Stenzhorn Juwelen GmbH
(1) In sending us an order, regardless of what form this should take,
the customer accepts our sales, delivery and payment terms (hereinafter referred to as Business Terms). Our Business Terms also apply to all future business with the customer.
(2) The contract is signed subject solely to our Business Terms. We do not recognise the customer's Business Terms, unless we have explicitly agreed to their validity in writing. Our Business Terms apply even if we have met our contractual obligation without any reservation with knowledge of the customer's conflicting terms or terms that differ from our Business Terms. All agreements made between us and the customer to change the contract or for the purpose of implementing this contract must be documented in writing for the purpose
(3) The Business Terms apply only to an entrepreneur, sections 310 (1) 14 German Civil Code (BGB), a legal entity under public law or a special-purpose entity organised under public law.
2. Prices and payment terms
(1) The prices quoted by us apply only to the individual order; any subsequent orders are new orders.
(2) Should wage, material or other cost increases occur before we have completed the order, we reserve the right to adjust the prices without any additional profit to the price then established in the market. We shall then provide proof of the increases to the customer upon request.
(3) Our prices are in euro plus VAT at the applicable rate when the invoice was raised. The payment terms agreed individually with the customer then apply.
(4) The prices apply for “ex works” deliveries and include the contractual or average packaging. Not included are the costs of freight, transport, storage, insurance(s), customs and other export costs, as well as other incidental transport costs.
(5) The statutory regulations relating to the requirements and consequences of payment default apply. We calculate default interest at 9 percentage points above the relevant base rate per annum in the event of default. The right to claim further loss as a result of default remains reserved. If the customer is in payment arrears, we may only make further deliveries, even part deliveries, to the customer against prepayment.
(6) Should a sustainable deterioration occur in the customer's financial circumstances, or if they are in default with settling significant receivables from the supply relationship (sums in excess of €2,500.00 are deemed significant), we are entitled to withhold any contractual payments until we have received payment in full of any of the customer's liabilities or withdraw from any parts of the contract that have yet to be fulfilled.
(7) Foreign currency shall only be accepted on the basis of an explicit agreement and as a means of payment subject to the discount charges and other costs of exchange being borne by the customer.
3. Contract conclusion
(1) Our offers are given without commitment unless they are explicitly designated as a binding offer.
(2) The contract is signed between us and the customer when we have sent the customer a written order confirmation upon receipt of their order (for example to the email address notified by the customer when the order was placed), or we have started to process the order.
(3) The contract is concluded subject to our being duly supplied with the raw materials.
4. Rights of offset and retention
The customer is only entitled to offset if their counterclaims are legally established, undisputed, and we have acknowledged them in writing.
The customer is only entitled to exercise the right of retention if their counterclaim is based on the same contractual relationship.
(1) In the absence of any agreement to the contrary, deliveries are made
“ex works”. In the event of a “delivery ex works” the risk shall pass with the transfer of the goods to the customer or to the transport company. Handover shall deem to have taken place even if the customer delays in accepting. The customer must bear the costs of transport and unloading for “delivery ex works”.
(2) If the goods are sent to the customer at their request, the risk of accidental loss and accidental deterioration shall pass to the customer with the dispatch to the haulier, freight forwarder or other person appointed to undertake the dispatch, regardless of who bears the freight costs, even if this person is our employee, though at the latest at the point they leave our factory or warehouse.
(3) In addition, should the customer return the goods because of a complaint that is not justified, the goods shall be sent at the customer's cost and risk who must select the same form of dispatch that was selected when the goods were sent and ensure that there is adequate insurance.
(4) We are only responsible for delivering carriage paid if there is an explicit written agreement. In this case, the risk of accidental loss and accidental deterioration shall pass to the customer with the handover of the goods to the delivery address nominated by the customer. Handover shall deem to have taken place even if the customer delays in accepting.
(5) In the case of force majeure, unforeseeable operational disruption, strike,
lawful lockout and unforeseeable delays of material deliveries, the delivery term shall be reasonably extended even within the delayed delivery. We have to communicate such obstacles to the customers without delay.
(6) Details of delivery times are always given without commitment. An explicit written agreement is required for a single or absolute fixed transaction or just-in- time delivery; simply agreeing a fixed delivery date is not sufficient here.
(7) We are entitled to make part deliveries as far as this is fair and reasonable for the customer. Each part delivery shall be deemed a separate contract.
(8) If the customer wants to withdraw, in full or in part, from an order that has already been submitted or from a contract that has come into effect, we are entitled to make a claim for flat-rate compensation of 15% of the relevant purchase price. The customer remains entitled to prove that such loss or reduction in value did not occur at all or was significantly lower than the flat-rate sum cited.
6. Customer's obligations to accept and purchase
(1) The obligation to purchase is the customer's principal obligation in each case.
(2) If the customer fails to accept the goods, sections 293 et seq. BGB, they
must compensate us for any costs that may arise as a result. Costs of €4.00 package and month must be paid in the event that the goods are stored at our company. The customer is entitled to prove that a lower cost was incurred;
it remains with us to prove that higher costs were incurred in the specific instance.
(3) This shall not affect any statutory or contractual rights and claims above and beyond this because of the customer's refusal to accept the goods and a culpable breach of the obligation to purchase.
(1) If the goods are left for the customer to make a selection, then these shall be deemed to have been purchased, if and insofar as we do not receive the goods back within the deadline specified in the enclosed selection notice, which must be at least four weeks.
(2) Our Business Terms shall also apply exclusively to the goods on approval.
(3) If goods on approval are used by the customer as exhibits or taken into
a transit depot or not stored in the safe outside business hours, the customer shall bear all risk, even that of accidental loss. The customer is obliged to ensure full insurance protection for these goods in such cases, and already assigns any claims against the insurance company irrevocably to us in advance. We hereby accept this assignment.
8. Liability for defects
(1) Definition of defects
a) In light of the technical circumstances of the materials to be processed and the processes to be applied, minor, unavoidable variations may occur in the colour, shape or similar parameters during the production process. These fluctuations do not represent any breach of obligation or defect, provided they cannot be avoided with financially reasonable expenditure and are within the what is expected in the sector.
b) Variations caused by manufacture or that serve technical progress do not constitute a defect, provided they do not affect the customer's intended use for the finished products.
(2) The customer's obligation to examine and notify defect claims requires that they have properly met their examination and notification obligations in accordance with section 377 of the German Commercial Code (HGB). Defects must be notified in writing without delay. An exclusion period of 7 (seven) working days applies to obvious defects notwithstanding the duty to notify defects straight away; otherwise, making claims for defects for obvious defects is excluded.
The deadline for notifying defects starts with the contractual delivery of the goods. Interim storage of the goods by the customer at a third party or direct delivery to
a third party at the customer's instruction shall not result in any postponement of the start of the term.
(3) Right of the customer because of defects
a) If there is a defect after considering paragraph (1) and paragraph (2), we shall initially be entitled to choose whether to provide supplementary performance by rectifying the defect or through replacement delivery.
b) Should supplementary performance fail, be unreasonable or be rejected, the customer is entitled to choose whether to withdraw from the contract or to demand a price reduction. However, the customer has no right of withdrawal in the event of minor defects. Item 8 applies to claims for compensation. (4)
a) If the customer makes claims for compensation that are based on intent or gross negligence by our representatives or vicarious agents, we accept liability based on the statutory conditions. Any claims for compensation above and beyond this are excluded. If, on the other hand, this is a breach of a contractual obligation, we are also liable in the event of slight negligence, though limited to typical contractual, foreseeable losses. This shall not affect our liability for loss of life, physical injury or damage to health in accordance with the statutory requirements; liability is not restricted in such cases of loss.
b) If the customer is entitled to compensation for loss instead of performance, our liability shall be restricted to compensation for the typical, foreseeable loss, except in the case of intent or gross negligence. Even this restriction does not apply in the case of loss of life, physical injury or damage to health.
c) Possible liability based on the tortious liability or the regulations of the product liability law remains unaffected and is not included in these liability restrictions.
(5) Recourse to a supplier
a) The regulations of recourse to a supplier in accordance with sections 478, 479 BGB are not affected by any liability restrictions, with the exception of the following conditions, provided we are a supplier of a defective end product
within a contractual supply chain, as defined by sections 478, 479 BGB.
b) If the customer fails to notify us of an instance of a claim for damages straight away, as defined by section 478 BGB based on section 377 HGB, though at the latest within 7 (seven) working days from becoming aware of such a claim, we shall be exempt from liability in accordance with sections 478, 479 BGB.
c) Such costs that would not have been incurred if the customer had exercised the due care incumbent upon them for the claims for supplementary performance are exempt from the compensation for expenditure for which we are responsible in accordance with section 478 BGB.
d) We are entitled to provide the customer with compensation for expenditure pursuant to sections 478, 479 BGB in the form of an appropriate credit note for the goods.
Liability for compensation that goes beyond that provided under item 8
is excluded. This also applies to claims for compensation because of fault when the contract was concluded. The statutory regulations apply in the event of intent, gross negligence or loss of life, physical injury or damage to health, and for claims because of a criminal act.
(2) If our liability to pay compensation is excluded or restricted, this shall also apply with respect to personal liability for loss on the part of our staff, employees, co-workers, representatives and vicarious agents.
10. Statutory limitation
(1) The statutory period of limitation for defect claims is 12 (twelve) months, calculated from the transfer of risk. If we have maliciously concealed a defect or accepted a guarantee, any claims by the customer based on this shall be limited in accordance with the statutory regulations.
(2) This shall not affect the statutory period of limitation in the instance of recourse to a supplier in accordance with sections 478, 479 BGB.
(3) The statutory period of limitation applies to claims because of losses due to wilful or grossly negligent conduct, because of a loss of life, physical injury or health, from unpermitted acts and based on product liability legislation.
11. Reservation of title
(1) We shall retain title to the delivered goods until payment has been made in full for all claims and any secondary claims from the supply contract and until any bills of exchange and cheques have been cash. We are entitled to take back any purchased items if the customer behaves in a manner that breaches the contract. Taking back the purchased items does not constitute a withdrawal from the contract, unless this has been stated explicitly in writing.
(2) The customer is obliged to treat the purchased items with care until title has passed to them. In particular, they are obliged to insure them adequately at their own expense against theft, robbery, blackmail, fire and flood damage at replacement cost. If title has still not been transferred, the customer must notify us of this immediately in writing, if the object supplied has been mortgaged or is subject to other intervention by third parties. If the third party is not in a position
to reimburse us for the court and out-of-court costs of a claim pursuant to
section 771 of the Code of Civil Procedure (ZPO), the customer shall be liable for any losses we incur. The customer is obliged to reject any mortgage or seizure referring immediately to our rights as the supplier. Failure to do so shall render the customer liable to pay us compensation.
(3) The customer is entitled to resell the reserved goods in the normal course of business. The customer hereby assigns to us any receivables from the purchaser out of the resale of the reserved goods at the final invoiced amount agreed with us (including VAT). This assignment applies irrespective of whether the purchased items are resold with or without any further processing. The customer continues to be entitled to collect the debt even after the assignment. This shall not affect our right to collect the debt ourselves. We will, however, not collect the debt, unless the customer fails to make their payment obligations from the proceeds collected, is not in arrears and, in particular, makes no application to open insolvency proceedings or payments are suspended.
(4) The processing and treatment or conversion of the purchased items by the customer shall always be carried out in our name and on our behalf. In this case, the expectant right of the customer to the purchased items in the converted item shall continue. If the purchased item is processed together with other items that do not belong to us, we shall directly acquire ownership or, if it is processed with materials from several owners, or the value of the processed item is higher than the value of our deliveries – co-ownership (fractional ownership) to the newly created item is proportionate to the objective value (final invoiced sum including VAT) of the goods supplied to the value of the newly created item. If goods supplied by us are combined or co-mingled with other items to form one single item, and one of the other items is deemed to be the principal item, the customer shall hereby cede fractional co-ownership to the single item in the aforementioned proportion. We hereby consent to this assignment. The customer shall preserve sole or co-ownership that has arisen in this way for us.
(5) Our existing reservation of title based on the aforesaid condition shall be deemed as security for the confirmation of balance even for our debt from the balance.
(6) If the customer is in default or fails to meet their obligations from the reservation of title, we can demand the reserved goods. Claiming rights of ownership does not constitute a withdrawal from the contract.
(7) We are obliged to release any securities to which we are entitled at the customer's request, if their value exceeds the value of the receivables being secured by more than 20%.
(8) The reserved goods may not be pledged, or securities to the reserved goods may not be assigned.
12. Credit check and taking back goods
(1) If it comes to our attention following conclusion of a contract or delivery of the goods that the customer is not creditworthy (e.g. protest of a bill of exchange),
we shall be entitled to withdraw from the contract and to demand immediate payment of any goods supplied and demand payment in advance for any goods to be supplied including cash cover for any bills drawn with an immediate settlement date.
(2) When we take goods back we shall issue a credit note for the value of the goods based on their condition. We reserve the right to make deductions based on
a) the external condition of the goods at the time of their return;
b) a reduction that arose in the period between delivery and the return because of obsolescence or further technical processing or
c) a fall in the price of precious metals or gemstones. The price on the day on which the conditional goods are returned to our ownership is decisive. The customer is entitled to prove that a discount or a significantly reduced discount is justified.
(1) We retain ownership and copyright to all items and documents assigned
to the customer as part of placing the order, such as drafts, samples, models and similar. These apply as our intellectual property and may not be copied or otherwise used for replication by the customer, even if there are no particular proprietary rights. The documents must not be made available to third parties unless we grant the customer our explicit written consent. We reserve the right
to claim compensation in the event of a breach.
14. Data processing
We are entitled to collect, process and use all data pertaining to the business transaction(s) with the customer as defined by the Federal Data Protection Act.
15. Court of jurisdiction and place of performance
(1) The customer states their irrevocable consent to the aforesaid conditions relating to the place of performance and court of jurisdiction.
(2) Our registered offices is the place of performance for all claims arising from this contractual relationship including the warranty, unless stipulated to the contrary in the order confirmation or other written agreements.
(3) Our registered office is the sole international or local court of jurisdiction for all legal disputes arising from this contractual relationship including the warranty, its creation or its validity, and for all disputed bills of exchange and cheques.
At the same time, we are entitled to make a claim against the customer at their registered office.
(4) The contractual relationship is subject to German substantive law for both parties, regardless of the location of the parties' registered offices, or if they relocate their offices during ongoing business relationships and regardless of the legal form a contractual party has or in which country the business
is transacted. The UN Sales Convention is excluded.
16. Final provision/severability clause
(1) Should an individual condition of these Business Terms or a separate contract agreed additionally between the customer and us be or become ineffective, this shall not affect the validity of the remaining contract. The parties are obliged to agree a new regulation that meets the intent and purpose of the original regulation and contract in place of the ineffective regulation in a separate agreement. The same applies if the contract contains a loophole.
Stenzhorn Juwelen GmbH