A. General Terms and Conditions of schaltec GmbH (AGB) valid from 01.06.2017
1. Scope of application
1.1 The General Terms and Conditions of the company schaltec GmbH (hereinafter also referred to as the "Conditions") apply exclusively in business transactions of schaltec GmbH with registered office in 88518 Herbertingen, Rötenweg 16 (hereinafter referred to as "schaltec") with companies in the context of § 14 of the German Civil Code (BGB), legal persons under public law or public law special funds (hereinafter referred to as the "Customer").
1.2 These Conditions apply to all services within the framework of ongoing business relationships.
1.3 In addition to these Conditions, the following apply:
1.3.1 the schaltec price list for formwork renovation and replacement panels as amended
1.3.2 the relevant standards as amended, in particular DIN 4420 for working and protective scaffolding
1.3.3 the schaltec Specific Terms of Business in the version valid upon conclusion of the contract. These are:
188.8.131.52 Special schaltec conditionsfor the sale of replacement panels and second-hand goods (section B)
184.108.40.206 Special schaltec conditions for repair and renovation services (section C)
220.127.116.11 Special schaltec conditions for transport services (section D)
1.4 The applicability of part B of the Construction Tendering and Contract Regulations (VOB/B) is excluded.
2. Protective clause
These Conditions apply exclusively unless a different contractual agreement has been made explicitly in writing or has been acknowledged by schaltec in writing. Other regulations, in particular the general terms and conditions of the Customer, are not an integral part of the contract, even if schaltec has not expressly rejected them.
3.1 Second-hand goods are formwork and scaffolding, whose components and accessories have already been used for their intended use and may have corresponding traces of usage and repair.
3.2 Scaffolding is a temporarily built structure of variable length, width and height, which can be assembled from scaffolding components at the point of use, used in accordance with its intended use and dismantled again. The term "Scaffolding" will hereinafter be used for all items provided under a purchase contract which are intended for making the construction described in the preceding sentence. All scaffolding components and scaffolding accessories are also covered under the term "Scaffolding".
3.3 Replacement panels are formwork shells for formwork systems from different manufacturers that are used for the renovation or repair of formwork elements. Replacement panels have different sizes and are made of various materials, in particular wood, plywood and plastic. Replacement panels have different system-specific drilled holes and milled slots. If the replacement panel is wholly or partly made of wood, the swelling of the replacement panel is unavoidable due to the natural characteristics of the wood.
3.4 Purchase item refers to the second-hand goods and replacement panels contractually due from schaltec, whereby depending on the context, both the overall contractually due performance and parts of the contractually due performance can be meant.
3.5 Formwork in the context of these Conditions is the temporarily built casting mould of variable length, width and height, into which fresh concrete is poured for the production of concrete components. The term "formwork" will be used hereinafter for all items provided on the basis of a purchase or lease contract, which are intended for the production of the casting mould described in the preceding sentence. The term "formwork" also includes all formwork components and formwork accessories.
4. Conclusion of the contract
4.1 All contracts between the Customer and schaltec shall only be concluded subject to and under the following conditions:
4.2 Offers by schaltec are non-binding.
4.3 If the Customer accepts a non-binding offer from schaltec, a contract is not concluded until written order confirmation by schaltec.
4.4 All orders by the Customer are only binding for schaltec if a written and fully comprehensive confirmation of the Customer's order has been issued by schaltec and received by the customer. schaltec can also accept the offer of the Customer by delivering the ordered goods. If schaltec accepts the offer of the Customer by delivering the ordered goods, the delivery note shall replace the order confirmation.
4.5 In the case of verbal and telephone orders by the Customer, the contract is concluded when schaltec's order confirmation letter is received by the Customer and the Customer does not immediately object. The content of the contract, which has been concluded based on the verbal or telephone offer by the Customer, shall conform to the order confirmation letter created by schaltec and received by the Customer.
4.6 The Customer explicitly acknowledges the validity of these contractual conditions enclosed with the order confirmation or the offer, unless it objects to them within three days after receipt of the order confirmation letter. To be effective, the objection must be received by schaltec within three days after receipt of the order confirmation letter from schaltec.
4.7 Documentation of and about offers from schaltec shall remain the property of schaltec.
4.8 All agreements which deviate from these Conditions, as well as ancillary agreements, supplements and amendments to the contract concluded between schaltec and the Customer, require the written form to become effective and shall not be binding until written confirmation from schaltec.
5. Collateral and contract performance guarantee
schaltec shall not be obligated to assume warranty or contract performance security and / or contract performance guarantees.
6. Storage of personal data
Personal data will be stored by schaltec taking into account the statutory provisions.
7.1 The contract partners will not exploit, nor disclose to others, the business or trade secrets of the respective other contracting party, which have been entrusted to them or which have become known to them as such as a result of the cooperation during the term and after termination of the contract.
7.2 The contract partners will use technical information, in particular intentions, experiences, insights or constructions, to which they gain access within the framework of the contractual cooperation or which they receive from each other, only within the framework of their cooperation and will also handle it confidentially and not disclose it to any third party for five (5) years after the end of the term of this contract. This confidentiality obligation shall not apply to information that was demonstrably
- already known to the respective receiving contract partner before the cooperation as a result of this contract,
- received by the respective receiving contract partner from third parties,
- already generally known upon conclusion of this contract or subsequently became generally known without violation of the obligations contained in this contract,
- developed by the receiving contract partner within the framework of their own development.
7.3 The contract partners will correspondingly impose these confidentiality regulations on employees and vicarious agents working for them.
8. Applicable law
The applicable law is exclusively the law of the Federal Republic of Germany under exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).
9. Place of jurisdiction and place of performance
9.1 The place of jurisdiction for all disputes arising from the contractual relationship is the registered office of schaltec GmbH, Rötenweg 16, 88518 Herbertingen, Germany. schaltec reserves the right to file lawsuits at the statutory place of jurisdiction of the Customer.
9.2 The place of performance is the registered office of schaltec GmbH, Rötenweg 16, 88518 Herbertingen, Germany.
B. Special schaltec conditions for the sale of replacement panels and second-hand goods
1. Dates and deadlines
1.1 Delivery periods and dates are only binding if they have been confirmed by schaltec in the order confirmation letter, subject to the restrictions stipulated in section B.1.3 to 1.5.
1.2 Neither absolute nor relative fixed transactions are agreed between schaltec and the Customer with regard to the performance obligation of schaltec, unless a fixed transaction is expressly agreed in writing.
1.3 Deliveries will not begin until complete clarification of all execution details and confirmation of the delivery deadlines and dates. Compliance with any agreed delivery periods is conditional on the fulfilment of contractual and participation obligations of the Customer. In this respect, the Customer is liable to pre-performance.
1.4 Dates and deadlines do not start before provision of the necessary official certifications and licences by the customer and / or payment of the individually agreed contractual deposit owed by the Customer.
1.5 Impediments due to force majeure or other impediments, which lie outside the sphere of influence of schaltec as well as work stoppages, strikes, lockouts, state bans, war, embargo and operational interruptions shall extend the periods and postpone the dates accordingly by the length of time for which they persist.
2. Transfer of risk, shipping and packaging as well as costs for shipping and packaging
2.1 schaltec shall deliver ex works in Hebertingen. Partial deliveries by schaltec are permissible.
2.2 If the Customer or a carrier or forwarding agent appointed by the Customer assumes responsibility for transport of the purchase item, the Customer shall bear the transport risk from the time of handover of the purchase item to the forwarding agent, carrier or to the Customer themselves.
2.3 If schaltec assumes responsibility for transport of the purchase item, schaltec shall bear the transport risk until handover to the Customer.
2.4 Shipping method, shipping route and packaging will be determined by schaltec at its reasonable discretion.
2.5 The Customer shall bear the costs of shipping and packaging. The Customer shall also bear the costs of tolls incurred by the shipping.
3.1 Delivery of the purchased item takes place ex works schaltec Herbertingen.
3.2 A delivery note will be issued for the purchase item, in which inter alia the type and number of supplied parts of the purchase item are recorded.
3.3 Upon handover of the purchase item, the delivery note created pursuant to B.3.2 must be signed in duplicate by the Customer and by schaltec. schaltec and the Customer shall each receive a copy of the delivery note.
4.1 The purchase item must be received by the Customer, even if it has minor defects.
4.2 The customer must inspect the goods immediately after delivery and immediately raise objection to recognisable defects in writing. The inspection and objection obligation of the Customer shall be determined in accordance with § 377 of the German Commercial Code (HGB).
4.3 Partial deliveries by schaltec are permissible.
5.1 If the customer and schaltec agree that an acceptance of the purchase item must take place, the Customer must accept the purchase item in the plant or the warehouse of schaltec, whichever the parties agree on.
5.2 A record must be made of the acceptance of the purchase item, which records whether the purchase item was handed over in the agreed quantity, clean and free from defects.
5.3 If the Customer does not attend on the agreed acceptance date, although schaltec invited it in a timely manner and informed it of the consequences of non-attendance on the agreed acceptance date, the purchase item shall be deemed contractually accepted, unless the Customer is not responsible for its non-attendance.
6.1 The settlement price is the product of multiplying the number of units and the purchase price of the purchase item. If the number of units is not determined by counting, the settlement shall take place in accordance with the number of units of the purchase item specified in the delivery note.
6.2 If the parties have agreed that the purchase item shall be dispatched in several parts, which in total extend over a period of more than four (4) weeks, and if between contract conclusion and delivery there is an increase of material or raw material prices, wages or salaries, schaltec shall be entitled to increase the agreed prices. Any increase in prices must be notified to the Customer. At the Customer's request, schaltec must substantiate the factors which have been incorporated into the price increase, to the extent that they are included in the price increase. The Customer may rescind the contract from a total price increase of 30%, if it declares its rescission to schaltec in writing within two weeks after receipt of the notification of the price increase.
6.3 All prices are excluding sales tax.
7. Terms of payment
7.1 The purchase price is due for payment 14 days after receipt of the invoice by the customer.
7.2 The Customer shall not be entitled to rights of retention, unless the counterclaim, on which the right of retention is based, is legally established or acknowledged by schaltec.
7.3 The Customer may only assign claims against schaltec to third parties, regardless of the kind, with the written consent of schaltec.
7.4 If partial deliveries have been agreed upon, the entire amount of sales tax due on the total payment shall be payable upon the first partial payment by the Customer to schaltec.
7.5 Instalment payments are excluded, unless instalment payments have been explicitly agreed in writing.
8. Total maturity
8.1 If the Customer defaults on a payment, schaltec shall be entitled, after ineffectual expiry of two weeks after the occurrence of the default by the Customer, to demand immediate payment of all claims arising from the contractual relationship.
8.2 If it becomes recognisable after conclusion of the contract that the payment claim is at risk due to a lack of solvency on the part of the Customer, schaltec may refuse the performance incumbent on it, in accordance with § 321 of the BGB. The right to refuse performance pursuant to the preceding sentence shall not apply if the consideration is completely met or the Customer provides security in the amount of the consideration. If the consideration of the Customer does not have to be provided in cash, the right to refuse performance shall not apply if the Customer provides security in the amount of the value of the consideration or provides the consideration.
8.2.1 In the event that schaltec detects a threat to its payment claim due to a lack of solvency on the part of the Customer, it shall be entitled to demand immediate payment of all claims from the current business relationship with the Customer which have not become time-barred.
8.2.2 The defence of uncertainty of § 321 BGB extends to all other outstanding deliveries and services from the business relationship between the Customer and schaltec.
9. Retention of title and transfer of ownership
The purchase item shall remain the property of schaltec until full payment of the purchase price.
10. Non-fulfilment of a payment obligation
10.1 If schaltec should withdraw from the contract due to non-fulfilment of a payment obligation or due to conduct in breach of duty by the Customer or should take back the purchase item for other reasons based on the retention of title, the Customer shall return to schaltec any benefits derived therefrom and compensate schaltec for the loss of value based on unexploited benefits contrary to the rules of ordinary business.
10.2 The benefits to be returned by the Customer pursuant to section B.10.1 and the compensation for loss of value to be paid by the Customer pursuant to section B.10.1 must not exceed the purchase price. Also, the Customer must compensate schaltec for expenses which schaltec incurred due to reliance upon receipt of the performance by the Customers and should reasonably have incurred; this does not apply if the purpose of the expenditure would not have been achieved even without the breach of duty by the Customer.
11. Claims based on defects in the sale of second-hand goods and second-hand replacement panels
The sale of second-hand goods and second-hand replacement panels takes place under exclusion of any warranty and liability for defects.
12. Claims based on defects in the sale of new replacement panels
12.1 Insofar as the purchase item consists of new replacement panels, the following sections B. 12.2 to 12.12 apply.
12.2 schaltec does not grant any warranty.
12.3 schaltec shall make no commitments regarding the durability of the purchase item or the appearance and texture of the concrete surface, which is to be produced with the purchase item.
12.4 If the purchase item is defective, schaltec shall resupply or repair the defective purchase item.
12.5 The retention of title pursuant to section B.9 also applies for replacement parts within the framework of the subsequent delivery.
12.6 The subsequent performance shall be rendered by schaltec within a reasonable period of time.
12.7 The purchaser shall remain free to assert any further right to compensation.
12.8 If the purchaser is entitled to raise objection due to defects, schaltec shall bear the direct costs of the repair or in the case of subsequent delivery the costs of the replacement item as well as its shipping costs. A disassembly or removal of the purchase item as well as installation or removal of the new item is not due upon repair or subsequent performance.
12.9 schaltec shall be entitled to refuse subsequent performance if the costs of subsequent performance exceed the order value. If, despite exceedance of the order value, the purchaser demands subsequent performance at delivery locations outside the Federal Republic of Germany, and schaltec accepts this, then the costs of subsequent performance, which schaltec has to bear, shall be limited to the amount of the order value, and the rest borne by the purchaser.
12.10 schaltec shall be entitled to demand that the purchaser return the defective item and repay benefits derived and compensation for value loss for benefits not derived as a result of use contrary to the rules of proper business pari passu against handover and assignment as security of the delivered item for the purpose of subsequent performance. Thereby, schaltec shall be entitled to a compensation claim with regard to damages arising from the obligation to return performances received, which were attributably caused by the purchaser; this does not apply if the damages are due to the defects alleged by the purchaser or the purchaser is not responsible for the damages.
12.11 In the event of defects, the purchaser shall be entitled at its discretion to reduce the purchase price or withdraw from the contract, if the purchaser – taking into account statutory exceptions – has set schaltec a grace period for subsequent performance pursuant to § 437 no.2 and §323 para. 1 BGB and this period has expired without performance. It is not possible for the purchaser to withdraw from the contract, if the withdrawal is excluded under statutory provisions.
12.12 If there is no major defect, the purchaser shall merely be entitled to reduce the purchase price in accordance with § 437 no.2 and §440 BGB.
13.1 schaltec shall not be liable for the consequences of defects for which the defect claims are excluded pursuant to sections B.11 and 12. The liability of schaltec is further excluded if the Customer uses the purchase item contrary to the respectively applicable assembly and use instructions, or uses it along with its own items or components of other manufacturers.
13.2 Otherwise schaltec shall be only liable for damages – for whatever reason – in cases of wilful intent and gross negligence. This also applies to damages incurred by the Customer due to gross negligence of bodies or executives of schaltec or of vicarious agents of schaltec. Furthermore, schaltec shall also be liable in case of simple negligence
13.2.1 for damages resulting from injury to life, body or health,
13.2.2 for damages resulting from the breach of an essential contractual obligation (cardinal obligation); in this case, schaltec's liability shall be limited to foreseeable, typically occurring damages.
13.3 The preceding liability limitations do not apply if schaltec fraudulently concealed a defect, assumed a guarantee for the quality of the goods or is mandatorily liable under the German Product Liability Act.
13.4 Further liability – for any legal reason whatsoever – as well as compensation for damages not occurring to the purchase item are excluded.
13.5 Insofar as schaltec's liability is excluded or limited, this also applies to the liability of legal representatives, employees and vicarious agents of schaltec.
13.6 A reversal of the burden of proof is not linked to the provisions of this section 13.
14.1 schaltec shall be entitled to rescind the contract and all existing contracts with the Customer, as well as to the recovery and collection of the purchase item, if
- schaltec is entitled to a statutory or contractual right of rescission,
- the customer is more than 10 days in arrears with payment of a full monthly instalment, which was agreed between the Customer and schaltec; however, this only applies if the parties have exceptionally agreed payment in instalments in a permissible manner,
- a bill of exchange or cheque of the Customer is protested by the Customer or a third party,
- insolvency proceedings are pending or open over the assets of the Customer, whereby any administrator's rights after the insolvency shall remain unaffected or
- the Customer's credit unworthiness is established by at least one credit institution. This does not apply if the Customer provides security in the amount of the remaining purchase price claims of schaltec against the Customer, which is still outstanding at the time when schaltec found out about the Customer's credit unworthiness.
14.2 If schaltec exercises its right of rescission, or the Customer knows that schaltec is entitled to a right of rescission pursuant to section B.14.1, the Customer shall be liable for the deterioration or the loss of the purchase item even if it has observed the due care which it applies in its own affairs.
14.3 In the event of rescission, the services received, as well as the benefits derived must be returned and compensation paid for loss of value from benefits not derived contrary to the rules of proper business. Otherwise, the contractual relationship shall be converted into an obligation to return performances received with rights and obligations pursuant to §§ 346 to 354 BGB.
14.4 The Customer shall bear the costs incurred by schaltec from withdrawal of the purchase item within the framework of rescission of a contract.
C. Special schaltec conditions for repair and renovation services
1. Definition of terms and scope of application
1.1 The Client is the customer of schaltec which commissions schaltec to render repair or renovation services for itself or third parties.
1.2 The Contractor is schaltec, which is commissioned by the Client to render repair or renovation services.
1.3 Repair and renovation services are activities that schaltec carries out for the Client or for third parties specified by it. This includes in particular processing of goods, repair, cleaning, renovation and quality control of formwork and scaffolding.
2. Obligations of the Client, protection of intellectual property
2.1 The Client is obligated to provide the items, information and rights necessary for the rendering of repair and renovation services and to afford any agreed acts of cooperation. The Client must
- provide (primary) products and materials,
- inform schaltec about specific features of the goods and procedures and associated statutory, regulatory, or trade association requirements and – if necessary – train its employees and
- develop and update guidelines, procedural and material descriptions (manufacturing instructions, constructions and plans) and let schaltec verify their compliance. These advance services and acts of cooperation must be rendered promptly and in full. They include all the necessary information which is necessary for optimal capacity planning.
2.2 They documents provided pursuant to section C.2.1 shall remain the intellectual property of the Client.
3. Obligations of the Contractor
schaltec is obligated to render its services in accordance with the specifications of the Client pursuant to section C.2. schaltec is entitled, but not obligated, to inspect the specifications of the Client.
4. Cost estimate
4.1 Cost estimates provided by schaltec to the Client are non-binding.
4.2 Furthermore, the provisions of section B.3 shall apply accordingly.
5. Impediments to performance, force majeure
5.1 Impediments to performance which are not attributable to the risk area of a contract party release the contract party from their performance obligations for the duration of the disturbance and to the extent of its effect. Strikes and lock-outs, force majeure, unrest, war-like or terrorist acts, official measures and other unforeseeable, unavoidable and serious events are considered impediments to performance.
5.2 In the case of a release pursuant to C.4.1, each contract party shall be obligated immediately to inform the other party and to minimise the impact for the other party as far as reasonable.
6. Lien and right of retention, retention of title
6.1 On account of all due and pending claims against the Client, to which schaltec is entitled from the activities specified in section C.1.1, schaltec has a lien and a right of retention on the goods or other assets of the Client under its control. The lien and right of retention does not extend beyond the statutory lien and right of retention.
6.2 The Client shall be entitled to prohibit the exercise of the lien, if it grants schaltec an equivalent means of security (e.g. an absolute bank guarantee).
6.3 Section C.3.2 shall remain unaffected.
7. Notice of defects
7.1 The Client is obligated to notify schaltec immediately in writing of obvious defects upon acceptance. The punctual dispatch of the notification is sufficient for meeting the deadline within the context of the preceding sentence, provided the notification is received by schaltec.
7.2 If the Client fails to provide immediate notification of obvious defects pursuant to section C.7.1, the repair and renovation services rendered by schaltec shall be deemed contractually fulfilled, unless schaltec has fraudulently concealed the defect.
8. Warranty claims of the Client
8.1 The defectiveness of a repair and renovation performance shall be determined according to the contents of the contract and statutory provisions. Quality or durability guarantees shall only be assumed by schaltec if these are specifically designated as such in the contract and expressly agreed in writing.
8.2 If the repair or renovation performance is defective and the statutory requirements are met, the Client shall be entitled to rectification.
9. Special right of termination
9.1 If one of the parties twice breaches essential contractual obligations and this leads to a significant operational interruption for the other party, the other party shall be entitled to terminate this contract with a reasonable period of notice, after it has granted the contract-infringing party a reasonable grace period to eliminate the breach of duty and this period has expired, without the contract-infringing party fulfilling its obligations.
9.2 The right to the extraordinary termination for good reason remains unaffected.
10. Indemnity claims of the Contractor
The Client must indemnify schaltec and its vicarious agents against all claims of third parties pursuant to the Product Liability Act and other third-party protective legislation, unless schaltec or its vicarious agents have caused the claim of the third party wilfully or through gross negligence.
11. Statute of limitations
11.1 Claims arising from a contract pursuant to section C.1.1 shall become time-barred in one year.
11.2 The limitation period for all claims begins at the end of the day of delivery, in case of performance contracts at the end of the day of acceptance.
11.3 The preceding limitation periods shall not apply
- in case of injury to life, body, health or
- if statutory limitation provisions must compulsorily be applied.
12. The Contractor's liability insurance
12.1 schaltec shall conclude liability insurance at standard market conditions with an insurer of its choice and maintain this.
12.2 In the case of conclusion of a liability insurance contract pursuant to C.12.1, the agreement of a maximum compensation per claim per year is permissible; likewise, the agreement of an excess for schaltec.
12.3 At the request of the Client, schaltec shall prove the liability insurance cover with a confirmation by the insurer.
13.1 schaltec shall be liable for damages which schaltec culpably caused to the Customer, in accordance with statutory provisions.
13.2 Furthermore, the liability of schaltec shall be contractually limited as follows: schaltec shall only be held liable for compensation of damages – for whatever reason – in cases of wilful intent and gross negligence. Furthermore, schaltec shall also be liable in case of simple negligence
13.2.1 for damages resulting from injury to life, body or health,
13.2.2 for damages resulting from the breach of an essential contractual obligation (cardinal obligation); in this case, schaltec's liability shall be limited to foreseeable, typically occurring damages.
13.3 In addition, schaltec shall be liable for damages caused to the Customer by gross negligence of bodies or executives of schaltec.
13.4 The preceding liability limitations do not apply if schaltec fraudulently concealed a defect, assumed a guarantee for the quality of the goods or is mandatorily liable under the German Product Liability Act.
13.5 Further liability – for any legal reason whatsoever – as well as compensation for damages which are not due to instructions by schaltec, are excluded.
13.6. Insofar as schaltec's liability is excluded or limited, this also applies to the liability of legal representatives, employees and vicarious agents of schaltec.
13.7 A reversal of the burden of proof is not linked to the provisions of this section.
14. Right to reject repair and renovation services
schaltec shall be entitled wholly or partly to refuse repair or renovation if, in the course of the repair and renovation services to be rendered by schaltec, it emerges that the due repair and / or renovation is not possible or is only possible with a disproportionately high effort.
schaltec shall be entitled to have the agreed repair and renovation services rendered by a third party.
The Customer hereby expressly agrees to the assignment by schaltec of repair and renovation services to third parties (sub-contractors).
D. Special schaltec conditions for transport services
1.1 Transport services may be agreed as ancillary services between the Customer and schaltec in writing.
1.2 schaltec shall generally not render transport services itself, but shall commission a carrier or freight forwarder for this.
The transport of formwork and / or scaffolding shall take place ex works Herbertingen, unless expressly agreed otherwise in writing.
3. Transport risk
Insofar as schaltec assumes the transport of formwork and / or scaffolding, schaltec shall bear the transport risk from handover of the formwork and / or scaffolding to schaltec up to the handover of formwork and / or scaffolding to the customer.
The remuneration of transport services shall be governed by the contractual agreements.
5. Validity of the General German Conditions for Forwarding Agents (A D S p)
In addition, the General German Conditions for Forwarding Agents
(A D S p) as amended shall apply for the rendering of transport services.The General German Conditions for Forwarding Agents can be found at www.adsp.de .
Registered office of the company: Herbertingen
Register court of Ulm:
Commercial register HRB 731391