General Terms and Conditions of Sale, Delivery and Payment of Saint-Gobain Rigips GmbH
as at: October 01, 2007
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 shipped on pallets or timbers, these items shall be invoiced accordingly and only reimbursed insofar the items are returned carriage paid and undamaged to one of our plants.
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)