General Terms and Conditions of Business
Goldbach Kirchner raumconcepte GmbH
1. General
1.1. The present terms and conditions shall apply exclusively to the extent that nothing to the contrary has expressly been agreed in writing and even if we implement the delivery without reservation despite knowledge of terms of Customer which contradict or deviate from our terms and conditions, Terms and conditions of business of Customer shall only be valid if they have expressly been acknowledged by us in writing.
1.2. If individual points of these terms and conditions are or become ineffective, the validity of the remaining provisions shall not be affected. The ineffective term or a gap requiring filling shall instead be replaced by a regulation commercially coming as close as possible within the framework of what is legally admissible to what the contracting parties wanted or would have wanted if they had considered the point.
2. Quotations/samples
2.1. Quotations shall be subject to change without notice.
2.2. The illustrations and information contained in brochures, estimates of costs and quotations, in particular information on weights or dimensions or other technical data, shall only be approximate, they and DIN, VDE or other in-house or external standards to which reference is made merely identifying the subject matter of the contract.
2.3. Ownership and copyrights for technical documents and estimates of cost as integral parts of the quotation shall remain reserved.
The recipient of the quotation shall not be allowed to make said documents accessible to third parties. Upon request, he shall return them to us without delay, including any copies made in the meantime.
2.4. Obvious errors in the quotation can be corrected up to the order confirmation.
3. Ordering/order confirmation
3.1. Customer shall acknowledge the present terms and conditions by placing its order (ordering).
3.2. In each order, precise designation of all details by Customer shall be necessary. We shall assume no liability for errors and damages caused as a result of incomplete or imprecise statements (e.g. "as usual") in the order.
3.3. The contract shall be deemed concluded by us following receipt of the order with the written order confirmation by us. Silence shall not be deemed acceptance and shall not lead to conclusion of the contract. The written order confirmation shall be decisive for the contents and scope of the contract. Amendments, supplements etc. to the contract shall require written form.
3.4. If, following dispatch of the order confirmation, we obtain knowledge of an essential deterioration in Customer's economic position or corresponding unfavourable information about its commercial conduct and mode of payment, we can either make its performance dependent on prior payment or other collateral appearing purposeful or withdraw from the contract.
4. Prices, reservation of price, payments
4.1. The prices shall be understood exclusive of statutory Value Added Tax free hand-over to haulage contractor.
4.2. If essential and unforeseen changes occur in the cost factors decisive for the order compared with the time of the order confirmation, a corresponding, suitable price adjustment shall remain reserved provided there is a period of no less than four months between order confirmation and delivery.
4.3. We reserve the right to demand one third of the order sum after receipt of the order confirmation, one third upon delivery of the goods and the remainder 30 days after invoice date. If delivery of the goods is delayed for reasons for which Customer is answerable, 75% of the order sum can be demanded as a down-payment from the agreed time of delivery.
4.4. The invoices shall be due for payment within 14 days of issue without any deduction. All payments shall be made directly to us.
Neither representatives nor sales personnel have a power to collect. Payment shall exclusively be made to the business accounts stated on our letters. Crossed cheques shall be sent to our address: Goldbach Kirchner raumconcepte GmbH, Am Sportplatz 7, 63826 Geiselbach.
4.5. Agreed discounting shall presuppose that the invoice amount reaches Goldbach Kirchner raumconcepte GmbH in good time, The prerequisites shall be examined separately for each down-payment and final invoice. High-handed exercising of a right of retention shall lead to a forfeiture of the entitlement to discount. If at all, subsequent retention shall be granted if Goldbach Kirchner
raumconcepte GmbH acknowledges the exercising of the right of retention. Deduction of discount compared with the final invoice shall be possible as long as Goldbach Kirchner raumconcepte GmbH has not set an agreed warranty period.
4.6. If payment in instalments has been agreed and Customer partly or totally falls into arrears with two instalments, the entire residual debt shall be due for payment immediately to the amount existent at the time plus interest.
4.7. Customer can only claim the right to offset against our claims if the claim intended for offset is undisputed or is legally effective.
5. Delivery period
5.1. For the delivery period, the date stated in the order confirmation shall always be decisive. If a certain calendar week has been agreed as delivery date, we reserve the right to choose the day of delivery in the confirmed week. If merely a delivery period has been stated, it shall commence with dispatch of the order confirmation. All delivery dates and periods shall be extended suitably if the prerequisites of regulation 8.1. have been fulfilled.
5.2. The delivery period shall be complied with if the object of delivery has left the works or readiness for dispatch has been notified before its expiry.
5.3. Following exceeding of the agreed delivery period, Customer can place us in arrears, but must grant a suitable period of grace of no less than 10 working days for subsequent delivery. If Customer suffers damages as a result of a delay for which we are answerable, the indemnification for each completed week of the delay shall be 0.5%, albeit all told no more than 5% of the value of the part of the overall delivery which cannot be used in good time or contractually as a result of the delay. Further-reaching damages shall only be
reimbursed in the cases of regulation 10.6.
5.4. If no specific acceptance period has been agreed in sales on later calls, the objects shall be called from us in such good time that the delivery is possible within a suitable period (no less than 30 days).
6. Performance of order
6.1. Constructive changes not impairing the value for use of the object of delivery can be made without specific notification to Customer. All statements in the quotation, order confirmations etc. concerning dimensions, weights and volume shall be understood with the tolerances customary in the branch to the extent that they have not been marked as binding. The directives of the German Standards Committee shall apply to material thickness, quality and weight.
6.2. Part deliveries and thus part invoices shall be admissible.
7. Passage of risk
If Customer is not a consumer within the meaning of § 13, German Civil Code, risk shall pass to it as soon as the object of delivery has been handed to the freight forwarder or haulage contractor or has left our works for the purpose of dispatch, regardless of whether hand-over/dispatch is done from the place of performance or of who bears the freight costs and who has carried out the transport.
8. Prevention of delivery (performance)
8.1. In incidents of force majeure, regardless of whether they have been caused by strike, a lock-out, fire, mobilisation and war or for other reasons outside our sphere of influence, we shall be entitled either to demand a corresponding suitable extension of the delivery period or to cancel the contract partly or totally.
8.2. If a service for which we are responsible becomes impossible for a reason for which we are answerable, Customer shall be entitled to demand damages as a deviation from 10.6.. However, Customer's damages shall be limited to 10% of the value of the part of the service which cannot be performed due to the impossibility. This shall not apply to the extent that there is mandatory liability in cases of malice aforethought and gross negligence. An amendment of the onus of proof to Customer's detriment shall not be connected with this. Customer's right to withdrawal from the contract shall remain unaffected.
9. Customer's arrears in acceptance
Arrears in acceptance by Customer shall entitle us to invoice. Customer shall bear the costs and risks of storage, if applicable also external interim storage.
10. Claims from defects in quality and damages
The following regulations shall apply to liability for defects in quality and other liability on account of breaches of duty.
10.1. Technologically substantiated deviations in dimensions and shape customary in the branch as well as other colour and structure deviations which cannot be remedied, e.g. in the properties of the material, shall not entitle to complaints.
10.2. If the contract is a trading transaction for both parties, all notifications of defects shall be made without delay after becoming known in a textual form to Goldbach Kirchner raumconcepte GmbH, Am Sportplatz 7, 63826 Geiselbach, itself, not to its representatives. Recognisable defects must be notified in a textual form within 3 working days of receipt of the object of delivery.
10.3. (1) The period for barring by limitation for businessmen for claims and rights on account of defects in our delivery or service - regardless of the legal reason - shall be one year. However, this shall not apply in the cases of §§ 438 sub-section 1 no. 2 (buildings, objects for buildings), 479 sub-section 1 German Civil Code (entrepreneur's claim to recourse) or 634 a sub-section 1 no. 2 German Civil Code (building or work). In the event of consumable purchase, a period of barring of two years shall apply to new goods, one year to second-hand goods. (2) The periods of barring according to sub-section 1 shall apply with the following provisos: a) the periods of barring shall generally not apply in the event of malice aforethought. b) the periods of barring shall also not apply if we deceitfully fail to disclose the defect or to the extent that we have assumed a guarantee for the property of the delivery or service. c) The periods of barring shall additionally not apply to claims to damages in the event of injury of life, limb or health or liberty, in claims according to the Product Liability Act, in the event of a breach of duties by us or one of our representatives and/or vicarious agents by gross negligence.
(3) The period of barring shall commence for all claims with passage of risk for a delivery part, upon acceptance for assembly performances.
(4) To the extent not expressly agreed to the contrary, the statutory directives on the start of limitation, inhibition of the sequence and the restart of the periods shall remain unaffected.
10.4. To start with, we shall be granted the opportunity of subsequent performance within a suitable period. If subsequent performance fails, Customer can, notwithstanding all and any claims to damages according to 10.6., withdraw from the contract or reduce the remuneration. Claims from defects shall not exist in the event of only slight deviation from the agreed property, in the event of only inconsiderable impairment of the usefulness, in natural wear and tear or damage originating after the passage of risk as a result of defective or negligent treatment, excessive strain, unsuitable operating equipment, defective construction work, insufficient building ground or as a result of specific external influences not presupposed according to the contract. If changes or maintenance work are carried out improperly by Customer or by third parties, no claims from defects shall likewise originate for these and for the consequences originating as a result of them.
10.5. If the supplied products are repaired or amended without our involvement or if maintenance and installation directives have not been complied with, our defect in quality and other liability shall be forfeited. The same shall apply if Customer has further processed or sold the object of delivery after it had or could have discovered the defect.
10.6. Further claims to damages and reimbursement of expenditure of Customer (hereinafter: claims to damage), regardless of the legal reason, in particular on account of breaches of duties from the contract relationship and from tort, have been ruled out. This shall not apply to the extent that mandatory liability exists, e.g. from the Product Liability Act, in cases of malice aforethought, gross negligence, on account of injuries to life, limb and health and/or on account of other grossly negligent breaches of duties by us or by one of our representatives and/or vicarious agents.
11. Retention of title
11.1. The objects of delivery shall remain our property until complete payment of all claims (including possible costs and interest) from the business relationship with Customer. This shall also apply to inclusion of individual claims in a current account and to claims acquired subsequently against Customer in connection with the objects of delivery as a result of repairs or deliveries of replacement parts, as long as the retention of title has not yet been forfeited due to a settlement of the claims from the contract. Despite the retention of title, Customer shall bear the risk of destruction or deterioration of the commodities.
11.2. The retention of title shall also extend to any new commodities originating as a result of processing, combining or mixing, We shall acquire co-ownership to them pro rata to the value. Customer shall be obliged to keep and to secure the conditional commodities carefully.
11.3. Customer shall be entitled to resell the conditional commodities within the framework of ordinary business dealings. Pledging or transfer by way of security in whole or in part shall not be allowed as long as the retention of title still exists. If Customer sells the conditional commodity to third parties, the claim against the third party shall here and now be deemed assigned to us. We hereby accept the assignment. At our request, Customer shall be obliged (to which we shall also be entitled) to notify said assignment to third party and to give all information which we require in order to claim its rights.
11.4. Customer shall notify us without delay by recorded delivery about compulsory enforcement measures of third parties against the conditional commodities or the claims assigned to us or other collaterals, providing us with the documents necessary for an intervention. Customer shall bear all the costs which have to be expended to remedy the intervention or to re-procure the objects to the extent that they are not to be borne by third parties.
11.5. By request of Customer, we shall release the collaterals accruing to us on the basis of the aforementioned regulations to the extent that the value of the conditional commodities exceeds the claims to be secured by more than 20%.
12. Place of performance and place of jurisdiction
12.1. Place of performance shall be the place of the delivery factory. Place of performance for Customer's payment duty shall be Geiselbach.
12.2. The exclusive place of all present and future claims from the business relationship with merchants, including claims from bills and cheques, shall be Aschaffenburg. The same place of jurisdiction shall apply if Customer has no general place of jurisdiction in Germany, moves its place of residence or customary abode outside the country after conclusion of the contract or its place of residence or customary abode is unknown at the time of initiation of proceedings. Apart from this, its place of residence shall be deemed place of jurisdiction in the event of claims accruing to us against Customer.
13. Selection of law
German law shall exclusively be applicable. UN purchase law (CISG) shall remain ruled out. For building services, the contract procedure for building works, part B, shall apply as a supplement to the extent that nothing to the contrary has been agreed in writing.
14. Data protection
Customer takes note of the fact that data on its person are stored on the basis of the present contract for the purpose of automaticprocessing (invoicing, accountancy). Data other than those contained in the present contract shall not be stored.
15. Delivery and service times
15.1 Agreement of delivery and service dates and periods shall require written form. A delivery and assembly period shall only
commence upon receipt of all documents to be provided by Customer such as specifications, diagrams, approvals, diagram
releases etc.. Postponement of the date of clarity of the order (approval of the work diagram) shall extend all subsequent dates
accordingly.
15.2 We shall not be responsible for delays in delivery and assembly as a result of force majeure and also as a result of
incidents which were unforeseeable for us or on the occurrence and ending of which we have no influence, for example strike,
lock-out, official orders, disturbances in operation etc., even in the event of bindingly agreed periods and dates; this shall also
apply if they occur with sub-suppliers of ours. In such a case, we shall be entitled to postpone the delivery or service by the
duration of the prevention plus a suitable run-up time.
15.3 For delivery orders, delivery shall be according to Incoterms, "free exclusive of customs" DDU (Delivery Duty Unpaid).
Unloading and movement shall be done by the client.
16. Assembly
16.1 To the extent not expressly agreed, the costs of assembly shall not be contained in the net prices.
16.2 Client shall be responsible for the fact that the assembly can be done without prevention by third parties and without
interruptions. It shall further be responsible for the fact that passages and doors have been dimensioned in such a way that the
elements to be installed can be transported without obstacles. Means and costs of vertical transport shall be stated in the
documents for the request for tender. The following are suitable for this:
a) sufficiently large construction elevator
b) sufficiently large staircase
c) free service shafts
d) suitable openings in facades.
16.3 Client shall provide suitable, sufficiently large areas and rooms for the interim storage of the interior wall elements. The
storage areas and rooms shall be stipulated by harmonisation with the sequence of assembly, the quantity supplied and the
delivery rhythm. Client shall be responsible for the fact that the climatic conditions of the storage areas and room have no
damaging effect on elements and accessories, not even in longer periods of storage.
16.4 The load limits of the ceilings and the floor construction shall be stated by the customer/client in the documents for the
request for tender/order.
16.5 Lockable rooms shall be provided by Client for the storage of small parts, tools etc.
16.6 Client shall ensure that the installation rooms are sufficiently illuminated, evenly heated and cleaned.
16.7 Client shall ensure that the construction current needed for the assembly is provided in good time and in sufficient
quantities.
16.8 As a service, assembly shall include basic cleaning of pollution caused by production and assembly, i.e. the building site
shall be handed over swept out. Packaging and residual material shall be disposed of.
16.9 We shall charge additional costs for external elevator / scissor lift / crane or similar depending on time and expenses and
the transport device for the use of extraordinary transport devices for material transport on the basis of a delivery or
construction situation unknown to us at the time of the quotation.
16.10 Covering and masking work shall be rendered by the customer.
16.11 Complaints by the customer must be forwarded to us. From such time, we must have the opportunity of remedying the
complaints stated within a suitable period of time.
16.12 Remedying of defects done high-handedly shall not be acknowledged by us; in such a case, the warranty shall be
forfeited.
17. Dimension
17.1 Measuring of the installation rooms, the bearing construction and customary constructional situations for the purpose of
interior wall dimensioning to match the clearance. Construction and implementation can be done without if the geometric
properties for the installation rooms stated in the DIN directives 18201 and 18202 are guaranteed by the person responsible
for the overall implementation of the construction. In such a case, the risk of additional costs for all and any deviations in the
dimensions shall be with Client.
17.2 If this is not the case or if the presented planning documents or the building condition up to the time in question give rise
to the expectation of difficulties in clearance, the clear width and height dimensions must be recorded on the building site, this
being on the width on the floor, on the ceiling and in the mean height, in the height and the start and end and at a distance of 2
m each in between. If the floor has not been finished and only the rough ceiling exists, the existence of a reference marker
shall be presupposed. Likewise all the connection and reference points necessary for surveying and agreed for all the trades
shall be proven by the client.
If a part survey is enclosed upon placement of the order, the quotation diagrams shall be binding with a view to the building
dimensions.
18. Neighbouring construction parts
18.1 With a view to design, location, structure, strength and construction physics properties, the neighbouring construction
parts must be such that they guarantee a proper connection of the movable interior wall construction and make the
construction physics values agreed separately between the parties possible. Supporting and connection surfaces must fulfil
the requirements of the connection construction and the means of connection. They must be level and without structure,
cracks or similar.
18.2 The strength properties of the material must guarantee support and functionality of the means of fitting. Long-term
alternating strains as a result of the use of the buildings and the rooms are to be taken into due account.
18.3 Deviations in dimensions of the neighbouring building parts must be recorded to the extent that they are unavoidable in
proper construction performance and do not exceed the following possibilities of compensation of the inner walls. The
requirements of DIN 18202, Table 3, are agreed for the dimension balancing.
18.4 Deviations in location and design outside the said requirements shall be charged to Client and shall entitle us to make
subsequent demands.
18.5 All agreed or quoted sound absorption figures shall relate to the latest version of DIN 4019 at the time. The requirements,
expressed in decibel (dB), shall relate to the assessed building sound absorption level measured in the laboratory. We shall
not be answerable for deviations of these certified laboratory figures resulting in the installed condition due to the situation of
the premises and the neighbouring building parts (material property, other additions, installations, reconstructions etc.).
Subsequent measurements requested by the client as to whether neighbouring building parts have an influence on the sound
absorption values quoted shall be remunerated by Client. The examination duty in this regard shall also be a matter for Client.
19. Payment
19.3 Payment shall only be deemed made when we can dispose of the amount. In the event of cheques, payment shall only
be deemed made when the cheque has been honoured and credited.
19.4 Despite conditions of Customer to the contrary, we shall be entitled to offset payments against its older debts first. It shall
inform Client about the nature of the offset undertaken. If costs and interest have already been incurred, we shall be entitled to
offset the payment against the costs first and then the interest and finally against the main claim.
19.5 If Client falls into arrears, Supplier shall be entitled to demand default interest from the time in question to the amount of 8
percentage points above the basic rate of interest as a lump-sum. Proof of higher damage by us shall be admissible.
19.6 If we hear of circumstances putting Customer's creditworthiness in doubt, in particular if a cheque from Client is not
honoured, the latter ceases payments or if we hear of other circumstances putting Customer's creditworthiness in doubt, we
shall be entitled to make the entire remaining debt due for payment. In such a case, we shall additionally be entitled to
demand advance payments and only to render future deliveries against advance payment.
19.7 Client shall only be entitled to offset, retention or reduction of price if its counterclaims are legally effective or undisputed,
Further, Client shall merely be entitled to retention on account of counterclaims from the same contractual relationship. The
amount of the right of retention shall be based on § 641, sub-section 3, German Civil Code.
19.8 All and any sureties provided shall be returned to us without delay in accordance with the construction progress.
20. Settlement
20.1 The foundation for the determination of the scope of service shall be the drawings approved by Client.
20.2 Additional costs, e.g. sections, as well as requests for changes and difficulties in assembly only becoming recognisable
after measurement shall be charged additionally according to time and expenditure.
20.3 Prices for services not stated in the order documents but forming part of the ready-for-use manufacture of the object shall
be determined with reference to the individual prices of the contractual services.
20.4 If Client demands drawings, calculations and other documents which we do not have to produce according to the order,
they shall be remunerated separately by Client.
21. Inspection
To the extent not agreed separately, there shall be a formal inspection at the end of the assembly according to § 12 VOB/B.
22. Warranty
22.1 Warranty shall be based on VOB/B. Further-reaching claims of Client for property damage, in particular a claim to
damages, shall be ruled out to the extent that we are not guilty of gross negligence or malice aforethought.
22.3 Warranty shall only exist in delivery orders for the material. Proper assembly shall be presupposed.
22.4 Damage visible from the outside must be stated on the transport papers immediately after unloading and documented
photographically. Send photos to the factory as quickly as possible. Damage not visible from the outside must be reported to
us within 8 working days for deliveries to the building site, complaints received at a later time cannot be taken into account,
The regulation of § 377 German Commercial Code shall remain unaffected.
22.5 If defects are established, the materials affected by the defect may not be installed or only by agreement with the
responsible project manager. If the materials affected by defects are installed without approval by us, warranty shall be
forfeited.
Date: 15.02.2010
Goldbach Kirchner raumconcepte GmbH - Am Sportplatz 7 - 63826 Geiselbach, Germany