Terms and Conditions of Business and Delivery

Version: March 2021

1. Validity of the Terms
1.1. These Terms apply exclusively to business relationships with entrepreneurs within the meaning of Section 14 Civil Code, legal persons under public law and special funds under public law. They do not apply to contracts with consumers within the meaning of Section 13 Civil Code.

1.2. Our deliveries and services, including consultancy, are carried out on the basis of these Terms unless otherwise agreed. They also always apply to our future deliveries and services to customers.

1.3. Customer terms which contradict or deviate from our Terms are not recognised by us unless we have expressly accepted their validity. Our Terms also apply in the event that we carry out the delivery or service without reservation with knowledge of customer terms which contradict or deviate from our Terms.

2. Quote and contract conclusion
2.1. Unless otherwise expressly agreed, our quotes are non-binding.
Contracts, as well as amendments and additions thereto, are only deemed to have entered into force in the event of our written confirmation or in the event our delivery/service has been carried out without reservation.

2.2. Details of our products and services online, in brochures or on price lists do not constitute a binding quote by us.

3. Prices
3.1. The agreed prices shall apply. Otherwise, calculation shall take place in accordance with our respective valid price lists on the delivery/service date. The factors specified on the conclusion of the contract form the basis of our prices (e. g.: collective agreements, raw material or energy costs, costs for auxiliary and operating materials). In the event of an increase in the pricing factors which cannot be compensated by cost savings, we reserve the right to make a corresponding price correction for deliveries which take place at least 2 months after the conclusion of the contract. The amount of the price correction must be justified by the change in the pricing factors and the customer must be notified of this within an appropriate period of time. Insofar as set prices were agreed, this is only applicable in the event the changes which occurred were not foreseeable after the conclusion of the contract.

3.2. All prices are plus the respective valid value added tax and, unless otherwise agreed, are ex works.

3.3. If the delivery is free or to a construction site, the price includes the delivery in vehicles of our choice and unloading at just one location. We are entitled to pass on increases in freight costs to the customer. The delivery of minimum quantities, the use of thermal or other special vehicles and/or the unloading of partial quantities at various locations requite separate contractual agreement and must be remunerated additionally by the customer. Costs for waiting/unloading times of max. 60 minutes are included in the agreed price. Waiting times which exceed this are invoiced separately to the customer.

3.4. If the delivery takes place on pallets, the customer undertakes to hand over to the deliverer of the goods empty pallets in the same quantity, nature and quality in a reusable condition. A receipt for the pallet handover is to be provided by the deliverer on the delivery documents. Pallets which are not exchanged will be invoiced to the customer.

4. Weight and quantity determination
4.1. We invoice on the basis of the weight established at our delivery site.

4.2. In the event of sales by the number of items, cubic metres, square metres or running metres, the quantity determined on loading shall be decisive for invoicing.

5. Delivery / service / transfer of risk
5.1. Unless otherwise agreed, our delivery takes place ex delivery site/warehouse. The risk is transferred to the customer once the delivery is handed over to the individually carrying out the transport. In the event the shipment is made impossible or delayed and this is not our fault, the risk is transferred to the customer at the point in time of reporting of readiness for shipment.

5.2. In the event of free delivery to the buyer’s address/building site, the unloading location must be easily accessible for the vehicles. If access to the unloading location is not possible or reasonable for any reason, unloading shall take place at a location which the vehicle can access without any issues.

5.3. Loaned containers and loaned packaging shall be returned to us by the customer within 60 days without any residue and with the freight paid. Loss and damage shall be at the customer’s expense. Loaned containers/packaging may not be used for other purposes or for storing other products. They are exclusively intended for transporting our delivered goods. Labels may not be removed.

6. Payment
6.1. Payments shall be due immediately on delivery/service provision. The customer shall be deemed to enter into default if it does not make payment within 30 days of the due date and invoicing (the invoice date shall be decisive). If we use current account credit for interest which is higher than the default interest set out in the provisions of the Civil Code, we shall be entitled to charge the interest rate which corresponds to the current account interest rate.

6.2. Cheques are only accepted by special agreement and only for payment when all collection and discount charges and other fees which are incurred are taken into consideration.

6.3 If costs and interest are incurred, we shall be entitled to initially credit the payment to the costs, then to the interest and finally to the main service. Despite terms of the customer to the contrary, we shall be entitled to initially credit payments to older debts.

6.4. In the case of cheques, the payment shall only be deemed to have been made when the cheque or bill has been redeemed and no chargeback has been carried out by the redeeming bank.

6.5. In the event of payment default by the customer or if we become aware of other circumstances which call the customer’s creditworthiness into question, we may revoke granted payment deadlines or deferrals at any time. Otherwise, we may immediately declare any further claims from our business relationship with the customer to be due. Circumstances which call the customer’s creditworthiness into question include, for example, debit protest, non-payment or chargeback of a cheque, implementation of extrajudicial insolvency proceedings, suspension of payments, insolvency applications regarding the customer’s assets or justified areas of concern regarding the customer’s over-indebtedness or impending insolvency.

6.6. Under the prerequisites set out in 6.5., we are also entitled to make all deliveries/services to the customer dependent on advance payments and/or securities and/or suspend the fulfilment of all existing supply/service obligations, including those in which there is no default in payment, for a period of time. Furthermore, we are entitled to require compensation for damages and/or withdraw from contracts relating to deliveries/services for the customer after the unsuccessful passing of an appropriate grace period.

6.7. Offsetting rights and rights of retention of the customer are only permissible with their own legally established, recognised or undisputed claims.

7. Delivery and service period/material recall
7.1. The deadlines and periods specified by us are non-binding.

7.2. 24 hours after exceeding a non-binding delivery/service deadline or a non-binding delivery/service period, the customer may ask us to deliver the goods/provide the service within an appropriate period. We enter into default with this warning.

7.3. In the event of default, the customer is only entitled to withdrawal if it has set us an appropriate grace period in writing, specifying that it will refuse to accept the contractual object after expiry of the period and the period has expired unsuccessfully. Withdrawal must take place in writing.

7.4. We shall not be responsible for delivery and service delays due to force majeure and due to events which make the delivery/service significantly more difficult or impossible, which also includes material procurement difficulties which occurred at a later date, operational disruptions, strikes, lockouts, a shortage of raw materials or energy shortage, personnel shortages, transport shortages, official orders etc., including when they occur at the premises or our subcontractors or their subcontractors, including for binding deadlines and periods. In the event of delays within the meaning of (1), we shall be entitled to delay the delivery or service by the duration of the hindrance plus an appropriate start time or withdraw from the contract in part of in full due to the part which is not yet completed.
If the hindrance lasts longer than 10 days, the customer shall be entitled to withdraw from the contract due to the part which is not yet fulfilled pursuant to 7.3.

7.5. Claims for compensation by the customer are determined in accordance with Section 9 of these Terms in connection with the statutory provisions.

7.6. We are entitled to provide partial deliveries and partial services at any time.

7.7. The return of defect-free goods delivered by us is excluded. If we declare our agreement to the return on an exceptional basis, a credit note will only be provided for the returned goods in the event the laboratory confirms the full reusability thereof. For the costs of checking, preparation, reworking and repackaging, the actual costs, however at least 20% of the invoice amount for the respective item or, in the event the amount calculated in this manner is lower, at least EUR 30.00 shall be deducted. The credit will not be paid but only serves to be offset against future deliveries. Should the laboratory check not confirm the full reusability, we shall be entitled to invoice the costs of the laboratory test and the proper disposal of the goods in full to the customer.

8. Properties/rights in the event of defects
8.1. The properties of our goods correspond to the details on our German technical data sheets which are valid at the point in time of the conclusion of the contract and accessible at www.dga.de. Details shall be viewed as approximate and always serve as a benchmark to ascertain whether the contractual object is defect-free whereby the tolerance rules contained in the policies are to be applied. The customer is aware that the goods we sell have different shelf lives and areas of use. Only the customer bears the suitability and use risk.

8.2. The customer shall report defects in writing without undue delay, specifying the order and batch number. The same applies to complaints of all kinds. The customer shall inform us without undue delay of any intended sampling on the construction site and provide us with the opportunity to participate in good time.

8.3. In the event of a defective delivery, we shall provide compensation and reimburse the expenses which are necessary and reasonable for the purpose of supplementary performance (including removal and assembly costs) in accordance with the statutory provisions if and insofar as the damages were not caused by other circumstances (e.g. assembly and/or planning errors).

8.4. The statutory provisions apply for the assertion of defect claims. However, should the customer’s period of responsibility for defects end earlier than the valid statutory deadline which applies our contractual relationship with the customer, our responsibility for defects shall end 1 month after the deadline specified in the relationship between the customer and its purchaser. The periods shall start with the respective delivery/service date.

8.5. Technical specifications and standards which are valid abroad and which deviate from our technical data sheets and/or safety data sheets shall only be deemed agreed in the relationship between us and the customer if this is agreed in writing between us and the customer. If such an agreement has not been concluded, we shall not be liable for the delivered goods not meeting these specifications/standards. If third parties still make claims against us regarding the properties of our goods on any legal basis, the vendor shall be obliged to release us fully from such claims unless the claim is justified by the fact that the goods do not correspond to the properties contractually agreed between the buyer and us.

9. Liability / compensation
9.1. In the event of claims for compensation by the customer pursuant to the Product Liability Act, in accordance with Article 82 GDPR, due to injury to life, body or health, due to the malicious concealment of defects or due to the provision of a guarantee regarding the properties of the delivery object, we shall be liable in accordance with the statutory provisions.
In the event of the breach of significant contractual obligations, we shall be liable for intent and gross negligence pursuant to the statutory provisions.
Otherwise, unless the customer’s claims for compensation do not fall under (1) and (2), our liability shall be limited to the damages which are foreseeable at the point in time of conclusion of the contract and typical for the contract.

9.2. Unless otherwise provided for in 9.1., liability for consequential damages shall be excluded.

10. Comprehensive retention of title
10.1. The goods delivered by us (reserved goods) shall remain our property until the fulfilment of all our claims with regard to the customer arising from the business relationship. The customer shall be entitled to process and sell the reserved goods in the ordinary course of business. An ordinary course of business is not deemed to exist in the event that, with regard to the customer’s sales or other disposals or actions for the benefit of third parties by the customer, the assignability of its claims to third parties is excluded. Pledging or assignment as security of the reserved goods is not permissible.

10.2. Processing or restructuring always takes place for us as the manufacturer but without any obligation for us. The processed goods shall also be deemed reserved goods. In the case of the connection or mixing of the reserved goods with other movable items such that they become significant components or one single item, we become co-owners of this item: our share is determined according to the value ratio of the items e.g. the compound or mixture. However, if the reserved goods are deemed the main item, we acquire sole ownership. In the event of the connection of the reserved goods with a construction, a claim by the customer to order a security mortgage by the building contractor on the building land of its customer in the amount of the part which corresponds to the reserved goods is assigned to us.

10.3. The claims arising from the further sale/processing or another legal reason with regard to the reserved goods shall be assigned to us by the customer now by way of security in the amount of the purchase price of the reserved goods. The customer shall be authorised to collect these claims for us. The collection authorisation shall no longer apply when the customer does not properly meet its payment obligations to us. In this case, we shall be entitled to disclose the assignments to the third-party debtors.

10.4. In the event of deliveries in building projects for which partial assignment is only permitted with the prior permission of the purchaser in the relationship between the customer and the purchaser, but this does not exist or the partial assignment is generally excluded, 10.3. shall apply by way of derogation: The assignment shall relate to the entire claim due to the customer from the building project, the fulfilment of which the customer had ensured by means of the reserved goods, without taking the amount of the purchase price of the reserved goods into account. Payments by the third-party debtor to us shall be transferred to the customer without undue delay once our claim to the payment of the purchase price and any accessory claims have been paid off.

10.5. If the value of securities granted to us exceeds our claims by at least 50%, on request by the customer and at our discretion, we shall release the securities to which we are entitled to the extent to which they exceed the value of 110% of our claims.

10.6. The customer is obliged to provide us with the information necessary to assert our claims and other entitlements at its expense and to provide the proof documents insofar as it is in possession of them. This obligation applies accordingly in the event of enforcement regarding objects owned by us, claims and other property rights: the customer shall notify us without undue delay regarding the enforcement and shall also inform the attachment creditor in writing about our rights. In addition to the above obligations to provide information and provide proof documents, the customer is obliged to report the assignment to the third-party debtors in writing together with us.

11. Group offsetting clause
We shall be entitled to offset against all claims of any kind the customer has against us and against companies affiliated with us within the meaning of the Public Companies Act (Aktiengesetz), even if the maturity of the claims varies, insofar as the customer is aware that the company in question is an affiliated company.

12. Other provisions
12.1. You can find information about the personal data processed by us within the framework of the contractual performance in our Privacy Policy.

12.2. Insofar as this is legally permissible, all legal disputes arising directly or indirectly from the contractual relationship shall be instituted at the court which is responsible for our registered office. We shall also be entitled to raise a claim at the customer’s registered office.

12.3. The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) for these Terms and the entire legal relationship between us and the customer.

12.4. Should a provision of these Terms or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.

Information on consumer dispute resolution pursuant to Section 36 German Consumers’ Dispute Settlement Act (VSBG):
We shall not participate, and we are also not obliged to do so, in dispute settlement proceedings before a consumer arbitration body within the meaning of the German Consumers’ Dispute Settlement Act.