General Terms and Conditions of the Venesto Interieur GmbH
The Standard Conditions of the German Textile Industry with the incorporated amendments and conditions are valid in principle.
§1 Place of performance, delivery and acceptance
- The place of performance for all services from the Delivery Contract is the location of the commercial establishment of the seller.
- The delivery of the goods takes place uninsured exwarehouse (EXW) of the Seller andat the risk of the Buyer. The shipment costs are borne by the Buyer. A despatch advice can be agreed upon.
- In the case of delivery from an external storage place, a warehouse surcharge may be applied in the bill.
- The packaging costs forspecial packaging are borne by the Buyer.
- Sorted shipments and shipments of goods sold as combinations must take place promptly andhave to be announced in advance.Unsorted shipments are admissible only with approval by the Buyer.
- If due to a fault of the Buyer the acceptance does not take place on time,the Seller has the right, at his own discretion, after a grace period of 12 days, to issue an invoice for the arrears or to withdraw from the Contract or to request a compensation for damages.
§2 Legal domicile
The legal domicile is Berlin.
§3 Subject matter of the Contract
- The delivery of the goods takes place on certain dates (a workday or apredetermined calendar week). All sales are concluded only for certain amounts, products, qualities and fixed prices.They are binding for both Parties.Transactions on a commission basis are not made.
- Block orders are permitted and they must be time-limited at the conclusion of the Contract.The period of acceptance may be maximum 12 months.
§4 Interruption of the delivery
- In the events of force majeure, industrial dispute measures and other disruption of operations through no fault of one's own, which have lasted or are expected to lastlonger than one week, the delivery deadline or, respectively, the acceptance deadline is extended without further ado by the duration of the impediment, but at the most by 5 weeks plus the grace period.The extension takes place only if the other party is notified immediately of the ground for the impediment, as soon as it becomes clear that the a forementioned deadline can not be observed.
- If the delivery or, respectively, the acceptance does not take place on time, the other contractual Party can withdraw from the Contract. However, it must announce this in writing at least two weeks before exercising the right of withdrawal.
- If the other Contractual Party is not notified immediately upon request that the delivery or, respectively, the acceptance will not take place on time and if the impediment has lasted longer than 5 weeks, then the other Contractual Party can withdraw immediately from the Contract.
- The claims for compensation for damages are excluded if the respective Contractual Party has fulfilled its obligations from subsections 1-3.
§5 Grace period
- After the delivery deadline has expired, a grace period of 12 days starts to run without explanations. After the expiration of the grace period, the withdrawal from the Contract is considered as having taken effect under exclusion of any claims for compensation for damages.The withdrawal from the Contract according to subsection 1 clause 2 does not take effect if the Buyer declares to the Seller, during the grace period, that he insists on the fulfilment of the Contract. However, the Seller is free from the obligation for delivery if the Buyer does not confirm upon request by the Seller within the grace period whether he insists on the fulfilment of the Contract.
- Fixed transactions are not effected.However, if the Parties agree explicitly in an individual casethat the goods are intended for a certain special offer, a fixed delivery deadline without granting any grace period can be agreed upon. If this delivery deadline is exceeded, the Buyer can require a compensation for the special expenses for the ordered goods - however, to a maximum of the purchase price of the ordered goods. Further claims are excluded.The Buyer can, due to a deficiency of the special offer goods, require only a reduction of the purchase price orwithdraw from the Contract.
- If the Buyer requests a compensation for damages instead of the service, hemust give to the Seller a 4-week period under the threat that he will refuse the execution after the expiration of this period. This period of time starts from the date on which the notification of the Buyer is sent per registered mail.This provision is valid in the case of subsection 1 clause 2 instead of the withdrawal specified there only if the notification by the Buyer about this period of time has reached the Seller within the grace period.
- For stock goods ready for dispatch and for NOS goods – “never-out-of-stock“ – the grace periods amounts to 5 work days.The Buyer must be informed immediately in the case of non-delivery.Otherwise, the provisions of subsections 1 and 3 are valid.
- Prior to the expiration of the grace period, any claims of the Buyer for delayed delivery are excluded.
§6 Notification of defects
- The Seller must be notified by the Buyer in writing about any complaints andobvious defectswithin8days after the receipt of the goodsby the Buyer.The returns of goods require the explicit approval by the Seller.
- In the case of customisation or otherwise started reworking of the delivered goods, any claims regarding obvious defects are excluded.
- Small deviations from the quality, colour, width, weight of the equipment or the design as well as length tolerances of up to ±5% with respect to the order, which can not be technically avoided, may not be subject to claims.
- In the case of justified notifications of defects, the Seller has the right to rework the goods or to deliver defects-free replacement goodswithin 12 days after receiving the returned goods. In this case, the Seller bears the shipping costs. If the supplementary performancehas failed, the Buyer has only the right to reduce the purchase price or to withdraw from the Contract.
- After the expiration of the period of time specified in subsection 4, the Buyer has only the right to reduce the purchase price or to withdraw from the Contract.
- The Buyer must notify the Seller about any hidden defects immediately after their detection.The Buyer can, on the basis of the in good time notified defects, only reduce the purchase price or withdraw from the Contract.
- The invoice is issued on the day of delivery or, respectively, placing the goods at disposal of the Buyer.The postponement of the due date (value date) is in principle excluded.
- Unless otherwise agreed the invoices are payable within 30 days after the date of the invoice – strictly net.
- From the31st day a default according to §286IINo.1of the German Civil Code sets in.
- Pre-interests are not granted in any case.
- The payments are applied always for settlement of the oldest due accounts payable plus the accrued interest on the arrears.
- In any case, the date of the postmark is considered as the date of clearance of the payment.In the case of a bank transfer, the day prior to the credit note of the bank of the Seller is considered as the date of clearance of the payment.
§8 Payment after maturity
- In payments after maturity, interest of 8% above the respective base interest rate of the German Federal Bank is charged.
- Before the full payment of the due amounts of the invoices, including the interest, the Seller is not obliged toany further deliveries on any current Contract. The claim to damages caused by delay remains reserved.
- In the case of a delay in payment by the Buyer or at imminent insolvency or at another essential worsening of the financial circumstances of the Buyer, the Seller can request, after setting a grace period of 12 days for the still pending deliveries from any current contract, under discontinuance of the term of payment, a cash payment prior to the delivery or he can withdraw from the Contract or claim damages.
§9 Method of payment
- The offsetting and the retention of matured invoice amountsare admissible only in the case of undisputed or legally established claims.This isvalid also in the case of suspension of payment to the Seller. Other deductions (e.g.postal charges) are not permitted.
- Bills of exchange, insofar as they are accepted as a payment, are accepted only against reimbursement of all costs. Bills of exchange and bills of acceptance with a term of more than three months are not accepted.
§10 Retention of title
- The goods remain the property of the Seller until the full payment of all receivables from the deliveries of goods from the entire business relationship, including any accessory claims, compensations for damages and payments from checks and bills of exchange. The retention of title remains existing also when individual receivables of the Seller are received in a current account and the balance is determined and acknowledged.
- If the goods under reservation of title are connected, mixed or processed by the Seller to a new movable property, then this takes place for the Seller without the latter is obliged from that. The Buyer does not obtain the ownership to the new property according to §§947 et seq. of the German Civil Code through the connecting, mixing or processing. In the case of connecting, mixing or processing with property, which does not belong to the Seller, the Seller obtains a joint ownership of the new property based on the ratio of the invoiced amount of his reservation of title to the entire value.
- Insofar as a central regulating authority, which takes over the del credere, is interposed in the business processing between the Seller and the Buyer, the Seller transfers the ownership by sending the goods to the central regulating authority with the condition precedent of the payment of the purchase price through the central regulating authority. The Buyer is released only with the payment to the central regulating authority.
- The Buyer is entitled to a resale or tofurther processing only by the consideration of the following conditions.
- The Buyer may sell or process the retained goods only in an orderlybusiness operation andinsofar as hisfinancial circumstances do not worsen for a long time.
- The Buyer releases here with the claim with all subsidiary rights from the resale of the retained goods – including any balance claims – to the Seller.
- If the goods are connected, mixed or processed and if the Seller obtains the joint ownership in the amount of his invoice value, he is entitled to the due purchase price claim proportionately to the value of his rights to the goods.
- If the Buyer has sold the claim within the framework of the real factoring, the Buyer cedes to the Seller the claim, which arises in its place, against the factor and forwards to the Seller his sales revenue proportionately to the value of the rights of the Seller to the goods. The Buyer is obliged to disclose the cession to the factor if he is in default with the settlement of one invoice for more than 10day or if his financial circumstances worsen considerably.
The Seller accepts this cession.
- The Buyer has the right to collect the ceded claims insofar as he fulfils his payment obligations. The collection authorization expires in the case of default in payment of the Buyer or if his financial circumstances worsen considerably. In this case, the Seller is authorized here with by the Buyer to inform the customers about the cession and to collect himself the receivables.
For the exercising the ceded claims, the Buyer must provide the necessary information and permit the examination of this information. In particular, he must make available to the Seller upon request a precise list with the receivables, to which he is entitled, with names and address of the customer, the amount of the individual receivables, the date of the invoice, etc.
- If the value of the existing securities for the Seller exceeds his entire receivables by more than 10%, then the Seller is obliged, upon request by the Buyer, to release securities at his own discretion.
- Any pledging or chattel mortgage of the retained goods or, respectively, the ceded claims is inadmissible. The Seller is obliged to inform about any pledging with designation of the garnisher.
- If the Seller, in the course of exercising his right to reserve the title, takes back the delivery item, then there is a withdrawal from the Contract only when the Seller declares this explicitly. The Seller can satisfy himself from the taken back retained goods by a private sale.
- The Buyer keeps the retained goods for the Seller free of charge. He must insure them in the customary scope against the usual risks such as, for example, fire, theft and water. The Buyer cedes herewith to the Seller his claims for damages, to which he is entitled due to damages of the aforementioned kind against the insurance companies or other obligated parties, in the amount of the invoice value of the goods. The Seller accepts this cession.
- All claims as well as rights from the title retention to all special forms specified in these conditions remain existing until the complete release from the eventual liabilities (check-bill of exchange) which the Seller has accepted in the interest of the Buyer. It is permitted in principle to the Buyer to perform factoring for his receivables in the case of item 1.However, he has to inform the Seller prior to incurring eventual liabilities.
§11 Applicable law
The laws of Federal Republic of Germany are applicable. The United Nations Convention on Contracts of International Sale of Goods from 11th of April 1980 is excluded.
§12 Final clause
If individual provisions of these General Terms and Conditions become ineffective, the remaining ones are not affected.