General Terms and Conditions of B Mannequin GmbH
Section 1 General / Scope of Application
(1) These General Terms and Conditions apply exclusively to all of our offers and contracts relating to deliveries of goods and provision of services even if no express reference has been made thereto. All agreements entered into between us and the ordering party, for the purpose of implementing this contract, must be set forth in writing in this contract. We will not accept any general terms and conditions of the ordering party diverging herefrom unless we expressly agree to their validity in writing. We will not be bound by such terms and conditions even if we have not expressly objected to them or if we deliver our goods or provide our services for the ordering party without reservation.
(2) Our commercial agents or travelling salespersons act as agents only and they are not authorised to conclude legal transactions.
(3) Our General Terms and Conditions only apply for entrepreneuers, corporate bodies organised under German public law [juristische Person des öffentlichen Rechts] or specialized agencies subject to German public law [öffentlich-rechtliches Sondervermögen] to the purposes of Section 310 Paragraph 1 of the German Civil Code [BGB].
Section 2 Offer and Offer Documents – Copyright
(1) Any prices and delivery options indicated in our offers, brochures, price lists and other documents are not binding. Orders will only become binding on us if and to the extent that we have confirmed them or if they have been fulfilled by dispatching the goods or sending the invoice. All specifications, such as structural-physical values, dimensions, weight, figures, descriptions, calculations, assembly charts and drawings in pattern books, price lists and other printed matters are only approximations but defined to the best of our abilities, albeit not binding. They do not guarantee any qualities. The same applies to information given by the suppliers.
(2) All documents belonging to our offer, such as patterns, figures, drawings, calculations and weight specifications (offer documents) are only approximate. Changes, in particular with respect to construction and material, are reserved provided that the object of the contract and its function are not substantially modified and the changes are reasonable for the ordering party.
(3) We reserve title to and copyright of cost estimates, patterns, films, printed matters and other documents; they may not be disclosed, whether in full or in part, to third parties; at our request, all documents must be returned. Production drawings will not be issued.
(4) We retain the copyright and duplication rights to all our drafts, sketches, patterns, films and printing material unless expressly agreed otherwise. Reprinting or reproduction of our drafts, including those not covered by copyright or any other industrial property right, require our prior written consent.
(5) The customer must check all galley proofs for typographical errors and other errors and return them to us declaring them ready for printing. We will not be liable for any errors that are overlooked by the customer. We assume no liability for changes requested by telephone. We assume no liability for originals, manuscripts and other objects, such as photos and the like, that were provided to us and whose return has not been requested by the customer within two weeks after completion of the order.
(6) On base of the cooperation between client and contractor, the client allows the contractor to use the project results as references. Until the client expressly rejects the use of reference photos to contractor, the photos of the project results are available to the contractor and can be used for advertising purposes.
Section 3 Delivery
(1) The delivery time specified by us will only start to run after all technical issues have been clarified and compliance with this time depends on the ordering party performing all duties to cooperate in a timely and proper manner. If the ordering party negligently fails to perform any of the duties to cooperate or if the ordering party falls into default of acceptance, we will be entitled to claim compensation for the damage incurred, including any additional costs resulting therefrom. Additional claims or rights are reserved. The risk of loss or deterioration of the purchase item will pass to the ordering party if the ordering party falls into default of acceptance.
(2) Unless otherwise provided for, delivery times given by us shall be deemed to be complied with if the ordered goods have left our factory or warehouse. The ordering party will only be entitled to claim the rights the ordering party may have due to any non-compliance with delivery dates and delivery periods after the ordering party has granted a reasonable grace period (waiting period) of at least 7 calendar days.
(3) In case of a Force Majeure event, the ordering party may only fix the grace period after this event has ceased to exist. In addition, Force Majeure events prolong the delivery time by the time of their existence. Force Majeure events include but are not limited to: natural disasters, war, strike, energy and raw material shortages, import and export bans, embargoes, operational breakdowns.
(4) If the customer is in default of payment for a previous delivery, we will be entitled to retain deliveries without being obligated to pay compensation for any damage that may result from this.
(5) We are liable for delays in delivery according to the statutory regulations insofar as the underlying contract of sale is a transaction for delivery by a fixed date [Fixgeschäft] (Section 286 Para. 2 No. 4 German Civil Code [BGB], Section 376 of the German Commercial Code [HGB]). Furthermore, we are liable for delays in delivery according to the statutory regulations if the delay in delivery is due to a wilful or grossly negligent breach of contract on our part. If the delay in delivery is due to a grossly negligent breach of contract on our part, our liability for compensation is limited to the foreseeable damage that may typically be expected.
(6) In addition, we are liable for delays in delivery according to the statutory regulations if we culpably infringe an essential contractual obligation, i. e. contractual obligations, the fulfilment of which is essential for the proper implementation of the contract and the observance of which the buyer may regularly rely on. In this case, liability for compensation is also limited to the foreseeable damage that may typically be expected.
(7) Except in the cases referred to in paragraphs (5) and (6) above, we are liable for paying liquidated damages for delays in delivery that we are responsible for to compensate for the ordering party’s damage caused by the delay after the waiting period has expired. The liquidated damages will be 0.5% of the net price for each full calendar week of delay, but its overall amount may not exceed 5% of the net price of the goods delivered with delay. However, we will be entitled to provide proof that the ordering party has not incurred any damage at all or that the damage incurred was less than the afore-mentioned liquidated damages. The ordering party’s right to rescind the contract according to the statutory provisions remains unaffected. All further liability on our part is excluded. The ordering party will lose the right to receive liquidated damages if the ordering party fails to claim such damages in writing within a period of 6 months after the time when the delivery should have taken place.
(8) We are entitled, to a reasonable extent, to make partial deliveries. They will be deemed to be concluded transactions and can be billed accordingly.
(9) Unless otherwise agreed upon, all risks, including but not limited to the risk of seizure, will pass to the ordering party when notice of readiness for dispatch is given, when the goods are handed over to the forwarder or carrier, at the latest, however, when the goods leave the factory or warehouse. This also applies if the supplier has taken over the insurance of the goods.
Section 4 Prices / Terms of Payment
(1)Unless otherwise agreed upon, all prices are ex works, excluding packaging which will be billed separately. The applicable statutory value added tax will be added to these prices. Place of payment is the city of Fürth.
(2) The prices are net cash and payable within 30 days from the date of invoice. However, we reserve the right to make deliveries conditional upon immediate payment. Irrespective of this, a deposit to the amount of 30% must be paid when the order is placed, 40% must be paid upon the start of production and the remainder of the total order value must be paid after acceptance.
(3) The goods are packaged according to customary trade and commercial practices and billed at cost price. If the buyer expressly requests a specific mode of shipment, we reserve the right to charge any extra costs incurred by us to the buyer.
(4) When a default in payment occurs, the actual credit costs incurred, but no less than default interest to the amount of 5 percentage points above the base rate, will be charged.
(5) We reserve the right to decide on the acceptance of bills of exchange and cheques on a case-by-case basis. They will be credited subject to the usual proviso. We will charge customary bank discount and collection charges.
(6) In the event that a bill of exchange or cheque is not cashed on time, or circumstances arise for the customer which, in our opinion, no longer justify the granting of a credit term, we will be entitled to make all accounts receivable due immediately.
(7) The ordering party is only entitled to set-off rights and rights of retention if the ordering party’s counterclaims have been established as final and absolute, are undisputed, or have been acknowledged by us. However, the ordering party is only entitled to offset or withhold payments to the extent that the ordering party’s counterclaim is based on the same contractual relationship.
Section 5 Custom-Made Products, Tools, Films and Printing Material
(1) When products are made according to customer specifications or products are custom-made, cancelling the respective order or terminating the order is not possible. This is without prejudice to the right of termination of contract for serious reasons. Unless expressly agreed upon otherwise, only the dimensions given to us by the customer will be binding. Thus, our customer is solely responsible for taking exact measurements. When products are custom-made according to customer specifications, the ordering party assumes liability for ensuring that the use of any drawings, patterns and similar aids does not infringe upon any third party rights. The ordering party must indemnify us and hold us harmless, upon first request, from and against any disadvantage that may arise to us from this. If excess deliveries or short deliveries of +/- 10% of the original order quantity occur during the production of custom-made products, the customer is obligated to accept any excess deliveries at the prices agreed upon while we are not obliged to deliver any short deliveries up to the amount mentioned above.
(2) Tools, films and printing material always remain our property even if they have been made especially for a special article of our customer and even if it has been agreed that our customer assumes a proportionate share of the tool costs. Proportionate tool costs will not be reimbursed unless an amortisation of such costs has been expressly agreed upon with us in a particular case. We undertake that we will not use the tools adapted by us for a specific customer order for the execution of third-party orders within a period of 12 months from completion of the respective tool or, if this period is more favourable for the customer, from delivery of the last order to the customer. Similarly, we undertake to keep films and printing material for existing customer orders for 12 months from delivery of the last order. After expiry of the above-mentioned period, we are free to use all tools, films and printing material as we see fit.
Section 6 Warranty
(1) In no event, will we guarantee that the goods ordered are suitable for the purpose envisaged by the ordering party and that they can be used or processed under the conditions present at the premises of the ordering party or the ordering party’s customer. Rather, it is the ordering party’s responsibility to try this prior to use or processing.
(2) Claims asserted by the ordering party in respect of defects shall be subject to the proviso that the ordering party has duly met the relevant obligations to inspect the goods in question and to give notice of defects in accordance with Section 377 of the German Commercial Code (HGB). Therefore, the ordering party must notify us in writing of any defects in the delivered goods which can be found during an expedient inspection in the normal course of business without delay but not later than within one calendar week. If a defect becomes apparent later on, notification must be made immediately upon discovery, but not later than within one calendar week of discovery. If the ordering party fails to make immediate or timely notification of a defect or if the goods are modified after the defect has been discovered or could have been discovered, all warranty claims on the part of the ordering party are excluded.
(3) The buyer is not entitled to any warranty claims if the cause of the occurred defects or flaws is related to the fact that the buyer has failed to allow the seller the opportunity to investigate the defect and that the buyer has failed to immediately provide the defective goods or samples thereof upon the seller’s request or if the buyer has already processed the goods in any other way.
(4) Defects relating to a portion of the delivered goods do not entitle the ordering party to reject the delivery in its entirety.
(5) Insofar a defect exists, we have the choice between removing the defect or delivering replacement goods. If removal of defects takes place, we are obligated to assume all expenses necessary for the purpose of removing the defect, including but not limited to transportation, shipping, labour, and material costs, provided that said costs are not increased by the fact that the purchase item was transported to a place other than the place of performance.
(6) If removal of defects / delivery of replacement goods fails, the ordering party has the choice to either request cancellation of the contract (rescission) or a corresponding reduction of the purchase price (price reduction).
(7) We are liable according to the statutory provisions insofar as the ordering party asserts claims for damages based upon intent or gross negligence, including but not limited to intent or gross negligence committed by our representatives or vicarious agents. Unless we are accused of deliberate breach of contract, our liability for compensation is limited to the foreseeable damage that may typically be expected.
(8) In addition, we are liable according to the statutory regulations if we culpably infringe an essential contractual obligation, i. e. contract obligations, the fulfilment of which is essential for the proper implementation of the contract and the observance of which the buyer regularly relies on. In this case, liability for compensation is also limited to the foreseeable damage that may typically be expected.
(9) Liability arising from culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability in accordance with the German Product Liability Act (Produkthaftungsgesetz).
(10) Unless otherwise provided hereinbefore, liability is excluded.
(11) The warranty period is 12 months from the passing of the risk. This does not apply if the purchase item is normally used in edifices and has caused the defect. In the event of a delivery recourse according to Sections 478, 479 of the German Civil Code [BGB] the statutory period of limitation remains unaffected.
(12) If the buyer is a registered merchant [Vollkaufmann], we will not guarantee goods delivered to the seller by third parties provided that the seller’s upstream supplier provides full compensation. In this case, the seller undertakes to immediately disclose the supplier for the purpose of laying claims. The seller assigns any warranty claims the seller may have against the seller’s supplier to the buyer. If replacement delivery by the supplier is not possible or unreasonable for the ordering party, the ordering party will be entitled to assert the warranty rights against the seller.
(13) Construction elements
If the seller takes over the installation, mounting or assembly of construction elements, the German Construction Work Procedures [Verdingungsordnung für Bauleistungen] -(VOB) and in particular the General Contractual Terms for the Execution of Construction Work [Allgemeine Vertragsbedingungen für die Ausführung von Bauleistungen] (VOB, part B) and the General Technical Terms for Construction Work [Allgemeine Technische Vorschriften für Bauleistungen] (VOB, part C) are part of all offers and contracts relating to such construction work.
(14) Warranty for work performance
We assume liability for work performance according to Section 13 VOB/B, which takes precedence over these General Terms and Conditions, i. e. no longer than for two years. The following applies to all other work performance: If notifications of defects are justified, we undertake to, at our option, either remedy the defect or deliver replacement goods. If rectification of defects or replacement deliveries do not take place within a reasonable period of time of if they irreversibly fail, the ordering party can request, at the ordering party’s option, reduction of the purchase price or rescission. We will only assume liability for apparent and/or identified defects if we are notified of them in writing within two weeks. Further obligations of the merchant according to Sections 377, 378 of the German Commercial Code [HGB] remain unaffected.
Section 7 Reservation of Title
(1) The goods delivered by us remain our property until the buyer has settled all accounts receivable resulting from the business relationship, including but not limited to current account balance claims and refinancing or return bills.
(2) The buyer is entitled to sell the goods delivered by us in the normal course of business. We are entitled to revoke the buyer’s authorisation to resell by way of written notice if the buyer defaults on his obligations towards us, in particular his payments, if payments are suspended or if the opening of composition proceedings or insolvency proceedings has been requested.
(3) The buyer's right to process the goods delivered by us is also subject to the limitations set out in paragraph 2 above. If the buyer processes the goods, the buyer does not acquire ownership of the fully or partly processed items; such processing will be undertaken without consideration exclusively on behalf of us in our capacity as producer to the purposes of Section 950 of the German Civil Code [BGB]. However, if our reservation of title expires due to any circumstances, the buyer and we hereby agree that the ownership in the items will be transferred to us at the date of processing, that we accept this transfer of ownership and that the buyer remains the custodian of the items without remuneration.
(4) If the reserved goods are processed or inseparably mixed with other goods not belonging to us, we will acquire co-ownership of the new items or mixed stock. The proportion of co-ownership is determined by the ratio of the invoice value of the goods delivered by us, and the invoice value of the remaining goods.
(5) Goods in which we have acquired ownership or co-ownership according to paragraphs (3) and (4) above, and goods delivered by us under reservation of title according to paragraph (1) above will be regarded as reserved goods to the purposes of the provisions below.
(6) The buyer hereby assigns all claims arising from the resale of the reserved goods to us. Claims arising from the resale include but are not limited to the claims against the bank that opened or confirmed a letter of credit for the benefit of the buyer (=reseller) during the resale process. We hereby accept this assignment. If the reserved goods are processed items or mixed stock, containing, in addition to the goods delivered by us, only items that are either the buyer's property or that have been delivered to the buyer by a third party under the so-called ordinary reservation of title, the buyer will assign all claims arising from the resale of the goods to us. Otherwise, i. e. in the case that preassignments to us and other suppliers coincide, we are entitled to a fraction of their respective purchase price, such fraction corresponding to the ratio of the invoice value of our goods and the invoice value of the remaining processed or mixed goods.
(7) Insofar as it is unequivocally established that more than 110% of the total amount of our claims are secured by the assignments or reservations declared above, the surplus of the outstanding amounts or the reserved goods will, at our discretion, be released upon the buyer’s request.
(8) The buyer is entitled to collect outstanding amounts from the resale of the goods. Such collection authorisation ceases to exist if the buyer no longer has a normal course of business. In addition, we are entitled to revoke the buyer’s authorisation to collect if the buyer defaults on his duties towards us, in particular his payments, or if payments are suspended or if the opening of composition proceedings or insolvency proceedings has been requested. If the collection authorisation ceases to exist or if it is revoked by us, the buyer must, at our request, immediately notify us of the debtors of the assigned claims and provide any information and all documents that may be needed for collection.
(9) If our reserved goods or the outstanding amounts assigned to us are seized by third parties, the buyer is obligated to notify such party of our ownership/right and immediately notify us. The buyer will bear the costs of any intervention.
(10) If the buyer is in breach of contract, in particular default of payment, the buyer is obligated, upon first request on our part, to return all reserved goods that are still in his possession and to assign any claims for return related to the reserved goods that may exist against third parties. If we reclaim or attach the reserved goods, this does not constitute rescission of the contract on our part.
(11) We are entitled to require the buyer to inform us of any claims that arise from the resale and that are assigned to us according to paragraph (6) and their debtors. We are then entitled to disclose the assignment at our discretion.
Section 8 Maturity of the Claims Arising from the Business Relationship in Case of Default of Payment
If the buyer defaults on any payment obligations towards us, all outstanding claims will be immediately due.
Section 9 Payments with Debt-Discharging Effect
All payments with debt-discharging effect must be made exclusively to the bank accounts of Coface Finanz GmbH, Isaac-Fulda-Allee 1, 55124 Mainz to which we have assigned all current and future claims resulting from our business relationship. We have assigned our reserved property to this institute as well.
Section 10 Place of Jurisdiction and Final Provisions
(1) The place of jurisdiction will be, at our discretion, the company headquarters or the city of Mainz.
(2) The contractual relationship is governed exclusively by German law excluding the UN Convention on International Sale of Goods.
(3) We are entitled to assign any claims arising from our business relationships.