Terms and conditions

I. Introduction

The following sale, delivery and payment conditions, conveyed to the purchaser, are integral parts of the contract  when placing an order. Any conditions that deviate from said contract require special written consent. If the delivery and payment terms are contradictory between contracting parties, only our terms apply. This is true even if we do not contradict the conditions of the buyer once the order has been received. An identical exclusion clause in the buyer's terms requires a separate written notice. In commercial transactions, these conditions are also valid if the seller – within the framework of an ongoing business relationship - in subsequent agreements does not explicitly refer to them.

II. General Terms and Conditions

1. Quotation

a) Unless otherwise agreed, all offers are non-binding and non-obligatory. Acceptance of all orders is under the seller's provision of availability. The seller is not responsible for the non-delivery, he may withdraw from the contract.

b) Contracts and agreements of any kind, including those of the representatives, are only valid if confirmed by the seller in writing within 3 weeks or deliveries were carried out in silence.

2. Terms of Delivery

a) Any confirmed delivery dates by the seller are approximate departure dates for the goods, but shall be executed as promptly as possible. Fixed dates must be expressly and separately agreed upon in writing.

b) The buyer can give us only a grace period for delivery if he has fulfilled his obligations of cooperation and the agreed delivery date is exceeded. This period must be reasonable and usually amount to at least 4 weeks. After unsuccessful expiry of the grace period, our customer may withdraw from the contract upon written explanation. A claim for damages against the seller for breach of duty is limited to the sum of the value of the invoice, unless a personal injury has occurred or the buyer proves that the seller or its agent has at least acted with gross negligence.

c) Force majeure and other unforeseeable events beyond our control that complicate the delivery or performance or make them impossible - including later occurring difficulties in material procurement, operational disruptions, strike, lockout, shortage of personnel, lack of or failure of means of transport, blocking or impeding of transport routes, administrative orders, etc. - shall entitle us, even if they occur with our upstream suppliers, to postpone the delivery by the duration of the impediment plus a reasonable start-up time. Should such events constitute a permanent obstacle to the performance of the contract, the seller and the buyer are entitled, also because of an unfulfilled part, to rescind the contract without being obliged to pay compensation.

d) Delays attributable to the fact that the buyer's obligation to cooperate are not or not fulfilled on time, shall not be rectified at our expense. This is especially true if the buyer has to provide for regulatory approvals, regulatory compliance, preparation of foundations, the clarification of technical details and proper construction site road access and down payments.

3. Pricing

a) Our prices are net prices plus VAT at the statutory rate. This does not apply if the buyer is not a merchant according to the Commercial Code.

b) Carriage rates are available for the purchase of full loads of 25 t in an open wagon, or at least 20 tonnes in the truck. When ordered with solo vehicles or only partially loaded transport vehicles, surcharges will be invoiced.

c) The prices and deliveries on site are conditional on well passable roads and construction sites. The seller reserves the right to invoice idle operating time if the buyer fails to comply under the 4 e) regulated load times. The costs of any interim transportation, transshipment, and on site transportation of the goods are not included in the transportation costs and are charged to the buyer separately.

d) Other factors emerging after contract conclusion that lead to a change in the basis for calculation, such as higher labor and material costs, an increase in VAT or any other circumstances, entitle the seller to a reasonable price adjustment. This does not apply if the contractor is a consumer within the meaning of § 13 BGB and the performance of the seller was carried out within 4 months after the contract conclusion. If, in the latter cases, a price adjustment is made after the four months, the consumer may cancel the contract if the price adjustment exceeds the general cost of living considerably since the contract signing.

e) If fixed prices are agreed upon, the seller reserves the right to raise the prices to cover wage and material cost increases that may have occurred in the meantime, for deliveries which take place later than six months after signing the contract. Cargo changes that occur between contract conclusion and delivery due to changes in official truck, wagon or shipment loads, even at a fixed price agreements, are charged to the buyer. This also applies to statutory Low water surcharges for ships or ships between shipments.
 In addition, section f) sentence 2 is to be noted.

f) Provided transport packaging is taken back in accordance with the laws, the returns acceptance does not cover the replacement of the cost of the return shipment by the customer.

g) Applicable to the calculation are the load sizes, determined at the point of departure or at the works of the seller or the freight weights determined by sworn weighers. For the seller's bulk materials, the decisive factor is the weight determined at the plant weighing.

4. Conditions of Delivery

a) Deliveries are loaded free from the factory, unless otherwise expressly agreed upon.

b) The place of fulfillment for deliveries shall be the supplier or for stock goods the place where the goods are located, for both, ex-works "as well as for "on site" delivery.

c) The transport of goods is at buyer's risk; the risk passes with delivery to the carrier, railway, mailing service or with the loading for the purpose of delivery or at pick-up to the buyer. This also applies to the agreement of carriage prices. The exception applies only if the underlying contract is a sale of consumer goods within the meaning of § 474 BGB. In this case, the statutory law applies.

d) In case of a sale ex factory, the seller places the goods on the vehicle of the collector under the direction of the carrier staff. The liability for transportation and plant safety for cargo-loading under the applicable state of the cargo security technology lies with the collector, who uses the appropriately trained staff. The collector also provides the necessary load securing equipment. A check of the cargo security measures carried out by the collector or his agents does not occur through the seller. The seller is not liable for damages stemming from insufficient cargo securing measures.

e) If agreed to supply free on site, it is only insofar as the access conditions allow for transportation of heavy freight trains without danger to the vehicle and the cargo. Unloading has, unless otherwise agreed upon, to be carried out by customer-provided staff and be within a time period of 1.5 hours after arrival.

f) For customized products (including custom colors) the quantities ordered are binding for the purchaser and must be accepted in any case. There is no entitlement for an additional production for smaller quantities..

5. Warranties and Indemnities

Samples are average samples; recipes are non-binding. Also, analysis reports concerning the maximum and minimum limits are only to be regarded as approximate. Over time, colour deviation and fading of the products, due to influence of weather, are technically unavoidable and typical characteristics. They correspond to the contractual nature of the product and do not justify the enforcement of warranty claims.

a) A sales contract or a contract treated under the rules applicable to the sales contract provisions exists in which the Party is a consumer according to § 13 BGB, the following rules apply:

aa) The purchaser must immediately inspect and examine whether the product is properly and fully provided, and notices of any visible defects must be made within 2 weeks after delivery.

bb) The statutory provisions apply to the liability for material defects for consumer goods with the restriction that the buyer's claim for damages due to a defect is limited to the amount of the invoice value, unless a personal injury has occurred or if the buyer proves that the seller or its agent acted in a grossly negligent manner.

cc) Colors may vary slightly compared to the samples in the prospectus and on sample boards / patterns shown at exhibits. Technical changes and improvements are expressly reserved.

dd) In the case of delivery of concrete products of all kinds the "Technical Instructions for the delivery of road construction products from concrete", published by the Federal Association of the German concrete and precast industry, Bonn, drafted in January 1999, are agreed upon as part of the contract for the treatment especially of blooms, color variations, cracks, dimensional tolerances and scrap . The contracting party will be provided with a copy of the Technical Instructions upon request.

b) A purchasing contract or a contract treated according to the purchasing contracts’ existing agreement exists, which does not qualify for the regulation of consumer good purchasing, the following rules shall apply:

aa) The seller shall warrant for the compliance with the DIN regulations and the conformity of the delivered goods with other contractual quality assurance arrangements. The assumption of a guarantee within the meaning of § 443 BGB is not so connected. Other statements in brochures, other advertising, consulting, etc., are not likely to create certain characteristics of the purchased item. This is true even if they are statements of others. The documents pertaining to the offer, such as illustrations, drawings and weights are only approximate, unless they are expressly designated as binding. Color variations in comparison to the in the prospectus and on sample boards / exhibits shown patterns must be reserved. Technical changes and improvements are expressly reserved.

bb) The purchaser is obliged to  carefully examine the subject matter of the contract immediately after delivery and, where necessary, to conduct spot checks. Obvious deficiencies must be claimed  immediately upon arrival and before the use of the subject matter in writing and in detail, at the latest within 8 days from receipt of the order.
In case the transportation is carried out by the sellers’ own freight trucks or those of a commercial long distance freight transport, the observed damages and losses are to be verified with a written declaration by the truck driver and the people involved in the unloading including their names and exact addresses. The seller must be notified in the same way about hidden defects within 3 days of discovery. For rail shipments, including shipments with trucks owned by the rail road company transport damages and losses are to be verified with a statement of facts on the freight papers by railway officials, including the certification of the damages and missing amounts, so they can be recognized.
In case of a non-formal and untimely submission of the defect declaration the subject matter shall be considered approved and warranty claims can no longer be claimed.

cc) Break in commercial limits is no cause for complaint.
dd) Even in the case of a defect the buyer is obliged to accept the contractual matter, in particular, the transport means wagon and ship are to be unloaded. The goods are to be properly stored and returned only at the expressed request of the seller.

ee) In the case of delivery of concrete products of all kinds the "Technical Instructions for the delivery of road construction products from concrete", published by the Federal Association of the German concrete and precast industry, Bonn, drafted in January 1999, are agreed upon as part of the contract for the treatment especially of blooms, color variations, cracks, dimensional tolerances and scrap . The contracting party will be provided with a copy of the Technical Instructions upon request.

ff) The guarantee shall be provided by the seller for a period of one year from the point of delivery in accordance with the following regulations. A longer warranty period applies only if the buyer can prove to the seller the compelling validity of a longer period. No warranty is guaranteed for special orders according to the buyers’ specification, calculation and construction, where defects are based on these data.

gg) Defects will be remedied at the Seller's discretion by repair or replacement. A claim for damages against the seller for breach of duty is limited to the amount of the value of the invoice, unless a personal injury occurred or the buyer proves that the seller or its agent has acted with gross negligence. To remedy the defect, the buyer must grant the seller adequate time and opportunity of doing so. If this is refused, warranty claims of any kind against us are omitted .

hh) If the subsequent performance by the Seller fails within the meaning of § 440 BGB, the buyer can also withdraw from the contract. Further claims by the purchaser for damages against the seller for breach of duty are limited to the amount of the value of the invoice, unless a personal injury occurred or the buyer proves that the seller or its agent has at least acted with gross negligence.

ii) If the buyer pursues the seller because of a defect claim according to § 478 ff BGB, the claim for damages is limited to the amount of the difference between the value of the defect free product and the defective product unless the buyer proves that the seller acted with gross negligence or that a personal injury has occurred.  

c) If the seller or seller's staff gives advice, information, or recommendations before, during or after a finalized deal or in a different context, the seller is only liable if a special charge has been agreed upon in accordance with the relevant fee regulations.

d) In any other breach of obligation of the seller or his agents, the buyer has the right to the legal claims, but the claim for damages is limited to the amount of the invoice value, unless a personal injury has occurred or a buyer proves that the seller or its agent acted with gross negligence.

6. Payment

a) Unless otherwise agreed upon, cash payment is required without any deductions within 30 days after the invoice date. If payment is made within 10 days after the invoice date a 2% discount may be applied, as long as previous invoices are paid in full. If payments are done by direct deposit the seller grants a 3% discount on the goods value plus VAT. Payment location is Mülheim-Kärlich. If the payment period is exceeded, the statutory provisions of the Civil Code apply to late payments.

b) Against the claims of the seller under this contract, an offset claim of the buyer may only be allowed with uncontested or legally established claims. The same applies to the enforcement of liens against the claims of the seller.

c) Payments received will be used at the option of the seller to satisfy for the oldest or the least secured debt.

d) Payments by note- and check shall only be accepted as conditional payment by special arrangement. Discount and bill charges shall in any case be borne by the buyer. In case of a worsening of the buyer's ability to pay, the seller is entitled to immediately withdraw all of the outstanding bills and checks from circulation. The resulting costs  involved in collection are also to be borne by the buyer.

e) Bills of the seller apply as recognized, if the buyer is a merchant, and if they are not contested in writing within 30 days after the invoice date.

f) The Seller and the Seller's representatives have no authority to collect.

7. Retention of title

a) The goods remain the property of the seller, as well as all claims of the seller against the buyer of the entire business relationship, including future claims, until payment is made in full,. This also applies to payments on debts referred particularly to compensate for any current account balance. The subject goods are to be stored properly and separately from other materials, at buyer's expense and at the request of the seller, to be especially identified and insured against damage, destruction or loss. The execution of an appropriate insurance policy certificate must be proven by the purchaser upon request. The buyer shall hereby in advance assign his claims from the insurance contracts in the amount of the value of the property subject to the seller and consents to a payment to the seller.

b) The buyer has always the revocable right provided he meets his obligations to the seller as agreed upon, to sell the subject property in the ordinary course of business. In this case, or upon delivery of the reserved subject property to a third party or if the subject property is installed, the buyer assigns hereby, until all claims of the seller from the entire business relationship are paid for in full, all arising claims through  the sale, delivery or installation against his customers with all ancillary rights, including any compensation claims that arise and of any entitlement to grant, the cautionary mortgage decreases by the amount of the invoice value of the delivery of the seller to the latter. The seller accepts the assignment. The buyer is in principle authorized to collect the receivables from a disposition of the reserved goods and is in terms of the collected money trustee of the seller. The right of the seller to collect the receivables is unaffected. He won’t collect the amounts due as long as the buyer meets his payment obligations. At our request, the buyer has to inform us of the debtor of the assigned claims and notify the debtor of the assignment, without prejudice to our own view of rights and privileges.

c) If the subject property is processed or transformed, so is the working, processing or the transformation for the seller as a manufacturer made within the meaning of § 950 BGB - without any implied warranties -. As a result, the seller acquires the property of the interim or final products. The purchaser or respective owners keep the goods for the seller. The buyer is obliged to meet such agreements with its purchasers when transferring the goods, such agreements should ensure that the seller, despite repeated transfer of the goods remains the owner of the same. Liabilities and claims for damages resulting from the manipulation or processing do not transfer to the seller. When combined, mixed or blended with other objects, not belonging to the seller, by the buyer, the seller acquires joint ownership in the amount of the ratio value of the subject property goods to the other goods at the time of combining, mixing or blending. Insofar as the seller acquires the sole ownership by combining, mixing or blending of the product with an item belonging to him he assigns, to secure our claims, his rights now in the ratio of the value of the goods of the seller to the value of the other item. He shall keep the goods free of charge for the seller.

d) If the reserved property is installed by the buyer as an integral part on their own land, the buyer shall already assign claims in the amount of the value of the goods and all ancillary rights to the seller that are arising from the sale of the property.

e) In the event of a transfer ban on the resale, installation or in the case of delayed payment, the buyer is obliged to disclose the prior assignment to the third party purchaser. If the reserved goods delivered by the seller are sold together with other items to a third party, the buyer is required to separate the invoice items in this respect. Insofar as a separate account is not issued, the portion of the total asking price is to be assigned to the seller, equal to the invoice value of its delivery. The above retention of title shall remain available even if individual claims are added by the purchaser against its third party purchaser in a current account. In this case, the buyer shall already assign the existing balance in his favor to the seller. By default of the buyer, the seller is entitled to collect the assigned claims directly with the garnishee.

f) Inadmissible are exceptional provision by the buyer, such as pawning, assignment of claims as security on a debt and transfer of title of our reserved goods. The buyer shall inform the seller forthwith in case of any intervention by third parties against the goods and claims, such as attachments or any other type of impairment of our rights to retention of title. He has to bear the costs of third party proceedings if the access is to be represented by him.

g) In the case of a default by the buyer, he shall be obligated to surrender the items under retention of title to the seller. He is also obliged, upon request, to provide the seller with all information and documents necessary for making the relinquished claims valid.

h) If the value of the overall securities from the business relationship given to the seller exceed his claims by more than 20%, the seller at the request of the buyer is obliged in this respect to make restitution. The selection of the reimbursed securities shall be made by the seller.

8.Breach of contract by purchaser, other liabilities, safety guarantees and risk to the services of the seller

a) If the purchaser is in default with the purchase and delivery of the goods or with part of the product or any other contractual agreement or if he is in payment default, the seller is also entitled to withdraw after a reasonable period of time in whole or in part  from the contract and / or has the right to be compensated for damages in the amount of 20% of the purchase price, reserving the right to demand evidence of verifiable greater damage, in particular the cost of the withdrawal, removal and relocation, downtime costs, etc., unless the buyer has a lower damage or the non-occurrence of the loss. If agreed upon, a partial withdrawal of the product is due to retention of title as a withdrawal.

b) If, after the conclusion of the contract, it becomes known that the buyer is at risk of insolvency, such as default and suspension of payments, in case of installment payments, delays with installments on the buyers' part, application for insolvency proceedings, chattel mortgages, circulating assets etc., all claims of the seller are immediately due. The seller has the right to refuse service and, after an unsuccessful period of grace to provide securities in form of enforceable bank guarantees or guarantees or financial advances, to withdraw from the contract and / or claim damages. A deadline does not apply if the lack of capacity on the part of the buyer becomes evident.

9. Privacy Policy

The seller is entitled to use the obtained data on the buyer, that was acquired during the business relationship or in connection with these, regardless of whether they come from the buyer or third parties to process these in respect to the Federal Data Protection Act.

10. Jurisdiction and applicable law

a) Koblenz shall be the place of jurisdiction for all disputes with merchants, public bodies and publicly-owned corporations arising directly or indirectly out of or in connection with the contractual relationship.

b) On the whole contractual relationship only German law shall apply. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

c) Should any of the above conditions cease, by law or by individual agreement, the validity of the remaining provisions of these terms and conditions shall not be affected.

 

Bisotherm GmbH, Mülheim-Kärlich 56 214