General Terms and Conditions:
1. General, validity
The following conditions are an integral part of all agreed sales of ABC-Klinker Group products, especially brick products (hereinafter “goods”). This also applies if we do not expressly refer to them in later agreements, unless the contractual partner (hereinafter also referred to as the “Purchaser”) is a consumer in accordance with Section 13 of BGB (German Civil Law). General Sales Conditions or other General Terms and Conditions imposed by the Purchaser shall not apply to us.
These General Conditions for Supply and Payment apply to all sales by the ABC Klinker Group companies listed in Annex 1 (hereinafter also referred to as the “Vendor”).
2.1. Our quotations are non-binding unless otherwise agreed and delivery has been made. The Pur- chaser alone is responsible for the correct selection and quantity.
2.2. Technical data and descriptions in the respective product information or advertising material do not represent a guarantee of the quality or durability of the goods supplied by us.
2.3. Brick products are manufactured in a natural baking process. Deviations, changes or tolerances caused by this – with the exception of incorrect deliveries – do not represent a deviation from the agreed and customary quality, provided that they comply with the DIN standard. No claim for defects shall exist if the goods supplied are suitable for the use stipulated in the
contract or for normal use, and they are of a quality normal for a product of this type and which the Purchaser can expect from this type of of goods. No claim for defects shall exist if there are only minor deviations from the agreed quality.
3. Delivery and acceptance
3.1. Delivery occurs upon collection of the goods from the factory, or at the agreed place; if this is subsequently changed at the request of the Purchaser, the Purchaser shall bear all the costs incurred.
3.2. Binding delivery dates require an explicit written agreement.
3.3. The Vendor shall not be liable to any company for the impossibility of delivery or for delays in delivery if these are caused by force majeure or other events unforeseeable at the time of conclusion of the agreement (e.g. operational malfunctions of any kind, difficulties with the supply of materials or energy, transport delays, strikes, legal lockouts, lack of manpower, energy or raw materials, difficulties in acquiring necessary official permits, official sanctions, or missing, incorrect or non-timely deliveries from suppliers), for which the Vendor is not responsible. If such events significantly impede delivery or service by the Vendor, or make this impossible, and the impediment is not only of temporary duration, the Vendor shall be entitled to withdraw from the agreement. In the event of impediments of a temporary duration, the deadline for delivery or performance of service to companies shall be extended by the period of the impediment plus an appropriate lead time. If the business client cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the agreement by means of immediate written notification to the Vendor.
Our deliveries and services to consumers shall take place as quickly as possible, at the latest within a period of approximately four weeks, provided no fixed deadline or date is agreed. If we fail to meet a delivery date agreed with consumers, the Purchaser shall set an appropriate extension of time, which may in no case be less than two weeks. We shall inform the Purchaser immediately in the event of difficulties or delays in delivery.
3.4. The Purchaser shall be liable in the event of incorrect or incomplete information provided when
placing an order. When delivering to the agreed place, the vehicle must be able to access and leave this without any danger. This supposes that the surface is sufficiently solid for a heavy lorry to access it unobstructed. If this condition is not met, the Purchaser shall be liable for all resulting damage unless the Purchaser is not responsible for the non-existence of these conditions; registered businesses shall bear responsibility regardless. If the Purchaser is a registered business, the person signing the delivery note shall be considered by us to be authorised to accept the goods and confirm receipt unless, due to specific circumstances, we may not assume that the person signing has the authority to receive goods.
3.5. If acceptance is refused, late, delayed or otherwise improper, the Purchaser is obliged, irrespective of this, to compensate with payment of the purchase price, unless he is not responsible for the refusal, lateness, delay or other improper circumstances of acceptance; in the event that they collect the goods from the factory, registered businesses shall bear responsibility regardless. Multiple purchasers shall bear joint liability for proper acceptance of the goods and payment of the purchase price. We shall provide the goods or services to each of these with effect for and against every one.
3.6. Packaging provided by us shall be taken back to our business premises in accordance with the statutory obligations provided it is empty of residue and not dirty, and delivered sorted by the Purchaser or at his expense.
4. Transfer of risk
4.1. If, at the Purchaser’s request, the goods are shipped to a place other than the place of fulfilment, and if the Purchaser is a registered business, the risk of accidental loss of the goods shall be transferred to the Purchaser at the time the goods are handed over to the carrier, but no later than the time the goods leave the factory, regardless of whether dispatch is carried out from the place of performance and who bears the cost of shipment, whether shipment is made using external transport or our own vehicles.
4.2. When goods are collected from the factory, the risk of accidental loss and of accidental degradation of the goods shall be transferred to the Purchaser at the time their vehicle leaves our factory site. In the case of delivery to an address outside the factory, this risk shall be transferred to the Purchaser as soon as the vehicle arrives at the place of delivery, but no later than it leaves the public road in order to drive onto the agreed place of delivery.
5. Cost increases, terms of payment
5.1. If, between issue of our quotation and delivery, our costs for energy, transport and/or wages increase, we shall be entitled, irrespective of the quotation and confirmation of the order, to adjust our selling price in accordance with the change in costs; this does not apply to deliveries to a consumer which, except in cases of long-term debt, are to be performed within four months of conclusion of the agreement. If this adjustment results in an increase in the nett selling price of more than 10%, the Purchaser is entitled to withdraw from the agreement.
5.2. Unless otherwise agreed in writing, our invoices shall be payable immediately, and no later than 30 days after the invoice date, without any deductions. Should the Purchaser fail to pay on time, we shall be entitled to charge interest for late payment of at least 5% over the base interest rate at that time; in the case of registered businesses, we shall be entitled to charge interest for late payment of at least 9% over the base interest rate at the time. Assertion of further damages in this case remains unaffected.
5.3. If the Purchaser is a registered business, he shall relinquish the right to make any claim to right of retention, unless the claim by the Purchaser on which the right of retention is supported is not disputed by us, is acknowledged or has been legally established.
6. Notification of defects, claims for defects
6.1. The Purchaser shall report any obvious defects of any form whatsoever immediately upon receipt of the goods. In this case, the Purchaser shall leave the goods untouched in order that we can inspect them. Defects that are not obvious, of any form whatsoever, must be reported by the Purchaser immediately after their discovery, but no later than one year after their delivery; this does not apply to defects for which Section 438 para. 1 no. 2 b of BGB apply. Complaints made verbally or by telephone must be confirmed in writing. In the event that complaints are not made properly or in good time, the goods shall be deemed to have been accepted.
6.2. The Purchaser is initially entitled to demand rectification of a defect. If the Purchaser is a registered business, we shall only provide rectification in the form of delivery of a defect-free item. If rectification fails, the Purchaser is entitled, at his discretion, to reduce the purchase price or to withdraw from the agreement. The provisions of clause 8 apply to claims for damages.
6.3. Claims for damages by registered businesses shall lapse one year after delivery of the goods; this does not apply to claims for damages in accordance with Section 438 para. 1 no. 2 b of BGB, unless the damage is a result of a deliberate or grossly negligent breach of duty by us or by our legal representative or vicarious agent, or the damage consists of injury to life, limb or health, or we have maliciously concealed the damage.
7. Security interests
7.1. Goods delivered shall remain our property until payment of the full purchase price has been made. If the Purchaser is a registered business, goods delivered shall remain our property until payment of all claims that we have against the Purchaser. The Purchaser may neither pledge our goods nor assign them as security, but he may resell or process them in the normal course of business, unless he has already effectively assigned the claim against a contractual partner to a third party in advance or agreed a prohibition of assignment with a contractual partner.
7.2. Any processing of our goods by the Purchaser to form a new moveable property shall be carried out on our behalf for our benefit without giving rise to any liability on our part. If the goods delivered by us are processed with other objects which do not belong to us, we shall acquire co-ownership of the new object in proportion to the ratio of the value of our goods (7.9) to the value of the other processed goods at the time of processing. In the event that the Purchaser acquires sole or co-ownership of a new unified object through connection, mixture or amalgamation of our goods with other moveable objects, he shall at this point transfer to us, as security for fulfilment of the claims listed in clause 7.1 sentence 2, the right of ownership in proportion to the ratio of the value of our goods (7.9) to the value of the other objects. We shall retain co-ownership until our claims have been fulfilled in full in accordance with clause 7.1 sentence 2.
7.3. In order to secure fulfilment of our claims in accordance with clause 7.1 sentence 2, the Purchaser also hereby assigns to us all claims arising in the future from the resale of our goods and all subsidiary rights in the amount of the value of our goods (7.9), with priority over the remaining portion of his claims. We hereby assume declaration of assignment by the Purchaser.
7.4. In the event that the Purchaser sells our goods together with other goods not belonging to us or new objects produced from our goods or our goods with a piece of land belonging to a third-party, or connects, mixes or amalgamates it with a moveable object belonging to a third party, and he acquires a claim for this which also covers his other services, he shall at this point assign to us, as security for fulfilment of our claims in accordance with clause 7.1 sentence 2, this claim with all subsidiary rights in the amount of the value of our goods (7.9), with priority over the remaining portion of his claims. The same applies to the same extent to any right on his part to grant security interests in accordance with Sections 648 and 648 a of BGB due to his processing of our goods for and in the amount of our total outstanding claims. We hereby assume declaration of assignment by the Purchaser. Upon our request, the Purchaser shall provide proof of these individual claims and shall inform subsequent purchasers of the assignment, and instruct them to make payment to us of an amount corresponding to the claims in accordance with clause 7.1 sentence 2. We shall also be entitled to inform subsequent purchasers of the assignment ourselves and to collect the claims. In the meantime we shall not make use of the rights in accordance with sentences 4 and 5 of this paragraph and shall not collect the claims provided the Purchaser properly fulfils his payment obligations.
7.6. The Purchaser may neither assign nor pledge to third parties his claims against subsequent purchasers in the amount of the value of our goods (7.9), nor agree to a prohibition of assignment with subsequent purchasers.
7.7. The Purchaser shall store all objects of which we are owner or co-owner with the diligence of a prudent businessman and at no charge. The Purchaser shall inform us immediately of any attachment or any other impairment of our rights by third parties. He shall hand over to us any documents necessary for an intervention and shall pay any costs incurred by us as a result of intervention, provided that these cannot be recovered from third parties.
7.8. In the case of current invoices, our security shall be deemed to be security for fulfilment of our outstanding balance claims.
7.9. The “value of our goods” for the purpose of this clause 7 is the total amount of the purchase price indicated in our invoice (including VAT).
7.10. At the Purchaser’s request, we shall release the securities to which we are entitled to the extent that their value exceeds our claims by 10%.
8. Claims for damages
Claims for damages by the Purchaser, especially due to breaches of contractual obligations, misconduct during contractual negotiations, or non-contractual liability, are excluded provided that the damage is not a result of deliberate or grossly negligent breach of duty by us or our legal representative or vicarious agents, or caused by breach of an obligation fundamental to the agreement or by a defect maliciously concealed by us, and the damage does not consist of injury to life, limb or health. In the event of breach of an obligation fundamental to the agreement where the negligence is ordinary or minor we shall not be liable for damage that was not foreseeable at the time of conclusion of the agreement. Liability in accordance with product liability law shall remain unaffected thereby.
9. Applicable law, place of jurisdiction, partial invalidity
If the Purchaser is a registered business, the place of fulfilment for delivery is our supplying factory. The place of fulfilment for payment is the head office of our sales company if we operate one, otherwise it is the location of our head office.
The place of jurisdiction for all legal disputes arising from the contractual relationship and those arising from the creation and validity of the agreement (also for disputes regarding bills of exchange and cheques) with registered businesses is our administrative headquarters, or at our discretion the location of our delivery factory or our sales company.
The location in accordance with para.1 is also the place of jurisdiction if the Purchaser has no place of general jurisdiction in Germany, relocates his domicile or permanent address away from Germany after conclusion of the agreement, or his domicile is not known at the time proceedings are initiated. If our head office in accordance with paras. 1 and 2 is the place of jurisdiction, we are also entitled to file a suit against the Purchaser at this place of jurisdiction.
The laws of the Federal Republic of Germany shall apply exclusively to these General Conditions for Supply and Payment, and to the entire legal relationship between the Vendor and the Purchaser, to the exclusion of the provisions of the UN Convention on the Sale of Goods.
Should any provision in these General Conditions for Supply and Payment or any provision in other agreements be or become invalid, this shall not affect any of the other provisions or agreements.
Status: January 2015