GENERAL TERMS OF SALE, DELIVERY AND PAYMENT
1. General Provisions
1) For all our deliveries, work and services our subsequently mentioned General Terms of Trade (AGBs) exclusively apply in their latest version. These also apply to all future transactions with a buyer. We accept differing conditions only if we explicitly confirm or acknowledge them in writing. This will also apply in cases where we delivered without any objections even knowing that the customer had stated adverse terms. In any case the customer will acknowledge that our conditions are legally valid if he accepts our deliveries and/ or work fully or in part or if he pays part of or the entire purchase price.
2) Changes and alterations to the sales contract need to be done in written form. Collateral agreements, promises or declarations are only binding if we confirm them explicitly.
3) Furniture produced in a series is sold as types or models. There is no right to obtain exhibition models. Pictures shown in catalogues are not legally binding.
4) An authorization to collect money is only given on presentation of a power of attorney.
2. Offers and Acknowledgement of Orders
1) All offers are subject to confirmation.
2) Orders and agreements, also made with representatives or employees only become effective with our written acknowledgement of order, which also determines the size of our delivery obligations.
3) Our right for possible slight changes to models or workmanship, colour and veneer are expressly reserved – they are not considered to be the legal basis for claims because of “faulty delivery”. The same applies to changes which serve technical improvements. This applies especially to later orders following a first order.
1) They are quoted ex works plus legal V.A.T.
2) If a customer stops payments, he has the obligation to send us a complete listing of merchandise which is fully or partially our property, as well as complete information on possible obligations to third parties. In case we take the merchandise back, our factories will determine the amount of devaluation of property and/or possible labour costs which might be needed. They will amount to at least 30% of the invoice total.
4. Delivery Dates / Periods
1) The scheduled delivery periods are nonbinding and start, if all details are clarified, from the date of the acknowledgement of order.
2) Partial deliveries are possible, provided we ourselves are supplied in time.
3) In cases of force majeure, like strikes or lock-outs – whether legal or illegal –, and in all other cases which are due to circumstances we cannot be held responsible for, we are not bound to meet our delivery obligations. If they last longer than two months we are entitled to withdraw from the contract, not giving the buyer any right to claim damages. This also applies in cases where we have already delayed delivery due to such events. However, we have to inform the buyer as soon as possible and in writing.
4) In the case of orders and deliveries to be called forward, without a binding delivery date, the buyer is obliged to inform us in writing of a binding acceptance date six weeks before.
5. Delays in Delivery and Impossible Deliveries
1) In the case of delays in delivery caused by negligence (not gross negligence), the buyer can demand 0.5% per week delayed, altogether not more than 5% of the value of the product of the total delivery which he cannot use (punctually) according to the contract as a result of a delayed or an impossible delivery. The amount of the damage is to be assessed higher/lower if we or the buyer can prove a greater damage
2) Despite the buyer’s right to withdraw from the contract because of complaints (10. Guarantee) the buyer can make use of his right to withdraw in the case of an impossible or a delayed delivery only if we can be held responsible for a breach of duties.
3) In case of a delay, the buyer can only withdraw from the contract or demand damages instead of the delivery, if he has first informed us in writing of his fixing an appropriate period of at least four weeks and thereby expressly making clear that if the deadline should not be met, he will withdraw from the contract and/or demand damages or compensation for expenses. After expiry of the deadline the buyer is obliged to inform us whether he still demands delivery or damages or compensation for expenses or whether he withdraws from the contract. If the buyer does not do so within a period of time fixed by us, he can no longer refuse delivery and is no longer entitled to claim the mentioned rights.
4) It is not necessary for the buyer to fix a deadline (clause 3), if we seriously and definitely refuse to perform the contract or if there are circumstances which give the parties to the contract the right to immediately withdraw from the contract, having considered the interests of both sides.
5) For a claim to damages or compensation for expenses, paragraph 11. of these terms applies.
1) Packing material can be invoiced.
2) Only reusable pallets can be taken back.
7. Despatch and Passing of the Risk
1) The buyer is obliged to immediately examine incoming goods for transport damage and to inform the carrier of damage that can be detected from outside when unloading the goods. This advice/report must clearly characterize the damage and the latter must be noted on the shipping documents.
2) Loss or transport damage that cannot be detected from outside has to be reported in writing within seven days after unloading.
8. Payment Conditions
1) If nothing different was agreed upon, all invoices are due for payment without any discounts within 30 days after invoice date.
2) We reserve the right to issue invoices for the agreed service by either regular mail or electronically by email. The Purchaser shall make sure that any electronic invoices sent by email can be properly delivered to the email address indicated by the Purchaser.
3) In contracts with sales and purchase organisations (‘Einkaufsverbände’) those agreements apply which were concluded with these organisations in written form.
4) Bills of exchange will only be accepted on the basis of a written agreement and provided they can be discounted and they are only accepted as security. This means that they will only be credited to the customer after the money was received and only with reservation. All expenses accrued for such bills of exchange and all discount expenses will be charged separately and are to be paid at once.
5) In the case of a default of payment, we are entitled to demand interest for default, amounting to 1% per month started and, if the situation justifies it, to demand compensation for the damage actually caused.
6) We have the right to withhold further deliveries as long as all preceding deliveries are paid. If we learn about circumstances making the buyer’s creditworthiness/solvency worse after conclusion of a contract, we are entitled to demand payment before delivering the goods. If the buyer does not pay or give us security within a period of time stipulated by us, we have the right to withdraw from the contract.
7) Discount deductions will only be accepted by us if the buyer hasn’t defaulted/delayed any payment to us.
8) The buyer is not entitled to withhold payments due to pending claims resulting from other contracts the buyer has concluded with us. The buyer is not allowed to offset his accounts receivable against our accounts receivable except for undisputed accounts to be received or debts determined by legal action.
1) For obvious defects in law or material, the nonexistence of characteristics promised by us, e.g. the durability/stability of the goods delivered, as well as for defects in the delivered quantity (higher/lower quantity) or completely wrong deliveries, the buyer has to immediately raise written claims, however not later than within eight days after arrival of the goods at their place of destination and before their being worked or processed, delivered or resold, exactly indicating every single defect. Packing may be opened as far as possible when doing so. Defects that cannot be detected when examining the goods upon receipt also have to be reported by the buyer immediately in writing, however not later than eight days after their being detected. Complaints must be received by us within our guarantee period.
2) If complaints are not raised within the periods of time according to paragraph 9. clause 1) there will no longer be any right to guarantee.
1) We are not liable for insignificant alterations to the quality agreed upon and with an irrelevantly reduced usefulness of the goods delivered. Our guarantee does not include ordinary wear and tear, undue handling or use as well as reuse of damaged goods. Our guarantee is no longer valid, as soon as repairs or changes are made to the products by third parties, not having made a complaint with us and us thus given the opportunity to remedy the defect by means of an additional delivery or repairs within an appropriate period of time fixed. Moreover there is no guarantee, if our assembly and maintenance/service instructions have not been observed correctly.
2) Reference is made to paragraph 2. clause 3), above. In cases where we have the right to effect such changes and alterations, no buyer is entitled to claim damages because of defects. This especially applies to changes in wood structures, textiles, leather and in variations of colour if wood, plastic boards or panels or plastic foil is concerned. Lacquered parts are subject to natural maturing. Therefore, in later deliveries differences in colour which are due to such ageing do not justify a possible claim for faulty delivery.
3) Despite claims raised, the buyer is obliged to accept the goods, unload them and properly store them.
4) In case of a defect which has been claimed in time according to paragraph 9. of these terms we decide how to remedy the defect, that is either by repair or a delivery of replacements, provided that the buyer can prove that the defect had already existed when the risk passed.
5) If we have allowed an appropriate period of time of at least four weeks, fixed for a late fulfilment of our contractual obligations to lapse, if we have made repairs twice or if we have delivered replacements once and could the existing defect not be removed thereby, as well as in cases in which we refuse to make the necessary repairs or deliver replacements without any right or good reason to do so, if we unduly delay them or if the buyer cannot be expected to accept repairs for other reasons, as well as if the prerequisites of paragraphs 281 clause 2 or 323 clause 2 BGB (German Civil Code) apply, the buyer can make use of his legally stipulated rights to either withdraw from the contract and/or being granted a deduction from the purchase price as well as claim damages or demand compensation for expenses, the latter two within the framework of subsequent paragraph 11. of these terms instead of repairs or a later/an additional delivery.
6) If goods delivered have later been taken to another place than the buyer’s place of business, thus increasing expenses, especially transport, route, labour and material costs of a repair or delivery of replacements, the buyer has to come up for these increased expenses except for cases in which the conveyance to another place corresponds to the intended use of the goods.
7) Complaints made with representatives, warehouse directors or another third party are only binding for us, if we acknowledge them in writing. This also applies to all other promises made by our representatives, employees or other third parties.
8) The statutory period of limitation for all claims to be settled under guarantee amounts to 12 months from handing-over of the goods. With damage resulting from an injury of a person’s body, health or life caused by a defect we are responsible for, the statutory period of limitation is 24 months from handingover of the goods.
1) As far as these terms do not stipulate anything different, the buyer has no right to claim compensation for damage of any kind, neither for expenses nor for indirect damage, like e.g. damage caused by a construction or production stop. This especially applies to demands due to any violation of obligations arising from debts/liabilities or unlawful acts. We do not assume any liability in the case we have authorized assistants to fulfil/perform or execute our contractual obligations.
2) Contrary to paragraph 11. clause 1) we do assume liability in cases our executives or assistants to fulfil acted grossly negligent or wilfully as well as in cases in which we, our executives or assistants to fulfil culpably violated essential contractual obligations (cardinal obligations), thus putting the objective of the contract as a whole at risk. With irrelevant violations of obligations we are not obliged to compensate for damage instead of performance of the contract.
3) With infringements of cardinal obligations our liability is limited to the order value according to the amount of the same, however only in the case of negligence (not gross negligence).
4) Should in the case just mentioned (paragraph 11. clause 3) the order value, as an exception, not correspond to the typically foreseeable damage, our liability is limited to the typically foreseeable damage according to its amount.
5) We do assume liability in cases of claims arising from the Product Liability Law or if the quality or durability/stability of the goods delivered has been guaranteed. Moreover, we assume liability for damage due to an injury of a person’s body, health or life.
12. Reservation of Property Rights
1) Merchandise delivered by us remains our property until the time the customer has paid all obligations which have already arisen or which will arise in future (enlarged property reservation as reservation on payment balance or bank giro account reservation).
2) However, the customer has the right to sell goods which were delivered to him under such reservations in his normal business transactions, in case he is not in default of payments. At this time he will automatically transfer to us all claims third parties might own him, up to the difference between invoice amounts due to us and those coming to him from third parties (prolonged reservation of property). Other cedings are not permitted. The customer will retain all rights to collect such claims unless he is in default of payment himself. However, the customer has the obligation to give all documenting evidence to us and to tell us the names of his customers, so that we are in a position to collect outstanding claims ourselves. Especially, our customer has to inform his customers of the fact that such claims were transferred to us.
3) Customers are obliged to insure those goods sufficiently which fall under this reservation. We have the right to request that we be shown the respective insurance policies and receipts of premium payments at any time.
4) Customers are not permitted to pawn goods still under property reservation or to give them to third parties as security. We must be informed immediately of execution measures of any type which third parties may have started involving goods under property reservation. This must be done by our customers in writing and in full detail, to enable us to protest through legal channels. All costs incurred must be borne by the customer.
5) Should binding legal provisions make us lose our property rights after fitting our property (e.g. built-in kitchens), customers have the obligation to transfer their doubtful claims to us in the amount of the difference between invoice amounts between customer invoice and our invoice.
6) If our securities exceed claims which must be secured by more than 20%, customers are en- titled to request that they be relieved of the respective amounts of security.
7) If customers are in default, we are entitled to take the goods back – but taking them back only means a cancellation of order if we confirm this specially in written form.
13. Samples/Models, Drawings and Price Lists
1) These remain our property. Material which was lent out has to be returned to us on our request.
2) All models are legally protected. Imitation will be persecuted. Drawings, plates, reproductions and/or other pictures of our models which were produced by buyers or sellers and the names “Leicht”, “Alsa” and “Interstar” can only be published in newspapers, advertisements, etc. after we have approved this in writing. This also applies to indications and names of our models. In case of violation, we are entitled to demand our property back and we reserve the right for further claims.
14. Usage of Image Materials and the LOGO; Trademark Rights
In the download section on our website, we provide our customers with images and the LOGO which may be used for advertising. We grant our customers a simple, non-transferable right to use these image materials and the LOGO for advertising purposes. However, this usage right shall be limited on the basis of the following:
• The image materials and the LOGO may exclusively be used in the configuration and form indicated by the company, i.e. any details, montages, variants which were altered in any way through photo technology and/or in an electronic manner as well as reproductions shall be inadmissible;
• The use shall exclusively be admitted for the purpose of distributing the product;
• Information about prices and discounts must be agreed upon with LEICHT Küchen AG;
• With respect to LEICHT Küchen AG, no rights whatsoever may be derived from the use of the LOGO. Any use of the image materials and/or the LOGO giving reason to believe that the purchaser and LEICHT Küchen AG are associated companies is inadmissible. In addition, the use of the LOGO in combination with the name of a town, a region and/or an address or any variants thereof without the prior approval of LEICHT Küchen AG shall be prohibited.
• The use of the LEICHT trademark as a domain or as a part of a domain without the prior approval of LEICHT is not allowed. This shall apply to all digital media (such as e-mail accounts, homepage accounts, Facebook, Pinterest, Twitter etc.).
15. Place where a contract is to be fulfilled - Venue - Validity of Laws
1) For all disputes arising from business relations, directly or indirectly, including payment problems with bills of exchange, acceptances or cheques, the involved parties agree, as merchants, to the exclusive jurisdiction of the courts in Schwäbisch Gmünd. Moreover, the plaintiff is entitled to also sue/bring an action at the defendant’s headquarters.
2) German law is exclusively valid for all sales and deliveries and all legally founded relations. The Vienna UN Agreement on contracts for international sales/purchases of goods of April 11, 1980 cannot be applied.
3) Place of fulfilment of all mutual obligations is the head office of our company in Waldstetten.