General terms and conditions (as of 7 January 2021)
§ 1 Scope of application, form
1. The present terms and conditions (hereinafter called: „GTC“) shall apply equally to all business relations with our customers (hereinafter called: Buyer). The GTC only apply to the purchaser as an entrepreneur (§ 14 BGB – German Civil Code), legal entities under public law or separate funds under public law.
2. The GTC shall in particular apply to any agreement on the sale and /or the delivery of goods and products (hereinafter called: goods), irrespective of whether we produce the goods or purchase them from sub suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GTC stated herein to similar future contracts as general agreement according to the valid version at the time of placing the order, again in the individual case.
3. Our GTC are to be governed exclusively. General Terms and Conditions of the purchaser varying from, in conflict with or supplementary to our GTC shall only then and insofar become part of the contract if and to the extent that we have expressly consented to their application. This approval requirement shall apply in any case, for example also if we render delivery without reservation with the knowledge of the GTC of the Buyer.
4. Individual agreements made with the customer in the particular case (including side agreements, supplements and changes) always take precedence over these GTC.
5. Legally relevant declarations and notifications of the purchaser concerning this contract (e. g. setting deadlines, notice of defects, withdrawal or reduction declarations) must be fixed in writing in order to be enforceable (§ 126b BGB).
6. References to the validity of statutory regulations shall only have clarifying significance. Therefore, the statutory regulations shall also apply without such a clarification insofar as they are not directly changed or are explicitly excluded in these GTC.
§ 2 Conclusions
(1) Our offers are without obligation and non-binding. This shall also apply if we have handed over catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to the Buyer, to which we reserve property rights and copyrights.
(2) The order of goods by the Buyer is deemed as a binding contractual offer. Insofar as not otherwise derived from the order we are entitled to accept this contractual offer within two weeks after its receipt by us.
(3) The acceptance can be declared as well by delivery of the goods to the Buyer.
§ 3 Delivery deadline and delay in delivery
(1) The delivery deadline shall be individually determined or stated by us with the acceptance of the order. Besides this, the delivery period is around 4 weeks beginning with contract date.
(2) Insofar as the client belatedly performs its contractually agreed obligations – including advance payment – our delivery period shall be extended to an appropriate extent, at least however the period between due date and the customer’s provided duties.
(3) Insofar as we cannot observe binding delivery deadlines for reasons for which we are not responsible non-availability of the service) we shall inform the Buyer hereof immediately and at the same time inform him of the expected, new delivery deadline. If the service is not available within the new delivery deadline either we shall be entitled to cancel the contract in full or in part; we will reimburse an already provided consideration of the Buyer immediately. Deemed as case of non-availability of the service within this meaning is in particular the late self-delivery by our components suppliers if we have concluded a congruent hedging transaction, we nor our supplier are not at fault or we are not bound to procurement in a particular case.
(4) The rights of the Buyer according to § 8 of these GTC and over legal rights especially in case of an exclusion of the service obligation (e.g. impossibility of service and/or subsequent performance or if these are deemed unreasonable) remain
§ 4 Delivery, passing of risk, acceptance, delay in acceptance
(1) The delivery is carried out ex warehouse or ex works where the place of performance is also respectively located. At the request and costs of the Buyer the goods shall be sent to another place of destination (herein after called: sales shipment). Insofar as not otherwise agreed we are entitled to determine the type of shipment (in particular transport company, shipment route, packaging) ourselves. We are not obliged to insure the shipment.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer by no later than when the goods are handed over. With a contract of sale involving the carriage of goods the risk of accidental loss and accidental deterioration of the goods and the risk of delay shall however pass with the delivery of the goods to the carrier, the freight forwarder or the other person or institution determined to carry out the shipment already. Insofar as an acceptance has been agreed this shall be decisive for the passing of risk. Incidentally, the statutory regulations of the law governing contracts for work and services shall also apply accordingly to an agreed acceptance. It is deemed equivalent to the handover or acceptance if the Buyer is in default with the acceptance.
(3) If the Buyer is in default of acceptance, if it fails to provide an act of assistance or if our delivery is delayed for other reasons for which the Buyer is responsible then we are entitled to request compensation for the thus arising damages including additional expenses (e.g. storage costs). For this we shall charge a flat rate compensation in the amount of 0.5 % of the agreed net price per calendar week started, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for shipment, however, up to a maximum amount of 5 % of the total net value of the goods. The proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; the flat rate is however to be offset against further monetary claims.
(4) We have the right of installment delivery to such an extent that the part shipment is suitable within the contractual intended purpose, if delivery of the remaining goods is guaranteed and if the Buyer incurs no major additional effort or costs (unless we declare our intention to assume these costs).
§ 5 Price, terms of payment
(1) Insofar as not otherwise agreed in an individual case our actual prices which respectively apply at the time of the delivery shall apply. Our prices shall apply ex warehouse or ex works plus the applicable rate of value added tax.
(2) If prices per square meter are agreed for tiles the surface is calculated on the basis of the nominal dimension indicated in the product description.
(3) In case of sales shipment (§ 4 Part 1) the Buyer pays for the costs of carriage ex stocks and if requested by the Buyer for the costs of transport insurance. Possible customs, fees, taxes or other excise dues bears the Buyer.
(4) The purchase price is due and payable without deduction from invoicing and delivery respectively acceptance of goods. We are entitled – and this also applies to current business relations – at any time to deliver wholly or partially against prepayment. A corresponding reservation will be communicated by us with the confirmation of the order at the latest.
(5) Insofar as a cash deduction is individually agreed with the Buyer in a specific case: a cash deduction on new invoices shall be excluded in the event of older invoices not yet having been paid. A cash deduction is only allowed in case of wholly payment within the discount period. Cash discounts agreements invariably relate to the net value of the goods.
(6) The Buyer is only entitled to rights to offset or retention to the extent that its entitlement has been determined final and binding or is undisputed. In case of defects to the delivery the counter rights of the Buyer remain unaffected.
(7) If there are indications after conclusion of the contract that our entitlement to the purchase price is at risk through insufficient ability of the Buyer to pay (e.g. by an application for opening of insolvency proceedings) then according to the statutory regulations we are entitled to refuse service and – if applicable after setting a deadline – to cancel the contract (§ 321 BGB). In case of contracts concerning the production of unreasonable objects (individual productions) we can declare the cancellation immediately; the statutory regulations concerning the lack of necessity to set a deadline remain unaffected.
§ 6 Reservation of title
(1) We reserve the right to the property of the sold goods until the full payment of all of our current and future claims from the purchase contract and a current business relationship (herein after called: secured claims).
(2) The goods subject to reservation of title may neither be pledged to third parties, nor assigned as collateral before the full payment of the secured claims. The Buyer must inform us immediately in writing if an application for opening of insolvency proceedings started or insofar as there are any accesses of third parties (for example attachments) to the goods which belong to us.
(3) In case of conduct of the Buyer which is in breach of the contract, in particular with nonpayment of the due purchase price we are entitled to cancel the contract according to the statutory regulations and /or to request that that the goods are handed over owing to the reservation of title. The request for handing over does not at the same time include the declaration of the cancellation if we merely request that the goods are handed over and reserve the right to cancellation. If the Buyer does not pay the due purchase price we may however only reserve the right to cancellation if we have unsuccessfully set the Buyer a reasonable deadline for payment or such a deadline need not be set according to legal requirements.
(4) According to (c) the Buyer is authorized to resell and/or to process the goods which are subject to reservation of title in proper business transactions. In this case the following provisions shall apply in addition.
(a) The reservation of title covers the products which are produced by processing, mixing or combination of our goods at their full value, whereby we are deemed the manufacturer. If the ownership right of third parties continues to exist with a processing, mixing or combination with goods of third parties then we shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. Incidentally the same shall apply to the produced product as to the goods delivered under reservation of title.
(b) The Buyer hereby now already assigns the claims against third parties, which are established from the resale of the goods or product in total or in the amount of our possible co-ownership share, to us as collateral according to the afore-mentioned paragraph. We hereby accept the assignment. The obligations of the Buyer stated in Par. 2 shall also apply in view of the assigned claims.
(c) The Buyer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer meets its payment obligations towards us, no other deficiency to its ability to pay exists and if we do not claim the reservation of property rights by exercise of a right according to Part. 3. However, if this is the case we can request that the Buyer informs us of the assigned claims and their debtors, provides all information which is necessary for the collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. We are also entitled to revoke the customer’s delegation of authority to resale and process the goods under the right to reserve propriety.
(d) If the realizable value of the collateral items exceeds our claims by more than ten per cent we shall release collateral items at our choice upon request of the Buyer.
§ 7 Claims for defects of the Buyer
(1) The statutory regulations shall apply to the rights of the Buyer in case of defects of quality and title (including false and shortfall in delivery as well as improper assembly or faulty assembly instructions) insofar as not otherwise determined below. In all cases, the special statutory provisions in the case of final delivery of unprocessed goods to a consumer shall remain unaffected, even if the consumer has further processed them (supplier's recourse pursuant to §§ 478 et seq. of the German Civil Code (BGB)). Claims due to supplier recourse are excluded if the defective goods have been further processed by the purchaser or another entrepreneur, e.g. by integration into another product.
(2) Basis of our liability for defects is in particular the agreement concluded about the quality of goods. All product descriptions which are subject matter of the individual contract or which are published by us (especially in catalogues or on our website) are considered as agreement about the quality of goods.
(3) In the absence of any agreed specification the existence of defects therein shall be determined in accordance to legal provisions (§ 434 part. 1 sent. 2 and 3 BGB). For public statements of the manufacturer or an otherwise involved third party (for example advertisements), which the buyer has not referred to us as being decisive for the purchase, we do not assume any liability.
(4) Unless otherwise agreed only minor deviations regarding colour and form as well as samples and specimens are considered contractually. The same applies to technical deviations of goods between conclusion of contract and delivery (especially in case of technical improvements or legal changes), if the goods are still suitable for the contractual underlying purpose and the deviation is still reasonable to the Buyer.
(5) Deviations of actual measurements of tiles according to the agreed nominal sizes are deemed contractually agreed if they do not exceed 3 %.
(6) The Buyer’s claims for defects presume that it has satisfied its statutory obligations for inspection and reporting of complaints (§§ 377, 381 HGB). If a defect is determined during the inspection or subsequently then this is to be reported to us immediately in writing (§ 126b BGB) Irrespective of this obligation for inspection and reporting of complaints the Buyer must report obvious defects within 5 working days from delivery as well as concealed defects within the same period in writing. If the Buyer fails to carry out the proper inspection and/or report of defects our liability for the defect which was not reported is excluded.
(7) We are entitled to make the owed subsequent performance dependent on the fact that the Buyer pays the due purchase price. The Buyer is however entitled to retain a part of the purchase price which is reasonable in the ratio to the defect.
(8) The Buyer must give us the time and opportunity which are necessary for the owed subsequent performance, in particular to hand over the goods for which a complaint was made for purposes of inspection. In the event of the substitute delivery the Buyer must return the faulty object to us according to the statutory regulations. The supplementary performance doesn’t cover the de-installation nor the re-installation of the damaged item, in case of that we were originally not obligated for the installation.
(9) The expenses which are necessary for the purpose of inspection and subsequent performance, in particular transport, route, work and material costs (not de-installation and installation costs) shall be borne by us if there is actually a defect. However, if it is determined that a request for remedy of a defect by the Buyer is unjustified we can request reimbursement of the costs (especially testing and transportation costs) incurred hereby from the Buyer, unless the missing defectiveness was not apparent for the Buyer.
(10) Claims of the Buyer for damages or reimbursement of fruitless expenses shall only exist according to § 8 and are incidentally excluded.
§ 8 Other liabilities
(1) Insofar as not otherwise derived from these GTC including the following provisions we shall be liable according to the relevant statutory regulations in case of a breach of contractual and non-contractual duties.
(2) We shall be liable for damages – no matter for what legal grounds – in case of willful intent and gross negligence. With simple negligence we shall only be liable subject to a milder standard of liability according to statutory regulations (for example diligence for own matters):
a) for damages from the injury to life, the body or the health,
b) for damages from the breach of an essential contractual duty (obligation, the satisfaction of which only enables the proper execution of the contract at all and with which the contractual partner relies and may as a rule rely on its compliance); in this case our liability is however limited to the reimbursement of the foreseeable, typically occurring damages.
(3) The liability restrictions which can be derived from Part. 2 shall apply in case of breach of obligation on our part or on the part of persons, whose fault we are responsible for. They shall not apply insofar as we have maliciously failed to disclose a defect or have assumed a guarantee for the condition of the goods. The same shall apply to claims of the Buyer according to the Product Liability Act.
(4) The Buyer can only cancel or terminate the contract owing to the breach of a duty, which does not consist of a defect, if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular according to §§ 651, 649 BGB) is excluded. Incidentally the statutory pre-requisites and legal consequences shall apply.
§ 9 Statute-of-limitations
(1) Notwithstanding § 438 Par. 1 No. 3 BGB the general statute-of-limitations for claims from defects of quality and title is one year from delivery. Insofar as an acceptance has been agreed the statute-of-limitations shall begin with the acceptance.
(2) In case of that the goods are considered as a construction or an item applied as a construction according to its usual manner of use and occurred its defects (construction materials), the period of limitation shall be 5 years calculated from delivery according to legal provisions (Art. 438 Part 1 No 2 BGB). Other legal special regulations concerning limitation periods remain unaffected (especially § 438 Part 1 Mo 1, Part 3, §§ 444, 445b BGB).
(3) The afore-mentioned statutes-of-limitations of the law governing purchases shall also apply to contractual and non-contractual claims for damages of the Buyer which are due to a defect to the goods, unless the application of the regular legal statute-of-limitations (§§ 195, 199 BGB) would lead to a shorter statute-of-limitations in an individual case. Otherwise the legal statute-of-limitations shall apply exclusively to claims for damages of the Buyer according to § 8 Part 2 Sent. 1 and 2 (a) as well as according to the Product Liability Act.
§ 10 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these GTC and all legal relations between us and the Buyer under the exclusion of all international legal regulations, in particular the UN Convention on the International Sale of Goods (CISG) as well as any provisions referring to foreign jurisdictions.
(2) In so far as the Buyer is a merchant in the sense of the Federal Commercial Code, a legal entity under public law, or public law special funds, exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Gernsheim. We are however also entitled to file an action at the place or fulfillment for the delivery commitment according to these GTC respectively a prior written special agreement or at the general place of jurisdiction of the Buyer. Prior legal provisions especially restrictive responsibilities will remain unaffected.