A) General provisions
§ 1 General
1. These General Terms and Conditions of Sale and Delivery (hereinafter referred to as "GTCSD") shall apply to all our business relations with our customers ("Customer"). Part A of these GTCSD shall apply to all Customers, while Part B of these GTCSD shall only apply if the Customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
2. Our GTCSD shall apply exclusively; any general terms and conditions of the Customer that conflict with or deviate from our GTCSD shall only become part of the contract if we have expressly agreed to them in writing. Our GTCSD shall also apply if we carry out the delivery to the Costumer without reservation, in particular without express objection to the General Terms and Conditions of the Customer, in the knowledge that the Customer's terms and conditions conflict with or deviate from our GTCSD.
3. All agreements made between us and the Customer for the purpose of executing this contract must be recorded in writing. Written in the sense of these GTCSD includes written and text form (e.g. letter, e-mail, fax).
4. Unless otherwise agreed, the GTCSD in the version valid at the time of the Customer's order or in any case in the version last notified to the Customer in text form shall also apply as a framework agreement for similar future contracts without us having to refer to them again in each individual case.
§ 2 Offer and conclusion of contract
Our offers are subject to change and non-binding. The order of the goods by the Customer is deemed to be a binding offer of contract. A contract shall only be concluded upon written acceptance (e.g. by order confirmation) by us.
§ 3 Prices and terms of payment
1. Unless otherwise stated in the order confirmation, our prices shall apply "ex works" and plus the statutory value added tax.
2. Unless otherwise agreed, the purchase price shall be due immediately upon delivery of the goods without deduction. However, we are entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
3. Upon expiry of the aforementioned payment deadline, the customer shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default.
4. If it becomes apparent after the conclusion of the contract that our claim to the purchase price is jeopardised by the Customer's inability to pay (e.g. by filing for insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable goods (custom-made products, individual orders), we have the right to declare withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.
5. The Customer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. This shall not apply if the counterclaims are based on the same contractual relationship.
§ 4 Delivery times
1. Delivery dates and delivery periods require express agreement or are confirmed by us in writing (e.g. in the order confirmation) upon acceptance of the order.
2. If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Customer of this without delay and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the Customer. Non-availability of the service shall be deemed to exist, for example, in the event of late delivery by our suppliers or in the event of disruptions in the supply chain, e.g. due to force majeure.
§ 5 Delivery and transfer of risk
1. Delivery is ex works, which is also the place of performance for collection or delivery and any supplementary performance (Cf. § 439 German Civil Code (“BGB”)).
2. In the event of an agreed delivery, the Customer shall ensure that the unloading point is accessible for heavy goods vehicles, that suitable unloading facilities are available and that the delivery vehicle is unloaded immediately and properly. If these prerequisites are not met, the Customer shall be liable for any additional expenses and damages incurred as a result.
3. The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer at the latest upon handover. If a sale by delivery to a place other than the place of performance has been agreed with the customer, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the customer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance (Cf. §§ 640, 644 German Civil Code (BGB)) has been agreed, this shall be decisive for the transfer of risk. The handover or acceptance shall be the same if the Customer is in default of acceptance.
4. Insofar as the goods provided have not been taken over within 4 calendar weeks after the agreed or confirmed delivery date or after the end of the confirmed delivery period, we shall be entitled, after expiry of this period and a reasonable grace period in writing, to sell the goods elsewhere and at the same time to withdraw from the contract without compensation, unless the goods have been paid for.
5. If the Customer is in default of acceptance, we shall be entitled to demand compensation for the damage incurred by us, including any additional expenses. We are entitled to charge storage costs in the amount of € 3 per pallet and per week or part thereof.
6. Packaging shall be carried out according to customary commercial aspects. Packaging shall be taken back in accordance with § 15 VerpackG (German Packaging Act) at the place of actual handover, i.e. in the case of agreed delivery in accordance with § 5 Para. 1 of these GTCSD at the factory.
§ 6 Product description, warranty
1. Clinker products are homogeneous bulk goods produced in a natural burning process. Samples of any kind and size, specimens, illustrations and descriptions can therefore only be approximate. Unless otherwise agreed, we deliver goods in accordance with the relevant DIN standards and in the customary sorting. Minor deviations do not entitle to complaints, as far as they do not impair the usability of the goods for the contractually intended purpose. Our information on the goods, illustrations, descriptions or references to DIN standards as well as CE marking merely represent a description of the goods and are not a guarantee of quality in the sense of § 443 BGB (German Civil Code). A guarantee of quality or durability must be expressly agreed or marked as such.
2. The statutory provisions shall apply to the rights of the Customer in the event of material defects and defects of title (including wrong delivery and short delivery), unless otherwise stipulated below.
3. If we determine the quantities required free of charge, this shall be done without any warranty. This is exclusively a non-binding estimate.
§ 7 Liability
1. We shall be liable in accordance with the statutory provisions insofar as the Customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Furthermore, we shall be liable for culpable breaches of material contractual obligations in accordance with the statutory provisions. Essential contractual obligations are those whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner may regularly rely. Insofar as we are not accused of intent or gross negligence, the liability for damages shall be limited to the foreseeable damage typically occurring in contracts of this type. This does not imply a change in the burden of proof to the detriment of the customer.
2. Liability for culpable injury to life, body or health shall remain unaffected. Liability under the Product Liability Act shall also remain unaffected.
3. Any further claims for damages, irrespective of their legal basis, are excluded. This shall also apply insofar as the customer demands reimbursement of futile expenses instead of a claim for damages in lieu of performance.
§ 8 Force majeure
Force majeure and other unforeseeable extraordinary events, which include, among others shortages of materials, energy, labour and transport capacity, production disruptions including fire failures, industrial disputes, failure of our suppliers to meet delivery deadlines (despite a congruent hedging transaction concluded by us), traffic disruptions and official decrees, pandemics, epidemics and war, epidemics and war, for which we are not responsible and which render us unable to fulfil our delivery obligations, shall fully release us from our obligation to deliver or perform for the duration of their effects (plus a necessary start-up period) or in the event of the impossibility of delivery or performance. We shall inform the customer immediately of the occurrence of such a case. In the event of our complete release from our performance obligations, we shall immediately reimburse any counter-performance already rendered by the customer. If the Customer cannot reasonably be expected to accept a delivery or service as a result of a delay, he may withdraw from the contract by means of an immediate written declaration to us.
§ 9 Right of retention
1. We may refuse to perform obligations towards the Customer arising from a contractual relationship as long as other claims, e.g. for payment of the purchase price, including those arising from other legal relationships with the customer, have not yet been satisfied in whole or in part.
2. The respective right of retention shall cease to apply if the customer fulfils the outstanding due claim or security is provided for it.
§ 10 Exercise of rights of withdrawal
1. Statutory or contractual rights of withdrawal on our part or on the part of the customer must be declared in writing to the other party.
2. If a contractual right of withdrawal is to be exercised within a period of time, it is decisive that the declaration of withdrawal is received by the other contracting party within the period of time. After expiry of the relevant deadline, the right of withdrawal expires.
3. The legal consequence of an effectively exercised right of withdrawal is the reversal of the contractual relationship in accordance with the statutory provisions (§ 346 BGB).
§ 11 Retention of title
1. We shall retain title to the object of sale until receipt of all payments arising from the contractual relationship with the Customer.
2. The Customer is obliged to notify us immediately in writing of any seizure of the reserved goods and other interventions by third parties and to inform the lien holders of the reservation of title. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action in accordance with § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the damage incurred by us.
3. We are obliged to release the securities to which we are entitled at the request of the customer insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released is ours.
§ 12 Data processing
The Customer agrees that the data relating to his person which are required within the framework of the contractual relationship are stored centrally in compliance with the Federal Data Protection Act and the Basic Data Protection Regulation. The same applies to the offer data.
§ 13 Applicable law, consumer arbitration & severability clause
1. These GTCSD and the entire legal relationship between us and the Customer shall be governed by the laws of Germany (excluding the UN Convention on Contracts for the International Sale of Goods).
2. We do not participate in consumer arbitration proceedings under the Consumer Dispute Settlement Act.
3. Should any provision of these GTCSD be or become invalid, this shall not affect the validity of any other condition and agreement between the Customer and us.
B) Special provisions vis-à-vis companies
In the relationship with entrepreneurs, legal entities under public law or special funds under public law, the following provisions shall apply in addition, which in case of doubt shall take precedence over the above provisions for the aforementioned users:
§ 14 Default of acceptance
The Customer is obliged to accept the ordered goods. If he does not or not completely fulfil his obligation to accept after setting a deadline of two weeks in writing, the goods not collected or not accepted shall also be paid for without delivery.
§ 15 Turnover tax
Unless expressly stated, the statutory value added tax is not included in our prices.
§ 16 Warranty and duty to examine and give notice of defects
1. We are generally not liable for defects of which the Customer is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB). Furthermore, the purchaser's claims for defects presuppose that he has complied with his statutory duties of inspection and notification (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing of the goods. If a defect becomes apparent upon delivery, inspection or at any later time, we must be notified thereof in writing without delay. In any case, obvious defects must be notified to us in writing within 7 days of delivery and defects which are not recognisable during the inspection must be notified to us within the same period of time after discovery. If the Customer fails to carry out the proper inspection and/or to give notice of defects, our liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions. In the case of goods intended for installation or fitting, this shall also apply if the defect only became apparent subsequent to the corresponding due to breach of one of the aforementioned obligations; in this case, in particular, there shall be no claims by the Customer for reimbursement of corresponding costs ("removal and installation costs").
2. If the delivered goods are defective, we may first choose whether to provide supplementary performance by remedying the defect (rectification) or by delivering an item free of defects (replacement delivery). If the type of supplementary performance chosen by us is unreasonable for the Customer in the individual case, the Customer may reject it. Our right to refuse supplementary performance under the statutory conditions remains unaffected.
3. We are entitled to make the supplementary performance owed dependent on the Customer paying the purchase price due. However, the Customer is entitled to retain a reasonable part of the purchase price in relation to the defect.
4. The Customer must give us the time and opportunity necessary for the supplementary performance owed, in particular the Customer has to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the customer shall return the defective item to us at our request in accordance with the statutory provisions; however, the Customer shall not have a claim for return. Supplementary performance shall not include the dismantling, removal or deinstallation of the defective item or the installation, fitting or incorporation of a defect-free item if we were not originally obliged to perform the services; claims by the Customer for reimbursement of corresponding costs ("removal and installation costs") shall remain unaffected by this.
5. In urgent cases, e.g. in the event of a risk to operational safety or to prevent disproportionate damage, the Customer shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses reasonably necessary for this purpose. We are to be informed immediately of such self-execution, if possible in advance. The right of self-execution by the Customer does not exist if we would be entitled to refuse a corresponding Customer’s claim for supplementary performance in accordance with the statutory provisions.
6. If a reasonable period of time to be set by the Customer for supplementary performance has expired unsuccessfully or is dispensable under the applicable statutory provisions, the Customer may withdraw from the purchase contract or reduce the purchase price in accordance with the applicable statutory provisions. In the case of an insignificant defect, however, there shall be no right of withdrawal.
7. Claims of the Customer for damages or reimbursement of wasted expenses shall exist also in the case of defects only in accordance with § 7 of these GTCSD and are otherwise excluded.
§ 17 Limitation periods
1. Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as Acceptance (Cf. § 640 BGB) has been agreed, the limitation period shall begin with acceptance.
2. If the goods are a building or an object that has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory regulation (§ 438 para. 1 no. 2 BGB). Other special statutory regulations on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445 b BGB) also remain unaffected.
3. The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Customer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages of the Customer due to intent or gross negligence as well as pursuant to § 7 para. 2 of these GTCSD shall become statute-barred exclusively in accordance with the statutory limitation periods.
§ 18 Publication of the pictures of the clinker building on our website
If the Customer constructs a building or other structure with the clinkers delivered by us, we shall be entitled to publish pictures and other images of the completed structure as well as the associated address for reference purposes on our website, provided that we do not infringe any personal data or copyrights by doing so. We do not owe the Customer any consideration for this. The Customer has no right to demand that we publish his building on our website. Upon request, the Customer shall inform us when the completion of the building is planned.
§ 19 Retention of title
1. We retain title to the goods sold until all our present and future claims arising from the purchase contract and an ongoing business relationship ("secured claims") have been paid in full.
2. The goods subject to retention of title shall neither be pledged to third parties nor assigned as security before full payment of the secured claims. The customer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties have access to the goods belonging to us (e.g. seizures).
3. In the event of a breach of contract by the Customer, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions or / and to demand the return of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the Customer does not pay the purchase price due, we may only assert these rights if we have previously set the Customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
4. Until revoked in accordance with below e), the Customer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:
a) The retention of title shall extend to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
b) The Customer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product in total or in the amount of 110% of the final invoice amount (including VAT) of our claim. We accept the assignment. The obligations of the Customer stated in § 19 number 2 shall also apply with regard to the assigned claims. In the event of resale of the goods on credit, the Customer shall for his part retain title vis-à-vis his contract-partner. The Customer hereby assigns to us the rights and claims arising from this retention of title vis-à-vis his contract-partner.
c) If the goods subject to retention of title are installed as an essential component in the Customer's property, the Customer hereby assigns to us the claims against the respective purchaser of the property arising from a sale of the property or of property rights in the amount of the value including ancillary rights of the goods subject to retention of title.
d) If the goods subject to retention of title are installed as an essential component by the Customer in the property of a third party, the Customer hereby assigns to us the claim for work wages or remuneration to which it is entitled for the installation of the goods subject to retention of title against the third party in the amount of the value including ancillary rights of the goods subject to retention of title.
e) The Customer remains authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the Customer meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to § 19 number 3. If this is the case, however, we may demand that the Customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we shall be entitled to revoke the authorisation of the Customer to further sell and process the goods subject to retention of title.
f) If the realisable value of the securities exceeds our claims by more than 10 %, we shall release securities of our choice at the request of the Customer.
§ 20 Taking back of packaging
The return of packaging shall be effected in accordance with § 15 VerpackG irrespective of the place of actual handover at our works. We are not obliged to collect the packaging from the Customer or to bear the costs of transport for this. If the Customer wishes to make use of his right of return in accordance with § 15 VerpackG, he must bring the packaging to our factory at his own expense.
§ 21 Jurisdiction
Place of performance and exclusive place of jurisdiction for all (also international) disputes arising directly or indirectly out of or in connection with the contractual relationship is our registered office in 48301 Nottuln.
Hagemeister GmbH & Co KG - 48301 Nottuln