General Terms and Conditions of Business

1. Scope

These terms and conditions of sale and delivery apply exclusively to entrepreneurs, legal persons under public law or special funds under public law as defined in Section 310(1) BGB [Bürgerliches Gesetzbuch or German Civil Code]. They form the basis for all offers, order confirmations and supply agreements. The terms and conditions of business also apply to all future transactions conducted with the purchaser. These general terms and conditions of business shall prevail over those of the purchaser if a conflict exists between them.

2. Contract

  1. The contract shall take effect upon receipt of the written order along with dispatch of our written order confirmation.
  2. 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 that the customer provide repeat confirmation in writing in our order confirmation.

3. Object of the contract

  1. Deviations may exist with respect to colour, weight, raw material composition, design and size. These are customary in the industry and depend on the manufacturer used. The same applies to deviations between our products and samples and models, particularly due to technical advancements.
    These deviations do not constitute defects.
  2. We are entitled to deviations in quantity with respect to the agreed quantity supplied with a maximum tolerance of 2% for standard products and 5% for special items insofar as manufacturing or raw material supply issues necessitate this and insofar as the purchaser accepts these changes.

4. Risk assumption

All deliveries shall take place ex works.
If the goods are dispatched to the purchaser at its request, the purchaser shall assume the risk of accidental loss or deterioration of the goods upon dispatch thereto, at the latest upon their release from the factory. This shall apply regardless of whichever party bears the freight costs.

5. Prices

  1. All prices are in euros and do not include statutory value-added tax.
  2. Unless otherwise agreed in writing, our prices shall apply ex works excluding packaging.
  3. The purchaser shall bear the costs for transport and EUR-pallets. Returned pallets will be credited on the basis of the invoiced price per pallet.

6. Payments

  1. Payments will fall due within ten days of the invoice date unless otherwise agreed.
  2. Discounts are only permissible if specifically agreed in writing and apply exclusively to the net value of the goods exclusive of freight, packaging and transport costs.
    The deduction of an agreed discount by the purchaser is only permissible if all previous invoices have been settled in full.
  3. The right to amend prices within reason (in as much as they do not exceed market-established prices) due to differing labour, material and distribution costs for deliveries shall exist if the goods are delivered over 4 months after conclusion of the contract.
  4. The purchaser may only offset payments against counterclaims if they have been recognised by us or a declaratory judgment.
  5. If we become aware of circumstances that cast serious doubt as to the purchaser’s solvency or creditworthiness, we will be entitled, no matter the agreed payment date, to demand immediate payment of all outstanding invoice amounts, including deferred amounts, and to make further deliveries conditional on prepayments or the appropriate provision of collateral on the part of the purchaser.
  6. If the purchaser’s bank is unable to cash a check in our favour or if the purchaser suspends its payments, we shall be entitled to demand immediate payment of the entire balance due.

7. Retention of title

  1. We reserve the ownership right over the supplied goods until full receipt of payment, including future payment, of all claims arising from the business relationship.
    The retention of title shall also continue to exist even if individual claims of the supplier have been included on an outstanding invoice and the balance has been drawn and accepted.
  2. If the purchaser incorporates the retained goods into a new movable item, such incorporation shall be for the benefit of the supplier without the latter being obligated hereby. The supplier shall be the owner of the new item. If incorporation, mixing or combining is carried out with goods that do not belong to us, we shall co-own the new item in the ratio of the invoiced value of the retained goods to the total value.
    The purchaser is entitled to resell or further process the retained goods in the ordinary course of business in consideration of the below provision:
    a) In so doing, the purchaser shall immediately assign to us its claims against its customer equivalent to the final invoice amount agreed with us (including value-added tax).
    Such claims shall be assigned regardless of whether the purchased item has been resold with or without use.
    b) If the goods have been incorporated, mixed or combined and if we have acquired co-ownership thereof equal to our invoice amount, we shall be entitled to the assigned purchase price claim proportional to the value of our rights to the goods.
    If the use of the retained goods results in the purchaser acquiring claims against third parties in relation to regular pay, it shall assign these to us in the amount of the invoice value of the retained goods, including all ancillary rights.
    c) If the purchaser has sold its receivables under non-recourse factoring, our receivable shall fall due immediately and the purchaser shall assign the substitute claims in respect of debts assumed by the factor to us and immediately transfer the sales proceeds to us.
    d) We shall expressly accept the assigned claims.
    e) The purchaser shall be entitled to collect the assigned claims as long as it meets its payment obligations. The collection authorisation shall lapse if revoked, but at the latest with a default in payment on the part of the purchaser or upon a substantial deterioration of its financial situation, in particular if an application is filed for insolvency proceedings.
    f) If the value of the securities provided for us exceeds the total amount of our claims by more than 20%, we shall be obliged to release the securities exceeding this limit at our discretion at the request of the purchaser or a third party affected by the excess security.
    g) Pledges or security transfers of the retained goods or the assigned claims respectively are not permitted. We must be notified immediately of any attachments and such notifications must indicate the attaching creditor.
    h) We are entitled to satisfy ourselves by selling repossessed retained goods on the open market.

8. Delivery period

  1. Our stipulated delivery period shall only commence after the purchaser has duly met its obligations on time. We reserve the right to object to non-performance of the contract.
  2. If the purchaser delays acceptance or culpably fails to carry out other obligations to cooperate, we shall be entitled to claim compensation for any loss or damage that we have suffered in this respect, including any additional expenditure. Any further claims remain reserved.
    Upon fulfilment of the above conditions, the risk of accidental loss or deterioration of the goods shall transfer to the purchaser at the time that the latter enters into default of acceptance or payment.
  3. The agreed delivery period will be extended in the event of force majeure, riots, strikes, lockouts, unforeseen shortages of raw materials, a lack of proper or timely self-delivery and disruptions to operations that are not our fault for the period thereof.
  4. If the supplier fails to meet the deadline, the purchaser may request compensation for any loss or damage suffered as a result of that delay, after having set a reasonable extended deadline. In the event of an action on the part of the supplier or its vicarious agents that is neither intentional nor grossly negligent, this claim shall be capped at 5% of the agreed price for the part of the delivery that could not be put into operation for its intended purpose due to the delay.
  5. To the extent that the purchaser is entitled to request compensation in lieu of performance as a result of the supplier’s failure to meet the deadline, in the event of damages that are attributable to an action that is neither intentional nor grossly negligent, this claim shall be capped at 30% of the price for the part of the delivery that cannot be put into operation for its intended purpose due to the delay, unless the purchaser is able to furnish proof that it has suffered a greater degree of loss or damage.

9. Notification of defects

  1. The purchaser’s warranty rights are subject to the purchaser duly fulfilling its obligations to carry out inspections and give notice of defects under Section 377 HGB [Handelsgesetzbuch or German Commercial Code]. The purchaser must give immediate notice of obvious defects, no later than 7 days after receipt of the goods at the place of destination.

10. Warranty and notice of defects, recourse/manufacturer recourse

  1. Claims for defects shall lapse 12 months after delivery.
  2. A notice of defects does not entitle the purchaser to refuse to unload the goods or to have the consignment returned unless we have granted our preapproval.
  3. We are entitled to inspect the rejected goods. Samples must be sent upon request, the costs for which will be borne by us.
    If the supplied goods exhibit a defect that was already present when the risk was transferred, we may, at our discretion and if defects have been notified on time, either repair the goods or supply replacement goods.
    If subsequent performance fails, the purchaser may terminate the contract or reduce the level of remuneration, irrespective of any pending compensation claims.
  4. No claims for defects exist for natural wear and tear, such as in the event of damage caused after the risk has been transferred as a result of incorrect or negligent handling, excessive use, unsuitable equipment, defective construction work, unsuitable subsoil or due to exceptional external factors which were not stipulated in the contract.
    The purchaser’s claims to recourse against us shall be limited to those under the warranty. However, the purchaser shall have no right of recourse if it has concluded agreements with its customer that go beyond the mandatory statutory claims for defects.

    Recourse claims in accordance with Section 478 BGB shall remain unaffected.
  5. Further-reaching or other claims made by the purchaser against us due to a material defect shall be excluded.
    Tiles that have not been declared as grade 1 will not meet the quality requirements. These tiles may have damaged edges, hairline cracks, brush hairs during the firing process, etc. These do not constitute defects.
  6. If we are required to supply goods in line with the purchaser’s specifications, templates, etc., then the purchaser shall bear the ownership risk for their intended use. This shall also apply if the purchaser expressly requests that goods be produced that differ from the current product descriptions. The purchaser shall bear the costs for any consequences as a result of the deviations.

11. Liability

  1. We shall be liable for unlimited compensation for loss or damage in cases of gross negligence and intent, including on the part of our vicarious agents and representatives. In addition, we shall be liable for unlimited compensation for damages in the event of physical or personal injury as well as loss or damage ensuing from a breach of product liability law.
  2. In the event of a negligent breach of essential contractual duties, compensation claims made against us are limited to typical and foreseeable damage, except in cases of physical or personal injury or loss or damage ensuing from a breach of product liability law.

12. Place of performance and legal venue

The place of performance for all services and legal venue for both parties shall be Zahna.

13. Applicable law

All contractual relationships between the parties shall be governed by the law 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 our contractual partners’ data to establish, perform and complete our contractual relationships with them in accordance with the provisions of the Federal Data Protection Act.

15. Final provision

If any provision herein should be or become totally or partially invalid, the remaining provisions shall remain unaffected.
Zahna-Elster, 09/2017

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