General Terms and Conditions of Sale, Construction and Installation
I General – Scope
(1) Our deliveries and services shall be made exclusively on the Terms and Conditions of Sale and Supply specified below. These General Terms and Conditions will also apply to all future business transactions between the contracting parties without a repeated indication thereto being required. They will also apply even if they are not explicitly quoted by us in any subsequent agreement, in particular if we provide deliveries or services to the customer without reservation while being aware that the customer’s conditions are contrary to or differing from our General Terms and Conditions of Sale and Supply. We will not accept any different conditions of the customer unless we have expressly consented to their validity in writing.
(2) All agreements which are concluded between us and the customer for the purpose of performing this Contract are put down in writing in this Contract. Any modifications and/or amendments of this Contract must be made in writing in order to be effective. This form requirement can only be waived by written agreement.
II. Offers and Conclusion of contract, Subject of services
(1) Our offers to customers are not binding. Customer’s orders are binding. We reserve the right to object to the order in writing within two (2) weeks after its receipt. However, a contract has been brought about at the latest upon provision of the ordered deliveries or services at the agreed time of delivery.
(2) We reserve the property rights and copyrights to all offers, illustrations, drawings, calculations, plans and other documents. They may only be disclosed to third parties with our express written consent and must, upon request, be returned to us free of charge. The contracting parties undertake to treat all non-obvious and technical details which become known to them in the course of the business relationship as business secrets.
(3) The documents pertaining to our offer, in particular illustrations, drawings, indications of weight and size, technical and other data and descriptions contained in the respective product information or advertising material are non-binding. They neither indicate agreed qualities nor do they guarantee the quality or durability of the items to be delivered or services to be provided by us.
(4) In case the delivery item will be used outside of Germany, delivery shall comply with user or environment protection regulations only as expressly agreed or, in case of doubt, with the applicable German regulations. The customer shall be responsible for compliance with the statutory or other provisions at the place of use.
(5) If standard clauses are agreed with regard to the nature of the delivery, the interpretation shall be based on the Incoterms (ICC) of the International Chamber of Commerce in Paris as amended on the date when signing the contract.
III. Prices, Conditions of payment, Delay in payment
(1) The prices which were agreed when signing the respective contract shall apply. If a price is not explicitly specified or if the delivery item is bought by the customer at list price, the prices which can be inferred from our price list at the date of delivery shall apply. Unless agreed otherwise in a particular case, the prices shall be ex works, however excluding packaging and other ancillary costs.
(2) Statutory VAT is not included in our prices; the statutory amount of VAT will be separately stated in our invoice. Unless agreed otherwise in a particular case, all public charges (taxes, fees, customs duties, etc.) arising from or in connection with the conclusion or the performance of the contract shall be borne by the customer.
(3) The deduction of a cash discount requires a special written agreement.
(4) Unless agreed otherwise in a particular case, the purchase price shall be due for payment net (without deduction) within 30 days as from the date of invoice.
(5) We are entitled to allow incoming payments as credit first against claims of earlier date, then against costs and interest of the main service, and finally against the main service itself. The customer shall only have rights of set-off and rights of retention, if the customer’s counter-claims are undisputed or adjudged by a binding and final court decision. A right of retention shall only exist if the asserted counter-claim was caused by the same contractual relationship as the claim.
IV. Delivery time
(1) The stated delivery time shall only commence after clarification of all technical questions. Agreed delivery times shall only apply in approximate terms, unless a specific delivery date has been agreed. The delivery is deemed to be on time if the delivery item has left the works or if the item has been declared ready for dispatch before the delivery time has expired.
(2) The observance of our delivery and service duties presupposes the timely and proper fulfilment of the customer’s obligations.
(3) We will only be in default after the expiration of a reasonable grace period granted by the customer. Unless the delay in delivery was caused by our intentional breach of contract, our liability for damages shall be restricted to the foreseeable damage typically occurring. The same shall apply, if our delay in delivery was caused by a culpable violation of a material contractual duty.
(4) We are entitled to provide partial deliveries or partial services within the agreed delivery and service times if that can be reasonably expected of the customer.
(5) In the case of force majeure or other unforeseeable extraordinary circumstances beyond our control, such as the interruption of operations caused by fire, water and other circumstances, breakdown of production facilities and machines, exceeding of delivery times and shortfalls of deliveries on the part of our suppliers, and interruptions of operation caused by shortage of raw material, energy or labour, strike, lockout, difficulties in obtaining transportation, interruptions of traffic, government interventions, we shall be entitled to delay our delivery and/or service for the duration of the obstruction plus an adequate preparation time to the extent that we have been prevented from fulfilling our performance duties on time by the mentioned circumstances and through no fault of our own. If this delays the delivery or service by more than one month, we and the customer shall both be entitled any damage claims being excluded to withdraw from the contract with regard to the quantity affected by the delivery problem.
V. Passing of risk
(1) The delivery shall be made ex works or ex warehouse unless otherwise expressly agreed in writing between us and the customer. In that case, the risk of accidental loss or accidental deterioration of the contractual delivery items will pass to the customer after they have been made available for collection with the customer's receipt of the availability notice. Otherwise, the risk of accidental loss and accidental deterioration of the delivery items will pass to the customer when the delivery items are handed over to the freight carrier. The risk of accidental loss and accidental deterioration of the delivery items shall also be borne by the customer if we make partial deliveries or if we have, in the specific case, taken on other commitments, such as shipping costs, exportation or installation, except when the delivery is made with our own vehicles or means of transport. If the delivery is delayed for reasons caused by the customer, the risk will pass to the customer as from the day the delivery items are ready for dispatch.
(2) If so desired by the customer, we will cover the delivery by transportation insurance; the costs incurred for this shall be borne by the customer.
(3) In case it was agreed with the customer that we shall provide the shipping of our delivery items, the mode of dispatch and the dispatch route will be chosen by us unless otherwise agreed with the customer in writing. The provisions of Art. V. no. (1) sentence 3-5 and Art. V. no. (2) shall also apply to this case.
(4) The taking back of packaging shall require explicit agreement.
VI. Reservation of title
(1) We will retain title to the delivered items until full payment of the purchase price and all other current or future payment claims we have against the customer from our business relationship. In case of a breach of contract caused by the customer, in particular in case of a delay in payment, we have the right to take back the delivery items. The taking back of the delivery items constitutes a rescission of the contract. After having taken back the delivery items, we are entitled to sell them to a third party. Payments received shall be deducted from the customer's liabilities.
(2) The customer may neither pledge the delivery items nor transfer them by way of security. The customer must immediately inform us in writing of any pledge or other third party intervention so that we can take legal action.
(3) The customer is entitled to resell the delivered items in the regular course of business under the provisions set out below; however, the customer shall – already at this stage – assign to us all claims against buyers or third parties arising from the resale, irrespective of whether the resale of the delivery item has been effected without or after a treatment, in the amount of the invoice total (including VAT) of our claim with priority over the remainder of the customer's claims. The customer shall be entitled to collect these claims also after the assignment. Our right to collect the claims ourselves shall not be affected hereby. However, we undertake that we will not collect the amount due for as long as the customer is fulfilling its payment obligations from the collected proceeds, is not in default, and particularly for as long as no application for the institution of composition or insolvency proceedings has been filed or payments have stopped. Should that be the case, however, we may ask the customer to disclose the assigned claims and the respective debtors, to provide the required information, to hand over the respective documents, and to inform the debtors (third parties) of the assignment.
(4) At our request, the customer shall individually prove its claims assigned to us and shall inform its debtors of the assignment asking them to provide us with a payment in the amount of our claims against the customer.
(5) We undertake to release, upon request of the customer, the securities to which we are entitled insofar as their realisable value exceeds our claims against the customer which are to be secured by more than 10%; we may choose which securities will be released by us.
VII. Liability for defects
(1) Claims of the customer based on defects require that the customer has properly fulfilled its examination and notification duties. The notification of defect must be made in writing. As regards the period between the delivery and the notification of defect, the burden of proof for the proper handling of the delivered goods and their product-specific storage lies with the customer.
(2) Claims based on warranty shall only exist if the customer immediately provides us with the information we consider necessary in order to determine the cause of defect in our product and the scope of our responsibility or allows us to carry out our own investigations also at its site. If it is not possible to determine or find a defect, the costs for investigating the cause of defect shall be borne by the customer.
(3) We retain the right to insignificant, acceptable deviations in the measurements and manufacturing (color and texture), in particular with regard to subsequent orders, to the extent these deviations are in the nature of the materials used (for example solid woods and solid mineral slabs) and are usual.
(4) Guarantees for the quality and durability for specific features (warranted characteristics) and other warranties will only be assumed by us if they have been agreed as such expressly in writing.
(5) If the notification of defect was late or not properly made, the customer will lose its rights based on defect unless the defect was fraudulently concealed by us.
(6) To the extent that a defect exists in the delivery items, we are entitled to supplementary performance either by removing the defect or by providing a new item which is free of defects. When choosing to remove the defect, we shall bear all costs incurred thereby, such as the costs for transport, toll, labour and materials, provided that these costs are not increased by a relocation of the delivery items to a place other than the place of performance.
(7) In case of failure of the supplement performance, the customer may choose to ask for rescission or reduction.
(8) We are liable as required by law, provided the customer asserts damage claims which are based on intent or gross negligence, including the intent or gross negligence of our agents or vicarious agents. To the extent that we are not accused of intentional breach of contract, our liability for damages shall be restricted to the foreseeable damage typically occurring.
(9) Otherwise, we are liable as required by law, provided we have culpably violated an essential contractual obligation; in any case, however, the liability for damages shall be restricted to the foreseeable damage typically occurring.
(10) The liability based on culpable injury to life, body or health shall remain unaffected; this shall also apply to mandatory liability as defined by the German Product Liability Act.
(11) Unless otherwise agreed above, liability shall be excluded.
(12) Any rights of recourse of the customer against us shall only exist insofar as the customer has not agreed with its buyer on claims based on defect exceeding those defined by law.
(13) The limitation period for claims based on defect shall be 12 months calculated as from the passing of risk.
VIII. Total liability
(1) Any liability for damages which goes further than that provided in Art. VII. shall be excluded, irrespective of the legal nature of the asserted claim. This shall apply in particular to damage claims based on violations of duty, or tort.
(2) The restriction provided in no. (1) shall also apply insofar as the customer demands a compensation for useless expenses instead of a reparation of the damage.
(3) To the extent that the liability for damages towards us is excluded or restricted, this shall also apply with regard to the personal liability for damages of our employees, members of staff, agents and vicarious agents.
IX. Industrial property rights and copyrights
(1) We are only liable for claims resulting from an infringement of third party property rights and copyrights by the contractual use of the delivery items (hereinafter: property rights) of which at least one from its family of property rights has been published in Germany or by the European Patent Office. To the extent that a third party asserts a justified claim against our customer based on an infringement of property rights by the contractual use of our delivery items, we shall be liable towards the customer within the time limit prescribed by Art. VII no. (13) as follows:
a.) We have the choice to either obtain a right of use with regard to the respective delivery item, to change it in such a way that the property right is no longer infringed, or to exchange it for another. If we are not able to do that on reasonable terms, the customer will be entitled to the statutory rights of rescission and reduction.
b.) Our obligation to pay damages is subject to Art. VIII.
c.) The obligations mentioned above only exist insofar as the customer immediately informs us in writing of any claims asserted by third parties, does not acknowledge an infringement, and that we have the right to take defence measures or to negotiate a settlement. In case the buyer discontinues the use of the delivery for reasons of damage reduction or other important reasons, the buyer is obliged to inform the third party that such discontinuance of use does not constitute the acknowledgement of a property right infringement.
(2) Claims of the customer shall be excluded to the extent that the customer is responsible for the property right infringement.
X. Place of performance, Place of jurisdiction, Applicable law
(1) The place of performance and jurisdiction for all claims shall be our company’s registered office. However, we shall be entitled to take legal action against a customer at such customer’s statutory place of jurisdiction.
(2) The law of the Federal Republic of Germany shall apply; the application of the UN-Sales Convention (CISG, UN Convention on Contracts for the International Sale of Goods) and the rules on the conflicts of laws shall be excluded.
XI. Binding force of the contract
Should any of the foregoing provisions be or become invalid or excluded under a special agreement, this shall not affect the validity of the remaining provisions hereof.