I. Conclusion of contract
The contract has come into existence with the written confirmation of the seller of the purchase order signed / submitted by the purchaser, based on the determined agreement and the following conditions.
No oral side agreements have been made. Agreements must be made in writing in order to be effective.
Any and all information regarding products, product features and prices shall apply subject to errors.
II. Violations of contract and rescission
1. If the purchaser is in default of payment and does not effect payment after setting of a reasonable period of grace by the seller or if the purchaser seriously and finally refuses to pay the ordered goods, the seller shall be entitled at seller’s choice
a) to rescind the contract or
b) to claim damages in lieu of performance amounting to 25% of the purchase price if the goods already are at the warehouse of the seller and/or the purchase order cannot be cancelled with the sub-supplier any more; in all other cases amounting to 10% of the purchase price.
The purchaser shall be allowed to furnish proof that the seller has not incurred damage at all or only to a significantly lower amount.
The seller reserves the rights on its part to prove higher damage in the individual case.
2. If the goods ordered are not accepted after expiry of the originally agreed period of delivery or the call-off date provided for in the purchase order and if the purchaser seriously and finally refuses to accept the goods even after expiry of the period of grace of two weeks set by the seller, the seller shall be entitled to rescind the contract or to claim damages in lieu of performance pursuant to paragraph II. 1. b) above at seller’s choice.
In addition, the seller shall be entitled to charge the storage costs occurring. If the seller learns of facts indicating the bad financial situation of the purchaser from a reliable source after conclusion of the contract, e.g. if orders to pay, protests of bills or compulsory execution measures have been issued against the purchaser, the seller shall be entitled to refuse delivery and to set to the purchaser a period of two weeks for advance payment or provision of a security. After futile expiry of this period, the seller shall be entitled to rescind the contract.
III. Instruction on right of return and right of return in case of distance selling
1. Right of return
If the purchaser ordered the goods by way of distance selling, i.e. via a means of telecommunication such as letter, catalogue, phone, fax or e-mail, the purchaser may return the goods received in this case without stating reasons within two weeks by returning the goods. The period starts at the earliest upon receipt of this instruction in text form (i.e. letter, fax, e-mail) but not prior to receipt of the goods and also not prior to fulfilling of our duty to inform pursuant to § 312 c para. 2 BGB [German Civil Code] in conjunction with § 1 para. 1,2 and 4 BGB InfoV [Civil Code Ordinance on the Duty to provide Information]. Only in cases where the goods cannot be shipped as parcel may the purchaser may declare the return also by request to collect the goods in text form, i.e. for example by letter, fax or e-mail. The period shall be adhered to if the goods are sent in due time by Deutsche Post or another parcel service or if the request to collect the goods has been sent in due time.
The request to collect the goods has to be addressed to:
The right of return shall not exist in case of goods which are not suitable for a return consignment or which the seller manufactured or had manufactured according to the ideas of the purchaser. The risks and costs of the return consignment shall be borne by the seller. The goods may be posted with the note “recipient pays postage“. In case of a request to collect the goods, the seller shall collect the goods at the customer’s premises as soon as possible.
2. Consequences of return
In case of an effective return, the benefits mutually received are to be granted back and surrendered in case of utilisation already made (e.g. benefits of use). Payments already made shall be reimbursed by the seller. In case of deterioration of the goods, compensation for lost value may be claimed. This shall not apply if the deterioration of the goods is attributable merely to their inspection as would have been possible in a retail store, for example. In order to avoid a claim for compensation of lost value, it is recommended not to use the goods like an owner and to refrain from anything which might impair their value. Obligations to reimburse payments have to be met within 30 days. The period starts for the seller upon sending the goods or the request to collect the goods, for the purchaser upon receipt.
IV. Payments and consequences of violations of the contract /taking back goods
1. Our invoices – also regarding admissible partial deliveries – are payable immediately after effected delivery. The purchaser shall not be allowed to render partial performance pursuant to § 266 BGB. In case of incomplete payment as of the date of maturity, the purchaser shall automatically be in default pursuant to § 268 BGB.
In case of default of payment, we shall be entitled to charge default interest amounting to 5% above the base lending rate. Dunning costs amounting to EUR 7.50 per required dunning shall occur additionally.
2. In case of rescission from the contract and in cases of taking back goods, we may assert the following claims for compensation of expenses, letting for use and loss of value:
For the expenses paid as consequence of this contract such as transport and insurance costs to the amount actually occurred, at least amounting to 10% of the purchase price unless a partial payment transaction is concerned. The purchaser shall be allowed to furnish proof that these costs did not occur or only to a significantly lower amount.
3. In all cases where the seller states compensation or costs to be paid by the purchaser based on lump-sum rates (pursuant to clause III. 1 and 2. above), the purchaser shall be allowed to furnish proof that no damage was incurred by the seller at all or that damage was incurred only to a significantly lower amount.
4. The prices stated shall not include any shipment and insurance costs. Such costs shall be charged separately.
5. In case of new customers and deliveries to other countries in Europe or outside of Europe, the shipment/handing over shall take place only after payment in advance or cash on delivery. Bills of exchange will not be accepted.
6. The prices include the VAT rates applicable at the time of the purchase order. If the VAT is changed between the purchase order and the delivery, the VAT rate applicable at the time of delivery shall be authoritative.
V. Dates and periods for performance
1. If the seller is not able to adhere to the/an agreed period of delivery or a period of delivery announced without commitment, the purchaser shall have to set a reasonable period of time for performance or supplementary performance. When setting the period of time, the replenishment times of the sub-supplier are to be taken into account. This shall not apply in case of a period of delivery determined by a fixed calendar date or period and/or if the seller seriously and finally refuses the performance. If the seller does not deliver within the set period of time for performance or supplementary performance, the purchaser shall be entitled to claim damages in lieu of performance or to rescind the contract at purchaser’s choice.
2. Delivery times shall be non-binding. If our deliveries become impossible due to the fact that our sub-suppliers fail to supply us, another replacement purchase was possible only with disproportionate and unreasonable effort and this impossibility is not at our fault, we shall be entitled to rescind the contract. We shall immediately inform the purchaser about these circumstances. Payments possibly already made by the purchaser shall be reimbursed by us.
3. Partial deliveries shall be admissible to the extent that they are in the interest of the purchaser and are reasonable for the purchaser. If the seller does not render the remaining performance after partial delivery despite request of the purchaser, the purchaser may claim damages in lieu of the entire performance or rescind the entire contract if the purchaser is no longer interested in the partial performance of the contract.
VI. Liability for defects
1. If the goods show a defect upon handover, the purchaser shall be entitled at purchaser’s own choice to claim supplementary performance by delivery of a substitute item free from defects or subsequent improvement. If merely a supplied individual component is defective, the seller shall be entitled to meet the request for substitute delivery of the purchaser by delivering an individual component free from defects. If the subsequent improvement fails and/or if the substitute delivery is not made within a reasonable period of time set to the seller, the purchaser shall be entitled to rescind the contract or to reduce the purchase price at purchaser’s choice if the goods show a defect which is not insignificant. When setting the period of time, the replenishment times of the sub-supplier are to be taken into account. If the goods merely show a defect which is insignificant, the purchaser only shall be entitled to reduce the purchase price. This shall also apply if the seller seriously and finally refuses to render the supplementary performance (both substitute deliveries as well as subsequent improvement) or if such supplementary performance is unreasonable for the purchaser. The assertion of a claim for damages in lieu of performance shall be excluded unless the seller fraudulently concealed the defect or has given a guarantee for procurement of the item or the seller caused the damage intentionally or in grossly negligent manner.
2. The seller shall be entitled to refuse the form of supplementary performance chosen by the purchaser if the seller is only able to render such supplementary performance with disproportionately high costs. The purchaser shall then be entitled to request another type of supplementary performance.
3. The warranty shall not extend to such damage caused at the purchaser due to wear and tear, dampness, excessive heating or cooling of the rooms, other temperature or atmospheric influence and improper treatment or storage. Any warranty for damage based on negligent or intentional failure to comply with the maintenance instruction shall be excluded.
4. Obvious defects are to be complained about in writing by the purchaser immediately, however at the latest within two weeks after receipt of the goods. Any transport damage is to be notified to the carrier immediately, the acceptance is to be refused and hannover gallery is to be informed immediately.
5. Claims based on defects in case of newly manufactured items shall become time-barred within two years after delivery, in case of supplied sample items, they shall become time-barred within twelve months after delivery.
VII. Securing of the purchase price
The goods shall remain the property of the seller until the complete payment of the outstanding purchase price. The purchaser undertakes to safeguard the property of the seller correspondingly even if the supplied goods are not directly destined for the purchaser but for third parties and has to expressly point out this reservation of ownership to recipients.
VIII. Additional work
Special services exceeding the contractually agreed scope of delivery and not included in the purchase price shall be invoiced at reasonable prices separately and are to be paid in cash upon acceptance.
X. Data protection
The data required for the business relationship shall be stored observing the provisions of the Bundesdatenschutzgesetz [Federal Data Protection Act] and, if need be, forwarded to affiliated companies within the framework of executing the contract. All personal data shall be kept in confidence. They shall be forwarded to third parties only after previous written consent of the purchaser.
IX. Scope / place of performance / place of jurisdiction
These terms and conditions shall apply vis-à-vis companies if the transaction is part of the operation of a mercantile or handicraft business, vis-à-vis legal persons under public law and a public separate estate.
The statutory regulation shall apply to other business partners, in particular for consumer contracts.
Exclusive place of performance for all rights and duties resulting under this contract for both partners shall be the seat of the company hannover gallery, i.e. Hanover.
The seat of our company shall also be deemed as agreed as place of jurisdiction.
However, we shall be entitled to sue the purchaser also at purchaser’s place of residence.
The contract shall be subject to the laws of the Federal Republic of Germany.