General Terms of Business of REDGALLERY GmbH
The following terms and conditions shall apply exclusively for all performance and deliveries, including all contracts, the object of which is the provision to the Contract Partner by REDGALLERY GmbH, in the following called REDGALLERY. Business and purchasing terms issued by the Contract Partner shall not be applicable; REDGALLERY shall only be obliged to heed such terms if they expressly agree to them in a written declaration. Offers by REDGALLERY shall be subject to alteration. REDGALLERY reserves the right of slight deviation.
Unless otherwise agreed to in writing the prices stated in the respective offer shall apply. Invoice amounts will be due for payment immediately upon the receipt of invoice, with no deductions made. The costs incurred for foreign bank transfers, are to be paid by the account holder. Commercial transactions among merchants preclude any right for the Contract Partner to reject performance. The Contract Partner may not exercise any right of retention. This rule does not apply in commercial transactions with non-merchants insofar as the counterclaim in question arises out of the same contract. The Contract Partner shall only be permitted to offset any claims if its counterclaims have been expressly declared to be undisputed or recognised by declaratory judgement. Should the Contract Partner be in default of payment, REDGALLERY is entitled to charge interests on arrears from the date in question in the amount of at least 5 % above the respective valid base rate of interest of the Deutsche Bundesbank or, if proof is furnished, the higher rate of debtor interest which REDGALLERY is obliged to pay to the bank.
If the Contract Partner should unjustifiably withdraw from a contract, REDGALLERY may charge 10 % of the sales price to cover the costs incurred for processing of the assignment and for lost profits. If REDGALLERY furnish proof of the fact that the damage it sustained is greater or if the Contract Partner should furnish proof of the fact that the damage sustained is lower or even that no damage whatsoever was incurred, the damage compensation charged will be higher or lower, respectively.
Delivery shall transpire on the agreed-to delivery date. Partial deliveries shall be permissible. In the event that a delivery should become overdue, the Contract Partner shall have the right to withdraw from contract or from the non-completed part of the deal, provided he has previously set and allowed for a reasonable period of grace. The rights of REDGALLERY resulting of a default by the Contract Partner notwithstanding, the agreed-to delivery date shall be extended by a period equivalent to the period which the Contract Partner is in default of its obligations as set out in this contractual deal or another. If the Contract Partner is entitled to compensation for damage caused by default and if such damage was caused by slight negligence on the part of REDGALLERY, such compensation shall be limited to a maximum of 5 % of the agreed-to purchase price. These Terms and Conditions preclude the assertion of claims for damage compensation versus performance in the event of slight negligence on the part of REDGALLERY. Cases of force majeure shall entitle REDGALLERY to postpone delivery by the period of impediment plus a reasonable period of commencement or to withdraw from the part of the contract which has not yet been fulfilled. Strikes, lockouts and other circumstances which make it substantially more difficult or otherwise impossible for REDGALLERY to render delivery - irrespective of whether such circumstances ensue at REDGALLERY or at a REDGALLERY contract partner such as any carrier- shall constitute incidents of force majeure.
Risk shall be devolved upon the Contract Partner at the time of acceptance of the item of purchase. Should the Contract Partner declare refusal to accept the item of purchase, the risk of accidental loss or accidental deterioration of the item of purchase within the time of acceptance refusal will be devolved upon the Contract Partner. For the time of storage, the Contract Partner shall bear the costs for default interest as well as the storage leasing charges. Storage fees will be charged in accordance with the respective rates charged by the shipping and warehousing industry. If goods require shipment, REDGALLERY shall have the right to choose the means and the route of shipment under exclusion of any liability. At all events, shipments are for the account of the Contract Partner, unless other terms and conditions have been agreed upon. Once the goods have been handed over to the shipping agent or carrier, no later, however, than at the time the goods leave the warehouse, all risk shall be devolved upon the Contract Partner. Should shipment be delayed at no fault of REDGALLERY, the goods will be stored at the cost and risk of the Contract Partner. In such event notification issued by REDGALLERY that the goods are ready for shipment will be deemed to constitute actual shipment.
REDGALLERY shall retain ownership of all delivered goods until such time as all claims by REDGALLERY arising out of the business relationship have been paid in full, irrespective of any payments rendered for specifically declared claims. REDGALLERY agree to release the securities to which they are entitled should the Contract Partner request it to, insofar as the value of such securities should exceed the value of the claims to be secured by more than 20 % - and to the extent that such claims have not been settled. If the Contract Partner violates the contract, in particular by delays in payment, REDGALLERY shall have the right to effectuate repossession subsequent to issuing a reminder notice, and the Contract Partner shall be obliged to surrender possession. Assertion of the right of retention and the seizure of delivered goods by REDGALLERY shall not constitute a withdrawal from contract unless such is expressly declared by REDGALLERY in written form.
The Contract Partner shall be under obligation to accept the item of purchase within 14 days of receiving the supply notice. In the event that acceptance is refused, REDGALLERY may exercise their legal rights. Should REDGALLERY demand compensation for damage, such compensation will amount to 15 % of the purchase price. A higher amount of compensation for damage shall be set if REDGALLERY furnish proof of a higher amount of damage; a lower amount of compensation for damage shall be set if the Contract Partner furnishes proof that a lesser amount of damage or even no damage at all was incurred.
Claims by the Contract Partner for material defects shall come under the statute of limitations at the end of one year after delivery of the item of purchase. All other claims shall remain unaffected if REDGALLERY should be under legal obligation of liability or if agreement stating otherwise should have been entered into, most notably in the event of the acceptance of a guarantee. The Contract Partner shall be obliged to assert vis-à-vis REDGALLERY any claims on the grounds of material defect.
Should legal provisions oblige REDGALLERY to accept responsibility for damage as a result of slight negligence, REDGALLERY shall have limited liability: Liability shall exist only in the event that essential contract obligations are violated, e.g. obligations which the contract wishes to impose upon REDGALLERY in accordance with its content and purpose or the fulfilment of which obligations serve to make the correct and proper execution of the contract possible in the first place and on the compliance with which the Contract Partner relies and may place his trust. Such liability shall be limited to the typical kind of damage foreseeable at the time of contract closure. Should the damage be covered by insurance taken out by the Contract Partner to cover the incidence of just such a case of damage (excepting the insurance of fixed sums), REDGALLERY shall be liable only for any detriment caused to the Contract Partner, e.g. a raising of the insurance premium or interest charges levied on it until such time as the insurance company has finalised claim settlement. Any liability on the part of REDGALLERY on the grounds of the fraudulent concealment of a defect, arising out of the acceptance of a guarantee or a procurement risk or in accordance with the law on product liability shall remain unaffected by whether or not blame is actually attributable to REDGALLERY. Liability on the grounds of a delay in is conclusively laid out in Section 4 on "Deliveries", above. These Terms and Conditions preclude any personal liability by legal representatives, vicarious agents or members of staff of REDGALLERY for damage they cause as a result of slight negligence. The liability limitation which applies to REDGALLERY in the event of damage as a result of gross negligence shall apply accordingly to the said individuals, excepting the legal representatives of REDGALLERY and its executive employees. The liability limitations outlined in this Section shall not apply in the event of injury to life, body or health.
Without the written consent of the Contract Partner, REDGALLERY shall not be permitted to utilise for their own purposes or to pass on to third parties any business or assignment-related facts of which they gain knowledge in the course of the execution of contract. REDGALLERY shall be authorised within the scope of the contract purpose to process data relating to natural persons, with which data they had been entrusted, or to commission third parties to process such data, in compliance with data-protection provisions (§§ 28, 33 BDSG).
The law of the Federal Republic of Germany is valid with the exception of the UN law of purchase even if the Contract Partner should be headquartered outside of Germany. Transference of the Contract Partner's rights and obligations as arise out of the contract it has entered into with REDGALLERY shall require the written consent of REDGALLERY. Changes and supplementations to these Terms and Conditions shall require the written form to be valid. This rule applies likewise for cancellation of the requirement for the written form. No verbal collateral agreements exist. Should any of the provisions contained in these Terms and Conditions be legally invalid or contain loopholes, the validity of the remainder of the provisions shall remain unaffected by this circumstance.
For both Contract Parties the place of fulfilment shall be Hamburg and the court of jurisdiction shall be the court in Hamburg.