AGB Interior Gallery GmbH

Limmatstrasse 256 CH 8005 Zürich

Status September 2024

General provisions / scope of application

Our General Terms and Conditions (GTC) apply exclusively. We do not recognise any terms and conditions of the customer that conflict with or deviate from our GTC unless we have expressly agreed to their validity in writing. Our General Terms and Conditions shall also apply if we carry out the delivery and/or service to the customer without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from our General Terms and Conditions.
All agreements made between us and the customer for the purpose of executing this contract must be set out in writing in this contract.
Should terms and conditions deviating from these terms and conditions be agreed for an order, these terms and conditions shall be subordinate and agreed as a supplement.
Our GTC shall also apply to all future transactions with the customer.

II. Offers and contracts

Our offers are always subject to change. The services rendered by us for the preparation of an offer can be charged to the customer if this has been agreed in individual cases.
Conclusions of contracts and other agreements, in particular if they are made verbally, by telephone, electronically in text form (e-mail etc.), shall only become binding upon our written confirmation.
The information in brochures, catalogues, advertisements, price lists or the information in the documents belonging to the offer are non-binding unless they are expressly declared to be binding in the order confirmation. This applies in particular to illustrations, dimensions, descriptions and packaging units. We expressly reserve the right to make changes.
We reserve all property rights and copyrights to cost estimates, drawings, illustrations, drafts, calculations and other documents. Such documents may not be used, reproduced or made accessible to third parties by the customer without our prior written consent. They must be returned to us immediately if a contract is not concluded.
We reserve the right to a quantity tolerance of +/- 10% for the delivery of drawing parts.

III. Delivery time / delay

The delivery date and the delivery periods are always non-binding, unless a delivery period or a delivery date has been bindingly agreed.
Compliance with deadlines and dates for deliveries and services requires the timely receipt of all information to be provided by the customer for the execution of the contract, including documents, necessary authorisations and releases, plans, binding information from the customer regarding the condition of the construction site and other specifications, compliance with the terms of payment, in particular a due advance payment and other obligations by the customer. If these aforementioned obligations are not fulfilled on time or in full by the customer, the delivery dates and delivery periods shall be extended accordingly; this shall not apply if we are responsible for the delay.
The customer may request us to deliver six weeks after exceeding a non-binding delivery time or a non-binding delivery period. We shall be in default upon receipt of the customer's request and compliance with all obligations incumbent on the customer pursuant to clause 2, sentence 1. If the customer is entitled to compensation for damage caused by delay, this shall be limited to a maximum of 5% of the agreed purchase price in the event of slight negligence on our part.
The delivery periods or delivery dates that have been agreed as binding or non- binding shall be deemed to have been met if the goods have left our factory/warehouse by the end of the delivery period or if we have notified the customer that the goods are ready for despatch if despatch is possible. In the event of premature delivery, the time of delivery and not the originally agreed time shall be decisive.
Correct and timely self-delivery is reserved insofar as we have concluded a congruent hedging transaction.
In the event of subsequent amendments to the contract which may affect the delivery period or delivery date, the parties undertake to agree a new delivery period or new delivery date.
If we fail to comply with a binding delivery date or a binding delivery period, we shall be in default as soon as the delivery date is exceeded, provided that the customer complies with the obligations incumbent on him in accordance with clause 2, sentence 1.
Force majeure or operational disruptions occurring with us or our suppliers, which temporarily prevent us from delivering on the agreed date or within the agreed period through no fault of our own, shall change the periods and dates specified in clauses 1 to 7 of this section by the duration of the disruptions to performance caused by these circumstances. If such disruptions lead to a delay in performance of more than four months, the customer may withdraw from the contract. Other rights of cancellation remain unaffected.
If we are in default, the customer may demand compensation of 0.5% for each completed week of default, but not more than a total of 5% of the price for the part of the deliveries and services that could not be used for the intended purpose due to the delay, provided that he can credibly demonstrate that he has suffered damage as a result.
Both claims for damages by the customer due to delay in delivery or performance as well as claims for damages in lieu of performance, which exceeding the limits specified in clause 11. shall be excluded in all cases of delayed delivery, even after expiry of any deadline set for delivery. This shall not apply if liability is mandatory in cases of wilful intent, gross negligence or injury to life, limb or health. The customer may withdraw from the contract within the framework of the statutory provisions insofar as we are responsible for the delays in delivery. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.
At our request, the customer is obliged to declare within a reasonable period of time whether he is cancelling the contract due to the delay in delivery or service or whether he insists on the delivery or service.
If dispatch or delivery is delayed by more than three weeks after notification of readiness for dispatch at the request of the customer, the customer shall owe storage charges of 1/365 of 10 % of the price of the items of the deliveries per day. The contracting parties are at liberty to prove higher or lower storage costs.
If, in the event of partial delay in delivery or partial impossibility of delivery or performance for which we are responsible, the customer is justifiably not interested in the fulfilment of the other part of the contract, clause 8. shall apply accordingly with regard to the entire contract.

IV. Prices and terms of payment

Deliveries and services for which fixed prices have not been expressly agreed shall be invoiced at the list prices valid on the day of delivery or execution. The calculation is made in CHF.
The prices are quoted net ex works or ex warehouse plus the applicable statutory value added tax and do not include packaging, freight, postage, customs duties, taxes, insurance costs or other costs associated with the fulfilment of official requirements. The customer must return the packaging to us free to the destination of the delivery if we have requested the customer to do so before or on the occasion of the delivery.
If we have undertaken the installation or assembly and unless otherwise agreed, the customer shall bear all necessary ancillary costs such as travelling expenses, costs for the transport of tools and personal luggage as well as allowances in addition to the agreed remuneration for the services.
If there is a significant change in the price factors of wages, raw material and tool costs or other operational calculation factors (e.g. tax, etc.), the prices shall be increased to compensate for the price and cost increases stated. In any case, each contracting party may demand that the price be redetermined by negotiation.
If we provide larger quantities of raw and auxiliary materials at the request of the customer, we may demand immediate payment. Corresponding instalments may also be demanded depending on the scope of the services rendered.
In the case of foreign business transactions and pricing in a foreign currency, all the following shall apply after conclusion of the contract (the date of the order confirmation shall apply) The customer is responsible for any changes in the agreed foreign currency or the exchange rate to CHF.
Payments shall be made to us free paying agent or, if agreed, in cash and, if the conditions for a discount in accordance with Section IV. are not met, without any deduction. In the case of cashless payments from abroad, the contracting parties shall bear the expenses arising from the processing of their respective bank themselves. Representatives are not authorised to accept payments, in particular also cash payments, unless a written power of attorney is presented in this respect.
The customer may only offset against our claims if the customer's counterclaim is undisputed or a legally binding title exists. A right of retention can only be asserted if it is based on claims arising from the purchase contract.
As we manufacture goods to order, the total invoice amount is to be paid net in advance for reasons of safeguarding our claims, unless otherwise agreed in writing, namely 50% upon order confirmation and the remaining balance at the latest upon notification of readiness for dispatch.
We are e n t i t l e d t o the following rights if the customer is in default of payment:

a) We shall be entitled to withdraw from the contract and to take back our goods delivered under retention of title after the unsuccessful expiry of a reasonable deadline set for the customer to perform (Section VII.). The statutory provisions on the dispensability of setting a deadline shall remain unaffected. The customer is obliged to surrender the goods.
b) We may also demand or reject securities from the customer and make outstanding payments due immediately. We may also demand that the goods delivered by us be stored separately at the customer's premises and labelled as our property.
c) We may also demand interest on arrears from the customer at the statutory rate.
d) We may also demand compensation from the customer for further damage caused by delay. The customer shall h a v e the right to prove a lower damage caused by delay. Our statutory rights to compensation for damages caused by delay shall remain unaffected.

If changes occur in the ownership or corporate form of the customer or other changes which may have an influence on the economic circumstances, the customer is obliged to inform us immediately. If such changes occur and if the fulfilment of the contract appears to be jeopardised as a result, we may demand either the provision of securities for all claims arising from this contract or immediate payment of the same for the further execution of the order. Until payment or the provision of securities, we may, at our discretion, refuse further fulfilment of the contract, withdraw from the contract and demand compensation instead of performance.

We shall only take back items (parts) that have been delivered but are not defective with our express consent. For this purpose, we may make a corresponding deduction from the amount to be refunded for administrative costs incurred. Furthermore, we reserve the right to make a deduction for defects that have occurred by transport, etc. The return of these items (parts) must be free works - packaging included.

V. Place of fulfilment / transfer of risk / dispatch / freight

The place of fulfilment is Zurich.
If the goods are collected by the customer, the risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon notification of readiness for dispatch, otherwise upon delivery to our dispatch agent, but at the latest upon leaving the factory or warehouse, irrespective of whether the goods are dispatched from the place of fulfilment and who bears the freight costs. If the goods are ready for despatch and the despatch or acceptance is delayed for reasons for which we are not responsible, the risk shall pass to the customer upon receipt of the notification of readiness for despatch.
At the customer's request and expense, we will insure the consignment against theft, breakage, transport, fire and water damage and other insurable risks. Charges for containers and pallets provided by the railway shall be paid by the customer. If the customer has not given us any instructions for dispatch, this shall be carried out at our discretion without any guarantee for the cheapest dispatch.
Partial deliveries are permissible. Section V. 2. and V. 3. shall apply accordingly to partial deliveries.
In the case of contracts relating to partial deliveries and in the case of continuous delivery, we must be notified in writing of call-offs and sorting of the partial quantities. If the contractual quantity is exceeded by the customer's individual call-offs, we shall be entitled to deliver the surplus after checking our ability to deliver. We may invoice the surplus at the prices valid at the time of the call-off or delivery.
Material procured by the Purchaser shall be sent to us. Under no circumstances shall we assume any liability for the correctness of the quantity and Ǫuality of this material designated as delivered. In the case of larger quantities, the costs arising from the acceptance as well as the storage expenses shall be reimbursed. If the Purchaser provides raw and auxiliary materials, the packaging material and waste shall remain the property of the Purchaser. The customer shall also be responsible for the removal or disposal of these materials or waste and shall cover the costs thereof if we so request. Insofar as the customer does not expressly claim ownership of these packaging materials or waste upon delivery, we shall be entitled to deal with these items as we see fit. This shall not affect the customer's obligations regarding the removal and disposal. If the raw and auxiliary materials, samples, originals or other items handed over to us are to be insured against theft, fire, water or other risks, the customer must arrange this himself. The same shall also apply if finished goods paid for by the customer are stored on the customer's behalf.

VI. Installation / Assembly

Unless otherwise agreed in writing, the following provisions apply to installation and assembly:

The customer must accept the goods at his own expense and provide them in good time:

a) all construction and other ancillary and preparatory work outside the industry, including the necessary skilled and unskilled labour, building materials and tools,
b) the equipment and materials required for installation and assembly, such as scaffolding, lifting tools and other devices,
c) Energy and water at the point of use, including connections, heating and lighting,
d) sufficiently large, suitable, dry and lockable rooms at the installation and assembly site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working rooms for the installation and assembly personnel, including sanitary facilities appropriate to the circumstances; in addition, the customer shall take the same measures to protect our property and the installation and assembly personnel on the construction site as he would take to protect his own property,
e) protective clothing and protective devices that are required due to special circumstances at the installation and assembly site.

Before the start of the installation and assembly work, the customer must provide us with the necessary and appropriate information on the location of concealed electricity, gas and water pipes or similar installations as well as the necessary structural data without being requested to do so.

Before the start of installation and assembly, the orders and objects required for the start of the work must be at the installation or assembly site and all preparatory work must have progressed to such an extent that installation and assembly can be started as agreed and carried out without interruption. The installation and assembly area must be accessible and cleared.

If the installation and assembly are delayed due to circumstances for which we are not responsible, the customer shall bear the reasonable costs for waiting time and any additional travelling required on our part and on the part of the installation and assembly personnel. The provisions in Section IV. 3. remain unaffected.

The customer must immediately certify to us on a weekly basis the duration of the working time of the installation and assembly personnel as well as the completion of the installation and assembly.

If we request acceptance of the delivery after completion, the customer must accept the delivery within two weeks, unless otherwise agreed in writing. If this is not done, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place when the delivery has been put into use.

VII. Retention of title

The objects of the deliveries (reserved goods) shall remain our property until all claims arising from the business relationship between us and the customer have been paid in full. This shall also apply if payments are made on specially designated claims. The inclusion of individual claims in a current account as well as the balancing of accounts and their recognition shall not affect the retention of title. Only the complete fulfilment of our claims without reservation shall be deemed as payment.
The purchaser is authorised to resell the reserved goods in the normal course of business as long as he is not in default; however, he is not permitted to pledge or transfer ownership by way of security or make any other dispositions that impair the retention of title. The customer is obliged to secure our rights as the seller subject to retention of title when reselling goods subject to retention of title on credit. The purchaser must notify us immediately in writing of any existing, imminent or completed impairments of our rights, in particular blanket assignments, attachments, etc. The purchaser must notify us at the same time of any attachments. In the event of seizure, he must simultaneously send us a copy of the seizure protocol, the documents necessary for an intervention and an affidavit stating that our retention of title to the seized item exists.
The customer hereby assigns to us all claims in the amount of the final invoice amount (including VAT) which accrue to him from the resale against his customers or third parties, irrespective of whether the purchased item has been resold without or after processing. The customer shall remain authorised to collect this claim even after assignment. Our authorisation to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer fulfils his payment obligations from the collected proceeds, is not in default of payment, in particular no application for the opening of insolvency proceedings has been filed and payments have not been suspended. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. We hereby accept the assignment.
Any treatment or processing of the goods subject to retention of title shall be carried out by the customer on our behalf without any obligations arising for us. If the reserved goods are processed, combined, mixed or blended with other goods not belonging to us, we shall be entitled to the resulting co-ownership share in the new item in the ratio of the invoice value of the reserved goods to the other processed goods at the time of processing, combining, mixing or blending. If the customer acquires sole ownership of the new item, the contracting parties agree that the customer shall grant us co-ownership of the new item in the ratio of the invoice value of the processed or combined, mixed or blended goods subject to retention of title and shall store them for us free of charge. The co-ownership shares thus created shall be deemed to be reserved goods in accordance with these terms and conditions.
If the reserved goods are resold together with other goods, regardless of whether without or after processing, combining, mixing or blending, the advance assignment agreed above shall only apply to the amount of the invoice value of the reserved goods that are sold together with the other goods.
We undertake to release the securities to which we are entitled in accordance with the above provisions at our discretion at the request of the customer to the extent that their value exceeds the claim to be secured by 20% or more.
Section IV. 10. a) shall apply accordingly in the event of breaches of duty by the customer. We shall then be entitled to enter the customer's premises and take possession of the goods subject to retention of title ourselves without prior notice or declaration of cancellation. We may realise these reserved goods by private sale or auction, notwithstanding the payment and other obligations of the customer. After deduction of expenses, the customer shall receive any realisation proceeds credited against his liability; any realisation surplus shall be paid out to him.

VIII. Receipt of deliveries

The customer may not refuse to accept deliveries due to insignificant defects.

IX. Material defects

We are liable for material defects as follows:

All items (parts) of our deliveries or services which show a material defect within the limitation period shall, at our discretion, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the transfer of risk.
Claims for material defects shall lapse after 24 months. The statutory provisions on suspension of expiry, suspension and recommencement of the limitation periods shall remain unaffected.
The Purchaser is obliged to immediately carry out a Ǫuality check or defect check and completeness check on the items delivered or processed by us. He is also obliged to notify us in writing of any material defects. The notification of material defects must be made without delay, in the case of recognisable defects at the latest within 2 weeks after receipt of the items or upon acceptance of the services, in the event that the items are to be installed within this period, at the latest 3 days before installation of the items.
In the event of notices of defects, payments by the customer may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The customer may only withhold payments if a notice of defects is asserted, the justification of which is beyond doubt. If the notice of defects is unjustified, we shall be entitled to demand reimbursement of the expenses incurred by us from the customer. The customer may not set off any counterclaims unless these counterclaims are recognised by us or have been legally established.
We must first be granted the opportunity for subsequent fulfilment within a reasonable period of time.
If the subsequent fulfilment fails, the customer may - without prejudice to any claims for damages in accordance with Section XI - withdraw from the contract or reduce the remuneration.
Claims for defects do not exist

a) in the case of only insignificant deviations from the agreed quality. (This applies in particular to deviations from the existing samples, e.g. wood sample surfaces or delivered or processed objects, as well as deviations that are causally attributable to the wood used, e.g. cracks and embedded knots) or
b) if a defect has been caused by the material provided by the customer or
c) if, as a result of processing, changes in shape, surface structure or surface colour tone, cracks or impairments of dimensional and fitting accuracy (e.g. in the case of plank widths) occur which are unavoidable according to the state of the art or are caused by missing information provided by the customer or
d) if the customer has failed to safeguard rights of recourse against third parties or to take recourse against third parties against whom we have claims and are prepared to assign these to the customer, unless we are responsible for the defect or satisfaction from the assigned right fails or the assigned claim is already time-barred when the defect occurs or we do not or cannot notify who is responsible for the defect, or
e) if the customer further processes the delivered items (parts) despite recognisable defects or
f) if the customer carries out repairs, modifications or other interventions on the delivered items (parts) or services himself or through third parties without our consent, or
g) if defects occur in objects (parts) processed by us as a result of further processing of which we were not notified, or
h) if, despite our advice, the customer demands a type of processing that conflicts with technical standards or findings, or
i) if the customer does not give us the opportunity to inspect the defect on site and, insofar as we make use of our right of choice in accordance with Section IX. 1, to remedy it, or
j) if the defects have been caused by installation/assembly for which we are not responsible or
k) if our materials have been damaged before and after assembly/installation due to improper handling by the customer or third parties, or
l) if defects are caused by weathering, chemical, electrochemical, electrical or other special external influences or natural wear and tear, or
m) if defects are caused by abnormal, unusual conditions (e.g. room climate) or
n) if defects have been caused by unsuitable or improper use, improper storage, incorrect or negligent handling and care, in particular by excessive strain or the use of unsuitable care products, or
o) if defects are caused by faulty construction work, unsuitable substrate, faulty substructure or
p) in the event of only insignificant impairment of usability.

If materials processed by us are included in a construction work, the processing by us shall nevertheless not be deemed to be a service for a construction work unless the customer has expressly commissioned us in writing to provide construction services for a specific, specified construction project.
If we replace defective parts, these shall become our property again, unless we already have a reservation of title.
We shall not be liable for mass-produced items or small parts in large quantities due to a shortfall of up to 3%. The same applies if no more than 3% of the delivered parts are defective. This also applies to drawing parts of the products which have been manufactured according to the wishes of the purchaser or, if applicable, his customer.
For essential third-party products, our liability is limited to the assignment of the liability claims to which we are entitled against the supplier of the third-party product, insofar as we are not responsible for the defect or satisfaction from the assigned right fails or the assigned claim is already time-barred when the defect occurs or we do not or cannot notify who is responsible for the defect.
Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded if the expenses increase because the object of the delivery has subsequently been taken to a place other than the customer's business premises or branch office, unless the transfer corresponds to the intended use.
Section XI. shall also apply to claims for damages. Any further claims of the customer against us and our vicarious agents due to a material defect or claims other than those regulated in this Section IX. are excluded.

X. Impossibility / contract adjustment

If the delivery or service i s impossible, the customer is entitled to demand compensation, unless we are not responsible for the impossibility. However, the customer's claim for damages shall be limited to 10% of the value of that part of the delivery or service which cannot b e used for its intended purpose due to the impossibility. This limitation shall not apply in cases of mandatory liability based on intent, gross negligence or injury to life, body or health; this does not i m p l y a change in the burden of proof to the detriment of the customer. The right of the customer to withdraw from the contract remains unaffected.
Insofar as unforeseeable events within the meaning of Section III.
significantly change the economic significance or the content of the delivery or have a significant impact on our business, the contract shall be adjusted appropriately in good faith. If this is not economically justifiable, we shall have the right to withdraw from the contract. If we wish to make use of this right, we shall inform the customer immediately after realising the consequences of the event, even if an extension of the delivery time was initially agreed with the customer.

XI. Other claims for damages

Claims for damages and reimbursement of expenses by the customer (hereinafter: claims for damages), irrespective of the legal grounds, in particular due to breach of duties arising from the contractual obligation and from unauthorised action, are excluded.
This does not apply if liability is mandatory, e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, limb or health or breach of material contractual obligations. However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence or liability for injury to life, limb or health. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.
Insofar as the customer is entitled to claims for damages under this Section XI, these shall become statute-barred upon expiry of the limitation period applicable to claims for material defects in accordance with Section IX. 2. In the case of claims for damages under the Product Liability Act, the statutory limitation provisions shall apply.
If items (parts) are manufactured or delivered by us according to drawings and/or instructions of the customer, the customer shall be liable for ensuring that the rights of third parties are not infringed. The customer undertakes to indemnify us absolutely and immediately against any claims by third parties for patent, utility model or other infringements of rights in respect of these items (parts).

XII. Validity of DIN standards

The quality and dimensions of the items (parts) and services supplied by us shall be determined exclusively in accordance with DIN standards, unless the application of foreign standards has been expressly agreed. If no DIN standards exist, commercial practice shall apply, unless the application of specific standards or the customer's wishes are expressly agreed.
If a DIN standard is amended after conclusion of the contract but before completion of the items (parts) to be supplied or services to be rendered, we shall be obliged to take into account the requirements of the new standard within reasonable bounds.

XIII. Place of jurisdiction and applicable law

If the customer is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Zurich. However, we shall also be entitled to take legal action at the customer's registered office.
The place of jurisdiction shall also be Zurich if the customer has no general place of jurisdiction in Germany, moves his domicile or usual place of residence out of Germany after conclusion of the contract or his domicile or usual place of residence is not known at the time the action is filed.
The legal relationships in connection with this contract shall be governed by Swiss substantive law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
The contract language is German.

XIV. Binding nature of the contract

The contract shall remain binding in its remaining parts even if individual provisions are legally invalid. Should any provision of these terms and conditions in particular be or become invalid, this shall not affect the validity of the remainder of the contract. This shall not apply if adherence to the contract would represent an unreasonable hardship for one of the parties.