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General terms of business

1. Scope

a) The following "General terms of business" shall apply exclusively to all goods and services supplied by us.

b) This shall apply even if the customer submits a contract offer or places an order on the basis of his own different or supplementary terms of business. Different or supplementary terms of business issued by the customer, which we have not expressly accepted, will not become part of the contract in any event, even if we do not expressly reject them.

c) Our general terms of business shall apply even if we supply the goods or provide the services to the customer in the knowledge that the customer has issued contradictory, supplementary terms that differ from our terms of business.

d) All agreements between ourselves and the customer, which are made for the purposes of executing a contract, are to be recorded in writing in this contract.

e) Our general terms of business shall also apply to all future transactions with the customer.

 

2. Contract conclusion contract content

a) Our quotations, including those that are submitted on our behalf, are non-binding and subject to change without notice. An order shall not be deemed to have been placed legally until we have confirmed it in writing or by fax. Confirmation may be given up to four weeks after the receipt of the contract offer from the customer by us. The customer is bound by his order for goods or services in accordance with § 145 of the German Civil Code.

b) lf the order is placed by electronic means, we will confirm our receipt of the order. This confirmation of receipt shall not constitute the binding acceptance of the order, however. The confirmation of receipt may be connected to the order confirmation.

c) The order is agreed with the customer subject to the correct goods being supplied promptly by our sub­contractors. This setf-supply reservation is dependent on an identical legal transaction being concluded with the sub-contractor and that we are not responsible for the failure to supply the goods. The customer will be notified immediately about the non-availability of the goods. lf a lead time has been agreed it will be extended accordingly. lf we are unable to supply the goods after a reasonable deadline has been fixed, the customer shall be entitled to withdraw from the contract. We will return any payments that have been made without delay.

 

3. Subject of the contract

a) The subject of the contract shall be the supply of the goods or services described in the order confirmation. Changes, supplements and side-agreements shall only be binding if they have been confirmed by us in writing.

b) Contract work that is not listed in the quotation or the order confirmation, in particular work for publicity purposes (for example advertising, Internet) shall only be incltcled in the subject of the contract if it has been confirmed by us in writing. We reserve the right to make modifications due to technical developments as long as they are reasonable.

c) Only the features of the subject of the contract as set out in the order confirmation shall be deemed to have been agreed. Public statements, sales talk or advertising by the manufacturer, on the other hand, shall not constitute contractual properties of the products.

d) Consultancy services and information of any type shall only be binding if they have been confirmed in writing.

e) All dimensions, weights, drawings, blocks and photographs are to be considered as approximate and non­binding. We expressly reserve the right to make construction changes in the interest of progress. Bespoke products will be manufactured at the risk of the customer. Wood and leather are natural products and as such are subject to slight differences in color and texture and therefore such discrepancies cannot be used as grounds for complaint.

 

4. Prices terms of payment

a) Unless specified to the contrary, the prices are quoted per unit in euros ex-works or from the delivery warehouse, excluding packing, shipment, assembly and other additional costs unless other terms and conditions have been agreed. We reserve the right to correct the prices up to the date of delivery if such corrections are verifiably the result of changes in material costs, wages, taxes and d'larges, etc. In such cases the customer has no right to withdraw from the contract, even if the prices have been fixed in the contract.

b) Payment shall be due within eight days of receipt of the invoice at the latest, strictly net. Bills of exchange or checks shall be accepted exclusively by agreement and as conditional payment; any costs for discounting and collection shall be borne by the customer. lf the customer is in default with payment, we shall be entitled to charge default interest of 8% above the relevant base interest rate. Claims for other default damages shall not be affected by this.

c) lf, after the order has been placed, there are justified doubts about the solvency of the customer, we shall be entitled to demand security payments or to withdraw from the contract.

d) The goods shall be transported at the cost and risk of the customer, even if delivery is included in the price. Any transit damage found must be reported immediately. In the event of the goods suffering damage whilst being transported by rail, an investigation report must be requested. The costs of transport insurance shall be borne by the customer, we shall be responsible for selecting the means of transport. lf the customer is responsible for delays in shipment, the risk shall be transferred to him at the point where we notify him that the goods are ready for shipment.

 

5. Retention riqht setting off assiqnment

a) The customer may only claim a right of retention from the same contract. In addition all rights of retention (regardless of the legal relationship) against us shall be excluded.

b) The customer shall only be entitled to set off our invoices against accounts that have been established in a court of law.

c) The rights of the customer may only be assigned with our written consent.

 

6. Reservation of title

a) The goods shall remain our property until all accounts have been paid in full, including additional accounts, compensation claims and the redemption of checks and bills of exchange.

b) This reservation of title shall apply even if certain of our accounts are included in a current account and the balance has been drawn and acknowledged.

c) The customer is entitled to process and sell the goods subject to the following conditions:

aa) The entitlement of the customer to reserved title goods in the course of his normal business shall end if the customer is declared insolvent or if an application for insolvency proceedings is made or such proceedings are opened.

bb) Processing reserved title goods shall not result in the customer obtaining proprietary rights to the new goods in accordance with § 950 of the German Civil Code. The processing work shall be carried out on our behalf without our incurring any liabilities as a result of it. lf the goods are processed, blended or mixed with other items, we shall gain co-ownership to the new goods proportionate to the value of our reversed title goods to the value of the new goods.

cc) The customer hereby assigns any accounts receivable accrued from the sale of the reserved title goods together with all additional rights to us, on a proportionate basis in the event that the goods have been processed, blended or mixed with other goods and we have accrued co-ownership of the new goods amounting to the value of our invoice total. In the latter case we shall be entitled to a fraction of the account receivable proportionate to the irwoice total of our reserved title goods to the invoice total of the new goods. lf the customer has sold the account receivable by way of factoring, he hereby assigns the account receivable from the factor to us in its place. We hereby expressly accept the assignment from the sale of the goods and of the sale of the account receivable by way of factoring.

dd) We shall not attempt to collect the assigned accounts receivable as long as the customer meets his payment obligations. This waive of our right to collect these accounts shall be voided if the customer is in default with his payments. In this case we shall be authorized by the customer to notify the customer's dient of the assignment and to collect the account oursetves. The customer shall be obliged to provide us on request with a precise list of the accounts receivable to the customer, with the names and addresses of the clients, the amount of the various accounts receivable, the invoice date, etc. and to provide us with all the information we require in order to enable us to collect the assigned accounts receivable and also to enable us to verify this information. The customer shall be entitled to collect the accounts receivable himsetf if we do not give him any other instructions.

ee) We undertake to release the security supplied to us to the extent that its value exceeds the accounts receivable for which it provides security by more than 20%.

ff) The customer shall not be permitted to pledge or transfer the reserved title goods or the assigned accounts receivable by way of security. The customer must notify us immediately of any seizures by third parties, giving us the name of the seizure creditor.

gg) lf we retake possession of the goods on the basis of the reservation of title, this shall not be constituted as a withdrawal from the contract. We shall be entitled to satisfy our accounts receivable at our discretion from the reserved title goods whose possession we have reclaimed.

hh) The customer shall keep the reserved title goods on our behalf free of charge. He must insure them against usual risks such as fire, theft and water with the usual insured sums. The customer hereby assigns his compensation claims accrued due to damage of the above type against insurance companies or other parties who are liable to pay compensation, up to the value of our account receivable. We hereby accept this assignment.

ii) All accounts receivable and the rights from the reservation of title to all the special forms set out in these terms shall remain in force until the complete exemption of any liability that we have entered in the interest of the customer.

 

7. Warranty

a) The customer must inspect the goods and services immediately after receipt to identify any defects. lf defects are identified, they are to be reported to us immediately in writing, at the latest eight days after the transfer of risk. Concealed defects must be reported to us immediately, at the latest eight days after their discovery. lf the customer does not comply with this obligation, all warranty claims shall be voided.

b) We shall provide a warranty for the agreed properties (excluding minor discrepancies) on the basis that we shall supply a perfect product or rectify the defective condition at our discretion after a reasonable deadline has been set by the customer. lf we decide to fulfill our obligations by rectifying the defect, the customer shall only have additional warranty rights if our attempts to rectify the defect fail on two occasions. The reasonable deadline shall not commence any earlier than the defect and our responsibility for it have been established and verified.

c) lf our attempts to rectify the defect finally fail, the customer may, at his discretion, decide to reduce the payment (reduction) or cancel the contract (withdrawal). In the event of a minor breach of contract, in particular minor defects, the customer shall not be entitled to withdraw from the contract. Reference is made to the following clause relating to claiming the right of withdrawal and for lodging a compensation claim.

d) The customer shall bear the full burden of proof for all claim requirements, in particular for the defect itself, for the time at which the defect was identified and for ensuring that the complaint was made promptly.

e) Warranty claims for all products supplied by us shall become statute-barred within one year unless an agreement to the contrary has been agreed in writing. However, they shall become statute-barred early if the customer attempts to make repairs or modifications or if he fails to follow operating instructions. The warranty period shall commence on the date of delivery.

f) The customer is hereby notified that the property information provided in the product description does not constitute guarantees in the legal sense. Any property information and guarantees that go beyond the product description shall only be deemed to have been declared to the customer if they have been done so by us in writing.

 

8. Liability

a) The customer may withdraw from the contract if it becomes impossible to supply all the goods or provide all the services before the transfer of risk described in number 7 or the goods are not supplied within a reasonable period, which must not exceed one month, unless the reason that the goods cannot be supplied or the services not provided is at least primarily not our fault or it is due to a force majeure. lf it is possible to supply some of the goods or provide some of the services, which the customer would be able to use anyway even after the termination of the contract, the right of withdrawal shall be limited to the parts not supplied or provided.

b) lf it becomes impossible to supply the goods or provide the services during a delay in acceptance or due to the fault of the customer, he shall remain obliged to make payment. lf some of the goods or part of the services in the sense of paragraph a) have already been supplied or provided, we shall be entitled to payment for these.

c) lf the customer or a third party makes modifications or carries out repair work without our prior written consent, our liability for the consequences shall be voided. The statute of limitations shall not be affected by this.

d) All claims for compensation or damages for lost expenses incurred by the customer against us shall be excluded regardless of the legal grounds on which they are based unless we have acted with intent or gross negligence or have acted negligently and thereby breached major contractual obligations.

e) In the event of gross negligence or negligence resulting in a breach of a major contractual obligation, the compensation shall be limited to the typical and foreseeable damage. We shall only accept any additional liability within the framework of our business liability insurance policy.

f) Liability for damage that is not suffered by the subject of the contract shall be excluded except in cases of malice and gross negligence.

g) Liability for personal injury, for the lack of a property, for a guarantee accepted by us and liability under the Product Liability Law, shall not be affected by number 8 d, number 8 e and number 8 f.

h) All claims for compensation or for damages for lost expenses incurred by the customer against us on the basis of contractual or non-contractual liability shall become statute-barred after one year, except in cases of malice or personal injury. This period shall commence at the time specified in§ 199 of the German Civil Code. lt shall take effect at the ratest after the expiry of the maximum deadlines set out in § 199 Paragraph 3 and Paragraph 4 of the German Civil Code. Other statute of limitations regulations in these terms shall not be affected by this.

 

9. Confidentiality / Data protection

a) Both we and the customer undertake to treat all business and company secrets, particularly documents, knowledge and information of the other party which are disclosed to us in the course of the placement and completion of the order, as confidential and not to disclose them to third parties.

b) We shall record, process and use the customer's personal data in an automatic process if they are necessary for the grounds, content and/or amendments of this contract (master data) in accordance with §§ 28 of the German Federal Data Protection Act, 5 of the Tele Services Data Protection Act and § 19 of the Media Services State Treaty. In addition we shall record, process and use the customer's usage and billing data in accordance with §§ 28 of the German Federal Data Protection Act, 6 of the Tele Services Data Protection Act and § 19 of the Media Services State Treaty.

 

10. Arbitration

a) The European Commission provides an online platform for the resolution of disputes out-of-court (ODR Platform = online dispute resolution) that can be accessed at http://ec.europa.eu/consumers/odr. Our email is: info@topstar.de.

b) We do not participate voluntarily or based on legal obligation in a dispute resolution process before a consumer arbitration authority.

 

11. Final clauses

a) The legal relationship between us and domestic and foreign contract partners shall be exclusively subject to th material law of the Federal Republic of Germany.

b) Augsburg shall be the place of fulfillment of all rights and obligations arising from this contract. This shall als apply to additional or substitute obligations. The non-exclusive place of jurisdiction for this contract and all leg matters related to it or arising from it shall be Augsburg for both parties.