Terms of service

GENERAL TERMS & CONDITIONS (GTC) FOR SALE AND DELIVERY OF GOODS

1. GENERAL
a) The following General Terms & Conditions (GTC) apply to business dealings with entrepreneurs (§14 BGB), legal entities under public law and special funds under public law. Conditions that contradict or deviate from our terms and conditions are only binding for us if we have expressly agreed to them in each individual case. Our terms and conditions are deemed to have been accepted at the latest upon receipt of the delivery. Unless otherwise expressly agreed between us and our customers, the provisions of the German Civil Code (BGB) apply. b) Our offers are non-binding; Orders and other agreements therefore only come about through written confirmation. c) The customer is responsible for the completeness, correctness and timeliness of the execution documents to be procured or created by the customer. d) If we keep production capacities available at the request of the customer and if, for reasons for which the customer is responsible, we do not or delay the execution, the customer shall be liable for the resulting damage.

2. DELIVERY
a) The place of fulfilment for the delivery is the concrete plant, distribution warehouse or the company acting on our behalf, unless otherwise agreed. Each delivery takes place at the expense and risk of the customer. We reserve the right to choose the type of dispatch, unless a specific type of dispatch has been agreed. We reserve the right to carry out orders in partial deliveries, unless otherwise agreed. Insignificant complaints about partial deliveries do not release the customer from his obligation to accept the remaining quantity of the ordered goods in accordance with the contract. In the event of delivery to the construction site as agreed, suitable delivery routes and immediate unloading by the customer are assumed; otherwise he is liable for any damage and additional expenses. b) Unless otherwise agreed, agreed delivery dates relate to the provision of the goods for handover or dispatch in the factory or distribution warehouse. Our delivery obligation is suspended as long as we have not been given the necessary execution documents for the relevant part of the delivery, as well as all documents necessary or appropriate for the execution of the order or information has not been given. If the goods are sold ex-works, we will place the goods on the vehicle of the person picking them up as instructed by the driving staff. Transport and operationally safe loading, according to the current state of loading technology, must be carried out by the person collecting the goods. He must provide the necessary load securing equipment. We are not obliged to check the load securing measures and are not liable for damage resulting from insufficiently secured loads. c) Shortage of raw materials or energy, strikes, lockouts, traffic disruptions and official orders as well as delivery deadlines by sub-suppliers, operational disruptions, all cases of force majeure and other circumstances beyond our control or a company working for us release us for the duration of their existence affect our ability to deliver, from our delivery obligation. In the aforementioned cases, we are also entitled - without prejudice to Section 6 of these GTC - to withdraw from the contract without compensation if the performance has become impossible or unreasonable for us or an end of the impediment to performance is not in sight. We are also entitled to withdraw from the contract if unexpected and extraordinary (20% and more) increases in raw material and energy costs occur after the order confirmation has been issued and which affect the sales price. In return, the buyer is entitled to withdraw from the contract if, after the order confirmation has been issued, unexpected and extraordinary (20% and more) reductions in raw material and energy costs occur, which affect the sales price. Our delivery obligation is suspended as long as the buyer is in arrears with a due liability towards us. If we become aware of facts or circumstances which give rise to doubts about the solvency of the buyer (e.g. non-payment of overdue and dunned invoices) and the buyer is not prepared to provide sufficient security despite being requested to do so, we are at all times fully or partially - taking into account Number 6 of these GTC - entitled to withdraw from the contract without compensation. d) The customer is entitled to withdraw from the contract for the respective delayed delivery or to demand compensation in accordance with Section 6 if the supplier is in default and a reasonable grace period set by the purchaser with threat of rejection has expired without result. At our request, the customer is obliged to declare within a reasonable period of time whether he is withdrawing from the contract due to the delay in delivery and / or demanding compensation instead of performance in accordance with Section 6 or whether he insists on delivery. e) Contractual penalties are only effective against us if they have been specified in a special agreement. f) In the case of custom-made products (including special colours), the quantities ordered are binding on the buyer and must be accepted by the buyer in any case. The calculation takes place no later than 4 weeks after completion of the products. There is no entitlement to post-production of excess quantities. We also reserve the right to request down payments. g) If loads that have already been picked must be re-picked at the request of the customer, the costs incurred must be reimbursed. h) If, with our consent, defect-free and resalable goods are taken back, a re-storage fee of 20% of the value of the goods will be deducted. i) If an order placed is cancelled before delivery, we reserve the right to charge a cancellation fee of 15% of the order value. j) Packaging brought into circulation by us will be taken back within the scope of the legal obligations in our facilities. k) Euro pallets will be reimbursed minus an exchange fee.

3. DEFECT CLAIMS
a) Our liability extends to state-of-the-art defects in our products. Our liability is excluded: - if our products are not properly stored, installed, commissioned or used by the customer or a third party, - in the event of natural wear and tear, - in the use of unsuitable equipment (e.g. winter service), b) Claims for material defects expire in 12 Months. This does not apply if the law prescribes longer periods in accordance with Sections 438 Paragraph 1 No. 2 (buildings and items for buildings) and 634 a Paragraph 1 No. 2 (construction defects) of the German Civil Code (BGB). The limitation period begins with the delivery of the product. c) The customer must notify us of any defects in writing without delay. d) In the event of a notification of defects, payments by the customer may be withheld to an extent that is reasonable in relation to the material defects that have occurred. The customer can only withhold payments if a justified complaint is made. If the notification of defects is incorrect, we are entitled to demand that the customer reimburse us for the expenses incurred. e) The use of natural additives can lead to variations in the nature of our products, such as efflorescence, colour variations, burrs, pores, cavities or surface cracks. Deviations, changes or tolerances - apart from incorrect deliveries - do not represent deviations from the agreed or customary quality, provided they meet the DIN standards. Samples are therefore considered non-binding samples. Slight deviations from this do not justify complaints. Claims for defects do not exist if the delivered items are suitable for the intended or normal use required by the contract and have a quality that is customary for items of the same type and that the buyer can expect depending on the type of item. f) The customer shall examine the received goods immediately after arrival for defects, guaranteed properties, incorrect deliveries, missing or excess quantities. Obvious defects in the delivery must be reported to us in writing immediately, at the latest within seven days of receipt of the delivery, hidden defects at the latest within seven days after discovery. Otherwise the delivery shall be considered approved. Complaints and assertions of alleged claims must in any case be made before processing, combining or mixing and within the warranty period. The customer shall afford us the opportunity to examine the complaint immediately, and in particular make damaged goods and their packaging available for inspection by us. Any refusal releases us from liability for defects. Only in urgent cases that endanger operational safety or to prevent the occurrence of disproportionately serious damage, in which case we must be informed immediately, or in event we are in default of defect remediation, the customer reserves the right to have the defect remedied himself or by a third party or to demand reimbursement of the necessary costs from us. The assumption of the costs for external experts requires a written agreement in individual cases. g) The customer's statutory rights of recourse against us only exist insofar as the customer has not made any agreements with his customer that go beyond the statutory claims for defects. h) Further claims by the customer, in particular for compensation in lieu of performance and for compensation for any other direct or indirect damage - including accompanying or consequential damage, regardless of the legal reason - are excluded. This does not apply if aa) we have fraudulently concealed a legal or material defect or have assumed a guarantee for the quality of the goods, Profilbeton GmbH 08/18 34582 Borken bb) the damage is due to intent or gross negligence on our part, or through our legal representatives or vicarious agents, or via a negligent breach of essential contractual obligations by these persons or cc) a culpable breach of duty by us, our legal representatives or vicarious agents has led to physical injury or damage to health. In the case of simple negligence, our obligation to pay compensation is limited to the amount of foreseeable damage typical for the contract. h) The provisions in accordance with letter h) apply accordingly to direct claims of the customer against our legal representatives or vicarious agents.

4. TRANSFER OF RISK
a) The risk is transferred to the customer as soon as the product has left our factory or distribution warehouse. This also applies if we assume delivery.

5. PRICES AND TERMS OF PAYMENT
a) The prices are understood to be ex-works or ex-warehouse, excluding freight, packaging and VAT, unless otherwise agreed. If the prices of our suppliers or other costs related to our products increase between the conclusion of the contract and delivery, we are entitled to increase the agreed prices accordingly. Our invoices are due at the registered office of our company immediately after receipt of the delivery; Discounts and other reductions require a special agreement. If the invoice is not paid within 30 days of its receipt, but no later than 30 days after delivery, the customer is in default of payment and we can claim default interest and any further damage caused by default. In the event of default in payment, we can – without prejudice to further claims – apply the statutory default interest rate. In the event of default in payment by the customer, we are entitled – at our discretion – to make further deliveries or services dependent on advance payments or security deposits, to demand compensation for delay in performance or to withdraw from the contract. This does not apply if the customer has lodged a justified complaint about the delivery. In addition, we can return accepted bills of exchange before they expire and demand immediate cash payment. b) We reserve the right to accept bills of exchange. We can refuse to accept cheques if there are reasonable doubts about coverage. Acceptance only occurs in lieu of performance. Discount, collection charges and all other costs are borne by the customer and shall be paid immediately in cash. We are not obliged to submit, complain, etc. in good time. All of our claims become due immediately in the event that the customer defaults on another obligation towards us. The same applies if he ceases his payments, is over-indebted, insolvency proceedings have been opened against his assets or the opening of such proceedings is refused due to insufficient assets or circumstances become known that justify reasonable doubts about the customer's creditworthiness. c) In the case of claims based on several deliveries or services, Section 366 of the German Civil Code (BGB) applies with regard to the offsetting of incoming payments against one or the other debt, unless otherwise agreed. The customer is not entitled to interrupt or refuse payment. The right of retention in the case of material defects according to No. 3, lit. d) remains unaffected. Counterclaims may only be offset if they are undisputed, recognised or legally established.

6. RESERVATION OF TITLE
a) We reserve title to all goods delivered by us until all of our claims – regardless of their legal basis and the time they arose – from the business relationship with the customer have been settled, until any current account balance has been settled, for acceptance of bills of exchange and cheques until they have been cashed. The customer may process and/or resell the materials supplied by us in the ordinary course of business. The authorisation to resell does not apply if the customer has agreed on a prohibition of assignment with his customers. The customer is obliged to handle the goods subject to retention of title with care. In the event of a violation, we are entitled to demand immediate surrender. b) As long as the retention of title exists, the processing or processing of the reserved goods takes place for us. We are entitled to ownership or co-ownership, Sections 947, 950 of the German Civil Code (BGB), of the new item created as a result. If the reserved goods are combined or mixed with other items, we are entitled to co-ownership of the new item in the ratio of the value of the reserved goods to the value of the other items at the time of combination or mixing pursuant to Section 948 of the German Civil Code (BGB). The new item created through processing or connection or mixing is deemed to be reserved goods within the meaning of these conditions. The customer hereby assigns to us the claims to which he is entitled against his customers from the resale of the reserved goods with all ancillary rights, namely in the case of processing, combining or mixing in the amount of the value of the goods delivered by us. c) At our request, the customer must, as soon as he is in default, notify his debtors of the assignment and provide us with the necessary information and hand over documents. If the value of the goods subject to retention of title or securities given to us exceeds the total amount of our claims by more than 20%, we are obliged to release or re-transfer at the buyer's request. d) If the delivered goods or the items manufactured from them are incorporated into the property of a third party in such a way that they become an integral part of the property, the customer's claims against his customers in the amount of the purchase value of our built-in goods are taken as security for our claim and shall be transferred to us without special declaration of assignment being required. The transfer of this claim is agreed for the time it arises. e) The customer may neither pledge nor transfer ownership of the goods subject to retention of title as a precaution and must notify us immediately of seizures that have taken place at the instigation of third parties. f) Asserting retention of title, taking back or seizing the delivery item by us does not constitute a withdrawal from the contract. In the event of re-acquisition, we are entitled to dispose of the items in the best possible way after issuing prior warning and setting a reasonable deadline. The sales proceeds will be offset against our claims after deducting reasonable sales costs.

7. OTHER DAMAGE CLAIMS
a) Claims for damages and reimbursement of expenses by the customer (hereinafter: claims for damages), regardless of the legal reason, in particular due to breach of obligations from the contractual relationship and from tort, are excluded. b) This does not apply if liability is mandatory, e.g. according to the Product Liability Act, in cases of wilful intent, gross negligence, due to injury to life, limb or health, due to the violation of essential contractual obligations. Claims for damages for the breach of essential contractual obligations are limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence or liability is due to injury to life, limb or health. A change in the burden of proof to the detriment of the customer is not associated with the above regulations. c) Insofar as the customer is entitled to claims for damages under this section, these shall become statute-barred upon expiry of the limitation period applicable to claims for material defects in accordance with Section 3 lit. b).

8. CONSULTING
a) Technical consultancy is not part of the delivery contract; it is only mandatory if it is stipulated in writing. This does not relieve the customer of the obligation to properly and professionally process our products. b) Construction and other suggestions, drafts, drawings and tools supplied by us remain our property and, like other documents that we have made available, may not be made accessible to third parties or reproduced - even in extracts - without our consent.

9. FINAL PROVISIONS
a) The place of jurisdiction - also for bills of exchange, cheques and document processes - is the seat of our company. b) German law applies to the contractual relationship to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). c) Should individual provisions of these terms and conditions be or become legally ineffective in whole or in part, this shall not affect the validity of the remaining provisions. d) Insofar as we process personal data in the course of business transactions, we only process them within the framework of the statutory provisions, in particular in compliance with the provisions of the General Data Protection Regulation (“GDPR”) and the EU Data Protection Adjustment and Implementation Act (“BDSG new”).