General Terms and Conditions of Oneshot Design Service GmbH
1. Scope of application
These General Terms and Conditions (“GTC”) apply to all deliveries and services of Oneshot Design Service GmbH, Hauptstraße 80, 82327 Tutzing (hereinafter also “Seller”). In addition to the delivery of goods, the Seller’s range of services also includes, depending on the agreement, separately remunerated planning services, the development of furnishing concepts and/or project management.
Any terms and conditions of the buyer (“Buyer”) that deviate from or differ from these GTC shall not be recognized unless the Seller has expressly agreed to their validity. The GTC shall also apply if the Seller carries out the delivery to the Buyer without reservation being aware of the Buyer’s terms and conditions which conflict with or deviate from these GTC.
These GTC shall apply both to consumers within the meaning of § 13 BGB (German Civil Code) and to entrepreneurs within the meaning of § 14 BGB, legal entities under public law and special funds under public law. A consumer is a person who enters into a contract for purposes that can predominantly be attributed neither to his commercial nor to his independent business activity. An entrepreneur is a person who, when concluding a legal transaction, acts in the exercise of his commercial or self-employed business activity.
2. Conclusion of contract and binding agreement
Unless otherwise stated, the Seller shall be bound by its offer for 30 days. If the Buyer does not accept the offer within this period, the offer shall expire. Upon acceptance of the offer, the contract shall become binding.
All agreements made between the Seller and the Buyer at the time of conclusion of the contract are set out in full in writing in the contractual declarations including these General Terms and Conditions.
3. Reservation of the right to make changes; release of materials
The Seller reserves the right to make minor, customary deviations in the coating, color tone or grain of surfaces, leather, textiles or wallpaper compared to samples, insofar as these are reasonable for the Buyer.
Textiles and wallpapers shall be inspected by the Buyer prior to cutting or processing.
4. Prices and payment
The prices include the statutory value added tax.
Prices are inclusive of packaging.
Invoices of the Seller shall be due for payment within 30 days of receipt of the invoice.
The Buyer shall only be entitled to set-off if the counterclaim is undisputed or has been finally determined by a court of law. This restriction shall not apply to counterclaims based on defects arising from the same contractual relationship as the Seller’s claims.
5. Delivery, transfer of risk and assembly
Compliance with agreed delivery periods shall be subject to the Buyer’s proper and timely fulfillment of any obligations to cooperate.
Unless otherwise stated, delivery shall be made free place of use (“Frei Verwendungsstelle”). The risk of accidental loss or accidental deterioration of the goods shall pass to the Buyer upon handover to the Buyer. The statutory transfer of risk in the event of default of acceptance shall remain unaffected. In the event of dispatch of the goods by the Seller at the Buyer’s request, if the Buyer is a consumer, the risk shall only pass to the Buyer upon handover to the forwarding agent, the carrier or any other person or institution designated to carry out the dispatch (hereinafter referred to as “carrier”) if the Buyer has commissioned the carrier with the performance and the Seller has not previously named the carrier to the Buyer.
If the goods are to be delivered to the Buyer free place of use and, if applicable, to be assembled, the Buyer shall keep all access ways free and shall ensure free and safe access to the place of assembly within its sphere of influence in order to enable unhindered delivery and, if applicable, assembly. The Buyer shall notify the Seller in good time in advance of any restrictions on access that are obvious to the Buyer.
Delivery shall be made subject to timely and correct self-delivery. If the Seller does not receive delivery in time by its supplier despite the prior conclusion of a corresponding purchase agreement, the Seller shall be entitled to postpone the delivery date vis-à-vis the Buyer accordingly. If the Seller is definitely not supplied by its supplier under the aforementioned circumstances, it shall be entitled to withdraw from the contract. The Seller shall inform the Buyer without delay of the unavailability of the goods and, in the event of withdrawal, shall reimburse the Buyer without delay for any payments already made. The right to invoke the right to self-delivery shall be subject to the condition that the Seller has carefully selected the supplier and that the failure to deliver is not the result of culpable conduct on the part of the Seller. The Seller shall assign to the Buyer its claims against its supplier. Claims against the Seller based on intent or gross negligence as well as claims based on culpable injury to body, life and health shall remain unaffected.
If the Seller is prevented from fulfilling its contractual obligations by events for which it is not responsible, such as in particular official orders, natural disasters, the effects of pandemics or epidemics or other events of force majeure, the Seller shall be released from the obligation to deliver for the duration of the hindrance and shall be entitled to postpone the delivery date accordingly. If the hindrance lasts longer than four months, each of the parties shall be entitled to withdraw from the contract. The Seller shall inform the Buyer without delay of the impediment and its expected duration and, in the event of withdrawal, shall reimburse the Buyer without delay for any consideration already rendered.
6. Default of acceptance
If the Buyer does not accept the goods at the agreed delivery time, the Seller shall be entitled to store the goods at the Buyer’s expense. Further claims of the seller for compensation of expenses or damages as well as the right to withdraw from the contract subject to the statutory requirements remain unaffected.
If the goods are defective, the Buyer shall be entitled to the statutory warranty rights subject to the following provisions, whereby claims for damages shall only exist to the extent stipulated in Clause 8. The warranty does not cover natural wear and tear and damage for which the Buyer is responsible, e.g. damage caused to the Buyer by moisture, intensive exposure to sunlight or artificial light, temperature or weather influences or improper handling. The buyer is requested to document any defects as accurately as possible by means of photographs in order to facilitate the seller’s inspection. The warranty rights shall remain unaffected – subject to the special provision applicable to entrepreneurs under Clause 7.2.
If the Buyer is an entrepreneur, the following additional provisions shall apply:
The assertion of warranty claims shall require that the Buyer inspects the goods immediately after delivery, insofar as this is feasible in the ordinary course of business, and immediately notifies the Seller of any identifiable defects. Obvious transport damage, wrong or short deliveries must be reported within three working days, other recognizable defects within 7 working days after delivery, hidden defects, which only become apparent later, must be reported immediately after detection. The notification of defects shall be made in text form and shall include appropriate photos.
The Seller shall have the right to choose between subsequent delivery and repair.
The warranty period shall be one year from delivery. Notwithstanding this, the statutory warranty period shall apply to claims for damages due to intent or gross negligence or due to culpable injury to life, limb or health. The limitation regulations of § 445b BGB remain unaffected.
The Seller shall be liable in accordance with the statutory provisions if the Buyer asserts claims for damages based on intent or gross negligence or a culpable breach of an essential contractual obligation. Material contractual obligations are those whose fulfillment is necessary to achieve the purpose of the contract and on whose fulfillment the Buyer regularly relies and may rely. Insofar as the Seller is neither guilty of intent nor of gross negligence, the liability for damages in the aforementioned cases shall be limited to the foreseeable, typically occurring damage.
Liability for culpable injury to life, limb or health shall remain unaffected; this shall also apply to liability in the event of the assumption of a guarantee, a fraudulently concealed defect as well as for mandatory liability under the Product Liability Act.
Unless otherwise provided above, liability for damages shall be excluded irrespective of the legal nature of the asserted claim.
The above provisions shall apply mutatis mutandis insofar as the Buyer demands reimbursement of futile expenses instead of a claim for damages in lieu of performance.
9. Retention of title
The Seller shall retain title to the delivered goods until the purchase price for these goods has been paid in full. In the event of breach of duty by the Buyer, in particular in the event of default in payment, the Seller shall be entitled under the statutory conditions to withdraw from the contract and to demand the return of the goods.
In the event of seizure or other interventions by third parties, the Buyer shall immediately notify the Seller in writing. Insofar as the third party is not in a position to reimburse the Seller for the judicial and extrajudicial costs incurred to avert the intervention, the Buyer shall be liable for the loss incurred by the Seller.
10. Consumer dispute resolution
The Seller is not obliged to participate in a dispute resolution procedure before a consumer arbitration board and therefore does not participate in such a procedure.
11. Choice of law; place of jurisdiction
If the Buyer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from and in connection with the contract shall be the registered office of the Seller. Subject to the aforementioned conditions, for the Buyer, this agreement on the place of jurisdiction shall apply exclusively. Alternatively, the Seller shall also be entitled to bring an action against the Buyer at the Buyer’s general place of jurisdiction.
The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods. If the Buyer is a consumer whose habitual residence is outside Germany, the mandatory provisions of the law of the country in which the consumer has his habitual residence shall remain unaffected by this choice of law clause.
State March 2021