General Sales, Delivery and Payment Terms in the B2B sector
The incorporation of contrary and/ or contradictory terms and conditions of the contract partners are hereby expressly and permanently excluded.
1.1 These sales, delivery and payment terms are included in every contract entered into between DLW Flooring GmbH and a purchaser.
The incorporation of conflicting and/ or contradictory terms and conditions of the purchasers is hereby expressly excluded. Side agreements, assurances or amendments to these terms and conditions are only binding in the case of explicit, written acknowledgement on the part of DLW Flooring GmbH.
1.2 A contract shall only be considered entered into upon written order confirmation or delivery of the merchandise by DLW Flooring GmbH.
1.3 The salespersons of DLW Flooring GmbH are not entitled to make verbal side agreements or to provide assurances, which are beyond the scope of the written contract.
1.4 The properties of the samples presented are only deemed to be ensured, to the extent that these samples are expressly identified as quality standard samples. Small colour variations between various production series (batches) are unavoidable and must be tolerated.
1.5 Force majeure, operational shutdowns, production restrictions, strikes, damage to production facilities, non-delivery or delivery delays on the part of the upstream suppliers, actions by authorities and similar, unforeseen events shall release DLW Flooring GmbH from the obligation to fulfil the contracts it has entered into. As a result, the purchaser shall have no damage compensation claims.
2.1 The services and advertising representations of DLW Flooring GmbH do not constitute any offer to enter into a contract, but are invitations to treat (so-called invitatii ad offerendum) and, as such, their content is non-binding.
2.2 Should the order of the purchaser qualify as an offer under § 145 of the German Civil Code, DLW Flooring GmbH may accept it within a period of 2 weeks.
3. Prices – Payment Terms
3.1 Unless otherwise stipulated in the order confirmation, the prices of DLW Flooring GmbH apply "Ex Works", excluding packaging, which is invoiced separately.
3.2 The statutory value-added tax is not included in the prices; it is separately indicated as required in the invoice on the date of invoice.
3.3 Any deduction of discounts requires special written agreement.
3.4 Unless otherwise stipulated in the order confirmation, the purchase price (without deduction) is payable within 30 days of the invoice date. The statutory regulations regarding the consequences of late payment apply.
3.5 In the event of a previously agreed payment by accepted bill of exchange, DLW Flooring GmbH shall apply the same discount rate as in the case of cash payments. The purchaser shall bear all expenses [related thereto].
3.6 Should the purchaser fall into arrears with regards to a payment, then DLW Flooring GmbH may withhold delivery of the merchandise until a pari passu (= purchase price for merchandise) payment of the purchase price is offered, without affecting other and further rights and remedies of DLW Flooring GmbH.
3.7 If after the contract has been entered into, costs change, in particular because of any collective bargaining agreements and/or material, wage and transport cost changes DLW Flooring GmbH reserves the right to change the prices accordingly to a reasonable extent. DLW-Flooring GmbH shall communicate the changed prices at least one month in advance. For orders on call, the adjusted prices apply also to those deliveries, which are accepted after the adjustment period. Should the reasonable price adjustment exceed the previous price by more than 10%, the purchaser may withdraw from the contract in writing.
4. Delivery and Invoicing
4.1 The delivery takes place as per the form of delivery applicable to the product.
4.2 For merchandise not included in the collection (tailor-made as per customer request), production-related quantity deviations of up to 10% above the agreed scope shall be deemed approved; the purchaser shall in this case be liable to pay for the quantity actually delivered. The same applies to quantity deviations up to 10 % below the agreed scope.
4.3 Information regarding the delivery period refer to expected delivery times.
4.4 The delivery shall be made EX WORKS (Incoterms 2010), unless otherwise agreed.
4.5 Should the merchandise be delivered at the address of the purchaser the purchaser shall bear the resulting additional costs (freight charge). Should the purchaser require a specific mode of transport, it shall bear the relevant additional costs.
4.6 As expressly agreed, DLW Flooring GmbH shall pay for the freight charges to the relevant destination of the recipient; DLW Flooring GmbH reserves the right to select the forwarding route and medium.
5. On call delivery contracts
5.1 Orders on call must – unless otherwise agreed – be accepted within a period of 3 months..
5.2 Unless otherwise agreed, binding quantities are to be communicated by call-up at least 2 weeks prior to the delivery date.
5.3 The purchaser shall bear those additional costs, which are caused by delayed call-off or subsequent changes to the call-off with regards to time or quantity caused by the purchaser itself by.
5.4 Following the unsuccessful expiry of a grace period for acceptance of 14 calendar days, DLW Flooring GmbH is entitled to damage compensation for loss of profit up to 10 % of the agreed price, without prejudice to the right to claim higher damages. The customer is however entitled to provide evidence that DLW Flooring GmbH sustained little or no damage.
6. Transport damage
Noticeable transport damages shall be indicated in writing immediately after receipt of the merchandise. Hidden transport damage is to be claimed in writing from the delivering person entrusted with the shipment, at the latest within a period of seven days after receipt of the merchandise.
7. Storage costs
7.1 Should the purchaser already be either entirely or partially in arrears at the time of accepting the merchandise, DLW Flooring GmbH is then entitled, for the account and risk of the purchaser, to either store the delivery itself or to store it with a freight forwarder.
7.2 For own storage, DLW Flooring GmbH shall charge storage costs to the value of 0.5 % of the (proportional) invoice amount per month, however not more than 10 % of the (proportional) invoice amount. Each commenced month shall be considered a month.
8. Liability for defects, compliance with maintenance and installation instructions
8.1 The purchaser must inspect the delivered items for visible defects, which would immediately be apparent to any diligent businessman. The purchaser shall object to DLW Flooring GmbH in writing to any visible defects, such as for example identifiable damages, within a period of one week following receipt of the delivery.
8.2 The purchaser must claim vis-à-vis DLW Flooring GmbH in writing those defects which become visible only later albeit prior to the expiry of the limitation period for defect claims, within one week after having been identified.
8.3 The limitation for the defect claims is 12 months, where the start of the period is subject to the relevant legislation. The period of limitation does not take effect in the case of fraudulent intent, wilful or gross negligence, or in the cases mentioned in §§ 478,479 of German Civil Code, or in the case of injury to life, limb, and/or health.
8.4 For flooring, the limitation of the defect claims, is five years as of the time of risk transfer, if the coverings are as per DIN 18 365 - Working with Floor Coverings - adhered or installed throughout the entire floor space and it caused the deficiency of the building structure, in which it is adhered or installed (§ 438 para. 1 No. 2 lit. b of the German Civil Code, § 634a para. 1 No. 2 of the German Civil Code). The purchaser shall provide evidence for a suitable, defect-free subfloor, compliance with the recognised regulatory laying technique, the use of suitable adhesive agents, appropriate workmanship, normal wear and tear – this is understood to refer to wear and tear that is customary for the intended recommended use and that is visibly to be expected by the manufacturer - and compliance with the cleaning and maintenance recommendations, also on the part of the purchaser's subcontractors.
8.5 Customary, small deviations in quality, weight, size, thickness, width, finishing, patterning and colour, that are permitted as per the relevant quality standards are not considered defects.
8.6 The remaining shadings that, in some cases, can be found on the velour carpet after installation, is not considered a defect, since the cause is neither material nor manufacturing-related.
8.7 Merchandise labels and delivery notes are to be sent in when submitting defect claims.
8.8 Should DLW Flooring GmbH have provided a defective delivery or service, the purchaser must give DLW Flooring GmbH an opportunity to redeliver or perform the service again within reasonable deadlines, if, on a case-by-case basis, the supplementary performance is not unreasonable for the purchaser or there are special circumstances, which, considering the mutual interests, justify an immediate withdrawal.
8.9 DLW Flooring GmbH is in any case entitled to exercise its own discretion in terms of whether to resolve the defect or deliver a defect-free item.
8.10 A supplementary performance shall only be assumed to have failed, if DLW Flooring GmbH were, within reasonable period of time, twice given sufficient opportunity for rectification, without having achieved the desired result, if the supplementary performance is impossible, if it is refused by DLW Flooring without grounds, or is unreasonably delayed, provided that reasonable doubt with regards to the foreseeable success or unacceptability of the supplementary performance exists on other grounds.
8.11 The merchandise used for rectification and replacement delivery shall be picked from the ongoing production or the existing inventory. No tailor-made products shall be manufactured for this purpose. The merchandise may only be returned if DLW Flooring GmbH has given its permission.
8.12 The cleaning, maintenance, and installation instructions of the respective type of flooring must be considered. The installation and maintenance instructions are in principle enclosed along with the products, but can also be viewed on the Internet at www.dlw.eu or DLW Flooring GmbH would be happy to send it to you again upon request.
9.1 DLW Flooring GmbH may be held liable for damage compensation solely as provided for in the following regulations:
DLW Flooring GmbH shall be held liable on the following grounds
- for wilfully or grossly negligent actions
- for each negligent violation of essential contractual obligations.
9.2 To the extent that DLW Flooring GmbH accepts liability in cases of simple negligence, the obligation to pay compensation is limited to the level of the replacement of the foreseeable contractual damages.
9.3 Liability for material and financial damage is furthermore excluded.
9.4 Liability as per the Product Liability Act as well as injury to life, limb, and/or health is excluded from the limitations of, and exclusions from liability.
9.5 To the extent that, as per above-mentioned regulations, the liability of DLW Flooring GmbH for damage compensation is excluded or restricted, this shall extend also to the personal liability of our institutions, employees and other co-workers, representatives and vicarious agents and applies also to all claims resulting from culpability in the case of contract negotiations, violation of additional obligations and claims due to disallowed actions (§§ 823 et seq. German Civil Code), however not for claims as per §§ 1, 4 Product Liability Act.
10. Netting, Retention Rights and Assignment of Claims
10.1 The purchaser is entitled to netting rights only to the extent that his counter claims are legally established, undisputed or recognised by DLW Flooring GmbH, or there is a narrow synallagmatic relationship to our claim.
10.2 The purchaser is authorised to exercise a right of retention, only to the extent that his counter claim is subject to the same contractual relationship.
10.3 The assignment of claims on the part of the purchaser to DLW Flooring GmbH is excluded.
11.1 DLW Flooring GmbH is at any time entitled to withdraw from the contract, if the financial circumstances of the purchaser have significantly deteriorated and, as a result, the fulfilling of the obligation of the purchaser may be substantially jeopardised.
11.2 These preconditions shall be considered to have been fulfilled, if for example there are suspensions of payment and/or enforcement measures due to payment claims on the part of the purchaser or a personally liable partner of the purchaser.
11.3 The rights of DLW Flooring GmbH exist also in the case that the preconditions indicated above exist already at the time that the contract is concluded, but were not discernible for DLW Flooring GmbH at the time
12. Retention of Title
12.1 The supplied merchandise shall remain the property of DLW Flooring GmbH, until full payment (through payment by check or bill of exchange up to irrevocable payment) has been made of all receivables, which the purchaser owes to DLW Flooring GmbH, irrespective of the relevant legal grounds. In terms of the diligent business dealings, the purchaser is entitled to sell the merchandise to a third party prior to full payment having been made. He is not entitled to engage in pledging or chattel mortgaging.
12.2 The authorisation to sell may be revoked by DLW Flooring GmbH at any time. In case of behaviour in violation of the contract or default on the part of the purchaser, the release of the merchandise may be postponed until full payment has been made.
12.3 As security, and in advance, the purchaser hereby assigns to DLW Flooring GmbH all payments due to third parties that may result from the resale of the merchandise, also after processing or installation thereof, including all guarantee and supplementary rights, up to the amount invoiced by DLW Flooring GmbH, including the interest, without having to conclude a special agreement on a case-by-case basis. If so requested by DLW Flooring GmbH, the subcontractor shall furnish such particulars as may be required to collect the funds, as far as the assigned receivables are concerned, and to inform the debtors of the assignment. DLW Flooring GmbH shall accept such assignment.
12.4 To the extent that in case of a resale it is established, that the purchaser, for example as a result of global assignments undertaken by him, cannot provide DLW Flooring GmbH with the receivables from the third parties, the purchaser is only entitled to resell the merchandise, to the extent that it has already been fully transferred to him and it is now his property. DLW Flooring GmbH is required to transfer back the receivables assigned to them for the purposes of security, as soon as the purchaser has complied with his obligations towards DLW Flooring GmbH.
12.5 DLW Flooring GmbH undertakes to, at its own discretion, and upon request of the purchaser, release the securities to which it is entitled to the extent that the value of the receivables to be secured exceeds 20%.
12.6 The purchaser shall be irrevocably entitled to collect the assigned receivables at any time. He undertakes to keep the money thus received on a fiduciary basis and to pay it to DLW Flooring GmbH; he hereby assigns the proceeds to DLW Flooring GmbH or assigns the claim to the proceeds to DLW Flooring GmbH.
12.7 The purchaser is required, to indicate to DLW Flooring GmbH in writing, any existing or already completed impairment of the rights from the expanded or extended reservation of title, such as may for example result from global assignments or foreclosures, and to make the third parties aware of the rights of DLW Flooring GmbH.
12.8 Should some foreign legal system - to the extent that it in any way applies to the contractual relationship – not enable the retention of title of DLW Flooring GmbH, the purchaser is required to participate in all such legal proceedings, that would provide DLW Flooring GmbH with a reasonably (as closely comparable as possible) materialsecurity.
13. Place of Performance and Jurisdiction
13.1 Place of Performance is Bietigheim-Bissingen. If the contractual parties are businessmen, juristic persons in terms of public law or special entities in terms of public law, or if at least one of the contractual parties does not have any general place of jurisdiction in Germany, the exclusive place of jurisdiction is then Heilbronn/Neckar - also as far as the documents and bills of exchange are concerned. DLW Flooring GmbH may however also take legal action against the purchaser in the domicile of the purchaser.
13.2 German law applies exclusively, to the exclusion of international private law and UN sales law.
DLW Flooring GmbH
P. O. Box 12 53
Dated November, 22nd 2016