A. General Terms and Conditions of schaltec GmbH (GTC)
1. Scope of application
1.1 The General Terms and Conditions of schaltec GmbH (hereinafter also referred to as ‘Terms and Conditions’) shall apply exclusively to business transactions of schaltec GmbH, which has its registered office at 88518 Herbertingen, Rötenweg 16 (hereinafter referred to as ‘SCHALTEC’), with entrepreneurs within the meaning of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), legal entities under public law or special funds under public law (hereinafter referred to as ‘Customer’).
1.2 The subject matter of these Terms and Conditions shall be all deliveries and services which SCHALTEC provides to Customers. Deliveries and services are provided exclusively under these Terms and Conditions. Other provisions, in particular general terms and conditions of the Customer, shall not apply, irrespective of whether they have been expressly rejected by SCHALTEC or not. These T&Cs shall also apply exclusively if SCHALTEC executes or accepts a delivery or service without reservation in the knowledge of other terms and conditions.
1.3 In addition to these Terms and Conditions, the following relevant documents and regulations shall form part of the contract and these Terms and Conditions:
1.3.1 - the schaltec price list as amended;
1.3.2 - the relevant standards as amended, in particular DIN 4420 for working and protective scaffolding; and
1.3.3 - the schaltec Special Terms and Conditions in the version valid at the time of concluding the contract. These are:
1.3.4 - the schaltec Special Terms and Conditions for the Sale of Replacement Plates and Used Goods (Section B);
1.3.5 - the schaltec Special Terms and Conditions for Repair and Refurbishment Services (Section C); and
1.3.6 - the schaltec Special Terms and Conditions for Transportation Services (Section D).
1.4 The applicability of Part B of the German Construction Contract Procedures (Vergabe- und Vertragsordnung für Bauleistungen, VOB/B) is excluded.
1.5 Unless otherwise agreed, the Terms and Conditions shall apply in the version applicable at the time the respective contract is concluded with the Customer.
1.6 These Terms and Conditions shall also apply to future similar legal transactions between SCHALTEC and the Customer.
1.7 References to the applicability of statutory provisions shall only be of clarifying significance. The statutory provisions shall therefore apply irrespective of any corresponding clarification, insofar as they are not directly amended or expressly excluded in these Terms and Conditions.
2.1 Used goods are formwork and scaffolding, their components and accessories, which have already been used for their intended purpose and may therefore show signs of use and repair.
2.2 Scaffolding refers to temporarily erected building structures of variable length, width and height, which can be assembled from scaffolding components at the point of use, used for their intended purpose and dismantled again. The term ‘scaffolding’ is hereinafter used for all items provided on the basis of a purchase contract
which are intended for the manufacture of the construction described in the
preceding sentence. The term ‘scaffolding’ also includes all scaffolding components and accessories.
2.3 Replacement plates are formwork skins for formwork systems from various manufacturers that are used for refurbishing or repairing formwork elements. Replacement plates are of different sizes and are made of different materials, especially wood, plywood and plastic. Replacement plates have different holes and milling which are system-specific. If the replacement plate is made entirely or partly of wood, replacement panel swelling is unavoidable due to the natural properties of wood.
2.4 Purchase item means the new and used goods owed by SCHALTEC under the purchase contract, where based on the respective context, this can mean both the entire contractually owed performance and parts of the contractually owed performance.
2.5 New goods are formwork and scaffolding manufactured by third parties, their components and accessories, which have not already been used for their intended purpose or for any other purpose.
2.6 For the purposes of these Terms and Conditions, formwork refers to temporary moulds of variable length, width and height into which fresh concrete is placed to manufacture concrete components. The term ‘mould’ is hereinafter used in reference to all items provided on the basis of a purchase or leasing contract which are intended for the manufacture of moulds described in the preceding sentence. The term
‘formwork’ also includes all formwork components and accessories.
2.7 Refurbishment of formwork within the meaning of these Terms and Conditions refers to cleaning, straightening and welding wall and slab formwork systems as well as covering them with new formwork skins.
2.8 Reserved goods means goods to which SCHALTEC retains title within the framework of a purchase contract.
3. Conclusion of contract
3.1 All contracts between the Customer and SCHALTEC shall only be concluded in accordance with and subject to the following Terms and Conditions:
3.2 Offers from SCHALTEC are subject to change.
3.3 Acceptance by the Customer of an offer from SCHALTEC which is designated as being subject to confirmation shall only bring a contract into existence through a written order confirmation issued by SCHALTEC.
3.4 All orders placed by the Customer shall only become binding for SCHALTEC once the Customer has received a written order confirmation issued by SCHALTEC which includes the Customer’s request in full.
3.5 For verbal orders and orders placed by telephone by the Customer, the contract shall be concluded when the Customer receives the order confirmation letter from SCHALTEC and the Customer does not immediately object to it. The content of the contract concluded on the basis of the Customer’s (remote) verbal request shall be governed by the order confirmation letter drawn up by SCHALTEC and received by the Customer.
3.6 The Customer explicitly accepts the validity of these contractual Terms and Conditions which are attached to the order confirmation or the offer, unless they object within three days of receiving the order confirmation letter from SCHALTEC. To be effective, the objection must be received by SCHALTEC within three days of receipt of SCHALTEC’s
order confirmation letter.
3.7 Documents for offers and regarding offers from SCHALTEC remain the property of SCHALTEC.
3.8 All agreements which deviate from these Terms and Conditions, as well as subsidiary agreements, supplements and amendments to the contract concluded between SCHALTEC and the Customer must be in writing in order to be effective and shall only become binding upon written confirmation by SCHALTEC.
SCHALTEC is entitled to assign all receivables against the Customer to third parties without the Customer’s prior consent. The Customer may not transfer to third parties, in whole or in part, the rights and obligations to which it is entitled in connection with deliveries and/or services without SCHALTEC’s prior written consent.
- 5. Collateral and contract performance guarantee SCHALTEC is not obliged to provide guarantee or contract performance collateral and/or contract performance guarantees.
- 6. Storage of personal data Personal data is stored by SCHALTEC in compliance with the statutory provisions. SCHALTEC reserves the right to store data from the contractual relationship with the Customer in line with the statutory provisions for the purpose of data processing and, insofar as it is necessary for the fulfilment of the contract, to transmit it to third parties (such as insurance companies).
7.1 The contractual partners shall not exploit business or trade secrets of the respective contractual party which have been entrusted to them or which have become known to them as such on the occasion of the cooperation during the term and after termination of the contract and shall not disclose these to third parties without the prior written consent of the respective contractual party.
7.2 The contractual partners shall only use other confidential information, in particular technical information, intentions, experience, findings or designs, which become accessible to them in the context of the contractual cooperation or which they receive from each other, in whatever form, in the context of their cooperation and shall keep these confidential for five (5) years after the end of the remaining term of this contract and shall not make them accessible to any third party without the prior written consent of the disclosing contractual party. This confidentiality obligation does not apply to information that:
- was demonstrably already known to the respective receiving contractual partner prior to the cooperation on the occasion of this contract and for which there is no other duty of confidentiality;
- is demonstrably lawfully received by the respective receiving contractual partner from third parties;
- is demonstrably already public knowledge when this contract is concluded or subsequently becomes public knowledge without any breach of the obligations contained in this contract;
- the receiving contractual partner has demonstrably developed within the scope of its own development without recourse to or use of confidential information; or
- on the basis of a statutory, official or judicial
order, the receiving contractual partner is demonstrably required to disclose, in which case the receiving contractual partner shall inform the disclosing contractual partner prior to disclosure and limit disclosure as much as possible.
7.3 The contractual partners shall bind the employees and vicarious agents working for them to this confidentiality obligation.
8. Applicable law
The applicable law is exclusively the law of the Federal Republic of Germany, excluding 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 exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship shall be the regional court where SCHALTEC’s headquarters are based; schaltec GmbH, Rötenweg 16, 88518 Herbertingen, GERMANY. SCHALTEC reserves the right to bring an action at the Customer’s legal place of jurisdiction.
9.2 Unless otherwise stipulated, the place of performance shall be where SCHALTEC’s headquarters are based; schaltec GmbH, Rötenweg 16, 88518 Herbertingen, GERMANY.
10.1 The Customer may only offset claims of SCHALTEC or exercise a right of retention if the Customer’s counterclaim is undisputed, a legally binding title exists or the counterclaim is based on the same contractual relationship.
10.2 Should individual provisions of these T&Cs be or become invalid, this shall not affect the validity of the remaining provisions.
B. schaltec Special Terms and Conditions for the Sale of New and Used Goods
Unless otherwise stated, the Customer shall be
referred to as the ‘Buyer’, SCHALTEC as the ‘Seller’ and the goods owed under the purchase contract as the ‘Purchased Item’.
2. Dates and deadlines
2.1 Delivery periods and dates are only binding if they have been expressly referred to and confirmed as ‘binding’ in the order confirmation letter drawn up by SCHALTEC and subject to the restrictions regulated in Sections B.2.3 to 2.6. Subsequent changes to the contract may lead to an extension of the agreed delivery periods and postponement of the delivery dates.
2.2 Neither absolute nor relatively fixed transactions are agreed between SCHALTEC and the Customer with regard to SCHALTEC’s obligation to perform, unless a fixed transaction is expressly agreed in writing.
2.3 Deliveries shall only commence after complete clarification of all execution details and confirmation of the delivery periods and dates by SCHALTEC in writing or text form.
2.4 However, delivery periods shall not commence before the Buyer has fulfilled any contractual obligations and duties of cooperation that may exist, has provided the necessary official certificates and approvals and, if advance payment has been agreed, not before SCHALTEC has received the agreed payment.
2.5 If SCHALTEC’s sub-supplier does not make the relevant delivery for the new goods ordered by the Customer, or does not
do so on time, the agreed delivery periods and dates shall be extended in each case by the duration of the impediment plus a reasonable start-up period, provided that the reasons for the sub-supplier’s failure to deliver, or to deliver correctly or on time, do not fall within SCHALTEC’s area of responsibility.
2.6 In the event of non-binding delivery periods or delivery dates which have been extended in accordance with the above provisions, SCHALTEC shall not be in default before the expiry of a reasonable period for delivery set by the Buyer in writing to no avail.
2.7 Impediments due to force majeure or other unforeseeable impediments for which SCHALTEC is not responsible, e.g. work stoppage, strike, lockout, government prohibitions, war, embargo and operational disruptions, shall extend the periods and postpone the deadlines accordingly by the time of their continuation plus a reasonable start-up period. SCHALTEC shall not be responsible for the aforementioned circumstances even if they occur during a delay that already exists. SCHALTEC shall inform the Customer as soon as possible of the start and the expected end date of such circumstances. If the hindrance lasts for six weeks or longer, both contractual partners may withdraw from the contract.
3. Transfer of risk, shipping and packaging and costs for shipping and packaging
3.1 SCHALTEC delivers EXW Incoterms 2020 ex works from Herbertingen.
3.2 Partial deliveries on the part of SCHALTEC are permissible insofar as their acceptance is not unreasonable for the Buyer, in particular if delivery of the remaining Purchased Item ordered is ensured and the Buyer does not incur any significant additional expense or costs as a result of this (unless SCHALTEC agrees to bear these costs). Each partial delivery may be invoiced separately.
3.3 If the Buyer or a carrier or forwarder commissioned by the Buyer undertakes delivery of the Purchased Item, the Buyer shall bear the transportation risk from the time the Purchased Item is handed over to the forwarder, carrier or to the Buyer itself.
3.4 Insofar as it is agreed in an individual case that SCHALTEC shall undertake delivery of the Purchased Item, SCHALTEC shall bear the transportation risk until the Purchased Item is handed over to the Customer.
3.5 The delivery method, the transport route and packaging shall be determined by SCHALTEC at its reasonable discretion.
3.6 The costs for shipping and packaging are to be borne by the Customer. The Customer shall also bear any toll charges incurred as a result of the delivery.
4.1 A delivery note shall be issued for the Purchased Item, which must state, among other things, the type and number of the delivered parts of the Purchased Item.
4.2 On handover of the Purchased Item, the delivery note drawn up in accordance with Section B.4.1 must be signed by the Customer. The Customer shall receive a copy of the delivery note.
5. Default of acceptance
5.1 The Buyer shall be in default of acceptance if it does not collect the Purchased Item on the bindingly delivery date agreed or, in the case of contractually agreed acceptance, does not accept it despite it being ready for acceptance. In the case of non-binding delivery periods or delivery dates, SCHALTEC may notify the Buyer with a notice period of two weeks that the Purchased Item is ready for
collection and/or, in the case of contractually agreed acceptance, is ready for acceptance; if the Buyer does not collect and/or accept the goods by the time the deadline passes, it shall be in default of acceptance.
6.1 If the Customer and SCHALTEC agree that acceptance of the Purchased Item is to take place, acceptance shall determine the transfer of the risk of accidental loss and accidental deterioration of the Purchased Item. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to agreed acceptance. The Buyer shall accept the Purchased Item at the Herbertingen plant or at the SCHALTEC warehouse agreed by the contractual partners.
6.2 Handover or acceptance shall be deemed equivalent if the Buyer is in default of acceptance. In particular, if the Buyer does not appear on the agreed acceptance date, even though SCHALTEC has summoned it in good time and informed it of the consequences of non-appearance on the agreed acceptance date, the Purchased Item shall be deemed to have been accepted in accordance with the contract, unless the Buyer is not responsible for non-appearance.
6.3 The Purchased Item is to be accepted by the Customer, even if it has insignificant defects.
7.1 The price of the Purchased Item shall be determined by the respective contract. If the Purchased Item consists of several individual parts, the total purchase price and the price to be used for settlement is determined by multiplying the number of units and the purchase price for the Purchased Item. If the number of units is not determined by counting, settlement with regard to the number of units of the Purchased Item shall be made according to the information in the delivery note.
7.2 If, between the conclusion of the contract and delivery, there are changes in costs incurred by SCHALTEC, in particular due to changes in the prices of materials or raw materials, collective wage agreements or other price changes for sub-suppliers or exchange rate fluctuations for which SCHALTEC is not responsible and which could not have been foreseen with sufficient certainty, SCHALTEC shall be entitled to adjust the agreed prices accordingly. The Buyer shall be notified of the price adjustment. At the request of the Buyer, SCHALTEC shall provide the Buyer with evidence of the factors involved in the price increase and the extent of the price increase. From total price increases of more than 10%, the Buyer can withdraw from the contract if it declares the withdrawal in writing to SCHALTEC within two weeks of receiving notification of the price increase.
7.3 All prices are exclusive of VAT.
8. Terms of payment
8.1 The purchase price is due for payment 30 calendar days after delivery and after receipt of the invoice by the Customer, unless payment in advance has been agreed or unless there is another agreement in place. Unless otherwise agreed, payments shall be made in euros.
8.2 The Customer shall not be entitled to rights of retention unless the counterclaim on which the right of retention is based has been legally established or recognised by SCHALTEC.
8.3 The Customer may only assign claims of whatever nature against SCHALTEC to third parties with SCHALTEC’s written consent.
8.4 Instalment payments are excluded unless instalment payments have been expressly agreed in writing.
9. Default in payment, Customer’s inability to perform
9.1 If the payment deadline passes to no avail, the Customer shall be in default without further reminder. Receipt of the invoice amount to SCHALTEC’s specified account shall determine the timeliness of payment.
9.2 During the period of default, the Customer shall pay default interest in the amount determined by law. The default interest rate is currently nine percent above the respective base rate for the year. Further claims for damages remain unaffected.
9.3 If the Customer default on at least two payments from the business relationship with SCHALTEC, SCHALTEC is entitled, after 2 weeks passes to no avail following the occurrence of the second default by the Buyer, to call due all receivables from all business relationships with SCHALTEC.
9.4 If, after the conclusion of the contract with the Customer, it transpires that, due to the Customer’s financial situation, the fulfilment of its contractual obligations is at risk (in particular in the event of cessation of payments, the filing of an application to commence insolvency proceedings, seizure and enforcement measures), SCHALTEC shall be entitled, at its own discretion, to withhold delivery of the Purchased Item and/or to refuse to provide other services until the Customer has made advance payment or has provided appropriate collateral.
10. Retention of title and transfer of ownership
10.1 The Purchased Item shall remain the property of SCHALTEC until the purchase price has been paid in full. For current invoices, SCHALTEC shall use the reserved goods as collateral for SCHALTEC’s balance invoice. If SCHALTEC’s liability under a bill of exchange is established in connection with the payment of the purchase price, the retention of title shall not expire until the bill of exchange has been honoured by the Buyer as drawee.
10.2 As long as the purchase price has not been paid in full, the Buyer does not have the right to resell the reserved goods. The Buyer shall only be entitled to resell the reserved goods if SCHALTEC expressly agrees this with the Buyer in writing. If the Buyer still resells reserved goods, SCHALTEC shall be entitled to demand an appropriate contractual penalty from the Buyer, the amount of which shall be determined by the competent court at its reasonable discretion; this shall not apply if the Buyer proves that it is not responsible for the resale of the reserved goods. With respect to the competent court determining the amount of the contractual penalty, due consideration shall be given to potential damage suffered by SCHALTEC and the advantages gained by the Buyer.
10.3 The fulfilment of individual receivables in current account does not cancel the retention of title.
10.4 The fact that SCHALTEC includes individual receivables against the Buyer in a current invoice or offsets them against Buyer receivables or otherwise draws balances against the Buyer shall not cancel the
retention of title.
10.5 If the reserved goods are processed by the Buyer to form a new movable item or either combined with property so that they become an integral part of the property or combined with a movable item so that these items become an integral part of a uniform item, processing or combination shall be carried out for SCHALTEC without SCHALTEC being obliged to act or refrain from acting as a result. If the reserved goods are processed and combined with items that do not belong to the Buyer, SCHALTEC shall acquire co-ownership of the new item in proportion to the value of the reserved goods at the time of processing or combination to the items with which the reserved goods were combined or to which they were processed.
10.6 If SCHALTEC loses ownership of the Purchased Item after processing or combination or if it suffers any other loss of rights within the meaning of Section 951 of the BGB, SCHALTEC may demand payment of the full purchase price from the Buyer, insofar as this has not yet been settled. This shall only apply if the Buyer does not fulfil its payment obligation without undue delay after the circumstances of the loss of rights within the meaning of the preceding sentence became known to the Buyer or should have been known to it, or the Buyer was not or is no longer bound by the obligation under the purchase contract.
10.7 The Buyer is obliged to store the reserved goods purchased from SCHALTEC separately from other formwork and scaffolding goods. If reserved goods are mixed/blended with other formwork and scaffolding goods contrary to the Buyer’s obligation within the meaning of the preceding sentence and if the reserved goods can no longer be separated from other formwork and scaffolding goods, SCHALTEC shall become co-owner in accordance with the statutory provisions.
10.8 If the Buyer acquires sole ownership or co-ownership of the Purchased Item as a result of the mixing/blending, the Buyer shall transfer co-ownership of the Purchased Item to SCHALTEC in proportion to the value of the reserved goods to the other formwork and scaffolding goods at the time of the mixing/blending upon conclusion of the purchase contract. The value of the other formwork and scaffolding goods shall be determined by SCHALTEC at its reasonable discretion. In this case, the Buyer shall store the goods owned or co-owned by SCHALTEC free of charge, which are also to be regarded as reserved goods in accordance with the aforementioned criteria.
10.9 If reserved goods are sold by the Buyer by themselves or together with other goods, the Buyer shall, upon conclusion of the purchase contract for reserved goods, assign to SCHALTEC the receivables arising from the resale of the reserved goods in the amount of the value of the reserved goods with all ancillary rights and ranks, without assigning this receivable to third parties elsewhere or with priority. In the event of a blanket assignment affecting the Buyer, the receivable to be assigned by the Buyer to SCHALTEC shall be deemed to have been assigned to SCHALTEC and the Buyer from the outset, insofar as the blanket assignment does not intervene, the blanket assignment is ineffective or it provides for the release of a receivable. In this respect, the aforementioned receivable against the Buyer and third parties shall be deemed to have been assigned with priority. If the resold reserved goods are co-owned by SCHALTEC, the assignment of the receivable shall extend to the amount corresponding to SCHALTEC’s share value in the co-ownership. The value of the goods shall be determined according to
the list price, which shall be determined by SCHALTEC at its reasonable discretion, taking into account any used goods discount.
10.10 At SCHALTEC’s request, the Buyer is obliged to promptly provide SCHALTEC with all information and to hand over all documents which are necessary to enable SCHALTEC to assert its rights against the Buyer’s customers.
10.11 Subject to revocation, SCHALTEC authorises the Buyer to collect the receivables referred to in Section
10.12 SCHALTEC shall not make use of its own collection authority as long as the Buyer also declares its payment obligation to all third parties against whom the Buyer has a claim for payment which is not necessarily due and enforceable, but which exists as a result of the resale of the reserved goods.
10.13 At SCHALTEC’s request, the Buyer shall name debtors of the assigned receivable and notify them of the assignment of the receivable to SCHALTEC.
10.14 The Buyer shall promptly inform SCHALTEC of any compulsory enforcement measures by third parties against the reserved goods or against assigned receivables, handing over any documents necessary for the objection. If payments stop or if an application is submitted to commence insolvency proceedings, the right to resell, use or install the reserved goods and the authorisation to collect assigned receivables shall expire. For a cheque or bill of exchange process, the direct debit authorisation also expires. In this case, SCHALTEC is entitled to collect its reserved goods.
10.15 SCHALTEC must be immediately notified of any seizure or confiscation of the reserved goods by a third party. Any resulting intervention costs shall in any case be borne by the Buyer, unless they are borne by third parties.
10.16 On the basis of the invoice documents, SCHALTEC and the Buyer shall mutually come to an agreement regarding which goods are to be singled out as its property. If the Buyer does not cooperate with respect to the separation of goods referred to in the preceding sentence, SCHALTEC shall be entitled to determine the separation of goods alone with the assistance of an expert commissioned by SCHALTEC. The expert shall be selected by SCHALTEC at its reasonable discretion. This does not apply if the Buyer is not responsible for non-cooperation with respect to the separation of goods. If an expert is called in, their costs shall be borne by the Buyer, unless the Buyer is not responsible for non-cooperation with respect to the separation of goods.
10.17 If the collateral for the purchase price claim against the Buyer to which SCHALTEC is entitled on the basis of the advance assignment in accordance with Section 10.9 exceeds the value of the secured receivable by more than 10 percent, SCHALTEC shall be obliged to effect a reassignment or release at the Buyer’s discretion. The value of the secured receivable shall be determined by the price invoiced by SCHALTEC to the Buyer.
10.18 If the Buyer includes a receivable assigned to SCHALTEC from a resale of reserved goods in a current account relationship that it has with its customers, the current account receivable shall be assigned in full. After balancing, the current account receivable shall be replaced by the recognised balance, which shall be deemed to have been assigned
up to the amount of the original receivable.
10.19 The Buyer cannot acquire ownership of the Purchased Item by replacing handover by agreeing a legal relationship between SCHALTEC and the Buyer by virtue of which the Buyer obtains indirect possession, unless this type of transfer of ownership has been explicitly agreed in writing.
10.20 If a third party is in possession of the Purchased Item, for transfer of ownership, handover can be replaced by SCHALTEC assigning to the Buyer its claim to surrender the Purchased Item against the third party; however, this shall only apply if the parties explicitly agree to this in writing.
- 11. Claims for defects when selling used goods Used goods and used replacement plates are sold to the exclusion of any warranty and liability for defects. However, this shall not apply to SCHALTEC’s liability for personal injury or damage to health or for damage caused intentionally or due to gross negligence.
12. Claims for defects when selling new goods
12.1 The Customer’s rights in respect of defects presuppose that the Customer complies with its duty to inspect and give notice of defects in accordance with Section 377 of the German Commercial Code (Handelsgesetzbuch, HGB).
12.2 Complaints must be made in writing with specific indication of the defect. SCHALTEC must be notified in writing of complaints due to incomplete delivery and other recognisable defects without delay, but within 14 days of delivery at the latest; notification of hidden defects must be given without delay, but within 14 days of discovery at the latest. Acceptance of the goods may not be refused due to insignificant defects. Any claims in relation to late notification of defects are excluded.
12.3 The Buyer shall bear the costs of inspecting the Purchased Item. Purchased Items which are reported as defective must be made available to SCHALTEC for inspection on request.
12.4 The statutory provisions shall apply to the Buyer’s rights in the event of defects, unless otherwise stipulated below.
12.5 SCHALTEC does not grant any warranty.
12.6 SCHALTEC does not make any promises about the durability of the Purchased Item or about the appearance and condition of the concrete surface to be produced with the Purchased Item.
12.7 If the purchased item is defective, SCHALTEC shall, at its own discretion, deliver a new item or repair the defective Purchased Item. In the event of repair, the remaining part of the original limitation period shall start to run on the return of the repaired Purchased Item. The same shall apply in the event of subsequent delivery.
12.8 In the event of subsequent delivery, the Buyer shall return the defective Purchased Item to SCHALTEC in accordance with the statutory provisions.
12.9 The retention of title pursuant to Section B.I.10 shall also apply to the parts to be replaced within the scope of the subsequent delivery.
12.10 If the Customer has installed the defective Purchased Item in another item or attached it to another item in accordance with its type and intended use, SCHALTEC shall reimburse the Buyer for the necessary expenses of removing the defective item and the installation or attachment of the repaired or delivered defect-free Purchased Item in accordance with the statutory provisions within the scope of supplementary performance. However, unless otherwise agreed, SCHALTEC shall not be obliged within the scope of supplementary performance to remove the defective goods and to install or fit the repaired or delivered goods free of defects. This shall
not apply if SCHALTEC was originally contractually obliged to install or fit the goods ordered.
12.11 Claims of the Buyer for expenses necessary for the purpose of supplementary performance, in particular transportation, travel, labour and material costs, are excluded insofar as the expenses increase due to subsequent transportation of the Purchased Item to a place other than the agreed place of delivery; SCHALTEC is entitled to invoice the Buyer for such additional costs.
12.12 If supplementary performance fails, the Buyer may, in accordance with the legal requirements, either reduce the purchase price or withdraw from the contract.
12.13 Further claims for defects of any kind whatsoever are excluded, subject to any claims for damages limited in accordance with the provisions of Section 13—Liability below.
12.14 The Buyer’s right to withdraw from the contract in the event of an insignificant defect that does not significantly impair the use of the goods is excluded.
12.15 If there is no defect, SCHALTEC shall be entitled to demand reimbursement from the Buyer for any costs incurred as a result of the unjustified request to rectify a defect (in particular testing and transportation costs) if the Buyer knew or could have known that there was no defect.
12.16 The limitation period for defect rights is one year from delivery. However, this limitation does not apply if (i) a defect was fraudulently concealed or (ii) a guarantee for the condition of the goods was assumed (in this respect, the guarantee regulation or limitation period resulting from the guarantee applies, if applicable). In the event of claims for damages, this limitation shall further not apply in the following cases:
12.17 (i) injury to life, limb or health, (ii) intent and (iii) gross negligence on the part of SCHALTEC’s executive bodies or management staff and (iv) liability in accordance with the German Product Liability Act (Produkthaftungsgesetz) and (v) recourse claims in accordance with Section 478 (2) of the BGB.
12.18 If the goods are a building or an object which has been used for a building in accordance with its normal use and has caused its defectiveness (building material), the limitation period shall be five years from delivery in accordance with the statutory regulation.
13.1 SCHALTEC’s liability is excluded if the Buyer does not use the Purchased Item in accordance with the respectively valid instructions for assembly and use provided to it by SCHALTEC. This shall not apply if SCHALTECT has not provided the Customer with instructions for assembly and use for the specific product.
13.2 Regardless of the legal grounds, SCHALTEC shall be liable for damages in the event of intent and gross negligence.
13.3 In addition, SCHALTEC shall also be liable in the case of simple negligence for damages arising from the breach of a material contractual obligation which is essential to the proper performance of the contract and which the Buyer may rely on being observed; in this case, SCHALTEC’s liability shall be limited to compensation for foreseeable, typically occurring damage. This limitation of liability shall apply in the same way to damage caused by gross negligence on the part of employees or agents of SCHALTEC who are not SCHALTEC executive bodies or management staff.
13.4 The above limitations of liability shall not apply to claims for damages of the Buyer (i) arising from injury
to life, limb or health;
(ii) due to fraudulently concealed defects; (iii) due to defects in respect of which SCHALTEC has assumed a guarantee for the condition of the Purchased Item (in this regard, the liability regulation or limitation period resulting from the guarantee shall apply,
where applicable); or
(iv) under the Product Liability Act.
13.5 Any further liability—on whatever legal grounds
13.6 Insofar as SCHALTEC’s liability is excluded or limited, this shall also apply to the liability of SCHALTEC’s legal representatives, employees and vicarious agents.
13.7 The provisions of this section, Section 13, do not involve a reversal of the burden of proof.
14.1 SCHALTEC is entitled to withdraw from the purchase contract and all existing contracts with the Customer and to reclaim and collect the Purchased Item if:
14.2 SCHALTEC has a statutory or contractual right of withdrawal;
- the Customer is in default of more than 10 days with respect to the payment of a full monthly instalment agreed between the Customer and SCHALTEC. However, this shall only apply if the parties have agreed payment by instalments in a permissible manner by way of exception;
- a bill of exchange or cheque of the customer is protested for the Customer or a third party;
- insolvency proceedings have been applied for or have commenced over the Customer’s assets, whereby any rights of the administrator after insolvency remain unaffected; or
- the Customer actually has credit unworthiness with at least one credit company. This shall not apply if the Customer provides collateral in the amount of SCHALTEC’s residual purchase price receivables against the Customer which are still outstanding at the time SCHALTEC learns of the Customer’s credit unworthiness.
14.3 If SCHALTEC exercises its right of withdrawal or if the Customer knows that SCHALTEC is entitled to a right of withdrawal in accordance with
Section B.14.1, the Customer shall be liable for the deterioration or loss of the Purchased Item, even if it has exercised the care it is accustomed to exercising in its own affairs.
14.4 In the event of withdrawal, the services received and benefits derived shall be surrendered and compensation shall be paid for the value of the benefits not derived contrary to the rules of ordinary business. In all other respects, the contractual relationship shall become a debtor/creditor relationship with rights and obligations according to Sections 346 to 354 of the BGB.
14.5 Any costs incurred by SCHALTEC in the context of a withdrawal from the contract due to taking back the Purchased Item shall be borne by the Customer.
In all other respects, the provisions of the General Terms and Conditions of Business pursuant to Section A shall apply.
C. schaltec Special Terms and Conditions for Repair and Refurbishment Services
1. Definitions and scope of application
1.1 The Client is the customer of SCHALTEC who commissions SCHALTEC to carry out repair or refurbishment services in its own interest or in the interest of a third party.
1.2 The Contractor is SCHALTEC, which is commissioned by the Client to carry out repair or refurbishment services.
1.3 Repair and refurbishment services are activities that SCHALTEC carries out for the Client or third parties appointed by the Client. This particularly includes the preparation, repair, cleaning, maintenance and quality control of formwork and scaffolding.
2. Client duties, protection of intellectual property
2.1 The Client is obliged to provide the items, information and rights necessary for the execution of the repair and refurbishment services and to perform any agreed acts of cooperation. The Client is required to:
- provide (preliminary) products and materials;
- inform SCHALTEC about any specific features with respect to goods and processes and any associated legal, official or trade association requirements and—if necessary—train its employees; and
- develop and update specifications, process and material descriptions (production instructions, designs and plans) and check SCHALTEC’s compliance with these. Such advance performance and acts of cooperation must be provided in good time and in full. This also includes all of the information necessary for optimal capacity planning.
2.2 The documents handed over in accordance with Section C.2.1 shall remain the intellectual property of the Client.
3. Contractor duties
SCHALTEC is obliged to perform its services in accordance with the Client’s specifications as per Section C.2. SCHALTEC is entitled, but not obliged, to check the Client’s specifications.
4. Impediments to performance, force majeure
4.1 Impediments to performance which are not attributable to the sphere of risk of a contractual party shall release the contractual parties from their performance obligations for the duration of the impediment and the extent of that impediment. Impediments to performance include strikes and lockouts, force majeure, riots, acts of war or terrorism, official measures and other unforeseeable, unavoidable and serious events.
4.2 If an exemption applies under Section C.4.1, each contractual party is obliged to inform the other party without delay and to minimise the impact on the other party as far as reasonably possible.
5. Right of lien and retention, retention of title
5.1 SCHALTEC shall have a right of lien and a right of retention with respect to the goods or other assets of the Client in its power of disposal due to all receivables, whether due or not, to which it is entitled against the Client which arise from the activities referred to in Section C.1.3. The rights of lien and
retention do not exceed the statutory rights of lien and retention.
5.2 The Client is entitled to prohibit the exercise of the right of lien if it grants SCHALTEC an equivalent means of collateral (e.g. directly enforceable bank guarantee).
5.3 Section C.2.2 remains unaffected.
6. Notice of defects
6.1 The Client is obliged to notify SCHALTEC of any obvious defects upon acceptance in writing without delay. The timely dispatch of the notice shall be sufficient to comply with the deadline within the meaning of the preceding sentence, provided that SCHALTEC’s receives such notice.
6.2 If the Client fails to immediately notify SCHALTEC of obvious defects in accordance with Section C.6.1, the repair and refurbishment services provided by SCHALTEC shall be deemed to have been performed in accordance with the contract, unless SCHALTEC has fraudulently concealed the defect.
7. Client’s claims for defects
7.1 The defectiveness of a repair and refurbishment service is determined by the content of the contract and statutory provisions. Guarantees regarding quality or durability shall only be assumed by SCHALTEC if these are designated as such in detail in the contract and are explicitly agreed in writing.
7.2 If the repair or refurbishment work is defective and the statutory requirements are met, the Client shall be entitled to repair.
8. Special right of termination
8.1 If one of the parties breaches material contractual obligations twice and this results in a material disruption of the other party’s operations, the other party has the right to terminate this contract with reasonable notice after giving the breaching party written notice of a deadline by which it is to remedy the breach and this deadline has passed without the breaching party having fulfilled its obligations.
8.2 The right to extraordinary termination for good cause remains unaffected.
9. Contractor’s right to indemnification
The Client shall indemnify SCHALTEC and its vicarious agents against all claims of third parties under the Product Liability Act and other regulations protecting third parties, unless SCHALTEC or its vicarious agents have brought about the claim of the third party through gross negligence or wilful intent.
10.1 Claims arising from a contract pursuant to Section C.1.3 shall become time-barred after one year.
10.2 The limitation period for all claims begins the day after the day of delivery; for services under a contract for work and services, it begins the day after the day of acceptance.
10.3 The above limitation periods do not apply:
- in the event of injury to life, limb or health; or
- insofar as statutory limitation provisions are mandatory.
11. Contractor’s liability insurance
11.1 SCHALTEC shall take out and maintain liability insurance with an insurer of its choice on standard market terms.
11.2 When concluding a liability insurance contract in accordance with Section C.11.1, it is
permissible to agree on maximum compensation per
claim and year; similarly, it is permissible to agree on SCHALTEC’s participation in the claim.
11.3 At the Client’s request, SCHALTEC shall provide evidence of liability insurance cover by means of confirmation from the insurer.
12.1 SCHALTEC shall be liable for damage culpably caused by SCHALTEC to the Buyer in accordance with the statutory provisions.
12.2 In all other respects, SCHALTEC’s liability shall be limited as set out below: Regardless of the legal grounds, SCHALTEC shall only be liable for damages in the event of intent and gross negligence. In addition, SCHALTEC shall also be liable in the case of simple negligence for damages arising from injury to life, limb or health, for damages arising from the breach of a material contractual obligation (cardinal obligation); in this case SCHALTEC’s liability shall be limited to compensation for foreseeable, typically occurring damage.
12.3 Furthermore, SCHALTEC shall be liable for damages incurred by the Customer as a result of gross negligence on the part of SCHALTEC’s executive bodies or management staff.
12.4 The aforementioned limitations of liability shall not apply if SCHALTEC has fraudulently concealed a defect, has assumed a guarantee for the condition or is liable under the Product Liability Act.
12.5 Any further liability—on the basis of whatever legal grounds—and compensation for damages which are not based on an instruction issued by SCHALTEC shall be excluded.
13.6. Insofar as SCHALTEC’s liability is excluded or limited, this shall also apply to the liability of SCHALTEC’s legal representatives, employees and vicarious agents.
13.7 The provisions of this section do not involve a reversal of the burden of proof.
13. Right to reject repair and refurbishment services
SCHALTEC shall be entitled to reject the repair or refurbishment in whole or in part if, in the course of the repair and refurbishment services to be carried out by SCHALTEC, it transpires that the repair or/and refurbishment owed is not possible or is only possible at disproportionately high expense.
SCHALTEC is entitled to have the agreed repair and refurbishment services carried out by third parties.
The Customer hereby expressly consents to SCHALTEC subcontracting repair and refurbishment services to third parties (subcontractors).
D. schaltec Special Terms and Conditions for Transportation Services
1.1 At the Customer’s request, SCHALTEC shall provide transportation services in relation to the Purchased Item.
1.2 Transportation services can be agreed in writing between the Customer and SCHALTEC as ancillary services.
1.3 As a rule, SCHALTEC does not carry out transportation services itself, and instead commissions freight carriers or forwarding agents for this purpose.
The transportation of formwork and/or scaffolding, their components and accessories, is ex works, unless explicitly agreed otherwise in writing.
3. Transportation risk
Insofar as SCHALTEC undertakes the transportation of formwork and/or scaffolding, their components and accessories, SCHALTEC shall bear the transportation risk until the formwork and/or scaffolding, their components and accessories are handed over to the Customer.
The fee for transportation services is based on contractual agreements.
5. Applicability of the German Freight Forwarders’ Standard Terms and Conditions (Allgemeine Deutsche Spediteurbedingungen, A D S p)
In all other respects, the German Freight Forwarders’ Standard Terms and Conditions as amended shall apply to the performance of transportation services.
The German Freight Forwarders’ Standard Terms and Conditions can be found at www.adsp.de.
Registered office of the company: Herbertingen
Register court of Ulm:
Commercial register HRB 731391
Bernhard Überle, Stefan Schurwonn, Helmut Sterflinger