General Terms and Conditions of Business and Delivery
H. Geiger GmbH Stein- und Schotterwerke
Last updated: February 2017
1.1 The following General Terms and Conditions of Business and Delivery apply to all purchases of stone and gravel products as well as mixed asphalt products (hereinafter referred to as “Goods”) agreed after 01.01.2002. This shall also apply if we do not explicitly refer to them when dealing with subsequent contracts, unless the purchaser is a consumer as defined in § 13 of the German Civil Code (BGB). Any conflicting terms and conditions or terms and conditions which differ from our T&Cs shall be binding for us only if we have expressly agreed to them in each individual case.
1.2 Where individual provisions apply exclusively to entrepreneurs as defined in § 14 of the German Civil Code (BGB), these are printed in italics.
2.1 All of our quotations are subject to confirmation and non-binding. They are provided in particular with the reservation that the Goods which are to be delivered may be sold in the meantime or that the circumstances surrounding the quotation may change.
2.2 Modifications and supplements to the quotations must always be made in writing if they are to be effective. Any subsidiary verbal agreements or verbal assurances which go beyond the scope of the written contract shall be ineffective.
3.1 Any prices determined shall be based upon our price lists which are valid at the time and shall not include statutory value added tax. If the purchaser is an entrepreneur, we shall be entitled to increase our prices if such increases are a result of changes to factors which affect pricing (e.g. collective wage agreements, the cost of raw materials or energy, the cost of auxiliary and working materials, the cost of merchandise) which occur following the conclusion of the contract.
3.2 Unless agreed otherwise, any prices for deliveries and services provided shall be ex-works prices.
3.3 If Goods are to be delivered free of charge to the construction site, the price shall include delivery in fully loaded heavy goods vehicles. We shall be entitled to pass on to the customer any increases in freight rates or transport costs which occur following the conclusion of the contract. A supplement for small-volume deliveries shall be charged where the volume of goods delivered is less than the minimum order volume. Tipping/unloading at a number of different locations shall not be included in the price. A supplement shall be charged where rigid trucks without trailers or multi-axle vehicles are used. For stone and gravel products, the price includes waiting and standing times of up to 15 minutes. For bituminous mixed asphalt products, waiting and standing times of up to 30 minutes are included. The customer shall be billed separately for any longer periods of time spent waiting or standing. Waiting or standing times shall also be billed if they have not been confirmed by the purchaser. The ordering party shall recognise the tachograph disc of the relevant transportation vehicles as documentary evidence of time spent waiting or standing.
4. Determining the weight/quantity of the Goods
4.1 The weight of the Goods shall be calculated using scales which are to be selected by us.
4.2 Complaints regarding the weight and quantity of the Goods may only be made immediately after the Goods have arrived at the delivery address and before they have been unloaded.
5.1 The purchaser shall be liable for any consequences incurred as a result of giving incorrect and/or incomplete information when ordering Goods.
5.2 Goods shall be either collected from the factory or delivered to the agreed address. In the event that the method of delivery is subsequently changed at the request of the purchaser, the purchaser shall bear all costs incurred as a result.
5.3 Bituminous construction materials shall be supplied with a proportion of binder which is normal for the type of stone and the particle size in accordance with the Additional Terms and Conditions of Contract and Guidelines for the Construction of Carriageways using Asphalt (ZTV Asphalt-StB) and the Additional Terms and Conditions of Contract and Guidelines for Base Layers in Road Building (ZTVT-StB).
5.4 Where deliveries are to be made to an agreed address, the delivery vehicle must be able to arrive at and subsequently leave the site safely. An adequately reinforced access road which can be freely used by large heavy goods vehicles must therefore be available. If this is not the case, the purchaser shall be liable for all damages incurred as a result unless the purchaser is not responsible for the fact that no suitable access road is available. Entrepreneurs shall be liable for any damages, regardless of who is at fault. In the event that, for whatever reason, it is not possible or not reasonably possible to gain access to the place of unloading, the Goods shall be unloaded at the furthest point which the vehicle is able to reach unhindered. The customer itself shall be responsible for unloading if the Goods supplied cannot be unloaded by pouring or tipping. The customer shall bear the costs incurred as a result of unloading the Goods.
5.5 We shall be entitled to make partial deliveries and to carry out the partial performance of services at any time.
6. Passing of risk
6.1 The headquarters of our company shall be agreed as the place of performance for delivery and payment.The risk of accidental destruction and accidental deterioration of the Goods shall be transferred to the purchaser when the Goods are dispatched but, at the latest, when they leave our company.If requested by the customer, we can insure deliveries against the usual transport risks at the customer's expense.
6.2 In the event that the Goods are ready for dispatch and there is a subsequent delay in dispatching or accepting them for which we are not responsible, the risk shall be transferred to the purchaser when the purchaser receives notification that the Goods are ready for dispatch.
6.3 Sections 6.1 to 6.2 shall apply even if partial deliveries are made and we have taken on other services.
7. Time of delivery and performance
7.1 The dates and deadlines specified by us shall be non-binding unless explicitly otherwise agreed in writing.
If explicitly otherwise agreed in writing, the delivery deadline shall be deemed to have been met if the Goods to be delivered have left our factory prior to the expiry of the deadline or notification that the Goods are ready for dispatch has been given.
7.2 In the event that a non-binding date for making delivery/providing a service or a non-binding deadline for making delivery/providing a service is exceeded, the ordering party shall have a period of 24 hours, starting from this date or deadline, within which it can demand in writing that we make the delivery/provide the service within a reasonable period. With this reminder, we shall be deemed to be in default of performance. Following the expiry of this deadline, the ordering party shall be entitled to demand compensation and/or to rescind the contract if the Goods have not been delivered or made available by the expiry of the deadline. The ordering party shall have no right of rescission if we are not responsible for the delay in delivery.
7.3 Occurrences such as force majeure, transport delays owing to traffic disruption, defective means of transport, operational disruptions, strikes, lock-outs, disruptions to work for political or economic reasons, defective raw materials and operating materials or any other events for which we are not responsible shall entitle us to rescind the contract in full or in part or to postpone delivery, without giving the customer grounds to make claims for compensation.
7.4 The customer shall be responsible for ensuring that any documents which it is to obtain or produce for the purposes of executing the order are complete, correct and available in good time. If such documents are sent electronically, they shall be binding only if we have explicitly confirmed that they have been received in full.
7.5 In the event of a delay on our part, the purchaser shall be entitled to demand compensation for each full week of the delay which has elapsed, provided that it can prove that it has suffered damage as a result of the delay. This compensation shall be equal to 0.5%, though no more than a total of 5%, of the price for the part of the delivery which could not be put into appropriate operation owing to the delay.
7.6 Claims for compensation on the part of the purchaser owing to a delay in delivery as well as claims for compensation in lieu of performance which go beyond the limits set out in Section 7.5 shall be excluded in all cases of delayed delivery, even in cases where we have been set a deadline for delivery. This shall not apply where our liability is mandatory, i.e. in cases of wilful intent or gross negligence or owing to injury to life, body or health. The purchaser shall be entitled to rescind the contract within the scope of the legal provisions only if we are responsible for the delay in the delivery. No change in the burden of proof to the detriment of the customer is associated with the above provisions.
7.7 The customer shall be obliged, at our request and within a reasonable period, to declare whether it shall rescind the contract as a result of the delay in delivery or insist upon said delivery being made.
7.8 In the event that there is a delay of more than two weeks in dispatching, delivering or collecting the Goods following notification that the Goods are ready for dispatch and the customer is responsible for this delay, we shall be entitled to charge standard penalty charges equal to 0.5%, though no more than a total of 5%, of the price of the delivery articles for each full week which has elapsed. We as well as the customer shall remain at liberty to prove that the damages suffered were more or less severe.
7.9 In the event that we set aside production capacities at the request of the customer and the order is not executed or there is a delay in executing the order owing to reasons for which we are not responsible, the customer shall be liable for any damages suffered as a result.
8. Conditions of payment
8.1 Unless otherwise agreed, the prices quoted are ex-works or ex-delivery warehouse prices and do not include freight and packaging costs and value added tax.
Our invoices shall be payable at our company headquarters immediately after delivery; discounts and any other reductions must be agreed separately.
8.2 We reserve the right to accept bills of exchange. We may refuse to accept cheques where there are reasonable doubts regarding the customer's ability to cover the costs. Any cheques accepted shall be accepted only on account of performance. Discounting and collection fees and any other costs shall be borne by the customer and paid immediately in cash. A guarantee on our part for presentation at the due and proper time and for lodging a protest etc. shall be excluded.
All claims on our part shall become due for payment immediately in the event that the customer defaults in fulfilling another obligation towards us. The same shall apply if the customer ceases payment, is heavily indebted, if insolvency proceedings have been instituted against its assets or the instituting of such proceedings has been refused owing to lack of assets, or if circumstances become known which give rise to reasonable doubts regarding the creditworthiness of the customer.
In the event of a default in payment, we shall be entitled – without prejudice to further claims – to charge interest at the rate which is standard in the banking industry but at a rate no lower than 5 percentage points above the respective base rate of the European Central Bank. In the case of entrepreneurs, the rate of interest shall be at least 8 percentage points above the base rate.
In the event of a default in payment on the part of the customer, we shall be entitled – at our discretion – to make further deliveries or services subject to the making of advance payments, to demand compensation owing to a delay in performance or to rescind the contract. Where consumer goods are purchased, this shall apply only if special reference has been made to such consequences in the invoice or payment summary. The legal consequences shall not apply where the customer has made a justifiable complaint regarding the delivery. In addition, we shall also be entitled to give back any bills of exchange accepted prior to expiry and demand immediate payment in cash.
8.3 In the event of claims based upon a number of deliveries or services, we shall be at liberty to offset monies received against any of the outstanding debts.
8.4 If the purchaser is an entrepreneur, he shall waive the option of asserting any right of retention, unless the claim on the part of the purchaser upon which the right of retention is based is not contested by us, is acknowledged or established as legally binding or a decision regarding the claim is pending.
8.5 Offsetting on the part of the purchaser with counterclaims of any kind shall be excluded unless the counterclaim asserted for offsetting purposes is not contested by us, is acknowledged or has been established as legally binding.
9. Samples, colours, material properties, special conditions applying to natural-stone deliveries
9.1 The following applies to natural-stone products: Samples show only the general appearance of the stone with regard to colour and other material properties. Any samples issued shall be non-binding because they can never provide a complete picture of the properties as well as the colour, markings, texture and structure of the natural stone.
9.2 The differences in texture and colour, clouding and changes seen in natural-stone products as well as the naturally occurring pores, openings, inclusions, cracks, quartz veins etc. do not reduce the natural value of the stone. Such abnormalities are characteristic features of natural stone and do not represent faults. We accept no responsibility for this. We are unable to guarantee that our products are absolutely frost-resistant.
9.3 In the case of brightly coloured marble, fusing pieces together in the appropriate manner, taking apart sections with loose veins or colour tinges and putting them back together again, reinforcing pieces by attaching solid slabs underneath them (doubling) and attaching braces, dowels and stone inserts depending on the make-up and characteristic qualities of the particular type of marble are not only inevitable but also essential requirements when working with the stone.
10. Claims owing to material defects
10.1 The purchaser must make a complaint regarding any abnormalities relating to the type, properties and quantity of the Goods delivered without delay, provided that these abnormalities are obvious. In this case, the purchaser must leave the Goods untouched in order that we can carry out a subsequent inspection. In the event that the ordering party lays or processes materials delivered by us in spite of the fact that these materials have recognisable defects, any guarantee on our part shall be invalidated. Entrepreneurs must make a complaint regarding any non-obvious defects, regardless of type, immediately after they are discovered and within one year of delivery at the latest. This shall not apply to defects to which § 438 Para. 1 No. 2 b of the German Civil Code (BGB) applies. Verbal complaints or complaints made by telephone must subsequently be confirmed in writing.
10.2 When a complaint is made, a sample must be taken in accordance with the DIN standards currently in force and the details of the official findings of an inspection carried out by a recognised testing institute must be sent. Samples must be taken in the presence of a person specially appointed by us and treated in accordance with regulations.
10.3 If the article purchased proves to be defective, we shall be at liberty to either rectify the defect or to supply an article which is free of defects (subsequent performance). If the purchaser is an entrepreneur, we shall provide subsequent performance only by supplying an article which is free of defects.We can accept liability for defects only where the defects are substantial in nature. In the event that one or both types of subsequent performance is/are impossible or unreasonable, we shall be entitled to refuse it.
We shall also be entitled to refuse subsequent performance if the purchaser has not fulfilled its payment obligations towards us to an extent which corresponds to the non-defective part of the service provided.
10.4 It the event that the subsequent performance described in Paragraph 3 is not possible or fails, the purchaser shall have the right to decide whether to reduce the purchase price accordingly or to rescind the contract in accordance with the legal regulations. This shall apply in particular in cases where subsequent performance is delayed or refused and likewise if the subsequent performance fails on a second occasion. If, following failed subsequent performance, the purchaser rescinds the contract or demands a reduction, it shall not be entitled to make any additional claim for compensation owing to the defect.
10.5 Unless specified otherwise below (Paragraph 6), further claims on the part of the purchaser, regardless of their cause in law (in particular secondary obligations, unauthorised conduct and other tortious liability and claims for the reimbursement of expenses with the exception of reimbursements in accordance with § 439 Para. 2 of the German Civil Code (BGB)) shall be excluded. This shall apply in particular to claims arising from damages not affecting the purchased article as well as to claims for compensation for lost profit.
10.6 The exclusion of liability regulated in Paragraph 3 shall not apply in cases where an exclusion or limitation of liability for damages owing to injury to life, body or health, which is based upon a culpable violation of duty on the part of the user, its legal representative or its vicarious agents, has been agreed. It shall likewise not apply in cases where an exclusion or limitation of liability for other damages based on the wilful or grossly negligent violation of duty on our part or the wilful or grossly negligent violation of duty on the part of a legal representative or vicarious agent has been agreed.
In the event of a culpable violation of an essential contractual obligation or a material contractual obligation, liability shall not be excluded but shall be limited to the typical damages foreseeable in contracts of this type.
Furthermore, where the delivered Goods are defective, the exclusion of liability shall not apply in cases in which liability is assumed under the German Product Liability Law for personal injury or material damage to privately used objects.
It shall likewise not apply where a warranty is provided or where an assurance regarding a property is given if a defect covered by this has already rendered the user liable. A warranty or assurance given as a way of increasing liability or the acceptance of a particular obligation to assume liability shall be deemed to have been granted only if the terms “warranty” or “assurance” are explicitly mentioned in writing.
The above shall apply accordingly to the reimbursement of expenses.
10.7 No liability shall be accepted for damage caused by the following:
inappropriate or improper use, incorrect installation carried out by the ordering party or third parties, natural wear and tear, improper or negligent treatment, inappropriate work materials, inadequate construction work, unsuitable building ground, alternative materials, chemical, electrochemical or electrical influences (unless we are responsible for them), improper modifications or repair work carried out by the customer or third parties without our prior permission.
Any claims for subsequent performance shall come under the statute of limitations one year after delivery of the article purchased. This one-year limitation period shall not apply to a construction or to an article which has been used in the usual manner for a construction and has caused this construction to become defective. In this case, a limitation period of five years shall apply.
Any claims for reductions and the exercising of a right of rescission shall be excluded if the right to subsequent performance has already come under the statute of limitations.
However, in the scenario described in Clause 3, the purchaser shall be entitled to refuse payment of the purchase price to the extent to which it would be entitled owing to the rescission or the reduction.
10.8 Claims for recourse from the manufacturer shall remain unaffected by this section.
11. Security rights
11.1 We shall retain title to the Goods delivered until all claims to which we are entitled on the basis of the business relationship, including all secondary claims (e.g. interest) in this respect, have been paid in full.
11.2 The purchaser shall be authorised, until such authorisation is revoked, to process, mix, blend or combine the supplied and treated goods without giving rise to any obligations on our part. It shall not be authorised to pledge the Goods delivered or to assign the Goods delivered by way of security.We must be notified immediately of any impairment of title; the same shall apply if an application is made to institute insolvency proceedings.In the event that the purchaser processes, mixes, blends or combines the reserved goods with foreign articles, we shall acquire co-ownership of the new article according to the relative value of the processing raw materials. The purchaser shall keep said new article in safe custody free of charge.
11.3 In the event that the reserved goods are sold with other goods which do not belong to us or new articles produced from our goods, or our goods are mixed, blended or combined with an extraneous site or an extraneous movable article, the purchaser shall immediately assign to us this claim with all ancillary rights amounting to the value of our goods, with priority over the remaining part of its claims, as security for the fulfilment of our claims. The same shall apply to the same extent to its rights to grant securities in accordance with §§ 648, 648 a of the German Civil Code (BGB) owing to the processing of our goods on account of and amounting to our entire outstanding claims.
We shall accept these assignments.
At our request, the purchaser shall provide us with detailed evidence of these claims, notify any subsequent purchasers of the assignment and demand that said subsequent purchasers make payment to us amounting to the value of our claims. We shall be entitled to notify the subsequent purchasers of the assignment ourselves and to collect the claim.
11.4 In the event that the purchaser collects parts of claims which it has assigned to us, it shall assign to us immediately its remaining claim amounting to these parts of claims with priority over any additional remaining sum. We shall accept this assignment as well. Our entitlement to demand the handing over of the sums collected shall remain unaffected by this.
11.5 The purchaser may neither assign nor pledge its claims against subsequent purchasers amounting to the value of our goods.
11.6 In the event that the purchaser ceases payment, makes an application to institute or institutes insolvency proceedings or judicial or extra-judicial composition proceedings, or suffers any other loss of assets, the vendor shall be entitled to demand that the purchaser notify it of the claims assigned and their debtors, provide it with all information required for collection, hand over the associated documentation and notify the debtor of the assignment. The vendor shall be entitled to collect the claim itself or to demand payment by the third-party debtor.
11.7 If the terms and conditions of purchase of the third-party debtor limit authority to carry out assignments or if the third-party debtor declares that the assignment of the purchase-price claim is subject to its agreement, we must be notified of this fact without delay. In this case, we shall be irrevocably authorised at the same time to collect the claim arising from the sale of the reserved goods in the name of and for the account of the purchaser.At the same time, the purchaser shall irrevocably issue the third-party debtor with an order for payment in our favour.We shall be entitled to disclose the assignment to the purchaser’s recipients.The purchaser shall provide us with all necessary information in order to enable us to do so.
11.8 At our request, the purchaser shall set aside the sums collected and pay them to us; if it fails to do so, any sums collected shall be our property and shall be kept separately, free of charge, and with the diligence of a prudent businessman. In the event that the value of the securities granted to us exceeds the value of our claims by more than 20%, we shall be obliged, at the request of the purchaser, to transfer reserved property and assigned claims to the purchaser to this extent.
11.9 The “value of our goods” for the purposes of Section 11 corresponds to the total sum (including statutory VAT) of the purchase price shown in our invoices, plus an additional 20%.
11.10 The vendor shall be entitled to demand the provision of adequate further securities.
12. Place of performance and place of jurisdiction
12.1 Unless otherwise agreed, the place of performance shall be our works.
12.2 The place of jurisdiction for all legal disputes arising from the contractual relationship as well as its coming into being and its effectiveness shall be Nuremberg. For bills of exchange and cheque processes, Nuremberg shall be the exclusive place of jurisdiction.
13. Partial invalidity of provisions
In the event that any of the individual provisions above become invalid, this shall not affect the
H. Geiger GmbH Stein- und Schotterwerke is basically not obliged nor willing to take part at a dispute resolution for consumers according to § 36 VSBG (“Verbraucherstreitbeilegungsgesetz”) at a consumer arbitration board.