GENERAL TERMS AND CONDITIONS

I General – Area of Application

Our deliverables and performances will exclusively be performed in accordance with the General Terms and Conditions of Sale specified below. The present General Terms and Conditions of Sale shall only apply vis-à-vis merchants and entrepreneurs in accordance with Section 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB). The present General Terms and Conditions of Sale shall also apply to all future transactions conducted between the contracting parties without any special further reference. They shall also apply if we do not explicitly refer to them in any later agreements, especially also in the event that we render deliverables or performances to the orderer without reservation despite of us being aware of any other terms and conditions of the orderer contradicting or deviating from our General Terms and Conditions of Sale. The General Terms and Conditions of Sale have been communicated to you by means of our forms as well as our e-mail and Internet communications. The area of application of the present Terms and Conditions of Sale shall cover all countries of delivery in which German law is applicable. Its applicability shall hereby already be agreed upon (see also Section III No. 2 of the present Terms and Conditions).

II Offers and Contract Conclusion, Performance Content

  1. Our offers in relation to the orderer shall be non-binding. The order placed by the orderer shall be considered as a binding offer. The acceptance of such offer shall be made, at our choice, within a period of four (4) weeks after sending of an order confirmation or rendering, without reservation, of the deliverables or performances ordered.
  2. The technical data and descriptions in the respective product information sheets or advertising materials shall not constitute any guarantee of quality or durability for the goods to be delivered by us (in the alternative: shall exclusively be applicable agreed qualities. Any guarantees shall not be granted, unless they have been individually agreed upon in the contract).
  3. In the case of sales based on specimens or samples, the latter shall merely define due compliance with a sample and shall not constitute any guarantee of the quality or durability of the goods to be delivered by us.

 

Prices, Payment Terms, Default of Payment

  1. The prices agreed upon at the time of conclusion of the respective contract shall apply, especially the ones specified in the purchase order and/or in the order confirmation. If no price has been explicitly defined, the prices valid at the time when the contract is concluded shall apply in accordance with our price list. For the calculation of the prices, the weights and quantities, containers and two-component goods established by us shall be deemed to have been weighed net; any other goods with a gross weight of 10kg and more, the respective net weight shall be authoritative, unless the orderer contradicts immediately after receipt of the goods. These prices shall be exclusive of the statutory value added tax in the amount applicable on the day of delivery and the cost of packaging required for appropriate shipping, the costs of shipping ex our factory or our warehouse, the haulage cost and, where agreed, the cost of transport insurance. In the case of shipments abroad, additional country-specific fees may apply.
  2. We reserve the right to adjust our prices in an appropriate way where cost adjustments due to collective wage agreements, price increases made by the sub-suppliers or exchange rate fluctuations occur after the conclusion of the contract.
  3. Unless any other term of payment has been agreed upon, our invoices shall become due for payment without deduction five (5) days after receipt. Following the expiry of the due date specified on the invoice, the orderer shall be deemed to be in default in accordance with Section 286 Para. 2 No. 2 of the German Civil Code. The due date shall correspond to the date on which the payment is received and shall not be the payment instruction date.
  4. The orderer shall be entitled to rights of set-off and retention only if the orderer’s counter-claims have been legally established, have not been disputed or have been recognised by us within a period of two (2) weeks from the date on which we become aware of said set-off. Furthermore, the right of retention shall exist only if the asserted counter-claim is based on the same contractual relationship as our claim does.
  5. In the event that the orderer does not pay any invoices due, does not comply with any term of payment granted or if the orderer’s asset situation deteriorates after the conclusion of the contract or if we are provided with any unfavourable information on the orderer after the conclusion of the contract which challenges the orderer’s financial solvency or creditworthiness (as of 2006), we shall be entitled to declare due the entire residual debt of the orderer and, in modification of the agreements made, advance payment effected or security provided or following the successful delivery, demand immediate payment of all those of our claims that are based on the same legal relationship. This shall apply, in particular, if the orderer suspends the orderer’s payments, if any cheque of the orderer is not cashed, if any bill of exchange provided by the orderer is not paid by the orderer, of any insolvency proceedings with regard to the orderer’s assets have been applied for or initiated or if such insolvency proceedings have not been initiated for lack of assets.

 

IV Time of Delivery and Performance, Default of Performance

  1. Agreed delivery periods shall be approximations only, unless any fixed-date transaction has been explicitly agreed upon in writing. Where we fail nevertheless to comply with any delivery periods agreed upon for any circumstances attributable to us, the orderer may withdraw from the contract following fruitless expiry of a reasonable grace period set by the orderer. The withdrawal is to be made in writing.
  2. We shall be deemed to be in default only after expiry of a reasonable grace period set by the orderer. In the case of force majeure and any other unforeseeable and extraordinary circumstances not attributable to us, including but not limited to operational disruptions by fire, water and other circumstances, breakdown of manufacturing systems and machines, non-compliance with delivery periods or non-deliveries on the part of our suppliers, as well as operational interruptions due to any shortage of raw materials, energy or labour, strike, lockout, difficulties in the procurement of means of transport, traffic disruptions, interventions by public authorities, we shall be entitled, to the extent that we are prevented from fulfilling our performance obligations in due time due to the aforementioned circumstances through no fault of our own, to postpone the deliverable and/or performance for the duration of such impediment, plus a reasonable start-up time. In the event that this delays the deliverable or performance by more than one month, both we and the orderer shall be entitled, to the exclusion of any claims for compensation for damages, to withdraw from the contract in writing, subject to the conditions in accordance with Section VIII No. 1 to 6 of the present Terms and Conditions of Sale, with regard to the quantity affected by the disturbance in delivery.
  3. We shall be entitled to partial deliverables and partial performances within the agreed delivery and performance times, provided that this is reasonable for the orderer.
  4. Compliance with our delivery and performance obligations shall imply the timely and proper fulfilment of any obligations of the orderer due to us. The right to plead the non-fulfilment of the contract shall remain reserved to us.

 

V Passing of Risk, Transport and Packaging Costs

  1. Unless explicitly agreed upon otherwise in writing between us and the orderer, the delivery shall be ex our factory or warehouse and shall be picked up by the orderer at the orderer’s own risk and expense. In this case, the risk of accidental loss and accidental deterioration of the contractual objects of delivery shall pass to the orderer upon their readiness for collection once the notification of said readiness for collection has been received by the orderer. Apart from that, the risk of accidental loss and accidental deterioration of the objects of delivery shall pass to the orderer upon handover to the freight carrier (also in the case of any carriage paid delivery or any delivery for which transport insurance has been taken out by us).
  2. Rented containers and rented packaging shall be returned by the orderer, emptied of any residues and carriage paid, within a period of sixty (60) days; any loss of and damage caused to the rented containers and rented packaging shall be to the detriment of the orderer, provided that such loss and/or damage is attributable to the latter. Rented packaging / containers must not be used for any other purposes or for the take-up of any other products. They shall be exclusively intended to transport the goods to be delivered by us. Markings must not be removed. One-way packaging will not be taken back by us. Instead, we will provide the orderer with the name of a third party who accepts the packaging in accordance with the German Packaging Ordinance (Verpackungsverordnung). (Status as of 2006)

 

VI Obligations of the Orderer / Guarantee of Retention of Title

  1. Until full payment of the purchase price and all other present or future claims to which we are entitled vis-à-vis the orderer as a result of the business relationship, the goods delivered shall remain our property. The inclusion of the purchase price claim against the orderer into any current invoice and the acknowledgement of any account balance shall not affect the retention of title.
  2. The orderer shall be obliged to handle the purchased item with good care; the orderer shall be obliged, in particular, to insure such item adequately at the orderer’s own expense at its original value against loss and damage and deterioration, including but not limited to any damage caused by fire, water and theft. The orderer shall already now assign to us the orderer’s claims from the insurance contracts. We shall accept such assignment.
  3. The orderer must neither pledge nor assign as a security those goods that are still our ownership. In accordance with the provisions laid down below, however, the orderer shall be entitled to resell the delivered goods in the ordinary course of business. The aforementioned entitlement shall not exist to the extent that the orderer has assigned or pledged in advance to any third party the claims arising from the resale of the goods against the orderer’s contracting partner, in any case in a legally effective manner, or agreed upon any prohibition of assignment with such third party.
  4. To ensure the fulfilment of our claims mentioned in Section VI No. 1, the orderer shall already now assign to us any and all claims, including also any claims which may arise or be caused in the future, from any resale of the goods delivered by us, with any ancillary rights, in the gross amount of 110% of the value of the goods delivered with priority over the remaining portion of the orderer’s claims. We hereby accept this assignment.
  5. As long as and to the extent that the orderer fulfils the orderer’s payment obligations with respect to us, the orderer shall be authorised to collect the claims assigned to us against the orderer’s customers within the framework of proper business management. The orderer shall not be entitled, however, to agree upon any current account relationship or prohibition of assignment with the orderer’s customers or to assign or pledge them to third parties. If, contrary to Sentence 2, any current account relationship exists between the orderer and the acquirers of our goods subject to retention of title, the claim assigned in advance shall also relate to the acknowledged account balance and, in any case of insolvency on the part of the acquirer, shall also apply to the existing account balance.
  6. At our request, the orderer shall provide us with individual supporting documents for the orderer’s claims assigned to us and shall notify the orderer’s debtors of the successful assignment, requiring them to pay them to us up to the amount of our claims against the orderer. We shall be entitled to likewise notify the orderer’s debtors of the assignment and to collect the claims ourselves at any time. However, we will not make use of such powers as long as the orderer fulfils the orderer’s payment obligations both properly and without delay, the orderer has not filed any application for initiation of insolvency proceedings and the orderer does not suspend the orderer’s payments. If one of the aforementioned cases occurs, however, we may demand that the orderer communicates to us any claims assigned and their debtors, provides us with all necessary information on such debt collection and hands over to us the related documents.
  7. In the event of any pledges or any other interventions by third parties, the orderer shall notify us in writing without undue delay, so that we can bring an action in accordance with Section 771 of the German Code of Civil Procedure (Zivilprozessordnung, ZPO).
  8. The handling and processing or transformation of the goods delivered by us subject to retention of title shall always be performed by the orderer for us, without any liabilities being incurred by us in this respect. In the event that the goods delivered by us subject to retention of title is processed or mixed or combined with any other items, which are not our ownership, we shall acquire joint ownership in the new item in the proportion of the value of the goods delivered by us (final invoice amount including value added tax) to the other items at the time of processing, mixing or combination. Apart from that, the new item created by such processing shall be subject to the same provisions as the purchased item delivered subject to retention of title. In the event that the items are processed, mixed or combined in such a manner that the item of the orderer is to be considered as the main item, it shall be deemed to be agreed upon that the orderer shall transfer to us joint ownership on a pro rata basis. The orderer shall keep the sole ownership or joint ownership created in this way on our behalf. The orderer shall be entitled, within the framework of the course of ordinary business operations, to dispose of the new products created by such handling or processing or transformation or combination or mixing in the ordinary course of business (as of 2006) without any pledging or assignment, as long as the orderer fulfils in due time the orderer’s obligations from the business relationship with us. The orderer shall already now assign to us as a security the orderer’s claims from the sale of such new products, to which we are entitled to rights of ownership, to the extent of our percentage of ownership to the goods sold. If the orderer combines or mixes the goods delivered with any main item, the orderer shall already now assign to us the customer’s claims against the third party up to the amount of the value of our goods. We hereby accept such assignments.
  9. To secure our claims, the orderer shall also assign to us, up to the amount of the value of our goods, those claims that arise against any third party as a consequence of the combination of our goods with any plot of land.
  10. We shall be obligated, at the orderer’s request, to release, at our discretion, the securities to which we are entitled to the extent that the realisable value of our securities exceeds by more than 20% our claims to be secured against the orderer.
  11. To secure our claims, the orderer shall also assign to us, up to the amount of the value of our goods, those claims that arise against any third party as a consequence of the combination of our goods with any plot of land.
  12. We shall be obligated, at the orderer’s request, to release, at our discretion, the securities to which we are entitled to the extent that the realisable value of our securities exceeds by more than 20% our claims to be secured against the orderer.
  13. If the orderer acts in any way contrary to the contractual obligations, especially in the event of any default of payment by more than 10% of the amount invoiced for any not insignificant period of time, we shall be entitled, notwithstanding any further claims (for compensation for damages) to which we are entitled, to withdraw from the contract and to demand surrender of the goods delivered by us. Following the take-back of the goods delivered by us, we shall be authorised to utilise such goods. The proceeds from any such utilisation shall be set off against the existing liabilities of the orderer against us, minus reasonable utilisation costs.

 

VII Rights of the Orderer in Case of Defects

  1. Obvious material defects, incorrect deliveries and deviations in quantity shall be notified to us by the orderer in writing without undue delay, at the latest, however, seven (7) days after receipt of the goods by the orderer, specifying the respective production and/or batch number. Any complaints shall not entitle the customer / distribution partner to make any invoice deduction. The purchaser shall be obliged to verify by means of a sample processing whether the goods delivered are free of defects and are suitable for their intended use. The same shall also apply if the goods have been mixed with any components not purchased from us. In the event that any defects, if applicable, are detected only within the course of processing, the work shall be discontinued without undue delay and any unopened original containers not yet processed shall be backed up. They shall be made available to us for testing at our request. Three (3) months after the risk has passed to the orderer in accordance with Section V No. 1, any notifications with respect to hidden defects shall be excluded and shall be deemed to be submitted late to the extent that they should have been reasonably observable. In the event of any notification of defects asserted late or not in a proper manner in accordance with Section VII No. 1 Sentences 1 to 7, the orderer shall lose the orderer’s rights arising from product defects under the conditions of Section VIII No. 1 to 6 of the present Terms and Conditions of Sale, unless the defect has been maliciously concealed by us.
  2. In the case of any defects in the goods delivered by us, we shall only be obliged, at our discretion, to perform subsequent improvement or to deliver goods free of defects (subsequent performance). In the event that we are not willing or unable to render subsequent performance, especially if such subsequent performance is delayed beyond any reasonable time limits attributable to us, or if such subsequent performance fails in any other manner whatsoever, the orderer shall be entitled, at the orderer’s discretion, to withdraw from the contract.

VIII Rights and Obligations of Our Company

  1. Any liability of our company for any damage or futile expenditure for any legal reason whatsoever shall take effect only if such damage or futile expenditure
    a) has been caused by us or by one of our auxiliary agents due to any culpable violation of any fundamental contractual duty; or
    b) is attributable to any grossly negligent or intentional breach of duty caused by us or by one of our auxiliary agents.
    (Status as of 2006)
    In accordance with Section VIII No. 1(a) and (b), we shall be liable for any damage or futile expenditure caused by us due to any consultation or information not to be charged separately only in the event of any intentional or grossly negligent breach of duties, unless such breach of duty constitutes a material defect in accordance with Section 434 of the German Civil Code in the goods delivered by us.
  2. If we are liable for any violation of any fundamental contractual duty in accordance with Section VIII No. 1(a) without the existence of gross negligence or intent, our liability for compensation for damages shall be limited to the foreseeable, typically occurring damage. In this case, we shall especially not be liable for any loss of profit on the part of the orderer and for any not foreseeable indirect consequential damage. The limitations of liability above in accordance with Sentences 1 and 2 shall apply equally to any damage caused by our employees or agents due to gross negligence or intent. We shall not be liable for any indirect damage of the orderer which is caused due to the assertion of any contractual penalty claims of third parties.
  3. The limitations of liability mentioned in Section VIII No. 1 to 3 above shall not apply to the extent that our liability based on the provisions of the German Product Liability Act (Produkthaftungsgesetz) is mandatory or if any claims arising from any violation of life, body or health are asserted against us. In the event that the goods delivered by us are lacking any guaranteed property, we shall only be liable for such damage, the absence of which has been the subject-matter of such guarantee.
  4. Eine weitergehende Haftung auf Schadensersatz als in Abschnitt VIII Nr. 1 bis 4 vorgesehen, ist ohne Rücksicht auf die Rechtsnatur des geltend gemachten Anspruches – ausgeschlossen. Dies gilt insbesondere auch für Schadensersatzansprüche aus Verschulden bei Vertragsabschluss gemäß §311 Abs. 38GB, positiver Vertragsverletzung gemäß §280 BGB oder wegen deliktischer Ansprüche gemäß §823 8GB.
  5. Any further liability for compensation for damages other than the one provided for in Section VIII No. 1 to 4 shall be excluded, without regard to the legal nature of the claim asserted. The same shall especially also apply to any claims for compensation for damages from faults arising during the conclusion of the contract (culpa in contrahendo) in accordance with Section 311 Para. 38 of the German Civil Code, positive infringement of the contract in accordance with Section 280 of the German Civil Code or based on tortious claims in accordance with Section 823 of the German Civil Code.
  6. To the extent that such liability for compensation for damages is excluded or limited in accordance with Section VIII No. 1 to 5, the same shall also apply with regard to the personal liability for compensation for damages on the part of our staff, employees, co-workers, representatives and auxiliary agents as well as vicarious agents.

 

IX Period of Limitation of Claims

  1. Any claims of the orderer based on defects in the goods delivered by us or based on any performances rendered by us contrary to our duties, including any claims for compensation for damages and claims for compensation for futile expenditure, shall become time-barred within a period of one (1) year from the start of the statutory period of limitation, unless provided for otherwise in Section IX No. 2 to 5 below.
  2. In the event that the orderer is an entrepreneur and if the orderer or any other purchaser in the supply chain has fulfilled any claims of any consumer as an entrepreneur due to any defects in the newly manufactured items delivered by us which have also been delivered to the consumer as newly manufactured items, the period of limitation for any claims of the orderer against us from Section 437 and Section 478 Para. 2 of the German Civil Code shall become effective at the earliest two (2) months after the point in time when the orderer or the other purchaser in the supply chain has fulfilled the claims of the consumer as an entrepreneur, unless the orderer could have made successful recourse to the orderer’s right to plead the defence of the statute of limitations towards the orderer’s customer contract partner. The statute of limitations with respect to the claims of the orderer against us based on any defective goods delivered by us shall become effective in any case to the extent that the claims of the orderer’s customer contract partner which are based on defects in the goods delivered by us to the orderer and are asserted against the orderer have become time-barred, at the latest, however, one (1) year after the point in time when we have successfully delivered the respective goods to our orderer.

 

X Take-Backs – Complaints

Any take-back of the non-defective goods delivered by us shall be excluded. If we exceptionally agree to take back any goods free of defects, any credit memo shall be granted only to the extent that our laboratory determines the unlimited reusability of such goods. For the costs of examination, processing, transformation and repackaging, the actual costs, at least 20% of the amount invoiced or at least € 30, shall be deducted. Any such credit memo shall not be paid out, but shall only be set off against any future deliverables. Any complaints regarding our products (especially VARIOSTONE) shall always be submitted “in writing”, specifying the production and/or batch number. Only in this way can any processing by the supplier take place. Any complaints on the part of the customer shall not entitle the distribution partner to make any invoice deduction.

XI Prohibition of Assignment

Any rights and/or claims against us, especially those based on defects in the goods delivered by us or based on any breaches of duties committed by us, must not be transferred to third parties or pledged to third parties, either in whole or in part, without our explicit written approval; Section 354a of the German Commercial Code (Handelsgesetzbuch, HGB) shall remain unaffected in this respect.

XII Place of Fulfilment, Place of Jurisdiction, Applicable Law, Commercial Terms

  1. The place of fulfilment and the exclusive place of jurisdiction for all claims arising between us and merchants or legal entities under public law or special funds under public law shall be Oldenburg/Oldb, Germany, unless mandatory legal provisions stipulate otherwise. We shall have the right, however, to also bring an action against the orderer before the courts in the orderer’s legal place of jurisdiction.
  2. The legal relationship between us and the orderer shall exclusively be subject to the laws of the Federal Republic of Germany in the form applicable between German merchants and effectively agreed upon in the respective countries of delivery (see Section I of the present Terms and Conditions of Sale). The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG – Vienna Sales Convention) and of German private international law shall be explicitly excluded.
  3. To the extent that any commercial terms in accordance with the International Commercial Terms (INCOTERMS) have been agreed upon, the INCOTERMS in their respective latest version shall apply (currently INCOTERMS 2000).

 

XIII Final Provisions

  1. n the case that individual provisions of the ones specified above turn out to be ineffective, partially ineffective or excluded by any special agreement, this shall not affect the effectiveness of the remaining provisions.
  2. We will store data of our orderers within the framework of our mutual business relationships in accordance with the German Federal Data Protection Act (Bundesdatenschutzgesetz).

 

Stone Steinveredelung GmbH
Bertha – Benz – Str. 20
26160 Bad Zwischenahn
Germany
Tel. +49 (0)4403 I 949074
Fax +49 (0)4403 I 949073
e.mail:info@stone2000.de
www.stone2000.de

Status as of: 2010/2011