§ 1 General – Scope
1. The general Conditions of Business shall apply for any current and future business relations/transactions between us and our customers.
2. Consumerin the context of these standard terms of delivery shall be regarded all natural persons, to whom Aguti shall be or become in business relationship, whereby these persons do - through these relationship - not perform any commercial or professional action. Entrepreneur in the context of these standard terms of delivery shall be natural or legal person or any partnerships having legal capacity, performing commercial or self-employed business actions. Customer in the context of these standard terms of delivery shall be both, Consumer as well as entrepreneurs.
3. Any other deviating, controversial or altering standard terms of delivery provided by the customer shall not be applicable as part of the contractual relationship, as long as it will explicitly approved by Aguti in writing.
§ 2 Conclusion of contract
1. Our offers shall be not binding. Any technical alterations or alterations/changes in form, color and/or weight shall be at our reasonable discretion.
2. By ordering of any goods, the customer commits itself with binding effect to purchase said goods.
We shall be entitled – within a time period of two weeks starting the date of our receipt of the order – to accept the order. Acceptance may be declared either in writing or by delivery of the goods to the customer.
3. The electronic conformation of receipt of an order generated in case of orders via internet shall not be deemed or interpreted as a binding acceptance. The confirmation of receipt can be combined with the declaration of acceptance.
4. Any conclusion of contract shall be performed under reserve of correct and punctual delivery of our suppliers. This shall apply, however, only under condition, that said failure of delivery is not caused by us, in particular in case of a covering transaction with out supplier.
The customer shall be informed of any non-availability of performance immediately. Any purchase price already paid shall be returned within due course.
5. Any delivery dates shall not be binding. If a delivery period has been agreed and we exceed this delivery period, we shall be granted a reasonable grace period. If the delivery period including the reasonable grace period is not met, we shall be liable exclusively for the invoice value of the quantity of goods not delivered on time, up to a maximum of the negative interest. § 9 shall remain unaffected thereby.
6. In case the Consumer has fixed its order via internet, the text of the contract shall be stored and the Consumer shall be provided with said text together with our General Conditions of Business via e-mail.
§ 3 Offer / estimate of cost
1. In case customer wishes to be provided with a binding indication of price prior to the order placement, the customer has to apply for it in written offer. In such a case the offer has to indicate in detail the work to be done as well as the drapery to be used, supported by the respective cost/prices. We are bound to this offer until the end of 4 weeks after its submission.
2. Cost estimates are subject to a charge.
3. Preliminary work such as the preparation of specifications, project planning documents, plans, drawings and models requested by the customer are also subject to a charge.
4. If an order is placed on the basis of the cost estimate / quotation, any costs for the cost estimate and the costs of any preparatory work shall be set off against the order invoice. When invoicing the order, the total price can only be exceeded with the consent of the customer.
§ 4 Retention of title
1. In the case of contracts with consumers, we reserve title to the goods until the purchase price has been paid in full.
In the case of contracts with entrepreneurs, we reserve title to the goods until full settlement of all claims arising from an ongoing business relationship.
2. The customer is obliged to treat/handle the goods with care.
3. The customer is obliged to inform us immediately of any third party access to the goods, for example in the event of seizure, as well as of any damage to or destruction of the goods. The customer must notify us immediately of any change of ownership of the goods and of his own change of residence.
4. We shall be entitled to withdraw from the contract and demand the return of the goods in the event of breach of contract on the part of the customer, in particular in the event of default in payment or breach of an obligation pursuant to items 3. and 4. of this provision.
5. The entrepreneur is entitled to resell the goods in the ordinary course of business. The customer already now assigns to us all claims to the amount of the invoice which accrue to him from the resale against a third party. Aguti accepts such an assignment. Upon the assignment the customer/entrepreneur shall be entitled to collect said amounts. However, Aguti reserves the right, to collect the respective amounts itself, however, only in case, customer/entrepreneur fails to pay the purchase price to aguti itself and defaults in payment.
6. The treatment and processing of the goods by the entrepreneur shall always take place in our name and on our behalf. If the goods are processed with items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the goods delivered by us to the other processed items. The same shall apply if the goods are mixed with other objects not belonging to us.
§ 5 Payment
1. Place of fulfillment shall be at Aguti´s place of business. Any cost or charges connected with, caused by shipment of the goods out of Aguti´s branch or warehouse shall be borne by the customer.
No further cost shall arise for the customer when using electronic communication facilities for order placement.
2. Unless otherwise agreed individually, the customer undertakes to pay the purchase price within 10 days of receipt of the goods. After expiry of the individually agreed period or in the absence of an agreed period, the above period, the customer shall be in default of payment.
The consumer shall pay interest on the debt at a rate of 5% above the base interest rate during the default period.
The entrepreneur shall pay interest on the debt at a rate of 9% above the base interest rate during the default period. We reserve the right to prove and assert higher damages caused by default against the entrepreneur.
3. The Customer shall only have a right to offset, when its counterclaims have been legally established or recognized by us.
The customer may only exercise a right of retention if his counterclaim is based on the same contractual relationship.
§ 6 Passing of risk
1. If the buyer is an entrepreneur, the risk of accidental loss and accidental deterioration of the goods shall pass to the buyer upon handover, in case of 'sale by delivery to a place other than the place of performance' upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment.
2. If the buyer is a consumer, the risk of accidental loss and accidental impairment of the sold goods shall not pass to the buyer until the goods have been handed over, even in the case of sale by delivery to a place other than the place of performance.
3. A correct handing over shall be deemed in case the buyer is in default of acceptance.
§ 7 Warranty
1. If the buyer is an entrepreneur, we shall initially provide warranty for defects in the goods at our discretion by repair or replacement delivery.
2. If the buyer is a consumer, he shall first have the choice of whether subsequent performance is to be effected by repair or replacement delivery. However, we are entitled to refuse the type of supplementary performance chosen if it is only possible at disproportionate cost and the other type of supplementary performance does not entail significant disadvantages for the consumer.
3. If the supplementary performance fails, the customer may, at his discretion, demand a reduction of the remuneration (reduction) or rescission of the contract (withdrawal). However, in the event of a minor breach of contract, in particular in the event of only minor defects, the customer shall not be entitled to withdraw from the contract.
4. Entrepreneurs must notify us in writing of obvious defects within the period of the 377 HGB (German Commercial Code); otherwise any warranty claims in this respect are excluded. To meet the time period given, it is sufficient to timely dispatch the notice
The full burden of proof for all claim requirements, in particular for the defect itself, for the time of detection of the defect and for the timeliness of the notice of defect, lies with the entrepreneur.
5. If the customer chooses to withdraw from the contract due to a legal or material defect after failed subsequent performance, he shall not be entitled to any additional claim for damages due to the defect.
If the customer chooses compensation after failed subsequent performance, the goods shall remain with the customer if this is reasonable. The compensation shall be limited to the difference between the purchase price and the value of the defective item. This shall not apply if we have maliciously caused the breach of contract.
6. For entrepreneurs, the warranty period is one year from delivery of the goods. For consumers, the limitation period is two years from delivery of the goods. In the case of used goods, the limitation period for entrepreneurs and consumers is one year from delivery of the goods.
7. If the buyer is an entrepreneur, only the manufacturer's product description shall be deemed agreed as the quality of the goods. Public statements, praise or advertising by the manufacturer do not represent a contractual description of the quality of the goods.
8. The customer does not receive any guarantees from us within the legal sense. Manufacturer guarantees remain unaffected by this.
9. If the customer receives faulty assembly instructions, we shall only be obliged to supply faultless assembly instructions, and only if the fault in the assembly instructions prevents proper assembly.
§ 8 Limitations on liability
1. In the case of slightly negligent breaches of duty, our liability shall be limited to the foreseeable, contract-typical, direct average damage according to the type of goods. The same applies in case of slight negligence of our legal representatives or auxiliary persons.
We shall not be liable to entrepreneurs for slightly negligent breach of insignificant contractual obligations.
2. The above limitations of liability do not apply to claims of the customer arising from product liability. Furthermore, the limitations of liability shall not apply in the event of bodily injury or damage to health attributable to us or in the event of loss of life of the customer.
3. Claims for damages by the customer due to a defect shall become statute-barred one year after delivery of the goods. This shall not apply if we can be accused of gross negligence or in the event of bodily injury or damage to health attributable to us or loss of life of the customer.
§ 9 Final provisions
1. The national law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
2. If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract shall be Aguti's place of business. The same shall apply, when the Customer does not have a general place of jurisdiction in Germany, or when the residency or habitual abode is not known when the legal action is commenced.
3. Should individual provisions of the contract with the customer including these General Conditions of Business be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision.