General Terms and Conditions of Sale and Payment
Capital Baustoffe GmbH
§ 1 General - Scope
(1) These General Terms and Conditions shall apply exclusively; we do not recognise any terms and conditions of the customer that conflict with or deviate from these General Terms and Conditions unless we have expressly agreed to their validity in writing. These General Terms and Conditions shall also apply if we carry out the delivery to the customer without reservation in the knowledge of terms and conditions of the customer that conflict with or deviate from these General Terms and Conditions.
(2) All agreements made between us and the customer for the purpose of executing the contract are set out in writing in this contract.
(3) These General Terms and Conditions shall only apply to entrepreneurs within the meaning of § 14 of the German Civil Code (BGB) and to legal entities under public law or a special fund under public law.
(4) Our General Terms and Conditions of Business apply to the entire business relationship - including all future business - with the customer.
§ 2 Offer - Offer Documents
(1) Our information on the website, in price lists, brochures, catalogues and similar media with regard to prices, quantities, delivery periods and delivery options as well as other services from us are in principle subject to change.
(2) If the order is to be qualified as an offer pursuant to § 145 BGB, we may accept it within two weeks.
(3) We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents on which our contractual offers are based. This also applies to such written documents that are designated as "confidential". The customer must obtain our express written consent before passing them on to third parties.
§ 3 Prices - Terms of payment
(1) Unless otherwise stated in the order confirmation, our prices shall apply "ex works". We deliver the goods in packaging customary in the industry. Special packaging and pallets as well as shipping costs and other ancillary costs shall be invoiced separately. If deposit pallets are taken back, a credit note shall be issued after deduction of the handling costs.
(2) Statutory value added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate applicable on the day of invoicing.
(3) The deduction of a cash discount requires a special written agreement. The net invoice amount after deduction of discounts, freight, pallet deposit and services shall be decisive for the calculation of the cash discount amount. Claims of the customer for a cash discount cannot be asserted as long as the customer is in default of payment.
(4) Unless otherwise stated in the order confirmation, invoices are due for payment immediately.
(5) The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognised by us. In addition, he is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 4 Delivery time
(1) The delivery dates and deadlines communicated by us are generally non-binding.
(2) The start of the delivery period stated by us is subject to the clarification of all technical questions. Agreed delivery dates shall be deemed to have been met upon notification of readiness for dispatch, in particular if the delivery items cannot be dispatched on time through no fault of our own.
(3) Our delivery obligation is subject to proper and timely self-delivery by our supplier; unless we are responsible for the incorrect or delayed self-delivery.
(4) If non-compliance with delivery dates and deadlines is due to unforeseeable extraordinary events which we could not avert even with reasonable care, e.g. war, acts of terrorism, civil unrest, forces of nature, accidents, strikes and lockouts, operational disruptions and other disruptions or delays, the delivery dates and deadlines shall be extended appropriately, taking into account a reasonable start-up period. This also applies if such events occur at our suppliers or subcontractors.
(5) If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims or rights remain reserved.
(6) If the conditions of paragraph (5) exist, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time at which the customer is in default of acceptance or debtor's delay.
(7) We shall be liable in accordance with the statutory provisions insofar as the underlying contract is a transaction for delivery by a fixed date within the meaning of Section 286 (2) No. 1 of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB). We shall also be liable in accordance with the statutory provisions if, as a consequence of a delay in delivery for which we are responsible, the customer is entitled to assert that his interest in the further performance of the contract has ceased to exist.
(8) We shall also be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is due to a grossly negligent breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(9) We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
§ 5 Transfer of risk - packaging costs
(1) Unless otherwise stated in the order confirmation, delivery "ex works" is agreed.
(2) The risk shall pass to the customer when the goods have been handed over to the shipping agent or loaded onto transport vehicles.
(3) In the event of transport damage, the customer is obliged to immediately arrange for a recording with the transport company as well as the relevant offices. The customer is also obliged to inform us immediately of any transport damage.
(4) Separate agreements shall apply to the taking back of packaging, insofar as nothing is regulated in these General Terms and Conditions.
(5) If the customer so wishes, we shall insure the delivery on behalf of and for the account of the customer; the costs incurred in this respect shall be borne by the customer. An obligation for us to take out insurance cannot be derived from this.
§ 6 Liability for defects
(1) Claims for defects on the part of the customer presuppose that the customer has properly fulfilled its obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB). Notwithstanding the obligation pursuant to § 377 HGB, each customer shall notify us in writing of any defects without undue delay, but no later than within 5 working days from receipt of the goods in the case of recognisable defects, or from discovery in the case of hidden defects.
(2) If the goods are defective, the customer shall be entitled to choose between subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. In the event of rectification of the defect or replacement delivery, we shall be obliged to bear all expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the goods have been transported to a place other than the place of performance.
(3) If the supplementary performance fails, the customer shall be entitled to demand withdrawal or reduction at his discretion.
(4) We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(5) We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, too, however, liability for damages shall be limited to the foreseeable, typically occurring damage.
(6) Insofar as the customer is otherwise entitled to compensation for damage instead of performance due to a negligent breach of duty, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(7) Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
(8) Unless otherwise stipulated above, liability is excluded.
(9) The limitation period for claims for defects is 12 months from the start of the statutory limitation period.
(10) The limitation period in the case pursuant to the preceding paragraph (9) shall not apply insofar as the law pursuant to §§ 438 para. 1 no. 2 (buildings and objects for buildings) and 478, 479 (right of recourse) of the German Civil Code (BGB) prescribes longer periods, and otherwise in the case of intent, fraudulent concealment of a defect and non-compliance with a quality guarantee.
§ 7 Joint and several liability
(1) Any further liability for damages than provided for in § 6 is excluded - regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for property damage pursuant to § 823 BGB.
(2) The limitation of liability according to the above paragraph (1) shall also apply insofar as the customer demands compensation for useless expenditure instead of a claim for compensation for damage instead of performance.
(3) Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
§ 8 Retention of title
(1) We retain title to the goods sold until all present and future claims arising from the business relationship with the customer (secured claims) have been settled in full. Insofar as we agree with the customer on payments of the debt on the basis of the cheque/bill of exchange procedure, the reservation shall also extend to the redemption by the customer of the bill of exchange accepted by us and shall not expire by crediting the cheque received by us.
(2) The customer is obliged to handle the goods with care and to store them properly. The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The customer must notify us immediately in writing if an application for the opening of insolvency proceedings has been filed against his assets. Insofar as maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
(3) In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can file a lawsuit in accordance with § 771 ZPO (German Code of Civil Procedure). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
(4) The customer is entitled to resell the goods in the ordinary course of business; however, he already now assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim, which accrue to him from the resale against his customers or third parties, irrespective of whether the goods have been resold without or after processing; we already now accept the assignment. The customer remains authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application has been made to open insolvency proceedings against his assets, no out-of-court creditor composition proceedings have been initiated or no suspension of payments has occurred. If this is the case, however, we may demand that the customer informs us 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) The processing or transformation of the goods by the customer shall always be carried out for us. If the goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods (final invoice amount, including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the goods delivered under reservation of title.
(6) If the goods are inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it shall be deemed to be agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.
(7) If the customer is in default with a not insignificant part of his payment obligation towards us, we shall be entitled to withdraw from the contract and to take back the reserved goods. The costs incurred by the exercise of the withdrawal - in particular for transport and storage - shall be borne by the customer insofar as we have threatened the surrender of the reserved goods with a reasonable period of notice. In the event that the goods subject to retention of title are taken back, we shall issue the customer with a credit note in the amount of the break-up value, which is hereby agreed to be 20 % of the net factor value. Insofar as the goods actually had a higher market value at the time of repossession, this shall be applied.
(8) The customer already now assigns to us the purchase price, compensation for work or other claims arising from the resale as well as the further processing or any other legal reason (insurance, tort, loss of ownership due to connection of the delivery item with a property) with regard to the reserved goods in the amount of the invoice value of the reserved goods (including VAT); we already now accept the assignment. Until revoked, we authorise the customer to collect the claim assigned to us on our account in his own name. This authorisation to collect may be revoked if the customer does not properly fulfil his payment obligations. The customer undertakes to provide us with the information on the assigned claims required for collection and to make available to us all documents available to him. He is also obliged to notify the debtor of the assignments at our request. The assignments of claims in accordance with the aforementioned provision serve to secure all current and future claims arising from the business relationship with the customer.
(9) We undertake to release the securities to which we are entitled at the customer's request insofar as the realisable value of our securities exceeds the claims to be secured by more than 10 %; the selection of the securities to be released is incumbent on us.
§ 9 Place of jurisdiction - Applicable law
(1) If the customer is a merchant, a legal entity under public law or a special fund under public law, the courts at our place of business shall have exclusive jurisdiction for all disputes arising from the business relationship with the customer. However, we are also entitled to sue the customer at the court of his registered office, at the court of his place of residence or at other places of jurisdiction established under general law.
(2) If the customer moves his registered office, place of residence or usual place of abode outside the area of validity of the Federal Republic of Germany after conclusion of the contract, our registered office shall be the place of jurisdiction. This also applies if the customer's registered office, place of residence or habitual abode is not known at the time the action is brought.
(3) The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
§ 10 Data protection
(1) We process data of the customer insofar as the customer has expressly consented or this is necessary for the execution and processing of the respective contract concluded and as long as we are obliged to store the data due to statutory provisions.
(2) We only pass on the customer's personal data necessary for the fulfilment of the contract to third parties to the extent necessary for the processing of the order or if there is a legal obligation to pass it on. We check the creditworthiness of the customer by transmitting data on the application, commencement and termination of this contract to either SCHUFA HOLDING AG, Kormoranweg 5 in 65201 Wiesbaden or Euler Hermes Deutschland Niederlassung der Euler Hermes SA, Friedensallee 25, 22763 Hamburg (both together "credit insurers") and also receive information on the customer from the credit insurers, insofar as this is permissible after weighing our interests against their interest in excluding the transmission.
(3) With regard to further details on data protection, we refer to our leaflet "Information on data protection". The leaflet will be handed over to you on request at our place of business. You can also view the privacy policy on the page http://capital-baustoffe.de/datenschutz/.
