General Terms and Conditions
§ 1 Applicability
1. These Terms and Conditions exclusively apply to Vendor’s deliveries, services and offers including all future business relations even if not expressly agreed upon again. Upon receipt of the goods or services at the latest these Terms and Conditions are deemed to have been accepted. Counter-confirmations by Buyer referring to its terms and conditions are refused.
2. All agreements concluded between Vendor and Buyer for the purpose of performing this contract shall be set down in writing.
§ 2 Offer and conclusion of contract
1. Vendor’s offers are free and non-binding. Declarations of acceptance and orders shall require Vendor’s confirmation in writing to be legally effective.
2. Drawings, illustrations, dimensions, weights or other performance data shall only be binding if expressly agreed upon.
3. Vendor’s salespersons are not authorized to make oral subsidiary agreements or oral representations going beyond the contents of a written contract.
§ 3 Prices and payment
1. Unless otherwise provided for Vendor shall be bound by its prices referred to in an offer for a period of 30 days from the date thereof. As to the rest, prices quoted in Vendor’s acknowledgment of order shall be authoritative. Prices are plus the respective statutory value-added tax. Additional deliveries and services shall be invoiced separately. To the extent Vendor is not bound by the prices quoted in offers prices valid at the date of delivery even when ordering portions of the total quantity shall be invoiced unless a price is expressly referred to as fixed price in the acknowledgment of order.
2. Costs of packaging materials of any kind as well as costs involved in the return of packaging materials shall be borne by Buyer.
3. In case of prices free destination full shipments of min. 23 t and the full loading weight are taken as a basis. As to the rest, additional costs for shortfalls will be calculated. Freightage details are non-binding. Freight rates and shipping costs applicable at the date of delivery shall be taken as a basis.
4. Unless otherwise agreed, Vendor’s invoices shall be paid immediately without any deductions. In contrast to Buyer’s conflicting terms Vendor shall be entitled to deduct payments from previous debts and shall notify Buyer of such settlement. If costs are already incurred, Vendor shall be entitled to credit payments towards cost, followed by interest and finally towards the principal amount.
5. A payment is deemed to have been made, if Vendor can dispose of an amount. In case of checks payment is deemed to have been made, if a check is honoured.
6. If Buyer defaults payment, Vendor shall be entitled to charge interest at the rate of 5 percent above the basic interest rate as damages from the respective date. In case of a contractual relationship to which a consumer is no party, the interest rate shall be 8 percent above the basic interest rate.
7. Buyer shall only be entitled to offsetting, retention or reduction even in case of a notice of defects or counterclaims, if counterclaims are legally established or undisputed.
8. If Vendor knows of circumstances questioning Buyer’s creditworthiness, if a check is not honoured or if Buyer stops payment or if other facts become known questioning Buyers creditworthiness, Vendor shall be entitled to declare the residual amount due even if checks were accepted. In such case Vendor shall also be entitled to stop further deliveries and to demand advance payments and security.
§ 4 Time of delivery and performance
1. Delivery times and periods that can be agreed as binding or non-binding shall require the written form. Delivery times and periods shall be non-binding on Vendor, provided that there is no fixed transaction confirmed in writing. In case of orders involving specific dates or times of a day adherence to deadlines cannot be guaranteed.
2. Even in case of binding deadlines or dates agreed upon Vendor shall not be responsible for delays in delivery and performance due to Acts of God and events making it extremely difficult or even impossible for Vendor to effect delivery or performance not only temporarily (this includes, in particular, lack of energy, breakdown of machinery, misfired pottery, traffic obstructions, delayed or inadequate provision of means of transport, operational difficulties, shortage of personnel, strike, lockout, official instructions, etc.) even if faced by Vendor’s suppliers or their sub-contractors. Such events shall entitle Vendor to postpone delivery / performance by the period of such hindrance plus a reasonable starting period or to rescind the contract in full or in part on grounds of the part not yet performed.
3. If a hindrance exceeds three months, Buyer having granted a reasonable additional period of time shall be entitled to rescind the contract as far as the part not yet performed is concerned. If a delivery period is extended or if Vendor is exempted from its obligation, Buyer shall not claim any damages. Vendor can only refer to the aforementioned circumstances, if Vendor has notified Buyer.
4. Vendor shall effect part deliveries and part performances unless part deliveries or part performances are of no interest to Buyer.
5. A timely and proper fulfilment of obligations by Buyer is a prerequisite to Vendor’s fulfilment of all delivery and performance obligations. If deliveries are effected after called off by Buyer, Buyer shall ensure to call them off in good time so deliveries can be effected in the ordinary course of business.
6. If Buyer defaults acceptance, Vendor shall be entitled to a compensation for the damage caused; in case of a defaulted acceptance the risk of accidental deterioration or accidental loss passes to Buyer.
7. In no event Buyer shall be entitled to claim damages from Vendor on grounds of a delayed delivery.
§ 5 Passing of risk and shipment
1. The risk shall pass to Buyer as soon as a shipment is handed over to a person in charge of transport or when a shipment has left Vendor’s warehouse for the purpose of transport. Transport costs shall be borne by Buyer. If a shipment is delayed at Buyer’s request, the risk shall pass to Buyer upon giving a notice of readiness for dispatch.
2. Goods shall be shipped to an offtake station or a Federal Railways station, and shipment is exclusive of unloading. Buyer shall see to it that access roads are in a good condition so they can be passed by big special trucks (40 t, 19 m long) in order to ensure proper unloading. Buyer shall see to it that vehicles are unloaded and dealt with promptly as otherwise waiting periods could be charged to Buyer’s account.
3. Buyer shall be liable for any damage caused by instructions Buyer gives to a driver or a shipper. If the place designated for delivery is not in the state agreed upon, waiting periods shall be charged to Buyer’s account.
4. Goods will be insured upon written request.
§ 6 Quality conditions and quantities of goods
1. A uniform colour of the goods supplied by Vendor cannot be guaranteed. Materials (clay products, concrete products and natural products, in particular) are sold as provided by the production site. Overburns, breakage or non-standard materials amounting to 10% shall be accepted. Furthermore, unavoidable min. damage, normal breakage and loss, damage to edges and cracks (up to 5% of delivery) in production, transport or processing as well as minor optical defects cannot be complained about.
2. There is no guarantee for a delivery that is true to specimen. Specimens remain Vendor’s property. Excess deliveries or short deliveries amounting to 10% of the total quantity as well as part deliveries are permissible.
3. Goods of a kind differing from first-class quality are sold by excluding any warranty claims or claims for damages. When buying certain stacks of stones or when goods are picked up by Buyer at a supply plant or a warehouse the conditions agreed are deemed to be fulfilled by excluding any warranty claims or claims for damages.
4. In case of part deliveries no warranty is given for identical colour shades.
5. If stones with a certain compressive strength are supplied, the supply plant’s compressive strength shown on the receipt shall be authoritative. Deviations in dimensions and compressive strength shall be subject to the respective DIN standards. In case of goods from abroad no liability is incurred for compliance with dimensions and compressive strength.
6. When laying goods shall be taken from several packages at a time in order to ensure a good colour mix.
7. Building materials (clay products, concrete products and natural stone) are produced in numerous kinds. Therefore, different numbers per square metre of a laid area will be needed. When calculating square metre prices standard joint widths shall be included.
§7 Buyer’s rights in case of defects
1. Products are sold and delivered as medium type and in medium quality according to the quality standards referred to in a contract. Claims for defects may be asserted within one year from the delivery of the products.
2. In order to avoid an exclusion with all rights defects shall be communicated in writing without delay but within one week upon receipt of the object of delivery at the latest. Claims for dimensions and quantities shall only be asserted if established in the presence of a carrier.
3. If goods with a certain compressive strength are delivered, a careful inspection shall be required to see if there are items with a reduced compressive strength. Such goods shall not be processed and shall be exchanged by the factory.
4. Goods complained about shall be stored at Buyer’s expense and stacked in a way that they can be picked up by a special vehicle. These are the only goods in regard to which a notice of defects can be given.
5. By processing or finishing the goods all warranty claims and claims for damages shall cease to exist.
6. To the extent Vendor is responsible for a damage Vendor shall at its discretion replace defective goods or credit a corresponding amount according to these General Terms and Conditions. If a subsequent improvement / replacement fails even after a reasonable period of time, Buyer may at its discretion demand a price reduction or rescind the contract.
7. Claims against Vendor can only be asserted by direct buyers and shall not be assigned.
§ 8 General exclusion of claims for damages
1. Irrespective of the nature of the breach of duty (including unlawful acts) claims for damages shall be excluded if there is no wilful intent or gross negligence.
2. In case of a violation of essential contractual obligations Vendor shall be liable for negligence but only to the extent of the contractually foreseeable average damage. Claims for loss of profit as well as any other indirect damage shall not be asserted unless a characteristic warranted by Vendor is intended to protect Buyer against such damage.
3. To the extent Vendor’s liability is excluded or limited this also applies to Vendor’s employees, workers, representatives and vicarious agents.
§ 9 Reservation of title
1. The following security shall be provided to Vendor until satisfaction of a claims including all current account balance claims) that are / will be due to Vendor for whichever cause in law, with such security to be released at its discretion if the value thereof permanently exceeds the value of the claims by more than 20%.
2. Goods shall remain Vendor’s property. They shall be processed or converted for Vendor being the manufacturer, without Vendor having assumed any obligations. If Vendor’s (co-) ownership ceases to exist by combination it is agreed that Vendor’s (co-)ownership in the resulting item shall be transferred to Vendor depending upon the corresponding percentage value of the invoice. Buyer shall keep Vendor’s (co-)ownership free of charge. Goods in regard to which Vendor is entitled to a (co-)ownership shall be referred to as goods to which title is reserved.
3. Buyer shall be entitled to process and sell goods to which title is reserved in the ordinary course of business as long as Buyer is not in default. Pledging or chattel mortgaging shall not be permissible. Buyer shall fully assign all claims (including current account balance claims) arising from a resale or for another cause in law (insurance, unlawful act) in connection with the goods to which title is reserved to Vendor for safety. Vendor revocably authorizes Buyer to collect assigned claims for Vendor’s account and in Buyer’s name. This authority to collect may only be revoked, if Buyer has failed to meet its payment obligations.
4. If third parties have access to goods to which title is reserved (pledging, in particular) Buyer shall mention Vendor’s property and notify Vendor so Vendor can enforce its property rights. To the extent a third party is unable to refund any judicial or extra-judicial costs involved, Buyer shall be liable.
5. If Buyer acts in breach of contract (default of payment, in particular) Vendor shall be entitled to rescind the contract and to demand a return of the goods to which title is reserved.
§ 10 Applicable law, venue, partial invalidity
These Terms and Conditions and the entire contractual relationship between Vendor and Buyer shall be subject to the laws of the Federal Republic of Germany. The provisions of the UN Sales Convention shall not apply.
2. If Buyer is a merchant, a juristic person under public or a special fund under public law, venue for all disputes directly or indirectly arising from the contractual relationship shall be Düsseldorf.
3. If a provision of these General Terms and Conditions or in other agreements is or becomes invalid, this shall not affect the validity of the remaining provisions.