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General Terms and Conditions

I. GENERAL

(1)The following General Terms and Conditions shall apply to any offers, deliveries and sales contracts between debolon dessauer bodenbeläge GmbH & Co. KG (hereinafter referred to as “debolon”) and debolon’s contractual partner (hereinafter referred to as “Customer”).
(2) These General Terms and Conditions shall apply exclusively. The application of conflicting or deviating terms and conditions of the Customer is expressly excluded.
(3) Deviations from these General Terms and Conditions shall only be valid if they are confirmed by us in writing. No verbal ancillary agreements have been made. Any general business correspondence that is generated using data processing systems shall not require any signature in order to be legally binding.

II. OFFER AND FORMATION OF CONTRACT

((1) The Customer shall be bound by its offer/order until the Customer receives a written order confirmation from debolon, however, for a maximum period of one month. The contract shall become legally effective upon receipt of the order confirmation from debolon. Only the written order confirmation or similar documents that have been signed by debolon shall be legally binding.
(2) Any subsequent amendments, changes or ancillary agreements shall have to be made in writing and signed (Schriftform) to be valid. Changes, if any, shall not become part of the contract until they have been confirmed by debolon in writing. Agreements made by telephone or verbally shall not be binding unless and until they have been confirmed by debolon in writing. Any commitments by members of debolon’s staff shall only be binding on debolon if they are confirmed to the Customer by debolon inwriting within a reasonable period of time or if the staff member concerned expressly informs the Customer that the commitment is being made with the approval of debolon’s management.
(3) debolon shall retain all rights, title and interest and all copyrights in and to any cost estimates, drawings and other documents. Under no circumstances may any documents which have been provided by debolon be made available to third parties without the prior approval of debolon.
(4) debolon shall not be liable for any differences in quality, weight, size, thickness, width, finish, pattern orcolour which are either customary in trade or permissible according to a standard product norm for this industry or which can be deemed minor variations.

III. PRICES AND TERMS OF PAYMENT

(1) The prices charged for the goods shall be the euro prices that are valid on the day of dispatch of the goods plus value-added tax at the applicable statutory rate. debolon particularly reserves the right to change its prices accordingly if there is an increase or decrease in costs, in particular because of taxes, currency fluctuations or increases in the prices of materials.
(2) Any work, materials or services which are not expressly taken into account in the calculation when the contract is concluded but become necessary for the performance of the order or are provided at the request of the customer will be invoiced separately.
(3) Any deduction of a discount shall be subject to specific agreement in writing.
(4) Unless otherwise stated in the order confirmation, the amount invoiced shall be due immediately when the goods are delivered, regardless of the date on which the invoice is issued or received. The Customer shall be deemed to be in default if payment is not made within 30 days from the delivery or the invoice date. Without prejudice to the preceding provisions, the Customer shall be deemed to be in default after a request for payment has been made. The default interest rate applied shall be 9 percentage points above the German base rate (Basiszinssatz). If debolon is able to prove that the damage or loss actually suffered as a result of the breach of contract is greater, debolon shall be entitled to claim corresponding damages. In this case, debolon shall additionally be entitled to cancel any price reductions, such as rebates etc., which have been granted to the Customer and discontinue the performance of the Customer’s orders until any and all arrears have been paid. If any instalments are not paid when due, the entire amount outstanding under all business relations shall be due immediately.
(5) The Customer shall only be entitled to set its own claims off against debolon’s claims if the Customer’s claims are undisputed or have been finally established by declaratory judgment or otherwise. Furthermore, the Customer may exercise rights to retain only with respect to claims that are undisputed or have been finally established by declaratory judgment or otherwise.
(6) Cheques and bills of exchange shall only be accepted on account of performance. Furthermore, the Customer’s obligations shall not be deemed performed if the Customer pays by cheque but is issued by debolon with a bill of exchange to cover the amount of the cheque and any incidental costs. Any discounting costs and bill-of-exchange charges shall be borne by the Customer.
(7) debolon’s staff shall have no collection authority.

IV. CANCELLATION

(1) debolon shall be entitled to cancel the contract in whole or in part if:
a) any circumstances become known after the contract has been entered into which give reason to believe that the Customer will not properly perform its contractual obligations and that the payment of the consideration is, therefore, at risk (in particular, discontinuation of payments, application to institute insolvency proceedings, insolvency, official statement of non-acceptance or non-payment of cheques or bills and the Customer does not either pay the consideration or provide security even after a reasonable deadline has been set for this purpose;
b) an event of force majeure prevents the performance of any obligations to deliver more than just temporarily;
c) performing the obligation to deliver becomes impossible as a result of the non-delivery of essential raw materials, consumables or supplies by third parties, provided debolon is not responsible for such non-delivery;
d) unforeseen extra-contractual charges or costs (toll and customs duties on imports, taxes or other charges on the contractual goods, currency fluctuations) which do not have to be borne either by the Customer or by debolon complicate or hinder the performance of the obligation to deliver more than just temporarily;
e) complying with the obligations to deliver becomes impossible more than just temporarily as a result of a strike or lockout, whether at the plant of debolon or at the plant of any of debolon’s suppliers, provided that debolon is not responsible for such; or
f) the Customer fails to comply with the provisions concerning the retention of title (see clause X below).
(2) In the event that the contract is cancelled, debolon shall be entitled to recover the contractual goods, remove them or demand that they be returned; the Customer shall have no right to retain with regard to obligations already performed unless the right to retain is based on a claim that is undisputed or has been finally established by declaratory judgment or otherwise. If the contract is cancelled for a reason for which the Customer is responsible, the Customer shall bear the costs which are incurred through the cancellation.
(3) In the event that the contract is cancelled, the Customer shall have no right to retain with regard to any down-payments already made or other claims. Any such claims shall be asserted by the Customer in separate proceedings. The preceding provisions shall not apply to undisputed counterclaims and to counterclaims that have either been acknowledged by debolon or finally established by declaratory judgment or otherwise.

V. DELIVERY

(1) All agreed delivery periods shall be met, if possible. debolon shall not be liable for any delays caused by force majeure, lockout, production constraints, strikes, damage to production facilities, non-delivery or late delivery by suppliers, public authorities’ actions or other unforeseeable events for which debolon is not responsible. In particular, debolon refuses to accept liability for any late delivery or non-delivery which is due to fault on the part of the Customer or the Customer’s vicarious agents.
(2) Under no circumstances shall the Customer be entitled to refuse to take delivery of the goods in the event of late delivery, unless the Customer has set a reasonable additional period of time for delivery by debolon and has announced that the delivery will not be accepted after this period of time has expired.
(3) The delivery shall be carried out in the form agreed for the respective project.

VI. SHIPMENT AND ACCEPTANCE

(1) Delivery shall be free domicile within Germany if the net value of the goods exceeds the amount of EUR 650.00. If the net value of the goods is EUR 650.00 or less, the Customer located within Germany shall be invoiced for a portion of the freight in the lump-sum amount of EUR 50.00. Any additional costs which are incurred because the Customer requests an express shipment or transportation by debolon shall be invoiced separately.

VII. NOTICE OF DEFECTS

(1) (1) Prior to acceptance/acknowledgement of receipt, the Customer shall thoroughly examine the goods and verify that they are complete and undamaged. In the event of complaints, the Customer shall have sole responsibility for ensuring that all measures that need to be taken according to the applicable provisions – in particular, the required recording of the facts – are carried out in due time and in the proper form, and the Customer shall immediately inform debolon and also send debolon a copy of the record. Other complaints about the quality of the goods shall be reported in advance by telephone or by telex without undue delay after the goods have been received, followed immediately by a written confirmation to debolon.
(2) Notices of defects and other complaints, of any kind whatsoever, shall be given or made in writing and be addressed directly to debolon within a preclusion period of one week after the goods have been received or, with hidden defects, within a preclusion period of one week after the relevant defect has been discovered. If the Customer is not a merchant (Kaufmann, as defined by German law, this clause shall apply to obvious defects only and the preclusion period shall be two weeks. In all other respects, the statutory provisions shall apply to this group of persons.
(3) In the event that the goods have obvious defects, once any cutting or processing of the goods has commenced the Customer shall no longer be entitled to give notice of such defects.

VIII. WARRANTY AND LIABILITY

debolon shall be liable for defects of the delivery as follows:
(1) If and to the extent that there are defects as to quality or title, debolon shall be entitled to either remedy the defect or deliver an item that is free from defects (subsequent performance); debolon may choose at its discretion in which form to carry out the subsequent performance. In order for debolon to be liable, the defect must be more than just immaterial. Should one or both forms of subsequent performance be impossible or unreasonable, debolon shall be entitled to refuse such subsequent performance. debolon shall further be entitled to refuse subsequent performance for as long as the Customer does not perform its payment obligations to debolon to the extent which corresponds to the portion of the delivery that is free from defects. debolon shall bear the necessary expenses for subsequent performance, in particular the transport costs, travels expenses and the cost of labour and materials. The assumption of the costs shall be excluded to the extent that additional costs are incurred as a result of the fact that the goods have been brought to a place other than the place of performance. Installation and dismounting costs shall only be borne by debolon if, before carrying out the installation or dismounting, the Customer has set a reasonable deadline for debolon to perform such work itself.
(2) Should subsequent performance according to paragraph (1) above fail or be unreasonable for the Customer or should debolon refuse both forms of subsequent performance within the meaning of Sec. 439 (3) German Civil Code (BGB), the Customer shall be entitled to reduce the purchase price accordingly or, at the Customer’s option, to cancel the contract in accordance with the statutory provisions.
(3) debolon’s warranty shall not cover any damage which is due to any of the following causes: inadequate or improper use, faulty installation by the Customer or a third party, natural and normal wear and tear, incorrect or negligent treatment, excessive strain, unsuitable supplies, poor construction work, inadequate building ground, chemical, electrochemical or electrical impacts (unless debolon is responsible for such), improper alterations or repairs which are carried out by the Customer or a third party without prior approval by debolon.
(4) The Customer shall verify before any flooring is laid that the rolls that are to be laid next to each other match in terms of colour and pattern repeat.
(5) The warranty shall expire if the goods are damaged through any inappropriate, culpable conduct of the Customer or a third party or if no supporting documentation is provided regarding the date of the purchase or the adequacy and freedom from defects of the under-floor. Furthermore, the Customer’s warranty claim shall expire if the Customer or a third party lays the purchased flooring without observing the generally accepted rules of the trade and the occurring defect can be attributed to this. In addition, the warranty shall also expire if the Customer fails to comply with debolon’s instructions regarding how to treat the goods, in particular any recommendations as to how to lay and take care of the flooring and does not use an adequate adhesive or other substance.
(6) Complaints cannot be accepted if the goods are not first-quality merchandise and their usability is not materially affected or if the defect has already been taken into account when determining the price. Furthermore, debolon shall not accept any complaints in respect of impairments which are inevitable according to the state of the art in technology.
(7) When asserting warranty claims, the Purchaser shall bear the burden of proof; product labels and delivery notes must be inspected.
(8) The preceding refusal to accept liability shall not apply to debolon’s liability for any damage or loss resulting from death, bodily injury or damage to health or liability under the German Product Liability Act (ProdHaftG); to claims by the Customer on the basis of any guarantee given for a particular quality (Beschaffenheit) or the durability of the goods; and where the damage or loss is due to wilful misconduct or gross negligence.
(9) To the extent that debolon’s liability is excluded or limited, this shall also apply to the personal liability of debolon’s executives, employees, staff, representatives and vicarious agents.

IX. LIMITATION PERIOD

(1) All claims against debolon shall be time-barred after the expiry of one year from the statutory commencement of the limitation period. This shall not apply if debolon has given a guarantee for a particular quality (Beschaffenheitsgarantie), if the Customer has claims based on death, bodily injury or damage to health, if debolon has committed a gross breach of duty or a breach of material contractual obligations, and for cancellation rights which are not due to a breach of duty by debolon in the form of a defect as to quality.
(2) The preceding provisions shall not affect the provisions of Sec. 438 (1) no 2 German Civil Code, Sec. 634a (1) no 2 German Civil Code and Sec. 852 German Civil Code. 03

X. RETENTION OF TITLE

(1) All contractual goods shall remain the property of debolon until the agreed contractual price and any and all incidental payments and other current or future receivables from the Customer which debolon is entitled to from any legal transactions have been paid in full. In the event of a running account arrangement, it is expressly agreed that this clause shall also apply to any claims regarding the respective surplus/balance (ef. Sec. 355 German Commercial Code).
(2) If the so-called cheque/bill of exchange procedure (Scheck-Wechsel-Verfahren) has been agreed, the retention of title shall additionally cover the payment by the bank of the bill of exchange that has been accepted by debolon and shall not expire when the cheque is credited to debolon’s bank account.
(3) As long as the goods are the property of debolon, they shall be made available to the customer on a loan basis until all of the aforesaid liabilities have been paid in full. In the event of a breach of contract by the Customer, including default of payment, debolon shall be entitled to take the goods back.
(4) Goods to which title is retained shall be converted and processed free of charge on behalf of debolon, with the proviso that debolon shall also be considered the manufacturer according to Sec. 950 German Civil Code; this means that debolon shall become or remain the owner of the processed or transformed goods, at any time and level of processing. If the goods to which title is retained are processed by the Customer together with other goods which are not owned by debolon, debolon shall be entitled to co-ownership of the new item according to the ratio of the order value of the goods to which title is retained to the other processed goods at the time of processing.
(5) The Customer shall, however, be entitled to resell, convert or process the goods in the ordinary course of business. In such case, any converting or processing shall be carried out on behalf of debolon, so that debolon shall also become or remain the owner (or, as the case may be, the co-owner) of the processed goods. The same shall apply in the event that a new item is created (Sec. 950 German Civil Code).
(6) The Customer hereby assigns its claim from any resale to debolon in an amount equal to debolon’s outstanding receivables from the Customer. If the goods to which title is retained are resold together with other goods not owned by debolon at an aggregate price, the Customer hereby assigns its claim from the resale to debolon in an amount equal to the value of those of the goods to which title is retained which, together with the other goods, are the subject matter of the reselling agreement or part of the item(s) sold. The preceding assignment as security for debolon’s claims shall also cover any claims against third parties which the Customer acquires because the goods to which title is retained by debolon are combined with real property. The assignment provisions shall further apply to goods to which title is retained that have already been cut and/or processed.
(7) If the goods delivered are inseparably mixed with other items not owned by debolon, debolon shall acquire co-ownership of the new item according to the ratio of the value of the delivered item to the other items mixed at the time of mixing. In the event that the items are mixed in such a manner that the Customer’s item can be considered the principal item, it is agreed that the Customer shall transfer a proportionate co-ownership interest to debolon.
(8) In the event of a permitted resale of the goods to which title is retained, debolon shall authorise the Customer, subject to revocation, to collect the receivables resulting from the resale. debolon shall refrain from making use of its own collection right for as long as the Customer performs its payment obligations. Upon request by debolon, the Customer shall inform debolon who the debtor of the assigned receivables is and notify such debtor of the assignment. The Customer shall not beauthorised to dispose of these receivables in any other manner.
(9) In the event of an encroachment by the Customer’s creditors, in particular if the goods supplied are subject to attachment proceedings, the Customer shall immediately notify debolon and provide debolon with the respective notice in writing on the same day. The costs of any measures taken to eliminate the encroachment, in particular the costs of proceedings following an action brought by debolon as the party claiming title to the attached goods in opposition to the execution of the judgment, shall be borne by the Customer unless these costs are recovered from the opposing party.
(10) For the duration of the retention of title, the goods to which title is retained shall be insured by the Customer at its own expense at full value against theft, fire, etc. The Customer hereby assigns its rights under the insurance policies to debolon, with immediate effect.
(11) If the Customer is in default with its payment obligations or if insolvency proceedings are instituted against the assets of the Customer, the entire sum owed at this time shall become due; this shall also apply to the extent that bills of exchange with a later maturity exist. In this case, the right to use the goods to which title is retained shall expire and debolon shall be entitled to demand that the Customer surrender these goods immediately. debolon particularly reserves the right to enter the Customer’s business premises/warehouses or building sites upon prior announcement in order to collect the goods to which title is retained.

XI. PLACE OF JURISDICTION AND FINAL PROVISIONS

(1) The place of jurisdiction for any disputes arising out of the contractual relationship and any other business relations between the Customer and debolon shall be Dessau-Roßlau, Germany, if the Customer is a merchant (Kaufmann), as defined by German law. However, debolon shall also be entitled to sue the Customer at the Customer’s general place of jurisdiction.
(2) If the Customer’s registered office is situated in Germany, the contractual relationship between the Customer and debolon shall be governed exclusively by German law, without regard to the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(3) If the Customer’s registered office is situated outside Germany, German law including the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall apply. In this case, the special provisions set out below shall apply in derogation of the preceding sales conditions with regard to the written form and debolon’s liability for breaches of contract:
a) Any changes to the contract and cancellations shall be made in writing and signed. This shall also apply to any agreement concerning the cancellation of this agreement on the written form. b) debolon shall be liable to the Customer for damages according to the statutory provisions if a breach of contract is due to a wilful or grossly negligent breach of contract for which debolon is responsible; any fault on the part of debolon’s representatives or vicarious agents shall be attributed to debolon. debolon shall further be liable according to the statutory provisions if and to the extent that debolon violates a material contractual obligation.
c) In the event that the goods delivered are not as agreed, the Customer shall be entitled to cancel the contract or request a replacement delivery only if claims for damages against debolon are excluded, or if the Customer cannot reasonably be expected to use the goods which are not as agreed and demand compensation for the remaining damage. In such cases, debolon shall initially be entitled to remedy the defect. If the remedial action is unsuccessful and/or results in an unreasonable delay, the Customer shall be entitled to give notice of cancellation of the contract or, at its option, request a replacement delivery. The Customer shall also be entitled to do so if remedial action causes unreasonable inconveniencies or if it is uncertain whether the Customer will be reimbursed for its expenses, if any.

Valid from: 2 | 2016

Notification and obligation to provide notification in accordance with § 33 German Federal Data Protection Act (BDSG): debolon draws your attention to the fact that customers’ personal data is processed