ARTICLE 1 APPLICABILITY AND DEFINITIONS
1. These Standard Terms shall be applicable to all offers and all agreements by a CERAMAX entity (including CERAMAX BV and CERAMAX Deutschland GmbH).
2. In these Standard Terms, the following words shall be understood as:
The individual or legal entity which according to paragraph 1 receives offers from or signs agreements with us;
· Direct damages:
Material damages to the product, supplied and/or treated, processed and/or installed by us (including accompanying materials);
· Indirect damages:
All damages not falling under the definition of direct damages such as consequential damages, lost profits, bodily injury, intangible damages, savings forfeited, reduced goodwill, damages due to operational disruption, damages resulting from claims by the counterparty's buyers, interest and costs.
ARTICLE 2 STANDARD TERMS OF THE COUNTERPARTY AND DIVERGENT AGREEMENTS
1. The counterparty's standard supply, payment and purchasing terms shall not be applicable to these offers and agreements signed with us and are expressly rejected.
2. Understandings reached between us and the counterparty which differ from these Standard Terms shall only be considered agreed if we confirm such understandings in writing.
ARTICLE 3 OFFERS, AGREEMENTS AND PRICES
1. All offers shall at all times be non-binding. If an offer is accepted by the counterparty we shall be entitled to revoke the offer within five working days of receipt of confirmation.
2. Information and attachments provided by us with the offer shall be for information purposes and merely provide a general representation.
3. Where a sample or a model is shown or provided to the counterparty prior to or with an offer this is solely being done by way of indication without the items having to correspond thereto.
4. We reserve all intellectual and industrial property rights for items provided with offers such as illustrations, (construction) blueprints, diagrams, materials lists, software and other documents. All of the items cited and other documentation shall remain our property and may not be completely or partially copied, shown or given to third parties nor used in commerce in any other way without our express written consent.
5. If our offer does not result in any agreement with the counterparty, all items and other documentation as referred to in the previous paragraph shall be returned to us free of charge by the counterparty.
6. If the counterparty places an order with us, the content of the agreement is only completely confirmed by means of the order confirmation transmitted by us to the counterparty on the basis of that order.
7. The prices shall be applied that are valid on the day of delivery. If, after the bid or after an agreement has come about one or more of the cost-determining factors on which our prices are based is subject to change due to any circumstances we shall be entitled to raise the prices in the bid and/or agreement accordingly without this entitling the counterparty to complete or partial release from the agreement. Cost-determining factors shall be understood to include taxes, import duties, rates and other charges imposed by public authorities.
8. Unless otherwise expressly noted, the prices given shall be "base prices" exclusive of any eventual additions or reductions.
9. The "base prices" given shall, in accordance with what is stipulated in article 4, paragraph 4, be based on delivery to the counterparty's warehouse or to a building indicated by the counterparty or to another delivery address with the exception of Islands.
10. The "base prices" given shall be exclusive of VAT and any other order, product, production and shipping related surcharges, unless otherwise noted in the offer and/or contract prices. An overview of such surcharges, computation methods and other terms shall be available from us on request.
11. All orders or assignments accepted by representatives, intermediaries or employees shall only bind us if they are confirmed by us in writing.
12. We expressly reserve the right to deviations in length, breadth, thickness, surface or colour within the usual tolerances in the calculations we draw up.
13. For determination of material thickness and/or composition and/or structure we draw the counterparty's attention to applicable standards. Deviations from such standards, if accepted by us, shall be expressly for the account and risk of the counterparty.
14. Orders by the counterparty on call-in can only be sent to production by us if the counterparty indicates an expected date of delivery. Delay in delivery by more than thirty days from that expected delivery date shall mean that the counterparty is legally in arrears and may be challenged by us to pay.
15. Unless special quality demands are made by the counterparty when ordering and which are confirmed by us in writing, conventional commercial quality shall be supplied by us.
ARTICLE 4 DELIVERY DEADLINE, DELIVERY AND RISK
1. The delivery deadlines given shall be indicative and may never be seen as a definite deadline unless otherwise agreed.
2. Except for intent or deliberate recklessness by our general management or by managerial subordinates, the counterparty may not lay any claim to damage compensation and/or release from the agreement in case the delivery deadline is exceeded by up to 30 days and even after declaring us in arrears. If the delivery deadline is exceeded by more than 30 days the counterparty must declare us in arrears in writing. In that declaration, the counterparty must provide us with a reasonable deadline for compliance.
3. The delivery period shall commence on the day on which written confirmation of the order/job is received by the counterparty but not before the counterparty has complied with any eventual particulars related to execution of the agreement and which must first be brought about by the counterparty.
4. Delivery shall be invoiced at the list prices valid on the date of delivery to the counterparty's warehouse or, if expressly agreed, to another building or other delivery address instructed by the counterparty - unless if we otherwise expressly agreed and confirm such understandings in writing.
5. The counterparty shall at all times bear responsibility that the delivery address can be reached with conventional means of transport and for (timely) availability of proper unloading options. Unless otherwise agreed in writing, the counterparty must itself take care of unloading at delivery. Direct damage within the meaning of article 1, paragraph 2 occurring during unloading shall at all times be completely at the expense of the counterparty, unless unloading is performed on the basis of a written agreement by our employees or by employees of shipping company engaged by us. Only objects for which the counterparty can show that damages within the meaning of article 1, paragraph 2 occurred to them during shipping shall be replaced by us, within the meaning of article 9, paragraph 4, by items of agreed quality or shall be credited. The counterparty must immediately upon reception check items of agreed quality for breakage, flaws and/or damages. Broken panes and other obvious damage must be noted by the counterparty on the waybill.
6. The packing materials made available with our delivery to the counterparty (including stillages and containers) shall at all times remain our property. For using such items there is a rental price as indicated in our stillage rules.
7. We are authorised to supply in portions. Orders or portions thereof that cannot be immediately delivered shall be noted for subsequent delivery. The counterparty shall be notified of this by us.
8. The risk of damage, destruction and/or loss of the items to be delivered shall pass to the counterparty as soon as the items have been delivered by us to the counterparty's warehouse or to another building indicated by the counterparty or to a delivery address in the Netherlands.
9. If the counterparty fails to accept items ordered and/or bought from us, or fails to do so on time or completely, we shall be entitled to store such items at the expense and risk of the counterparty and to demand payment as if delivery had taken place.
ARTICLE 5 ACCEPTANCE OF WORK
1. If we have in our agreement with the counterparty assumed the obligation of treating and/or installing the products then this article shall apply alongside of the other articles in these Terms. In case of contradiction the contents of this article shall apply.
2. In case of treatment and/or installation of products, the risk of the products, that is of every pane separately, shall pass to the counterparty after the products has been installed and/or assembled. If and to the extent that the counterparty has covered any risk (breakage, theft, etc.) by insurance, the risk shall instead pass to the counterparty as of the time of delivery.
3. The counterparty shall at the end of every working day be obliged to record the installation operations performed by us on that day and, in case of piecework reconciliation, to approve them. If the counterparty fails to do so without reasonable grounds or, in regard to approval, fails to immediately notify us of approval in writing then the work shall be deemed to have been delivered to the satisfaction of the counterparty and to have been accepted and approved by the latter.
4. If a complaint, filed on time, with regard to installation of products is found to be justified then we shall only be obliged to reinstallation of that product. Any other or further-reaching claim shall be barred by us except for intent or deliberate recklessness of general management or managerial subordinates and with the exception of mandatory legal regulations to another effect.
5. The counterparty shall assume liability for the accuracy of information contained in estimates and blueprints or otherwise provided by us regarding dimensions, quantities, designs, installation methods, etc., both taken in the broadest sense of the word. If there is any discrepancy between this information and real conditions then we shall be entitled to compensation or additional payment.
6. The counterparty shall never be able to demand that we use special brands or specific quantities of the materials (such as glue, sealant, etc.) we handle unless this was expressly agreed in advance.
7. Underage or overage shall generally be billed according to the unit prices agreed between the parties. In the absence of this, billing shall occur according to the unit prices noted in the specifications.
8. When the estimate does not provide any outcome, billing shall occur on the basis of normally applicable prices applicable on the date on which the operations are performed or should have been performed.
9. Except for intent or deliberate recklessness by general management or managerial subordinates and with the exception of mandatory legal regulations to another effect, we shall not be liable for the consequences of installation of products in the wrong quality (according to existing standards, practice guidelines and/or plant regulations), thickness and/or composition. Except for intent or deliberate recklessness by general management or managerial subordinates and except for mandatory legal regulations to another effect, we shall not be liable for the consequences of installation in runners of the wrong dimensions, the shape of the finishing and/or weather conditions that make installation in dry and clean runners impossible.
10. For vertical transport of all materials to be transported by us, it must be possible to use the operationally safe and operationally ready construction crane or construction hoist available with its operating personnel on the construction site free of charge. It must be possible to carry out such vertical transport during normal working hours at times determined in close consultation with us.
11. If unloading materials on the upper storeys makes the availability of operationally safe and ready protruding scaffolding necessary the counterparty shall be obliged to provide the same at its expense. In the absence thereof, we reserve the right to suspend unloading and bill the costs to the counterparty.
12. Scaffolding eventually required for installation of products shall be available for us to use for free. The format and setup of such scaffoldings must be adapted to the operations we are to perform.
13. Except for intent or deliberate recklessness by general management or managerial subordinates and except for mandatory legal regulations to another effect, we shall not accept any liability in regard to installation regulations stipulated without prior consultation with us.
14. If we are charged with installation of materials made available to us for that purpose by the counterparty no liability shall be accepted by us, including during setup and related operations, relating to breakage of and/or damages to such materials.
ARTICLE 6 FORCE MAJEURE
1. Any breach of compliance with the agreement on our part may not be attributed to us if the causes of such a breach is not due to our fault or falls outside our sphere of risk. The obligations affected by force majeure shall be suspended for the duration of force majeure until we are again in a position to meet those obligations without our going into arrears in compliance with that obligation and without our being held liable for any damage compensation. Causes such as those referred to in the previous paragraph shall be, among others, war, risk of war, civil war, terrorism, insurrection, armed attack, fire, leakage of water, flooding, industrial actions, plant occupations, lockouts, restrictions on imports and exports, government measures, defects in machinery, disturbances in the supply of gas, water and electricity, transport problems and slowdown or disruption of deliveries by third parties from which we purchase raw materials, materials or sub- supplies for execution of the agreement.
2. In case of a non-attributable breach in compliance with the agreement by the counterparty we shall be authorised to rescind the agreement in full or in part.
ARTICLE 7 BARRING AND LIMITING LIABILITY
1. For all direct damages of the counterparty, as described in article 1, paragraph 2, caused by a breach in compliance with the agreement attributable to us, our liability, except in case of intent or deliberate recklessness by general management or managerial subordinates or liability based on mandatory legal regulations, shall be limited to the agreed price of the products sold and supplied, treated and/or processed and/or installed by us (exclusive of VAT).
2. For all indirect damages as described in article 1, paragraph 2, we shall not be liable except for intent or deliberate recklessness by general management or managerial subordinates on the basis of mandatory legal regulations.
3. We bar liability for damages caused by the actions of auxiliary personnel we make use of on our own initiative or due to instructions and/or orders of the counterparty in executing the agreement.
4. We bar liability for damages sustained in execution of the agreement as a result of the use of items made available by us, by third parties or by the counterparty and which are apparently not suitable for execution of the agreement.
5. All items such as materials, semi-finished products and machinery made available by the counterparty for carrying out the agreement shall not be insured by us. The counterparty shall be obliged to insure such items itself and to maintain such insurance for the duration of their being subject to our control.
6. The items referred to in paragraph 5 shall remain at the risk of the counterparty. The counterparty shall be liable in relation to us for all damages occurring from (use of) such items.
ARTICLE 8 GUARANTEE
1. Without prejudice to what is stipulated in article 9 and, unless otherwise noted in the bid, for items sold and supplied with factory and/or importer or wholesaler guarantees only the guarantee provisions shall apply that are provided by such suppliers.
2. With all items for which there is no special guarantee as referred to in paragraph 1, the counterparty must complain to us on the basis of article 9.
ARTICLE 9 COMPLAINTS
1. Without prejudice to what is stipulated in article 4, paragraph 5, the counterparty shall expressly bear the obligation of examining whether the items delivered meet the requirements of the agreement immediately upon their delivery or, if that is not possible, at the latest within eight days of delivery of the items.
2. The counterparty must inform us in writing immediately upon discovery or, at the latest, within eight days of delivery, of any eventual breaches on our part, failing which the counterparty may no longer assert any claim that the items delivered do not meet the requirements of the agreement. Breakage or other obvious damages are, in the absence of timely complaint, deemed to have occurred after delivery and do not fall under shipping insurance.
3. Items that do not meet the requirements of the agreement must not be installed and/or assembled but must be properly stored in their original condition until one of our controllers has inspected the items. Consequently, no reinstallation compensation may be claimed. At our request, the counterparty must return to us free of charge the items which do not meet the requirements of the agreement.
4. If a complaint filed in time appears to be justified, we shall only be obliged to replace the originally delivered item with items of agreed quality or we may credit such items. The counterparty shall therefore not be able to assert any entitlement to rescind the agreement. Any other liability or further-reaching liability shall be barred by us, without prejudice to what is stipulated in article 7. Complaints do not prejudice the counterparty's obligations.
ARTICLE 10 PAYMENT TERMS
1. Payment for items we have supplied must be made within 14 days of the invoice date unless otherwise agreed in writing. Payment shall, unless we indicate otherwise on the invoice, be made in Germany and, more precisely, to a bank or giro account we keep at a (branch of a) bank incorporated in Germany.
2. The counterparty may not assert set-off in relation to us.
3. After the passing of the deadline cited in paragraph 1, the invoiced amount shall be immediately enforceable. The counterparty shall then be in arrears without any declaration of arrears being required.
4. Upon exceeding the deadline cited in paragraph 1, we shall be entitled to charge the statutory interest rate as per article 288 BGB of the German Civil Code (Bürgerliches Gesetzbuch) for the unpaid amount starting as of the day on which the counterparty went into arrears up through the date of complete compliance.
5. Payments made by the counterparty shall at all times extend to satisfy all costs owed, thereafter interest and thereafter payable invoices that are outstanding for the longest period of time, even if the counterparty mentions that the payment relates to another invoice.
6. If the counterparty has remained in arrears with timely compliance of its payment obligations, as described in paragraph 1, then the counterparty shall be obliged to assume payment of all out-of-court costs, costs of process and costs for legal assistance incurred by us and to pay them completely. Such costs shall also include other and/or higher costs than those costs of process chargeable by virtue of statute. In the event that we move to have the counterparty put into bankruptcy the counterparty shall also be obliged to pay for the costs of bankruptcy in addition to the costs cited above.
7. Without prejudice to what is stipulated in paragraph 3, the counterparty shall be automatically in arrears in the event of bankruptcy (or motion for bankruptcy), (motion for) suspension of payments, shutdown or liquidation of the counterparty's business, (motion for) initiation of statutory composition proceedings or placing the counterparty in judicial administration, without a declaration of arrears being required. The previous sentence shall be agreed as applicable if the counterparty fails to comply with its obligations under the agreements signed with us, or fails to do so properly or on time.
8. In the cases referred to in the previous paragraph we shall be entitled, at our option, without court intervention, to either suspend execution of the agreement or rescind the agreement in full or in part by means of a written declaration to that effect, without prejudice to our right to claim complete damage compensation.
ARTICLE 11 CREDIT RESTRICTION SURCHARGE
1. All of our bids and offers, unless otherwise expressly stated, shall be exclusive of the credit restriction surcharge.
2. Our invoiced amounts may be increased by a credit restriction surcharge of 3%. The surcharge need not be paid in case of payment within eight days of the invoice date.
ARTICLE 12 POSTING OF COLLATERAL
1. Should we have good reason to fear that the counterparty will not meet its obligations under the agreement, we shall be entitled prior to or during execution of the agreement to suspend compliance with our obligations until the counterparty has posted collateral at our request and to our satisfaction for compliance with all of its obligations under the agreement. This provision shall also apply if credit has been stipulated.
2. After the deadline we set for posting of collateral has passed the counterparty shall automatically be in arrears and we will be able to rescind the agreement without court intervention by means of a written declaration, without prejudice to our right to complete damage compensation. Rescission as referred to in the previous sentence shall have retroactive force back to the date when the agreement was signed.
ARTICLE 13 RETAINED TITLE
1. The items we supply shall remain our property until the counterparty has met all obligations under agreements signed with us:
· Counter-performance with regard to items supplied or to be supplied;
· Counter-performance with regard to services provided by us under the agreement or to be provided by us;
· Any eventual claims due to failure by the counterparty to comply with agreement(s) signed with us.
2. Items supplied by us which fall under retained title by virtue of paragraph 1 may only be sold onwards in the framework of routine exercise of the counterparty's profession. The counterparty shall not be authorized to hypothecate the items supplied or to attach any other rights to them.
3. We hereby at this stage reserve the right, with regard to items that have passed to the counterparty's ownership in accordance with what is stipulated in paragraph 1 and which are still in the counterparty's possession, to rights of lien for enhanced security of claims that we may have or come to have on the counterparty regardless of the reasons therefore.
4. If the counterparty fails to meet its obligations or if there is grounded reason to fear that it will not meet its obligations, we shall be entitled to remove (or have removed) the items supplied on which the retained title referred to in paragraph 1 refers is based from the counterparty or from third parties keeping such items on behalf of the counterparty. The counterparty shall be obliged to provide all cooperation for this purpose on penalty of an immediately enforceable fine of 10% per day of all it owes us.
5. If third parties wish to attach any rights to items supplied under retained title or to assert such rights the counterparty shall be obliged to immediately inform us hereof in writing.
6. The counterparty shall be obliged to:
· insure and maintain insurance on the items supplied under retained title against breakage, damage, damages due to fire, explosion or water leakage and against theft and to provide us with the policy of such insurance for our inspection;
· to pawn to us, at our first request, all claims by the counterparty on insurers with regard to the items supplied under retained title;
· to pawn to us, at our first request, the claims the counterparty is given in relation to its buyers when selling onward items supplied by us under retained title;
· to label the items supplied under retained title as our property.
7. If the agreement relates to items to be supplied by us to a counterparty domiciled in Germany, the following provisions shall likewise apply, with analogous application of what is stipulated in paragraphs 1 through 6 of this article:
· The property-law consequences of the retained title shall be governed by German law;
· The items supplied by us, in addition to the cases referred to in paragraph 1 of this article, shall likewise remain our property until the counterparty has completely satisfied all of our existing and future claims, for whatever reason, increased with interest and costs;
· In the event of treatment or processing of the items supplied by us, the counterparty shall not become an owner of the new object but such treatment or processing shall be deemed to have been performed for us without any obligations accruing to us for this;
· If the items supplied by us become a component part of another object, or in case of mixture of the items supplied by us with other objects, we shall become co-owner of the new object in the ratio of the invoiced value of the items supplied by us to the invoiced value of the other objects. In the event that our property rights should lapse as a result of accession or mixture, the counterparty hereby at this stage transfers to us its (share in the) ownership of the newly created items.
ARTICLE 14 RIGHT OF RETENTION
We shall be authorized to retain the items or other goods of the counterparty in our possession or which may come into our possession until all that we are owed under the agreement signed is completely paid for by the counterparty.
ARTICLE 15 STATUTE OF LIMITATIONS
The counterparty's claims shall be time-barred at the latest at the end of one year after their incurrence.
ARTICLE 16 CONSUMER TRANSACTIONS
If the counterparty is an individual not acting in the exercise of a profession or business, the legal notes and the Conditions and Terms of our webshop apply.
ARTICLE 17 CONSTRUCTIVE RE-INTERPRETRATION
If any provision of these Standard Terms are or become void, in the stead of said provision such a provision shall accede (where possible automatically) as most closely corresponds to the scope of the void or voided provision. The parties shall be mutually obliged to enter into serious consultations with each other regarding the text required by that new provision. The remaining provision of the Standard Terms shall retain their validity undiminished unless mandatory legal rules prevent this.
ARTICLE 18 DISPUTES AND APPLICABLE LAW
Applicable to all our offers and agreements shall be German law. The application of the UN Convention on the International Sale of Goods ("Vienna Convention") shall be barred.
In regard to any disputes that may arise between us and the counterparty, the court of Hannover / Germany shall be solely authorized to take note thereof, unless rules of mandatory legal nature prevent this.