General Terms and Conditions of Sale and Delivery

The present General Conditions of Sale and Supply (GCS) apply to all business relationships between us and our respective business partners who purchase our goods and services (“Customers”). The GCS apply in particular to contracts for the sale and/or the supply of movables, regardless of the fact whether we manufacture the products ourselves or whether we purchase them from sub-suppliers. These GCS apply merely to customers who are entrepreneurs as defined by §14 of the German civil code (BGB), corporate bodies under public law or special public funds The GCS in their respective version are considered as a frame agreement also for future contracts with the customer and do not need to be referred to for each individual case; the currently valid version of the GCS can be found at http://wolfshoehe.de/. These GCS are the ones that solely apply. Deviating, opposing or complementary conditions of the customer shall only become integral part of the contract to the extent where we have explicitly given our approval. The approval is required in any case, even if we supply, for example, without reservation and aware of the customer’s general terms and conditions. In order to clarify, we point out that individual agreements with the customer shall prevail over the present GCS. For them to be valid, text form is equally required as it is for unilateral transactions after the conclusion of contract between the customer and us. Messages via E-mail or facsimile are considered as text form.

By reception of the goods at the latest and provided that we have made prior reference to our GCS, our terms of supply and of payment are considered as contractually agreed.

§ 1 Conclusion of a contract, scope of delivery

a) Our offers, including quantities, delivery time and price, are non-binding. Given promises with regard to quantity, delivery dates and prices, especially when diverging from the GCS, are only legally binding when confi rmed by us in written form.

b) Reference to DIN standards does not constitute a warranty for particular properties of the products.

c) Our products are homogeneous mass products which are manufactured using a natural fi ring process. Therefore, samples of each kind and size, specimens, illustrations and descriptions only represent non-binding reference values.

d) Our product description is the only agreed description for the properties of our goods. Besides this, our public statements, claims or advertisements do not constitute a contractual description of the good’s properties. We do not grant guarantees to the customer as defi ned by law. Manufacturer guarantees remain unaffected.

§ 2 Pricing

a) Unless otherwise agreed, our prices are quoted in EUROS for an EXW delivery (Incoterms 2010) from our plant in Neunkirchen or another site previously mentioned to the customer plus packing and value added tax.

b) The prices agreed are based on the current costs for raw materials and auxiliaries, wages and freight. In case these costs as well as the taxes and duties applicable on the agreed supply do change, we reserve the right to adjust the prices of frame supply contracts within the scope of the incurred increases in cost. We shall inform the customer, immediately after the higher costs have been suffered, of the individual cost elements which are leading to the increase in prices. In that case, the customer is entitled to make use of his extraordinary cancellation right.

c) Subsequent amendments to drawings or to the order by the customer entitle us to invoice the additional costs arising from such amendments.

§ 3 Delivery time

a) Delivery times and dates are only binding after they have been expressly confirmed by us in written. A firm deal shall only be regarded as constituted if expressly agreed.

b) Delivery times start running with our order confi rmation, however not before all details of the order execution have been clarifi ed and not before all other conditions that have to be met by the customer are met; the same applies for the delivery dates. Deliveries before reaching the delivery date are permitted. Furthermore, we are entitled to make partial deliveries to a reasonable extent for the customer. This applies especially to cases when the partial delivery is usable by the customer within the scope of the use intended by the contract, with the supply of the remaining goods ordered being ensured and that no signifi cant additional work or expenses arise for the customer. The delivery date is the day of notifi cation of readiness of shipment to the customer.

c) If the customer fails to fulfi ll contractual obligations within a current business relationship also with regard to other contracts, agreed delivery times and dates shall be extended or postponed by the period until the obligations are fulfi lled and without prejudice to our rights from delay on the part of the customer. Delay in delivery does not apply without prior reminder by the customer.

d) If the customer is in default of acceptance, if he fails to cooperate or if our delivery is delayed by other reasons for which the customer is to be held responsible, we are entitled to claim compensation for the resulting damage including additional costs (e.g. storage costs). The flat compensation is of 0.5% of the net contract volume per full calendar week, starting from the date of delivery or – if no delivery date has been agreed – with the notification of readiness of shipment. The compensation shall, however, not exceed 5% of the net contract volume. We reserve the right to present proof of higher loss and to assert our statutory rights (in particular the substitution of additional costs, proper compensation, termination); the flat compensation is, in any case, to be taken into account with regard to further pecuniary claims. The customer is entitled to present proof that we   have not suffered any or only a clearly lower loss than the previously mentioned flat compensation.

e) In case that a timely and correct self-supply has not taken place, with this fact lies beyond our control, and that we have undertaken a congruent hedging transaction, we shall be freed from the obligation to supply, without being liable to the customer.

§ 4. Call-off supply contracts

a) Within the scope of frame contracts and unless otherwise agreed for individual cases, we reserve the right to negotiate agreements for quantities and delivery times for each call-off of manufactured products.

b) In case that call-offs of frame contracts are not made on time and after fruitless setting of time limits, we are entitled to withdraw from the still outstanding part of the supply frame contract. In this case, the claim for damages shall be explicitly reserved.

§ 5 Force majeure and other impediments

a) In cases of force majeure and other unforeseeable extraordinary conditions for which we may not be held responsible, we are entitled to postpone the delivery for the duration of the impediment and for the preparatory period, provided that we are prevented from fulfi lling our contractual obligations on time. If, due to the circumstances, the supply of the outstanding part becomes impossible or unreasonable, we are entitled to withdraw from the contract in full or in parts. Cases of force majeure are notably strikes, lock-outs, riots, sovereign acts of state, war-like conditions, Acts of God, fi res and other obstacles during production or shipment and disruptions; Beginning and end of such impediments shall be communicated as soon as possible to the customer. The burden of proof lies with us. This applies also for cases when aforementioned impediments occur during a delayed delivery or at a sub-supplier’s plant. Increased delivery time or withdrawal in full or in parts from the contract, shall not give rise to any damage claims from customer side.

b) The customer may request us to explain within a reasonable period of time, whether we intend to withdraw or whether we want to carry out the delivery within a reasonable extension of time. In case we do not provide an explanation, the customer is entitled to withdraw from the contract. This applies also in case that the delays in delivery persist for more than four weeks. None of the aforementioned cases entitles the customer to other damage claims.

§ 6 Dimensions, weights, quantities

a) Supplies with deviations in dimensions, weight and quantity within the scope of customary tolerances, pertinent DIN regulations and production-related requirements shall be accepted by the customer for the agreed unit price as long as they do not affect the customer in an unreasonable manner, do not affect the usability of the goods and that this has been made due to important operational requirements.

b) The shipping weight and quantities indicated by us are determining for invoicing; the customary packaging will be invoiced, too.

§ 7 Packaging and transport containers

If agreed under the individual contract, we shall package the goods in customary manner at the expense of the customer. The customer has the obligation to return at his own expense all packaging material which is not exclusively intended for single-use (“reusable transport packaging”). We may invoice, at our own discretion, a deposit for reusable transport packaging.

§ 8. Shipment and transfer of perils

a) Unless otherwise expressly agreed in writing between the customer and us, the shipment and transfer of perils shall be carried out according to EXW (Incoterms 2010) from our sites in Neunkirchen or from another shipping site named by us.

b) Goods which have been notifi ed as ready for shipment must be collected without delay, but in any case within one week after receipt of the completion notice. Otherwise we are entitled to store them at the customer’s risk and expense.

§ 9 Terms of payment

a) The customer may only set off or retain outstanding amounts that are either undisputed or recognized by declaratory judgment. In case of defective delivery, these customer rights remain unaffected. The customer shall only be entitled to rights of retention insofar as they are based on the same contractual relationship.

b) Receipt of checks or promissory notes is made only on account of performance. Payments by promissory note require a prior explicit agreement.

c) In case the customer is in arrears with his payment obligations, the purchase price shall be charged with interests in the amount of the currently valid legal interest rate for late payments.

d) In the case of non-respect of the payment terms by the customer or if facts emerge which give rise to reasonable doubt on the creditworthiness of the customer, all our receivables, including those for which we have accepted promissory notes, will become immediately due for payment, except if other individual contractual agreements for due payment exist The same applies for costs incurred, for services, for work in progress and for fi nished but not yet delivered goods. In case circumstances are made known after the transaction which may be objectively appropriate to lower the credit worthiness of the customer, we are entitled, according to § 321 of the German civil code BGB, to demand before delivery a prepayment or deposit for all contracts not yet delivered. We reserve the right to carry out a delivery in full or in parts against advance payment only, even within the scope of an existing business relationship. t the latest, such relevant reservation will be declared with the order acknowledgment.

e) Furthermore, on the basis of the retention of title agreed upon in paragraph 10, we shall be entitled to prohibit the resale and processing of the delivered goods and to demand, according to the legal provisions and at the customer’s expense, the restitution or the transfer of indirect possession for the delivered goods and to revoke the authorization to collect receivables according to Item no. 10 f). The customer authorizes us already at this point in time to enter its premises after prior announcement and in order to re-collect the supplied goods in the aforementioned cases.

§ 10 Retention of title

a) Any goods which have been delivered shall remain our property (conditional products) until fulfi llment of all claims, in particular the respective current account balance claims.

b) Machining and processing of the conditional products shall be performed for us as manufacturers excluding the provisions of § 950 of the German civil code [BGB]. Processed goods are considered as conditioned goods in terms of item a). If the conditional products are processed, combined or mixed by the customer with other goods, we shall acquire joint ownership of the new product in proportion to the ratio of the invoice value of the conditional products to the invoice value of the other commodities employed. If our property ceases through combination or mixture, then the customer commits himself already at this point in time to transfer any ownership in proportion of the respective values of the combined or mixed new item and to safeguard them for us free of charge.

The customer may only resell the conditional products in the normal course of business subject to his standard terms and conditions and as long as he is not in default, provided that the customer reserves the claims arising out of resell in accordance with items d/e) pass to us.

d) The claims of the customer from resale of the conditional products shall hereby be assigned to us in full or in proportion of the amount of the joint ownership. We hereby accept the assignment. They shall serve as collateral to the same extent as the conditional products.

e) If the conditional products are resold by the customer together with other goods not supplied by us, the claim from resale of the conditional products shall be assigned to us in proportion to the ratio of our invoice value of the conditional products sold In the case of resale of goods in which we have shares of joint ownership in accordance with item b) that proportion of the claims corresponding to our share of the joint ownership shall be assigned to us.

f) The customer shall be entitled to collect claims arising from resale acc. to c) and d) unless we revoke the collection. We reserve the right to collect the claims on our own as soon as the customer does not duly fulfi ll his payment obligations and he gets in arrears. We have the right to revoke only in the cases stipulated under 9 item 9 e). The customer shall not be authorized to assign claims in any case whatsoever. At our request the customer shall be obliged to inform his customers immediately with regard to such assignment to us and provide us with the information and documents required for collection.

g) If the value of the existing collaterals exceeds the secured claims by a total of more than ten percent, then we shall be obliged to release collaterals at our discretion and only at the customer’s request. The conditional product must not be pledged, nor transferred as security nor be encumbered with third party rights. The customer shall inform us immediately of any third party seizure or other encumbrance. 

h) In case of contract violation by the customer, notably in case of delay of payment or if violating the obligations stipulated under items f) or g), we are entitled to withdraw from the contract according to the legal provisions and to demand the restitution of the goods on the basis of the retention of title and of the withdrawal. In the event of nonpayment of the purchase price due by the customer, we shall only be entitled to assert our rights if we have previously and unsuccessfully set a reasonable payment deadline to the customer or if setting a deadline is not necessary according to the legal provisions. We reserve the right to claim further damages.

§ 11 Defects, delivery of non-contractual goods

a) The optical impairments (e.g. color variations) occurring during the manufacturing process of heavy clay and refractory products which have no impact on the common usability, are not considered as defects.

b) The customer shall be obliged to examine any received products without delay after receipt and to immediately report any visible defects. The report of defects shall only be considered as immediate, if it is made within a delay of ten (10) calendar days. The binding date is the date when the report of defects has been received by us. In case that defects are clearly apparent without prior visual inspection, the customer is obliged to report this defect to us within two (2) calendar days. Should the customer fail to carry out a proper inspection and/or to properly report the defect, the goods will be considered as accepted in any case. The customer bears the full burden of proof for all conditions of entitlement, notably for the defect itself, the moment of detection of the defect and for the timely report of defect.

c) We shall be given the opportunity to examine the reported defect. In urgent cases when the operational safety is at risk or when disproportionate harm needs to be averted from the customer, we shall be obliged to verify the reported defect without delay on receipt of the report of defect. On our request, the rejected goods must be sent back to us immediately. In case the customer processes or sells the delivered goods, he shall forfeit any right to claim the respective defect and the resulting claim for compensation, provided that he has not reserved the right to issue a claim for defect.

d) Provided that the entitlement to claim defects is not excluded according to aforementioned items b) and c), the legal provisions shall apply unless otherwise agreed in the following.

e) We shall provide fi rst and at our own discretion for supplementary performance either by replacement or by reworking. Costs for dismantling and installation as well as costs for machining of defective goods at the customer site will not be refunded by us. We reserve the right to carry out the due supplementary performance only under the condition that the customer has paid the due purchase price. The customer, however, is entitled to retain a reasonable portion of the purchase price which is in proportion with the defect.

f) The customer is required to store the goods with the diligence of a prudent businessman and taking into account the storage instructions. If the goods have been consumed, the customer is obliged to keep a sample of the claimed goods and to hand it to us.

g) Any customer claims for payment of damages or substitution of futile expenditures, even in the case of defects, shall persist only in accordance with the regulations contained in paragraph 13 and are excluded in all other respects.

§ 12 Order-related production facilities

Order-related production facilities like tools, models, templates, equipments, alignment tools and molds manufactured or purchased by us on customer request remain, even if charged in parts, our property unless otherwise agreed in individual contracts. We shall keep them stored for the duration of three years from the date of the last delivery. On expiry of this period, they will be destroyed.

§ 13 Liability, compensation

a) The customer declares that the information and notably the use of stone or design drawings provided by him do not infringe any proprietary rights or other third party rights.

b) We shall be liable for damages – regardless of legal basis – in case of intent or gross negligence within the provisions on tortious liability. In case of ordinary negligence and unless more lenient criteria do apply, we shall be liable according to the legal provisions (e.g. for duty of care in one’s own matters) only for losses arising out of injury to life, body or health, and for losses arising out of a serious violation of a signifi cant contractual obligation (obligation which fulfi llment is a prerequisite for enabling the proper fulfi llment of the contract in the first place and in which the contracting party constantly trusts and in which he can trust); in this case our liability is, however, limited to the compensation of the predictable and typically occurring damage.

c) The limitations of liability arising from item b) apply also in case of violation of obligations by or in favor of persons for whose faults we are to be held liable in accordance with the legal provisions. They do not apply insofar as we have fraudulently concealed a defect or have guaranteed the property of the goods and for all claims according to the German Product Liability Act.

d) Where we are held liable by a third party for damages arising from causes lying in the responsibility of the customer, the customer will indemnify us from these claims and liabilities.

§ 14 Limitation of liability in time

a) The general limitation of liability in time for claims arising from defects of quality or defects of title deviates from § 438 par. 1 Nr. 3 of German civil code BGB and is of one year from delivery.

b) This applies for contractual and non-contractual claims for damages by the customer as well which are based upon a good’s defect, except if applying the ordinary limitation of liability in time provided by law (§§ 195, 199 German civil code BGB) results in a shorter limitation period in individual cases. Customer claims arising from item 13 b) and from the Product Liability Act, however, are exclusively time-barred according to the legal limitation period.

§ 15 Place of fulfillment, place of jurisdiction

a) The place of performance for payments is our business location in 91233 Neunkirchen, for all other obligations it is the location of the delivering plant.

b) Sole place of jurisdiction for all disputes arising from or in relation with any agreement referring to the GCS is 91233 Neunkirchen, Germany. We reserve, however, also the right to sue the customer at the place of his business location.

§ 16 Applicable law

All contractual relations between the customer and us are exclusively governed by the laws of the Federal Republic of Germany. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) are not applicable.

§ 17 Partial nullity

If single terms of these supply and payment conditions are legally void or become legally void either in full or in parts, the validity of the remaining provisions of the agreement shall remain unaffected.

§ 18 Confidentiality provision

Our business partners commit themselves to not disclosing any data which is related to the business relationship to any unauthorized third party and to protect and to keep the data safe against unauthorized access and misuse.