General Terms and Conditions of Business
of Penther GmbH, Karl-Ferdinand-Braun-Str. 18, 21423 Winsen/Luhe as well as of Formes GmbH, Friedrich-Ludwig-Jahn-Str. 9, 96484 Meeder
The company Penther GmbH, Karl-Ferdinand-Braun-Str. 18, 21423 Winsen/Luhe as well as the company Formes GmbH, Friedrich-Ludwig-Jahn-Str. 9, 96484 Meeder are hereinafter referred to as “Contractor”. The contracting party named in the offer and the order confirmation as well as the person who directly benefits from the contractual performance rendered is hereinafter referred to as “Client”.
1. Offers and orders
Contractor’s offers shall be subject to confirmation. Orders shall not be deemed accepted until confirmed in writing. Order confirmations shall be deemed valid only with the proviso that the supposed local conditions are confirmed in a later inspection and sufficient processing capacities are available. In the absence of an express written agreement to the contrary, all orders shall be subject to these General Terms and Conditions of Business. Unless otherwise herein provided, the VOB/B [General Conditions of Contract relating to the Execution of Construction Work] shall apply in addition. The VOB/B is available for inspection at Contractor’s premises and will be sent to Client upon request. Contractor shall be entitled to have the entire or parts of the performance rendered by third parties without this requiring Client’s separate consent.
Contractor’s prices are fixed prices excluding freight, packaging and assembly. However, if the order is not fully completed within six months, Contractor shall be entitled to adapt the prices in line with any increase in material and labour costs. All prices, including flat-rate prices, are subject to value-added tax at the respective statutory rate. From the second design draft prepared at the customer’s request, 3% of the contract value will be charged for each draft. Client may only exercise rights of setoff in respect of uncontested or legally established counterclaims.
30% of the contract value shall be payable net cash upon placing the order, no later than four weeks before delivery. 40% of the contract value shall be payable on the date of delivery, the remaining amount 14 days net after delivery. Upon Contractor’s request, Client shall provide sufficient security for the payment. The full contract value shall be due after delivery to the extent that Clients has provided Contractor with a bank guarantee from a major German bank covering the contract value by the date of delivery, which shall be payable upon first request. Notwithstanding the provisions governing termination in Sec. 8 and 9 VOB/B, Contractor shall be entitled to cease or not commence the work if Client fails to effect the payment by the due date. If Client defaults on a payment due, Contractor shall be entitled in each case to charge default interest amounting to 5% above the respective applicable bank rate of Deutsche Bundesbank. This shall be without prejudice to the right to claim higher damages caused by default. In the event that Contractor withdraws from the contract and recovers the goods delivered, Contractor shall be entitled to claim reimbursement of the actual expenses incurred by it as a result of the contract, such as transport and assembly costs, as well as adequate compensation for cession of right to use and use.
4. Contractor’s withdrawal and Client’s advance payment obligation
Contractor is not obliged to deliver the goods if the manufacturer has discontinued the production of the goods ordered or if force majeure events occur, to the extent that these circumstances have occurred only after conclusion of the contract and Contractor is not responsible for the non-delivery. Contractor shall notify Client of such circumstances without delay. If the satisfaction of the claim for payment is jeopardised by a substantial deterioration in Client’s financial circumstances after conclusion of the contract, Contractor shall be entitled to refuse performance until the payment is effected or a security is provided. This shall also apply in the event that the Client’s financial circumstances jeopardising the performance of the contract already existed upon conclusion of the contract, but only become known to Contractor after conclusion of the contract. In this case, Contractor shall be entitled to withdraw from the contract, unless Client effects advance payment immediately upon Contractor’s request.
5. Delivery deadlines
Delivery dates or delivery deadlines must be agreed upon in writing. Unless agreed otherwise, delivery deadlines commence upon conclusion of the contract. In the event of subsequent modifications, a new delivery deadline shall be agreed upon, if necessary. If the delivery date or delivery deadline is exceeded, Client shall set Contractor a reasonable deadline. In the event of force majeure, strikes, official orders or other circumstances beyond Contractor’s control, the completion deadlines shall be extended accordingly. If the delivery deadline is exceeded for reasons attributable to Client, Client shall be liable to Contractor for the resulting storage costs and any related expenses.
Following notification of completion of the work, Client shall verify, and upon request confirm in writing, the proper performance of the work without delay, within three working days at the latest. Any defects must be reported in writing. If Client fails to inspect the work and report any defects within this period, the work shall be deemed to have been accepted as free from defects. Partial acceptance shall be permissible.
7. Shipment and transfer of risk
The goods ordered will be shipped ex works for the account and at risk of the purchaser. If the shipment is carried out by Client or its representatives, the risk shall pass on to Client upon handover to Client. If the delivery requires special packaging, the associated costs shall be borne by Client. In the event of delivery for self-assembly, Client shall have no warranty claims for visible defects, unless it notifies Contractor of the defects in writing prior to assembly and within 3 days of handover.
8. Permissible changes
Standard shop fittings are sold by sample. Unless agreed otherwise, there is no entitlement to delivery of the display items. Minor changes resulting from changes in models or production processes as well as customary variations in colour and grain of wooden surfaces and textiles shall be permissible, to the extent acceptable to Client in the specific individual case.
The indicated colours largely correspond to the RAL / NCS / Pantone or other selected colours and are provided for reference. Please note that deviations from the original colours cannot be avoided and that minor RAL / NCS / Pantone colour variations between the individual parts are possible.
Please note that production-related variations in colour and material may occur in all materials and textiles.
9. Delivery and assembly
Client shall ensure that the goods can be handed over in the assembly area using common means of furniture transportation. Any work performed by Contractor’s staff beyond the agreed delivery, installation or assembly will be charged separately. Client shall point out any risks, such as electric lines, water supply lines or too-thin walls. It must be ensured that Contractor’s staff members have free access to the place of work during the agreed or usual working times. Any waiting times, futile trips, etc. are not included in the agreed prices and will be charged separately on a time basis. The same applies to any necessary clearing work as well as any hindrance by external workmen. Client shall ensure that the place of work is sufficiently ventilated and illuminated and shall take care of the necessary heating, electricity, water supply as well as disposal, unless agreed otherwise in writing. All official approvals required for the proper performance of the work to be rendered by Contractor shall be obtained by Client, unless Contractor has expressly undertaken to obtain such approvals. In the latter case, the associated expenditure will be charged separately.
10. Client’s default
If Client refuses to accept the goods after expiry of a reasonable deadline set or expressly declares in advance its intention not to accept the goods, Contractor shall be entitled to withdraw from the contract or claim compensation for non-performance. Contractor may also claim 25% of the agreed price without any deductions as compensation for non-performance, unless Client provides evidence that the damage or loss incurred was lower than the lump-sum compensation or was not incurred at all. In addition, Contractor reserves the right to prove and claim higher damages, for example in cases where goods are made to customer specification.
11. Reservation of title
Contractor reserves the title to the goods until all accounts payable under the contractual relationship have been settled in full. In the event that the goods are delivered to third parties, Client shall inform the recipient thereof. Contractor shall be notified without delay of any change in location as well as any loss or deterioration of the goods. As long as the reservation of title exists, any sale, transfer as security, lease or surrender of the goods to third parties as well as any modification to the goods shall be subject to Contractor’s prior written consent. In the event of any seizures by third parties, in particular attachment of the goods, Client shall immediately notify Contractor in writing, attaching the bailiff’s record, and inform the third party of the reservation of title without delay. All costs required to annul the seizure and recover the goods shall be borne by Client, to the extent that these cannot be collected from third parties.
The mannequins offered have been developed by Contractor and may therefore not be rebuilt or copied. All offers, drawings and other plans shall remain Contractor’s property and may not be copied, published or made available or disclosed to third parties without Contractor’s permission.
As a rule, Client shall be entitled to claim rectification under the warranty. Contractor may deliver substitute instead of rectification. Client shall be entitled withdraw from the contract (rescission) or reduce the purchase price (reduction) if the rectification fails or if Contractor refuses to deliver substitute or fails to do so within a reasonable period. Client may only assert warranty claims if it has previously paid a portion of the purchase price that is appropriate in relation to the defect. The warranty shall not extend to damage sustained by Client as a result of wear and tear, moisture, excessive heat at the premises, other temperature or weather influences or improper handling. Warranty claims for individual items delivered shall expire after six months and after 2 years from acceptance of the performance pursuant to VOB/B. Warranty claims for visible defects shall expire if not reported to Contractor in writing within two weeks of acceptance. In the event of warranty claims, Contractor shall not be liable for loss of production, lost profits or other indirect costs resulting from defects in the delivery.
Contractor shall be liable for any damage – no matter on what legal ground – culpably caused by its legal representatives or agents in accordance with the following provisions. In the event of wilful intent or gross negligence, Contractor shall be liable to Client without limitations. Liability for slight negligence shall be excluded. The foregoing exclusion of liability for slight negligence shall not apply in the event of breach of material or main performance obligations and default of delivery on the part of Contractor. Client’s right to claim compensation pursuant to Sec. 463, 480 (2) and 635 BGB [German Civil Code] for the absence of warranted characteristics shall remain unaffected by the foregoing regulation. Client is obliged to notify Contractor in writing without delay of any damage to be compensated by Contractor. Furthermore, Client is obliged to take all reasonable measures to keep the damage as low as possible.
15. General provisions
Should any of the foregoing provisions be found invalid, the validity of the remaining provisions shall not be affected. Any invalid provision shall be replaced by a valid regulation that embodies as closely as possible the economic and legal purpose of the invalid provision. In this case, the Parties undertake to amend this contract to the extent necessary. Any modifications, amendments and side agreements must be made in writing. This written form requirement itself can also be waived in writing only.
16. Place of performance and jurisdiction
Unless agreed otherwise, the place of performance shall be Karl-Ferdinand-Braun-Str. 18, 21423 Winsen/Luhe (Penther GmbH) as well as Friedrich-Ludwig-Jahn-Str. 9, 96484 Meeder (Formes GmbH). For contracts with qualified merchants, 21335 Lüneburg (Penther GmbH) as well as 96450 Coburg (Formes GmbH) shall be deemed agreed as the place of jurisdiction. The contract shall be governed by the law of the Federal Republic of Germany.