Terms and Conditions of Sale and Delivery
1. General
By placing an order, the Buyer acknowledges the Terms and Conditions of Sale and Delivery. Our Terms and Conditions of Sale and Delivery apply to all future business relations, even if in an individual case, conflicting conditions of purchase have not been objected to. Conflicting conditions of purchase from our Buyers are only valid if they have been acknowledged by us in writing, and they then only apply to the agreed transaction.
2. Quotations
Our quotations are subject to alteration and are non-binding with respect to price, quantity, delivery deadline and availability. Documents provided by us, for example cost estimates, drawings and the like, remain our property. They are strictly confidential and must neither be copied nor made accessible to third parties – persons or companies – without our prior written agreement. All documents must be returned if requested – and, if no order is placed, without being asked.
3. Orders
For their binding acceptance, the orders placed with us require written confirmation. This also applies to amendments and additions to orders.
4. Price and payment conditions
All prices are quoted net, without VAT, ex works or warehouse. Charging is, in each case, on the basis of the prices valid on the delivery date. If being sold to non-traders, then prices are only subject to change if more than 4 months have elapsed between conclusion of the contract and delivery. If partial deliveries are made, then the Buyer must pay for each partial delivery in accordance with these payment conditions. Collection of the invoiced amount shall occur on the 4th day after delivery by direct debit with 4% early payment discount. Delivery of ordered goods may, at our discretion, be made dependent on immediate payment. Cheques are only accepted by prior agreement. If the Buyer causes delayed delivery, then payments shall become due from the date of readiness for shipment. In this case, keeping of the goods shall be at the sole risk and cost of the Buyer. The same applies if has been agreed that the Buyer will collect the goods itself. In this case, our claim becomes due as soon as we have given notification that the goods are available.
If, following conclusion of the contract and before payment, bankruptcy or settlement procedures are opened against the Buyer’s assets, if enforcement of payment by third-party creditors is carried out on the Buyer’s assets, if the Buyer ceases its payments or if cheques accepted by the Buyer are not honoured, then at our discretion we may demand immediate payment or securities, or withdraw from the contract. In the event of withdrawal, any costs arising shall be borne by the Buyer. If the Buyer is in default with its payments, then we reserve the right to postpone the fulfilment of our obligations arising from the business relationship as a whole until the payments that are in arrears have been made, or to void the order, charging for all costs that have arisen for us. The Buyer is not entitled to assert a right of retention or to declare offsetting against our payment claims that are due. If the Buyer defaults on the fulfilling of its obligations, then interest will be charged at a rate 4% above the base interest rate at that time as per § 247 BGB (German Civil Code). Furthermore, the user may demand payment for any deliveries arising from the contractual relationship which are en route or have not yet been made, with immediate effect and without applying any discount.
5. Deliveries
Assurances of delivery dates are approximate and non-binding, and conditional upon the prompt sending of Buyer information and documents required to fulfil the order, and also presupposes good firing results. Partial deliveries are permitted. Delayed deliveries or delayed performance due to force majeure or owing to events which make it significantly more difficult or impossible for the Seller to deliver, these include difficulties concerning material characteristics, also if these have occurred subsequently, malfunctions, strikes, lockouts, staff shortages, transport shortages, official orders etc., even if they affect suppliers of the Seller or the supplier’s subsuppliers, are not the responsibility of the Seller, even if they have agreed binding deadlines and dates. They entitle the Seller to postpone the delivery by the duration of the impediment plus an appropriate restart time or to partially or fully withdraw from the contract owing to the part not yet fulfilled. The Buyer may only demand from us a declaration of whether we wish to withdraw or deliver within an appropriate period of time. Claims for damages from the Buyer are excluded. Likewise, in the event of being supplied incorrectly or not being supplied on time by our suppliers, we may withdraw partially or fully from the contract without the Buyer being able to make claims for damages against us for this. If the delivery becomes delayed beyond the assured delivery date for reasons for which we are culpable, then the Buyer must grant us a new, appropriate delivery deadline.
6. Shipping and collection
Delivery takes place by means of shipping or collection. Shipping takes place by order of the Buyer and at the latter’s risk and cost. We are authorised to conclude, with the forwarding agent or carrier and on behalf of the Buyer, the legal transactions necessary for shipping. Any return shipments are at the risk and cost of the Buyer. If the goods are collected by the Buyer, then the risk passes to the Buyer on collection. Apart from the charges for cardboard packaging and boxes and hire fees for transport containers (Collico, rail containers, etc.), there will be no packaging costs. Cardboard packaging and boxes will be invoiced for at cost. If the Buyer so wishes, transport insurance shall be taken out. The costs of this insurance shall be borne by the Buyer.
7. Retention of title
The delivered goods shall remain our property until full payment of all receivables arising from the purchase contract on which the delivery is based. The following conditions apply solely to contractual relations with registered traders. The right to retention of title extends to all our claims vis-à-vis the Buyer due to us as a result of the business relationship, provided that the claims had already arisen at the time the particular contract was concluded. Hence the right also extends to a current account balance. If the Buyer resells the goods in the normal course of business, it hereby already assigns to us claims arising from the resale. The Buyer always processes the goods subject to retention of title for us. In the event of processing, by the Buyer, with other goods not belonging to us, we shall acquire co-ownership of the new item as a share corresponding to the value of the goods subject to retention of title relative to the other processed goods at the time of processing. The Buyer is not entitled to mortgage, or transfer by way of security, the goods subject to retention of title without our agreement. It must notify us immediately of possible actions by third parties (seizures etc.). If the Buyer is in default with payment, we are entitled to revoke the right it has been granted to collect accounts in respect of the claims assigned to us. In this case, the Buyer must provide us with the necessary information we require for asserting the claims assigned to us. In the event of default on payment, we are furthermore entitled to take back the goods subject to retention of title without this constituting assertion of our right to withdraw from the contract. If the value of the claims assigned to us exceeds our claims by a total of more than 20%, then we are required to release the goods at the request of the Buyer.
8. Warranty
The Buyer must provide a written notice of defects in relation to the delivered goods immediately after inspection has been completed. Checking for defects must occur immediately following receipt of the goods. Obvious defects which are not notified within 14 days of receipt of the goods and before further processing of the material shall be deemed accepted. Excluded from the warranty is damage occurring as a result of transport or improper handling by the recipient. Hairline cracks in the glaze are due to the special characteristics of ceramic material and firing method, and therefore do not constitute grounds for complaint. Also excluded is a guarantee of completely even colouring, or of a precise match with any hand samples provided. No warranty is provided for custom-made products. These must be accepted as made, and be paid for. In particular, the Buyer is obliged, at our discretion, to return to the factory any products notified as being defective. If products are sent in, we shall reimburse reasonable shipping costs incurred by the Buyer in substantiated warranty cases. We are only liable for the absence of assured characteristics if the relevant assurance was given in writing. Verbal assurances are only valid if they have been confirmed in writing. If we do not provide written confirmation of an assurance given verbally, then the Buyer must take steps to ensure written confirmation immediately after receiving these conditions. Further claims of the Buyer, in particular claims for damages of any type arising from direct or indirect damage, are excluded. The same applies to claims arising from rescission or reduction, provided that these claims do not explicitly result from the above conditions.
9. Place of fulfilment
Dillingen an der Donau is deemed the agreed place of jurisdiction for all disputes arising from the supply relationship in connection with this contract, insofar as the latter is concluded with registered traders and the disputes are associated with the operation of their commercial enterprise. The dealings between both contracting parties are governed exclusively by the law of the Federal Republic of Germany. Applicability of international sales law is excluded.
10. Partial invalidity
Should individual provisions of these Terms and Conditions of Sale and Delivery or of the delivery transaction not be legally valid, this shall not affect the binding character of the remaining provisions and the contract as a whole. Any invalid provisions must be replaced by new ones which come closest to the commercial purpose striven for with the void provisions.
11. Arbitration
Information obligation under § 36 I No. 1 VSBG (consumer arbitration) does not require any willingness to participate.