General Terms and Conditions of Tonality GmbH, Weroth, Germany
§ 1 General, Scope
(1) These General Terms and Conditions are part of all offers of and contracts for delivery from and services rendered by TONALITY GmbH.
(2) They exclusively are applicable. We do not accept any conditions of the customer which are contrary to or deviate from our Delivery and Payment Conditions unless we have explicitly consented in writing to their applicability. Our General Terms and Conditions even apply when we carry out a delivery to an order without reservation even though we are aware of conditions of the customer which are contrary to or deviate from our General terms and conditions.
(3) All additional agreements, supplementary agreements and changes must be put down in writing even if they have already been concluded orally.
(4) Subsequent agreements can only take effect if they are concluded by an authorized representative.
§ 2 Offers, Subject Matter, Product Texture
(1) The agreed upon properties of the goods are, in principle, just those in our product descriptions. Public comments, acclamations and advertising do not constitute additional contractually binding statements of the properties of the goods. These descriptions of the properties of goods and other declarations about the goods are not to be understood as guarantees. The customer may only invoke a guarantee if it exists in writing and explicitly states that it is a guarantee.
(2) Clay tile products are homogeneous bulk goods. They are manufactured in a natural burning process. Samples are not-binding pieces for visualization. Our offers and samples are subject to minor deviations in respect to size, quality, weight and color.
(3) Minor changes in color and other surface properties (especially blooms, micro-cracks) of the goods including other types of variations in their appearance (minor irregularities, deformations) which do not negatively affect the fitness of the goods for use are not to be construed as performance in breach of contract. The same applies to customary breakage. Wear and tear due to ageing or the weather is not a material defect.
§ 3 (Partial) Delivery, Delivery Date and Passing of Risks
(1) Delivery is ex works (Incoterms 2010). Insofar as it is agreed that Incoterms clauses shall apply, it is the Incoterms clauses in the current version published by the International Chamber of Commerce which shall apply
(2) We are entitled to deliver partial quantities within the stated delivery period when this is not un-reasonable for the customer.
(3) A delivery to the customer only takes place if it was agreed in writing. The customer has to bear the related costs. If the goods are delivered to the customer upon his request then upon transfer of the goods to the freight carrier / shipper the risk of accidental loss, destruction or deterioration passes to the customer; this also applies to partial deliveries and pickups. All agreements to deliver presuppose that the place of unloading is accessible to trucks of up to 40 tones and that there is a suitable possibility for unloading at ground level.
(4) The person who takes delivery of goods for the customer by signing the delivery note is deemed to be the person authorized to receive the goods.
(5) To be binding, a delivery date must be confirmed in writing.
(6) With deliveries within 24 hours (express deliveries) or with a subsequent change of a delivery order by the customer within 24 hours before commencement of the original delivery time (change of delivery place or time) the customer bears the resulting additional costs.
(7) Acts of God and other unforeseeable, unusual events which include, among others, shortages in materials, energy, labour and transport capacity, disruptions of production, industrial conflicts, overstepping of time limits by our suppliers, disruptions in transportation and governmental dispositions and which render us unable to fulfil our responsibilities to deliver, relieve us for the duration of their effects or if delivery is impossible relieve us completely of our responsibility to deliver. We would notify the customer without delay.
(8) The withdrawal of standard goods free of defects is excluded. If we accept the withdrawal of goods free of defects we grant a credit note, provided the full reusability of these goods is proven. Further details can be found in the general delivery conditions which are part of the current price list.
(9) If the customer defaults in accepting goods or disregards other duties to cooperate, we are entitled to demand compensation for the damages we sustain thereby, including any increases in expenditures, without prejudice to further claims.
§ 4 Payments, Payment Conditions and Right of Retention
(1) Invoices are payable within 8 days of invoice date with 3% cash discount on delivered material, otherwise they are payable without cash discount within 30 days net. We grant a 4% cash dis-count for payments by SEPA Direct Debit Mandate. The cash discount is to be deducted from the final invoice amount less cost of pallets and services. We do not grant discount on pallets and services.
(2) Advance payment can be agreed too.
(3) Payments may only be made according to the payment conditions stated on the invoice.
(4) In cases a SEPA Direct Debit Mandate is agreed, we are authorized to collect payments of the customers bank account by means of direct debit. The customer will instruct his credit institution to honor all our direct debits drawn. Collection of the debit is made on due date. If the due date falls on a non-bank working day, reassignment will take place on the next bank working day. The customers will be informed three bank working days before the debit (Pre-Notification). The customer warrants to ensure adequate funds in the account. A reversal of payment is not possible according to § 675x BGB. Costs arising in case of a non-payment of a debit, shall be borne by the customer, as long as the non-payment or reversal of payment is not caused by us.
(5) If the customer’s general place of jurisdiction lies outside the Federal Republic of Germany, payment shall be rendered in advance or by an irrevocable letter of credit which has been confirmed by one of Germany’s larger banks or by a German public credit institution.
(6) Duly payment of the ordered goods is fulfilled upon receipt of bank credit memo on our accounts.
(7) Checques or exchanges will only be accepted on account of performance. Discount, fees and costs are borne by the customer.
(8) The customer only has rights of retention if its counterclaim has been recognized by declaratory judgment, is undisputed or has been recognized by us. If the customer is a commercial customer it may only assert a right to retention if its counterclaim is based on the same contractual relationship.
(9) Application of payments to interest and costs is governed by § 367 BGB (German Civil Code); deduction of cash discounts from the customer’s new debt is eliminated to this extent.
(10) Bonus, rebate and other payment agreements in favour of the customer are subject to the condition subsequent that our claims arising from contract are paid in full; thus, these agreements no longer apply if for any reason the customer fails to pay in full. For the event of a backlog of payments of any type it is hereby agreed in advance that the claims of TONALITY GmbH shall offset any claims of the customer from bonus, rebate or other payment agreements.
(11) In addition to and without limitation of Sect. 321 German Civil Code the parties agree on the following: In case of any evidence of one of TONALITY´s claims becoming jeopardized due to a lack of financial capacity of the customer (e.g. doubts as to the creditworthiness), TONALITY is entitled to perform further deliveries against advance payments, or to demand due payment of outstanding claims immediately – even if deferred -, even for accepted exchanges.
(12) The customer defaults on fulfilment of a pecuniary claim when a reminder is delivered, a com-plaint is filed in court or a payment order issued by the court is served (a German instrument similar to a default judgment). The customer is also in default if a calendar date for performance has been determined but the customer does not perform by that date. Without prejudice to the foregoing, the customer defaults thirty days after the due date and delivery of an invoice or equivalent demand for payment. When the customer defaults on payment, we are entitled without prejudice to any other rights of ours to invoice default interest in the amount of 8% above the base interest rate. In the event that greater damages due to the default can be proved, we are then in a position to assert these damages; the customer, for its part, is entitled to prove to us that we have sustained no damages or only damages in a lesser amount as a result of the delay in pay.
§ 5 Prices
(1) All prices are quoted ex works or warehouse and do not include transport costs, value added tax, customs duties and other costs incurred between conclusion of the contract and contractual transfer of the goods.
(2) If no written agreement about a price has been concluded, the said price is normally the list price that was valid when the contract was concluded. Price lists, catalogue prices and internet prices are subject to change. Fixed price agreements require written agreement.
(3) However, the said price is the list price that is valid at the time of delivery or pickup insofar as there were increases in costs, especially for energy, personnel, duties and taxes, during the time between conclusion of the contract and delivery or pickup and the size of these increases was not foreseeable. The same also applies to dealings with non-commercial customers, though only under the condition that more than four months passed between conclusion of the contract and delivery or pickup. With an increase in the list prices of more than 5%, a non-commercial customer has a right to dissolution of the contract (cancellation or withdrawal). Documentation of such cost increases is provided to the customer upon request.
(4) Further details on freight costs, delivery costs and shipping costs can be found in the general delivery conditions which are part of the current price list.
§ 6 Copyrights and Trademark Rights, Technical Information
(1) We reserve all claims under copyright laws to the illustrations, drawings and other documents provided by us. Marketing of our products is only permitted under existent trademarks which are protected for this purpose (TONALITY®, among others).
(2) We issue technical information and suggestions for design to the best of our knowledge in the context of our customer service, taking into consideration the applicable legal requirements for the building industry and the rules of the art of construction. The customer itself is obliged to evaluate the suitability of the ordered goods and suggested design for the customer’s intended use. We are entitled to change the technical data of ordered goods to be delivered insofar as this is not unreasonable for the customer.
§ 7 Packaging
(1) If packaging other than standard packaging is requested by the customer or if the transport shall be done on squared timber or reusable pallets, this will be invoiced separately to the customer.
(2) The customer is entitled to return, at his own transportation cost, the reusable pallets on which our goods were delivered, provided they are in a good condition. He will then receive a credit note in the amount stated in our price list. The customer may not return more pallets than he received.
(3) Packaging material is not considered in the calculation of freight weight – the remuneration of freight costs only applies to the weight of goods.
§ 8 Material Defects
(1) Unless otherwise provided by agreement or by these general terms and conditions, the legal provisions shall apply.
(2) It is incumbent on the customer to inspect delivered goods immediately upon receipt. Recognizable defects, deviations in quantities and incorrect goods are to be reported to us in writing within five days at the latest by commercial customers and within two weeks at the outset by non-commercial customers. If timely notification is omitted, all rights based on material defects are excluded. We must be given the opportunity to identify the reported complaints together with the customer and to be present when samples are taken for testing materials.
(3) A precondition for an assertion of claims based on defects is that the customer has properly stored and handled the purchased goods and carried out all assembly, relocation, installation and other further processing in accordance with the applicable shop rules, guidelines, norms, obligations imposed by licensing authorities and the instructions of our works.
(4) Customary tolerances with respect to dimensions, weight, etc. are not to be considered as material defect.
(5) When a customer’s notification of defects is justified and timely, we are entitled to remove the defects or to deliver substitute goods, as we may choose. If this subsequent performance fails, the customer may demand a reduction of remuneration (reduction) or cancellation of (withdrawal from) the contract.
(6) Advice by us is rendered without commitments and – insofar as is legally possible – liability for its merits or in respect to the amount is excluded.
§ 9 Damages
(1) Unless otherwise provided by legal provisions, the liability is excluded.
(2) The aforementioned exclusion applies except for damages to human life, the human body or to human health if we are responsible for a violation of duty and except for other damages based on wilful or grossly negligent violation of duty on our part.
(3) The same applies to mandatory liability regulations pursuant to the German Product Liability Act (Produkthaftungsgesetz).
(4) A violation of duty by a legal representative or vicarious agent of the TONALITY GmbH is equivalent to a violation of duty by the TONALITY GmbH. If the TONALITY GmbH is responsible for a violation of duty, then the customer is entitled to withdraw from the purchase contract under the applicable statutory conditions insofar as a defect in the purchased thing is not involved.
(5) The foregoing applies most particularly to claims because of faults in contract negotiations, violations of accessory duties and other legal claims.
(6) Claims for damages due to impossibility or inability to perform remain unaffected by this. The same applies insofar as liability is mandatory under the provisions of the German Product Liability Law.
§ 10 Retention of Title, Safeguarding of Claims
(1) The goods delivered continue to be our property until all claims from the applicable underlying purchase contract have been paid in full (retention of title). The customer must ensure that proper care is taken of the goods.
(2) With commercial customers, this retention of title extends to all claims including all accessory claims that exist on the basis of the business relationship with the customer including side claims.
(3) With conduct of the customer that is in breach of contract, especially with delays in payment, we are entitled to repossess the item delivered. Our repossession of the said item does not entail withdrawal from the contract unless we expressly declare this or unless the customer is not a commercial customer.
(4) The customer is obliged to handle the item delivered with proper care; in particular, it must be insured sufficiently at the customer’s expense against damages due to fire, water and theft in the amount of its value when new.
(5) Processing of the purchased item by the customer is always done on our behalf. If the purchased item is processed together with other objects which do not belong to us, then we acquire co-ownership of the new item in the ratio of the contractual value of the purchased item (final invoiced amount including value added tax) to the values of the other processed items at the time of processing.
(6) If the purchased item is inseparably mixed with items that do not belong to us, then we acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoiced amount including value added tax) to the values of the other items at the time of mixing. If mixing takes place in such a way that the item of the customer is to be regarded as the main item, then it is deemed to be agreed that the customer will transfer proportionate co-ownership to us. The same applies to the case of an assembly or other combination or connection.
(7) The customer is authorized and empowered to sell the purchased item in the normal course of business. However, it is hereby agreed that the customer would assign to us in the amount of our claim (final invoice amount including value added tax) all claims against the customer’s customers or third parties which accrue to the customer from resale independently of whether the purchased item is resold without or after processing, mixing, or assembly or other combination or connection. The customer also assigns to us in the same amount the claims (including the right to grant of a safety mortgage) that accrue to the customer against third parties through connection of the purchased item with a piece of land. If the customer is an owner of the piece of land, then this advance assignment in the same amount also covers the claims that result from sale of the piece of land or interests in it.
(8) If the realizable value of the realizable collateral granted to us by the customer exceeds our claims by more than 20%, then we are obliged to release collateral to the corresponding extent upon demand, whereby it is we who select the collateral to be released.
§ 11 Assignment of Rights and Duties, Separability
(1) Transfers of rights and duties of the customer that result from the contract concluded with us require our written consent before they can take effect.
(2) Should individual provisions of the contract with the customer, including these general conditions of business, be or become ineffective in whole or in part, then this would not affect the effective-ness of the other conditions. Rather, that which can be agreed to with effect and which comes closest to the economic purpose of the said ineffective provisions is deemed to have been agreed to.
§ 12 Information on data processing
In case we receive your E-Mail address in connection with the purchase of goods or services, we are authorized to use this E-Mail address for purposes of direct marketing for own similar products and services. You are entitled to withdraw the use at any time without incurring any costs other than the transmission costs in accordance with the basic tariffs. You may submit your objection in writing to TONALITY GmbH, In der Mark 100, 56414 Weroth, Germany or by E-Mail to firstname.lastname@example.org.
§ 13 Contract Language, Place of Performance, Place of Jurisdiction, Applicable Law
(1) The agreed upon contract language is the German.
(2) The place of performance for deliveries and pickups is – insofar as something else is not agreed to – the place of delivery (works or warehouse), and for payments it is payment location given in the invoice. Checks should be sent to TONALITY GmbH, In der Mark 100, 56414 Weroth, Germany.
(3) All legal relations which result for the parties from the contract are governed by the laws of the Federal Republic of Germany under exclusion of the uniform UN Sales Convention (United Nations Convention on Contracts for the International Sale of Goods).
(4) Weroth, Germany is the place of jurisdiction for all disputes resulting from or in connection with the contract, including disputes over checks and bills of exchange, provided that the prerequisites of § 38 par. 1 ZPO (German Code of Civil Procedure) apply. Moreover, we also have the right to file a complaint at any court with jurisdiction over the customer or any other court which could have jurisdiction under German or international law.
(5) With non-commercial customers the place of jurisdiction is the residence of the defendant.
Current status: December 2017