§ 1 Validity of the terms
1.The consignment, service and offers by the company NATURinFORM GmbH, Redwitz a. d. Rodach which this as a seller delivers take place only on the basis of these terms and conditions. Therefore these also apply for any further business, even if they are not explicitly agreed upon. At the latest on acceptance of the goods or service, these terms are seen as accepted. Assertions to the contrary by the buyer with reference to his terms of business or conditions of purchase are herewith contradicted.
2. All agreements that the seller and the buyer come to on the implementation of contracts must be recorded in writing.
§ 2 Offer and contract completion
1. The seller’s offers are non-binding. Declaration of acceptance and all orders must have written acceptance by the seller to be legally effective.
2. Drawings, pictures, measurements, weights, and other service data are only binding if they were explicitly agreed upon, or confirmed in writing. Samples and models are non-binding examples.
3. The seller’s sales executives are not authorized to come to any oral side agreements or to give oral confirmation exceeding the contents of the written contract.
§ 3 Prices
1. Unless otherwise stated, the seller is bound to the price offered for 30 days following the offer. Otherwise the prices stated in the order confirmation plus the corresponding legal VAT are relevant. Additional consignments and services are invoiced separately. This applies especially to expenditure for the seller after change requests by the buyer that differ from the original profile geometry.
2. The prices are all, unless otherwise stated, ex works, including shipment, excluding transport, packaging and protective measures. This is also valid for part consignments and urgent shipments. Added to the prices is the legal VAT from the day of invoice. If the buyer wishes, the seller can insure the shipment against breakage, transport damage and fire damage, at the buyer’s expense.
§ 4 Delivery time and performance duration
1. Lead times, which can be agreed on non-bindingly or bindingly, must be in writing.
2. Delivery time and performance duration periods only start if not otherwise agreed, with the date of order confirmation, but not before all technical and commercial questions in regard to implementation of the order have been settled and confirmed, and especially the necessary technical documents have been completely provided to the seller, the profile geometry has been determined definitely and the agreed terms of payment and other commitments of the buyer have been adhered to. The delivery time and performance duration periods restart following an agreed change of the profile geometry.
3. Delivery time and performance duration delays due to acts of God and events that disable or prevent the seller from delivering or performing not only temporarily – particularly with regard to strike, lockouts, governmental orders, changes to the law, lack of material or energy, wrong or late delivery by the seller’s suppliers despite thorough sourcing – and if the delay or non-compliance could not be avoided despite care and attention and reasonable efforts, the seller is not responsible, even with binding arranged time periods and appointments. They entitle the seller to postpone the shipment or service by the time period of the impediment or withdraw from the contract completely or partially because of the missing part.
4. If the impediment lasts longer than three months, the buyer is entitled, after an additional respite, to withdraw from the contract in view of the non-availability of the part. If the delivery time is extended, or if the seller is freed of commitment, the buyer cannot claim damages.
5. If the seller is responsible for non-compliance in regard to deadlines and appointments, or is behind schedule, the buyer is entitled in case of damage to demand lump compensation of 0.5 % for each full week of delay, in total a maximum of 5 % of the complete invoice sum of the affected shipments and services. Further entitlements are excluded, unless the delay is due to the seller’s negligence.
6. The seller is entitled to part delivery and part service at any time, unless the part delivery or part service is of no interest to the buyer.
7. The seller’s compliance with the obligations in regard to the delivery and service requires timely and proper fulfillment of the buyer’s commitments.
8. If the buyer is in default of acceptance, the seller is entitled to demand compensation for incurred damages; as soon as the buyer is in default of acceptance, the danger of incidental deterioration and coincidental demise is the buyer’s responsibility.
§ 5 Transfer of risk
1. The risk is transferred to the buyer, as soon as the shipment has been passed on to the transporter, or has left the seller’s storage to be shipped. If the shipment is delayed due to the buyer’s request, the responsibilty is transferred to the buyer as soon as the buyer has been informed that the shipment is ready for shipping.
2. Transport is the buyer’s responsibility. If the buyer would like the seller to organise the transport, the carriage method, shipping device, ways of transportation, and the kind and amount of protection, the choice of forwarder or carrier, as also the packaging are for the seller to decide. This takes place at the seller’s discretion and with due diligence, excluding liability, as legally valid.
§ 6 Warranty rights / Liability
1. The products are delivered without fabrication and material faults; this is not a quality or durability guarantee. The warranty rights period is one year after delivery of the products.
2. If the seller’s operating instructions or storage instructions are not adhered to, especially concerning temperature and humidity, if changes are made to the product, or expendable items, that do not fulfil the specifications given by the seller, no claims can be made for defects in the product if the buyer cannot disprove an accordingly fundamental statement that it was one of these circumstances that led to the defect.
3. The buyer must inform the seller immediately of defects, at the latest within a week of receipt of delivery item, in writing. Defects that cannot be found in this time period, despite thorough inspection must be disclosed to the seller immediately on discovery and in writing.
4. In case of disclosure by the buyer that the products have a defect, the seller requires at the seller’s choice and expense that
a) the defective product be sent back to the seller for repair and subsequently returned to the buyer;
b) the buyer hold ready the defective product and a service technician be sent by the seller to the buyer to repair the product.
c) the buyer hold ready the defective product and the seller deliver a similar product as replacement for the defective part.
Should the buyer demand that the product be repaired at a site defined by the buyer, the seller can comply with this request, in this case the parts replaced are free of charge, but working hours and travelling expenses are to be paid for at the seller’s standard rates.
5. Should the rework fail after an appropriate time period, the buyer can demand either a price reduction or withdraw from the contract. To be able to say that rework has failed, there have to have been at least two unsuccessful attempts at reworking.
6. The seller’s products consist mainly of the natural product wood. Naturally typical changes of the wood, as in darkening, fading due to sunlight, changes to the dimensions, and such are not faults in the product.
7. Furthermore, the products are manufactured using natural additives, and can therefore be subject to variations in regard to their texture (i.e. colour variation). Variations, changes or tolerances within the DIN standards are not a variation from the agreed texture.
8. Liability for normal wear and tear is excluded.
9. There is no liability for inappropriate or incorrect usage, incorrect or inadequate installation by the buyer or a third party, incorrect or inadequate treatment, inappropriate building or manufacturing materials, chemical, electrochemical or electrical influences, inappropriate changes or repair work done by the buyer or a third party, that were not consented to in advance by the seller.
10. Further demands by the buyer – regardless of legal reasons – are excluded. The seller therefore is not liable for damage that is not part of the delivery item and particularly for the buyer’s or a third party’s lost profit or other actual losses, as far as the cause of the damage was not intended by the seller or due to crude negligence. In case of only negligent breach of duty, liability is limited to the foreseeable damages typical to the contract.
11. Only the direct buyer can claim defects from the seller. They are not transferable.
12. The seller is not liable for damages that the buyer incurs through the manufacturing of products using the seller’s products.
13. If the seller is to provide products according to drawings, models, samples, or using parts supplied by the buyer, the buyer is responsible for ensuring that no third party’s trade mark rights are violated. The buyer must exempt the seller from claims of third parties and pay compensation for any damage caused.
§ 7 Reservation of proprietary rights
1. Until implementation of all receivables (including all balance claims from open accounts) that the seller is entitled to from the buyer according to every legal basis now or in the future, the seller is granted the following surety that the seller will release at the seller’s discretion, as long as its value sustainably supersedes the claims by more than 20 % .
2. The goods remain the seller’s property. Processing or alteration take place for the seller as manufacturer, but without obligation for the seller. Should the seller’s (co-) ownership cease due to liaison, it has now already been agreed that the buyer’s (co-) ownership of the unitary object according to the value of the part (total amount) be passed on to the seller. The buyer keeps the seller’s (co-) property free of charge. Goods that the seller is entitled to (co-) ownership are referred to as Reserved Goods in the following.
3. The buyer is entitled to process and sell the Reserved Goods in orderly business operations, as long as the buyer is not in default. Pawning, or transfer of ownership as security on a debt are illegitimate. The buyer already in full concedes the right to the seller for all the receivables from resale or other legal reasons (insurance, civil wrongs) in regard to the Reserved Goods (including all balance debts from open accounts) as a protective measure. The seller revocably authorises the buyer to collect the transferred receivables in its own name. This authorisation can only be revoked if the buyer defaults in payments.
4. Should a third party have access to the Reserved Goods, especially in the case of pawning, the buyer will draw attention to the seller’s ownership and inform the seller immediately, so that the seller can inforce the seller’s proprietary rights. As long as the third party is not able to refund the seller’s legal or extrajudicial expenses, the buyer is liable.
5. The buyer must insure the goods under the reservation of proprietary rights sufficiently against fire and theft at the buyer’s expense. Insurance claims from a case of damage are now already transferred to the seller at the value of the Reserved Goods.
6. Should the buyer behave contrary to the contract – especially by delaying payment – the seller is entitled to withdraw from the contract and demand restitution of the Reserved Goods.
§ 8 Payment
1. All payments must be made free of charge for the seller.
2. Payment must be made within 10 days with 2 % discount (on the pure value of goods, without packaging, customs and other expenses ) or within 21 days of the date of invoice without a discount. The seller, regardless of the buyer’s other regulations, is entitled to charge the payments to older, outstanding debts of the buyer, and will inform the buyer of the type of charging. Should costs and interest have already arisen, the seller is entitled to set the payments first against the cost, then the interest, and in the end, the main product.
3. Billing will take place after delivery of the product, if necessary against prepayment.
4. A payment only then counts as having taken place when the seller has access to the amount. In case of a cheque, the payment is only valid after the unconditional value date.
5. The buyer is in default after 21 days, even without a reminder letter.
6. Should the buyer be in default, the seller is entitled to charge 8 percentage points above the base rate as general compensation as from that moment. They should be lower if the buyer proves a lower charge; the seller is entitled to prove a higher claim.
7. Should the seller find out about reasons that question the buyer’s creditworthiness, especially if a cheque is not honoured, or the buyer stops payments, the seller is entitled to bill the full principal balance, even if the seller has accepted cheques. The seller is also entitled to demand advance payments or deposit of a security.
8. The buyer is only entitled to compensation, withholding, or reduction, even if notices of defects, or counterclaims can be claimed, if the counterclaims are legally valid or are indisputable.
9. Should the contract partner abandon payments, or should there be insolvency proceedings in regard to its assets, or should extrajudicial insolvency proceedings have been requested, the seller is entitled to withdraw from the part of the contract that has not been complied with.
§ 9 Copyrights and commercial rights, trade mark rights, changes to structures
1. The seller reserves all ownership and copyrights on all drawings, patterns, samples and similar information; these may only be made accessible to third parties after prior consent from the seller.
2. The seller claims the sole right to production of the articles from designs, drawings, and tools. Passing on and reproduction of these documents, as also the tools, usage and communication of the contents, are not allowed, unless explicitly permitted. Contravention compels the payment of damages. All rights in case of a grant of a patent and registration of industrial design remain reserved. The buyer assumes liability that the production and delivery of objects that are manufactured according to his requests do not harm the trademarks of a third party (see § 6 Nr. 12)
3. The seller reserves the right to change the structure of the product at any time; yet the seller is not obliged to carry out alterations on products that have already been delivered.
§ 10 Applicable law, area of jurisdiction, part-invalidity
1. These business terms and all legal relationships between the seller and the buyer underlie the law of the Federal Republic of Germany. The rules of the UN’s commercial law are not applicable.
2. As long as the buyer is a merchandiser, person from a public agency, or public fund assets, Redwitz a. d. Rodach is the only area of jurisdiction for all litigations arising from the contract.
3. Should a provision from the contract or a provision within the framework of other agreements be or become invalid, the validity of every other provision or agreement remains untouched. The (partially) invalid clause is to be replaced by an economically, legally effective replacement regulation as similar as possible to the invalid clause.