GENERAL TERMS OF SALE, DELIVERY AND PAYMENT
1. General provisions
1. The following General Terms and Conditions of Sale, Delivery and Payment ("GTC"), as amended from time to time, shall apply exclusively to all goods and services supplied by LEICHT Küchen AG (hereinafter: "LEICHT" or "we"). 2. These GTC shall only apply if the purchaser is an entrepreneur (Sec. 14 BGB – German Civil Code), a legal person under public law or a special fund under public law. 3. Unless agreed upon otherwise, these GTC shall also apply as a framework agreement, in the version applicable at the time the order is placed or last communicated to the purchaser, to all future contracts with the same purchaser for the sale and/or delivery of movable things, without us having to refer to them again in each individual case. 4. Any conflicting terms and conditions – in particular the purchaser's terms and conditions of purchase – are hereby expressly excluded. This shall also apply in the event that we supply the goods or services without reservation despite being aware of the purchaser's conflicting terms and conditions. In any case, the purchaser approves the validity of our GTC once he accepts, in whole or in part, goods or services supplied by us or pays the purchase price. We only accept any deviations from our GTC if we have expressly confirmed them in writing. Subject to an express regulation to the contrary, this confirmed deviation shall only apply to the specific individual case. 5. Series-produced furniture is sold by model, which is why there is no entitlement to delivery of display items. Images in catalogues, etc. are non-binding.
2. Offers and order confirmations
1. All our offers are subject to confirmation. 2. In the absence of a special agreement, a contract is deemed to have been concluded upon receipt of our order confirmation sent to the purchaser in writing. Contracts made with representatives and staff members are also deemed to be effective only upon receipt of our written order confirmation. The order confirmation is authoritative for the scope of delivery. If we do not confirm the order, the contract is deemed to have been concluded upon execution of the order at the latest. 3. There are no oral side agreements upon conclusion of the contract. Any express individual agreements between the purchaser and us (including side agreements, amendments and additions) shall – provided that they were made after conclusion of the contract – always take precedence over these GTC. The content of such individual agreements shall be governed, subject to evidence to the contrary provided by the purchaser, by a written contract or – in the absence of such contract – our order confirmation sent to the purchaser pursuant to Sec. 2.2 of these GTC. 4. In the event of call-off orders, we are entitled to procure the material for the entire order and manufacture the entire quantity ordered immediately. Consequently, any modifications requested by the purchaser can no longer be taken into account after placing the order, unless this has been expressly agreed. 5. Customary variations in model, design, colour and veneer may occur and shall not justify any complaints; neither do modifications that serve technical improvements. This shall apply in particular to follow-up orders.
3. Description of services
Suggestions for installation, possible applications, material recommendations and other specifications concerning the goods (e.g. in catalogues, product information, electronic media or on labels), including public statements or advertising, always depend on the particular field of use and the application in which the goods are intended to be used and, unless expressly agreed as such, do not constitute a general, binding quality agreement or guarantee of quality. Specifications concerning the properties and possible applications of our goods do not include any guarantees either, in particular those stipulated in Sec. 443, 444, 639 BGB, unless expressly designated as such in writing upon conclusion of the contract.
4. Delivery and delivery period
1. Even if a delivery date has been agreed with the purchaser, any indicated delivery periods are only approximate and non-binding, unless the delivery date has been expressly agreed as binding, i.e. it has been stipulated in writing that the purchaser has no interest in the delivery once the agreed date has lapsed. 2. A confirmed delivery date shall be subject to correct, complete and timely delivery by our upstream suppliers, if we have concluded a congruent covering transaction, neither we nor our upstream suppliers are at fault or we are not obliged to procure the goods in the individual case. 3. Delivery is made ex works, which is also the place of performance for the delivery and any cure. Upon request and at the expense of the purchaser, the goods can be shipped to another place of destination (sales contract involving carriage of goods). Unless agreed upon otherwise, we are entitled to determine the type of shipment (in particular shipping company, shipping route, packaging). 4. The delivery deadline is deemed to have been met if the goods have left our works or we have communicated the readiness for shipment to the purchaser by its expiry. The delivery deadline shall not commence as long as the purchaser has not met his obligations, such as the supply of technical data and documents, authorisations as well as advance payment or handover of a payment guarantee. 5. We are entitled to make part deliveries to the extent reasonable for the purchaser. 6. In the event of call-off orders and supply contracts without a binding delivery date, the purchaser is obliged to state a binding acceptance date in writing six (6) weeks in advance.
5. Shipping and passing of risk
1. The risk of accidental destruction and accidental deterioration of the goods shall pass to the purchaser upon handover of the goods at the latest. In the event of sales contracts involving carriage of goods, however, the risk of accidental destruction and accidental deterioration of the goods as well as the risk of delay shall already pass to the purchaser upon handover of the goods to the forwarder, carrier or other person entrusted with the shipment. Where acceptance has been agreed, this shall be authoritative for the passing of risk. Apart from that, the statutory provisions of the law on contracts for work and services shall apply to the agreed acceptance. The handover or acceptance is also deemed to have been effected if the purchaser is in default of acceptance. 2. If the shipment is delayed due to a circumstance that is attributable to the purchaser, the risk shall pass to the purchaser once the readiness for shipment is communicated. 3. If the shipment is delayed at the purchaser's request, we are entitled, after setting a reasonable period for acceptance of the delivery and its expiry without effect, to otherwise dispose of the goods and supply the purchaser within a reasonably extended delivery period. 4. The purchaser is obliged to examine the incoming goods for transport damage without delay and report any visible damage to the carrier upon delivery. The damage must be clearly stated and noted in the accompanying documents. 5. Any loss / transport damage which is not apparent must be notified in writing within seven (7) days of delivery. 6. The cost of packaging material shall be borne by the purchaser. Only reusable pallets will be taken back.
1. Unless agreed upon otherwise in writing, our prices are quoted in EURO ex works, exclusive of value-added tax at the statutory rate as well as packaging and transport costs. 2. In the event of part deliveries, each delivery can be billed separately.
7. Terms of payment
1. Unless agreed upon otherwise, invoices shall be due and payable in full within 30 days of the invoice date. 2. We reserve the right to bill the agreed performance by letter post or electronically by email. The purchaser must ensure that all electronic invoices can be properly delivered by email to the email address indicated by the purchaser. 3. In the case of contracts with purchasing associations, the written agreements made with these associations shall apply. 4. We are not obliged to accept cheques and other promissory notes. Cheques will only be accepted on account of performance after written agreement. 5. The payment is deemed to have been received on the date on which the amount is received by us or credited to our bank account. If the purchaser is in default of payment, we are entitled to charge interest for the duration of the default in the amount of 9 percentage points above the basic rate of interest as well as a lump sum of EUR 40. The right to assert further claims for compensation shall remain unaffected. 6. We do not charge interest on advance payments and instalments. 7. If, after conclusion of the contract, we become aware of any circumstances suggesting the purchaser's inability to pay, i.e. if reasonable doubts in the purchaser's solvency arise, jeopardising our claim to counterperformance, we are entitled, regardless of any outstanding cheques, to refuse the performance, to the extent not yet rendered. This is the case if an application for the opening of insolvency proceedings has been filed, for example. In this case, we are entitled to set a period within which the purchaser can, at his option, either effect the payment or provide security reciprocally and simultaneously against the performance to be rendered by us. After expiry of the deadline, we are entitled to withdraw from the contract if neither an advance payment has been effected, nor a security provided. In the case of contracts for the manufacture of non-fungible goods (products manufactured to specification), we are entitled to withdraw from the contract with immediate effect; this shall be without prejudice to the statutory regulations concerning the dispensability of setting a period. 8. Any deduction of discounts can only be accepted if the purchaser is not in default of any payments due to us.
8. Right of setoff and retention
1. We are entitled to retain any further deliveries until all previous deliveries have been paid for, to the extent that the deliveries constitute an economic unit (connexity) due to the material and temporal connection of our performance or multiple orders of similar types of goods. 2. Retention of payments due to any claims of the purchaser against us that are based on another contractual relationship with us shall be excluded. Apart from that, the purchaser is only entitled to exercise rights of retention if his claims are uncontested or legally established. If the goods delivered are affected by a defect, however, the purchaser is entitled to retain a portion of the purchase price that is appropriate in relation to the defect. 3. The purchaser may not set off his claims against our claims, unless his claims are uncontested or legally established.
9. Force majeure
Force majeure events and other circumstances, in particular industrial actions, unrest, acts of war or terrorism, which entail unforeseeable consequences for the performance, shall release us from our performance obligations for the duration of the disturbance and to the extent of its effects, insofar as we are not responsible for these events, even if we are already in default. The same shall apply if the timely execution of orders accepted is rendered impossible by force majeure events. Correspondingly, we assume no procurement risk. We are entitled to withdraw from the contract if we do not receive the goods despite having previously concluded a corresponding purchase contract with a supplier; this shall be without prejudice to our responsibility for wilful intent or negligence in accordance with Sec. 13. If these circumstances last longer than two months, we are also entitled to withdraw from the contract, without the purchaser being entitled to claim compensation. We will inform the purchaser of the non-timely availability of the goods without delay and, in the event of withdrawal on our part, will refund the corresponding counterperformance, to the extent already rendered.
10. Default and impossibility
1. Default of delivery can only be claimed after issuing a warning notice. In the event of default in delivery caused by slight negligence, the purchaser is entitled to claim compensation for each week of default in delivery or part thereof in the amount of 0.5% of the net contract value of the individual order, but altogether no more than 5% of the value of that part of the total delivery which cannot be used or cannot be used in time as per agreement as a result of the default. The amount of this compensation shall be reduced / increased if we provide evidence of lower or the purchaser of higher damage. 2. Notwithstanding the purchaser's right to withdraw from the contract due to defects (cf. Sec. 11 and 12 of these GTC), the purchaser may only exercise his right of withdrawal due to impossibility of performance or default if we can be held responsible for breach of material obligations. 3. Finally, the right of withdrawal shall be excluded if the purchaser is solely or predominantly responsible for the circumstances which would justify a withdrawal or if a circumstance beyond our control occurs while the purchaser is in default of acceptance. 4. In addition, the purchaser may only withdraw from the contract or claim compensation in lieu of performance if he has previously set us a reasonable period of at least four (4) weeks in writing, expressly pointing out that he will withdraw from the contract and/or claim compensation or reimbursement of expenses if the deadline is not met. After expiry of the deadline, the purchaser is obliged to inform us, upon our request, whether he still insists on the delivery or claims compensation or reimbursement of expenses or withdraws from the contract. If the purchaser fails to do so within a period set by us, he is no longer entitled to reject the delivery and exercise the above-mentioned rights. 5. Setting a period pursuant to Sec. 10.4 of these GTC may be dispensed with if we seriously and definitely refuse the contractual performance or if there are special circumstances which, after weighing the interests of both parties, justify withdrawal with immediate effect. The claim for compensation or reimbursement of expenses shall be governed by Sec. 13 of these GTC.
11. Notice of defects in purchase contracts and contracts for work and services
1. Any legal or material defects, the lack of any warranted quality or durability / stability of the goods as well as excess, short or incorrect deliveries (defects) shall – insofar as they are apparent – be notified by the purchaser in writing without delay, no later than eight (8) days after arrival of the goods at the place of destination and before they are processed, delivered or resold, specifying the alleged individual defects. Where expedient, the packaging shall be opened. Any complaints for apparent defects shall be excluded once the goods have been processed or incorporated into another product. Any defects not detected as part of the usual incoming inspection shall also be notified by the purchaser in writing without delay, no later than eight (8) days after being detected. Notices of defects must be received by us within the warranty period. 2. The purchaser must meet his obligations to examine the goods and give notice of any defects in accordance with Sec. 377, 381 HGB [German Commercial Code]. Any warranty claims against us based on defects that are not notified or not notified in time shall be excluded. 3. Notwithstanding any notices of defects, the purchaser is obliged to accept, unload and properly store the goods.
12. Claims based on defects
1. Claims based on defects cannot be asserted in the event of minor deviations of the goods from the agreed quality, insignificant impairment of usability, improper storage – especially storage contrary to our instructions – and if the defect is attributable to non-observance of flawless operating, maintenance and installation instructions, inappropriate or improper use, incorrect or careless handling or assembly, natural wear and tear or interventions into the goods undertaken by the purchaser or third parties. Improper attempts to remedy the defect by the purchaser or a third party entail loss of all claims based on defects to the extent that these attempts have increased our effort to remedy the improperly treated defect or have caused further defects or damage. The above-mentioned deviations shall not justify any claims during subsequent deliveries and follow-up orders. 2. The deviations described in Sec. 2.5 of these GTC do not constitute defects. This shall apply in particular to deviations in wood structure, textiles, leather, as well as colour variations in woods, plastic boards and plastic foils. Lacquered parts are subject to natural ageing. Therefore, any colour differences in subsequent deliveries attributable to such ageing shall not justify another complaint. 3. If a defect is present and has been notified within the period stipulated in Sec. 11 of these GTC, we will effect cure, at our option, by either remedying the defect (repair) or delivering substitute, if the purchaser provides evidence that the defect was already present upon passing of risk. The place of performance for the cure shall be the place of delivery. This shall not apply if we choose to effect cure in the form of repair and the goods to be repaired cannot be transported to us. 4. In the event that the cure fails, i.e. if we have allowed a reasonable period of at least four (4) weeks set for cure to expire without effect, have undertaken two attempts to repair the goods or one attempt to deliver substitute, and the defect could still not be remedied, if we refuse to carry out the necessary repair or substitute delivery without justification or unreasonably delay it or the repair is unreasonable for the purchaser for other reasons, if the requirements set forth in Sec. 281 (2) or 323 (2) BGB are met or if we refuse to effect cure on account of unreasonableness (cf. Sec. 12.5 of these GTC), the purchaser is entitled to make use of the legal remedies of withdrawal or reduction instead of repair or substitute delivery and claim compensation or reimbursement of expenses, the latter within the limits of Sec. 13 of these GTC. In the event of minor defects, however, the purchaser may not exercise the right of withdrawal. 5. Apart from that, we are not obliged to repair the goods or deliver substitute if this would involve disproportionately high costs. We are entitled to refuse to effect both types of cure if both the anticipated costs of repair and those of substitute delivery exceed the purchase price of the contractual goods by 100%. 6. Defects of part of the delivery shall not justify a rejection of the whole delivery, unless the purchaser cannot be reasonably expected to accept the defect-free part of the delivery. 7. In respect of goods that are not delivered as new as per agreement, the purchaser is not entitled to claim cure, reduction and withdrawal. Any claims for compensation and reimbursement of expenses shall be governed by Sec. 13 of these GTC. As regards products that are supplied by third parties, our warranty shall be limited to the assignment of our claims against the supplier of the third-party product. In the event that the purchaser is unable to enforce his warranty claims against the supplier of the third-party product, we provide warranty within the limits of these GTC. 8. We are entitled to claim from the purchaser reimbursement of the costs resulting from an unjustified request for remediation of defects (in particular inspection and transport costs), unless the lack of defects was not recognisable to the purchaser. In the event of substitute delivery, the purchaser is obliged to return the defective goods upon request. Any components replaced under the warranty shall become our property.
13. Compensation for damages
1. Unless agreed upon otherwise in these provisions, all claims of the purchaser for compensation of any damage whatsoever, including claims for reimbursement of expenses and claims for compensation of indirect damage, such as lost profit, shall be excluded. This shall apply in particular to claims based on any breach of duties arising from the obligation and tort. The exclusion of liability shall also apply if we have employed assistants or vicarious agents, as well as to our executive staff. 2. Notwithstanding Sec. 13.1 of these GTC, we shall only be liable, no matter on what legal grounds, including if we have employed executive staff or assistants and vicarious agents, if: (a) we can be blamed for gross negligence or wilful intent; (b) we have fraudulently concealed a defect or have warranted the quality of the goods; (c) we have culpably caused injury to life, limb or health as well as if (d) we have breached so-called material obligations, i.e. i. in the event of a serious breach of obligations, jeopardising the achievement of the contractual purpose or ii. in the event of a breach of obligations the discharge of which is an essential prerequisite for the proper performance of the contract and the discharge of which the purchaser may rely upon as a matter of course ("material obligations"). 3. In the event of Sec. 13.2 (d) of these GTC – breach of material obligations – our liability shall be limited in terms of amount to the foreseeable, typically occurring damage, however, only in the event of slight negligence. 4. The exclusion of liability shall not apply in respect of claims under the Product Liability Act. The foregoing regulations do not involve a reversal of the burden of proof to the purchaser's disadvantage.
14. Limitation period for claims based on defects
1. The limitation period pursuant to Sec. 438 (1) no. 3 BGB, Sec. 445b (1) BGB or Sec. 634a (1) no. 1 BGB for all claims based on defects shall be twelve (12) months from handover of the goods or – where acceptance has been agreed – from acceptance of the goods, unless agreed upon otherwise on a case-by-case basis. The suspension of expiry pursuant to Sec. 445b (2) BGB shall end after three (3) years. 2. Notwithstanding this, the statutory limitation periods shall also apply within the scope of application of Sec. 438 (1) no. 3 BGB, Sec. 445b (1) and (2) BGB or Sec. 634a (1) no. 1 BGB: - to damage arising from injury to life, limb or health caused by a defect attributable to us; - if the defect is based on an intentional or grossly negligent breach of obligations on our part; - in the event of fraudulent concealment of a defect; - in the event of guarantees (Sec. 444 and 639 BGB) and - if the last contract in the supply chain pursuant to Sec. 445a BGB is a contract for the sale of consumer goods (pursuant to Sec. 474 BGB). 3. The claims under the Product Liability Act as well as the statutory regulations on suspension of expiry, suspension and recommencement of the limitation period shall remain unaffected.
15. Retention of title
1. We retain the title to the goods delivered until the purchaser has settled all our present and future claims arising from the respective supply contract with the purchaser (extended retention of title as account balance and/or current account retention). Where we have accepted cheques on account of performance in the purchaser's interest, we retain the title to all goods delivered until full release from such liabilities. The allocation of individual claims to a current account as well as the establishment and acknowledgement of the account balance shall not affect the retention of title. 2. However, the purchaser is entitled, as long as he is not in default of any payments, to resell the goods delivered under retention of title in the ordinary course of business. The purchaser hereby assigns to us all his claims against third parties arising from the resale in the amount of the invoice value agreed between the purchaser and us, including all ancillary rights (prolonged retention of title). We hereby accept the assignment. Any other assignments are not permitted. The purchaser remains entitled to collect these claims until revocation and as long as he is not in default of any payments. If the purchaser defaults on any payments due to us, he must inform the debtors of the assignment. In this case, we are also entitled to disclose the assignment to the respective debtors and exercise our right to collect the claims. Therefore, the purchaser is obliged to provide us with all documents and disclose the names of his customers to enable us to collect the claim ourselves. 3. The purchaser is only entitled and authorised to resell the goods in the usual, ordinary course of business and only on condition that the claims assigned to us under Sec. 15.2 above are actually transferred to us. The purchaser is not entitled to otherwise dispose of the goods. Furthermore, the purchaser is not entitled to pledge the retained goods or transfer them to third parties as security. The purchaser must inform us in writing without delay of any compulsory execution measures undertaken by third parties in respect of our retained goods. He must provide us with all necessary information to enable us to file a third-party action against enforcement; the resulting costs shall be borne by the purchaser. 4. The purchaser is entitled to process the goods in the ordinary course of business. The purchaser shall process the goods on our behalf, without us incurring any obligations thereby. If the goods are processed, combined, mixed or blended with other goods not supplied by us, we shall acquire co-ownership of the new product in proportion of the invoice value of the goods to the other processed goods at the time of processing, combination, mixing or blending. If the purchaser acquires sole ownership of the new product by law, he hereby grants us co-ownership of the new product in the above-described proportion and undertakes to store the product for us free of charge. 5. If the purchaser acts contrary to the contract, in particular if he defaults on any payments or breaches his obligation to handle the goods with care, we are entitled, after issuing a warning notice and setting a period, to withdraw from the contract and take back the goods. In this case, the purchaser is obliged to return the goods after we have declared withdrawal. 6. The purchaser shall inform us without delay, handing over the documents required to file an action against enforcement, of any compulsory execution measures undertaken by third parties in respect of the goods subject to retention of title or the claims assigned to us. 7. If the purchaser is not resident in Germany, he shall undertake all actions required by law or otherwise that are necessary to ensure that our retention of title, as provided for in these GTC, is effective in the country to which the goods are delivered. 8. The purchaser is obliged to take out sufficient insurance for the retained goods at his own expense. We are entitled to request presentation of the corresponding insurance policy as well as corresponding receipts of premium payments at any time. 9. We undertake to release securities at our option upon request of the purchaser if the realisable value of the securities provided to us exceeds our claims by more than 20%.
16. Samples, drawings, price lists
1. We reserve all rights (including copyrights, the right to apply for industrial property rights as well as patents, utility models, topography rights, registered designs, trademarks) to all our documents, such as specifications, drawings, notes, instructions, technical notifications or technical data, both in paper and electronic form. Any material handed over to the purchaser shall remain our property and shall be returned free of charge upon request. The materials may not be made available to third parties without our prior express written consent. 2. All models are protected by law. Any imitations will be prosecuted. Any drawings, clichés, reproductions and/or other depictions of our models created by the purchaser or seller as well as the names "Leicht", "Alsa", "Contempi" and "Interstar" may only be shown or otherwise used in newspapers, advertising brochures, etc. with our express written approval. The same applies to our model designations and names. In the event of noncompliance, we are entitled to exercise a right of retention and reserve the right to assert further claims.
17. Use of text, image and video material and logo, trademarks
,In the download section of our website, we provide our purchasers with text, image and video material for advertising purposes. We grant the non-exclusive, non-transferrable right, revocable at any time, to use the logo, text, image and video material, in particular on labels, packaging material and in advertising. The right of use is subject to the following restrictions: - The text, image and video material made available may be used exclusively if reference is made to LEICHT Küchen AG (lettering or logo). - The logo as well as the text, image and video material may only be used in the specified design and form, i.e. excerpts, montages, variants edited using photographic technology or electronic means as well as reproductions are not permitted. - No rights against us can be derived from the use of the logo after termination of the activity as a LEICHT dealer. Any use of text, image or video material and/or the logo suggesting that the purchaser and we are affiliated companies is not permitted. Likewise, the use of the logo in connection with the name of a city or town, a region, and/or address or any variants thereof is not permitted without our prior written consent. - The use of the LEICHT trademark as a domain or part of a domain is not permitted without our prior written consent. This shall also apply to all digital media (email accounts, website accounts, social media accounts, such as Facebook, Pinterest, Instagram, Twitter, as well as other Internet platforms). After revocation of the right of use, we grant a 9-month grace period. The right of termination for cause pursuant to Sec. 314 BGB shall remain unaffected.
18. Final provisions
1. The purchaser is only entitled to assign or transfer any claims after obtaining our prior consent. 2. These GTC and all legal relations between the purchaser and us shall be governed by the law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11/04/1980 shall be excluded. 3. The place of performance for all mutual obligations, in particular for payments of the purchaser and for our deliveries, shall be the headquarters of our company in Waldstetten. 4. For any disputes directly or indirectly arising from the business relationship, including those resulting from bills of exchange, accepted bills or cheques offered as payment, our place of business in Schwäbisch Gmünd shall be deemed agreed as the exclusive – also international – place of jurisdiction, insofar as the other party is a merchant, a legal person under public law or a special fund under public law. The plaintiff is also entitled to bring legal action at the defendant's place of business.