General Terms & Conditions
General Terms and Conditions of Sale of TONALITY GmbH
§ 1 Scope, form
1. The present General Terms and Conditions of Sale are valid for all our business with our customers (“buyers”). They are, however, only applicable, if the buyer is an entrepreneur (§ 14 German Civil Code), a legal entity under public law or a special fund under public law.
2. Unless otherwise agreed, these terms and conditions apply in the version valid at the time the buyer placed his order or in any case in the version the buyer received most recently in text form as a framework agreement and apply even to similar future contracts without any particular reference being required from us in each individual case.
3. Our terms and conditions shall apply exclusively. Deviating, conflicting or supplementing general terms and conditions of the buyer are considered integral parts of the agreement only if and in as far as we explicitly consented to their validity. This requirement of consent shall apply in any case, for example, even if we execute the delivery to the buyer without reservations while being aware of his general terms and conditions.
4. Individual agreements made with the buyer on a case-by-case basis (including collateral agreements, supplements and amendments) shall have precedence over these terms and conditions in any case. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
5. Legally relevant declarations and notifications of the buyer in connection with the contract (i.e. setting of deadlines, notifications of defects, declarations of cancellation or reduction) must be made in writing, e.g. written or text form (i.e. letter, email or fax). Statutory provisions on form and other additional verifications, particularly in the event of doubt regarding the legitimation of the declaring party, shall remain unaffected.
6. As far as the parties agreed on the validity of Incoterms clauses, these provisions shall be applicable in the version valid at the time of the conclusion of the contract, as published by the International Chamber of Commerce.
§ 2 Offers, conclusion of contract
1. Our offers are non-binding. The same shall apply to catalogues, technical documentation, other product descriptions or documents – including those in electronic form – we have provided to the buyer, to which we reserve all proprietary rights and copyrights.
2. An order placed by the buyer constitutes a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within two weeks after our receipt thereof. The acceptance is effected, at our own discretion, either by sending an order confirmation or by unconditional supply of the products or services ordered.
§ 3 Delivery period and default in delivery
1. Delivery times or delivery periods shall only be binding if agreed individually. Unilateral statements of delivery periods, for example made by us upon acceptance of the order, shall be deemed non-binding announcements. Where no such statement is made, the delivery period shall be about twelve weeks from the conclusion of the contract.
2. If we are unable to meet binding delivery periods for reasons beyond our control (unavailability of performance), we will inform the buyer without delay. In this case, we are entitled to specify a new estimated delivery period. If the performance is still not available within the new delivery period, we are entitled to rescind the contract in whole or in part; we will refund any consideration that may have already been provided by the buyer without delay.
3. Force majeure and other unforeseeable exceptional occurrences, which include shortage of material, energy, labour and transportation capacity, pandemics, production breakdowns, labour disputes, overstepping of delivery deadlines of our sub-suppliers, disturbances of traffic as well as government orders, which make it impossible for us to meet our delivery obligations, release us for the duration of their effects or, in the event of impossibility of delivery, release us completely from our obligation to perform. The buyer would, however, be informed of the occurrence of such circumstances without delay.
4. The buyer’s rights pursuant to § 11 of these terms and conditions and our statutory rights, in particular in the event of exclusion of the obligation to perform, shall remain unaffected.
§ 4 Delivery, passing of risk, acceptance, unloading
1. Delivery is effected ex warehouse (“EXW”), which shall also be considered the place of performance for the delivery and for a possible subsequent delivery. On request and at the expense of the buyer, the goods will be delivered to another place of destination (sales shipment). If nothing else has been agreed upon, we are entitled to decide on the type of shipment (particularly with regard to transport company, dispatch route, packaging) ourselves.
2. The risk of accidental loss and accidental deterioration of the goods shall pass on the buyer upon handover of the goods. In the event of sales shipment, the risk of accidental loss and of accidental deterioration as well as the risk of delay shall pass to the buyer as soon as the goods are handed over to the forwarder, carrier or other persons or other parties entrusted with the execution of the shipment. In the event that an acceptance has been agreed upon, this shall be considered decisive for the passing of risk. The statutory provisions of the Law on Contracts for Work and Services shall also apply to a previously agreed acceptance accordingly. Default of acceptance by the buyer shall be deemed equivalent to delivery or acceptance.
3. For the purpose of unloading the goods at the building site, the buyer must ensure the accessibility of the place of unloading and must provide a sufficient number of unloading personnel and equipment to start unloading immediately upon arrival of the goods. If unloading is not possible or only possible with considerable delay, the carrier may return the goods. In case of a culpable breach of duty, the buyer shall be liable for any damage arising as a consequence of these preconditions missing. In addition, the buyer shall also be liable for damage arising in case the delivery vehicle is not unloaded immediately or appropriately for reasons the buyer is responsible for.
4. We shall be entitled to make partial deliveries within the indicated delivery period, as far as this is reasonable for the buyer to accept.
5. The person taking delivery for the buyer and signing the delivery note shall be deemed a person authorised to receive, inspect and accept the said goods.
6. In the event of 24-hour deliveries (express delivery) or a subsequent change in the delivery order by the buyer within 24 hours before commencement of the initial delivery (change in place of delivery or delivery date), the buyer will bear all additional expenses involved.
7. The return of non-defective products delivered is excluded.
8. In case the buyer is in default of acceptance, infringes any of his obligations to cooperate or the delivery is delayed for other reasons the buyer is responsible for, we are entitled to demand compensation for the resulting damage, including any additional expenses (e.g. storage costs).
§ 5 Prices
1. All prices are quoted net ex warehouse and shall only be deemed as consideration for the goods themselves. Transport costs, value added tax, customs duties, fees, public charges and other costs that arise between the conclusion of contract and the contractual handover of the goods are not included and shall be payable by the buyer separately.
2. Unless other prices have been agreed upon in writing, the valid price shall be the list price valid at the time of the conclusion of the contract. Price lists, catalogue or internet prices are subject to alteration. Fixed price agreements generally require a written agreement.
3. By derogation from the above, the list price valid at the time of delivery or at the time of the collection by the buyer shall apply if in the period between the conclusion of the contract and the delivery or collection by the buyer, there were increases in costs, particularly for energy, personnel and personnel associated costs, the extent of which could not have been foreseen and which make adherence to the agreed price seem unreasonable and we notify the buyer of these cost increases. We will provide evidence of the respective cost increases to the buyer upon his request.
4. In addition, the freight, delivery and shipping costs according to the current price list shall apply.
§ 6 Payment, terms of payment and rights of retention
1. The purchase price is due and payable within 8 days as of invoicing and delivery or acceptance of the goods. We are, however, entitled to effect a delivery in whole or in part only against pre-payment even in an ongoing business relationship at any time.
2. The buyer shall be in default as soon as the payment deadline specified under par. 1 or agreed individually expired. During the default, interest is to be paid on the purchase price at the respective applicable interest rate for default. We reserve the right to assert claims for further damage caused by default. Our claim for the commercial maturity interest (§ 353 German Commercial Code) against merchants shall remain unaffected.
3. Payments must be effected exclusively to the paying agents indicated on our invoice.
4. In the event that the buyer’s general place of jurisdiction lies outside the Federal Republic of Germany, payment must be effected in advance or by irrevocable letter of credit, confirmed by a major German bank or public credit institution.
5. The buyer’s payment obligations shall be considered fulfilled as soon as his payment is credited to our indicated account.
6. Cheques and bills of exchange are only accepted on account of performance. Discount, charges and costs shall be borne by the buyer.
7. The buyer shall only be entitled to off-setting rights or rights of retention insofar as his claim is legally established or undisputed. § 10 shall remain unaffected thereof.
8. The crediting of payments against interest and costs shall be effected according to § 367 German Civil Code, to this extent, the deduction of cash discounts from the buyer’s new debts is ruled out.
9. Bonuses, rebates or other payment agreements in favour of the buyer or third parties shall cease to apply in the event of non-payment or incomplete payment or non-timely payment of our claims, irrespective of the reason behind the buyer’s non-payment. In the event of outstanding payment of any kind, it shall already be agreed that our claims shall be offset against the buyer’s claims resulting from bonuses, rebates or other payment agreements.
10. In addition, however, without limiting § 321 German Civil Code, the following shall apply: In the event that after conclusion of the contract it becomes evident that our claim of the purchase price is at risk as a consequence of the buyer’s insufficient financial capacity (e.g. doubts as to the creditworthiness, application to institute insolvency proceedings), we shall be entitled to effect further deliveries only against advance payments and to deem all outstanding – including deferred – claims due and immediately payable. This shall also include collected bills of exchange. In case of contracts for the manufacturing of non-fungible goods (custom manufacturing), we reserve the right to declare immediate cancellation; the legal regulations pertaining to the dispensability of fixing a time limit shall remain unaffected.
§ 7 Retention of title, securing of claims
1. We reserve the right of ownership of the goods sold until the full payment of all our current and future claims resulting from the contractual relationship and a current business relation (secured claims).
2. Prior to full payment of the claims so secured, the goods subject to this reservation of title may neither be pledged to third parties, nor assigned by way of security. The buyer shall be obliged to inform us in writing and without delay, if an application has been filed for initiation of insolvency proceedings or insofar as there are any accesses of third parties (e.g. seizures) to the goods being our property.
3. In the event that the buyer acts in breach of the contract, particularly in case of non-payment of the due purchase price, we shall be entitled to rescind the contract or/and to reclaim the goods owing to our reservation of title in accordance with the statutory regulations. The reclaiming shall not also constitute the rescission of the contract; rather, we shall be entitled to reclaim the goods and reserve the right to rescind the contract. In case the buyer does not pay the due purchase price, we may only assert these rights after having set the buyer a reasonable period of grace in order to effect the payment, which expired unsuccessfully, or if the setting of such grace period can be dispensed with according to the provisions of law.
4. Until further notice according to (c) below, the buyer shall be allowed to resell and/or process the goods subject to this reservation of title in the proper course of business. In this case, the following provisions shall apply additionally.
4a. The reservation of title includes the products, which are produced by processing, mixing or combining our goods at their full value and with ourselves being deemed the producer. In case the right of ownership of third parties continues to persist upon the processing, mixing or combination with their goods, we shall acquire co-ownership in proportion of the invoice value of the processed, mixed or combined goods. The same shall otherwise apply to this resulting product as to the goods delivered under reservation of title.
4b. The buyer hereby assigns his claims against third parties, which result from the resale of the goods or products, in full or in the amount of our possible co-ownership in accordance with the paragraph above to us as security. We hereby accept the assignment. The obligations of the buyer agreed upon under par. 2 shall also apply in consideration of the claims assigned.
4c. The buyer shall remain entitled to collect the claim besides ourselves. We undertake not to collect the claim as long as the buyer meets his payment obligations to us, there is no deficiency in his performance capacity and we do not claim the retention of title by exercising a right in accordance with par. 3. Should this, however, be the case, we are entitled to request the buyer to advise us of the assigned receivables and the respective debtors, as well as to provide all the information required for the collection, to hand over the related documents and inform the debtors (third parties) of the assignment. In addition, we shall in this case be entitled to revoke the buyer’s authorisation to resell and further process the goods subject to retention of title.
4d. In the event that the realisable value of the securities exceeds our claims by more than 10%, we shall be entitled, upon request of the buyer, to select securities to be released.
§ 8 Copyrights/trademark rights, technical information
1. We reserve all copyright claims and rights of use with regard to the illustrations, drawings and other documents provided by us. The distribution of our products is permitted only under the existing protected trademarks (e.g. TONALITY®).
2. Technical information and execution recommendations shall be provided within the scope of our customer service and to the best of our knowledge, taking into consideration the valid legal regulations for the building and construction industry and the rules of architecture. The buyer himself shall have the obligation to determine the suitability of the ordered products and the recommended execution for the intended use. We shall be entitled to change the technical data of the delivered goods, insofar as this is considered reasonable for the buyer.
§ 9 Packaging
1. In the event that the buyer requests packaging that deviates from the standard or if delivery of the products is effected using specific customised pallets, this will be invoiced separately.
2. The buyer shall be allowed to return to us the reusable pallets he received in connection with the delivery of the products if in good condition and carriage paid. The buyer may not return more pallets than he received from us.
§ 10 Buyer’s claims for defects
1. The statutory provisions shall apply with regard to the rights of the buyer in case of material and legal defects (including false delivery and shortfall in delivery, as well as improper assembly or deficient assembly instructions), unless provided otherwise in individual agreements or in the following. The special legal requirements pertaining to the final delivery of unprocessed goods to a consumer, even if he processed the goods, (supplier recourse acc. to §§ 478 German Civil Code) shall remain unaffected in any case. Claims resulting from supplier recourse are excluded, if the defective goods have been further processed by the buyer or another contractor, e.g. though incorporation into another product.
2. The basis for our liability for defects shall, above all, be the agreement concluded on the quality of the goods. Subject to the regulations set forth below, all product descriptions and manufacturer specifications that constitute subject matters of the individual contracts shall be considered agreements as to the quality of the goods, particularly the building approval of the German Institute for Building Technology already available for these products.
3. Our products are homogenous mass goods manufactured in the course of a natural firing process. Samples of any kind, specimens, illustrations and descriptions shall thus merely be considered approximate visual demonstration pieces. Minor deviations from our offer or sample with regard to size, quality, weight and colour are reserved.
4. Minor colour and other changes in the surface (particularly efflorescence, micro fissures) of the goods, customary tolerances with respect to dimensions, weight, etc. as well as other kinds of deviations in their appearance (slight irregularities, deformations), which do not have an adverse effect on the usability of the goods, shall not be considered defects or even non-conforming contractual performance. The same shall apply to customary breakage. Wear and weather effects are not considered material defects.
5. The buyer’s claims for defects presuppose that he fulfilled his statutory inspection and defect notification obligation (§§ 377, 381 German Commercial Code). The inspection must be effected immediately before the processing or incorporation at the latest. Should any defect become apparent upon delivery, inspection or at a later point, the buyer shall notify us thereof immediately in writing. As a general rule, obvious defects must be reported in writing within a period of 3 working days as of delivery and defects which were not identifiable at the time of inspection within the same period as of their detection. If the buyer fails to carry out the proper inspection and/or notice of defects, our liability for the defect which was not reported or belatedly or improperly reported is excluded in accordance with the statutory regulations.
6. An additional precondition for the assertion of warranty rights is that the buyer handled and stored the purchased goods properly and that the on-site installation, the relocation or other further processing was carried out in accordance with applicable specialist rules, technical guidelines, standards, the requirements of the approvals and our plant regulations, and in particular that the façade systems (facing bricks and retaining profiles of aluminium) were installed only according to the building approval of the German Institute for Building Technology (DIBT).
7. In case the delivered product is defective, we will first choose between subsequent performance through correction of the defect (rectification) and delivery of a defect-free product (replacement delivery). Our right to refuse the subsequent performance in accordance with the statutory regulations shall remain unaffected.
8. We are entitled to make the outstanding subsequent delivery dependent on whether the buyer pays the due purchase price. However, the buyer is entitled to retain a part of the purchase price that is reasonable in relation to the defect.
9. The buyer shall give us the time and opportunity necessary for the outstanding subsequent performance and in particular, he shall hand over the objected goods for the purpose of examination. In the event of a replacement delivery, the buyer shall hand over the defective goods in accordance with the statutory regulations. Subsequent performance shall neither include the disassembling nor the reassembling of the defective goods, if this was not agreed upon initially.
10. The expenses required in connection with the inspection and the subsequent performance, particularly transport, road, labour and material costs as well as, where appropriate, disassembly and assembly, shall be borne or reimbursed by us in accordance with statutory regulations, if the product is confirmed defective. Otherwise, we reserve the right to demand the reimbursement of resulting costs from the buyer, if his request for remedy is unjustified (particularly inspection and transport costs), unless the absence of a defect was not recognisable for the buyer.
11. In urgent cases, for instance if operational safety is endangered or in order to prevent disproportionate damage, the buyer shall be entitled to remedy the defect himself and to demand the reimbursement of the expenses objectively necessary for this purpose. We must be informed about such self–remedy immediately, if possible in advance. The right to self-remedy shall not apply, if we would be entitled to refuse a respective subsequent performance in accordance with the statutory regulations.
12. The buyer shall be entitled to rescind the purchase contract or to reduce the purchase price in the event that the subsequent performance failed or if a reasonable deadline, which will be set by the buyer to allow for the subsequent performance, expired to no avail or can be dispensed with according to the statutory regulations. However, there is no right of rescission in case of an insignificant defect.
13. Claims of the buyer for damages or reimbursement of futile expenses shall, even in case of defects, exist only according to § 11 and are, apart from that, excluded, unless the last purchase in a supply chain is a purchase of consumer goods.
§ 11 Other liability, damages
1. We shall be liable in the event of a breach of contractual and non-contractual duties in accordance with the statutory regulations, unless otherwise agreed upon individually or in these general terms and conditions, including the following provisions. The buyer’s rights from express warranties shall remain unaffected.
2. We shall be liable for damages – for whatever legal reason – within the limits of fault-based liability in case of wilful intent and gross negligence. In case of simple negligence, we shall, subject to the statutory limitations of liability (such as the diligence we exercise for our own matters; insignificant breach of duty), be liable only
2a. for damage resulting from injury to life, limb or health,
2b. for damage resulting from breach of an essential contractual obligation (meaning an obligation the fulfilment of which allows for the proper implementation of the contract in the first place and the fulfilment of which the contractual partner regularly relies and may rely on); in this case, our liability is, however, limited to the reimbursement of foreseeable and typically occurring damage.
3. The limitations of liability that result from par. 2 shall also apply in case of breaches of duties by as well as in favour of persons whose faults we bear responsibility for according to the statutory regulations. They shall not apply, if the defect was fraudulently concealed by us or if we assumed a guarantee for the quality of the goods and for claims of the buyer in accordance with Product Liability Law.
4. The buyer shall only be entitled to withdraw from or terminate the contract for reason of breach of duty which does not constitute a defect, if we are responsible for the said breach. The unrestricted right of termination of the buyer is excluded (particularly according to §§ 650, 648 German Civil Code). The statutory preconditions and legal consequences shall be applicable apart from the above.
§ 12 Assignment
Assignments of rights and duties of the buyer resulting from the contract concluded with us shall require our written consent in order to be effective.
§ 13 Information on data processing
In the event that we received your electronic mail address in connection with the sale of a product or service, we will use this address for direct marketing purposes for own similar products or services. You have, of course, the right to object to such use of your data at any time. In this context, you will incur no other than the transmission costs at your base rates. You may submit your objection by mail to TONALITY GmbH, Objection/Widerruf, In der Mark 100, D-56414 Weroth or by email to .
§ 14 Contract language, place of jurisdiction, applicable law
1. The agreed contract and court language shall be German. Regarding all documents that are available in German and in another language, it is agreed that the German version shall be solely authoritative for interpretation and construction; the other version shall merely constitute a translation from which no rights and duties can be derived.
2. The present general terms and conditions as well as the contractual relationship between us and the buyer shall be governed by the laws of the Federal Republic of Germany, however, under exclusion of international uniform law, particularly of the UN Sales Convention. This shall also apply in the event of any disputes concerning the conclusion of a contract.
3. In case the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising indirectly or directly in connection with the contractual relationship is our headquarters in Weroth (FRG). The same shall apply, if the buyer is an entrepreneur within the meaning of § 14 German Civil Code. We are, however, in all cases also entitled to bring actions at the place of performance of the delivery commitment in accordance with these general terms and conditions or an overriding individual agreement, or at the general place of jurisdiction of the buyer. Legal provisions that take precedence, particularly concerning exclusive competences, shall remain unaffected.
As of: 20 July 2023