General Terms and Conditions of Sale, Delivery and Payment of Saint-Gobain Rigips GmbH as at: May 25, 2018
All our services are performed exclusively on the basis of these terms and conditions, which shall also apply for all future business relations with you, our customer. Insofar as we have not expressly accepted them in writing, your general terms and conditions, and in particular purchasing terms and conditions, shall not be binding upon us, even if we do not explicitly reject them in each individual case. Reference to any letter containing or referring to conflicting terms and conditions shall not constitute recognition of these conditions by us.
2. Offers, prices, tools, terms and conditions of payment, offsetting
Our offers are not binding. Unless otherwise agreed, the prices in our current price list, subject to the applicable statutory VAT, shall apply. The prices are calculated inclusive of delivery by truck carriage paid to the construction site or warehouse within the Federal Republic of Germany (mainland) and apply solely on the basis of a loading weight of at least 5 t, unless otherwise agreed with us. It is a prerequisite for delivery that the road conditions permit access by trucks with a total weight of up to 40 t. Unloading and the costs thereof shall be for your account.
Unless otherwise agreed with us, our invoices are due immediately and without deductions. Insofar as we explicitly permit a discount deduction on an individual invoice, the payment must reach us irrevocably within the stated discount period. Any discount shall apply solely to the value of the goods, i.e. in particular not to stated pallets, packaging, resources, freight, low-volume surcharges and similar.
Cheques shall only be accepted on account of payment, bills of exchange shall not be accepted. In the event of default, you shall be liable for interest in accordance with Arts. 246, 247, 288 of the German Civil Code (BGB), without prejudice to the assertion of further default claims. Any offsetting or retention in respect of counterclaims on your part is hereby excluded, unless such counterclaims are undisputed or legally established.
3. Contract, statements and commitments
All orders, other agreements, statements and commitments, and in particular any guarantees, are subject to our written confirmation (two signatures – also facsimiles); solely such written confirmation shall be binding. In the event that no written confirmation is provided, an order may be deemed to have been accepted at our conditions on handover of the goods to you, your agents or the forwarder.
Should it transpire that you are in financial difficulties or that your financial circumstances have materially deteriorated to an extent that we feel you are not creditworthy, we reserve the right to withhold the services incumbent on us until an appropriate consideration has been performed or corresponding securities have been provided, at our discretion.
Should you declare that you are unable to fulfil a contract due to such reasons in your sphere of operations and we declare our consent to contract rescission despite outstanding obligations, we shall be entitled to demand 20% of the purchase price as flat-rate compensation; the same shall apply in the event that we take back the goods voluntarily, also on the basis of asserted retention of title rights pursuant to Section 10.
4. Technical consulting, information, training, etc.
Our technical information, proposals and consulting services shall only be binding where they are related to specific cases and given in writing. In all cases you are obligated to review the suitability of such information for the intended purpose, taking account of the services to be performed by us, and – where expedient or necessary – involve further experts. As our aforementioned services and training are a courtesy, any liability is excluded insofar as permitted under law; otherwise Section 9 shall apply.
5. Transportation and passing of risk, damage, etc.
The transportation and unloading of the goods shall occur at your risk in all cases, even where we provide the forwarder (sale by delivery). It is your duty to unload the goods promptly. To protect your rights with respect to any damage in transit, all deliveries must be inspected before and during unloading for any damage and/or loss and any relevant volume discrepancies. Any damage or shortfall/excess must be reported to us without delay, in the first instance by telephone and subsequently by fax to allow us to establish the facts directly. In any case, the forwarder must record the damage and/or loss on the bill of lading, which you must then furnish to us.
6. Packaging, special logistics
Any packaging is provided as sales packaging; you shall be solely responsible for the disposal thereof and all costs. If you request packaging which deviates from our standard, additional costs shall be charged.
If the goods are dispatched on pallets accepted by us, these will be invoiced, added to your pallet account and, in the event of carriage-free return in undamaged condition at our locations in Gelsenkirchen-Scholven, Brieselang, Herrenberg-Gültstein or Nuremberg, refunded by means of a corresponding credit note. This free return of pallets is only possible in connection with a collection of goods.
If you wish, we can also collect undamaged pallets from you from a minimum quantity specified in our current price list. In this case, you will be charged an additional service fee in accordance with the current price list.
The aforementioned service fees also apply to a direct pallet exchange (full pallets against empty pallets) in the course of a goods delivery by us.
All three of the above pallet return options require prior consultation with us (pallet return registration).
Any unloading via truck crane shall be for your account and at your instruction and risk, whereby the forwarder shall be authorized to charge you directly. Where available, aids such as pallet trucks shall be provided at your request and risk against payment. These aids shall remain our property and must be returned carriage paid and undamaged to one of our plants. In the event that they are not returned within one month of delivery, we shall invoice you for the original price thereof.
7. Delivery period
Even where a specific date is given, delivery dates shall be approximate and shall also be deemed to have been observed if the ordered goods are ready for delivery at our premises within any agreed period. We shall assume no liability in the event that the goods do not arrive with you on time. Force majeure - which includes among other things transport disruptions, shortages of goods, trucks and raw materials, energy supply failure - and strikes, lock-outs and other production disruptions as well as any other disruptions for which we are not responsible which render impossible or impede delivery shall extend the delivery time accordingly.
8. Agreed properties, claims for defects, liability for defects
Details in our price lists, brochures, etc. serve to provide more information about our products and describe their properties approximately, but do not include any guarantees whatsoever. By contrast, in the absence of any other explicit written agreement, contractually agreed properties are stated solely in the text of our offers, delivery notes and invoices, as well as the DIN and DIN-EN standards relevant for our products.
You, or your customer in the event of drop shipments, must inspect our services carefully without delay following performance/delivery and notify us promptly of any immediately identifiable defects – and in the case of any not immediately identifiable defects, promptly following discovery thereof – in writing stating the specific type and scope of the defects and as soon as possible grant us an opportunity to inspect the defect claim.
We shall vouch for freedom from material defects and defects of title within the statutory periods, whereby you should always request remediation in the first instance. Insofar as our products have already been installed, remediation shall also cover the exchange of defective parts for good parts. In the case of defective products where their fitness for purpose is not materially impacted, you shall however only be entitled to a reduction in the purchase price. Where remediation or a replacement delivery is impossible or unsuccessful, you shall be entitled to demand an appropriate reduction (reduction in price) or cancellation of the contract for the damaged items at your discretion.
Insofar as we owe compensation for damages or reimbursement of wasted expenditure, our liability in this respect shall be limited to ten times the price of the defective service performed by us.
9. Our liability and its limitations
Irrespective of the legal grounds, in particular defective delivery, default, impossibility of performance, violation of general obligations in contract handling/performance, tort and manufacturer liability, our liability for compensation shall be, in particular also insofar as we are at fault and insofar as permitted under law, excluded or limited as follows:
In the event of simple negligence by our institutions, legal and other representatives, other employees and agents, we shall only be liable insofar as a violation of material contractual obligations is concerned.
In the event of gross negligence by non-executive employees or other agents, we shall only be liable insofar as a violation of material obligations is concerned.
In all other cases, we shall only be liable insofar as we are at fault.
Insofar as we are liable for compensation claims on the merits of simple or gross negligence, our liability for non-typical und unforeseeable damage shall be excluded.
Otherwise, our liability in the event of simple and gross negligence shall be limited to ten times the price of the service performed in this respect. In the event of gross negligence, this shall only apply for the violation of non-material obligations.
The aforementioned liability exclusions and limitations shall also apply directly to the same extent in favour of our institutions, legal and other representatives, other employees and agents.
Insofar as a liability still exists, this shall additionally be limited to a total of EUR2 million for injury to individuals and EUR0.5 million for damage to property and assets.
10. Retention of title
Our goods shall remain our property until full payment of all receivables, including any current account balance claims from outstanding invoices to which we are entitled, also in the future.
The processing or transformation of our goods shall be done on our behalf as the manufacturer, but without any obligation on our part. In the event of processing or transformation involving other goods not belonging to us, we shall be entitled to shared ownership of the new goods at the ratio of the invoice value of the goods subject to retention of title to the other processed or transformed goods at the time of processing. In the aforementioned cases you must keep in custody free of charge those goods which belong to us in whole or in part, which shall also count as goods subject to retention of title in the meaning of these terms and conditions. You shall be entitled to process, transform and sell the goods subject to retention of title in the normal course of business. Pledging, transfers of ownership by way of security or other orders with respect to the goods are not permitted.
Any claims arising from resale or other legal grounds (e.g. payment of insurance, compensation due to tort) with respect to the goods subject to retention of title shall be immediately assigned to us to secure all our claims from the business relationship with you without any need for a separate declaration of acceptance from us and irrespective of whether the goods subject to retention of title are sold without or following further processing or transformation and whether they are sold to one or more customers. The assignment shall include all ancillary rights and in particular the right to the granting of a debt-securing mortgage with priority over any of your claims. Insofar as you sell the goods subject to retention of title in combination with goods not supplied by us, the assignment shall be commensurate with the proportion of the total sale price accounted for by the goods subject to retention of title. In such cases, the proportional value of the goods subject to retention of title shall correspond to the seller's invoice amount plus a surcharge of 20%, which shall however be disregarded insofar as rights of third parties are enforceable against it. The advance assignment shall also extend to the balance claim including the final balance from any current invoice. In all cases, you shall only be entitled to resell the goods where it is ensured that all aforementioned assigned claims shall pass to us.
Insofar as you install the goods subject to retention of title in the real estate of a third party as a material component, you shall also immediately assign to us your legal claims to compensation arising vis-à-vis the third party in the amount of the goods subject to retention of title. Where you are entitled to resell the goods, you shall also be entitled to collect the revenue from the resale.
You must retain your limited right of ownership to the goods subject to retention of title vis-à-vis your customers until they have paid the price thereof in full. Without such reservation, you shall not be authorised to resell the goods subject to retention of title.
Should you default on an obligation vis-à-vis ourselves or should your financial circumstances deteriorate in the meaning of Section 3 or should we assert our rights pursuant to Section 3, your right to process, transform and resell the goods subject to retention of title and authorisation to collect the receivables assigned to us from your customer shall be forfeit. We shall be entitled to demand that you notify us of the assigned claims and their garnishees, provide all information necessary to enable us to collect these claims, furnish us with at least copies of all associated documents and notify the garnishee of the assignment. We shall also be entitled to notify the garnishee of the assignment ourselves. We may further demand that any goods still in stock be released to us without this constituting cancellation of the purchase contract. At our discretion, goods which are unsaleable or only saleable to a limited extent shall not be taken back or shall only be taken back without compensation; Section 3. Par. 3 shall apply accordingly for saleable goods.
Should the value of the securities granted to us exceed the amount of our claims by more than 20%, we shall be obligated at your request or that of a third party impacted by the excess securities to release securities at our discretion. The claims assigned to us are to be stated at their par value.
11. Place of performance, legal venue, applicable law
For both parties, the place of performance for deliveries shall be the location of our plant or external warehouse and the place of performance for payments shall be Düsseldorf. The legal venue shall be Düsseldorf or, at our discretion, the registered office of the customer. The applicable law of the Federal Republic of Germany is hereby agreed without recourse to the provisions of the Hague Convention relating to the Uniform Law on the International Sale of Goods and the United Nations Convention on Contracts for the International Sale of Goods (UN-CISG)
General Terms and Conditions of Purchase
Section 1 Scope
(1) All purchases and orders by the Saint-Gobain Rigips GmbH (“Buyer”) from commercial entities in the sense of Section 14 BGB (German Civil Code), a legal person under public law or a special asset under public law (“Seller”) (collectively “the Parties”) are subject exclusively to the Buyer’s General Terms and Conditions of Purchase (the “General Terms and Conditions of Purchase”).
(2) Regardless of whether the GTCP are explicitly agreed again, they shall also apply to all the Buyer’s future purchases and orders. The version current when the contract is concluded shall always apply. The Buyer shall immediately inform the Seller of new versions of the General Terms and Conditions of Purchase.
(3) The Buyer shall not recognise the Seller’s terms and conditions where these contradict or deviate from the General Terms and Conditions of Purchase, unless it has explicitly agreed that they should apply. The General Terms and Conditions shall apply even if the Buyer accepts a delivery or other service from the Seller without reservation or provides a contractually agreed service without reservation in full knowledge of terms and conditions on the part of the Seller which contradict or deviate from the General Terms and Conditions.
Section 2 Business preparation, conclusion of contact, other declarations
(1) Regardless of whether a contract comes into being or not, expenses incurred by the Seller for visits, drafts, samples, templates, cost estimates, offers etc. in the course of business preparation shall not justify a cost obligation or other liability on the Buyer’s part.
(2) The Buyer’s orders are always non-binding until submission or confirmation in text form by the Buyer. The Seller must inform the Buyer of any obvious errors (e.g. typing or mathematical errors) and gaps in the order, including the order documents, before accepting the order for the purposes of correction and/or completion; otherwise, the contract shall not count as concluded.
(3) Legally significant declarations and notices which the Seller has to submit to the Buyer or a third party require the written form.
(4) The Buyer and Seller may only use the business relationship for advertising (“referencing”) with the other business partner’s written consent.
Section 3 Delivery and performance period
The delivery and performance times specified in the order are binding. If it looks unlikely that the Seller will be able to comply with agreed delivery or performance times, it is obliged to inform the Buyer of this immediately in text form.
Section 4 Delivery, documents, transfer of ownership
(1) Unless otherwise agreed, deliveries shall be “Delivered At Place” (DAP; Incoterms 2010) to the location given in the order.
(2) All deliveries must be accompanied by a delivery note providing the date (date of issue and shipment), content of the delivery (item number and quantity) and the Buyer’s order ID (date and number). Separately to the delivery note, the Buyer must on request be sent a dispatch note with the same content. The Buyer is not responsible for delays in processing or payment resulting from breaches of the above conditions.
(3) Subcontracts for deliveries and services may only be awarded with the Buyer’s written consent, except for insignificant deliveries,
marketable parts or insignificant ancillary services.
(4) Devices must be delivered along with a technical description and user manual in German, and software products with the full documentation (especially the operating instructions). Programs tailor-made for the Buyer must also be delivered along with the source code for the program.
(5) Ownership of the goods shall be transferred to the Buyer on payment at the latest. Any extended or expanded reservation of title is excluded.
(6) Where deliveries and services are not provided by the Federal Republic of Germany, but rather from another EU Member State, the EU VAT ID no. should be given.
Section 5 Prices and terms of payment
(1) The price given in the order is binding and applies unless otherwise agreed for DAP deliveries. All prices include statutory VAT, even if this has not been separately indicated.
(2) Unless otherwise agreed, the price includes all the Seller’s services and ancillary services (e.g. assembly, installation) and all ancillary costs (e.g. proper packaging, transportation costs including any transport and liability insurance). The Seller must take packaging material back at the Buyer’s request.
(3) Unless otherwise agreed, the agreed price shall fall due for payment within thirty calendar days from the completion of the delivery and service (including any agreed discount) and receipt of a proper invoice. If the Buyer pays within fourteen days, it is entitled to deduct 3% from the net invoiced amount.
(4) The Buyer can only process invoices if they provide the order number given in the order; the Seller shall be responsible for any consequences of failure to comply with this obligation, unless it proves that it was not at fault.
(5) The Buyer shall not owe any interest on maturity. The Seller’s claim for the payment of default interest shall remain unaffected. Legal regulations apply to the beginning of default on payment. In every case, however, a reminder by the Seller shall be required.
(6) The Buyer shall have rights of offsetting and retention as well as the defence of an unfulfilled contract within the statutory scope. The Buyer is in particular entitled to retain due payments while it has claims against the Seller arising from incomplete or defective services.
(7) The Seller is only entitled to offset or retain payments if and insofar as its counterclaims are uncontested or have been made legally enforceable, or its counterclaims are based on the same contractual relationship.
Section 6 Safety and environmental protection
(1) The Seller’s deliveries and services must comply with all statutory provisions which apply within the Federal Republic of Germany (especially those relating to safety and environmental protection, such as GefStoffV (Hazardous Substances Ordinance), ElektroG (Electrical Equipment Act) or GPSG (Product Safety Act), and the safety recommendations of the various responsible German professional bodies and associations (e.g. VDE, VDI, DIN). All relevant certificates, test certificates and evidence must be supplied free of charge without a request being made.
(2) In particular, the delivery of substances, concoctions or products which are banned from manufacture, use or sale by German law is prohibited. If the goods to be delivered are hazardous substances, this should be indicated in the Seller’s offer, whereby the corresponding safety data sheets (in German or English) should be sent to the Buyer when the offer is made.
(3) The Seller bears sole responsibility for compliance with statutory occupational safety and work safety provisions, applicable accident prevention regulations and the Buyer’s special safety regulations during the delivery process and provision of services, and must seek information from the Buyer in good time regarding the existence of any such safety regulations. If the manufacturer has issued safety instructions, these must be delivered free of charge along with the goods.
Section 7 Buyer documents
The Buyer shall retain right of ownership, copyrights and any commercial property rights to illustrations, drawings, templates and other documents (the “Documents”). This also applies to documents not explicitly marked as “confidential”. Before forwarding documents to third parties, the Seller must obtain the Buyer’s explicit written consent.
Section 8 Defect guarantee, Seller’s liability for compensation
(1) The Seller owes defect-free deliveries and services, and in particular compliance with agreed specifications and guaranteed characteristics. Deliveries and services must be carried out according to the state of technology and safety requirements must be complied with.
(2) In the event of a defect, the Buyer shall have all the statutory claims. In particular, the Buyer is entitled to demand that the Seller rectify the defect or deliver a new item, according to the Buyer’s preference. The Buyer explicitly reserves the right to compensation, including compensation instead of performance, for every degree of fault and in full.
(3) Those product descriptions which have become objects of the relevant contract or have been incorporated into the contract in the same way as the General Terms and Conditions of Purchase shall count in each case as agreements on quality in the legal sense. It makes no difference in this respect whether the product description comes from the Buyer, the Seller or the manufacturer.
(4) Otherwise than in Section 442 (1)(2) BGB, defect guarantee rights shall apply without limitation even if the Buyer was unaware of the defect when concluding the contract due to gross negligence.
(5) The Seller shall bear the costs it incurs for the purposes of testing and repair, even if it turns out that the goods were not actually defective. The Buyer’s liability for compensation in the event of an unjustified demand for rectification of a defect shall remain unaffected if the Buyer knew, or did not know due to gross negligence, that no defect was present.
(6) If the Seller fails to fulfil its repair obligation within a reasonable period set by the Buyer, the Buyer shall be entitled to rectify the defect or procure a replacement at the Seller’s expense, or to enlist third parties to do this. If the Seller’s efforts at repair have failed or are not acceptable to the Buyer (e.g. due to particular urgency, risk to operational safety or the threat of disproportionate damages), or the Seller seriously and finally refuses to make such efforts, there is no need for a period to be set; the Buyer shall inform the Seller immediately, or if possible beforehand, that it is carrying out the repair or replacement itself or having it carried out by third parties.
(7) The limitation period is 36 months, calculated from the day of delivery according to Section 4 (1) and/or acceptance. Longer legal limitation periods shall remain unaffected.
(8) The Seller shall be liable for compensation for each degree of fault and in the full amount according to the statutory provisions.
(9) The commercial obligation to inspect and report any defects is subject to the legal provisions (Sections 377, 381 HGB (German Commercial Code)) on the following proviso: The Buyer’s obligation to inspect is related to defects which become apparent on external inspection of the incoming goods, including delivery notes, by the Buyer (e.g. damage in transit, defective or under-delivery) or which can be identified by spot checks in the Buyer’ quality control procedures. If acceptance is agreed, no obligation to inspect shall apply. In all other respects, it shall depend on the extent to which an examination is feasible in the ordinary course of business, taking into account the circumstances of the case. The Buyer’s obligation to report defects discovered later shall remain unaffected.
Section 9 Supplier’s redress
(1) In addition to the claims for defects, the Buyer shall be entitled without limitation to its legally determined rights of recourse within a supply chain (supplier's redress according to Sections 445a, 445b, 478 BGB). In particular, the Buyer is entitled to demand from the Seller exactly the kind of supplementary performance (repair or replacement delivery) which the Buyer owes its customer in the individual case. The Buyer’s statutory right to choose (Section 439 (1) BGB) is not limited by this.
(2) The Buyer’s claims from supplier’s redress shall apply even if the defective goods have been further processed by the Buyer or another commercial entity, e.g. by installation in another product.
Section 10 Product liability, insurance
(1) Where the Seller is responsible for damage to a product, the cause lies within its domain and organisational area and it is externally liable itself, it is obliged to release the Buyer from any third-party compensation claims at the first time of asking.
(2) Within the scope of its release obligation, the Seller must also reimburse any expenses, according to Sections 683, 670 BGB or according to Sections 830, 840, 426 BGB, arising from or in connection with a recall action carried out by the Buyer. The Buyer shall, where this is possible and reasonable, inform the Seller if the content and scope of the recall measures to be carried out and give it the opportunity to take up a position. Other legal claims shall remain unaffected.
(3) The Seller is obliged to take out and maintain product liability insurance with a flat insured amount of at least 5m euros per personal/material damage event. Further compensation claims on the part of the Buyer shall remain unaffected.
Section 11 Property rights
(1) The Buyer shall ensure that no third-party rights are breached in connection with its delivery.
(2) If a suit is brought against the Buyer by a third party in connection with such rights, the Seller is obliged to release the Buyer from such claims at its first written request; the Buyer is not entitled to make agreements without the Seller’s consent, and in particular to reach a settlement.
(3) The Seller’s release obligation covers all expenses which the Buyer necessarily incurs due to or in connection with the third-party suit, unless the Seller can prove that it is not responsible for the breach of obligation on which the breach of property rights is based.
(4) The limitation period for these claims is 36 months, calculated from delivery according to Section 4 (1) and/or acceptance.
Section 12 Export control
(1) The Seller must fulfil the applicable requirements of national and international export, customs and foreign trade law for all goods to be delivered and services to be rendered. The Seller must obtain any necessary movement or export permits, unless applicable export, customs and foreign trade law obliges not the Seller, but the Buyer or a third party to apply for these permits.
(2) The Seller must provide the Buyer as soon as possible, but at the latest 10 days before the delivery deadline, with all information and data which we require in order to comply with applicable export, customs and foreign trade law, movement and imports as well as in the case of resale of goods and services, especially for every good and service:
- the Export Control Classification Number (ECCN) according to the U.S. Commerce Control List (CCL) or the designation “EAR99” if the item is subject to the U.S. Export Administration Regulations. If the item is subject to the United States Munitions List or otherwise to the International Traffic in Arms Regulations (ITAR) we likewise request the list position;
- all correct export list positions (if the item does not fall under an
export list position, this should be indicated with “AL: N”);
- the statistical item number according to the current item classification for
foreign trade statistics and the HS (Harmonized System) Code;
- the country of origin (non-preferential origin) and
- where requested by the Buyer: supplier declarations on preferential origin (for European sellers) or certificates for preferences (for non-European countries) (“export control and foreign trade data”)
(3) In the event of changes to the origin or characteristics of the goods and services or the applicable export, customs and foreign trade law, the Seller must update the export control and foreign trade data and share them with us in writing as soon as possible, but at the latest ten days before the delivery date. The Seller shall bear all expenses and damages which we incur due to missing or inaccurate export control and foreign trade data.
Section 13 Data protection, choice of law and place of jurisdiction
(1) You can find information on data protection at www.rigips.de
(2) The law of the Federal Republic of Germany shall apply, to the exclusion of UN Sales Law (CISG).
(3) The place of performance is the Buyer’s seat of business.
(4) The place of jurisdiction is the Buyer’s seat of business; the Buyer, however, reserves the right to bring a suit against the Seller at its general place of jurisdiction.
As at: October 2018