Section § 1 – General Points, Area of Application
1. Our terms of business apply to all current and future business relationships.
2. Consumers in the sense of these business relationships are natural persons with whom we enter into business relationships without this giving rise to commercial or self-employed vocational or professional activities. A businessman in the sense of these terms of business is a natural person or legal entity or legally-established partnership with whom or with which we enter into business relationships that have to do with the practising of a commercial or self-employed professional activity. A client in the sense of these terms of business is both a consumer and a businessman.
3. Deviating, contradictory or supplementary general terms of business of the client, even if known, form no component of the contract, unless we explicitly agree in writing to their validity.
Section § 2 – Coming Into Effect of a Contract
1. Our offer remains non-binding until it is accepted. Our offers are made exclusively on the basis of the following conditions.
2. Our disclosures in offers, brochures, illustrations and drawings, and any details on measurements and weight, are average values. They are not assured attributes, but rather descriptive presentations of our products. The same applies to samples provided by us. We reserve the right to make technical alterations or alterations in form/colour and/or weight, provided such alterations remain within the bounds of what is reasonable.
3. On ordering our products the client declares definitively to award the order. We are entitled to accept the contractual offer constituted by the order within two weeks of receipt of the order. The acceptance can be given in writing, by fax or by electronic means, or by handing over our product to the customer ordering.
4. If the client orders our product by electronic means, we will confirm receipt of the order immediately. This confirmation of receipt of the order, however, is not yet a binding acceptance of the order, although confirmation of receipt can be bound to the declaration of acceptance.
5. In our confirmation of order and/or our letter of confirmation we will describe precisely the product ordered, any further performance to be rendered by us and the anticipated date of completion.
6. The conclusion of contract is undertaken subject to the proviso of correct and timely receipt of our deliveries via our suppliers. This applies only in cases in which we are not answerable for the non-delivery. The client will be informed about any non-availability of performance immediately. Counter-performance already rendered will be refunded immediately.
7. We draw attention to the fact that in the event of a product order by electronic means the wording of the contract is stored by us and can be sent to the consumer, upon request, together with our STB per e-mail.
Section § 3 – Confidentiality Clause
1. The client undertakes not to pass on data acquired in the context of the business relationship to unauthorized third parties, and to securely protect and safeguard such data against access and misuse by unauthorized persons.
Section § 4 – Prices, Terms of Payment
1. The price quoted by us in our offer is in euros and is binding. It does not contain the respective value added tax, which is added to the price.
2. If we have not made an offer and the client orders instead on the basis of our sales brochures, our respective prices, as determined by our price lists at the time of the order, apply. Our prices, as listed there, are gross prices not including the respective value added tax.
3. Our prices are to be understood as ex works in Solnhofen, i.e. packaging and transport costs have still to be added.
4. Payments are to be made in cash, i.e. without any deduction whatsoever. Payment by bills of exchange can only be made on the basis of an explicit agreement reached with us. Any discount and/or other costs must be borne by the client.
5. Payments must be made to us without deduction within 10 days of the dispatch of the invoice, and at the latest, however, 10 days after receipt of the goods. After expiry of this period, the client is in default. Cash discounts are only permissible if this has been explicitly agreed with us.
Clients who participate in the SEPA direct debit procedure receive a notification of the direct debit on the day of submission of the debit note to our principal bank.
If the client is a consumer, he or she will be charged interest on the due debt during the period of default at a rate of 5 % above that of the base rate of interest.
If the client is a businessman, interest at a rate of 9% above the base rate of interest will be charged on the due debt.
We reserve the right to prove a higher level of damage and to enforce this.
6. If the client is a businessman and if he is in default, we are authorised to demand a lump sum amounting to 40.00 euros as compensation for our own operating costs. In this respect, a reminder is not required. If our operating costs exceed the lump sum, we reserve the right in this respect to enforce payment of the additional costs separately.
Section § 5 – Passing of Risk
1. If the client is a businessman the risk of accidental loss and accidental deterioration of the goods passes to the businessman with the hand-over of the goods, in cases of purchase and dispatch, with the hand-over of the goods to the forwarding agent, to the carrier, or to the person otherwise identified as responsible for carrying out the shipment.
2. If the client is a consumer, the risk of accidental deterioration and of accidental loss of the sold item(s), even in cases of purchase and dispatch, first passes with the hand-over of the item(s) to the buyer.
3. The hand-over takes place even if the client defaults on acceptance.
4. Any shipment is undertaken only with a separate order issued by the client at the cost and risk of the client. Clients who want a transport insurance must take this out in their own name.
5. In the case of a freight-paid delivery explicitly agreed with us, the hand-over takes place on delivery to our customer.
Section § 6 – Guarantee
1. If the client is a businessman, in the event of defects in our products we can initially choose to honour our guarantee by means of subsequent improvement or by replacement.
2. If the client is a consumer, he or she can first decide whether subsequent performance should take the form of subsequent improvement or replacement. We are nevertheless entitled to refuse the form of subsequent performance chosen if this can only be rendered at excessive cost for us and the alternative form of subsequent performance can be completed without any considerable disadvantage for the consumer.
3. If subsequent delivery fails to remedy the situation the client can demand price reduction or revocation/cancellation of the contract.
4. If the client is a businessman, we must be sent written notification of obvious defects immediately after receipt of the goods, otherwise enforcement of the guarantee entitlements are excluded. The deadline is met if the written notification is dispatched in good time. The businessman bears the full onus of proof for all preconditions for entitlement, particularly for the defect itself, for the point in time of discovery and for the timely dispatch of the notification of defects. Such notice of defects must at any rate be given before the installation or the processing of our product. If notice of defect is not given on time, our delivery is regarded as having been carried out according to contract. If our client is a consumer, he or she must notify us within a period of 2 months of discovering the state of the goods that is in breach of contract, and in writing in cases of obvious defects. The time of receipt by us of the notice of defects is determinative for observing the deadline. If the consumer fails to give notification, the guarantee entitlements expire 2 months after discovery of the defect. This does not apply if we have behaved deceitfully. The onus of proof for the discovery of the defect lies with the consumer. If the consumer has been persuaded to purchase an item by incorrect information from the manufacturer, he or she bears the onus of proof for the purchase decision.
5. If, after a failed attempt at subsequent performance, the client opts, due to a legal shortcomings or to material defect, to withdraw from the contract, no further claim to compensation due to the defect exists. If, after a failed attempt at subsequent performance, the client opts for compensation, the goods are to remain with our client, in as much as this can be reasonably expected of the client. The compensation is limited to the difference between the purchase price and the value of the defective item(s). This does not apply in cases in which we have deceitfully brought about the breach of contract.
6. If the client is a businessman, the condition of the goods is always regarded as having been agreed to solely as presented in our product description. Our public comments, recommendations or advertisements, by contrast, represent no contractual details as to the condition of the goods. The goods embrace the following conditions, on which we hereby give an explanation for our clients. Our natural stone can never be quite uniform in its colours, strength and processing. The right to deviations in these respects is retained, provided these lie in the nature of the materials used and are in this respect customary, even if delivery is to be made on the basis of submitted average samples. As regards the strength of our materials a tolerance of 10 % must be allowed for on the prescribed leeway. Our samples are non-binding and show the general appearance of the natural stone. Hand samples can never depict all of the properties and differences in colours, structure and make-up of the natural stone. Natural stone can show colour differences, opacity, veins and natural faults such as pores, open bodies, breaks, calcite streaks, etc. for which we accept no liability. Absolute frost-resistance, however, can never by guaranteed for limestone and for this reason, again liability cannot be accepted. Natural stone can only be worked in outdoor areas to a certain extent. We never guarantee absolute frost-resistance and accept no liability for it. We draw your attention to the fact that our natural stone, limestone etc. are not resistant to frost de-icing salt. In general we do not accept liability for natural stone laid in outdoor areas.
7. Guarantees in the legal sense of the term are not given to the client by us. Any manufacturers‘ guarantees and warranties remain unaffected by this.
Section § 7 – Limitation of Liability
1. In cases of slightly negligent violation of obligations our liability is limited in keeping with the nature of the goods, to foreseeable, contract-typical, direct average damage. This also applies in cases of slightly negligent violation of obligations on the part of our legal representatives or agents.
2. The above-mentioned limitations on liability, however, do not apply to any claims of the client based on product liability. Nor do the limitations on liability apply in cases of bodily damage or damage to health, or in cases of loss of life.
3. If the client is a businessman the following also applies: force majeure, or operational disturbances affecting us or our suppliers and temporarily preventing us from delivering the ordered goods by the agreed date, without our being answerable for this, have the effect of altering the date given by us by the period of the disturbance to delivery due to these circumstances. Should such disorders lead to a delay in delivery of more than a month, the client can withdraw from the contract, without thereby having any claims to compensation. Other possible rights of rescission of contract remain unaffected by this.
Section § 8 – Retention of Ownership
1. In cases of contracts with consumers we reserve the ownership of the goods until the purchase price has been paid for in full. In cases of contracts with businessmen we retain the ownership of the goods until payment has been made in full for all claims arising from an ongoing business relationship.
2. The client is obliged to handle the goods carefully and to store them properly.
3. The client is obliged to inform us immediately of any access of third parties to the goods, as in the case of seizure, as well as of any damage to or destruction of the goods. The client must notify us immediately of any change in the possession of the goods, as well as of any change in the client’s own place of residence.
4. In the event of behaviour by the client that is in violation of contract we are entitled to withdraw from the contracts and to demand the return of the goods, particularly in cases of default on payment or in cases of violation of a duty stipulated under points 3 or 4 of these terms.
5. If our client is a businessman, he is entitled to resell the goods in the course of orderly business activities. To this end he already assigns to us all claims of his against third parties arising from the resale, up to the value of the invoice amount. We accept the assignment. After the assignment the client is authorized to collect the claim. We nevertheless reserve the right to collect the claim ourselves, as soon as the client fails to properly honour his payment commitments and defaults on payment. The businessman is obliged to provide us immediately with all the necessary documents and information required for collection of the claim.
Section § 9 – Place of Jurisdiction, Applicable Law
1. The law of the Federal Republic of Germany applies. The provisions of the UN purchase law are not applicable.
2. If the client is a businessman, a public corporation or a public-law fund, the exclusive place of jurisdiction for all disputes arising from this contract is the place of the registered address of our company. We are, however, also authorised to file an action at the registered address of the client.
Section § 10 – Final Provisions
1. If any of the provisions of the contract with the client including our Standard Terms of Business proves to be invalid, whether in whole or in part, and whether at present or at some future date, this will not affect the validity of the remaining provisions. The wholly or partially invalid regulation will be replaced by a regulation that most closely corresponds to the economic intentions of the invalid regulation.