General Standard Terms and Conditions - SerrentiS GmbH
1. General / scope of application
SerrentiS GmbH, Fraunhoferstraße 4, 85737 Ismaning, Germany (hereinafter referred to as “SerrentiS”) shall provide all the deliveries and services, carry out all additional and follow-up orders and make any modifications or changes to contracts solely on the basis of the following General Standard Terms and Conditions, unless separate conditions or provisions are explicitly agreed in an individual case.
SerrentiS’ range relating to the sale and delivery of, among other things, hotel supplies, such as slippers, towels, bathrobes and hotel cosmetics, is aimed solely at entrepreneurs. Entrepreneurs are natural or legal persons or partnerships having legal capacity with which business relationships are created as part of their independent professional or commercial activity.
General standard terms and conditions of customers shall not be binding on us if their contents differ from these General Standard Terms and Conditions and/or contain additional provisions, unless we explicitly acknowledge them in writing and even if we do not explicitly object to them. If a Party pleads an arrangement that has not been confirmed in writing by the other Party and differs from these General Standard Terms and Conditions, it must prove that such an arrangement has been agreed in the event of a dispute.
2. Conclusion of contracts
Our offers are without commitment and non-binding. A contract shall be formed by confirmation of the customer’s order or supply request. An order shall be deemed to have been accepted and a contract shall be formed only when the request has been explicitly confirmed by us by fax, e-mail or phone (order confirmation). The order shall likewise be deemed to have been accepted by the ordered goods and invoice being sent (implied acceptance).
Our offer and order confirmation, which are issued on the basis of these General Standard Terms and Conditions, shall be authoritative for the contents of the contract. Other agreements, in particular on delivery, the provision of other services and the price, shall only be binding if given in writing or at least confirmed by us in writing.
We shall not be obliged to examine the contents of orders to determine whether third-party rights are impaired or infringed by them. If, regardless of that, we notice such an infringement, we shall point this out to the customer.
3. Prices and terms of payment
Our prices are net; value-added tax at the rate applicable at the time of delivery shall be payable on top of them. We reserve the right to bill value-added tax for deliveries to/orders from abroad, in particular if the customer does not give us an VAT ID reg. no or VAT no. and we are obliged to bill VAT (e.g. under the German Value-Added Tax Law (UStG)).
The prices shall apply to delivery of the goods free domicile, unless explicitly agreed otherwise.
The agreed prices shall apply only to the delivery date stated in the order confirmation, unless a fixed price has been agreed. If there are delays in delivery for which the customer is to blame, we reserve the right to adjust the price reasonably due to changes in wage, material and/or distribution costs, as well as to charge additional costs caused by the delay, e.g. for storage. The same shall apply in the case of a delay in accepting delivery.
The price shall be paid within the deadline defined in calendar days in the order confirmation, with receipt of the money on our account being authoritative for determining whether payment has been made by the deadline (period for payment). If the invoice amount has not been received by us within the period for payment, the customer shall be in delay, without the need to be given a warning, unless the delay has arisen previously pursuant to separate provisions. We shall charge interest on arrears at the rate specified in the German Civil Code (BGB) (as of September 2015: 9% (nine percent) per annum above the base interest rate). We reserve the right to claim higher damage due to a delay.
4. Delivery period and delivery quantity
In principle, deliveries shall be made within the agreed delivery period, in particular, that stated in the order confirmation. If, however, an order relates to personalised or customised goods, the delivery dates specified by us are only estimates and so shall not be binding, unless explicitly agreed otherwise.
In the case of orders, excess deliveries or short deliveries of up to 15% of the contractually agreed and/or ordered quantity of goods may occur. The customer shall accept excess or short deliveries up to a quantity of 15% of the contractually agreed and/or ordered quantity of goods, with the price for the order being adjusted on the basis of the ratio of the difference in quantity.
We shall also be entitled to make part deliveries.
In the case of delay in acceptance of delivery or culpable violation by the customer of its duties of cooperation, we shall be authorised to demand that the customer compensate us for the damage caused in this regard, including any additional expenses (see also section 3.3). We reserve the right to assert further claims.
So that we can supply our goods, the customer must first fulfil its obligations properly and on time. We reserve the right to plead non-fulfilment of the contract.
In the event of force majeure (such as natural disasters, transport problems, war or official measures) and all delays for which we are not to blame, the delivery period shall be extended by the length of time for which the impediment to performance exists. That shall also apply if we are already in delay or if these circumstances occur at our suppliers or their suppliers.
5. Passage of risk upon delivery
The risk of accidental loss or accidental impairment of the goods shall pass to the customer upon shipment of the goods. This shall apply regardless of who pays the shipping costs and also of whether the goods are dispatched from the place of performance. The goods shall thus always be shipped at the customer’s risk.
If the delivered goods – despite the utmost care – have a defect that already existed at the time of the passage of risk, we will repair these goods or supply replacement goods, at our choice, subject to the defect being reported in time. In principle, a warranty for defects primarily results in a right to repair the goods, which shall be granted to us twice, unless repair of them is not possible or the customer cannot reasonably be expected to accept repair of them. In this case, the customer can – without prejudice to any claims for damages – demand a reduction in price commensurate with the defect (reduction) or rescind the contract.
So that the customer can claim any warranty rights, it must have properly fulfilled all its responsibilities and obligations to examine the goods and report any defects (Section 377 of the German Commercial Code (HGB)). Warranty rights due to obvious or visible defects (Section 377 (2) HGB) shall be excluded if the customer does not report them in writing within 8 (eight) days of receipt of the goods.
Claims for defects shall become statute-barred 12 (twelve) months as of the time of the passage of risk, unless longer periods are prescribed by law. If goods are repaired, we shall bear the costs of returning them only if the customer has given us prior opportunity to collect the goods at our own expense and we have explicitly waived the option of doing so.
There shall be no right to claims for defects in the case of only insignificant deviations from the agreed quality, only insignificant impairment to usability, natural wear and/or tear and defects that occur after the passage of risk due to incorrect or negligent handling, excessive stressing, unsuitable handling or external influences over which we have no control or which are not provided for under the contract. If the customer or third parties make changes to the goods, there shall likewise be no right to claims for defects for them and the resultant consequences.
Our warranty shall no longer apply if the customer refuses to have the reported defect ascertained and rectified by us or if we have not been granted a right to repair the goods, for example, if work to rectify defects or repair goods has been carried out by third parties without our approval.
We shall not assume any warranty and/or liability for the sale and delivery of used goods.
Claims by the customer due to the expenses required for subsequent remedy of defects, in particular transport, travel, labour and material costs, shall be excluded if the expenses increase due to the fact that the goods we supplied have been subsequently moved to a location other than the customer’s business establishment, unless their relocation corresponds to their use as intended.
We shall not be liable for damage to property and economic loss caused by our service, unless they are due to intent or gross negligence on our part. Irrespective thereof, we shall be liable without limitation in accordance with the statutory provisions for injury to persons and damage under the German Product Liability Law (Produkthaftungsgesetz).
In the case of damage to property and economic loss otherwise caused through negligence, we shall only be liable if we violate a cardinal contractual obligation, but the amount of liability shall be limited to damage that was foreseeable when the contract was concluded and is typical of the contract. Cardinal obligations are ones whose fulfilment is vital for the contract and on the fulfilment of which the customer may rely. These provisions shall also apply to damage caused by our vicarious agents, in particular if and insofar as claims are asserted directly against them.
With the exception of claims by the purchaser under product liability or in the case of fraudulent misrepresentation, claims for damages shall become statute-barred 12 (twelve) months after the passage of risk as defined in section 5.
8. Offsetting and right of retention
The customer can offset its counterclaims against our claims or assert a right of retention or right to withhold performance only if the counterclaim it wishes to offset or the claim on which the right of retention is based is not disputed, has been acknowledged in writing or has been legally established with final and binding effect. If any retention is accordingly not permissible, the commercial rights of retention (Sections 369 and 371 HGB) shall be excluded.
9. Reservation of ownership
The supplied goods shall remain our property until they are paid for in full (retained goods). This shall also apply to all future deliveries, even if we do not always explicitly point this out. If the customer acts in violation of the contract, in particular by being in delay in payment, we shall be authorised to rescind the contract and demand surrender of the retained goods.
If third parties seize our retained goods (such as by attachment), the customer shall point out to the third parties that they are our reserved property and notify us immediately in writing. The customer shall indemnify us against all costs and expenses in connection with enforcing our rights to defend against the seizure of goods under our reservation of ownership by taking court and out-of-court action (in particular action to oppose execution in accordance with Section 771 of the Code of Civil Procedure (ZPO).
If the customer resells the retained goods, the customer hereby assigns to us all claims from their resale, along with any accessory and security rights, so as to secure all of its payment obligations. The assignment, which we hereby accept, shall apply regardless of whether the goods have been resold without being processed or after being processed.
The customer shall not obtain ownership of the new goods in accordance with Section 950 BGB after processing the goods. Processing of the goods is carried out by the customer for us as the producer in this regard. If the retained goods are processed, combined or mixed with other objects that do not belong to the customer, we shall acquire co-ownership of the new object to the ratio of the value of the retained goods (invoice amount including value-added tax) to the other processed objects at the time of processing. Apart from that, the same shall apply to a new object created by processing as to retained goods.
If the value of the security to which we are entitled exceeds the claim against the customer to be secured by more than 20% (twenty percent), we shall – at the customer’s request – release security to the extent that it exceeds in total the claim to be secured by more than 20% (twenty percent).
The customer shall not have the right to provision of the agreed service if that would violate prevailing law. Disadvantages resulting therefrom shall be borne solely by the customer.
We shall not assume any liability for goods ordered by the customer infringing industrial property rights or copyrights of third parties. The customer shall notify us immediately of any claims asserted against it for that reason.
If the supplied goods have been produced on the basis of designs and instructions from the customer, the customer shall – at our first time of asking – indemnify us against any claims that are asserted by third parties due to the infringement of industrial property rights or copyrights. The same shall apply to claims asserted against us by third parties and attributable to conduct, a breach of the law and/or liability on the part of the customer. If claims are asserted against us in this regard, the customer shall reimburse us in particular for the costs we incur in any necessary defence against or prosecution of claims or grant us a reasonable advance in good time before due payment of the costs.
11. Storage and use of data
We process all data required for handling the contract by automatic means and use this data only for internal company purposes, in compliance with the requirements for confidentiality of personal data and the applicable data protection regulations, in particular the German Federal Data Protection Act (BDSG). The data is not passed on to any third party.
12. Place of performance, place of jurisdiction and applicable law
The place of performance shall be Munich, Germany.
The sole place of jurisdiction for all disputes arising from the business relationship shall be Munich, Germany.
The law of the Federal Republic of Germany shall apply solely, in particular the German Civil Code (BGB) and the German Commercial Code (HGB), to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and other international conventions governing the movement of goods.
13. Severability clause
If individual provisions of the contract and/or the General Standard Terms and Conditions are or become invalid, or if they are incomplete, this shall not affect the validity of the other provisions. An invalid provision shall be replaced by one that is valid and corresponds as closely as possible to the economic intention of the invalid provision. The same shall apply if individual points have not been regulated.
SerrentiS GmbH, Fraunhoferstraße 4, 85737 Ismaning, Germany
Tel.: +49 (0)89 85631014 Fax: +49 (0)89 85631019 E-mail: email@example.com www.serrentis-hotelsupplies.com