General Terms and Conditions for Sales Contracts with Contractors
I. Scope of application
- These General Terms and Conditions shall only apply to sales transactions with contractors (§ 14, § 310, Civil Code).
- These General Terms and Conditions apply exclusively. Conflicting or deviating General Terms and Conditions of the orderer shall not apply unless we have expressly agreed to their validity in writing. These General Terms and Conditions shall also apply if we carry out the delivery unconditionally in the knowledge of conflicting or deviating conditions of the orderer.
II. Offers – Conclusion of contract – Content of contract
- Our offers shall be non-binding unless we have expressly stipulated that these are "binding"; they shall not represent any request for the conclusion of a contract. The orderer shall accept "binding offers" within the statutory period. We shall in principle only accept written or verbal orders by issuing the written order confirmation.
- Public or otherwise generally accessible illustrations, drawings, measurement and weight specifications, performance and quality specifications, property descriptions, references to DIN, samples and specimens and other public or generally accessible information on our products and services in manuals, press reports, trade fair documentation, brochures, etc., are only approximates if they were not explicitly part of the contractual negotiations and expressly included in the contract. The acceptance of guarantees shall in any case require special express additional agreement in writing.
III. Scope and specification of the delivery
- With regard to nature and scope of the delivery, our written order confirmation is binding, or, in case an order confirmation has not been issued in time, our firm quotation as accepted by the orderer is binding. Additional agreements and amendments shall require our written confirmation.
- The orderer shall be solely responsible for the accuracy and suitability of its tools, moulds, plans, instructions, specifications and information. They can be used by us for production and delivery and do not have to be checked by us for accuracy and suitability. They shall only become part of the contract following express written agreement; no guarantee shall be derived from this.
- Partial deliveries shall be permissible to a reasonable extent.
- General price details and price lists shall be non-binding.
- Unless expressly stipulated otherwise in writing in the contract, the contractually agreed prices shall be quoted without additional costs, i.e. without packaging, loading, transport, insurance, unloading, assembly, fitting, commissioning and value added tax. The additional costs shall be calculated in accordance with the generally applicable or current market prices applying on the respective day; value added tax shall be itemised separately in addition and charged at the statutory amount on the day of issuing the invoice. Package price, inclusive or similar set prices shall require express written agreement.
V. Dates and deadlines for deliveries and services - compensation for delay
- Dates and deadlines for deliveries and services shall be non-binding unless we have expressly accepted these in writing as "binding".
- Special circumstances delaying our service or that of our supplier such as force majeure, riot, strike, lock-out, problems in the supply of energy or raw materials, unforeseen official interventions and legal impediments, etc. and the delay or failure by the orderer to provide services, details or cooperation shall in any case lead to corresponding delays in dates and deadlines. In the event that such impediments arising through no fault on our part lead to unforeseeable or unreasonable delays that render performance disproportionately difficult or impossible, we shall be entitled at our discretion to withdraw from all or part of the contract.
- If the orderer incurs damages due to a delay caused as a result of our negligence, he shall be entitled to demand compensation for the delay under exclusion of further claims. It shall amount for each full week of the delay to 0.5% in total but no more than 5% of the value of the respective part of the overall service that cannot be used on time or in accordance with the contract due to the delay.
- If the orderer sets us an appropriate subsequent deadline with the threat of rejection after we have already entered into default, he shall be entitled to withdraw from the contract after unsuccessful expiry of this deadline. Claims for compensation shall be based exclusively on section XIII.
VI. Transfer of risk – Transport insurance
- The risk shall pass to the orderer as soon as the goods leave our factory or distribution warehouse for the purpose of distribution. This shall also apply if and so far as partial deliveries take place, we have accepted other services such as carriage or dispatch costs or if work is to be carried out on the goods delivered at the place of use or at the orderer's factory.
- If dispatch is delayed due to circumstances attributed to the orderer's sphere of responsibility, the risk shall be transferred to the orderer at the point of notifying our readiness to deliver. We shall however arrange the insurance, which the orderer wishes to conclude at his expense.
- We shall insure the transport against transport damage on express request from the orderer at his expense. In the event of damage, the orderer shall make a formal statement of facts without delay to the competent authority and shall undertake all that is otherwise necessary to uphold claims against insurers and/or carriers in good time.
VII. Conditions of payment
- Our invoices shall be payable within 30 days from the invoice date unless expressly agreed otherwise. If payment is received within 10 days, 2% discount shall be applied to the net goods value except in the event of delay by the orderer with other payments.
- Offsetting shall only be possible if the orderer's counterclaim has been established as final, is recognised by us or is undisputed. The same shall apply to the assertion of rights of retention.
VIII. Reservation of ownership
- The goods delivered shall remain our property as reserved goods until full payment of all existing demands under the business relationship and other demands also arising in connection with this delivery. The adjustment of individual claims in a current invoice or account balancing and their recognition shall not affect reservation of ownership. If our mutual liability is justified in connection with the payment, the reservation of ownership shall not expire before the bill of exchange is redeemed by the orderer as drawee. The orderer shall, if in default of payment, be obliged to hand over the goods following demand.
- If the reserved goods are sold, the orderer shall already assign to us the demands arising from the sale to the amount of the value of the reserved goods with all ancillary rights and ranking before the rest; we shall accept the assignment. The value of the reserved goods shall be the invoice amount including additional demands plus a safety supplement of 10%, which shall not however be applied as long as this is in conflict with third party rights. As far as we have co-ownership of the reserved goods, the assignment of the demand shall extend to the amount corresponding to our share. Paragraph 1, clause 2 shall apply by analogy to extended reservation of ownership; the assignments in advance shall apply in accordance with para. 2, clause 1 and 3 by analogy.
- Due to the assigned demands with the orderer, incoming bills shall hereby be assigned to us; we accept the assignment. The orderer shall keep the papers for us.
- Insurance claims due to damage or perishing of the reserved goods shall hereby be assigned to us; we accept the assignment.
- The orderer shall only be entitled and authorised to sell on or to install the reserved goods in the context of a proper business transaction and with the proviso that the demands under para. 2 and 3 are actually transferred to us. The orderer shall not be entitled to dispose of the goods otherwise, particularly pledging or transfer by way of security. The orderer shall be revocably entitled to withdraw the assigned demands. We shall waive any withdrawal and our own collection right as long as the orderer properly fulfils his payment obligations. The orderer shall at our request name the debtors of the assigned demands and notify the latter of the assignment; we shall also be entitled to disclose the assignment to the debtors. The orderer shall be obliged to cooperate extensively with us on withdrawal of the assigned demands, particularly by issuing settlements and information and handing over documents as far as useful or necessary.
- The right to sell on or to install the reserved goods and to withdraw the assigned demands shall lapse on cessation of payment, an application for or opening of insolvency proceedings, extra-legal composition proceedings or in the event of a bill or cheque dispute.
- The orderer shall inform us without delay as to any enforcement measures by third parties in the reserved goods or in the assigned demands by handing over the documents useful or necessary for exercising our property and possessory rights.
- If the value of the securities granted to us exceeds the value of our demands by more than 20%, the orderer shall be entitled to demand a corresponding reverse transfer or release.
IX. Goods inward inspection
- The orderer shall inspect each delivery immediately as to contractual condition, function and quantity. All identifiable defects, incorrect amounts, wrong deliveries and deviations shall be notified in writing within five working days of delivery. Hidden defects not discovered despite careful checking shall be notified in writing immediately after discovery and before selling on, installation, processing or commissioning. If collection of the goods is envisaged from us or third parties, the point of delivery shall be our notification that the goods were made ready for collection.
- If the orderer fails to issue a notice of defects on time, the goods shall be deemed approved and warranty claims excluded.
X. Warranty exclusions
- No warranty against material defects shall be given for the delivery of used goods.
- Normal commercial tolerances in the case of quantity, dimensions, weight, quality, colour, etc. are not material defects. Defects occurring in the case of small or mass articles making up no more than 5% of the delivery cannot be the basis of a claim.
- No warranty shall be provided for the consequences of unsuitable or improper application and incorrect assembly or use by the orderer or by third parties, for the consequences of improper or careless handling, improper or deferred maintenance, the application of unsuitable lubricants, defective construction works and unsuitable construction ground or for the consequences of foreign chemical, electrochemical or electrical influences and not for the consequences of use-related or natural wear or impairment.
- Unauthorised changes and improvements of the delivery item by the orderer or by third parties that have not been expressly approved by us in writing shall invalidate all warranty claims.
- For minor defects that do not seriously affect the usability of the goods, the orderer can demand a reasonable discount after timely complaint and within the warranty period.
- Parts that prove to be not only slightly defective and were subject to timely submission of a complaint within the warranty period due to a circumstance prior to the transfer of risk - especially because of faulty design, defective building materials or execution - shall be repaired or re-delivered within the warranty period at our discretion (subsequent performance).
- The orderer shall grant us sufficient time and opportunity for improvements and spare parts deliveries. Only in urgent cases of jeopardisation of operational safety or in order to prevent imminent disproportionally serious damage, the orderer shall be entitled to rectify the damage himself or to have this rectified by third parties and to demand reimbursement of expenses provided we were notified immediately and had the opportunity ourselves to act without delay to prevent the danger or damage.
- Our obligation to subsequent performance shall also include the necessary transport and, if exceptionally required, the provision of our fitters and staff at our expense. If the orderer has installed the defective goods in accordance with their nature and purpose into another item or on another item, we shall, at our discretion, either accept the removal of the defective item and the installation or the fitting of the defect-free item or reimburse the orderer for the necessary expenses for this; this shall not apply if the orderer was aware of the defect before installation or if his lack of knowledge is based on gross negligence.
- The orderer shall under the legal provisions, be entitled to a discount or to withdraw from the contract if we allow a subsequent deadline for improvement or replacement delivery due to a material defect to pass with no effect.
- Liability for compensation shall only apply under section XIII.
XII. Obligations in the event of damages
- If damage occurs with the use of formwork supplied by us during the concreting process and if the property rights on the building site fall to the orderer, we shall be notified immediately and, straightaway and before changing the constructional state, in particular removing the concrete mass, a neutral and specialist construction supervisor, civil engineer, architect or expert - if necessary also the competent insurer or professional association shall be involved to secure the actual and technical findings, the evidence and the parts of the formwork used and to draw up a report on the development of the damage or the cause of the damage. On contravention of these obligations, the orderer shall bear the full burden of evidence for the cause of damage, the circumstances of the damage and the consequences of the damage.
XIII. Liability for compensation
- For damages not occurring to the delivered item itself, we shall only be liable - on whatever legal grounds - for compensation following intent or gross negligence on our part or that of our vicarious agents. On contravention of essential contractual obligations by us or our vicarious agents, we shall also be liable in the case of slight negligence in this respect or limited to the contractually typical reasonably foreseeable damage. We shall also be liable for compensation in the event of culpable injury to life, body and health and defects that were maliciously concealed or guaranteed as being absent, for defects to the goods delivered as far as the Product Liability Act provides for liability for persons or for material damage to objects in private use. Other claims for compensation shall be excluded.
XIV. Limitation period
- Claims from the orderer, on whatever legal grounds, shall expire in 12 months after delivery of the goods.
- The statutory limitation periods shall however apply for claims due to injury to body, life and health, for claims under the Product Liability Act, claims due to defects that were maliciously concealed or guaranteed as being absent, for claims due to contravention of essential contractual obligations and for other claims based on intent or gross negligence by us or our vicarious agents.
XV. Documents – demonstration equipment – property rights
- We shall reserve the ownership and copyrights to drawings, plans, drafts, cost estimates and other documents delivered by us including also samples and demonstration equipment. Documents shall not be duplicated without our express written and corresponding specific agreement; documents and items shall not be delivered to third parties.
- The orderer shall indemnify us from third party claims asserted against us due to the contravention of foreign property rights in carrying out the orderer's assignment.
XVI. Sales, usage and technical advice
- Sales, usage and technical advice shall take place to the best of our knowledge and shall be limited to the goods delivered by us. This shall not form part of the contract unless expressly agreed in writing; such agreement shall not amount to a guarantee.
- For elaborations and consultations, warranty, liability and statute of limitations shall be determined in accordance with sections XI to XIV.
- All documents and elaborations provided by us shall be checked properly by the orderer. The orderer shall in any case remain responsible for adhering to the relevant laws, regulations and accident prevention rules.
XVII. Place of performance – place of jurisdiction – choice of law
- Place of performance for deliveries, services, payments and other contractual obligations shall be Steinach.
- Place of jurisdiction shall be exclusively the courts competent in the district of Steinach.
- German law shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods ("CISG").