claims – even after elapse of a customer specified extended period for performance – have been excluded. The above limitation does not apply to any liability because of fatal injury, personal injury or impairment of health.
To the extent of a delivery being impossible to be completed the customer is entitled to request reparation of the damages under the provisions of the statute. The customer’s claim, however, shall be limited to the reparation of damage besides or instead of the performance and to a replacement of futile expense amounting to 10 % of the value of that portion of the delivery that cannot be put to use due to the impossibility to perform. Further claims of the customer on grounds of any impossibility to perform have been excluded herewith. This limitation applies, unless a liability must be assumed in cases of intent, gross negligence or because of fatal injury, personal injury or impairment of health. The customer’s right to rescind from the contract remains uneffected thereby.
§5 Passage of risk – packaging cost
Unless something different can be learned from the order confirmation, the delivery “ex works” has been agreed.
Transport and all other packaging, as specified by the packaging code, will not be taken back; excepted therefrom are pallets. The customer is obligated to assure a proper disposal of the packaging at his own cost.
Provided the customer expresses such request, we shall cover the delivery by a transport assurance; the cost arising therefrom shall be born by the customer.
§6 Warranty for defects
The customer’s claims to a warranty based on defects have as a pre-requisite that he has complied with his obligations to an examination and notice of defects given by purchaser to seller as appropriate under §§ 377, 378 of the Commercial Code.
Inasmuch as we are responsible for a defect of the object of purchase, at our choice, we may exercise the right to either repair the defect or to deliver a replacement. In case of repairing the defect we shall be obligated to bear all expenses required for the purpose of repairing the defect, in particular the cost of transport, travel, work and materials, to the extend that the same will not be augmented as a result of the object of purchase having been brought to a different location than the place of performance.
Should we either not be prepared for or in a position to repair the defect / deliver a replacement, in particular, should the same be delayed over and above any reasonable period for reasons we are responsible for, or should the repair of the defect / delivery of a replacement fail in any other way, than the customer, if needed, shall be entitled to take recourse to other claims to a warranty based on defects available by statute (rescission, reduction of the purchase price, self repair, reparation of damages or replacement of futile expense). Claims for a compensation of the damage exist only subject to the proviso of the settlement, as specified herein below, covering the producer’s total liability contained in these conditions.
§7 Producer’s total liability
We are liable in cases of intent and gross negligence on our side or that of a representative or a person employed by us in performing an obligation under the provisions of the statute. Otherwise we are liable under the Product Liability Act for fatal injury, personal injury or impairment of health or for culpable violation of substantive contract requirements only. The claim to a compensation for violation of substantive contract requirements, however, is limited to a foreseeable damage typical for the type of contract. The liability for damage, however, caused to objects of the customer’s legal protection by the object of delivery, e.g. damage to other objects, has been totally excluded. This settlement provided for by the sentences 3 and 4 of this paragraph 1 shall not apply to the extend of intent or gross negligence being present or when we are liable for fatal injury, personal injury or impairment of health or, inasmuch as the deficiency has been concealed by us, or when we have assumed a warranty for the quality of the object of delivery.
The settlement of the above paragraph 1 covers a compensation of damages besides the performance and a compensation of damage instead of performance, regardless for what legal cause, in particular because of defects, the violation of duties from the obligation or for tortious act. It also applies for the claim to a compensation for futile expense. The liability for a delay in performance, however, is governed by §4 item 5, the liability for impossibility by §4 item 6.
A large portion of our brass articles is coated with a special hard varnish. This varnish is burned in at a temperature of about 140°C to protect the high-value articles permanently. The surface coatings may show slight differences in colour, which are due to different combinations (batches) of material. This is caused by our fabrication processes. For wrought iron these deviations are a result of the patinating by hand. Such deviations will be no cause for any claim on grounds of guarantee or liability.
All instructions provided by us with or attached to the goods shall be considered as recommendations only. The customer, respectively the user, is obligated to check under his own responsibility all individual conditions for the assembly and the mounting of our products in combination with other materials. This applies in particular when heavy materials are used for curtains or when the distance between the supports and the wall is large. In such cases the use of additional supports is particularly recommended. We refuse all liability for damages resulting from an unqualified mounting.
§ 8 Statute of limitations
Claims of the customer for a compensation of damage in case of new objects being delivered will become statute-barred after one year, in case of used objects being delivered in 6 month, each time to be counted from the day of their delivery to the customer. Excepted therefrom are claims under §§ 431 I No. 1 and 2, 634a I No. 2 of the Civil Code.
Other contractual claims of the customers on grounds of a violation of duties become statute-barred in one year from the start of the statute-barred period as provided for by statute.
Unaffected by the above arrangements are the legal statutes of limitation periods in the following cases:
for damages from fatal injury, personal injury or impairment of health;
for other damage that is caused by an intentional or gross negligent violation of duty on our side, our legal representative or a person employed by us in performing an obligation;
for the customer’s right to rescind from the contract for reason of a violation of duty we are responsible for and that does not consist of a defect of the object of purchase or a violation of duties existing from a contract for works and services;
for claims resulting from a fraudulent concealment of a defect or from a procurement guaranty in the sense of § 444 or § 639 Civil Code;
for claims for a replacement of expense under § 478 Section 2 Civil Code.
§ 9 Assuring the retention of title
We retain title to all goods until all amounts outstanding from the delivery contract have been received. Beyond this the proviso for a retention of title applies to all circumstances where we or our daughter-company or sister-company or parent-company have outstanding accounts from the customer. Should the customer be in delay of performance towards us, our sister-company, daughter-company or parent-company, or should we receive credible information in this respect posing a threat to the realisation of outstanding accounts, we shall be entitled to interdict the further sale respectively the further processing of the goods supplied by us taking the same back respectively have them taken back, if needed, enter the customers premises for this purpose. Any action on our part taking the goods back does no represent the rescission from contract unless we would have issued a statement to this effect in writing. A seizure of the goods by us always represents a rescission from the contract. We shall be entitled to a realisation of the goods upon taking them back with the sales proceeds being offset with the accounts outstanding from the customers with a reasonable cost for their realisation to be deducted.
The customer is obligated to handle the goods with due care; he is in particular obligated to obtain at his own expense insurance coverage at a sufficient replacement value for the same against fire, water and theft storing the goods in an appropriate way to protect them against humidity and excessive temperatures.
The customer shall notify us without undue delay in writing in case of seizures or any other third party intervention allowing us to take legal action under § 771 Code of Civil Procedure. To the extend of such a third party not being capable of compensating us for the in-court and out-of-court expenses for an action under § 771 Code of Civil Procedure, the customer shall be liable for any shortfall resulting therefrom.
The customer has the right, which is revocable at anytime, to process respectively sell the purchased goods in the course of his ordinary business, always provided that he has agreed with his customers on a retention of title and that the receivables from an onward sale will be transferred to us. At this point already all sums receivable from the final amount of the invoice (VAT included) accruing to him from an onward sale to his customers or any third party has already been assigned to us and this independently of the goods having been sold on without or with further processing. After an assignment the customer shall be entitled to collect the receivables himself, as long as we have not revoked such authorisation. Our authority to collect the receivables remains unaffected thereby. However, we undertake not to collect the receivables ourselves, as long as the customer follows up on his commitments to pay from the sales proceeds received, is not in delay with his payments, and, in particular, has filed no order to enter into receivership or has ceded his payments. Is this the case, the customer shall be obligated to notify us without undue delay about all assigned accounts receivable and the respective debtor party, to provide all details required to enable a collection, to hand out the relevant documents, and to notify the third part debtor about the assignment.
At no time will the customer be allowed to an assignment of his receivables; this also applies for factoring contracts, which are not allowed to the customer, even on the base of our authorisation to collect.
The processing or reforming of the goods by the customer is always done for us. If the goods are processed to be joined with other objects that do not belong to us, we shall acquire a fractional co-ownership to the new object in the ratio of the goods’ value that is compared to the other processed objects at the time of being processed. Otherwise the same shall apply for the new object resulting from the processing, as applies for goods delivered under a retention of title clause.
If the object of purchase is inseparably mixed with other objects not belonging to us, we still acquire the ownership to the new object in the ratio of the goods’ value compared to the other mixed objects at the time of being mixed. If the mixing is done in a way that the object of the customer must be considered the principle object, than it is expressively understood that the customer assigns the fractional co-ownership to us. This way the customer will hold the sole ownership or fractional ownership for us.
The customer also assigns to us the receivables to secure our receivables against him, which accrue against any third party by way of joining the object of purchase with any property.
We undertake to release the securities due to us upon request of the customer in the amount of our securities exceeding the receivables to be secured by more than 20 %; we shall be responsible for making the selection of the securities to be released.
§10 Taking back
We decide in the individual case whether or not we accept return shipments that do not fall under any customer claim to a warranty, e.g. could be traced back to a wrong placement of the order. There is no obligation on our part to take any delivery back. Condition is that the return shipment of the goods has been agreed with us before, that the goods are free of any damage and still in their original packaging. In a case where we accept the goods back, we will invoice a handling charge in the amount of 30% of the net value of the merchandise. This lumpsome will be deducted from the credit note to be issued.
§11 Transfer orders
The administrative, handling and shipping expense has been calculated scarcely with the consequence that the expenditure for transfer respectively for neutral orders has not been included therein. Consequently we invoice a lumpsome processing charge in the amount of 25% of the ordered value plus valid value added tax for small retailorders (retailorders are orders amounting to a net order value of up to 500 Euro). The same applies for both cases, either that a shipment to third party has already been foreseen in the order, or that we will be advised by the customer after issuing the order commission that a transfer order or neutral order has to be carried out. In the latter case we shall have no obligation to perform. In any case, for small retail orders the appropriate service charge will be invoiced.
§12 Place of jurisdiction / place of performance
Provided the customer is a fully qualified merchant, our offices shall be the place of jurisdiction; however, we shall also be entitled to open action against the customer at the courts having jurisdiction for the customer’s place of residence.
Unless something different can be learned from the order confirmation, our offices are the place of performance.