General terms of business
Delivery and installation conditions of HaWe Speed GmbH
1. Our delivery conditions only apply to companies (§ 14 BGB (German Civil Code)). They apply exclusively. Conflicting General Terms and Conditions, or those that supplement or deviate from our General Terms and Conditions, are not recognised, even if this is not explicitly contradicted in spite of knowledge and/or the delivery is effected without conditions.
2. These delivery conditions apply to all present and future business relationships. Any previous terms and conditions of the supplier which may differ from the present terms and conditions are hereby rendered invalid.
3. In the sense of these delivery conditions, the Entrepreneur – hereinafter referred to as the Purchaser – is a natural or legal entity or a partnership with legal capacity which, when entering into a legal transaction, acts in exercise of their commercial or independent professional activity (§ 14 BGB).
4. Purchaser = recipient and user of quality-labelled products undertakes to guarantee the neutral testing institutes that are commissioned with quality monitoring access to the installation locations at any time and to allow the quality to be checked. Any checks take place within the framework of the provision of quality protection and is free of charge for the recipient or user.
5. Insofar as nothing is stated to the contrary in these conditions, the terms and definitions of the year 2000 version of the International Commercial Terms (INCOTERMS) are deemed to apply.
§ 2 Offer and conclusion of contract
1. Our offers are non-binding. We reserve the right to make technical modifications as well as changes to shape, colour and/or weight within reason. Our written order confirmation is definitive with respect to nature and scope.
2. By placing an order, the Purchaser makes a binding declaration that they want to purchase the ordered item. The offer is only deemed to have been accepted when order confirmation has been sent or by despatch of the goods. Documents such as samples, brochures, catalogues, illustrations, drawings and weights & measures information are only approximately authoritative insofar as they are not explicitly declared to be binding in writing. Subsidiary agreements or assurances must be made in writing. In the case of products that are delivered to order separately, the contract is deemed
to be completed after our written confirmation, even if clarifications must still be made that affect delivery time and price. The supplier reserves the right to make changes to the design and the shape during the delivery time insofar as the subject of the delivery and its function and its appearance are not fundamentally changed. This does not instigate a change in the price. Part deliveries shall be permitted.
3. The supplier reserves the property rights and copyright to all quotations, drawings and similar documents. This also applies to documents that are designated as "confidential". These documents must not be made accessible to third parties without our prior explicit consent.
§ 3 Prices and payment conditions
1. The prices are deemed to be "ex works" plus the statutory value-added tax; this is shown separately to the statutory amount on the day of billing in the invoice. The prices exclude packaging. If the Purchaser requests despatch of the goods, the cost of transport will be additionally calculated.
2. Expenses which arise from changes to the type or scope of delivery at the request of the purchaser after we have confirmed the order and/or which arise from the compliance with subsequent or unforeseeable regulatory obligations or requirements shall also be invoiced separately from the quoted purchase price.
3. If material price increases occur after submission of the offer or if taxes or duties are increased, the supplier is entitled to correspondingly adapt their prices.
4. Installation costs are calculated separately.
5. The deduction of discounts requires special written agreement.
6. Insofar as not otherwise agreed, the purchase price is due to be paid without deductions within 10 days of the billing date. Otherwise, the legal payment default regulations are deemed to apply.
7. The Purchaser only has the right to offset if their counter-claims have been legally established, uncontested or recognised by us.
8. The Purchaser can only exercise rights of retention to the extent that their counter-claim is based on the same contractual relationship.
9. Payment instructions, cheques or bills of exchange will only be accepted after special agreement and only on account but not in lieu of payment. The costs for bills of exchange, discounting and redemption will be borne by the Purchaser.
10. Independent of a payment date and of the term of bills of exchange that have been received and credited, our outstanding accounts will be immediately due if the payment conditions are not observed and/or we become aware of circumstances that could reduce the creditworthiness of the Purchaser. Notwithstanding other statutory rights, we are then also entitled to implement any outstanding deliveries and/or services against advance payment or payment of a security. Furthermore, we can disallow the further sale and processing of the delivered goods and demand their return at the cost of the Purchaser or take ownership of them without the Purchaser having a right of retention or similar right. We are entitled to dispose of the recovered goods by private sale
to charge towards our unsettled demands.
§ 4 Transfer of risk
1. Delivery is "ex works".
2. The risk of accidental loss and accidental deterioration of the purchased item shall pass to the Purchaser upon transfer; if the goods are to be shipped to a location other than the place of performance, the risk shall pass to the Purchaser upon delivery of the purchased item to the forwarder.
3. If the Purchaser should be in delay of acceptance, the risk of accidental loss and accidental deterioration of the purchased item shall pass to the Purchaser from the date on which said item is ready for despatch. Any accrued storage costs will be borne by the Purchaser.
4. The aforementioned Items 1 – 4 also apply to partial deliveries.
5. In the case of carriage paid delivery, the transported goods must be unloaded immediately by the Purchaser. The cost of waiting times is always to be borne by the Purchaser. In the case of delivery paid to site, the agreed price is always deemed to be "free on lorry" on a navigable road approached at ground level. Unloading including transport to the place of use or storage is incumbent upon the Purchaser who, in the event of default, will bear any costs and risks of unloading and/or stacking and/or storage and/or return transport.
6. The recipient acting on behalf of the Purchaser at the place of unloading is deemed to be entitled to bindingly accept the consignment.
7. In the case of deliveries with glass components, glass breakage damage will only be acknowledged if the supplier is obligated to provide spare parts and the Purchaser or the recipient of the goods acting on behalf of the Purchaser immediately complains about the glass deficiency on the delivery note. Deficiencies complained about by the Purchaser only provide justification for refusal of acceptance if they substantially impair the serviceability of the service.
§ 5 Delivery times
1. The delivery times specified by the supplier are calculated from the day of technical clarification of the order (final clarification of e.g. dimensions, accessory parts and special equipment) until the day of provision or completion. For orders to be deemed as completed on schedule it is necessary for, among other things, the Purchaser to fulfil their obligations with respect to the order in every sense. The deadlines and periods specified by the supplier are deemed to be non-binding as long as they are not explicitly agreed as binding in writing. Delivery and service delays due to force majeure and due to events that substantially impede or make impossible delivery by the supplier – in particular these include subsequent material acquisition difficulties for which the supplier is not responsible, malfunctions, strikes, lock-outs,
administrative orders, etc., even if they occur with suppliers of the supplier or their sub-contractors – entitle the supplier to
delay the delivery or service by the duration of the delay plus an appropriate initial period, or to completely or partially withdraw from the contract with respect to its not yet fulfilled part.
2. The Purchaser may only set us a renewed deadline for the delivery/service if the confirmed delivery date has been exceeded by more than three weeks. This renewed deadline must be appropriate and must be at least three weeks. In the event of a failure to meet this renewed deadline, the Purchaser shall have the right to withdraw from the contract. Indemnity claims are excluded. This does not apply in the case of intent or gross negligence insofar as the default is based on a substantial breach of duty, in the case of culpable injury to life, limb or health of a person including their death, in the case of claims under the product liability law, in the case of guarantees and in the case of a fixed business transaction.
§ 6 Retention of title
1. The delivered goods remain the property of the supplier until fulfilment of all claims and demands, irrespective of their legal basis. In the case of a continuing customer relationship, the retained title also applies as a security for the outstanding balance demand of the supplier.
2. The Purchaser is entitled to resell the goods delivered under retention of title in the ordinary course of business until revocation at any time and as long as they are not in default of payment to us. Our authorisation to collect the claim ourselves shall not be affected by this. Pledging or transfer of security in whole or part without the explicit written permission of the supplier is not permitted as long as the supplier's retention of title exists.
3. All demands of the Purchaser from the resale of the retained goods are already transferred in full to the supplier until the payment of all demands of the supplier. The supplier hereby accepts the transfer. If the Purchaser collects the demand to which they are entitled from resale of the retained goods in a current account relationship with their customer, they hereby transfer the full amount of the current account demand with respect to the customer to the supplier. The supplier also herewith accepts this transfer. After balancing, instead of the current account demand, the acknowledged balance, which is deemed to be transferred in the full amount that constitutes the original current account demand, shall be used. In the case of installation of the retained goods in a building, the regulations of the previous
paragraph relating to the assignment of receivables from the contract of services of the Purchaser with their customer applies accordingly. At our demand, they are
obligated to immediately inform their customer about the transfer and to provide us with the information and documentation that is required for involvement.
4. The processing, restructuring or installation of goods that are delivered under retention of title is undertaken and stored by the Purchaser for the supplier at no cost. If the retained goods are attached or processed with other items that are not the property of the supplier, the supplier obtains co-ownership of the new item in relation to the value of the retained goods to the connected / processed item at the time of the attachment / processing. Insofar as claims exist for the Purchaser against insurers or other third parties due to damage, abatement, loss or destruction of the retained goods or for other reasons, these claims and all their subsidiary rights
are also transferred to us in advance. Rights from retention of title and all special forms thereof specified in these conditions also apply until complete indemnification as contingent liabilities that, where applicable, we have entered into in the interest of the Purchaser. If the value of the securities sustainably exceeds the secured demands by more than 20%, at the demand of the Purchaser we are obligated to release securities in this respect at our discretion. We are entitled to enter the business and operational rooms of the Purchaser at any time to establish the presence of the retained goods.
5. As long as the retention of title exists, the Purchaser is obligated to insure the subject of the delivery against fire, water damage and theft.
6. The Purchaser is obligated to immediately inform the supplier of all enforcement actions against one of the objects that are subject to retention of title and to send them copies of the seizure orders and reports. Furthermore, they must undertake all possible actions to prevent implementation of the enforcement.
7. If the Purchaser acts contrary to their contractual obligations, especially in the case of default of payment, we are entitled to withdraw from the contract and to recover the retained goods. For the purpose of recovery of the goods, the Purchaser grants us irrevocable permission to enter their business and warehouse rooms in an unhindered manner and to take possession of the goods.
§ 7 Defect claims
1. Claims due to defects are only allowed to the Purchaser if they have properly met their obligations regarding inspection and notification of defects in accordance with § 377 HGB (German Commercial Code).
The supplier must be notified of any defects in writing, wherein their nature and scope is specified. In the event of a late or improperly-formulated notification of defects, the goods are deemed to be accepted.
2. At their discretion, the supplier is entitled to provide retrospective fulfilment in the form of remedy of defects or to provide a replacement delivery.
3. Fundamentally, only the product description / order confirmation of the manufacturer is deemed to be agreed with regard to the quality of the purchased item. Accordingly, any public statements, promotions or advertisement by the manufacturer shall not constitute a contractual specification of the quality of the goods.
4. The supplier is liable in accordance with the statutory regulations insofar as the Purchaser asserts indemnity claims that are based on intent or gross negligence, or intent or gross negligence of a representative or vicarious agent of the supplier. Insofar as the supplier is not accused of intentional or grossly negligent breach of duty, the liability for compensation is restricted to the typically occurring damage. This does not apply to liability for culpable injury to the life, limb or health of a person including their death and also does not apply to compulsory liability in accordance with the product liability law.
5. The period of limitation for defect claims by the Purchaser that are not subject to the limitation of § 438 Para. 1 No. 2 BGB is 1 year from delivery of the goods, insofar as the Purchaser has properly met their obligation of notification of defects regulated in Item 1. For claims for damages, the period of limitation subject to §§ 438 Para. 1 No. 2, 479 BGB is one year. 6. The Purchaser receives no guarantees from the supplier in the legal sense. Manufacturer guarantees are not affected by this.
7. Further contractual or tortious claims from the Purchaser are excluded. For this reason, we are not liable for damages that are not effected to the subject of the delivery itself or for lost profits or other financial losses of the Purchaser.
8. The Purchaser is not entitled to transfer claims due to material defects.
9. Normal use, e.g. of consumable parts such as springs does not represent a material defect.
10. By conducting negotiations with respect to notification of defects, we do not renounce the objection that notification was not made on time and/or was insufficient. Persons commissioned to conduct inspections of defects are not entitled to the recognition of defects with effect against us.
§ 8 Limitation of liability
1. Concerning other claims for compensation, in cases of ordinarily negligent breach of duty, the supplier is only liable for typically occurring damage dependent on the nature of the purchased item. This also applies to breaches of duty due to ordinary negligence on the part of legal representatives or vicarious agents of the supplier. The liability of the supplier in the event of breaches of immaterial contractual obligations due to ordinary negligence is excluded.
2. Liability for culpable injury to the life, limb or health of a person including their death shall not be affected, nor shall compulsory liability in accordance with the product liability law be affected.
3. In the event of breach of a pre-contractual duty or a hindrance to performance that already exists upon conclusion of the contract (§§ 31 1 Para. 2.31 1 a BGB) our obligation to provide indemnification is restricted to the negative interest.
§ 9 Limitation
1. The subsequent performance claim of the Purchaser is limited conditionally upon §§ 438 Para. 1 No. 2 – construction usage items 5 years - ; 479 BGB – claims to recourse – within two years of delivery of the goods. Correspondingly, the right to withdrawal and abatement is excluded in accordance with the statutory regulations.
2. For claims arising from replacement deliveries and improvement work, the period of limitation is 6 months; however, at most it extends until the end of the initial warranty obligation.
3. For claims from the product liability act (ProdHaftG), in cases of intent, gross negligence or malice and also in the case of culpable injury to the life, limb or health of a person including their death and a guarantee given by us, the statutory limitation period is deemed to apply.
§ 10 Final provisions
1. The law of the Federal Republic of Germany applies. The provisions of the UN sales law (CISG) are not applicable.
2. Subsidiary agreements and alterations require written confirmation from the supplier. This also applies to amendments of the written form clause.
3. At their own discretion, the supplier is entitled to take legal action at the court of law at the headquarters of the Purchaser. Otherwise the exclusive place of jurisdiction for both involved parties is Siegburg.
4. The place of performance for both contractual parties is Bad Honnef.
5. In the case of written documents, the German version is binding.
6. Should any individual provision of the contract, including these delivery conditions, be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected thereby. The provision deemed invalid in whole or in part is to be replaced by a provision that most closely approximates the economic effect of the invalid provision.
Installation conditions of HaWe Speed GmbH
Insofar as the supplier undertakes installation and similar services in addition to supplying the purchased item or also exclusively undertakes the installation, the following installation conditions apply in conjunction with the delivery conditions:
§ 1 Installation prerequisites
1. If parts of the delivery are obviously damaged or if the delivery is not complete, the Purchaser must inform the supplier of this at the latest one working day after delivery of the purchased item so that a remedy can be found where possible before arrival of the fitters. If the Purchaser culpably (or through slight negligence) omits this notification, any additionally-caused installation costs will be billed separately.
2. The delivered parts must be stored dry and protected from weathering influences and damage by third parties.
3. One or more specialist fitters will be provided by the supplier for installation, depending on the scope of delivery. Depending on the agreement reached, these must be provided with sufficient assistance without mutual financial settlement.
4. Our services do not include: Unloading from the lorry or HGV, the transport of all parts as far as their place of installation, all glazing that is not part of our scope of delivery, sealing work between the component and the structure, excavations, masonry and concreting including the moulding of anchoring holes and notches, the provision of frameworks whose working platforms are more than 2 m above the ground or floor, as well as the electrical installation of electrically operated gates, doors and windows.
5. The usual trade tools will be provided by the supplier.
6. The following prerequisites must be fulfilled on-site in order to guarantee proper installation: Any required anchoring notches must be created in accordance with the drawings before commencement of installation work so that the fitters can commence with installation work on site as soon as they arrive. Any waiting times that result from late creation of the anchoring notches or for any reasons that are not the fault of the supplier will be billed separately. The purchaser is obligated to provide one or more cutting checks per storey. The provided cutting check must remain in position until final acceptance. A lockable common room for the fitters to store tools and small parts must be provided on site, as well as electricity for tools and, where applicable, for lighting as well as the necessary auxiliary material to clamp the installed parts until the anchors have hardened.
7. The Purchaser must ensure that installation is possible on the agreed date, in particularly that all necessary preliminary work such as masonry, plastering, breaking and flooring work has been completed. Floors must be accessible and capable of withstanding sufficient loads. The Purchaser must notify the supplier in writing at the latest 5 working days before the agreed date as to whether installation is possible on the agreed date.
8. Where applicable, the purchaser must inform the installation personnel of existing safety regulations, in particular those relating to welding work, smoking bans, safety clothing, etc. If the Purchaser culpably fails to meet this obligation (even in the case of slight negligence) and if damages are caused as a result, the Purchaser must exempt the supplier from liability for damages.
9. Electricity for tools and lighting, where applicable, must be provided by the customer. Insofar as a lockable common room for the fitters to store tools and small parts is required, this must be communicated to the Purchaser in advance and must be made available by them on site.
10. Insofar as the structure that is to be installed is fitted with electric drive, the necessary electrical installation as well as connection and adjustment of the equipment is to be implemented by the Purchaser.
11. After installation, the Purchaser must note the following: At the earliest, the installed gates, doors, frames and windows may be opened for traffic 2 days after cementing shut the anchor holes.
§ 2 Hourly rates
1. If installation is not carried out for a flat fee but rather according to cost/expenditure, the installation work is invoiced as an hourly rate plus any travel costs, consignment costs, provision of equipment, etc. The supplier's respectively valid guide prices for installation are applicable.
2. Invoicing and payment must take place after receipt of invoice in accordance with § 3 of the delivery conditions.
§ 3 Acceptance
1. During completion of the installation service, the Purchaser is entitled and obligated to accept the service in a written installation log.
2. Acceptance is deemed as having been made when the Purchaser does not accept the installation service within an appropriate period specified by the supplier, even though they are obligated to do so.
3. Beginning from the time that delivery acceptance is made, claims for defects from § 634 No. 1 – No. 3 BGB no longer exist against the supplier with respect to known deficiencies insofar as the Purchaser does not reserve their right on the grounds of this deficiency during the acceptance.
§ 4 Limitation
1. Deficiency claims of the Purchaser relating to installation lapse one year after acceptance. The limitation period of § 634 a Para. 1 No. 2 BGB remains unaffected by this.