General Terms and Conditions
1. General Information
1.1. We deliver exclusively in accordance with the following terms and conditions. Conflicting or differing terms and conditions of the purchasing party are not accepted by us, even if we do not explicitly express our objection.
1.2. These terms also apply for all future deliveries, even if no explicit reference of copy of the terms is provided in each individual case.
1.3. Our offers are nonbinding and without obligation. A binding contract is only established if the customer receives our written order confirmation or if the products are delivered. Our sales representatives merely arrange contractual agreements. They are not authorized to act as legal representatives of our company.
2. Drafts, Samples (Prototypes), and Forms
2.1. We reserve all rights if we develop or improve products for the ordering party. All drawings, samples, and models, as well as drafts of all kinds remain our property. Our products are made based on customer orders. When payment is received, the rights of production and reproduction are not transferred to the ordering party or any third party. Products that have been developed by us must not be copied or provided to any third party unless we give our explicit consent.
2.2. Deep drawn forms, die cast forms, or any other forms, samples, or models that are made by the ordering party or made upon the request of the ordering party, but that have been developed by us, must not be copied or provided to any third party without our explicit consent. The ordering party and Dekora-Design agree that such forms, samples, or models become our property. If such forms, samples, or models are not in our direct possession, the ordering party agrees to store them properly. This does not result in an obligation on our end to pay for such forms, samples, or models. We are authorized to destroy the forms, samples, or models if no repeat order is has been placed after one year following the last order.
3. Delivery / Lead Time
3.1. The agreed lead time does not start until all documents that are necessary for execution of the order have been received and, if an advance payment has been specified, such an advance payment has been received.
3.2. Delivery dates and deadlines are only estimated. If goods are picked up by the ordering party as agreed, the lead time is considered fulfilled, if the goods are ready for shipping by the agreed delivery date. If products are sent to the ordering party, the lead time is considered fulfilled, if the products are handed over to the freight forwarder by the end of the agreed lead time.
3.3. We are authorized to send partial shipments. Partial shipments are billed separately and are to be paid in accordance with point 8 of these terms and conditions.
3.4. Our supply obligation is subject to correct and timely delivery from our suppliers. If one of our suppliers is unable to deliver within the specified time, we will inform the ordering party as soon as possible.
3.5. Delivery delays due to acts of God / force majeure, riots, strikes, lockout risks or any other disruption of operation that lies beyond our own control (this also applies for our suppliers), the lead time is extended by at least the time needed to rectify the situation. We reserve the right to terminate or cancel contracts in part or in full without any right to claims for indemnity for our customers if the disruption in operation is of a continual nature. We inform the ordering party about any disruptions of operation at the earliest convenience.
3.6. Compliance with the agreed lead time is subject to the compliance of the ordering party with all contractual obligations.
3.7. We reserve the right to deliver 10% more or 10% less of the ordered quantity.
4. Transport / Transfer of Risks
4.1. The ordering party is responsible for all costs related to the transport of goods.
4.2. The ordering party is responsible for all risks associated with the transport of the goods, regardless of the shipping location or the type of shipping. This also applies if we, as an exception, ship as CPT.
4.3. In case of a customer pick up, the risks are transferred to the ordering party at the time when readiness for dispatch is announced.
5. Reservation of Proprietary Rights
We reserve all proprietary rights on all products sold by us until payment has been made in full and all contingent liability rights have been waived by the customer. The ordering party is authorized to modify or sell the goods in accordance with the following regulations:
5.1. The rights of the ordering party to process goods that are subject to retention of title end, notwithstanding the permissible revocation by us in case of delay of the ordering party, once the ordering party has stopped payment or started insolvency proceedings.
5.2. By modifying the goods that are subject to retention of title, the ordering party does not gain the proprietary right in accordance with § 950 BGB (German Law) on a new product. If the goods that are subject to retention of title are processed, mixed or otherwise modifies using different objects, we automatically gain co-ownership on the new product in the ratio of the value of our goods that are subject to retention of title to the overall product value.
5.3. The ordering party herewith assigns all claims from the resale or other sales transactions, such as contracts for work and services, including all ancillary rights to us. This is done pro rata if the products have been processed, mixed or modifies in accordance with the amount of the amount owed to us in which we have gained co-ownership. Based on this assignment / cession of goods, we are entitled to an amount that is defined by the ratio of amount owed to us for our goods that are subject to retention to the value of the product. If the ordering has sold the debt claim as part of a true factoring, the rights on the compensating claims from the factor / factoring bank are transferred to us. We hereby accept the cession / assignment.
5.4. As long as the ordering party does not delay payment, we will not exercise our right to collect the cession / assignment. The direct debit authorization is voided in case of payment default by the ordering party. In that case, the ordering party authorizes us to inform the account debtor about the cession / assignment and to collect the owed amounts on our own. The ordering party is obligated to provide us with a detailed list of all open amounts owed to the ordering party, incl. names and addresses of account debtors, amounts of the individual debts, invoice dates, and all other information needed for the collection of the cessions / assignments and to permit us to verify the provided information accordingly. Amounts received by the ordering party that are part of cessions / assignments are to be kept separate and to be reserved for wire transfer to us. The ordering party is obligated to try and collect debts directly unless otherwise specified by us.
5.5. We already now release all fully paid deliveries if the security provided by the retention of title exceeds the claim that is to be secured by 10%.
5.6. Garnishment or transfer of ownership of goods that are subject to retention of title or cessions / assignments is not permitted. We are to be informed about all garnishments and the applicable garnishers immediately.
5.7. We can do with returned goods that are subject to retention of title as we please to compensate for open debts.
5.8. The ordering party stores the goods that are subject to retention of title free of charge. Furthermore, the ordering party is obligated to insure the goods against hazards, such as fire, theft, and water damage to cover common amounts offered by insurance companies. The ordering party hereby assigns any claims for damages that are to be paid by insurance companies to us in the amount of the debts owed to us. We hereby accept the assignment / cession of such claims.
6. Claims / Indemnification and Cancelation due to other breach of duty
6.1. In case of legitimate claims, we will satisfy such claims with our choice of either corrective measures or replacement deliveries. In case of corrective measures, we are responsible for all costs associated with the corrective measures, such as transport, travel expenses, labor and material costs, unless such costs are increased due to use of the purchased goods at a different location than the one specified as the place of fulfillment. Furthermore, the ordering party is entitled to all statutory rights, especially the right to cancel the contract or request a cost reduction, as long as the legal requirements for such an entitlement are satisfied.
6.2.Indemnification claims of the contractual partner against us, our legal representatives and vicarious agents, as well as assistants, regardless of the legal grounds for such claims, especially due to payment default and the German Law §§ 280 ff BGB, are hereby explicitly excluded, unless the claim of our contractual partner is based on:
6.2.1. injury of life, body, or health due to an intentional or negligent breach of duty by us, one of our legal representatives, or vicarious agents, or
6.2.2. intentional or negligent breach or violation of an essential contractual obligation (material contractual obligation) by us, one of our legal representatives, or vicarious agents, or
6.2.3. intentional and grossly negligent breach of duty by us, one of our legal representatives, or vicarious agents or the malicious concealment of a defect, or
6.2.4. the product liability law.
6.3. In case of a breach of an essential contractual obligation based on negligence in accordance with section 2.2, the possible limit for indemnification claims is based on typically expected and foreseeable damages, unless the conditions described in (2.1) or 2.3 or 2.4 apply. The statutory burden of proof applies.
6.4. The mentioned limitations do not apply if we have guaranteed the exercise risk or a warranty.
6.5. If no conflicting agreements have been made, our contractual partner has the right to cancel the contract if the purchased goods are defective or other statutory cancelation rights apply. In case of a breach of duty that does not result in a defect of the purchased goods, the contractual partner may only cancel the contract if the statutory requirements for such a cancelation are satisfied and if we or our legal representatives or vicarious agents are responsible for the breach of duty. The statutory burden of proof applies.
7. Limitation Period for indemnification claims
Claims made by our contractual partners due to material defects fall under the statute of limitation after one year, unless
7.1. the delivered product has been used as intended for a construction and has caused the defect of that construction or
7.2. it is a claim for reimbursement of expenses in accordance with German Law §§ 478 Abs. 2, 479 Abs. 1 BGB or
7.3. The defect is based on an intentional breach of duty by us, one of our legal representatives, or vicarious agents. In case of section 7.1. to 7.3. and for indemnification claims that have not been excluded under section 6.2, the statutory limitation periods apply. The statutory regulations regarding suspension of a time limit, suspension of statute of limitations and regarding the start date or new start date for the statute of limitation remain valid.
8. Prices / Due Dates / Payment Default/ Offsetting
8.1. Invoices become due immediately upon receipt and shipping of the goods, even if a cash discount period is specified.
8.2. In case of payment default, late payment interest in the amount of 12% of the open balance and at least 8 basis points over the base rate in accordance with § 288 Abs. 2 BGB are to be paid. If the 12% interest rate exceeds the statutory interest rate in accordance with § 288 Abs. 2 BGB, the burden of proof is with the ordering party to demonstrate that the claim made for damages due to payment default is not justified or only justified in part. We reserve the right to enforce a higher claim for damages due to payment default.
8.3. If the ordering party is in payment default, all agreed charges become due immediately even if we accepted a promise to pay or other extension agreements for such charges.
8.4. If the financial circumstances of the ordering party worsen drastically and if this leads to a potential risk for us that could jeopardize payment of debts owed to us by the ordering party, we are entitled to demand securities or advance payment. This also applies if we were unaware of such circumstances at the time when the contract was signed. If advance payments or securities are not provided by the ordering party despite notifications and reasonable deadlines, we are authorized to cancel the contract or file an indemnification claim. In the mentioned cases, advance payment or transfer of securities must not depend on the return of a current promise to pay.
8.5. An offsetting of our claims with counterclaims is explicitly excluded unless the counterclaims are uncontested and legally binding. The enforcement of a right of retention by the ordering party is explicitly excluded, unless it is based on the same contractual relationship or the counterclaims are uncontested and legally binding.
8.6. Our sales representatives are not authorized to collect open debts.
9. Pre-agreed Indemnificatio
If the ordering party cancels the contract prior to the start of production, the ordering party owes us a pre-agreed indemnification amount of 60% of the contract value unless the ordering party can prove that the actual damage caused is lower than that. If the actual damage is higher than 60% of the contract amount and if we are able to prove that, we are entitled to claim the higher amount.
10. Place of Jurisdiction, Applicable Law
Place of jurisdiction for all claims, including those arising from promises to pay or checks, shall be Detmold if the ordering party is considered a merchant. However, we reserve the right to hold the ordering party accountable at the general place of jurisdiction of the ordering party. The laws of the Federal Republic of Germany apply exclusively. The standardized UN purchasing right under the United Nations Convention on Contracts for the International Sale of Goods is excluded.