General Terms and Conditions of Sale and Delivery

Our sales and contracts for the supply of goods to be manufactured are subject to the following terms and conditions. These terms and conditions shall also apply to all subsequent transactions, even if no further reference is made to them when such a transaction is concluded. In the following, the term “Buyer” is used uniformly for both buyers and customers placing orders.

I. General Provisions

Any deviating terms and conditions of the contracting party shall require our express written acceptance in order to be valid, and such acceptance shall apply only to the respective individual case. Acceptance of our performance shall be deemed acceptance of our terms and conditions even if the Buyer has confirmed our delivery subject to deviating terms and conditions. The provisions applicable to merchants shall also apply to legal entities under public law and special funds under public law.

II. Information, Advice, Product Characteristics

Information and advice as well as other services provided by us are given exclusively on the basis of our previous experience and only on the basis of the intended uses stated by the customer.
Our product descriptions and information do not constitute a guarantee of quality or durability within the meaning of Section 434 of the German Civil Code (BGB), unless we have expressly confirmed this to the Buyer in writing beforehand or a characteristic is specified in a written purchase agreement with the customer.
A guarantee shall only be deemed to have been assumed by us if we have designated a characteristic or performance in writing as “guaranteed”.
We shall only assume liability for the usability/suitability of our products for the purpose intended by the customer if we have agreed this in writing.

III. Offers

Our offers and offer documents (price lists, online offers, etc.) are subject to change and non-binding. They merely constitute an invitation to the customer to place a corresponding order. A contract – subject to the following terms and conditions – shall only come into existence upon our written order confirmation. The same shall apply to supplements or ancillary agreements.
In the event of immediate delivery or performance, our confirmation may be replaced by our invoice or a delivery note.
The documents belonging to the offers, such as illustrations, drawings, weight and dimensional specifications, are only approximate unless they are expressly designated as binding. In particular, material quantities can often only be determined approximately. Minor dimensional deviations of +/-5% which do not impair exact fitting or the correct proportions shall not entitle the customer to make complaints. The quantities actually delivered at the unit prices offered shall be decisive for invoicing.
By placing an order, the customer submits a binding offer to purchase, which we accept by written confirmation or by dispatching the ordered item.
The services specified in a contractual document signed by both parties or in an order confirmation issued by us shall be decisive for the content and execution of the contract.

IV. Samples

Samples and specimens can only generally illustrate the color and structure of the stone, since it is inherent in the nature of natural stone products that each product may exhibit variations. They therefore serve only as approximate illustrative samples (average samples) of the quality, dimensions and color of the stones to be delivered subsequently. In the case of ceramic materials, glaze cracks and color variations may occur due to the nature of the material. When ordering second-choice tiles (lower-grade sorting), defects at the edges or in the surface finish may occur in addition to color variations, among other things. None of these phenomena impair the quality of the covering and do not constitute grounds for a complaint regarding second-choice tiles.

V. Material Characteristics and Scope of Delivery

The stone to be used shall be selected so that grain, structure and color match as closely as possible. Differences in grain, variations in color and texture as well as naturally occurring spots, veins, pores, open areas, inclusions, shading, etc. are not material defects but customary natural characteristics and therefore cannot constitute grounds for complaint. Defects in the stone that have been professionally repaired cannot be deemed defects by the customer. The contract shall determine the scope and characteristics of the delivery.

VI. Delivery

Deliveries shall be made in accordance with the specifications in the version current at the time the contract is concluded. Unless expressly agreed otherwise in writing, responsibility for the selection of the products ordered, for the results intended by the customer with those products, and for the interaction of individual components shall rest solely with the customer.
Delivery times requested by the customer shall only be binding if confirmed by us in writing. All agreements regarding delivery times shall furthermore be subject to our receiving timely delivery from our own suppliers, unless we are responsible for incorrect or late delivery by the supplier.
Delivery dates are understood to be ex works. We are not obliged to transport the goods.
Partial deliveries are possible.
The risk shall pass to the customer upon collection or when the goods are dispatched.
If the customer requests transportation, such transportation shall take place exclusively at the customer’s own risk. Transportation costs shall be charged in accordance with the offer.
At the customer’s request and expense, the delivery shall be insured by the supplier against the customary transport risks.
We reserve the right to make partial deliveries unless the partial delivery is obviously of no interest to the customer.
The Buyer shall be deemed in default of acceptance if the Buyer has not collected/accepted the subject matter of the order within 14 days after receipt of the notice of completion and delivery or dispatch of the invoice. In the event of non-acceptance, the Seller may exercise its statutory rights.

VII. Delivery and Performance Times

Our delivery and performance time estimates are provided at our best discretion on the basis of the respective delivery and order situation. Such information shall only be regarded as approximate unless an express written and binding commitment regarding specific performance times has been made.
Delivery and performance times shall be extended by a reasonable period if we are prevented from fulfilling our obligations by force majeure or other unforeseeable and extraordinary events that cannot be averted despite reasonable care. Events within the meaning of sentence 1 include in particular war, civil unrest, strikes, lockouts, fire, flooding and other unforeseeable operational disruptions, including those affecting suppliers, as well as shortages of vehicles or containers. Difficulties in quarrying operations and in procuring the necessary raw materials shall release us from our obligation to perform for the duration of the impediment. If such events significantly impede or render delivery or performance impossible and the impediment is not merely temporary, we shall be entitled to withdraw from the contract. In the case of temporary impediments, the delivery or performance periods shall be extended, or the delivery or performance dates postponed, by the duration of the impediment plus a reasonable start-up period.
Changes subsequently requested by the customer shall likewise extend the delivery and performance time by a reasonable period.
Compliance with delivery and performance times requires the timely and proper fulfillment of the customer’s contractual obligations and duties to cooperate. In the event of delay on the part of the customer, the delivery and performance period shall be interrupted.
Contractual penalties for delay or other claims for damages due to delayed delivery are generally rejected.

VIII. Prices

Unless otherwise agreed, prices apply ex warehouse Hartha, loaded onto collection vehicles, excluding packaging and shipping.
If the Buyer is a consumer, all prices are understood to be gross prices including statutory value added tax.
If the Buyer is an entrepreneur or a legal entity, all prices are understood to be net prices plus statutory value added tax.
Prices are determined on the basis of the complete calculation documents received. If subsequent changes to the offers are requested or become necessary, or if dimensions, quantities or weight change, we shall remain entitled to adjust the price accordingly. Individual prices shall always be decisive, even if a total price is stated in the offer. Since the prices are based on current production costs, we reserve the right, in the event of increases in such production costs, e.g. due to increases in wages or material prices, to recalculate or newly calculate the offer price at the current daily price.

IX. Payments

Our claims shall be due within 30 days of the invoice date. For payment within 8 days of the invoice date, we grant a 2% discount.
In the event of an order, we shall take out credit default insurance. If we are not granted insurance cover to the corresponding extent, you shall provide corresponding guarantees or advance payments.
From the time payment is in default, we may, without prejudice to further claims, charge entrepreneurs default interest at a rate of 9 percentage points above the base interest rate as well as reminder costs of EUR 5.00 per reminder. The right to assert and prove higher damages shall remain unaffected.
If the Buyer is wholly or partially in default with a payment, all payment obligations of the Buyer towards us shall become immediately due for payment. Furthermore, we shall be entitled to demand security for all our claims and to carry out outstanding deliveries only against advance payment or provision of security.
We reserve the right to accept bills of exchange and checks. Such acceptance shall always be only on account of payment. If bills of exchange are accepted on the basis of special agreements, the discount and bank charges shall be borne by the Buyer.
Bills of exchange or checks shall only be deemed to constitute performance upon their redemption. For bills of exchange payable at secondary locations and abroad, we assume no obligation regarding timely presentation and protest. Set-off is not permitted unless the claim asserted for set-off is undisputed or has been finally established by a court of law.
If the Buyer has several liabilities towards us and the payment made by the Buyer is insufficient to discharge all debts, we shall be entitled to apply the payment first to costs, then to interest and finally to the principal claim in order of age. Any determination by the customer pursuant to Section 366 (1) BGB is excluded.

X. Retention of Title

All goods and parts of goods delivered shall remain our property until the purchase price has been paid in full.
If the customer is an entrepreneur or a legal entity acting, at the time the contract is concluded, in the course of its commercial or independent professional activity, the retention of title shall also continue to apply to claims of our company against the customer arising from the ongoing business relationship until all claims connected with the order have been settled.
The customer shall treat the goods with due care for as long as they remain subject to our retention of title. In the event of conduct by the customer contrary to the contract – in particular in the event of default in payment – we shall be entitled and authorized to repossess the goods subject to retention of title at the customer’s expense. Insofar as the goods subject to retention of title are no longer in the customer’s possession, the customer hereby assigns to us in advance its claims for surrender against third parties. Such repossession or demand for repossession shall not constitute withdrawal from the contract unless expressly declared by us as such or unless mandatory statutory provisions provide otherwise.
Until revoked, the customer shall be entitled to combine or resell the goods subject to retention of title in the ordinary course of business. However, this shall apply only for as long as the customer fulfills its obligations towards us properly and on time. The customer is prohibited from pledging or assigning the goods subject to retention of title as security.
In the event of processing, transformation or combination, we shall become the owner or co-owner of the new item.
If the customer sells goods that are subject to our retention of title, the customer hereby assigns to us in advance, as security, all claims and receivables arising from the resale until all our claims have been fully discharged. If goods subject to our retention of title are sold together with other goods not belonging to us – including at an overall price – the assignment to us shall extend to that portion of the claim corresponding to the ratio of the value of our (co-)ownership. We accept this assignment.
Resale of the goods or parts of goods to a third party prior to full payment is not permitted if the third party has excluded assignment of the customer’s claim against it.
Until revoked, the customer is authorized to collect the assigned claims. We shall not exercise our right of revocation for as long as the customer fulfills its obligations properly and on time and does not become insolvent or unable to pay. The customer shall hold the amounts collected separately for us until the secured claims have been settled.
At our request, the customer shall disclose the assignment to third parties and provide us with all information and documents required to collect the assigned claims. We shall be entitled to disclose the assignment to third parties.
In the event of attachment or any other impairment of our rights by third parties, in particular in the event of access to the goods subject to retention of title, the customer shall inform the third party of our rights and notify us without delay. Costs and damages resulting from breach of this obligation shall be borne by the customer.
If the value of the securities existing in our favor exceeds the claims to be secured by more than 20%, we shall release parts of the securities to which we are entitled at the customer’s choice – or, if the customer does not make a choice, at our own choice.

XI. Warranty

If the Buyer is an entrepreneur or a legal entity, claims due to defects in the goods shall become statute-barred one year after transfer/delivery of the purchased item to the customer. Excluded from this are claims for damages arising from injury to life, limb or health and/or claims for damages based on damage caused by the Seller intentionally or through gross negligence. In this respect, the statutory limitation periods shall apply.
The Buyer undertakes to carefully inspect the delivered goods immediately after collection/receipt for completeness and conformity in accordance with Section 377 of the German Commercial Code (HGB). Complaints regarding defects must be made immediately in writing. Receipt of a written notification of defects (including by fax or email) shall be decisive.
The goods must always be inspected before installation / processing. We do not recognize complaints regarding materials that have already been installed / processed.
The Buyer shall be entitled to subsequent performance, whereby we reserve the right either to remedy the defect or to supply a defect-free replacement. We shall be granted a reasonable additional period for each defect for this purpose.
Unless expressly agreed otherwise, the information and illustrations contained in order confirmations, brochures and other documents serve solely as product descriptions. Guaranteed characteristics must be expressly designated by us in writing as a “guaranteed characteristic”.
Goods complained about may only be returned after prior consultation with us. Defects in part of the delivery shall not entitle the customer to reject the entire delivery, provided that the usability of the defect-free parts of the delivery is not impaired.
Any warranty shall expire if the item delivered or the service performed has been modified or improperly operated or treated by the customer or by a third party.

XII. Liability

We shall only be liable for damages arising from breach of contract or tort in cases of intent or gross negligence. This shall not apply in the event of breach of material contractual obligations, damage resulting from injury to life, limb or health, matters concerning guarantees, or claims under the German Product Liability Act. Damages shall be limited to the typical damage foreseeable at the time the contract was concluded. The same shall apply to breaches of duty by our vicarious agents.
In the event of impossibility of performance for which we, our representatives or vicarious agents are responsible, we shall be liable for damages due to non-performance. In the case of ordinary negligence, the limitation of liability set out in paragraph 1 shall apply accordingly. The same shall apply to compensation for damages caused by delay.
If the damage was caused by a third party whom we use as a vicarious agent, the customer shall be obliged first to assert its claims for damages against the third party – if necessary through legal proceedings – before making a claim against us.
Insofar as the damage is covered by insurance taken out by the customer for the respective event of loss, we shall only be liable for any associated disadvantages suffered by the customer, e.g. higher insurance premiums or interest disadvantages until settlement of the claim by the insurance company.

XIII. Set-Off / Right of Retention

The customer shall have no right of set-off or retention unless the claim is undisputed or has been finally established by a court of law.

XIV. Copyright

Irrespective of any statutory copyright protection, our designs and the monument designs shown in catalogs may neither be reproduced nor made accessible to third parties for reproduction. Imitations involving only minor changes to form and dimensional proportions are also not permitted. The Buyer shall be liable for all damages arising from failure to comply with this provision. If an order is executed according to a drawing provided by the Buyer, the Buyer shall indemnify us against any claims arising from infringement of copyright, in particular infringement of a registered design.

XV. Place of Performance and Jurisdiction

The place of performance for all obligations arising from the contractual relationships shall be our registered office. In contracts with registered merchants, legal entities under public law or special funds under public law, the court having local jurisdiction for the location of our registered office shall be agreed as the place of jurisdiction.

XVI. Partial Invalidity / Severability Clause

Should any of the foregoing terms and conditions not have become part of the contract or be invalid, the parties undertake to replace such provision with a legally effective clause which, within the limits of the law governing general terms and conditions, comes as close as possible to achieving the economic purpose of the provision originally intended. The invalidity of any of the foregoing provisions shall not affect the validity of the remaining agreement.

Last updated: May 2019