General Terms of Delivery and Payment
1. Basis of the Contract Offer
(1) The following delivery and payment terms form the basis of all our contracts. The Purchaser’s own general terms and conditions are excluded. Collateral agreements and amendment of this agreement require our written acknowledgement for their validity.
(2) Our offers are without obligation.
(3) Samples and patterns remain our property.
(1) Unless otherwise agreed, free construction-site delivery prices apply on condition of a full lorry load (maximum permitted weight). Where HGV carrying capacity is underutilised, the Purchaser shall bear the additional freight charges according to the forwarder’s charge rates.
(2) The Purchaser shall bear additional costs (pierage, demurrage and detention charges, low water surcharges, connection and weighing fees), transport levies, packaging costs, hire charges and charges for wear and tear to packaging materials (drums, bags, boxes, pallets, rail containers etc.) as well as costs of return consignment of packaging materials.
(3) Prices are based on the freight costs, currency exchange rates, handling costs, tariff agreements and material prices in effect at the date of submission of the offer. Where delivery periods extend over more than eight weeks, we reserve the right to adapt prices according to cost increases as they arise, regardless of the offer and order confirmation. If the increase amounts to more than 5% of the agreed price, the customer has a right of termination.
3. Payments and Offsetting
(1) Our claims are immediately payable following delivery and receipt of invoice. Credit notes are also to be discounted according to conditions of payment.
(2) Any acceptance of bills of exchange, to which we are not obliged, shall be as fulfilment of payment. Discount and exchange charges shall be paid by the Purchaser.
(3) Where the Purchaser is in arrears, we shall be entitled, without prejudice to the assertion of further claims, to demand default interest of 8% above the relevant base rate. All orders are binding in principle. If, following the conclusion of the agreement, it should transpire that the Purchaser’s financial circumstances are not suited to the granting of credits and payment due dates, we shall be entitled to demand, at our own discretion, advance payment or provision of security on account of due and not yet due claims from all existing contracts, and to refuse performance until advance payment or provision of security has been made. If advance payments or provision of security are not forthcoming within the prescribed time limit, we shall be entitled to withdraw from the agreement or to demand damages due to non-fulfilment.
(4) Offsetting is permissible only by counterclaims that are either not disputed by us or whose legality has been established.
4. Place of Performance, Transfer of Risk and Transport Insurance
(1) Place of performance is our offices (obligation to send) or – insofar as the goods are sent from our supplier directly to the Purchaser – our supplier’s offices (consigning firm).
(2) The risk of incidental loss of the purchased goods shall be transferred to the Purchaser as soon as they are loaded (obligation to send), or alternatively to the person or establishment appointed with shipment (consigning firm), notwithstanding any acceptance of the freight costs on our part.
(3) On request by the Purchaser, transport insurance will be taken out at their expense and on normal market terms, insofar as our supplier has not already taken out transport insurance.
(1) If delivery takes place at a location other than the one contractually agreed, the Purchaser shall bear additional costs associated with the delivery.
(2) For deliveries to construction sites, an access road is required which can be driven on by a 38-ton or 45-ton HGV. If such an access road is not present or is not passable, the Purchaser shall bear the additional costs this incurs.
(1) Where purchases are made by release order, the Purchaser is obliged to declare the release order for the agreed partial quantity in a timely way, i.e. at least 72 hours beforehand.
(2) In the case of a breach of the call obligation by the Purchaser, or where there is a delay in delivery at the purchaser’s request, we shall be entitled, subject to proof of higher additional expenditure, to demand local and sector-specific storage costs from the Purchaser, without prejudice to the additional rights and responsibilities of the contracting parties.
(3) When delivery is refused without justification, the Purchaser shall bear the additional costs involved and will be in default of acceptance.
7. Retention of Title
(1) The delivered goods shall remain our property pending payment of all accounts payable by the Purchaser under this business relationship have been settled in full. The Purchaser shall inform us, unbidden and immediately, of any access by third parties to such conditional commodities.
(2) The Purchaser is entitled to resell the conditional commodities under a proper business transaction. In this case the Purchaser hereby cedes to us payment entitlement in advance against the contracting party to the amount of the invoice value of the conditional commodities.
(3) Any processing by the Purchaser of conditional commodities into a new product shall be done on our behalf. In the case of the processing of conditional commodities with external items, we shall acquire co-ownership of the new item in the relation to the invoice value of our conditional commodity to the invoice value of the external item at the time of the processing.
(4) If conditional commodities co-owned by us are resold, the Purchaser hereby cedes to us in advance any receivables from the resale corresponding to the proportional value of the co-owned share.
(5) If we lose our right of property in the conditional commodities through processing, combination or mixing by the Purchaser, the Purchaser hereby cedes to us in advance any receivables from third parties acquired in connection with the processing, combination or mixing. The amount of receivables ceded shall equal the proportion of the invoice value of our conditional commodities that corresponds to the proportion of co-owned conditional commodities belonging exclusively to us at the time of combination, mixing or processing.
(6) Insofar as receivables have been transferred, we hereby accept the transfer. If the Purchaser fails properly to fulfil their payment obligation to us, we shall be entitled to bill the Purchaser’s contracting party or debtors directly. The Purchaser is obliged to provide us on demand with the necessary information for direct billing, to notify their contracting parties of the billing, and to collaborate with us in billing these parties directly.
8. Liability for material defects
(1) The Customer or Purchaser is obliged to check the delivered goods for quantities and condition immediately on receipt. Material defects, damages in transit or shortfalls in quantity must be reported by telephone on the day of receipt and confirmed within 8 days by means of written and photographic documentation.
(2) Contractors must report obvious defects, by means of written and photographic documentation, immediately and in any case before any further processing or installation. Otherwise, any claims made under the warranty shall be ruled out.
(3) Complaints about concealed deficiencies shall not be admitted after 6 weeks have passed. More comprehensive warranty claims, particularly damage claims for direct or indirect losses, are expressly ruled out. The same applies for any other recourse claims, irrespective of their nature. The Purchaser’s right to make claims on deficiencies expires within one month of written rejection of the complaint by the Seller. Our warranty for defects is in any case limited to the warranty obligation of our supplier.
(4) In the case of deliveries of articles in virgin stone, veins, stratification, inclusions and variations in colour, structure and texture are specific to the material and do not therefore constitute a defect in the purchased item. In the case of deliveries of used materials or loose paving, a dirt content of up to 6% is permitted without any allowance for weight reduction.
(5) If the delivered item is defective, we can initially choose between rectification by remedying the defect (remediation) or by delivering a fault-free item (replacement delivery). Where the legal preconditions are met, our right to refuse rectification remains unaffected.
(6) We are entitled to make due rectification conditional on payment of the purchase price owed by the Purchaser. The Purchaser is nonetheless entitled to retain a reasonable portion of the purchase price that is proportional to the defect.
(7) The Purchaser shall allow us the necessary time and opportunity required for due rectification, and shall hand over the rejected goods for inspection. In cases of replacement delivery, the Purchaser shall return the defective item to us in accordance with statutory provisions. Rectification includes neither dismantling the defective item, nor its renewed installation, where we were not originally obliged to install it.
(8) Where a defect is actually present, we shall bear any necessary expenses for inspection and rectification, in particular for transportation, road charges, labour and material costs (not: dismantling and installation costs). If, however, a Purchaser’s request for the rectification of a defect should prove to be unjustified, we may demand that the Purchaser reimburse the costs incurred.
(9) If rectification fails, the Customer may, as a matter of principle and at their discretion, demand a decrease in remuneration, the annulment of the agreement or indemnity in place of performance.
(10) Insofar as the delivered item shows defects due to incorrect use by the Purchaser or third parties, any liability of the Seller is ruled out. This applies in particular to items in virgin stone. Insofar as no specific agreement has been made between Seller and Purchaser, it shall be assumed that the delivered item is to be used in accordance with its generally accepted utilisation. Should the Purchaser intend the item for a use that deviates from this ordinary use, the Seller shall be informed of this.
9. Delay in Delivery, Right of Withdrawal, Limitation of Liability
(1) If delivery by the Seller falls into a delay of more than 14 working days, the Purchaser may demand indemnity in place of performance, or may withdraw from the agreement, if the Purchaser has notified the Seller of this consequence in writing with a reasonable period of notice.
(2) The Purchaser’s claim for damages due to delayed delivery shall be limited to 5% of the net purchase value of the due delivery, but shall as a minimum equal the Seller’s customary cover amount for such damages in the Seller’s company liability insurance policy. The Parties may contractually agree the amount to be covered in this regard.
(3) The relevant period of delay may be longer or shorter than that stated in Subsection (1) if this has been otherwise expressly agreed by the Parties.
(4) If we expressly agree to the cancellation of an order that has been placed in a binding way, the Purchaser shall pay us 10% of the order amount, even where we do not expressly repeat this upon cancellation, unless the Purchaser was entitled to withdraw from the agreement without our assent, or the Purchaser can establish that the harm to us from cancellation was lower than this sum.
10. Other Liability
(1) Unless otherwise specified in these Terms and Conditions and in the and following provisions, in cases of a breach of our contractual and extra-contractual obligations, we shall accept liability in accordance with the relevant legislation.
(2) We accept liability for damages – irrespective of the legal grounds – in cases of intent and gross negligence. In cases of simple negligence, we accept liability only
a.) for damages from injury to life, body, or health,
b.) for damages resulting from the breach of a material contractual obligation (an obligation whose performance generally enables the proper execution of the agreement and on compliance with which the contracting party can reasonably expect to be able to rely); in this case our liability is however limited to the replacement of foreseeable and typically occurring damages.
(3) The limitations of liability arising from Subsection 2 do not apply insofar as we maliciously conceal a defect or we have furnished a guarantee for the condition of the goods. The same applies to claims by the Purchaser under product liability law.
(4) The Purchaser may withdraw from or terminate the agreement due to a breach of duty that does not consist in a defect only if we are responsible for the breach of duty. A free right of termination of the Purchaser is excluded. Otherwise statutory requirements and legal consequences shall apply.
11. Limitation Period
(1) For claims due to material defects and defects of title, the general limitation period is one year from delivery. Insofar as site acceptance has been agreed, the limitation period begins on acceptance.
(2) However, the limitation period shall be 5 years from delivery, in accordance with the provisions of the law, where the goods are an edifice or an item that has been used as a building according to its customary mode of utilisation and the goods have caused this to be defective (construction material). Neither shall this affect special statutory provisions for the restitution of property of third parties, fraudulent intent on the part of the seller, or to claims of recourse against the supplier in final supply to a consumer
(3) The above-mentioned limitation period on purchasing right shall also apply to contractual and extra-contractual claims for damages by the Purchaser which stem from a defect in the goods, unless application of the regular legal limitation period would lead to a shorter period of limitation in individual cases. The limitation periods set by product liability law shall in any case remain unaffected. In all other cases, the statutory periods of limitation for damage claims shall apply exclusively.
12. Court of Jurisdiction
The law of the Italian Republic has validity. Where the Purchaser is a responsible person or persons, a legally defined entity under public law or a special fund under public law, for all disputes arising from the contractual relationship the suit shall be filed at the court competent for our head offices or for the branch offices responsible for carrying out our delivery. We are also entitled to file a suit at the Purchaser’s headquarters.
13. Retention Right or Right to Withhold Performance
The Customer or Purchaser may not withhold or refuse performance on account of any counterclaims, nor offset with counterclaims, unless these counterclaims are acknowledged by the contractor or have been legally determined.
14. Force Majeure
In the event that we are prevented from fulfilling our obligations due to the occurrence of unforeseeable extraordinary circumstances which we could not avert, despite reasonable care being taken in accordance with the circumstances of the case in question, whether the event affects manufacture or a subcontractor, for example interruption in operations, official intervention, delays in the delivery of essential raw materials or construction materials or difficulties in energy supply. Where delivery or performance is not rendered impossible, the delivery period shall be extended by a reasonable period. Should the above indicated conditions render delivery or opportunities for performance of services impossible, we shall be freed from our contractual obligation. In cases of strikes and lock-outs, if delivery or service performance is not impossible, the delivery deadline shall be postponed by a reasonable length of time. If delivery or performance is rendered impossible, we shall be freed from our contractual obligation. If the delivery time is extended and if we are freed from our obligation to deliver in the above-mentioned cases, any resultant claim for damages or right of withdrawal on the part of the Purchaser shall not apply. However, our business may appeal to the circumstances mentioned herein only when the Purchaser has been notified immediately. If we omit this notification, the legal consequences in our favour shall not apply.
If any individual provisions of these Terms and Conditions are open to challenge or void, or if they become so, the legal effectiveness of the remainder of the provisions remains unaffected. The contracting parties are nonetheless obliged to agree a provision that comes as close as possible to the void or ineffective provision and which meets their business interests.
Conditions of Purchase
The following supplier conditions shall apply exclusively to our orders. Conditions that deviate from or supplement the following shall not be binding on us, even where we do not expressly object to them, or where a supplier specifies that they will supply only on their conditions. Deviations from our conditions require our express written assent. A confirmation of our order, or its implementation, shall be considered as acknowledgement of these conditions.
2. Ordering, Order Confirmation
In order to be effective, orders and order confirmation shall be in writing. Verbal agreements are legally valid only when they have been confirmed in writing. Quantities are provided in approximate form. Deviations to our disadvantage do not justify any change in price. Deliveries that do not take place on the basis of a written order shall be regarded as unsolicited and are available to the supplier without any special notification.
Unless otherwise agreed in writing, the agreed prices are free construction site or place of receipt indicated by us. These are fixed prices. If the prices initially given in the supplier’s order confirmation, or the prices given in the order confirmation, deviate from our order, these prices shall be deemed to have been acknowledged and the contract to have been concluded only once they have been confirmed in writing by us. Price increases shall be notified to us immediately, insofar as the supplier is expecting subsequent orders from us. These may be admitted if the delivery takes place for construction or work delivery contracts concluded by us and it is possible for us to pass the charge on to our principal, which we shall however not be obliged to do. Price increases within four months of the order date are inadmissible.
4. Transport, Transfer of Risk
Deliveries shall take place at the supplier’s expense free of charge to the point of reception designated by us. Risk is first transferred to us upon acceptance at the point of reception.
5. Delivery Deadlines, Withdrawal
The agreed delivery deadlines are binding. Precise release orders are placed by the respective construction management. If delays with the delivery or its preparation have occurred, or are expected, the supplier shall inform us promptly. If the supplier is prevented, through no fault of their own, from performing their obligation, the delivery deadline may be extended by a reasonable amount in consultation with us. If the supplier is behind schedule, which is automatically the case if the agreed deadline is overrun, we shall also be entitled, without setting a time extension, at our own discretion and without prejudice to further claims for damages, to demand a contractual penalty of 1/2% of the order value for each week or part thereof of delivery deadline overrun, up to a maximum of 5% of the order value. In addition, we may ourselves demand delivery or withdraw from the agreement. Events of force majeure, interruptions in operations or other events that lead to a reduction or cessation of our business, or the activity of ours for which the purchase is destined, shall justify our postponing the performance of our obligation of acceptance. In these cases, claims for damages against us shall be ruled out. We hereby undertake to notify the supplier of cases of this kind immediately without delay and to inform them of our decision whether to postpone our obligation of acceptance or to withdraw from the agreement. Infringements of the above-mentioned delivery conditions shall lead us to withhold performance (denial of payment) and shall render the obligation of acceptance inapplicable.
6. Delivery Note, Advice of Delivery
Upon handover of every delivery, a numbered delivery note shall be issued, which shall be signed by our agent. The delivery note shall contain a precise designation of contents in terms of number of items, dimension, weight etc. When quantity-based pricing is specified in cubic metres, the exact dimensions of the vehicle shall be noted on the delivery note. Where acceptance is by the ton, the bill of lading shall be enclosed with the delivery note. Delivery notes and bills of lading for construction materials shall in principle be handed over in duplicate. For carriage service, only the actual operating times, without arrival and departure trips, shall be decisive. Collectively agreed breaks during working hours and waiting times that are not attributable to any fault on our part shall not be remunerated.
Subject to the conditions in Clause 6, invoices shall be submitted immediately after delivery in quadruple and shall cite the order number. A separate invoice shall be issued for each order. For deliveries and services within any month, the invoice shall be issued by the 5th of the following month at latest. Invoices not received by the fifth day following the end of the month of delivery shall be booked by us as received on the 20th of the invoicing month at the earliest. The quantities, hours, dimensions, wages and article numbers ascertained by us shall be decisive for the calculation.
8. Liability for Material Defects
Materials shall correspond to the relevant guidelines, regulations and DIN standards, each in their currently valid version. Costs resulting to us through decrease in value, inspections, claims against us for defects by our principal, shall be fully attributed to your account and may be offset by us against your claims. In the absence of other agreements expressly confirmed by us, the supplier’s period of warranty shall be 12 months from transfer of risk. We may lodge claims about defective deliveries within one month of acceptance of the delivery. For defects that are not externally apparent and faults that first become apparent after processing or after the delivery is taken into service, the warranty period shall begin with discovery of the defect. It shall then expire not before third-party claims against us under work delivery contracts or construction contracts concluded with us have expired.
Payment shall be made at our discretion, if not otherwise expressly agreed, within 14 days of receiving the invoice, subject to 3% discount, or within 30 days, subject to 2% discount, or within 90 days of receipt of the invoice. The date of sending (postmark) of the method of payment shall be considered as the payment date.
10. Place of Performance
For all rights and obligations arising from this business, our registered offices shall constitute the place of performance and the court of jurisdiction shall be the competent court for each of our offices. Italian law shall apply.