of WM Wöstmann Markenmöbel GmbH & Co. KG (as of October 2016)
Section 1 Applicability, Conclusion of Contract
These General Terms of Supply and Payment apply exclusively to the provisioning of commercial customers with our products (so-called B2B business).
We shall only execute orders in line with these Terms of Sale and Delivery. Any deviating terms of purchase stipulated by the ordering party, insofar as these deviate from these conditions, shall not be valid even if they formed the basis of the order, and we did not expressly reject their content.
Any orders accepted by field representatives or other company representatives require our written confirmation. We reserve the right to the intermediate sale of merchandise on offer.
Any deviating agreements from these Terms of Supply and Payment as well as ancillary agreements, changes or supplements shall only be deemed effective with our written confirmation. Should this fail to materialise, the effectiveness of the contractual regulations shall hereby remain unaffected.
If these Terms of Supply and Payment were made available to the ordering party, they shall become effective from the point in time of notification, including for all potential and future business transactions with the ordering party.
Section 2 Prices, Packaging
Our prices are stated net ex-works. Value-added tax (VAT) is calculated separately in the applicable amount on the respective day of invoicing. We are obligated to the prices agreed for an order for four months from the point in time of contract completion. We shall be authorised in instances involving longer delivery deadlines, in the event of increased material and salary costs, to factor in a proportional premium for the occurrence of these increase costs, on the basis of our original price calculation.
Any pallets on loan shall remain our property and shall be returned to us in perfect condition upon the next delivery, however no later than within one month from the point in time of delivery. Should the pallets not be returned to us within one month, we shall issue an invoice for the costs incurred. Our prices assume that transport packaging is disposed of by the ordering party. If transport packaging is returned to us, the costs incurred for the return transport shall be borne by the ordering party. In this case, the transport packaging must be clean and free from foreign articles, and have been sorted prior to transport according to the different packaging materials. We shall otherwise be authorised to demand reimbursement from the ordering party for its disposal.
Section 3 Delivery Times
Delivery schedules and deadlines shall be taken from the order confirmation. These shall be non-binding if we have not expressly issued our binding agreement to these in writing.
Compliance with delivery schedules and deadlines is premised on the timely and contractually compliant fulfilment of obligations by the ordering party. If compliance with a delivery schedule or a delivery deadline shall become impossible due to the occurrence of circumstances not attributable to us, the delivery time shall be extended by the duration of this impediment.
With regard to non-transportable merchandise, a delivery schedule/a delivery deadline shall be deemed complied with when the merchandise is made available in line with the schedule, and the ordering party is notified of its availability for collection.
If a delivery schedule cannot be met, this shall lead to a right of withdrawal for the ordering party, when this ordering party has, prior to this event, afforded us an appropriate period of grace, which must be a minimum of four weeks. Section 8 shall apply for any claims to compensation attributable to non-compliance with delivery schedules or deadlines.
Section 4 Delivery and Dispatch
Delivery and dispatch by heavy goods vehicle, freight forwarding, post or rail is done so at the risk of the recipient, even with prepaid freight. With the release of the merchandise to the appropriately selected freight forwarder, no later than upon departure from the factory or our warehouse, the risk of accidental loss or impairment of the merchandise shall be transferred to the ordering party, irrespective of whether the dispatch is made from the place of fulfilment. The occurrence of any damage does not grant refusal to accept delivery. It shall remain the responsibility of the ordering party to have any breakage and/or transport damage certified by the freight forwarder on the certificate of delivery or freight note, and to consult with the responsible individual and/or the freight forwarder regarding compensation for any damage incurred.
In instances of force majeure – such as war or a state of emergency, government orders, civil unrest, transport disruptions, involuntary damage to goods, strikes, lockouts or disruptions to operations in our facilities or those of our suppliers – which render the execution of orders impossible, or delay or significantly inhibit such execution, we shall be permitted – under the exclusion of any form of claim made by the ordering party for compensation or any potential contractual penalty – to delay delivery by the duration of the impediment, or to withdraw from the contract.
In the event of a freight-prepaid delivery the ordering party shall not be permitted, in the event of the non-prepayment of freight by us, to refuse payment of the freight or the acceptance of delivery for this reason. The freight rates valid on the day of delivery shall apply.
Should a reminder issued to the ordering party, requesting the timely fulfilment of contractual obligations pertaining to a case of merchandise collection by the customer or similar instances, remain unsuccessful in whole or in part after the expiration of a period of one week, we shall be authorised to withdraw from the contract or demand immediate payment.
We shall be authorised to execute partial deliveries and to invoice separately for partial deliveries.
We shall insure the dispatch of merchandise only upon the express wish of the ordering party, the cost of which shall be borne by the ordering party. Packaging, which is not included in our sales prices, shall be invoiced to the ordering party at cost price.
Section 5 Payment
Our invoices are, unless otherwise agreed on a case-by-case basis, payable within 45 days after the invoice date, without deduction. If the ordering party pays within 30 days from the date of invoice, we shall grant a 5% trade discount, calculated from the net merchandise value of the respective invoice. The right to deduct trade discount shall then only exist when all invoices due for payment from prior deliveries of merchandise to the ordering party have been paid in full.
If payment is not made by the due date, the ordering party shall be required, subsequent to repeated reminders by us, to pay default interest in the amount of 9 percentage points above the respective base rate pursuant to Section 247 of the German Civil Code (BGB). Verification and the assertion of an additional claim for damages attributable to delay shall hereby remain unaffected. Should the ordering party fall into default with regard to the payment of a sum of money, all other payment terms relating to other outstanding amounts owed to us shall become void and result in the demand for immediate payment, without necessitating any further explanation.
Bills of exchange and cheques will be accepted on account of payment. Costs and expenses shall be borne by the ordering party. Payments involving cheques and bills of exchange shall be viewed as payment only after the cheque or bill of exchange has been cashed.
The ordering party may only assert claims against our demands in its own right, when these are undisputed or have been declared legally binding.
The ordering party shall be granted a right of retention only with regard to demands for payment stemming from the same contractual relationship, which are undisputed or have been declared legally binding. In the event of defects found in parts of a delivery, the ordering party may only withhold payment in the amount corresponding to the value of the defective part of delivery.
Section 6 Reservation of Title
The merchandise delivered shall remain our property, up until the point in time of complete payment, as well as after the payment of outstanding sums stemming from the business relationship between us and the ordering party after successful delivery. The addition of individual demands into a current invoice as well as account balancing and its acknowledgement shall not affect the reservation of title.
The ordering party is obligated to obtain sufficient insurance cover for merchandise subject to a reservation of title, against fire, burglary, theft and water damage. Any insurance claims shall hereby be transferred to us now in the amount of the respective merchandise value subject to an insurance claim.
Any seizures of property subject to a reservation of title are to be registered with us immediately in written form. The creditor shall be informed immediately by the ordering party of our reservation of title.
The ordering party is authorised, until the point in time of revocation, to sell merchandise subject to reservation of title as part of his or her ordinary business operations. The merchandise may not be given away, pledged or conveyed to third parties as collateral. The demands vis-à-vis the customers of the ordering party as a result of the resale shall hereby be transferred to us now as part of the continued protection of our demands for payment stemming from the business relationship with the ordering party. The ordering party is authorised, until the point in time of revocation, to collect the demands owed to us in trust which are the result of the resale of property subject to a reservation of title. Any resale or collection authority can be revoked by us at our discretion, if the ordering party fails to fulfil his or her contractual obligations vis-à-vis our company.
The pledging of receivables owed to the ordering party, which have already been transferred to us due to the extended reservation of title, are to be notified to us immediately with the transfer of any information and documentation required for an intervention. The ordering party shall inform us without delay in the event that his or her property becomes the subject of a forced sale or sequestration. All creditors to the ordering party as well as any authorities tasked with the enforcement of court orders, which have acquired (or announced their intention to acquire) access to the property subject to a reservation of title, are to be informed immediately of our reservation of title.
Upon our request, the ordering party shall at any time and without delay provide us with any requested information pertaining to reserved goods and the claims transferred to us in accordance with the above.
We are obligated to release any collaterals owed to us in accordance with the above provisions without delay and upon request by the ordering party, to the extent that the nominal value of the collaterals exceeds the total amount of demands requiring collateralisation by 50% or more. The selection of those items used for collateralisation to be released subsequent to a fall below this cover limit shall remain our responsibility.
Furthermore, in the event of default, i.e. upon the non-fulfilment of payment obligations by the ordering party vis-à-vis our company, including after an appropriate period of grace has been granted, the property subject to a reservation of title is to be transferred back to us upon our request with freight prepaid and free of all charges, whereby we shall be entitled to remove the goods on the basis of the irrevocable permission granted by the ordering party. In this instance we are also permitted, but not obligated, to dispose of the property subject to a reservation of title, as we see fit, either freely or by way of auction sale, and to offset the proceeds with the remaining net purchase price.
Section 7 Warranty
The ordering party is obligated to inspect any received goods immediately after receipt for their integrity and any recognisable defects. Defects, incorrect quantities and even duplicate deliveries are to be notified to us in written form without delay, but no later however than a time limit of four working days from the point in time of receipt (Monday to Friday, except for statutory public holidays which apply to the headquarters of the ordering party and/or in the event of a deviating delivery address). Any hidden defects which remain undetectable for the ordering party as part of a goods-in inspection conducted with due care, are to be notified to us in written form within the above-stated time limit, which begins with the discovery of the defect.
Furthermore, statutory regulations shall apply for the warranty. Any claims for damage due to a defect found in the merchandise shall be subject to the limitations pursuant to Section 8 below.
Section 8 Liability, Damages
We shall be liable without limitation for damages
in the event of injury to life, body or health, which is attributable to a deliberate and negligent breach of obligation by us, our legal representatives or our vicarious agents, as well as
in the event of other damages, which are attributable to a deliberate and grossly negligent breach of obligation by us, our legal representatives or our vicarious agents.
In other respects, our liability to pay compensation for damages is excluded, unless at the very least it concerns a slight negligent breach of a substantial contractual obligation (cardinal obligation), i.e. an obligation which is decisive for the legal compliance with, and orderly fulfilment of, the contract and upon the orderly fulfilment of which the ordering party may particularly rely. In this instance – and insofar as it does not concern a case listed under point 1 – our liability shall be limited to the amount deemed typical for the payment of compensation for (otherwise foreseeable) damages upon a breach of this type of contractual obligation; any further liability for atypical, unforeseeable damages is excluded.
The regulations stipulated by product liability law shall hereby remain unaffected.
Section 9 Final Provisions
German law shall apply exclusively for all orders issued to us, and under the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
The exclusive place of jurisdiction for any legal disputes stemming from, or in connection with, our business relationship to the ordering party is Gütersloh.
The data required for the processing of business transactions shall be recorded, stored and processed by us in compliance with statutory data privacy provisions.
Should individual clauses of these General Terms of Supply and Payment be or become ineffective, the validity of the remaining clauses shall hereby remain unaffected. Statutory regulations shall apply in place of the affected clause.