I. General - Scope of application
1.Our deliveries and services are provided exclusively according to the following General Terms of Sale. These also apply for all future business between the contract parties, without any special renewed indication. They also apply in the case that we do not explicitly cite this in subsequent contracts, in particular if we provide deliveries and services to the customer without reservation, although we are aware of terms of business of the customer which contradict or deviate from our General Terms of Sale.
2.References by the customer to his terms of business are hereby rejected. Terms which contradict or deviate from our Terms of sale
II. Offers and conclusion of contracts, content of services
1.Our offers to the customer are subject to confirmation.. Only the order is deemed to be a binding offer. Acceptance of this offer is made at our discretion by sending an order confirmation, or by the provision of the ordered deliveries or services without reservation.
2.Details of properties and durability, technical data and descriptions in our product information, advertising materials or technical data sheets, as well as information by the manufacturer or his agents within the meaning of Art. 434, Paragraph 1 No. 3 BGB [German Civil Code] do not constitute guarantees of properties or durability for the goods which we supply, unless such details have been agreed in individual contracts.
3.Relevant, identified use of the goods according to the European Chemicals Ordinance REACH do not constitute either an agreement for corresponding contractual properties of the goods or a use which is conditional for the contract.
4.In the case of sales according to patterns or samples, these merely describe proper accordance with the sample, but do not constitute a guarantee for the properties or durability of the goods which are to be delivered by us.
5.We provide advice about applications according to the best of our knowledge. All details and information with regard to the suitability and application of our goods do not release the purchaser from the obligation to test and examine the suitability of the products for the intended purpose.
III. Prices, terms of payment, arrears of payment
1.The prices which are agreed on conclusion of the relevant contract apply, in particular the prices stated in the order or the order confirmation. If a price is not explicitly stated, the prices which are valid according to our price list at the time of conclusion of the contract apply. The weights and quantities which we determine are decisive for the calculation of the prices, unless the customer objects to these immediately after receipt of the goods. These prices do not include the VAT to the statutory amount which is valid on the date of delivery, or the costs of the packaging required for proper dispatch, the transport costs from our factory or our warehouse, the shipping costs and - insofar as agreed - the costs for transport insurance. Specific national fees may apply for deliveries to foreign countries.
2.We reserve the right to adjust our prices to a reasonable amount, if changes to costs occur due to wage agreements, price increases by our suppliers or fluctuations in currency exchange rates subsequent to the conclusion of the contract. These price changes will be notified in writing at the latest four weeks before the new prices come into effect. These prices are deemed to be accepted if the customer does not object to the new prices within one week subsequent to their notification. This does not apply if a fixed price has been agreed.
3.Unless a different payment date has been agreed, our invoices are due for payment 30 days after receipt, without deduction. After the expiry of the due date stated on the invoice, the customer becomes in arrears in accordance with Art. 286 II No.2 BGB. For payments made within 8 days of the date of the invoice we grant a deduction of 2%; for immediate bank transfer by means of a SEPA company debit we grant a deduction of 3% from the amount stated in the invoice. The amount which is entitled to deduction is the invoiced amount minus freight, pallet value and logistic costs.
4.In case of creditworthiness, payment by means of a SEPA company debit is possible.. The pre-notification can also announce several debits. The period for communication of the pre-notification is reduced from 14 days to one day. This is made by the statement of the corresponding details on the invoice or by the communication of the data (together with the invoice data) by electronic means.
5.The customer only has a right of offset or retention for undisputed or legally established claims or demands.
6.If the customer does not pay invoices which are due, or if the financial circumstances of the customer deteriorate subsequent to the conclusion of the contract or if we receive unfavourable information with regard to the customer which calls the solvency or creditworthiness of the customer into question subsequent to the conclusion of the contract, we shall be entitled to declare the entire residual debt of the customer as due for for payment and in deviation from the agreement which has been made, to demand advance payment or securities, or after delivery has been made, immediate payment of all of our accounts receivable which are based on the same legal relationship. This applies in particular if the customer suspends payment, a cheque from the customer is not cashed, a bill of exchange by the customer is not paid, insolvency proceedings with regard to the customer's assets are applied for or are initiated, or insolvency proceedings are not initiated due to lack of assets.
7.In case of justified doubts with regard to the solvency of the customer, in particular in case of arrears of payment, we may, subject to further claims, revoke payment dates which have been granted and make further deliveries conditional on the provision of other securities.
8.Failure to pay the purchase prise when it falls due constitutes a serious breach of contractual obligations.
9.In case of arrears of payment by the customer, we shall be entitled to demand interest on arrears. For invoices issued in Euro, to the amount of 8% above the base interest rate stated by the Deutsche Bundesbank at the date of occurrence of the arrears, and for invoices in other currencies, to the amount of 8% of the base interest rate applicable at this date by the highest banking institute of the country in whose currency the invoice was issued.
IV. Delivery and service times, delay to performance
1.Delivery times are only approximate, unless a fixed term has been explicitly agreed in writing. The statement of delivery times is conditional on the cooperation of the customer in accordance with the contract. However, if agreed delivery times are exceeded for reasons for which we are responsible, the customer may withdraw from the contract after the fruitless elapse of a reasonable period of grace which has been set by him. The withdrawal must be made in writing. Deliveries on Saturdays are only possible by special agreement and subject to a surcharge.
2.We only become in arrears after the elapse of a period of grace which is set by the customer, and which must be at least 15 working days. In case of force majeure and other unforeseeable circumstances for which we are not responsible, e.g. interruption of operations due to fire, flooding and similar circumstances, breakdown of production plant and machinery, delays to delivery or failure to deliver on the part of our suppliers, as well as interruptions to operation due to lack of raw materials, energy or labour, strikes, lock-outs, difficulty in the procurement of means of transport, interruptions to traffic or official intervention, we are - insofar as we are not responsible for the obstruction to the fulfilment of our obligations for performance due to the aforementioned circumstances - entitled to postpone the delivery or service for the duration of the obstruction plus a reasonable start-up time. If the delivery or service is delayed by more than one month due to this, both we and the customer, with exclusion of any claim for compensation whatever, are entitled to give written notification of withdrawal from the contract subject to the conditions according to Clauses VIII.1 to VII.6 of this contract.
3.In any case of delay, our obligation for compensation shall be limited according to the regulations in Clauses VIII.1 to VIII.6.
4.We shall be entitled to partial deliveries and partial services within the agreed delivery and service periods if this is reasonably acceptable for the customer.
5.Compliance with our delivery and service obligations is conditional on the timely and proper fulfilment of the customer's obligations. We reserve the right to claim failure of fulfillment of the contract.
6.If the customer is in arrears with the call up, acceptance or collection of the goods, or if he is responsible for a delay to dispatch or delivery, regardless of any further claims, we shall be entitled to demand a flat rate fee for costs to the amount of the usual local warehousing costs, regardless of whether the goods are stored by us or by a third party. The customer has the onus of proof that no damage or less damage has been incurred.
V. Transfer of risk, transport and packaging costs
1.Unless otherwise explicitly agreed in writing between us and the customer, the delivery shall be ex works or warehouse and must be collected from there by the customer at his own risk and expense. In this case, the risk of accidental loss or deterioration after provision for collection of the deliverables which are the subject of the contract is transferred to the customer on delivery of the notification of readiness for collection to the customer. Otherwise, the risk of accidental loss or deterioration of the goods which are the subject of the contract is transferred to the customer on handover to the carrier (including for carriage paid shipments or deliveries whose transport is insured by us). The customer has the sole responsibility for the safe loading and securing of the load for transport.
2.If the customer requires a packaging which deviated from the standard, this will be invoiced at cost price.
3.If the goods are dispatched on pallets, these shall be invoiced; in case of the carriage paid return of the pallets in an undamaged condition to one of our factories or warehouses, these shall be reimbursed by means of a credit note.
4.If other loading aids (such as safety belts, load securing lashings or slip-prevention pads) are not separately purchased by the customer or the carrier, these shell remain our property and shall be returned to our factory carriage paid. If the return is not made within one month of delivery, or in a damaged or unusable condition, we reserve the right to invoice the customer for these at the current price for brand new loading aids of the same quality.
5.Any unloading by truck/crane units shall be made at the expense and risk of the customer, whereby the carrier is authorised to charge the customer directly. If available, auxiliary aids (such as long reach pallet trucks, variable forks, crane beams, board slides or four-point ropes) will handed over for use by the customer at the request and risk of the customer. These remain our property and must be returned to our factory carriage free. If they are not returned within one month after delivery, the auxiliary aids shall be invoiced to the customer at the price for new equipment.
6.In deviation from Clause V.1 delivery of silos and containers is made carriage free to the construction site, subject to the purchase of the minimum delivery quantity. The customer shall be responsible for compliance with the guidelines of the vehicle and container manufacturers, the installation conditions for non-pressurised construction site containers by the Federal Gypsum and Plasterboard Association (Bundesverbandes des Gips- und Gipsbauplattenverbandes e.V) and in particular the current accident prevention regulations, especially BGV C 12 of the construction industry trade association, as well as the guidelines for exchangeable tipping and unloading containers (BGR 186), by him and his agents.
7.The customer must make complaints with regard to transport damage directly to the carrier with a copy to us within the stipulated periods.
8.Unless otherwise agreed in individual cases, the customer shall be responsible for the observance of statutory and official regulations with regard to the import, transport, storage and use of the goods.
VI. Obligations of the customer/reservation of title
1.The goods which are delivered remain our property until the complete payment of the purchase price and all other present or future claims which result from the business relationship with the customer. Entry of the demand for payment of the purchase price in a current invoice to the customer and the acceptance of a credit balance do not affect the reservation of title.
2.The customer is obliged to treat the purchased goods with care until the complete acquisition of ownership; in particular he is obliged to adequately insure the goods at his own expense and at their new value against loss, damage and destruction, e.g. by fire, water and theft. The customer hereby assigns his claims from the insurance contracts to us. We accept this assignment.
3.The customer may not pledge or assign the goods which are in our ownership as security. However, according to the following conditions, he is entitled to resell the delivered goods in the normal course of business. The aforementioned entitlement does not apply if the customer has (effectively) assigned or pledged the claim against his contractual partner from the resale in advance to a third party, or has concluded an assignment agreement with the said third party.
4.As security for the fulfillment of all of our claims as stated in Clause VI.1, the customer hereby assigns all existing and future conditional claims from the resale of the goods which we have delivered, together with all ancillary rights to the amount of 110% of the gross value of the goods which have been delivered with priority over the remaining part of his claims. We accept this assignment.
5.If, and insofar as the customer fulfils his obligations for payment to us, in the normal course of business he is entitled to redeem the claims against his customer which he has assigned to us. However, he is not entitled to agree a current account relationship or a prohibition of assignment with regard to these claims, or to pledge or assign these to third parties. If, in contradiction to section 2, a current account relationship exists between the customer and the purchaser of our goods which are subject to reservation of title, the claims which are assigned in advance also relate to the acknowledged credit balance, and case of insolvency of the purchaser, to the existing credit balance.
6.On demand by us, the customer must provide evidence of the individual claims which he has assigned to us and must notify his debtors of the assignment, together with the demand to pay these claims to us, up to the amount of our claims against the customer. We are entitled to notify the customer's debtor of the assignment at any time and to redeem the claims ourselves. However, we will not utilise this authority as long as the customer fulfils his obligations for payment in a proper manner and without arrears and as long as an application for the initiation of insolvency proceedings against the customer has not been made and the customer does not suspend his payments. If one of the aforementioned cases should occur, we may demand that the customer notifies his debtor of the claims which he has assigned to us to us, provides all of the details which are necessary for the redemption of the claims and hands over the associated documents.
7.The customer must inform us in writing immediately in case of seizure or other actions by third parties.
8.If the goods which we have delivered and which are subject to reservation of title are processed, mixed or combined with other objects which we do not own, we shall acquire co-ownership of the new object in the proportion of the value of the goods which we have delivered (final invoice amount, including VAT) to the value of the other goods at the time of processing/mixture or combination. Otherwise, the same shall apply for the object which results from processing as for the purchased goods which have been delivered subject to reservation of title. If the processing, mixture or combination is performed in such a manner that the customer's object can be regarded as the main object, it is deemed to be agreed that the customer transfers proportional co-ownership to us. In the normal course of business, the customer is entitled to dispose of the products which result from the processing, conversion, combination or mixing in the normal course of business, without pledging or assignment, as long as he fulfils his obligations from the business relationship in a timely manner. The customer hereby assigns as security his claims from the sale of these new products, to which we have rights of ownership, to the extent of our proportion of ownership of the sold goods. If the customer combines or mixes the delivered goods with a main object, he hereby assigns his claims against third parties to us to the amount of the value of our goods. We accept this assignment.
9.As security for our claims, the customer also assigns to us the claims up to the value of our goods, which result against a third party due to the combination of our goods with a real estate property.
10.On request by the customer, we commit to release at our discretion the securities to which we are entitled, insofar as the attainable value of our securities exceed our secured claims against the customer by more than 20%.
11.In case of breach of contract by the customer, in particular in case of arrears of payment of more than 10% of the invoiced amount for a period which is not inconsiderable, regardless of other (compensation) claims to which we are entitled, we shall be entitled to withdraw from the contract and to demand the return of the goods which we have delivered. We shall be entitled to utilise the delivered goods after their return. The revenue from such utilisation shall be accounted against the existing liabilities of the customer to us, minus reasonable processing costs.
VII. Rights of the customer in case of faults
1.Obvious faults, incorrect deliveries and deviating quantities must be notified to us by the customer in writing immediately, however at the latest 3 days after receipt of the goods by the customer. Faults of any kind, which are not obvious and deliveries which do not obviously differ from the ordered goods or quantities must be complained of when such faults become apparent - immediately in the case of merchants within the meaning of the HGB [German Commercial Code] and in the case of persons who are not merchants, at the latest within the warranty period from the date of delivery. In order to enforce claims for faults, the purchaser must examine the goods immediately with regard to their compliance with the contract, in particular with regard to deviations in type, quantity and weight, as well as with regard to material defects and to comply with the obligations for examination as stated in the applicable DIN standards. This also applies if components are added, which have not been obtained from us. If any defects are only discovered in the course of processing, the work must be halted immediately and the unopened original packaged which have not been processed must be secured. On demand, these must be provided to us for examination. After three months subsequent to the transfer or risk to the customer in accordance with Clause V.1, complaints of concealed defects are excluded and are deemed to be too late insofar as their detection should have been reasonably expected. In the case of a late, or incorrect complaint of a fault according to Clauses VI.1 to VI.3, under the conditions of Clause VIII.1 to VII.6 of these Terms of Sale, the customer shall lose his right of complaint, unless the defect has been wilfully concealed by us.
2.In the case of faults with goods which are delivered by us, at our discretion we shall be obliged to correction or to delivery of fault-free goods (subsequent fulfillment). If we are not prepared or able to provide subsequent fulfillment, in particular if this is delayed beyond a reasonable period for reasons for which we are responsible, or if the subsequent fulfillment fails in any other manner, at his discretion the customer shall be entitled to withdraw from the contract or to demand a reduction of the purchase price. A subsequent correction is deemed to have failed after the second attempt, if nothing to the contrary results from the nature of the fault or from other circumstances. Insofar as the customer has suffered damage due to faults in the goods which we have delivered, or has had fruitless expenses, our liability for this shall be governed by Clauses VII.1, VIII.1 to VIII.6 and Clause IX.
3.Claims for faults by merchants within the meaning of the HGB lapse at the latest one month after our rejection of the complaint.
VIII. Rights and obligations of our company
1.Liability of our company for damages or fruitless expenditure, for whatever legal reason, only pertains if the damages or fruitless expenditure
a. have been caused by the culpable breach of a significant contractual obligation by us or one of our agents, or
b. are due to gross negligence by us or one of our agents. In accordance with Clause VIII.1.a and VIII.1.b, we shall only be liable for damages or fruitless expenditure which are caused by advice or information which has not been separately remunerated, in case of wilful or grossly negligent breach of obligation, insofar as this breach of obligation is not due to a material defect of the goods which we have delivered within the meaning of Art. 434 BGB [German Civil Code].
2.If we are liable for a significant breach of contractual obligation according to Clause VII.1.a, without gross negligence or wilful action, our liability for compensation is limited to that for foreseeable, typically occurring damage. In this case we shall not be liable for loss of profit by the customer and unforeseeable consequential damages. The aforementioned limitations of liability according to sentence 1 and 2 apply in like manner to damage which is caused by gross negligence or willful action by our employees or agents. We shall not be liable for direct damage to the customer which result from the enforcement of contractual penalties by third parties.
3.The aforementioned limitations of liability stated in Clauses VIII.1 to VIII.2 do not apply if our liability is mandatory according to regulations of the Product Liability Act or if claims are made against us due to injury to life and limb or health. If the goods which we deliver lack a guaranteed property, we shall only be liable for such damages which are due to the lack which was the subject of the guarantee.
4.Further liability for compensation other than that which is is provided in Clauses VIII.1 to VIII.3 is excluded - regardless of the legal nature of the claim. This applies in particular for claims for compensation due to culpability on conclusion of the contract as per Art. 311 paragraph 3 BGB or positive breach of contract as per Art. 280 BGB or due to claims in tort as per Art. 823 BGB.
5.We shall not be liable for the impossibility or delay of fulfillment of delivery obligations if such impossibility or delay is due to the proper pursuance by the customer of public law obligations in association with the European Chemical Ordinance REACH.
6.Insofar as these claims for compensation are excluded or limited according to Clauses VIII.1 to VIII.5, this also applies with regard to personal liability for compensation on the part of our employees, representatives and agents or vicarious agents.
IX. Term of limitation for claims
1.Claims by the customer which are due to faults in the goods which we have delivered or failure to provide proper services - including claims for compensation and claims for reimbursement of fruitless expenses - lapse within one year unless otherwise stated in the following Clauses IX.2 to IX.5, or longer terms are prescribed by law according to Arts. 439 paragraph 1 No. 2 (buildings and items used for building), 479 paragraph 1 (Recourse) and 634 a paragraph 1 No. 2 (building faults).
2.If the customer is a company and if he or another purchaser in the supply chain has fulfilled claims by the consumer due to faults in newly produced items which have been delivered by us and which have been delivered to the consumer as newly produced items, the lapse of claims against us by the customer according to Arts. 437 and 478 paragraph 2 BGB occurs at the earliest two months after the date on which the customer or the other purchaser in the supply chain has fulfilled the requirements of the consumer, unless the customer has successfully cited a lapse of liability to his client or contractual partner. A lapse of the claims by the customer against us due to faulty goods which we have delivered lapses under all circumstances if the claims of the client / contractual partner of the customer due to faults in the goods which we have delivered to the customer have lapsed, at the latest however, 5 years after the date on which we delivered the goods to our customer.
3.If we have improperly provided advice and/or information which has not been separately remunerated, without having delivered goods in association with the information or advice and without the improper advice or information constituting a material fault in accordance with Art. 434 BGB in the goods which we have delivered, claims which are based on this lapse within one year of the statutory commencement the term of limitation. Claims against us by the customer/client due to the breach of contractual, pre-contractual or statutory obligations, which do not constitute a material fault according to Art 434 BGB in the goods which are to be delivered or which have been delivered, also lapse within one year of the statutory commencement of the period of limitation. If the aforementioned breaches of obligation constitute a material fault in accordance with Art. 434 BGB in the goods which are delivered in association with the advice or information, the regulations stated in Clauses IX.1, IX.2 and IX.4 apply for the lapse of claims which are based on this.
4.In the case of newly produced goods which we have delivered, which have been used in a building according to their usual form of use and which have caused a fault in the said building, claims by the customer lapse within five years of the statutory commencement of the period of limitation. In deviation from sentence 1, a period of limitation of four years applies, if the customer has utilised the goods which we have delivered for the fulfillment of contracts, in which Part B of the regulations for entering into construction services are included, or two years if this concerns materials which are purely used for repairs to buildings. The lapse according to the previous sentence occurs at the earliest two months subsequent to the date in which the customer has fulfilled the claims by his contractual partner due to faults in the building which have been caused by goods which we have delivered, unless the customer has successfully cited the objection of a period of limitation to his client/contractual partner. A lapse of the claims by the customer against us due to faulty goods which we have delivered lapses under all circumstances if the claims of the client / contractual partner of the customer due to faults in the goods which we have delivered to the customer have lapsed, at the latest however, five years after the date on which we delivered the goods to our customer.
5.The regulations stipulated in Clauses IX.1 to IX.4 do not apply for the lapse of claims which are due to injury to life or limb or health, or for the lapse of claims according to the Product Liability Act and due to legal deficiencies in the goods which we have delivered, for which there are material rights by third parties, due to which the surrender of the goods which we have delivered can be demanded. Furthermore, they do not apply for the period of limitation of claims by our customer/client, which are based on the fact that we have maliciously concealed faults in the goods which we have delivered, or have breached an obligation due to willful action or gross negligence. The statutory periods of limitation for claims apply to the cases stated in Clause IX.5.
1.Return of fault-free goods which we have delivered is excluded. Erklären wir uns ausnahmsweise mit der Rücknahme mangelfreier Ware einverstanden, so erfolgt eine Gutschrift dafür nur insoweit, wie wir die uneingeschränkte Wiederverwendbarkeit feststellen. Für die Kosten der Prüfung, Aufbereitung, Umarbeitung und Neuverpackung werden die tatsächlichen Kosten, mindestens 20 % des Rechnungsbetrages oder mindestens 30 Euro abgezogen. Eine derartige Gutschrift wird nicht ausgezahlt, sondern dient nur zur Verrechnung mit künftigen Lieferungen.
1.Ohne unsere ausdrückliche schriftliche Zustimmung dürfen Rechte bzw. Ansprüche gegen uns, insbesondere wegen Mängeln an von uns gelieferten Waren oder wegen von uns begangener Pflichtverletzungen, weder ganz noch teilweise auf Dritte übertragen oder an Dritte verpfändet werden; § 354 a HGB bleibt hiervon unberührt.
XII. Safety data sheets and statements of performance
1. If the the relevant current versions of Ordinances (EC) No. 1907/2006 (REACH Ordinance) and/or (EC) No. 305/2011 (EU Building Products Ordinance) apply to the subject of delivery, the customer declares that he agrees to the download of the safety data sheet and/or the statement of performance under the URL http://pd.knauf.de.
XIII. Place of fulfillment, court of jurisdiction, applicable law, trading clauses
1.The place of fulfilment and sole court of jurisdiction for all claims arising between us and merchants or legal persons under civil law or special funds under civil law is Iphofen, or the registered office of the relevant delivery factory or warehouse, and for payments, the designated paying agents, unless this is mandatorily opposed by legal regulations. However, we are also entitled to initiate litigation against a customer at his legal court of jurisdiction.
2.The law of the Federal Republic of Germany applies exclusively to the legal relationship between us and the customer, as is applicable between German merchants and as can be effectively agreed in the relevant countries to which delivery is made (see Clause I of these Terms of Sale). The application of regulations for the international sale of goods (CSIG Vienna UN Convention on the International Sale of Goods) and German international civil law are explicitly excluded.
3. Insofar as trading clauses according to the International Commercial Terms (INCOTERMS) are agreed, the latest version of the INCOTERMS shall apply (at present INCOTERMS 2010).
XIV. Concluding provisions
1. If one of the aforementioned provisions is ineffective, partially ineffective or is excluded by means of a special agreement, this shall not prejudice the effect of the remaining provisions.
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