General Terms and Conditions of  TONALITY GmbH

§ 1 Scope, form

1. The present General Sales Conditions are valid for all our business with our customers („buyers“). They are, however, only applicable, if the buyer is an entrepreneur (§ 14 German Civil Code), a legal entity under public law or a special assets fund under public law.

2. Unless otherwise agreed, these terms and conditions apply in the version valid at the time the buyer placed his order resp. however, in the version the buyer received most recently in text form as a framework agreement and applies even to similar future contracts without any particular reference being required from us in each individual case.

3. Our terms and conditions shall apply exclusively. Deviating, conflicting or supplementing general terms and conditions of the buyer are considered integral parts of the agreement only if and in as far as we explicitly consented to their validity. This requirement of consent shall apply in any case, for example, even if we execute the delivery to the buyer without reservations while being aware of his general terms and conditions.

4. Individual agreements made with the buyer on a case by case basis (including collateral agreements, supplements and amendments) shall have precedence over these terms and conditions in any case. Subject to proof to the contrary, a written contract resp. our written confirmation shall be decisive for the content of such agreements.

5. Legally relevant declarations and notifications of the buyer in connection with the contract (i.e. setting of deadlines, notifications of defects, declarations of cancellation or reduction) must be made in writing, e.g. written or text form (i.e. letter, email or fax). Statutory provisions on form and other additional verifications, particularly in the event of doubt regarding the legitimation of the declaring party, shall remain unaffected.

6. As far as the parties agreed on the validity of Incoterms clauses, these provisions shall be applicable in their current version published by the International Chamber of Commerce.

§ 2 Offers, conclusion of contract

1. Our offers are non-binding. This shall also apply, if we submitted catalogues, technical documentation, other product descriptions or documents – including those in electronic form – to the buyer. We reserve all proprietary rights and copyrights in respect of the aforementioned.

An order placed by the buyer constitutes a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within two weeks after our receipt thereof. The acceptance is effected, at our own discretion, either by sending an order confirmation or by unconditional supply of the products or services ordered.

§ 3 (Partial) Delivery, delivery dates and passing of risk

1. Delivery is effect ex works/ex warehouse, which shall also be considered the place of performance for the delivery and for a possible subsequent delivery. On request and at the expense of the buyer, the goods will be delivered to another place of destination (sales shipment). If nothing else has been agreed upon, we are entitled to decide on the type of shipment (particularly with regard to transport company, dispatch route, packaging) ourselves.

2. The delivery period shall be agreed upon individually resp. is indicated by us upon receipt of the order. We shall be entitled to make partial deliveries within the indicated delivery period, as far as this is reasonable for the customer to accept.

3. The risk of accidental loss and accidental deterioration of the goods shall pass on the buyer upon the handing over of the goods. In the event of a delivery involving the shipment of the goods, the risk of accidental loss and of accidental deterioration as well as the risk of delay shall pass to the buyer as soon as the goods are handed over to the forwarder, carrier or other persons or other parties entrusted with the execution of the shipment. In the event that an acceptance has been agreed upon, this shall be considered decisive for the passing of risks. The statutory provisions of the Law on Contracts for Work and Services shall also apply to a previously agreed acceptance accordingly. Default of acceptance by the buyer shall be deemed equivalent to delivery or acceptance.

4. In the event of a delivery, the buyer must ensure the accessibility of the place of unloading for heavy goods vehicles of up to 40 tons and suitable unloading possibilities at ground level. In case of a culpable breach of duty, the buyer shall be liable for any damages arising as a consequence of these preconditions missing. In addition, the buyer shall also be liable for damages arising in case the delivery vehicle is not unloaded immediately or inappropriately for reasons the buyer is responsible for.

5. The person taking delivery for the buyer and signing the delivery note shall be deemed a person authorized to receive the said goods.

6. In the event of 24 hour deliveries (express delivery) or a subsequent change of the delivery order by the customer within 24 hours before commencement of the initial delivery (change of place of delivery or delivery date), the buyer will bear all additional expenses involved.

7. Force majeure and other unforeseeable exceptional occurrences, which include shortage of material, energy, labour and transportation capacity, pandemics, production breakdowns, labour disputes, overstepping of delivery deadlines of our sub-suppliers, disturbances of traffic as well as government orders, which make it impossible for us to meet our delivery obligations, release us for the duration of their effects resp. release us completely from our obligation to perform in the event of impossibility of delivery. The buyer would, however, be informed of the occurrence of such circumstances without delay.

8. The return of non-defective delivered standard products is excluded. In the event that we exceptionally agree to take back non-defective products, the buyer will be issued a credit note excluding transportation and restocking costs, provided that we establish the unrestricted reusability of the products. Further information on this topic can be taken from the general delivery conditions contained in the current price list.

9. In case the buyer is in default of acceptance or if he infringes any of his obligations to cooperate, we are entitled to demand compensation of the arising damages – including any possible additional expenses. We reserve the right to further claims.

§ 4 Payment, terms of payment and rights of retention

1. The purchase price is due and payable within 14 days as of invoicing and delivery resp. acceptance of the goods. We are, however, entitled to effect a delivery in full or in parts only against pre-payment even in an ongoing business relationship at any time. A respective reservation will be communicated with the confirmation of the order at the latest.

2. The buyer shall be in default as soon as the above mentioned payment deadline expired. During the default, interest is to be paid on the purchase price at the respective applicable interest rate for default. We reserve the right to assert claims for further default damages. Our claim for the commercial maturity interest (§ 353 German Commercial Code) against merchants shall remain unaffected.

3. Payments must be effected exclusively to the paying agent indicated on our invoice.

4. In case a SEPA Direct Debit Mandate is agreed upon, we are authorized to collect payments from the customer’s account by means of direct debiting. The buyer shall instruct his credit institution to honour our account debit requests. The debit will be effected on the due date. In the event that maturity date happens to be a non-banking day, the debit will be effected the next banking day. The buyer will be informed about the debit to be effected at least one banking day in advance (pre-notification). The buyer shall ensure that there are sufficient funds in his account. A chargeback according to § 675x German Civil Code is not possible. Costs arising as a consequence of the dishonour of a direct debit shall be borne by the buyer, provided that the dishonour or chargeback was not caused by us.

5. In the event that the buyer’s general place of jurisdiction lies outside the Federal Republic of Germany, payment must be effected in advance or by irrevocable letter of credit, confirmed by a major German bank or public credit institution.

6. The buyer’s payment obligations shall be considered fulfilled as soon as his payment is credited to our indicated account.

7. Cheques and bills of exchange are only accepted on account of performance. Discount, charges and costs shall be borne by the buyer.

8. The buyer shall only be entitled to off-setting rights or rights of retention in as far as his claim is legally established or undisputed. § 8 shall remain unaffected thereof.

9. The crediting of payments against interest and costs shall be effected according to § 367 German Civil Code, to this extent, the deduction of cash discounts from the customer’s new debts is ruled out.

10. Bonuses, rebates or other payment agreements in favour of the buyer or third parties shall cease to apply in the event of non-payment or incomplete payment of our demands, irrespective of the reason behind the buyer’s non-payment. In the event of outstanding payment of any kind, it shall already be agreed that our demands shall be offset with the buyer’s claims resulting from bonuses, rebates or other payment agreements.

11. In addition, however, without limiting § 321 German Civil Code, it shall apply as follows: In the event that after conclusion of the contract it becomes evident that our claim of the purchase price is at risk as a consequence of the customer’s insufficient financial capacity (e.g. doubts as to the creditworthiness, application to institute insolvency proceedings), we shall be entitled to effect further deliveries only against advance payments and to deem all outstanding – even if deferred – claims due and immediately payable. This shall also include collected bills of exchange. In case of contracts for the manufacturing of non-fungible goods (custom manufacturing), we reserve the right to declare immediate cancellation; the legal regulations pertaining to the dispensability of fixing a time limit shall remain unaffected.

§ 5 Prices

1. All prices are quoted net ex works resp. ex warehouse, exclusive of transport costs, value added tax, customs duties and other costs that arise between the conclusion of contract and the contractual handing over of the goods.

2. Unless other prices have been agreed upon in writing, the valid price shall be the list price valid at the time of the conclusion of the contract. Price lists, catalogues or internet prices are subject to alteration. Fixed price agreements generally require a written agreement.

3. By derogation form the above mentioned, it is agreed that the applicable price shall be the list price valid at the time of delivery resp. the time of the collection by the customer, provided, however, that in the period between the conclusion of the contract and the delivery resp. the customer’s collection, there were no increases in costs, particularly for energy, personnel and personnel associated costs, the extent of which could not have been foreseen and which make adherence to the agreed price seem unreasonable. The same shall apply to non-commercial transactions, however, only under the precondition that the period between conclusion of contract and the delivery resp. the customer’s collection of the goods exceeds four months; should the increase of the list prices exceed 5%, the non-commercial customer shall be entitled to termination of the contract (right of cancellation or right of rescission). We will provide evidence of the respective cost increases for the customer upon his request.

4. In addition, it is agreed to apply the freight, delivery and shipping costs according to the current price list.

§ 6 Copyrights/trademark rights, technical information

1. We reserve all copyright claims with regard to the illustrations, drawings and other documents provided by us. The distribution of our products is permitted only under the existing protected trademarks (e.g. TONALITY®).

2. Technical information and execution recommendations shall be granted within the scope of our customer service and to the best of our knowledge, taking into consideration the valid legal regulations for the building and construction industry and the rules of architecture. The customer himself shall have the obligation to determine the suitability of the ordered products and the recommended execution for the intended use. We shall be entitled to change the technical data of the delivered goods, insofar as this is considered reasonable for the customer.

§ 7 Packaging

1. In the event that the customer requests packaging that deviates from the standard or if delivery of the products is effected using specific customized pallets, this will be invoiced separately.

2. The customer shall be allowed to return to us the reusable pallets he received in connection with the delivery of the products if in good condition and carriage paid. The customer my not return more pallets than he received from the contractor.

§ 8 Buyer’s claims for defects

1. The statutory provisions shall apply with regard to the rights of the buyer in case of material and legal defects (including false delivery and shortfall in delivery, as well as improper assembly or deficient assembly instructions), unless provided otherwise in the following. The special legal requirements pertaining to the final delivery of unprocessed goods to the consumer, even if he processed the goods, (supplier recourse acc. to §§ 478 German Civil Code) shall remain unaffected in any case. Claims resulting from supplier recourse are excluded, if the defective goods have been further processed by the buyer or another contractor, e.g. though reassembly in another product.

2. The basis for our liability for defects shall, above all, be the agreement concluded on the quality of the goods. All product descriptions and manufacturer specifications that constitute subject matters of the individual contracts shall be considered agreements as to the quality of the goods, particularly the building approval of the German Institute for Building Technology (DIBT) Z-10.3-798 und Z-10.3-796 already available for these products.

3. Our products are homogenous mass goods manufactured in the course of a natural firing process. Samples of any kind, specimens, illustrations and descriptions shall thus merely be considered approximate visual demonstration pieces. Minor deviations from our offer or sample with regard to size, quality, weight and colour are reserved.

4. Minor colour and other changes of the surface (particularly efflorescence, micro fissures) of the goods as well as other kinds of deviations in their appearance (slight irregularities, deformations), which do not have an adverse effect on the usability of the goods, shall not be considered non-conforming contractual performance. The same shall apply to customary breakage. Wear and weather effects are not considered material defects.

5. The buyer’s claims for defects presupposes that he fulfilled his statutory inspection and defect notification obligation (§§ 377, 381 German Commercial Code). The inspection must be effected immediately before the processing resp. the assembly at the latest. Should any defect become apparent upon delivery, inspection or at a later point, the buyer shall notify us thereof immediately in writing. As a general rule, obvious defects must be reported in writing within a period of 3 working days as of delivery and defects, which were not identifiable at the time of inspection, within the same period as of their detection. If the buyer fails to carry out the proper inspection and/or notice of defects, our liability for the defect, which was not reported or belatedly or improperly reported, is excluded in accordance with the statutory regulations.

6. An additional precondition for the assertion of warranty rights is that the buyer handled and stored the purchased goods properly and that the on-site installation, the relocation or other further processing was carried out in accordance with applicable specialist rules, technical guidelines, standards, the requirements of the approvals and our plant regulations, and in particular that the façade systems (facing bricks and retaining profiles of aluminium) were installed only according to the building approval of the German Institute for Building Technology (DIBT).

7. Commercial tolerances with regard to dimensions, weight, etc. shall not be considered material defects.

8. In case the delivered product is faulty, we will first choose between subsequent performance through correction of the defect (rectification) and delivery of a faultless product (replacement delivery). Our right to refuse the subsequent performance in accordance with the statutory regulations shall remain unaffected.

9. We are entitled to make the outstanding subsequent delivery dependent on whether the buyer pays the amount due. On the other hand, the buyer is entitled to retain a part of the purchase price that is reasonable in relation to the defect.

10. The buyer shall give us the time and opportunity necessary for the outstanding subsequent performance and in particular, he shall hand over the objected goods for the purpose of examination. In the event of a replacement delivery, the buyer shall hand the defective goods over in accordance with the statutory regulations. Subsequent performance shall neither include the disassembling nor the reassembling of the defective goods, if this was not agreed upon initially.

11. The expenses required in connection with the inspection and the subsequent performance, particularly transport, road, labour and material costs as well as, where appropriate disassembly and assembly, shall be borne resp. reimbursed by us in accordance with statutory regulations, if the product is confirmed defective. Otherwise, we reserve the right to demand the reimbursement of resulting costs from the customer, if his request for remedy is unjustified (particularly inspection and transport costs), unless the missing defectiveness was not recognizable for the buyer.

12. In urgent cases, for instance if operational safety is endangered or in order to prevent disproportionate damage, the buyer shall be entitled to remedy the defect himself and to demand the reimbursement of the expenses objectively necessary for this purpose. We must be informed about such self–remedy immediately, if possible as far as possible in advance. The right to self-remedy does not exist, if we would be entitled to refuse a respective subsequent performance in accordance with the statutory regulations.

13. The buyer shall be entitled to rescind the purchase contract or to reduce the purchase price in the event that the subsequent performance failed or if a reasonable deadline, which will be set by the buyer to allow for the subsequent performance, expired to no avail or can be dispensed with according to the statutory regulations. However, there is no right of rescission in case of an insignificant defect.

14. Claims of the buyer for damages resp. reimbursement of wasted expenses shall, even in case of defects, exist only according to § 9 and are, apart from that, excluded.

§ 9 Other liability, damages

1. We shall be liable in the event of a breach of contractual and non-contractual duties in accordance with the statutory regulations, unless otherwise agreed upon in these general terms and conditions, including the following provisions.

2. We shall be liable for damages – for whatever legal reason – within the limits of fault-based liability in case of wilful intent and gross negligence. In case of simple negligence, we shall, subject to the statutory limitations of liability (such as the diligence we exercise for our own matters; insignificant breach of duty), be liable only

a) for damage resulting from injury to life, body or health,

b) for damage resulting from breach of an essential contractual obligation (meaning an obligation, the fulfilment of which allows for the proper implementation of the contract in the first place and the fulfilment of which is trusted and may be trusted by the contractual partner regularly); in this case, our liability is, however, limited to the reimbursement of predictable and typically occurring damage.

3. The limitations of liability that result from par. 2 shall also apply in case of breaches of duties by resp. in favour of persons, for whose faults we bear responsibility for according to the statutory regulations. They shall not apply, if the defect was maliciously concealed by us or if we assumed a guarantee for the condition of the goods and for claims of the buyer in accordance with Product Liability Law.

4. The buyer shall be entitled to withdraw from or terminate the contract for reason of breach of duty, which does not constitute a defect, if we are responsible for the said breach. The unrestricted right of termination of the buyer is excluded (particularly according to §§ 650, 648 German Civil Code). The statutory preconditions and legal consequences shall be applicable apart from the above.

§ 10 Retention of title, securing of claims

1. We reserve the right of ownership of the goods sold until the full payment of all our current and future claims resulting from the purchase contract and a current business relation (secured claims).

2. Prior to the complete payment of the secured claims, the goods subject to this reservation of title may neither be pledged to third parties, nor assigned by way of security. The buyer shall be obliged to inform us in writing and without delay, if an application has been filed for initiation of insolvency proceedings or insofar as there are any accesses of third parties (e.g. seizures) to the goods being our property.

3. In the event of the buyer’s behaviour contrary to the terms of the contract, particularly in case of non-payment of the due purchase price, we shall be entitled to rescind the contract or/and to demand the handing over of the goods owing to our reservation of title in accordance with the statutory regulations. The reclaiming shall not also constitute the rescission of the contract; rather, we shall be entitled to demand only the return of the goods and reserve the right to rescind of the contract. In case the buyer does not pay the due purchase price, we may only assert these rights after having set the buyer a reasonable period of grace in order to effect the payment, which expired unsuccessfully, or if the setting of such grace period is superfluous according to the provisions of law.

4. Until further notice according to (c) below, the buyer shall be allowed to resell and/or process the goods subject to this reservation of title in the proper course of business. In this case, the following provisions shall apply additionally.
a) The reservation of title includes the products, which are produced by processing, mixing or combining our goods at their full value and with ourselves being deemed the producer. In case the right of ownership of third parties continues to persist upon the processing, mixing or combination with their goods, we shall acquire co-ownership in proportion of the invoice value of the processed, mixed or combined goods. The same shall otherwise apply to this resulting product as to the goods delivered under reservation of title.

b) The buyer hereby assigns his claims against third parties, which result from the resale of the goods or products, in full resp. in the amount of our possible co-ownership in accordance with the paragraph above to us as security. The obligations of the buyer agreed upon under par. 2 shall also apply in consideration of the claims assigned.

c) The buyer shall remain entitled to collect the claim besides ourselves. We undertake not to collect the claim as long as the buyer meets his payment obligations to us, there is no deficiency in his performance capacity and we do not claim the retention of title by exercising a right in accordance with par. 3. Should this, however, be the case, we are entitled to request the buyer to advise us of the assigned receivables and the respective debtors, as well as to provide all the information required for the collection, to hand over the related documents and inform the debtors (third parties) of the assignment. In addition, we shall in this case be entitled to revoke the buyer’s authorization to resell and further process the goods subject to retention of title.

d) In the event that the realizable value of the securities exceeds our claims by more than 10%, we shall be entitled, upon request of the buyer, to select securities to be released.

§ 11 Assignment, severability

1. Assignments of rights and duties of the customer resulting from the contract concluded with us shall require our written consent in order to be effective.

2. In the event that individual provisions of the agreement with the buyer, including the present terms and conditions are or will become ineffective in full or in part, this shall not affect the validity of the remaining provisions. The parties rather consider to have agreed upon a valid provision that can be agreed upon – coming closest to the economic purpose of the invalid provision

§ 12 Information on data processing

In the event that we received your electronic mail address in connection with the purchase of a product or service, we will use this address for direct marketing purposes for own similar products or services. You have, of course, the right to object to such use of your data at any time. In this context, you will incur no other than the transmission costs at your basic tariff. You may submit your objection by mail to TONALITY GmbH, Objection/Widerruf, In der Mark 100, D-56414 Weroth or by email to info@tonality-facades.de.

§ 13 Contractual language, place of jurisdiction, applicable law

1. The agreed contractual language shall be German.

2. The present general terms and conditions as well as the contractual relation between us and the buyer shall be governed by the laws of the Federal Republic of Germany, however, under exclusion of international uniform law, particularly of the UN Sales Convention.

3. In case the buyer is a merchant in the sense of the German Commercial Code, legal entity under public law or a special fund under public law, the exclusive – even international – place of jurisdiction for all disputes arising indirectly or directly in connection with the contractual relationship is our headquarter in Weroth (FRG). The same shall apply, if the buyer is an entrepreneur in the sense of § 14 German Civil Code. We are, however, in all cases also entitled to bring actions at the place of performance of the delivery commitment in accordance with these general terms and conditions resp. an overriding individual agreement, or at the general place of jurisdiction of the buyer. Legal provisions that have precedence, particularly concerning exclusive competences, shall remain unaffected.

Status: April 2020