Preamble

BHS tabletop AG (hereinafter referred to as User) is committed to the principles of Compliance and Corporate Governance and expects a corresponding commitment from all of its business partners (hereinafter referred to as Customers). To this extent, BHS reserves the right to enter into binding agreements in its contracts in this respect.

1. Application

a) These General Terms and Conditions (hereinafter referred to as GTC) apply to every legal transaction in which the User is involved. Any GTC of the Customer are hereby rejected with immediate effect and for the future in their entirety. This rejection shall be interpreted within the meaning of a complete protective clause.

b) These GTC apply only to merchants (Kaufleute) as defined by law (German Commercial Code, HGB).

2. Quotation documents, order and release from liability

a) Quotations by the User develop no legal binding, but are always free of commitment. Liability for any errors in sales brochures, price lists, quotations and other documents is expressly excluded.

b) If production takes place on the basis of an individual Customer request, the Customer shall release the User from all clai by third parties with respect to the infringement of industrial property rights, registered designs, patents, brands and copyright that are attributable to specifications of the Customer regarding shapes, decors and logos or other specifications. On request by the User, the Customer shall provide evidence of ownership or corresponding user rights. Furthermore, the Customer shall give notice of the existence of any rights of third parties prior to entering into the contract.

c) Any contract shall not enter into effect without written confirmation by the User.

3. Purchase price, costs and compensation for work

a) Purchase price, costs and compensation for work is comprised of the net amount and the currently applicable statutory value added tax. b) All prices stated by the User are on an „ex works“ basis (Incoterms 2020) exclusively of packaging, insurance, transport costs, import duty, consular fees and other charges.

4. Terms and conditions of payment, default, damages, set-off

a) The Customer shall pay, before statutory arrear occurs, the invoice total net.

b) The relevant date with regard to payment deadlines is receipt of payment, i.e. payment has been credited to a BHS account.

c) The interest on arrears will be charged in the maximum legally permitted amount (actually 9 % above the base interest rate charged by the European Central Bank). Additionally a lump sum of 40€ for costs becomes due.

d) 12 % of the agreed prices will be charged for damages for non-performance (blanket damages) if the Customer fails to prove that the loss was lower or no loss occurred. The User reserves the right to prove a higher loss. The blanket damages shall also become due if the Customer delays acceptance.

e) Rights of set-off in favor of the Customer shall exist only if counterclaims are established with legal effect, are uncontested and accepted by the User.

f) If the Customer is in default of due payment, the User may immediately demand payment of all deliveries under the contract, either underway or still outstanding.

5. Range of merchandise

a) The subject matter of the contract is merchandise.

b) Any work performed by the User is restricted exclusively to the design, manufacture and subsequent presentation of finished merchandise samples individually designed, manufactured and presented at the instigation of the Customer or on the basis of Customer samples. With confirmation of acceptance or an initiated order of the presented merchandise sample, the performance shall be deemed to have been accepted. The actual deliveries of merchandise are subject exclusively to sales law.

6. Deliveries of merchandise

a) Partial deliveries are permissible.

b) The transfer of risk applies always „ex works,“ regardless of who performs, initiates or is liable for the transport. If the Customer collects the merchandise, the risk is transferred to the Customer upon transmission of the collection notification.

c) In the instances listed below the User reserves the right to charge a fee: • For initial orders of individual décors or logos below 400 pieces costs for lithos and set-up will be charged in the amount of 300€. • For reorders of individual décors or logos there is a minimum order quantity of 50 pieces. For reorders below 100 pieces, an extra charge of 25 € for small quantities will be invoiced. • For orders with a total value up to 75 € a handling fee in the amount of 9,90 € will be charged. • For authorized returns a handling fee of 10 % of the value of goods or a minimum of 25 € will be charged.

d) In respect of tableware with decors and logos the User reserves the right to increase or reduce the delivery by up to 10 % per article for production reasons.

e) In the event of force majeure, impediments to performance and similar events for which the User is not responsible, the User is entitled to apply an appropriate period to the delivery date according to the duration of the impediment to delivery, but no longer than six weeks. After said extension has elapsed, the User and Customer are entitled to withdraw from the contract. Reciprocal claims do not apply in this case. 

7. Retention of title

a) All deliveries of merchandise by the User shall remain in the ownership of the User until the complete payment of the purchase price, including other claims arising from the business relationship. The parties also agree to extended retention of title.

b) Merchandise of the User may not be further processed by the Customer without permission (e.g. decorations).

c) A claim by the Customer from the resale of merchandise is assigned with all ancillary rights (blanket assignment) with immediate effect. The User accepts the assignment. The coverage limit of the assigned receivables amounts to 110 % of the value of the retained merchandise sold or delivered. The release entitlement is derived from the legal nature of the security agreement. The release entitlement incurred is limited to 150 % of the relevant estimated value at the time of the release request.

d) The Customer is authorized to collect the receivable assigned in advance. The collection authority of the User will, however, be unaffected by the collection authorization of the Customer. The User will not collect the receivable itself as long as the Customer meets his payment obligations duly and timely. At the request of the User, the Customer will give the User the name of the debtor owing the assigned receivable by means of customer lists in which the address, the liability of the debtor and the merchandise sold are stated, provide the User with the information required to assert the User‘s rights and hand over the corresponding documents. The Customer will notify the third party debtors of the assignment; the same applies in the event of insolvency. Amounts that are collected in respect of the receivables thus assigned will be separated by the Customer from his other income and passed on to the User until the User‘s claims have been satisfied.

e) The User is entitled to notify the Customer‘s customers of the assignment. Such notification shall then be deemed to constitute revocation of the collection authorization.

f) In the current account relationship the merchandise for which title has been retained and the blanket assignment shall be deemed as security for the outstanding balance. g) If the merchandise is processed or mixed, the conditional vendor shall acquire corresponding co-ownership.

8. Warranty

a) The Customer must inspect the merchandise within the meaning of § 377 HGB (German Commercial Code) and immediately report any defects. The notice of defects must be submitted no later than within 3 working days. A notice of defects after resale, use, processing, combining or mixing is excluded.

b) The Customer may not demand the customary warranty rights until an attempt to remedy the defect has failed or a replacement delivery (at the User‘s discretion) have failed.

c) The User is liable in principle only for willful intent and gross negligence; if another material contractual duty is breached, the User is also liable for simple negligence.

9. Proprietary rights, industrial property rights

a) The User‘s products are protected by proprietary or other trademark rights. Imitations, alterations or processing are prohibited.

b) With respect to individual designs, the Customer is not entitled to use them in conjunction with parts of porcelain or affix them to parts of the porcelain that do not originate with the User. In the event of an infringement, the Customer is required to pay liquidated damages in the amount of 50.000 € and to compensate the User for any damage that the User incurs or will incur as a result of the infringement.

10. Place of performance, legal venue, severability

a) The place of performance for deliveries is always the location where the merchandise is shipped. The place of performance for all obligations of the Customer is the registered office of the User.

b) The legal venue Hof/Saale is expressly agreed between the parties (§ 38 ZPO, German Code of Civil Court procedures); this also applies to actions on bills of exchange and checks. Additionally, the parties agree on the value of German Law with the exception of the regulations of the international Sales of Goods (CISG).

c) If any clause of these terms and conditions are or become invalid in its entirety or in part, this shall not affect the validity of the remaining clauses or the other parts of such clauses.

d) Any agreements deviating from the above GTC require express agreement and the written form to be legally effective.