Terms and conditions of sale, delivery and payment to companies (B2B)
as of December 2023
1.1 These General Terms and Conditions of Sale apply to all our business relationships with our customers (hereinafter referred to as "Customer"/Buyer). These terms and conditions of sale only apply if the buyer is an entrepreneur, a legal entity under public law or a special fund under public law. They form the basis of all offers and deliveries of Goebel Porzellan GmbH (hereinafter referred to as "Goebel"/"We"/"Us") and also apply to future transactions, without the need for renewed explicit inclusion.
1.2 Our General Terms and Conditions of Sale apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This consent requirement applies in any case, for example even if the buyer refers to his general terms and conditions of sale in the context of the order and we do not expressly object to this.
1.3 Legally relevant declarations and notifications by the Buyer in relation to the contract (e.g. setting a deadline, notification of defects, rescission or reduction) must be made in writing. Written form within the meaning of these General Terms and Conditions of Sale includes written and text form (e.g. letter, e-mail, fax).
1.4 Only the German version of this document is legally binding.
2 Order and Order Acceptance
2.1 Our offers are subject to change and non-binding, unless we have expressly designated them as binding. In particular, the presentation of the products in the Goebel Händler.portal (https:\\shop.goebel.de) does not constitute a legally binding offer, but a non-binding online catalogue with stock information. The customer can select products and collect them in a so-called shopping cart without obligation via the "add to cart" button. Only via the order button does the buyer submit a binding application for the purchase of the products in the shopping cart. Before submitting the order, the buyer can change and view the data at any time.
2.2 The order of the goods by the buyer is considered a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contract offer within 7 days of its receipt by us.
2.3 Orders can be placed by telephone, in writing, via our sales representatives, our sales representatives or the Goebel dealer portal.
2.4 Once an order has been placed, we will send the customer an automatic order confirmation by e-mail. This automatic order confirmation only documents that we have received the customer's order and does not constitute acceptance of the application. The contract is only concluded when we submit the declaration of acceptance. Acceptance can be declared either in writing (e.g. by an order confirmation by e-mail) or by delivery of the goods to the buyer.
2.5 Drawings, illustrations, dimensions, weights or other performance data are only binding if expressly agreed in writing.
2.6 The language of the contract is German.
3 Prices and payment
3.1 Unless otherwise agreed in the individual case, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value added tax. The same applies to tax rates and conversion rates.
3.2 If the Buyer wishes to purchase by mail order (see Section 4.1), he shall bear the transport costs from the warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the buyer. Special packaging, labelling or palletising requested by the buyer must also be remunerated separately according to expenditure.
3.3 If, after the conclusion of the contract, it becomes apparent (e.g. by filing for the opening of insolvency proceedings) that our claim to the purchase price is jeopardised by the buyer's inability to pay, we are entitled to refuse to perform and, if necessary, to withdraw from the contract in accordance with the statutory provisions. In the case of contracts for the production of unjustifiable items (custom-made products), we can declare the withdrawal immediately. The statutory provisions on the dispensability of setting deadlines remain unaffected.
3.4 Unless otherwise agreed in individual cases, the purchase price is due and payable within 30 days of invoicing and delivery of the goods. However, we are entitled at any time to carry out a delivery in whole or in part only against advance payment or, in particular in the case of overseas orders, against an irrevocable letter of credit. In these cases, we grant a 3% prepayment account. We declare a corresponding reservation at the latest with the order confirmation.
3.5 Upon expiry of the above or agreed payment period, the Buyer shall be in default. The purchase price shall bear interest during the period of default at the applicable statutory default interest rate. We reserve the right to assert further damage caused by delay (§288 BGB).
3.6 We expressly reserve the right to refuse cheques or bills of exchange. The acceptance of bills of exchange always requires a prior written agreement with us. Cheques and bills of exchange are only considered payment after they have been cashed.
3.7 The customer is not entitled to any right of set-off or retention, unless the counterclaim is undisputed or legally established.
4 Delivery and transfer of risk
4.1 Delivery shall be made from the warehouse, which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the buyer, the goods will be shipped to another destination (mail-order purchase). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves. Any additional costs arising from the selection of a different carrier, for example, shall be borne by the customer and will be invoiced to the customer.
4.2 Deadlines and dates for deliveries and services promised by us are only approximate, unless a fixed deadline or date has been expressly promised or agreed upon and this has been marked as binding. In particular, information on expected delivery dates in backorder lists or in the Goebel Händler.portal (https:\\shop.goebel.de) does not constitute a binding confirmation of the delivery date.
4.3 Fixed delivery times require a separate contractual agreement.
4.4 We are entitled to make partial deliveries if
a) the partial delivery can be used by the buyer within the scope of the contractual intended purpose,
b) the delivery of the remaining ordered goods is ensured, and
c) the buyer will not incur any significant additional expense or costs as a result (unless we agree to cover these costs).
4.5 If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (e.g. delivery delays of upstream suppliers, other disruptions in the supply chain, shortage of raw materials, strikes, lawful lockouts and force majeure such as natural disasters, war, terrorist attacks, epidemics, pandemics, official orders, prohibitions/prohibitions, trade blockades, embargoes, shortage of raw materials, lack of transport facilities, etc.), we will inform the buyer of this immediately and at the same time inform him of the expected new delivery period. If the service is not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; any consideration already provided by the buyer will be refunded immediately.
4.6 The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the buyer is required. If we are in default with a delivery or service or if a delivery or service becomes impossible for us, regardless of the reason, our liability for damages is in accordance with No. 8 of these General Terms and Conditions of Delivery.
4.7 The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon delivery. However, in the case of consignment purchases, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay is already transferred to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment when the goods are delivered.
6 Retention of Title
6.1 Goebel retains ownership of the delivery items until all claims against the customer arising from the business relationship, including claims arising in the future, including those arising from contracts concluded at the same time or at a later date, have been settled. This also applies if some or all receivables are included in a current invoice and the balance has been drawn and acknowledged.
6.2 In the event of a breach of contract by the customer – in particular in the event of default of payment – we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. We are entitled to dispose of the goods subject to retention of title after return. After deduction of a reasonable amount for the costs of exploitation, the proceeds of the exploitation shall be offset against the amounts owed to us by the customer.
6.3 The Buyer is entitled, until further notice in accordance with c) below, to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply:
a) The retention of title extends to the products resulting from the processing, mixing or combination of our goods at their full value, whereby we are considered the manufacturer. If, in the case of processing, mixing or combination with goods of third parties, their right of ownership remains, we acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same applies to the resulting product as to the goods delivered under retention of title.
b) The buyer assigns to us the claims against third parties arising from the resale of the goods or the product in full or in the amount of our possible co-ownership share in accordance with the preceding paragraph as security. We accept the assignment. The obligations of the buyer referred to in paragraph 2 shall also apply with regard to the assigned claims.
c) The buyer remains authorised to collect the claim alongside us. We undertake not to collect the claim as long as the buyer fulfils his payment obligations to us, there is no defect in his ability to pay and we do not assert the retention of title by exercising a right pursuant to paragraph 3. However, if this is the case, we may require the buyer to inform us of the assigned claims and their debtors, to provide us with all the information required for collection, to hand over the relevant documents and to notify the debtors (third parties) of the assignment. In addition, in this case, we are entitled to revoke the buyer's right to further sell and process the goods subject to retention of title.
d) If the realisable value of the collateral exceeds our claims by more than 10%, we will release collateral at our discretion at the request of the buyer.
6.4 The goods subject to retention of title may not be pledged to third parties or transferred as security until the secured claims have been paid in full. The buyer must notify us immediately in writing if an application for the opening of insolvency proceedings has been filed or if third parties (e.g. seizures) access the goods belonging to us.
7 Warranty and Statute of Limitations
7.1 The warranty period is one year from the date of delivery. This period does not apply to claims for damages by the buyer resulting from injury to life, body or health or from intentional or grossly negligent breaches of duty by the seller or its vicarious agents, each of which is time-barred in accordance with the statutory provisions. This also does not affect other special statutory provisions on the statute of limitations (in particular §§ 438 (1) nos. 1 and 2, 444, 445b BGB).
7.2 The Buyer's claims for defects presuppose that he has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB). If a defect becomes apparent during delivery, inspection or at any later date, we must be notified of this in writing immediately. In the case of open transport damage, the buyer must refuse to accept the shipment or document it to the carrier when accepting the package. In any case, obvious defects must be reported in writing within 7 working days of delivery and defects not detectable during the inspection within the same period of time from discovery. If the buyer fails to carry out a proper investigation and/or report a defect, our liability for defects that have not been reported or have not been reported in a timely manner or not properly is excluded in accordance with the statutory provisions.
7.3 Compensation will only be paid for breakage in transit if general breakage insurance has been taken out with us.
7.4 In the event of material defects in the delivered items, we shall be obliged and entitled to repair or replace the goods at our discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of repair or replacement, the buyer may withdraw from the contract or reduce the purchase price appropriately.
7.5 If a defect is due to the fault of the Seller, the Buyer may claim damages under the conditions specified in Section 8.
7.6 The warranty is void if the buyer changes the delivery item without our consent or has it changed by a third party and this makes it impossible or unreasonably difficult to remedy the defects. In any case, the buyer must bear the additional costs of remedying the defects resulting from the change.
7.7 A delivery of used items agreed with the buyer in individual cases is subject to the exclusion of any warranty for material defects.
7.8 Defect-free returns of goods will only be accepted after prior written agreement and carriage paid. In this case, the buyer bears the transport risk until the goods are handed over to us.
8 Other Liability
8.1 Unless otherwise provided for in these General Terms and Conditions of Sale, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
8.2 We are liable for damages – regardless of the legal basis – within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, subject to statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty), we shall only be liable
- a) for damage resulting from injury to life, limb or health,
- b) for damages resulting from the breach of an essential contractual obligation (obligation the fulfilment of which is essential for the proper performance of the contract in the first place and on the observance of which the contracting party regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
8.3 The limitations of liability resulting from paragraph 2 shall also apply to third parties as well as to breaches of duty by persons (including for their benefit) whose fault we are responsible for in accordance with statutory provisions. They do not apply to the extent that a defect has been fraudulently concealed or a guarantee has been assumed for the quality of the goods and for claims of the buyer under the Product Liability Act.
8.4 Due to a breach of duty that does not consist of a defect, the buyer can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the legal requirements and legal consequences apply.
9 Copyright and Right of Use
9.1 Insofar as brand logos, content, information and images in publications of Goebel Porzellan GmbH (e.g. catalogues, websites, online shops, etc.) are protected by trademark or copyright, the use and exploitation is only permitted with our prior written consent. All copyright rights of use in any process and for any purpose to our own sketches and designs, originals and the like remain with us, unless expressly stipulated otherwise.
9.2 Undecorated goods as well as articles of the brand "Kaiser Porzellan" may not be decorated by painting or other processes for commercial purposes without our prior consent.
10 Special Projects
10.1 Development costs incurred for special projects will be invoiced separately and are not included in the item prices, unless otherwise agreed. Development costs must always be paid in advance. If, after completion of the development, the special project is not realized due to circumstances beyond our control, the costs incurred are non-refundable, either in full or in part. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB) is excluded.
10.2 We reserve ownership and/or copyright to all our designs in connection with special projects, as well as to drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids provided to the Client. Without our express consent, the customer may not make these items available to third parties, disclose them, use them himself or through third parties, or reproduce them. He must return these items to us in full at our request.
10.3 In the case of special projects or individual production orders, over- or under-deliveries of up to 10% are permitted. Such a deviation in the order quantity is customary in the industry and is considered to be contractual performance. In this case, the customer owes the purchase price corresponding to the quantity actually delivered.
11 Place of Fulfilment and Jurisdiction
If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office in Bad Staffelstein. The same applies if the buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). However, in all cases, we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions of Sale or a priority individual agreement or at the general place of jurisdiction of the buyer. Overriding statutory provisions, in particular those relating to exclusive competences, remain unaffected.
12 Restrictions of competition
12.1 The customer undertakes to sell branded goods of Goebel Porzellan GmbH and its sales brands exclusively in the country of its registered office. The commercial supply of domestic or foreign resellers is prohibited, unless an express written agreement to the contrary has been made. This obligation extends in particular to distance selling through all available channels, including e-commerce, mail-order catalogues, teleshopping and similar platforms.
12.2 Any restrictions on the distribution of certain products, distribution channels and/or regions due to the rights of third parties, such as licensors, must be fully respected by the Customer.
13 Applicable law
13.1 The law of the Federal Republic of Germany shall apply to these General Terms and Conditions of Sale and the contractual relationship between us and the Buyer to the exclusion of uniform international law, in particular the UN Convention on Contracts for the International Sale of Goods.
13.2 The remaining parts of the contract shall remain binding even in the event of the legal invalidity of individual clauses. The invalid points shall be replaced by the statutory provisions, if any. However, insofar as this would constitute undue hardship for one of the contracting parties, the contract becomes invalid in its entirety.
14 Data protection