General Terms and Conditions
General Terms and Conditions of Sale and Delivery of Duravit AG
- Unless otherwise specified, these general terms and conditions of sale and delivery (“GTC”) of Duravit AG, Germany, apply to business transactions with customers who are not consumers within the meaning of section 13 BGB (German Civil Code).
- These general terms and conditions apply exclusively; they shall also apply to all future transactions with the customer. Unless otherwise agreed, the version of the general terms and conditions valid at the time of the order shall apply. We do not recognise the customer's general terms and conditions, even if the contract is performed without reservation.
- Oral agreements must be confirmed in writing to be valid.
II. Conclusion of contract
- Our offers are subject to change without notice. Technical descriptions and other details in offers, leaflets and other information are initially non-binding.
- The order placed by the customer shall be deemed to be a binding offer, which will be accepted either by our written order confirmation or by performance of the contract.
- We reserve all ownership rights and copyrights in samples, cost estimates, drawings and similar information whether of physical or non-physical nature - including information in electronic form; they must not be made accessible to third parties.
- The customer undertakes not to disclose to third parties any information or documents designated as confidential, except with our consent.
- Information referred to in clause II paragraph 1 as well as provided in public statements on our part by the manufacturers and their assistants (section 434 paragraph 1 sentence 3 BGB) do not become part of the performance specification unless we expressly refer to them in our offer.
III. Prices and terms of payment
- Prices are “ex works”, exclusive of costs for packaging and value-added tax; the latter is shown separately in the invoice at the statutory rate on the date of invoicing.
- Unless otherwise agreed in writing, payments are due without deduction immediately upon receipt of the invoice. In the event of payment default, interest on arrears shall be charged at the statutory rate, but at least 9% per year. The customer has the right to prove that the amount of damage was lower, up to the amount of the legal rate of interest.
- Customers shall have the right to offset or retain payment only insofar as their claims or demands are undisputed or recognized by a declaratory judgement.
- Duravit is entitled to request advance payment before carrying out any delivery in whole or in part.
IV. Delivery and obligation to cooperate
- The scope of our delivery obligation is exclusively defined by this contract. We reserve the right to make changes to designs, shapes and colours in response to improvements in technology or the requirements of the law, insofar as such changes are insignificant or just and reasonable for the customer.
- Partial deliveries are permitted and may be invoiced separately.
- The specification of delivery deadlines is always non-binding and on principle subject to the customer's cooperation in accordance with the contract.
- If an agreed deadline cannot be met due to circumstances beyond our control or beyond our suppliers’ control, it shall be extended accordingly. The customer shall be informed immediately of such a case. Should the impeding circumstances persist for longer than one month after the expiry of the agreed deadline, either party may withdraw from the contract. Further claims are excluded.
- The same applies if we ourselves do not receive deliveries despite having placed appropriate orders with reliable suppliers.
- The products delivered by Duravit to the customer comply with the legal provisions of the country of delivery indicated by the customer. If no country of delivery is indicated, the customer's delivery address will be deemed to be the country of delivery. If the customer intends to export the products to third countries after having received them and if he has not informed Duravit of this, the customer is obligated to ensure himself that the products comply with the applicable laws and regulations of those countries. In this case, Duravit will not accept any liability arising from potential non-compliance with product-related provisions or relevant export or import regulations.
V. Place of performance and transfer of risk
The place of performance is our registered office. Unless otherwise stated in the order confirmation, delivery is agreed “ex works”. The risk shall be transferred to the customer as soon as the goods have left the factory, even if partial deliveries are made or if we take over other services, e.g., the shipping costs or delivery.
VI. Material defects, defects in title
- Insofar as Duravit assumes a warranty for certain products, this shall only apply to end consumers and only in accordance with the separate terms of warranty.
- The statutory provisions shall apply to the rights of the customer in the event of material defects and defects in title, unless otherwise stipulated hereinafter.
- In case of material defects, the customer has initially a legal obligation to inspect the goods and to give notice of defects pursuant to section 377 HGB (German Commercial Code).
- The customer may not derive any additional rights from material defects which do not, or only to a negligible extent, impair the value and suitability of the goods for the specific use recognized by us.
- If the goods have a material defect at the time of transfer of risk, we shall be entitled to alternative performance. This may be done by repair or replacement, at our discretion. If the costs of the repair exceed 50% of the value of the delivered goods, we are entitled to refuse repair.
- If the alternative performance fails, does not happen within a reasonable period of time set by the customer or is refused, the customer is entitled, at his discretion, to withdraw from the contract, to request a reduction of the purchase price in an amount equivalent to the cost of the defect or – within the limits of the following paragraphs - to seek compensation instead of performance.
- If a material defect causes damage, we shall be liable according to the statutory provisions if this relates to a personal injury or if the damage falls within the terms of the German Product Liability Act or if the damage has been caused by intent or gross negligence.
- If the damage has been caused by a culpable breach of an essential contractual obligation or a “cardinal obligation”, we shall only be liable for any damage typical for the type of contract.
- Any further contractual or tortious claims of the customer are excluded. In particular, we shall not be liable for damage that has not been caused to the delivered item itself nor for loss of profit or other financial losses of the customer.
- Section 478 BGB (German Civil Code) shall remain unaffected; however, the provisions of clause VI, paragraphs 7 to 9 shall also apply to the claim for damages in the event of recourse against suppliers.
- The provisions above shall also apply to defects in title.
VII. Other cases of liability for damages
- The provisions of clause VI, paragraphs 7 to 9 also apply to claims for damages due to other breaches of obligations.
- In the event of a breach of a pre-contractual obligation or an impediment to performance that existed when the contract was concluded, our liability to pay compensation shall be limited to the damage incurred by relying on the validity of a declaration.
- The provisions of clause VI, paragraphs 7 to 9 shall apply mutatis mutandis to our liability in tort.
- Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our executive bodies, employees, workers, representatives and assistants.
VIII. Limitation periods
- In the case of sanitary ware, bathtubs and shower trays, bathroom furniture, toilet seats (excluding shower toilet seats), installation systems, accessories, and bathroom faucets, the customer's right to claim alternative performance shall become statute-barred five years after delivery of the goods, unless otherwise stipulated hereinafter. A limitation period of two years after delivery of the goods shall apply to all other products (including but not limited to whirl tubs, pools, saunas, steam showers, SensoWash shower toilet seats and all wear parts) subject to the provisions of section 438 paragraph 1 no. 2 BGB (German Civil Code).
- The limitation period for claims for damages is one year, subject to the provisions of section 438 paragraph 1 no. 2 BGB.
- The statutory limitation period shall apply to claims under the German Product Liability Act, under section 823 BGB (German Civil Code) and in cases of intent and gross negligence.
- All claims are subject to professional installation and compliance with the product, operating, care, maintenance, and installation instructions.
IX. Retention of title
- We retain title to the delivered goods until all our claims against the customer arising from the business relationship, including future claims arising from contracts concluded at the same time or later, have been settled. This shall also apply if receivables have been included in a current account and the balance has been struck and accepted.
This also applies to goods that have been invoiced to third parties (e.g., purchasing associations) as agreed.
- The customer is entitled to sell or process the goods in the ordinary course of business. Any processing shall be done by the customer on our behalf, without any obligations being thereby incurred by us. In the event of goods subject to retention of title being processed, combined or mixed with other goods, we shall acquire co-ownership of the new product, namely in case of processing at the ratio of the value (= gross invoice value including ancillary costs and taxes) of the goods subject to retention of title to the value of the new item, and in the event of combining or mixing, at the ratio of the value of the goods subject to retention of title to the value of the other goods.
- The customer hereby assigns to us all claims that he has obtained against third parties from the resale. The customer shall remain authorised to collect the sums due even after the assignment. Our authority to collect the sums due ourselves remains unaffected; however, we will not make use of this right as long as the customer duly fulfils his payment and other obligations. Upon request, the customer must inform us of the assigned claims and of the debtors, provide all information required for the collection of such claims, submit the relevant documents, and inform the debtors of the assignment.
- If the customer acts in a way contrary to the contractual obligations, in particular in the event of default in payment, we are entitled to withdraw from the contract and to recover the goods. For the purpose of recovering the goods, the customer hereby grants us the irrevocable right to enter his business and storage premises without hindrance and to recover the goods.
- Insofar as and as long as the retention of title exists, the customer must neither assign as security nor pledge goods or items manufactured from such goods without our consent. Financing agreements (e.g. leasing) involving the transfer of ownership of goods subject to retention of title require our prior written consent, unless the party providing the financing is obliged under the agreement to pay to us directly the share of the purchase price to which we are entitled.
- The customer must inform us immediately in writing in the event of pledging or other third-party interventions. The customer must not enter into agreements with his own customers which may impair our rights.
- We undertake to release the securities we are entitled to, at the customer's request and at our discretion, insofar as the realisable value of the securities exceeds the secured receivables by more than 20% or their nominal amount by more than 50%.
X. Legal framework for electronic data exchange
- We make it possible for our customers to handle almost all business processes electronically.
- The prices and conditions that we have agreed with the customer (price lists, conditions) shall apply. Different prices or prices specified by the customer in the order will not be taken into account when the order is received.
- Incorrect messages, i.e. those that do not comply with the structure of the defined record format, shall be considered not to have been transmitted for both parties. In such a case, direct consultation shall take place with the customer's technical managers and responsible professionals.
- The customer undertakes to take the measures necessary to ensure confidentiality and data protection.
- We shall inform the customer as early as possible of any planned downtimes in electronic data transmission. This shall also apply in the event of disruptions.
- The customer’s rights and claims are not transferable, unless Duravit has given its prior written consent to such transfer. Section 354a HGB (German Commercial Code) shall remain unaffected.
- The invalidity of individual provisions shall not affect the validity of the other provisions.
- If the customer is a merchant, the place of jurisdiction for all disputes with him is the registered office of Duravit. However, we are also entitled to take legal action at the customer's registered office.
- German law shall exclusively be applicable, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Version: September 2019
The German version shall prevail in case of any discrepancy or inconsistency between the English translation and the German original.
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