General terms and conditions of business
§1 General and scope of application:
(1) These General Terms and Conditions of Sale (GTCS) shall apply to all business relations with our contractual partners, but only if they are entrepreneurs (§ 14 BGB), legal entities under public law or special funds under public law within the meaning of § 310 (1) BGB.
(2) The GCS in their respective version shall also apply to future contracts with the same contractual partner without our having to refer to them again in each individual case.
(3) Our Terms and Conditions of Sale shall apply exclusively; we shall not recognize any terms and conditions of our contractual partner that conflict with or deviate from our Terms and Conditions of Sale unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if we carry out the delivery to our contractual partner without reservation in the knowledge of terms and conditions of our contractual partner that conflict with or deviate from our Terms and Conditions of Sale.
(4) Legally relevant declarations and notifications to be made to us by the Buyer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be in writing to be effective and must be formally delivered within 14 days.
(5) All agreements made between us and the contractual partner for the purpose of executing this contract are set down in writing in this contract.
§2 Offer and offer documents:
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided our contractual partner with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve property rights and copyrights.
(2) Offers that have been prepared by us on the basis of a bill of quantities (BOS) must be checked by our contractual partner for completeness. We are not responsible for the specifications and their contents.
(3) Our contractual partner shall require our express written consent before passing on to third parties and/or publishing our above-mentioned documents and product descriptions.
(4) The order of the goods by our contractual partner shall be deemed to be a bindingly accepted contractual offer. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 2 weeks of its receipt by us. Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the subject matter of the contract to our contractual partner.
(5) The products to be delivered by us have CE conformity. Upon request, we shall provide our customer with documents in this regard. Further certifications need only be provided by us if
they have been expressly agreed between us and our customer and noted in the order confirmation.
(6) Goods may only be returned after prior approval within a maximum of 6 months after delivery. Excluded are discontinued products, special and/or custom-made products which are not or no longer listed in the respective valid price list. In a return offer, the inspection and storage costs per product are set up.
§3 Prices, terms of payment, set-off and right of retention:
(1) Unless otherwise stated in the order confirmation, our current prices at the time of conclusion of the contract shall apply, namely ” ex works ” excluding packaging; this shall be invoiced separately.
(2) The statutory value-added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.
(3) The deduction of a discount requires a special written agreement.
(4) Unless otherwise stated in the order confirmation, payment shall be made 100 % in advance.
(5) Upon expiration of the aforementioned payment period, our contractual partner shall be in default. During the period of default, interest shall be charged on the price at the applicable statutory default interest rate. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected.
(6) Our contractual partner shall only be entitled to rights of set-off and/or retention insofar as its claim has been legally established or is undisputed. Excluded are custom-made products and one-off productions, for which only the right of consumption pursuant to § 312g para. 2 no. 1 of the German Civil Code (BGB) shall apply.
7) If it becomes apparent after conclusion of the contract that our claim is endangered by a lack of ability to pay on the part of our contractual partner (e.g. by an application for the opening of insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB).
8) Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries made 3 months or more after conclusion of the contract.
9) By placing an order, the Purchaser assures its solvency and creditworthiness. With the placing of the order the GCS are automatically accepted by the purchaser.
§4 Delivery period and delay in delivery:
(1) The delivery period shall be agreed individually or stated by us upon acceptance of the order.
(2) The start of the agreed delivery period is subject to clarification of all technical issues. Compliance with our delivery obligation further presupposes the timely and proper fulfillment of the obligation of our contractual partner. We reserve the right to plead non-performance of the contract.
(3) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform our contractual partner of this without delay and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by our contractual partner. A case of non-availability of the performance in this sense shall be deemed to be in particular the failure of our supplier to deliver on time if we have concluded a congruent hedging transaction. Our statutory rights of rescission and termination as well as the statutory provisions on the performance of the contract in the event of an exclusion of the obligation to perform (e.g. impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected. The rights of withdrawal and termination of our contractual partner shall also remain unaffected.
(4) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by our contractual partner shall be required. If we are in default of delivery, the Buyer may demand lump-sum compensation for the damage caused by the default. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of the delay, but in total not more than 5% of the delivery value of the goods delivered late. Our customer reserves the right to prove a higher damage; we reserve the right to prove that our contractual partner has not suffered any damage at all or only a significantly lower damage than the aforementioned lump sum.
§5 Delivery, transfer of risk, acceptance and default of acceptance:
(1) Delivery shall be ex “works/warehouse”. This is the place of performance. At the request and expense of our contractual partner, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to our contractual partner at the latest upon handover. However, in the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and
services shall also apply mutatis mutandis to an agreed acceptance. Handover or acceptance shall be deemed equivalent if our contractual partner is in default of acceptance.
(3) If our contractual partner is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which our contractual partner is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump-sum compensation in the amount of EUR 180 per calendar day, starting with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for shipment.
(4) The proof of a higher damage and our legal claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be credited against further monetary claims. Our contractual partner shall be entitled to prove that we have not incurred any damage at all or that the damage is significantly less than the aforementioned lump sum.
§6 Retention of title:
(1) We reserve title to the delivered item until full payment of all claims arising from the delivery contract. This shall also apply to all future deliveries, even if we do not always expressly refer to this. We shall be entitled to take back the object of sale if our customer acts in breach of contract.
(2) As long as ownership has not yet passed to the customer, the customer shall be obliged to treat the object of sale with care. In particular, he shall be obligated to sufficiently insure it at his own expense against theft, fire, water and, if applicable, transport damage at replacement value. If maintenance and inspection work has to be carried out, our contractual partner shall carry this out in good time at his own expense. As long as ownership has not yet been transferred, the contractual partner must notify us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action in accordance with § 771 of the German Code of Civil Procedure (ZPO), the contractual partner shall be liable for the loss incurred by us.
(3) The contractual partner shall be entitled to resell the reserved goods in the normal course of business. The contractual partner hereby assigns to us the claims of the purchaser arising from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply regardless of whether the purchased goods have been resold without or after processing. The contractual partner shall remain authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we shall not collect the claim as long as our contractual partner meets its payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.
(4) The processing or transformation of the object of sale by our contractual partner shall always be carried out in our name and on our behalf. In this case, the expectant right of the contractual partner to the object of sale shall continue to apply to the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the item of our contractual partner is to be regarded as the main item, it shall be deemed to be agreed that our contractual partner shall transfer co-ownership to us on a pro rata basis and shall hold the sole ownership or co-ownership thus created in safe custody for us. In order to secure our claims against our contractual partner, he shall also assign to us such claims against a third party which accrue to him as a result of the combination of the reserved goods with a property; we hereby accept this assignment.
(5) We undertake to release the securities to which we are entitled at the request of the customer insofar as their value exceeds the claims to be secured by more than 20%.
§7 Installation and use:
(1) Unless expressly stated otherwise in our order confirmation, our products are exclusively suitable for installation and assembly in dry rooms with living room conditions. In particular, high relative humidity and disproportionate temperature fluctuations may cause damage to our products, for which we assume no liability.
§8 Warranty, limitation and notice of defects:
(1) Warranty claims of the purchaser require that the purchaser has duly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB). In the case of hidden defects, a notice of defect must be given immediately after discovery.
(2) Claims for defects shall become time-barred 12 months after the goods delivered by Loftsonic GmbH & Co. KG at the customer’s premises. The above conditions do not apply if the law according to § 438 Abs.1Nr.2, § 479 Abs. 1 BGB and § 634a Abs. 1 BGB, prescribes longer periods. Prior to any return of delivered goods, the consent of Loftsonic GmbH & Co. KG must be obtained.
(3) If, despite all due care, the delivered goods show a defect which was already present at the time of the transfer of risk, the goods shall, subject to timely notification of defects, at the discretion of Loftsonic GmbH & Co. KG or alternatively replacement goods will be delivered. Loftsonic GmbH & Co. KG shall be given the opportunity of subsequent performance within a reasonable period of time. Claims under a right of recourse shall remain unaffected by the above provision without restriction.
(4) If the supplementary performance fails, the customer may withdraw from the contract or reduce the remuneration. The entrepreneur placing the order has to keep the rejected goods available and after consultation with Loftsonic GmbH & Co. KG, to send them back properly
packed and at the expense and risk of Loftsonic GmbH & Co. KG at the expense and risk of Loftsonic GmbH & Co. KG is to carry out a rectification of defects.
(5) Claims for defects shall not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear as well as in the case of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work or due to special external influences which are not assumed under the contract. If the customer or third parties carry out improper repair work or modifications, there shall also be no claims for defects for these and the resulting consequences.
(6) We shall be entitled to make the subsequent performance owed dependent on our contractual partner paying the price due. Our contractual partner shall, however, be entitled to retain a reasonable part of the purchase price in relation to the defect.
(7) Our contractual partner shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about in the original packaging for inspection purposes. In the event of a replacement delivery, our contractual partner shall return the defective item to us in accordance with the statutory provisions.
(8) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs, if a defect is actually present. Increased expenses because the goods delivered by us have subsequently been taken to a place other than our customer’s branch office shall be excluded, unless the transfer corresponds to their intended use. If a request by our contractual partner to remedy a defect turns out to be unjustified, we shall be entitled to demand compensation from our contractual partner for the costs incurred as a result. The amount of work shall be invoiced on an hourly basis at an hourly rate of EUR 125.00 (net) plus travel costs to and from the place of performance.
(9) If the supplementary performance has failed or if a reasonable deadline to be set by our contractual partner for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, our contractual partner may withdraw from the contract or reduce the price. In the event of an insignificant defect, however, there shall be no right of rescission.
(10) Claims of our contractual partner for damages or reimbursement of futile expenses shall only exist in accordance with clause 8. and shall otherwise be excluded.
(11) Claims for withdrawal of the customer against Loftsonic GmbH & Co. KG shall only exist insofar as the buyer has not made any agreements with his customer that go beyond the legally mandatory claims for defects.
§9 Other liability:
(1) Insofar as nothing to the contrary arises from these GCS including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We shall be liable for damages – irrespective of the legal grounds – in the event of intent and gross negligence. In the case of simple negligence, we shall only be liable a) for damage resulting from injury to life, limb or health, b) for damage resulting from the breach of a material contractual obligation (obligation whose fulfillment is a prerequisite for the proper performance of the contract and on whose fulfillment the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same shall apply to claims of our contractual partner under the Product Liability Act.
(4) Our contractual partner may only withdraw from or terminate the contract due to a breach of duty which does not consist of a defect if we are responsible for the breach of duty. A free right of termination of our contractual partner (in particular according to §§ 651, 649 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§10 Miscellaneous:
(1) This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) The place of performance and exclusive place of jurisdiction and for all disputes arising from this contract is our place of business, i.e. Mainz.
(3) All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.
(4) The language of distribution is German.
(5) If we lend or rent products to our customers, the customer is obligated to treat the goods with care and to adequately protect and insure them against theft, fire, water and transport damage.
(6) Should individual provisions of this contract be or become invalid or contain a loophole, the remaining provisions shall remain unaffected. The parties undertake to replace the invalid provision with a legally permissible provision that comes closest to the economic purpose of the invalid provision or fills this gap.
Loftsonic GmbH & Co. KG – Am Hemel 2A – D 55124 Mainz – Germany