AGB – General Terms and Conditions of Sale and Payment

§ 1 General – Scope of application

(1) These General Terms and Conditions apply exclusively; we do not recognize 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 that the customer’s terms and conditions 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 Section 14 of the German Civil Code (BGB) and to legal entities under public law or special funds under public law.

(4) Our General Terms and Conditions shall apply to the entire business relationship – including all future transactions – with the customer.

§ 2 Offer – Offer documents

(1) Our information on the website, in price lists, brochures, catalogs and similar media with regard to prices, quantities, delivery periods and delivery options as well as other services provided by us are generally subject to change.

(2) If the order is to be qualified as an offer in accordance with § 145 BGB, we can accept this within two weeks.

(3) We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents on which our contractual offers are based.
This shall also apply to such written documents which are designated as “confidential”.
The customer requires 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 are “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 will be issued less the handling costs.

(2) The statutory value added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing at the value added tax rate applicable at that time.

(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.
The customer shall not be entitled to a cash discount 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 recognized by us.
Furthermore, the customer is only authorized to exercise a right of retention to the extent that 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 delivery to us by our suppliers, unless we are responsible for the incorrect or delayed delivery to us.

(4) If non-compliance with the 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 shall also apply if such events occur at our suppliers or subcontractors.

(5) If the customer is in default of acceptance or culpably violates other obligations 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 are reserved.

(6) If the conditions of para.
(5) are met, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the point in 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 § 286 para.
2 No. 1 BGB or § 376 HGB.
We shall also be liable in accordance with the statutory provisions if, as a result 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 if the delay in delivery for which we are responsible is due to the culpable breach of a material contractual obligation; in this case, however, 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 report to be made to the transport company and the relevant authorities.
The customer is also obliged to inform us immediately of any transport damage.

(4) Separate agreements shall apply to the return of packaging, unless otherwise stipulated 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 customer shall bear the costs incurred in this respect.
This shall not give rise to any obligation on our part to take out insurance.

§ 6 Liability for defects

(1) Claims for defects on the part of the customer presuppose that the customer has properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 HGB (German Commercial Code).
Notwithstanding the obligation under § 377 HGB, every customer must notify us of defects in writing without delay, but at the latest within 5 working days from receipt of the goods in the case of recognizable 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, labor and material costs, insofar as these are not increased by the fact that the goods have been taken to a place other than the place of performance.

(3) If the subsequent performance fails, the customer shall be entitled, at his discretion, to demand withdrawal or a reduction in price.

(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, however, our liability for damages shall also be limited to the foreseeable, typically occurring damage.

(6) Insofar as the customer is otherwise entitled to compensation for damages instead of performance due to a negligent breach of duty, our liability shall be limited to compensation for foreseeable, typically occurring damages.

(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)
Die Verjährungsfrist im Fall nach dem vorstehenden Absatz (9) gilt nicht, soweit das Gesetz gemäß der §§ 438 Abs.
1 Nr. 2 (Bauwerke und Sachen für Bauwerke) und 478, 479 (Rückgriffsanspruch) BGB längere Fristen vorschreibt, und im Übrigen bei Vorsatz, arglistigem Verschweigen eines Mangels sowie bei Nichteinhaltung einer Beschaffenheitsgarantie.

§ 7 Joint and several liability

(1) Any further liability for damages other than that provided for in § 6 is excluded, regardless of the legal nature of the claim asserted.
This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for property damage in accordance with § 823 BGB.

(2) The limitation of liability according to the above para.
(1) shall also apply if the customer demands compensation for useless expenses instead of a claim for damages in lieu 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, workers, staff, representatives and vicarious agents.

§ 8 Retention of title

(1) We reserve 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.
If we agree payment of the debt with the customer on the basis of the check/bill of exchange procedure, the reservation shall also extend to the redemption of the bill of exchange accepted by us by the customer and shall not expire when the check received is credited to us.

(2) The customer is obliged to treat the goods with care and to store them properly.
The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims.
The customer must inform us immediately in writing if an application has been made to open insolvency proceedings against his assets.
If 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 an action in accordance with Section 771 of the German Code of Civil Procedure (ZPO).
If 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 shall be entitled to resell the goods in the ordinary course of business; however, he hereby 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 hereby accept the assignment.
The customer shall remain authorized to collect this claim even after the assignment.
Our authorization 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 received, 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 settlement proceedings have been initiated and there is no suspension of payments.
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 on our behalf.
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 is agreed that the customer shall transfer co-ownership to us on a pro rata basis.
The customer shall keep the resulting sole ownership or co-ownership for us.

(7) If the customer is in arrears with a not insignificant part of his payment obligation to us, we shall be entitled to withdraw from the contract and to take back the reserved goods.
The customer shall bear the costs arising from the exercise of the withdrawal – in particular for transportation and storage – insofar as we have threatened to surrender the goods subject to retention of title within a reasonable period of time.
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.
If the goods actually had a higher market value at the time of repossession, this shall be applied.

(8) The customer hereby assigns to us the purchase price, wages or other claims arising from the resale and further processing or any other legal reason (insurance, tort, loss of ownership through 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 hereby accept the assignment.
We authorize the customer until revocation to collect the claim assigned to us in his own name for our account.
This collection authorization can be revoked if the customer does not properly meet his payment obligations.
The customer undertakes to provide us with the information required to collect the assigned claims and to make all documents available to us.
He is also obliged to notify the debtor of the assignments at our request.
The assignment of claims in accordance with the aforementioned provision shall serve to secure all present 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 to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; we shall be responsible for selecting the securities to be released.

§ 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 registered office 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 which are established under general law.

(2) If the customer moves its registered office, domicile or usual place of residence outside the territory of the Federal Republic of Germany after conclusion of the contract, our registered office shall be the place of jurisdiction.
This shall also apply if the registered office, domicile or habitual residence of the customer 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 customer data insofar as the customer has expressly consented or this is necessary for the execution and processing of the respective contract concluded and for as long as we are obliged to store it due to legal regulations.

(2) We only pass on the customer’s personal data necessary for the fulfillment of the contract to third parties to the extent necessary for order processing or if there is a legal obligation to pass it on.
We check the creditworthiness of the customer by transmitting data on the application for, commencement and termination of this contract to either SCHUFA HOLDING AG, Kormoranweg 5, 65201 Wiesbaden or Euler Hermes Deutschland Niederlassung der Euler Hermes SA, Friedensallee 25, 22763 Hamburg (both together “credit insurers”) and also receive information about 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 you to our information sheet “Information on data protection”.
The information sheet will be handed out to you on request at our registered office.
You can also download the privacy policy from https://capital-baustoffe.de/datenschutz/ .