Conditions générales de vente

For orders and purchase orders placed by AB, the Conditions of Purchase and Order of AB shall be decisive exclusively.

All orders placed and purchases carried out by AB are handled - if the matter is not settled by these conditions - exclusively on the basis of the legal provisions.

The contractual partner of AB has to warrant and to pay damages to the extent and for the period of time provided by law.

In addition to the legal provisions, the conditions in the following shall be valid.

Our written purchase order is decisive for the content of the contract, if applicable in conjunction with our written confirmation of the contract.

The written form in the meaning of these conditions is also adhered to in case of fax or e-mail.

The price quoted in the purchase order is binding.

Provided that no deviating agreement according to the Incoterms 2010 of the International Chamber of Commerce (ICC) is concluded, the prices are delivery free to destination.

The prices do not include statutory value-added tax.

Additional services are not reimbursed separately.

AB shall be entitled to return packaging in good condition to the supplier at the supplier’s expense. Shipping instructions for packaging must be clearly emphasized on the delivery note.

If not otherwise agreed, payment shall be made within 15 days with a cash discount of 3% or within 30 days net by means of payment chosen by AB.

The date of the receipt of invoice shall be decisive for computing the payment and discount period. A delivery carried out prior to the agreed date does not affect the beginning of the payment period depending on the receipt of invoice.

Without the written consent of AB, the supplier cannot assign its contractual delivery commitments to third parties - neither as a whole nor partly.

The supplier agrees that AB can offset claims existing against it or its subsidiaries and associated companies with all of its claims of all of its affiliated companies. The offset is also permissible if on the one side cash payment and on the other side payment in bills or any other performance has been agreed on account of performance.

Agreed delivery dates are fixed dates and must be adhered to.

If the supplier realizes that he cannot comply with agreed periods and fixed dates, he must notify us immediately in writing.

The place of performance for all deliveries and services is the place of destination specified by AB.

The time limit for lodging a complaint in the event of hidden defects shall be 40 days from detection of such defects. Hidden defects include those which in the case of shrink-wrapped goods can only be detected after opening the packaging. If the goods are delivered to a place of destination which is not identical with the address of one of our headquarters, the 40-day time limit for lodging a complaint commencing with detection of the defect shall always apply.

AB shall be entitled to claim damages for any defects as provided by law without limitation. The right to claim damages shall also apply to deliveries by subcontractors of the supplier.

It is up to AB to demand as subsequent performance the remedying of the defect or the delivery of goods free of defects or the production of new goods in consideration of the appropriateness.

The subsequent performance shall be carried out as quickly as possible as agreed with AB and in consideration of the internal interests of AB.

If no subsequent performance is effected within a reasonable period of time or if it is unsuccessful twice, AB shall be entitled to the rights of cancellation, reduction of purchase price, payment of damages and/or repayment of expenses.

The right to claim damages for any defects is bound by the statute of limitations pursuant to the legal regulations.

All costs associated with subsequent performance shall be borne by the supplier, including the costs of taking back goods, dismantling, transport, ways, work, material, planning, documentation services incurred by subsequent performance.

As far as AB incurs any costs due to the subsequent performance, we shall be entitled to invoice them with the local prices.

Should individual provisions contained in these conditions be invalid as a whole or in parts, this shall not affect the validity of the remaining provisions. Instead of the invalid provisions, §133, §157 and §242 of the German Civil Code are to be applied - for the purpose of plugging the gap - for settling the facts by way of supplementary interpretation of the contract.

The supplier will maintain silence with regard to third parties about all internal processes, facilities, plants, documents etc. of AB and its customers which it gets to know in connection with its activity for AB, also after submitting the respective offers or the performance of the contract. It will impose corresponding obligations on its assistants or vicarious agents.

In the case of defective goods or performance or part-delivery not conforming to the contract, the value date of the invoice is fixed to the date on which the goods are free of defects or of complete delivery. The value date is deemed to be the date of receipt of the invoice.

The contracts between AB and its business partners shall be governed by German law exclusively under exclusion of the UN agreement on Contracts for the International Sale of Goods (CISG).

All sales are subject exclisively to our terms of delivery and payment, which our customer accepted when placing the order. This also appplies to future transactions, even if they are not particulary referred to, but the purchaser has received them in connection with an order confirmed by AB. If the order is placed under variant terms of delivery and payment, only our terms of delivery ans payment shall apply, even if we do not object. Thus deviations shall only apply, if they are expressly accepted by us in writing.

For the content of the respective contract, AB’s written confirmation of order shall be decisive. Verbal agreements in connection with conclusions of contracts made with employees of AB which are not authorized to represent also require the written confirmation of AB.

Quality statements concerning the products and services of AB are attributable to AB only if these statements are originally made by AB or expressly on behalf of AB or if they are expressly authorized by AB or if AB has known these statements for four weeks or must have known them and has not distanced itself from them. Authorized dealers and customers of AB acting as resellers are not vicarious agents of AB within the meaning of §434, section 1, BGB (German Civil Code). An adequate correction of quality statements within the meaning of §434, section 1, BGB can be effected in any case on the AB website at www.agrob-buchtal.de.

The customer must send purchase orders and execution requests in writing exclusively to the fax numbers or e-mail addresses provided for this specific purpose.

Should the customer choose any other communication channels, it shall bear the risk associated with delayed processing.

The goods are packed in cardboard boxes and shrink-wrapped on pallets. According to the requirements of the Ordinance on Packaging, INTERSEROH, contract no. 25454, is in charge with recycling packaging put into circulation by us. All other special packaging shall be charged to the customer.

As far as packaging is required, AB packages the goods according to the existing regulations and proceeds pursuant to §15 of the Ordinance on Packaging.

Products marked as 1st choice meet the requirements of the relevant DIN EN 14411 standard. Products marked as 2nd choice do not meet the requirements of the aforementioned standard and feature technical and/or visual defects, which exclude them from qualification as 1st choice.

The wear to which every floor covering is subject depends, on the one hand, on the area of application, duration and frequency of exposure to stress, type and degree of soiling as well as, on the other hand, the hardness and wear-resistance of the covering material. Classification into stress groups refers to the wear-resistance displayed by the glazes, but not their loading capacity with regard to pressure and heavy weights.

Only those products are suitable for processing (especially laying) in commercial and public buildings which have been expressly approved by AB for these areas of application. The customer should therefore pay attention to the respective recommendations of use for the products.

Drawings, execution plans, design proposals, laying schemes, quantity statements, drafts of bills of quantities and the like made available by AB only constitute a favour. They are not binding and must be checked for correctness in any case by the customer. AB does not assume liability for their correctness.

AB shall be entitled to sell and assign claims against its customers. Contractual prohibitions of assignment shall not apply.

AB shall be entitled to apply its own company and brand logos. The customer shall not be entitled to remove such logos applied by AB.

Any later surface modifications by renewed firing of the goods, in particular the application of decors, shall require the prior written consent of AB.

The contractual partner of AB shall also be obliged to agree to the arrangements in C.2.01 and C.2.02 when reselling the products to others.

To facilitate an efficient flow of goods and to enable working economically by means of productive logistics, collection of the goods must be organized so precisely as to avoid a capacity overload of the loading ramps, for example. This is achieved, among other things, by fundamentally separating the types of delivery. A distinction is made between ex- works deliveries and carrier-bound deliveries.

In general, the following applies:
As far as C.3.04 is not relevant, deliveries are effectuated ex-works (EXW). This means that all deliveries are effectuated ex-works on the following conditions:

• Collection by the customer requires advance notice with a period of three working days by fax or e-mail and
• requires compliance with an exact timeframe of ±60 minutes made available by AB.
• If these conditions are not complied with, the goods can only be collected after a new time has been arranged with AB. In that case, AB reserves the right to charge the customer €100.00 net as an administrative lump sum for such rearrangement.

The customer shall pay a flat-rate price for transport which results from the currently valid freight rate table available to the customer on request.

All purchase contracts are concluded as sale to destination according to the buyer’s instructions within the meaning of §447 BGB (German Civil Code). §447, section 2, BGB shall not be applicable.

The risk shall pass to the customer as soon as the goods are transferred to the carrier.

The customer shall not be entitled to give the carrier instructions with regard to transport. This shall also apply to part deliveries (see C.5.02).

Even if the principle of carrier-bound delivery according to C.3.04 applies in general, the following exception to it is possible:
The customer shall be entitled, if it proves in individual cases that transport organized by itself would be cheaper, to collect the goods or have them collected in compliance with the following conditions:

• collection by the customer requires advance notice of a period of three working days by fax or e-mail and
• it requires compliance with an exact timeframe of ±60 minutes made available by AB.
• Because of the administrative costs related to this, we reserve the right to charge a lump sum of €100.00 net for each collection by a customer.

The combining of several consignments for one place of destination is only possible if the customer expressly wishes this by fax or by e- mail and AB avails of the appropriate planning scope. In such cases, periods of delivery are extended and delivery dates are postponed in accordance with C.4.

A change of the place of destination by the customer shall not be possible after conclusion of the contract.

In the case of other types of delivery, all risks shall pass to the customer as soon as the goods leave the AB plant.

If shipment is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer as soon as the goods are ready for shipment; if collection by the customer was agreed, as soon as the goods are ready for collection on the agreed delivery date.

If goods are packed on heat-treated or gassed pallets, €12.50 shall be charged for each of such pallets.

If AB takes back goods on a goodwill basis, i.e. if there is no obligation to take them back, the freight charges shall be borne by the customer. A return fee to the sum of 25% of the goods invoice value will be billed or deducted in the case of a credit note for the goods.

Should the customer request any modifications of the order after confirmation of the order, the period of delivery shall begin only with confirmation of the modification by AB. The delivery date shall be postponed accordingly.

“Force Majeure” means the occurrence of an event or circumstance that prevents or impedes a party from performing one or more of its contractual obligations under the contract, if and to the extent that that party proves: [a] that such impediment is beyond its reasonable control; and [b] that it could not reasonably have been foreseen at the time of the conclusion of the contract; and [c] that the effects of the impediment could not reasonably have been avoided or overcome by the affected party.

In the absence of proof to the contrary, the following events affecting a party shall be presumed to fulfil conditions (a) and (b) under paragraph 1 of this Clause: (i) war (whether declared or not), hostilities, invasion, act of foreign enemies, extensive military mobilisation; (ii) civil war, riot, rebellion and revolution, military or usurped power, insurrection, act of terrorism, sabotage or piracy; (iii) currency and trade restriction, embargo, sanction; (iv) act of authority whether lawful or unlawful, compliance with any law or governmental order, expropriation, seizure of works, requisition, nationalisation; (v) plague, epidemic, natural disaster or extreme natural event; (vi) explosion, fire, destruction of equipment, prolonged break-down of transport, telecommunication, information system or energy; (vii) general labour disturbance such as boycott, strike and lock-out, go-slow, occupation of factories and premises.

A party successfully invoking this Clause is relieved from its duty to perform its obligations under the contract and from any liability in dam- ages or from any other contractual remedy for breach of contract, from the time at which the impediment causes inability to perform, if the notice thereof is given without delay. If notice thereof is not given without delay, the relief is effective from the time at which notice thereof reaches the other party. Where the effect of the impediment or event invoked is temporary, the above consequences shall apply only as long as the impediment invoked impedes performance by the affected party. Where the duration of the impediment invoked has the effect of substantially depriving the contracting parties of what they were reasonably entitled to expect under the contract, either party has the right to terminate the contract by notification within a reasonable period to the other party. Unless otherwise agreed, the parties expressly agree that either party may terminate the contract if the duration of the impediment exceeds 120 days. A cancellation after 120 days is excluded if the products have already been manufactured.

The same shall apply in the case of fixed-date purchases if the aforementioned delays are not discontinued in time.

Damages possibly to be paid by AB because of delayed performance are limited to negative interest.

Part deliveries are also permissible to an extent which is reasonable for the customer.

If AB makes use of its right to partial delivery or delivery of a surplus quantity, payments for goods already supplied can not be withheld for this reason.

Prices and price group codes do not include the value-added tax valid at a given time. The same applies to costs and interest.

If the cost factors change after conclusion of the contract, in particular the prices for raw materials or supplies as well as wages and transport costs, AB shall be entitled to adjust the prices and price group codes appropriately if a period of more than 4 months lies between the confirmation of order and delivery.

In principle, the price lists are always valid for one calendar year. AB, however, reserves the right to change them during the year. Such changes shall always become effective at the end of a quarter after a period of six weeks following announcement thereof on the Internet or by notification.

No rebate or cash discount shall be granted for separately invoiced freight charges and packaging costs, nor are they taken into account when calculating any bonuses agreed.

Each pallet opened is billed at the corresponding package price, not the pallet price.

Special net prices apply for full pallets. The special net price can be increased by 16% for pallets opened.

Unless otherwise agreed, payments are due immediately.

Receipt on the AB account shall be decisive for the punctuality of payment.

Payments to be made to AB are due after 30 days from the date of invoice at the latest. By exceeding this date, the debtor defaults on payment. If the purchaser is arrears with any payment due to us, all existing claims are payable immeditately.

In the case of a delay in payment by the customer, AB will charge a dunning fee to the amount of 5.00 EUR for each prompt note. In the case of default in payment by the customer, AB shall be entitled to claim interest on default payments at the rate of 9% above the base interest rate. Proof and assertion of any further damages shall remain unaffected by this.

The place of performance for payments is the registered office of AB.

The customer has no right of retention. The rights pursuant to §320 BGB (German Civil Code), however, shall continue to apply as long and as far as AB has not fulfilled its warranties.

If on the part of the customer - should a declaration of intention by the customer still be required for conclusion of the contract, after the last declaration of intention of AB - concerning the conclusion of the contract, a substantial deterioration of its financial situation occurs after the conclusion of the contract, AB shall be entitled to demand advance payment or the furnishing of collateral for all performances and deliveries not yet carried out under contracts from the same legal relationship (§273 BGB) at AB’s discretion. If the customer does not satisfy this demand, AB shall be entitled to withdraw from these said contracts or, after fixing a time limit, to claim damages instead of performance, i.e. 25% of the order value not carried out without particular proof, unless the customer provides proof of lower damage. AB shall also be entitled to claim damages exceeding the flat-rate percentage.

The notice period is shortened to one day for pre- notification via the direct debiting scheme, which is done by sending the message of bank collection. The pre-notification will be sent at least one day before the due date.

Upon deliveries within the European Union (§ 6a Added Tax Act), the customer is obliged to confirm to AB after the arrival of the goods at its final destination that the goods entered the remaining community area (entry certificate according to § 17a VAT Implementation Ordinance). AB therefore provides a single-use link respectively alternative documents. In case the customer does not fulfill this duty within two months after delivery, AB is entitled to invoice a security deposit with the amount of the value added tax applicable at the time of delivery in the Federal Republic of Germany.

First of all, the customer must inspect the delivery with regard to damage to packaging or irregularities concerning the packaging. Wherever this is the case, the customer must remove the packaging and inspect the goods. If defects are detected, the inspection must be intensified. In the event of violation of this provision, any possible warranty claims are excluded.

In any case, the customer must take samples of the supplied goods. The more defects detected, the more intensive inspection is necessary by the customer. In the event of violation of this provision, any possible warranty claims are excluded.

The customer must also lodge complaints concerning hidden defects immediately after their detection in this same form.

In the event of violation of the provisions C.8.04 or C.8.05, any possible warranty claims are excluded.

Defects detectable only after bundles are opened must also be reported in writing within the aforementioned period, however, at the latest six months after receipt and in any case prior to processing of the supplied goods. In the event of violation of this provision, any possible warranty claims are excluded.

Goods with apparent defects must not be processed. If they are processed nevertheless, the processed goods shall be deemed to be accepted.

Processing must not be continued if the defects become apparent during processing. If they are processed nevertheless, the processed goods shall be deemed to be accepted.

Non-conforming goods must be kept ready for inspection by AB in the condition in which they are at the time of detecting the defect. In the event of violation of this provision, the customer shall be obliged to prove that the condition of the goods has not deteriorated due to its behaviour and subsequent performance has not become more expensive.

Non-conforming goods are to be stored properly by the customer until the complaint has been settled. Any deterioration of the goods due to a violation of this provision and a loss of the goods due to that shall be chargeable to the customer.

If a defect is detectable only after processing, dismantling (removal of the tiles) may be carried out only after AB has been given the opportunity to inspect the defect within a reasonable period and in an appropriate manner or if AB has agreed to dismantling in writing. In the event of violation of this provision, any possible warranty claims are excluded.

The statutory warranty period shall apply.

Contrary to C.9.01, the warranty period for goods which the customer has sold to resellers is 5 years from delivery to the customer. Should the customer be entitled within this period to plead the statute of limitations with regard to its respective customer, only the shorter warranty period of the customer with regard to its customer shall apply - if it’s not effected in time - also in the relationship to AB.

Works concerning goods supplied by AB or other services rendered by AB shall be deemed to be works for remedying defects or rework only

• if the defects have been expressly accepted by AB
• or if the customer’s complaints have been proved
• and if these proven customer complaints are justified.

And also apart from this, reworks or substitute deliveries are carried out by AB as special performances with costs unless they are expressly effected on the basis of the acceptance of a legal obligation.

As far as the warranty period is delayed or interrupted by works or substitute deliveries carried out by AB, such a delay or interruption only applies to the quantity concerned by the substitute delivery or rework.

If subsequent performance to be carried out has not resulted in the remedying of the defect after a reasonable number of attempts to be assessed for the individual case, the customer shall be entitled to withdraw from the contract. At least three attempts are considered to be reasonable for subsequent performance.

If AB has refused subsequent performance despite a legitimate right to subsequent performance on the part of the customer, the customer shall be immediately entitled to withdraw from the contract.

The customer shall have the right to reduce the purchase price (reduction) only if AB agrees to that.

Any further claims on the part of the customer shall be excluded.

We shall not warrant for damage for which AB is not responsible. This includes, e.g. damage caused for the following reasons: inappropriate or improper use, faulty installation by the customer or by third parties, natural wear, incorrect or careless treatment.

AB shall not warrant for components provided by the customer. The customer shall be exclusively responsible for the suitability and quality of such components unless expressly otherwise agreed.

Within the scope of subsequent performance, AB shall not be obliged to reimburse costs incurred by the customer due to the fact that it had already processed the goods.

AB only assumes warranty for the KeraTwin K20 system when the construction inspection approval no. Z-33.1-1175 issued by the Deutsches Institut für Bautechnik is adhered to in full.

AB only assumes warranty for the KerAion K8 system when the construction inspection approval no. Z-10.3-776 issued by the Deutsches Institut für Bautechnik is adhered to in full.

AB only assumes warranty for the KerAion Quadro system when the construction inspection approval nos. Z-10.3-725 (fixation with clasps), Z-10.3-724 (fixation with bearing profiles) issued by the Deutsches Institut für Bautechnik are adhered to in full.

AB only assumes warranty for the Drytile system when the construction inspection approval no. Z-156.610-1373 issued by the Deutsches Institut für Bautechnik as well as the installation guidelines (technical data sheet DT01) are adhered to in full.

AB shall only be held liable for damage which AB, a legal representative or a vicarious agent has caused intentionally or grossly negligently. In all other respects, liability shall be excluded.

If AB is obliged to provide compensation, AB shall only be liable, as provided for by the following stipulations, for the immediate damage, i.e. not for damage which has not been caused to the item delivered as such.

Liability for consequential damage due to a breach of obligation, including within the scope of an obligation of subsequent performance, is excluded.

In addition to the above-mentioned stipulations, AB shall be liable for damage which exceeds the damage caused to the item delivered as such only in the case of intent or gross negligence, within the scope of product liability law and in the case of lack of properties which are expressly warranted, provided that this warranty was specifically intended to protect the purchaser against damage which has not been caused to the item delivered as such.

AB shall only be liable for the damage typically covered by the contract, which is reasonably foreseeable, except in the case of intent or gross negligence.

The obligation of replacement does not cover consequential damage even in the case of liability on account of a breach of essential contractual duties.

This also applies to call-off orders without an agreed call-off period if more than 4 months without call-off have expired since AB’s notification of readiness for shipment has been received.

Nor shall AB be obliged to insure any stored goods.

n the case of default in acceptance of delivery, AB shall be entitled to store the goods at the customer's risk and for the customer's account at a commercial warehouse.

The two figures above shall also apply in the event of shipment being delayed for over two weeks beyond the notified date of readiness for shipment at the customer's/buyer’s request.

If the customer does not accept the ordered goods, despite a deadline being fixed, AB shall be entitled, independent of the proof of damage actually incurred, to demand 25% of the agreed price as lump-sum remuneration, unless the customer furnishes proof of lower damages.

All shipments shall be made subject to the reservation of title.

This reservation plus the extension specified below shall apply pending payment of all claims from the business relationship with the customer and pending complete exoneration regarding any contingent liabilities AB has undertaken in the customer's interest.

AB shall be entitled to request the surrender of its reserved goods for important reasons, especially in the case of default in payment, against offsetting the proceeds of sale. This request for surrender shall not constitute a rescission from the contract.

If and to the extent that the goods returned can be sold otherwise as new by AB within the usual course of business, the customer shall be liable to pay 10% of the invoice amount of the goods as costs for return shipping without any further proof. If sale as new is not possible within the usual course of business, the customer shall be liable to pay another 30% of the invoice amount of the goods without any further proof for loss of value. The customer reserves the right to furnish proof of a lower percentage.

AB shall retain the right to assert higher damages.

The customer hereby assigns all claims resulting from resale, processing, installation and other exploitation of our goods to AB. To the extent that the products sold, processed or installed by the customer include items which are not the customer's property and for which other suppliers have also stipulated a reservation of title with a clause regarding sale and advance assignment, assignment shall be effected to the extent of the share of co-ownership by AB, which corresponds to the fraction of the claim; otherwise, to the full amount.

Authorization to collect retained by the customer despite assignment shall expire due to revocation which shall be admissible at any time.

AB is entitled to assign the claims from our business relationships.

The place of performance for deliveries shall also be the registered office of AB, especially if AB effects transport on its own.

The laws of the Federal Republic of Germany shall apply exclusively. The application of the UN agreement on Contracts for the International Sale of Goods and other uniform laws shall be ruled out.

as at November 2019