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United Merchandise GmbH
Hanauer Landstraße
60314 Frankfurt / Main,
Germany
Tel : +49-69-943594-0
Fax: +49-69-943594-16
GENERAL TERMS AND CONDITIONS
1. Scope
The following Terms and Conditions shall be applicable throughout our business relations, present and future, with our customers, forming an integral part of all contracts, regardless of any explicit reference therein. Terms and conditions of the buyer that deviate from or exceed our present Terms and Conditions shall not be applicable or form part of any contract. Buyers for the purpose of these Terms and Conditions are natural entities ordering merchandise from us for purposes unrelated to their commercial or professional occupation. Contractors are natural or legal entities or unincorporated firms with legal capacity acting in their commercial or professional capacity when placing an order.
2. Formation
The representation of our product range, particularly in our catalogs and/or online, does not constitute a binding offer. Should a buyer not accept an offer or counteroffer made by us without alterations, a contractual agreement shall not be considered concluded unless we reconfirm the order or deliver the merchandise. An order is binding for the buyer for a duration of four weeks. Our offers and counteroffers are subject to change without notice. Our contracts are subject to correct and timely delivery by our suppliers, receipt, and capacity to ship. In case of non-availability of merchandise ordered, we reserve the right to withdraw from the contract. In case the quantity ordered exceeds those quantities customary in trade and commerce, we reserve the right to limit the quantity. Any agreements beyond the written contract or order, including the present Terms and Conditions, have to be made in writing. This requirement is fulfilled when the agreement is confirmed by us in a letter.
All images, representations and/or samples as well as information on quality and properties, including but not limited to dimensions, weights, capacities, materials, and colors, are approximate and subject to deviation within a reasonable range. We specifically reserve the right to deviate in the following respects: general color deviations ± 10%; in case of engravings, deviations of shape and color in excess of 10%; fitting tolerances for technical reasons up to 100 µm; variations in material, especially in the case of natural products such as leather, wood, cork, etc.; the use of materials other than those stated; technical alterations due to technological advances; as well as changes in construction, shape, color, or weight that develop during the period of delivery.
In case of customization, we reserve the right to deliver quantities of up to 15% more or less than those ordered. The buyer takes full responsibility for the correctness of plans, drawings, or other information supplied by the buyer. We are under no obligation to examine any items supplied by the buyer, or by a third party designated by the buyer, for flaws or mistakes. Examining prototypes, proofs, drawings and/or similar samples does not establish any responsibility on our part for unobjected flaws or mistakes.
3. Prices
All prices listed in our price lists, offers, etc. are net prices in euro, excluding applicable value-added tax, and subject to change. The prices applied will be those valid on the day of delivery, plus V.A.T.
If the period of delivery exceeds 4 (four) months, we reserve the right to increase a previously agreed price in proportion to any increase incurred by us in production cost or purchase price during the period between the time of contract and the time of delivery. Our offers do not include the cost of packaging, shipping, installation or assembly, which will be invoiced separately.
4. Payment
We only accept the types of payment listed in the ordering process. We reserve the right to request full or partial prepayment or ship our merchandise C.O.D. only. Checks or drafts will only be accepted to facilitate payment. Any fees or charges will be debited to the buyer.
All payments are due within 14 days from the date of the invoice. Discounts will not be granted. For delayed payments, the buyer will be charged a penal interest of 11 percent p.a. on the amount owed. We reserve the right to claim and prove additional damages caused by the delay in payment.
In cases where payment by installments had been agreed upon, the full amount owed becomes due and payable if the buyer is in arrears with pay two or more installments and if the total amount delayed exceeds one tenth of the total price of the merchandise that had been agreed upon.
Should a buyer default on a payment or installment, any further debt claims against him from our side shall become payable with immediate effect. For deliveries or services to buyers outside of Germany, it is explicitly agreed that all legal costs caused by a delay, in or out of court, will be debited to the buyer.
The buyer is not permitted to balance any counterclaims against our claims, unless they are undisputed, have been acknowledged by us, or have been established in a legally binding manner. The buyer may only claim the right to retain payments for counterclaims which are based on the same contractual agreement, are undisputed, or have been established in a legally binding manner. We have the right to cede our claims for financing purposes. For customized items, cancellation of the order or nonacceptance will entitle us to claim compensation in the amount of one fifth of the agreed payment without any obligation to prove actual damages, unless the buyer is able to supply proof that the financial equivalent of actual damages incurred is less than the compensation claimed.
5. Delivery
All delivery dates stated are approximate and do not constitute a guarantee of any kind. If, in deviation from the above, a fixed delivery date was agreed upon and the merchandise is not delivered by that date, a delay can only be claimed if the delivery exceeds the target date by more than 21 days. A period of delivery begins with the signing of the contract, but not earlier than the date by which the buyer has supplied all documents necessary and arranged for prepayment, if applicable. Any grace period set by us has to be reasonable and shall be no less than 21 days, regardless of the provisions stated above. Delays due to force majeure, including industrial dispute, or to other circumstances beyond our control, as well as belated requests by the buyer for amendments or alterations, will cause an appropriate extension of delivery periods. Delivery dates are met if we have initiated shipment by the date that was specified.
Should we obtain any knowledge of the buyer's economic circumstances that warrants the assumption of irregularities in payment, we are relieved of the obligation to deliver the merchandise until such time as the buyer has made a full payment or provided adequate security. Any shipment shall be for the buyer's account and risk. We reserve the right to make partial deliveries and deliveries of unassembled merchandise, which shall be considered deliveries by themselves. The risk of loss, destruction, or degradation of the merchandise as well as the risk of delayed delivery is passed on to the buyer at the time the merchandise is handed over to the agency in charge of processing the delivery. If delivery is delayed for reasons at the buyer's responsibility, the risks are passed on to him at the time the merchandise is ready to be shipped. The buyer is obliged to provide adequate conditions for delivery, assembly, etc. Should the buyer detect damages to the packaging material, he has to obtain written confirmation of such damage from the shipping agent. The buyer has to notify us in writing within 5 (five) days of any transport damage that becomes evident only after unpacking the merchandise. The burden of proof lies with the buyer.
6. Warranty
In case of a defect, we will replace or rework the merchandise at our choice. Should the reworking or the replacement fail, the buyer may demand, at his choice, a discount on the payment or a cancellation of the contract. Any compensation for damages is explicitly excluded. We are relieved of our obligation to rectify any defects if the buyer has the defects rectified by a third party before a culpable delay has occurred on our part. In the case of a consumer contract, all warranty claims are void unless the buyer notifies us of any apparent defects within 14 days of receiving the merchandise. The burden of proof lies with the buyer. If the buyer is a commercial contractor, he is obliged to examine the merchandise, including installation and assembly instructions, immediately upon delivery for incompleteness or defects, and to notify us without delay of any defects detected. Failure to do so will result in the automatic assumption on our part that the merchandise was approved and accepted as delivered, unless defects claimed at a later point were undetectable during first examination. In the same manner, the buyer has to notify us of any such defects immediately upon detection, as otherwise the merchandise will also be considered approved and accepted with regard to these defects. Any such notification has to be in writing and contain a detailed description of the defect.
The term of this warranty is one year from the date of delivery. This limitation also applies to claims with regard to any subsequent damages incurred as a result of any defects, unless the claims refer to tort or unlawful acts. In these cases, the statutory periods of limitation apply, as they do for purchases of consumer goods and for contracts concerning the delivery of movables to be produced or manufactured. The aforementioned limitations of obligations under this warranty do not apply to the absence of a warranted quality. Our own warranty obligations are not extended by any warranties granted to the buyer by a producer or supplier or other third party. Our claims resulting from such warranties are ceded to the buyer.
7. Liability
Subject to the provisions stated below, we shall not be liable – regardless of legal grounds – for negligent breach of duty on our part or on the part of our legal representatives or agents. In the case of negligent breach of cardinal duties, our liability shall be limited to the amount of typically predictable damage. We shall only be liable to consumers in the amount of typically predictable damage, and we shall not be liable to commercial contractors for delay or impracticability caused by negligence on our part. The amount for typically predictable damage shall not exceed twice the amount agreed upon in the contract from which the event resulted which established the liability claim. The aforementioned exclusions of liability are not applicable in cases of liability in which no culpability is assigned, in particular in accordance with applicable product liability legislation, liability for initial incapability, and for injury to life or limb, as well as liability due to the absence of a warranted quality.
8. Retention of Ownership
We shall retain ownership of goods delivered until the time when the purchase price is paid in full, including value-added tax, shipping and assembly and other collateral costs as well as any penal interest and other costs caused by delayed payment, such as legal fees. The buyer shall not be entitled to any compensation for safekeeping our (shared) property.
The buyer is entitled to dispose of this conditional commodity in the course of orderly business transactions and to resell it, unless he is in arrears with his payments. Claims resulting from a resale of the conditional commodity or from other legal grounds (insurance, tort), including all balance claims from accounts current, are transferred from the buyer to us at the present time without any restrictions or reservations. The buyer is revocably entitled to collect these debts on our behalf. In case of breach of contract, in particular in case of delayed payment, the buyer is obliged to provide detailed information on the whereabouts of the conditional commodity. In this case, we are entitled to repossess the conditional commodity or demand a cession to us of the buyer's claims against third parties to surrender the merchandise. Upon our request, the buyer is then obliged to return the conditional commodity to us at his own risk and cost in its original packaging. Seizure or acceptance of returned merchandise does not constitute a repudiation of the contract.
If any merchandise supplied by us is attached to or combined with a movable item, we shall become joint owners of the new combined item; the conditions for retention of ownership will apply to this item as well. If any merchandise supplied by us is attached to any real-estate property not owned by the buyer, resulting in the buyer's loss of ownership with regard to the merchandise supplied, the buyer's resulting claims to a compensation up to the amount of the buyer's debt with us, or to a removal and regaining of ownership, are ceded to us. If the real-estate property is owned by the buyer, we shall be entitled to remove the merchandise or have it removed at his expense from the property.
The buyer is not entitled to pawn any merchandise supplied by us or use it as security in any financial transaction. In case of seizure or other appropriation by a third party, the buyer is obliged to inform us of such acts by sending us all relevant documentation available to him.
9. Closing Provisions
These Terms and Conditions are subject to substantive law of the Federal Republic of Germany. The United Nations treaties on international commodity trade are not applicable.
Place of fulfillment is Frankfurt on the Main, Germany. For buyers who are traders or legal entities of public law or in special public capacity, Frankfurt on the Main shall also be the exclusive place of jurisdiction for the settlement of disputes. This provision also applies if the buyer has no place of jurisdiction within Germany; if claims are being made in hortatory proceedings; if the buyer who is the subject of the legal proceedings has moved his domicile or place of residence beyond the jurisdiction of the Code of Civil Procedure subsequent to the conclusion of the contract, or if his domicile or place of residence are unknown at the time the proceedings are instituted. Should any of the provisions of the contract between us and the buyer, including these General Terms and Conditions, be void in whole or in part, or should any instances not be covered, all other provisions shall remain in effect.
