General terms and conditions for the supply of products and services of Möbel-Elemente-Vertriebs GmbH (MEV)

1. Validity of our General Business Terms
1.1  The business transactions between ourselves and our purchasers shall be subject solely to the following General Business Terms for the duration of the business relationship. Consequently they also apply to future orders, the supply of spare /replacement parts and even in the absence of a specific reference to these in future unless the content of an order confirmation issued by us differs from these General Business Terms, or unless we have agreed in writing, or in an equivalent form, to our purchaser amending the order confirmation issued by us or to his amending our General Business Terms. These shall be deemed as having been accepted upon the purchaser placing the order, or at the latest on acceptance of the delivery or services.
1.2 We hereby reject any deviations from our terms on the purchaser's order form or the purchase order letter. Nor are these binding on us even if we do not reject them explicitly or in every case or when after receipt of deviating purchasing conditions we execute delivery.
1.3 Any contract with a purchaser is not deemed to be binding until an order confirmation has been issued by us. This can also be accompanied by the invoice. Heretofore, our offers remain non-binding and subject to change without notice.
1.4 Dimensions, weights, illustrations and drawings are only binding during the processing of the order if this has been specifically agreed /expressly confirmed in writing.
1.5 We retain, unconditionally, our ownership, copyright and other industrial property rights to estimates, solution to problems, illustrations, plans and any other documents. The purchaser undertakes to treat as confidential any such documents. Moreover he undertakes not to make these accessible to third parties without our explicit consent. If the order is not placed with us, illustrations, plans and other documents pertaining to the offer, including copies by the purchaser must be returned to us forthwith upon our request. The same conditions apply mutatis mutandis to purchaser's documents. However, these may be made accessible to those third parties to whom we rightfully and generally subcontract supplies or services. Purchaser protection is only guaranteed if this has been agreed upon in writing. When samples, illustrations and other data provided by the purchaser are used, the purchaser is responsible to third parties for ensuring that the rights of third parties are not infringed.
1.6 Upon request, goods which are fragile or easily broken will be insured against breakage at the purchaser's expense. Damage arising during carriage must be certified in the consignment note by the freight office responsible for delivery or by the freight forwarders. The consignment note is to accompany the complaint. The damaged items are to be returned carriage paid. We reserve the right of prior sale of the goods on offer and the right to determine the manner and route used for forwarding. Packaging is not returnable unless otherwise agreed.

2. Delivery and Prices
2.1 Unless otherwise agreed in individual cases /specific instances, our prices are quoted in euro and are to be understood ex works; VAT is added at the rate applicable on the date of order dispatch. Packing, transport and assembly and any commissioning will be invoiced separately. Unless expressly agreed in writing, packing is not returnable.
2.2 The prices stipulated are based on our current purchasing prices, wage and salary scales, customs duties and freight costs. If the agreed date of delivery is more than four months after the conclusion of the contract, we reserve the right, in the event of an increase in the aforementioned costs, to demand an appropriate increase in the contract price.
In the case of call-off orders, the purchasing price will be due for immediate payment if the purchaser does not take delivery of the goods within the period stipulated in the contract; this period may not exceed a year.
2.3 We may correct obvious errors or mistakes in offers, confirmation of orders or invoices. Information issued in error which obviously conflicts with our other sales does not constitute grounds for any legal claims.

3. Retention of Title
3.1 The goods supplied ("retained" goods) remain our property until all debts are paid (including any balances due from a current account) which are due to us from the purchaser either now or in the future. In the event of actions by the purchaser which constitute a breach of contract-breaching, e.g. delay in payment, and after a reasonable deadline has been set, we reserve the right to take back the "retained" goods. If we take back these goods, this will be regarded as a rescission of contract. If we attach these goods, this also constitutes a rescission of contract. We are entitled to utilize these goods after they have been taken back. After deduction of an appropriate amount to cover the costs of utilization, the amount owed by the purchaser shall be offset from the utilization proceeds.
3. 2 The purchaser is obliged to treat the "retained" goods with care and to insure them against fire, water and theft, with the sum insured to be equal to the replacement value of the goods. Any maintenance and inspection which prove necessary shall be carried out by the purchaser at his own expense and in due time.
3.3 The purchaser has the right to dispose of or sell the retained goods in the ordinary course of his business provided he is not in default of payment but he may not pledge them or use them as security. By way of security, the claims resulting from further sale or a further legal justification (insurance, tort etc.) with regard to the "retained" goods (including any balances due from a current account) shall be assigned by the purchaser to us to their full extent; we accept the transfer of these claims herewith. We hereby authorize the purchaser on a revocable basis to collect in his own name the claims assigned to us for his own account name. This authorization to collect can be revoked at any time should the purchaser fail to meet his payments properly. He is not authorized to cede and assign this claim in order to collect accounts receivable by means of factoring unless the factoring party undertakes at the same time to settle directly with us any arrears owed by the purchaser.
3.4 Processing or alteration of the "retained" goods by the purchaser shall be deemed in all cases to be carried out on our behalf. In the event that the "retained" goods are processed or reworked with other items which are not our property, we shall acquire joint ownership of the new product according to the ratio of the value of the "retained" goods (total invoice amount including VAT) and the value of the other processed items at the time of such processing. Moreover, the same shall apply to the resulting new item. If the "retained" goods are inseparably mixed or incorporated with other objects which are not our property, we shall acquire joint ownership of the new product according to the ratio of the value of the "retained" goods (total invoice amount including VAT) and the value of the other mixed or incorporated items at the time of the incorporation. If the item belonging to the purchaser is to be regarded as the main item as a result of the incorporation, then we and the purchaser agree that the purchaser shall transfer a proportional share in the ownership of the item to us; we accept the assignment herewith. Our resulting right of sole or co-ownership of the product is held by the purchaser.
3.5 Should the "retained" goods be installed by the purchaser as a fixture on a third party's property, the purchaser shall now assign to us any and all claims against such third parties or other interested parties for compensation to the value of the "retained" goods plus a security premium of 20% together with all ancillary rights including the granting of a security-deposit mortgage with priority over all other debts. We accept this assignment herewith.
3.6 Should the "retained" goods be installed as a fixture on his own land or property, the purchaser shall now assign to us any and all claims resulting from the commercial sale of the land or property or resulting from the rights to such land to the value of the "retained" goods plus a security premium of 20% together with all ancillary rights and with priority over all other debts. We accept this assignment herewith.
3.7 In the event of any attachment or other act of intervention by third parties, the purchaser shall refer to our title and inform us without delay, so that we can assert our property rights. If the third party is unable to reimburse any judicial or extra-judicial expenses related to the recovery, the purchaser shall be held accountable for these.
3.8 Upon suspension of payment or filing for bankruptcy and initiation of bankruptcy proceedings or any judicial or extra-judicial settlement proceedings, the right of resale and the right to use or install the "retained" goods, as well as the direct debit mandate for assigned claims, shall expire. This right also expires in the event of the protest of a cheque or bill of exchange at the expense of the purchaser.
3.9 We undertake to release the securities due to us insofar as the value of our securities exceeds the claims to be safeguarded by more than 10%; in this case we are responsible for the selection of the securities to be released.
3.10 With the payment of all our claims resulting from the business relation, the title in the "retained" goods and the claims assigned as security shall pass to the purchaser.

4. Terms of Payment and Damage resulting from Delay
4.1 If there is no agreement to the contrary, payment is to be effected within 8 days of the date of the invoice less 2% cash discount or within 14 days without discount; in each case free of charge. Cheques are accepted for payment purposes only.
4.2 We only accept bills of exchange for payment subject to prior agreement; discount and expenses shall be borne by the purchaser. Insofar as we are subject to the drawer's or endorser's liability arising from a bill of exchange given in connection with the business relation, our claims shall be regarded as not fulfilled.
4.3 Interest on payment in arrears will be charged at the amount shown to have been incurred but at least 8% above the base rate of interest. Moreover, we are entitled, subsequent to default on the due date, to claim €15 for each reminder as part compensation for the expenditure incurred.
4.4 In the event of the purchaser's delay in payment, we are not obliged to deliver the goods ordered until all outstanding amounts have been paid in full. In such cases and if circumstances become known which question his credit worthiness, we are entitled to demand payment in advance before making any further deliveries. If the purchaser refuses to accept this method of business, all outstanding claims including the purchaser's bill of exchange shall fall due immediately.
4.5 In the absence of any agreements, we stipulate payment in advance for delivery of spare and replacement parts, assembly, and repair and travel expenses, cash on delivery to the purchaser's premises and cash upon collection - in each case without deductions.
4.6 If our claims for payment in the event of insolvency or settlement proceedings are reduced to a share, discounts agreed in advance cease to apply.
4.7 The purchaser will only be authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship or has been recognized by us or legally established.
4.8 Any offset is not admissible unless there is an undisputed or legally binding counterclaim on the part of the purchaser.

5. Deadlines for Deliveries and Services

5.1 Only our written order confirmation in the most recent version shall be ultimately decisive with regards to deadlines for deliveries and services. Meeting the deadline necessitates prompt receipt of all the documents to be supplied by the purchaser, the necessary permits and clearances, especially prompt clarification and approval of the plans, compliance with the agreed terms of payments and other obligations of the purchaser. Failure to adhere to these conditions will result in an adequate extension of the deadlines.
5.2 The deadline is deemed to have been met if the object to be delivered has left our premises or we have provided notification of readiness to ship by the date of expiry.
5.3 The deadline will be extended appropriately if unforeseen difficulties arise beyond our control, such as measures within the context of industrial disputes, insofar as such obstacles can be shown to have a significant influence on the production or dispatch of the goods to be supplied. This also applies when such circumstances arise in our supplier's premises and in particular in the event of our supplier becoming insolvent. Circumstances of this nature shall not be our responsibility even if they occur during a delay which has arisen for other reasons. The supplier is obliged to inform the purchaser at the beginning and end of such impediments as soon as possible.
5.4  If dispatch or delivery, due to the purchaser's request, is delayed by more than one month after notification of the readiness for dispatch was given, the purchaser may be charged  the actual costs incurred for storage or 1% of the invoice amount for every additional month commenced. The obligation on the part of the purchaser to pay punctually is not affected by this.
5.5 The adherence to delivery deadlines requires the compliance of the purchaser with all contractual obligations.
5.6 If the contract of purchase in question is a transaction for delivery by a fixed date according to § 286 section 2 Nr. 4 of the "BGB" civil code or according to § 376 of the "HGB" trade code, then we accept liability in accordance with the legal provisions. The same applies in the event of a failure on our part to meet a delivery date which entitles the purchaser to cancel further performance of the contract on the grounds that this is no longer in his interest. In that case our liability is limited to the predictable, typically occurring damage if the delay in delivery was not caused by an intentional breach of contract on our part whereby a fault on the part of our representatives or vicarious agents must be assigned to us.
5.7 We are liable towards the purchaser for delays in delivery in accordance with the legal regulations if this can be put down to a grossly negligent or intentional breach of contract, whereby a fault on the part of our representatives or vicarious agents must be assigned to us. In that case our liability is limited to the predictable, typically occurring damage if the delay in delivery was not caused by an intentional breach of contract on our part.
5.8 In the event that a delay in delivery is based on a culpable breach of a fundamental contractual obligation on our part, whereby a fault on the part of our representatives or vicarious agents must be assigned to us, we assume liability in accordance with the legal regulations with the proviso that in this case liability for damages shall be limited to the foreseeable, typically occurring damage.
5.9 If the supplier is responsible for the delay, the purchaser may claim compensation as liquidated damages of 0.5% of the value of the goods delivered for every completed week of delay but in no case more than a total of 5% of the total value.
5.10 Any further liability due to delays in delivery is excluded. Any further purchaser claims and rights other than claims for damages because of delays in delivery remain unaffected.
5.11 We are entitled to supply part deliveries or part performances, insofar as the purchaser can be reasonably expected to accept such part-deliveries or part-performances.

6. Passing of Risk
6.1 Dispatch is effected at the risk and expense of the purchaser. We will take out transport insurance on behalf of and at the expense of the purchaser.
6.2 The risk shall pass to the purchaser as soon as he has received notification that the goods are ready for dispatch or when loading begins. This also applies when delivery has been agreed freight free or when we have assumed other services such as carriage.

7. Receipt of Supplies
7.1 The purchaser shall not refuse to accept supplies due to minor defects or to damage during transport.
7.2 Part deliveries are permissible and do not entitle the purchaser to refuse acceptance even if a single delivery was agreed.
7.3 Part deliveries may be invoiced. The purchaser is obliged to inspect the goods as soon as is reasonably possible after delivery even if they are packed.

8. Non-fulfillment on the part of the purchaser

8.1 If the conditions above have been met or if the purchaser is not more than 2 weeks in arrears with regard to his payment obligations or to the provision of an agreed security, we shall at our discretion be entitled, after first setting a two-week period of grace, to rescind the contract or claim compensation for non performance at the amount shown to have been incurred but amounting to at least 20% of the contract price plus VAT.
8.2 In the case of make and hold orders and if the volume of the separate consignments was not agreed by contract, the purchaser is obliged to request delivery at the same intervals and in the same quantities and to effect payment immediately on receipt of the invoice.
If the purchaser fails to comply with this obligation despite a request to do so, we are entitled to invoice all the non-accepted quantities.

9. Quality Standards and Measurements

9.1 Quality standards and measurements are determined in accordance with DIN standards insofar as foreign standards have not been agreed in writing. If no DIN standards exist, then the corresponding European standards apply. In the absence of these the usual trade standards  apply. References to DIN standards are only made for description purposes and do not constitute and do not represent a warranty of properties.
9.2 Fixed dimensions and split cuts are only supplied within the admissible range of minor tolerances in accordance with DIN standards. If fixed dimensions or split cuts are supplied, then the quantity ordered may vary by as much as or in excess of 15%.

10. Warranty / Liability
10.1 The purchaser is only entitled to claim damages if he has duly complied with the inspection and complaint obligations to which he is bound according to § 377 HGB (German Commercial Code). Accordingly, if there are obvious defects, notification with precise details shall be given in written form by the purchaser no later than 4 days after receipt of the order.
10.2 We do not assume liability for damages due to the following reasons: inappropriate or improper use; unsuitable operating materials; defective installation or commissioning by the purchaser or any third party; common wear and tear; incorrect or negligent handling; inappropriate storage; substitute materials; faulty construction work; unsuitable foundations; chemical, electrochemical or electrical influences which are not directly attributable to us as suppliers.
10.3 Where any defect of the goods is the fault of the seller, we are obliged to effect subsequent performance, while the purchaser's right to withdraw from the contract or to reduce the purchasing price are excluded unless the seller is entitled under the law to refuse to effect subsequent performance. The purchaser is entitled to set a reasonable time limit to enable subsequent performance.
10.4 All warranty claims against us lapse 12 months after the date of transfer of risk to the purchaser except in the case of fraudulent concealment of the defect on our part. In this case the statutory regulations apply. If the purchased merchandise consists of tangible movable property designed for and commonly used in buildings, the legal stipulations also apply. Our obligations as set out in Paragraphs 10.6 and 10.7 remain unaffected thereby.
10.5 We are liable under the law for damage claims arising from injury to life, body and health, which are due to negligence or a willful breach of duty committed by us, our legal representatives or our vicarious agents, and for damage claims under the German Product Liability Act.
We are liable under the law for any damages not covered in paragraph 1 which are due to grossly negligent or willful violation of the contract on our part or on the part of our legal representatives or our vicarious agents. In this case, our liability is limited to the foreseeable and typical damage unless we, our legal representatives, or our vicarious agents have acted with intent. We are also liable, within the framework of this warranty, only to the extent for which we have granted a warranty on the composition and /or durability of the goods or parts. However we only assume liability for damage due to an absence of the guaranteed composition or durability but not immediately apparent in the goods, when the risk of such damage is clearly stated in the quality and durability guarantee.
10.6 We are liable for other damage or loss caused through simple negligence, insofar as the negligence pertains to the breach of such contractual obligations, whose compliance is of essential importance to achieving the object of the contract (cardinal duties). However, we are only liable insofar as other damage or loss is typically connected with the contract and is foreseeable.
10.7  Any further liability shall be excluded hereby, without regard to the legal nature of the asserted claims; this applies in particular to tort claims and claims to reimbursement of futile expenditure in lieu of performance; our liability pursuant to Section 5, Paragraphs 6 to 10 of the contract hereby remain unaffected. Any liability exemptions and limitations shall apply equally to personal claims against our staff and employees, co-workers, representatives and vicarious agents.
10.8 Claims for damages based on a defect are limited to a period of 12 months from delivery. This does not apply in the event of injury to life, limb or health which is our fault or that of our legal representatives or vicarious agents, or if we or our legal representatives have acted with intent or gross negligence or if our vicarious agents have acted with intent.
10.9 If products are manufactured according to a drawing from the purchaser, we shall be liable only for adherence to the drawing.
10.10 We shall be liable for consultancy or design only if expressly agreed upon in writing.

11. Right to Claim Rescission of Contract
11.1 The contract shall be adapted appropriately should circumstances arise which are unpredictable and beyond our control and which change the economic significance or content of our services considerably or affect our business substantially, and in the event of an impossibility of performance that subsequently becomes evident. Where this is not economically viable, we are entitled to withdraw from the whole or part of the contract. A rescission of the contract on our part does not constitute any claims for compensation on the part of the purchaser.
11.2 If we intend to exercise our right to rescind the contract, we shall notify the purchaser thereof without undue delay; this shall also apply even where an extension of the delivery period has previously been agreed with the purchaser.

12. Repairs

Goods for repair must be shipped postage and carriage prepaid. We reserve the right to refuse to accept shipments carriage forward.

13. Returns
Returns against a credit note shall only be accepted if written consent has been obtained beforehand. If goods are returned, the invoice number should always be quoted. Evaluation is based on the condition and usability of the goods supplied. There shall be a deduction to cover our costs for the order and handling the returns, and expenditure on repairs and maintenance.

14. Miscellaneous

We reserve the right to display our company logo on all our products.

15. Subcontracts
If we carry out all work and services without supplying our own materials (subcontract), a producer's lien will thus be agreed in our favour, unless we become owners of the processed goods.

16. Place of Performance, Place of Jurisdiction, Data Protection, Final Provisions
16.1 Our headquarters are the place of performance and jurisdiction for purchase orders and for payment of the purchased goods (including suits filed in connection with cheques and bills of exchange) as well as direct or indirect disputes emanating from this sales agreement. We are, however, entitled to bring action against the purchaser at his place of residence and /or business.
16.2 Relations between the contracting parties will be regulated exclusively in accordance with the laws which apply in the Federal Republic of Germany. The application of the uniform law governing the international purchase of movable items and of the law governing the conclusion of international sales agreements on movable items is excluded.
16.3 The purchaser acknowledges that we save and make use of data relating to his person arising out of this business relationship. No separate notification is given thereof.

17. Severability Clause

The legal invalidity of one or more provisions of these terms and conditions in no way affects the validity of the remaining provisions. The parties to the contract undertake to agree on a new provision which comes as close as possible to the intended economic purpose of the provision that is now null and void.