General Terms and Conditions

 

 

 

Section 1: General information and scope

 

(1) These General Terms and Conditions (GTC) apply to all of our current and future contracts (including sales contracts, contracts for work and materials, and contracts for work and services) with our customers (hereinafter referred to as “the Customer”).

(3)  These GTC are divided into the following parts: Part I applies to all contracts; Part II only applies to contracts relating exclusively to the delivery of items or goods and to contracts for work and materials; and Part III only applies to contracts under which we are committed to carrying out metal construction work, particularly assembly, and to contracts for work and services.

(4)  Our GTC apply exclusively. Any deviating, conflicting or supplementary general terms and conditions from the Customer shall form part of the contract only if and insofar as we have given our explicit consent to their application. This requirement for consent shall apply in any case, such as if we provide our services to the Customer without reservation, knowing the Customer’s general terms and conditions, and do not explicitly object to the Customer’s conditions.

(5)  Individual agreements reached with the Customer in specific cases (including ancillary agreements, additions and amendments) shall take priority over these GTC in all cases. The content of such agreements must be set out in the form of a written contract or a written confirmation from us. Verbal agreements between the contractual parties shall be replaced by a written contract unless it is explicitly stipulated that they are to remain binding.

(6)  Any legally relevant declarations and notifications submitted to us by the Customer after the conclusion of the contract (e.g. notifications of deadlines, notices of defects, declarations of withdrawal or reduction) must be made in writing in order to be deemed valid.

 

Part I: Conditions that apply to all contracts

 

Section I: Offers, conclusion of the contract, order confirmation and customer review period

 

(1)  Our offers are non-binding and subject to change. The same applies to catalogues, technical documentation (e.g. drawings, plans, calculations, costings and references to DIN standards), other product descriptions or other documents (e.g. advertising material) – including in electronic form – and to manufacturer information and advertising. These shall only form part of the contract if this has been expressly agreed.

(2)  The placement of an order for goods by the Customer is considered a binding offer of contract. Unless otherwise indicated in the order, we are entitled to accept this offer of contract within two weeks of receiving it. Acceptance of an offer can be confirmed either by means of an explicit declaration or by delivering the goods to the Customer.

(3)  The contract shall come into effect upon confirmation of the order subject to the conditions specified in the order confirmation, unless we have already commenced performance of the work or have expressly agreed otherwise in advance.

(4)  Our order confirmation alone reflects the content of the contract with binding effect. The Customer is obliged to check the accuracy of the information contained in the order confirmation, particularly with regard to dimensions, systems, type of material, and surface finish. The order confirmation shall be deemed approved if the Customer does not raise any objections to it immediately after receiving it, unless there are any deliberate deviations from the agreements made by the contractual partners. As a general rule, immediately means within two working days following receipt.

(5)  If the Customer provides us with specifications or any other description of services for a construction project, we are under no obligation to check these documents, particularly with regard to omissions, errors or contradictions. If we draw up an offer at the Customer’s request based on the documents provided, submitting this offer should not be taken as a declaration that the details derived from the documents are recorded completely and correctly or that they are fit for the intended purpose and sufficient in terms of type and quantity. The Customer is solely responsible for checking that the offer corresponds to the documents and that it is complete and fit for the desired purpose, and for stating clearly and fully which goods it would like a (non-binding) offer for.

(6)  Deviations which are customary in the trade, based on legal provisions or constitute technical improvements are permitted, as is the replacement of components and parts with equivalent parts, provided that this does not impair the usability of the goods for the contractually stipulated purpose and that it is deemed reasonable for the Customer.

(7)  Our information on the goods or services to be provided (e.g. weights, dimensions, use value, resilience, tolerances and technical data) or illustrations of the same (e.g. drawings and figures) are intended as (technical) descriptions or means of identifying the goods only and are not guaranteed characteristics, unless the contract expressly stipulates otherwise. They therefore serve as approximate guides only unless precise conformity is required to ensure usability for the contractually stipulated purpose.

 

Section 2: Confidentiality

 

(1)  We retain ownership of and copyrights to offers and cost estimates provided by us, as well as documents provided, such as construction documentation and installation plans, drawings and calculations in particular.

(2)  These documents may not be copied, published or disclosed to third parties without our written consent and must be returned upon request unless agreed otherwise.

(3)  Any knowledge of industrial and trade secrets gleaned from these documents and communications must always be treated as confidential.

 

Section 3: Deadlines, dates and delays

 

(1)  Unless the parties have expressly agreed otherwise, deadlines and specified dates are not binding and any deadlines and dates set by us should always be regarded as approximate. These may be extended or postponed, especially if we are reliant on deliveries from our own suppliers.

(2)  The obligation pursuant to Section 650k of the German Civil Code (BGB) shall remain unaffected by this.

(3)  If binding deadlines/dates are agreed, these shall only become effective once all essential commercial and technical matters have been clarified.

(4)  We are entitled to ask the Customer for delivery or performance deadlines to be extended, or for delivery or performance dates to be postponed, for as long as the Customer fails to fulfil its contractual obligations towards us (if we cannot be held responsible for this), and for a sufficient period for resuming the work. Our rights arising from any delay on the part of the Customer shall remain unaffected by this.

(5)  In the event of a delay on our part, the Customer shall grant an appropriate grace period, which should not be less than two weeks as a general rule. If we fall behind on our performance, or if it becomes impossible for us to perform work for whatever reason, our liability to provide compensation for damages is limited in accordance with Section 8 (Liability) of these General Terms and Conditions.

 

Section 4: Impossibility of performance and cases of force majeure

 

(1)  We shall not be liable for impossibility of performance/delivery or for delays in performance/delivery if this is due to force majeure or other circumstances that could not be foreseen when the contract was concluded and for which we cannot be held responsible. Such circumstances may include, for example, operational disruptions of any kind, difficulties in procuring material or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official approvals, official measures, or missing, incorrect or late deliveries from suppliers, provided that we cannot be held responsible for these. Should any of these circumstances arise, we shall inform the Customer immediately that a performance/delivery will not be possible or that it will be delayed.

(2)  If such events have a significant impact on our ability to perform a service/delivery or even render it impossible and the hindrance is not just of a temporary nature, we may withdraw from and terminate the contract. As a basic principle, a period of more than four months is considered to be not just temporary.

(3)  If the above-mentioned events/hindrances are temporary, the delivery or performance deadlines or dates shall be extended or postponed for as long as the hindrance lasts, plus a sufficient additional period to allow for work to be resumed.

(4)  If the Customer cannot reasonably be expected to accept the performance/delivery due to the delay – taking the interests of both parties into consideration – it may withdraw from the contract by means of an immediate written notification to us. As a general rule, immediate means within two working days.

 

Section 5: Disruptions and delays due to epidemics/pandemics (force majeure clause)

 

(1)  In addition to the information given in the section above, the contractual partners agree that, in light of what happened during the COVID-19 pandemic, impacts on the fulfilment of our contractual services – particularly due to official or legal interventions affecting business operations (operating procedures), stoppages or delays in the supply chain, restrictions on operating procedures due to measures (including preventive measures) taken to protect staff and health and to prevent infection, or staff shortages – that are connected with an epidemic/pandemic such as the SARS-CoV-2 pandemic or similar virus epidemics, are to be considered unavoidable and unforeseeable events. This has been agreed in the knowledge that the effects of an epidemic/a pandemic on the construction process cannot reliably be predicted in advance.

(2)  Should any delays arise in the performance of our work as a result of an event as described in paragraph (1) above, the parties agree that the agreed contractual deadlines will not take effect and will be adjusted according to the circumstances. In such cases, our interests must also be taken into consideration to an appropriate extent, including allowing a sufficient amount of time for work to be commenced or resumed. Both parties are obliged to cooperate on adjusting the contractual deadlines. The Customer shall not make any claims against us as a result of or in connection with any delays due to the effects of events under paragraph (1) on the performance of our work.

(3)  In the event of interruptions lasting longer than four weeks, we shall be entitled to advance payment of the amount of compensation due for the work not yet performed against the provision of a corresponding prepayment guarantee.

 

Section 6: Prices and terms of payment, set-off and due date

 

(1)  Unless otherwise agreed in individual cases, the prices valid when the contract was concluded in each case shall apply, ex warehouse and plus statutory value added tax. The prices apply to the use of our goods or services in the relevant area of application (cf. Part II, Section 1 (3)). If there is any intention for our goods or services to be used outside the relevant area of application (by the Customer or a third party that purchases the item in question from the Customer), the Customer must disclose this before the contract is concluded; then the terms and conditions under which a contract can be concluded must be negotiated.

(2)  If the delivery/performance takes place more than four months after the contract was concluded, our list prices valid at the time of delivery/performance shall apply unless we have expressly declared to the Customer in writing that the prices are binding for the duration of the contract or for a specific period of time.

(3)  If the scope of service or supply changes (in terms of execution or dimensions), any price adjustments due to increases in wage and material costs must be taken into account. The sub-item on additional provisions in these General Terms and Conditions must be observed.

(4)  Our invoices are payable within 14 days of receipt, unless otherwise agreed in our offers and in the order confirmation.

(5)  Once the payment deadline has passed, the Customer will automatically be in default. Interest at the applicable statutory rate shall be charged on the overdue payment for as long as the Customer is in default. We reserve the right to claim further damages caused by default. With regard to merchants, our claim to commercial default interest (Section 353 of the German Commercial Code, HGB) shall remain unaffected.

(6)  The Customer shall only be entitled to set-off rights if its claim is legally established or uncontested.

(7)  We are entitled to refuse service and – after setting a deadline where applicable – to withdraw from the contract (Section 321 BGB) if it becomes clear after the contract has been concluded that our claim would be jeopardised by the Customer’s inability to pay (e.g. due to the Customer or a third party applying to commence insolvency proceedings or insolvency proceedings relating to the Customer’s assets are initiated, etc.). In the case of contracts relating to the manufacture of non-substitutable items (custom manufacturing), we can declare our withdrawal immediately; the statutory provisions regarding the dispensability of setting a deadline shall remain unaffected.

 

Section 7: Warranty, requests for subsequent performance, etc.

 

(1)  The Customer’s rights with regard to defects are limited to subsequent performance. If the subsequent performance is not successful, the Customer has the right to reduce the agreed price or to withdraw from the contact. If any parts are replaced in order to rectify defects, these parts shall be our property.

(2)  If the Customer asks us to rectify a defect, we shall examine the item in question. If the Customer’s request for defect rectification proves unjustified, we shall be entitled to ask the Customer to reimburse any expenses incurred in connection with investigating the defect and/or performing work (particularly transport and route planning costs and the costs of labour and materials). This shall be based on our prices valid at the time of the request.

(3)  Any claims for damages or to compensation for fruitless expenditure on the part of the Customer exist only in accordance with Section 8 (Liability) and are otherwise excluded.

 

Section 8: Liability

 

(1)   Claims for damages asserted by the Customer against us, especially those based on a breach of contractual obligations and liability in tort, are excluded regardless of their legal basis. This shall not apply in cases of legally mandatory liability, particularly in the event of intent and gross negligence, injury to life, limb or health, the assumption of a guarantee, the absence of a contractually guaranteed characteristic, fraud, or liability under the German Product Liability Act.

(2)   In cases where essential contractual obligations have been breached, we shall only be liable for ordinary negligence. An obligation is considered contractually essential if its fulfilment is necessary for enabling the proper implementation of the contract in the first place and the Customer is entitled to expect it to be fulfilled. In such cases, liability shall be limited to foreseeable, typically occurring damage.

 

Section 9: Scope of the documentation provided

 

(1)     Unless expressly stipulated otherwise, we are not obliged to provide and deliver documentation unless this is required by law.

(2)     Failure to provide contractually agreed documentation shall not be deemed significant and shall not constitute grounds for reducing our invoices.

(3)     If the Customer requests additional documentation that we are not contractually required to provide, we shall be entitled to accept this provision of documentation as a separate assignment, with the additional costs incurred to be paid by the Customer.

 

Section 10: Right of retention and transfer of rights

 

(1)  The Customer shall only have rights of retention in the case of counter-claims arising from the same contractual relationship.

(2)  Any transfer of the Customer's rights and obligations from the contract concluded with us shall require our written consent in order to be valid.

 

Section 11: Applicable law and place of jurisdiction

 

(1)  These GTC and all legal relationships between us and the Customer are governed by the law of the Federal Republic of Germany, excluding international uniform law, particularly the United Nations Convention on Contracts for the International Sale of Goods. The conditions and effects of the reservation of title are subject to the law applicable in the place where the items concerned are stored if, under that law, the choice of German law would be inadmissible or invalid.

(2)  If the Customer is a merchant as defined by the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction (including internationally) for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Surwold. However, in such cases we shall also be entitled to take legal action in the Customer’s general place of jurisdiction or before the competent court for the contractual place of delivery.

 

Part II: Provisions for sales contracts and contracts for work and materials

 

Section 1: Delivery or partial delivery, area of application, passing of risk, place of unloading and default of acceptance

 

(1)  Delivery is carried out ex warehouse (our place of business), which is also where the place of performance is. The goods are shipped to a different location, the destination point, at the Customer’s request and expense (sales shipment). Unless otherwise agreed, we are entitled to decide on the type of shipment (in particular the transport company, transport route and packaging used).

(2)  We are entitled to make partial deliveries, provided that this does not present any significant disadvantage for the Customer and that the Customer is able to use the partial delivery within the scope of the contractually intended purpose, and that the delivery of the rest of the goods ordered is guaranteed. We shall be entitled to issue partial invoices for partial services rendered in the amount of the value of the goods delivered in each case, including the declared applicable value added tax.

(3)  The contract requires the item purchased to be used within the relevant area of application. Use in this case means that the item in question is incorporated into or mounted on another object in a manner consistent with its nature and purpose. Any use outside the relevant area of application shall be at the Customer’s own risk. The area of application shall be (mainland) Germany unless agreed otherwise. The Customer is obliged to indicate the area of application in an appropriate way, otherwise we shall be entitled to all claims (e.g. for damages) and, in particular, we shall be entitled to withdraw from the contract.

(4)  The risk of accidental loss and deterioration of the goods shall pass to the Customer upon handover at the latest. In the case of sales shipments, however, the risk of accidental loss and deterioration of the goods and the risk of delay shall pass to the Customer upon handover to the forwarder, carrier or other third party appointed to carry out the shipment (with the handover defined as the start of the loading process). This shall also apply to partial deliveries. If the shipment or handover is delayed due to circumstances for which the Customer is responsible, the risk shall pass to the Customer from the day on which we notify the Customer that the goods are ready for dispatch.

(5)  In the case of sales shipments, the Customer shall bear the costs of transport ex warehouse, the costs of any transport insurance that the Customer wishes to take out and any customs duties, fees, taxes and other public charges. We shall not accept the return of transport packaging or any other packaging; this shall become the Customer’s property.

(6)  If the Customer wants the goods to be delivered to a specific place for unloading, this shall be done at the Customer’s risk. The risk shall pass to the Customer when our delivery reaches the place of unloading. The unloading itself shall be carried out at the Customer’s risk unless we have expressly agreed otherwise. The Customer shall bear the risk of deterioration, destruction or loss of the items concerned during and after unloading. The Customer shall be solely responsible for arranging any safety and protective measures required. Our delivery note shall serve as proof of proper delivery.

(7)  If the Customer falls into default of acceptance or (negligently) fails to cooperate, or if our delivery is delayed for any other reason for which the Customer is responsible, we shall be entitled to demand compensation for the damages arising from this, including additional expenses (e.g. storage costs).

 

Section 2: Retention of title

 

(1)  We shall retain ownership of the goods until all claims arising from the contract have been settled in full. The Customer must handle the items in question with care and ensure that they are suitably protected.

(2)  The retention of title shall also remain in effect with regard to any claims of ours against the Customer arising from our ongoing business relationship until all existing and future claims have been settled (current account reservation). However, this only applies if the Customer is a merchant. At the Customer’s request, we are obliged to waive the retention of title if the Customer has met all the requirements resulting from the contract and provided adequate security for any further claims from the ongoing business relationship.

(3)  The goods subject to retention of title may not be pledged to third parties or assigned as security before the secured receivables have been paid in full. The buyer must inform us in writing immediately (usually within two working days) if and to what extent third parties are given access to goods belonging to us.

(4)  If the Customer acts in violation of the contract, particularly by failing to pay the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or demand that the goods be returned on the grounds of the retention of title. Any demand for the return of goods shall not automatically include a declaration of withdrawal; we are entitled to request the return of goods only and to refrain from withdrawing from the contract. In the event that the buyer fails to pay the purchase price due, we may only assert these rights if we have first set the Customer a reasonable deadline for payment with no result or if the statutory provisions stipulate that setting a deadline is superfluous.

(5)  The Customer is entitled resell or process goods subject to retention of title in the normal course of business. In this event, the provisions below shall also apply.

(a)  The retention of title also covers products resulting from processing, mixing or combining our goods, at their full value, and we shall be deemed to be the manufacturer. If the ownership rights of third parties remain in force when processing, mixing or combining with third-party goods, we shall acquire co-ownership on a proportionate basis according to the ratio between the value of the delivery item and the value of the new product as a whole. Otherwise, the same applies to the resulting product as to the goods supplied under retention of title.

(b)  The Customer assigns to us with immediate effect all claims against third parties arising from the resale of goods or the resulting product, in total or in the amount of any co-ownership share we may have, as security in accordance with the clause above. We accept this assignment.

(c)  Both we and the Customer shall remain authorised to collect any claims. We undertake not to collect claims as long as the Customer fulfils its payment obligations towards us and does not default on payment, and as long as no application to open insolvency proceedings is filed by the buyer or a third party or any insolvency proceedings are initiated and there is no other deficiency in the Customer’s performance capacity. If this is the case, however, we may demand that the Customer informs us of the assigned claims and the debtors concerned, provides all the information necessary for collection, hands over the applicable documents and informs the debtors (third parties) of the assignment.

(d)  The authorisation to resell and/or adapt or process the delivery item shall become null and void with immediate effect in the event that the Customer fails to meet its payment obligations. If the Customer subsequently resumes its payments, this authorisation shall only be reinstated if we issue an explicit declaration to the Customer to this effect.

(e)  If the realisable value of the securities exceeds our claims by more than 10%, we will release securities at our discretion at the Customer’s request.

 

Section 3: Customer’s duty of inspection, customer’s rights with regard to defects, scope of subsequent performance claims and area of application

 

(1)  The Customer must carefully examine and inspect the delivery items immediately after delivery/handover to the Customer or to a third party appointed by the Customer.

(2)  If the Customer is a merchant, the goods shall be deemed approved if we do not receive a written notice of defects concerning any obvious or other defects identified in the course of a prompt and thorough examination, either immediately after delivery/handover of the delivery item (in the case of obvious defects) or immediately after the defect is discovered or becomes noticeable to the Customer without closer inspection at any earlier point in time during normal use of the delivery item. As a general rule, immediate means within three working days. If the Customer fails to report defects within this period, any claims on the part of the Customer with regard to those defects shall be excluded. Otherwise, Sections 377 and 381 of the German Commercial Code (HGB) shall apply if the Customer is a merchant.

(3)  The Customer shall be advised of the importance of carrying out proper incoming goods inspections.

(4)  The Customer must allow us the necessary time and opportunity to meet our subsequent performance obligations; in particular, it must hand over the rejected goods for inspection. In the event of a replacement delivery, the Customer must return the defective items to us in accordance with statutory provisions. Subsequent performance does not involve dismantling the defective items or reassembling them if we were not originally obliged to carry out installation, unless this is justified when the interests of both parties are taken into consideration.

(5)  If the Customer uses the purchased item outside the relevant area of application (cf. Part II, Section 1 (3) of these GTC), it shall not be entitled to make any claims relating to the defectiveness of the item in question, particularly with regard to compensation for costs and expenses, insofar as the grounds for or amount of such claims can be attributed to usage outside the specified area of application. In particular, additional costs shall be borne by the Customer. The same applies if the Customer resells the item and the buyer then uses it outside the relevant area of application.

 

Section 4: Site accessibility

 

(1) For delivery free to construction site, the Customer must ensure that there is an unobstructed and sufficiently wide and load-bearing access route available. If, in individual cases, there is no such access route available, the Customer shall be liable for any additional costs (working time, downtime costs, travel time, etc.) and delays.

 

Section 5: Warranty period

 

(1)  The warranty period is based on the provisions of Section 438 of the German Civil Code (BGB).

(2)  According to Section 438 (1) (2) BGB, for example, a five-year warranty period shall apply for items that have been used for a building in accordance with the normal way they are used and have resulted in the defectiveness of the building concerned. Otherwise, a two-year warranty period shall apply in accordance with Section 438 (1)

(3) BGB. By way of derogation, the standard limitation period (usually three years) shall also apply pursuant to Section 438 (3) BGB if we have fraudulently concealed the defect.

 

 

 

Part III: Provisions for contracts for work and services

 

Section 1: Customer’s obligations (not exhaustive)

 

(1)  If the Customer becomes aware of any circumstances which could delay, hinder or disrupt the contractual performance of the work or services as stipulated in the contract, it must notify us of this immediately. If, when it arrives on site, the installation team is unable to carry out measuring, installation or similar work due to circumstances for which it is not responsible, the Customer shall be obliged to compensate us for the costs of the team’s wasted journey and the amount of work involved.

(2)  Unless the contract expressly stipulates otherwise, the Customer is obliged to do the following (amongst other things) at its own expense:

• Provide electricity, water, heating, lighting and connections;
• Complete any necessary preliminary work prior to the start of installation, insofar as this would affect the work done by us;
• Create the right conditions for carrying out work on the construction site, particularly in terms of ensuring site clearance and providing sufficient space for setting up the construction site and for storing materials;
• Take measures to protect the parts to be assembled;
• Assist us with the installation work where required.

 

Section 2: Amendments

 

(1)     If, after the contract has been concluded, the Customer wishes to make any modifications of the agreed result to be obtained by the work or any modifications necessary to achieve this result, the relevant statutory provisions shall apply (in particular Sections 650b and 650c of the German Civil Code, BGB), unless expressly agreed otherwise below.

(2)     We are free to set prices at our discretion when preparing an offer for augmented or reduced remuneration pursuant to Section 650b (1) BGB.

(3)     If the Customer does not accept the offer for augmented or reduced remuneration or (provided the relevant conditions are met) does not order the additional or reduced work to be performed in accordance with Section 650b (2) BGB, we shall be entitled to charge the Customer for the costs of preparing the offer. We can base our calculation of these expenses on our rates for labour, materials and travel costs that are valid at the time of the Customer’s modification request.

(4)     The implementation of a modification as defined in Section 650b (1) (1) BGB shall only be deemed reasonable for us if and insofar as it is technically possible, our operations are suitably equipped for doing so, the available personnel are qualified to do so, and the implementation would not be hindered by internal processes. In particular, the available capacities, capacity planning and the impact on other orders to be fulfilled, and periods of reduced capacity (e.g. company holidays and general holiday periods) need to be taken into account under internal processes. We are under no obligation to increase our capacities (e.g. by using subcontractors) to enable the modification to be implemented. If implementing the modification leads to a detriment that is deemed significant when the interests of both parties are taken into consideration, the implementation is unreasonable. Disruptions to the performance schedule caused by implementing the modification can also be considered a detriment. This applies in particular if the performance period is significantly extended. Our forecast at the time of the modification request shall provide the basis for assessing this.

(5)     If the Customer asks us to perform a specific service and the parties do not agree on whether this service is covered by the scope of the contractually agreed performance, compensation can be claimed for this service even if:

• we commence performing this service before the end of the period stipulated in Section 650b (2) BGB, and

• we indicate that we will claim additional compensation or that we reserve the right to do so, and
• it is (later) established or the parties agree that the requested service was not already required under the contract.

In this case, we shall be entitled to compensation in accordance with Section 650c BGB. Section 650c (3) BGB shall not apply to this compensation. The general rules regarding part payments shall apply.

(6)     If the Customer requests a modification within the meaning of Section 650b BGB, from receipt of this request we shall be prevented from performing our contractual services

• if and to the extent that the execution of the contractual performance is affected by the requested modification or dependent on it, or related to it in as far as performance of the contractual service is required in connection with the requested modification based on objective economic considerations, and

• until the Customer commissions our offer or issues an order pursuant to Section 650b (2) BGB, or until it makes a binding written declaration to us stating that it is withdrawing its request.

(7)     If we are not responsible for planning the contractual performance (in terms of implementation planning), then we shall also be prevented from performing our contractual services until the planning required for the modification on the Customer’s part has been completed and the plans are made available in an error-free state. If the Customer, as a merchant, issues its request within the contractually specified performance period, our capacity and readiness to perform shall be assumed.

(8)     The Customer’s right to issue orders in accordance with Section 650b (2) BGB is based on the assumption that the Customer has established the conditions necessary for us to make an offer. In particular, the Customer is obliged to make the plans required for the modification available unless we are responsible for planning the contractual performance (in terms of implementation planning). In this case, the period pursuant to Section 650b (2) BGB shall commence no earlier than upon receipt of the complete plans in an error-free state.

(9)     The prices agreed for the unchanged contractual services shall not be affected by the modification. Only the additional or reduced work resulting from the modification is paid for based on the cost actually required. We shall break down the actual augmented or reduced costs accordingly.

The actual labour costs shall be based on the wage costs for the relevant group of employees (based on productive hours), including all additional wage-related costs, social costs, non-wage labour costs and other benefits (e.g. formation of wealth). We shall decide whether to calculate this using the costs calculated as above for the employees deployed to implement the modification, the relevant average construction wage, or the average company wage for the employee group to which the deployed employees are assigned. When calculating the average wage, we are entitled to take wage costs for supervisors or foremen into account on a pro rata basis. As long as we provide the Customer with an overview of the average wages by no later than immediately after the contract is concluded, it shall be assumed that these correspond to the actual labour costs required in the event of any subsequent request by the Customer for modifications pursuant to Section 650b (1) BGB.

The actual equipment costs include the costs of keeping and maintaining (imputed depreciation, interest and repair costs), operating (with the operating costs classed as labour costs) and providing equipment, along with general equipment costs on a pro rata basis. Providing a price list from our material supplier is suitable as evidence of actual material costs. There is no need to provide purchase invoices. The actual costs calculated in this way shall be assumed to be necessary; this does not apply to consumer contracts.

(10)      If a modification requested and ordered by the Customer results in reduced costs compared to the original contractually agreed remuneration, the actual costs required shall be taken into account up to a maximum amount. This maximum amount shall correspond to the calculated remuneration for the original performance that has now been affected by the modification, excluding calculated contribution margins for general business expenses, construction site overheads and business risk and profit, which may not be reduced by the modification.

(11)      The following applies in the case of contracts with companies: if the Customer, being aware of the surcharge rates we have applied, accepts our offer regarding augmented or reduced remuneration due to a modification requested by the Customer (Section 650b (1) BGB) – or if, being aware of the surcharge rates we have applied, the Customer arranges payments based on an invoice issued by us for augmented or reduced remuneration due to a modification requested by the Customer – without objecting to the surcharge rates calculated, these rates shall also be assumed to be suitable for any future modification requests.

The same applies to the costs taken into account. For comparable work, it is presumed that the costs stated are the actual costs incurred and that the amount stated is what is required. If we provide evidence of cost increases (e.g. material prices, wages), the corresponding cost factor shall be adjusted. The presumption effect shall remain unaffected with regard to all other factors (e.g. time required).

(12)      If we keep our original calculation in a sealed envelope that has been initialled or signed by the contractual parties within 14 days after concluding the contract, this is also considered a valid means of lodging costing calculations pursuant to Section 650c (2) BGB. If the original calculation proves crucial to any questions regarding remuneration, we shall make the envelope available at the Customer’s request so that it can be opened and the original calculation viewed with both parties present. The original calculation shall then be enclosed in an envelope and initialled or signed by the parties again.

 

Section 3: Impediments, delays in construction and termination

 

(1)      If we believe we are being hindered in the proper performance of our work, we must notify the Customer of this. If the hindering circumstances and their (hindering) impact are obvious, notification of the impediment is not required.

(2)      Performance deadlines shall be extended if the impediment is caused by the following:

• Circumstances within the Customer’s sphere of risk;

• Strikes or lockouts organised by a professional representative body in our organisation or in an organisation working directly for us;
• Force majeure or other circumstances we cannot avoid (cf. also Part I,

Section 5 (force majeure clause)).

The deadline extension shall be calculated based on the duration of the impediment, with additional time allowed for resuming work and for any shifts into a less favourable time of year.

(3)      If one of the contractual parties is responsible for the hindering circumstances, the other party shall have the right to claim compensation for damages demonstrated to have been caused as a result, but only for loss of profit in the case of intent or gross negligence. Our claim to reasonable compensation in accordance with Section 642 BGB shall remain unaffected.

(4)      If we are not responsible for the disruption, the costs of clearing the construction site shall also be reimbursed unless they are included in the remuneration for work already completed.

 

Section 4: Raising objections and effects on warranty

 

(1)   If we have any objections against the type of performance planned (including with regard to protection against accident hazards), the quality of materials or components supplied by the Customer, or services provided by other contractors, we must notify the Customer of this. However, the Customer shall remain responsible for the information and instructions it provides or its deliveries.

(2)   If a defect can be attributed to the description of services, instructions or other specifications from the Customer, to materials or components supplied or required by the Customer or to the quality of prior work carried out by a different contractor, the Customer shall be liable. We shall also be liable along with (on a pro rata basis where applicable) or instead of the Customer if we are at fault for failing to notify the Customer of an objection pursuant to paragraph 1 above. This shall only apply if raising an objection would have prevented the defect from occurring or reduced the extent of the defect.

 

Section 5: Acceptance or partial acceptance

 

(1)  The Customer is obliged to accept the work we perform.

(2)  The Customer shall ensure that the person present on a given acceptance date is authorised to issue the declaration of acceptance. Unless we are provided with an explicit written declaration stating otherwise, we may assume that the person present on the acceptance date has been granted authorisation to accept.

(3)  Acceptance of self-contained portions of the work performed (partial acceptance) is expressly permitted. In this context, a portion of work is considered self-contained if it can be examined in its own right (i.e. separately from other components of the performance) to check that it conforms with the scope of services due. This may apply, in particular, to individual construction phases, levels of a building and services that are presented as individual items or under individual headings in the specifications.

(4)  Our performance shall be deemed to be accepted when the Customer puts the work performed into use at the latest and if the Customer does not notify us to the contrary, particularly with regard to any substantial defects, within a reasonable period of time from putting the work into use. As a general rule, a reasonable period means within three weeks.

 

Section 6: Warranty period

 

(1)  The warranty period shall be based on the provisions of Section 634a BGB.

(2)  In accordance with Section 634a (1) (1) BGB and subject to Section 634a (1) (2) BGB, this period shall be two years, for example, in the case of work which results in the manufacture, maintenance or alteration of an object or the provision of planning or monitoring services for this purpose. In accordance with Section 634a (1) (2) BGB, the warranty period shall be five years in the case of a building or work undertaken with the aim of providing planning or monitoring services for this purpose. In all other cases, the standard limitation period (usually three years) shall apply pursuant to Section 634a (1) (3) BGB. The standard limitation period shall also apply if we have fraudulently concealed a defect (cf. Section 634a (3) BGB).

 

Only the German version of these General Terms and Conditions is legally binding and valid.