TERMS OF SERVICE
of the company ARTiS M. Hartmann GmbH as of May 1st, 2020
For use in business transactions with entrepreneurs, legal entities under public law or special funds under public law
1. SCOPE OF APPLICATION
1.1 All deliveries, work and services to be carried out are based on these General Terms and Conditions. We do not recognise any conflicting or deviating conditions of the customer unless we have expressly agreed to their validity in writing. Our General Terms and Conditions of Business shall also apply even if we carry out the delivery to the customer without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from our General Terms and Conditions of Business.
1.2 Our General Terms and Conditions of Business shall also apply to all future transactions with the customer.
2. OFFERS, ORDERS AND CONCLUSION OF CONTRACT
2.1 Our offers are made exclusively in writing. They are subject to change and non-binding. A contract for work and services shall only come into existence by means of a written order confirmation (also by fax or email) on our part.
If the customer does not accept the ordered goods, he is obliged to compensate us for the full damage incurred by us in addition to loss of profit.
2.2 Our information on the object of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics of quality, but descriptions or identifications of the delivery or service. Deviations customary in the trade and deviations which are due to legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts are permissible, provided that they do not impair the usability for the contractually intended purpose.
2.3 All changes, additions, telephone or verbal collateral agreements require our written confirmation to be effective.
2.4 We reserve the copyright as well as all property rights, copyrights and rights of use for all offers, drawings, illustrations, samples, documents, data carriers and other aids made available to the purchaser. They are to be treated as strictly confidential and may not be reproduced, published or otherwise made available to third parties, used or duplicated by the customer himself or by third parties without our express written consent. At our request, the drawings, illustrations, samples, documents, data carriers and other aids must be returned to us immediately and any copies made must be destroyed if they are no longer required by the customer in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excepted from this is the storage of electronically provided data for the purpose of normal data backup.
The prices are valid for the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. The prices are quoted in Euro ex works plus the applicable statutory value-added tax, shipping costs, customs duties for export deliveries as well as fees and other public charges.
4. TERMS OF PAYMENT
4.1 The invoice is issued on the day of delivery.
4.2 Payments are to be made within 14 days of the date of issue of the invoice without deduction.
4.3 Incoming payments shall always be used to settle the oldest due debt items plus the default interest accrued thereon.
4.4 If the customer is in default of payment, we shall be entitled to demand interest on arrears at a rate of 8% above the respective base rate of the Deutsche Bundesbank p.a. We reserve the right to claim further damages.
4.5 We shall not be obliged to make any further deliveries under any current contract until all due invoice amounts, including interest on arrears, have been paid in full.
4.6 If the customer is in default with a due payment or if a significant deterioration in his financial circumstances occurs, we are entitled - without prejudice to our other rights - to demand securities or advance payment for outstanding deliveries and to make all claims arising from the business relationship due.
4.7 Only undisputed or legally established claims entitle the customer to offset or retention. Even in the event of the existence of defects, the customer shall not be entitled to a right of retention, unless the delivery is obviously defective or the customer obviously has a right of retention. In such a case, the customer shall only be entitled to withhold payment if the amount withheld is in reasonable proportion to the defects and the anticipated costs of subsequent performance (in particular of rectification of defects). The customer is not entitled to assert claims and rights due to defects if he has not made due payments and insofar as the amount due (including any payments made) is in a reasonable proportion to the value of the - defective - delivery.
5. DELIVERY AND TRANSFER OF RISK
5.1 The delivery of the goods is carried out from the distribution centre in Munich. If the delivery of the goods to the customer is contractually agreed, we shall determine the mode of dispatch, the dispatch route and the company commissioned with the dispatch at our discretion, unless the customer gives express instructions. The shipping costs, including any additional costs arising from the instruction, e.g. air freight, shall be borne by the customer; they shall be passed on by us at cost price. We shall bear the packaging costs. The customer is obliged to dispose of the packaging at his own expense.
5.2 We shall insure the goods for shipment by a transport company designated by us up to the place of delivery. The risk shall pass to the customer at the latest when the goods are handed over (whereby the start of the delivery process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This also applies if partial deliveries are made. If dispatch is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer from the day of readiness for dispatch, insofar as we have notified the customer of this.
5.3 If the transport of the goods is carried out by a company designated by the customer, the risk shall pass to the customer as soon as the goods are handed over to the carrier. The customer shall be responsible for any insurance of the goods himself. This applies regardless of who bears the transport costs.
5.4 Storage costs after transfer of risk shall be borne by the purchaser. In the event of storage by us, the storage costs shall be borne by 0.25% of the gross invoice amount of the goods to be stored per week elapsed. We reserve the right to assert and prove further or lower storage costs.
5.5 We are entitled to make partial deliveries if
- the partial delivery can be used by the customer within the scope of the contractual purpose,
- the delivery of the remaining ordered goods is ensured and
- we bear the additional delivery costs incurred.
5.6 Compliance with our delivery obligations presupposes the timely and proper fulfilment of the purchaser's obligations.
6. DELIVERY TIME
6.1 The periods and dates for deliveries and services promised by us are always only approximate, unless a fixed period or date has been expressly promised or agreed. If changes are subsequently agreed, these dates and deadlines shall be extended accordingly by a reasonable period of time. For the duration of the examination of the release sample by the customer, the delivery period shall be interrupted in each case, namely from the day of receipt of the sample by the customer until the receipt of his release by us. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
6.2 We shall not be liable for impossibility of delivery or for delays in delivery if these are caused by force majeure or other events that were not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, lack of labour, pandemics such as e.g. COVID-19, energy or raw materials, difficulties in procuring necessary official permits, official measures or the failure of suppliers to supply us, or to supply us correctly or on time), for which we are not responsible. Insofar as such events make it considerably more difficult or impossible for us to deliver or perform and the hindrance is not only of temporary duration (i.e. more than 3 weeks), we are entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service dates postponed by the period of the hindrance plus a reasonable start-up period.
6.3 If we are in default with a delivery or service or if a delivery or service becomes impossible for us for whatever reason, our liability for damages shall be limited in accordance with Section 8 of these General Terms and Conditions.
6.4 If the customer is in default of acceptance or violates other obligations to cooperate, we shall be entitled to assert claims for damages incurred by us, including any additional expenses.
7.1 The warranty period is one year from delivery. This period shall not apply to claims for damages by the customer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by us or our vicarious agents, which shall be time-barred in accordance with the statutory provisions.
7.2 The delivered goods must be carefully inspected immediately after delivery to the customer or to the third party designated by the customer. The inspection must extend to all properties essential and required for the use of the goods. The obligation of the purchaser to inspect the delivered goods also exists if a release sample has been sent. With regard to obvious defects or other defects which would have been recognisable in an immediate, careful inspection, the duty to inspect shall be deemed to have been approved by the purchaser if we do not receive a written notice of defects within 5 working days of delivery. With regard to other defects, the goods shall be deemed to have been approved by the customer if we do not receive a notification of defects within 5 working days of the time at which the defect became apparent; however, if the defect was already apparent at an earlier time during normal use, this earlier time shall be decisive for the start of the period for notification of defects. Defects in a part of the delivery cannot lead to a complaint about the entire delivery, provided that a separation between the defect-free and the defective part is possible by reasonable means. At our request, the goods complained about must be returned to us carriage paid. If the complaint is justified, we will reimburse the costs of the most favourable dispatch route; this does not apply if the costs increase because the goods are located at a place other than the place of intended use.
7.3 Customary or minor, technically unavoidable deviations in quality, colour, size, weight, equipment or design cannot be objected to. Nor shall claims for defects exist in the case of only minor deviations from the agreed quality or only minor impairment of usability.
7.4 If there is a defect in the goods for which we are responsible, we are initially only obliged and entitled, at our discretion, to provide subsequent performance or replacement. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the subsequent improvement or replacement delivery, the purchaser may withdraw from the contract or reduce the purchase price appropriately. Withdrawal is excluded if the defect is only a relatively minor one.
7.5 The warranty shall not apply if the customer modifies the delivered goods or has them modified by third parties without our consent and the remedying of the defect is thereby rendered impossible or unreasonably difficult. In any case, the customer shall bear the additional costs of the remedy of defects arising from the modification.
7.6 The expenses necessary for the purpose of subsequent performance shall be borne by the customer if they increase because the delivery is taken to a place other than the customer's branch office. The application of § 478 BGB (German Civil Code) (right of recourse of the entrepreneur) remains unaffected. Notwithstanding any further claims on our part, the Purchaser shall, in the event of an unjustified notice of defect, reimburse us for the expenses incurred in examining and - if requested - remedying the defect.
8. LIABILITY AND COMPENSATION FOR DAMAGES DUE TO FAULT
8.1 Our liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with the provisions of this clause 8, insofar as fault is involved in each case:
8.2 We shall not be liable in the event of simple negligence on the part of our executive bodies, legal representatives, employees or other vicarious agents, provided that it is not a matter of a breach of material contractual obligations. Essential contractual obligations are the obligation to deliver the goods on time and free of defects, their freedom from defects of title as well as such material defects which impair their functionality or usability more than only insignificantly, as well as duties of advice, protection and care which are intended to enable the customer to use the goods in accordance with the contract or which are intended to protect the life or limb of the customer's personnel or third parties or to protect the customer's property from considerable damage.
8.3 Insofar as we are liable for damages on the merits pursuant to the above Section 8.2, this liability shall be limited to damages which we foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which we should have foreseen if we had exercised due care. Indirect damages and consequential damages, which are the consequences of defects in the delivered goods, are furthermore only eligible for compensation if such damages are typically to be expected when the goods are used for their intended purpose.
8.4 In the event of liability for simple negligence, our obligation to pay compensation for material damage and any further financial loss resulting therefrom shall be limited to an amount of Euro 15,000 per case of damage, even if it concerns a breach of material contractual obligations.
8.5 The above exclusions and limitations of liability apply to the same extent in favour of our executive bodies, legal representatives, employees and other vicarious agents.
8.6 Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this is done free of charge and to the exclusion of any liability.
8.7 The limitations of this clause 8 do not apply to our liability for intentional conduct, for guaranteed procurement characteristics, for injury to life, body or health or under the Product Liability Act.
9. RESERVATION OF TITLE
9.1 The delivered goods shall remain our property until all claims that have already arisen at the time of this conclusion of contract have been settled, including all claims from follow-up orders and repeat orders. If the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the goods. The taking back of the goods by us does not constitute a withdrawal from the contract, unless we have expressly declared this. After taking back the goods, we shall be entitled to sell them and the proceeds of such sale shall be set off against the customer's liabilities - less reasonable costs of sale. The goods shall be returned at the expense and risk of the customer.
9.2 In the event of resale of the delivered goods, the customer hereby assigns to us by way of security his claim from the resale against his customer with all ancillary rights, without the need for further special declarations. The assignment applies including any balance claims. However, the assignment shall only apply to the amount corresponding to the price of the delivery item invoiced by the customer. The portion of the claim assigned to us shall be satisfied with priority.
9.3 Until revocation, the customer is authorised to collect the claims assigned to us in accordance with this clause 9.2. The customer shall immediately forward to us payments made on the assigned claims up to the amount of the secured claim. In the event of justified interests, in particular default of payment, suspension of payments, opening of insolvency proceedings, protest of a bill of exchange or justified indications of over-indebtedness or imminent insolvency of the purchaser, we shall be entitled to revoke the authority of the ordering party to collect. In addition, we may, after prior warning and subject to a reasonable period of notice, disclose the assignment of security, exploit the assigned claims and demand that the purchaser disclose the assignment of security to his customers.
9.4 If a justified interest can be substantiated, the customer shall provide us with the information necessary to assert his rights against the customers and hand over the necessary documents.
9.5 The goods may neither be pledged nor assigned as security before the purchase price has been paid in full. The purchaser must inform us immediately of any seizure, theft or any other impairment of our rights; the purchaser must take all necessary steps against this on request. In the event of access by third parties - in particular by bailiffs - to the reserved goods, the customer shall draw attention to our ownership and inform us immediately so that we can assert our ownership rights.
9.6 The purchaser is obliged to keep the reserved goods in proper condition, to store them with commercial care and to insure them at his own expense against fire, water and theft damage sufficiently at replacement value. The customer shall be responsible for all culpable impairments of our reserved property.
9.7 We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realised value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released is at our discretion.
10. MODEL CHANGE, RELEASE SAMPLE, OVER/UNDER PRODUCTION
10.1 We reserve the right to make model changes in the sense of fashion or technical development.
10.2 The orderer usually receives a release sample. This must be approved by the customer within a period of 5 working days. We will produce a maximum of 2 release samples. If the release sample is not released within the period stated, we are entitled to withdraw from the contract without further reminder. The customer is then obliged to compensate us for the lost profit.
We would like to point out already now that changes after receipt of the release sample are only possible to a limited extent. Requests for changes are only possible subject to the technical feasibility of production; any higher costs incurred as a result will be charged to the customer. The delivery date or delivery period shall be extended by a reasonable period of time in accordance with the scope of the changes.
10.3 We would like to point out that all equipment or production documents, such as tools, fabric rollers, films, data carriers, etc. are our property, even if the set-up costs are shown separately. The customer has no right to demand the return of such documents.
10.4 We reserve the right that over- and underproduction of approximately 10% is possible.
11. SAMPLE PRODUCTION, SET-UP COSTS
11.1 If a preliminary sample is requested, all necessary set-up costs (tools, films, etc.) as well as transport costs shall be paid by the customer in advance and immediately after invoicing.
11.2 We point out that all equipment or production documents, such as tools, fabric rollers, films, data carriers, etc. are our property, even if the set-up costs are shown separately. The customer has no right to demand the return of such documents.
We undertake to protect the exclusivity of our products in the interest of the purchaser in such a way that we do not offer the product design developed and commissioned for him elsewhere without his express consent. Furthermore, we will punish any misuse upon request by the customer and if the customer bears the costs.
13 PLACE OF JURISDICTION, PLACE OF PERFORMANCE, APPLICABLE LAW
13.1 If the customer is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all possible disputes arising from the business relationship between us and the customer shall be our registered office in Munich. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
13.2 Place of performance is our registered office in Munich.
13.3 The relations between the customer and us shall be governed exclusively by the law of the Federal Republic of Germany, subject to mandatory provisions of international private law. The United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (CISG) shall not apply.
14. FINAL PROVISION
If any provision of these Terms and Conditions is invalid, void or for any reason unenforceable, that provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions.