I. Applicability of the General Terms and Conditions of Sale for the Purchase of Consumer Goods

1. These General Terms and Conditions of Sale for the Purchase of Consumer Goods apply to the present and all future contracts with domestic customers of Flötotto Einrichtungssysteme GmbH—hereinafter referred to as Flötotto—which primarily concern the delivery of consumer goods to the customer. Any additional obligations assumed by Flötotto do not affect the applicability of these General Terms and Conditions of Sale for Consumer Goods.

2. Conflicting or deviating terms and conditions of the customer do not bind Flötotto, even if Flötotto does not expressly object or, notwithstanding conflicting or deviating terms and conditions of the customer, provides services without reservation or accepts services from the customer. Similarly, Flötotto shall not be obligated if the customer’s terms and conditions deviate from statutory provisions, irrespective of the content of these General Terms and Conditions of Sale for the Purchase of Consumer Goods.

3. These General Terms and Conditions of Sale for the Purchase of Consumer Goods are designed for contracts that fall under the special provisions governing the sale of consumer goods (Sections 474 et seq. of the German Civil Code (BGB)). If this assumption does not apply, Flötotto’s “General Terms and Conditions of Sale” shall apply.

II. Conclusion of the Sales Contract

1. Prior to concluding the contract, the customer is obligated to expressly notify Flötotto if the ordered goods are not intended solely for ordinary use, if the customer assumes a specific suitability for use, or if the customer’s expectations regarding the goods’ quality are based on public statements, advertising claims, or other circumstances outside the specific conclusion of the contract, or if the goods are to be used under unusual conditions or conditions that pose a particular health, safety, or environmental risk, or that require increased stress.

2. The customer’s orders must be made in writing. If the customer’s order deviates from Flötotto’s suggestions or offer, the customer shall specifically highlight such deviations.

3. All orders, including those taken by Flötotto employees, become effective exclusively upon Flötotto’s written order confirmation. The actual delivery of the ordered goods, other conduct by Flötotto, or silence do not constitute grounds for the customer to rely on the conclusion of the purchase contract. Flötotto may issue the written order confirmation up to 14 calendar days after the customer’s order has been received by Flötotto.

4. Flötotto’s written order confirmation is decisive for the scope of the entire contract and, subject to any objections raised by the customer in writing at short notice, constitutes the conclusion of a contract even if it does not contain all the points on which the customer wished to reach an agreement, or otherwise in particular with regard to the exclusive applicability of these General Terms and Conditions of Sale for the purchase of consumer goods, deviates from the customer’s statements. Special requests by the customer, in particular regarding specific uses or quality expectations, guarantees, or other representations concerning the goods or the performance of the contract, therefore require express written confirmation in every case.

5. Flötotto’s employees, sales representatives, and other sales agents are not authorized to waive the requirement for a written order confirmation or to make promises or guarantees that deviate from the content of the order confirmation. Changes to the concluded contract likewise require written confirmation from Flötotto.

III. Obligations of Flötotto

1. Flötotto shall deliver the goods specified in the written order confirmation. If the goods to be delivered require further specification, Flötotto shall determine the specifications taking into account its own interests and those of the customer that are recognizable and legitimate to Flötotto. Flötotto is not obligated to perform services not listed in the written order confirmation or in these General Terms and Conditions of Sale for the Purchase of Consumer Goods; specifically, Flötotto is not obligated to deliver accessories not expressly listed, to install additional safety devices, to provide assembly instructions, to perform assembly, or to advise the customer.

2. Third parties not involved in the conclusion of the contract, in particular the customer’s buyers, are not entitled to demand delivery to themselves. The customer’s responsibility for receipt remains in effect even if the customer assigns claims to third parties.

3. Flötotto is obligated to deliver goods of average type and quality, taking into account the provisions in Sections II.-1. and II.-4. as well as customary commercial tolerances regarding type, quantity, quality, and packaging. If the goods to be delivered cannot be delivered in the condition offered at the time of contract conclusion because improvements have been made to series products, Flötotto is entitled to deliver the improved version. Deviations in structure and color are reserved to the extent that these are inherent in the nature of the materials used and are customary in the trade. Flötotto is entitled to make partial deliveries and to invoice them separately.

4. Agreed delivery periods or delivery dates are contingent upon the customer providing any necessary documents, approvals, or clearances in a timely manner, making down payments as agreed, and fulfilling all other obligations incumbent upon them in a timely manner. Furthermore, agreed delivery periods begin on the date of Flötotto’s written order confirmation. Flötotto is entitled to deliver prior to the agreed time.

5. Flötotto is entitled to fulfill contractual obligations after the scheduled date if the customer is informed of the delay and notified of a period for subsequent performance, unless such subsequent performance is unreasonable for the customer or the customer objects to the offer of subsequent performance within a reasonable period. In the event of subsequent performance, Flötotto shall reimburse the customer for any additional expenses demonstrably incurred as a result of the delay, to the extent that Flötotto is liable for damages in accordance with the provisions of Section VIII.

6. Regardless of whether transport is carried out by Flötotto, by the customer, or by third parties, the risk passes to the customer as soon as loading begins or the customer fails to fulfill the obligation to accept the goods, even if the goods are not clearly marked. 

IV. Price and Payment

1. Notwithstanding any further obligations regarding payment security or preparation, the purchase price is due upon issuance of the invoice. The amount of statutory default interest is determined in accordance with Section 288 of the German Civil Code (BGB). Any granted payment terms shall lapse and outstanding claims shall become due immediately if an application is filed to open insolvency proceedings against the customer’s assets, if the customer fails to fulfill material obligations due to Flötotto or to third parties without providing a justifiable reason, or if the customer has provided inaccurate information regarding their creditworthiness.

2. The agreed price covers the services to be provided by Flötotto, excluding packaging. Statutory sales tax is calculated separately and must be paid additionally by the customer.

3. Discount commitments must be specified in each individual case in Flötotto’s written order confirmation and are valid only on the condition of timely and full payment.

4. Payments must be made in euros without deduction or fees and transferred free of charge to the bank designated by Flötotto. The timeliness of payment is determined by the unconditional crediting of the bank account. Flötotto’s employees, sales representatives, or other sales agents are not authorized to accept payments.

5. Flötotto may, at its sole discretion, apply incoming payments to claims against the customer existing at the time of payment, whether based on Flötotto’s own rights or assigned rights.

6. The customer’s rights to set off claims against Flötotto’s claims are excluded, unless the counterclaim is based on the customer’s own legal rights and has either been legally established, is due and undisputed, or has been acknowledged in writing by Flötotto.

7. The customer’s rights to withhold payment or to raise defenses are excluded, unless Flötotto has materially breached obligations arising from the same contractual relationship and due for payment despite a written warning and has not offered adequate security.

V. Warranty

1. Without waiving any statutory exclusions or limitations of Flötotto’s liability, the goods are deemed defective if, taking into account the provisions in Sections II.-1, II.-4., and III., or violates mandatory legal requirements. Functional malfunctions or failures of mechanical parts of the delivered goods due to wear and tear, as well as model, design, or material changes that correspond to the latest technical findings and natural variations in structure, color, and grain, do not constitute a material defect. The delivery of used goods is made without any warranty.

2. Unless the written order confirmation expressly states otherwise, Flötotto is not responsible, in particular, for ensuring that the goods are suitable for specific uses or possess characteristics that cannot be expected in light of the price agreed upon for the goods. Flötotto shall not be liable for material defects that arise after the transfer of risk. If the customer attempts to remedy material defects themselves or through third parties without Flötotto’s consent, Flötotto shall be released from its warranty obligation, unless such attempts are carried out properly.

3. Any guarantees or representations requested by the customer must always be specifically identified as such in the written order confirmation, even in the case of follow-up transactions. In particular, catchphrases, references to generally accepted standards, the use of product or quality marks, or the presentation of samples or specimens do not, in and of themselves, constitute the assumption of a guarantee or representation. Flötotto’s employees, sales representatives, or other sales agents are not authorized to make guarantees or representations or to provide information regarding specific uses or the cost-effectiveness of the goods.

4. The customer must inspect each individual delivery immediately and in every respect for any recognizable or typical deviations of a qualitative, quantitative, or other nature, and must notify Flötotto of such deviations immediately in writing, specifying the exact nature and extent of the deviations; otherwise, the delivery shall be deemed accepted. Flötotto’s employees, sales representatives, or other sales agents are not authorized to accept notices of defects or to make warranty statements.

5. Without limiting the customer’s specific recourse options under Section 478 of the German Civil Code (BGB), the customer may, in the event of justified complaints, demand subsequent performance from Flötotto within a reasonable period following notification of a defect, in accordance with statutory provisions. Flötotto is not obligated to bear the costs incurred for subsequent performance to the extent that these are increased as a result of a change of location or other alterations to the goods made after the notice of defect was sent. In the event that subsequent performance ultimately fails, is not possible, or is not carried out within a reasonable time, the customer is entitled, in accordance with statutory provisions, either to withdraw from the contract within a preclusive period of four weeks following the expiration of a deadline set after issuing a warning of rejection, or to reduce the purchase price. Notwithstanding the customer’s legal remedies, Flötotto is always entitled to repair defective goods or deliver a replacement in accordance with the provisions of Section III.-5.

6. Subject to any contrary written commitments and subject to fraudulent concealment by Flötotto, and without limiting the customer’s specific recourse options under § 478 BGB, the customer shall have no further claims arising from the delivery of defective goods. Claims for damages established by law pursuant to the provisions in Section VIII remain unaffected.

7. Subject to recourse under Sections 478 and 479 of the German Civil Code (BGB), any claims by the customer arising from the delivery of defective goods shall become time-barred one year after the statutory limitation period begins. Claims for damages based on intent remain unaffected.

VI. Customer’s Right of Recourse

1. The provisions of Sections 478 and 479 of the German Civil Code (BGB) governing the customer’s right of recourse apply if newly manufactured goods sold by Flötotto are ultimately sold to a consumer by the customer or through the customer’s domestic buyers. These provisions do not apply to used goods, including refurbished goods, and specifically do not apply if the goods sold by Flötotto are processed, combined, mixed, or permanently joined with other items by the customer or its buyers, are regarded by common understanding as an item other than the one sold by Flötotto, or are not acquired by the consumer pursuant to a sales contract.

2. The customer may not invoke Sections 478, 479 of the German Civil Code (BGB) insofar as the customer is responsible for the quality or suitability for use of the goods that are not the subject of the agreements made with Flötotto, or if the customer or its domestic buyers—specifically, in cross-border trade, by excluding the UN Convention on Contracts for the International Sale of Goods—modify the applicability of the relevant statutory provisions.

3. The customer is obligated, prior to each delivery of goods purchased from Flötotto, to inspect them in every respect for recognizable as well as typical deviations of a qualitative, quantitative, or other nature, and, in the event of detected or suspected defects, to refrain from delivering the affected goods to its customers. The scope and results of the inspection must be documented. The customer is further obligated, at the beginning of each calendar quarter, to send Flötotto, unsolicited and free of charge, a detailed list of the goods that the customer has purchased from Flötotto and that are still in the customer’s possession one year after delivery to the customer.

4. Claims asserted by way of recourse are limited in amount to the customer’s own expenses. Furthermore, the customer is only entitled to claims for reimbursement of expenses if the subsequent performance did not result in disproportionate costs.

5. In the event that the customer is entitled, by way of recourse, to rescind the contract, reduce the purchase price, or claim reimbursement of expenses, Flötotto may assign to the customer, in lieu of performance, any warranty claims that Flötotto is entitled to assert against its suppliers due to the same defect. Flötotto is also entitled to offer the customer a lump-sum settlement; if the customer does not object to Flötotto’s settlement offer within 14 calendar days, all of the customer’s claims regarding the reported defect shall be deemed satisfied upon payment of the lump-sum settlement.

VII. Withdrawal

1. In addition to the provision in Section V.-5. the customer is entitled to withdraw from the contract in accordance with the applicable statutory provisions if the services to be performed by Flötotto have become impossible, Flötotto is in default of fulfilling its primary contractual obligations, or has otherwise materially breached obligations arising from this contract, and Flötotto is responsible for the default or breach of obligation pursuant to Section VIII.-1.-c). To establish default, without waiving further statutory requirements, a separate written demand addressed directly to Flötotto immediately after the due date is always required, even in the case of a performance period determined by the calendar, requesting that the performance be carried out within a reasonable period.

2. Without waiving any further statutory rights, Flötotto is entitled to withdraw from the contract without replacement if the customer objects to the validity of these General Terms and Conditions of Sale, if an application is filed to open insolvency proceedings against the customer’s assets, if the customer fails to fulfill, without providing a justifiable reason, material obligations due to Flötotto or to third parties, fails to fulfill material obligations due to Flötotto or to third parties without providing a justifiable reason, if the customer provides inaccurate information regarding their creditworthiness, if Flötotto itself is not supplied correctly or on time through no fault of its own, or if Flötotto can no longer fulfill its performance obligations for other reasons using means that are reasonable, taking into account its own interests and the customer’s legitimate interests recognizable at the time of contract conclusion, as well as, in particular, the agreed consideration.

VIII. Damages

1. Except for liability under the Product Liability Act or for damages resulting from culpable injury to life, limb, or health, Flötotto is obligated to pay damages under this contract and in non-contractual matters—without waiving the statutory requirements—only in accordance with the following provisions. The following provisions also apply in the event of a breach of warranty obligations and in the event of default:
a) Sections 478 and 479 of the German Civil Code (BGB) do not apply to the customer’s claims for damages. Any claim for damages due to the delivery of defective goods is excluded if the defect is not significant.
b) The customer is primarily obligated to accept an offer of subsequent performance in accordance with the provisions of Section III or to exercise warranty remedies in accordance with the provisions of Sections V and VI, and may claim damages only for remaining disadvantages, but in no case in lieu of other remedies.
c) Flötotto shall be liable only in the event of a culpable breach of material obligations or, in the event of an intentional or grossly negligent breach of other obligations owed to the customer.
d) In the event of liability, Flötotto shall, subject to the limits set forth in subparagraph e), compensate the customer for proven damages to the extent that, with respect to the occurrence and amount of the damage, such damages were foreseeable to Flötotto at the time of contract conclusion as a consequence of the breach of duty and were unavoidable for the customer. The customer must notify Flötotto in writing of any special risks, atypical possibilities of damage, and unusual amounts of damage prior to the conclusion of the contract.
e) Flötotto is not liable for lost profits or non-pecuniary damages. Furthermore, the amount of damages for delay is limited to 0.5% for each full week of delay, up to a maximum of 5%, and for other breaches of duty to 200% of the respective value of the service. This paragraph does not apply in cases of gross negligence on the part of the executive bodies or senior executives.
f) Notwithstanding compliance with the statutory provisions and those set forth in these General Terms and Conditions of Sale, the customer may only claim damages in lieu of performance after having additionally threatened Flötotto with rejection of the service and, in the event of non-performance, having definitively rejected the service vis-à-vis Flötotto within a reasonable period following the threat of rejection.
g) The statute of limitations for contractual claims applies equally to the customer’s non-contractual claims against Flötotto that compete with contractual claims. Unless Flötotto is liable for intentional misconduct or the customer’s claim has already expired, a six-month limitation period for bringing actions for damages begins upon the rejection of the claim for damages.
h) The foregoing provisions regarding Flötotto’s liability also apply to the customer’s statutory claims for reimbursement of futile expenses as well as to the personal liability of Flötotto’s employees, workers, staff, representatives, and vicarious agents.

IX. Retention of Title

1. Delivered goods remain the property of Flötotto until all claims of Flötotto against the customer—including principal and ancillary claims, regardless of their legal basis, and including those that will become due in the future—have been settled in full. In the case of an open account, the retention of title applies to the respective balance.

2. While the retention of title is in effect, the customer shall grant Flötotto’s employees access to the goods subject to retention of title at any time during normal business hours. The customer is obligated to insure the goods subject to retention of title against theft, damage, and destruction, and, upon Flötotto’s request, to store the goods separately at their own expense or to demarcate them appropriately, to clearly mark them as the property of Flötotto, and to take all measures necessary to comprehensively secure the retention of title. The customer hereby assigns to Flötotto, by way of security, in full and irrevocably, all claims arising from the insurance policies; Flötotto accepts the assignment.

3. During the term of the retention of title, the Customer shall immediately notify Flötotto in writing if a third party asserts claims or rights to the goods subject to retention of title or to the claims assigned to Flötotto pursuant to the provisions on retention of title, and shall assist Flötotto free of charge in pursuing its interests. If, during the term of the retention of title, a third party acquires rights to the goods subject to retention of title, the customer’s claims against the third party, together with all associated rights, are hereby irrevocably assigned to Flötotto by way of security; Flötotto accepts the assignment.

4. The customer may sell the goods subject to retention of title in the ordinary course of business and only on the condition that the customer is not in default of payment. The customer is not authorized to make any other dispositions (e.g., transfer of ownership by way of security, pledging, etc.). The customer hereby irrevocably assigns to Flötotto, by way of security, in full and irrevocably, all claims against its customers arising from the sale of the goods subject to retention of title, together with all ancillary rights. If the customer incorporates the claims arising from a sale into a current account relationship with its customers, the customer hereby assigns the current account claims resulting after netting to Flötotto by way of security, in full, and irrevocably. Flötotto accepts the assignments.

5. The Customer remains authorized to collect claims assigned to Flötotto on a fiduciary basis for Flötotto’s benefit, provided the Customer is not in default of payment. The customer is not authorized to assign the receivables to third parties. The customer must keep incoming payments separate and forward them to Flötotto without delay until the secured receivables have been fully settled by Flötotto. If payment is made by bank transfer to the customer’s financial institution, the customer hereby irrevocably assigns to Flötotto the claims against his financial institution arising therefrom. If the customer receives bills of exchange from third parties to settle the claims, he hereby irrevocably assigns to Flötotto the claims against the financial institution arising in the event of discounting the bill of exchange.

6. The processing and treatment of the goods is carried out for Flötotto as the manufacturer within the meaning of § 950 BGB, without any liabilities arising for Flötotto as a result. In the event of combination or mixing with other goods, Flötotto is entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If the delivered goods are mixed, blended, or combined with other items in such a way that Flötotto’s ownership expires by operation of law, the customer hereby transfers to Flötotto its ownership or co-ownership rights in the new item and shall hold it in trust for Flötotto free of charge.

7. If necessary, the customer shall inquire as to the extent to which the goods are still subject to retention of title. Flötotto is not obligated to quantify the extent of the retention of title upon payment without being requested to do so. If goods subject to retention of title that have not yet been paid for in full are in the customer’s custody, Flötotto shall release the goods at the customer’s request, provided that the invoice value of the goods exceeds the total of outstanding claims by more than 20% and no rights of separation in favor of Flötotto exist with respect to the goods. The same applies if claims against third parties have replaced the goods subject to retention of title and Flötotto asserts these claims in its own name. Furthermore, upon the customer’s request, Flötotto shall provide

X. Miscellaneous Provisions

1. The written form requirement does not necessitate either a handwritten signature or an electronic signature. Notices sent by fax or email satisfy the written form requirement, as do other forms of text, without the conclusion of the declaration needing to be specifically marked as such.

2. Data regarding the customer obtained in connection with the business relationship is processed by Flötotto in accordance with the Federal Data Protection Act.

3. Without Flötotto waiving any further claims, the customer fully indemnifies Flötotto against all claims by third parties arising from product liability or similar provisions, provided that liability is based on circumstances such as the presentation of the product by the customer or other third parties without Flötotto’s express written consent. This indemnification specifically includes reimbursement of expenses incurred by Flötotto and is agreed to by the customer without any further conditions or other objections, in particular without requiring compliance with monitoring and recall obligations and without raising the defense of the statute of limitations.

4. Flötotto reserves all ownership rights, copyrights, other industrial property rights, and rights arising from know-how with respect to illustrations, drawings, calculations, and other documents provided by Flötotto in physical or electronic form, as well as with respect to software. These must be kept confidential from third parties and may be used exclusively for the performance of the respective order.

5. Notwithstanding any further statutory provisions, the suspension of the statute of limitations shall also end if the negotiations suspending it are not continued on the merits for more than four weeks. A restart of the statute of limitations for the customer’s claims requires, in any case, an express written confirmation from Flötotto.

XI. General Terms and Conditions

1. The place of performance, payment, and fulfillment for all obligations arising from the legal relationship between Flötotto and the customer is Gütersloh. This provision also applies if Flötotto performs services for the customer at another location or if services already rendered are to be rescinded. Agreements regarding the allocation of costs do not constitute a modification of the above rule regarding the place of fulfillment.

2. German law and the customs applicable in Gütersloh shall apply exclusively to the contractual and non-contractual legal relationships with the customer.

3. All contractual and non-contractual disputes arising from or in connection with contracts to which these General Terms and Conditions of Sale for the Purchase of Consumer Goods apply shall be finally decided in accordance with the Rules of Arbitration of the German Institution of Arbitration

4. (DIS), to the exclusion of ordinary legal recourse. The arbitral tribunal shall consist of three arbitrators and, in disputes with a value in dispute of less than €5,000, of a single arbitrator. The place of arbitration is Hanover, and the language of the proceedings is German. However, Flötotto is entitled, in individual cases, to bring an action before the courts with jurisdiction over Gütersloh, the state courts at the customer’s place of business, or other courts with jurisdiction under the law.

5. Should any provisions of these General Terms and Conditions of Sale be or become invalid in whole or in part, the remaining provisions shall remain valid. The parties are obligated to replace the invalid provision with a legally valid provision that most closely approximates the economic intent and purpose of the invalid provision.

As of July 2019

Flötotto Einrichtungssysteme GmbH
An der Manufaktur 4
33334 Gütersloh
Germany

T +49 (0)5241 50474 0
info@floetotto.com