I.General

1.These general terms and conditions apply to all our business relationships with our customers, namely with merchants/entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 Paragraph 1 of the German Civil Code (customer). The customer within the meaning of these terms and conditions is also the buyer in the case of sales contracts, the purchaser in the case of work contracts and the client in the case of orders.

2.These conditions also apply to all future transactions between the contracting parties. We do not accept the customer’s general terms and conditions, including its purchasing conditions, even if we do not expressly object to them in individual cases, unless we have expressly agreed to their validity in writing. Otherwise, they do not become part of the contract either through our silence or through the delivery/service itself. Our terms and conditions also apply if we carry out the delivery/service to the customer without reservation despite knowing that the customer’s conditions conflict with or deviate from our conditions.

3. Individual agreements made with the buyer and information in our order confirmation take precedence over these general terms and conditions. However, the content of such agreements is subject to a written contract or our written confirmation, unless there is evidence to the contrary.

4. Our previous general terms and conditions are hereby no longer valid.

II. Contract contents and general terms of service

1. Our offers are non-binding and subject to change. This also applies if we have provided the contractual partner with catalogues or other product descriptions or documents (also in electronic form). A contract is only concluded with our express declaration of acceptance (order confirmation). The declaration of acceptance can be made verbally or by order confirmation in written or text form and can also be transmitted electronically.

2. The properties and services specified in offers and order confirmations comprehensively and conclusively define the properties of the delivery item and the scope of the service (service description). In particular, public statements by us, any sub-suppliers, assistants or third parties (e.g. representations of product properties in public) do not contain any descriptions of the delivery item or the scope of services that supplement or change these service descriptions.

3. Deviations in deliveries from the order quantities are possible within the scope of standard commercial quantity tolerances, both with regard to the total final quantity and with regard to individual partial deliveries.

4. We reserve ownership and copyright to images, drawings, calculations and other documents or data, in particular to visualization files sent. The passing on of these drawings, images, calculations and visualization files to third parties is prohibited. In particular, the use of the images, drawings, other documents and visualization files provided for implementation by third parties or the client is also prohibited. In the event of such use and implementation, Theska reserves the right to assert claims for damages, in particular lost profits. In individual cases, transfer or implementation can take place without Theska’s involvement if Theska has previously given its express written consent.

5. After accepting the offer and placing the order, the customer is obliged to submit all installation and wiring plans (electrical wiring plan, water pipe, telecommunications, sewage, ventilation and other comparable installation plans) of the building and the rooms if the subject of the order is the installation/fitting of furniture at the customer’s premises. Theska is not liable for damage to the aforementioned wires and pipes and other damage or for the failure to attach furniture to sockets and electrical cables if the above plans are not or cannot be presented, unless Theska caused the damage intentionally or through gross negligence.

6. If the customer does not accept Theska’s furniture layout plan or wishes to make changes, these must be communicated at least 30 days before delivery and installation of the furniture. Theska is not liable for defects in the execution if the customer changes the room layout or makes other architectural changes after Theska has measured it.

7. The customer must provide a parking space for a transport vehicle in front of his building, a functioning elevator if available and access to the site and a garbage container.

III. Prices, payment terms

1. The deliveries and services provided are invoiced on the basis of the price stated in the offer or order confirmation plus the applicable sales tax. The statutory sales tax is not included in our prices; it is shown separately in the invoice at the statutory rate on the day of invoicing. Unless delivery free of charge has been expressly agreed, all prices are ex works, excluding packaging and freight or shipping and transport costs. These are invoiced separately.

2. After conclusion of the contract, we are bound to our prices for individual orders for a maximum period of 3 months. After this period, if production costs increase after conclusion of the contract, we are entitled to make a corresponding price adjustment and charge the price applicable on the day of delivery/service. If the price increase is more than 10%, the customer is entitled to withdraw from the contract. The right of withdrawal does not apply if the delivery/service is delayed for reasons for which the customer is solely responsible or which fall within his area of ​​risk.

3. If ordered goods or items have to be stored by us as a result of the customer’s delay in acceptance, we reserve the right to charge an appropriate separate fee for this.

4. The agreed price for the goods delivered/the service fee is due for payment immediately after delivery/service, unless otherwise expressly agreed in writing in individual cases. However, we are entitled to demand advance payments or security from the customer before delivery/service or assembly and during the execution of the order. After partial services have been provided, we are entitled to demand interim payments.

5. If, after the conclusion of the contract, we become aware of a significant deterioration in the customer’s financial circumstances, which jeopardizes the claim to the consideration, e.g. the customer stops making payments, is over-indebted, insolvency proceedings are opened against his assets and the opening of such proceedings is rejected due to insufficient funds, our claims will become due immediately. We are then entitled to refuse to provide further services, to demand the return of goods already delivered, to make further services dependent on advance payments or security, to return checks or bills of exchange received before they expire and to demand immediate cash payment or to withdraw from the contract without compensation.

6. In the event of default, we charge default interest of 9% points above the respective base interest rate in accordance with Section 247 Paragraph 1 of the German Civil Code if the customer is a merchant. If the customer is not a merchant, we charge default interest of 5% points above the respective base interest rate. The right to assert further damages due to delay remains reserved.

7. The customer is only entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognised by us. This does not apply to claims for costs of remedying defects and/or completion. In addition, he is entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.

IV. Retention of title

1. The delivery item remains our property until all claims to which we are entitled against the customer from the business relationship have been met.

2. While the retention of title exists, the customer is prohibited from seizing or transferring ownership by way of security. In the event of seizures, confiscations or other dispositions or interventions by third parties, the customer must notify us immediately.

3. In the event of a breach of duty by the customer, in particular in the event of late payment, we are entitled to demand the return of the delivered goods without setting a deadline and/or, if necessary, to withdraw from the contract after setting a deadline; the customer is obliged to hand it over. The request for the delivery item to be handed over does not constitute a declaration of withdrawal on our part, unless this is expressly stated.

V. Force majeure, unavailability

1. If the failure to comply with delivery or assembly deadlines promised by us is due to force majeure, e.g. mobilization, war, riots or similar events for which we are not responsible, e.g. strikes or lockouts, the deadlines are extended by the time during which the aforementioned event or its effects last. We will inform the contractual partner of this immediately.

2. Transport hindrances, operational disruptions and other circumstances that we could not avert even when applying the care required of us in our own affairs are equivalent to force majeure.

VI. Acceptance and warranty, delay in acceptance

1. If we are obliged to deliver, we reserve the right to make correct and timely deliveries ourselves.

2. Except for justified refusal to accept, the customer is obliged to accept and accept the goods as soon as we notify him that the goods are ready or as soon as the assembly work has been fully carried out. If the customer is in default of acceptance, we are entitled to demand compensation for the damage incurred and any additional expenses. The same applies if the customer culpably violates his duty to cooperate.

3. If the customer is in default of acceptance of the services because assembly work cannot be carried out or can only be carried out partially because the corresponding premises have not yet been completed, we are entitled to charge up to 95% of the order amount in advance. We are also entitled to charge additional costs incurred as a result of the delay in acceptance, in particular storage costs and costs for repeated travel.

4. If the transaction is based on a purchase contract, the customer must fulfil the inspection and complaint obligations in accordance with Sections 377 and 381 of the German Commercial Code (HGB). In all other cases, the customer must inspect the service immediately after delivery/assembly, insofar as this is feasible in the normal course of business. In particular, obvious defects must be reported immediately and hidden defects immediately after discovery.

5. The customer’s warranty rights require that the customer has properly complied with his inspection and complaint obligations pursuant to Section 4. This does not apply if we have fraudulently concealed the defect or, in exceptional cases, have given a guarantee of quality.

6. We provide a warranty for defects at our discretion by means of repair or new delivery/service. In the event that the selected type of subsequent performance is unreasonable for the buyer in the individual case, he can refuse it. However, we reserve the right to refuse subsequent performance under the statutory conditions.

We are also entitled to make the subsequent performance to be provided by us dependent on the full payment of the order price. The customer, however, has the right to retain a proportion of the purchase price that is appropriate in relation to the defect.

7. The customer must grant us the necessary time and opportunity to provide subsequent performance. In particular, the customer must, as far as possible, hand over to us items for which he claims a defect for inspection purposes.

8. We will reimburse the expenses that are necessary for inspection purposes and subsequent performance, in particular transport, labor and material costs, in accordance with the statutory provisions and these General Terms and Conditions in the event that a defect actually exists. We can demand reimbursement from the customer for costs that arise due to an unjustified request for defect rectification if the customer knew or could have recognized that there was actually no defect.

9. Claims for defects do not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear, as well as in the case of damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable operating materials, defective construction work, or due to special external influences that are not assumed under the contract. If the client or third parties have carried out improper repair work or modifications, there are also no claims for defects for these and the resulting consequences.

VII. Damages

1. If we are obliged to pay damages, liability is limited as follows, unless otherwise stated in these General Terms and Conditions:

2. For damages due to slight or simple negligence, regardless of the legal basis, Theska’s liability for breaches of essential contractual obligations is limited to the amount of damages typical for the contract and foreseeable. Essential contractual obligations are those obligations that protect the client’s essential legal positions, which the contract must grant him according to its content and purpose. These are also contractual obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the client regularly relies and may rely.

3. Otherwise, we are liable in accordance with the statutory provisions.

4. Damages resulting from injury to life, body or health as well as damages within the meaning of the Product Liability Act remain unaffected by any limitation of liability.

5. The client is obliged in any case to take appropriate measures to prevent and reduce damage.

VIII. Choice of law and place of jurisdiction

1. These general terms and conditions and the contractual relationship between us and the client are subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.

2. The place of jurisdiction is Fulda.

Fulda, November 1, 2024