General Terms and Conditions of Delivery and Payment of QuickTile GmbH

I. Validity / Offers

1. These General Terms and Conditions apply to all – including future – contracts with entrepreneurs, legal entities under public law, and special funds under public law concerning deliveries and other services, including works contracts, consulting, proposals, and other ancillary services. Purchasing conditions of the buyer are not recognized even if we do not expressly object to them again after receipt by us.

2. Our offers are non-binding. Verbal agreements, assurances, warranties, and guarantees made by our employees in connection with the conclusion of the contract only become binding upon our written confirmation.

3. All information such as dimensions, weights, illustrations, descriptions, installation sketches, and drawings in sample books, price lists, and other printed materials are only approximate but determined to the best of our knowledge and are non-binding for us in this respect. The same applies to information provided by the factories.

4. Models and drawings remain our property.

5. “Buyer” within the meaning of these conditions also refers to the “customer” in the case of works contracts.

II. Prices

1. Prices are ex works or ex warehouse plus freight and VAT.

2. If duties or other external costs included in the agreed price change or arise after contract conclusion by more than four weeks, we are entitled to adjust the price accordingly.

3. We reserve the right to increase the agreed price for quantities not yet delivered if changes in raw material and/or economic conditions significantly increase production and/or procurement costs compared to the time of price agreement. In this case, the customer may cancel affected orders within four weeks after notification of the price increase.

III. Invoicing and Payment

1. Unless otherwise agreed or stated in our invoices, the purchase price is due within 10 days from the invoice date without deduction and must be paid so that we can dispose of the amount on the due date. A right of retention and set-off is only granted to the buyer insofar as counterclaims are undisputed or legally established.

2. The buyer may only offset with undisputed or legally established claims. Payments are deemed made when the amount has been credited to the bank account of QuickTile GmbH. The buyer bears all bank fees as well as all other costs and expenses related to payment.

3. In the event of default by the buyer, default interest of 9 percentage points above the base rate (§§ 247, 288 BGB) shall apply. We reserve the right to claim further damages. QuickTile GmbH may assert rights of refusal of performance until full payment.

4. If after contract conclusion it becomes apparent that our payment claim is endangered by the buyer’s lack of financial capacity or other circumstances indicate a significant deterioration of performance capability, we may refuse agreed advance performances and exercise rights under § 321 BGB. In such cases, we may also declare all outstanding claims from the ongoing business relationship due. If withdrawal occurs for these reasons, we are entitled, without prejudice to other claims, to demand a contractual penalty of 5% of the order value leading to withdrawal.

5. Claims assigned to us by the buyer against insurers or other debtors are made solely for performance purposes.

6. Bills of exchange and cheques are only accepted upon agreement and only for performance purposes and provided they are discountable. Discount charges are calculated from the due date of the invoice amount. No liability is accepted for timely presentation or protest of bills of exchange or cheques.

7. If we have delivered undisputed partially defective goods, the buyer is nevertheless obliged to pay for the defect-free part, unless the partial delivery is of no interest to him.

IV. Execution of Deliveries, Delivery Times and Acceptance

1. Our delivery obligation is subject to correct and timely self-supply unless incorrect or delayed self-supply is caused by us.

2. Delivery times are approximate. Delivery periods begin with our order confirmation and only under the condition of timely clarification of all order details and timely fulfilment of all obligations of the buyer such as provision of official certificates, letters of credit, guarantees, or advance payments.

3. Compliance with delivery periods and deadlines is determined by the time of dispatch ex works or warehouse. They are deemed met upon notification of readiness for dispatch if shipment is not possible on time without our fault.

4. Events of force majeure entitle us to postpone delivery for the duration of the hindrance plus a reasonable start-up period. This also applies if such events occur during an existing delay. Force majeure includes currency, trade policy, and other sovereign measures, strikes, lockouts, operational disruptions not caused by us (e.g. fire, machine breakdown, raw material or energy shortage), obstruction of transport routes, delays in import/customs clearance, as well as all other circumstances beyond our control which make delivery significantly more difficult or impossible. It is irrelevant whether these circumstances occur at our premises, the supplying factory, or a subcontractor. If due to such events the execution of the contract becomes unreasonable for one party, especially if execution is delayed by more than 6 months in essential parts, that party may withdraw from the contract.

5. If the buyer provides materials for execution of an order, these must be fully suitable in type and quality. If the buyer does not provide the required materials on time, the buyer bears all disadvantages arising from this failure. If the buyer does not fulfil this obligation despite a grace period, we are entitled to claim damages and withdraw from the contract.

6. Our deliveries are made ex works (“EXW” according to Incoterms 2000).

7. If we also carry out installation or processing at the customer’s request, acceptance of the work takes place on the completion date. If no completion date is agreed in writing, we shall notify it three days in advance. Acceptance is deemed to have taken place at the latest 10 days after dispatch of the completion notice.

V. Retention of Title

1. We retain ownership of the delivered goods until full payment of all claims arising from the delivery contract. We are entitled to reclaim the goods if the buyer breaches the contract.

2. The buyer is obliged to treat the goods carefully as long as ownership has not yet passed. The buyer must notify us immediately in writing if the delivered goods are seized or subjected to third-party intervention. If the third party is unable to reimburse us for court and out-of-court costs under § 771 ZPO, the buyer is liable for the resulting loss.

3. The buyer is entitled to resell the goods in the ordinary course of business. The buyer hereby assigns to us all claims arising from resale of the reserved goods in the amount of the invoice value (including VAT). This assignment applies regardless of whether the goods are sold before or after processing. The buyer remains authorised to collect the claims even after assignment. Our authority to collect the claims ourselves remains unaffected. However, we will not collect the claims as long as the buyer meets its payment obligations, is not in default, and no insolvency proceedings are initiated or payments are suspended.

4. Processing or transformation of the goods by the buyer is always carried out on our behalf. In this case, the buyer’s expectant right continues in the transformed item. If the goods are processed with other items not belonging to us, we acquire co-ownership in the new item in proportion to the value of our goods. The same applies in case of mixing. If the buyer’s item is to be regarded as the main item, it is agreed that the buyer transfers proportional co-ownership to us. The buyer shall hold the resulting sole or co-ownership in custody for us. To secure our claims, the buyer also assigns claims arising from connection of the goods with real estate to us; we accept this assignment.

5. We undertake to release securities at the buyer’s request insofar as their value exceeds the secured claims by more than 20%.

VI. Lien

The buyer grants us a contractual lien on all items that come into our possession for all claims arising from the business relationship. The contractual lien may also be asserted for claims arising from earlier work, replacement deliveries, and other services.

VII. Quality, Dimensions and Weights

1. Grades and dimensions are determined according to the agreed standards or, in the absence of agreement, according to the standards valid at the time of contract conclusion, or otherwise according to trade usage. References to standards or parts thereof such as material sheets, test certificates, and test standards as well as information on grades, dimensions, weights, and usability do not constitute assurances or guarantees, nor do declarations of conformity, manufacturer declarations, or similar markings.

2. For pre-material processed by us (in particular ceramics, etc.), only the DIN standards and quality standards specified by the supplier of the pre-material apply.

3. The weight determined by us or our supplier is decisive. We are entitled to determine weight without weighing according to standard (theoretical) plus 2.5% (commercial weight). Stated quantities, bundle numbers, etc. in shipping notices are non-binding for goods calculated by weight. Unless individual weighing is customary, the total shipment weight applies. Differences from calculated individual weights are distributed proportionally.

VIII. Acceptance

1. If acceptance is agreed, it may only take place immediately after notification of readiness for acceptance. Personal acceptance costs are borne by the buyer; material acceptance costs are charged according to our price list.

2. If acceptance does not take place without our fault, not on time, or not completely, we are entitled to dispatch the goods without acceptance or store them at the buyer’s expense and risk and invoice them.

IX. Shipment, Transfer of Risk, Packaging, Partial Deliveries

1. We determine shipping route, means of transport, freight forwarder, and carrier.

2. If transport becomes impossible or significantly more difficult without our fault, we are entitled to deliver via another route or to another destination; additional costs are borne by the buyer. The buyer shall be given the opportunity to comment beforehand.

3. Risk passes to the buyer upon handover to the freight forwarder or carrier, at the latest upon leaving the warehouse or works, also in the case of carriage paid or free delivery. Insurance is only arranged upon instruction and at the buyer’s expense. Loading/unloading costs are borne by the buyer.

4. Goods are delivered unpacked and without rust protection. If customary, we deliver packed. Packaging and transport aids are provided at the buyer’s expense. They are not taken back unless legally required.

5. We are entitled to make reasonable partial deliveries. We may exceed or fall short of agreed quantities by up to 10% for approximate quantities and invoice accordingly.

X. Call-off Orders, Long-Term Contracts

1. For call-off orders, goods declared ready for dispatch must be called off immediately; otherwise, we are entitled after reminder to ship or store them at the buyer’s expense and invoice them immediately.

2. For continuous delivery contracts, call-offs and allocation must be approximately equal monthly quantities; otherwise, we may determine allocation at our reasonable discretion.

3. If call-offs exceed the total contract quantity, we are entitled but not obliged to deliver the excess and may invoice it at current prices.

4. If no binding order quantity is agreed, we base our calculation on the estimated target quantity. If the buyer takes less than the target quantity, we may increase the unit price appropriately.

5. Open-ended contracts may be terminated with 6 months’ notice.

XI. Warranty and Notice of Defects

1. Legal provisions apply with the following deviations:

1.1 Warranty period is 1 year from delivery or acceptance; replacement parts 3 months.

1.2 Warranty rights require proper inspection and notification of defects under § 377 HGB. We will, at our discretion, repair or replace goods delivered with defects.

1.3 Self-remedy under § 637 BGB is excluded.

1.4 If repair fails, the buyer may withdraw or reduce price.

1.5 No claims for minor deviations, normal wear, improper handling, external influences, or modifications.

1.6 If goods are resold or processed, only reduction rights remain.

1.7 Cost reimbursement for subsequent performance is excluded if goods were moved from place of use.

1.8 Risk of suitability lies with buyer if goods are manufactured according to buyer specifications.

1.9 Grout discoloration or similar effects are not defects.

1.10 Recourse claims exist only within statutory limits.

XII. General Limitation of Liability

1. Liability only for intent and gross negligence, limited to foreseeable contractual damage.

2. No limitation for essential obligations, product liability, injury to life/body/health, guarantees, or fraudulent concealment.

3. Limitation period: 1 year from knowledge, max. 3 years from occurrence.

XIII. Insolvency

If insolvency proceedings are opened or rejected for lack of assets, we are entitled to withdraw without notice.

XIV. Place of Performance, Jurisdiction, Applicable Law, Miscellaneous

1. Place of performance is our registered office. Jurisdiction is at our discretion or the buyer’s registered office.

2. German law applies exclusively, excluding conflict-of-law rules and CISG.

3. If any provision is or becomes invalid, the remaining provisions remain unaffected.

Stand: 07/2015