CEYLONS | MUNICH
Janowski & Schorr GbR
1. GENERAL PROVISIONS
1.1 These General Terms and Conditions of Sale (“GTCS”) shall apply to all contractual relationships of Janowski & Schorr GbR (hereinafter referred to as: “Supplier”) with its customers (hereinafter referred to as: “Customer”). The GTCS shall apply only if the Customer is an entrepreneur (Unternehmer) (within the meaning of Section 14 of the German Civil Code, “BGB”).
1.2 In particular, the GTCS shall apply to contracts for the sale and / or supply of movable items (hereinafter referred to as: “Goods”), irrespectively of whether the Supplier produces the Goods itself or sources them from suppliers (Sections 433 and 651 BGB). The GTCS, as amended from time to time, shall also apply as a framework agreement to future contracts with the same Customer for the sale and / or delivery of movable items, without any requirement on the part of the Supplier to make additional future reference to the GTCS in each individual case.
1.3 These GTCS shall be exclusively applicable. Any general terms and conditions of the Customer that depart from, conflict with or supplement the GTCS shall form part of the contract only if and to the extent that the Supplier has expressly consented to the validity of such in writing. This requirement of consent shall apply in all cases, including, without limitation, in cases where the Supplier unconditionally carries out a delivery to the Customer in the knowledge of the Customer’s general terms and conditions.
2. CONCLUSION OF THE CONTRACT
2.1 Offers of the Supplier shall be subject to change and shall not constitute binding offers.
2.2 The placing of an order for the Goods by the Customer shall be deemed a binding contractual offer. Unless the order stipulates otherwise, the Supplier shall be entitled to accept such contractual offer within four weeks of such offer being received by it.
2.3 Acceptance can be declared either in writing (e. g. by confirmation of the order) or by delivery of the Goods to the Customer.
2.4 In case of serial supply agreements (Sukzessivlieferungsverträge) and framework agreements (Rahmenverträge) the Supplier reserves the right of adequate quality (Beschaffenheit) revision. In that case the Supplier is not obliged to make modifications to any Goods which already have been delivered to the Customer.
3. PRICES AND PAYMENT CONDITIONS
3.1 The prices shall be on an exwarehouse basis and shall exclude packaging, insurance and any applicable sales tax (Umsatzsteuer).
3.2 Any custom duties, fees, taxes and other public charges shall be borne by the Customer. The Supplier shall not accept the return of any transport or other packaging subject to the German Packaging Ordinance (Verpackungsverordnung); these shall become the property of the Customer.
3.3 Payments must be made to the Supplier free of all charges and without any deductions, unless otherwise agreed by both parties in writing.
3.4 Invoices shall be payable in full within 14 days, unless otherwise agreed between Supplier and Customer. The Customer shall be in default of payment upon expiry of such payment period. Interest shall be payable on the purchase price for the duration of the default at a rate of 8 percent above the base rate (Basiszinssatz), subject to a minimum of 12 percent p.a. The Supplier reserves the right to assert claims in respect of default losses in excess of such interest. This shall be without prejudice to the Supplier’s right to claim commercial default interest (kaufmännischer Fälligkeitszins) from business persons (Kaufleute) (Section 353 of the German Commercial Code, HGB).
3.5 The Customer shall have a right to offset against claims (Aufrechnung) only if its counterclaim has been established by a final and binding decision or is undisputed. The same shall apply to the right of retention, the valid exercise of which shall further require that the counterclaim of the Customer must arise under the same contractual relationship.
4. DELIVERY TIMES; FAILURE TO DELIVER AND TO TAKE DELIVERY
4.1 Times set for deliveries can only be observed if all documents to be supplied by the Customer, necessary permits and clearances, are received in time, and if agreed terms of payment and other obligations are fulfilled by the Customer. If these conditions are not fulfilled in time, the Supplier shall be entitled to extend the times by a reasonable degree; this shall not apply where the Supplier is responsible for the delay.
4.2 If the failure to observe the times is due to force majeure such as mobilization, war, civil unrest or similar events, e.g. strike or lockout, the Supplier shall be entitled to extend the times by a reasonable degree.
4.3 At the Supplier’s request, the Customer shall declare within a period of two weeks whether the Customer is rescinding the contract due to the delayed delivery. If the Customer fails to make such declaration within this period, its right to rescission shall be lost.
4.4 If dispatch or handover is delayed at the Customer’s request by more than one month after notice of the readiness for dispatch was issued, the Customer may, for every commenced week after the one-month-period, be charged storage and insurance costs of 1 % of the price of the items to be delivered, but no more than a total of 100 %. The parties to the contract reserve the right to prove that higher or lower storage and insurance costs have been incurred; the fixedsum storage and insurance cost is to be applied against any more extensive monetary claims.
4.5 Where a contractual right to return the Goods has been agreed upon, the Customer shall bear the packaging and dispatch costs. The risk of deterioration, robbery, loss and possible destruction shall be borne by the Customer up until receipt of the returned Goods.
5. DELIVERY, TRANSFER OF RISK
5.1 The delivery shall take place on an ex warehouse basis; this shall also constitute the place of performance (Erfüllungsort). At the request and expense of the Customer, the Goods may be dispatched to a different location (sale by delivery, Versendungskauf). Unless agreed otherwise, the Supplier shall be entitled to determine the type of delivery (including, without limitation, the transport company, method of delivery, packaging) itself.
5.2 The risk of accidental destruction and accidental deterioration of the Goods as well as the risk of delays shall, also in the case of freightfree delivery, pass to the Customer as follows:5.2.1 In the case of a sale by delivery, the risk shall pass upon the Goods being passed to the carrier, freight forwarder or any other person or organization appointed for the delivery of the Goods. At the request and expense of the Customer, the delivery shall be insured by the Supplier against the standard risks of transportation;5.2.2 Where a requirement of inspection and acceptance (Abnahme) of the Goods by the Customer has been agreed upon, the passing of risk shall take place upon such inspection and acceptance. Without prejudice to the foregoing, the statutory rules governing work contracts requiring a specific result (Werkvertragsrecht) shall apply accordingly; Section 9.6 shall remain unaffected.
5.3 The risk shall pass to the Customer if the dispatch or the handover is delayed due to reasons for which the Customer is responsible, or if the Customer has failed to take delivery for any other reason.
5.4 The Customer may not refuse a delivery on the basis of minor defects. Partial deliveries shall be permissible insofar as this is reasonable for the Customer. (as of 11 / 2018)
6. SELECTION, CONSIGNMENT ITEMS
6.1 If Goods are made available to the Customer for selection (hereinafter referred to as: “Consignment Items”), they shall be deemed to have been bindingly purchased by the Customer if such Consignment Items have not been returned to the Supplier (the date of receipt being decisive) within the period specified in the attached consignment delivery note. This period shall not be shorter than two weeks. With the handing over of the Consignment Items to the Customer or, in the case of dispatch, to the carrier, all risk, in particular that of loss through no fault of either party, shall pass to the Customer.
6.2 The GTCS shall also apply exclusively to consignments so effected.
6.3 If any Consignment Item is used by the Customer as exhibit or not kept in the customer´s safe outside business hours, the Customer shall bear all risk, including that of accidental loss and robbery of the Consignment Item. The Customer´s safe used for the storage of the Consignment Items has to be a steel safe with multiple walls. Such safe, as well as its installation, has to comply at least with burglarycertification class grade 2 according to certification standard EN 1143-1 or security level 2 (S2) according to certification standard EN 14450. Irrespectively of the foregoing, the Customer is obliged to provide full insurance coverage for such Consignment Items and hereby irrevocably assigns his claims against the insurance company to the Supplier in advance. The Supplier hereby accepts this assignment.
6.4 Any Consignment Item may only be transferred to third parties on consignment for selection if any and all obligations of the Customer towards the Supplier with regard to such Consignment Item are transferred to said third parties as well.
6.5 The risk of loss or damage of the Consignment Items during the process of their return to the Supplier through no fault of either party shall be borne by the Customer.
7. INSPECTION AND ACCEPTANCE
If the Supplier demands an inspection and acceptance of the delivery, the Customer shall carry out such inspection and acceptance within a period of two weeks after delivery. Should this fail to occur, the inspection and acceptance shall be deemed to have taken place unless the Customer reports precisely defined defects or errors in writing within such period; the date by which such deadline must be met shall be the date on which the defect / error report is received by the Supplier.
8. RETENTION OF TITLE
8.1 The Supplier reserves the right to retain title in the sold Goods and the Consignment Items up until full payment on all current and future claims of the Supplier arising under the purchase contract and an ongoing business relationship (hereinafter referred to as: “Secured Claims”).
8.2 Prior to full payment on the Secured Claims, the Goods subject to the retention of title may not be pledged to third parties, nor may title therein be transferred for the purpose of security. The Customer shall be obliged to notify the Supplier in writing and without delay if and to the extent that third parties gain access to the Goods belonging to the Supplier.
8.3 The Customer shall be authorized to resell and / or process the Goods that are subject to the retention of title, in the ordinary course of business. In such case, the following additional provisions shall apply.
8.3.1 The retention of title shall extend to products created as a result of the processing, mixing or combining of the Goods of the Supplier, to the extent of their full value; in such case, the Supplier shall be deemed the producer.
8.3.2 If, in the case of processing, mixing or combining with goods of third parties, the proprietary right of a third party continues to exist, the Supplier shall acquire proportionate coownership of the finished product on the basis of the value of the relevant Goods as invoiced by the Supplier vis-à-vis the Customer. In all other cases, the rules applicable to the delivered Goods subject to the retention of title shall also apply to the product created.
8.3.3 For the purpose of security, the Customer hereby fully assigns to the Supplier all claims arising against third parties in connection with the resale of the Goods or of the product in the case of 8.3.1 and / or in the case of 8.3.2 above in the amount of the Supplier’s coownership share. The Supplier hereby accepts such assignment. The Customer’s obligations set forth in Section 8.2 shall also apply with regard to the assigned claims.
8.3.4 The Customer shall, in addition to the Supplier, remain authorized to enforce the thirdparty claim. The Supplier undertakes to refrain from enforcing the thirdparty claim to the extent that the Customer continues to meet its payment obligations towards Supplier and does not default on payment; that no application for the initiation of insolvency proceedings has been filed in respect of the Customer’s assets; and that there are no other defects in the Customer’s ability to meet its obligations. Should this be the case, however, the Supplier may demand that the Customer notifies it of the assigned claims and the respective debtors, provides all other information required for enforcement purposes, supplies related documentation, and notifies the debtors (third parties) of the assignment.
8.3.5 In the event that the attainable value of the security should exceed the Secured Claims of the Supplier by more than 20 %, the Supplier shall, upon request by the Customer, release securities as selected by the Supplier.
9. QUALITY DEFECTS (SACHMÄNGEL)
9.1 Deliveries for which a quality defect arises within the limitation period shall, at the choice of the Supplier, be amended, replaced or performed again free of charge provided that the cause of the defect already existed at the time when the risk passed to the Customer. Without prejudice to more extensive liability for damages as may arise under Section 12, the Supplier, in accordance with its duties of specific performance (Nacherfüllungspflichten), shall not be required to remove a defective item from a different item (not supplied by the Supplier) in which the defective item is integrated, nor shall it be required to cover the costs of integrating a replacement or repaired item.
9.2 Claims resulting from quality defects shall be subject to a limitation period of 12 months. This shall not apply where longer periods are prescribed by law pursuant to Sections 438 (1) No. 2 (buildings and items used for buildings), 478 (2) (right of recourse, Rückgriffsanspruch) and 634a (1) No. 2 (building defects) BGB, as well as in cases of death, personal injury or damage to health, or where the Supplier intentionally or grossly negligently breaches its duty or willfully (arglistig) conceals a defect. The statutory provisions regarding suspension of expiration (Ablaufhemmung), suspension (Hemmung) and recommencement of limitation periods shall remain unaffected.
9.3 The Customer shall notify quality defects (including, without limitation, incorrect or insufficient deliveries) to the Supplier in writing and without delay. Such notice shall no longer be deemed “without delay” where it is not given within two weeks; this deadline shall be deemed to have been met if the notice is received by the Supplier within this period.
9.4 The Supplier shall be entitled to make any owed remedy of specific performance (Nacherfüllung) conditional upon the payment of the due purchase price by the Customer. In such case, however, the Customer shall be entitled, pursuant to Section 3.5, sentence 2, to withhold a reasonable portion of the purchase price in relation to the defect. Unjustified notices of defects shall entitle the Supplier to have its expenses reimbursed by the Customer.
9.5 The Supplier shall first be given the opportunity to carry out specific performance within a reasonable period of time. If the specific performance is unsuccessful, the Customer shall be entitled to rescind the contract or to a reduction in the fee.
9.6 In view of the fact that the Goods are natural products of worldwide origin, there shall be no Customer claims for a specific place of origin of the Goods, unless this has been expressly assured by the Supplier. Also, there shall be no claims resulting from defects based on minor deviations from the agreed nature and quality (Beschaffenheit) of the Goods, including but not limited to minor deviations in colour, texture, purity and weight of the Goods. Nor shall there be claims resulting from defects based on minor deviations caused during the processing of the Goods (including but not limited to inconsistencies among a series of Goods of the same type and cut) as a result of the inherent, material nature of the Goods, defects relating to minor impairment of usefulness, or natural wear and tear or damage arising after the passing of risk as a result of faulty or negligent handling, excessive use, unsuitable equipment, defective workmanship or from particular external influences not assumed under the contract. Likewise, claims based on defects attributable to improper modifications, processing (Verarbeitung zu Schmuckstücken) or repair work carried out by the Customer or third parties or to the consequences thereof shall also be excluded.
9.7 The Customer shall have no claims with respect to expenses incurred for the purpose of specific performance, including costs of travel and transport, labor and material, where expenses are increased because the items for delivery were subsequently brought to a location other than the Customer’s premises, unless doing so is consistent with its intended use.
9.8 The Customer’s rights of recourse against the Supplier pursuant to Section 445a BGB (Rückgriff des Verkäufers) shall only exist insofar as the Customer has not made any agreements with its customer exceeding the scope of statutory rules governing claims arising from defects. Moreover, Section 9.7 shall apply accordingly to the scope of the Customer’s right of recourse against the Supplier pursuant to Section 445a (1) BGB.
9.9 Without prejudice to the above, the provisions of Section 12 shall apply in respect of claims for damages. Any other claims of the Customer against the Supplier or its appointees (Erfüllungsgehilfen), or any such claims other than those set forth in this Section 9, resulting from a quality defect shall be excluded.
10. INDUSTRIAL PROPERTY RIGHTS AND COPYRIGHT; DEFECTS IN TITLE
The Supplier hereby fully reserves any proprietary rights and / or copyrights with regard to the use of cost estimates, drawings, designs, gemstone cuts, gemstone carvings, prototypes, manuals and other documents relating to the Goods (hereinafter collectively referred to as: “Documents”). The Documents shall not be made accessible to third parties without the Supplier’s prior consent and shall, upon request, be returned without delay to the Supplier if the contract is not awarded to the Supplier. Sentences 1 and 2 shall apply accordingly to Documents of the Customer; they may, however, be made accessible to those third parties to whom the Supplier has lawfully transferred the supplies.
11. IMPOSSIBILITY OF PERFORMANCE, ADJUSTMENT OF THE CONTRACT
11.1 To the extent that delivery is not possible, the Customer shall be entitled to claim damages, unless the Supplier is not responsible for the impossibility. The Customer’s claim for damages shall, however, be limited to an amount of up to 10 % of the value of that part of the delivery which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in the case of mandatory liability based on intent, gross negligence, death, personal injury or damage to health; this shall not result in a change in the burden of proof to the detriment of the Customer. The right of the Customer to rescind the contract shall remain unaffected.
11.2 Where unforeseeable events within the meaning of Section 4.2 substantially change the economic basis or contents of the contractual performance or considerably affect the Supplier’s business, the contract shall be reasonably adjusted having regard to the principles of good faith. Where doing so is economically unreasonable, the Supplier shall have the right to rescind the contract. If the Supplier intends to exercise its right of rescission, it shall notify the Customer thereof within three weeks of becoming aware of the event. If the Supplier fails to give such notice within this period, its right of rescission shall be lost.
12. OTHER CLAIMS FOR DAMAGES
12.1 The liability of the Supplier for damages, irrespective of the legal basis of such liability, applies only in the event of intentional or grossly negligent conduct. In the event of basic negligence (einfache Fahrlässigkeit), the Supplier shall only be liable for damage resulting from death, personal injury or damage to health, or for damage resulting from the violation of a fundamental contractual obligation (wesentliche Vertragspflicht) (an obligation the fulfillment of which renders the proper performance of the contract possible in the first instance and the compliance with which a contractual partner typically does, and is entitled to, relies upon); in such case, however, the liability of the Supplier shall be limited to the reimbursement of foreseeable and typical damage.
12.2 The limitations of liability set forth in Section 12.1 shall not apply in the event that the Supplier has willfully (arglistig) concealed a defect or has provided a guarantee as to the nature and quality of the Goods. The manufacturer’s warranty shall not constitute the providing of a guarantee by the Supplier. Sentence 1 shall apply accordingly to claims of the Customer arising under the German Product Liability Act (Produkthaftungsgesetz).
12.3 To the extent that the Customer has valid claims for damages under this Section 12, such claims shall become timebarred upon expiry of the limitation period applicable to quality defects pursuant to Section 9.2. In the case of claims for damages under the German Product Liability Act, the statutory provisions governing limitation periods shall apply.
13. EXPORT RESTRICTIONS
The Customer shall not export, reexport or transfer directly or indirectly, any Goods or technical data received from the Supplier to any country or user if such export, reexport or transfer is restricted under the laws applicable in the country where the Customer is registered or resident, without first obtaining any required governmental or similar license, authorization, certification or approval. If the Customer resells or otherwise disposes of any Goods or technical data purchased hereunder, it will comply with any export restrictions applicable.
14. VENUE AND APPLICABLE LAW
14.1 If the Customer is considered a business person (Kaufmann) according to the German Commercial Code (Handelsgesetzbuch), the sole venue for all disputes arising directly or indirectly from or in connection with the contractual relationship between the Supplier and the Customer shall be the Supplier’s place of business. However, the Supplier may also bring an action at the general place of jurisdiction of the Customer.
14.2 Legal relations existing in connection with the contractual relationship between the Supplier and the Customer shall be governed by German substantive law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The requirements and effects of the retention of title agreed above shall be governed by the law applicable at the place of the storage of the Goods insofar as the choice in favor of German law should be unlawful or invalid pursuant to the respective law