General Contractual Terms of Laake GmbH
I. Contractual Basis
(1) Our terms of sale have exclusive validity; we do not recognise any conditions of the ordering party which contradict or deviate from our terms of sale, the exception being if we have agreed to their validity in writing. Our terms of sale also have validity if we make delivery to the ordering party without reservation despite us having knowledge of conditions of the ordering party which contradict or deviate from our terms of sale.
(2) All agreements which are concluded between the ordering party and us for the purpose of the execution of this contract are entered in this contract in writing.
(3) Our terms of sale are also valid for all future transactions entered into with the ordering party.
(4) The following provisions are to be applied for the determination of the reciprocal obligations of the contractual parties:
a.) Performance specifications;
b.) The special conditions concluded for the individual case (BVB) and special technical specifications (BTV);
c.) The additional contractual terms in the form of these general terms and conditions of trade in addition to any additional specifications (ZTV);
d.) The general contractual terms for the execution of construction works (Part B of the German regulations for contracts and execution of construction works – VOB) in the version having validity upon conclusion of the contract, in addition to the general technical regulations for construction works – VOB/C;
e.) The provision of the German civil code (BGB) (sections 631 ff.).
The text of VOB, part B will be made available to the ordering party upon request or it can be inspected in our offices during normal business hours.
II. Quotations
(1) If the order is to be qualified as being a quotation in accordance with section 145 BGB, we can accept this within a period of 2 weeks.
(2) We reserve proprietary rights and copyright in illustrations, drawings, calculations and other documents. This also has validity for written documents which are marked confidential“. The ordering party requires our express written approval before such are passed on to third parties. These are to be handed out to us upon demand.
(3) Quotations and support reactions, cross sections or similar are approximations and nonbinding upon execution of the contract, the exception being if such are a constituent part of this scope of performance. Project planning performances which make this necessary are to be separately agreed to in writing.
(4) All additional performances resulting from:
- subsequent modifications, e.g. including to the construction plans;
- additional demands asserted by the ordering party over and above the express extent of the quotation and/or
- revisions of statutory and official impositions and provisions which are made up to the time of acceptance are nor included in the quoted prices and are to be reimbursed separately. In the absence of other agreements, the prices for the foregoing additional performances will be calculated on the basis of standard prices. We are not obliged to providing additional
performances without these being the subject of a separate written order being placed by the ordering party.
(5) In as far as static calculations and constructional drawings are a constituent part of our scope of performance, the ordering party still has the duty to submit these documents for validation and pay all costs incurred as a result.
(6) We expressly reserve the right to make technical modifications resulting from new versions of legal provisions, the modification of the production process, the detailed modification of structures or impositions made by the inspecting structural engineer.
III. Order Acceptance
(1) Orders are only binding for us and verbal collateral agreements are only legally valid if they are confirmed by us in writing. After the order has been confirmed and in the case of deliveries having been commenced, we reserve the right to repudiate the contract should credit references which have been obtained prove to be unsatisfactory or if there is reason to believe that the fulfilment of the contract by the buyer is seen to be doubtful. In the case of performances which have already been provided, rights of retention can be asserted with regard to the performances provided by the selling party, in addition to assertion of the legal claims.
(2) We are entitled to also have performances executed by subcontractors.
IV. Prices
(1) The deliveries are calculated at our prices which have validity on the date of delivery, assuming that a fixed price is not expressly agreed to. Should nothing to the contrary be stated in the order confirmation, our prices are deemed to be “ex works”, excluding packaging; this is invoiced separately.
(2) Our prices do not include the statutory Value Added Tax; it will be separately included in the invoice at the rate having validity on the date of invoice.
(3) The deduction of prompt-payment deductions requires a separate written agreement.
(4) Prices for deliveries are deemed to be ex works or place of dispatch. In the case of deliveries made free place of delivery, the ordering party is to bear the freight costs, including the ancillary freight costs such as demurrage, for example. The freight and ancillary costs are to be paid upon the original consignment note being handed out. We include the net freight amount (excluding Value Added tax) in our invoice as advanced freight payments.
(5) Deliveries without assembly free place of building site or place of use are made without offloading by us. In this case, the offloading duration must be kept as short as possible in accordance with the scope of delivery.
(6) We reserve the right to make price changes should deliveries or performances be made during a period exceeding 4 months as from the date of the conclusion of the contract and prices for raw materials, charged by our suppliers, wages and salaries, transport costs, tax rates or other unforeseeable costs which have an effect on the calculation should change until such time as the order is executed. The price modification will be proven in an itemized form if required. We also reserve the right to increase the prices stated in the quotation by a reasonable amount of the factual situation, e.g. on the building site deviates in calculation quantities. Price modification in accordance with this provision do not entitle the ordering party to terminate the contract on important grounds, declare a repudiation of the contract or amend or terminate the contract by mutual agreement on the grounds of a frustration of contract.
(7) Should nothing to the contrary be stated in the order confirmation, the purchase price is due for payment net (without deduction) within a period of 30 days as from the date of invoice. The legal provisions pertaining to the consequences of a default in payment have validity.
(8) The ordering party is only entitled to set-off payments if a counter-claim has been finally and conclusively determined, is undisputed or has been recognised by us. He is furthermore only entitled to exercise a right of retention to the extent to which his counter-claim is based on the same contractual relationship.
V. Passing of the Risk – Packaging Costs
(1) Should nothing to the contrary be stated in the order confirmation, the delivery is made `ex works´.
(2) Transport and all other packaging pursuant to the German packaging regulations are not taken back with the exception of pallets. The possessor has a duty to disposing of the packaging at his expense.
(3) Upon request of the ordering party, we will take out transport insurance for the delivery; the ordering party is to bear the costs incurred as a result.
VI. Advance Payments
(1) If the agreed order value exceeds the gross amount of 25,000.00 €, the ordering party is upon our demand and against presentation of a performance band issued by a German bank, an accredited credit institute in Germany or a credit insurer, obliged to make advance payments amounting to the guaranteed payment stated in the performance bond. Advance payments can only be set-off against the payments which are due in the final invoice.
(2) Accessories are exclusively delivered by COD or gross advance payment.
VII. Provision of Security
(1) We are entitled to demand security for the fulfilment of the payment obligations from the ordering party at all times after conclusion of the contract. Security can be provided in the form of the making of a cash deposit or a bond issued by an accredited credit institute in Germany or a credit insurer. We have the choice between the various forms of security; the demand can be made that a security be replaced with another one.
VIII. Period of Delivery
(1) The clarification of all technical aspects is a prerequisite for the commencement of a period of delivery declared by us.
(2) The adherence to our delivery obligations also requires the punctual and correct fulfilment of the ordering party’s obligations. The right to make a plea of non-performance is reserved.
(3) If the ordering party is in default of acceptance or infringes or culpably breaches other duties to cooperate, we are entitled to demand compensation for any damages, including any additional expenditure. The right is reserved to assert claims over and above the foregoing.
(4) In as far as the requirements of clause (3) are given, the risk of accidental loss or an accidental worsening of the purchased item transfers to the ordering party at the moment in time at which he is in default of delivery or as a debtor’s delay.
(5) We assume liability in accordance with the legal provisions in as far as the contract of purchase which forms the basis is deemed to be a transaction on a fixed date within the meaning of section 286, paragraph 2, No. 4 BGB ) German civil code) or §376 HGB(German commercial code). We are also liable in accordance with the statutory provisions in as far as the ordering party is entitled to assert the claim that his interest in the continuation of the fulfilment of the contract no longer exists as a consequence of the delivery default for which we were responsible.
(6) We also assume liability in accordance with the legal provisions in as far as the default in delivery is the consequence of an infringement of the contract for which we are responsible on the grounds of intent or gross negligence; the fault of our representative or vicarious agent is to be attributed to us. If the delivery contract is affected by an infringement of contract for which we are not responsible with intent, our compensation liability is restricted to the typical damage which is foreseeable.
(7) We also assume liability in accordance with the legal provisions in as far as the default in delivery for which we are responsible is a consequence of a culpable infringement of a fundamental contractual duty. In this case, the compensation liability is restricted to the typical damage which is foreseeable.
(8) We furthermore assume liability in the case of a default of delivery in the form of a lumpsum default compensation of 2% of the delivery value for each complete week of default, not exceeding 10% of the delivery value.
(9) The right to assert other legal claims and rights by the ordering party remains unaffected.
IX. Acceptance
(1) A formal acceptance does not take place for accessories.
(2) A formal acceptance takes place with regard to deliveries and assembly if this is demanded by either of the contractual parties within a period of 3 days of notification being made of completion. In the case of each form of utilisation, the acceptance is deemed to have taken place upon expiry of a period of 6 workdays after commencement of use.
(3) Deliveries excluding assembly work are deemed to have been accepted if we should not receive written refusal of the acceptance within a period of one workday after receipt of the acceptance notification.
(4) In all cases, an acceptance can only be refused if a fundamental defect impairs the serviceability of the delivery or work respectively and this impairment is caused by the actions of one or more of our vicarious agents.
(5) If the ordering party should demand a formal acceptance in writing and if he should then be absent at the said apointment, the performance is deemed to have been accepted at the end of the appointed date.
X. Warranty, Liability, Limitation of Actions
(1) The assertion of warranty claims by the entrepreneurial ordering party requires it having correctly met its examination and complaint duties pursuant to section 377 HGB. We are to be provided with written notification of all defects. We must be granted the opportunity of being able to determine the justification of the notification of defects. Upon demand by us, the ordering party has a duty to immediately making samples of the material which is the subject of complaint. Slight colour differences within the supplied and installed merchandise do not give grounds for complaint. Deviations from advertisements in catalogues and brochures are not subject to the law of liability for defects. The shrinkage of timber or the resulting formation of cracks and gaps resulting from drying processes are naturally unavoidable and are not recognised as a defect. We do not provide a warranty with regard to the susceptibility of galvanized parts such as screws, nuts, etc, to corrosion. The parts manufactured by us which are to be galvanized are hot-dip galvanized pursuant to DIN 50975/76. All of the steel elements are hot-dip galvanized pursuant to EN ISO 1461. The diverse silicon contents of the rolled steel sections can partially result in grey colourings or surface roughness. These are not quality defects. Damage caused to the zinc skin resulting from chafe marks and assembly work is protected by zinc dust paint after assembly. These are not quality defects in the galvanization. Damage caused to the powder coating resulting from horse bites or other mechanical employments can result in the coating being loosened at the edges. This is unavoidable and is therefore not a defect. We neither assume liability
for defects of quality resulting from an unsuitable or inappropriate use, incorrect assembly or usage by the ordering party or a third party for which we are not responsible, normal wear, incorrect or careless treatment, nor do we do so for the consequences of modifications or repair work carried out by the third party or the ordering party which is executed without our approval.
(2) In as far as the purchased item is subjected to a defect; the ordering party can choose supplementary performance either in the form of a remedying of the defect or delivery of a new item which is free from defects. In the case of the remedying of the defect, we have a duty to bear all expenditure incurred for the purpose of the remedying of the defect, especially transport, infrastructure, labour and material costs as long as these are increased as a result of the purchased item being conveyed to another place of performance.
(3) Should the supplementary performance not succeed, the ordering party can choose either repudiation or diminution.
(4) We assume liability in accordance with the legal provisions in as far as the ordering party asserts a claim for compensation on the grounds of intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. In the case of us not being accused of a breach of contract with intent, the maximum liability is restricted to the typical damage which is foreseeable.
(5) We assume liability in accordance with the legal provisions in as far as we culpably infringe a fundamental contractual duty. In this case, the compensation liability is restricted to the typical damage which is foreseeable.
(6) Liability on the grounds of culpable death, personal injury or impairment to the health remains unaffected; this is also the case with regard to the compulsory liability in accordance with the German Product Liability Act.
(7) Liability is excluded should nothing be determined in the foregoing.
(8) The limitation of actions period for warranty claims amounts to 12 months, as from the passing of the risk.
(9) The limitation of actions period with regard to a delivery recourse pursuant to sections §§ 478, 479 BGB remains unaffected; it amounts to five years, calculated as from delivery of the defective item.
(10) The haulier is to be informed of discernible damage in transit immediately upon delivery. Written notification of damage which is not immediately discernible is to be made to the haulier within a period of 4 days. Transportation by rail results in a duty to notify within a period of one week. Notifications are to be made to the post office within a period of 24 hours. With the exception of consumer sales, all costs for repairs, returns and repeated deliveries are to be borne by the ordering party. These costs can be invoiced to the haulier upon the handling of the damage in transit.
XI. Joint Liability
(1) A liability for compensation other than stipulated in section X is excluded, irrespective of the legal nature of the asserted claim. This especially has validity for claims for compensation arising from fault upon conclusion of the contract, other breaches of duty or on the grounds of tortious claims for the replacement of property damage pursuant to section 823 BGB
(2) In as far as we exclude or restrict the assertion of claims for compensation towards us, this also has validity for the personal liability for compensation on the part of our salaried employees, waged employees, staff members, representatives and vicarious agents.
XII. Premature Contract Termination
(1) For the case of the contract being terminated, e.g. in accordance with section 8, paragraph 1 VGEB, it is agreed that an entitlement to the complete contractual amount is given but with deduction of saved expenditure. Should we not furnish proof of saved expenditure in individual cases, this is deemed to have agreed as being 20% of the payment for the performances which we have not yet executed. We reserve the right to furnish proof that the achieved savings are less than 20%.
XIII. Safeguarding the Reservation of Title
(1) We reserve the title in the purchased item until such time as we are in receipt of all payments due on the basis of the business relationship. In the case of the ordering party acting in infringement of the contract, especially with regard to payment defaults, we are entitled to recover the purchased item. The recovery of the purchased item by us is not deemed to be a repudiation of the contract, the exception being if we expressly declare this in writing. An inspection of the purchased item by us is always deemed to be a repudiation of the contract. We are entitled to use the purchased item after its recovery, the earnings from the utilisation being set off against the ordering party’s payment obligations – after deduction of reasonable utilisation costs.
(2) The ordering party has a duty to handle the purchased item with care; he especially has a duty to insure it at its original value against fire damage, water damage and theft at his expense. If maintenance and inspection work should be necessary, the ordering party must have this carried out in time at his expense.
(3) The ordering party is to provide us with immediate written notification of a levy of execution or other interferences by third parties, so that we can file a suit pursuant to section 771 ZPO (German code of civil procedure). If the third party be unable to reimburse us with the court or out of court costs incurred for the filing of a suit pursuant to section 771 ZPO, the ordering party is to reimburse us for the resulting loss.
(4) The ordering party is entitled to sell the purchased item in the customary course of business; he however already assigns all claims in the amount of the final invoiced amount (including VAT) to which he is entitled from his purchaser or third party to us, irrespective of whether the purchased item has been sold to his customer without having been processed or not. The ordering party is still entitled to recover the payment claim even after assignment. Our authority to recover the payment ourselves remains unaffected by this. We have a duty however to not recovering the payment claim as long as the ordering party meets his payment obligations from the proceeds of the sale, is not in default of payment and it is especially the case that no application is made for the commencement of bankruptcy, composition or insolvency proceedings or the making of payments is interrupted. Should this be the case however, we can demand that the possessor informs us of the assigned claims and their debtors, provides all of the information which is necessary for the recovery and the debtors (third party) is informed of the assignment.
(5) The processing or conversion of the purchased item is always executed for us. If the purchased item is processed together with objects which are not our property, we acquire the co-ownership in the new item in the ratio of the value of the purchased item (final invoiced amount including VAT) to the other processed items at the time of processing. The item which results from the processing is subject to the same conditions as the purchased item which was delivered subject to our reservation of title.
(6) If the purchased item is inseparably mixed with other objects which do not belong to us, we acquire co-ownership in the new item in the ratio of the value of the purchased item (final invoiced amount including VAT) to the other mixed items at the time of mixing, If the mixing takes place in such a way that the item belonging to the ordering party is seen as being the main item, it is agreed that the ordering party assigns proportional co-ownership to us. The ordering party takes the resulting sole ownership or co-ownership into safekeeping for us.
(7) In order to secure our claims against him, the ordering party assigns us his claims which he has against a third party as a result of the connecting of the purchased item to a piece of land.
(8) Upon demand of the ordering party, we obligate ourselves to releasing the securities to which we are entitled to the extent to which the realisable value of our securities exceed the claims which are to be secured by 10%; we are entitled to choose the securities which are to be released.
XIV. Jurisdictional Venue – Place of Performance
(1) Our legal domicile is the jurisdictional venue in as far as the ordering party is a businessman; we are however entitled to file a suit against the ordering party at his place of abode.
(2) The law of the Federal Republic of Germany has validity; the validity of the UN law on sales is excluded.
(3) Should nothing to the contrary be stipulated in the order confirmation, our legal domicile is the place of performance.
(1) Our terms of sale have exclusive validity; we do not recognise any conditions of the ordering party which contradict or deviate from our terms of sale, the exception being if we have agreed to their validity in writing. Our terms of sale also have validity if we make delivery to the ordering party without reservation despite us having knowledge of conditions of the ordering party which contradict or deviate from our terms of sale.
(2) All agreements which are concluded between the ordering party and us for the purpose of the execution of this contract are entered in this contract in writing.
(3) Our terms of sale are also valid for all future transactions entered into with the ordering party.
(4) The following provisions are to be applied for the determination of the reciprocal obligations of the contractual parties:
a.) Performance specifications;
b.) The special conditions concluded for the individual case (BVB) and special technical specifications (BTV);
c.) The additional contractual terms in the form of these general terms and conditions of trade in addition to any additional specifications (ZTV);
d.) The general contractual terms for the execution of construction works (Part B of the German regulations for contracts and execution of construction works – VOB) in the version having validity upon conclusion of the contract, in addition to the general technical regulations for construction works – VOB/C;
e.) The provision of the German civil code (BGB) (sections 631 ff.).
The text of VOB, part B will be made available to the ordering party upon request or it can be inspected in our offices during normal business hours.
II. Quotations
(1) If the order is to be qualified as being a quotation in accordance with section 145 BGB, we can accept this within a period of 2 weeks.
(2) We reserve proprietary rights and copyright in illustrations, drawings, calculations and other documents. This also has validity for written documents which are marked confidential“. The ordering party requires our express written approval before such are passed on to third parties. These are to be handed out to us upon demand.
(3) Quotations and support reactions, cross sections or similar are approximations and nonbinding upon execution of the contract, the exception being if such are a constituent part of this scope of performance. Project planning performances which make this necessary are to be separately agreed to in writing.
(4) All additional performances resulting from:
- subsequent modifications, e.g. including to the construction plans;
- additional demands asserted by the ordering party over and above the express extent of the quotation and/or
- revisions of statutory and official impositions and provisions which are made up to the time of acceptance are nor included in the quoted prices and are to be reimbursed separately. In the absence of other agreements, the prices for the foregoing additional performances will be calculated on the basis of standard prices. We are not obliged to providing additional
performances without these being the subject of a separate written order being placed by the ordering party.
(5) In as far as static calculations and constructional drawings are a constituent part of our scope of performance, the ordering party still has the duty to submit these documents for validation and pay all costs incurred as a result.
(6) We expressly reserve the right to make technical modifications resulting from new versions of legal provisions, the modification of the production process, the detailed modification of structures or impositions made by the inspecting structural engineer.
III. Order Acceptance
(1) Orders are only binding for us and verbal collateral agreements are only legally valid if they are confirmed by us in writing. After the order has been confirmed and in the case of deliveries having been commenced, we reserve the right to repudiate the contract should credit references which have been obtained prove to be unsatisfactory or if there is reason to believe that the fulfilment of the contract by the buyer is seen to be doubtful. In the case of performances which have already been provided, rights of retention can be asserted with regard to the performances provided by the selling party, in addition to assertion of the legal claims.
(2) We are entitled to also have performances executed by subcontractors.
IV. Prices
(1) The deliveries are calculated at our prices which have validity on the date of delivery, assuming that a fixed price is not expressly agreed to. Should nothing to the contrary be stated in the order confirmation, our prices are deemed to be “ex works”, excluding packaging; this is invoiced separately.
(2) Our prices do not include the statutory Value Added Tax; it will be separately included in the invoice at the rate having validity on the date of invoice.
(3) The deduction of prompt-payment deductions requires a separate written agreement.
(4) Prices for deliveries are deemed to be ex works or place of dispatch. In the case of deliveries made free place of delivery, the ordering party is to bear the freight costs, including the ancillary freight costs such as demurrage, for example. The freight and ancillary costs are to be paid upon the original consignment note being handed out. We include the net freight amount (excluding Value Added tax) in our invoice as advanced freight payments.
(5) Deliveries without assembly free place of building site or place of use are made without offloading by us. In this case, the offloading duration must be kept as short as possible in accordance with the scope of delivery.
(6) We reserve the right to make price changes should deliveries or performances be made during a period exceeding 4 months as from the date of the conclusion of the contract and prices for raw materials, charged by our suppliers, wages and salaries, transport costs, tax rates or other unforeseeable costs which have an effect on the calculation should change until such time as the order is executed. The price modification will be proven in an itemized form if required. We also reserve the right to increase the prices stated in the quotation by a reasonable amount of the factual situation, e.g. on the building site deviates in calculation quantities. Price modification in accordance with this provision do not entitle the ordering party to terminate the contract on important grounds, declare a repudiation of the contract or amend or terminate the contract by mutual agreement on the grounds of a frustration of contract.
(7) Should nothing to the contrary be stated in the order confirmation, the purchase price is due for payment net (without deduction) within a period of 30 days as from the date of invoice. The legal provisions pertaining to the consequences of a default in payment have validity.
(8) The ordering party is only entitled to set-off payments if a counter-claim has been finally and conclusively determined, is undisputed or has been recognised by us. He is furthermore only entitled to exercise a right of retention to the extent to which his counter-claim is based on the same contractual relationship.
V. Passing of the Risk – Packaging Costs
(1) Should nothing to the contrary be stated in the order confirmation, the delivery is made `ex works´.
(2) Transport and all other packaging pursuant to the German packaging regulations are not taken back with the exception of pallets. The possessor has a duty to disposing of the packaging at his expense.
(3) Upon request of the ordering party, we will take out transport insurance for the delivery; the ordering party is to bear the costs incurred as a result.
VI. Advance Payments
(1) If the agreed order value exceeds the gross amount of 25,000.00 €, the ordering party is upon our demand and against presentation of a performance band issued by a German bank, an accredited credit institute in Germany or a credit insurer, obliged to make advance payments amounting to the guaranteed payment stated in the performance bond. Advance payments can only be set-off against the payments which are due in the final invoice.
(2) Accessories are exclusively delivered by COD or gross advance payment.
VII. Provision of Security
(1) We are entitled to demand security for the fulfilment of the payment obligations from the ordering party at all times after conclusion of the contract. Security can be provided in the form of the making of a cash deposit or a bond issued by an accredited credit institute in Germany or a credit insurer. We have the choice between the various forms of security; the demand can be made that a security be replaced with another one.
VIII. Period of Delivery
(1) The clarification of all technical aspects is a prerequisite for the commencement of a period of delivery declared by us.
(2) The adherence to our delivery obligations also requires the punctual and correct fulfilment of the ordering party’s obligations. The right to make a plea of non-performance is reserved.
(3) If the ordering party is in default of acceptance or infringes or culpably breaches other duties to cooperate, we are entitled to demand compensation for any damages, including any additional expenditure. The right is reserved to assert claims over and above the foregoing.
(4) In as far as the requirements of clause (3) are given, the risk of accidental loss or an accidental worsening of the purchased item transfers to the ordering party at the moment in time at which he is in default of delivery or as a debtor’s delay.
(5) We assume liability in accordance with the legal provisions in as far as the contract of purchase which forms the basis is deemed to be a transaction on a fixed date within the meaning of section 286, paragraph 2, No. 4 BGB ) German civil code) or §376 HGB(German commercial code). We are also liable in accordance with the statutory provisions in as far as the ordering party is entitled to assert the claim that his interest in the continuation of the fulfilment of the contract no longer exists as a consequence of the delivery default for which we were responsible.
(6) We also assume liability in accordance with the legal provisions in as far as the default in delivery is the consequence of an infringement of the contract for which we are responsible on the grounds of intent or gross negligence; the fault of our representative or vicarious agent is to be attributed to us. If the delivery contract is affected by an infringement of contract for which we are not responsible with intent, our compensation liability is restricted to the typical damage which is foreseeable.
(7) We also assume liability in accordance with the legal provisions in as far as the default in delivery for which we are responsible is a consequence of a culpable infringement of a fundamental contractual duty. In this case, the compensation liability is restricted to the typical damage which is foreseeable.
(8) We furthermore assume liability in the case of a default of delivery in the form of a lumpsum default compensation of 2% of the delivery value for each complete week of default, not exceeding 10% of the delivery value.
(9) The right to assert other legal claims and rights by the ordering party remains unaffected.
IX. Acceptance
(1) A formal acceptance does not take place for accessories.
(2) A formal acceptance takes place with regard to deliveries and assembly if this is demanded by either of the contractual parties within a period of 3 days of notification being made of completion. In the case of each form of utilisation, the acceptance is deemed to have taken place upon expiry of a period of 6 workdays after commencement of use.
(3) Deliveries excluding assembly work are deemed to have been accepted if we should not receive written refusal of the acceptance within a period of one workday after receipt of the acceptance notification.
(4) In all cases, an acceptance can only be refused if a fundamental defect impairs the serviceability of the delivery or work respectively and this impairment is caused by the actions of one or more of our vicarious agents.
(5) If the ordering party should demand a formal acceptance in writing and if he should then be absent at the said apointment, the performance is deemed to have been accepted at the end of the appointed date.
X. Warranty, Liability, Limitation of Actions
(1) The assertion of warranty claims by the entrepreneurial ordering party requires it having correctly met its examination and complaint duties pursuant to section 377 HGB. We are to be provided with written notification of all defects. We must be granted the opportunity of being able to determine the justification of the notification of defects. Upon demand by us, the ordering party has a duty to immediately making samples of the material which is the subject of complaint. Slight colour differences within the supplied and installed merchandise do not give grounds for complaint. Deviations from advertisements in catalogues and brochures are not subject to the law of liability for defects. The shrinkage of timber or the resulting formation of cracks and gaps resulting from drying processes are naturally unavoidable and are not recognised as a defect. We do not provide a warranty with regard to the susceptibility of galvanized parts such as screws, nuts, etc, to corrosion. The parts manufactured by us which are to be galvanized are hot-dip galvanized pursuant to DIN 50975/76. All of the steel elements are hot-dip galvanized pursuant to EN ISO 1461. The diverse silicon contents of the rolled steel sections can partially result in grey colourings or surface roughness. These are not quality defects. Damage caused to the zinc skin resulting from chafe marks and assembly work is protected by zinc dust paint after assembly. These are not quality defects in the galvanization. Damage caused to the powder coating resulting from horse bites or other mechanical employments can result in the coating being loosened at the edges. This is unavoidable and is therefore not a defect. We neither assume liability
for defects of quality resulting from an unsuitable or inappropriate use, incorrect assembly or usage by the ordering party or a third party for which we are not responsible, normal wear, incorrect or careless treatment, nor do we do so for the consequences of modifications or repair work carried out by the third party or the ordering party which is executed without our approval.
(2) In as far as the purchased item is subjected to a defect; the ordering party can choose supplementary performance either in the form of a remedying of the defect or delivery of a new item which is free from defects. In the case of the remedying of the defect, we have a duty to bear all expenditure incurred for the purpose of the remedying of the defect, especially transport, infrastructure, labour and material costs as long as these are increased as a result of the purchased item being conveyed to another place of performance.
(3) Should the supplementary performance not succeed, the ordering party can choose either repudiation or diminution.
(4) We assume liability in accordance with the legal provisions in as far as the ordering party asserts a claim for compensation on the grounds of intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. In the case of us not being accused of a breach of contract with intent, the maximum liability is restricted to the typical damage which is foreseeable.
(5) We assume liability in accordance with the legal provisions in as far as we culpably infringe a fundamental contractual duty. In this case, the compensation liability is restricted to the typical damage which is foreseeable.
(6) Liability on the grounds of culpable death, personal injury or impairment to the health remains unaffected; this is also the case with regard to the compulsory liability in accordance with the German Product Liability Act.
(7) Liability is excluded should nothing be determined in the foregoing.
(8) The limitation of actions period for warranty claims amounts to 12 months, as from the passing of the risk.
(9) The limitation of actions period with regard to a delivery recourse pursuant to sections §§ 478, 479 BGB remains unaffected; it amounts to five years, calculated as from delivery of the defective item.
(10) The haulier is to be informed of discernible damage in transit immediately upon delivery. Written notification of damage which is not immediately discernible is to be made to the haulier within a period of 4 days. Transportation by rail results in a duty to notify within a period of one week. Notifications are to be made to the post office within a period of 24 hours. With the exception of consumer sales, all costs for repairs, returns and repeated deliveries are to be borne by the ordering party. These costs can be invoiced to the haulier upon the handling of the damage in transit.
XI. Joint Liability
(1) A liability for compensation other than stipulated in section X is excluded, irrespective of the legal nature of the asserted claim. This especially has validity for claims for compensation arising from fault upon conclusion of the contract, other breaches of duty or on the grounds of tortious claims for the replacement of property damage pursuant to section 823 BGB
(2) In as far as we exclude or restrict the assertion of claims for compensation towards us, this also has validity for the personal liability for compensation on the part of our salaried employees, waged employees, staff members, representatives and vicarious agents.
XII. Premature Contract Termination
(1) For the case of the contract being terminated, e.g. in accordance with section 8, paragraph 1 VGEB, it is agreed that an entitlement to the complete contractual amount is given but with deduction of saved expenditure. Should we not furnish proof of saved expenditure in individual cases, this is deemed to have agreed as being 20% of the payment for the performances which we have not yet executed. We reserve the right to furnish proof that the achieved savings are less than 20%.
XIII. Safeguarding the Reservation of Title
(1) We reserve the title in the purchased item until such time as we are in receipt of all payments due on the basis of the business relationship. In the case of the ordering party acting in infringement of the contract, especially with regard to payment defaults, we are entitled to recover the purchased item. The recovery of the purchased item by us is not deemed to be a repudiation of the contract, the exception being if we expressly declare this in writing. An inspection of the purchased item by us is always deemed to be a repudiation of the contract. We are entitled to use the purchased item after its recovery, the earnings from the utilisation being set off against the ordering party’s payment obligations – after deduction of reasonable utilisation costs.
(2) The ordering party has a duty to handle the purchased item with care; he especially has a duty to insure it at its original value against fire damage, water damage and theft at his expense. If maintenance and inspection work should be necessary, the ordering party must have this carried out in time at his expense.
(3) The ordering party is to provide us with immediate written notification of a levy of execution or other interferences by third parties, so that we can file a suit pursuant to section 771 ZPO (German code of civil procedure). If the third party be unable to reimburse us with the court or out of court costs incurred for the filing of a suit pursuant to section 771 ZPO, the ordering party is to reimburse us for the resulting loss.
(4) The ordering party is entitled to sell the purchased item in the customary course of business; he however already assigns all claims in the amount of the final invoiced amount (including VAT) to which he is entitled from his purchaser or third party to us, irrespective of whether the purchased item has been sold to his customer without having been processed or not. The ordering party is still entitled to recover the payment claim even after assignment. Our authority to recover the payment ourselves remains unaffected by this. We have a duty however to not recovering the payment claim as long as the ordering party meets his payment obligations from the proceeds of the sale, is not in default of payment and it is especially the case that no application is made for the commencement of bankruptcy, composition or insolvency proceedings or the making of payments is interrupted. Should this be the case however, we can demand that the possessor informs us of the assigned claims and their debtors, provides all of the information which is necessary for the recovery and the debtors (third party) is informed of the assignment.
(5) The processing or conversion of the purchased item is always executed for us. If the purchased item is processed together with objects which are not our property, we acquire the co-ownership in the new item in the ratio of the value of the purchased item (final invoiced amount including VAT) to the other processed items at the time of processing. The item which results from the processing is subject to the same conditions as the purchased item which was delivered subject to our reservation of title.
(6) If the purchased item is inseparably mixed with other objects which do not belong to us, we acquire co-ownership in the new item in the ratio of the value of the purchased item (final invoiced amount including VAT) to the other mixed items at the time of mixing, If the mixing takes place in such a way that the item belonging to the ordering party is seen as being the main item, it is agreed that the ordering party assigns proportional co-ownership to us. The ordering party takes the resulting sole ownership or co-ownership into safekeeping for us.
(7) In order to secure our claims against him, the ordering party assigns us his claims which he has against a third party as a result of the connecting of the purchased item to a piece of land.
(8) Upon demand of the ordering party, we obligate ourselves to releasing the securities to which we are entitled to the extent to which the realisable value of our securities exceed the claims which are to be secured by 10%; we are entitled to choose the securities which are to be released.
XIV. Jurisdictional Venue – Place of Performance
(1) Our legal domicile is the jurisdictional venue in as far as the ordering party is a businessman; we are however entitled to file a suit against the ordering party at his place of abode.
(2) The law of the Federal Republic of Germany has validity; the validity of the UN law on sales is excluded.
(3) Should nothing to the contrary be stipulated in the order confirmation, our legal domicile is the place of performance.