Purchase Terms & Conditions
Ress Möbelwerkstätten GmbH & Co. KG Purchase Terms & Conditions
I. Applicability
(1) The following Terms and Conditions set out by the Purchaser apply to all contracts regulating the delivery of goods and services between Ress Möbelwerkstätten GmbH & Co KG (Purchaser) and the Seller. The Terms & Conditions also apply to all future business relationships including those that are not expressly agreed at this point in time. Terms & Conditions of the Seller that do not coincide with the Purchaser’s specifications listed herein and that are not expressly recognised by him remain non-binding for the Purchaser even if he does not expressly contradict them. The Terms & Conditions of the Purchaser also apply when the Purchaser accepts delivery from the Seller unconditionally in the knowledge that the Seller’s conditions contradict or differ from the Purchaser’s.
(2) All agreements reached between the Purchaser and the Seller in relation to contracts of purchase are fixed in writing in the contracts of purchase, these Terms & Conditions, and the offers of the Purchaser.
(3) Agreements (including collateral agreements, additions and amendments) that are reached by the contract parties on a case-by-case basis always override these Terms & Conditions.
II. Offer and conclusion of contract
(1) The Purchaser submits his offer for a conclusion of contract (Order) to the Seller in text form (email or fax) or written form. The Purchaser is bound to the Order for five working days, commencing on the date of Issue of the order. During this five-day period only, commencing on the date of the Order, the Seller is entitled to accept the Order. The Seller must declare his acceptance to the Purchaser in text form (email or fax) or written form. The Purchaser’s receipt of the Seller’s declaration of acceptance forms the basis for accepting the Order. The Seller must provide the following information: form of address, first and surnames, address, delivery or collection address, telephone number, email address, mode of payment and bank details, VT ID, drawings, order and delivery date.
(2) The Seller’s offer to conclude a purchase contract must be submitted to the Purchaser in text form or written form. The Purchaser can accept the offer within two weeks commencing on the date of the offer, either verbally, by email, by fax or in writing. As above, the Seller’s receipt of the declaration provides the basis for accepting the contract. On accepting the declaration, the Seller must immediately provide written confirmation of the Order to the Purchaser, either by email or by fax.
(3) Drawings, plans and other documents pertaining to the order remain the property of the Purchaser, who retains all copyrights to these items. The Seller undertakes not to divulge or offer access to these documents to any third party unless the Purchaser has provided express written permission to that effect. If the Seller does not accept the offers of the Purchaser within the period specified in Section II Point 1, these documents must be returned to the Purchaser upon request. After the respective contract has been fulfilled, the Seller must return the documents to the Purchaser within five days entirely at his own expense. The period for returning the documents commences on expiry of the periods defined in II (1) and (2).
III. Payment
(1) Unless mutually agreed by both parties and recorded in writing, the price specified by the Purchaser in the Order is binding and comprises free delivery without further surcharges (such as energy surcharges, toll surcharges or similar). The price includes packaging costs. The price does not include statutory value-added tax. All invoices issued by the Seller must quote the Purchaser’s order number and item number.
(2) Unless stated otherwise in a written agreement with the Seller, the Purchaser will pay the amount due minus a 3% discount if the account is settled within ten working days commencing on the date the goods were delivered by the Seller. The Purchaser will pay the full net invoice amount if the account is settled within 45 days.
(3) The Purchaser is entitled to comprehensive statutory offset rights and retention rights. The Purchaser is entitled to assign all claims from the purchase contract without the Seller’s consent. The Seller is not entitled to assign claims from the contract to third parties without the prior written consent of the Purchaser.
IV. Packaging and transfer of risk
(1) Where packaging is required for transportation purposes, the Seller must package all goods for delivery. Packaging must be suitable for transportation, meet requirements for the chosen form of transport, and comply with any packaging specifications listed in the Order by the Purchaser.
(2) Risk is transferred to the Purchaser with immediate effect on delivery of goods to the delivery address specified in the Order, unless the Purchaser has, in exceptional circumstances, commissioned his own staff or a forwarding agent to transport the goods on his behalf.
(3) DAP regulations of the Incoterms 2010 apply.
V. Delivery time
(1) The delivery time specified by the Purchaser in the Order or the delivery date provided are binding for the Seller. Any deviation from the specified delivery date must be confirmed in writing by the Purchaser.
(2) If the Seller is subject to delays, the Purchaser can claim his legal entitlements. If the Purchaser claims for damages, the Seller is entitled to provide proof that he did not breach his duty.
VI. Product characteristics and product audit duties
(1) Characteristics of products provided by the Seller that affect the product security or production security of the Purchaser are considered guaranteed according to § 276, para 1, sentence 1, sub-clause 2 of the German Civil Code (BGB) when the Seller’s specialist knowledge makes it imperative that their significance be recognisable, or when the Purchaser made specific reference to the importance of these characteristics for secure products and production during or prior to conclusion of the contract, for instance through drawings, plans, test specifications or similar, labelled with industry-standard abbreviations. Further verbal understandings relating to the assurance of characteristics before, during or after conclusion of the contract remain unaffected. Such understandings can be reached in all cases, including verbally or with reference to drawings, plans, etc. Where samples are provided for reference purposes, these samples will represent the standard of production, provided this has been approved by the Purchaser.
(2) If the Seller does not produce the goods himself and instead sources them from third parties, it is the Seller’s duty to inspect the goods for possible defects with special care before delivery to the Purchaser, above and beyond the routine checks that may be carried out. In addition, the Seller assures the Purchaser that no goods will be sourced from third parties whom the Seller knows to be working with insufficient diligence.
VII. Warranty/liability
(1) It is the Purchaser’s duty to inspect the quality and quantity of goods delivered within a suitable period following their receipt. A report of obvious defects is deemed to have been submitted within a suitable period if the Purchaser dispatches the report within 10 working days of goods delivery and the report is received subsequently. A report of defects that are not immediately obvious is deemed to have been submitted within a suitable period if the Purchaser dispatches the report within three working days of discovering the defects and the Seller receives the report subsequently. A defect report that is dispatched by the Purchaser but not received by the Seller will nonetheless be considered to have been dispatched in good time, provided the Purchaser dispatches the report again immediately after its failure to arrive has been identified.
(2) The Purchaser is entitled to make statutory claims for defects against the Seller, and the Seller bears statutory liability toward the Purchaser. Owing to the limitation period, defect claims must be issued within 36 months of the transfer of risk unless agreed otherwise.
(3) Rectification of defects according to § 439 III of the German Civil Code (BGB) includes the Seller’s duty to reimburse the Purchaser for expenses incurred by the removal of defective goods and their replacement with repaired or defect-free items, when the Purchaser has fitted or attached the defective item to another item in a way that is suited to its nature and use. Necessary expenses include but are not limited to the cost of fitting, removing and transporting the item as well as road and material costs, assessor’s fees and, where required, legal fees.
(4) Further, the Seller is liable in particular for breaches of duty as defined by the law.
VIII. Purchaser liability /Insurance cover
(1) In the event of a third party holding the Purchaser liable for a product defect for which the Seller was responsible, the Seller must make sufficient funding available to the Purchaser to cover the cost of all third-party claims, including the cost of defence. The funding must be made available as soon as the relevant demand for funding has been received, if the Seller identifies the cause of the defect as being in his sphere of control or organisation.
(2) In the event of a claim as defined in Section 8, Point 1 being made and the Purchaser being forced to re-call products, the Seller must reimburse the Purchaser for all expenses arising from and/or in relation to the re-call. Where possible and where time reasonably allows, the Purchaser will inform the Seller of the cause and extent of the product re-call and give the Seller sufficient time to react to the complaint. Further statutory rights of the Purchaser remain unaffected.
(3) The Seller is under an obligation to take out and maintain product liability insurance with a coverage sum suited to the product concerned of at least €10 million per case of personal injury/material damage. (Coverage will be fixed according to the product and will vary case by case.) Further statutory rights of the Purchaser remain unaffected.
IX. Third-party rights
(1) The Seller affirms that no third-party rights stand in conflict with the intended use of the goods delivered, and that, in particular, the protective rights of third parties are not infringed. In the event of a third-party claim being made against the Purchaser on the basis that goods delivered by the Seller infringe on his protective rights, the Seller undertakes to indemnify the Purchaser of these claims as soon as the first demand is made, including all the expenses incurred by the third-party claim itself and by the defence from the claim, unless the Seller has not acted culpably. The Purchaser is not entitled to acknowledge third-party claims or reach agreements with the third party with regard to their claim without the written consent of the Seller. These rights to exemption are limited to 36 months, commencing from the transfer of risk.
(2) If the use of goods delivered is compromised by existing third-party protective rights, the Seller must obtain the relevant approval at his own expense, or modify or replace the part concerned in such a way that the goods delivered no longer stand in conflict with any third-party protective rights while continuing to fulfil contractual provisions.
X. Replacement parts for phased-out items
The Seller undertakes to provide reasonably priced replacement parts for a period of five years, even when the item is no longer in series production. Replacement parts can also be provided from ongoing production, provided the Purchaser approves. Approval will be granted only if the Purchaser incurs no additional costs and if the parts concerned are not of inferior quality. The Purchaser will agree to a premature cessation of supplies before five years have elapsed, if contingency stocks are economically justifiable and demand is foreseeable.
XI. Provision of material, Purchaser’s property
Materials provided by the Purchaser, in particular items such as drawings, plans and other documents, remain the property of the Purchaser and must be returned by the Seller at no extra cost. Such documents must be stored separately from the Seller’s other items and with due care. They must be clearly labelled as being the property of the Purchaser and may be used solely to carry out the Purchaser’s Order. If the materials provided are damaged in any way, the Purchaser must be informed immediately, and the materials must be replaced. The material provided by the Purchaser must be insured for its current replacement value against destruction, damage and depreciation. A copy of the insurance policy must be provided to the Purchaser on receipt of the materials provided, without being specifically requested. If the Seller takes receipt of the Purchaser’s material via a third party (direct delivery), the Seller must inspect the incoming goods on behalf of the Purchaser and, in particular, pursue complaint obligations in accordance with §377 of the German Commercial Code (HGB). At the end of a calendar year, the Seller must produce an inventory of materials provided by the Purchaser and forward the inventory to the Purchaser immediately.
XII. Place of jurisdiction/place of fulfilment/applicable law
(1) The place of fulfilment and the sole place of jurisdiction for the delivery of goods, for payments (including settlement and cheque proceedings) and for all disputes between the Seller and the Purchaser arising from contracts entered into by the two parties is the Purchaser’s head office, provided the Seller is a merchant according to the German Commercial Code (HGB). The district court of the Purchaser’s head office is agreed as the competent court.
(2) Relations between the contract parties are subject solely to the law applicable in the Federal Republic of Germany. UN sales law will not apply.
XIII. Data protection and the processing of Customers’ personal data
Ress Möbelstätten GmbH & Co. KG processes the personal data of its Customers in particular according to the EU General Data Protection Regulation (EU GDPR), the German Federal Data Protection Act and provisions issued on the basis of these regulations. For further details, see our Data Privacy Protection Declaration.
Stand May 2018
