AGB

General Terms and Conditions of Delivery and Installation of

Stahlwasserbau Beeskow GmbH

Status: July 2015

 

 

 

  1. General information
  1. Applicability of these General Terms and Conditions of Business
  • The following General Terms and Conditions of Delivery and Assembly (General Terms and Conditions of Business) are applied in business transactions with us and in dealings with consumers. Should individual clauses be inapplicable in dealings with consumers, the legal provisions shall apply in place of these clauses.
  • Our General Terms and Conditions of Business also apply, in the edition valid at the time of concluding the contract, to future business with corporate customers.
  • Subject to contractual agreements, exclusively the following conditions shall apply. Contradictory or deviating conditions on the part of the orderer shall not become part of the contract, even if we do not expressly reject them or if we execute the delivery/service without reservation.
  1. Conclusion of contract
  • Our quotations are non-binding. A contract only comes into existence through our written confirmation of order. The scope of our services is determined conclusively through our written confirmation of order, plus written appendices.
  • Agreements and amendments shall only become effective with our written confirmation. The same shall also apply to any waiver of this provision.
  • Documents and data provided by us, such as illustrations, drawings, weights and dimensions, shall be binding only if we expressly list them as part of the contract or make express reference thereto.
  • We retain ownership of, and copyright to, all information and documents provided (samples, quotations, drawings, documentation – including in electronic form). They may not be disclosed to third parties without our prior written consent.

 

  1. General Terms and Conditions of Delivery
  1. Prices and payment
    • Insofar as nothing to the contrary has been agreed in writing, our prices shall apply ex point of sale, excluding packaging, plus statutory VAT at the respective rate. Packaging costs shall be invoiced separately.
    • The purchase price shall be paid exclusively into the bank account named by us. The deduction of discounts shall be permissible only if a separate written agreement exists.
    • Cheques and bills of exchange shall be accepted only if a separate agreement exists and only as payment.
    • Payments shall be deemed to have been made when credited to our account and shall be used to settle interest and costs first, followed by older claims.
    • Subject to any alternative agreement, the purchase price is to be paid within 14 days following delivery. Default interest shall be invoiced at a rate of 8% above the respective base lending rate. Furthermore, we shall invoice reminder costs of 10 euros per reminder. The right to assert higher damages for default is reserved.
    • If, following the conclusion of the contract, circumstances should come to our attention that could justifiably lead us to doubt the creditworthiness of the orderer, we shall have the right to demand payment in advance or the provision of securities for any outstanding deliveries. Following the fruitless expiry of periods of grace for the rendering of these payments, we shall have the right to withdraw from the contract and/or to demand compensation of damages on account of non-fulfilment. The same applies to facts that already existed at the time of conclusion of the contract, but were unknown to us.
    • In the case of delivery deadlines exceeding a period of two months, we shall have the right to increase or decrease the agreed prices appropriately should considerable changes occur to wage, material or raw material costs and we are not responsible for these increases. Should a price increase exceed 5%, the orderer shall have the right to withdraw from the contract within two weeks of being informed of the price increase.
  2. Delivery deadlines
    • The start of our stated delivery time requires the prompt and proper fulfilment of the orderer’s obligations. The defence of the unfulfilled contract is reserved.
    • If the orderer is in default of acceptance or if it culpably breaches other obligations to co-operate, we shall have the right to demand compensation for any damages that we have incurred, including any additional expenditure. The right to assert further claims is reserved. Insofar as the aforementioned requirements are satisfied, the risk of accidental perishing or accidental deterioration of the purchase item shall be transferred to the orderer as soon as the latter is in default of acceptance or default of the debtor.
    • Cases of force majeure – including such at our suppliers – shall extend the delivery time by the duration of their existence, plus an appropriate start-up period. The same also applies if the aforementioned events occur at a point in time at which we are in default. If the execution of the contract becomes unreasonable for one of the parties due to the length of the delay, that party shall in this respect have the right to withdraw from the contract. Further claims on the part of the orderer are excluded as far as is legally permissible. Interventions on the part of authorities, strikes, difficulties with the procurement of energy or raw materials, lockouts, accidents, operational disruptions or other incidents that make delivery significantly more difficult or impossible are also deemed to be force majeure.
    • In case of a delay in delivery not caused deliberately by us or due to gross negligence on our part, we shall be liable to pay a lump-sum compensation for delay amounting to 3% of the delivery value for each full week of the delay, but no more than 15% of the delivery value in total.
    • This does not affect the orderer’s additional statutory claims and rights.
  • Transfer of risk in case of dispatch, partial delivery
    • If the goods are sent to the orderer at the latter’s request, then the risk of accidental perishing or accidental deterioration of the goods shall be transferred to the orderer on dispatch to the orderer, but at the latest on the goods leaving the works/warehouse. This shall apply irrespective of whether the goods are dispatched from the place of fulfilment and irrespective of who bears the shipment costs.
    • If the orderer is in default of acceptance, the risk of accidental perishing or accidental deterioration of the contractual item shall be transferred to the orderer starting from the day of readiness for dispatch. The orderer shall bear any storage costs.
    • The above provisions shall also apply to partial deliveries. We shall have the right to partial deliveries if necessitated by operational reasons. In case of partial deliveries we shall have the right to demand partial payments.
  1. Retention of title
    • We shall retain ownership of the item delivered until full payment has been made of all claims from the delivery contract. The same shall also apply to all future deliveries, even if we do not always make express reference thereto. We shall have the right to take back the purchase item if the orderer acts in breach of the contract.
    • The orderer undertakes to handle the purchase item with care for as long as the ownership has not yet been transferred to the orderer. In particular, if highly valuable goods are concerned, the orderer undertakes at its own expense to insure the item adequately to a sum equivalent to its new value against theft, fire and water damage. If maintenance and inspection work have to be carried out, the orderer shall do this at its own expense. Until such time as ownership has been transferred, the orderer shall inform us in writing immediately if the object delivered is seized or exposed to other third-party interventions. If the third party is unable to reimburse us the judicial and extrajudicial costs of a plaint in accordance with Article 771 ZPO (German Civil Proceedings Regulations), the orderer shall be liable towards us for the losses incurred by us.
    • The orderer has the right to resell the conditional goods in the normal course of business. The orderer surrenders to us here and now the claims due from its purchaser for the resale of the conditional goods to the amount of the agreed final invoice sum (including VAT). This surrender shall apply irrespective of whether the purchase item is resold without or after processing. The orderer shall remain authorised to collect the claim even after the surrender. This shall not affect our right to collect the claim ourselves. However, we will not collect the claim as long as the orderer complies with its obligations to pay us from the proceeds, is not is default of payment and, in particular, no application for the opening of insolvency proceedings against it has been made, nor have payments been ceased.
    • The treatment and processing or transformation of the purchase item by the orderer shall always take place in our name and on our behalf. In this case the expectant right of the orderer to the purchase item shall continue with the transformed item. If the purchase item should be combined with other articles not belonging to us, we shall acquire joint ownership of the new item in the ratio of the objective value of our purchase item to that of the other processed articles at the time of the combination. The same shall apply to cases of mixing. Should the mixing take place in such a way that the orderer’s item is to be regarded as the main item, it is deemed to be agreed that the orderer shall transfer proportional joint ownership to us and shall safekeep the sole or joint ownership thus created on our behalf. To secure our claims against the orderer, the orderer also surrenders to us its claims against a third party that arise through the connection of the conditional goods with a real estate; we accept said surrender here and now.
    • We undertake at the orderer’s request to release securities due to us if their value exceeds the claims to be secured by more than 20%.
  2. Warranty and notification of defects; regress/manufacturer’s regress
    • The orderer’s warranty rights presuppose that the orderer has complied with its examination and notification obligations in accordance with Article 377 HGB (German Commercial Code). The orderer must notify us in writing immediately, but at the latest within five days of the delivery of the goods, of any defects (including incorrect or insufficient deliveries) that are recognisable during the examination. Defects that cannot be discovered within this time limit, even with careful inspection, must be notified to us within five days of their discovery. The timely dispatch of the notification of defect is sufficient to comply with the time limit. Any notification of defect must always be in writing and sufficiently specific. The goods shall be deemed to have been approved if defects are not notified promptly by the orderer.
    • Claims for defects shall lapse in 12 months after delivery of the goods to our orderer. The above provisions shall not apply if legislation as per Article 438 Para. 1 No. 2 BGB [German Civil Code] (structures and items for structures), Article 479 Para. 1 BGB (right to regress) and Article 634a Para. 1 BGB (building defects), and for reasons of consumer protection, prescribes mandatory longer time limits. Our consent must be obtained before returning the goods.
    • If, despite all precautions taken, the goods exhibit a defect that was already present at the time of transfer of risk, we shall, subject to a notification of defect within the time limit, repair the goods or supply replacement goods, whichever we choose. We must always be given the opportunity for subsequent fulfilment within a reasonable time limit. The right to regress is not affected in any way by the above provision.
    • If the subsequent fulfilment fails, the orderer – notwithstanding any claims for compensation – may withdraw from the contract or reduce the remuneration sum.
    • Claims for defects shall not be accepted in the case of only insignificant deviations from the agreed properties, in the case of only insignificant impairment of the usability, in the case of natural wear and tear and in the case of damage that occurs after transfer of risk as a result of incorrect or negligent handling, overloading, the use of unsuitable operating resources, poor construction work, unsuitable building ground or particular external influences that are not foreseen according to the contract. Claims for defects shall also not be accepted in the case of damage resulting from incorrect repair work or modifications carried out by the orderer or third parties.
    • Claims on the part of the orderer on account of the expenditure necessary for the purpose of the subsequent fulfilment, in particular transport, travel, labour and material costs, shall be excluded if the expenditure increases because the goods delivered by us have been subsequently brought to a place other than the orderer’s establishment, unless bringing them there corresponds to their intended purpose of use.
    • The orderer shall have a right of regress against us only insofar as the orderer has not reached any agreements with its purchaser extending beyond the legally mandatory claims for defects. Furthermore, paragraph 6 applies accordingly to the scope of the orderer’s right of regress against the supplier.
  3. General Terms and Conditions of Work and Installation
  1. Scope of applicability
    • If, in addition to the delivery of the contract item, we also carry out the installation and render similar (work) services, or if we render exclusively such services on the customer’s behalf, the following terms and conditions of work and installation shall apply.
    • Supplementary hereto, the VOB/B and VOB/C (German Construction Contract Procedures) in their current edition shall apply in all cases. The orderer’s General Terms and Conditions of Business, if deviating therefrom, shall be rejected (see A. 1. of these General Terms and Conditions of Business).
    • If we commission subcontractors to carry out these performances, these contractual relationships shall be governed by the order, the minutes of the negotiations and our special contract conditions.
  2. Price and invoicing
    • Subject to any alternative agreement, the performance shall be invoiced according to the time expended at our valid rates for installation work. Also to be reimbursed are the material expenses, travel expenses for the outward and return journeys of our personnel, transport costs, customs duties, customs expenses and transport insurance for baggage and tools, costs for the procurement of identity documents and passports as well as other cash outlays such as telephone charges, etc.
    • The orderer shall certify the working, travel and waiting times of the installation personnel as well as the work performed on the installation time sheet submitted by the installation personnel. If the orderer refuses the certification, or if for some other reason it is not possible for our personnel to obtain the certification, then the invoice shall be rendered according to the installation time sheet completed by our personnel.
    • The quotation does not include auxiliary work of any kind (for example, bricklaying, cutting work, plastering, joinery, electrical connections, earthworks and painting) if such work is not listed in separate items with quantities and price. Any work that we carry out that was not included in the order shall be remunerated separately according to our charge rates. The same shall apply to any additional expenses that we incur if a performance is interrupted or delayed for reasons for which we are not responsible.
  • Duties of the orderer
    • The orderer shall, at its own expense, instruct our personnel about existing safety regulations and hazards and take all necessary precautions to protect persons and property at the place of work.
    • The orderer shall, at its own expense, support our personnel to the necessary extent in the execution of the work and provide the necessary aids (e.g. preparation of the building site, provision of tools and lifting equipment, provision of water and electricity, etc.). The aid provided by the orderer must ensure that our work can commence immediately on arrival of the personnel and continue without delay until acceptance. Should the orderer not comply with its duties, we shall have the right, but shall not be obligated, to carry out the actions to which the orderer is obligated in its place and at its expense.
    • If a performance cannot be rendered for reasons for which we are not responsible, the orderer shall remunerate the performances that we have already rendered plus any expenses incurred. Replaced parts, i.e. used parts, that we receive from the orderer shall become our property. If a performance has perished or deteriorated prior to acceptance and we are not responsible, the orderer shall refund the price to us, minus the expenses saved.
  1. Acceptance
    • The orderer is obligated to accept the installation and work performances immediately upon being notified of their completion. A system built by us shall be deemed to have been accepted following successful trial operation, even if the orderer has not co-operated herewith despite a request to do so.
    • Self-contained parts of the performance are to be accepted separately on demand. If a system built by us has been wholly or partly put into operation, or if acceptance is delayed through no fault of our own, then the acceptance shall be deemed to have taken place upon the expiry of two weeks following notification of completion.
    • A system built by us may be used before acceptance only with our express agreement; the parts of the system already installed shall be deemed to have been accepted upon use.
  2. Further provisions

 

  1. Set-off and right of retention
    • The orderer shall have a right to set-off only if its counterclaims have been legally established as final and absolute or are undisputed.
    • The orderer shall have a right of retention only if its counterclaim originates from the same contractual relationship.
  1. Liability
    • We shall be liable according to the legal regulations if the orderer asserts claims for compensation of damages that are based on wilful intent or gross negligence or, as the case may be, on the wilful intent or gross negligence of a representative or vicarious agent. Provided we are not accused of a wilful or grossly negligent breach of obligations, the liability for compensation of damages shall be limited to the typically occurring damages. This shall also apply to slightly negligent breaches of obligations by the legal representatives or vicarious agents. Liability on our part is excluded in the case of slightly negligent breaches of minor contractual obligations.
    • This does not affect liability for the breach of obligations whose fulfilment makes the proper execution of the contract possible in the first place and which the orderer may trust to be complied with; mandatory liability pursuant to the product liability law is likewise unaffected. The same shall apply to the unlimited liability in the case of culpable injury to life, limb or health.
  • Written form, severability clause
    • All agreements reached by the parties for the purpose of executing a contract are required to be in writing.
    • Should individual provisions of these General Terms and Conditions of Business be or become ineffective or contain a loophole, this shall not affect the remainder of the provisions. The parties undertake to replace the ineffective provision with a legally permissible provision that best serves the economic purpose of the ineffective provision or closes this loophole, as the case may be.
  1. Applicable law, place of jurisdiction
    • This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the United Nations Treaty on Contracts for the International Sale of Goods (CISG).
    • If the orderer is an entrepreneur, the exclusive place of jurisdiction for all disputes arising from contracts is agreed upon as our business location, provided the confirmation of order contains no alternative arrangements.

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