General Terms of Sale, Delivery and Payment in the B2B Segment
The inclusion of other and/ or conflicting conditions of the contractual partner is hereby expressly and conclusively rejected.
1.1 These terms of sale, delivery and payment are an integral part of every agreement concluded between Gerflor DLW GmbH and a buyer. The inclusion of other and/ or conflicting conditions of the buyer is hereby expressly and conclusively rejected. Ancillary agreements, warranties or modifications to these terms and conditions are only binding in case of an express written acknowledgement from Gerflor DLW GmbH.
1.2 An agreement shall only take effect upon written order confirmation or upon delivery of the goods by Gerflor DLW GmbH.
1.3 Gerflor DLW GmbH salespersons are not authorized to enter into oral ancillary agreements or to make warranties that go beyond the written agreement.
1.4 The properties of the samples presented shall only be deemed to be guaranteed if these samples are expressly designated as quality standard samples. Slight color variations between different productions ( lots ) are unavoidable and must be tolerated.
1.5 Force majeure, operational shutdown, manufacturing limitations, strikes, damage to production facilities, non - delivery or delayed delivery by the upstream supplier, actions by public authorities and similar, unforeseen events shall release Gerflor DLW GmbH from performance of agreements which have already been concluded. Claims for damages on the part of the buyer shall not arise therefrom.
2.1 The services and promotional representations of Gerflor DLW GmbH do not constitute offers to enter into an agreement, but are rather invitations to treat that are non - binding in their substance (“invitatii ad offerendum”).
2.2 If the order from the buyer is to be qualified as an offer pursuant to § 145 BGB [Bürgerliches Gesetzbuch, German Civil Code], Gerflor DLW GmbH may accept it within 2 weeks.
3. Prices – Terms of Payment
3.1 Unless provided otherwise by the order confirmation, Gerflor DLW GmbH prices shall apply “ex works ”, excluding packaging; this shall be invoiced separately.
3.2 The statutory value added tax is not included in the prices; the statutory amount shall be reflected separately on the invoice on the invoice date.
3.3 For the deduction of discount, a specific written agreement is required.
3.4 Unless provided otherwise by the order confirmation, the purchase price ( without deductions ) shall be due for payment within 30 days from the invoice date. The statutory regulations pertaining to the consequences of late payment shall apply.
3.5 In the event of a pre-existing agreement for payment by accepted bills of exchange, Gerflor DLW GmbH shall refund the same cash discounts as in case of cash payments. All expenses shall be borne by the buyer.
3.6 If the buyer falls into payment arrears, Gerflor DLW GmbH shall have the right to withhold delivery of the goods until concurrent payment of the purchase price is made (= purchase price in exchange for goods), irrespective of other and additional rights held by Gerflor DLW GmbH.
3.7 Gerflor DLW GmbH reserves the right to reasonably change prices accordingly if costs change after conclusion of the agreement, particularly due to coll e ctive wage agreements and/or changes in material, wage or freight costs. Gerflor DLW GmbH shall undertake to provide notice of the price changes at least one month in advance. In case of call - off orders, the adjusted prices shall also apply for deliveries accepted after the adjustment date. If the reasonable price adjustment exceeds the previous price by more than 10%, the buyer shall be entitled to withdraw from the agreement in writing.
4. Delivery and Invoicing
4.1 The delivery shall be made using the delivery method applicable for the product.
4.2 For goods outside of the range (special production by customer request), production-related quantity deviations of up to 10 % above the agreed scope shall be deemed accepted; in this case, the buyer shall be liable for payment of the quantity actually delivered. The same shall apply for quantity deviations of up to 10 % below the agreed scope.
4.3 Information concerning the delivery date shall be understood as the expected delivery time.
4.4 Delivery shall be made EX WORKS (Incoterms 2010), unless an agreement has been made otherwise.
4.5 If delivery is made to the buyer’s premises, the additional costs arising therefrom (freight) shall be borne by the buyer. If the buyer prescribes a particular form of transport, it shall likewise bear the additional costs therefor.
4.6 Pursuant to an express agreement, Gerflor DLW GmbH shall bear the freight costs up to the relevant point of destination of the recipient; the choice of the forwarding route and means of transport shall remain reserved by Gerflor DLW GmbH.
5. Delivery Agreements on Call
5.1 Unless otherwise agreed, orders on call must be accepted within 3 months.
5.2 Unless otherwise agreed, binding quantities are to be communicated by call at least 2 weeks prior to the delivery date.
5.3 Additional costs that arise due to a delayed call or subsequent changes to the call in terms of time or quantity on the part of the buyer shall be borne by the buyer.
5.4 After unsuccessful expiration of a 14 calendar day extension for acceptance, Gerflor DLW GmbH shall be entitled to demand compensation for lost profits of up to 10 % of the agreed price. The right to assert higher damages shall remain reserved. However, the buyer is entitled to demonstrate that Gerflor DLW GmbH incurred little or no damages.
6. Damage in Transit
Visible damage in transit shall be communicated immediately in writing after receipt of the goods. Hidden transport damage shall be asserted in writing to the delivering shipping agent at the latest within seven days after receipt of the goods.
7. Storage costs
7.1 If the buyer goes into default in whole or in part with acceptance of the goods, Gerflor DLW GmbH is entitled to store the delivery itself or with a forwarding agent for the account and risk of the buyer.
7.2 If it itself stores the goods, Gerflor DLW GmbH shall charge storage costs of 0.5% of the (pro rata) invoice amount per month, but not exceeding 10 % of the (pro rata) invoice amount. Each month commenced shall be considered a month.
8. Liability for defects, compliance with maintenance and installation instructions
8.1 The buyer is obligated to examine the goods delivered for obvious defects that would readily stand out to a prudent businessman. The buyer shall notify Gerflor DLW GmbH in writing of obvious defects, such as visible damages, within one week of receipt of the delivery.
8.2 For defects that only become evident subsequently, but prior to the expiry of the limitation periods for defect claims, Gerflor DLW GmbH must be notified in writing within one week after the buyer notices the defect.
8.3 Gerflor DLW GmbH shall compensate the buyer for the necessary expenses that the buyer bears in relation to its customer according to § 439 para. 2 and 3 BGB as well as to § 475 para. 4 and 6 BGB, to a reasonable extent, provided that the defectiveness existed prior to the transfer of risk to the buyer.
8.4 The limitation period for defect claims is 12 months, with the period beginning according to statute. The limitation restriction shall not be effective in cases of malice, intent or gross negligence, in cases of § 445b BGB and §§ 478, 479 BGB or in cases of injury to life, limb and/or health.
8.5 The limitation period for defect claims for floor coverings is five years from the transfer of risk, provided the coverings were bonded or braced to the entire surface pursuant to DIN 18 365 – working with floor coverings – and caused the defect in the structure in that they were bonded or braced (§ 438 para . 1 no. 2 lit. b BGB, § 634a para. 1 no. 2 BGB. In such case, the buyer shall provide proof of a suitable sub floor free of defects, compliance with the accepted rules for the installation procedure, the use of a suitable adhesive, proper workmanship, normal use – this is understood to mean use that is common for the recommended purpose and appreciably expected by the manufacturer – and compliance with the cleaning and maintenance recommendations, on the part of the buyer’s customers, as well.
8.6 Customary deviations pursuant to permissible quality standards or slight deviations in quality, weight, size, thickness, width, finishing, design and color are not defects.
8.7 Permanent shading that remains in velour carpeting after installation in some cases are not defects, as the cause is neither material - nor manufacturing - related.
8.8 Labelling information and delivery documents must be provided when asserting defect claims.
8.9 If Gerflor DLW GmbH render s a defective delivery or service, the buyer shall give Gerflor DLW GmbH the opportunity to rectify this within a reasonable period (supplementary performance), unless rectification is unreasonable for the buyer in the individual case or if special circumstances exist that justify immediate withdrawal, under consideration of mutual interests. This shall not apply in cases under § 445a para . 2 BGB.
8.10 Gerflor DLW GmbH shall always have the right to choose between remedying the defect or delivering a defect - free item. This shall not apply to recourse claims from the buyer pursuant to § 445a BGB.
8.11 Failure to rectify shall only be assumed if Gerflor DLW GmbH has been granted a sufficient opportunity for rectification twice within a reasonable time without the desired outcome being achieved, if rectification is impossible, if it is refused by Gerflor DLW GmbH without cause or unreasonably delayed, if reasonable doubts exist with respect to chances of success or if unreasonableness for rectification exists for other reasons.
8.12 The goods used for rectification and substitute delivery shall be taken from current production or existing stock. Special productions shall not be undertaken for this purpose. Goods may only be returned with the consent of Gerflor DLW GmbH.
8.13 Cleaning, maintenance and installation instructions from the respective type of flooring must be observed. The installation and maintenance instructions are generally included with the products and are also available online at www.dlw.eu or Gerflor DLW GmbH is happy to send them to you again upon request.
9.1 Gerflor DLW GmbH is liable for damages exclusively according to the following provisions: Depending on the merit of the claim, Gerflor DLW GmbH is generally liable - for intentional or grossly negligent actions - for any culpable breach of material contractual obligations.
9.2 Insofar as Gerflor DLW GmbH is liable in cases of simple negligence, the duty to compensate is limited to the amount of compensation for foreseeable damages typical for the agreement.
9.3 Liability for property and financial damages is otherwise excluded.
9.4 Liability pursuant to the Product Liability Act and for injury to life, limb and/or health is omitted from the liability limitation and exclusion.
9.5 Insofar as Gerflor DLW GmbH’s liability for damages is excluded or limited pursuant to the above provisions, this shall also extend to personal liability of bodies within the company, employees and other personnel, representatives and agents of Gerflor DLW GmbH, and shall also apply to all claims due to fault in contract negotiations, breach of ancillary obligations and claims arising from unlawful acts (§§ 823 et seqq. BGB, but not to claims pursuant to §§ 1, 4 ProdHaftG [Produkthaftungsgesetz, German Product Liability Act].
10. Offset, Right of Retention and Assignment
10.1 The buyer shall only have the right to offset if its counterclaims are legally established, undisputed or acknowledged by Gerflor DLW GmbH, or have a close synallagmatic relationship to our claim.
10.2 The buyer is only entitled to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.
10.3 The assignment of claims of the buyer in relation to Gerflor DLW GmbH is excluded.
11.1 Gerflor DLW GmbH is entitled to withdraw from the agreement at all times if the buyer’s financial circumstances have deteriorated significantly and, therefore, the fulfillment of the buyer’s obligation is considerably jeopardized.
11.2 These conditions shall be deemed to be met e.g. if suspensions of payment and/or enforcement actions due to payment claims occur with the buyer or an individually liable partner of the buyer.
11.3 The rights of Gerflor DLW GmbH shall also exist if the above-mentioned conditions already existed when the agreement was concluded, but, however, were not apparent to Gerflor DLW GmbH.
12. Retention of Title
12.1 The goods delivered shall remain the property of Gerflor DLW GmbH until payment in full (until irrevocable payment for payment by check or bill of exchange) of all claims arising forGerflor DLW GmbH against the buyer, irrespective of the legal basis. The buyer is entitled to resell the goods to third parties prior to payment in full, within the ordinary course of business. It is not permitted to pledge the goods or transfer them by way of security.
12.2 The authorization to sell can be revoked by Gerflor DLW GmbH at any time. The surrender of goods may be demanded until payment in full in the case that the buyer does not act in conformity with the agreement or defaults.
12.3 As security, the buyer hereby assigns in advance to Gerflor DLW GmbH all claims to which it is entitled from a resale and after processing or transferring the goods to third parties, including all security and ancillary rights, up to the invoice amount in full including the interest of Gerflor DLW GmbH, without the need for a special agreement in the individual case. Upon the request of Gerflor DLW GmbH, the customer shall provide the information about the assigned claims which is required for collection and notify the debtors of the assignment. Gerflor DLW GmbH shall accept this assignment.
12.4 If it is determined in a resale that the buyer cannot provide Gerflor DLW GmbH with the claim against the third parties, for example, due to global assignments that it has made, the buyer shall only be entitled to resell the goods insofar as they have already been fully transferred into its possession. Gerflor DLW GmbH is obligated to transfer back the claims assigned as security, as soon as the buyer fulfills its obligations with respect to Gerflor DLW GmbH.
12.5 Gerflor DLW GmbH shall undertake to release the securities to which it is entitled at its discretion, upon the buyer’s request, to the extent that the value of the claims to be secured exceed 20%.
12.6 The buyer is entitled – revocable at any time - to collect the assigned claim. It shall undertake to maintain the money received in a fiduciary manner and to pay this money to Gerflor DLW GmbH; it already transfers the proceeds to Gerflor DLW GmbH or assigns the claim to the proceeds to Gerflor DLW GmbH.
12.7 The buyer shall undertake to immediately notify Gerflor DLW GmbH in writing of any impairment of rights from any expanded or extended retention of title which is impending, or which has already occurred, such as through global assignments or foreclosures, and shall refer third parties to the rights held by Gerflor DLW GmbH.
12.8 If a foreign legal order – in so far as it applies to the contractual relationship in the first place – does not allow for Gerflor DLW GmbH to have a retention of title, the buyer shall be obligated to participate in all legal acts that allow Gerflor DLW GmbH to have an appropriate (as comparable as possible) security in rem.
13. Place of Performance, Place of Jurisdiction, Applicable law
13.1 The place of performance is Bietigheim-Bissingen. If the contractual parties are merchants, legal entities governed by public law or special funds under public law, or if at least one of the contractual parties has no place of general jurisdiction in Germany, the exclusive place of jurisdiction – in procedures based on documents and bills of exchange, as well – is Heilbronn/Neckar. However, Gerflor DLW GmbH may also file a claim against the buyer at the buyer’s registered office.
13.2 German law shall apply exclusively under the exclusion of international private law and the United Nations Convention on Contracts for the International Sale of Goods.
Gerflor DLW GmbH
P. O. Box 1253
Dated March 2018