Upon placing of an order or receipt of order confirmation, the following terms of sale, delivery and payment become an integral part of the contract.
Material & Konzept GmbH – General Terms of Business
1 General
Alternative and/or supplementary conditions set by the customer are expressly rejected unless accepted in writing by M & K.
2 Quote, order confirmation
In principle, unless otherwise agreed, quotes are non-binding until an order is confirmed in writing by M & K. The order is accepted subject to timely delivery by M & K’s suppliers. As far as possible, quotes will be honoured for two months from the quote date, but no legal rights exist in this regard unless a period of validity was expressly stated in writing in the quote. Order confirmations should be reviewed within 48 hours. Any subsequent amendments can only be considered with M & K’s consent.
M & K’s services are confined to the sale and supply of materials. Planning and construction management services are to be contracted separately. At the customer’s request M & K will recommend, without obligation, installation contractors for the materials it sells. This does not create any contractual relationship between M & K and the contractor it has recommended.
3 Prices and terms of payment
In the absence of any agreement to the contrary, amounts payable on invoice are strictly net. The statutory value added tax is shown separately. At the time the order is placed, a deposit equivalent to 50% of the gross amount is due. A further 30% is due when the full order is in stock, and the balance is due on delivery, without any deduction, unless otherwise agreed and noted in the order confirmation.
In the event of any delay in settlement of accounts receivable that remain fully or partially outstanding, M & K is entitled to withdraw from the contract or to immediately suspend further deliveries. With effect from the 14th day after the invoice date, M & K is obliged to charge interest on late payment at a rate five percentage points above the current base rate of the European Central Bank (ECB), in accordance with section 1, paragraph 1, of the German Discount Rate Transition Act (Diskontsatzüberleitungsgesetz, DÜG). If M & K can prove higher costs or the customer can prove lower costs, the foregoing provision is null and void. Offsetting is permitted only in the case of undisputed or court-validated debts. The customer may assert a right of retention only in so far as it arises from the same legal relationship.
4 Delivery and lead time
Unless otherwise agreed, the lead time is six weeks. This may be extended by a reasonable amount of time if unforeseeable obstacles beyond the supplier’s control make it demonstrably impossible to meet the intended lead time. If the lead time is extended by more than six weeks, the customer is entitled to set a grace period of at least four weeks and to give notice that, after expiry of this grace period, he will refuse to accept the goods. If no agreement is reached on a new delivery date, the customer may withdraw from the contract. If the customer demands compensation for non-performance in the event of delayed delivery or inability to deliver, this will be limited to no more than 5% of the purchase price in the case of minor negligence and will cover only direct losses. Any further claims by the customer, especially for reimbursement of a replacement purchase, are in principle precluded.
Items purchased from M & K are to be picked up from M & K’s premises during business hours within five working days of the date of written pickup notification. Delivery can be arranged separately and will be made during normal business hours. Delivery does not include unloading of the goods unless specifically agreed. The risk passes to the customer when the goods leave the warehouse. The customer must assert any claims regarding damage in transit without delay. The delivery should be checked immediately to ensure it is complete and intact, and any findings must be reported to the carrier and noted on the consignment/delivery note.
5 Retention of title
Title to the goods supplied remains with M & K until the purchase price is paid in full. During the time in which M & K retains title, the customer has the right to possess and use the goods in accordance with the contract, provided that he complies in a timely manner with his obligations arising from the retention of title and from the business relationship.
M & K retains title to custom-prepared layout drawings, illustrations and quotes, which are not to be passed on to third parties without M & K’s consent. Likewise, M & K reserves the right to take photographs of finished products and to publish these as product samples or references on the company’s website or in advertisements.
6 Guarantee
M & K guarantees delivery of the goods described in the order confirmation. M & K can offer no guarantee in respect of products sold as seconds.
The goods are to be examined immediately after delivery. Any complaints regarding material defects, incorrect goods supplied, incorrect quantities, scope of delivery or dimensional accuracy are to be made in writing without delay, and no later than one week after receipt of goods or before installation, in so far as such defects can be identified by reasonable examination.
If the complaints are justified, M & K will make up any shortfall in quantities and, if the goods are otherwise rejected, at its discretion exchange the goods, accept them back or give the customer the right to cancel the order or reduce the purchase price. If the defect cannot be eliminated, or if further attempts at rectification are unacceptable to the customer, the customer may, at his discretion, exercise the right to cancel the order or reduce the purchase price. Any further claims by the customer in respect of a defective or incorrect delivery are precluded, irrespective of their legal basis. This does not apply to defects attributable to wilful intent or gross negligence on the part of M & K or one of its agents. Any claim to compensation for non-performance if the goods lack the warranted characteristics remains unaffected.
Colour variations and irregularities in (cement) stones and (partially) handmade materials are product-specific and do not constitute grounds for complaint. Batch differences may be apparent in repeat orders.
Images or samples provided to the customer in connection with ordering do not constitute any guarantee with respect to the colour, structure or quality of the material supplied.
7 Returns
The customer is in principle precluded from returning items and from rescinding previously placed orders. Should M & K voluntarily accept a return, a restocking fee equivalent to 15% of the item’s value, plus any restocking costs, will be charged.
8 Final provisions and jurisdiction
German substantive law is to govern the legal relationship, including international orders. Application of the United Nations Convention on Contracts for the International Sale of Goods is expressly precluded. Should any individual provisions prove invalid, the rest of the contract and the General Terms of Business will remain valid. The place of performance and jurisdiction for all contracts is Munich, Germany, provided that the customer is a business owner.