General Terms and Conditions DRYWALLTEC GmbH
Our following contract conditions shall apply to all our supplies and services to entrepreneurs (i.e. to any present and future business relations). Any diverging, conflicting, and or supplementary general terms and conditions of the customer shall not become an integral part of the contract, even if acknowledged, unless these terms and conditions are expressly agreed to in writing.
§1 Conclusion of the Contract – Condition of the GoodsOur offers are without engagement and obligation. By placing an order the customer engagingly declares his intention to purchase the goods ordered. The seller shall accept the order within two (2) weeks upon receipt of order by issuing a written order confirmation. Thus, the contract shall come into effect upon receipt of the order confir-mation by the customer.
The customer’s order, our written order confirmation, present General Terms and Conditions of DRYWALLTEC GmbH, the contractual agreements as well as our quotation shall be material to the contents of the contract. No ancillary verbal agreements have been made.
Any declarations on the condition and the durability of the goods by means of which we grant the customer additional rights – irrespective of the customer’s statutory claims – shall only constitute a legal warranty arising from the contractual agreement with the customer, pursuant to section 443 of the German Civil Code, if we expressly identify them as such. All product information contained in our product brochures as well as in any of our promotion materials is for descriptive purposes only and not legally binding; the prices specified in the price lists are subject to change without notice.
§2 Delivery – Passing of RiskOur deliveries shall be effected ex works or ex stock pursuant to the INCOTERMS 2000 unless otherwise agreed. At the customer’s request, we shall dispatch the goods to the customer’s premises or to an alternative location agreed with the customer. The ship-ping costs shall be borne by the customer. Partial deliveries shall be admissible insofar as they are acceptable to the customer.
The risk of accidental loss of and/or damage to the goods shall pass to the customer at the point in time at which we have handed over the goods to a forwarding agent, carri-er, or any other person or institution commissioned to carry out the shipping at the latest, however, when the goods leave our factory or warehouse. In the event the goods are ready for dispatch and shipping is delayed for reasons beyond our control, the risk shall pass to the customer upon receipt of the dispatch advice. This shall also apply if “carriage prepaid” has been agreed. We shall not be obligated to contract transport insurance unless this has been expressly agreed with the customer. In this case the insurance costs shall be borne by the customer.
§3 Delivery Deadlines – Impediments to DeliveryAdherence to the delivery deadlines stipulated can only be required if the latter have been agreed on by the parties hereto as fixed dates, and have also been designated as such. In any event, adherence to delivery dates implies that all documentation to be supplied by the customer, necessary approvals and clearances have been received in good time, especially of plans, as well as adherence to the agreed terms of payment and any other obligations on the part of the customer. In case these requirements are not fulfilled, or only fulfilled in part, or not fulfilled in good time, the delivery deadlines shall be extended in an adequate manner; this shall not apply if the delay is caused by our fault.
Any damage due to acts of God (unforeseen circumstances and incidents beyond our control, which could not have been avoided with the due care of a prudent businessman either, e.g. labour disputes, war, fire, transportation obstacles, shortage of raw materi-als, official sanctions) may, for their duration and within the scope of their impact, suspend our delivery commitment, even if delivery is already delayed.
Inasmuch as we have concluded a congruent hedging transaction with our own suppli-er, the delivery dates specified by us shall be subject to correct and punctual supply to ourselves.
§4 Right of WithdrawalIn the event of acts of God and the conclusion of a congruent hedging transaction in due time, we shall be entitled to withdraw from the contract provided we have informed the customer on the occurrence of the act of God, or on delivery not being made to us in good time, or in proper form, and reimburse the customer without delay for any pay-ments/consideration effected.
§5 Prices and PaymentsOur prices are quoted net, ex works, including packaging, freight, postage, and transport insurance.
Insofar as we have undertaken to render additional services aside from the delivery of the goods, e.g. assembly, installation, connection, functional testing, start-up, trial run and/or training of staff, the customer shall, in addition to the agreed price for the goods, bear all expenses arising for these services, such as and in particular all rele-vant labour costs on a time and material basis at customary hourly rates, travelling expenses (travel and accommodation expenses) as well as costs charged for the trans-portation of tools and personal luggage.
We shall reserve the right to alter our prices accordingly if – after conclusion of the contract – our production costs and shipping charges increase in consequence of cir-cumstances beyond our control (e.g. increases in tariffs, material costs, taxes etc.), and we inform the customer on the particular price increase in good time prior to delivery.
Our invoices are due for payment immediately upon receipt. As a calendrical term for payment pursuant to section 286(2)(1) of the German Civil Code, the parties agree on the obligation to execute payment not later than fourteen (14) days upon receipt of invoice. In the event of the customer’s default of payment, we shall be entitled to receive default interest at a rate of eight (8) percentage points above the base rate. The cus-tomer may only offset payment with undisputed or legally established claims, and thus only assert the right of retention on account of such claims. The assignment of any claim we are entitled to, which does not constitute a monetary claim, shall be subject to our approval to come into force.
§6 Scope of Supplies and Services – Cooperation Obligation during AssemblyOur services shall be based on the contents of the services agreed to. Our sup-plies/services do not include the delivery of programmatic software unless we have expressly agreed to the delivery of the software with the customer. The delivery of the software may either be effected together with the delivery of our goods, or separately. Any enhancements and/or redevelopments of the software supplied shall not be includ-ed in our delivery commitment.
The customer shall ensure that any services and preliminary work to be rendered by him – including the provision of any aids/facilities and assistants agreed on – are carried out in due form and good time, before we provide supplies and services at customer site, or any other location. In case the customer fails to fulfil his cooperation obligation, thus resulting in a delivery delay of our supplies and services, the customer shall be liable to bear the costs caused by the delay as well as any additional travel expenses/labour cost incurred by us/assembly personnel in a reasonable scope. Any assembly and installation costs shall be borne by the customer.
Insofar as we require acceptance in proof of delivery following manufacture, the cus-tomer is required to render this proof within two weeks. The acceptance certificate shall be issued by us. In case the customer fails to effect acceptance within the afore-mentioned two-week period, it shall be deemed to have been carried out. Acceptance shall also be deemed to have been effected if the items have been put into operation upon completion of an agreed trial run, if applicable.
§7 Rights and Duties of the Customer in the Event of DefectsThe customer shall check the goods for defects without delay. The customer shall further advise us without delay of any apparent/noticeable defects, however, not later than within seven (7) working days. The period for examination and notification shall com-mence upon delivery, however, at the latest upon conclusion of a trial run. The custom-er shall advise us without delay of any latent defects immediately upon detection. In the event of the customer’s failure to check the goods and advise of any defects without delay, the customer shall forfeit all rights directly and/or indirectly associated with the defect.
In case the goods are defective, the customer shall initially only be entitled to assert the right to supplementary performance, unless supplementary performance is unaccepta-ble to the customer. The supplier shall have the option between subsequent improve-ment or supplementary performance. The customer shall grant the supplier an ade-quate period to remedy the defect, or else any warranty claims shall be forfeited. Should supplementary performance fail twice, or should it be denied by us, the custom-er shall either be entitled to assert the right to a reasonable reduction in price or to withdrawal. In case our expenses increase in the event of supplementary performance due to the fact that the goods have been brought to a location other than the customer’s principal office, or other than the intended use, particularly as for export transactions, the customer shall compensate us in the amount of the increased expense. Any limita-tions of liability as stipulated in the following paragraphs shall apply to all claims for damages.
In case only part of the goods sold is, or only individual parts of an item sold are defec-tive, any potential right of withdrawal on the part of the customer shall be restricted to the individual defective goods or the defective part only. This shall not apply if the individual defective goods or the defective part cannot be separated from the remaining goods or parts without causing damage or loss of functioning, or if this is unacceptable to the customer. The customer shall explain the reasons for mentioned unacceptability accordingly.
Insofar as we specially manufacture our goods as per the customer’s individual re-quirements, the customer may only terminate the contract for good reason up to the completion of the production of the goods. We shall not assume any responsibility for the correctness of cost estimates this contract bases on. The provisions of section 651 of the German Civil Code shall apply for the rest.
§8 Limitation of Liability – Exclusion of WithdrawalThe user guide/manual provided by us shall be strictly observed by the customer. We shall not assume any legal liability for the failure to adhere to the user guide/manual. Any warranty adjustments shall be denied in case of inappropriate handling and/or insufficient maintenance, i.e. contrary to the instructions provided in the user guide/manual. Warranty adjustments shall further be rejected if repair work and/or adaptations/adjustments are performed by other persons/companies than us, or any of our contractors.
We shall in any event assume unlimited legal liability for any fatal, physical, and/or health-related damage/injury as well as pursuant to the German Integral Product Liability Act irrespective of default. In case of any infringement of integral contractual obligations, we shall in principle be liable without limitation for any damage arising from malicious intent or gross negligence; in the event of slight negligence, our liability shall be restricted to the compensation of predictable, contract coherent damage.
In all other cases, any claims against us for compensation of damage, regardless of legal grounds, shall be excluded unless the provisions of the contract have either been infringed by us, our legal representatives, or our assistants by intent or gross negli-gence. In the event of gross negligence our liability shall be limited to predictable, contract coherent damage. Any rights on the part of the customer to dissolve the con-tract due to contractual infringement beyond our control, and not consisting of a defect in the goods, shall be excluded. To the extent that our liability is excluded or restricted pursuant to the foregoing paragraphs, this shall also apply to the liability of our assis-tants and performing agents.
§9 Retention of TitleAny merchandise delivered by us shall remain our sole property pending the full pay-ment of the purchase price. In case third parties lay claim to the retained goods, the customer shall point out our proprietorship and notify us without any delay. In the event of default of payment on the part of the customer, we shall be entitled to request the return of the retained goods, at the customer’s expense once we have withdrawn from the contract. If the customer is an entrepreneur pursuant to section 14 of the German Civil Code, subsections 5 to 10 shall apply as well. Any merchandise delivered by us shall remain our sole property pending the fulfillment of any claims including future claims and outstanding balance requests resulting from the business relationship. The customer shall not be entitled to pledge any merchandise delivered, or assign it as security, or liquidate it in any kind of way, unless the acquisition has precisely been made for the purpose of resale. In this case the customer shall revocably be entitled to resell the retained goods within the scope of adequate and orderly operations in his own name, as long as he is not in arrears with his payment obligations to us. In the case of processing or integration, we shall acquire co-ownership, whereby our share is determined by the invoice value (our delivery price including VAT, without deduction of any cash discount); insofar as the customer, by act of law, acquires sole proprietorship, he shall proportionately assign to us co-ownership, and keep the merchandise in safe custody for us free of charge. Any processing shall be carried out for us.
By way of security, the customer shall hereby already assign to us in the amount of the invoice value any accounts receivable in regard to the retained goods arising from the resale or any other legal grounds (e.g. insurance, unlawful acts), including all out-standing balance claims of current account. This shall also apply in case – pursuant to the foregoing restrictions – a resale was not admissible. We shall accept the assign-ment. If we only share co-ownership of the retained goods, the advance assignment shall be limited to the percentage of the claim equating to the percentage of our co-ownership based on the invoice value.
The customer shall be revocably entitled to collect any claims assigned to us in his own name and for our account. This collection authorization may be revoked when the customer does not duly perform his payment obligations. In case of a justified revoca-tion, the customer or his legal assignee or liquidator shall be required, upon request, to disclose any assigned claims and all associated debtors – including their addresses –, provide all details required for collection, deliver all associated documentation, and notify the debtors of the assignment without delay. We shall release the aforementioned securities at the customer’s request, at our own option, insofar as their realizable value noticeably exceeds the secured claims by more than 10%. As for the retained goods the estimated value shall be deemed realizable; as for claims assigned by way of security, the nominal value shall be taken, less a deduction of one third each time. In case any third parties lay claim to the retained goods, the customer shall, additionally and with-out any delay, take action pursuant to section 771 of the German Code of Civil Proce-dure as a designated representative (so-called third party proceedings).
§10 Intellectual Property Rights and CopyrightsWe shall reserve our unrestricted ownership as well as our intellectual and industrial property rights with reference to all services provided and/or made available by us, particularly programs, drawings, and any other documentation developed by us. In case the contract with us does not come about, the drawings, the documentation as well as any other work/services already rendered shall be returned to us without any delay. Any documentation as well as other work/services rendered may only be made accessible to third parties with our consent.
§11 Period of LimitationAny claims raised by the customer due to faults with the goods shall become time-barred after a period of one (1) year for enterprises, two (2) years for consumers upon delivery of the goods.
Any other contractual claims by the customer resulting from a breach of duty shall become time-barred after one (1) year. Any claims arising from a warranty shall also become time-barred after one (1) year if we have issued a warranty not providing for any conditions to the contrary. Any rights of the customer to dissolve the contract as a result of a breach of duty we are responsible for, which does not consist of a defect, the statute of limitations shall apply accordingly. Any other customer claims shall be gov-erned by the statute of limitations. Our claims against the customer shall become time-barred in accordance with the statutory limitations as well.
§12 Affirmative ActionWe do not practise any discrimination based on age, race, colour, sex, or ethnic origin in any of our employment relationships.
§13 Data ProtectionDRYWALLTEC GmbH will record and process all personal information and data acquired in the course of business initiation and/or further business activities exclusively for the purpose of providing customer service and support. DRYWALLTEC GmbH assures not to disclose any of the above-mentioned information and data to third parties, (sections 28 and 29 of the German Federal Data Protection Act).
§14 Applicable Law – Place of Performance – Place of JurisdictionThis contract shall exclusively be subject to German law. The place of performance, including customer payments, shall be Rosenheim. Insofar as the customer is a busi-nessman the Rosenheim County Court or the Traunstein District Court – depending on their competence – shall have local and subject matter jurisdiction for any disputes arising – directly or indirectly – from the contractual relationship. We shall, however, also be entitled to sue the customer at the customer’s general place of jurisdiction. In the case of transboundary deliveries, the exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be the Rosenheim County Court or the Traunstein District Court, Federal Republic of Germany (Article 17 “EC Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters” and/or Article 23 “Council Regulation on Jurisdiction, Recognition, and Enforcement of Judg-ments in Civil and Commercial Matters”), depending on their competence. We shall reserve the right to also appeal to any other court having jurisdiction on the basis of the two afore-mentioned articles.
In addition to the aforementioned terms and conditions, German law – including the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UNCISG) – shall apply to any privity of contract.
We only commit ourselves to the German/English original texts of our contracts, agree-ments, and documentations (Assembly and Operation Manuals, Operating Instructions et al.). In any case of doubt and/or legal dispute the German/English original text shall prevail – translations shall thus be non-committal insofar as they deviate from the German/English original text.