1. General Scope of Applicability
1.1. These General Business Terms & Conditions of Vereinigte Marmorwerke Kaldorf GmbH (here after called VM-Kaldorf) apply for all current and future business relationships.
1.2. Consumers within the meaning of these General Business Terms & Conditions are natural persons who enter into business relationships that cannot necessarily be attributed to their trade, business or profession. Entrepreneurs within the meaning of these General Business Terms & Conditions are natural persons, legal entities or partnerships with a legal personality with which a business relationship is entered into for which they are acting in exercise of their trade, business or profession.
1.3. Different, conflicting or supplementary general business Terms & Conditions are not a part of the agreement, even upon knowledge thereof, unless their validity has been expressly agreed to in writing.
1.4. The ordering party may neither assign nor pledge any contractual rights.
1.5. The laws of the Federal Republic of Germany will apply. The provisions of the UN Convention on Contracts for the International Sale of Goods will not apply.
2. Conclusion of Contract / Delivery
2.1. Our offers are not binding and are subject to confirmation. Changes in form, color and/or weight are authorized to the extent such are reasonable.
2.2. By ordering the goods the Customer states with binding effect that it wants to purchase the ordered goods. VM-Kaldorf is authorized for a period of two weeks following its receipt of the order to accept the offer included in the order. Acceptance can be stated either in writing (order confirmation) or by delivering the goods to the Customer.
2.3. If the Customer orders the goods electronically, then VM-Kaldorf will confirm the receipt of the order immediately. The confirmation of receipt does not represent a binding acceptance of the order. The confirmation of receipt can be provided in combination with the statement of acceptance.
2.4. The finalization of the contract is made conditional upon the correct and timely availability of the goods for sale by VM-Kaldorf’s suppliers. This applies only in the event that the failure to deliver the goods is the fault of VM-Kaldorf, particularly when it enters into a congruent coverage supply transaction with its suppliers.
The Customer will be informed immediately about the non-availability of any goods or services. Any consideration that may have been received will be refunded without delay.
VM-Kaldorf will be relieved of the delivery obligations it has entered into in cases of unforeseeable influences, strikes, plant shut-downs, shortages of trucks or containers, railway blockages, difficulties in quarrying or in the procurement of the required raw materials, as well as other unforeseeable events.
The stated delivery times are only approximations and commence only after final written order has been constituted.
2.5. In the event that the Consumer orders good s electronically, then the text of the contract will be stored by VM-Kaldorf and be forwarded by e-mail together with these General Business Terms & Conditions to the Customer on its request.
2.6. VM-Kaldorf’s deliveries are made carriage forward and for the account and at the risk of the ordering party, and with no liability for breakage, theft or the like. The same also applies for the assumption of carriage paid shipments. In particular, the risk of breakage is not included. The statement “poorly packed „in the shipping documents is prescribed by the railway authorities and does not make VM-Kaldorf liable for breakage.
2.7. The ordering party will bear the costs of the packaging and of any transport insurance it may require. The amount of transport insurance is 2.5
2.8 Confirmation of receipt due to the confirmation for getting the material of an intra-Community trade to another EU country (Entry Certificate) (§17a Abs.2 Nr.2 Satz 3 UstDV). It is necessary that the customer provides a confirmation of receipt to Vereinigte Marmorwerke Kaldorf GmbH referred to the German regulations valid from the time of delivery to prove for VAT purposes, ulterior the customer is liable for outcome fiscal effects due to the German VAT-law times the invoice amount.
3. Prices and Payment
3.1. Our prices are based on the cost situation at the time the order is placed.
3.2. All prices stated are ex works or ex warehouse.
3.3. Cash discounts must be expressly agreed to.
Invoices are payable in full within 10 days of the date of invoice unless otherwise agreed.
3.4. Bills of exchange and checks will only be accepted as conditional payment; and bills of exchange only by prior arrangement. All charges will be paid by the Customer.
3.5. Should circumstances become known to VM-Kaldorf after conclusion of the contract, which warrant there being doubts as to the ordering party’s creditworthiness, then VM-Kaldorf can withdraw from the agreement, demand prepayments or make its deliveries contingent on the providing of a security. This also applies when accounts receivable have not been settled despite payment reminders.
3.6. The Customer may only set off counterclaims that are undisputed or determined to be legally valid. The Customer may only withhold payments for reasons directly based on the same contract.
3.7. Small samples are available at no charge. Original sample slabs are subject to a charge, which will be refunded when an order is placed.
4. Default in Payment
4.1. In the event that the Customer fails to make payment, then all of VM-Kaldorf’s claims against the Customer will be due and payable in cash immediately, regardless of any accepted bills of exchange or any payment periods that may have been granted. The Customer may no longer sell any of the goods of which VM-Kaldorf has sole or joint ownership, and is required to provide securities to VM-Kaldorf. The authorization to collect the accounts receivable that the Customer has assigned to VM-Kaldorf then terminates.
4.2. After receipt of the goods, the Customer agrees to pay the purchase price within 10 days of the invoice date. The Customer’s account will be overdue at the end of this period. The Consumer will pay interest on this debt at the rate of 5% above the base interest rate during the period of default. The Entrepreneur will pay interest on any debt at the rate of 8% above the base interest rate. VM-Kaldorf reserves the right to provide evidence of and assert claims against the Entrepreneur for greater loss or damages as a result of any non-payment.
5.1. For Jurassic marble, colored marble, granite, Solnhofen stone and other natural stones: specimens, colors, material properties and the like merely illustrate the stone’s general appearance. Small samples can never include or depict all the characteristics and differences in the natural stone’s color, design, structure and texture. The occurrence of color variations, cloudy spots, mottling and so forth, as well as natural flaws and defects including pores, cavities, cleavage, fissures and veins of quartz, which are attributable to the very nature of the material, do not
decrease the natural value of the stone. Absolute frost resistance cannot be guaranteed.
In view of the inherent characteristics of the stone being offered, VM-Kaldorf can make no warranties and can at best simply provide information about the stone’s properties.
In the case of marble, such things as proper cementing, the disassembly of blocks in loose veins and porous spots and their reassembly, any reinforcement using underlying solid slabs (double layering), as well as the installation of brackets, dowels and cut-to-size replacement pieces depending on the quality and character of the type of marble involved, are not only unavoidable, but essential requirements for working with such material.
5.2. If the buyer is an Entrepreneur, then VM-Kaldorf will remedy deficiencies in the goods and may choose to either rectify the defects or provide a replacement in accordance with the terms of its warranty. If the buyer is a Consumer, then the Consumer will have the choice as to whether the remedy should be the rectification of defects or a replacement. VM-Kaldorf is authorized, however, to refuse the desired type of remedy if such remedy is only possible at an excessively high cost and another type of remedy does not involve substantial disadvantages for the Consumer.
If the costumer himself or by a mandated third party, based to the lack of subject matter in a building or land, and there are defects due to the installation we owe only the costumers choice, reduce or cancel the contract, but not the reimbursement of the assembly and disassembly costs.
This does not effect the objection under § 377 HGB to an entrepreneur.
5.3. Entrepreneurs must notify VM-Kaldorf in writing about obvious deficiencies within a period of two weeks after receipt of the goods, otherwise claims based on warranty will be void. The timely forwarding of the notification will suffice for meeting the deadline. The Entrepreneur will bear the full burden of proof for all the qualifying conditions, particularly for the defect itself, the time the defect was identified and the timeliness of providing notification of the defect.
Consumers must notify VM-Kaldorf in writing about any obvious deficiencies within a period of two months after the date the goods were identified as not being in conformance with the contract. The date that such notification is received by VM-Kaldorf will be definitive for having met the deadline. If the Consumer fails to make this notification, then its rights under warranty will expire two months after the time it identified the deficiency. This does not apply in the case of malicious acts.
The Consumer will bear the burden of proof for the time that the deficiency was identified. The Consumer will bear the burden of proof in the event that its decision to purchase the item was induced as a result of incorrect manufacturer information. In the case of used goods, the Consumer will bear the burden of proof of the deficiency of the item.
All warranties will expire if despite recognizable deficiencies, the Consumer relocates the materials that VM-Kaldorf delivered.
5.4. If after the failed remedy the Customer chooses to withdraw from the contract due to a deficiency in title or a material defect, then the Customer may not in addition assert a claim for damages due to the deficiency.
If the Customer chooses to claim damages after the failed remedy, then the goods will remain with the Customer if such is reasonable for the Customer. Indemnification will be limited to the difference between the purchase price and the value of the defective item. This does not apply if VM-Kaldorf caused the contract violation maliciously.
5.5. The limitation period for Entrepreneurs is one year after delivery of the goods. The limitation period for Consumers is two years after delivery of the goods. The limitation period for used items is one year after delivery of the goods. This does not apply if the Customer fails to notify VM-Kaldorf of the deficiency punctually (Section 5.3. of this provision).
5.6. If the buyer is an Entrepreneur, then it is agreed that only the manufacturer’s product description will apply as regards the quality of the goods.
Public statements, promotions or advertising on the part of the manufacturer do not represent a contractual description of the quality of the goods.
5.7. If damage is identified upon arrival of the shipment, then the recipient must immediately have this acknowledged in the waybill. In the case of shipments made by truck, a record will be prepared in which the extent of the damage is precisely annotated. This record will be signed by the driver. The conditions set forth by VM-Kaldorf’s insurance company will be definitive for any indemnification.
5.8. VM-Kaldorf can refuse warranty in cases of non-payment or lapse in credit until such time as the ordering party fulfills its payment obligation in the amount equal to the value of VM-Kaldorf’s shipment less a reduction in the purchase price equivalent to the existing deficiencies.
5.9. No warranty is assumed for damages caused by the following: inappropriate or improper use, faulty installation on the part of the ordering party or third parties, natural wear and tear, incorrect or careless handling, poor construction work or an unsuitable foundation; in each case to the extent that the violations are not attributable to negligence on the part of VM-Kaldorf.
If the Customer chooses to claim damages after the failed remedy, then the goods will remain with the Customer if such is reasonable fort.
5.10. Regardless of the legal grounds, VM-Kaldorf assumes liability for damage not arising on the article of sale itself only in cases of:
a) Willful acts
b) Gross negligence by its owner, corporate bodies or senior executives
c) Tortious injury to life, limb or health
d) Defects that are fraudulently concealed or whose absence is guaranteed
e) Defects in the article of sale to the extent that liability for damages to privately used objects or for personal injury is prescribed in accordance with the German Product Liability Act. VM-Kaldorf also assumes liability for culpable breaches of material contract obligations in cases of gross negligence by its non-executive employees and for slight negligence, with liability limited in the latter case to those damages that are typical for this kind of agreement and that are reasonably foreseeable. Any further claims are invalid.
6. Retention of Title
6.1. In contracts with Consumers, VM-Kaldorf will retain title to the goods until such time as the purchase price is paid in full. In contracts with Entrepreneurs, VM-Kaldorf will retain title to the goods until complete payment of all accounts receivable arising from an ongoing business relationship has been made.
6.2. The Customer is obligated to take good care of the goods. The Customer will perform any required maintenance and inspection work regularly and at its own expense.
6.3. The Customer is obligated to immediately notify VM-Kaldorf about any third-party intervention in the goods, such as seizure or attachment, and about any damage to or destruction of the goods. The Customer will also notify VM-Kaldorf immediately about any change in possession of the goods and any change in its own place of legal residence.
6.4. VM-Kaldorf is authorized to withdraw from the contract and to demand the surrender of the goods if the Customer is in breach of the contract, particularly in the case of payment delinquency or violations of obligations under Sections 3 and 4 of these provisions.
6.5. The Entrepreneur is authorized to resell the goods in the ordinary course of business. The Entrepreneur hereby assigns to VM-Kaldorf all the accounts receivable accruing to it through the resale to a third party in the amount of VM-Kaldorf’s invoice total. VM-Kaldorf hereby accepts this assignment. The Entrepreneur is authorized to collect these accounts receivable following this assignment. VM-Kaldorf reserves the right to collect these accounts receivable itself when the Entrepreneur fails to properly fulfill its payment obligations and is in arrears in payment.
6.6. The handling and processing of the goods by the Entrepreneur is always made in the name and on behalf of VM-Kaldorf. In the event that processing is made with items that do not belong to VM-Kaldorf, then VM-Kaldorf will acquire joint ownership of such new goods to the extent of the value of the goods delivered by VM-Kaldorf to the other processed items. The same applies when the goods are mixed with other items that do not belong to VM-Kaldorf.
6.7. To the extent that the Customer’s purchase-price receivables are included in any current account, then the Customer assigns any balance due it to VM-Kaldorf in the same manner.
6.8. In the event that VM-Kaldorf makes the funds for paying the purchase price available to the Customer by providing the Customer with a bill of discount that VM-Kaldorf has endorsed and the Customer has accepted (acceptor’s bill), then the title to the goods will pass to the Customer only when the bill is redeemed and VM-Kaldorf’s liability on the bill has ceased.
7. Service Contracts and Contracts for Labor and Materials.
It is agreed that the provisions of the latest version of the German Building Contract Code (VOB/B) will apply supplementary to these Terms & Conditions for service contracts and contracts for labor and materials with Entrepreneurs that involve performance at construction works.
8. Place of Performance and Court of Jurisdiction
8.1. If the Customer is a merchant, legal entity under public law or a special public asset, then the court of jurisdiction for all disputes arising from this agreement will be the Weißenburg District Court or as may be appropriate the Ansbach Regional Court. The same will apply if the Customer has no legal place of residence in Germany or if its usual place of residence is not known at the time the complaint is filed. VM-Kaldorf is also authorized to file actions against the contracting partner at the latter’s place of residence.
8.2. Should individual provisions of the agreement with the Customer, including these General Business Terms & Conditions, be or become invalid in part or in full, then the validity of the remaining provisions will not be affected. The provision that is invalid in part or in full will be replaced by a provision whose economic result comes as close as possible to that of the invalid provision
VEREINIGTE MARMORWERKE KALDORF GMBH