TERMS AND CONDITIONS OF SALE AND DELIVERY OF PLOCHER MÖBELELEMENTE GMBH
1. SUBJECT MATTER OF THE CONDITIONS, SCOPE OF APPLICATION
The following terms and conditions apply exclusively to all deliveries by PLOCHER Möbelelemente GmbH (PLOCHER). They are an integral part of all offers from PLOCHER and agreements with PLOCHER, and in the case of an ongoing business relationship also for all future transactions. Any other terms and conditions of the Customer shall only apply if they have been confirmed in writing by a person entered in the commercial register who is authorised to represent PLOCHER. This shall also apply if PLOCHER has not expressly objected to the differing terms and conditions or the Customer has made reference to differing terms and conditions in its order.
2. CONCLUSION OF CONTRACT
2.1 All offers from PLOCHER are non-binding. Contracts shall only be concluded upon confirmation of the order or fulfilment of the order by PLOCHER.
2.2 All information on goods and services in catalogues, brochures, circulars, advertisements, illustrations and price lists etc. are merely descriptions, markings or guidelines, unless otherwise stated in the order confirmation. We reserve the right to insignificant deviations from catalogues etc. or previously delivered goods.
2.3 Subsidiary agreements or amendments to these terms and conditions must be made in writing.
3. SCOPE OF SERVICES
The exact scope of services is set out in PLOCHER's order confirmation.
4. DISRUPTION OF THE BUSINESS BASIS
4.1 If circumstances have changed seriously after conclusion of the contract or if unforeseeable events such as force majeure, in particular mobilisation, war, riots, boycotts or operational disruptions, strikes and lockouts, official interventions. PLOCHER may demand the adjustment of the contract or, at its discretion, withdraw from the contract in the event of energy supply difficulties, difficulties in the procurement of materials, the manufacture or procurement of the goods to be supplied.
4.2 If PLOCHER's claim to remuneration is jeopardised after conclusion of the contract, PLOCHER may demand advance payment or withdraw from the contract. In this case, all claims of PLOCHER shall be due immediately and in full from the Customer, notwithstanding any agreed payment terms.
4.3 If labour and material costs increase significantly after conclusion of the contract, PLOCHER may adjust the delivery price appropriately or, if the Customer objects to the delivery price increase, withdraw from the contract.
5. PRICES, TERMS OF PAYMENT, DEFAULT OF PAYMENT, SET-OFF
5.1 The prices stated in the order confirmation refer only to the goods delivered ex works PLOCHER including standard PLOCHER packaging. In particular, the Customer shall bear the costs of transport insurance. If the Customer has special packaging requirements, these shall be agreed individually and separately in writing. Otherwise, the PLOCHER standard shall apply to the packaging.
5.2 All prices are subject to VAT at the rate applicable at the time of delivery.
5.3 Payment is due upon delivery. Unless otherwise agreed, payment by the customer must be made within 30 days. If payment is made within 14 days, the customer shall be granted a discount of 2 %. The invoice date shall be decisive for the start of the period; the date of receipt of payment by PLOCHER shall be decisive for the end of the period. Payments by bill of exchange shall only be permitted by special agreement. Bill charges and bill taxes shall be borne by the Customer in all cases. PLOCHER shall be entitled to charge interest at a rate of 8% above the base rate from the 31st calendar day after the due date. The right to claim higher damages caused by default shall remain unaffected.
In the event of default of payment, PLOCHER shall also be entitled to prohibit the use of the delivered items and to repossess them at any time without waiving its claims, whereby the Customer waives the defence of interference with possession. If PLOCHER asserts the retention of title or takes possession of the delivered goods, this shall only be deemed a cancellation of the contract if PLOCHER expressly declares the cancellation in writing. Costs associated with the removal of goods shall be borne by the Customer. Notwithstanding the Customer's obligation to pay, PLOCHER shall otherwise be entitled to sell returned goods by private treaty or by public auction; the proceeds shall be credited to the Customer. If PLOCHER cancels the contract, the Customer shall compensate PLOCHER not only for the compensation for the use of the goods but also for any reduction in value through no fault of its own and for the total loss including loss of profit. PLOCHER may demand 10% of the sales price as lost profit without proof.
5.4 Should PLOCHER have to take extrajudicial or judicial measures against the Customer outside the Federal Republic of Germany in order to enforce the fulfilment of its contractual claims, the Customer shall be obliged to bear all extrajudicial and judicial costs plus lawyers' fees which would have to be reimbursed under German substantive or procedural law. A customer based outside the Federal Republic of Germany recognises these conditions when placing an order.
5.5 The customer may only offset or assert a right of retention on the basis of undisputed or legally established claims.
6. DELIVERY PERIODS, DELAY
Delivery periods are always approximate and non-binding. Their commencement presupposes the clarification of all technical questions, the timely and complete fulfilment of the customer's obligations to cooperate and compliance with the terms of payment. If these requirements are not met, the deadlines shall be extended appropriately, but at least by the period of the delay. PLOCHER shall not be responsible for unforeseen difficulties in the procurement of materials, labour, means of transport and energy, force majeure, in particular mobilisation, war, riots, boycotts, strikes and lockouts. If the Customer sets PLOCHER a reasonable grace period after the occurrence of default, it shall be entitled to withdraw from the contract after expiry of the grace period or, if the default is due to gross negligence or intent on the part of PLOCHER, to demand compensation instead of performance. § Section 286 (2) BGB is waived. The Customer shall have no further claims.
7. PROVIDED PRODUCTS
Products sent in will be processed without checking for defects. PLOCHER shall not be liable for any complaints arising from this. This shall also apply to any defects occurring later which are attributable to the products provided themselves or to the fact that the products provided subsequently prove to be incapable of being processed with PLOCHER's type of production or only capable of being processed inadequately. If there are no orders for processing, processing shall be carried out at the discretion of PLOCHER without PLOCHER assuming any warranty for this.
8. DELIVERY
8.1 Deliveries are made ex works without transport insurance. PLOCHER warehouse or location. The transport risk shall be borne by the Customer, even if delivery free place of dispatch has been agreed or delivery is made using PLOCHER's own vehicles. PLOCHER shall choose the mode of dispatch.
8.2 If the Customer does not accept the goods within 8 working days of notification that the goods are ready or if the Customer does not inform PLOCHER of the dispatch address within this period or if the goods are not called off in the case of call-off orders, PLOCHER shall be entitled to demand immediate payment of its delivery claims and storage fees to a reasonable extent. PLOCHER shall also be entitled to withdraw from the contract. In the case of call-off orders without specification of the delivery time, the goods must be accepted regularly three months after confirmation of the order.
9. RESERVATION OF TITLE
9.1 PLOCHER shall retain title to the goods delivered to the Customer until full payment of all claims arising from the business relationship between PLOCHER and the Customer existing at the time of delivery or arising later from the contractual relationship; in the case of payment by cheque or bill of exchange until they are honoured. The inclusion of individual claims in a current invoice and the balancing and recognition thereof shall not affect the retention of title.
9.2 The customer is authorised to resell the reserved goods in the normal course of business. However, the Customer shall not be permitted to pledge, assign by way of security or assign by way of security. The Customer shall be obliged to secure the rights of PLOCHER as the seller subject to retention of title when reselling goods subject to retention of title on credit. The Customer shall assign its claims from the resale of goods subject to retention of title to PLOCHER in advance; PLOCHER accepts this assignment. Notwithstanding the assignment and PLOCHER's right of collection, the assignor shall be entitled to collect as long as it fulfils its obligations to PLOCHER and PLOCHER's claim for payment is not jeopardised. At the request of PLOCHER, the Customer must provide the information required for collection regarding the assigned claims and notify its debtors of the assignment. The Customer shall handle or process the reserved goods on behalf of PLOCHER without PLOCHER being obliged to do so. In the event of processing, combining, mixing and blending of reserved goods with other goods not belonging to PLOCHER, PLOCHER shall be entitled to the resulting co-ownership share in the new item in the ratio of the delivery value of the reserved goods to the other processed goods at the time of processing, combining, mixing or blending. If the Customer acquires sole ownership of the new item, it is agreed with PLOCHER that the Customer shall grant PLOCHER co-ownership of the new item in proportion to the delivery value of the processed or combined, mixed or blended reserved goods and shall store these for PLOCHER free of charge. If the reserved goods are resold together with other goods, irrespective of whether without or after processing, combining, mixing or blending. If the reserved goods are resold together with other goods, whether without or after processing, mixing or blending, the advance assignment shall be limited to the delivery value of the reserved goods.
9.4 If the value of the securities exceeds PLOCHER's claims by more than 20 %, PLOCHER shall, at its discretion, release securities to this extent at the Customer's request.
9.5 The Customer must inform PLOCHER immediately of any enforcement measures by third parties against the reserved goods or the claims assigned in advance and provide PLOCHER with the documents necessary for intervention.
9.6 As soon as the Buyer has suspended payments or an application for the opening of insolvency proceedings against its assets has been filed, the Buyer shall be obliged to immediately send the Seller a list of the goods still subject to retention of title, even if they have been processed, and a list of the claims against the third-party debtors together with copies of the invoices. The Buyer shall grant the Seller an irrevocable right of access to all storage rooms at any time in order to enable an inventory to be taken and any goods of the Seller to be labelled.
9.7 In addition, the Customer is obliged to adequately insure goods that are our sole and joint property against all material risks. Proof of insurance cover must be provided to PLOCHER on request.
9.8 In the event of default by the Customer and in the event of a significant breach of duties of care and custody, the assertion of the retention of title by PLOCHER shall not be deemed to be a cancellation of the contract unless PLOCHER expressly declares its cancellation.
10. DUTY TO INSPECT AND GIVE NOTICE OF DEFECTS
10.1 The Customer must inspect the delivered goods immediately after delivery, in particular with regard to completeness. PLOCHER must be notified immediately by registered letter in a comprehensible manner of shortfalls or excess quantities of more than 10% of the agreed quantity and defects.
10.2 PLOCHER must be notified of defects that cannot be detected in the course of a proper inspection within 7 working days of their discovery in compliance with the above-mentioned complaint requirements. In the event of a breach of the obligation to inspect and give notice of defects, warranty claims due to the defect in question shall be excluded. §Section 377 HGB shall apply in addition.
10.3 Transport damage must be certified on the spot by the forwarding agent and must also be settled with the forwarding agent. PLOCHER's liability is excluded.
11. STALL
11.1 The exclusion of deviations customary in the industry requires express written agreement. The same applies to any guarantees.
Minor, insignificant deviations of the delivered goods, in particular with regard to dimensions and colours, compared to samples, catalogues, brochures and price lists etc. or previously delivered goods shall not be deemed to be defects.
The Customer itself must check whether the ordered goods are suitable for the intended purpose. Unsuitable goods shall only be defective if PLOCHER has confirmed their suitability to the Customer in writing.
The wear and tear of wearing parts in the course of normal use does not constitute a defect.
11.2 PLOCHER is authorised to deliver excess or short quantities to the extent of 10% of the ordered goods.
11.3 If assembly. installation, sales or maintenance instructions are not followed, changes are made to the delivered goods, parts are replaced or materials or cleaning or care products are used that do not comply with the manufacturer's specifications, claims for defects shall only exist if the customer can prove that the defect was not caused by this, but already existed at the time of transfer of risk.
11.4 PlOCHER shall be liable to the Customer for ensuring that its newly manufactured products are free from manufacturing and material defects and otherwise have the quality agreed in the order confirmation.
11.5 If newly manufactured delivery goods have not yet been delivered to a consumer, PLOCHER shall be obliged, at its discretion, to remedy the defects by rectification or to redeliver the delivery item or parts of the delivery item. If subsequent deliveries or repairs fail, the Customer may only demand a reduction in payment or, at its discretion, withdraw from the contract. However, the right of cancellation and any claim for damages instead of performance in accordance with clause 12 of these provisions shall only exist if the defect is not insignificant.
11.6 If newly manufactured delivery goods have already been delivered to a consumer, the Customer shall in principle only be entitled to assert those claims for defects against PLOCHER that its customer has asserted against it. This shall not apply insofar as the Customer has assumed an obligation towards its customer not agreed with PLOCHER as a gesture of goodwill. The Customer shall not be entitled to withdraw from the contract with PLOCHER if it has had to take back the goods because it has not properly fulfilled its duty of non-fulfilment, in particular because it has culpably allowed a deadline set for non-fulfilment to elapse.
11.7 PLOCHER shall only be obliged to reimburse the expenses in accordance with Section 439 (2) BGB if the Customer has previously informed PLOCHER immediately in writing of the consumer's request for subsequent fulfilment, has informed PLOCHER of the intended type of subsequent fulfilment and the approximate associated costs and PLOCHER has not immediately objected. The Customer shall be obliged to observe PLOCHER's proposals which represent a more favourable variant of subsequent performance.
11.8 The warranty for used goods is excluded except in the case of a guarantee, fraudulent intent or other agreement.
11.9 If PLOCHER breaches non-performance-related obligations in accordance with Section 241 (2) BGB, the Customer shall only be entitled to a right of cancellation and a claim for damages in lieu of performance beyond the statutory requirements if the Customer has previously warned PLOCHER in writing and the breach of duty has nevertheless not been omitted.
11.10 Claims for defects shall lapse within one year in the case of newly manufactured goods. Otherwise, §§ 444 and 479 BGB remain unaffected.
11.11 If a defect cannot be detected during the inspection after a complaint by the customer, the customer shall bear the costs of troubleshooting.
12. LIMITATION OF LIABILITY, COMPENSATION FOR DAMAGES
12.1 Section 444 BGB, claims for damages due to injury to life, body and health as well as claims under the Product Liability Act remain unaffected by the following limitations of liability.
12.2 If PLOCHER has negligently breached an obligation essential for the fulfilment of the purpose of the contract, the amount of liability shall be limited to the typical damages for comparable transactions of this type that were foreseeable at the time the contract was concluded or at the latest when the breach of duty was committed.
12.3 Claims for damages are otherwise excluded. In particular, PLOCHER shall not be liable for damage caused to the delivery item itself, nor for consequential material damage of any kind, nor shall PLOCHER be liable for loss of profit or other financial losses of the Customer.
The above exemption from liability shall not apply if PLOCHER or its vicarious agents are guilty of intent or gross negligence.
12.4 Warranty claims and claims for damages on the part of the customer that go beyond those specified in these terms and conditions are excluded, regardless of their nature and legal basis.
12.5 The above limitations of liability shall apply in the same way to tortious claims of the customer.
12.6 The liability of PLOCHER's vicarious agents is limited in the same way.
13. REJUVENATION
Unless otherwise specified in these Terms and Conditions, the limitation period for claims against PLOCHER that are not based on intentional behaviour attributable to PLOCHER shall be one year.
14. FINAL PROVISIONS
14.1 PLOCHER may use third parties to fulfil its obligations.
14.2 German law shall apply, with the exception of the UN Convention on Contracts for the International Sale of Goods.
14.3 Should one of these provisions be or become legally invalid or unenforceable in whole or in part, a provision that comes closest to the economic purpose shall apply in its place. The validity of the remaining provisions shall remain unaffected.
14.4 The exclusive place of jurisdiction in relation to registered traders and legal entities under public law or special funds under public law for all disputes arising from legal relationships between PLOCHER and the Customer shall be the registered office of PLOCHER or, at PLOCHER's discretion, the Customer's place of residence.
14.5 Unless otherwise stated in the order confirmation, PLOCHER's place of business shall be the place of fulfilment.