Terms and Conditions

§ 1 General – Scope

1. Our terms and conditions of sale shall apply exclusively; we do not recognize any terms and conditions of the customer which may be contradictory to or deviate from our terms and conditions unless they have been accepted by us in writing. Our terms and conditions of sale shall also and even apply in cases where we – despite being aware of contradictory or deviating terms and conditions of the customer – have made delivery to the customer without reservation.
2. All agreements made between us and the customer for the purpose of the execution of this contract are stipulated in writing in this contract.
3. Our terms and conditions shall only apply vis-à-vis companies in accordance with Article 310 section 1 of the German Civil Code (BGB).

§ 2 Offer – Acceptance – Reservation of Self-supply

1. Our offers shall remain non-binding. An order shall only be deemed accepted following our written acknowledgement of the order.
2. If the order qualifies as an offer according to Article 145 of the German Civil Code (BGB), we may accept this offer within a period of two weeks.
3. The conclusion of the contract shall be subject to the reservation of the correct and timely self-delivery by the pre-supplier of the vendor. The reservation of self-supply only applies in cases in which the vendor has concluded a congruent hedging transaction with the pre-supplier.

§ 3 Prices – Terms of Payment – Packaging Costs

1. Unless not otherwise provided in the confirmation of order, our prices per ton are in Euro gross for net weighed “ex works”, excluding packaging; this will be invoiced separately. We supply our bagged products in standard packaging; special packaging will only be used by arrangement. The return of packaging materials is subject to separate agreement.
2. The statutory value-added tax is not included in our prices; this will be listed separately on the invoice at the statutory rate on the day of invoicing.
3. The deduction of any discount is subject to special written agreement.
4. Unless not otherwise provided in the confirmation of order, the net purchase price is payable (without deduction) following receipt of the invoice. The statutory regulations regarding the consequences of default in payment shall apply.
5. The customer shall only be entitled to off-setting rights if his counterclaims are declared legally valid, are undisputed or have been recognized by us. Furthermore, he is entitled to exercise a right of retention in as far as his counterclaim is based on the same contractual relationship.

§ 4 Delivery Time

1. The commencement of the delivery time determined by us prerequisites the clarification of all and any technical issues.
2. Compliance with the delivery period is also conditional upon the timely and proper fulfilment of the customer’s obligations. We reserve the right to object to a nonfulfilled agreement.
3. If the customer is in default of acceptance or culpably violates other obligations to cooperate, we are entitled to demand compensation for losses occurred, including any additional costs. Any further claims or rights remain unaffected.
4. Insofar as the preconditions of subsection (3) apply, the risk of incidental loss or incidental deterioration of the objects or products purchased shall pass to the customer at the moment that he is in default of acceptance or payment.
5. We are liable to the extent of the statutory regulations in so far as the contract in question is a firm deal in the sense of Article 286 section 2 number 4 of the German Civil Code (BGB) or of Article 376 of the German Commercial Code (HGB). We are also liable in accordance with statutory regulations if, as a consequence of any delay of delivery for which we are responsible, the customer is entitled to assert the right that his interest in the continued fulfilment of the contract has ended.
6. We are furthermore liable in accordance with statutory regulations in so far as any delay of delivery is the result of a wilful or grossly negligent infringement of the contract for which we are responsible; culpability of our agents or vicarious agents shall be attributed to us. If any delay of delivery is the result of a wilful or grossly negligent infringement of the contract for which we are responsible, our liability shall be limited to foreseeable, typically arising damage.
7. We are also liable in accordance with statutory regulations if any delay in delivery is the result of the culpable breach of material contractual obligations; in this case, our liability shall, however, be limited to foreseeable, typically arising damage.
8. Furthermore, in case of a delay in delivery, we shall be deemed liable for each completed week of delay as part of a flat-rate compensation in the amount of 3 % of the delivery value, limited however to a maximum of no more than 15 % of the delivery value.
9. Any further legal claims and rights of the customer remain unaffected.

§ 5 Transfer of Risk – Shipment

1. Unless not otherwise provided in the confirmation of order, delivery “ex works” shall be agreed.
2. In such cases in which the goods are shipped by us upon request of the customer, the shipment of bagged or loose goods shall take place in suitable freight vehicles or HGVs without the obligation for the cheapest form of shipment. Prior to loading, freight vehicles shall be cleaned by the dispatch company and inspected for tightness; however, residues adhering to the vehicle, especially as those cause by frost during the winter, do not provide any entitlement for complaints.
3. If the customer so wishes, we will cover the delivery with transportation insurance; the customer shall bear the costs incurred in this respect.

§ 6 Liability for Defects

1. We are not liable for uniform properties of natural raw materials, in particular between patterned goods and goods delivered at a later date. Typical patterns only constitute approximate average patterns; deviations hereof that result from the natural properties of the material, such as colour, chemical composition etc., do not constitute a defect. Normal trade variations resulting from the grinding process are permitted. We offer technical advice and support to the best of our knowledge on the basis of our research work and experience. All specifications and information relating to suitability and application of our products are, however, nonbinding, and do not release the customer from the need to conduct his own investigations and experiments.
2. Claims based on defects on behalf of the customer require that the customer properly fulfilled his own inspection and complaint obligations pursuant to Article 377 of the German Commercial Code (HGB).
3. To the extent that there is a defect of the object of purchase, the customer, at his discretion, is entitled to a secondary fulfilment either as a remedy of defect, or the delivery of a new object free of defects. In the event of a replacement delivery or a remedy of defect, we are obliged to bear all expenses required for the purpose of remedying such a defect, in particular costs relating to transport, route, labour and materials, provided that they are not increased by the fact that the object of purchase was taken to a location other than the place of fulfilment.
4. If the secondary fulfilment of contract fails, then the customer, at his discretion, is entitled to demand the rescission of contract or a reduction.
5. According to statutory regulations, we are liable to the extent that the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on behalf of our agents or vicarious agents. To the extent that we are not accused of the deliberate violation of contract, the liability for damages is limited to the foreseeable, typically arising damage.
6. We are liable according to the statutory provisions to the extent that we are in breach of material contractual obligations; in this case, however, the compensation for damages is limited to the foreseeable, typically arising damage.
7. Liability with regard to culpable injury to life, physical injury or injury to health remains unaffected; this also applies to the mandatory liability pursuant to the German Product Liability Act (Produkthaftungsgesetz).
8. Unless differently regulated by the above, liability is excluded.
9. The period of limitation for claims for defects is 12 months as of the passing of risk. This does not apply for purchased objects, which are traditionally used in construction work and which have actually caused the defect.
10. This does not affect the period of limitation in the event of a delivery recourse pursuant to Articles 478, 479 of the German Civil Code (BGB); this period is five years as from the delivery of the defective goods.

§ 7 Total Liability

1. A further liability for compensation for damages other than stipulated by Article 6 – without consideration for the legal nature of the enforced claim – is excluded. This applies in particular for claims for damages resulting from negligence in the event of a signing of agreement, for other violations of duties, or for claims in tort for compensation of damage to property pursuant to Article 823 of the German Civil Code (BGB).
2. The limitation pursuant to subsection (1) also applies where the customer, in place of a claim to reimbursement of the damage in lieu of performance demands from us reimbursement of expenditure incurred in vain.
3. To the extent that the liability for compensation of damages is excluded or limited towards us, this also applies in view of the personal liability for damages of our employees, workers, co-workers, agents and vicarious agents.

§ 8 Reservation of Title

1. We reserve the title to the object of purchase until receipt of all payments resulting from the contract of delivery. Should the customer act in violation of the contract, in particular in the event of a default of payment, we are entitled to take back the object of purchase. Taking back the object purchase constitutes a rescission of contract on our behalf. After taking back the object of purchase we are entitled to its utilisation, the proceeds of utilisation are to be offset against the liabilities of the customer – minus appropriate costs for utilisation.
2. The customer shall undertake to treat the object of purchase with due care; in particular, the customer is obliged to take out sufficient insurance coverage at replacement value for this object at his own expense against fire, water damage and theft.
3. In the event of attachments or other interventions of third parties, the customer shall immediately inform us in writing, so that we may take legal action pursuant to Article 771 of the German Code of Civil Procedure (ZPO). To the extent that the third party is not in the position to reimburse us for the court fees and out of court expenses pursuant to Article 771 of the German Code of Civil Procedure, the customer shall be held liable for the loss we accrued.
4. The customer is entitled to resell the object of purchase in the course of ordinary business; however, he shall already assign to us all receivables for the amount of the final invoice value (including value-added tax) of our receivables, from reselling to his buyers or third parties, irrespective as to whether the object of purchase was resold without or after processing. The customer remains entitled to recover this debt even after transferring. This does not affect our entitlement to collect the debt ourselves. However, we do undertake not to collect the debt for as long as the customer meets his payment obligations resulting from the collected proceeds, is not in default of payment, and in particular has not filed for the commencement of bankruptcy proceedings or composition proceedings or insolvency proceedings, or has ceased payments. Should this be the case, however, we may demand that the customer informs us of the assigned receivables and their debtors, provides all details necessary for the collection, delivers the respective documents and informs the debtors (third parties) of the assignment.
5. The processing or modification of the object of purchase by the customer will at all times be performed for us. If the object of purchase is processed with other objects for which we do not hold the title, then we shall acquire co-ownership to the new object at a ratio of the value of the object of purchase (final invoice value including value-added tax) to the other processed items at the time of processing. In all other respects, the same applies to the object created as a result of processing as to the object of purchase delivered subject to reservation.
6. If the object of purchase is inseparably mixed with other objects which we do not own, we shall acquire co-ownership in the new object at a ratio of the value of the object of purchase (final invoice value including value-added tax) to the other mixed objects at the moment of blending. If the mixing or blending occurs in such a manner that the object belonging to the customer must be considered the main item, then it is agreed that the customer shall assign to us proportionate co-ownership. The customer shall thus keep the arising sole title or co-ownership for us.
7. The customer shall assign to us also those receivables to secure our receivables against him arising from connecting the object of purchase with real property against third parties.
8. We shall undertake to release the securities to which we are entitled upon request of the customer insofar as the realisable value of our securities exceeds the receivables to be secured by more than 10 %; the securities released shall be at our discretion.

§ 9 Place of Fulfilment and Jurisdiction

1. If the Customer is a merchant, the courts located at our business domicile shall have jurisdiction; however, we are entitled to sue the customer at the court of his residential domicile.
2. The law of the Federal Republic of Germany applies; application of the UN law relating to the sale of goods is excluded.
3. Unless otherwise resulting from our confirmation of order, our business domicile is the place of fulfilment.