General Terms and Conditions

Section 1: Scope of Application, Form

(1) These general terms and conditions (hereinafter referred to as our “GTC”) shall apply to all business relationships with our customers (hereinafter referred to as the “buyer”). These GTC shall only apply if the buyer is a “trader” as defined in Section 14 of the German Civil Code (BGB), a legal person under public law or a special fund under public law.

(2) These GTC shall apply in particular to contracts for the sale and/or delivery of movable objects (hereinafter referred to as “goods”), regardless of whether we manufacture the goods ourselves or purchase them from suppliers (see Sections 433 and 650 BGB). Unless otherwise agreed, the version of these GTC in effect at the time an order is placed by the buyer – or at least the version most recently shared with the buyer in text form – shall also apply as a framework agreement to any similar contracts that may be concluded in the future, without the need for us to refer to that version again in each individual case.

(3) Our GTC shall apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the buyer shall only be included in the contract if we explicitly approve their validity. We must grant our approval in each case (e.g. even if the buyer refers to its own general terms and conditions when placing an order and we do not explicitly object to them).

(4) Any individual agreements concluded with the buyer (framework supply agreements or quality assurance agreements, including any side agreements, additions or amendments) shall take precedence over these GTC in each case. 

(5) Any legally relevant declarations and notifications to be submitted by the buyer in relation to the contract (e.g. deadlines, notification of defects, withdrawal from the contract or reduction in fees) must be made in text form (Section 126b BGB) to be effective.

(6) Any references to the validity of statutory provisions are only made for clarification purposes. The statutory provisions shall therefore also apply without such clarifying references, unless they are directly amended or explicitly excluded by these GTC.

 

Section 2: Conclusion of Contract

(1) Our offers shall be non-binding and subject to change. This shall apply even if we provide the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents (including electronic files) to which we reserve the relevant property rights and copyrights.

(2) As soon as an order is placed for goods, the buyer shall be deemed to have made a binding offer to enter into a contract. Unless otherwise stated in the order, we shall be entitled to accept this offer to enter into a contract within two weeks of receiving the order.

(3) We may also accept the offer by delivering the goods to the buyer.

 

Section 3: Delivery Deadlines and Delays

(1) A separate delivery deadline shall be agreed in each case or shall be specified when we accept the order. If this is not the case, the delivery deadline shall be approximately 4 weeks from the point at which we enter into the contract. 

(2) If the buyer fails to perform any agreed obligation to cooperate, including any obligation to make payment in advance, within the prescribed period, the delivery deadline shall be extended by a reasonable period. In any event, the extension shall be no shorter than the period from the date on which the buyer’s obligation became due until the date on which the buyer performed that obligation.

(3) If we cannot meet a binding delivery deadline for reasons not attributable to us (unavailability of the service), we shall immediately inform the buyer and indicate the new expected delivery date. If the service cannot be provided by the new delivery date, we shall be entitled to withdraw from all or part of the contract; we shall immediately reimburse the buyer for any payments that have been made. The service shall particularly be considered unavailable in this sense if we do not receive deliveries on time from our supplier, provided we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure the goods in a particular case.

(4) The onset of a delivery delay shall be governed by the statutory provisions. However, the buyer must first issue a reminder in each case.

(5) Notwithstanding the above, the buyer may exercise the rights described in Section 8 below and we may exercise our statutory rights, particularly if we are released from our obligation to perform the contract (e.g. due to the impossible or unreasonable nature of the service and/or rectification measures).

 

Section 4: Delivery, Transfer of Risk, Acceptance, Delayed Acceptance

(1) As deliveries shall be made ex stock, our warehouse shall be the place of performance for the delivery and any rectification measures. The goods shall be shipped to another destination at the buyer’s request and expense (hereinafter referred to as a “sale involving the carriage of goods”). Unless otherwise agreed, we shall be entitled to choose the method of shipment ourselves (in particular the transport company, shipping route and packaging) and shall not be obliged to insure the shipment.

(2) The risk of accidental loss and deterioration shall be transferred to the buyer, at the latest, when the goods are handed over to the buyer. In the case of sales involving the carriage of goods, however, the risk of accidental loss and deterioration – and the risk of delay – shall pass to the buyer when the goods are handed over to the forwarding agent, carrier or any other person or institution assigned to carry out the shipment. If a formal acceptance procedure has been agreed, this shall determine the transfer of risk. The statutory provisions on contracts for work and services shall also apply accordingly to any agreed acceptance procedure. The goods shall be deemed to have been handed over or accepted if the buyer is in default of acceptance.

(3) If the buyer is in default of acceptance, if the buyer fails to cooperate as required, or if our delivery is delayed for other reasons attributable to the buyer, we shall be entitled to claim compensation for the resulting damage, including any additional expenses (e.g. storage costs). In such cases, we shall charge a lump sum of compensation amounting to 0.5% of the net value of the goods for each calendar week or part thereof, starting with the delivery deadline or, in the absence of a delivery deadline, starting from the moment in which the buyer is notified that the goods are ready for dispatch, but not exceeding 5% of the net value of the goods. We reserve the right to prove that we have incurred greater damage and to assert our statutory rights (particularly our right to demand the reimbursement of additional expenses, reasonable compensation, termination); however, the lump sum shall be deducted from any further monetary claims. The buyer shall be entitled to prove that we have incurred no damage at all or substantially less damage than the above lump sum.

(4) We shall be entitled to make partial deliveries if they can be used by the buyer for the contractually intended purpose, if the delivery of the remaining ordered goods is ensured and if the buyer does not incur any significant additional effort or costs as a result (unless we explicitly agree to cover the costs).

(5) If we deliver our goods on pallets, the buyer shall, upon delivery, ensure that an equal number of pallets of equivalent value are provided and handed over for return. If the buyer fails to provide the required number of pallets or provides pallets that are not of equivalent value, we shall be entitled to charge a lump sum of compensation amounting to € 15 for each pallet of equivalent value that is not provided. Once this compensation has been paid, our claim to the provision of a pallet of equivalent value shall lapse.

 

Section 5: Prices and Payment Terms

(1) Unless otherwise agreed in a specific case, our prices valid at the time the contract is concluded shall apply ex stock (plus the statutory rate of value added tax).

(2) If tiles are to be sold at a price per square metre, the area shall be calculated based on the nominal dimensions of the tile stated in the product description.

(3) In the case of sales involving the carriage of goods, as described in Section 4 (1) above, the buyer shall cover the costs incurred to transport the goods from our warehouse and the cost of any transport insurance requested by the buyer. Any customs duties, fees, taxes and other public charges shall be borne by the buyer.

(4) The purchase price shall be due for payment in full when the invoice is issued and the goods have been delivered or accepted. However, we shall be entitled to make all or part of a delivery subject to a prepayment at any time, even during an ongoing business relationship. We shall announce such a proviso, at the latest, when issuing the order confirmation.

(5) If a cash discount is individually agreed with the buyer in a particular case, the following shall apply: No cash discount may be deducted from a new invoice while any older invoice remains outstanding. A cash discount may only be deducted if the invoice has been paid in full within the agreed discount period. The cash discount shall only apply to the net value of the goods.

(6) The buyer shall only be entitled to exercise a right to offset claims or a right of retention if its counterclaims are undisputed or legally established. If any defects are found in the goods, however, the buyer shall be entitled to exercise certain rights, particularly those stipulated in the second sentence of Section 7 (6) of these GTC.

(7) If it becomes apparent that our claim to the purchase price is jeopardised by the buyer’s solvency after the contract has been concluded (e.g. if an application is filed for insolvency proceedings), we may refuse to provide our services and, perhaps after setting a grace period, to withdraw from the contract in accordance with the statutory provisions (Section 321 BGB). In the case of contracts for the production of custom-made items, we may declare our withdrawal immediately; the legal provisions on the dispensability of setting a grace period shall remain unaffected.

 

Section 6: Retention of Title

(1) We shall retain ownership of the goods until all present and future claims arising from the purchase contract and our ongoing business relationship (hereinafter referred to as “secured claims”) have been settled in full.

(2) The goods subject to retention of title must not be pledged to third parties or assigned as security until the secured claims have been settled in full. The buyer must immediately notify us in writing if a request is filed for insolvency proceedings or if the goods belonging to us are accessed (e.g. seized) by third parties.

(3) If the buyer breaches the contract, particularly by failing to pay the purchase price owed for the goods, we shall be entitled to withdraw from the contract in accordance with the legal provisions and/or to demand the return of the goods subject to retention of title. If we choose to demand the return of the goods, this shall not automatically mean that we wish to withdraw from the contract; we shall be entitled to demand the return of the goods and reserve the right to withdraw from the contract. If the buyer does not pay the purchase price owed for the goods, we may only assert these rights if we have previously set the buyer a reasonable grace period for the payment to no avail or if such a grace period is not necessary according to the statutory provisions.

(4) The buyer shall be authorised to resell and/or process the goods subject to retention of title within the ordinary course of business until this authorisation is revoked, as detailed in (c) below. In such cases, the following provisions shall also apply:

(a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combination of our goods; we shall be considered the manufacturer. If our goods are processed, mixed or combined with third-party goods and the relevant third parties retain their ownership rights, we shall acquire co-ownership in proportion to the amount invoiced for each part of the processed, mixed or combined goods. Otherwise, the resulting product shall be subject to the same provisions as the goods delivered under retention of title.

(b) The buyer hereby assigns to us, by way of security, any claims held against third parties as a result of the resale of the goods or the resulting products – in whole or corresponding to the co-ownership share, as detailed in the previous paragraph. We hereby accept the assignment. The obligations of the buyer detailed in paragraph 2 above shall also apply with regard to the assigned claims.

(c) Both we and the buyer shall be entitled to collect the claims. However, we shall refrain from collecting the claims as long as the buyer complies with its payment obligations towards us, as long as the buyer remains solvent and as long as we do not assert the retention of title by exercising one of the rights described in paragraph 3 above. If this is the case, however, we may ask the buyer to notify us of the assigned claims and the debtors, to provide all information required to collect the receivables, to hand over the associated documents, and to inform the debtors (third parties) that the claim has been assigned to us. In such cases, we shall also be entitled to revoke the buyer’s authorisation to resell and process the goods subject to retention of title.

(d) If the realisable value of the securities exceeds our claims by over 10%, we shall release securities of our choice at the buyer’s request.

 

Section 7: Claims for Defects

(1) In the event of material defects or defects in title (including incorrect or insufficient deliveries, improper assembly / installation or inadequate instructions), the buyer may exercise the rights stipulated by law, unless otherwise specified below. Nothing in these terms shall affect the statutory provisions governing the sale of consumer goods (Sections 474 et seq. BGB) or any rights the buyer may have under separately issued guarantees, in particular any guarantees provided by the manufacturer. 

(2) Our liability for defects shall mainly be based on the agreement made on the qualities and anticipated use of the goods (including accessories and instructions). All product descriptions and manufacturer information relating to the specific contract or any such information that we have published (e.g. in our catalogues or on our website) shall be regarded as agreements regarding the qualities of the goods.

(3) If a certain quality has not been agreed, the statutory provisions shall govern whether the goods are defective (Section 434 (3) BGB). Any public statements made by or on behalf of the manufacturer, particularly in its advertising or on its goods labelling, shall take precedence over statements made by other third parties. 

(4) Unless otherwise agreed in a particular case, minor variations in the colour and shape of the goods, or from any samples or specimens provided, shall not constitute a deviation from the contractually agreed quality. The same shall apply to any technical modifications made to the goods between the conclusion of the contract and delivery, in particular as a result of technological improvements or changes in the law, provided that the goods remain fit for the purpose underlying the contract and the modification is not otherwise unreasonable for the buyer.

(5) Any variations between the actual dimensions of the tiles and the agreed nominal dimensions shall not constitute a contractual defect, provided that they do not exceed 3% in any individual dimension.

(6) We shall not be held liable for any defects that the buyer is aware of – or unaware of through gross negligence – at the time the contract is concluded (Section 442 BGB). The buyer shall only be entitled to assert claims for defects after fulfilling its statutory obligations to inspect the goods and report defects in accordance with Sections 377 and 381 of the German Commercial Code (HGB). In the case of building materials and other goods intended for installation or further processing, an inspection must always be carried out, at the latest, before processing. If a defect becomes apparent upon delivery, during an inspection or at a later point in time, we must be immediately notified in text form (Section 126b BGB). In any case, however, obvious defects must be reported in text form (Section 126b BGB) within 5 working days of delivery and any defects that were not recognisable during the inspection must be reported in text form within 5 working days of their discovery. If the buyer fails to properly inspect the goods and/or report any defects, our liability for defects that are not reported properly and in good time shall be excluded in accordance with the statutory provisions. In the case of goods intended for assembly, mounting or installation, this shall also apply if the defect only becomes apparent after the relevant work due to the buyer’s failure to perform these obligations; in such cases, the buyer shall waive any claims for reimbursement of the costs incurred (hereinafter referred to as “dismantling and assembly costs”).

(7) If a delivered item is defective, we may first choose to rectify the situation by remedying the defect (hereinafter referred to as “repair”) or delivering a faultless item (hereinafter referred to as “replacement”). If our chosen form of rectification is unreasonable for the buyer in a certain case, it may be rejected by the buyer. However, we reserve the right to refuse to rectify the situation if the applicable statutory requirements are met.

(8) We shall be entitled to ask the buyer to pay the purchase price before taking the necessary rectification measures. However, the buyer shall be entitled to withhold a reasonable part of the purchase price in relation to the defect.

(9) The buyer must give us the necessary time and opportunity to rectify the situation, particularly by providing us with the allegedly defective goods for inspection purposes. If we deliver a replacement, the buyer must return the defective item in accordance with the statutory provisions; however, the buyer shall not be entitled to demand the return of the item. Our rectification measures shall not include the dismantling of the defective item or its re-assembly if we were not originally obliged to install the goods; this shall be without prejudice to the buyer’s right to reimbursement of the relevant dismantling and assembly costs.

(10) We shall bear or reimburse any necessary expenses incurred for the purpose of inspecting the defects and rectifying the situation (e.g. transport, travel, labour and material costs, as well as any dismantling and assembly costs) if there is actually a defect. If there is no defect and the buyer was aware or should have been aware of this, we may ask the buyer to reimburse the costs incurred as a result of the unjustified request for the rectification of defects (in particular inspection and transport costs).

(11) The buyer shall have no claim for reimbursement of expenses under Section 445a (1) BGB unless the final contract in the supply chain constitutes a sale of consumer goods (Sections 478 and 474 BGB). Even in case of defects, the buyer may only claim damages or reimbursement of wasted expenses in accordance with Sections 8 and 9 below; all other claims shall be excluded.

 

Section 8: Other Liability

(1) Unless specified otherwise in these GTC, including the provisions below, we shall be held liable for the violation of our contractual and non-contractual duties in accordance with the statutory provisions.

(2) We shall be liable to pay damages, regardless of the legal reason, as part of our liability for intent and gross negligence. In the case of simple negligence, and subject to the statutory limitations of liability (e.g. care in one’s own affairs, insignificant breach of duty), we shall only be liable for:

a) damages resulting from injury to life, limb or health; and

b) damages resulting from the violation of an essential contractual duty (an obligation which must be observed to enable the proper performance of the contract in the first place and on the observance of which the buyer may regularly depend) – in such cases, however, our liability shall be limited to compensation for the typically foreseeable degree of damage.

(3) The limitations of liability indicated in paragraph 2 above shall also apply in relation to third parties and if breaches of duty are committed by persons (also in their favour) for whose actions we are held accountable under the statutory provisions. They shall not apply if we fraudulently conceal a defect or have formally guaranteed the qualities of the goods, or if the buyer asserts claims under the German Act on Liability for Defective Products (ProdHaftG).

(4) In the event of a breach of contract that does not relate to a defect, the buyer may only terminate or withdraw from the contract if we are responsible for the breach of duty. The buyer shall not have a free right of termination (particularly excluding the rights described in Sections 650 and 648 BGB). The statutory requirements and consequences shall otherwise apply.

 

Section 9: Limitation Period

(1) By way of derogation from Section 438 (1) No. 3 BGB, any claims arising from material defects and defects in title shall generally expire within one year of delivery. If a formal acceptance procedure has been agreed, the limitation period shall begin once the goods have been accepted.

(2) If the goods are buildings or objects that have been used for a building in accordance with their normal use and have caused defects in the building, however, any claims for such defects shall expire within 5 years of delivery, as stipulated by law (Section 438 (1) No. 2 BGB). Other special statutory regulations on limitation periods shall also remain unchanged (in particular Section 438 (1) No. 1, Section 438 (3), Section 444 and Section 445b BGB).

(3) The above limitation periods under sales law shall also apply to any contractual and non-contractual claims for damages held by the buyer because of a defect in the goods, unless the application of the regular limitation period (Sections 195 and 199 BGB) would result in a shorter limitation period in a particular case. Any claims for damages held by the buyer under the first and second sentence (a) of Section 8 (2) – or under the ProdHaftG – shall expire exclusively within the legally prescribed periods.

 

Section 10: Applicable Law and Place of Jurisdiction

(1) These GTC and our contractual relationship with the buyer shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG) and provisions referring to the laws of other jurisdictions.

If the buyer is a “merchant”, as defined in the HGB, a legal person under public law or a special fund under public law, our registered office in Gernsheim shall be the exclusive – and international – place of jurisdiction for any disputes arising directly or indirectly from the contractual relationship. The same shall apply if the buyer is a “trader”, as defined in Section 14 BGB. In each case, however, we shall also be entitled to take legal action at the place of performance for the delivery, as indicated in these GTC or in a prioritised individual agreement, or at the buyer’s general place of jurisdiction. This shall be without prejudice to the prioritisation of certain statutory provisions, particularly those relating to exclusive competences.