General Terms and Conditions of Delivery and Business of Schreinerei Ludwig Mayr GmbH& Co. KG
Status February 2017
§ 1 General, scope of application
German law shall apply. In the case of public contracts, the GTC shall only apply insofar as they do not constitute an inadmissible deviation from the contract documents.
Any terms and conditions of the client that deviate from the provisions of these GTC shall only be legally effective vis-à-vis the contractor if this has been expressly agreed in writing between the contracting parties.
Should individual provisions of these GTC be invalid or be omitted or modified due to contractual agreement with the client, this shall not affect the validity of the remaining provisions of these GTC.
§ 2 Placing of order
All offers made by the Contractor are subject to change until the Client places the order in writing and shall only bind the Contractor until the expiry of the offer period.
In the event of deviations of the order from the offer of the Contractor, a contract shall only be concluded upon written confirmation of the deviating order by the Contractor. Until confirmation of the deviating order, the order shall be deemed to have been placed to the extent of the Contractor's offer.
Verbal collateral agreements or assurances shall require written confirmation by the Contractor in order to be effective.
The agreement of delivery deadlines must be in writing. If the performance owed by the Contractor is delayed for reasons such as force majeure, lawful strike, inability of the Contractor or one of its suppliers through no fault of its own, unfavorable weather conditions or other circumstances for which it is not responsible, the agreed delivery period shall be extended by the duration of the delay through no fault of its own.
If the Contractor is unable to meet the delivery deadline agreed in writing, the Customer shall be entitled to set a reasonable grace period. If the Contractor does not provide the service owed by it even by the expiry of the set grace period, the Customer may withdraw from the contract. The right to withdraw from the contract shall be excluded if the Contractor is not responsible for the non-performance, in particular if this is based on reasons such as those set out in § 2 number 4 sentence 2 of these General Terms and Conditions of Delivery and Business of the Contractor.
The Customer shall immediately fulfill its cooperation obligations (sampling, release of plans, selection of material and design, unrestricted provision of the premises in which the Contractor's performance is to be rendered, etc.). If this does not happen, the Contractor shall be entitled to set the Client a reasonable deadline for the performance of the act of cooperation with the declaration that it will terminate the contract if the act is not performed by the expiry of the deadline. After fruitless expiration of the reasonable grace period, the Contractor shall be entitled to terminate the contract concluded with the Customer. The statutory provisions shall remain unaffected.
§ 3 Prices
All prices are ex works and do not include packaging, shipping, freight, postage, customs, insurance and assembly costs, unless expressly confirmed otherwise in our offers and order confirmations. All prices are shown as net prices and are subject to the statutory value added tax applicable on the day of delivery.
Details in brochures, price lists or other documents of third party suppliers, which are part of the offer of the contractor, are not binding, unless they are expressly declared as binding in the offer.The Client shall only be permitted to offset against the Contractor's claim for payment if such claims are undisputed, have been legally established or are reciprocal.
§ 4 Transfer of risk, acceptance
Unless otherwise stated in the order confirmation, delivery "ex works" is agreed. The transfer of risk shall take place at the time of notification to the customer that the work is ready for collection, but at the latest upon handover to a transport person, including the customer's own. In non-merchant traffic, the statutory provision of § 644 BGB shall apply. It shall be deemed equivalent to a contractually agreed formal acceptance if the Client does not accept the Contractor's performance within a reasonable period determined by the Contractor, although he is obliged to do so.
§ 5 Technical information
The client is advised that maintenance work is to be carried out on his part, in particular:
- Fittings and common components are to be checked and possibly oiled or greased.
- Sealing joints are to be checked regularly. Failure to carry out maintenance work may impair the service life and functional efficiency of the components without this giving rise to any claims for defects against the contractor.
Adequate ventilation must be provided to maintain indoor air quality and prevent mold growth. The indoor air quality is also relevant for built-in furniture.
Insignificant, reasonable deviations in dimensions and finishes (color and structure), in particular in the case of repeat orders, are reserved, insofar as these are in the nature of the materials used (solid woods, veneers, leather, fabrics and similar) and are customary.
§ 6 Payment
The receipt of a check or bill of exchange shall only be on account of performance. In this case, performance shall only be deemed to have been effected when the Contractor has been able to satisfy itself from the check or bill of exchange received.
Insofar as no individual payment plan has been agreed, the Contractor shall be entitled to demand partial payments for partial services rendered in the amount of the increase in value.Significant defects shall only entitle the Contractor to a reasonable retention, as a rule in the amount of twice the anticipated cost of rectifying the defect.
If the contractual service has been rendered and delivered or accepted by the Contractor, the remuneration shall be due for payment immediately after simple invoicing and without deduction of any discount, unless otherwise agreed.
In the event of default of payment by the Client, the Contractor shall be entitled to charge default interest at a rate of 8 percentage points above the base interest rate applicable at the time, and in the case of consumers within the meaning of § 13 BGB (German Civil Code) at a rate of 5 percentage points above the base interest rate applicable at the time. The assertion of further damage caused by default by the Contractor shall remain unaffected by this.
§ 7 Retention of title
All delivered items shall remain the property of the Contractor until all liabilities arising from the contractual relationship have been fulfilled in full. In the event of default of payment by the Client, the Contractor shall be entitled to take away the subject matter of the contract and to realize it by way of private sale. The net proceeds after deduction of the costs of realization shall be credited to the Client's liability.
In order to protect the property rights of the Contractor, the Client shall be obliged to notify the Contractor immediately in writing in the event of third party interventions in the reserved goods by way of attachment or seizure.
The Client shall not be entitled to sell, pledge or otherwise dispose of the items delivered by the Contractor until the agreed remuneration has been paid in full.
The Client shall be entitled to resell the items delivered by the Contractor in the ordinary course of business. In this case, the Client shall assign its claim against the purchaser to the Contractor in the amount of the agreed remuneration. The Contractor shall be entitled to notify the Customer of the assignment. In the event of resale of the items on credit, the Client shall retain title vis-à-vis its customer. The client shall assign the rights and claims arising from this retention of title to the contractor. The Contractor accepts the assignments.
If the objects subject to retention of title are installed by the Client or on behalf of the Client as essential components in the property of a third party, the Client hereby assigns to the Contractor any claim against the third party arising from the processing or installation of the objects subject to retention of title in the amount of the agreed remuneration with all ancillary rights. In the event of processing, combination or mixing of the reserved goods by the Client with other items, the Contractor shall be entitled to co-ownership of the new item in the ratio of the agreed remuneration to the value of the other items.
Insofar as the delivery items have become essential components of a property, the Client undertakes, in the event of non-compliance with agreed payment dates, to allow the Contractor to dismantle the items which can be removed without significant impairment of the building structure and to transfer ownership of these items back to the Contractor. The costs of dismantling shall be borne by the Client.
§ 8 Warranty
We shall be entitled to unilaterally use materials other than those agreed, provided that this is reasonable for the Customer and does not represent a significant reduction in value.The statutory provisions shall apply to material defects, subject to the following proviso: The Client shall provide a warranty either in the form of rectification of defects or subsequent delivery, provided that the Client in the commercial sector has complied with its obligations to inspect and give notice of defects within the meaning of Section 377 of the German Commercial Code (HGB) in the case of obvious defects in the work. In the non-commercial sector, obvious defects must be notified in writing within a period of two weeks calculated from the handover of the work. The deadline shall be deemed to have been met if the notice of defect is sent in good time. After expiry of this period, warranty claims due to obvious defects can no longer be asserted.
The Contractor shall fulfill its warranty obligation at its discretion by rectifying the defect or delivering a replacement of the defective work against return of the defective work. If the rectification of defects fails twice, the client may either demand a reduction of the remuneration for the work or withdraw from the contract. Withdrawal is excluded in the case of minor defects. If the client claims damages, the work shall remain with the client insofar as this is reasonable for him.Claims of the Client arising from contracts not relating to construction work shall become statute-barred one year after acceptance or handover or delivery of the work to the Client. Excluded from this are warranty claims of consumers, as well as claims for damages due to injury to life, body or health and/or claims for damages due to gross negligence or intentional damage caused by the client. In this respect, the statutory limitation periods shall apply.
Liability for damages shall only apply in the event of intent or gross negligence on the part of the Contractor, its representatives or vicarious agents. Liability for slight negligence is excluded. Liability for culpable injury to life, limb or health and liability under the Product Liability Act shall remain unaffected.
The Contractor shall not assume any warranty for purchased parts and finished products from other contractors. However, it shall assign its warranty claims against third party contractors to the client.Liability for defects in works produced according to the client's specifications is excluded if the defect is based on sketches, plans, dimensions or other specifications of the client.
§ 9 Unauthorized termination by the client
If the Client terminates the contract prior to execution of the work for reasons for which the Contractor is not responsible, the Contractor shall be entitled to claim liquidated damages in the amount of 20% of the total order value, subject to proof of higher damages. The client reserves the right to prove a lower damage.
§ 10 Copyrights
The Contractor reserves its property rights and copyrights to cost estimates, drafts, drawings and calculations. They may not be used, reproduced or made accessible to third parties without the Contractor's consent. They must be returned immediately if the order is not placed. Violations of this provision by the Client, its representatives or vicarious agents shall entitle the Contractor to claim liquidated damages in accordance with the provisions in § 8.
§ 11 Data protection
Data protection is subject to the statutory regulations, in particular those of the Federal Data Protection Act. For the execution of the contract, it may come to the collection, storage and processing of personal data of the customer. Personal data will only be used for the intended execution of the contract. The client agrees to the use of his personal data for the aforementioned purposes.
§ 12 Dispute resolution
The Contractor is neither obliged nor willing to participate in dispute resolution proceedings in front of a consumer arbitration board.
§ 13 Final Provisions and Place of Jurisdiction
All legal relations between the contracting parties shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods. With respect to consumers, sentence 1 shall apply only to the extent that the choice of law does not undermine the protection of mandatory legal provisions of the state in which the consumer has his habitual residence.
If the Customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract shall be the respective registered office of the Contractor. If the client does not have a general place of jurisdiction in the Federal Republic of Germany, or if his place of residence or habitual abode is unknown at the time the action is brought, the place of jurisdiction shall be the registered office of the contractor.
Should individual provisions be wholly or partially invalid or unenforceable or should they later lose their legal validity or enforceability, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provisions shall be replaced by the statutory provisions.