General Terms and Conditions of Destinyincofficial UG (haftungsbeschränkt)
1. General / Scope of Application
1.1 These terms and conditions apply to all current and future business relationships.
1.2 For the purposes of these terms and conditions, a consumer is any natural person who enters into a business relationship without this relationship being attributable to their commercial or independent professional activity. A business customer, for the purposes of these terms and conditions, is any natural or legal person or partnership with legal capacity who enters into a business relationship and is acting in the course of their commercial or independent professional activity. The term "customer," for the purposes of these terms and conditions, refers to both consumers and business customers.
1.3 Deviating, conflicting, or supplementary terms and conditions, even if known to us, shall not become part of the contract unless their validity is expressly agreed to in writing.
1.4 The customer may neither assign nor pledge contractual rights.
1.5 The laws of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
2. Conclusion of Contract / Delivery
2.1 Our offers are non-binding. We reserve the right to make reasonable changes in form, color, and/or weight.
2.2 By ordering goods, the customer makes a binding declaration of intent to purchase the ordered goods. We are entitled to accept the contractual offer contained in the order in writing within two weeks of its receipt. Acceptance may be declared either by written confirmation or by delivery of the goods to the customer.
2.3 If the customer orders the goods electronically, we will confirm receipt of the order without undue delay. This confirmation of receipt does not yet constitute a binding acceptance of the order. The confirmation of receipt may be combined with the declaration of acceptance.
2.4 The conclusion of the contract is subject to the correct and timely delivery to us by our suppliers. This applies only if the non-delivery is not our fault, in particular if we have concluded a congruent covering transaction with our supplier. Events of force majeure, such as strikes, plant shutdowns, operational disruptions, shortages of wagons or containers, railway closures, difficulties in quarrying operations, as well as in the procurement of necessary raw materials and other unforeseen circumstances, release us from our delivery obligations. Stated delivery times are approximate only and commence only after final written confirmation of the order. The customer will be informed immediately of the unavailability of the service. Payment will be refunded immediately.
2.5 If the consumer orders the goods electronically, the contract text will be stored by us and sent to the customer upon request, along with these Terms and Conditions, via email.
2.6 Our deliveries are made freight collect at the buyer's expense and risk, without liability for breakage, theft, and the like. The same applies to deliveries made carriage paid. In particular, the risk of breakage is not included. The statement in the waybills: "Defectively packaged" is required by the railway authorities and does not make us liable for breakage damage.
2.7 The costs of packaging and any transport insurance requested by the buyer are borne by the buyer.
2.8 Orders based on plans and sketches must include the exact quantity and size of the desired panels. Without this information, no liability is assumed for their accuracy.
3. Price and Payment
3.1 Our prices are based on the cost conditions at the time the order is placed.
3.2 All prices are ex works or ex warehouse.
3.3 As a general rule, our invoices are before the goods are shipped from our warehouse. Exceptions require a written agreement.
3.4 If, after conclusion of the contract, circumstances become known to us that justify doubts about the customer's creditworthiness, we may withdraw from the contract, demand prepayment, or make our delivery contingent upon a security deposit. This also applies if outstanding invoices remain unpaid despite reminders.
3.5 The customer may only offset undisputed or legally established counterclaims. The customer may only withhold payments for reasons arising from the same contractual relationship.
4. Default of Payment
4.1 In the event of default of payment by the customer, all our outstanding claims against the customer become immediately due and payable in cash. The customer may no longer sell goods owned or co-owned by us and is obligated to provide us with security. The authorization to collect claims assigned to us expires.
4.2 The customer undertakes to pay the purchase price before the goods leave our warehouse. After this period, the customer is in default of payment. During the period of default, consumers are required to pay interest on the outstanding amount at a rate of 5% above the base interest rate. Businesses are required to pay interest on the outstanding amount at a rate of 8% above the base interest rate. We reserve the right to prove and claim higher damages for default against businesses.
5. Warranty
5.1 Jura marble, colored marble, granite, and Solnhofen limestone slabs: Samples, colors, material properties, etc., only show the general appearance of the stone. Hand samples can never encompass all the characteristics and variations in color, pattern, structure, and texture of the natural stone. Natural variations in color, cloudiness, veining, etc., arising from the nature of the marble, as well as natural defects such as pores, open areas, inclusions, cracks, quartz veins, etc., do not diminish the natural value of the stone. Absolute frost resistance cannot be guaranteed. When working with colored marble, proper filling, the disassembly of parts in loose veins and grooves and their reassembly, furthermore the reinforcement by underlying, solid slabs (doubling), as well as the application of clamps, dowels, and inlays, depending on the nature and characteristics of the marble types in question, are not only unavoidable but also an essential requirement of the processing.
5.2 If the buyer is a business, we will initially provide a remedy for defects in the goods at our discretion, either by repair or replacement. If the buyer is a consumer, they initially have the choice of whether the remedy should be repair or replacement. However, we are entitled to refuse the chosen remedy if it is only possible at disproportionate cost and another type of remedy remains available without significant disadvantages for the consumer. If the remedy fails, the customer may, in principle, demand a reduction in price or cancellation of the contract. However, in the case of only a minor breach of contract, in particular only minor defects, the customer is not entitled to cancellation. Valid from March 1, 2020.
5.3 Businesses must notify us of obvious defects immediately upon discovery and in writing; otherwise, the assertion of warranty claims is excluded. Timely dispatch is sufficient to meet the deadline. The entrepreneur bears the full burden of proof for all prerequisites for a claim, in particular for the defect itself, the time of its discovery, and the timeliness of the notification of the defect. Consumers must notify us in writing of any obvious defects within two months of discovering the non-conformity of the goods. The date of receipt of the notification by us is decisive for compliance with this deadline. If the consumer fails to provide this notification, the warranty rights expire two months after the consumer's discovery of the defect. This does not apply in cases of fraudulent concealment by the seller. The burden of proof for the date of discovery of the defect lies with the consumer. If the consumer was induced to purchase the item by inaccurate statements from the manufacturer, the burden of proof for their purchase decision lies with the consumer. In the case of used goods, the burden of proof for the defectiveness of the item lies with the consumer. If the customer installs materials supplied by us despite recognizable defects, all warranty claims are void.
5.4 If, due to a legal or material defect, the customer chooses to withdraw from the contract after failed subsequent performance, they are not entitled to any additional claim for damages due to the defect. If, after failed subsequent performance, the customer chooses to claim damages, the goods remain with the customer if this is reasonable for them. The damages are limited to the difference between the purchase price and the value of the defective item. This does not apply if we have caused the breach of contract fraudulently.
5.5 For businesses, the warranty period is one year from delivery of the goods. For consumers, the limitation period is two years from delivery of the goods. For used goods, the limitation period is one year from delivery. This does not apply if the customer has not notified us of the defect in a timely manner (section 5.3 of these terms and conditions).
5.6 If the buyer is a business, only the manufacturer's product description is considered the agreed-upon condition of the goods. Public statements, advertisements, or promotional materials from the manufacturer do not constitute a contractual specification of the goods' condition.
5.7 If damage is discovered upon arrival of the shipment, the recipient must have it immediately confirmed on the waybill. For shipments by truck, a report must be drawn up detailing the extent of the damage. This report must be signed by the driver. Any compensation claims are governed by the terms and conditions of our insurance company.
5.8 In the event of late payment or credit default, we may refuse warranty until the customer fulfills their payment obligation to the extent corresponding to the value of our delivery less any reduction in the purchase price due to existing defects.
5.9 No warranty is provided for damage resulting from the following causes: unsuitable or improper use, faulty installation by the customer or third parties, natural wear and tear, faulty or negligent handling, defective construction work or unsuitable building ground, unless such damage is attributable to our fault.
5.10 For damage not caused to the delivered item itself, we are liable – regardless of the legal basis – only in cases of intent, gross negligence on the part of the owner, its officers or senior employees, culpable injury to life, body or health, defects that were fraudulently concealed or whose absence was guaranteed, and defects in the delivered item insofar as liability exists under the Product Liability Act for personal injury or property damage to privately used items. In the event of a culpable breach of essential contractual obligations, we shall also be liable for gross negligence on the part of non-managerial employees and for ordinary negligence, in the latter case, however, limited to the typical, reasonably foreseeable damage. Further claims are excluded.
6. Retention of Title
6.1 In contracts with consumers, we retain title to the goods until full payment of the purchase price. In contracts with businesses, we retain title to the goods until all claims arising from the ongoing business relationship have been settled in full.
6.2 The customer is obligated to handle the goods with care. If maintenance and inspection work is required, the customer must carry this out regularly at their own expense.
6.3 The customer is obligated to inform us immediately of any third-party access to the goods, such as in the event of seizure, as well as any damage to or destruction of the goods. The customer must also notify us immediately of any change of possession of the goods or any change of their own residence.
6.4 We are entitled to withdraw from the contract and demand the return of the goods if the customer breaches the contract, in particular in the event of default of payment or a breach of any obligation under clauses 3) and 4) of these terms and conditions.
6.5 The customer is entitled to resell the goods in the ordinary course of business. They hereby assign to us all claims against third parties arising from such resale up to the amount of the invoice. We accept this assignment. After the assignment, the customer is authorized to collect the receivables. We reserve the right to collect the outstanding amount ourselves if the contractor fails to meet their payment obligations and falls into arrears.
6.6 The processing and handling of the goods by the contractor is always carried out in our name and on our behalf. If processing is carried out with items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the goods we supplied relative to the other processed items. The same applies if the goods are mixed with other items not belonging to us.
6.7 Insofar as the customer's purchase price claims are entered into a current account, the customer assigns to us any balance claim to which they are entitled in the same manner.
7. Contracts for Work and Supply of Work
7.1 For contracts for work and supply of work with contractors involving services on buildings, the provisions of VOB/Part B, in their latest version, shall apply in addition to these terms and conditions.
8. Place of Performance and Jurisdiction
8.1 If the customer is a merchant, a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract is the court responsible for our registered office. The same applies if the customer has no general place of jurisdiction in Germany or if their domicile or habitual residence is unknown at the time the action is brought.
8.2 Should individual provisions of the contract with the customer, including these General Terms and Conditions, be or become wholly or partially invalid, the validity of the remaining provisions shall not be affected. The wholly or partially invalid provision shall be replaced by a provision whose economic effect comes as close as possible to that of the invalid provision.
9. Data Protection Clause
9.1 Our business partners undertake not to disclose data arising in the course of the business relationship to unauthorized third parties, and to protect and store this data securely against access and misuse by unauthorized persons.