General terms and conditions
§ 1 General Scope
1. The business conditions apply for all present and future business relationships.
2. Any terms that are in conflict with or differ from the general terms and conditions will not become a contract component - even if they are known - unless their validity has been explicitly recognised in writing.
§ 2 Conclusion of a contract
1. Our offers are non-binding. We reserve the right to make all reasonable technical changes and changes to the shape, colour and/or weight.
2. On ordering the goods, the customer makes a binding declaration of his intent to purchase the goods. We are entitled to accept the contractual offer made in the order within two weeks after receipt by our company. Acceptance can either be declared in writing or by delivery of the goods to the customer.
3. The contract is subject to the reservation of correct and punctual self-delivery by our suppliers. This only applies in the event that we were not responsible for non-delivery, in particular when a cover transaction has been concluded with our supplier. The customer will be informed immediately that the goods/service are not available. Any payment made will be reimbursed immediately.
§ 3 Reservation of title
1. We reserve the title to the goods until full payment of any accounts receivable from a current business relationship.
2. Sample boards are also our property. They can be reclaimed at any time. If the customer is unable to return the sample boards in full and in a good condition at our request, we will bill a sum of 480.00 € or 240.00 € plus VAT depending on the type.
3. The customer has a duty to handle the goods with care. If maintenance tasks and inspections are necessary, the customer must carry these out at his own expense.
4. The customer must inform us immediately if a third party accesses our goods, for example in the case of a seizure, or if they are damaged in any way or destroyed. The customer must inform us immediately of any change in possession of the goods or if he changes his address. If the customer acts in violation of the contract, in particular in the event of a default in payment, we are entitled to take the goods back. For this purpose, the customer grants us access to enter his offices, premises and construction site, and to do everything possible to remove the goods. In the acceptance of returned goods and the seizure of goods by us, the contract is only rescinded if we expressly declare this in writing.
5. The customer is entitled to sell the goods in an orderly business transaction. He hereby assigns to us all claims to the amount of the final invoice accrued to him as a result of the sale to a third-party. We accept the assignment. Once the entrepreneur has assigned his claims, he is authorized to collect the accounts receivable. We reserve the right to assert and collect any such claim ourselves should the entrepreneur fail to meet his financial obligations and fall in arrears.
6. The customer always processes and handles the goods in our name and on our behalf. When the processing involves other objects not owned by us, we acquire co-ownership in the new product at a ratio of the value of the product supplied by us to the other processed products. The same applies if the goods are mixed with other objects not owned by us.
§ 4 Payment
1. The customer will undertake to pay the purchase price within 8 days after receiving the goods. Once this deadline has expired, the customer is in default of payment. During the arrears, the consumer will pay interest for the payment owed in the amount of 8 % above the basic interest rate. We reserve the right to provide evidence of and claim any greater damage caused by default.
2. The customer has a right to compensation only if his counter claims are found to be legally effective or enforceable, or if they are recognised by us. The customer is only entitled to exercise a right of retention, if his claim is based on the same contractual relationship.
3. If deliveries are made with a mobile crane, we will bill a construction site surcharge depending on the purchased quantity (see price list). Goods
§ 5 Passage of risk
1. The risk of accidental loss or accidental impairment will be transferred to the buyer upon handover of the goods; in the case of shipment, upon delivery of the goods to the forwarding agent, carrier or other person or institution designated with the task of performing shipment. This also applies if a freight-free delivery has been agreed. Delivery ‘free to construction site’ includes deliveries without unloading on negotiable access roads. There is no transportation into the construction site.
2. It is deemed equivalent to the handover, if the buyer is in default with the acceptance.
§ 6 Warranty
1. In the event of defects in the goods, we will choose to amend the defect through rectification or exchange at our discretion.
2. If the second attempt at improvement fails, the customer may either reduce the agreed compensation (reduction) or demand termination of the contract (rescission). In the event of a minor infringement of the contract agreement, particularly for marginal defects, the customer is not entitled to cancel the contract agreement.
3. The customer must notify us in writing of any obvious defects within 2 weeks of receipt of the goods; otherwise any warranty claim will be void. Timely dispatch is sufficient to observe the deadline. The customer has the full burden of proof for all pre-requisites for the claim, in particular for the defect itself, for the time when the defect is determined and for the timely report of the defect.
4. In case of an effective notice of defect, the customer must, at our request, arrange for the quality of the goods to be recorded by a neutral expert. Claims based on the defectiveness of the goods will become void, if the buyer does not give us or our sub-suppliers the opportunity to check the defect described on the premises or to have it checked, or if the buyer does not make samples immediately available as requested. All warranty claims will remain effective, if the processing of the goods is not stopped immediately after the fault is detected, or if our goods are mixed with goods of other manufacturers, up to the express release of the goods by us or our sub-suppliers. At the same time, the customer must name the buyers of the products to whom the goods were shipped.
5. If the customer chooses to withdraw from the contract on the grounds of defect of title or material defect following failed subsequent performance, he is not eligible for any claims for damage on the grounds of the defect. If the customer chooses to claim damages after an unsuccessful subsequent performance, the goods will remain with the customer, if this can reasonably be expected of him. Damages are limited to the difference between the purchase price and the value of the faulty item. This does not apply, if we have maliciously caused this violation of contract.
6. If claims for compensation are made against us from a claim from the customer lodged by his own customers, our liability, where appropriate, will be the same as if we had sold directly to the end customer. If an end customer makes a claim against the customer for a reason which originates in the defectiveness of the goods sold, the customer is obliged to immediately inform us thereof. He is also obliged to allow his buyer to claim for compensation against himself, unless we recognise our obligation to effect compensation to the customer or his buyer, or we renounce the right to legal proceedings. If the customer’s buyer takes action against him, the customer must give us the opportunity to participate in the legal dispute.
7. The warranty period will comprise 1 year from the delivery of the goods. This does not apply if the customer has failed to notify us of the defect in due time (clause 3 of these provisions).
8. In terms of the quality of the goods, only the product description by the manufacturer is deemed as agreed. Public statements, claims or advertisements by the manufacturer do not constitute contractually guaranteed characteristics of the goods. Chemical reactions during the setting process can lead to blooming in the initial phase in all dyed concrete goods, also our products. This does not give grounds for complaint. The effect of the weather may mean that the tiles/slabs return to their original colour after some time.
9. If the customer receives a faulty set of installation instructions, we are only obliged to supply a correct set of installation instructions and only if the error in the installation instructions could hinder correct installation of the product. Information about processing and application options of our products, technical support and recommendations are provided to the best of our knowledge, however they are non-binding and without any liability.
10. The customer will not receive independent guarantees from us in the legal sense. Manufacturer guarantees are not affected by this.
§ 7 Limitations of liability
1. In the case of slightly negligent violations of obligations, our liability is limited to the foreseeable, direct, average damages typical for the contract. This also applies to slightly negligent violations of obligations by our legal representatives and other vicarious agents. We will not be liable in case of insignificant negligent violation of minor contractual obligations.
2. The aforementioned liability restrictions do not apply to claims of the customer arising from product liability. Furthermore, the liability limitations are not valid for bodily harm and health injuries attributable to us, or loss of life of the customer.
3. The customer's claims for damages due to a defect come under the statute of limitations after 1 year from the delivery of the goods. This does not apply, if we are accused of malice.
§ 8 Final provisions
1. The laws of the Federal Republic of Germany will apply. The provisions of the UN Convention on Contracts for the International Sale of Goods do not apply.
2. If the customer is a merchant, legal entity of public law or of a special fund under public law, Germany is the exclusive place of jurisdiction for all disputes arising from the contract. The same applies, if the customer has no place of jurisdiction in Germany or if his domicile or place of residence is not known when the action is filed.
3. If individual provisions of the contract with the customer, including these standard conditions and terms of business, should be or become partly or wholly legally invalid, this will not affect the validity of the remaining provisions. The partly or wholly ineffective regulation must be replaced with a regulation that best approximates the original intent of the ineffective regulation.
Lohne, April 2011