III. Delivery date and time

1. Delivery dates and delivery periods are only approximate and non-binding.

2. Fixtermine sind ausgeschlossen.

3. Agreed delivery periods shall commence after the Buyer has provided the Seller with all information and documents required for the execution of the order and delivery and the agreed receipt of payment has been made by the Seller. Any changes to the orders after the order confirmation, including changes to the delivery address, shall lead to a corresponding postponement of the delivery dates or delivery periods.

4. Reservation of self-supply – the Seller shall be entitled to withdraw from the contract if, through no fault of its own, it is not supplied by its suppliers or sub-suppliers despite the conclusion of a congruent hedging transaction. The Seller’s liability for damages in this case is excluded. The Seller shall inform the Buyer immediately of the non-availability of the products and, in the event of withdrawal, reimburse the Buyer immediately for any consideration already received.

5. Force majeure – the Vendor shall not be responsible for delays in delivery and performance due to force majeure and due to events which make delivery considerably more difficult or impossible for the Vendor not only temporarily – this includes in particular strikes, lock-outs, official orders, etc., even if they occur at the Vendor’s suppliers, their sub-suppliers, other suppliers of the Vendor or at the forwarding, logistics or transport company commissioned. They entitle the seller to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time and to withdraw from the contract in whole or in part due to the part not yet fulfilled.

6. the seller shall not be responsible for the aforementioned circumstances pursuant to paragraph 4 and/or paragraph 5 even if they arise during an already existing delay. The Seller shall inform the Buyer of the beginning and end of such obstacles as soon as possible.

7. if the impediment lasts longer than 4 months, the buyer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled.

8. The buyer may only set the seller a grace period for delivery if he has fulfilled his obligations to cooperate and the agreed delivery date or delivery period has been exceeded. This grace period must be reasonable and, as a rule, at least 4 weeks.

9. Partial deliveries – the Seller shall be entitled to make partial deliveries or render partial services insofar as this is reasonable for the Buyer. Invoices for partial deliveries shall be paid within the specified payment dates.

IV. Terms of delivery

1. Unless expressly agreed otherwise, deliveries shall be made free on truck works. If collection by the buyer has been agreed, this shall take place at the seller’s works no later than 3 weeks after the seller has made the goods available and notified the buyer of the possibility of collection. If this period is exceeded, the seller shall charge storage costs, any guarantees shall lose their validity (guarantee conditions) and the buyer shall be in default of acceptance.

2. The risk, including the risk of delay, shall pass to the Buyer upon handover to the forwarding agent or carrier, the railway, the post office, the courier, or upon loading onto the Seller’s vehicles for the purpose of delivery or, in the case of self-collection, upon handover.

3. If delivery to the construction site is agreed in an individual case, it shall only take place insofar as the access conditions permit delivery by heavy goods vehicles without risk to the vehicle and the load. The goods shall be transported exclusively by 40t articulated lorries at the risk of the buyer. The buyer shall be responsible for ensuring that the road train can also drive with a full load of its own accord from the public traffic area to the unloading point and back again on level, load-bearing ground. Otherwise, the seller is entitled to unload the goods at the border of the public traffic area.

4. The buyer is obliged to provide the exact delivery address, a contact person and their mobile phone number. Changes in the delivery addresses for construction site deliveries are excluded after the goods have been loaded or the route plan has been drawn up. If the delivery fails due to the provision of incorrect or inaccurate data by the buyer, the buyer shall bear the costs of the unsuccessful delivery attempt, unless a freight-free delivery was agreed. In any case, the buyer will be charged separately for the additional costs of the return transport and the new delivery. This also applies to unoccupied or impassable construction sites.

5. If the buyer does not accept the delivery and the goods have to be returned, the seller will charge € 2 per kilometre for the return journey and € 20 per day of storage in the seller’s warehouse. A repeated delivery will be charged separately. If a second delivery is necessary for reasons for which the buyer is responsible, the warranty claim on the delivered goods shall expire (warranty conditions).

6. Unless otherwise agreed, unloading shall be carried out by the personnel provided by the buyer and may not exceed a period of 0.5 hours after delivery. If this duration is exceeded, the seller is entitled to charge for standing time.

7. Crane unloading is not part of the order, unless the seller has accepted the obligation to unload the crane as an additional service in text form. Unloading shall be carried out exclusively at ground level and parallel to the vehicle. The standard delivery is made with vehicles that can be loaded and unloaded from the side. Unloading on the part of the buyer must only be carried out with suitable machines.

8. In the event of deliveries without the presence of a person authorised to accept the goods, the buyer is obliged to send the seller a signed delivery note within 24 hours. In the event of a non-confirmed delivery note, the seller will send a copy of the documents to the buyer in electronic form. If no reply is received within 48 hours, the delivery note will be deemed confirmed. The seller will point out this legal consequence in the aforementioned electronic message.

9. If the delivery is made using the seller’s means of transport – including Euro pallets, the buyer is obliged to provide the seller with the same number of unloaded pallets in return (exchange of pallets). If the transport takes place on special pallets of the seller, a deposit in the value of the pallets according to the current price list will be charged. If these special pallets are returned, the deposit will be refunded.

10. The Buyer is obliged to send packaging other than that referred to in paragraph 9 above for preparation for reuse or recycling in accordance with the regulations in force from time to time.

11. The products are always delivered in packaging units (max. 3.5 tonnes). Should smaller packaging units be desired, an indication of the packaging size must be given to the seller at the time of the request for quotation or the order. A change in the packaging size at the request of the buyer after conclusion of the contract will result in the recalculation of the packaging flat rates, which shall be borne by the buyer. If the recalculated packaging price is not confirmed by the Buyer within 48 hours, the Buyer’s request for change shall be deemed to be invalid with the consequence that the Seller may pack the products in packaging in accordance with sentence 1 above.

12. For orders with a total weight of up to 40 kg (smallest quantities), the seller reserves the right to commission alternative shipping services (e.g. parcel services or freight forwarders). Shipping is at the expense and risk of the Buyer.

V. Prices

1. The prices listed in the order confirmation shall apply with priority.

2. The Seller’s prices are net prices. Value added tax shall be added in the amount provided for by law at the time of delivery. Any customs duties, fees, taxes and other public charges shall be borne by the buyer.

3. Unless otherwise agreed, the buyer shall bear the transport costs, the costs of any transport insurance requested by the buyer as well as any shipping costs in the case of item IV.12 and costs of special packaging in the case of item IV.11.

4. All prices are based on the cost factors at the time of the order confirmation. If thereafter significant increases in the costs of raw materials, energy, freight and packaging material occur at the Vendor or its suppliers and if these lead to a significant increase in its purchase prices or cost prices, the Vendor shall be entitled to demand immediate negotiations on a price adjustment, unless the price has been expressly confirmed as a fixed price. If no agreement is reached within a reasonable period of time, the Seller shall be released from its delivery obligation with regard to outstanding deliveries.

5. If the agreed delivery date is exceeding a period of 4 months after the conclusion of the contract, and if unforeseeable cost or market price increases with regard to the goods have occurred at the Seller after the conclusion of the contract (Section V.4.), the Seller shall be entitled to increase the agreed price accordingly at its reasonable discretion.

VI. General conditions

1. In the absence of an express agreement, the use of the goods in the temperate climatic zones of Europe is assumed, excluding high mountain areas and/or coastal areas with salt contamination. The goods are not suitable for permanent contact with water.

2. Samples are average samples. Technical data and specifications are only to be regarded as approximate with regard to maximum and minimum limits. Colour deviations within customary limits do not give rise to complaints. Colour deviations and fading of the goods occurring over time due to the effects of weather are technically unavoidable and typical of the product. They correspond to the contractual quality of the products and do not entitle the customer to assert warranty claims.

3. Unless expressly agreed otherwise, the European standards applicable at the time of conclusion of the contract shall be deemed to be the contractually agreed quality. In all other respects, our goods shall be delivered in customary quality and design.

4. For the treatment of goods, in particular efflorescence, colour variations, cracks and dimensional tolerances, the relevant European standards as amended from time to time as well as the technical instructions issued by the seller for storage, laying, cleaning and care of the goods are agreed as an integral part of the contract. The most recent version can be found on the Seller’s website. A copy of the respective applicable European Standard or the Seller’s Technical Notes shall be displayed for inspection in the Seller’s respective sales rooms. Furthermore, the current assembly guidelines of the IFBS shall apply to the goods.

5. If the products are 2nd choice products, they are in conformity with the contract, even if they have defects that typically occur in 2nd choice goods.

6. Plans, projects, as well as cutting lists and calculations prepared free of charge by the Seller are only intended as suggestions and are generally based on information provided by the buyer. The Seller assumes no liability for these, they are non-binding and require examination and confirmation by the Buyer.

7. It is the sole responsibility of the Buyer to obtain the necessary permits and to create and maintain other requirements.

VII. Quality control and complaints

1. The Buyer is obliged to immediately inspect the goods after delivery or upon collection from the factory, as following:

1.1 Examine the goods according to number of pieces, weights and packaging.

1.2 Carry out a quality control at least on a random, representative basis, to this end to open the packaging to a reasonable extent, and to inspect the goods themselves for external quality.

1.3 Note any complaints on the delivery, and have them confirmed by the signatures of the lorry driver and the persons involved in unloading, stating their names and exact addresses.

2. The Buyer shall observe the following forms and deadlines when giving notice of any defects:

2.1 Obvious defects must be reported to the seller immediately after delivery or collection and before installation of the goods. In the case of notification of a hidden defect which initially remained undetected despite proper initial inspection in accordance with the above paragraph, the notification must be made by the end of the working day following the discovery, but at the latest within two weeks after delivery or collection of the goods.

2.2 The notice of defect must be received by the Seller within the aforementioned deadlines in writing or by e-mail in detail. Notification of defects by telephone shall not be sufficient. Notices of defects to commercial representatives, brokers or agents are irrelevant.

2.3 Notifications of defects always require the specification of the order or delivery note number and the sending of visual material. The type and scope of the alleged defect must be clearly evident from the notice of defect.

2.4 The Buyer is obliged to keep the rejected goods available at the place of inspection for inspection by the Seller, its suppliers or experts commissioned by the Seller.

3. Complaints regarding the number of pieces, weights, packaging of the goods as well as their external condition, insofar as this can be determined by way of random sample inspection, are excluded if there is no corresponding note and signatures on the delivery note.

4. Goods which are not complained about in due form and time shall be deemed to have been approved and accepted.

5. In the case of rail transports, including transports on railway-owned trucks, transport damage and losses must be ascertained by means of an official railway inventory, including certification of the breakage damage and shortfalls on the consignment note, in order for them to be recognized. If a complaint is not made in due form and time, the condition of the goods shall be deemed approved and claims for material defects can no longer be asserted. A waiver of the objection of delay can only be made expressly and in text form. Any measures to remedy defects after expiry of the time limits for giving notice of defects shall be taken as a gesture of goodwill.

VIII. Guarantee and warranty

1. Even in the event of a defect, the buyer is obliged to accept the goods, in particular the means of transport must be unloaded or discharged under all circumstances. The goods are to be stored properly and returned only after agreement with the seller.

2. In the event of justified notices of defect, the Buyer shall negotiate with the Seller a reasonable period of time for subsequent performance, which as a rule shall be at least 10 weeks. Subsequent performance may be effected, at the Seller’s discretion, by remedying the defect or by delivery of new goods. In particular, the Seller shall be at liberty to repair only the parts complained of or to deliver new goods. Claims for delivery of complete batches do not exist.

3. The buyer is entitled to withdraw from the contract if two attempts at subsequent performance by the seller have failed. The withdrawal from the entire contract requires that the buyer has no interest in the partial performance.

4. Information and details provided by the seller are only binding if they are given in writing and by persons within the meaning of clause I.3.

5. Contractual agreements on quality shall only constitute the granting of a guarantee within the meaning of § 443 BGB if this has been expressly agreed in writing (guarantee certificate).

6. If a defect was identifiable before further connection and/or assembly of the products, the buyer shall bear the costs incurred by disassembly.

7. XII.1. remains unaffected.

IX. Limitations of liability

1. In the case of slightly negligent breaches of essential contractual obligations, the Seller’s liability shall be limited to the foreseeable, contract-typical average damage according to the type of products. This shall also apply in the case of slightly negligent breaches of duty by the Seller’s legal representatives and vicarious agents.

2. The Seller shall not be liable in the event of a slightly negligent breach of immaterial contractual obligations.

3. The above limitations of liability shall apply with regard to all claims for damages, irrespective of the legal grounds.

4. The above limitations of liability do not, however, restrict any mandatory statutory liability, in particular liability under the Product Liability Act, liability arising from the assumption of a quality guarantee or liability for culpably caused injury to life, limb or health, or for intent or gross negligence, or in the event of fraudulent concealment of defects.

X. Payment

1. The Seller is entitled to demand an immediately due prepayment. In this case, the placing of the order for production shall be subject to the receipt of the prepayment.

2. Notwithstanding paragraph 1 above, the full price, including any ancillary costs to be borne by the Buyer, shall be due for payment at the latest on the day before the goods are loaded at the factory. This also applies to agreed partial deliveries. All payments are understood to be without deductions.

3. The Buyer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the Seller shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.

4. The Buyer is not entitled to assert claims and rights due to defects if he has not made due payments and insofar as the amount due (including any payments made) is not in reasonable proportion to the value of the – defective – goods.

5. The Seller shall be entitled to set off payments against the Buyer’s older debts first, despite any provisions of the Buyer to the contrary, and shall inform the Buyer of the type of set-off made. If costs and interest have already been incurred, the Seller shall be entitled to set off the payment first against the costs, then against the interest and finally against the main performance.

6. If the Seller grants the Buyer a commercial credit limit and the Buyer exceeds this, the Seller has the right to stop deliveries of goods until the moment of receipt of payment in the amount by which the credit limit has been exceeded. This also applies to unpaid invoices that are still within the agreed payment term.

7. The date of payment shall always be the date on which the money is received in the cash office or the date on which it is booked to the bank account of the Seller.

8. If the Buyer does not pay after a reminder issued by the Seller after the due date, he shall be in default of payment. Par. § 286 para. 3 BGB remains unaffected.

XI. Retention of title

1. The Seller retains title to the products sold until full payment by the Buyer of all current and future claims arising from the purchase agreement and an ongoing business relationship.

2. The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Buyer shall immediately notify the Seller in writing if and to the extent that third parties seize the products belonging to the Seller.

3. The Buyer is authorised to resell and/or process the products subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition. The retention of title shall extend to the products resulting from the processing, mixing or combining of the products sold at their full value, whereby the Seller shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with products of third parties, the latter’s right of ownership remains, the Seller shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined products. In all other respects, the same shall apply to the resulting product as to the products delivered under retention of title. The Buyer hereby assigns to the Seller by way of security any claims against third parties arising from the resale of the products or the product in total or in the amount of the Seller’s co-ownership share, if any, in accordance with the above provision. The Seller accepts the assignment. The Buyer’s obligations set out in clause XI.2 shall also apply in respect of the assigned claims. The Buyer remains authorised to collect the claim in addition to the Seller.

4. The Seller undertakes not to collect the claim as long as the Buyer meets his payment obligations towards the Seller, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, the Seller may demand that the Buyer informs it 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.

5. If the realisable value of the securities exceeds the Seller’s claims by more than 20%, the Seller shall release securities of its choice at the Buyer’s request.

XII. Default of acceptance, default of payment and breach of other contractual obligations by the Buyer

1. If the Buyer has not fulfilled his obligation to cooperate despite a request by the Seller, so that the seller cannot fulfil his obligation to deliver and goods are stored for longer than 3 weeks from the date of completion, the guarantee on the manufactured goods shall lapse and the Buyer shall be in default of acceptance.

2. If the Buyer is in default with the purchase or acceptance of the goods or part of the goods or any other performance to be rendered under the contract, or if the Buyer is in default with payment, the Seller shall also be entitled, after setting a reasonable deadline, to rescind the contract in whole or in part and/or to claim damages pursuant to Clause IV.5, subject to proof of a concrete higher damage, unless the Buyer proves a lower damage or the non-occurrence of a damage.

3. Furthermore, the Seller is entitled to request the Buyer to collect the goods immediately and to invoice the goods.

4. In the event of default in payment, the Seller shall be entitled to demand interest at a rate of 8 percentage points above the respective base interest rate from the time of the occurrence of the default. Higher damages can be demanded if the seller proves the amount of the damage.

5. The right of retention may also be exercised in respect of other goods which are in the power of disposal of the seller (e.g. follow-up orders).

6. If the Vendor becomes aware of circumstances that call into question the creditworthiness of the Buyer, in particular if the Buyer suspends payments, is more than two months in arrears with a payment, etc., the Vendor shall be entitled to declare the entire remaining debt due and payable and to demand advance payments or the provision of security in the full amount of the order value.

7. If the Buyer does not make a due payment despite a reasonable grace period, the Seller is entitled to withdraw from the contract and the follow-up orders.

8. In the event of the Seller’s withdrawal, the Seller’s delivery and performance obligations shall expire immediately to the extent affected by the declaration of withdrawal. The Buyer shall return the services already received to the Seller’s place of business and, if applicable, transfer ownership thereof.

9. If the Buyer itself or a third party violates clause II.9 of these General Terms and Conditions, the Seller may demand lump-sum damages in the amount of EUR 500.00 (market confusion damage) in each case of violation. The right is reserved for the Seller to claim higher damages or for the Buyer to provide evidence of smaller damages.

XIII. Jurisdiction, applicable law, severability clause

1. If the Buyer is a merchant, a legal entity under public law or a special fund under public law, Berlin shall be the sole place of jurisdiction for all disputes arising from the contractual relationship.

2. If the Buyer, notwithstanding the foregoing clause 1, has no general place of jurisdiction in Germany or if the Buyer has relocated his place of residence or habitual abode outside Germany after conclusion of the contract, the courts having local jurisdiction for the registered office of the Seller shall be exclusively competent to decide on the merits of the case.

3. German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods and German international private law.

4. Should individual provisions be or become invalid, this shall not affect the validity of the remaining provisions of these GTC. The parties shall replace an invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision.