General Terms and Conditions of Business of the Holger Kaus company

§ 1 – Scope

(1) These General Terms and Conditions of Business apply to all offers, services and sales transactions by Holger Kaus, in particular also to future offers, services and sales transactions between the same parties without the need for another agreement to this effect.

(2) Competing and/or different Terms and Conditions of Business or Conditions of Purchase of the customer only apply if Holger Kaus explicitly acknowledges them in writing and has waived the validity of its own General Terms and Conditions of Business. Conflicting acknowledgements by the customer referring to their Terms and Conditions of Business / Conditions of Purchase are therefore already contradicted herewith.

(3) The content of any individual agreements made between the parties is unaffected by these Terms and Conditions of Business.

§ 2 – Offer and Conclusion of Contract

(1) The offers of Holger Kaus are subject to change and non-binding. Letters of acceptance and all orders require written confirmation from Holger Kaus to be legally valid (a fax is sufficient). The customer is bound to his orders for a minimum of four weeks. Holger Kaus is entitled to accept the order within this period of time by sending a confirmation of order or by delivering the ordered goods to the customer, by providing the commissioned advice or producing the ordered work within this period of time.

(2) Drawings, illustrations, dimensions, weights and any other specifications are only binding if the parties explicitly agree to them in writing.

(3) The extent of the services and deliveries to be performed by Holger Kaus is determined by the contents of the confirmation of order by Holger Kaus.
(4) Sales or office staff at Holger Kaus are not authorised to make any verbal ancillary agreements or to provide any verbal assurance which go beyond the contents of the written contract.

§ 3 – Delivery

(1) The goods are delivered (“free”) from the sales outlet of Holger Kaus in Gugghof/Miesbach or, if the goods are not being produced directly by Holger Kaus, from the factory of the manufacturer. Any shipping and transport costs are borne by the customer.

(2) Holger Kaus is entitled to make partial deliveries of an order provided it is reasonable to expect this of the customer. Each partial delivery is considered an independent legal transaction.

(3) The goods are sent uninsured unless the customer expressly requests taking out transportation insurance. If the customer requests taking out transportation insurance, the customer is responsible for the resulting costs.

(4) If acceptance does not take place due to reasons caused by the customer, Holger Kaus is entitled, in addition to the claim to performance, to withdraw from the contract or to claim damages for non-performance.

§ 4 – Times for Performance and Dates for Performance

(1) Times and dates for performance, which can be agreed in a binding or non-binding capacity, must be made in writing to be valid.

(2) The start of the time / date for performance specified by Holger Kaus requires the clarification of all technical matters and specifications necessary for performing the order. The time / date for performance only commences once the advance payments agreed between the parties have been received by Holger Kaus.

(3) If Holger Kaus exceeds the agreed time or date for performance, the customer is initially obliged to set Holger Kaus an appropriate extension, in writing, of at least four weeks. This only does not apply if the parties have expressly agreed a binding delivery date in writing. If Holger Kaus is not able to keep this deadline, it is entitled to withdraw from the contract provided it immediately notifies the customer that performance is not possible and provided it immediately reimburses the customer any payment already made. It is only once this deadline has passed that the customer is entitled to withdraw from the contract. The customer is only entitled to assert claims for damages due to delay or non-performance in this case if Holger Kaus has acted with intention or in a grossly negligent manner as well as if the customer asserts claims for damage due to injury to life, bodily harm or health. If an essential contractual obligation (“cardinal obligation”) is negligently violated, the liability of Holger Kaus is limited to the foreseeable damage.

(4) Delays to deliveries and services due to force majeure and due to events which make it considerably more difficult for Holger Kaus to perform the delivery / services or which make it impossible to do so – including in particular interruptions to operations, strikes, lock-outs, staff shortages, official orders, etc., irrespective of whether they occur at Holger Kaus’ or its subcontractor – are not caused by Holger Kaus, even in the event of bindingly agreed times and dates. They entitle Holger Kaus to postpone the delivery/service by the length of the hindrance plus an appropriate preparation time or, due to the not yet performed part, to withdraw from the contract either partially or in full.

(5) If the hindrance lasts longer than three months, the customer is entitled, after the appropriate granting of an additional respite, to withdraw from the contract with regard to the not yet performed part of the contract. If the delivery time is extended or if Holger Kaus is released from its obligation, this does not entitle the customer to derive any claims for damages. Holger Kaus can only invoke the aforementioned conditions if it immediately informs the customer.

(6) Holger Kaus is entitled to deliver the goods before an agreed date with the effect of discharging the debt.

(7) If the customer is in default of acceptance or violates any other duties to cooperate, Holger Kaus is entitled to demand damages caused to it, including any additional costs and lost profit.

§ 5 – Passage of Risk

(1) The risk of accidental loss is passed to the customer as soon as the shipment is handed over to the haulage contractor or, for shipment purposes, the sales outlet of Holger Kaus or, if the goods are not produced by the Holger Kaus company itself, leaves the production site of the manufacturer. If the shipment is delayed at the request of the customer, the passage of risk is transferred to the customer upon notification that the consignment is ready to be shipped.

(2) In the case of default of acceptance by the customer, the risk of accidental loss or the accidental worsening of the consignment/the work is transferred to the customer as soon as the customer is in default of acceptance.

§ 6 – Prices

(1) Unless otherwise specified, Holger Kaus is bound to the prices in its offers for 14 days following issue of the offer.

(2) All deliveries and services by Holger Kaus are made at the net prices quoted in the confirmation of order plus VAT applicable at the time of the delivery. If no written confirmation of order has been issued, the list prices of Holger Kaus valid on the day of the shipment or the complete performance of the service apply plus VAT unless the customer placed the order based on an earlier offer by Holger Kaus. Unless otherwise regulated, the prices of Holger Kaus exclude packaging, transport, assembly and insurance costs, which are charged for separately. The prices are net prices and are subject to VAT in euro (€) unless a different written agreement is expressly made between the parties. Additional deliveries and services are charged for separately.

(3) Holger Kaus is entitled to request advance payments and partial payments from the customer in accordance with the confirmation of order.

§ 7 – Payment / Payment Terms

(1) Invoices issued by Holger Kaus are payable net by the customer within 14 days of the invoice date. Other agreements only apply if they have been made in writing by the parties. Payments received are first of all credited against the customer’s oldest accounts payable, even if the customer has different terms. If costs and interest have already been incurred, Holger Kaus is entitled to first of all credit the payment against the costs, then against the interest and finally against the main debt (§ 367 BGB – German Civil Code) A payment is only considered received once Holger Kaus can access the payment. Bills of exchange and checks are only accepted on account of performance and free of costs and charges for Holger Kaus. However, Holger Kaus expressly reserves the right to refuse to accept them.

(2) (2) If the customer is in default, Holger Kaus is entitled to charge interest on arrears amounting to 8 percentage points above the applicable basic interest rate (§§ 247, 288 II BGB – German Civil Code) as a flat-rate compensation for damages: only for the case that the customer is a consumer, this flat-rate claim for damages amounts to 5 percentage points above the applicable basic interest rate (§§ 247, 288 II BGB). Holger Kaus is entitled to furnish evidence of a higher interest rate at any time and to charge this rate. This does not require a warning. The customer is entitled to furnish Holger Kaus with evidence of lower damage. Holger Kaus reserves the right to assert further damages caused by default at any time. Holger Kaus is entitled to withhold any further deliveries and services to the customer until it has received all invoice amounts or, at its discretion, to withdraw from all or individual delivery contracts with the customer.

(3) The customer is entitled to a set-off right or right of retention only with regard to such counterclaims as are acknowledged in writing by Holger Kaus or which are legally valid. The customer is also entitled to a right of retention due to counterclaims from the same contractual relationship.

§ 8 – Reservation of Ownership

(1) All goods delivered remain the property of Holger Kaus until such time as full payment of all current and future debts arising from the business relationship with Holger Kaus, including accessory claims and any claims for damages, has been received. Within the scope of normal conduct of business, the customer is entitled to resell the goods on condition that it agrees reservation of ownership which corresponds to the aforementioned regulations. The right to resell automatically expires if the customer defaults vis à vis Holger Kaus.

(2) The power of disposition of the purchaser automatically expires if the customer stops making payments to Holger Kaus or if out-of-court insolvency proceedings are introduced or judicial insolvency proceedings are filed.

(3) In the case of resale, the customer already, as a precaution, transfers to Holger Kaus all debts and other claims vis à vis its customers arising from the resale, including all accessory claims, until such time as it has settled all demands for payment by Holger Kaus. Holger Kaus accepts the transfer. On demand by Holger Kaus, the customer is obliged to immediately provide Holger Kaus with all information and documentation necessary for asserting the rights of Holger Kaus vis à vis the customer.

(4) Holger Kaus will not collect the signed-over debts or inform the customers of its customer of the transfer provided its customer fulfils its obligations to pay. However, on demand by Holger Kaus, the customer is obliged to immediately provide Holger Kaus with the details of the third-party debtor and to inform the third party debtor about the transfer to Holger Kaus.

(5) On demand by the customer, Holger Kaus is obliged to release the charging liens it is entitled to according to the conditions above to the extent that their value, taking into consideration added value by the customer, exceeds the debts to be safeguarded by at least 30%. Holger Kaus authorises, revocable at any time, the customer to collect the debts signed over to it for its invoice on its own behalf. The direct debt authorisation can only be revoked if the customer does not correctly comply with its obligations to pay or if its financial situation has significantly deteriorated.

(6) Without the agreement of Holger Kaus, any pawning or collateral assignment of the goods to third parties is excluded.

(7) The customer is to immediately inform Holger Kaus about any attachments or seizures, providing precise details of the pledgee - in addition to their address - and the pledgee is to be immediately informed by the customer about the property of Holger Kaus.

(8) (8) If, with regard to the customer, an application is made to commence insolvency proceedings or if the commencement of such is rejected for lack of assets, the customer is obliged to return to Holger Kaus the undamaged goods subject to the retention of title. For goods subject to the right of retention taken back, Holger Kaus will credit the customer the proceeds from the invoice which it achieves for the best possible utilisation (§ 254 BGB).

(9) In the event of conduct in breach of the contract on the part of the customer, in particular the delay of payment, Holger Kaus is entitled, yet not obliged, to take back the goods subject to the right of retention either partially or fully or to demand the claims for restitution of the customer vis à vis third parties. The parties agree that the return or the pledging of the goods subject to the right of retention by Holger Kaus or the revocation of collection rights is not considered withdrawal from the contract. This only applies if no contrary legal regulations in the German Civil Code apply.

(10) The processing of the goods subject to the right of retention does not give the customer ownership of the new goods, irrespective of whether the processing has been performed by the customer or Holger Kaus. Processing by the customer is performed for Holger Kaus. In the case of processing using goods also subject to the reservation of ownership, Holger Kaus automatically acquires co-ownership to the new goods proportionately to the value of the invoice.

§ 9 – Assembly

(1) Unless expressly confirmed in writing by Holger Kaus, assembly is not included in the price.

(2) Assembly is carried out in accordance with drawings by the tradesmen commissioned by Holger Kaus which are inspected and released by Holger Kaus. Additional services arising from structural deviations are charged for separately. If assembly other than the assembly portrayed in these drawings is required, Holger Kaus is to be informed beforehand. The customer has no right whatsoever to issue instructions to the employees and subcontractors of Holger Kaus. Holger Kaus may use the power consumed on site free of charge. It must be possible to perform the assembly works without any interruption or hindrance. The assembly site must be in a condition suitable for the assembly to be performed: in particular, it must be clear, clean and dry. Holger Kaus assumes no liability for damage caused by dampness to the construction site.

(3) If assembly instructions accompany the goods, this is a service yet not part of the claim to performance. If the defect is in defective assembly instructions, Holger Kaus is only obliged to deliver assembly instructions free of defects. This only applies if the defective assembly instructions present an obstacle to the assembly.

§ 10 – Guarantee

(1) If the customer is an entrepreneur, Holger Kaus provides a guarantee of one year in accordance with the legal regulations that the work produced by them is free of material deficiencies (§§ 434, 633 para. 2 BGB) If the goods are not used according to the terms of the contract, the guarantee is invalidated. If the customer is a consumer, the legal dates for liability for defects apply.

(2) Complaints about the goods/the work are to be sent in writing to Holger Kaus immediately, or by one week of receipt of the work at the latest. Receipt of the complaint by Holger Kaus is binding for the punctuality of the notification. If the customer has already started to process or change in any way the delivered goods/the produced work, complaints can only be made under the preconditions of § 4 para. 3 of these conditions.

(3) Deviations to quality, colour, dimensions, weight, fittings and design which are customary in the trade or which are minor and technically unavoidable, do not constitute the right to complain.

(4) In the case of justified complaints, Holger Kaus has, at its discretion, the right to repair or subsequently deliver defect-free substitute articles within four weeks of receipt of the rejected goods or notification of the rejected work (subsequent performance).

(5) If Holger Kaus is not willing or able to carry out subsequent performance, in particular if this is delayed beyond appropriate dates for reasons caused by Holger Kaus, or if the subsequent performance fails in any other manner, the customer can, at its discretion, withdraw from the contract or demand an appropriate reduction to the service in return.

(6) Provided that nothing to the contrary arises hereafter, further-reaching claims by the customer – irrespective of the legal bases – are excluded. In this case, Holger Kaus is only liable for the damage for which they are responsible as far as they or their vicarious agents are charged with intent or gross negligence: however, this liability to pay damages is restricted to the foreseeable damage. Over and above this, Holger Kaus is only liable for damages which the customer claims due to injury to life, bodily harm or health. The aforementioned disclaimer does not apply if Holger Kaus has issued a written guarantee for the goods (§ 444 BGB). In the case of the culpable violation of essential contractual obligations which are not due to intent or gross negligence, however, Holger Kaus is liable only for the damage typical for the contract and which is reasonably foreseeable.

(7) Liability for customary wear and tear is excluded.

(8) Guarantee claims vis à vis Holger Kaus are the preserve of the customer and its legal successor. They are not transferable.

§ 11 – First Consultation, Samples, Drawings, Special Models

(1) The first consultation with the customer and the creation of interior design and furnishing plans drawn up at the request of the customer are charged for at a rate of €100 per hour plus VAT and expenses (travelling expenses at €0.50 per kilometre) unless otherwise agreed in writing (for example a daily rate or a lump sum fee). If, instead of this, a daily rate has been agreed, this covers a working day of 8 hours. The daily rate covers the time and costs for travelling within a 250km radius, calculated from the premises of Holger Kaus in Miesbach. At a distance in excess of 250km, additional travelling expenses, in particular mileage allowance of €0.50 per kilometre, are charged. Expenses resulting from the services of third parties, such as copying costs and costs for courier services, are regularly charged for separately and are not covered by daily rates and lump sum fees unless a contradictory agreement has been made. If, following the initial consultation, the customer commissions Holger Kaus with the consultation, planning or delivery of goods, the customer is credited with the costs arising from the initial consultation and the costs are offset against the costs of the order.

(2) Holger Kaus retains the property rights and copyrights to illustrations, drawings, sketches, interior design and furnishing plans, other documents and samples. They are to be returned upon request, and may not be forwarded to third parties or copied without the consent of Holger Kaus.

(3) Special models are those items which are not mass-produced, not listed in price lists or which are compiled at the request of a customer – if applicable, according to a drawing. This also applies to colour schemes. Stain colours are subject to a surcharge.

(4) The customer assumes liability for not violating third-party rights by means of his orders.

(5) Special models cannot be returned.

§ 12 – Court of Jurisdiction and Place of Fulfilment

(1) Place of performance for deliveries and services performed by Holger Kaus is always Miesbach.

(2) The exclusive court of jurisdiction for disputes arising from the contractual relationships is Miesbach. This only applies as far as the agreement of a court of jurisdiction is legally permissible.

§ 13 – Final Provisions

(1) The law applicable in the Federal Republic of Germany applies to these Terms and Conditions of Business and the entire legal relations between the customer and Holger Kaus. Application of the CISG (UN Convention on Contracts for the International sale of Goods) is excluded.

(2) Subsidiary agreements, changes and/or amendments to these Terms and Conditions of Business require the written form. The same applies to the change of the statutory written form itself.

(3) Should any one of the aforementioned conditions to these Terms and Conditions of Business be invalid or become invalid, either fully or partially, this does not affect the validity of the other conditions. The pertinent invalid condition is to be replaced by a permissible regulation which corresponds to its economic purpose. The same applies in the presence of a loophole.