Any deliveries made and performances rendered by 141 Restorations subject to these terms and conditions and terms of payment and the agreement entered into by 141 Restorations and the customer. 141 Restorations T&Cs apply exclusively; T&Cs of the customer which are inconsistent with these T&Cs or which deviate from them are hereby expressly excluded by Fischer Panda GmbH, except where 141 Restorations has expressly agreed to them in writing. These Fischer Panda GmbH T&Cs also apply if 141 Restorations unconditionally renders performance despite having had knowledge of conflicting or deviating T&Cs issued by the customer.
Orders placed by the customer represent binding offers, which 141 Restorations may accept within one week by way of order confirmation or by way of performing the order. All offers made by 141 Restorations non-binding, except where they have been expressly specified as binding.
Offer-related documentation such as images, drawings, indications of weight and dimensions are approximates, except where these have been expressly specified as binding.
141 Restorations reserves all proprietary and intellectual property rights in any cost estimates, drawings and other documentation; these must not be disclosed to third parties. 141 Restorations undertakes not to disclose to third parties any schemes and plans which have been designated as confidential by the customer without the customer’s prior consent.Where construction-related documentation has been prepared on behalf of or at the request of the customer, it will be invoiced separately. This shall apply even where no order is subsequently placed.
Samples, models, drawings or data carriers provided by the customer will only be returned upon the request and at the expense of the customer. In cases in which no subsequent order is placed, and no such request for return is made in due course, 141 Restorations is entitled to destroy such samples, models and drawings within one month of making the offer, without being liable for any claims for damages.
Our T&Cs apply equally to consumers and businesses “Unternehmer”, as defined by the German Commercial Code”], except in relation to clauses in which a distinction is made between these entities.
Pricing and Payment
The purchase price set out in an offer is binding. Prices quoted to consumers include the statutory rate of VAT.
With regard to customers that are businesses, prices – if not agreed otherwise – are ex works including loading at the works, but excluding shipping costs, costs of packaging and VAT at the statutory rate.
Where no specific agreement has been made, invoices shall be paid in advance and without any deductions. Payment in good time shall be adjudicated on the basis of the date of receipt onto one of the bank accounts designated on the invoice. Submission of a cheque will not constitute payment on time, and will only be considered as a component part of performance. Bills of exchange will not be accepted.
In the case of individual deliveries that have been constructed in accordance with customer specifications, advance payments shall be agreed individually.
If the customer is in arrears with a payment, 141 Restorations is entitled to declare that all amounts owed to it are due for payment at once, without taking account of due dates otherwise agreed, and to refuse any further performances and/or deliveries as long as these payments have not been made in full. Moreover, 141 Restorations may claim the statutory rate of interest on all late payments. If 141 Restorations provides evidence of damages as a result of delayed payment over and above the reate of interest, 141 Restorations is entitled to claim the respective damages, unless the customer proves that 141 Restorations did not suffer any or only suffered less damage as a result of late payment.
A right to a set-off may only be invoked by the customer if the respective counter-claims have been bindingly ascertained at a court of law, are undisputed or admitted by Fischer Panda GmbH. If the customer is a business, it may only assert rights of retention, if the respective counter-claim stems from the same contract, is undisputed or has been bindingly ascertained at a court of law.
The term of delivery commences on confirmation of an order, not however before the customer has delivered all documentation, approvals and releases and clarified all technical issues, and not prior to receipt of any advance payments due.
The delivery deadline is deemed to have been complied with if the delivery item has left the works by the deadline or if notification has been given that it is ready for shipping. Where an acceptance procedure is required, the date of acceptance shall – except in cases in which refusal of acceptance is justified – be decisive, or the date of notification that the acceptance procedure can be carried out. Compliance with the delivery deadline is conditional upon correct and timely supply of 141 Restorations itself. 141 Restorations has the right to rescind the contract if 141 Restorations does not receive the delivery item on time, despite having entered into a corresponding purchase agreement in good time. 141 Restorations will notify the customer of any impending delays or non-deliveries and will reimburse any consideration received in the case of rescission.
The delivery deadline shall be reasonably extended in the event of industrial action, in particular strikes and lockouts, and in the case of occurrence of unexpected hindrances which fall outside the sphere of influence of Fischer Panda GmbH, insofar as such hindrances affect the manufacture and/or delivery of delivery items. The same applies where such circumstances occur in relation to the suppliers of Fischer Panda GmbH. The circumstances described above shall also be deemed not to be within the sphere of influence of 141 Restorations if they occur during a delay that had already begun. 141 Restorations will notify the customer of commencement and ending of such hindrances as quickly as possible.
If 141 Restorations is in default, the customer must grant 141 Restorations a reasonable grace period for specific performance. If delivery is not made by expiry of the grace period, the customer is entitled to rescind the contract and claim damages in accordance with Section 8 below.
Where shipping is delayed at the request of the customer, the customer shall be invoiced, commencing one month subsequent to notification of readiness for shipping, for the costs of storage in the works of Fischer Panda GmbH, which amount shall be no less than 1% of the invoice value of each given month. Following the grant and expiry of a reasonable grace period, 141 Restorations is entitled to dispose of the delivery item.
Compliance with the delivery deadline requires the timely and orderly performance by the customer of all his/its duties. 141 Restorations reserves the right to claim lack of performance of contract.