General Terms and Conditions of Mayer Sitzmöbel GmbH & Co. KG, Am Brunnen 7, 96257 Redwitz
These General Terms and Conditions apply to business transactions with customers, provided that they are entrepreneurs within the meaning of § 14 BGB. They apply to all deliveries and other services provided by the Contractor.
I. General conditions
1. Only these Terms and Conditions apply. Terms and conditions of the customer shall only apply insofar as the Contractor has expressly agreed to them.
2. Offers, deliveries and services are made exclusively on the basis of these General Terms and Conditions
II. Offer and conclusion of contract; contract
1. Offers are non-binding.
2. The Contractor assumes no procurement risk. He is entitled to withdraw from the contract insofar as he does not receive the respective object from his supplier in spite of the prior conclusion of a corresponding supply contract; the responsibility of the Contractor for intent or negligence remains unaffected. The Contractor will inform the buyer immediately about the non-timely availability of the delivery item and, if the Contractor wishes to withdraw, exercise the right of withdrawal immediately. In the event of withdrawal, the Contractor will immediately reimburse the buyer for the respective consideration.
3. Amendments and additions to the contract are made by the management of the Contractor or by particularly authorized representatives of the Contractor. Oral agreements or declarations by other persons are only valid if confirmed in writing by the management of the Contractor.
4. Deviations in structure and colour from exhibition pieces, samples and illustrations are reserved, insofar as these are caused by the nature of the materials used (solid woods, veneers, natural stone, leather, textile products) or are commercially or constructively conditioned.
III. Shipment and transfer of risk
1. Shipments with a minimum value of € 600.00 (excluding VAT) are made free of shipment costs. Below an order value of € 600.00 per shipment, a freight fee of € 15.00 will be charged for domestic deliveries (except for the German islands); for Austria and the Netherlands the flat rate is € 19.00. For other countries and the German islands, the freight fee will be announced upon request.
For deliveries that are not made to the customer himself but directly to end consumers, additional handling fees may be charged.
2. The risk of accidental loss and accidental deterioration of the goods is transferred to the customer when the goods are loaded, even if carriage paid delivery has been agreed and / or the goods are dispatched using the Contractor's vehicles. The Contractor is not obliged to take out transport insurance.
3. Unless expressly agreed otherwise in writing, the Contractor is entitled to partial deliveries to a reasonable extent.
IV. Payment conditions
1. The purchase price payment is due in full on delivery or acceptance. The customer shall be in default without any further notice or declaration by the Contractor 30 days after the due date if and to the extent he has not made payment.
2. In the event of the existence of defects, the customer is not entitled to a right of retention, unless the delivery is obviously defective or the customer is obviously entitled to refuse acceptance of the goods; in such a case, the customer is only entitled to withhold payment if the amount withheld is in reasonable proportion to the defects and the expected costs of subsequent performance (in particular to remedy the defect). The customer is not entitled to assert claims and rights due to defects if the customer has not made due payments and the amount due (including any payments made) is in a reasonable ratio to the value of the - defective - delivery or work.
3. If the term of payment is exceeded, the customer will be in default. He is obliged to pay to the Contractor default interest in the amount defined by law.
Reminder fees apply for each reminder. The enforcement of additional damages remains reserved.
V. Dates and time limits
1. Is non-compliance with time limits due to force majeure or similar events, for example a strike or lockout occurs, the time limits will be extended accordingly.
2. The Contractor is liable for delay of performance in cases of intent or gross negligence of a supplier or a representative or agent in accordance with statutory provisions. In other cases of delay of performance, the liability of the supplier for damages shall be limited to
5% in addition to the service and 5 % of the value of the part of the delivery affected by the delay for the compensation instead of the service. Further claims of the customer are – even after expiry of a deadline for performance set vis-á-vis the Contractor - excluded.
A change in the burden of proof to the detriment of the customer is not associated with the above regulations.
3. If the delivery is impossible, the customer is entitled to demand compensation in accordance with statutory provisions. However, the claim of the customer for any damages in addition to or instead of the service and for the reimbursement of wasted expenses is limited to 10 % of the value of that part of the service that cannot be used due to the impossibility. Further claims of the customer due to impossibility of delivery are excluded. The buyer's right to withdraw from the contract remains unaffected. A change in the burden of proof to the detriment of the customer is not associated with the above regulations.
4. If on the request of the customer the delivery is delayed by more than two weeks after the agreed delivery date or, if no exact delivery date was agreed, after the notification of readiness for dispatch by the Contractor, the Contractor may charge a storage fee of 0.5 % of the price of the delivery item. The customer is permitted to prove that the seller did not incur any damage or a significantly lower damage. The Contractor is allowed to prove that higher damage has occurred.
5. For custom-made products, the agreed delivery times do not apply, unless they have been expressly agreed.
VI. Retention of title
1. The delivery item remains the property of the Contractor until the fulfillment of all claims against the customer arising from the business relationship.
2. The customer is permitted to process the object of delivery or to mix or combine it with other objects. The processing, mixing or combination (hereinafter collectively: „Processing“ and with regard to the delivery item: „Processed“) shall be for the Contractor; the article resulting from processing is called „New Product“. The customer keeps the New Products for the Contractor with the care of a proper businessman.
3. In the case of processing with other objects not belonging to the Contractor, the Contractor is entitled to co-ownership of the New Product in proportion to the proportion resulting from the ratio of the value of the processed delivery item to the value of the other processed goods at the time of processing. If the customer acquires sole ownership of the New Product, the Contractor and customer agree that the customer grants the Contractor co-ownership of the New Product in proportion of the value of the processed delivery item to the other processed goods at the time of processing.
4. In the event of the sale of the delivery item or the New Product, the customer hereby assigns his claim from the resale against his customer with all ancillary rights to the Contractor as a precaution, without the need for further special explanations. Such assignment applies including any balance claims. However, the assignment shall only apply to the amount corresponding to the price of the delivery item invoiced by the Contractor. The portion of the claim assigned to the Contractor must be given priority.
5. If the customer connects the object of delivery or the new goods with real property or movable property, he shall, without further explanation, also accept his claim, which he is entitled to as remuneration for the connection, with all ancillary rights as a precaution in proportion to the relationship of the value of the delivery item or the new goods to the other connected goods at the time of the connection to the Contractor.
6. Until further notice, the customer is obliged to collect the items listed in this section VI. assigned claims. The customer will immediately forward payments made to the assigned claims up to the amount of the secured claim to the Contractor. In the event of good cause, in particular default in payment, cessation of payments, opening of insolvency proceedings, bill protest or justified indications of over-indebtedness or impending insolvency of the customer, the Contractor is entitled to revoke the collection authority of the customer. In addition, the Contractor may disclose the assignment of security, utilize the assigned claims and demand disclosure of the assignment by the customer to its customer upon prior warning, subject to a reasonable period of notice.
7. In the case of a legitimate interest, the customer must provide the Contractor with the information required to assert his rights against the customer and hand over the necessary documents.
8. During the existence of the retention of title, the customer is prohibited from pledging or assigning by way of security. The resale is only allowed to resellers in the ordinary course of business and only under the conditions that the payment of the equivalent value of the delivery item to the customer. The customer must also agree with the buyer that the buyer acquires ownership only with this payment. In the case of seizure, confiscation or other dispositions or interventions by third parties, the customer has to inform the Contractor immediately.
9. Insofar as the realizable value of all security interests to which the Contractor is entitled exceeds the amount of all secured claims by more than 10%, the Contractor will release a corresponding part of the security rights at the customer‘s request.
10. In the event of breaches of duty by the customer, in particular default in payment, the Contractor is entitled, even without setting a deadline, to demand the surrender of the delivery item or the New Product and / or to withdraw from the contract; the Contractor is obliged to surrender. In the request for the delivery of the delivery item / the New Product is no declaration of resignation of the Contractor, unless this is explicitly stated.
VII. Warranty / Material defect liability
1. The existence of a defect is finally determined on the basis of the quality agreement, as made in the respective contract with the Contractor. Unless otherwise expressly agreed in the respective contract, none of the information about the Contractor's products, in particular images, drawings, descriptions and references to standards and specifications as well as other public statements by the Contractor or his vicarious agents contained in offers, catalogues and brochures does represent quality specifications and / or guarantees within the meaning of §§ 434, 443 BGB, but are only non-binding descriptions or labels. The same applies to the delivery of samples. As natural products, wood and leather can show slight colour and structure deviations, for which the Contractor does not guarantee. The same applies to colour deviations when reorders are made between the original product and the reordered product.
2. The customer is obliged to examine the goods immediately. Obvious defects must be reported in writing without undue delay, specifying the defect at the latest within 8 days after delivery. Defects that are not immediately recognizable must be reported in writing immediately after they are recognized, but no later than 6 months after delivery. The customer must notify the transport person of any transport damage immediately and have the damage note signed on the waybill, shipping order or delivery note. In addition, he must immediately inform the Contractor of the transport damage with a damage report.
3. If the products are defective upon transfer of risk and this has been duly notified in accordance with Section 2, the customer must first give the Contractor the opportunity to repair the products or to deliver replacements at the option of the Contractor ("subsequent performance"); A reasonable period is also required if the customer had to take back the products he sold on from his buyer as a result of their defectiveness or the customer's buyer has reduced the purchase price, unless in the case of a supplier recourse (§§ 445a, 478 BGB ) if the last contract in the supply chain was a consumer goods purchase. If the subsequent performance fails, the customer is entitled to withdraw or reduce the price in accordance with the statutory provisions. The Contractor can only demand compensation in accordance with Section VIII. If the customer wants to demand compensation instead of the performance or to carry out self-improvement, the failure of the repair is only given after the unsuccessful second attempt. The statutory cases of dispensability of setting a deadline remain unaffected.
4. If there is actually a defect, the Contractor bears the expenses necessary for the purpose of the supplementary performance, in particular transport, labour and material costs. If the customer has installed defective products in another thing or attached them to another thing, the costs according to the above sentence do not include the necessary expenses for removing the defective and installing or attaching the repaired or delivered defect-free products, unless , in the case of supplier recourse (§§ 445a, 478 BGB), if the last contract in the supply chain was a purchase of consumer goods. In any case, the preceding sentence does not affect the possible replacement of dismantling and installation costs as compensation in accordance with Section VIII. Claims by the customer due to the expenses required for the purpose of supplementary performance are excluded insofar as the expenses increase due to the fact that the products have subsequently been moved to a location other than the customer's branch, unless the transfer corresponds to their intended use. If the customer's request for the removal of defects turns out to be unjustified, he bears the costs incurred by the Contractor, unless he is not responsible for this.
The Contractor is not liable for damage to the products caused by natural wear and tear, unsuitable, improper or non-contractual use, incorrect assembly, non-compliance with the specified weight limits, excessive stress or improper changes, rework or repair work by the customer, his customers or other third parties or caused by incorrect or negligent handling, unless the Contractor is responsible for this.
5. The limitation period for claims and rights due to defects in deliveries, regardless of the legal reason, is one year after delivery of the respective product to the customer. The statutory provisions on the statute of limitations for claims from product liability (Section 12 (1) ProdHaftG), in the event of malice (Section 438 (3) No. 1 BGB) and from supplier recourse (Sections 445a, 478 BGB) - if the last contract is in a consumer goods purchase in the supply chain - remain unaffected.
6. The limitation periods according to paragraph 5 shall also apply to all claims for damages against the Contractor which are related to the defect – irrespective of the legal basis of the claim. However, warranty claims expire prematurely as soon as the customer attempts to repair or make changes, or if operating instructions are not followed.
7. The limitation periods according to paragraphs 5 and 6 shall apply with the following proviso:
a) The periods of limitation are generally not valid in the case of intent or fraudulent concealment of a defect.
b) In addition, the limitation periods for claims for damages do not apply in cases of injury to life, limb or health or freedom, claims under the German Product Liability Act, gross negligence or breach of essential contractual obligations
8. Unless otherwise expressly determined, the statutory provisions on the commencement of the limitation period, the suspension of proceedings, the inhibition and the new start of periods remain unaffected.
VIII. Claims for damages
1. The Contractor is liable for its own intent and gross negligence as well as for intent and gross negligence on the part of its legal representatives and vicarious agents. If he, his legal representatives or vicarious agents are not guilty of intent, the liability is limited to the foreseeable damage typical for the contract.
2. The Contractor is also fully liable in the event of culpable injury to life, limb and health by the Contractor, his legal representatives or vicarious agents, as well as in the case of fraudulent concealment of a defect or assumption of a guarantee. In the latter case, the scope of liability is based on the respective guarantee declaration.
3. The Contractor is also liable for the culpable breach of such obligations, the achievement of which makes the execution of the contract possible in the first place and which the customer regularly trusts and may rely on compliance by the Contractor, his legal representatives and vicarious agents. Insofar as the Contractor, his legal representatives or vicarious agents are not guilty of intent, the liability is limited to the foreseeable damage typical for the contract.
4. The Contractor is still liable in cases of mandatory legal liability in accordance with the respective provisions, for example in accordance with the Product Liability Act.
5. Otherwise, liability for claims for damages and reimbursement of expenses - regardless of the legal reason - is excluded.
6. As far as the liability of the Contractor is excluded or limited, this also applies to the personal liability of his employees, workers, employees, representatives, organs and vicarious agents.
7. The customer will immediately and comprehensively inform and consult the Contractor if he wishes to claim against him in accordance with the above regulations. In this context, the customer must give the Contractor sufficient opportunity to investigate the damage.
IX. Data processing
The customer agrees that the Contractor processes, in accordance with the “Verordnung (EU) 2016/679” (Datenschutz-Grundverordnung / in english "GDPR") and the "Bundesdatenschutzgesetz" / in english: “Federal Data Protection Act”, the data relating to the business relationship for the fulfillment of its own business purposes, in particular processes, stores or uses the data or submits it to a credit protection organization, insofar as this is done within the scope of the contract or legitimate interests and there is no reason to believe that the legitimate interest of the customer in excluding the processing, in particular the transmission, of these data outweighs.
X. Severability clause
Changes or additions to these General Terms and Conditions must be in writing to be effective. Should any provision of these General Terms and Conditions be or become ineffective or unenforceable, this shall not otherwise affect the validity of the General Terms and Conditions.
XI. Jurisdiction and applicable law
German law applies exclusively to the legal relationships between the parties, excluding the UN Sales Convention (CISG). The place of fulfillment and exclusive place of jurisdiction is the seat of the Contractor for all disputes arising from the contractual relationship.