1. Definitive conditions
Our General Terms and Conditions of Business which our customer accepts when placing an order apply with exclusive effect, including for future transactions, even if no express reference is made to them, but they been delivered to the party placing the order in connection with an order confirmed by ourselves. If the order is issued at variance with our Delivery and Payment Terms and Conditions, then similarly only our own General Terms and Conditions of Business will be applicable, even if we do not object. Accordingly any variations will only apply if expressly acknowledged by ourselves in writing. Our General Terms and Conditions of Business apply only in respect of companies as defined in Section 310 Para. 1 of the German Civil Code (BGB).
2. Conclusion of contract
If the customer's order qualifies as an offer in accordance with Section 145 BGB, then we may accept it within 2 weeks. The contract is established once the customer has placed the order and on receipt of our order confirmation. Any prior offer on our part is non- binding (subject to change).
3. Delivery, late delivery and procurement risk
The place of performance/fulfillment for the delivery is our registered office, irrespective of the place of destination. If it is agreed that delivery will be free of charge to the customer's address, we shall hand over the goods uninsured to the freight forwarder or carrier and shall bear the costs of shipping for delivery within Germany. For shipment abroad, the customer will bear the entire costs of shipping. In any case, on handover to the freight forwarder/carrier, the risk of accidental destruction/loss and of accidental deterioration passes to the customer (as per Section 446 BGB). We are not obliged to take out transport insurance cover.
Delivery periods or delivery dates may be agreed as binding or non-binding. Delivery periods commence when the corresponding order confirmation is sent out in written or text form. For delivery periods to start to run, the assumption is also that all technical questions have been clarified and that the customer has fulfilled its obligations properly and in good time. The right to apply the objection that the contract has not been fulfilled is retained.
The stipulation of a concrete delivery date in the offer, the order or the order confirmation does not establish a fixed-date transaction as defined in Section 286 Para. 2 No. 4 BGB or Section 376 of the German Commercial Code (HGB).
Delivery periods and dates are deemed to have been fulfilled if the goods have been handed over to the carrier or freight forwarder by the end of the period or by the date specified.
We bear liability under the statutory regulations as long as the basic contract is a fixed-date transaction as defined in Section 286 Para. 2 No. 4 BGB or Section 376 HGB. We also bear liability under the statutory regulations to the extent that as a consequence of some late delivery for which we are responsible, the customer is entitled to claim that its interest in the further fulfillment of the contract has lapsed.
Furthermore, we bear liability under the statutory regulations where the delay in delivery arises out of some deliberate or grossly negligent breach of contract for which we bear responsibility; any fault committed by our representatives or vicarious agents shall be attributed to ourselves. Where the delay in delivery is the result of some grossly negligent breach of contract for which we are responsible, our liability for compensatory damages is limited to those foreseeable damages which might typically arise.
We also bear responsibility under the statutory regulations where the delay in delivery for which we are responsible is the result of some culpable breach of a significant contractual obligation; however in this case our liability for compensatory damages is limited to those foreseeable damages which might typically arise.
Otherwise, in the event of delay (delayed delivery), our liability under Section 286 BGB is limited to an amount of 10% of the value of the delivery or order. Further statutory rights and claims of the customer remain reserved. Our obligation to deliver is conditional on we ourselves receiving supplies correctly and in good time, unless we ourselves are responsible for the incorrect or late delivery of these supplies.
4. Prices, payment terms and discounts
VAT at the statutory rate is not included in our prices; it is shown separately at the statutory rate on the date of invoicing in the actual invoice.
The deduction of any discount must be agreed separately in writing.
Unless otherwise resulting from the offer or the order confirmation, the purchase price is due for payment net (without deduction) within 30 days of the date of invoicing. The statutory regulations relating to the consequences of late payment are applicable. No rights of offsetting arise to the customer unless its counterclaims have been established with the force of law, are undisputed or have been acknowledged by ourselves. In addition, the exercise of any right of retention is only permitted to the extent that the customer's counterclaim is based on the same contractual relationship.
The discounts we grant apply only if the payment terms have been observed. If the party placing the order should fall into arrears of payment, should cease to honor its payments due or if composition or bankruptcy proceedings are initiated in respect of its assets, any discount granted shall be withheld.
5. Cancellation on the part of the customer
The cancellation on the part of the customer of works and works and materials contracts (a contract for the delivery of movable items to be manufactured or movable items to be produced) in accordance with Section 649 BGB presumes the presence of a good reason.
6. Notification of damage in the event of delivery by carrier/freight forwarder under the terms of Section 438 of the German Commercial Code (HGB)
a. As liability for any damages or losses suffered in transit for which we are not responsible lies exclusively with the company commissioned for the transportation service, it is in the customer's own interests to fulfil the following obligations in respect of deliveries from a carrier/freight forwarder.
b. On acceptance, the customer must inspect the goods delivered without delay. If there is any visible external evidence of loss of or damage to the goods delivered, the customer must notify the loss or damage to the carrier/freight forwarder at the time of delivery. This notification must identify the damage with an adequate degree of clarity. Reference to the packaging being damaged is not sufficient! In particular, the damage to the goods themselves must be made clear in the notification. The notification must be made in writing on the shipment documents. The freight forwarder should also confirm the material situation in writing.
c. If the loss or damage cannot be identified externally, then notification must be provided for us in text form without delay, however no later than within four days of delivery, to allow us to notify the damage to the freight forwarder/carrier in good time. In addition, in this case the customer itself must notify the loss or damage in text form to the freight forwarder/carrier commissioned for the shipment without delay, this no later than seven days after delivery.
d. If the delivery period is exceeded, this must be notified to us in text form without delay, however no later than 14 days after delivery has actually taken place.
e. Any failure to fulfill the above obligations can lead to the customer forfeiting its claims, for example in respect of damage suffered in transit.
7. Liability for defects and alteration of scope of supply
Claims based on defects do not apply if the defect can be traced back to normal wear and tear or to improper or late maintenance or repair. Deviations which the party placing the order can reasonably be expected to accept in terms of texture and colour and the presence of blurring, dappling and hairline cracks in comparison with the pattern models are reserved, and do not provide grounds for claims based on defects, as long as this is regarded as normal in the trade and is inherent in the material due to the use of natural stone. The same applies for changes in construction and shape traceable back to technological improvements or to legislative requirements, as long as the item delivered is not significantly modified and the party placing the order can be reasonably expected to accept the changes.
Any claims submitted by the customer based on defects assume that the customer has properly fulfilled its obligations under the terms of Section 377 HGB in terms of inspection and notification of complaints. To be effective, any complaint notifying defect under the terms of Section 377 HGB must, under the terms of Section 126 BGB, be submitted in written form.
If there is some defect in evidence, then at our own discretion the customer is entitled to remedy in the form of elimination of the defect or to the delivery of a fresh item free of defects. In the event of elimination of the defect or replacement delivery, we are obliged to bear all of the outlays required for the remedy, in particular transportation, travel, work and material costs, as long as these are not increased as a result of the item purchased having been removed to some other location than the place of fulfillment.
If the attempt at remedy should fail, then at its own preference the customer is entitled to demand withdrawal or price reduction. The statutory claims to compensatory damages in respect of defects are limited by Clause 8 of the General Terms and Conditions of Business.
The period of limitation for claims based on defects is 12 months, calculated from the transfer of risk. This does not apply where in accordance with Section 438 Para. 1 No. 2b) the goods are normally used for some building structure and have caused the defect. Furthermore, the period of limitation does not apply if the defect has been concealed in bad faith, Section 438 Para. 3 BGB, or if the defect is the result of some deliberate breach of obligation. In addition, the period of limitation does not apply for claims for compensatory damages due to defects in cases involving loss of life, physical injury or damage to health, for claims submitted in accordance with the product liability legislation or for some breach of obligation due to gross negligence.
The period of limitation in the event of some delivery recourse under the terms of Sections 478, 479 BGB remains unaffected at five years, calculated from the date of delivery of the defective item.
We bear liability in accordance with the statutory regulations where the customer has submitted claims for compensatory damages based on deliberate intent or gross negligence, including deliberate intent or gross negligence on the part of our representatives or vicarious agents. Unless some deliberate breach of contract can be attributed to ourselves, our liability for compensatory damages is limited to the foreseeable damages which might typically arise.
We bear liability in accordance with the statutory regulations if we should culpably breach some significant contractual obligation; however similarly in this case our liability for compensatory damages is limited to the foreseeable damages which might typically arise. A significant breach of contract has occurred if the breach of obligation has taken place on the basis of some obligation on the fulfillment of which the customer was counting and was also entitled to count.
Liability due to culpable loss of life, physical injury or damage to health remains unaffected, this also applying for the mandatory liability arising out of the applicable product liability legislation.
Unless otherwise stipulated above, liability for compensatory damages is excluded, irrespective of the legal nature of the claim pursued. This applies in particular for claims to compensatory damages arising out of culpable actions undertaken when the contract was concluded, due to other breaches of obligation or due to tortious claims for material damages to be made good under the terms of Section 823 BGB.
This limitation of liability also applies where instead of submitting a claim for the damage suffered to be made good the customer demands compensation for unnecessary expenditure incurred, instead of demanding performance.
To the extent that our liability for compensatory damages is excluded or restricted, this likewise applies in respect of the personal liability for compensatory damages attributable to our staff, employees, workers, representatives and vicarious agents.
9. Retention of ownership
We retain ownership of the item purchased until receipt of all payments due on the basis of the supply contract. In the event of behavior on the part of the customer at variance with the contract, in particular late payment, we are entitled to recover the item purchased. Our recovery of the item purchased also entails withdrawing from the contract. After having recovered the item purchased we are entitled to dispose of it, with the proceeds from such disposal being offset against the customer's debts, less the appropriate costs incurred for disposal.
The customer is obliged to handle the item purchased with care, and is in particular obliged to insure it adequately, at its as-new value and at the customer's own cost, against fire and water damage, and theft. Where maintenance and inspection works are necessary, the customer must carry these out in good time, at its own cost.
In the event of pledging or any other third-party intervention, the customer must notify us without delay in writing to allow us to raise an action under the terms of Section 771 of the German Code of Civil Procedure (ZPO). If the third party should not be in a position to recompense us for the in- and out-of-court costs of an action in accordance with Section 771 ZPO, then the customer shall be liable for the loss arising to ourselves.
The customer is entitled to sell on the item purchased in the course of proper business, however at this present juncture assigns to ourselves all claims to the amount of the final total of the invoice (including VAT) for our claim, arising in favor of the customer against its purchasers or third parties, this irrespective of whether the item purchased is sold on without or after any further processing. The customer remains entitled to collect this claim even after assignment has taken place. Our entitlement to collect the claim ourselves remains in force, unaffected. However we undertake not to collect the claim as long as the customer fulfills its payments obligations from the proceeds received, does not fall into arrears of payment and, in particular, there is no application for the initiation of composition or insolvency proceedings submitted and the customer does not fail to honor its payment commitments. If, however, this is the case we may demand that the customer notifies us of assigned claims and the relevant debtors, provides us with all of the information required for collection, hands over the associated documentation and notifies the assignment to the (third-party) debtors.
The customer also assigns to ourselves those claims as security for our claims against the customer arising as a result of associating the item purchased with some real estate property, in respect of a third party.
We undertake to release the securities in our favor at the request of the customer in the situation that the realizable value of our securities exceeds the claims to be secured by more than 10%, with the selection of the securities to be released being at our own discretion.
10. Assignment of our claims
We are entitled to assign our claims arising out of the business relationship to third parties. We will indicate this assignment in our invoice and request that payment be made directly to the factor. In this case reservation of ownership is also transferred over to the factor and our claims in relation to reservation of ownership are assigned to the factor.
11. Place of jurisdiction, place of fulfillment and applicable law
The place of jurisdiction for all disputes arising out of this contractual relationship is our registered office. However, we are entitled to raise an action against the customer before its local court. The factor is entitled to raise an action against the customer at the factor's registered office (District or Regional of Frankfurt am Main).
Unless otherwise stipulated in the order confirmation, our registered office is the place of fulfillment.
The contractual relationship is governed exclusively by the law of Germany with the exclusion of the UN CISG Purchase Law.