of REC Bauelemente GmbH, Tabbertstraße 12, 12459 Berlin, represented by themanaging director, Mr. Konrad Schäfer.
Section 1 General
The terms and conditions set out hereinafter are general terms andconditions in the meaning of sections 305 et seqq. BGB [German Civil Code] andshall apply to our deliveries and services. In general, the provisions of thecontracting rules governing the award of construction work, part B, shall applyto construction services. Any divergent terms and conditions of the customerare excluded unless expressly accepted by us in writing.
Section 2 Quotes, quotationdocuments, prices
The parties to the contract shall immediately confirm each individualverbal agreement in writing. If nothing to the contrary is expressly agreed,our prices are ex works plus packing and statutory VAT. They are only relevantfor the object and the place of application set out in the offer / confirmationof the order.
In the event of terms of delivery of more than four months after conclusionof the contract, we reserve the right to adapt prices in the event of changesof the price basis of more than 10 %.
Unless agreed to the contrary, offers shall have a maximum validity of sixmonths.
Section 3 Delivery and delivery times
Our information regarding delivery times is only approximate and corresponds to a reasonable scope of time according to the order, provided that we did not expressly confirm an exact delivery date in writing. Each term of delivery shall begin no earlier than at the date of our confirmation of the order but not before all details of the implementation and all requirements to be met by the customer for a proper implementation of the order are clarified. The same shall apply to delivery dates. Premature deliveries and partial deliveries are admissible. The delivery date is the date of dispatch ex works. If the customer violates his duty to cooperate (e. g. by not retrieving in time or refusing the acceptance) we are, after setting an unsuccessful grace period, entitled to take the necessary steps ourselves and to deliver the goods or to withdraw from the part of the delivery contract not yet performed and claim damages.
Orders, which have not been retrieved by the customer four weeks after the confirmed delivery date are delivered against invoice. In the event of orders, which are only accepted in part, we are entitled to also deliver the remaining goods. In the event of force majeure, our periods of delivery shall be extended reasonably. We shall have the right to completely or partially withdraw from the contract. Force majeure also relates to events of strike, lockout or other unforeseen circumstances considerably complicating the delivery or even making it impossible. This shall also apply if the relevant circumstances occur during a delay or with a sub-supplier. Should these events occur at the customer's side, the same legal consequences shall apply to the customer's duty to accept.
We are also entitled to withdraw from the contract in the event of extreme increases (20% and more) in raw material and energy costs after we have confirmed the order.
Our obligation to deliver shall be dormant as long as the customer is in default with a due liability. If we become aware of facts or circumstances casting reasonable doubts in the customer's solvency (e. g. check or bill protest, closing of business premises, non-payment of overdue invoices after the issuance of reminders), we are entitled to completely or partially withdraw from the contract if the customer is unwilling to complete the matching payment or is not prepared to provide surety. A claim for damages of the customer is excluded in this case.
Should the customer be in default of acceptance or violate any other duties to cooperate, we shall have the right to claim damages for the damage incurred by us including any additional costs. In this case, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer if the customer is in default of acceptance.
Section 4 Payment
Cash discounts are granted subject to the condition that there are no further due invoice amounts in the customer's account. Only the value of the goods without any costs for transport, packaging, loading and unloading and any other additional expenditure is subject to cash discounts. In the event of default of the customer, the statutory provisions in this respect shall apply. In the event of pecuniary difficulties of the customer, in particular default in payment, check or bill protest, we are entitled to implement any further delivery only against prepayment, require all open and deferred invoiced amounts immediately and to require payment in cash and the provision of sureties against return of bills of exchange accepted on account of performance. The customer waives the assertion of any right of retention from previous or other contracts of the current business relation. .
The set-off of counterclaims is only allowed to the extent to which these are accepted by us and due for payment or have been legally established.
Section 5 Tools
For the production of special customer requests, production tools are required. These tools involve intra-company know how and basically remain our property.
In the event of reusing tools, the costs of storage shall be agreed for each individual case..
Section 6 Transports
Unless otherwise stipulated on the confirmation of the order, delivery ex works shall be agreed. The customer is charged with the costs of delivery according to our offer. If access routes pose a risk to the vehicle, our obligation to delivery shall cease. Any costs for intermediate transports, delays in unloading, waiting times and reloading or measures taken at the construction site shall be borne by the customer. If the unloading is performed by us according to the order, the customer will be charged in this respect. For unloading times of more than one hour, we charge the hourly rate according to GMT. Upon request of the customer, we will also take out transport insurance for the delivery. The costs incurring in this respect shall be borne by the customer. The manufacturer expressly transfers the responsibility for the load securing to the carrier. Further, the provisions of the directives VDI-2700 and VDI-3968 I-6 ("Load Securing on Road Vehicles") shall apply. The carrier is responsible for compliance with this directive. Instructions of the manufacturer shall be complied with.
Section 7 Transfer of risk
The risk of accidental loss and accidental deterioration shall pass to the carrier upon handover in the event of delivery (obligation to be performed at the creditor's place of business). If delivery is implemented with our vehicles, the risk shall pass to the customer upon handover (obligation to be performed at the creditor's place of business). In the event of collection by the customer, the risk shall pass to the customer upon handover in the subsidiary (debt to be discharged at the domicile of the debtor). In the event of collection by the customer, the customer himself shall check whether the purchased object has been loaded in perfect conditions. Any transport defects shall be reported immediately. Otherwise, we do not assume any liability for damages. In the event of transport defects of which we are not immediately notified, we are only liable for intention and gross negligence.
If delivery to the customer is implemented with our trucks or by our forwarding agents, obvious defects like breakage or shortfall shall be identified by the customer in the presence of the truck driver and our point of sale shall be immediately notified in writing, provided that the customer is not a user. Users shall report obvious defects to our point of sale in writing within two weeks. Truck drivers are not authorized to accept any claims of defects.
Section 8 Warranty of defects
We warrant that the goods are free of defects and have the warranted properties according to the relevant state-of-the-art. Defects shall be reported immediately. Any warranty shall be made in writing.
Defects which cannot be immediately identified even with careful inspection shall be reported at the latest two weeks after they have been identified.
Should the delivered goods comprise any defects which impair their value or usability to a considerable extent or if they are lacking a warranted or guaranteed property, we will remove the defect at our discretion either by remedying the defect or delivering new goods within a reasonable period of time. The customer shall give us and our agents reasonable time and opportunity to do so. If this is not the case or if amendments and repairs of the defective goods are performed without our explicit consent, we are exempted from liability for defects. Any other claims of the customer, in particular such claims for compensation of indirect damages are - provided that the customer is not secured by warranty of a property or a written guarantee for the occurrence of such damages - excluded unless we are responsible for intention or gross negligence.
If no period of limitation was agreed for the products, all contractual and legal warranty claims shall become time-barred one year after the date of delivery.
We do not assume any liability for damages due to improper installation and / or treatment unless such damages were caused by us in an intentional or grossly negligent manner. If we, apart from our obligations to deliver, have helped with the planning, we shall solely be liable to the extent to which we, at our discretion, correct our evidently erroneous planning or help with new planning. Any further liability for planning support is excluded unless a non-accidental damage is due to intentional or gross negligent conduct / action.
Section 9 Assurance of retention of title
All deliveries are made subject to retention of title. The title shall only pass to the customer upon compliance with all of his obligations from the delivery of goods. The customer is obliged to treat the purchased object with care. In the event of pledging or any other type of access by third parties, the customer shall inform us immediately in writing. The customer is entitled to resell the delivered goods within the regular course of business. With effect from now on, he shall assign all and any claims in the amount of the final invoice amount including VAT to us, which he might have due to the resale to third parties, irrespective of whether the purchased object has been resold prior to or after the procession. The customer shall also be entitled to collect such claims after the transfer. Our right to collect claims shall not be affected in this respect. Claims are not collected by us as long as the customer meets his payment obligations and is not in default of payment and, in particular, no request for the opening of bankruptcy or insolvency proceedings was made or the customer ceased to make payments, is insolvent or indebted. In such cases, however, we shall be immediately informed and the customer shall immediately inform us about the assigned claims and the relevant debtors and make all information required for collection, hand over all documents relevant in this respect and inform the debtor (third party) about the assignment.
Upon request of the customer, we undertake to release the sureties granted by him if and to the extent to which the amount of the sureties granted by the customer exceed our total claims from the business relation by 20 %. auf. The processing or reforming of the purchased object by the customer is always made for us. If the purchased object is processed together with other goods which are not from us, we acquire co-ownership in the new product in the relation of the value of the acquired goods to the other processed goods at the time of processing. Moreover, for the goods resulting from the processing, the same shall apply which also applies to any purchased object delivered subject to reservation of title. If the purchased object is inseparably combined with other goods which are not from us, we acquire co-ownership in the new product in the relation of the value of the acquired goods to the other combined goods at the time of combination. If the goods are combined in such a way that the goods of the customer shall be regarded as main product, it shall be agreed that the customer assigns the proportionate ownership in the product to us. The customer shall also assign his claims as surety for our claims against him to us that he might have against third parties in connection with the combination of the purchased object with premises.
Section 10 Final provisions
The place of performance of the delivery is our registered office. The place of jurisdiction for the payments, including claims from checks or bills, shall be Berlin. We are also entitled to sue the customer before a court of his residence. The contractual relationship shall be governed by German law. Should any provision of these general terms and conditions be or become completely or partially invalid, this shall not affect the validity of the remaining provisions.
General Terms and Conditions as of 01 January 2011