Terms and conditions of sale, delivery and payment

1. General information, offer, order and contract conclusion

(1) All seller offers, order acceptances and all deliveries and services are provided based exclusively on the following terms and conditions. These terms and conditions also apply for all future and similar transactions with the buyer. Deviating buyer terms and conditions of purchase are hereby expressly excluded. These only apply if the seller acknowledges them in writing.

(2) All orders, ancillary agreements, provisos, changes or supplements to a contract must be made in writing to be considered valid. Verbal or written agreements that deviate from the contractual conditions and/or the seller's order confirmation require the consent of the seller’s executive body or the relevant number of authorised signatories to be considered valid. This consent is only effective in writing. Apart from this, the seller’s office and field staff are not authorised to reach deviating agreements or to grant special conditions.

(3) The seller’s offers are subject to change without notice. A sale, delivery or other contract only enters into force once the order confirmation is sent or by the delivery of the goods to the buyer.

(4) All information on the seller’s products, especially including the images, drawings, measurements and performance details are considered to be approximate average values. They are not a guarantee for the quality of the goods, but merely represent a description. This also applies for samples and models. Deviations that are considered customary in the industry are permitted, unless the order confirmation specifies the relevant information as binding. Excess or short deliveries, which are taken into account in the calculation, may occur in line with a customary permitted amount of 10%.

(5) The seller retains the property rights and copyrights to images, drawings, calculations and other documents as well as samples and models. They may only be provided to third parties if the seller has provided their express consent.

(6) If the seller advises the customer free of charge, this shall not result in the conclusion of a contractual or other legal relationship between the buyer and the seller with respect to the consulting services provided to the buyer. The same applies if the seller provides free information or recommendations to the buyer. Any deviating agreements must be made in writing. The tacit conclusion of a contract with respect to consulting, recommendations or the provision of information is excluded.

(7) Advice, recommendations or information provided to the seller during the contract negotiations or when initiating an order or contract are only binding for the seller if they have been confirmed in writing.

2. Pricing and packaging

(1) The relevant applicable prices in the seller’s price list on the day of delivery apply, unless a fixed price has been expressly agreed. The prices quoted are net prices, not including value added tax or discounts. The fixed prices apply for four months from contract conclusion. If longer delivery periods are agreed or if the buyer is responsible for a later delivery and changes to material, energy, wage or other general prime costs occur, the general sales prices applicable at the time of delivery shall apply.

(2) All prices are quoted ex seller factory and warehouse. Packaging material is quoted at cost and not taken back, with the exception of reusable pallets, which are taken back without remuneration.

(3) If carriage paid deliveries are agreed, all prices are quoted in euros per sales unit plus statutory value added tax, before unloading, carriage paid ex warehouse or accessible construction site on the German mainland. A lump-sum freight charge shall be levied on small quantities. A lump-sum for installation costs is levied for small quantities of assignment goods. The applicable rates are provided in the current price lists.

(4) The buyer must pay any handling charges, transport charges and customs duties in advance and in full in line with the prices applicable on the day of conclusion of the contract. Cost changes for handling and transport costs and customs duties that occur after the conclusion of the contract shall occur in favour of or at cost to the buyer.

3. Payments

(1) Payments are to be effected net cash without any reduction to the seller’s paying office and are due immediately after invoicing. An express agreement must be reached for discounts for cash payments. Each contract party is entitled to provide evidence of damages as a result of default in excess of the statutory framework.

(2) Bills of exchange and cheques are only accepted based on an express agreement and on account of performance. Discount, collection or other charges shall be borne by the buyer.

(3) If payment in a foreign currency is agreed, the buyer is obliged to make the payment in the agreed currency. If the value of the purchase price in the foreign currency decreases compared to the domestic currency between the contract conclusion and the receipt of payment by the seller, the buyer must compensate the difference.

(4) The buyer may only offset claims which are undisputed or legally binding and may also only assert their rights of retention in this regard. Any retention of payment is excluded if the retention claim is based on another contractual relationship.

(5) All receivables shall become payable in the case of suspension of payment, application for the commencement of an insolvency proceeding or the commencement of insolvency proceedings on the buyer’s assets. Discounts and bonuses shall be waived. If, after the conclusion of the contract, it turns out that the buyer’s financial circumstances do not allow for the granting of credits or terms of payment, the seller may request the provision of collateral or the prepayment of all receivables and withhold the fulfilment of the contract until this has been provided. If the provision of collateral or prepayment does not take place in a timely manner, the seller may withdraw from the contract or demand compensation due to non-fulfilment.

4. Delivery

(1) The delivery and service periods shall be complied with by the seller wherever possible. However, deadlines are only considered to be approximations.

(2) The delivery periods commence on the date that the order confirmation is provided by the seller. They are deemed to be complied with on the announcement of readiness for dispatch, if dispatch is not possible for reasons for which the seller is not responsible. If the goods are collected by the buyer, the delivery periods and deadlines relate to the time at which the seller has announced that the goods are ready for dispatch. The agreed delivery periods and deadlines shall be extended by the period for which the buyer is in default for this or any other contract, regardless of the seller’s rights as a result of a default by the buyer. We shall reserve the right to make the delivery ourselves.

(3) The seller shall issue the invoice for the delivered goods on delivery. If the buyer does not receive the invoice directly after delivery, the buyer is obliged to notify the seller of this within 8 days of delivery. If this does not occur, discounts for early payment or other reductions can no longer be provided.

(4) If the seller falls in arrears, the buyer must grant the seller an appropriate grace period of at least 30 days. On expiration of the grace period the buyer may withdraw from the contract, unless it has been indicated that the goods are ready for dispatch prior to the expiration of the grace period.

(5) In the event of war, strikes, lock-outs, a shortage of raw materials or energy, business or transport disruptions, orders from higher authorities and all other cases of force majeure, regardless of whether they occur for the seller, their suppliers or carriers, for which the seller is not responsible and which impact the execution of the affected transaction, or make the transaction impossible, the seller’s delivery period shall be extended by the period of the delay plus an appropriate start-up period.                                                                                                     The seller shall immediately notify the buyer of these kinds of delays. If these circumstances make it impossible or unreasonable for the seller to complete the delivery or service, they are entitled to withdraw from the contract, either in part or in full, without entitling the buyer to any compensation as a result.

5. Transfer of shipping and risk

(1) The shipping and transport takes place at cost and risk to the buyer. Goods that are ready for dispatch at the agreed date must be retrieved immediately. Otherwise the seller is entitled to store the goods at their discretion and at cost and risk to the buyer and invoice the goods as delivered.

(2) The risk, including the risk of seizure, transfers to the buyer when the goods are transferred to the carrier or freight forwarder, however no later than on leaving the factory or the warehouse. This also applies if partial deliveries take place or the seller has taken on other services, e.g. the shipping costs or delivery.

6. Defect examination and warranty

(1) The buyer must inspect the goods immediately after receipt, however at least prior to installation or processing, and provide written notification of any defects to the seller. The buyer’s duty to examine the goods extends to the entire delivery. The delivery is deemed to be executed in accordance with the contract if a notice of defect is not provided in a timely manner. The same applies for incorrect delivery and quantity deviations that are not covered by Section 1 (4).

(2) The buyer bears the burden of proof for the fact that the goods were defective prior to the transfer of risk. This applies, in particular, if the buyer does not notify the seller of defects immediately after receipt of the goods.

(3) Warranties or the assumption of a procurement risk must be expressly agreed as such. Qualities that the buyer can expect based on public statements made by the seller or their agents, especially in advertising or the identification of certain item qualities, are only included in the agreed quality of the goods if they have been expressly agreed between the parties. Agreements of the type mentioned above are only effective in written form.

(4) Insignificant defects, especially slight colour and structural differences and negligible deviations in length, width and thickness of the delivered material, do not entitle the buyer to issue a notice of defects.

(5) In the case of a correct and justified notification of defects, the seller is entitled to deliver a replacement or improve the original goods at their discretion, free of charge. If the replacement delivery or improvement fails twice, the buyer is entitled to reduce the purchase price or withdraw from the contract. In the case of withdrawal from the contract, in the event of the deterioration or the loss of the goods, the buyer must also compensate the seller if neither the buyer nor the seller were responsible for the deterioration or the loss. We refer to the statutory regulations with regard to the assertion of compensation claims as a result of defects, subject to the exclusion and limitation of liability specified in Section 7.

(6) The correct storage and treatment of the delivered goods is a condition for the buyer’s compensation claims. The seller has the option of inspecting the goods for which the notification of defects has been provided. All claims for defects shall become null and void if this does not take place and if the buyer does not immediately make the defective goods available to the seller on their request.

(7) If the delivered goods have been used for a building in line with their intended use and has caused a defect in the building, the warranty period shall remain in place for five years from the time the goods are transferred. In all other cases, the warranty period amounts to a year from the time the goods are transferred. The statutory warranty period applies if a defect was fraudulently concealed.

(8) The carrier must be informed of any transport damage. The reporting obligations of the ADSp – Standard German Freight Forwarders Terms and Conditions apply in this regard.

7. Liability

(1) The seller is liable for loss of life, personal injury or damage to health in the event of slight negligence. Likewise, the seller is liable for the violation of contractual duties, which are essential in order to achieve the purpose of the contract (cardinal obligations) in the event of slight negligence. Apart from this, the seller is solely responsible for intent and gross negligence in terms of their contractual and non-contractual liability. This particularly applies in the event of compensation due to a violation of duties, delay in delivery (default), compensation in lieu of performance, reimbursement of futile expenditure and unlawful actions or product liability, with the exception of any liability in accordance with the Product Liability Act. Even if the seller provides a warranty or takes on a procurement risk, they shall only be liable in the event of intent or gross negligence, unless otherwise specified in the contractual agreements.

(2) The seller is only liable for typical contractual and foreseeable damage. This limitation of liability does not apply if legal representatives or the seller’s executives are responsible for intent or gross negligence or if the liability relates to the loss of life, personal injury or damage to health.

(3) With the exception of liability due to intent or the loss of life, personal injury or damage to health, compensation claims shall lapse within two (2) years of the date at which the customer was made aware of the circumstances justifying the claim and the seller as the party responsible for providing the compensation, or should have been made aware of this in the absence of gross negligence, unless a shorter period of limitation is prescribed by law or based on other contractual provisions. § 199 (2) and (3) BGB (German Civil Code) applies for all other matters in this respect.

(4) The seller is only liable for advice, recommendations or information if the buyer and the seller have concluded a contract that involves the advice, the recommendation or the information, or the seller is liable for the advice, the recommendation or the information from the perspective of unlawful actions or fault on conclusion of the contract. Apart from this, the seller’s liability for advice, recommendations and information
is based on Section 7 (1) to (3).

(5) The liability provision pursuant to Section 7 (1) to (4) also applies for the seller’s employees as well as subsidiaries and branches.

8. Reservation of title

(1) The seller reserves the right to retain ownership of the goods they deliver until the buyer has paid all receivebles, including future receivables, from the business relationship. In the case of deliveries on current account, the reservation of title serves as security on the balance.

(2) The buyer is entitled to resell the purchased goods as part of their ordinary course of business. All receivables from the resale of goods under reservation of title (goods subject to reservation), including all demands relating to the current account, are hereby assigned to the seller in full. In derogation of this, buyer receivables from
the resale of goods subject to reservation together with third party goods for a total price shall be assigned to the seller in proportion to the invoice value of the goods subject to reservation. Likewise, compensation claims from insurance companies or third parties due to damage or the loss of goods subject to reservation are hereby also assigned to the seller.

(3) The combination, processing, assembly or other utilisation of goods subject to reservation shall take place on behalf of the seller, however without any obligations attributable to the seller. If the goods subject to reservation are processed, combined or mixed with goods owned by third parties, the seller shall obtain joint ownership of the new good or the mixed item in proportion to the invoice value of the goods subject to reservation to the invoice value of the other goods used. If the seller’s ownership of the goods subject to reservation expires due to combination or mixing, it is hereby agreed that the buyer’s resulting ownership or joint ownership of the processed item shall transfer to the seller in proportion to the invoice value of the goods subject to reservation. The buyer shall store the items jointly owned by the seller for the seller free of charge. Goods for which the seller is entitled to the above-mentioned right of ownership shall be deemed to be goods subject to reservation in terms of this Section 8.

(4) The seller shall grant a revocable right to the buyer to collect the receivables assigned to the seller for the seller’s account in their own name. This collection authorisation may only be revoked if the buyer does not properly fulfil their payment obligations.

(5) If the realisable value of the collateral provided to the seller exceeds the secured receivable by more than 20%, the seller is obliged to release collateral at their discretion at the buyer’s request.

(6) If the buyer violates the contract, especially in the case of default of payment, the seller is entitled to withdraw from the contract and reclaim the goods subject to reservation. In this case, the seller is entitled to invoice the buyer for a lump-sum of 15% of the order value for costs associated with the reclamation, unless the buyer can prove that the no/lower costs accrued for the seller as a result of the reclamation of the goods.

(7) The buyer is not entitled to pledge or assign the goods subject to reservation as security until they have discharged all their outstanding liabilities to the seller. In case of third party access to the goods subject to reservation, especially in the event of pledging, the buyer is obliged to notify the third party of the seller’s right of reservation and to immediately inform the seller of a pledge, insolvency proceedings or other legally relevant incidents that could impact on the seller’s rights to the goods subject to reservation. In the event of the suspension of payment, the goods subject to reservation must be withdrawn without special request and held at the ready for the seller.

9. Partial deliveries

The seller is entitled to make an appropriate amount of partial deliveries; each partial delivery is considered to be a separate transaction.

10. Collection and recycling of OWAcoustic(R) ceiling tiles

If the buyer and the seller agree to the collection and recycling of OWAcoustic ceiling tiles, the special conditions for collection and recycling of OWAcoustic ceiling tiles shall apply. These conditions are available on the seller’s website (www.owa.de and www.owa-ceilings.com) or can be sent to the buyer upon request. The seller is only obligated to collect and recycle ceiling tiles if a special agreement is concluded with the buyer. The seller can enlist the services of another company of the OWA Group to assist with collection and recycling.”

Please ask for information about the special terms and conditions.

11. Place of fulfilment and place of jurisdiction

(1) The place of fulfilment for the delivery is the relevant loading station. The place of fulfilment for payments is Amorbach.

(2) The place of jurisdiction for any disputes arising from the contractual relationship, including proceedings relating to bills of exchange and cheques, is Amorbach, provided that the buyer is a merchant, a legal person governed by public law or a special fund under public law.

(3) The law of the Federal Republic of Germany is applicable for all legal relationships between the seller and the buyer. The UN Convention on Contracts for the International Sale of Goods (CISG) and any other international conventions are not applicable, even after incorporation into German law.

12. Partial invalidity

If one of the above provisions or a part thereof is or becomes invalid, or if the contract contains a loophole, this shall not affect the validity of the remaining provisions. In case of the invalidity of individual provisions, the parties shall undertake to work together to replace this provision with a regulation that most closely resembles the economic success of the intended regulation.

(Dated 01/2011)

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