General Terms and Conditions of Sale and Delivery

ZWIESEL KRISTALLGLAS AG - General Terms and Conditions of Sale and Delivery

§ 1 GENERAL - SCOPE

These terms and conditions apply to all current and future business between Zwiesel Kristallglas AG (“ZKAG”) and commercial entrepreneurs (Unternehmer) as defined in § 14 of the German Civil Code, i.e. with any natural or legal persons or partnerships with legal authority engaged in a commercial or independent professional activity (hereinafter referred to as the "Customer"). Deviating, conflicting or supplementary general terms and conditions, even where disclosed beforehand, shall not form part of the contract unless the validity of these has been expressly agreed in writing.

§ 2 CONCLUSION OF CONTRACT

1. Our price quotes are non-binding. Documentation relating to our product range, such as illustrations, drawings, weight and dimensions information, is only approximate unless expressly stated as definitive; we reserve the right to make technical changes as well as changes to the shape, color or weight within reasonable limits.

2. By ordering goods, which must be made in writing, the Customer is making a binding commitment that it intends to purchase the goods ordered. ZKAG is entitled to accept the contract price quoted in the order within two (2) weeks of receipt. Acceptance can be effected either in writing or by delivering the goods to the Customer.

3. We reserve the right of ownership and copyright over cost estimates, drawings, images and other documents; they may not be shared with third parties. This also applies to written documents marked as "confidential". Customers require our express written consent before sharing these with third parties. We also agree that we will only share documents with third parties with the Customer's consent, if Customers have marked these as confidential.

4. All agreements must be made in writing, except where this requirement is specifically waived by the other party, which itself requires written confirmation. Verbal agreements are only valid once written confirmation has been received. This also applies to subsequent changes requested by the Customer.

§ 3 PAYMENT

1. Invoicing is based on the prices and conditions in effect at the time of delivery. Costs for outer packaging such as cartons, collico pallets, wooden pallets, cardboard boxes and crates are charged to the consignee. Boxes and crates will be invoiced separately.

2. Unless expressly agreed otherwise, prices are valid ex works including loading at origin, but excluding packaging. Prices are subject to VAT at the applicable statutory rate. Unless specifically agreed otherwise, our invoices are due for payment within 10 days of the invoice date.

3. We are entitled to charge extra cost resulting from subsequent changes requested by the Customer.

4. The Customer will be charged interest for late payment at 9 percentage points above the base rate. We reserve the right to demonstrate and claim for further damages as a result of any default. In particular, fees and charges for a debt collection company subcontracted to collect any sums due will be passed on to the Customer.

5. Customers only have a right of offset where counterclaims have been legally established, are undisputed or have been accepted by us. Customers may only exercise the right to withhold payment where the counterclaim is based on the same contractual relationship. Deducting any discount requires a separate, written agreement.

§ 4 DELIVERY

1. Lead times specified by us start from the point where all technical matters have been clarified. Lead times must be specified in writing and, unless otherwise agreed, should only be regarded as a guideline. They begin at the point the order confirmation is sent, but not before any documents, permits and approvals to be obtained by the Customer have been provided or before any deposit agreed has been received.

2. Meeting our delivery obligation further requires obligations on the part of the Customer to have been met in full and on time. We reserve the right to assert the defense of non-performance of the contract.

3. Where the Customer fails to accept the goods, or is in breach of any other obligations under the contract, we shall be entitled to claim compensation for any loss incurred as a result, including any additional expenses. We reserve the right to assert further claims.

4. The lead time has been met where the goods to be supplied have left the works within the lead time for delivery, or upon notification that the goods are ready for dispatch. The lead time shall be extended accordingly in the event of industrial unrest or if unforeseen obstacles beyond our control occur, where such obstacles can be shown to have a significant impact on completion or delivery of the goods, even if the circumstances occur at subcontractors. We also accept no liability in the above circumstances if they arise when our Customer is already in default.

5. Where we commit to specific and binding fixed lead times in writing and subsequently fail to meet these or are late, the Customer shall be entitled to claim for late delivery, up to a maximum of 0.5% of the invoice value of the goods and services affected for each complete week of delay, although this is limited to a maximum of 5%. Consequential claims, in particular claims for damages, are excluded unless it can be shown we acted with intent or gross negligence.

6. Unless variations in quantity have been specifically accepted and agreed, order quantities are only approximate. The maximum permitted quantity variation for up to 1,000 items ordered of the same type is 20%, and up to 10% for larger quantities of the same type. Where less flexible acceptable quantity variations are needed, a separate agreement in writing is required when the contract is agreed. Variations in dimensions, content, weight and color due to manufacturing are acceptable within the reasonable limits of what is customary for the sector (mass production).

§ 5 RETENTION OF TITLE

1. Title in the goods remains with ourselves until all outstanding claims against the Customer have been settled in full.

2. The Customer agrees to handle the goods with care. Where maintenance and inspection activities are required, Customers must arrange these on a regular basis at their own expense.

3. The Customer agrees to notify us immediately in writing of any third party access to the goods, for example under the terms of an order for seizure, as well as any damage or destruction of the goods. Customers should notify us immediately in writing of any change in ownership of the goods or if they move premises.

4. We shall be entitled to withdraw from the contract and recover the goods should the Customer act in breach of contract, in particular in the event of payment default or breach of the requirements in nos. 2 and 3 of this arrangement.

5. Customers are entitled to sell the goods on in the ordinary course of business. In doing so they assign to us all amounts due against invoices relating to the third party sale. We duly accept this assignment. Following assignment, the Customer remains authorized to recover sums due. We reserve the right to recover sums due ourselves should the Customer not discharge their payment obligations in full and be in default of payment.

6. Customers only ever process goods in our name and on our behalf. Where property is processed which does not belong to us, we acquire joint ownership of the new item in proportion to the value of the goods supplied by us compared with the other item being processed. The same applies if the goods are combined with other property that does not belong to us. We agree to release at the Customer's request any security to which we are entitled where the realizable value of our security exceeds any claims secured against it by more than 20%; the choice of security to be released is at our discretion.

§ 6 TRANSFER OF RISK - PACKAGING COSTS

1. Except as stated otherwise in the order confirmation, the risk of accidental loss and accidental deterioration of the goods transfers to the Customer at the point the goods are delivered or, in the case of mail order, upon delivery of the goods to the forwarding agent, carrier or other person or organization appointed to arrange delivery, even if partial deliveries are made or if we have agreed to supply other services such as paying for transport or delivery and installation. Delivery is independent of whether or not the Customer has already accepted the goods. 

2. Packaging will not be accepted back, with the exception of transport packaging and pallets. Two-thirds of the cost invoiced will be credited for boxes and crates if they are returned to us in undamaged condition with full packaging materials within 4 weeks of receipt of delivery, haulage and carriage paid. Posting boxes and cardboard boxes are not accepted back. 

3. Customers are responsible for the proper disposal of packaging at their own expense.

§ 7 REJECT CLAIMS

1. In the event of any defects in the goods, we guarantee, at our option, to either repair or replace these in the first instance.

2. If the corrective action does not prove adequate, the Customer may, at their own discretion, demand a price reduction or cancellation of the contract. Only minor nonconformities, especially if these are only minor defects, shall not entitle the Customer to withdraw from the contract.

3. Customers must report obvious defects within fourteen days of receipt, in writing, otherwise no claims can be accepted. Sending in time is sufficient for meeting the deadline. The burden of proof for all claims lies with the Customer, in particular regarding the defect itself, the point at which the defect was identified and for reporting defects in good time.

4. If the Customer decides to withdraw from the contract owing to a legal or material defect following repair or replacement under warranty, they are not entitled to make any additional claims for damages due to the defect. If the Customer elects for compensation following repair or replacement, the goods will remain with the Customer where this is reasonable. Compensation is limited to the difference between the purchase price and the value of the defective item. This does not apply if we are at fault in breaching the contract.

5. The warranty runs for one year following delivery. This does not apply where the Customer has not notified us of the defect in good time (see point 3 of this arrangement). Unless expressly agreed in writing otherwise, no statutory guarantees should be inferred by the Customer.

§ 8 LIMITATION OF LIABILITY

1. For minor breaches of essential requirements under the contract through negligence, our liability shall be limited to the reasonably foreseeable, typical and direct average claims based on the type of goods. This also applies to minor breaches of duty through negligence by our legal representatives or anyone acting on our behalf. An essential requirement under the contract is any requirement, the fulfilment of which is essential for the proper performance of the contract and the fulfilment of which the other party has relied on and may reasonably rely on. We are not liable to business Customers for minor breaches of minor contractual requirements. Claims for consequential or indirect damages are, to the greatest extent permitted under applicable laws, excluded.

2. The foregoing limitations of liability do not apply to Customer claims arising under product liability provisions. Furthermore, the limitations of liability do not apply in cases of physical injury or damage to health or loss of the Customer's life where we are at fault.

3. Claims for damages by the Customer due to defects must be made within one year of delivery of the goods. This shall not apply if the legislation under § 445 a) and 445 b) BGB (supplier recourse) prescribes longer periods, nor in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty on our part where we can be accused of acting in bad faith.

§ 9 TOOLS AND FORMS

We retain title of all tools and forms. This applies regardless of whether the Customer has assumed the purchase costs in whole or in part.

§ 10 FINAL PROVISIONS

1. The laws of the Federal Republic of Germany apply. The provisions of the Convention on Contracts for the International Sale of Goods shall not apply.

2. If the Customer is a merchant, legal entity under public law or public law special fund, the exclusive place of jurisdiction for all disputes arising from this contract is our normal place of business. The same applies if the Customer does not have a general place of jurisdiction in Germany or if their whereabouts or normal address are not known at the time the action is brought.

3. Should individual clauses of the contract with the Customer, including these general terms and conditions, be or be held wholly or partially invalid, this shall not affect the validity of the remaining clauses.

Updated: December 2021