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General Terms & Conditions

 

General Terms & Conditions of Porzellanfabrik Walküre GmbH & Co. KG Gravenreutherstrasse 5, 95444 Bayreuth, Germany, listed in the Commercial Register at the court in Bayreuth, registration number HRA 4256, represented by the managing director Siegmund Meyer, Dr. Wolfgang Meyer

 

§1 Applicability


1.

These present General Terms and Conditions are applicable to each and every offer and accepted order as well as for every delivery effected by us; they also apply to every future business relationship between us and anyone placing an order.

 

2.

Other conditions than the present ones, including but not limited to purchasing conditions of the customer, are inapplicable even if not explicitly or otherwise rejected. By accepting goods, the customer waives any application of its own conditions of business, even if those imply exclusivity and accepts these present terms and conditions. Oral agreements or warranties are invalid without our written confirmation. This applies to a waiver to this stipulation as well.

 

3.

Deviations from these General Terms and Conditions have effect only if they have been confirmed by us in writing.

 

4.

The customer has to inform Porzellanfabrik Walkuere immediately if he disagrees with these present general conditions explicitly in written. A hand over of general conditions of the customer does not count as a disagreement with these present general terms and conditions.

 

 

 

5.

If general conditions of the customer are part of the contract an contra-dictionary stipulations are present the rules and stipulations of the German law shall become part of the contract and govern the contract. The contract itself remains unaffected.  

 



§ 2 Place of Performance, Delivery and Acceptance, Passing of Risk

 

1.

Place of Performance for all performance out of the contract is the place of business of Walkuere Porzellanfabrik.

 

2.

The delivery of our products will be carried from our place of Business in Bayreuth, Germany. All packaging costs and delivery costs have to be beard by the customer. The customer is entitled to appoint the shipping company. The products will be shipped without insurance at the customers risk if no other agreement has been made. If the customer wishes to have an insured delivery he has to demand this explicitly in his order. All costs for the insurance have to paid by the customer.

 

3.

Risk passes to the customer upon dispatch as soon as the goods are handed over to the consignor or after the goods have left the production plant of Porzellanfabrik Walkuere in order to be handed over to consignor.

 

4.

If our goods have to be shipped from an external production plant of Porzellanfabrik Walkuere an additional charge may be applicable.

 

 

5.

Packing charges for special packing have to be paid by the customer.

6.

If the customer is in default of acceptance Porzellanfabrik Walkuere is entitled to set an additional respite of 12 days an to claim the purchase prize afterwards or to withdraw from thé contract and/or claim for compensation.

 

7.

Unforeseeable changes or charge of import and export charges, custom tax keys, foreign exchange control and server currency changes result in a right of Porzellanfabrik Walkuere to adjust the delivery costs.

 

 

§ 3 Conclusion of Contract

 

1.

The contract is concluded between Porzellanfabrik Walkuere and the customer it its own name and on account of the customer. Agency contracts will not be concluded.

 

2.

All offers are subject to change and not binding. A contact is not concluded until Porzellanfabrik Walkuere confirms an order of the customer in written or orally.

 

3.

All prices are net, in Euro, generally ex works, not including packaging, value added tax to be added. The prices the offers of Porzellanfabrik Walkuere are subject to change and not binding until they have been confirmed in the order confirmation. Prizes in the order confirmation which are different from the prize in the order of the customer have to be confirmed by the customer,

 

 

§4 Return of Goods

 

If we have explicitly agreed to a return of new products we have to deduct 20% of the purchase prize to check the product, pack and repack the product and to cover all the other handling costs. Custom made products are not returnable if there is no defect.

 

 

§5 Delivery Period

1.

We indicate adequate delivery periods in our discretion without any binding effect and do our best to respect them. All demands for a certain delivery date have to be agreed with us in written. If a certain delivery date is agreed this delivery date shall not count as a fixes date according to the German Commercial Code if not otherwise agreed in written. This clause shall also apply if the customer has placed his order due to a certain date, happening or activity. A binding fixed date has to be agreed in written..

 

2.

If a fixed delivery date has been agreed in written and Porzellanfabrik Walkuere is in delay the customer is only entitled to claim the direct damage he has suffered because of the delay. This compensation claim is limited to the prize of the order products. All further claims are barred if the customer is not able to proof that the typical foreseeable damage is higher than the prize of the ordered goods.

 

3.

Part deliveries on our part are admissible any time. If part deliveries take place on the demand of the customer Porzellanfabrik Walkuere is entitled to claim the extra delivery, packing and handling costs. If there are more that 10 days between the certain part deliveries we are entitled to demand the payment of the first delivery before the next delivery will take place. In this case a lien is agreed.

 

4.

All costs for the return and the rolling in have to be paid by the customer unless we are responsible for the return of the goods.

 

5.

In case of force Majeure, operational disturbances, lacking workmanship, energy or raw materials, strike or other events beyond our control which lasted for more than one week delivery date is postponed by the length of the disturbance and of its effects, however not longer than for five weeks. The delivery date is only postponed if Porzellanfabrik Walkuere indicates the customer this fact with undue delay.

 

6.

If the delivery is delayed the customer is entitled to withdraw from the contract if he has set Porzellanfabrik Walkuere an additional respite of at least four weeks.

 

7.

The customer is not entitled to claim for any damage he has suffered if Porzellanfabrik Walkuere is not responsible and/or liable for the delay and if Porzellanfabrik Walkuere has fulfilled its duties according to number 5 and 6 of this section. Any default of the supplier or the carrier does not count as a default of Porzellanfabrik Walkuere.

 

8.

Due to the fact that the customer places an order Porzellanfabrik Walkuere has the right to assume and assumes that the customer is credible and able and willing to pay for the purchase of the goods. Porzellanfabrik Walkuere can withhold its performance if, after contract conclusion, Porzellanfabrik Walkuere realizes that the claim for consideration is jeopardised by a lack of customer’s solvency. This right of refusal expires when counter-performance is effected or safety bonded. A certain uncertainty is proven with a bank confirmation or the information of a notable credit information broker.

 

If Porzellanfabrik Walkuere chooses to ask the customer to proof his credibility in order to decide whether the contract will be fully fulfilled Porzellanfabrik Walkuere has to ask the customer in written via certified mail to give safety or payment in advance.

 

 

§ 6 notice of defects, Liability, Warranty of contractual feature

 

1.

Every description of the product is subject to change unless otherwise explicitly confirmed in written as binding. Porzellanfabrik Walkuere does not guarantee the eligibility of a product for a certain purpose unless otherwise explicitly confirmed in written.

 

2.

Technical modifications increasing or maintaining the value of the products we sell and not limiting their functionality are reserved till delivery. Minor changes and alterations in the weight and measurements do not count as a defect as variations in vacillation of chinaware is inevitable. As far as we have produced customer made goods we are entitled to an excess or minor delivery amount up to 10%.

 

3.

The purchaser has to examine goods acquired from us for defects immediately after delivery, and to inform us about recognisable defects within a period of 8 days from reception. In case of this period’s ineffectual expiration, the customer loses any claim for later fulfilment or warranty towards us. To hidden defects the legal ruling applies, § 377 HGB.

 

4.

If the customer informs Porzellanfabrik Walkuere about a defect on a new good Porzellanfabrik Walkuere is entitled for supplementary performance for two times. Supplementary performance may take place according to the sole choice of Porzellanfabrik Walkuere by the means of repair/mending/touching up/restoration/refurbishing or the delivery of a replacement. If the second repair/mending/touching up/restoration/refurbishing is not successful Porzellanfabrik Walkuere is entitled to deliver a replacement (third supplementary performance). This last supplementary performance shall not take place if the supplementary performance finally is not deemed to be successful or a further supplementary performance is not just and reasonable for the customer.

 

5.

Claims for damages and claims for indemnity according to §§ 440, 280, 281, 283, 311a, 437 BGB as well as claims for damages for other legal reasons are barred. This limitation does not apply if Porzellanfabrik Walkuere has violated a major contractual duty or if the damage is covered by a comprehensive general liability of Porzellanfabrik Walkuere.  Liability due to the Product Liability Act remains unaffected. Porzellanfabrik Walkuere is not liable if there is only a slight negligence of duty of non essential contractual obligations. The amount for a claim for damages of the customer is limited to the direct damage resulting out of the violation of the contract up to a maximum of the double purchase prize.

 

6. All rights and claims on the part of the customer in connection with material damages shall become statue-barred one year after delivery. Notwithstanding the above provision, the statutory limitation period shall apply in the following cases: claims for damages based on intent or gross negligence or for injuries to life, body or health.

 

7.

The purchaser is not entitled to repair/mending/touching up/restoration/refurbishing without authority as this may lead to a exclusion of the customer warranty and further rights resulting out of defect as this repair/mending/touching up/restoration/refurbishing without authority may complicate the duty of Porzellanfabrik Walkuere for supplementary performance.

 

8.

We warrant certain qualities only after having guaranteed them in writing. Any mere reference to technical standards will contain only a certain specification of service and merchandise, but will not constitute any agreement as to the merchandise’s aptitude exceeding the usual possibility of the material stipulated in the contract. If such a certain agreement is not made we are only liable that the products sold are fit for the usual kind of use and that they show the qualities which are usual for that kind of material and can be expected by the purchaser in view of the nature of the matter. Any description of another producer or supplier of Porzellanfabrik Walkuere does not count as a description or guarantee of Porzellanfabrik Walkuere.

 

9.

We are not liable if there is only a slight negligence of duty of non essential contractual obligations. Limitation of liability shall also apply to competing claims for tort. Nothing in this shall affect claims for injuries to life, body or health if we or our legal representative is responsible for this. Therefore Porzellanfabrik Walkuere shall be liable if Porzellanfabrik Walkuere, its legal representatives, owners, workers or representatives have purposely or grossly negligent caused damage to the customer and Porzellanfabrik Walkuere is not able to proof exculpation according to § 831 BGB.

 

This applies as well for the violation of the duty to advice. In all other cases of negligent default Porzellanfabrik Walkuere is only liable if the damage is secured by a comprehensive general liability or by a breakage insurance or if Porzellanfabrik Walkuere has violated essential contractual obligations.

 

 

§7 Payment

 

1.

If not agreed otherwise, payments are due immediately upon date of invoice, net without any deduction, not later than 14 days after the date of the invoice.

 

2.

If not otherwise agreed in written any deduction, regardless the reason (credit voucher, compensation) which are not listed in the invoice not admissible.

 

3.

Payment is counted as effected at the date the payment amount on the bank account of Porzellanfabrik Walkuere. From the beginning of default ( number 1 of this section), interest for default amounting to 8 percent points above the basic rate of interest of the European Central Bank can be claimed in as far as the customer is not a final user. Claiming further default damage is explicitly reserved. Payment via non-negotiable cheque is counted as punctual if the encashment of this cheque is possible on the basis of the normal processing time at the bank within the period set up above. Predating of a cheque is not allowed.

 

4.

Bills of exchange do not count as a cash down payment. Any contractual allowance or other bonuses are not valid if payment is done by bills of exchange. If bills of exchange are accepted every discount charges have to be paid extra by the customer; payment by bills of exchange is only possible up to the value of the ordered goods. Value added tax, if applicable, has to be paid via bank transfer or cash down payment. If payment is done by bills of exchange Porzellanfabrik Walkuere is entitled to refuse the acceptance of those and to demand a payment via non-negotiable cheque, normal cheque, bank transfer or cash down payment. This rule also applies if Porzellanfabrik Walkuere has accepted payment via Bills of exchange in the past. In case of a cheque protest or a bank protest against a bill of exchange Porzellanfabrik Walkuere is entitled despite all other agreements to stop all deliveries, to call back already on the way goods. In this case all invoices for this contract and, if applicable, for contracts of the past are due at once regardless any other agreement as repayment plan, deferment of payment or other alterations in payment dates.

 

 

§8 Lien and Offset

 

Lien and Offset are only possible for the customer if the customer has a claim which has been declared legally binding by a court or which has been acknowledged by Porzellanfabrik Walkuere in written or which is undisputed between Porzellanfabrik Walkuere and the customer.

 

§9 Retention of Title

 

1.

Delivered goods remain the property of Porzellanfabrik Walkuere till entire payment of all claims resulting from the business relationship including all collateral claims (in case of payment by bill of exchange or cheque: till cashing). For any delivery, our ownership is reserved, also if some or all of our claims are gathered in one current account and the balance drawn and recognised. If the customer delays payment to us, we are entitled to take back goods subject to ownership reservation, and to this end to enter the customer’s premises.

 

2.

If within the contractual relationship between the customer and Porzellanfabrik Walkuere a third party is acting as a central regulation in relevance to provisions for doubtful debts Porzellanfabrik Walkuere assigns its property to the third party in the moment the goods are handed over to the carrier under the condition precedent that the purchase prize is paid by the third party acting as a central regulation. The customer is released from his duties after the payment through the central regulator. 

 

3.

The customer is entitled to sell or to process the goods of Porzellanfabrik Walkuere in the regular course of business as a scrupulous merchant under the condition that by this there is no server negative change in the financial situation of the customer.

 

4.

The customer right now cedes to Porzellanfabrik Walkuere for security all of its claims towards the new possessor based upon the alienation. The customer can intermingle goods subject to ownership reservation with third parties’ goods within the framework of usual business procedures; in that case, we acquire co-ownership in the new material created by commingling process, and this in proportion with the value of the material intermingled or newly produced, in accordance with § 947 I BGB . For cases where the customer alienates the material intermingled or newly produced and subject to our co-ownership, the customer right now cedes to us for security its sales price claim towards its client in proportion with the value of our co-ownership and hereby authorises us to collect the relative credit on our own behalf. The customer can alienate the goods within the framework of usual business procedures. If the customer has sold his claim against the new possessor to a real factor the customer cedes his claim against the factor to Porzellanfabrik Walkuere and is obliged to pay the proportional purchase prize to Porzellanfabrik Walkuere. The customer is obliged to indicate that ceding of the claim to the factor without undue delay if the invoice is due for more than 10 days or if the financial situation of the customer has suffered a server negative change. Porzellanfabrik Walkuere hereby accepts the cede.

 

5.

The customer is authorised and obliged to collect such credits for as long as we do not revoke this authority. The customer’s authority to collect expires without explicit declaration on our part if the customer suspends its payments or if there is a server negative change in the financial situation of the customer. In this case hereby Porzellanfabrik Walkuere is authorized by the customer to indicate the customers of the customer that the claim has ceded and that Porzellanfabrik has the right to demand payment. The customer is obliged to hand over all necessary information to enable Porzellanfabrik Walkuere to collect the certain payments from the customer’s customers. Especially but not limited the customer has to provide the name and address of the third customer, the amount of the certain claims and the date of the invoices.

 

6.

Should the securities’ value exceed that of pending claims by more than 10 %, Porzellanfabrik Walkuere shall release the exceeding amount of securities upon customer’s request and choice.

 

7.

The customer can neither pledge nor chattel mortgage goods subject to ownership reservation. About third parties’ seizures of goods subject to ownership reservation, the customer has to inform us immediately, as fast as possible, in a suitable way.

 

8.

If Porzellanfabrik Walkuere takes back its goods because of the existing retention of title this shall not count as a full withdrawal from the contract unless Porzellanfabrik Walkuere withdraws from the contract in written. Porzellanfabrik Walkuere is entitled to seek its settlement of claims in a freehand sale.

 

9.

The customer has to keep the goods where retention of title exists in a dry and safe environment free of charge for Porzellanfabrik Walkuere. The customer shall insure this property of Porzellanfabrik Walkuere against dangers, such as fire, larceny and water. The customer hereby cedes all claims resulting from the realisation of a danger listed against his insurance company to Porzellanfabrik Walkuere au to the amount of the facture of the good.  Porzellanfabrik Walkuere hereby accepts this cede.

 

10.

All claims and rights resulting from the retention of title remain upright until the full release from likely debts (such as Bills of exchange and cheques) which have been incurred by Porzellanfabrik Walkuere in the interest of the customer has taken place. The customer is entitled to use the financing instrument of factoring. In this case the customer has to inform Porzellanfabrik Walkuere before he enters into likely debts concerning the goods of Porzellanfabrik Walkuere which have been sold under the condition of retention of title.

 

 

§10 Place of Performance, Arbitration and Data Protection

 

1.

The Parties agree upon the exclusive application of the internal law of the Federal Republic of Germany, where as the applicability of the United Nations´ Convention of April 11, 1980 on contracts concerning the international sale of goods is excluded.

 

2.

Place of fulfilment and performance for any obligation arising in context with our deliveries is Bayreuth.

 

3.

If the customer has its place of business outside the EU any dispute arising out or in connection with this contract including any question regarding its existence, validity or termination shall be finally and legally binding settled according to the arbitration rules of the national Chamber of Commerce (ICC) in force on the date, when notice of the Arbitration is submitted, without recourse to the ordinary courts of law. The arbitration tribunal may also decide on the validity of this arbitration agreement. The arbitration tribunal shall consist of three arbitrators. The place of arbitration shall be Zurich. The language of the arbitration shall be German.

If the customer has its place of business within the EU any legal court proceedings shall be finally and bindingly settled by the courts in Bayreuth, Germany. Therefore Bayreuth is agreed as court of jurisdiction.

 

4.

In accordance with Bundesdatenschutzgesetz, we hereby announce that by means of electronic data processing, we store and process all data referring to clients and suppliers only in order to fulfil our contractual duties.

 

5.

The language of contract and of performance is only German. The present translation is tentative and only made for the purpose of information with exception to the stipulations under § 9, number 3.

 

 

§11 Final Remarks and Severability Clause

 

In the event that a condition in these General Terms and Conditions or a provision under the structure of other agreements is or will become invalid, this does not affect the validity of all other conditions or agreements. The parties agree in case any appointment of this agreement is void to reach an agreement that corresponds to the appointment of this contract.