GERSTENBERG living GmbH
Kornmarkt 22
02625 Bautzen

info@gerstenberg-living.de
www.gerstenberg-living.de

§1 General, scope of application

1. These General Terms and Conditions apply exclusively to all contracts concluded by us as seller or supplier.
2. We do not recognize any terms and conditions of the buyer/customer that conflict with or deviate from these General Terms and Conditions unless we have expressly agreed to their validity in writing. These General Terms and Conditions shall also apply if we carry out the delivery to the buyer/customer without reservation in the knowledge that the buyer/customer’s terms and conditions conflict with or deviate from these General Terms and Conditions.
3. These General Terms and Conditions shall also apply to all future transactions with the buyer/customer.
4. These General Terms and Conditions only apply to companies within the meaning of Section 310 (1) BGB.

§ 2 Offer and acceptance

1. Offers contained in brochures, advertisements etc. or issued on request are also subject to change and non-binding with regard to prices and delivery periods.
2. We are bound to specially prepared offers for 30 calendar days, unless otherwise stated. Drawings, illustrations, dimensions and weights and other performance data are only binding if this is expressly agreed. However, this does not make these details guaranteed characteristics.
3. The contract is only concluded with our written confirmation and with its content or by delivery.
4. Any collateral agreements or assurances given by our sales staff or our sales representatives are only binding after our written confirmation.
5. Obvious errors, printing errors, calculation errors, typing errors and obvious, obvious calculation errors are not binding on us and do not entitle the buyer/customer to compensation.

§ 3 Prices and price changes

1. The prices stated in our price lists / brochures are subject to change. The list and daily prices valid at the time the order is placed or the prices shown on our offers plus the applicable statutory VAT shall apply. List and daily prices are deemed to be agreed and do not have to be shown again when we accept the order.
2. Additional deliveries and services shall be invoiced separately. In the event of a later order restriction by the purchaser, the prices shall be recalculated in accordance with our operating conditions.
3. The prices stated in our order confirmation shall apply. If there are more than 4 months between the conclusion of the contract and the agreed and/or actual delivery date, the prices valid at the time of provision or delivery shall apply.
4. The buyer/customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been expressly recognized by us.

§ 4 Deliveries

1. The minimum order value is EUR 15,000.00 net value of goods. If this value is not reached, we are entitled to charge pro rata freight and processing fees without prior notice.
2. Delivery dates and deadlines are non-binding. They shall only be binding if they have been agreed and confirmed in writing. Compliance with the deadlines is subject to the timely receipt of all documents to be supplied by the customer and the agreed terms of payment. If prerequisites are not fulfilled on time, the deadline shall be extended accordingly. The delivery dates shall be deemed to have been met: a) in the case of delivery without installation and assembly, if the ready-to-operate consignment has been dispatched or collected within the agreed delivery or performance period b) in the case of delivery with installation or assembly, as soon as these are carried out within the agreed period.
3. If, by way of exception, the arrival of the goods at the customer’s premises has been agreed separately as the delivery date, delays in transportation shall be borne by the customer.
4. Where possible, the goods shall be delivered by the Contractor’s logistics partners, otherwise the Supplier shall be free to choose the means of transportation. Other transportation costs, including the additional costs for express delivery or parcel services (e.g. for subsequent delivery of accessories or spare parts), which are used at the request of the customer, shall be borne by the customer.
5. In the case of shipment, the completeness and quality of the delivery must be checked immediately upon receipt of the goods.
6. Notices of defects will only be considered if the complaint is reported to us within a period of 3 calendar days.
7. We are entitled to make partial deliveries and render partial services at any time.
8. We shall be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible. If the delay in delivery is not due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
9. We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is due to the culpable breach of a material contractual obligation. In this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
10. Otherwise, in the event of a delay in delivery, we shall be liable for each full week of delay within the scope of a lump-sum compensation for delay in the amount of 0.5% of the delivery value, but not more than a total of 5% of the invoice value of the delivery affected by the delay.
11. The risk of accidental deterioration and accidental loss shall pass to the customer as soon as the goods have been handed over to the person carrying out the transportation or have left our vehicle upon delivery.

§ 5 Deterioration of assets

1. If the customer is in arrears with a payment or if we become aware of indications of a deterioration in the customer’s assets or insolvency, we shall be entitled to suspend production and delivery. We are also entitled to demand immediate advance payment of all our claims, including those not yet due and deferred, including claims on bills of exchange, or to demand the provision of security.
2. If the customer does not comply with our request for advance payment or the provision of security in due time, we shall be entitled to withdraw from all contracts.

§ 6 Payments

1. Our invoices are payable within the payment term stated on the invoice.
2. All prices stated in price lists and brochures are net prices plus the statutory VAT applicable at the time of delivery of the subject matter of the contract.
3. Discounts shall not be granted if the customer is in arrears with the payment of earlier services.
4. Payment shall only be deemed to have been made when we can dispose of the amount. The acceptance of checks and bills of exchange may be refused by us; acceptance is subject to encashment. Cheque and bill of exchange charges shall be borne by the customer; payment shall only be deemed to have been made when the cheques and bills of exchange as well as the bank debit notes have been honored.
5. If the buyer/customer is in default of payment, the interest and other costs incurred shall be reimbursed. Interest is currently 5 percentage points above the respective base interest rate.

§ 7 Default of acceptance

1. If the customer does not accept the subject matter of the contract in due time, we shall be entitled, without prejudice to our other rights, to invoice him for the goods immediately. In all cases of default of acceptance, the entire purchase price shall be due immediately, without any agreed payment deadlines, rebates or discounts. Storage charges and transportation costs shall be borne by the customer. The service shall be deemed to have been rendered upon notification of the service to the customer. All periods to which the supplier has committed itself (e.g. warranty or maintenance periods) shall commence from this point in time.
2. The risk of accidental deterioration or loss shall pass to the customer immediately upon refusal to accept or take delivery. After expiry of a grace period to be set by us, we shall be entitled to deliver the goods to the customer or to store them at the customer’s or a third party’s expense. If it becomes apparent that final acceptance and payment will not take place, we shall be entitled to utilize the goods after notifying the customer in advance. Utilization costs and loss of earnings shall be borne by the customer.
3. We reserve the right to claim further damages.

§ 8 Retention of title

1. We reserve title to the delivered item until all claims arising from the purchase/delivery contract have been paid in full. This shall also apply to all future deliveries, even if we do not always expressly refer to this. We are entitled to take back the purchased item if the buyer/customer acts in breach of contract.
2. The buyer/customer is obliged to treat the purchase/delivery item with care as long as ownership has not yet been transferred to him. In particular, he is obliged to insure it adequately at his own expense against theft, fire and water damage at replacement value. If maintenance and inspection work has to be carried out, the buyer/customer must carry this out in good time at his own expense. As long as ownership has not yet been transferred, the buyer/customer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action in accordance with §771ZPO, the buyer/customer shall be liable for the loss incurred by us.
3. The buyer/ordering party is entitled to resell the goods subject to retention of title in the normal course of business, provided that the goods subject to retention of title were usually acquired for resale for this transaction. The buyer/customer hereby assigns to us the claim from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including VAT). This assignment shall apply irrespective of whether the purchase/delivery item has been resold without or after processing. The buyer/customer shall remain authorized to collect the claim even after the assignment. This shall not affect our authorization to collect the claim ourselves. However, we shall not collect the claim as long as the buyer/customer fulfills his payment obligations from the proceeds received, is not in default of payment and, in particular, has not filed an application for the opening of insolvency proceedings or has not suspended payments.
4. The treatment and processing or transformation of the purchased item by the buyer/orderer shall always be carried out in our name and on our behalf. In this case, the expectant right of the buyer/customer to the transformed item shall continue. If the purchased item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the objective value of the item purchased by us to the other processed items at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the item of the buyer/customer is to be regarded as the main item, it is agreed that the buyer/customer transfers proportional co-ownership to us and keeps the resulting sole ownership or co-ownership for us. To secure our claim against the buyer/customer, the buyer/customer also assigns to us such claims which accrue to him against a third party through the combination of the reserved goods with a property. We hereby accept the assignment.
5. We undertake to release the securities to which we are entitled in this respect at the request of the buyer/customer insofar as the value exceeds the claims to be secured by more than 20%.
6. We are free to assign our claims against the buyer/customer.

§ 9 Warranty/defect claims

1. Warranty claims of the buyer/customer presuppose that he has properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 HGB (German Commercial Code).
2. Claims for defects shall become time-barred 12 months after the transfer of risk. The above provision shall not apply if the law pursuant to § 438 para. 1 no. 2 BGB, § 479 para. 1 BGB and § 634 a para. 1 no. 2 BGB prescribes other mandatory periods.
3. If, despite all due care, the delivered goods have a defect that already existed at the time of the transfer of risk, we shall, subject to timely notification of defects, either repair or replace the goods at our discretion.
4. If the second supplementary performance fails, the buyer/customer may withdraw from the contract or reduce the remuneration without prejudice to any claims for damages.
5. We shall be liable in accordance with the statutory provisions if the buyer/customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of representatives or vicarious agents.
6. Insofar as we cannot be accused of intentional breach of contract, liability for damages shall be limited to the foreseeable, typically occurring damage.
7. We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
8. Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
9. Unless otherwise stipulated above, liability is excluded.

§ 10 Copyright

1. We reserve the unrestricted proprietary and copyright exploitation rights to cost estimates, drawings and other documents; they may only be made accessible to third parties with our prior consent. If the order is not placed, documents belonging to the offers and/or other documents, including any copies made, must be returned immediately on request.
2. The customer shall bear sole responsibility for ensuring that the rights of third parties, patents, utility models and other copyrights are not infringed by the execution of his order.

§ 11 General provisions, place of jurisdiction

1. Should any provision of these General Terms and Conditions or any other agreement made be or become invalid, this shall not affect the validity of the remainder of the contract. The contracting parties are obliged to replace the invalid provision with a provision that comes as close as possible to the economic purpose of the invalid provision.
2. The law of the Federal Republic of Germany shall apply exclusively. UN sales law is excluded.
3. If the buyer/customer is a merchant, the place of jurisdiction is the registered office of GERSTENBERG living GmbH. However, we are also entitled to sue the buyer/customer at the court of his place of residence.
4. Unless otherwise agreed, the place of performance for all contractual and statutory claims shall be our registered office.