Terms and conditions

1. Applicability

1.1 These sales and supply conditions apply to all sale and supply transactions of Kronoply GmbH and KRONOTEX GmbH & Co. KG (hereinafter referred to as “Seller”).

1.2 Only these sale and supply terms apply. The buyer’s terms and conditions or changes to these sales and supply conditions cannot become part of the contract, even if Seller does not object to this.

1.3 These sale and supply conditions also apply to all future sale and supply transactions between the parties to the contract.

1.4 These sale and supply conditions apply only to persons pursuing a commercial or self-employed occupation in entering into a contractual relationship with Seller, or to public-law entities or special funds.

2. Conclusion of a contract and withdrawal from the contract

2.1 A contract is considered to come into being if the parties agree on all important aspects of it, especially the price, and if Seller acknowledges the contract in writing (declaration of acceptance). No consulting services of any kind, especially regarding the suitability of the purchased object for meeting the actual use intended by the buyer, are part of the contract.
Nor does any specific intended use for the merchandise communicated by the buyer constitute part of the contract. It is the responsibility of the buyer to ascertain the suitability of the merchandise for the buyer’s specific intended use, if necessary by consulting with experts and especially structural engineers and architects.

2.2 Seller is not bound by any oral offers or agreements. Seller has no obligation to honour any written offers made (especially in respect of prices, supply times, drawings, figures, dimensions, weights or other performance data) unless these can be clearly concluded from the offer.

2.3 The buyer shall honour any offers made to Seller or Seller’s representative for two weeks following their receipt, unless a longer-lasting obligation can be deduced from the offer.

2.4 No offer, contractual or project documents may be reproduced or made available to third parties without the consent of Seller. They must be immediately returned upon Seller’s request, which can be made at any time.

2.5 Seller may withdraw from the contract if the buyer fails to fulfil contractual obligations despite being granted a postponement of the deadline, or if Seller is unable to do so for reasons that Seller is not responsible for, could not have predicted or pose permanent obstacles that cannot be overcome at reasonable cost. This also applies to special stipulations of Seller (e.g. production to meet special specifications), especially regarding the requested quality and supply dates.

2.6 Seller may also withdraw from the contract if payment of the agreed price cannot be ensured by the agreed deadline (e.g. by means of commercial credit insurance, a bank surety or advance payment).

2.7 If Seller withdraws from the contract pursuant to Para. 2.5 or 2.6, then the buyer may not derive any further claims against Seller from this, except for the refund of any payments already made in connection with the contract.

3. Price and payment

3.1 The agreed price does not include statutory value-added tax. If any exemption of VAT is provided by statutory law, the necessary requirements must be fulfilled in direct temporal relation to the delivery. Therefore, the buyer shall be obliged to issue a confirmation of arrival (Gelangensbestätigung) to the seller directly after unloading the goods delivered, by signing a document including name and address of the accepter, specification of the amount of any items supplied containing their commercial designation and time and location of reception. In the event of any breach of this obligation by the buyer, he shall be obliged to subsequently pay VAT to the seller, if necessary, and shall be obliged to compensate the seller for any damages. Furthermore, the agreed price is ex-factory; shipping is the responsibility of the buyer and he shall bear all costs for packaging, insurance, freight, customs duties, import, and ancillary charges. Packaging cannot be returned.

3.2 To the extent that changes wished by the buyer are agreed subsequent to conclusion of the contract, the buyer shall pay Seller for the additional work required. If no price is agreed for the additional work upon changing the contract, then the amount due shall be set under consideration of the price level of the contract based on Seller’s original calculation.

3.3 If, between the conclusion of the contract and supply of merchandise, there are changes in the prices of raw or ancillary materials, wages or other economic conditions of relevance to the price (for example, currency exchange rates) for reasons beyond the power of Seller to influence, then Seller may reasonably adjust the price at its discretion (pursuant to Art. 315, Para. 1 of the German Civil Code).

3.4 Unless advance payment is agreed, payment is due in full immediately after the merchandise changes hands and the buyer receives the invoice. Partial deliveries are permissible and may be individually invoiced. All payments shall be made in euros.

3.5 Late payment causes the buyer to lose all granted discounts, cash rebates, freight reimbursements and other special terms. Furthermore, the buyer then owes interest at the rate of 12 per cent of the owned amount annually plus a fee of five euros for every written reminder sent, unless the buyer can prove that no damages or reductions in value have occurred or that they amount to considerably less than this. Other claims by Seller deriving from the delay in payment remain unaffected. In the event of late payment by the buyer, Seller may halt any further deliveries to the buyer, including such that do not form part of the same sale and supply transaction.

3.6 Payments must be made by wire transfer to Seller’s bank account. The acceptance of bills of exchange and cheques does not automatically fulfil the terms of the contract. The buyer must bear all costs and damages associated with cashing or the inability to cash bills of exchange and cheques.

3.7 Irrespective of the buyer’s terms of payment, Seller may deduct the following from payments made by the buyer: litigation costs, principal and interest. These deductions can result in an increase in the interest due. The buyer must be notified of the deductions within one month of receipt of payment or else the buyer’s terms of payment apply.

3.8 If the buyer is owed by Seller (i.e. has counter-claims), then the buyer is only entitled to make corresponding deductions, withhold sums or reduce payments if the counter-claims have been established as legally valid or are undisputed.

3.9 Claims by the buyer against Seller may only be ceded to a third party with the written consent of Seller.

4. Supply of merchandise

4.1 Seller has no obligation to deliver the ordered merchandise before and unless payment of the agreed price is ensured in the sense of Paragraph 2.6.

4.2. The buyer must accept the merchandise at Seller’s premises immediately after receiving notification that it may be picked up. If it is not accepted within two weeks, the merchandise is assumed to have been accepted and can be publicly stored at the buyer’s expense. The buyer must reimburse any costs incurred to Seller as a result of the delay in accepting the merchandise; other consequences of the delay remain unaffected by this.

4.3 Seller may manufacture the merchandise differently to comply with legal requirements, provided that this does not result in a worsening of its quality or suitability for use.

4.4 If unforeseeable events (such as operational disruptions, strikes, disruptions of transport, fire, natural disasters or other cases of force majeure) prevent supply deadlines from being kept, then the deadlines are extended accordingly without entitling the buyer to any damages. The same holds if the buyer fails to meet existing obligations for the fulfilment of the contract, for example submitting all planning documents in approved form that are required for production of the merchandise and preparation of the work.

4.5 If Seller has not delivered within two weeks of an agreed supply date despite having secured payment of the purchase price without the buyer being responsible for the delay, the buyer can set an appropriate second deadline at least two weeks in the future for Seller to supply the merchandise. The buyer may not withdraw from the contract until and unless this second deadline is missed.

4.6 If Seller is in arrears with supplying the merchandise, the buyer is not entitled to compensation amounting to more than 0.5% of the value of the merchandise affected by the delay per week, limited to a total of 5% of the value of the merchandise affected by the delay. The second half of the second sentence of Paragraph 3.5 applies to Seller analogously. Claims by the buyer above and beyond may only be considered in the event of intent, gross negligence or failure by Seller to fulfil a cardinal obligation.

4.7 Paragraphs 4.5 and 4.6 do not apply to transactions for which a fixed date has been set for fulfilment; in these cases, Art. 376 of the German Commercial Code applies.

5. Transfer of risk

5.1 The risk of accidental loss or deterioration of the merchandise passes to the buyer upon notification by Seller that it is ready to be shipped or picked up, and at the latest upon actual or assumed acceptance of the merchandise by the seller in accordance with the second sentence of Paragraph 4.2.

5.2 If it has been agreed that the merchandise will be sent to the buyer (no matter who bears the associated costs), then the risk passes to the buyer as soon as Seller has made the merchandise available for sending.

6. Warranty

6.1 Seller’s merchandise consists predominantly of wood, a natural material which exhibits a range of natural differences in colour, structure and other attributes that therefore do not constitute defects. Minor deviations from a product’s description, especially the deviations listed in the quality guidelines and in the case of boards of fixed measurements dimensional deviations by up to 10%, do not constitute defects except for the cases covered by Paragraph 4.3. This statement applies analogously if the cost of eliminating defects does not exceed 4% of the value of the merchandise.

6.2 In the case of melamine-resin-coated products to be used outside Europe, Seller is only liable for defects if the intended use and location of use are communicated to Seller in writing and Seller confirms the suitability of the materials in writing.

6.3 Warranty claims may only be made if the buyer provides the defective merchandise to Seller for inspection. Return shipments must therefore be agreed on by the parties to the contract.

6.4 Warranty claims may only be made if the buyer has paid for the defective merchandise in full and on time.

6.5 After the risk passes to the buyer in accordance with Paragraph 5, the buyer must immediately inspect the merchandise for defects, including incorrect products and quantities, and notify Seller of them without delay in writing. This also applies if merchandise samples were previously supplied. If defects appear later, they must also be communicated without delay. If buyer fails to fulfil this obligation to inspect the merchandise and notify Seller of any defects, no claims of any kind may be brought against Seller.

6.6 If defects are discovered, the buyer is initially only entitled to redress in the form of elimination of the defects; Seller may also decide at its discretion to replace the merchandise instead. Not until and unless these measures fail to solve the problem or Seller refuses to take action does the buyer have the right to pay less or withdraw from the contract.

6.7 Seller is only liable for property damage or financial losses if they were intentional or due to gross negligence. This liability is limited to damages that are typical of this type of contract and foreseeable when concluding the contract. This limitation does not apply to damage to health, bodily injury or deaths for which Seller is responsible, nor does it apply to failures to fulfil cardinal obligations and claims derived from the German Product Liability Law. The limitation on liability applies analogously to claims brought against the buyer by third parties.

6.8 Seller is only liable for legal deficiencies in connection with patent rights in the event of intent or gross negligence.

6.9 The statute of limitations on claims by the buyer against Seller for defects is one year. This does not apply to merchandise as defined in Art. 438, Para. 1, no. 2 of the German Civil Code. The term of the statute of limitations begins when the risk passes from Seller to the buyer pursuant to Paragraph 5.

6.10 The buyer only has rights of recourse against Seller based on the rules on the purchase of articles of consumption if the buyer and its partner in the supply chain have not agreed on claims going beyond the legal entitlements in the case of defects. The statute of limitations on rights of recourse on the part of the buyer is one year; Art. 479 Para. 2 of the German Civil Code is not applicable. Paragraphs 6.7 and 6.9 apply analogously. Any payment targets, discounts, rebates, payment for transport or comparable services granted to the buyer are regarded as equivalent compensation pursuant to Art. 478, Para. 4, Sentence 1 of the German Civil Code. The buyer must immediately inform Seller of any cases of recourse in the supply chain.

6.11 The warranty obligation for defects is voided if the merchandise is altered, used in any way or improperly treated.

6.12 If, after the buyer has brought a warranty claim against Seller, it emerges that Seller has no such warranty obligation, then the buyer shall reimburse Seller for any expenditures incurred.

7. Retention of title

7.1 Provided merchandise remains the property of Seller until the buyer has fulfilled all obligations towards Seller in connection with a sale and supply transaction. The inclusion of individual claims in a running bill or a balancing of accounts and their acknowledgement by Seller does not affect this retention of title.

7.2 Supplied merchandise remains the property of Seller until the buyer has fulfilled all obligations towards Seller, both current and future and regardless of their legal grounds. Paragraph 7.1, sentence 2 applies analogously.

7.3 The buyer is entitled to combine, mix and otherwise use merchandise with reserved title in the regular course of business, doing so for Seller as the manufacturer but without obligations towards Seller. If ownership of the supplied merchandise by Seller lapses as a result of combining, mixing or otherwise using it, then co-ownership of the resulting new object passes from the buyer to Seller in proportion to the value of the supplied merchandise in the buyer’s new object at the time of combining, mixing or otherwise using it.

7.4 The buyer bears the risk for Seller’s merchandise. The buyer must carefully store it, designate it as property of Seller, and separately insure it against loss, theft, fire, etc. In so doing, in the event of a claim the buyer cedes the insurance to the Seller. In the event that Seller’s rights are attached or otherwise diminished by third parties, the buyer must inform the third party of Seller’s rights and immediately advise the Seller in writing. Costs incurred by the attachment or other diminishment of Seller’s rights or by failure to provide notification of Seller’s rights (including those for litigation) and damages shall be borne by the buyer.

7.5 The buyer is entitled to sell Seller’s merchandise or the new object in the regular course of business. This excludes attaching it and pledging it as security. Receivables resulting from such a sale are immediately ceded by the buyer to Seller. The buyer must keep the revenues accruing to Seller separate from its own assets and those of third parties and document this with corresponding entries in its books or invoices. If the buyer’s receivables resulting from sale to a third party are credited to a current account, then the buyer must object to this in reference to Seller’s rights and immediately inform Seller in writing. Seller authorises the buyer to collect the ceded receivables in its own name; this authorisation is revocable in case the buyer falls behind in fulfilling obligations to Seller.

7.6 If the value of the aforementioned securities lastingly exceeds 20% of Seller’s receivables, then Seller may approve these at its discretion.

7.7 The buyer must do everything possible to ensure the full validity of the aforementioned agreed retention of title, also under the law of the country to which the merchandise is supplied if it is not Germany, and in particular to make all necessary legally binding declarations to Seller or third parties.

8. Release from liability

8.1 The buyer is liable solely within the scope of the internal relationship as a co-producer under the German Product Liability Law. He releases Seller from all third-party claims.

If the seller has specified how Seller should produce the merchandise and these specifications result in a violation of patent, copyright, trademark or other property rights, then the buyer releases Seller from all third-party claims.

9. Miscellaneous provisions

9.1 All disputes shall be resolved under substantive German law. Application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

9.2 If the buyer does not have a general legal venue in Germany (as defined by Art. 38, Para. 2 of the German Code of Civil Procedures) or if the buyer is a merchant, a legal entity under public law or a public-law special fund (as defined by Art. 38, Para. 1 of the German Code of Civil Procedures), then Neuruppin, Germany shall be the exclusive venue for resolving all disputes concerning the contractual relationship.

9.3 The place of fulfilment for all obligations relating to the contractual relationship shall be 16909 Heiligengrabe, Germany.

9.4 In the event that individual provisions of the contract are or become invalid, this does not affect the validity of the other provisions. The parties to the contract shall then agree on a new provision that most closely approximates the intended purpose of the invalid provision.

9.5 No oral ancillary agreements have been made in addition to the contract. All changes must be in writing. This also applies to any changes to the requirement that changes must be made in writing. Declarations that directly affect the contractual relationship must also be writing, in particular when withdrawing from the contract and setting deadlines.

Heiligengrabe, October 2009

General terms and conditions for purchasing (version of 2008)