General Terms and Conditions of Sale and Delivery
1. General provisions, scope of application
The following terms and conditions shall apply exclusively. Any contrary, deviating and/or supplementing conditions of the purchaser shall not be acknowledged by ASSMANN BÜROMÖBEL GMBH & CO. KG (Supplier), unless the Supplier expressly consents to their validity in writing. The Supplier’s terms and conditions shall also apply if it delivers to the purchaser without any comments or reservations while being aware of terms and conditions of the purchaser that deviate from or supplement its own terms and conditions.
Purchasers within the meaning of these terms and conditions shall be consumers or entrepreneurs.
Consumers within the meaning of these terms and conditions shall be natural persons with whom contracts are concluded that are not attributable to any commercial or self-employed profession.
Entrepreneurs within the meaning of these terms and conditions shall be natural or legal persons or partnerships having legal capacity with whom contracts are concluded or who issue purchase orders and who act in the exercise of their commercial or self-employed occupational activity when concluding the contract or placing the purchase order. To the extent entrepreneurs are mentioned hereinafter, the aforementioned provision shall also apply to legal entities under public law and to special funds under public law.
2. Offers, conclusion of contract
Purchase orders issued by the purchaser shall only become binding when the Supplier sends its confirmation of order. The contractual partners shall immediately confirm any individual oral agreements in writing. If a confirmation of order has not been issued, the Supplier’s invoice shall be deemed the confirmation of order.
Offers shall be subject to confirmation. Unless otherwise agreed, individual written tenders of the Supplier shall be regarded as fixed contract offers for a period of 2 months; after such period, they shall be subject to confirmation.
Obvious errors in offers may be corrected before the order is accepted.
3. 48-hour service/quick delivery programme
The 48-hour delivery time applicable to the quick delivery programme shall start at 06.00 pm of the working day (Monday to Friday) of the written purchase order (by post or fax) if the written purchase order was received by the Supplier during the usual business hours until 12.00 pm/noon, and shall only apply to the territory of the Federal Republic of Germany. The effective purchase order shall be subject to the use of the separate “Quick Delivery Programme” order form of the Supplier. Delivery shall be made to the registered office of the ordering retail partner. The purchase order shall be deemed placed with binding effect upon its receipt by the Supplier. The order shall be deemed accepted by the Supplier unless it objects to it in writing (by post or fax) within 24 hours after the delivery time has started. The 24-hour as well as the 48-hour delivery time shall be suspended on Saturdays, Sundays and public holidays from 12.00 am/midnight to 12.00 am/midnight. The suspension effects that, for example, the delivery times for purchase orders received on Thursday and/or Friday until 12.00 pm/noon will end on the following Monday and/or Tuesday at 06:00 pm. If a purchase order was received, for example, on Thursday after 12:00 pm/noon, the delivery time ends on the following Tuesday at 06:00 pm. The same shall apply accordingly to any intermediate public holidays. If Friday is a public holiday and the purchase order was received on Thursday until 12:00 pm/noon, the delivery time shall end on Tuesday at 06:00 pm. Unless the Supplier defines any contrary regulations on the order form, the purchase order shall be placed under exclusive integration of these General Terms and Conditions of the Supplier. Delivery shall be made under the conditions defined in the General Terms and Conditions plus a freight cost share according to the applicable freight cost regulations.
4. Cancellation, withdrawal, product returns
If the contract is cancelled on the purchaser’s request, the Supplier shall reserve the right to charge the purchaser for the expenses incurred for transport and assembly and for the return of the goods. In this case, the Supplier shall be entitled to require the customer to pay a lump sum in the amount of 25% of the goods value. The purchaser shall be entitled to prove that the accrued loss is lower.
If the relevant goods have been specifically produced or specifically procured for the purchaser, any withdrawal from the contract shall be excluded (see custom-made products).
For goods that had already been used by the purchaser (sample goods), a value reduction after provision for use shall be invoiced, which amounts to 50% of the purchase order price within the first year and to 70% of the purchase order price subsequently. Any return of damaged goods shall be excluded.
The provisions of paragraphs 4.1 to 4.3 shall not apply to the withdrawal from the contract due to defective goods.
The goods shall be sent including any required packaging free of charge up to behind the first locked door at ground level if they are sent by vehicles of the Supplier or its contract carrier. Access by lorry and unloading shall be ensured. The Supplier shall reserve the right, after prior announcement, to select other shipping methods, such as general cargo and waggon dispatch free general cargo location and/or train station of the recipient.
The Supplier shall reserve the right to charge freight and assembly costs separately for deliveries that are made directly to the customer’s place of use instead of the retailer’s warehouse.
If the purchaser requests special packaging or a special shipping method, any extra costs incurred shall be charged separately.
6. Risk of transport
If the goods are shipped by a vehicle of the Supplier or by the Supplier’s contract carrier, the risk of delivery shall be transferred to the purchaser when the goods are handed over to it.
The risk of transport, i.e. the risk of loss of or damage to the goods during transport for which neither the sender nor the recipient is responsible shall be borne by the Supplier; however, subject to the condition that the recipient provides the Supplier immediately with a confirmation of the recipient and/or customer on the delivery note or bill of lading regarding the type and extent of the identified transport damage, where possible, by detailing its occurrence, with an acknowledging counter-signature of the carrier.
If the purchaser collects the goods itself by its own vehicles or by employing its contract carrier, the risk shall be transferred to the purchaser when the goods are issued in the Supplier’s business premises.
7. Delivery time, impediment to delivery, force majeure
The delivery time shall be set according to calendar weeks. The Supplier shall determine the day of delivery within the confirmed week.
If the Supplier is prevented from meeting its obligations following the occurrence of unforeseeable and extraordinary events beyond its reasonable control, and it has not been able to avoid such events despite exercising reasonable care under the circumstances of the individual case, irrespective of whether such event occurs in the Supplier’s plant or in the plant of its sub-suppliers, for example, but not limited to official interventions, operational disruptions, labour disputes and delays in the delivery of essential raw materials and supplies, the delivery time shall be extended by a reasonable period. If the aforementioned events render the delivery or service impossible, the Supplier shall be released from its delivery obligation without the purchaser being able to withdraw from the contract or claim damages. If the purchaser suffers any of the aforementioned impediments, the same legal consequences shall apply to its obligation to accept.
The contractual partners shall be obliged to inform the other partner about any impediments of the kind described above without delay.
Framework agreements shall be limited to the maximum of one year. Acceptance shall occur within 30 days after the expiry of the framework agreement at the latest.
Unless otherwise agreed, orders for which no fixed delivery time can be confirmed (call orders) shall be subject to a minimum call-off term of 30 days. Item 4 shall apply accordingly.
If deliveries (including deliveries based on framework agreements and call orders) are not accepted in due time, the Supplier shall be entitled to charge any resulting extra costs (e.g. due to storage) and to claim damages; the losses for which compensation is claimed shall be proved in detail.
The Supplier shall be entitled to render partial services or make partial deliveries if this is reasonable for the purchaser. This shall only apply if the purchaser is an entrepreneur. The Supplier shall not be entitled to render partial services or make partial deliveries to consumers.
The regulations stated above, particularly the ones included in item 7.2, shall apply accordingly to the 48-hour service/quick delivery programme set out in item 3 of these General Terms and Conditions. Extraordinary events within the meaning of item 7.2 shall particularly also include traffic jams, road accidents, etc. due to which the delivery is not received by the retail partner within the 48-hour period or at the stated business times.
8. Claims based on defects
The Supplier shall not be liable for defects caused by natural wear; wear and tear related to the term or otherwise related to use; incorrect, negligent, unsuitable or improper handling, use or storage (such as set-up in wet new building premises; storage in damp cellars or attics; lack of protection from strong heat exposure; incorrect cleaning and operation; intentional damage as well as modification to the furniture by the purchaser or third parties) or by the non-compliance with the Supplier’s information for processing and use. Customary deviations related to technology of the dimensions or the form as well as colour deviations that cannot be eliminated e.g. because they are inherent to the type of wood shall not entitle the purchaser to lodge complaints. The Supplier shall not grant any warranty for the exact compliance with colour samples or for the absolute uniformity of the veneers used for various pieces of furniture with veneered surfaces.
The purchaser is aware that customised products within the meaning of item 11.2 do partially not meet the technical standard that is otherwise achieved by the Supplier’s products. Such deviations from the technical standard that are to be attributed to causes rooted within the customer’s domain shall not constitute material defects of the Supplier’s products and shall not effect any liability on part of the Supplier. The purchaser shall acknowledge and agree that a customised product will not receive a GS certification (certified safety label) and that it will not be tested by the Supplier.
The Supplier shall not accept any liability for works such as anchorages of wall units, electrification of office workstations, etc. that are carried out at the retailer’s own responsibility.
Public statements made by the Supplier, other manufacturers or its vicarious agents, particularly in advertising or in labelling, shall not constitute a binding agreement or description of the goods’ quality or a guarantee of the same vis-à-vis entrepreneurs.
9. Notification of defects
If the purchaser notifies a defect, it shall immediately give the Supplier the opportunity to see the defect for itself, and to provide the objected goods or samples thereof for such inspection.
If the goods are defective, the purchaser may first demand subsequent improvement or replacement delivery. If the supplementary performance fails after a reasonable grace period even in the second attempt or if the supplementary performance does not occur for other reasons within the reasonable grace period, the purchaser shall be entitled to the further statutory warranty rights. If only part of the delivered goods is defective, the purchaser may only withdraw from the entire contract if it is not interested in the remaining part of the delivery. If the purchaser chooses to claim damages instead of withdrawal, the goods shall remain with the customer if this is reasonable for it. Damages shall be limited to the difference between the purchase price and the value of the defective item, unless the Supplier has maliciously caused the contract violation.
Without the Supplier’s express prior consent, the purchaser shall not be authorised to repair defective goods or have them repaired by third parties at the Supplier’s cost. The warranty rights and claims shall be excluded if the purchaser carries out repair works itself or has them carried out by third parties without being authorised to do so.
Returns may only be made upon the Supplier’s consent. Returns the purchaser is responsible for shall be paid by the purchaser.
If the purchaser is a merchant, it shall only be entitled to claims and rights due to defects if it has duly met its obligation to inspect and notify defects according to Section 377 HGB [German Commercial Code]. After an agreed acceptance has been performed, the notification of defects that could be identified during acceptance shall be excluded. Visible defects shall be notified to the Supplier by the purchaser, who is a merchant, immediately – i.e. without undue delay – after the delivery was received. Hidden defects shall be notified to the Supplier by the purchaser, who is a merchant, immediately after their identification.
If the purchaser is an entrepreneur, the Supplier shall first warrant, at its option, by subsequent improvement or replacement delivery if the goods are defective. When choosing the type of supplementary performance, the Supplier shall take the type of the defect and the legitimate interests of the entrepreneur into account. If the purchaser is a consumer, it shall be entitled to choose the type of supplementary performance, either removal of the defect or delivery of a defect-free item.
If supplementary performance is provided, the Supplier shall be obliged to bear all the expenses required for the purpose of supplementary performance, particularly transport, travel, work or material expenses. If the purchaser is an entrepreneur, the Supplier shall not be obliged to bear such extra costs that result from the delivered goods having been brought to a place other than the registered office of the commercial branch of the purchaser, unless this complies with the intended use.
The claims and rights due to a defect of the goods may be asserted by the purchaser within the statutory warranty period.
10. Reservation of ownership
The Supplier shall reserve ownership of the delivered goods until all claims arising from the business relationship with the purchaser are settled. If a current account relationship within the meaning of Section 355 HGB is maintained with the purchaser based on express or implicit agreement, the Supplier shall keep the ownership of the delivered goods until ally payments based on the existing current account relationship (business relationship) with the purchaser are received; the reservation shall refer to the recognised balance. If bills of exchange are accepted, the reservation of ownership shall not expire before the bill of exchange is honoured.
The purchaser shall only be authorised to resell the goods subject to retention of ownership in the proper course of business if the claim based on the resale is transferred to the seller of the goods subject to retention of ownership. The purchaser shall not be authorised to pledge the goods subject to retention of ownership or to transfer them by way of security.
The purchaser shall hereby assign to the Supplier all claims in the amount of the final invoice sum (including value added tax) that accrue in its favour from the resale against the buyer or third party. If the goods subject to retention of ownership are resold after processing, the purchaser shall hereby assign to the Supplier the claim arising from the resale against a buyer or third party in full. The Supplier shall accept such assignments. If a current account relationship within the meaning of Section 355 HGB is maintained between the purchaser and a buyer, the claim assigned to the Supplier by the purchaser in advance shall also refer to the recognised balance, and, if insolvency proceedings are initiated for the buyer’s assets, to the then available causal balance in the current account relationship between purchaser and buyer. The purchaser shall remain authorised to collect all claims assigned in advance to the Supplier, even after such assignment.
If the purchaser intentionally or negligently violates important contractual obligations, if it is in delay with payment or suspends payment, if insolvency proceedings are requested or initiated against it or if it has other financial difficulties, the Supplier shall be entitled to retake possession of the goods subject to retention of ownership at the purchaser’s cost if the requirements for withdrawal from the contract are met. The Supplier’s retaking possession of the purchased item shall constitute withdrawal from the contract. The Supplier’s seizure of the goods subject to retention of ownership shall always constitute withdrawal from the contract. After it has taken back the goods subject to retention of ownership, the Supplier shall be authorised to resell them; the proceeds of such resale shall be set off against the receivables from the purchaser, minus reasonable reselling costs that need to be proved.
Any processing of the goods subject to retention of ownership shall always be carried out by the purchaser on behalf of the Supplier. If the goods subject to retention of ownership are processed or inseparably combined with other items that do not belong to the Supplier, the Supplier shall acquire co-ownership of the new item in proportion of the invoice value of the goods subject to retention of ownership to the other processed or combined items at the time of processing or combination. If goods of the Supplier are combined with other movable objects to form a single item, and if such other item is to be regarded as the main item, it shall be deemed agreed that the purchaser transfers pro-rated co-ownership to the Supplier to the extent the main item belongs to it. The purchaser shall store the property or co-owned property for the Supplier. Apart from that, the same shall apply to the item resulting from processing or combination as to the goods subject to retention of ownership.
The purchaser shall immediately inform the Supplier of any compulsory enforcement proceedings that are initiated in respect of the goods subject to retention of ownership or the claims assigned to the Supplier or other collaterals, and shall hand over the documents required to object to such proceedings; this shall also apply to other types of impairments.
The Supplier shall undertake to release the collaterals it is entitled to according to the above provisions on the purchaser’s request to the extent the value of the goods transferred by way of security exceeds the claims to be collateralised by more than 10% not only temporarily. The Supplier shall be free to select the collaterals to be released.
In the event of delay in payment, suspension of payment, application for initiation of insolvency proceedings or other decline in the purchaser’s financial standing, the Supplier may demand that the purchaser informs the Supplier about the assigned receivables and their debtors, makes all of the statements required for collection, hands over the related documents and informs the debtors about the assignment. For the cases described in clause 1, the Supplier shall reserve the right to revoke the granted permission to resell, the permission to process and the collection authorisation with regard to the assigned proceeds from resale.
11. Samples and drawings, customised products
The Supplier shall remain ownership rights and copyrights of illustrations, drawings, sketches and other documents and samples. The aforementioned documents and samples shall be returned immediately on demand and must not be disclosed to third parties without the Supplier’s consent.
Unless otherwise agreed, samples shall be returned or purchased within one month. Samples for customised products shall always be purchased and cannot be exchanged.
Customised products are items that are not part of our normal production programme or not stated in price lists. Unless otherwise agreed in writing, special colours according to sent-in colour samples shall also be customised products. The purchaser shall be liable to make sure that the use of provided drawings, samples and similar means does not violate any rights of third parties. Item 8.2 shall remain unaffected.
12. Place of performance, place of jurisdiction and applicable law
Place of performance for delivery and payments shall be the Supplier’s registered office (Melle).
If the purchaser is an entrepreneur, place of jurisdiction shall be the Supplier’s registered office (Melle). However, the Supplier shall also be entitled to sue the entrepreneur at its general place of jurisdiction. This place of jurisdiction agreement shall apply to both the international and the local jurisdiction.
German law excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated 11 April 1980 shall apply exclusively to this contract.
13. Payment, prices
All price details shall exclude the statutory value added tax.
Bills of change shall only be accepted upon express agreement and subject to their prevailing discount possibilities, and only on account of payment. For bills of exchange or cheques drawn at out-of-town places, we shall not accept any warranty for timely submission or for the filing of the protest.
If the Supplier, after it has sent the confirmation of order or invoice, becomes informed about a significant deterioration of the purchaser’s financial circumstances or receives a corresponding unfavourable statement about its economic behaviour and its method of payment as well as about other circumstances that suggest that the Supplier’s claim for payment is endangered by the purchaser’s lacking ability to pay, the Supplier may refuse delivery and performance until the payment is effected or a reasonable collateral has been provided. Unless payment is effected or a collateral is provided within a reasonable period of time, the Supplier may withdraw from the contract. The Supplier’s further claims and rights shall remain unaffected. The aforementioned authorisation of the Supplier shall only apply accordingly vis-à-vis entrepreneurs as long as the purchaser fails to effect payment or provide collaterals for all claims arising from the business relationship.
Unless otherwise agreed, the Supplier’s invoices shall be due for payment within 30 days after dispatch of the invoice (invoice date) net cash without any deduction of cash discount. If the purchaser fails to pay until then, it shall be in default. If the purchaser is in default, the Supplier shall be entitled to claim default interest and any further loss according to the statutory provisions. In dealings with consumers, the default interest for the year shall amount to 5 percentage points above the base rate according to Section 288 BGB [German Civil Code]; in dealings with entrepreneurs, the default interest for the year shall amount to 9 percentage points above the base rate according to Section 288 BGB.
The purchaser shall only be entitled to rights of set-off and retention if its counter-claims are established as final and absolute, undisputed or recognised by the Supplier. Furthermore, the purchaser shall only be authorised to exercise the right of retention if its counter-claim is based on the same contractual relationship. Counter-claims of the purchaser against the Supplier shall remain unaffected.
14. General limitation of liability
The Supplier’s liability shall exclusively be in accordance with the agreements made in these terms and conditions. Claims for damages of the purchaser based on negligence at the time of concluding the contract, violation of contractual obligations or tort shall be excluded, unless they are based on intention or gross negligence on part of the legal representatives or vicarious agents of the Supplier. If essential contractual obligations are violated, the Supplier shall also be liable for slight negligence; in this case, the Supplier’s liability to an entrepreneur shall be limited to the compensation for foreseeable losses typical for that kind of contract. These as well as all other limitations of liability set out in these terms and conditions shall not apply to claims based on the Product Liability Act, maliciously concealed defects or guarantees accepted for the quality and durability of the goods or to any damage arising from injury to life, body or health.
If the Supplier’s liability is excluded, this shall also apply to the personal liability of the Supplier’s employees and vicarious agents.
15. Severability clause
The legal invalidity of individual provisions of the contract or of these terms and conditions shall not affect the validity of the remaining conditions or agreements. If a court ascertains the nullity or unlawfulness of individual contractual provisions, including by legislative changes, this shall not affect the legal validity of the entire contract or the valid terms and conditions of delivery/payment. The void or modified provision shall rather be interpreted so that, where permitted by law, the intention of the original provision is maintained.
16. Written form
Oral collateral agreements have not been made and/or are replaced by the provisions of the contract and these general terms and conditions.
Deviations as well as collateral and additional agreements shall only be valid if they are confirmed by us in writing. Oral collateral agreements shall only be valid if they were made with the managing director.
17. Choice of law, place of jurisdiction
If the customer is a merchant, a legal entity under public law or a special fund under public law, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the Supplier’s registered office. However, the Supplier shall also be entitled to sue at the purchaser’s registered office.
The contracts that were and/or will be concluded by taking account of these General Terms and Conditions as well as their interpretation shall be subject to German law excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
July 2018, ASSMANN BÜROMÖBEL GMBH & CO. KG, Melle