General Terms and Conditions of Mayer Sitzmöbel GmbH & Co. KG
These General Terms and Conditions apply to the relationship with merchants and private customers. They apply to deliveries and other services.
1. These General Terms and Conditions apply exclusively. Terms and Conditions of the customer shall only apply insofar as the Contractor has expressively 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 color 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 value as of € 300.00 (without VAT) are made free of shipment costs. Below a value of € 300.00 a handling and freight fee of € 11.50 will be charged; for Austria and the Netherlands this flat rate is € 15.00. For other countries, the freight fee will be announced upon request.
For deliveries that are not made to the customer himself but to his customers, additional handling flat fee may be charged.
2. The risk of accidental loss and accidental deterioration of the goods - even in the case of sale by delivery - only transfers to the customer upon handover. Such transfer is deemed if and when the buyer is in default of acceptance.
If the customer is an entrepreneur, the following conditions apply instead:
The risk of accidental loss and accidental deterioration of the goods is transferred to the customer upon loading of the goods, even if freight free delivery has been agreed and / or transportation is made with vehicles of the Contractor. The Contractor is not obliged to provide 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 such retention is in a reasonable proportion to such defects and the expected costs of subsequent performance. The customer is not entitled to assert claims and rights for defects in the work if he is in a payment default and the amount due (including any payments made) is in reasonable proportion to the value of the work with defects.
If the customer is an entrepreneur, the following conditions apply instead:
In the case 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 work; in such a case, the customer is only entitled to retention, as far as the amount withheld is in a reasonable proportion to the defects and the estimated costs of the subsequent performance (in particular a defect removal). The customer is not entitled to assert claims and rights due to defects if he is in a payment default and the amount due (including any payments made) is in a reasonable proportion to the value of the - deficient - delivery or work stands.
3. If the term of payment is exceeded, the customer is in default. He is obliged to pay to the Contractor default interest in the amount defined by law.
For each reminder a fee in the amount to € 5.00 is charged. 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. The above limitation does not apply to liability for injury to life, limb and health.
A change in the burden of proof to the detriment of the customer is not introduced by 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 purchaser 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. This restriction does not apply in cases of intent, gross negligence or injury to life, limb or health. The right of the buyer to withdraw remains unaffected. A change in the burden of proof to the detriment of the customer is not connected with the above regulations.
If the customer is an entrepreneur, then the following conditions apply in cases of gross negligence:
The liability of the Contractor in cases of gross negligence is limited to the contractually typical, foreseeable damage.
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.
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 Goods 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 buyer is obligated to notify the Contractor in writing of any material and legal defects within 8 days of receipt of the goods; it suffices to send the advertisement within the deadline. The defects are to be described as detailed as possible.
2. Under no circumstances shall the Contractor be obliged to remake the work as part of the supplementary performance. If the rectification fails, the customer has the right to reduce the payment or - if not a construction work is the subject of the liability for defects - to withdraw from the contract at his option. This does not affect the right of the customer to claim damages instead of performance in accordance with the statutory provisions.
If the customer is an entrepreneur, the following conditions apply instead:
1. The Contractor is obliged to inspect the goods immediately. Obvious defects must be reported in writing and under exact specification of the defect without culpable hesitation, at the latest within 8 days after delivery. Not immediately recognizable defects are to be made immediately after recognizability, at the latest however after 6 months after delivery in writing.
2. Under no circumstances shall the contractor be obliged to make a new production in the context of supplementary performance. If the supplementary performance fails, then the customer has the right to reduce the payment or - if not a construction work is the subject of the liability for defects - to withdraw from the contract at his option. The application of § 478 I BGB remains unaffected. The right of the customer to demand damages instead of performance in accordance with the statutory provisions remains unaffected.
3. If the customer wishes to claim damages instead of the performance or to carry out the work himself, the extent of the failure to remedy the defect is only given after the unsuccessful second attempt. The legal cases of dispensability of the deadline remain unaffected.
4. The expenses incurred for the purpose of supplementary performance shall be borne by the customer insofar as they increase as a result of the services being moved to a location other than the customer's place of business, unless the shipment complies with its intended use.
5. The limitation period for claims and rights due to defects in deliveries for whatever legal reason is one year. However, this does not apply in the cases of § 438 I No. 1 BGB, § 438 I No. 2 BGB, § 479 I BGB or 634 a I No. 2 BGB. The periods mentioned in the previous sentence are subject to a limitation period of 3 years.
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. Insofar as claims for damages of any kind exist against the Contractor that are not related to a defect, the period of limitation of subsection (1) sentence 1 shall apply to them.
7. The limitation periods according to paragraphs 5 and 6 shall apply with the following proviso:
a) The periods of limitation are generally not 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. The limitation period begins with all claims with the delivery, with works services with the acceptance.
9. 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.
10. A change in the burden of proof to the detriment of the customer is not connected with the above regulations.
VIII. Data processing
The customer agrees that the Contractor processes, in accordance with the Verordnung (EU) 2016/679 (Datenschutz-Grundverordnung) and the Bundesdatenschutzgesetz, the data relating to the business relationship for the fulfillment of its own business purposes, in particular stores or transmits 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.
IX. 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.
X. Jurisdiction and applicable law
The legal relationships of the parties are governed by German law. The sole place of jurisdiction for all disputes arising from the contractual relationship if the customer is a merchant is the registered office of the Contractor.___/