General Terms and Conditions

General Terms and Conditions (Terms of Sale), as of November 2020

§ 1 General Scope

These general terms and conditions apply only to customers who are entrepreneurs within the meaning of Paragraph 14 of the BGB or legal persons governed by public law (hereinafter: ‘Cus-tomer’ or ‘Buyer’). They form part of all offers and contracts for supplies and services of Etex Building Performance GmbH (hereinafter ‘Seller’), in particular the sale of movable goods (herein-after ‘goods’).
The Seller reserves the right to change these General Terms and Conditions at any time.
These General Terms and Conditions shall apply exclusively. Conflicting or deviating conditions of the Buyer shall not be recognized by the Seller unless their validity has been expressly agreed in writing by the Seller. These General Terms and Conditions shall also apply if the Seller, aware of conflicting terms and conditions of the Buyer or conditions deviating from these General Terms and Conditions, executes the delivery to the Buyer without reservation.

§ 2 Offers, Subject Matter of Contract, Conclusion of Contract

Offers of the Seller are subject to change until the conclusion of the contract. Employees or co-workers of the Seller are not authorized to make oral agreements or to give oral statements that go beyond the content of the written contract.
The Buyer’s order based on the offer shall be regarded as a binding offer.
In principle, only the product description in catalogues, brochures on the homepage of the Seller in the current version is considered to be the agreed quality of the goods. Public statements, promo-tions and/or advertising do not constitute guarantees of quality or durability of the goods in ac-cordance with the contract. The above descriptions of the nature of the goods and/or other decla-rations pertaining to the goods are not to be understood as a guarantee. The Buyer can only rely on a guarantee if it is declared as a guarantee in writing and expressly, and is provided by the Sell-er.
Samples and specimens shall be considered as non-binding demonstration pieces, unless other agreements have been made. Minor deviations from the Seller’s offer and/or samples in terms of size, quality, weight and color remain reserved.
If the goods are ordered by electronic means, the receipt of the order is immediately confirmed electronically by the Seller to the Buyer. This confirmation on its own does not constitute a binding acceptance of the order; the order is made binding only when confirmed in writing.
The Seller shall give application-technical advice, instructions for use and/or recommendations to the best of his knowledge and on the basis of experience in practice. This information is provided without obligation and does not exempt the Buyer from his own tests and trials regarding the suit-ability of the goods for the intended purposes. Section 10 shall apply accordingly.

§ 3 Delivery and Transfer or Risk, Delivery Dates, Take-Back and Transport

3.1 Delivery and Transfer of Risk

(Deliver is made – subject to deviating written agreement prior to the delivery of the goods – FCA (Incoterms 2020) at the Seller’s premises or a terminal warehouse designated by the Seller.
Partial deliveries are permissible to a reasonable extent. As a general principle, these are to be regarded as independent business transactions.
If the goods are delivered to the Buyer at his request, the risk of accidental loss and acci-dental deterioration of the goods shall pass to the Buyer upon delivery to the carri-er/forwarder; this shall also apply in the case of partial deliveries and/or collection by the Customer.
The person signing the delivery note on the Buyer’s behalf shall be deemed authorized by the Buyer to receive the goods.
An agreed delivery is made at the expense and risk of the Buyer. In the case of delivery, the Buyer shall ensure the navigability of the unloading point with heavy goods vehicles and suitable unloading possibilities. The Buyer shall be liable for damages which arise if these conditions are missing. The Buyer is also liable for damages that arise if the delivery vehicle is not immediately and/or not properly unloaded due to reasons for which he is re-sponsible.
Disturbances in the Seller’s or their pre-suppliers’ business operations as well as business interruptions due to force majeure, like, in particular, natural catastrophes, shortages of raw materials and/or energy, industrial dispute, lockout, mobilization, war or terrorist at-tacks, blockades, bans on ex- and imports, traffic disturbances, attacks by hackers, epi-demics / pandemics, lack of transport space and/or other public interventions based on an event, which by human judgement and experience is unforeseeable, not due to the Seller’s fault, and not avoidable even with utmost care, extend the delivery times accordingly and release the Seller of the delivery obligation for the duration of the effect of such disturb-ances. The Seller is entitled to determine an appropriate new delivery period. If these dis-turbances lead to impossibility of fulfilment, the Seller may withdraw from the contract af-ter he has informed the Buyer without delay of the impossibility to deliver. In this case, the Seller shall immediately reimburse the Buyer for any consideration already rendered.

The aforementioned shall also apply if time-related delays are caused by the fact that the Seller or his subcontractors – under the aspect of due prudence – do not deploy any em-ployees on the basis of imminent danger if vital interests (risk of disease or infection, or other dangers to life and limb) or if public safety and order are or could be affected due to concrete evidence.

3.2 Delivery Dates

Binding delivery dates require the express agreement and written confirmation of the Sell-er. Compliance with the delivery and performance obligations presupposes the proper ful-filment of the Buyer’s obligations. Delivery deadlines shall apply subject to proper and timely supply of the Seller by its own suppliers (self-delivery) and are postponed in accord-ance with the delay in self-delivery, unless the Seller is responsible for the incorrect or not timely self-delivery or has expressly and in writing agreed to binding delivery deadlines.
If the Buyer is in default of acceptance, the Seller is entitled to demand compensation for the damage incurred. The Seller reserves the right to further claims. If compensation is demanded in accordance with Section 281 BGB (German Civil Code) instead of perfor-mance, the Seller is entitled to claim 20 % of the sales price as compensation, irrespective of the possibility of claiming higher damages. The Buyer remains free to prove that the ac-tual damage has not occurred or is significantly lower than the lump sum mentioned above.

3.3 Return of Goods

The return of delivered defect-free standard goods is excluded. If, exceptionally, the Seller agrees to the return of defect-free goods, a credit note shall only be issued if the unrestricted reusability of the goods is established by the Seller. For the costs of processing, rework and/or new packaging, 20 % of the invoice amount, however, a maximum of EUR 200,00 shall be de-ducted. Freight costs incurred shall be charged to the Buyer.

3.4 Transportation

Should damages in transit have occurred, the complaints of the Buyer must be brought forward directly to the carrier with a copy to the Seller within the time limits set for this purpose.
Unless otherwise agreed in individual cases, the Buyer shall be responsible for compliance with statutory and official regulations concerning import, transport, storage and use of the goods.
1. Special features for the business unit Promat:
  Details of the transport are given from the price list in its respectively valid version.
2. Special features for the business unit Siniat:
  If the goods are shipped on exchangeable pallets, they will be charged and will only be reimbursed in an undamaged state by an appropriate credit note. An examina-tion of the suitability of the pallets takes place in the plants of the Seller.

§ 4 Prices

(1) The prices agreed upon conclusion of the contract, in particular those stated in the order form or the order confirmation, respectively, are considered to be authoritative. If no written agreement on the price has been made, the list price valid at the time of conclusion of the contract shall apply.
1. Business unit Promat:
  Delivery is effected FCA Seller’s plant / warehouse (Incoterms 2020). However, in principle, the Seller is free to offer and agree on CPT Destination (Incoterms 2020) for certain products and/or certain order values.
2. Business unit Siniat:
  Prices apply domestically (excluding islands) CPT (Incoterms 2020) Destination (building site or warehouse). Full truckloads with a load weight of at least 24 tons are always taken as a basis (sometimes less for crane vehicles due to their design). CPT Destination (Incoterms 2020) means delivery without unloading; the cost of unloading shall be borne by the consignee.
Offer prices shall only be considered fixed prices if the Seller agrees in writing.
The prices are expressed in euros and in each case plus the statutory VAT.
Price lists, catalog prices and/or prices shown on the internet are subject to change. Fixed price agreements generally require the prior written agreement between the contracting parties.
If cost increases occur between the conclusion of the contract and the delivery of the goods, in particular, costs for energy and/or personnel the extent of which was unforeseeable and which make it appear not justified to adhere to the agreed price, the price valid at the time of delivery shall apply.
Special features for the business unit Siniat:
1. In addition, the logistics and delivery conditions contained in the current price list apply.
2. If, at the Buyer’s request, packaging is different from the standard or if the goods are shipped on square timber constructions or reusable pallets specially marked as such, this will be billed separately according to the respectively valid price list. The Buyer may return reusable pallets which he has received by purchase of goods in good condition and carriage paid for by the Seller against a credit note provided for this purpose in accordance with the price list; this, however, can only be done until the seller-recorded balance is paid at the time of return (de-liveries/returns). In determining the balance, only deliveries within the last 12 months shall be taken into account. If we collect undamaged pallets from the Buyer, the Buyer bears the costs for board pallets according to our currently valid price list.
3. In the case of self-collection, a reimbursement of freight costs is made in accordance with the Seller’s respective refund conditions, which are sent to the Buyer upon request. Packaging material is not taken into account when determining the freight weight – reimbursement of freight costs is made exclusively for the weight of the goods.
4. Other loading aids, e.g. safety harnesses, load-securing angles, anti-slide pads, etc. remain the property of the Seller and must be returned carriage paid, unless they have been pur-chased separately from the Seller or the freight forwarder commissioned by the Seller. If the return is not made within one month of delivery, the Seller reserves the right to purchase the corresponding loading aid with the same features at the current daily price and to charge the associated costs to the Buyer.

§ 5 Payment Conditions

Unless another payment date has been agreed, the invoices issued by the Seller are to be paid without deduction 30 days after the invoice date.
Cash discount payment requires special written agreement. It may be calculated on the basis of the net value of the goods only after deduction of rebate and freight, etc. The granting of a cash discount has the prerequisite that otherwise there are no open items on the Customer’s account.
If a SEPA direct debit mandate is agreed upon, the Seller is authorized to collect payments from the Buyer’s account by direct debit. The Buyer instructs his credit institution to honor direct debits drawn by the Seller. The direct debit shall be withdrawn at the due date. If the due date falls on a non-bank working day, the collection takes place on the next bank working day. The Buyer will be informed of the withdrawal at least one bank working day prior to the withdrawal (pre-notification). The Buyer assures to ensure sufficient funds in the account. A reverse booking in ac-cordance with Section 675x BGB is not possible. Costs arising from non-redemption or reversal of the direct debit shall be borne by the Customer as long as the non-redemption or the reverse book-ing has not been caused by the Seller.
If it becomes apparent after conclusion of the contract that a claim of the Seller is jeopardized due to the lack of performance of the Buyer (e.g. doubts regarding the Buyer’s creditworthiness), the Seller is entitled to carry out further deliveries only against advance payment, to declare all out-standing – including deferred – receivables due immediately and to demand immediate cash pay-ment or security payment, even for bills of exchange accepted.
Invoices issued by the Seller shall be deemed to be accepted unless they are rejected in writing within 30 days of the invoice date.
Non-payment of the purchase price in the event of maturity constitutes a breach of essential con-tractual obligations.
Cheques or bills of exchange are accepted only by prior written agreement and only for fulfilment. Discounts, expenses and costs are to be borne by the Buyer.
The Buyer can only offset against undisputed counterclaims recognized by the Seller or legally es-tablished.
The Buyer can only assert a right of retention if it is based on the same contractual relationship.
Bonus, discount and/or other service agreements in favor of the Buyer or third parties shall be dissolving, conditional in the event of no or incomplete payments due to the Seller, regardless of the reason for non-payment on the part of the Buyer. In the event of payment arrears of any kind, the set-off of claims of the Seller against claims of the Buyer arising from bonus, discount and/or other service agreements is already determined now.
Details of the price conditions can be obtained from the price lists in their respectively valid ver-sion. In the event of deviations in prices and price conditions between the General Terms and Con-ditions and the price lists, the price lists shall have precedence over the provisions of the General Terms and Conditions.

§ 6 Retention of Title

The delivered goods remain the property of the Seller (reservation of ownership) until full payment of all receivables arising from the respectively underlying sales contract has been made.
This retention of title covers all claims arising from the business relationship with the Buyer includ-ing ancillary costs.
The Buyer is obliged to always treat the delivered goods with care and to insure them adequately at their original value against fire, water and theft damages at its own expense.
In the event of non-contractual conduct of the Buyer, in particular in the event of late payment, the Seller shall be entitled to take back the goods supplied at the Buyer’s expense. Taking back the goods does not constitute the withdrawal from the contract, unless the Seller would have express-ly declared said withdrawal in writing.
The handling or processing of the purchased goods by the Buyer shall always be taken over on behalf of the Seller. If the purchased item is processed with other items not belonging to the Seller, the Seller acquires co-ownership of the new item in proportion of the value of the purchased item to the other processed items at the time of processing (final invoice amount including VAT).
If the purchased item is inseparably mixed with other items not belonging to the Sell-er, the Seller acquires co-ownership of the new item in proportion of the value of the purchased item (final invoice amount including VAT) to the other mixed items at the time of mixing. If the mixing occurs in such a way that the goods of the Buyer are to be regarded as the main item, it is deemed to be agreed that the Buyer transfers the proportional co-ownership to the Seller. The same applies in the case of connection.
The Buyer is entitled and authorized to sell the purchased goods in the ordinary course of business. However, the Buyer already now assigns to the Seller all claims amounting to the final invoice amount (including sales tax) arising from the resale against his customers or third parties, irrespec-tive of whether the purchased item has been resold without or after processing, joining or mixing.
The Buyer remains entitled to collect the claims assigned to the Seller himself. However, in the event of the Buyer’s default in payment, the Seller is entitled to revoke the rights granted to him with regard to the claims assigned to the Seller. In this case, the Buyer shall provide him with the information required to assert the claims assigned to him. The assignment of the claims arising from the sale of the reserved goods to third parties is only permitted to the extent that it is carried out for the purpose of collecting receivables (factoring).
The Buyer has to prove to the Seller his claims assigned to these assigned claims individually and to inform its own debtors of the assignment. In the announcement, the Buyer shall request his debt-ors to pay to the Seller up to the amount of the Seller’s claims against the Buyer. Notwithstanding this, the Seller reserves the right to notify the Buyer’s debtors of the assignment at any time and to collect the claims. However, the Seller undertakes to make use of these powers only if the pur-chaser fails to fulfil his payment obligations properly, an application has been made for the open-ing of insolvency proceedings by the Buyer and the Buyer ceases its payments. If and as soon as one of the aforementioned cases occurs, the Buyer shall provide the Seller with all information necessary for the collection of claims and hand over the associated documents.
If the realizable value of the realizable collateral granted to the Seller by the Buyer exceeds his claims by more than 20 %, the Seller shall, upon request, be obliged to release the securities to an appropriate extent. The Seller is responsible for selecting the securities to be released.

§ 7 Notification of Defects, Claims for Defects and Liability

The legal provisions shall apply for claims for defects in so far as not otherwise stipulated in the contract or these General Terms and Conditions.
The Buyer shall be responsible for examining the goods delivered immediately after receipt. Not-withstanding the provisions of Section 438 HGB (German Commercial Code), obvious deficiencies and/or incorrect deliveries, deviations in numbers of units and/or wrong deliveries in commercial transactions are to be notified in writing within five working days at the latest. In the absence of timely notification, rights arising from defects are excluded. The Seller shall be given the oppor-tunity to jointly determine the notified complaints and to be present when samples are taken for materials testing.
Commercial tolerances with regard to dimensions, weight, etc. shall not constitute a defect.
Minor changes to the surface of the purchased product, as well as other variations in their appear-ance (minor irregularities, deformations, discoloration) which would not negatively affect the usa-bility of the product, are not to be considered as contrary to contract. The same applies to the commercial breakage. Age- or weather-related wear is not a material defect.
If a defect of the goods exists, the Seller is entitled, at his own discretion, to provide rectification in the form of repair or by supplying a new product free from defects. In the event of rectification, the Seller must bear all necessary costs of rectification, in particular, the costs of transport, car-riage, labor and materials. In the case of rectification, the Seller shall bear the necessary costs only up to the amount of the purchase price. In case the rectification fails, the Buyer shall be entitled, at his discretion, to demand withdrawal from contract or a reduction of price.
In accordance with the statutory provisions and provided that the Buyer asserts claims for damag-es, the Seller shall be held liable for damages based on intention or gross negligence, including those based on intention or gross negligence of the Seller’s representatives or agents.
Where the Seller and/or his agents do not intentionally or grossly negligent breach contractual obligations, the liability for damages shall be limited to the foreseeable, typically occurring dam-age.
The liability for any culpable injury to life, body and health shall remain unaffected. This also ap-plies to the mandatory liability according to the product liability law.
Claims for defects against the Seller can only be asserted by the Buyer and are non-transferable without the Seller’s explicit written consent.
The exclusion or limitation of the Seller’s liability also applies as regards the personal liability for damages of employees, workers, staff, representatives and performing as well as vicarious agents of the Seller.
The Seller shall not be held liable despite diligent examination whether, and to what extent, the Buyer, end customers and/or the sold goods are subject to export con-trols, embargoes and other export restrictions. In that regard, the Buyer shall be sole-ly liable. Unlimited exportability of the goods, neither in their sold and delivered nor in their processed state, does not constitute a contractual quality.

§ 8 Compensatio for Damages and Withdrawal from Contract

Without this limitation, including for (simple) negligence on the part of the Seller, his legal repre-sentatives or/and his agents, the Seller shall be liable for damages resulting from the injury to life, body or health.
In addition to paragraph 1, the Seller shall also be liable for (simple) negligence in breach of essen-tial contractual obligations by him, his legal representatives or/and his agents; in such cases, how-ever, liability shall not extend to damage which is not typical of the contract and cannot be fore-seen.
Claims for damages for impossibility or incapacity shall remain unaffected. The same applies in so far as liability is mandatory under the provisions of the Product Liability Act.
The Buyer’s right of withdrawal, which is not based on a defect in the goods sold, is excluded in so far as it is based on a breach of obligations not attributable to the Seller.

§ 9 Limitation of Claims

(Unless otherwise provided below, the parties’ reciprocal claims shall be time-barred in accordance with the provisions of law.
By way of derogation from Section 438(1)(3) BGB, the general limitation period for claims arising from defects in fact and in law by the Buyer against the Seller shall be one year from delivery. Where acceptance is agreed, the limitation period begins with acceptance.
The limitation period in the case of claims under Section 445b BGB remains unaffected.
In the case of newly manufactured goods supplied by the Seller which, in accordance with their usual method of use, have been used for a building and have caused its inadequacy, the Buyer’s claims shall be time-barred within five years from the date on which the statutory limitation period begins. By way of derogation from the preceding sentence, a limitation period of four years shall apply in so far as the Buyer has used the goods supplied by the Seller for the performance of con-tracts which are included in Part B of the German Construction Contract Procedures (VOB) as a whole or two years in so far as only materials related to the repair of buildings are concerned. The limitation period referred to in the preceding sentence shall apply no earlier than two months from the date on which the Buyer has satisfied the claims against the other party to the contract in re-spect of the defective nature of the building caused by the goods delivered by the Seller, unless the Buyer could have successfully established against his customer/contractor the objection of limita-tion. In any event, the limitation period for the Buyer’s claims against the Seller for defective goods delivered by the latter shall begin as soon as the claims of the Buyer’s partner/contractor against the Buyer for defects in the goods delivered by the Seller to the Buyer are time-barred, but no later than five years after the Seller has delivered the goods to the Buyer.
The above limitation periods do not apply to claims for injury to life, body or health, nor to the limitation period for claims under the Product Liability Act.

§ 10 Copyright and Trademark Rights, Technical Information and Consulting Services

The Seller reserves all copyright demands with respect to (technical) documents provided by the Seller, such as illustrations, drawings, design proposals and other documents. The sale of the Sell-er’s goods is permitted only under the protected trademarks existing for that purpose. In the event of a breach, the Buyer shall be liable. In the event that a contract is not concluded, the services provided in that respect shall be adequately remunerated to the Seller in the event of use by the Buyer.
The Seller shall, to the best of his knowledge, provide technical information and design proposals as part of his after-sales service, taking into account the applicable construction legislation and the rules of architecture. The Buyer shall himself assess the suitability of the purchased goods and pro-posed execution for the intended use. The Seller shall be entitled to changing the technical data of the purchased goods order at any time, in so far as this is reasonable to the Buyer; the Seller shall inform the Buyer accordingly. Liability for this is excluded wherever legally possible.

§ 11 Safety Data Sheets and Declaration of Performance

If Regulations (EC) No 1907/2006 (REACH Regulation) and/or (EC) No 305/2011 (EU Construction Prod-ucts Regulation), as amended, apply to the product supplied in their respectively valid version, the Buyer agrees to contact the company in order to obtain the safety sheets. He also agrees that the declara-tions of performance are available for consultation and download at www.promat-ce.eu or www.siniat.de/de/siniathek/downloadbereich, respectively.

§ 12 Confidentiality

The contracting parties are obliged to keep confidential any confidential information, business and trade secrets, as well as commercial and technical details, in particular, to not disclose them to third parties, or use them for other than contractually agreed purposes. Compliance with the Buy-er’s legal obligations shall remain unaffected by this. Also unaffected remains the obligation to confidential handling of business and trade secrets obtained on the basis of the respective order.
Confidential information is information that an informed third party would consider to be worthy of protection, or that is marked as confidential. This applies regardless of whether the other party to the contract obtains the confidential information in written, oral, objective form or by means of notification(s), visit(s), presentation(s) or otherwise. Confidential information may exclusively be used for the purpose of meeting the obligations resulting from the contract.
The confidentiality obligation does not apply to information if (a) at the time of its disclosure by one party, its employees or consultants the information was demonstrably known to them or to the public, (b) after its disclosure by one party to the other it becomes known and this is not based directly or indirectly on the behavior of the other partner to the contract, (c) the parties are legally or officially obliged to disclose it if such an obligation is communicated in writing before its disclo-sure, or (d) this information is independently developed by an employee of the contract partner, who had no access to the confidential information.
Formulas, drawings, models, templates, samples and similar objects or data of any kind may not be provided or otherwise made available to unauthorized third parties. The reproduction of such ob-jects is only permitted within the scope of operational requirements and copyright regulations. The receiving contract party may in particular not examine the aforementioned objects as regards their composition and/or production, neither chemically nor otherwise.
The Buyer is entitled to pass on confidential information only to such subcontractors, whose commission the Seller has explicitly agreed to if and as far as this confidential information is re-quired for the fulfilment of the respective service of the subcontractor. This only applies if the subcontractor has previously agreed to the same scope of confidentiality as the Buyer vis-à-vis the Seller. In the process, it must be excluded that the confidential information is passed on by the subcontractor; unless the Seller has not given explicit prior consent to the disclosure in each case.
The contracting parties may only use their business relation for advertising purposes with prior written consent.

§ 13 Data Protection

The contracting parties commit to comply with and implement the provisions of the German Fed-eral Data Protection Act (Bundesdatenschutzgesetz – BDSG) or the EU’s General Data Protection Regulation (GDPR).
If personal data are processed, the Seller will, at the Buyer’s request, conclude an agreement for order processing that is in compliance with statutory provisions.
The Seller commits to process personal data exclusively for the purpose of contract fulfilment. Personal data are shared within the ETEX Group. A transfer of data beyond this to third parties does not take place, provided that a respective legal obligation for this does not exist on the Sell-er’s part or a disclosure is required for the performance of the contractual relationship.
The Seller shall make sure that all persons entrusted with the processing or fulfilment of the con-tract comply with the legal provisions of data protection. The obligation to data secrecy required according to the data protection law is to be made sure before such persons initially commence their activity and to be proven to the Buyer at his request.
The Seller is liable vis-à-vis the Buyer for damages resulting from data protection breaches that are caused through slight or gross negligence of the Seller, his employees or persons entrusted with performing the contract, including the subcontractors.
The Seller is relieved from liability if it can be proven that the Seller is by no means responsible for the circumstances that have caused the damage. Should the Seller be forced to pay compensation to the party concerned, the Seller reserves the right to claim damages vis-á-vis the Buyer. The claim for compensation refers to all losses incurred by the Seller through a breach of the data pro-tection regulations and caused by the Buyer or one of his subcontractors.
The Seller commits to provide all information required by the Buyer’s data protection officer at his request, and to hand over requested documents concerning data protection.

§ 14 Place of Performance, Jurisdiction, Applicable Law

Unless otherwise provided for in the contract, the place of performance shall be the place of de-livery (plant, distribution warehouse or delivery warehouse).
Where the conditions laid down in Section 38(1) of the Code of Civil Procedure are met, the place of business of the Seller shall be the competent court for any dispute arising under or in connection with the contract, including cheques and bills of exchange.
All legal relationships arising for the parties under the Agreement shall be governed by the law of the Federal Republic of Germany, without recourse to the UN Sales Convention.
To the extent that trading clauses are agreed upon in accordance with the International Commer-cial Terms (Incoterms), the Incoterms shall apply in their respectively latest version.
Should some of the above provisions be ineffective, partially ineffective or excluded by special agreement, this shall not affect the validity of the other provisions.
Stand November 2020