Business and Supply Terms of
1. All business transactions between us and our contractual partners (“Customers”) are exclusively based on the below terms, unless individual provisions are agreed upon in writing. This also applies to all future transactions with the Customer, even if this is not expressly agreed upon once again.
2. Upon receipt of the order confirmation, in no case later than upon acceptance of our supplies, the Customer accepts our Business and Supply Terms without any restrictions; any contrary purchase terms of the Customer do not apply, not even if we are aware of them.
3. The quality of the contractual items is exclusively described in our offers, purchase order confirmations and related documents, without this being a guarantee in terms of sec. 443 of the BGB [German Civil Code].
II. Credit risk/payment default/credit insurance
1. The Customer expressly guarantees that it is creditworthy when placing its binding purchase order. If there are any doubts about the credit standing at a later time, we may, at our discretion, withdraw from the contract or make the delivery dependent on advance payments or the provision of collaterals.
2. We are entitled to the above rights also if the Customer defaults on payments.
3. If our claims exceed the amount of financial obligations authorised by the credit insurer, the Customer is obliged to immediately cover the amount exceeding financial obligations covered by insurance through payments or collaterals.
4. If the Customer is in default of any payment obligations towards us, all existing claims become due for immediate payment.
III. Price increases
Changes to the cost base – in particular cost increases regarding procurement of materials, production or personnel, increases of turnover tax – give us a right to change the contractual prices, but only if the delivery period, the period in which are able to deliver or the term of the contract exceeds 4 months.
IV. Payment/shipment costs/offsetting/retention right
1. Our prices are net prices and individually quoted on an “ex-works” basis.
2. Unless otherwise agreed, the invoice amount is subject to a 5 % discount for payments
within 10 days from the invoice date and payable after 30 days without deduction. After this 30-day period expired, the Customer is in default of payment.
3. Interest on arrears in accordance with sec. 288 of the BGB and sec. 352 of the HGB [German Commercial Code] are deemed agreed upon, with us reserving the right to assert higher claims for damages caused by delay if we produce evidence.
4. Bills of exchange and cheques will only be accepted on account of payment. We are entitled to return such bills and cheques provided for payment if it turns out that the acceptor or issuer provides no guarantee for discharge/payment.
5. For purchase orders with a value of up to € 300, we are entitled to charge a general administrative and freight costs share of € 30 for each purchase order.
6. The Customer may offset against our claims only if the Customer’s counterclaim is undisputed or if a legally enforceable title exists. The Customer may exercise a right of retention only if their counterclaim is based on the same contractual relationship.
7. For claims which we sold based on factoring and which we accordingly marked in the explanatory text of the invoice, all payments with the effect of discharging from obligations shall be exclusively made to the factor’s bank account, that is, to Coface Finanz GmbH, Isaac-Fulda-Allee 5, D-55124 Mainz, to who we assigned the present and future claims arising from our business relationship. Our property subject to retention of title will also be transferred to the above institute.
V. Passing of risk/freight routes/transport damage
1. The risk of accidental loss and deterioration of the goods is transferred to the Customer once the goods leave the manufacturer’s premises (Incoterm EXW), regardless of whether it is based in Germany or abroad. This provision also applies to deliveries made to the Customer on a carriage-paid basis using our own lorries. Transport insurance needs only be taken out if the Customer requests this.
2. Drop-shipment deliveries are always made free to destination.
3. Unless a special provision was agreed, we determine the freight route and type at our reasonable discretion.
4. Shortages and/or transport damage shall be evidenced by a damage report prepared on the day of unloading; this report shall be submitted to us within 3 days.
5. For legal reasons, the driver cannot and must not assist in the unloading process. Any visible defect and, in particular, shortfalls of quantities and transport damage, shall be clearly stated on the shipping documents. If carriages are used for deliveries, the Customer shall present the damage report to Deutsche Bahn.
VI. Delivery date/default/liability limitation or exclusion
1. Confirmed delivery dates are always approximate dates. In the event of operational disruptions, procurement difficulties, force majeure etc., we are entitled to change contractual delivery times or withdraw from the contract, without the Customer having any claims from this. This also applies in the event of disruptions concerning contract execution as a result of industrial disputes.
2. We comply with delivery periods insofar as we are able to do so; however, the Customer must not derive any rights from delivery periods shortly being exceeded. If contractual delivery times are not met, the Customer shall put us in default and grant a 14-day grace period; such notification shall be delivered to us. After this period expired without success, the Customer is entitled to withdraw from the contract.
3. Claims for damages for default in delivery are excluded, unless they are based on intent or gross negligence on our part or that of our vicarious agents; the same applies to claims due to impossibility. Any claims for damages due to default in delivery are limited to 25 % of the goods value.
4. In no case are we liable for compensation for indirect or consequential damage; in particular, a claim for loss of profit is excluded. This does not apply if this is about claims under the German Product Liability Act or if damage caused to the Customer is covered by our insurance contracts. If the goods are impossible to be procured, we are entitled to offer comparable goods.
VII. Complaints/guarantee/exclusion of claims for damages
1. The Customer is obliged to immediately inspect the goods delivered and to notify us of any defects. Complaints are only considered if they are submitted in writing. No later than one week, the Customer’s claim for complaints lapses if it failed to assert this claim within this week. Claims for hidden defects can only be asserted up to two weeks after hand-over. The Customer bears full burden of proof regarding all requirements for claims to exist, in particular the defect itself, the time of defect determination and timely notification of the defect.
2. Insofar as the Customer requires subsequent deliveries in the event of justified complaints (sec. 377 of the HGB), we may demand defect rectification first if this is appropriate for creating a defect-free condition. In the event of justified complaints about quantity defects, the Customer is entitled to claim subsequent deliveries or credit notes. Such credits establish no claim for repayment. Replacement deliveries are made only against the return of the objected goods. Only if defect rectification or replacement deliveries and/or subsequent deliveries are impossible or unreasonably delayed may the Customer demand remuneration to be reduced or withdraw from the contract. Defect notification gives the Customer no right to reduce the invoice amount. However, in the event of only minor breaches of contract, in particular in the event of minor defects, the Customer is not entitled to withdraw from the contract.
3. If the Customer decides to withdraw from the contract due to legal or material defects resulting from failed subsequent performance, it is not entitled to claim damages due to that defect. If the Customer opts for damages after subsequent performance failed, the goods remain with the Customer if this is acceptable for it. Damages are limited to the difference between the purchase price and the value of the defective item. This does not apply if we fraudulently caused such breach of contract.
4. Standard colour and structure deviations, e.g. due to the natural wood growth, give no right to lodge complaints; this applies in particular to repeat orders.
5. The warranty period is 12 months from the transfer of risk. This period is a limitation period and also applies to claims for compensation for consequential damage, unless the Customer asserts claims from tort.
6. If the Customer receives defective assembly instructions, we are obliged to only deliver defect-free assembly instructions and, additionally, only if such assembly instructions damage conflicts with proper assembly.
VIII. Liability/limitation of liability
1. We are fully liable in the event of legal liability regardless of negligence or fault, in particular based on guarantees or under the German Product Liability Act, and for personal damage (injury of life, limb or health).
2. In the case of other breaches of duty, we are liable only for intent and gross negligence. This limitation also applies to our legal representatives, workers, employees and vicarious agents.
3. If we violate an obligation the compliance with which is of particular importance for it being possible to fulfil the contractual purpose, we are also liable for slight negligence. Liability for indirect and unforeseeable damage, consequential damage due to defects and loss of profit, loss of savings, financial damage due to third-party claims or other consequential damage is, however, also limited to cases of intent and gross negligence, even if an important obligation is violated. In addition to that, we are not liable.
4. The Customer’s claims for damages due to a defect become time-barred after one year from goods delivery; this does not apply if we can be accused of fraudulent intent.
IX. Retention of title/other collaterals/assignment
1. For contracts with customers, we reserve the title in all goods we supplied until the customers paid all their liabilities arising from the business relationship with us.
2. Upon placing the order, the Customer assigns to us all claims arising from resale in advance.
3. Only if the Customer is not in default with its payments to be made to us, if there is no doubt about their solvency and if it is ensured that claims against its customers from resale are assigned to us, is the Customer entitled to sell our property subject to retention of title in the ordinary course of business and to collect from their customers any claims assigned to us. The Customer is obliged to provide us with evidence at any time about the re-sales and to collect the claims from their customers on our behalf.
4. In the event of factoring, the Customer requires our express consent to resell goods subject to retention of title which we will make dependent on the payment of our claims being secured. The same applies if the Customer’s own customers intend to prohibit or make the assignment of claims against them dependent on their consent.
5. In the event of the Customer’s conduct being contrary to the contract, in particular if they fail to pay our due claims in accordance with the contract, we are entitled to withdraw from the contract without sending a warning and setting a grace period, request the surrender of the goods we delivered and to make all findings necessary to secure our claims, in particular to label our goods accordingly; the Customer is obliged to produce invoice copies showing its customers’ names and addresses so that we are able to assert the claims the Customer assigned to us.
6. At the Customer’s request, we are obliged to release goods subjected to retention of title or claims assigned to us for collateralisation if the realisation value of the collaterals exceeds our claims to be secured by more than 20 %.
7. In order to protect our goods subject to retention of title, the Customer is obliged to take out adequate insurance against fire, theft or the like and to provide proof of having concluded such contract upon our request; it assigns to us, right from the beginning, all rights under such insurance contracts resulting from loss of or damage to the goods.
8. The Customer is obliged to inform us of all rights which third parties assert against our goods subject to retention of title or the claims assigned to us and to prevent third-party access at their expense in accordance with our instructions.
9. We are entitled to assign to third parties all of the Customer’s claims without the need for a separate consent from the Customer.
X. Duty of acceptance for the customer/damages
1. If the Customer, after being notified of the goods being ready, fails to accept the goods, fulfil its payment duties or return contractual collaterals for more than 2 weeks, we are entitled to withdraw from the contract and demand damages after setting a one-week grace period.
2. In the event of damages being asserted, we are entitled, irrespective of our possibility to assert additional damage for which evidence must be provided, to demand compensation amounting to 25 % of the sales price, without the need to provide detailed evidence of such damage. The Customer still has the right to show that smaller damage occurred.
3. If we do not exercise the above rights, we are authorised, without prejudice to other rights, to freely dispose of the purchase item.
XI. Place of performance/venue/severability clause
1. We are entitled to process data received from the Customer based on this business relationship in accordance with the German Federal Data Protection Act, including, in particular, provision of required data to the credit insurance company for credit insurance purposes.
2. The respective delivery plant is the place of performance for our delivery; the place of performance for payments is the registered office of the performing company.
3. The venue for all disputes arising from the business relationship, including those regarding legal proceedings related to bills of exchange, cheques and deeds, is, at our discretion, the court in charge of XONOX.home GmbH.
4. German law applies exclusively, with the UN Convention on Contracts for the Sale of Goods not being applicable.
5. If any of the above provisions are ineffective or if the Contract contains a gap in need of regulation, this does not affect validity of the remaining provisions; instead, invalid provisions or gaps are replaced/filled by provisions coming closest to the economic purpose of the business, taking into account the parties’ mutual interests.
This translation of the original German document is provided for your convenience.
In the event of any conflict or contradiction between the German language version of this contract and the English language translation, only the German language version shall be legally valid.
Business and Supply Terms of Xonox.home GmbH (as at 1 June 2021)