General terms and conditions of business.
Section 1 General - Scope
(1) Our terms of sale apply exclusively. We do not acknowledge adverse conditions or a customer's sales terms if they deviate from ours unless we have approved their validity in writing. Our terms of sale also apply if we execute a customer's order without reservation while being aware of adverse conditions or a customer's sales terms deviating from ours.
(2) Any and all agreements between us and the customer regarding the fulfilment of the contract are defined in writing in writing in this contract. The product information in the individual catalogues also applies.
(3) Our terms of sale apply only to companies in accordance with Section 310 (1) of the German Civil Code [BGB].
Section 2 Quotation - Quotation documents
(1) If the order is to be considered a quotation according to Section 145 BGB, we can accept it within two weeks by means of a written order confirmation.
(2) The minimum order value is € 30.00. A surcharge of €16.00 will be levied on small orders with a value of less than €100.00.
(3) For plaster and façade profiles, we charge a surcharge of 15% for fixed lengths and a surcharge of 20% for short lengths. For orders of less than a standard package (plaster, façade, concrete joint and screed profiles), a packaging surcharge of €10.00 will be levied on each package that has to be opened. A colour surcharge of 30% is payable for plastic profiles in custom colours (minimum order quantity 100 kg).
(4) Dry wall profiles are always delivered in full packaging units - PU - only (e.g. package, carton).
(5) Images and drawings as well as information about weights, quantities or dimensions are generally approximate values unless labelled as binding in individual cases.
(6) We reserve property rights and copyrights for images, drawings, calculations and other documents. This applies equally to documents received in writing that are labelled "confidential". The customer must obtain our written permission before distribution to third parties.
(7) Models and tools manufactured by order of the customer remain our property even if the customer has paid for them in part or in full.
Section 3 Prices - Payment terms
(1) Unless indicated differently in the order confirmation, our prices are "ex works".
(2) Our prices do not include value added tax. The rate of value added tax that is applicable at the time of billing will be indicated as a separate item on the invoice.
(3) Unless indicated differently in the order confirmation, the purchase price is due net (without deduction) within 30 days from the date of invoice. A 2% discount may be deducted from payments made within 14 days. Statutory regulations governing the consequences of late payment apply.
(4) Customer are only entitled to offset if their counterclaim has been legally established, is undisputed, or has been acknowledged by us. They are, furthermore, only entitled to exercise a right of retention insofar as the counterclaim is based on the same contractual relationship.
Section 4 Delivery time
(1) Delivery times indicated by us are based on the assumption that all technical questions have been clarified in advanced and may be exceeded by up to two weeks (or up to three weeks for custom orders) unless a fixed date has been explicitly agreed.
(2) Compliance with our delivery obligation is conditional upon the in-time and due and proper fulfilment of the customer's obligations. We reserve the right to defend against non-fulfilment.
(3) If the customer is in default of acceptance or if he negligently violates other duties of cooperation, we are authorised to claim the damage incurred by us, including possible additional expenses. We reserve the right to additional claims.
(4) If the requirements stated in paragraph (3) are fulfilled, the risk of accidental loss or deterioration of the delivery items passes to the customer at the point in time at which the customer falls into default of acceptance or debtor's delay.
(5) According to the requirements of law, we are liable to the extent that the underlying purchase agreement is a firm deal in the sense of Section 286 (2) (4) BGB or Section 376 of the German Commercial Code [HGB]. We are also liable under statutory provisions if, as a consequence of any delay in delivery for which we are responsible, the customer is entitled to assert the right that his interest in the continued fulfilment of the contract has ended.
(6) We are furthermore liable under statutory provisions, provided the delay in delivery is due to a wilful or grossly negligent contractual infringement for which we are responsible; fault on the part of our representatives or subcontractors is attributable to us. Provided that the breach of supply agreement is not based upon an intentional breach of contract for which we are to blame, our liability to make good damages is limited to the foreseeable damages typical for this type of contract.
(7) We are also liable under statutory provisions if the delay in delivery for which we are responsible is due to the culpable infringement of a fundamental contractual obligation; in this case, liability for damages is, however, limited to the foreseeable, typically occurring loss.
(8) Moreover, we are liable in the event of a default in delivery for default damages expressed as a lump sum of 2% for each full week of default but not to exceed 10% of the value of the goods.
(9) Further statutory claims and rights on the part of the customer are reserved.
Section 5 Transfer of risk - Packaging costs
(1) Unless indicated differently in the order confirmation, delivery is "ex works".
(2) Transport packing and all other packaging as covered by the German Packing Ordinance is non-returnable, with the exception of pallets. Customers are responsible for disposing of packaging at their own expense. We offer the option of free disposal through our partnership with INTERSEROH GmbH (contract no. 25608).
(3) Subject to customer agreement, we will provide transport insurance for the shipment at the expense of the customer. We accept no liability for any printing errors or other changes.
Subject to technical changes.
Section 6 Responsibility for defects
(1) Any claims for defects raised by the customer presuppose that they have properly fulfilled his duties to investigate and to raise a complaint set forth in Section 377 HGB.
(2) To the extent that the purchased items are defective, the customer can opt for subsequent performance in the form of remedy of the defect or delivery of a new non-defective product. In the event of remedy, we must bear all the necessary costs for the rectification, in particular transport, labour and material costs, provided that such costs are not increased by the additional cost of taking the object of sale to a location other than the place of performance.
(3) If subsequent fulfilment fails, the customer may opt to decrease the remuneration or withdraw from the contract.
(4) We are liable under the relevant statutory provisions insofar as the customer asserts claims for damages arising from intent or gross negligence, including intent or gross negligence on the part of our representatives or subcontractors. Provided that we are not accused of wilful breach of contract, our liability for damages is restricted to foreseeable, typically occurring damages.
(5) We are liable under the relevant statutory regulations insofar as we culpably violate a major contractual obligation; in this case, however, the liability for damages is likewise limited to the predictable, typically occurring damages.
(6) Liability for culpable harm to life, the human body, or health remains unaffected; this applies also to the liability mandated under German Product Liability Law.
(7) In the absence of any provisions to the contrary above, liability is excluded.
(8) Liability is furthermore excluded for failure to observe the installation and fitting instructions in the product catalogues.
(9) The warranty period for defect claims is 12 months from the date of the transfer of risk unless the product information indicates a longer warranty period.
(10) The aforementioned is without prejudice to the limitation period in case of delivery regress according to Sections 478, 479 BGB, which is five years from delivery of the defective item.
Section 7 Joint liability
(1) Liability for damages extending beyond Section 6 is excluded - irrespective of the legal nature of the asserted claim. This applies in particular to compensation claims for damages based on fault when entering into the contract, on account of other breaches of duty or on account of tortious compensation claims for property damage in accordance with Section 823 BGB.
(2) To the extent that liability for damages against us is excluded or restricted, the same applies in regard to the personal liability of our employees, salaried workers, associates, representatives and subcontractors.
Section 8 Reserved ownership rights
(1) We reserve title to the goods pending full settlement of all claims arising from the business relationship with the customer. In the event of any breach of contract by the customer, in particular any delay in payment, we are entitled to take back the item of sale. The cancellation of a purchased item by us does not constitute withdrawal from the contract, unless expressly stated in writing. The seizure of the item of sale by us always constitutes a withdrawal from the contract. After return of the item of sale, we are entitled to its utilisation; the utilisation proceeds will be offset against the accounts payable by the customer – minus reasonable utilisation costs. An extended retention of title does not apply to deliveries against advance payment.
(2) In the case of seizures or any other intervention of third parties, the customer must immediately notify us in writing to enable us to file a suit in accordance with Section 771 of the German Code of Civil Procedure [ZPO]. If the third party is not in the position to reimburse us for any court and out-of-court costs incurred for the legal proceedings pursuant to Section 771 ZPO, the customer will be liable for any loss incurred by us.
(3) The customer is entitled to resell the object sold in the ordinary course of business. In doing so, they must notify the third party of our reservation of title. The customer hereby surrenders all claims to us in the amount of the recognised balance (including value added tax) of our claims that they have accrued from the resale to his purchaser or third party. The customer remains authorised to collect this claim even after surrender. The aforementioned is without prejudice to our right to collect the claim ourselves. However, we undertake to not collect the claim as long as the customer fulfils their payment obligations from the revenues received, is not in default for payment and, in particular, no application for the initiation of insolvency proceedings has been submitted and payments have not been suspended. However, in such cases, we are entitled to demand that the customer notifies us of the assigned claims and the respective liable parties, provides us with all information necessary to collect the claim and submits to us all appropriate documents and notifies the liable parties (third parties) of the assignment.
(4) Any processing or restructuring of the goods by the customer is always performed on our behalf. If the object of sale is joined inseparably to other objects that do not belong to us, we acquire a share in the ownership of the new object in the proportion of the objective value of our object of sale (total invoice amount including VAT) to the other connected objects at the time of the processing. Apart from the above, the same provisions apply to the item created through processing as to the item of sale delivered with reservation.
(5) We undertake to release the collateral due to us upon request of the customer to such an extent as the recoverable value of our collateral exceeds the claims to be secured by more than 20%; we are at liberty to choose which collateral to release.
Section 9 Prohibition of assignment
Customers may not assign their claims against us.
Section 10 Jurisdiction - Place of fulfilment
(1) Insofar as the supplier is a merchant, the place of jurisdiction is our registered office; we are, however, entitled to bring proceedings against the customer before their own court.
(2) The law of the Federal Republic of Germany applies; the provisions of UN commercial law are excluded.
(3) Unless otherwise stated in the order confirmation, the place of performance is our registered office.
PROTEKTORWERK Florenz Maisch GmbH & Co. KG
Gaggenau, August 2014