§ 1 Scope of Terms and Conditions
(5) Our following terms apply without reservation to all conclusions of contract
with all entrepreneurs and legal entities of public law as laid down in § 310
(1) of the German Civil Code (BGB).
As long as the conditions of the sale of consumer goods are fulfilled, the legal
provisions shall take precedence in case of discrepancy.
Our previous General Terms and Conditions shall lose their validity.
(6) These conditions thus also apply to all future business relations, even if
they have not been agreed explicitly again. The customer is able to demand and
download our General Terms and Conditions at www.schmuckfedern.de at any time.
We will send them upon demand at any time and free of charge.
They also apply, if other General Terms and Conditions were agreed or tolerated
in one or multiple claims.
(7) As far as these conditions are acknowledged with our order confirmation at
first, these conditions are opposite an entrepreneur a part of the contract
through the unreserved acceptance of the goods by him.
(8) Our General Terms and Conditions apply exclusively. Our trading partners’
other conditions or deviations from these conditions take effect only when
confirmed in writing by us.
§ 2 Conclusion of Contract
(1) Our offers are without engagement and not binding.
(2) The order of the goods placed by the customer is considered a binding
contract offer. The customer is bound 4 weeks after our receipt of the order. A
contract is complete when acceptance of the order in writing within that period
is confirmed or the delivery made by us.
A different order from the order confirmation or delivery shall be deemed a new
offer, which is accepted by the client, either expressly or implied by
declaration of acceptance of the goods.
(3) Our order confirmation is decisive for the extent of their goods and
services.
Changes in the scope of supply and services and the resulting price and date
changes must be confirmed by the parties without delay amicably and mutually in
writing. Until the parties have agreed on the changes, they stay bound to the
originally agreed upon and continue with the contract.
(4) We are bound to specifically elaborated offers for 30 calendar days. Ordered
samples are invoiced at full value of the goods.
(5) The customer is liable for the consequences of incorrect or incomplete
information when ordering or call.
§ 3 Prices, Changes in Prices
(1) Our prices are in EURO, ex works or warehouse and don’t include packaging,
freight, postage, insurance and transport, unless otherwise agreed. Statutory
value added tax applies in addition.For agreed shipments abroad, the customer
agrees to pay the customs clearance.
(2) If a payment is due to a separate written agreement in a different currency,
the relevant exchange rate is the EURO reference exchange rate of the European
Central Bank on the due date of payment.
(3) If the period between conclusion of the contract and delivery/service is
more than 4 months and the cost situation have changed, we are entitled to price
adjustment. Requires that the delay in delivery/service was not caused by us.
(4) Our offers/calculations are based on today’s USD reference rates; we reserve
the right to adjust prices at an exchange rate variation of 10 % for raw
material price increases or at a change of the reference price of the ECB
between EURO and the USD by more than 10 %, even with already placed and
confirmed framework contracts.
(5) For orders with delivery to a third party, the customer shall be the
principal, if no other explicit agreement has been made.
(6) Additionally we can charge a lump-sum expense fee of EUR 5.00 plus
value-added tax if the order value does not exceed EUR 50.00 net.
§ 4 Terms of Payment
(1) All deliveries are made against invoice, unless otherwise agreed in
individual cases.
(2) Invoices are due with immediate effect and payable within 30 days of the
invoice date. For payments made within 3 days from the receipt of the invoice a
cash discount of 3 % is granted, for payments made within 4-10 days from receipt
of invoice a cash discount of 2 % is granted.
(3) In general, for new customers and initial orders the term “payment in
advance” or “cash on delivery” is valid.
Otherwise, the payment results by direct debit SEPA Business to Business Direct
Debit Scheme, by bank transfer, cash on delivery or in cash. If paying by direct
debit SEPA Business to Business Direct Debit Scheme, the customer agrees to
recover the outstanding amount within 3 days, the discount of 3 % is granted
automatically.
(4) In the event that a significant deterioration in the financial circumstances
of the purchaser arises after conclusion of the contract, we can demand advance
payments or securities within a reasonable time and have the power to refuse the
service until our fulfilling the demands and can withdraw from the contract with
the fruitless expiration.
Non-payment by the customer, as well as filing or opening a bankruptcy or
insolvency proceedings over the assets of the customer, outstanding invoices are
due for payment immediately.
(5) Set-off is permitted only with undisputed and legally effective claims
against us.
(6) In case of default of an entrepreneur we are entitled to interest at the
rate per annum of 8 percentage points be calculated on the base rate, to take
back the delivered goods and to refuse further deliveries. The rate of interest
for late payment of a consumer is 5 percentage points pa above the base rate.
The contractual payment obligation of the partner remains unaffected. The
assertion of a higher default damages remains reserved.
(7) We reserve the right to payments to repay the oldest invoice items,
including accrued interest and costs to be used in the following order: costs,
interest, principal.
(8) In case of remuneration per expense, our price list is valid.
Our entitlement to progress payments is agreed in individual agreements; but we
are entitled to demand advance payments even when without prior agreement, when
individual, for us otherwise not suitable goods are made for the customer or
when partial deliveries.
§ 5 Transfer of Risk
(1) The risk passes to the buyer once the shipment has been handed over to the
person performing the transport or has left our warehouse, even if partial
deliveries are made.
The delivery deadline is met if, before its expiration, the dispatch has been
notified or the delivery item has left our factory.
(2) When the customer is in default of acceptance or of other obligations that
lead to delays, we are entitled to charge the damages incurred, including any
additional costs. Further claims are reserved. The risk of general price decline
or deterioration of the goods to be delivered passes to the customer as soon as
he is in default of acceptance or failure to fulfil his other duties for
cooperation.
(3) In particular cases the goods are dispatched by direction of the customer.
If no special dispatch instructions are given, it will be left to our discretion
to choose the most economical form of dispatch.
(4) At the customer’s request, consignments are insured in his name and on his
account.
(5) We shall not be answerable for delays in delivery and service due to force
majeure, strikes, unforeseen regulatory actions or other sever and involuntary
interruptions of operation, even in the event of bindingly agreed periods and
deadlines. They entitle us to postpone delivery for the duration of the
hindrance plus a reasonable start-up time. We shall inform the customer in time
of the commencement and termination of such obstructions.
If the event “force majeure etc.” takes longer than 60 (sixty) days, we are
entitled to withdraw from the contract. The same applies to the customer.
Each party shall bear its own additional costs arose because of the delivery,
acceptance or acceptance delay, due to “force majeure etc.” or by cancellation
of the contract incurred and to be incurred.
(6) We reserve partial deliveries.
§ 6 Customer’s Cooperation Duties
(1) We are freed from our obligation when the customer doesn’t meet on time or
correct the following for us free obligations to cooperate – if necessary.
(2) The customer has to inform us of any relevant national laws, regulations,
administrative regulations and other relevant rules in good time and obtain all
necessary permits in time to the competent authority.
§ 7 Retention of Title
(1) The delivered goods remain our property until full payment of all claims
from the current business relationship with the customer. If the purchaser is a
consumer within the meaning of the German Civil Code (BGB), the ownership of the
goods will be subject to full payment of the purchase price.
(2) The purchaser is entitled to process the goods in the ordinary course of
business and continue to sell, he assigns to us all claims in the amount of the
invoice amount of our claims accruing to him from the resale against his
customers or third parties, regardless of whether the goods delivered has been
resold without or after processing. To collect this debt the customer remains
entitled to the assignment. Our authority to collect the claim ourselves remains
unaffected. However, we undertake not to collect the claims as long as the
customer meets his payment obligations from the proceeds agreed.
(3) The processing or transformation of the goods delivered by the customer is
always done for us. If the goods are processed with other objects not belonging
to us, we acquire co-ownership of the new item in proportion to the value of the
goods to the other processed items at the time of processing. The same applies
as for the rest of the goods delivered under retention of title to the object
created by processing. The buyer shall store the co-ownership for us.
(4) We are obligated to release the collateral to the extent requested by the
customer insofar as the value of the securities exceeds the secured accounts
receivable by more than 20 %, provided such have not yet been satisfied.
(5) In cases where third parties access the goods subject to reservation of
title, the customer shall be obliged to point out that the goods are subject to
our reservation of title. In such a case we must be notified immediately.
§ 8 Warranty
(1) Slight arrangement and material deviations, which result from differences in
the material or from technical conditions between draft and final drawing, must
be excepted explicitly and do not constitute a defect.
(2) We guarantee that the products delivered by us are free from fabrication and
material defects.
The warranty period is one year. If the customer resells the goods, the warranty
period is two years.
For customers who are not merchants within the meaning of the German Commercial
Code (HGB), the warranty period is two years.
(3) The warranty period starts with the date of delivery or the collection of
the goods respectively.
(4) The customer shall notify us in writing of any apparent defect – if he is
not a consumer – immediately, at the latest within 7 days after receipt of the
delivery. The notification and rejection in accordance with section 377 of the
German Commercial Code (HGB) shall not be affected. Consumers must inform in
writing within two months following the date on which the non-conformity was
found about apparent defect. Subsequent claims are excluded, unless a not
previously ascertainable labour, materials or design fault is present.
To meet the deadline, it is sufficient if these defects will be sent within the
time limit to us. An apparent defect exists, when noticing even without special
examination by a non-specialist average customer.
For defects, that are not obvious, the time limit for lodging a written
complaint is one year to the consumer.
The defective items have to be held ready for the inspection through us in the
state in which they are at the time when the defect is noticed. If the
obligation to raise the written notice of defects within the indicated time
limit is disregarded, any warranty claims will be excluded.
(5) If the delivered goods are defective, we shall have the right to choose
between subsequent performances in the form of remedy of the defect or
replacement delivery. If the customer is a consumer, he has the right to choose
between subsequent performances in the form of remedy of the defect or
replacement delivery. However, we shall be entitled to refuse the type of the
selected late performance if it is only possible at unreasonable costs and if
the other type of late performance remains without considerable disadvantages
for the consumer.
In case of justified notice of defect there will be a free remedy for which a
reasonable deadline should be granted.
(6) If the subsequent improvement fails, the purchaser has the right to choose
between supplementary performance, reduction of the purchase price, cancellation
of the contract (rescission) and compensation of damages/expenses. In a minor
breach of contract, especially minor defects, the purchaser shall have no right
to rescission.
§ 9 Liability
(1) Outside of warranty limits in case of slightly negligent breaches of duty
our liability is limited to the foreseeable, typical and direct damage and to
the breech of cardinal duties. This also applies to slightly negligent breaches
of duty by our legal representatives or vicarious agents. This liability is
excluded for slightly negligent breach of minor contractual obligations, if the
purchaser is not a consumer. These limitations of liability shall not apply to
claims of the customer from product liability, as well as injury to body or
health, of loss of life of the purchaser, his legal representatives, agents or
other persons of the purchaser.
(2) In the event that the goods to be processed are supplied to us by the
customer, the contractor against any liability to gross negligence and wilful
misconduct is limited for any damage processing.
§ 10 Dyeing, special dyeing and individual
manufacture
(1) Special dyeing is only possible from 1 kilogram per type of feather and
colour.
(2) Special dyes according to colour sample, RAL or PANTONE colour table can
only be reached approximately. Although we will make every effort to attain the
highest possible congruence, a complete correspondence with the colour sample
cannot be guaranteed. It mainly depends on the type of feather to be dyed. Our
colour table, shown in the Internet with colours and colour numbers, can only
serve as a basis and is not suitable for a precise colour sample.
(3) Special dyes, other individual designs as required by the customer or
special designs with individual impression cannot be taken back.
(4) All feather products, if dyed and washed, are provisionally protected
against pest infestation. Natural feathers or raw products, which are not washed,
have to be protected against pest infestation immediately by the purchaser.
(5) A guarantee for water and light fastness cannot be furnished. Dyed feathers
have to be protected from wetness.
§ 11 Tolerances
(1) In case of special dyeing the ordered quantities can be exceeded or not
reached by approx. 10 % as customary in the trade.
(2) Feathers are natural products. It is not possible that all feathers look
alike. That is why the indicated dimensions shall be deemed as “rough” or
“approximate” data. Tolerances or flaws, which are customary in the trade, do
not justify a complaint.
Slight, commercially usual deviations from samples, illustrations and indicated
dimensions, which arise from the handiwork, are permissible.
(3) Errors, misprints or modifications due to reasons relating to manufacturing
techniques or reasons conditioned by the nature (raw products) are excepted by
us.
§ 12 Right of Rescission
(1) We can withdraw from the contract, of it is not possible for us to effect
the delivery within the time stipulated due to all kinds of operating troubles,
both with us and with the supplier, transport problems or cases of force
majeure, such as provided in § 5 (5) of these terms. We are, however, obligated
to inform the customer immediately about the unavailability of the goods and to
refund already effected payments.
(2) We will also have the right of rescission, if the customer gets into
financial difficulties, such as provided in § 4 (4) of these terms. We are,
however, obligated to inform the customer about it immediately and to refund
already effected payments.
(3) If we come in default with the delivery, the customer can withdraw from the
contract in accordance with the legal provisions or claim damages for
non-performance.
(4) The period of grace to be set by the customer is fixed at 4 weeks, which
starts on receipt of the deadline at us.
§ 13 Costs of Cancellation
If the customer withdraws from a placed order without justification, we can
claim – irrespective of the possibility to enforce a higher actual damage – 10 %
of the selling price for the costs resulting from the order processing and for
the lost profits. It is left to the customer to prove a lower damage.
§ 14 Place of Fulfilment and Jurisdiction, Final Provisions
(1) The place of delivery for out goods and services is the respective place of
dispatch of the goods and the place of payment for the ordering party is the
head office in Cham.
(2) Contract language is German.
(3) This contract shall be governed by the law of the Federal Republic of
Germany under explicit exclusion of the United Nations Convention on Contracts
for the International Sale of Goods.
(4) Cham shall be the place of jurisdiction for all disputes arising from the
contractual relation, if not otherwise required by law.
(effective Juni 16 2013)
(c) Christian Zangl, Josef Reinl Schmuckfedern Import-Export e.K.