General Terms and Conditions (GTC)
General Sales Terms and Delivery Conditions of the Keramische Werkstatt Margaretenhöhe GmbH
As of: July 1, 2008
§ 1 General, Applicability
(1) Our General Sales Terms and Delivery Conditions apply exclusively. We do not accept terms and conditions of the customer that conflict with or deviate from our General Sales Terms and Delivery Conditions unless we have expressly agreed to their applicability in writing. Our General Sales Terms and Delivery Conditions shall also apply if we have made a delivery to the customer unreservedly with knowledge of terms and conditions of the customer that conflict with or deviate from our General Sales Terms and Delivery Conditions.
(2) For the purpose of these General Sales Terms and Delivery Conditions, consumers are any individuals with whom we enter into a business relationship which can neither be attributed to their commercial nor self-employed occupational activity. For the purpose of these General Sales Terms and Delivery Conditions, business owners are any individuals or legal entities or partnerships having legal capacity with whom we enter into a business relationship and who act in the execution of their commercial or self-employed occupational activity. For the purpose of these General Sales Terms and Delivery Conditions, customers are both consumers and business owners.
(3) All agreements reached between ourselves and the customer for the purpose of executing this contract are set down in writing in this contract. Changes, additions, or other agreements shall only be binding if they are issued or confirmed by us in writing. Agreements made verbally or over the telephone shall require subsequent written confirmation for their legal validity. The same applies to verbal collateral agreements and changes to the contract.
§2 Conclusion of the Contract
(1) The product details contained in our brochures, in similar documents, or on our Internet site, or made with another offer, such as images, descriptions, specifications of dimensions, weight, and consumption, are subject to change unless expressly described as binding. Minor deviations from such product detail descriptions shall be considered agreed to and do not affect the fulfillment of contracts unless such deviations are unreasonable for the customer. The customer is aware that our products are handmade individual pieces and thus unique items. We therefore reserve the right to make technical changes as well as changes in form, color, and/or weight within the scope of what is reasonable.
(2) By ordering a product, the customer is making a binding declaration that he/she wants to purchase the ordered product. We are entitled to accept the contractual offer underlying the order within two weeks of receiving it. The acceptance may be declared to the customer in writing by the sending of an order confirmation or by the delivering of the product and simultaneous issuing of an invoice.
(3) If the consumer orders the product by electronic means, we will confirm receipt of the order immediately. The confirmation of receipt does not constitute a binding acceptance of the order. The confirmation of receipt may, however, be combined with the statement of acceptance. In the event that we accept the offer, we agree to accept the customer’s order according to the conditions of our catalogue. We are entitled to withdraw from the contract in the case of spelling errors, misprints, and/or miscalculations in our catalogue.
(4) If the consumer orders the product by electronic means, we shall save the text of the contract and, upon request, send it to the customer by e-mail along with these General Sales Terms and Delivery Conditions. The provisions in §10 (data protection) apply here as well.
§3 Prices and Terms of Payment
(1) The relevant valid and current prices in our relevant valid and current catalogues, price lists, etc., shall apply.
(2) Unless otherwise specified in our order confirmation, prices quoted are ex works and do not include costs for packing and transport to the delivery address or point of use provided by the customer nor do they include costs for customs formalities and customs duties. These are not included in the price and will be invoiced separately. The costs for packing and transport are listed in the Packing and Transport Costs list that is enclosed in its current version. The Packing and Transport Costs list valid at the time of the delivery shall apply.
(3) Our prices for business owners do not include the statutory value added tax applicable at the time; if value added tax is owed on the basis of legal requirements this will be shown separately in the invoicing. Our prices for consumers already include the statutory value added tax applicable at the time.
(4) The customer will not incur additional costs by ordering by means of long-distance communication such as data remote transfer, e-mails, or machine readable data carriers.
(5) The deduction of cash discounts shall require separate written agreement.
(6) Unless otherwise specified in the order confirmation, the net purchase price (without deduction) is due for payment within 14 days of the invoice date. After this period, the customer shall be in default of payment. Where the consumer is in default of payment, he shall pay interest at 5 % above the base interest rate announced by the European Central Bank on the amount owed. Where the business owner is in default of payment, he shall pay interest at 8 % above the base interest rate on the amount owed. Vis-à-vis the business owner, we reserve the right to prove and assert higher damage caused by default of payment. We will charge a fee in the amount of 5.00 Euros for each demand for payment sent.
(7) In principle, deliveries abroad are made only against prepayment.
(8) All payments must be made exclusively to us and in € (Euro).
§4 Set-off, Right of Retention
The customer shall only be entitled to set-off possibilities if his counterclaims have been established as final and conclusive, undisputed, or have been accepted by us. The customer may only exercise a right of retention if his counterclaim is based on the same contractual relationship.
§5 Delivery and Delivery Period
(1) Stated delivery times are to be considered approximate and non-binding. Observance of delivery times cannot be guaranteed as our products are unique works of handicraft.
(2) Should we have agreed to binding delivery times and/or delivery dates in writing, we shall be liable in accordance with the provisions of law if the delay in delivery is based on a deliberate or grossly negligent breach of contract for which we are responsible. Fault of our representatives or agents shall be attributed to us. If the delay in delivery is not based on a deliberate breach of contract for which we are responsible, our liability to pay compensation for damages shall be limited to foreseeable and typically occurring damages. The same applies to the culpable violation of a significant contractual obligation.
(3) With regard to business owners, in the case of delay in delivery, we shall be liable for each full week of delay within the limits of a lump sum compensation for damage resulting from delay in the amount of 0.5 % of the value of the delivery per week, however, not to exceed 5 % of the value of the delivery.
(4) Additional legal claims and rights on the part of the customer remain reserved.
(5) Force majeure and labor disputes shall release the contracting parties from their obligations to perform for the duration of the disruption and to the extent of its effect. The contracting parties shall be under an obligation to provide the necessary information immediately within the scope of what is reasonable and to adapt their obligations to the changed circumstances in good faith.
(6) With regard to business owners, we shall be entitled to make partial deliveries. We may also make partial deliveries at the request of the customer and if we have agreed to this in writing. The provisions set forth in paragraphs (1) to (5) shall also apply accordingly to partial deliveries.
§6 Notice of Cancellation Rights for the Consumer
(1) The consumer has the right to revoke, within two weeks on receipt of the product, his declaration of intention to conclude the contract. Such revocation does not require a reason to be given and is to be declared to the seller in writing (or by e-mail) or by returning the product; punctual dispatch suffices to be in compliance with the time limit. The aforementioned consumer’s right of revocation is not valid, however, in the case of delivery of products that have been made according to the consumer’s specifications. A product made according to the consumer’s specifications exists in particular when the consumer chooses, for one of our products, colors, shapes, etc. that are not shown in our catalogue.
(2) When exercising his right of revocation, the consumer is obliged to return the product if the product can be sent as a parcel. When the right of revocation is exercised and the value of the order is 40 Euros or less then the consumer bears the costs of return shipment, unless the product delivered does not correspond to the product ordered. Should the value of the order exceed 40 Euros then the consumer does not have to bear the costs of return shipment.
(3) The consumer shall compensate for lost value in the case of deterioration arising from initial use of the product in accordance with its intended use. The consumer may carefully and cautiously inspect the product. Decrease in value arising from use of the product beyond this inspection that results in the product no longer being able to be sold as “new” shall be borne by the consumer. In such a case, we can retain the depreciation in value arising from the initial use of the purchased product.
§7 Reservation of Ownership
(1) All our deliveries shall be affected under reservation of ownership, meaning we reserve the right of ownership of the product until the customer has paid the purchase price in full.
(2) With regard to our business transactions with business owners, we reserve the right of ownership of the product until all payments resulting from business relations with the business owner have been received.
(3) The customer is under an obligation to handle our products with care. In addition, business owners must sufficiently insure the products to which we retain ownership at their original value against damages from fire, water, and theft for the duration of the reservation of ownership. The rights from this insurance shall be assigned to us. We hereby accept this assignment. Prior to the transmission of ownership, the pledging of the product or its transfer of ownership by way of security is prohibited. The customer is to notify us immediately in writing in the event of any levies of execution or other access to the product by third parties, as well as in the event of damage or destruction. The customer must inform us immediately of any change in ownership of the product or any change in the customer’s address.
(4) If the customer is in arrears with a payment, whether in whole or in part, or if he discontinues his payments, or should other justified doubt about his solvency or creditworthiness arise, or should there be a petition for the commencement of insolvency proceedings, or the commencement of insolvency proceedings, or the refusal of insolvency proceedings for insufficiency of assets, we have the right to extraordinary termination of, and withdrawal from the contract, and the right to reclaim the product from the customer.
(5) The business owner is entitled to resell the product in the ordinary course of business. In the case of reselling the product delivered under reservation of ownership, the business owner hereby assigns to us in full the purchase price claims he has against his customer or other third parties as a result of reselling our product.
(6) We reserve the right to collect the claim ourselves as soon as the business owner fails to fulfill his payment obligations from the collected proceeds of sale for reasons set out in paragraph (4). In this case, the business owner must make known to us the assigned claims and their debtors, provide the information necessary for collection, hand over related documents, and give notice of assignment of claims to the debtors.
§8 Transfer of Risk, Packing Charges
(1) Unless the order confirmation specifies otherwise, for the business owner as buyer, it is understood that delivery shall be ex works. The risk of accidental loss or accidental deterioration of the product shall pass to the business owner upon delivery, and in the case of sale to destination according to the buyer’s instructions upon the handing over of the object to the shipper, carrier, or the person or third party otherwise designated to undertake the shipment. Transport packaging and all other packaging in accordance with packaging regulations will not be taken back by the seller. The business owner is obligated to ensure the disposal of packaging at his own expense. If the business owner so desires, we will insure the delivery with transport insurance. The resulting costs shall be borne by the business owner.
(2) By contrast, for the consumer, the risk of accidental loss or accidental deterioration of the purchased object, including in the case of sale to destination according to the buyer’s instructions, shall only pass to the consumer upon the delivery of the object.
(3) If the customer is in default of taking delivery, delivery of the product shall be deemed to have occurred.
§9 Warranty
(1) to business owners:
(a) Warranty claims by the business owner require that the business owner notifies us in writing of all clear, visible defects, shortfalls, or wrong deliveries within seven (7) workdays after delivery. Externally visible transit damages and shortfalls are to be communicated by telephone and confirmed in writing immediately after delivery of the product. In the case of delivery by train, by vehicles of commercial short- and long-distance transport, or through any other transport authority, the business owner is to observe the required formalities—for example, official fact-finding by a railway company—with regard to the carrier. Otherwise, the assertion of the warranty claim is excluded. Punctual dispatch suffices to be in compliance with the time limit. Full burden of proof for all conditions of a claim, especially for the defect itself, for the time of the discovery of the defect, and for the timeliness of the notification of defects, lies with the business owner.
(b) In the case of a legitimate notification of a defective product within the prescribed time limit as defined by § 434 BGB (German Civil Code) we are, at our discretion, to remedy the defect or deliver an object free of defects. Where the defect is to be remedied, we are obliged to bear all necessary expenses with a view to remedying the defect, especially transport, road, labor, and material costs provided that such expenses are not increased because the object of sale was taken to a place other than the place of performance. Where a new object free from defects is to be delivered, the business owner is aware that deviations in form, color, and/or weight, etc., vis-à-vis the defective object delivered might occur as our products are unique works of handicraft.
(c) Should the supplementary performance fail, or should it not be provided within a reasonable period of time, or should it be refused, or should it be unreasonable for us due to exceedingly high costs, the business owner can demand the cancellation of the contract or diminution of the purchase price.
(d) In the case of products that are seconds, features of the products that led to the classification of the products as seconds are not defects.
(e) We are under no obligation to exchange products free from defects. Specially made items and/or special orders cannot be exchanged. Statutory claims based on material defects remain unaffected by this.
(f) In the case of the delivery of new objects, the statute of limitations for claims based on material defects made by the business owner shall be one year after the delivery of the products. By contrast, in the case of the delivery of used objects or of products that are seconds, warranty claims are excluded.
(g) We are responsible for damages arising from injury to life, body or health, or arising from breach of fundamental contractual obligations that we, our legal representatives, or our agents are guilty of causing. This also applies to the mandatory liability in accordance with product liability law. We are also responsible for damages that we, our legal representatives or our agents, have caused willfully or due to gross negligence. To the extent that we are not accused of willful breach of contract, liability for damages is limited to the foreseeable and typically occurring damages. The same applies to unintentional breach of fundamental contractual obligations.
(h) Insofar as nothing to the contrary has been established above, liability shall be excluded.
(2) to the consumer:
(a) Insofar as we are responsible for a defect in the object of sale, the consumer is entitled to demand supplementary performance (the remedying of the defect or the delivery of an object free from defects). We are, however, entitled to refuse the type of supplementary performance chosen by the consumer if such performance is only possible at unreasonable costs.
(b) Where the defect is to be remedied, we are obliged to bear all necessary expenses with a view to remedying the defect, especially transport, road, labor, and material costs provided that such expenses are not increased because the object of sale was taken to a place other than the place of performance. Where a new object free from defects is to be delivered, the consumer is aware that deviations in form, color, and/or weight, etc., vis-à-vis the defective object delivered might occur as our products are unique works of handicraft.
(c) In the case of products that are seconds, features of the products that led to the classification of the products as seconds are not defects.
(d) We are under no obligation to exchange products free from defects. Specially made items and/or special orders cannot be exchanged. Statutory claims based on material defects remain unaffected by this.
(e) Should the supplementary performance fail, the consumer can, in principle, at his discretion, demand a reduction in payment or withdraw from the contract.
(f) If, following a failed supplementary performance, the consumer chooses to withdraw from the contact due to a legal or material defect, he is not entitled to damages arising from the defect. If, following a failed supplementary performance, the consumer chooses compensation for damage, the product remains with the consumer if this is reasonable. Damages are limited to the difference between the purchase price and the value of the defective object. This does not apply if we have fraudulently caused the breach of contract.
(g) We are responsible for damages arising from injury to life, body or health, or arising from breach of fundamental contractual obligations that we, our legal representatives or our agents, are guilty of causing. This also applies to the mandatory liability in accordance with product liability law. We are also responsible for damages that we, our legal representatives or our agents, have caused willfully or due to gross negligence. To the extent that we are not accused of willful breach of contract, liability for damages is limited to the foreseeable and typically occurring damages. The same applies to unintentional breach of fundamental contractual obligations.
(h) Insofar as nothing to the contrary has been established above, liability shall be excluded.
(i) In the case of the delivery of new objects, the statute of limitations for claims based on material defects made by the consumer shall be 2 years after delivery. By contrast, in the case of the delivery of used objects or of products that are seconds, the statute of limitations for warranty claims shall be 1 year after delivery.
(3) Other Liability
(a) Liability for damages beyond what is provided for in paragraphs (1) or (2) is excluded regardless of the legal nature of the asserted claim. This applies in particular to claims to damages arising from culpa in contrahendo, on account of other breaches of duty, or on account of tort claims to compensation of damage to property in accordance with § 823 BGB (German Civil Code), or on account of loss of profit.
(b) Insofar as liability for damages in relation to us is excluded or limited, this shall also apply with regard to the personal liability for damages of our staff, employees, co-workers, legal representatives, and/or agents.
(c) The customer shall receive no guarantees in the legal sense from us.
§10 Data Protection
Data necessary for the business transaction will be collected and stored, and it will be processed and used within the framework of handling the order. The customer expressly agrees to this collection, processing, and use of personal data. All personal data will be treated confidentially; in this respect see our data protection notice on our website, www.kwm1924.de, and the explanations provided there. You can object to the additional use of your data for our own advertising purposes at any time by sending us a notice to this effect. Upon receipt of your objection, we shall discontinue any further dispatch of advertising material.
§ 11 Partial Invalidity
Should individual parts of this General Sales Terms and Delivery Conditions of the Keramische Werkstatt Margaretenhöhe GmbH be or become invalid, the validity of the remaining provisions will hereby remain unaffected.
§ 12 Place of Performance, Language, Place of Jurisdiction, Legal System
(1) If the customer is a merchant, legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract is our place of business. The same applies if the customer has no place of general jurisdiction in Germany or the place of residence or usual place of abode is unknown at the time of the institution of legal proceedings.
(2) The language of the contract is German. If the parties to the contract use another language, the German text has priority. All correspondence and other documents and materials shall be formulated in German.
(3) Unless otherwise specified in our order confirmation, our place of business shall be the place of performance.
(4) If the customer is a merchant, our place of business shall be the place of jurisdiction. We reserve the right, however, to assert our claims in any other authorized jurisdictional venue.
(5) The legal requirements of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980.