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Conditions

General

1.1.All Deliverys and sales shall be made vis-à-vis companies within the meaning of § 14 BGB (Civil Code), hereinafter referred to as “Buyers”, exclusively based upon the following terms, even if in its order or confirmation the Buyer refers to other terms. Any deviating, conflicting or supplementing general terms and conditions of the customer shall only become an integral part of the contract if and to extent the we consist to their applicability in writing. This consent requirement shall also apply if we conclude a contract with the customer although aware of its general terms and conditions. This is without prejudice to the supremacy of individual agreements.

 

1.2.  In Case of current business relationships, these terms shall also apply to future deliveries and sales without any extra consignment of or reference to there terms. The terms shall be made available in their latest applicable version on our website (horus-tapeten.com)

 

Prices, Surcharges and Purchase Quantities

2.1.  Unless otherwise stated, prices are in EURO per roll of wallpaper ex works including packaging plus VAT as applicable at the time of delivery. The Buyer´s orders placed irrespective of our offers we shall be able to accept in writing or by delivery within 7 days upon receipt.

2.2.  Sample material is only supplied in DIN4. The total is 45 € per piece. Whole sample rolls are charged at normal prices.

2.3.  Any sample card requested at a price of 45 euros will be offset against your order

Order Acceptance and Delivery Time

3.1.  All offered prices, including prices on samples or sample books, shall be subject to chance unless and until confirmed by us in writing. Any collateral agreement or special agreement has to be in writing.

3.2.  The Buyer shall bear the burden of proof for the correct transmission of orders.

3.3.  Delivery dates shall be subject to change unless we have expressly agreed their blinding character. We may make partial deliveries in accordace with our manufacturig facilities.

3.4.  Orders for goods of discontinued collections we shall accept with the caveat that goods of that collection are still in stock. In case of doubt, the collection´s date of discontinuation given in the price list shall apply.

3.5.  If pursuant to legal regulations we are in default of delivery, the Buyer shall have to send a reminder. In such a case, the Buyer may demand liquidated damages, namely 0,5% of the net price (delivery value) for each complete calender week of default but no more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the Buyer has sustained no damage or only a much smallers damage than the afore-mentioned liquidated damage.

3.6.  If the Buyer is in default of acceptance, does not cooperate or if our delivery is delayed for any other fault on the customer´s part, we shall be entitled to claim damages including additional expenses (e.g. storage costs). We charge EUR 50 flat per calender day, starting with the delivery period or, if there is no delivery period, with the ready-for-dispatch notifications. This is without prejudice to proving a larger damage and to our legal rights (additional expenses, appropriate compensation, termination in particular). The flat rate shall have to be set off against other monetary claims. The Buyer shall be entitled to prove that we sustained no or only a much smaller damage than the afore-mentioned flat rate.

Delivery

4.1.  Delivery shall be ex works for the account and the risk of the Buyer. The same shall apply to returns unless there is a legitimate complaint. The shipment shall only be insured at the Buyer´s express order and at its expense.

4.2.  For Orders of last €410 per order for a complete delivery to one domestic address, we shall bear the pertinent freight charge for domestic orders. The shipment´s value shall be based upon the number of rolls x net invoice price. We shall the mode of transport and route at our equitable discretion.

4.3.  For parcel service, postal and express deliveries, the expenses shall be invoid unless such deliveries can be made freight forward.

Payment

5.1.  Our invoices shall be payable within 10 days at a cash discount of 4% or net 30 days upon the date of the invoice. Advertising material, sample material, including sample cards are payable net cash.

5.2.  Payments with the effect of discharging the debt shall be made into one of our company accounts exclusively. Our representatives are not authorized to collect debts. Any payment by check or bill of exchange shall require our express consent. Bill of exchange charges and discounts shall be borne by the payer.

5.3.  A cash discount shall only be allowed in case of a cash payment and on the net amoint after discounts. The cash discount shall be given in the invoice. Cash payment means a timely receipt of payment, not a submission of bank drafts. Discounting an invoice shall only be allowed if at the time of the payment only such invoices are outstanding that allow such cash discount.

5.4.  The Buyer shall pay an interest on arrears of 8 % above the base rate. We reserve the right to claim further damages. The Buyer´s payments shall first be set off against costs and interest, otherwise in accordance with § 366 Para 2 BGB

5.5.  We reserve the right to assign receivables not havin been paid within 60 days upon maturity to our collection established.

5.6.  The Buyer must not do any netting or assert any right of retention unless its claims have been legally established.

5.7.  If we become aware of a major deterioration in the Buyer´s financial situation or if the Buyer is in default of payment, we shall be entitled on demand an immediate payment off all outstanding invoices arising from the business relationship, including all invoices not yet due.

Retention of Title

6.1.  All goods delivered by us shall remain our property unless and until all our present and future receivables against the Buyer have been paid. In case of payments by check or bank drafts, the Buyer shall acknowledge our retention of title until the check or bank draft has been cashed.

6.2.  The Buyer shall be entitled to dispose of the goods in the course or ordinary business, sell them in particular. The ensuing receivables are hereby assigned to us as security to the amount of the payable purchase price. The Buyer shall be entitled to collect the receivables assigned to us unless and until we revoke such authorization shall expire without express revocation if and when the Buyer stops paying us, but no later than 14 days after an invoice has become due. The Buyer shall not be entitles to any other disposal of the goods subject to retention of title of or the receivables assigned to us. In particular, the Buyer must not export these goods from Germany without our consent unless and until it has acquired absolute title to them. In the event of attachments or other interventions by third parties, the Buyer shall have no notify these third parties of our liens, label the goods owned by us accordingly and notify us without any delay.

6.3.  We are bound by contractual obligations and commitments to our distribution partners in countries outside of the European Union (third countries). Therefore, the Buyer must not take any measures to sell the goods in third countries without our consent.

6.4.  If the Buyer is in default of payment or in breach of an obligation arising from the agreed retention of title, the entire residual debt shall become due immediately. In such case, we shall be entitled to demand submission of the goods subject to retention of titles and to collect them. In such a case, the Buyer shall have no right of ownership. We shall also be entitled to notify the Buyer´s customers of the assignment of its receivables to us an to collect them. We shall further be entitled to demand submission of the pertinent documents.

6.5.  We hereby undertake to release the securities we are entitled to under the foregoing at our discretion to the extent that the value of the goods subject to retention of title/assigned receivables exceed the unequivocally secured claims by 20 %. 

6.6.  Asserting retention of title shall not be considered withdrawal from contract. In the event of goods being taken back, the Seller shall be entitled to reduce the price to compensate for its costs.

6.7.  The Buyer hereby undertakes to insure the goods against theft, fire and water damage unless payment is effected within 30 days. Evidence of such insurance has to be furnished at our request.

Discounts

7.1. If within the framework of special agreements, the Buyer has been allowed discounts including boni, any assignment of the right to discounts/boni shall be included.

7.2.  Any boni may be granted on sales prices minus any rebated only.

7.3.  We shall be entitled to reclaim any discount we allowed as advance payment for the sale of current of future collections, e.g. sample roll discounts and amortizations, lower sample roll prices, if and when the Buyer is in default of payment.

Unilateral right of withdrawal

8.1.  In the case of contracts for the delivery of custom-made products, we have a unilateral right of withdrawal in cases in which the fulfillment of the contractual obligations is either not possible for production-related reasons or in which there is a violation of morality. Such cases can be for example (but not limited to):

- Images that violate criminal law provisions (racist, discriminatory or pornographic depictions),

- Images that violate personal rights and / or copyrights,

- other images that contradict basic ethical and moral values, and

- a qualitatively inadequate or faulty original motif.

8.2. In the event of a withdrawal from the contract, we will inform the buyer in writing (e.g. letter, fax, e-mail) without giving reasons. In addition, we will either refund the purchase price already paid to the buyer or offset it against other claims.

Copyrights / Third Parties

9.1. If the buyer provides us with texts and / or images for the manufacture of products, he must ensure that the rights of third parties, in particular copyrights, are not infringed. Only texts and images may be used for which the buyer has the necessary rights of use, distribution and reproduction.

9.2. The buyer releases us from all claims by third parties due to infringement of copyrights or other industrial property rights.

9.3. The buyer notifies us immediately if third parties claim infringement of property rights. In the event of legal disputes, the buyer bears the entire costs

Complaints

10.1.  All our data, quality descriptions, specifications or other information on usability or condition shall be non-binding unless and until confirmed by us in writing. Our public statements, promotions and advertising shall not be considered binding information on the condition or intended use.

10.2.  Prior to any use/processing, the Buyer shall have to make sure that the delivered good´s quantity, condition and other properties are correct in terms of § 377, 378 HGB (Commercial Code) and suitable for their intended use. If there is a defect or a wrong quantity, the Buyer shall notify us immediately but no later than within 14 days upon receipt of the shipment. After that period, the delivered goods shall be considered approved. We shall have to be notified of latent defects immediately and in writing. To substantiate the complaint, one of the affected rolls of wallpaper including the rolling-in-slip (Einrollzettel) shall have to be sent to us. If the article has already been processed, at last sections of the article on or on which the defect can be ascertained shall have to be sent to us, including the rolling-in slip.

10.3.  The minor quality, color, shade, purity and rigidity deviations customary in the productions or rolls of wallpaper shall not constitute a defect. Dimensional and weight deviations among the individual rolls of wallpaper of +/- 3% shall have to be accepted as customary. Any processing of the rolls of wallpaper shall have to be done inconsideration of our specifications and of customary rules. If one part of delivery shows defects, the complaint must not refer to the entire delivery.

10.4.  The warranty period shall be 1 year upon delivery. We shall not give the Buyer any guarantee in the legal sense. If a processing instruction is defective, we shall only be obligated to deliver a zero-defect instruction and this only if the defect in the processing instruction forms an obstacle to a proper processing of the rolls of wallpaper.

10.5.  The Buyer shall be entitled to supplementary performance. If that fails, the Buyer generally can demand a reduction in the price or withdrawal from contract. In case of only a minor breach of contract, of only minor defects in particular, however, the Buyer shall have no such right of withdrawal.

10.6.  If after a failed supplementary performance, the Buyer withdraws from the contract, it shall not be entitled to a claim for damages for the defect. If the Buyer asserts claims for damages after a failed supplementary performance, the goods shall remain with the Buyer if this is reasonable for it. The damages shall be limited to the balance of the purchase price and the defective goods value.

10.7. Insofar as the buyer has received defective goods from us, which he has built into another thing or attached to another thing according to their type and purpose and he can demand subsequent performance from us in accordance with these general terms and conditions, we are not within the scope of the subsequent performance obliged to reimburse the buyer for the expenses incurred in removing the defective goods and installing or attaching the repaired or delivered goods free of defects.

10.8.  Material-related or craftsmanship effects are wanted. Irregularities in the color and structure of the surface emphasize the character of these unique wallpapers.

Naturally, however, color changes can occur over time due to oxidation. It is also possible that the wallpaper's web character comes to light. Neither is a reason for complaint.

Liability Exclusion and Limitation

11.1.  The Buyer´s claims for damages for a defect shall become time-barred 1 year after the delivery of the goods. This shall not apply in case of gross negligence on our part.

11.2.  In case of slightly negligent breaches of duty, our liability shall be limited to the average damage typical of the contract and as foreseeable for that type of goods. This shall also apply to slightly negligent breaches of duty on the part of the legal representatives, employees and other vicarious agents and sub-contractors. The foregoing privileged position as to liability shall not apply in case of a culpable breach of an integral contractual obligation and to warrants within the meaning §§ 444, 639 BGB.

11.3.  Liability is excluded for defects arising from external factors and factors outside our responsibility (e.g. improper processing, storage). The same sall apply to defects arising from ordinary wear and tear.

11.4.  We shall not be liable for slightly negligent breaches of minor contractual obligations vis-à-vis companies. Claims for damages pursuant to §§ 280 Para 2, 286 BGB shall in absolute terms be limited to 5% of the purchase price.

11.5.  The foregoing liability imitations shall not apply to the Buyer´s product liability claims. Neither shall they apply to non-assignable injuries to limb and health or the customer´s and its vicarious agents´ loss of life.

 

Written Form

12.1.  Any declaration and notice relevant in law and to be submitted by the Buyer (e.g. deadlines, notices of defects, withdrawal or price reductions) shall have to be in writing.

 

Breakdown

13.1.  We shall be exempted from our obligation for a timely delivery through all circumstances outside our responsibility leading to a major breakdown at our plant(s). Should said breakdown last for more 2 months, either party can withdraw from the contract.

 

Privacy

14.1. Personal data that are not the subject of processing on behalf of Art. 28 DS-GVO are processed by us as the person responsible within the framework of the applicable legal regulations.

14.2. In our area of responsibility, we take all measures required by the applicable legal regulations with regard to this data. The aim of this measure is to achieve the following protection goals: availability, confidentiality, integrity, transparency, non-linkability (as a technical safeguarding of the purpose limitation) and intervenability (as the technical design of procedures for exercising the rights of data subjects).

 

Place of Fulfillment and Place of Jurisdiction

15.1. The place of performance for delivery and payment and the place of jurisdiction for both parties is our place of business. The law of the Federal Republic of Germany applies to the contractual relationships between the provider and the customer,

The § 12 ZPO regulates the general place of jurisdiction.

15.2. If our rights have been assigned to our collection agent, his seat is the place of jurisdiction. We or our collection agent may also sue at the buyer's registered office.

 

Miscellaneous

16.1.  Only the laws of the Federal Republic of Germany shall apply. CISG shall not apply.

16.2.  If one of the above provisions is or becomes ineffective, this shall be without prejudice to the validity of the remainder of the provisions. We shall be entitled to replace the ineffective provision by an admissible provision that most approximates the ineffective one´s purpose.

 

 

Horus Kunstmalerei Gmbh, domiciled at Hamburg (HR B 79266 Amtsgericht Hamburg) General partner: Ingrid Sörensen, Prokurist Botho Woost

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