GENERAL TERMS AND CONDITIONS FOR DELIVERIES AND WORK SERVICES (AS OF AUGUST 2017)

General 1.1 The following conditions apply to all our consultations, offers, sales, deliveries, and services, as well as to all current and future legal relationships between us and our customer. We expressly object to any purchasing conditions of our customer that contradict our conditions or the statutory provisions, whether in whole or in part. They shall not become part of the contract, even if we execute the delivery or work performance with knowledge of conflicting conditions. If our conditions were not communicated to our customer with the offer or were not provided to them on another occasion, they shall still apply if the customer knew or should have known them from a previous business relationship.

1.2 In addition, German law exclusively applies to the contractual relationships. The application of the UN Convention on Contracts for the International Sale of Goods is excluded. For works contracts, the Contracting Regulations for Building Works (VOB), Parts B and C, in the version valid at the time of the offer, also form part of the contract.

1.3 There are no verbal collateral agreements. Agreements deviating from these conditions in individual cases, especially with our agents, are only binding if confirmed in writing by us.

1.4 Our offers are always non-binding. Contracts, including those at trade fairs or through our agents, are concluded only upon receipt of our written order confirmation by our customer.

1.5 The nature of the subject matter of the contract is described exclusively in our offers, order confirmations, and related documents without constituting a guarantee within the meaning of § 443 of the German Civil Code (BGB).

1.6 Any packaging will be charged at cost price and will only be taken back at the respective plant or delivery warehouse, if required by the contract or prescribed by statutory regulations. The customer bears the cost of transport to the return point.

1.7 Loan packaging will be charged at daily rates if not returned freight-free to us within 21 days of receipt of the contract subject matter by our customer.

Prices 2.1 Our prices for deliveries apply, unless expressly agreed otherwise, ex works, free truck/wagon loaded, excluding value-added tax and packaging.

2.2 If there are changes to the basis of calculation after the conclusion of the contract due to higher labor and material costs, an increase in value-added tax, or other circumstances, especially technically justified calculation changes, we are entitled to increase the contract price in proportion to the change in the basis of calculation. This also applies to call-off orders. This does not apply if our customer is a consumer according to § 13 BGB and our delivery is made within 4 months of contract conclusion.

Deliveries and Delivery Times 3.1 Delays are not our responsibility if our customer fails to fulfill its obligations, especially if it has to obtain official approvals, execution plans, documentation specifying the subject matter of the contract, clarification of all technical details, and make payments in a timely manner.

3.2 If there are indications after the conclusion of the contract that the performance capability of our customer is jeopardized, such as default and suspension of payments, application for the opening of insolvency proceedings, transfer of security of circulating assets, unfavorable information from banks or credit institutions or credit insurers, we are entitled to refuse our performance and, after setting a fruitless deadline for the provision of security in the form of self-executing bank guarantees or bank guarantees or advance payment, to withdraw from the contract and/or demand compensation. A deadline is not required if the endangerment of the performance capability of our customer is obvious.

3.3 Our confirmed delivery dates are non-binding dispatch dates. In the case of divisible deliveries, we are entitled to partial deliveries and, with appropriate prior notice, to early delivery.

3.4 For call-off orders, a reasonable delivery period is agreed, which must not be less than 6 weeks after call-off. If manufacturing and acceptance dates are not agreed, we can demand a binding determination no later than 3 months after order confirmation. If our customer does not comply with this request within 3 weeks after dispatch of our corresponding letter, we are entitled to set a 2-week grace period and, after its fruitless expiry, to demand compensation for damages and/or withdraw from the unfulfilled part of the contract. The same applies if, after the expiry of the delivery period, the subject matter of the contract or parts thereof have not been acquired or delivered due to the fault of our customer.

3.5 Insofar as circumstances beyond our control make it difficult, delay, or impossible to execute accepted orders, we are entitled to postpone delivery or partial delivery by the duration of the hindrance or to withdraw from the contract in whole or in part, without the customer being entitled to compensation. We are not responsible for, for example, government interventions, operational disruptions, strikes, lockouts, labor disruptions due to political or economic conditions, shortage of necessary raw and operating materials, material scarcity, energy supply difficulties, transport delays due to traffic disruptions or unavoidable events occurring at our premises, our subcontractors, or in external companies on which the maintenance of our own operations depends. The above also applies if these events occur at a time when we are in default.

3.6 Our customer can only set a grace period for delivery after the agreed delivery date has been exceeded by more than 2 weeks. This grace period must be reasonable and must be at least 3 weeks. If the grace period expires fruitlessly, our customer can withdraw from the contract. A claim for damages against us due to breach of duty is excluded, unless we have acted at least with gross negligence or there is personal injury.

3.7 For works contracts, the agreement "delivery free construction site" includes transport. If necessary, our customer is obliged to provide suitable access roads or streets for transport. Loading times exceeding 1.5 hours (per vehicle) and, in the event of non-acceptance, the entire costs for return transport and re-delivery are to be borne by our customer.

3.8 For works contracts, the agreement "ready assembled" includes the provision of assembly personnel, lifting equipment, and connecting materials for precast parts, as well as technical processing according to the performance specification. Our customer must provide us with energy and water free of charge and on time, as well as sufficient assembly, storage, and standing areas for cranes, etc. at the construction site. Any underground pipes, channels, etc., must be provided by our customer with precise heights and axes and protected by him against damage during inspections.

Shipping and Passing of Risk 4.1 The shipment of the subject matter of the contract is carried out by us ex works at the risk of our customer, even if the freight and other costs are at our expense. The subject matter of the contract is insured against transport damage by us only at the express written instruction and at the expense of our customer.

4.2 If pickup is agreed and this does not take place within 8 days after the agreed date, we will ship by means of the most cost-effective shipping method at the expense of our customer.

4.3 The risk passes to our customer upon delivery of the subject matter of the contract to our customer, the first carrier, or forwarder. This also applies to individual partial deliveries and if we have assumed the shipping costs.

4.4 If the dispatch is delayed at the request of our customer or if there is a default of acceptance, the risk passes upon notification of readiness for dispatch. The storage of the subject matter of the contract then takes place at the expense and risk of our customer. In this case, we charge storage costs of 0.1% of the invoice amount of the delayed delivery for each month commenced.

4.5 The above regulations also apply to the delivery of replacement parts or warranty deliveries.

Warranty 5.1 We guarantee that the subject matter of the contract is free from material defects and defects of title at the time of passage of risk and that it has the contractually agreed properties. The warranty period is 12 months from the passage of risk, unless otherwise agreed in individual cases.

5.2 Warranty claims of our customer presuppose that they have properly fulfilled their obligations to inspect and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).

5.3 Warranty claims expire 12 months after the passage of risk, unless we have fraudulently concealed a defect. Our liability is limited to subsequent performance. If the subsequent performance fails twice, our customer can, at their discretion, demand a reduction in price or withdraw from the contract.

5.4 If our customer fails to comply with our request for supplementary performance within a reasonable period, we are released from the warranty obligation.

5.5 We bear the expenses required for the purpose of supplementary performance, in particular transport, travel, labor, and material costs, provided that these are not increased by the fact that the subject matter of the contract has been transported to a place other than the place of performance.

5.6 If the subject matter of the contract is defective, we may choose to remedy the defect or deliver a defect-free item (subsequent performance). If the subsequent performance fails, our customer can, at their discretion, demand a reduction in price (reduction) or withdraw from the contract.

5.7 Damage claims due to defects are excluded unless we have acted with intent or gross negligence. This does not apply to damage resulting from injury to life, limb, or health, breach of cardinal obligations (i.e., obligations whose fulfillment is essential for the proper execution of the contract and on the observance of which our customer regularly trusts and may trust) as well as liability under the Product Liability Act.

5.8 Warranty claims of our customer exist only against us and are not assignable.

5.9 No warranty is provided for parts or services provided free of charge.

5.10 We assume no liability for damage caused by incorrect assembly or commissioning by our customer or third parties, improper use, handling, or storage, natural wear and tear, incorrect or negligent treatment, nor for damage caused by the use of unsuitable operating materials or replacement materials.

5.11 No warranty is given for repairs, maintenance, and other work performed on the subject matter of the contract by third parties not authorized by us. This also applies to replacement parts.

5.12 The warranty does not cover normal wear and tear.

5.13 The warranty does not cover slight deviations from the agreed quality, insignificant impairment of usability, natural wear, damage caused by incorrect or negligent handling, assembly or commissioning by our customer or third parties, unsuitable operating materials, or due to special external influences not provided for in the contract.

Liability 6.1 We are liable for damages under statutory provisions insofar as our customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, liability for damages is limited to foreseeable, typically occurring damage.

6.2 Liability for injury to life, limb, or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.

6.3 Liability for breach of cardinal obligations (i.e., obligations whose fulfillment is essential for the proper execution of the contract and on the observance of which our customer regularly trusts and may trust) as well as liability under the Product Liability Act remains unaffected.

6.4 Liability for damages resulting from defects in the subject matter of the contract is regulated in accordance with the provisions on warranty.

6.5 We are liable for damages caused by our vicarious agents or other third parties employed by us for the performance of our obligations in the same way as for our own faults.

6.6 Any further liability for damages is excluded, irrespective of the legal nature of the claim asserted. This applies, in particular, to claims for damages arising from culpa in contrahendo, other breaches of duty, or tortious claims for damages for property damage pursuant to § 823 BGB.

6.7 To the extent that our liability for damages is excluded or limited, this also applies with regard to the personal liability for damages of our employees, workers, staff, representatives, and vicarious agents.

6.8 The above provisions also apply to compensation for futile expenses.

6.9 Claims for damages against us are time-barred after the expiry of the statutory limitation periods.

6.10 We are not liable for the breach of intellectual property rights, unless we have acted with intent or gross negligence.

Reservation of Title 7.1 We reserve title to the subject matter of the contract until all payments arising from the business relationship with our customer, including ancillary claims, claims for damages, and redemption of checks and bills of exchange, have been made. This also applies to future and conditional claims. If payment is made by check or bill of exchange, the reservation of title does not expire until the bill of exchange has been honored. The retention of title also remains valid if individual claims are included in a current invoice and the balance is drawn and recognized.

7.2 If our customer acts in breach of the contract, especially in the event of default in payment, we are entitled to take back the subject matter of the contract after a reminder and to charge our customer the costs of the reminder and return shipment. The taking back of the subject matter of the contract by us does not constitute a withdrawal from the contract, unless we have expressly declared this in writing.

7.3 Our customer is entitled to resell the subject matter of the contract in the normal course of business, provided that they are not in default and have not suspended payments. Our customer assigns to us at this point, by way of security, all claims arising from the resale, including all ancillary rights, irrespective of whether the subject matter of the contract is resold without or after processing or connection with goods belonging to third parties, and irrespective of whether the subject matter of the contract is resold to one or more customers. Our customer is entitled to collect the assigned claims even after assignment. Our authority to collect the claims ourselves remains unaffected by this. However, we undertake not to collect the claims as long as our customer meets their payment obligations from the proceeds received, is not in default, and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended. If this is the case, we can demand that our customer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and inform the debtors (third parties) of the assignment. If the value of the existing securities exceeds the claims to be secured by more than 10%, we are obliged to release securities of our choice at the request of our customer.

7.4 Processing or transformation of the subject matter of the contract by our customer is always carried out for us. If the subject matter of the contract is processed with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the subject matter of the contract is processed with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the subject matter of the contract to the other processed items at the time of processing. The same applies if the subject matter of the contract is mixed with other items not belonging to us.

7.5 If the subject matter of the contract is inseparably mixed with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the subject matter of the contract to the other mixed items at the time of mixing. If the mixing takes place in such a way that our customer's item is to be regarded as the main item, it is deemed agreed that our customer transfers proportional co-ownership to us. Our customer holds sole or co-ownership for us.

7.6 Our customer also assigns to us the claims to secure our claims against them, which arise against a third party through the combination of the subject matter of the contract with a property.

7.7 We undertake to release the securities to which we are entitled at the request of our customer to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%. The selection of the securities to be released is incumbent upon us.

7.8 We are obliged to release the securities to which we are entitled at the request of our customer if their realizable value exceeds the claims to be secured by more than 10%. The selection of the securities to be released is incumbent upon us.

Place of Jurisdiction and Place of Performance 8.1 The place of performance for all obligations arising from the contractual relationship is our registered office, unless otherwise stated in the order confirmation.

8.2 If the customer is a merchant, a legal entity under public law, or a special fund under public law, the place of jurisdiction for all disputes arising from the contractual relationship, including bills of exchange and check disputes, is our registered office. However, we are also entitled to sue our customer at their general place of jurisdiction.

8.3 The law of the Federal Republic of Germany applies to all legal relationships between us and our customer to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

Final Provisions 9.1 Should individual provisions of the contract with the customer, including these General Terms and Conditions, be or become wholly or partially invalid, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision that comes as close as possible to the intended economic purpose of the invalid provision.

9.2 Changes or additions to the contract or these General Terms and Conditions must be made in writing. This also applies to a change to this written form requirement.

9.3 The rights of the customer arising from the contractual relationship with us may not be assigned without our consent.

9.4 Unless otherwise agreed, the place of performance for all obligations arising from the contractual relationship is our registered office.

9.5 If the customer is a merchant, a legal entity under public law, or a special fund under public law, the place of jurisdiction for all disputes arising from the contractual relationship, including bills of exchange and check disputes, is our registered office. However, we are also entitled to sue our customer at their general place of jurisdiction.

9.6 The law of the Federal Republic of Germany applies to all legal relationships between us and our customer to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
 

9.7 Information about the processing of personal data by us can be found in our data protection declaration, which is available at [website]. Our customers consent to the processing of their data as described therein.

9.8 We reserve the right to amend these General Terms and Conditions at any time. We will inform our customers of changes in text form. The changes become effective if the customer does not object to their validity within six weeks of receipt of the notification. We will inform the customer separately about the consequences of their behavior during the objection period. If the customer objects in due time, the old version of the General Terms and Conditions will continue to apply.

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