GENERAL TERMS OF TRADE and DELIVERY (GTTD)
of Henrich & Denzel GmbH, Karl-Bücheler-Str. 2, 78315 Radolfzell
- General remarks, area of validity
1.1 Our General Terms of Trade and Delivery (GTTD) are exclusively valid. We do not recognise any conditions of the customer that contradict them or deviate from them unless we have expressly agreed in writing to their validity. The GTTD are also valid if we perform delivery without reservation in the knowledge of contradictory or deviating conditions of the customer.
1.2 All agreements reached between us and the customer during contract negotiations or in the concluded main contract are recorded in writing in this contract. No agreements apart from
those contained herein have been reached. Additional verbal agreements are only valid after written confirmation by ourselves. The customer bears the burden of proof for an additional verbal agreement if it is not confirmed in writing.
1.3 Our GTTD apply to all customers who are not consumers in the sense of § 13 BGB (German Civil Code). An entrepreneur is a natural or legal entity or a partnership with legal capacity who/which acts on conclusion of a legal transaction in the exercise of his/its commercial or self-employed professional activity (§ 14 BGB). An entrepreneur in the sense of our GTTD is also a legal entity of public law and a public-law special fund. A consumer is any natural person who concludes a legal transaction for a purpose that can not be allocated either to his commercial or his self-employed professional activity (§ 13 BGB). Customers in the sense of our GTTD are both consumers and entrepreneurs including legal entities of public law and public-law special funds.
- Quotations, quotation documents
2.1 On ordering goods, the customer declares bindingly his wish to procure the goods ordered. After placing his order, the customer receives a written order confirmation. He must sign this and return it to us.
2.2 Our quotations are non-binding unless otherwise stated in the order confirmation or our quotation.
2.3 We reserve rights of ownership and copyrights to all quotation documents and cost estimates, especially designs or models, illustrations, drawings and calculations. Allowing third party access
to the above documents is prohibited.
- Prices, conditions of payment, default of payment by the customer, exclusion of set-off, compensation for failure to take delivery
3.1 Unless stated otherwise in the order confirmation, our prices are valid net ex the above company address, excluding in particular insurance, tax, state charges and fees and customs duty.
3.2 Discounts require separate written agreement.
3.3 Unless stated otherwise in the order confirmation, our invoices are due within 14 days of receipt without deductions. After 14 days after receipt, the customer is in default of payment; a separate
reminder is not necessary. However, the customer is in default at the latest when he does not pay us
within 30 days after the due date and the service of our invoice or equivalent account of charges.
3.4 If the customer is in default, we are entitled to charge default interest at a flat rate of 8 percent above the base interest rate of the European Central Bank according to § 247 BGB.
If we are able to prove higher default damage, we are entitled to seek compensation for this.
If the customer fails to take delivery unduly, or if he withdraws from the contract unduly, we are entitled after the fruitless expiry of a reasonable extension to withdraw from the contract
and/or to demand compensation in lieu of the payment, to the amount of a lump sum of 25 % of the net order value. The customer is expressly entitled to prove that no damage at all or only
damage that is much lower than the lump sum has been incurred.
3.5 If the customer defaults on a payment entirely or in part for a period longer than 30 days, or if there is an application to begin insolvency proceedings over his assets, we are entitled irrespective of any further rights to declare all payments from the customer due, to hold back all deliveries
and services and to enforce all rights from the reservation of ownership in accordance with §§ 449, 323, 985 BGB.
3.6 The customer only has set-off rights provided his counterclaims have been legally established, are undisputed, or if we have recognised them. Nor does he have a right of retention from disputed
- Transfer of risk
The risk of accidental destruction or deterioration of the goods is transferred to the customer on handing over the goods, or in case of sale by dispatch on
transfer of the goods to a normal transport company or other person or third party chosen for delivery.
- Selection and goods on sale or return
5.1 Goods we hand over to the customer for selection or on sale or return are considered finally transferred if they are not returned to us by the agreed deadline.
5.2 The rule under No. 4. applies for the transfer of risk.
5.3 We reserve the unrestricted right of ownership of our goods until the customer has paid for them in full. At our demand, the customer must immediately return to us at any time the goods transferred.
5.4 Additionally, we make reference to our contract regarding goods on sale or return.
- One-off manufacture and alterations.
6.1 We receive customer gems and items of jewellery for one-off manufacture and alterations only under reservation. We undertake to perform this work with the greatest care and expertise, however we must exclude the assumption of any risk or subsequent loss of the gems. Compensation payments for customer property that is lost during return transport are ruled out. Goods are forwarded in accordance with our enclosed, current information sheet “Insurance” by transport companies usual in the trade. Customers must take out transport insurance themselves.
- Delivery period, delivery obstacles, delayed delivery, price adjustment
7.1 Agreed delivery, development, production or other deadlines are binding for both parties only when they are expressly stipulated as binding. The commencement of a delivery period stated by ourselves requires that all technical issues have been settled and the customer has met his obligations on time and correctly, unless otherwise agreed in the main contract.
7.2 Should we be unable to deliver on time due to force majeure or other circumstances beyond our control, the delivery period is extended for the duration of these circumstances.
7.3 In case of an obstruction in the sense of No. 7.2 which lasts longer than two months, both sides are entitled, or in case of failure by ourselves to meet the delivery date for reasons other than
those stipulated under No. 7.2, only the customer is entitled to withdraw from the contract with regard to the delivery which has not been made. If no binding delivery dates have been stipulated in the main contract, withdrawal from the contract requires a written reminder from the customer and
the allowance of an extension of at least 14 working days.
7.4 If we have not agreed to a definite delivery date, the customer can request delivery 20 days after the expiry of a non-binding delivery date or a nonbinding delivery deadline. We are in default from the date on which this request is served. If the customer has a right to compensation for damage due
to default, this is limited in case of slight negligence on our part to a maximum of 1 % of the agreed purchase price. If the customer additionally wishes to withdraw from the contract and/or demands compensation instead of performance, he must set us a reasonable deadline for delivery or performance after expiry of the 20-day deadline. Any rights to compensation for slight negligence are ruled out. Otherwise, the customer can only demand compensation if the statutory preconditions are met according to the following terms under Nos. 5 – 9.
7.5 In case of non-availability of the goods or services promised which could not have been foreseen at the time of conclusion of the contract, we are entitled to withdraw from the contract. We undertake to immediately inform the customer about non-availability and to immediately refund the outlay of the customer. If the non-availability of the promised goods or services was not foreseeable
at the time of conclusion of the contract, our liability – as with slight negligence – regarding failure to
foresee this is ruled out unless it is a case of damage caused by us at least negligently due to injury to life, limb or health or violation of a cardinal obligation.
7.6 Unless otherwise stipulated in the order confirmation, we are entitled to make the delivery or partial deliveries at any time.
- Warranty for defects, compensation for material defects
8.1 The customer is only entitled to make claims for material defects if he treats the goods with the due care and diligence of a prudent businessman.
8.2 The details contained in catalogues, brochures, circulars, adverts, illustrations and comparable
publications relating to performance, dimensions, weights, prices etc. are non-binding unless they expressly become part of the contract.
8.3 In case of material defects, we are entitled to repair or amend the defect or supply replacement parts at our own discretion. We are allowed a period of 20 working days for such amendment.
In as far as this is reasonable for the customer, we are entitled to several attempts at amendment.
This also applies if we have undertaken an obligation to the customer to perform work in the sense of § 631 pp. BGB (German Civil Code).
8.4 In as far as we are not responsible for a defect, we can refuse supplementary performance
(replacement delivery or repair) due to disproportionate costs if the supplementary performance costs exceed the value of the defective part in non-defective condition by 150 %.
The same applies if the supplementary performance costs exceed the reduction in value that results from a defect by 200 %.
8.5 If the supplementary performance fails, if we are refused the option of both types of upplementary performance, i.e. amendment or delivery of a nondefective object, or if the type of
supplementary performance due to the customer is unreasonable for him, the customer is fundamentally entitled as he chooses to reduce the payment (price reduction) or rescind the contract
(withdrawal) and/or if the legal preconditions are met, to demand compensation according to the following terms (8.6, 8.7, 8.8, 9, 11 and 12). However, in case of a minor violation of contract, the customer does not have a right to withdrawal.
8.6 If the customer chooses to withdraw from the contract due to a defect after failed supplementary performance, he is not entitled at the same time to compensation for the defect. In thus far,
§ 325 BGB is waived. However, if he chooses to withdraw, the customer is not prevented from
demanding compensation for the default damage incurred up to the withdrawal in the sense of § 280 II BGB in combination with § 286 BGB.
8.7 If the customer chooses compensation after failed supplementary performance, the goods
remain with the customer if this is reasonable for him. In case of material defects, the right to
compensation is limited to the difference between the purchase price and the value of the defective object. This limitation does not apply to claims for injury to life, limb or health that we are responsible for, or to other damage caused by deliberate or gross negligence on our part.
In the sense of these GTTD, a violation of obligations committed by our legal representative or vicarious agent is equivalent to that committed by ourselves.
8.8 If the customer takes delivery of a defective object although he is aware of the defect, he is only entitled to the claims and rights in case of defects in accordance with § 437 BGB to the
above extent if he reserves this right due to the defect on acceptance of the object.
8.9 If the customer lodges a warranty claim without entitlement, he must refund to us all the costs incurred for checking the goods if he is responsible for these costs due to slight negligence,
gross negligence, or deliberate action.
8.10 If we are entitled to further rights, these remain unaffected.
- Obligation to inspect and notify of defects
9.1 If the customer is a commercial customer in the sense of HGB (German Commercial Code), he must inspect the goods immediately after receipt in as far as this is possible in the proper course of business activities. If he discovers a defect, he must inform us immediately, giving concrete details. The time limit for notification of defects is 10 days at the most, by which time the written complaint must have reached us (a fax is also valid). If the defect only emerges later, the
customer must notify us immediately after its discovery.
9.2 If the customer fails to meet the obligations described under No. 9.1, he will lose his warranty rights.
9.3 If the customer is not a commercial customer in the sense of the HGB, he must notify us in writing of obvious defects within four weeks of receiving the goods (a fax is also valid). In this
case, sending the notification within the time limit is sufficient.
9.4 Commercial customers must return the defective goods to us freight-free in the original or an equivalent, suitable packaging.
10.1 Unless otherwise contractually agreed, we do not guarantee any properties of the goods and do not issue customers with a warranty.
10.2 In as far as warranties are issued by the manufacturer, customer rights remain unaffected by these.
- Liability and limits to liability
11.1 Unless otherwise determined contractually or in the above terms, our liability in case of slight negligence is ruled out in as far as it does not concern damage caused by ourselves from injury to life, limb or health, or violation of an important contractual obligation (cardinal obligation), or unless we are guilty of fraudulent non-disclosure of the circumstance leading to the damage, or if the damage incurred at the customer’s is normally covered by product liability insurance.
11.2 In as far as we are liable on merit for violations of obligations, our liability is limited – except in cases of deliberate action and negligent injury to life, limb or health – to the foreseeable, immediate
average damage typical for the contract, considering the nature of the goods. In case of slight negligence, our liability is limited to 1.1 times the net purchase price. If cover for the damage suffered by the customer would normally be provided by a product liability insurance,
the liability limitation under Nos. 11.1 and 11.2 does not apply in as far as the minimum insured amount in a product liability insurance policy normally to be taken out is sufficient .
11.3 In as far as we are liable for default damage, this liability is limited to up to 5 % of the net purchase price agreed with us. The limitation does not apply if the violation of obligation negligently
caused by us leads to injury to life, limb or health or if a grossly negligent violation of obligation on our part causes any other damage.
11.4 If and to the extent that our liability in accordance with Nos. 11.1 – 11.3 is ruled out or limited, the liability of our legal representatives and vicarious agents is also ruled out or limited.
The same applies to freedom from liability in accordance with No. 8.7.
11.5 This does not affect the mandatory terms of the Product Liability Law.
- Period of limitation
12.1 The warranty period for movable objects purchased new and/or used is 1 year after delivery of the object.
12.2 If work performance is an integral part of the contract, the warranty period is 1 year after the legal start of the period of limitation. However, the 5-year periods under §§ 438 I No.2, 634 a) I No.2 BGB are not affected.
12.3 Compensation claims by the customer for movable objects purchased are limited to one year after delivery of the goods. This does not apply when we can be accused of fraudulent or deliberate
action. The period of limitation of § 438 I No.2 BGB remains unaffected. If work performance is an integral part of the contract, the period of limitation commences with acceptance (§§ 640 I, 646 BGB). The period of limitation of § 634 a) I No.2 BGB remains unaffected.
- Reservation of ownership,copyright, granting of licences, contractual penalty
13.1 We reserve ownership of all objects and materials delivered up to the receipt of all payments from the relevant contract.
13.2 The reservation of ownership remains in force also for the payments from the ongoing contractual relationship up to payment of the payments connected with the purchase.
On demand by the customer, we are obliged to waive the reservation of ownership when the customer has undisputedly met all the demands connected with the purchase and when
there is suitable security for the other demands from the ongoing contractual relationship.
If liability for a bill of exchange is substantiated by us in connection with the payment for the reserved goods, the reservation of ownership does not expire until the bill of exchange has
been honoured. If a cheque/bill of exchange procedure has been agreed with the customer, the reservation also covers the honouring by the customer of the bill we have accepted and does not
expire when the cheque has been credited.
13.3 Our models, also in combination with corresponding technical innovations, are our intellectual
property. The models are protected and may not be copied or used for reproduction. Any culpable infringement results in an obligation to pay compensation. Advertising and decorative material is copyrighted for Henrich & Denzel GmbH.
13.4 After delivery of the goods, the customer is entitled to re-sell or process them in the ordinary course of business. However, he already transfers to us now all claims equivalent to the final
invoiced amount (including VAT) to which he is entitled from re-sale against his customers or third parties, irrespective of whether the object is sold without or after processing. We hereby
accept this transfer. We may collect the amount receivable if the customer is in default of payment, or if an application has been made to begin insolvency proceedings. Any further claims arising from any other legal reason (e.g. existing insurance, tort) with regard to the sold object are also transferred to us.
13.5 If the recoverable value of all security rights we are entitled to under the above terms exceeds the value of all secured claims by more than 20 %, we will on request by the customer release a corresponding portion of the security rights at our discretion. The customer is obliged to adequately insure the reserved goods against theft, burglary, robbery, extortion, fire and water damage at his own cost in our favour and in accordance with the enclosed, current information sheet “Insurance cover”. As a precaution, the customer already transfers to us all insurance claims regarding the reserved goods that result from this. We hereby accept this transfer.
13.6 Enforcement of the reservation of ownership and seizure of the delivered goods by ourselves does not equate to withdrawal from the contract.
13.7 If the customer acts in violation of the contract, especially if he defaults on payment, we are entitled – even without setting a reasonable deadline for payment – to collect the reserved goods and to enter the place of storage or use of the goods for this purpose. Although we will declare our withdrawal prior to collecting the reserved goods, we are entitled to demand the goods even without prior withdrawal provided the customer is an entrepreneur. In thus far, § 449 II BGB is waived. The customer waives the rights to which he would be entitled due to unlawful interference with possession and in this case permits us access to the premises where the reserved goods are located.
13.8 If the customer defaults on payment to a considerable sum, or if he fails to honour a bill of exchange or cheque when it is due, or if an application is made for the opening of insolvency proceedings, we are entitled to the following steps, without this affecting any other rights:
a) If we have not yet made our deliveries, we are entitled to withdraw from all concluded contracts if the customer does not provide sufficient security or payment within a reasonable period of time.
b) If we have already delivered goods, we can with immediate effect declare due all claims resulting from this as well as non-due claims, including claims for which bills of exchange or cheques have been provided as security. Furthermore, we are entitled to demand the return of reserved goods. The secured goods will be released in stages according to the receipt of payments.
13.9 On final repossession of the goods, we will issue a credit which will be offset against the customer’s debts. Here, we reserve the right to make deductions due to:
a) Costs for the reworking of the items of jewellery
b) Reduction in value due to the item of jewellery becoming outdated or due to technical improvements of the current model. In such cases, the customer will be credited with the material value of the goods after deduction of the melting and dismounting costs.
c) Reduction in value due to fallen precious metal and diamond prices
d) Administrative costs connected with the repossession of the goods
e) Loss of interest for the period of the default.
- Place of jurisdiction, place of performance, final provisions
14.1 The place of jurisdiction is our headquarters in Radolfzell.
14.2 Unless otherwise stated in the confirmation of order, the place of performance is our seat of business.
14.3 German law exclusively applies with the exclusion of the UN Sales Convention.
14.4 We draw attention to the fact that we save and process the data of all our business partners in files. The customer declares his consent to the saving of this data.
14.5 Should any of the above GTTD be or become invalid, the other terms remain valid.
In such case, the contracting parties will replace the invalid terms with valid terms that on the one hand comply with legal requirements and on the other hand are as close as possible to the originally intended purpose