The following terms and conditions apply exclusively to business transactions with companies. For consumers the legal regulations apply.
SECT. 1 GENERAL INFORMATION – SCOPE OF APPLICATION
1. These General Terms and Conditions shall apply to all existing and future relationships with other businesses. Businesses, which are also customers for the purposes of these General Terms and Conditions, shall include natural persons or separate legal entities or partnerships with an independent legal capacity, with which a business relationship is established and which carry out a commercial or independent professional
2. Any terms and conditions of the customer which vary from, contradict or supplement these General Terms and Conditions shall not form part of the contract – even where we are aware of their existence – unless we have expressly consented to their application.
SECT. 2 CONCLUSION OF THE CONTRACT
1. All offers made by us shall be subject to change. We reserve the right to make technical changes and changes to the shape, colour and/or weight where the customer can be reasonably expected to accept such changes.
2. In placing an order for a specifi c product, the customer shall be deemed to make a binding declaration that he wishes to purchase the product ordered. We shall be entitled to accept the contractual offer contained in the order within two weeks of its receipt by us. Formal acceptance of the order can be declared either in writing or by
delivering the product in question to the customer. Confi rmation of arrival or receipt shall not represent formal acceptance of the offer.
3. When the contract is concluded, it shall be understood that fulfi lment is subject to there being no disruption to operations, problems over the availability of products or industrial action. This reservation includes the proviso that we ourselves are supplied in good time with the correct goods by our worldwide strategic manufacturing partners. The latter proviso shall only apply where we are not responsible for the failure to supply a product, in particular where we have entered into a corresponding forward covering transaction with our partners. The customer shall be notifi ed as soon as possible where a particular contractual service is not available. Any consideration already paid shall be refunded as quickly as possible.
SECT. 3 RESERVATION OF TITLE
1. We reserve title to the goods until full and fi nal settlement has been made of any outstanding amounts in relation to an ongoing business relationship.
2. The customer shall be obliged to handle the goods with due care.
3. The customer shall be obliged to notify us immediately of any access to the goods by a third party, e.g. in the case of a seizure of assets, and of any damage to or destruction of the goods. The customer shall advise us immediately of any change of possession of the goods and of any change in its registered offi ce or domicile.
4. We shall be entitled to withdraw from the contract in the event of a breach of the contract by the customer and in particular where the customer defaults on payment or breaches any of his obligations under point 3. under such circumstances we may demand the return of the goods.
5. The business shall be entitled to sell the goods on in the ordinary course of business. It hereby assigns to us at this point all his own claims to payment against a third party arising out of the disposal of the goods up to the invoice amount. We accept the above assignation. Following the assignation the business shall be entitled to collect the outstanding claim on our behalf. We reserve the right to collect the outstanding amount ourselves as soon as the business fails to comply properly with its contractual obligations and enters into default. At our request the purchaser shall disclose the assignation and give us the necessary information and documentation.
6. Any processing or modifi cation of the goods by the business shall in all cases be carried out on our behalf and for our account albeit without obligation on our part. Where the goods are modifi ed using objects that do not belong to us, we shall acquire shared title of the new item in the proportion of the value of the goods supplied by us to the other modifi ed objects. This provision shall also apply where the goods are mixed with other objects that do not belong to us.
7. In order to secure any claims we may have against the client, the client also undertakes to transfer to us any entitlements that a third party assigns to the client as a result of the connection of the object of purchase with a plot of land.
8. We undertake to release the collaterals to which we are entitled at the client’s request in so far as the realisable value of our collaterals exceeds the claim they serve to secure by more than 10%; the choice of collaterals to be released is at our discretion.
SECT. 4 REMUNERATION
1. Our prices do not include VAT, which will be shown separately in the invoice at the prescribed rate on the billing date.
2. Our prices do not include shipping costs and any COD charges.
3. Except in the case of prepayment, our invoices shall be payable immediately and net (without deductions). The provisions of the law shall apply with respect to the consequences of defaulting on payment.
4. In the case of contracts with an agreed delivery period of more than fi ve weeks, we reserve the right to increase or reduce prices in line with any changes to our costs that may occur, in particular as a result of wage agreements or changes in the price of materials. On request, we shall provide evidence to the customer of any such changes
in our costs.
5. Bills of exchange and cheques shall only be accepted by agreement and for the purpose of fulfilment. They may only be accepted as payment once they have been cashed without further reservation. Discount and collection charges shall be payable by the customer.
6. The customer shall only be entitled to offset where his counter-claims have been established with final and binding effect or are undisputed or accepted by us. The customer shall only exercise a right of retention where his counter-claim is based on the same contractual relationship.
SECT. 5 TRANSFER OF RISK
1. The risk of accidental destruction or deterioration of the goods, in particular with respect to breakage and deficiency, shall be transferred to the purchaser at the point of handover or, in the case of mail order, at the point when the item is released to the shipping or freight agent or other person or body designated to carry out the delivery.
2. The goods shall be considered to have been handed over even where the purchaser is in default in accepting delivery.
SECT. 6 WARRANTY
1. With respect to commercial transactions, the customer‘s rights to redress in the event of a defect shall be subject to the correct fulfilment by the customer of his obligations under Sections 377, 378 of the German Commercial Code (HGB) in relation to any examination and complaint.
2. Complaints about obvious defects must reach us within eight days; otherwise, the delivery shall be considered to have been formally accepted.
3. In the event of a defect we shall be entitled to choose between subsequent performance in the form of rectifi cation of the defect or the provision of a new item in perfect condition.
4. Where the attempt at subsequent performance is unsuccessful, the customer may choose either to cancel the contract or accept a reduction in price. In the case of negligible defects the customer shall not be entitled to cancel the contract.
5. Where the customer opts to withdraw from the contract after an unsuccessful attempt at subsequent performance, he shall not be entitled to compensation.
6. Rights to compensation are subject to § 7. Any expenditure incurred in removing a defective item and the installation or fitting of a reworked or newly delivered defect-free item in accordance with Art. 439 (3) of the German Civil Code (BGB) will only be reimbursed if the defect in an item sold is attributable to a deficiency on our part.
7. The guarantee obligation for tools, appliances, fastenings and accessories shall apply for one year beginning with the delivery of the goods except in the case of claims in relation to a real right of a third party based on which the return of the purchase item can be demanded, or defects in construction or an item that has been used for
construction in line with its usual purpose and that was responsible for creating the defective state.
8. The only agreed properties of the goods shall be those listed in our product description. Public statements, promotional recommendations or advertising shall not represent contractually agreed properties of the goods. Demonstration samples of natural stone can only show the general colour and structure of the stone. Natural deposits, veins, marks and colour variations in natural stone shall therefore not be accepted as grounds for a complaint as they form part of the normal properties of the goods. The normal level of breakage and impact damage expected within the trade up to 8% shall not be accepted as grounds for a complaint.
9. We offer no warranty in the strict legal sense. This shall not affect any manufacturer‘s warranty.
10. Goods may not be returned. In exceptional cases, which require a special written agreement, we shall charge a warehouse return fee of at least 20% of the value of the goods.
SECT. 7 TOTAL LIABILITY
1. Our liability shall be subject to the provisions of the relevant legislation in cases where the customer asserts a claim for compensation based on intent or gross negligence including the intent or gross negligence of our representatives or vicarious agents. In cases where we are not to blame for a wilful breach of contract, our liability to provide compensation shall be limited to typical and foreseeable damage.
2. Our liability shall be subject to the provisions of the relevant legislation in cases where we are in culpable breach of a material contractual obligation; in such cases our liability to provide compensation shall be limited to typical and foreseeable damage.
3. The above limitations shall not affect our liability in cases of death or personal injury or our statutory liability under product law.
4. We cannot accept any other liability to provide compensation regardless of the legal nature of the claim asserted. This exclusion shall apply in particular in the case of compensation claims based on culpa in contrahendo, other breaches of contractual obligations or tortious claims for compensation asserted for material damage in accordance with Section 823 of the German Civil Code (BGB).
5. The limitation under para. 4 above shall also apply in cases where the customer demands compensation for needless expenditure instead of a claim for compensation in lieu of performance.
6. All limitations and exclusions of liability shall also apply to the personal liability for compensation of our salaried employees, workers, colleagues, representatives and vicarious agents.
SECT. 8 FINAL PROVISIONS
1. The contract shall be subject to the law of the German Federal Republic. The provisions of the UN Convention on the International Sale of Goods shall not apply, even where the customer‘s registered offi ce is located in another country.
2. The place of fulfi lment shall be Mayen. Where the customer is a merchant, legal entity under public law or a special fund under public law, our registered offi ce shall be the sole place of jurisdiction for all disputes arising from this contract including any courtordered collection procedure. This provision shall also apply where the customer has no general place of jurisdiction in Germany or where his domicile or usual place of
residence at the time proceedings are instituted is not known.
3. Where any individual terms of the contract with the customer including these General Terms and Conditions are or become wholly or partly invalid, this shall not affect the validity of the remaining terms. The wholly or partly invalid provision shall be replaced by another provision whose economic purpose best matches that of the invalid provision.