General Terms and Conditions
I. Quotations, Catalogues
1. Our quotations and prices are subject to change without notice and are not binding. We reserve the right to make reasonable changes of a technical nature or changes to shape, colour and/or weight.
2. We reserve the right to accept the contractual agreement contained within an order within two weeks of receiving it. The acceptance can be confirmed either in written form or by shipping the goods to the customer. Acknowledgement of receipt of the order does not represent a binding acceptance of the order itself.
3. Any documents constituting an element of the quotation, such as illustrations, drawings, weight and dimension specifications, are only approximations, unless they are expressly stated as being binding. We reserve all rights of ownership and copyright over price quotations, drawings and similar documents; they may not be made available to third parties. We undertake to obtain the Buyer's consent before we make plans referred to as confidential by the Buyer available to third parties.
II. Scope of Delivery
1. Our written order confirmation alone is decisive for the scope of delivery. If a quotation which is valid for a certain period of time has been accepted within this period, the quotation is decisive if the order confirmation has not been issued in time. Additional agreements and amendments to the order must be in written form.
2. Reasonable part deliveries and deviations from the quantities ordered of up to plus/minus 10% are acceptable.
III. Price and Payment
1. The prices according to the price list valid on the date of order apply. If a quotation with different prices was submitted, the prices indicated in the quotation apply. In the case of quotations in which the delivery extends over a period of more than 3 months, we reserve the right to adjust the prices in our quotation for deliveries which take place more than 3 months after our quotation was submitted. This is possible whenever after the time of submitting our quotation the steel price index "MEPS" (www.meps.co.uk) lies 5% over or under the aforementioned steel price index value which applied at the time of our quotation. The price adjustment corresponds to the percentage change in the steel price index. Prices apply ex works, excluding packing. Value added tax at the applicable rate will be added to all prices.
2. The minimum order value is EUR 250.00. Minimum order charges will apply below this merchandise value.
3. Provided that no special agreements have been made, we will select the packaging and the type of dispatch at our discretion. The packing charges and container hire will be invoiced at cost price.
4. Our invoices are payable within 10 days of the date of invoice less 2 % discount or within 30 days net, unless other written agreements have been made. Labour wages shall be paid immediately strictly net cash.
5. If the payment terms are not met, we shall be entitled to bill interest on arrears at the rate of 5% above the base interest rate. The costs arising from the delay in payment, such as reminder charges, costs for debt collection agencies etc, shall be borne by the Buyer. In the case of business partners hitherto unknown to us or whose creditworthiness is deemed by us as insufficient, shipment can be made at our discretion against cash in advance or against a down-payment.
6. The Buyer shall only be entitled to offset counterclaims if the counterclaims are undisputed, have been established by a court of law or have been recognised by us. The Buyer may execute a right of retention on the basis of his own counterclaims only if his counterclaims are based on the same contractual relationship. The Buyer shall not be entitled to execute a right of retention on the basis of his own counterclaims unless the counterclaims have been established by a court of law or have been recognised by us.
IV. Delivery Time
1. The delivery dates and delivery times are only approximate, subject to change and are subject to punctual deliveries by our own suppliers. Claims for damages due to any delays in delivery are excluded. This shall not apply only in cases where delivery dates have been expressly agreed upon in writing as fixed dates. The delivery period begins with the dispatch of the order confirmation, but not before all documents, licenses, approvals and authorisations to be provided by the Buyer have been submitted and any down-payment agreed has been received.
2. The delivery date is met if the delivery item has left the factory or if notification about readiness for dispatch has been made before its expiration.
3. The delivery period shall be appropriately extended in the case of circumstances associated with industrial disputes, in particular strikes and lockouts as well as in the case of the occurrence of unforeseen obstacles (particularly due to the weather etc.) which do not lie within the supplier's intention, insofar as such obstacles demonstrably have a considerable influence on the completion or delivery of the delivery item. This also applies if such circumstances should arise in respect of sub-suppliers. We are also not liable for the aforementioned circumstances if they arise during an already existing delay. In serious cases, we will notify the Buyer without delay at the beginning and end of obstacles of this nature.
4. If the Buyer gives us a reasonable period of grace after we have defaulted on delivery and if the period of grace expires without result, the Buyer shall then be entitled to rescind the contract. In such cases, statutory claims shall apply for the consideration and claims by the Buyer, but only in accordance with Section VIII below.
V. Passing of Risk and Acceptance
1. Risk shall pass to the Buyer at the latest with the transfer to the haulier, shipping agent or the company entrusted with the dispatch of the goods; this also applies when part deliveries are shipped or when we have agreed to perform or assume other services such as shipping costs or transportation and scheduling. Upon request and at the expense of the Buyer, the shipment will be insured against theft, breakage, damage in transit, fire and water damage and other insurable risks.
2. If the dispatch is delayed due to circumstances for which the customer is responsible, the risk shall be passed to the Buyer from the day of the readiness for dispatch; we are however obliged to effect the insurances that the Buyer demands at the request of and at the expense of the Buyer.
3. Delivered goods must be accepted by the Buyer even if they have minor defects, irrespective of the rights stipulated in Section VII.
4. This shall not apply if the Buyer is a consumer as defined by § 13 BGB [German Civil Code]; in this case the statutory provisions relating to the purchase of consumer goods shall apply.
VI. Retention of Title
1. All goods are supplied under retention of title. They remain the property of the Seller until all claims arising from the ongoing business relationship with the Buyer, including all current account claims (goods subject to retention of title), have been fully settled. The retention of title shall continue to exist even if individual claims by the Seller have been included in a current invoice and the balance has been deducted and accepted.
2. The Buyer is entitled within the ordinary course of business to process and sell goods to which we retain title, provided that the customer is not in default of payments due to us. Pledges or assignments as security shall not be permitted.
3. Processing of the goods shall not give the Buyer the right of ownership to the newly created goods.
The Buyer shall process such goods for the Seller. The processed goods also serve as security for the
Seller of the goods that are subject to retention of title.
4. If such goods are processed by the Buyer together with other goods not owned by the Seller,
the Seller shall acquire co-ownership of the newly created goods in the proportion of the value of his goods in relation to the other goods processed.
5. The Buyer must reserve ownership of the goods to which he is conditionally entitled against his customers until such time as these have paid the purchase price in full.
6. All claims by the Buyer arising from the resale of the goods subject to retention of title shall hereby be assigned to the Seller in full here and now by way of security. If the goods subject to retention of title are sold by the Buyer together with other goods that do not belong to the Seller, the rights to the purchase price shall only be deemed assigned up to an amount corresponding to the value of the goods that are subject to retention of title. If the goods subject to retention of title only partly belong to the Seller, the amount of the receivables assigned to the Seller due to the sale of such goods shall be determined according to the Seller's proportional ownership.
7. The Buyer is entitled to collect the receivables resulting from the resale. Upon the request of the Seller, the Buyer shall notify the Seller of the debtors against which titles to payment so assigned are held. The Seller can notify the debtors of the assignment.
8. The retention of title of the Seller is conditional in that upon full payment of all of the Seller's receivables arising from the business relationship, title to the goods under retention of title shall automatically pass to the Buyer and the assigned receivables shall accrue to the Buyer.
9. Insofar as the value of the security to which the Seller is entitled exceeds the value of all claims to be secured by more than 10%, the Seller shall be obliged to release the security to such extent according to his choice.
10. In the event of third-party access to the items subject to retention of title, the Buyer shall indicate the existence of our ownership and notify us immediately. Should the Buyer act in breach of contract - in particular by falling into arrears with payments - we shall be entitled to repossess the goods subject to retention of title or demand assignment of the rights to the recovery thereof vis-à-vis third parties. The Seller is liable jointly and severally with the third party for refunding the judicial costs and extra-judicial costs of a complaint in accordance with § 771 ZPO [German Code of Civil Procedure]. The taking back of, or levying of execution upon, the goods subject to retention of title by the Seller shall not constitute a rescission of contract.
VII. Notification of Defects and Warranty
1. Claims for defects by the Buyer require that he has duly met his obligation to inspect and give notice of defects as stipulated by law (§ 377 HGB [German Code of Commercial Law]).
2. For entrepreneurs the period of warranty is one year from delivery of the goods. The warranty period for the consumer after delivery of new products is two years, for used goods, it is one year.
3. In addition, the statutory warranty rights apply for all parts which become unusable or whose serviceability has become considerably impaired within the warranty period, demonstrably as a result of circumstances dating from before the transfer of risk, but with the provison that the Buyer gives us the opportunity to subsequently fulfil defective services (including deliveries) according to our choice, either by remedying or replacing with a new delivery. The Buyer is entitled to the remaining statutory warranty rights only once two attempts by us at the supplementary performance have failed or the supplementary performance was refused by us or was not carried out within a reasonable period, but only as laid down in Section VIII below.
4. Parts which have been removed shall become our property.
5. In the event that the Buyer does not give us the opportunity to convince ourselves of the defect and in particular does not immediately make available the rejected goods or samples, all claims by the Buyer shall become null and void.
6. We may refuse to remedy a defect if the Buyer fails to meet his obligations to the extent provided by law.
7. Goods which are sold as declassified goods (e.g. so-called II a goods) deviate or differ from the goods described in the catalogue/website. These deviations/differences are described in our quotation. In the event that the Buyer orders such goods, the contract is concluded with these deviations/differences. Deviations/differences shall constitute neither warranty rights nor liability rights.
1. We shall be liable on the merits of cases of wilful intent and gross negligence. We shall only be liable for ordinary negligence if a violation of essential duties of the contract is concerned; this liability shall be limited to damages which are foreseeable for us.
2. The delivery of defective goods as such shall not represent an infringement of essential contractual duties.
3. All other claims for damages for whatever legal reason, particularly because of breach of contract or tort are excluded.
4. We are not liable for any consequential damages particularly for loss of profit or intangible losses.
5. Claims for damages against us become subject to the statute of limitations after one year following delivery of the goods by us, unless we are culpable of wilful intent or gross negligence. The statute of limitations under the law of tort remains unaffected.
6. Liability due to culpable injury of life, body or health remains unaffected; this also applies in cases of compelling liability in accordance with the German Product Liability Act.
7. If claims for damages against us are excluded or limited according to the foregoing provisions set out in paragraphs VIII.1 to VIII.6, this shall also apply with respect to the personal liability for damages of our employees, workers, staff, representatives, and agents.
Returned goods shall not be accepted without a return note (obtainable on www.decormetall.de) and a Return Merchandise Authorization (RMA) number.
X. Rescission, Non-Performance of the Contract
1. In the event of unforeseen circumstances as defined in Section IV of the terms and conditions of delivery, provided they significantly alter the commercial import or content of the performance or have a significant effect on our operations, and in the event that performance is subsequently perceived to be impossible the agreement shall be adapted accordingly. Where this is not economically reasonable, we shall have the right to rescind the contract in full or in part.
2. The Buyer shall not be entitled to claim damages in the event of such a rescission. If we wish to exercise this right to rescind, we undertake to inform the Buyer immediately after obtaining the knowledge of the severity of the circumstances, even if an extension of the delivery period was initially agreed with the Buyer.
3. The delivery obligation requires unconditional creditworthiness of the purchaser. If after concluding the contract we receive information which makes the provision of the necessary delivery credit not appear fully defensible, we shall be entitled to demand advance payments or the provision of securities or to rescind the contract.
4. We shall have the right to demand surrender and return shipment of the delivered goods
free of charge for us if the Buyer fails to fulfil his obligation towards us or to do so punctually. We shall be entitled to claim for damages in the event of non-performance of the contract. This shall apply even if we have legitimately rescinded the contract ourselves in accordance with the foregoing paragraphs. Damages shall amount to 25% of the agreed purchase price. It shall be increased if we document
higher damage. The Buyer is expressly entitled to provide proof that damage has not occurred or is considerably lower than the flat charge.
XI. Designs and Samples
Designs, samples and drawings of whatever nature are our intellectual property and shall only be produced against invoice. Copyright will remain with us. They must not be imitated or made accessible to rival companies. After payment, the right of manufacture and/or reproduction shall not pass to the Buyer or to third parties. Any use, reproduction or dissemination to third parties shall entitle us to assert claims for damages. Drawings and supporting documents shall be returned to us without delay in the event that an order is not placed. If we create new intellectual property in connection with an assignment, the provisions of this Section apply accordingly and we shall be entitled to protect this new intellectual property for ourselves.
XII. Reference to Copyright
These drawings or parts thereof shall not be disclosed or disseminated or reproduced in any way to persons or companies unless written agreement has been obtained from us.
Any such legal infringements are illegal and punishable offences according to legislation of 19 June 1910/ 22 May 1910: §§ 1 and 11, 36 – 38 ff; German Civil Code BGB § 828 ff.
XIII. Place of Fulfilment and Jurisdiction
1. The place of fulfilment and jurisdiction shall be our head office or the head office of the Buyer at our option; this shall also apply to any disputes concerning documents, bills of exchange or cheques.
2. German law applies exclusively. The application of the uniform laws dated 17 July 1973 on the international sale of movable goods as well as the signing of international commercial contracts for movable goods is excluded.
XIV. Protective Clause
The contract shall be governed exclusively by these General Terms and Conditions; any other terms and conditions shall not become applicable to the contract even if we do not expressly object to them.
The present General Terms and Conditions shall also apply if we carry out an order without reservations despite having knowledge of conflicting or differing conditions of the Buyer. Our referral to a letter which contains terms and conditions of the Buyer or a third party or which refers to such terms and conditions does not constitute recognition on our part of conditions that differ from these General Terms and Conditions.
XV. Invalidity of Provisions
If any clause in this contract should be or become invalid, then the invalid term shall be replaced by a term that is closest to the economic purpose of the contract and which reasonably protects the mutual interests.
XVI. German version of General Terms and Conditions applies
Should the English version of these Terms and Conditions deviate from the German language version only the German version shall apply and be binding.
B1 FB 006-00
Last updated 04/2011
decor metall GmbH
32108 Bad Salzuflen
Tel. +49 52 22 2 86-0
Fax +49 52 22 86-1 89