General Terms and Conditions of Sale (AGB's)
1. General information
a) The following terms and conditions of sale shall apply exclusively to our services and deliveries. We do not recognise conditions that contradict or deviate from our general terms and conditions unless we have expressly agreed to their validity in writing. Our General Terms and Conditions of Sale also apply if we deliver to the Customer without reservation, in the full knowledge that the Customer's terms are contrary to or differing from our General Terms and Conditions of Sale.
b) All agreements made between the Buyer and us about the execution of this contract have been outlined in writing in the said contract.
c) Our Conditions of Sale shall only apply to entrepreneurs (§ 14 BGB), legal entities under public law or special funds under public law.
d) Our General Terms and Conditions of Sale shall also apply to all future business transactions with the Buyer.
e) We reserve all intellectual property- and copyrights inherent in images, drawings, calculations and other documentation. This also applies to those written documents that are designated as “confidential”. They may not be passed on to third parties without our express written consent.
2. Order confirmation and cancellation
a) We shall make all orders received contingent upon complete technical and commercial clarification.
b) Until we have confirmed an order with a written order confirmation, all quotes submitted by us shall be subject to change. Upon receipt and acceptance of an order, production is initiated at the same time to facilitate the fastest possible delivery. Thus a change or cancellation is excluded. Retroactive change requests are therefore possible only subject to reimbursement of any costs already incurred at the time of the change request.
c) The brochures, promotional literature, catalogues, illustrations, price lists etc. relating to our goods and services and the data contained therein are non-binding unless we have expressly designated them as binding. Minor changes in design, form and execution due to technical progress do not entitle the customer to make complaints or to withdraw from the contract.
d) In the event that the Buyer should rescind from the contract for reasons we are not responsible for, or if the Buyer refrains from contractual commitments in any other way, we shall have the right to demand 40 % of the contract value as compensation for lost profits and for costs incurred, unless the Buyer can render proof that no damages or significantly lower damages were incurred. This shall be without prejudice to our right to charge the concrete amount of damages incurred.
a) If not otherwise stated in the order confirmation, our prices are valid ex-works. The prices are for uninterrupted processing within production and completed delivery of the entire order. The customer initiated
division of orders causes additional costs, which are charged to the customer.
b) If no fixed prices have been agreed, the calculation shall be made at the prices valid on the day of delivery. We reserve the
right to change our prices accordingly if, after the conclusion of the contract, costs are reduced or increased,
in particular, due to collective wage agreements or changes in material prices. We will provide the customer with proof of these, upon request.
c) Our prices do not include statutory value-added tax (VAT); this will be shown as a separate item on the invoice at the statutory rate, on the invoice date.
d) In the event that a buyer from a foreign jurisdiction within the intra-European market should fail to meet his/her sales tax obligations, our prices shall be increased by the respective sales tax amount in effect in the Federal Republic of Germany (VAT) at the time.
a) Our invoices are generally payable net when the goods are handed over. If, however, an examination of the creditworthiness of the customer carried out by us turns out to be negative, the purchase price shall be paid in full to us, prior to the start of production.
b) The deduction of a cash discount shall be subject to a prior specific written agreement.
c) All payments shall be made directly to us only. If costs and interest have already accrued, the payment will first be credited against the costs, then against the interest and finally against the primary obligation. Bank drafts, checks or other payment instruments shall be accepted only instead of cash payment. Discount- and bank draft fees, as well as any other costs charged by our bank, shall be charged to the Buyer.
d) Only persons with our written authority to collect shall be authorised to receive payments.
e) If the customer is in default of payment, we shall be entitled to charge default interest at a rate of 10% APR above the respective base interest rate. If we are in the position to prove higher damages caused by default, we are entitled to obtain those damages.
f) In the event of Buyer’s payment default, all other receivables owed to us by the Buyer from all legal transactions shall be rendered due for immediate payment, even if we have accepted checks or bank drafts for same. This shall also apply if the Buyer is only in default of payment of partial receivables.
g) The customer shall only be entitled to set-off if his/her counter-claims have been legally established, are undisputed or
if we acknowledge them. Otherwise, he//she shall not be entitled to refuse performance or to exercise a right of retention.
5. Packaging/delivery/transfer of risk
a) Packaging shall be carried out in accordance with professional and customary trade criteria. Special packaging and replacement packaging, e.g. for repair items delivered unpacked, shall be charged at cost price. For certain items sensitive to transportation, we will charge for special packaging. We shall not accept Transportation- and all other packaging provided in compliance with the Packaging Directive for return.
b) In the event that the Buyer should explicitly request a special mode of shipping, we shall bill all related additional costs.
c) Unless otherwise stipulated in the order confirmation, ex-factory delivery shall be deemed to have been agreed upon. Shipment shall occur with freight due at the destination unless otherwise agreed upon in writing.
d) The risk of accidental loss or accidental decline of the condition of the goods ordered from us shall transfer to the Buyer once the goods have been loaded at our end, even if we absorb the transportation costs or even if transportation is being handled by one of our vehicles. We are prepared to take out transport insurance at the customer's request and his expense.
e) The unloading of the goods is the responsibility of the customer. He//she must unload the goods immediately upon arrival. Excessively long unloading and waiting times lead to additional costs which are to be reimbursed by the customer. If transport damage or transport losses are apparent, the customer must take a protocol of these, together with the driver. If the transportation damages are substantial, the Buyer shall notify us immediately and if necessary involve an insurance adjuster for the assessment of the damages.
f) If we deliver free to the construction site, the customer must ensure unhindered access for our lorries. If in individual cases, there is no direct access to a construction site, we will make the goods available at the location closest to the construction site that can be accessed by lorries.
g) We may make an invoice partial deliveries if this is reasonable for the customer.
6. Delivery Deadlines
a) We provide information on delivery times, delivery deadlines and other due dates based on our best knowledge. Based on the usual production process, they represent approximate estimates. Force majeure, strikes, operational disruptions and similar inability on our part through no fault of our own or delayed delivery to ourselves shall extend the delivery periods by the duration of the hindrance.
b) The effective time frame for any delivery time quoted by us shall be contingent upon the clarification of all technical issues.
c) The observance of our delivery obligation further presupposes the timely and proper fulfilment of the obligations or duties of the customer. We reserve the right to refuse//suspend performance of the unfulfilled Contract. In particular, we shall have the right to withhold shipments if the Buyer is in default of payment for an earlier delivery, and we shall not be liable for compensation of any damages incurred as a result of such action.
d) In the event that the Buyer should be in default of acceptance, or, if Buyer should culpably breach any other participation obligations, we shall have the right to demand reimbursement for any damages we have incurred as a result, including any added expenses. The right to make further claims is reserved.
e) As far as the requirements of Section (3) above are met, the risk of accidental loss or damage to the purchase is carried by the purchaser from the time he is in default of delivery or
f) In the event that the Buyer should refuse acceptance of goods, which we are also installing or for which we are supposed to render any other works, without justification, the works shall be deemed accepted at the time such an unjustified refusal of acceptance is announced.
g) We are liable in accordance with legal regulations if the underlying contract of sale is a firm deal in the sense of § 286 Section 2 No. 4 BGB or of § 376 HGB. We are also liable according to the provisions of law as far as the consequence of any delay in delivery for which we are responsible results in the purchaser having the right to claim discontinuation of interest in the further fulfilment
of the contract.
h). We are further liable in accordance with the statutory provisions so far as the delivery delay is due to an intentional or grossly negligent breach of contract for which we are responsible; culpability on the part of our representatives or vicarious agents is to be considered our culpability. If the default in delivery does not arise from a wilful breach of contract for which we are responsible, our liability is limited to the foreseeable or typical damages.
i) We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is due to the culpable
breach of an important contractual obligation; „important“ is an obligation, which makes the orderly execution
of the contract possible, to begin with, and on which the contractual partner may ordinarily rely to be fulfilled by us. In the event of such breaches of duty, our liability for damages shall be limited to the foreseeable, typically occurring damage.
j) Incidentally, in the event of late delivery, we shall assume liability at our discretion for each completed week of delay only within the scope of lump sum late payment reimbursements in an amount of 0.5 % of the value of the goods delivered not to exceed a maximum of 5 % of the value of the goods delivered.
7. Retention of Title
a) We shall retain the title on all goods sold until full payment of all present and future claims under the present purchase agreement and all ongoing business transactions (secured claims).
b) The goods subject to retention of title may not be pledged to third parties or assigned as collateral until the secured claims have been paid in full. The customer shall notify us immediately, in writing, if an application for the opening of insolvency proceedings is filed or if third parties seize the goods belonging to us, or the claims assigned to us (e.g. seizures). The customer must support us in every way in intervening against access by third parties. The customer shall bear the costs arising from this. As far as any third party is unable to reimburse the judicial and extra-judicial costs, the Customer shall be liable for any losses arising from that.
c) In the case of breach of contract by the Customer, especially in the case of default in payment, we are entitled to take back the goods. Any repossession of the purchased item constitutes our withdrawal from the contract. In this case, the customer is obliged to grant us access to the reserved goods still in his possession, to send us an exact list of the goods, to separate the goods and to hand them over to us. We are entitled to dispose of the goods after their return, the proceeds of sale shall be deducted from the customer's liabilities - minus reasonable realisation costs.
d) The Buyer is authorised, until further notice pursuant to (cc) below, to sell the goods subject to retention of title or process them further in the ordinary course of business. In this case, the following provisions shall apply in addition. (aa) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed the manufacturer. If, in the case of processing, mixing or connection with goods of third parties, their ownership rights exist, we acquire co-ownership in the ratio of the invoice values of the processed, mixed or connected goods. In all other cases, the same shall apply to the resulting product as to the goods delivered subject to
retention of title. If the mixing is done in a way that makes the customer’s object the main purpose of the new object, it is hereby agreed that the customer makes us co-owners proportionally. The customer is in possession of the thus evolved sole- or co-ownership on our behalf. In the event that our title retention goods should become a considerable component of real estate property, the Buyer shall assign to us as collateral the receivable that is created as a result of the combination of the title retention goods with the real estate property
of a third party. (b) Already at this time, the Customer hereby assigns to us, by way of security, any claims against third parties from the resale of goods or products in full and to the extent of any joint ownership in accordance with the preceding paragraph. We hereby accept this assignment. In the event that the customer's claims from the resale are included in a current account, the customer hereby also assigns to us his claims from the current account vis-à-vis his/her customer. The assignment shall be made in the amount we have charged him//her for the resold reserved goods. The obligations of the customer stated in Section b) shall also apply with regard to the assigned claims. (cc) The purchaser remains authorised to collect the claim alongside us. We undertake not to collect the claim, as long as the buyer meets his/her payment obligations to us, there is no defect in his/her performance, and we do not exercise the retention of title by exercising a right in accordance with Section c). If this is the case, we can demand that the buyer 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. In this case, we shall additionally be entitled to revoke the purchaser's authority to sell further and process the goods subject to retention of title. (dd) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the buyer's request.
8. Warranty and Scope of Liability
a) Warranty rights of the purchaser are subject to the condition that the purchaser has fulfilled, in accordance with §§ 377, 381 Sec. 2 HGB (German Commercial Code), his/her obligation to inspection and reprimand.
b) In the event that a deficiency occurred that we are responsible for, we shall have the right to perform remedial action at our discretion, by eliminating the deficiency or to deliver a new object that is free of deficiencies. The supplementary performance does not include the removal of the defective item or the re-installation if we were originally not obliged to install.
c) In the event that the performance of remedial action should fail, the Buyer shall, at Buyer’s discretion, have the right to demand cancellation or price reduction.
d) We shall assume liability pursuant to the statutory provisions provided the Buyer makes claims for damage compensation that is based on acts of willful intent or gross neglect, including acts of intent or gross neglect committed by our representatives or agents. In case we are not being accused of intentional breach of contract, our liability for damages shall be limited to the foreseeable damages that typically occur.
e) We shall also be liable, in accordance with the statutory provisions, if we culpably violate an essential contractual obligation; "essential" shall be an obligation the fulfilment of which is essential for the proper execution of the contract, to begin with, and the observance of which the contractual partner may regularly rely on. In the event of such breaches of duty, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(f) For defects affecting the glass, the following shall apply: We are entitled to assign our warranty claims against our suppliers to the customer and thus release ourselves from the warranty obligation. However, our warranty obligations shall revive if the claims against our suppliers cannot be enforced. In the event of justified complaints, we shall deliver a replacement or remedy the defect to the exclusion of any further claims. Production- and material-related phenomena, such as interference formation, double pane effect, multiple reflections, reflection distortion and anisotropies are technically unavoidable and do not constitute defects. The quality of the glass we owe is based in detail on the joint "Guideline for the Assessment of the Visual Quality of Insulated Glass" issued by the Federal Guild Association of Glaziers, Hadamar, and the Federal Association of Flat Glass Wholesalers, Insulated Glass Manufacturers, Refinement e.V., Troisdorf. At the request of the Customer, we shall send him//her this guideline. Existing rights arising from an insulated glass warranty are not affected by these warranty provisions.
g) This liability is without prejudice for a culpable injury to life, limb or health; this also applies for compulsory liability arising from the Product Liability Act.
h) In all other respects, liability is excluded, irrespective of the legal nature of the asserted claim. This is in particular valid for compensation claims due to faults on the occasion of the conclusion of the Contract, due to other violations of duty, or due to tortuous claims for compensation for damage in accordance with § 823 of the German Civil Code (BGB). We are not liable for damages that did not affect the deliverable good itself. Furthermore, we shall not be liable for damages which are exclusively attributable to the Customer's misconduct, such as improper assembly, faulty operation and handling, natural wear and tear or omitted maintenance. With regard to the maintenance measures required at regular intervals for the items supplied by us, we refer to our relevant publications such as
- techn. documents, price lists, maintenance- and care instructions
which are made available to every customer.
i) The limitation under Section (h) also applies if instead of a claim for damages, the client demands compensation for useless expenses, rather than the performance of services.
h) In the event that we have excluded or limited our liability for damages, such exclusions or limitations shall also apply to our employees, workforce, staff, representatives and agents.
k) If claims are raised that are not covered by our warranty obligations, the costs incurred at our end shall be borne by the Buyer
except where the lack of defectiveness was not recognisable to the Buyer.
l) The Buyer shall be prohibited from assigning any receivables owed to the Buyer by us, to any third parties.
9. Company Logo/Resale
a) We have the right to place our company logo on all of our products.
b) Any processing and//or alteration of our products or the applying of special seals by the Buyer that could be identified as the Buyer’s source information or that creates the impression that such products are special products of the Buyer, and which have not been approved by us in advance, shall be prohibited.
c) As far as the distribution of our goods is concerned, the Buyer shall undertake to refrain from any activities that could be considered unfair or illegal within the scope of applicable laws and provisions.
d) Any resale of the goods for direct or indirect shipment to non-EU countries shall be prohibited unless we have given our written advance consent to such sales in exceptional cases.
e) We assume the liability that the sold object as such is free of third-party industrial property rights in the Federal Republic of Germany. If third parties should assert justified claims on the basis of industrial property rights, we shall, at our discretion and our expense, either obtain a licence for the customer or replace the sold item with one that is free of industrial property rights or take it back against the return of the purchase price. All other claims against us shall be excluded.
10. Place of performance - Jurisdiction - Data protection - Miscellaneous
a) The business relationship shall be governed solely by German law, including business transactions that may involve foreign countries; the application of the UN Convention on the International Sale of Goods (CSIG) shall be excluded.
b) If the Buyer is a commercial agent, legal entity of public law, or public law based special entity, the place of jurisdiction shall be the Court competent at our business domicile; however, we shall have the option to file suit against the Buyer also at the Court at the Buyer’s place of residence.
c) Unless otherwise stipulated in the order confirmation, our business domicile shall be the place of fulfilment.
d) The customer acknowledges that we have obtained data from the contractual relationship in accordance with § 28 of the Federal Data Protection Act for
data processing and we reserve the right to transfer the data to third parties (e.g. insurance companies) to the extent necessary for the fulfilment of the contract.
e) If individual clauses of these Terms and Conditions should be rendered ineffective, this shall not affect the effectiveness of the remaining provisions.
General Terms and Conditions of Sale (AGB's)
Status: December 2016 | Errors excepted