Könitz Porzellan GmbH
General Conditions of Business for the Brands KÖNITZ and WAECHTERSBACH
All of our offers and deliveries are governed solely by the following delivery and payment conditions insofar as nothing else has been agreed in writing in an individual case. In this context, the version of our own conditions of business that applies is the one that applied at the time of the order. Contrary procurement conditions of the buyer apply only if we have confirmed them specifically in writing.
2. Offer and Conclusion of Contract
All of our offers are non-binding. Orders are deemed to have been accepted if they are confirmed by us in writing or if they are filled without delay or by the specified delivery date. In the latter case, our invoice also constitutes order confirmation. Excess production, i.e. goods of lesser quality, may be sold to other customers in Germany and abroad. With manufacturing orders to the customer’s specifications, we reserve the right to deviate from the order quantity by as much as 10%. Manufacturing orders to the customer’s specifications can be used by Könitz Porzellan GmbH for catalogues, trade fairs and as prototypes for third parties.
3. Invoice Amount
Our prices are net prices ex works. The prices charged are the prices in the dealers’ price list that applied on the day of delivery. Statutory value added tax, as applicable, is invoiced in addition. Goods, inclusive of normal packaging, are shipped on the account and at the risk of the orderer. Special packaging, stickers, cartons, expendable pallets, foil coverings and the like are charged to the customer. There is a service charge of 10 € for small orders of at most 150 € net. Delivery to destinations in Germany is free of charge for orders of at least 300 € net, otherwise there is a standard freight charge of 12 € for these deliveries. Special agreements are made for orders to the customer’s specifications and deliveries to destinations outside Germany. There are special conditions for blemished goods and goods being discontinued. Insurance against breakage is concluded by us at the orderer’s expense in the amount of 1.5% unless we have contrary written instructions from the orderer.
4. Delivery Deadlines
Stated delivery deadlines are approximate. Delivery times and agreements reached orally or by telephone must be confirmed by us in writing. We are entitled to make partial deliveries. Delivery deadlines will be extended by a reasonable amount of time in all cases of hindrances that were not predictable when the order was agreed, such as disruptions of company operations, strikes, lockouts, and interventions of national or international authorities, insofar as we cannot be held responsible. Quite the same applies when our suppliers are affected by similar circumstances. In all of the foregoing cases the buyer is entitled to demand from us a decision on whether we wish to withdraw from the contract or deliver within a reasonable period of time. Claims for compensation for damages are excluded in the latter case. Partial deliveries within a reasonable period of time terminate delivery default, as applicable.
5. Payment Conditions
Each invoice amount is to be paid within 30 days after the invoice is received, without any deductions or transaction charges, in cash or by direct transfer to our bank account (conformity to GwG is presupposed) [GwG = Law on Tracking Down Profits From Serious Crimes]. If payment is made within 10 days, a 2% discount may be deducted, and a 2% discount is granted for payments by direct debit, subject to receipt of the payment in our company bank account. New customers have to pay in advance, but are granted a discount of 3%. When an invoice that is already due has not been paid in full, these discounts may not be taken for any invoices with a later date. All payments are credited to the oldest debt.
When an agreed payment deadline has not been met, the debt enters payment default even if we have not issued a reminder for this debt. In such cases we are entitled to charge interest at the bill discount rate of the Bundesbank plus an additional 4.5% per year, without prejudice to our rights to assert further damages. If the buyer slips into payment default, we are entitled to retain all open deliveries and demand collateral. We are also entitled to assign to a third party all our claims based on our business relationships.
6. Retention of Ownership
All goods that are delivered continue to be our property until all claims of ours that are based on the current business connection, including those based on earlier deliveries, have been paid in full. Acceptance of a bill of exchange before it is redeemed does not count as payment. However, the buyer is entitled to resell the goods during the normal course of business, but only if retention of ownership is likewise agreed. The buyer herewith assigns to us now, in advance, all claims that accrue to the buyer against its own customers on the basis of this resale, as well as all ancillary rights. We herewith accept these assignments. The buyer is not entitled to pledge or transfer as collateral any goods that are subject to retention of ownership by us. We would then be entitled to take back the goods at the expense of the buyer or to demand assignment to us of the buyer’s rights against third parties to surrender the goods. Exercise of a right to take back goods does not constitute withdrawal from the corresponding sales contract.
7. Liability for Defects
The goods must be inspected when they are received. Claims and notifications of material defects or deficiencies in title in any of the goods being purchased are deemed to be in time only if they were received by us within 8 days after the buyer received the goods. Claims for compensation for damages are barred for all complaints received by us at a later time. No replacement will be made for breakage unless proof is supplied. Goods which are the subject of a complaint must be stored and handled properly. Goods may be returned to us only with our express consent. If a complaint has been acknowledged by us, the buyer will receive a credit note or a replacement, in accordance with our decision. Liability for material defects does not cover natural wear and tear, nor does it cover damages that arise after passage of risks to the buyer in consequence of erroneous or careless handling, excessive strain or other influences which are not covered by the contract. Further claims of any type whatsoever are barred, including claims for compensation for damages against the company or its assistants as well as claims for compensation for damages which have not been sustained by any of the goods that have been delivered, unless such claims are based on grossly culpable breach of contract. Minor deviations in dimensions, form, colour and decor do not qualify as a subject of complaint. Products may not be provided with decorations unless we have consented.
8. Brand Rights and Other Protected Rights of Third Parties
In that it buys our goods or forms other legal relationships with our company, the buyer does not receive any rights to works, brands, design patents, or other industrial property rights that are protected by originators’ rights, nor does the buyer receive a right to use or refer to them, nor may any of our names, logos, brands, designs or works that are protected by originators’ rights be integrated or used in any materials or other or in any documents in any other way, especially not in any materials or documents of a promotional nature, unless the buyer has already received our written consent.The ownership of custom made products on our white ware shapes does not automatically transfer to the client. Reproduction by another supplier is not permitted. Post contractual rights to the shape may not be claimed by the client.
The buyer warrants that no protected rights of third parties are violated in connection with the manufacture of products that it orders. If we are called on by a third party to answer for a violation of a protected right, then the buyer is obliged to indemnify us against these third party claims upon first demand; this obligation to indemnify also covers all expenses that are necessarily incurred by us as a result of or in connection with our being called on by a third party to answer for violations of protected rights. Defective goods that arise in connection with production may be sold by us in the context of selling residual items. The buyer expressly allows us to use brand rights and other protected rights free of charge.
9. Applicable Law, Place of Fulfilment, Place of Jurisdiction and Severability Clause
All legal relationships between the buyer and us are governed by the law of the Federal Republic of Germany. The place of fulfilment and - insofar as this is permissible by law - the place of jurisdiction for both parties is Jena. If any of the foregoing provisions is or becomes ineffective, this shall not affect the effectiveness of the remaining provisions. The ineffective provision is to be amicably replaced by an effective provision that implements the economic objective pursued by the ineffective provision as far as possible.