General Terms and Conditions of Business for the Provision of Services
1. General provisions, scope of application
1.1 Without exception, only the following terms and conditions of business shall apply. ASSMANN BÜROMÖBEL GMBH & CO. KG (hereinafter referred to as the Contractor) shall not accept any Client terms and conditions in addition to or deviating from the same, unless the Contractor has explicitly agreed to their applicability in writing. The Contractor's terms and conditions of business shall also apply if the Contractor performs the service for the Client in full awareness of contradictory additional or deviating Client terms and conditions without comment or reservations.
These terms and conditions of business shall extend to all of the Contractor's contracts with the Client pertaining to the performance of services with regard to the planning, organisation and design of working environments on premises intended for this purpose, the financing of and/or any logistics related to office furniture of any kind. These services may be performed regardless of whether the Client purchases products from the Contractor subsequent to the performance of the service.
When performing these services, the Contractor shall not represent any manufacturer or supplier interests.
The Contractor shall be entitled to use suitably qualified third parties for the performance of the services they are legally obliged to provide.
1.2 Clients within the meaning of these terms and conditions of business may be consumers or business owners.
1.3 Consumers within the meaning of these terms and conditions of business are all natural persons with whom contracts are agreed that are not related to either their commercial or their self-employed business activities.
1.4 Consumers within the meaning of these terms and conditions of business are all natural persons with whom contracts are agreed that are not related to either their commercial or their self-employed business activities.
2. Offers, contract agreement, data storage
2.1 Any orders placed by the Client shall not become legally binding until confirmed by the Contractor. The contract parties shall confirm any verbal agreements immediately in writing. In the event of a missing order confirmation, the Contractor's invoice shall be considered a valid order confirmation.
2.2 All offers are made without engagement. Unless agreed otherwise, written individual offers by the Contractor shall be considered as fixed contract offers for a period of two months and subsequently as offers without engagement.
2.3 Obvious errors in an offer may be corrected prior to order acceptance.
2.4 The Client is aware of the fact that the Contractor shall store the Client's details and details of the specific project under consideration of the respectively applicable data protection laws.
3. Client cooperation
The Client shall inform the Contractor of all data, circumstances and matters relevant to the commission. The Client shall name a responsible contact person to the Contractor. If required, the Client shall charge suitable members of their workforce with the support of the Contractor during the realisation of the order with regard to any circumstances arising from the Client's sphere.
4. Confidentiality
4.1 Unless stated otherwise in Clause 4 below, all information exchanged by the parties must be treated as confidential. Particularly information about products, manufacturing processes, know-how, trade secrets, business relationships, business strategies, business plans, budgets, and all matters related to human resources and the like shall be considered confidential information within the meaning of this clause, regardless of the nature of the medium that contains this information.
4.2 The parties reciprocally agree to
a) Treat all confidential information with the respectively necessary care
b) Use all confidential information for the intended purpose of this specific contractual relationship only
and
c) Copy all confidential information only to an appropriate extent for the purpose of this contract, and to treat all copies made with equal confidentiality.
4.3 Not considered confidential information within the meaning of Clause 4.1 shall be any information with respect to which the party that has received the respective information can prove that:
a) The confidential information was publicly known at the point of time of its disclosure, and that this circumstance was not due to any misconduct on the part of that party
b) They have become aware of this information via channels other than the other contracting party or companies associated with the same without direct or indirect non-compliance with the duty of confidentiality towards the latter and that its disclosure was in fact legal
c) They have obtained the confidential information independently and without violating this confidentiality agreement
d) They were obliged to disclose this information either by law or in response to a government agency/court order.
In the latter case, the disclosing party must inform the other party of the disclosure of the information.
4.4 Each party will only make confidential information accessible to its workforce or external consultants to the extent necessitated by the contract purpose.
4.5 Both parties agree that neither party shall acquire the ownership of or the usage rights for the respective other party's confidential information due to the agreement of this contract or any other behaviour that implies the same.
5. Fulfilment deadlines/force majeure
5.1 The Contractor shall not be bound to any deadlines and dates with regard to the performance of the service, unless such deadlines and dates have been agreed in writing and confirmed by both parties with their signature.
5.2 Should the Contractor be prevented from fulfilling their obligations by the occurrence of unforeseeable exceptional events beyond their control and which they were unable to prevent despite exercising the level of care deemed reasonable in the circumstances of the specific case – regardless of whether the event occurred on the premises of the Contractor or on the premises of one of their contract partners – in particular intervention on the part of a government agency, business interruptions, industrial disputes, and delayed deliveries of essential raw and auxiliary materials, the potentially agreed fulfilment deadline shall be extended by an appropriate extent. If fulfilment becomes impossible due to any of the above-mentioned events, the Contractor shall be released from their fulfilment obligation without the Client being able to withdraw from the contract or to claim damages. Should the Client experience any of the above-mentioned frustrations, the same legal consequences shall also apply to their obligation to take delivery.
The contract partners are obliged to immediately notify the other party of any frustrations of the above-mentioned kind.
6. Templates, drawings and plans, customised products
6.1 All Contractor reserves ownership rights, copyright and all other intellectual property rights with regard to any images, drawings, sketches and any other documents and samples. This applies particularly to documents pertaining to the services named in Clause 1.1. On request, the documents and samples provided must be returned immediately and may not be passed on to any third party without the Contractor's permission.
6.2 Unless agreed otherwise, sample pieces must be returned or purchased within one month after the end of the project or if requested to do so by the Contractor. Customised sample pieces must always be purchased and are non-exchangeable.
7. Payment, prices
7.1 All prices stated exclude value added tax at the rate applicable in Germany by law.
7.2 Should the Contractor become aware of a serious deterioration of the Client's financial situation or receive unfavourable reports with regard to their business and payment practices as well as any other circumstances that suggest that the Contractor's right to the payment due from the Client may be compromised by the Client's potential inability to pay after the order confirmation or invoice has been sent out, the Client may refuse to perform the service until the payment has been effected or another form of security deemed to be appropriate has been offered. If the payment is not effected within an appropriate period or the Client is unable to offer respective securities, the Contractor may withdraw from the contract. This shall not affect the Contractor's other rights and entitlements. The Contractor's above-mentioned entitlement shall respectively apply exclusively to business owners until the Client effects payment or offers securities for all monies due with respect to the business relationship.
7.3 Unless agreed otherwise, the Contractor's invoices must be paid within ten days of the posting of the invoice (invoice date) net cash without the deduction of any cash discounts. Should the Client fail to pay by the due date, the payment shall be considered late. In the event of late payment on the part of the Client the Contractor shall have the right to charge late payment interest as well as the right to potentially claim further damages. As per Section 288 BGB (German civil code), consumers will be charged interest on their arrears to the value of 5% above the currently applicable base rate per annum; business owners will be charged interest on their arrears to the value of 9% above the currently applicable base rate per annum, again as per Section 288 BGB (German civil code).
7.4 The Client may only withhold payment or offset monies if the legality of their counterclaims has been established by a court of law or are not disputed by or are recognised by the Contractor. The Client shall also only be entitled to exercise their right to withhold payment if their counterclaim is based on the same contractual relationship. This shall not affect any counterclaims made by the Client against the Contractor due to unsatisfactory fulfilment or defects.
8. Right of recourse in the event of unsatisfactory fulfilment or defects
8.1 In the event of unsatisfactory fulfilment or defects, the Client shall be entitled to demand a repeat performance of the service or the repair of the product. Should the repeat performance or repair within a reasonable period also fail to satisfy or should the Contractor be unable to offer a repeat performance or repair within a reasonable period for other reasons, the Client shall have the right to recourse within the scope of their statutory rights. If the fulfilment is only partially unsatisfactory, the Client may only withdraw from the entire contract if they are no longer interested in the remainder.
8.2 Without the explicit and prior agreement of the Contractor, the Client shall not have the right to repair any defects or to effect a repeat performance of the service themselves or to commission a third party with the repair or the repeat performance and to charge the cost of the repairs or the repeat performance to the Contractor. All statutory rights or warranty claims shall be nil and void if the Client repairs any defects or effects a repeat performance of the service themselves or commissions a third party with the repair or the repeat performance without the Contractor's agreement.
8.3 In the event of a justified demand for repair or a repeat performance, the Contractor shall be obliged to bear all of the requisite costs arising from this purpose.
8.4 The Client may exercise their rights and entitlements due to unsatisfactory fulfilment or defects within the statutory warranty period (usually three years from the end of the year in which the service was performed).
8.5 Where business owners are concerned, statements made in public by the Contractor or their subcontractors, particularly within the scope of marketing, shall not represent a binding agreement regarding the performance or result of the service or a warranty with regard to the service.
9. General liability limitations
The Contractor shall be liable only to the extent agreed in these terms and conditions. Damages or compensation entitlements on the part of the Client due to negligence during the agreement of the contract, breach of contractual obligations (particularly incorrect advice or planning), or unauthorised actions are excepted, unless they arise from wilful or gross negligence on the part of the Contractor's legal representatives or subcontractors employed for the purposes of fulfilment. In the event of a breach of major contractual obligations, the Contractor shall be liable also in case of simple negligence; in this case, the Contractor's liability towards a business owner shall be limited to compensation for foreseeable, typically occurring damages. The above, as well as all other liability limitations in these terms and conditions, shall not apply to any entitlements under the product liability laws, due to defects concealed with fraudulent intent or arising from guarantees offered regarding the properties of the service, and also not to any damages due to death or personal injury resulting from negligence.
In as far as the Contractor's liability is excluded, this shall also apply to the personal liability of the Contractor's employees and any subcontractors employed by the Contractor, and here in particular to architects commissioned within the scope of the project.
10. Term and termination
10.1 The term of the contract begins with the Client's receipt of the Contractor's order confirmation and ends with the conclusion of the project.
10.2 Either party may terminate the contract at the end of a quarter, provided they give the other party one month's notice thereof. This shall not affect the right to terminate the contract for good cause.
10.3 Terminations, for whatever reason, must be effected in writing.
10.4 If the Contractor has not yet performed any services they are obliged to perform by the time they receive the Client's contract termination notification, the Contractor shall be released from their fulfilment obligation, unless both parties agree the extent of the services still to be performed in writing.
11. Severability clause
In the event of individual provisions of this contract or the above terms and conditions being or becoming legally invalid, the other provisions of this contract shall remain unaffected. Should a court of law establish that individual provisions of this contract are nil and void or illegal, also due to changes in the law, this shall not affect the legal validity of all contract documents or the applicable fulfilment/payment terms and conditions. Rather, the provision that has become nil and void or has changed shall be interpreted in a way that is as close as possible to the original provision's intention.
12. Written form
No further verbal agreements have been made, or shall be replaced by the regulations in the contract and these terms and conditions of business. Any deviations as well as any further or additional agreements shall only be legally valid if they have been confirmed by the Contractor in writing. Verbal agreements shall be legally valid only if they were entered into with the Contractor's managing director.
13. Place of performance, jurisdiction and applicable law
13.1 Place of performance and payment fulfilment shall be the Contractor's registered business premises (in Melle, Germany).
13.2 If the Client is a registered trader, a legal entity or a public sector agency subject to German public law, the sole place of jurisdiction for all disputes arising indirectly or directly from the contractual relationship shall be the Contractor's registered business premises. However, the Contractor shall also be entitled to initiate court proceedings in the Client's place of jurisdiction.
This agreement regarding the place of jurisdiction applies to the international as well as local jurisdiction.
13.3 This contract is exclusively subject to German law under the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated 11 April 1980.
Dated November 2018, ASSMANN BÜROMÖBEL GMBH & CO, Melle, Germany