General Terms and Conditions
of HOTSPOTBLINDS GmbH

§ 1 Scope

(1) All the Seller’s deliveries, services and offers are made exclusively on the basis of these general terms and conditions. These form part of all the contracts that the Seller concludes with its contractual partners (hereinafter also referred to as the "Customer") for the deliveries or services it offers. These shall also apply to all future deliveries, services or offers to the Customer, even if not separately agreed again.
(2) Terms and conditions of the Customer or third parties shall not apply, even if the Seller does not separately object to their validity in individual cases. Even if the Seller refers to a letter which contains or refers to the terms and conditions of the Customer or of a third party, this does not imply any agreement with the validity of those terms and conditions.

§ 2 Offer and conclusion of contract

(1) All the Seller’s offers are subject to confirmation and non-binding, unless they are expressly characterised as binding or contain a specific acceptance period. The Seller may accept orders or commissions within fourteen days of receipt.
(2) The legal relationship between the Seller and the Customer shall be governed solely by the purchase contract concluded in writing, including these General Terms and Conditions of Delivery. This reproduces all agreements between the parties to the contract relating to the subject matter of the contract in full. Verbal commitments made by the Seller prior to this contract’s conclusion are legally non-binding and verbal agreements between the parties to the contract shall be replaced by the written contract unless it is expressly stated in each case that they continue to be binding.
(3) Supplements and amendments to the agreements made, including these General Terms and Conditions, require the written form for their validity. Apart from directors or authorised signatories, the Seller’s employees may not make any verbal agreements deviating from this. Transmission of the signed declaration through telecommunication, in particular by fax or email, is sufficient to comply with the written form requirement provided that a copy is sent.
(4) Information provided by the Seller regarding the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) and our representations of the same (e.g. drawings and illustrations) are only approximate unless the usability for the contractually intended purpose requires exact conformity. These are not guaranteed characteristics, but descriptions or characterisations of the delivery or service. Deviations customary in the trade and deviations which occur due to legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts, are permissible provided that they do not impair usability for the contractually intended purpose.
(5) The Seller reserves the ownership or copyright to all offers and cost estimates it submits as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Customer. The Customer may not render these items accessible to third parties, disclose them, use them itself or through third parties or reproduce them without the Seller’s express consent. At the Seller's request, it shall return all these items to the Seller and shall destroy any copies made if it no longer requires them in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically provided data for the purpose of normal data backup.
(6) The minimum order value is EUR 30.00.

§ 3 Prices and payment

(1) The prices shall apply to the scope of services and deliveries specified in the order confirmations. Additional or special services will be charged separately. Prices are quoted in EURO ex works and inclusive of packaging, statutory value-added tax, customs duties for export deliveries as well as fees and other public charges. A deposit of 50% of the purchase price is payable after the Customer’s receipt of the order confirmation. The remainder of purchase price is due after completion, but before delivery of the goods. For custom-made products and major projects, we are entitled to demand a down payment of at least 50% of the invoice amount.
(2) If the agreed prices are based on the Seller's list prices and delivery is not to take place until more than four months after the contract’s conclusion, the Seller's list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).
(3) Unless otherwise agreed, invoice amounts are to be paid within 10 days with 2% discount or within 30 days without any deduction, unless otherwise agreed in writing. The date of receipt by the Seller shall be decisive for the date of payment. Payment by cheque is excluded unless agreed separately in individual cases. If the Customer fails to pay on the due date, the outstanding amounts shall bear interest from the due date at a rate of 9% points above the base interest rate; the assertion of higher interest rates and further damages in the event of default shall remain unaffected.
(4) Offsetting against counterclaims of the Customer or retention of payments due to such claims is only permissible if the counterclaims are undisputed or legally established.
(5) The Seller may execute or carry out outstanding deliveries or services only against advance payment or provision of security if, after the contract’s conclusion, the Seller becomes aware of circumstances which are likely to significantly reduce the Customer’s creditworthiness and which endanger the Customer’s payment of the Seller’s outstanding claims from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).
(6) The Seller is also entitled to set off payments made by the Buyer against older liabilities arising from the business relationship. If we have already incurred costs and interest, we shall be entitled to set off the incoming payments first against the costs, then against the interest and finally against the principal claim, even if the Buyer stipulates otherwise.

§ 4 Delivery and delivery period

(1) Deliveries will be made ex works.
(2) Periods and dates for deliveries and services promised by the Seller are always only approximate, unless a fixed period or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
(3) Without prejudice to – the Seller's rights arising from the Customer's default, – the Seller may demand from the Customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Customer fails to meet its contractual obligations to the Seller.
(4) The Seller shall not be liable for the impossibility of delivery or for delays in delivery if these are caused by force majeure or other events not foreseeable at the time of the contract’s conclusion (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in procuring necessary official permits, official measures or the failure to deliver, incorrect delivery or late delivery by suppliers) for which the Seller is not responsible.
If such events substantially impede or render impossible delivery or performance by the Seller and the hindrances is not only of a temporary nature, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or service periods shall be extended or the delivery or service dates postponed by the period of the hindrance plus a reasonable start-up period. If acceptance of the delivery or service cannot reasonably be expected of the Customer as a result of the delay, it may withdraw from the contract through an immediate written declaration to the Seller.
(5) The Seller may only make partial deliveries if
  • the Customer can use the partial delivery within the scope of the contractual purpose;
  • the delivery of the remaining ordered goods is ensured; and
  • the Customer does not incur any significant additional costs or expenses (unless the Seller agrees to bear such costs).
(6) If the Seller defaults on a delivery or service or if a delivery or service becomes impossible for him for whatever reason, the Seller's liability shall be limited to damages in accordance with § 8 of these General Terms and Conditions.

§ 5 Place of performance, shipping, packaging, transfer of risk, acceptance

(1) The place of performance for all obligations arising from the contractual relationship shall be the Seller's statutory seat, unless otherwise agreed. If the Seller is also obliged to carry out installation, the place of performance shall be the place where the installation is to take place.
(2) The shipping method and packaging are subject to the Seller's due discretion.
(3) The risk shall pass to the Customer at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to undertake the shipment. This shall also apply if partial deliveries are made or if the Seller has assumed other services (e.g. Shipping or installation). If shipping or delivery is delayed as a result of circumstances attributable to the Customer, risk shall pass to the Customer from the day on which the delivery item is ready for dispatch and the Seller has notified the Customer accordingly.
(4) Storage costs after transfer of risk shall be borne by the Customer. In the event of storage by the Seller, storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per elapsed week. The right to assert and prove additional or lower storage costs is reserved.
(5) The consignment shall only be insured by the Seller against theft, breakage, transport, fire and water damage or other insurable risks at the Customer's express request and expense.
(6) If acceptance has taken place, the object of purchase shall be deemed accepted, if
  • the delivery and installation have been completed, where the Seller is also required to carry out the installation;
  • the Seller has informed the Customer of this with reference to the deemed acceptance in accordance with this § 5 (6) and has requested the Customer to accept the goods;
  • twelve working days have elapsed since delivery or installation or the Customer has started using the purchased item (e.g. the delivered system has been put into operation) and in this case [six] working days have elapsed since delivery or installation; and
  • the Customer has failed to signify acceptance within this period for a reason other than a defect notified to the Seller which renders the use of the object of sale impossible or significantly impairs it.

§ 6 Warranty, material defects

(1) The warranty period shall be one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to claims for damages by the Customer arising from death, physical injury or sickness or from intentional or grossly negligent breaches of duty on the part of the Seller or its vicarious agents, which shall lapse in each case in accordance with statutory provisions.
(2) The delivered items shall be carefully inspected immediately after delivery to the Customer or to a third party designated by the Customer. Regarding obvious defects or other defects which would have been recognisable during an immediate, careful examination, they shall be deemed approved by the Buyer if the Seller does not receive a written notice of defect within seven working days of delivery. Regarding other defects, the delivery items shall be deemed approved by the Buyer if the Seller has not received a notice of defects within seven working days of the date on which the defect became apparent; if the defect was already recognisable to the Customer at an earlier point in time under normal use, this earlier point in time shall, however, be decisive for the commencement of the notice period. At the Seller's request, a delivery item which is the subject of a complaint shall be returned to the Seller carriage paid. In the event of a justified notice of defects, the Seller shall reimburse the costs of the cheapest shipping method. This shall not apply if the costs increase because the delivery item is located at a location other than the location of the intended use.
(3) In the event of material defects in the delivered items, the Seller is initially obliged and entitled to remedy the defect or make a replacement delivery at its discretion within a reasonable period of time. In the event of failure, i.e. the impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement, the Customer may withdraw from the contract or reduce the purchase price appropriately.
(4) If a defect is based on the Seller’s fault, the Customer can claim compensation under the conditions specified in § 8.
(5) In the event of defects in components from other manufacturers which the Seller cannot remedy for licensing or actual reasons, the Seller shall, at its discretion, assert its warranty claims against the manufacturers and suppliers on the Customer’s behalf or assign them to the Customer. Warranty claims against the Seller for such defects under the other conditions and in accordance with these General Terms and Conditions shall only arise if the judicial enforcement of the above-mentioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. During the duration of the legal dispute, the statute of limitations governing the relevant warranty claims of the Customer against the Seller shall be suspended.
(6) The warranty does not apply if the Customer modifies the delivery item or causes it to be modified by third parties without the Seller’s consent and the elimination of the defect is consequently rendered impossible or unreasonably difficult. In any case, the Customer shall bear the additional costs of remedying the defect incurred as a result of the modification.
(7) Any delivery of used items agreed with the customer in individual cases shall be carried out to the exclusion of any warranty for material defects.

§ 7 Intellectual property rights

(1) The Seller warrants in accordance with this § 7 that the delivery item is free from third -party industrial property rights or copyrights. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it due to the infringement of such rights.
(2) If the delivery item infringes a third-party industrial property right or copyright, the Seller shall, at its option and expense, modify or exchange the delivery item in such that no further rights of third parties are infringed, but the delivery item continues to fulfil the contractually agreed functions, or shall procure the right of use for the Customer by concluding a license agreement. If the Seller fails to do so within a reasonable period of time, the Customer shall be entitled to withdraw from the contract or to reduce the purchase price accordingly. Any claims for compensation on the Customer’s part are subject to the restrictions of § 8 of these General Terms and Conditions.
(3) In the event of infringements of rights by products of other manufacturers supplied by the Seller, the Seller shall, at its discretion, assert its claims against the manufacturers and sub-suppliers on the Customer’s behalf or shall assign them to the Customer. In these cases, claims against the Seller under this § 7 shall only arise if the judicial enforcement of the above-mentioned claims against the manufacturers and sub-suppliers was unsuccessful or is futile, for example due to insolvency.

§ 8 Liability for culpable damage

(1) The Seller's liability for damages, for whatever legal reason, in particular impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with the provisions of this § 8 to the extent that this depends on fault.
(2) The Seller shall not be liable in the event of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents, provided that this is not a breach of material contractual obligations. The obligation to deliver and install the delivery item on time, its freedom from defects of title and material defects which impair its functionality or fitness for use more than only insignificantly, as well as obligations to provide advice, protection and care which are intended to enable the Customer to use the delivery item in accordance with the contract or are intended to protect the life and limb of the Customer's personnel or to protect the Customer's property from considerable damage are material contractual obligations.
(3) If the Seller’s liability for damages pursuant to § 8 (2) is established, this liability shall be limited to damage which the Seller foresaw at the time of the contract’s conclusion as a possible consequence of a breach of contract or which it should have foreseen had it exercised customary care. Indirect damage and consequential damage resulting from defects of the delivery item shall only be eligible for compensation if such damage is typically to be expected when the delivery item is used in accordance with its intended purpose.
(4) In the event of liability for simple negligence, the Seller's liability for damages to property and other financial losses resulting therefrom shall be limited to an amount of EUR 3,000,000.00 per claim (corresponding to the current sum insured under its product liability insurance or liability insurance), even in the event of a breach of material contractual obligations.
(5) The above exclusions and limitations of liability shall apply to the same extent in favour of the Seller’s organs, legal representatives, employees and other vicarious agents.
(6) If the Seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services it owes, this shall be undertaken free of charge and to the exclusion of any liability.
(7) The limitations of this § 8 shall not apply to the Seller's liability for intentional conduct, for guaranteed characteristics, for death, physical injury or sickness in accordance with the Product Liability Act.

§ 9 Retention of title

(1) The purpose of the following agreed retention of title is to secure all the Seller’s existing current and future claims against the Purchaser arising from the supply relationship between the contractual partners for the production and sale of blinds (including outstanding balances from a current account relationship limited to this supply relationship).
(2) The goods delivered by the Seller to the Buyer shall remain the Seller's property until all secured claims have been paid in full. The goods as well as the goods which take their place in accordance with the following provisions and which are covered by the retention of title shall be referred to subsequently as the “reserved goods”.
(3) The Buyer shall store the reserved goods free of charge for the Seller.
(4) The Buyer is entitled to process and sell the reserved goods in the ordinary course of business until the reserved ownership is enforced (paragraph 9). Pledges and assignments by way of security are not permitted.
(5) If the reserved goods are processed by the Buyer, it is agreed that the processing is carried out on the Seller’s account and behalf as manufacturer and that the Seller shall directly acquire ownership or – if the processing is carried out using materials from several owners or if the value of the processed object is higher than the value of the reserved goods – the Seller shall directly acquire co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item If the Seller does not acquire such ownership, the Buyer hereby transfers its future ownership or – co-ownership in the above-mentioned proportion – of the newly created item to the Seller as security. If the reserved goods are combined or inseparably commingled with other items to form a uniform item and if one of the other items is to be regarded as the main item, the Seller shall assign to the Buyer, to the extent that the main item belongs to it, the proportionate co-ownership of the uniform item in the proportion stated in sentence 1.
(6) In the event of resale of the reserved goods, the Buyer hereby assigns to the Seller, by way of security, the resulting claim against the purchaser – in the event of the Seller's co-ownership of the reserved goods – in proportion to the co-ownership share. The same applies to other claims replacing the reserved goods or which arise otherwise with respect to the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. The Seller revocably authorises the Buyer to collect the claims assigned to the Seller in its name. The Seller may only revoke this collection authorisation in the event of enforcement.
(7) If third parties have access to the reserved goods, in particular through seizure, the Buyer shall immediately inform them of the Seller's ownership and shall notify the Seller of this to enable it to enforce its ownership rights. The Buyer shall be liable to the Seller for the reimbursement of the judicial or extra-judicial costs incurred in this connection if the third party is not in a position to do so.
(8) The Seller shall release the goods subject to retention of title as well as the items or claims replacing them if their value exceeds the amount of the secured claims by more than 50%. The Seller shall select the items to be released thereafter.
(9) If the Seller withdraws from the Contract in the event of a breach of contract on the Buyer’s part, – in particular default in payment, – (enforcement event), it is entitled to demand the return of the reserved goods.

§ 10 Final provisions

(1) If the Customer is a merchant, a legal entity under public law or a special fund under public law, or if it has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Seller and the Customer shall be Brieskow-Finkenheerd or the Customer’s statutory seat, at the Seller’s discretion. However, in these cases, Brieskow-Finkenheerd (place) shall be the exclusive place of jurisdiction for legal action against the Seller. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(2) The relations between the Seller and the Customer are subject exclusively to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
(3) When handling personal data, the contracting parties shall comply with the relevant provisions in each case, in particular those of the General Data Protection Regulation (GDPR). The contracting parties shall not process personal data without authorisation in connection with this Contract’s establishment, execution and termination (data secrecy). They shall impose corresponding obligations on the persons they employ in connection with this Contract’s establishment, performance and termination. Data secrecy shall continue to exist even after the termination of their activities.
(4) If necessary, the contracting parties shall conclude a data processing agreement pursuant to Article 28 GDPR.
(5) If the Contract or these General Terms and Conditions contain lacunae, the legally effective provisions which the contracting parties would have agreed in accordance with the Contract’s economic objectives and the purpose of these General Terms and Conditions had they been aware of the lacuna shall be deemed to have been agreed for filling these lacunae.

January 2019