General terms and conditions

1 Scope

These Terms and Conditions of Sale and Delivery shall apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). They form the basis of all offers, order confirmations and delivery agreements. The terms and conditions shall also apply to all future transactions with the customer. Conflicting general terms and conditions of the purchaser are contradicted.

2 Contract

The contract is concluded after receipt of the order in text form with the dispatch of our order confirmation in text form.
In the case of order quantities in excess of 5000 m², custom-made products or in justified individual cases, we reserve the right to request confirmation from the customer again in writing in our order confirmation.

3 Subject matter of the contract

Deviations in color, weight, raw material composition, design and dimensions are possible due to manufacturing conditions and customary in the industry. The same applies to deviations of our products from samples and specimens, especially in the case of technical progress.
These deviations do not constitute a defect.
We reserve the right to deviate in quantity by up to 2% from the agreed delivery quantity in the case of standard goods and by up to 5% in the case of special items, insofar as this is necessary for technical production reasons or reasons relating to the supply of raw materials and insofar as these changes are reasonable for the customer.

4 Risk assumption

All deliveries shall be ex works.
If the goods are shipped to the Purchaser at the Purchaser's request, the risk of accidental loss or accidental deterioration of the goods shall pass to the Purchaser upon dispatch to the Purchaser, at the latest upon leaving the works. This shall apply irrespective of who bears the freight costs.

5 Prices

All prices are in Euro plus the statutory value added tax.
Unless otherwise agreed in writing, our prices are ex works excluding packaging.
Transport costs and costs for Euro pallets shall be borne by the customer. In case of return of pallets, the invoiced price per piece will be credited.

6 Payments

Unless otherwise agreed, payment is due within 10 days of the invoice date.
The deduction of a cash discount is only permissible with a special written agreement and only from the net value of the goods excluding freight, packaging and transport costs.
The deduction of an agreed cash discount by the Purchaser is only permissible if all previous invoices have been paid in full.
If the goods are delivered later than 4 months after conclusion of the contract, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries, insofar as they are limited to the prices enforced on the market.
The Purchaser shall only be entitled to set off counterclaims if these have been acknowledged or have become res judicata.
If we become aware of circumstances that give rise to serious doubts about the solvency or creditworthiness of the customer, we shall be entitled, irrespective of the agreed term of payment, to declare all outstanding - including deferred - invoice amounts due immediately and to make further deliveries dependent on advance payments or the provision of appropriate security by the customer.
If a check handed over to us is not honored by the customer's bank or if the customer stops making payments, we are entitled to demand immediate payment of the entire remaining debt.

7 Retention of title

We retain title to the delivered goods until full payment - also of future - claims arising from the business relationship.
The retention of title shall also remain in force if individual claims of the supplier are included in a current invoice and the balance is drawn and acknowledged.
If goods subject to retention of title are processed by the Purchaser to form a new movable item, the processing shall be carried out on behalf of the Supplier without the Supplier being obliged as a result. The new item shall become the property of the supplier. In the event of processing, mixing or blending with goods not belonging to us, we shall acquire co-ownership of the new item in proportion to the invoice amount of the reserved goods to the total value.
The Purchaser shall be entitled to resell or further process the goods subject to retention of title in the normal course of business subject to the following provision:
a) The Purchaser hereby assigns to us its claims against its customer in the amount of the final invoice amount agreed with us (including value added tax).
This assignment shall apply irrespective of whether the purchased goods have been resold without or after processing.
b) If the goods have been processed, mixed or blended and we have acquired co-ownership in the amount of our invoice amount, we shall be entitled to the assigned purchase price claim in proportion to the value of our rights to the goods.
If the customer acquires claims for payment of value against third parties from the processing of the reserved goods, he hereby assigns to us the invoice amount of the reserved goods together with all ancillary rights.
c) If the orderer has sold his claims within the scope of a genuine factoring, our claim shall become due immediately and the orderer shall assign to us the claims against the factor taking their place and shall immediately forward the proceeds of the sale to us.
d) The assignments shall be expressly accepted by us.
e) The orderer shall be authorized to collect the assigned claims as long as he meets his payment obligations. The authorization to collect shall expire upon revocation, at the latest upon default of payment by the customer or upon a significant deterioration of the customer's financial situation, in particular upon filing for insolvency proceedings.
f) If the value of the securities existing for us exceeds our total claims by more than 20%, we shall be obligated to release the excess securities at our discretion upon request by the customer or a third party impaired by the excess security.
g) Pledging or assignment as security of the reserved goods or the assigned claims is not permitted. We must be notified immediately of any seizure, stating the name of the seizure creditor.
h) We are entitled to satisfy our claims from repossessed goods subject to retention of title by private sale.

8 Delivery time

The commencement of the delivery period stated by us is subject to the timely and proper fulfillment of the purchaser's obligations. We reserve the right to plead non-performance of the contract.
If the customer is in default of acceptance or culpably omits other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.
If the above conditions are met, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.
Force majeure, riots, disputes, lockouts, unforeseen shortages of raw materials, failure of correct or timely self-supply and operational disruptions for which we are not responsible shall extend the agreed delivery period for their duration.
If the Supplier is in default, the Purchaser may, after having granted a reasonable grace period, claim compensation for any damage caused by the delay. This claim shall be limited to a maximum of 5% of the agreed price for that part of the delivery which could not be put to the intended use due to the delay, if the Supplier or its vicarious agents did not act intentionally or with gross negligence.
If the Purchaser is entitled to claim damages in lieu of performance due to the Supplier's delay, such claim shall be limited to a maximum of 30% of the price of that part of the Supplies which, owing to the delay, cannot be put to the intended use, unless the Purchaser can prove that the damage suffered was higher.

9 Duties to give notice of defects

The warranty rights of the purchaser presuppose that he has duly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB). The purchaser must give notice of obvious defects without delay, at the latest 7 days after receipt of the goods at the place of destination.

10 Warranty and notice of defects, recourse/ manufacturer's recourse

Claims for defects become time-barred 12 months after delivery.
A notice of defect does not entitle the customer to refuse unloading of the goods or to return the consignment unless we have given our prior consent.
We have the right to inspect the rejected goods. Upon request, samples shall be sent to us at our expense.
If the delivered goods have a defect which was already present at the time of the transfer of risk, we may, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects.
If the subsequent performance fails, the Purchaser may - without prejudice to any claims for damages - withdraw from the contract or reduce the remuneration.
Claims for defects shall not exist in the case of natural wear and tear as well as in the case of damage occurring after the passing of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials, defective construction work, unsuitable building ground or due to special external influences which are not agreed under the contract.
The Purchaser's right of recourse against us shall exist only within the scope of the warranty, but not if the Purchaser has entered into agreements with its customer exceeding the statutory mandatory claims for defects.

Rights of recourse pursuant to § 478 BGB shall remain unaffected.
Further or other claims of the purchaser against us due to a material defect are excluded.
Tiles that are not declared as grade 1 do not meet the quality requirements. They may show edge damage, hairline cracks, burnt brush hairs and the like. This does not constitute a defect.
If we have to deliver according to specifications, samples, etc. of the purchaser, the purchaser shall bear the risk of suitability for the intended use. The same applies if production deviates from the valid product descriptions at the express request of the purchaser. Possible consequences of such deviations shall be borne by the Purchaser.

11 Liability

We shall be liable without limitation for damages in the event of intent - including intent on the part of our vicarious agents and representatives - and gross negligence; furthermore, we shall be liable without limitation for damages in the event of bodily injury or personal injury as well as damages resulting from violations of the Product Liability Act.
In the event of negligent breach of material contractual obligations, claims for damages against us shall be limited to compensation for typical and foreseeable damage, except in the case of bodily injury or personal injury or damage resulting from violations of the Product Liability Act.

12 Place of performance and jurisdiction

The place of performance for all services and the place of jurisdiction for both parties is Zahna.

13 Applicable law

All contractual relations between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

14 Data protection

We store, process and use the data of our contractual partners for the establishment, implementation and termination of the contractual relationships existing with them in accordance with the provisions of the Federal Data Protection Act.

15 Final provision

Should individual provisions be or become invalid in whole or in part, the remaining provisions shall remain valid.
Zahna-Elster, 09/2017