(Status: Feb. 2024)

1. General

 

1.1 (Scope of Application) Our General Terms and Conditions (GTC) apply to all contracts, offers, deliveries and other services concluded in writing, by telephone or electronically between us and the customer concerning the production and delivery of movable goods (hereinafter also referred to as “goods” or “delivery item”), irrespective of whether we produce the goods ourselves or purchase them from suppliers. The customer is always an entrepreneur within the meaning of § 14 BGB. The GTC shall also apply to all future deliveries, services or offers to the customer, even if they are not separately agreed again. Furthermore, they shall apply exclusively. Any terms and conditions of the customer that conflict with, supplement or deviate from these GTC shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the customer without reservation or enter into the conclusion of the contract without reservation in the knowledge of the customer’s conflicting, supplementary or deviating terms and conditions. We are entitled to amend or supplement these GTC at any time. The version applicable at the time shall be decisive in each case. In this case, we will of course inform the customer immediately of any changes to these GTC.

 

1.2 (Supplements) Supplements, amendments or ancillary agreements require our written confirmation to be effective. This also applies to the waiver of the written form requirement.

 

1.3 (Annexes to these GTC) The following annexes are enclosed with these GTC for clarifying information on the quality of the material used by us: (a) the Code of Practice No. 1 on Exposed Concrete Surfaces of Precast Concrete and Reinforced Concrete Elements (06/2015) of the Fachvereinigung Deutscher Betonfertigteilbau e.V.. (Annex 1) and (b) the notes for cast stone (terms, requirements, testing and monitoring of DIN 18500 of April 1991 referred to (Annex 2).

 

2. Conclusion of contract and subject matter of contract

 

2.1 (Offer) The cost estimates and offers made by us on the basis of these GTC are subject to change and non-binding. All documents belonging to the offer, such as illustrations, drawings and weight specifications, are to be regarded as approximate only, unless they are expressly designated as binding. We reserve the right of ownership and copyright to catalogs, drawings, cost estimates and other documents; they may not be made accessible to others.

 

2.2 (Conclusion of contract) A binding contract is only concluded when it is confirmed by us in writing, qualified electronically or in text form or when we execute the delivery of the goods to the customer (order confirmation). By accepting the delivery, the customer acknowledges the exclusive validity of these GTC.

 

2.3 (Contractual object) The legal relationship between us and the customer shall be governed solely by the contract concluded on the basis of the confirmation letter sent by us, including these GTC. Hereby we commit ourselves to the production, delivery and transfer of the agreed goods. In return, the customer undertakes to pay the agreed purchase price.

3. Delivery

 

3.1 (Mode of delivery) Delivery shall be ex warehouse, which is also the place of performance for the delivery and any subsequent performance. Upon request and at our expense, the products shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves. The terms of delivery incl. the place of performance shall follow the contractual agreements of the contracting parties.

 

3.2 (Production & delivery times) The production & delivery times stated in the order confirmations are non-binding approximate information. They are only binding if they are expressly designated by us as binding. The delivery period begins with the date of the written order confirmation, if queries are required, only after receipt of clarification of all points. If down payments have been agreed, however, the delivery period shall not begin until we have received the agreed down payment/advance payment (cf. § 5.3) at the earliest – until then the start of the production and delivery period shall be postponed. The delivery period shall be deemed to have been complied with if the delivery item has left our works or notification of readiness for dispatch has been given by the time the delivery period expires.

 

3.3 (Partial Deliveries) We are only entitled to make partial deliveries if (a) the partial delivery is usable for the customer within the scope of the contractual intended purpose, (b) the delivery of the remaining ordered goods is ensured and (c) the customer does not incur any significant additional expenses or costs as a result (unless we agree to bear these costs).

 

3.4 (Force majeure) Events of force majeure which impede or delay the services, deliveries and offers of us or our suppliers shall entitle us to restrict or postpone the delivery for the duration of the impediment and a subsequent reasonable start-up period, or to withdraw from the contract in whole or in part due to the part not yet fulfilled. This shall not constitute a liability for damages except in cases of intent and gross negligence. Force majeure shall not be deemed to include interruptions of operations, shutdowns, operational restrictions, orders by authorities with or without a legal basis, including the subsequent lapse or non-issuance of import or export licences in the country of origin or the introduction of new or not merely insignificant increases in taxes and customs duties in relation to the goods or their export, traffic blocks, restrictions on the use of the goods or their export. The same shall apply in the event of traffic blocks, lack of workers, strikes and lock-outs, strikes, whether they occur as a result of breach of contract or as a result of prior termination, as well as elementary disturbances such as storms, flooding, small and high water, fog, ice and fire, and in general all events and circumstances the prevention of which is beyond our control or cannot be achieved with a reasonable technical and economic effort.

 

3.5 (Self-delivery) We reserve the right to correct and timely self-delivery in all cases. The reservation of self-delivery applies with the proviso that we ourselves have concluded a corresponding covering transaction in good time and/or are not responsible for the delayed delivery by our supplier.

 

3.6 (Delay in delivery by us) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the customer of this without delay and at the same time notify the customer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the customer. A case of non-availability of the performance in this sense shall be deemed to be, in particular, the failure of our supplier to deliver on time if we have concluded a congruent hedging transaction and neither we nor our supplier are at fault or we are not obliged to procure in the individual case. The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the customer is required. If we are in default of delivery, the customer may demand lump-sum compensation for the damage caused by the default. The lump-sum compensation shall amount to 0.5% of the net delivery price (hereinafter referred to as “delivery value”) for each completed calendar week of the delay, but in total not more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the customer has suffered no damage at all or only significantly less damage than the aforementioned lump sum. The rights of the customer arising from liability and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

 

3.7 (Default of acceptance) If the customer defaults on acceptance, fails to cooperate or delays our delivery for other reasons for which the customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump-sum compensation amounting to 0.5% of the delivery value per completed calendar week of the delay up to a maximum of 5% of the delivery value of the delayed goods, in each case starting with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for dispatch. However, the lump sum shall not exceed the damage to be expected in the ordinary course of events. The proof of higher damages and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The customer shall be entitled to prove that we have incurred no damage at all or only significantly less damage than the aforementioned lump sum.

 

3.8 (Export conditions) If the goods are delivered to the customer for export from Germany, the customer shall be responsible for compliance with and observance of the respectively applicable regulations and requirements for the import of the goods in the country of destination of the delivery.

4. Shipment and transfer of risk (acceptance)

 

4.1 (Transfer of risk) The risk of accidental loss and accidental deterioration of the products shall pass to the customer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the products shall pass to the forwarding agent, the carrier or any other person or institution designated to effect the shipment. Insofar as an acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the customer is in default of acceptance.

 

4.2 (Own delivery) If we deliver using our own vehicles or vehicles driving on our behalf, the customer must ensure that the vehicles can drive on and off unhindered on a good roadway and without waiting time, that the unloading point is ready for operation and receptive and that an authorised person – if necessary also unloading personnel – is available at the unloading point to accept the delivery papers and sign the delivery note, to indicate the storage location and, if necessary, to unload the vehicle. The person instructing the vehicle shall be deemed to be authorised. If the customer violates the obligations incumbent upon him under this provision, we shall be entitled to act at our own discretion, in particular to refrain from delivering the quantity approached. The customer shall be obliged to compensate us for any damage resulting from the breach of duty, in particular additional freight costs as well as waiting time.

 

4.3. (Handover to shipping company) The risk of accidental loss or accidental deterioration of the goods shall pass to the customer as soon as the goods are handed over to the forwarding agent, the federal railway or other carrier, but in any case no later than when the goods leave our warehouse or, in the case of direct delivery, our supplying plant. If the goods are to be collected by the customer, the risk shall pass to the customer upon dispatch of the notification that the goods are ready for collection.

 

4.4 (Shipping method) The mode of dispatch and the packaging are subject to our dutiful discretion.

 

4.5 (Risk insurance) The consignment will only be insured by us against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the customer and at the customer’s expense.

 

4.6 (Acceptance) Insofar as acceptance is required, the goods shall be deemed to have been accepted when (a) the delivery and, insofar as we are also responsible for the installation, the installation has been completed, (b) we have notified the customer of this with reference to the fiction of acceptance in accordance with this § 4.6 and have requested acceptance, (c) 12 working days have passed since delivery or installation or the customer has commenced use of the goods (e.g. installation of the goods) and in this case 6 working days have passed since delivery or installation and (d) the customer has refused acceptance within this period for a reason other than a defect notified to us. in which case 6 working days have elapsed since delivery or installation and (d) the customer has failed to accept the goods within this period for a reason other than a defect notified to us which makes the use of the goods impossible or significantly impairs it.

 

4.7 (Costs of the acceptance test) The customer shall bear the costs of an acceptance test requested by him.

 

5. Prices and terms of payment

 

5.1 (Price) Unless otherwise agreed, our respective prices agreed in the contract shall apply, namely ex warehouse, plus statutory value added tax and plus any further costs, such as transport costs ex warehouse and the costs of any transport insurance requested by the customer. Any customs duties, fees, taxes and other public charges shall be borne by the customer. Any increase or new introduction of taxes, duties (e.g. customs duties), fees or other requirements occurring after the conclusion of the contract shall be passed on directly to the customer if not already included in the prices.

 

5.2 (Terms of payment) Unless otherwise specified, the payment amounts are payable without deduction and right of retention no later than 14 days after receipt of the invoice. In the event of late payment, we shall be entitled to charge interest on arrears at a rate of 9 percentage points above the base interest rate. We shall be at liberty to assert further damage caused by default.

 

5.3 (Advance payment) Within the meaning of § 3.2, production of the goods shall only commence after receipt of payment of 50% of the gross order value, unless otherwise agreed. In this respect, the customer is obliged to make advance payment.

 

5.4 (Special right of termination) If it becomes apparent after the conclusion of the contract (e.g. through an application for the opening of insolvency proceedings, through two unsuccessful reminders of the advance payment within the meaning of § 5.3) that our claim to the purchase price is endangered by the customer’s lack of ability to pay, we are entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.

 

5.5 (Offsetting and rights of retention and transferability of rights) The offsetting of the customer with his counterclaims is excluded unless it relates to counterclaims recognised by us, undisputed or legally established. However, the customer may exercise his right of retention if his counterclaim relates to the same contractual relationship. Furthermore, the contractual partner may only transfer the rights and obligations arising from this contract to a third party with our prior written consent.

 

5.6 (Currency) If payment obligations are agreed in the currency of another member state of the European Monetary Union, they shall be deemed to have been agreed in euros. The conversion shall be made on the basis of the officially fixed conversion rate at the time of the conclusion of the contract. It is agreed that the conversion to the euro shall not give rise to any right of termination, rescission or avoidance or to a claim for amendment of the contract. This provision shall apply accordingly if payment obligations are agreed in the currency of a member state of the EU which subsequently becomes a member of the European Monetary Union.

 

6. Retention of title

 

6.1 (Retention of title) Until full payment of all present and future claims of us arising from the contract and an ongoing business relationship with the customer (hereinafter “secured claims”), we retain title to the goods sold.

 

6.2 (Access by third parties) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The customer must notify us immediately if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the goods belonging to us.

 

6.3 (Special right of withdrawal) In the event of conduct by the customer in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and withdrawal. If the customer does not pay the due purchase price, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.

 

6.4 (Extended reservation of title) Until revocation pursuant to letter c), the customer is authorised to resell and/or process the goods subject to reservation of title in the ordinary course of business. In this case, the following provisions shall apply in addition.

1. a) The retention of title extends to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we are deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.
2. b) The customer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product in total or in the amount of any co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the customer stated in § 6.2 shall also apply in respect of the assigned claims.
3. c) The customer remains authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to § 6.3. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to revoke the customer’s authorisation to further sell and process the goods subject to retention of title.
4. d) If the realisable value of the securities exceeds our claims by more than 50%, we shall release securities of our choice at the customer’s request.

 

6.5 (Abroad) Should the retention of title in accordance with the above provisions not be legally effective under the law of the country in which the goods subject to retention of title are located, the security which comes closest to it under the law of that country shall be deemed agreed instead. If any actions of the customer are required in this context, the customer shall be obliged to perform such actions at our request.

 

7. Condition of the goods Notification of defects, inspection obligations

 

7.1 (Condition) With regard to the goods produced by us, we would like to point out that concrete, like wood, always has its own individual structure. Efflorescence, edge breakage as well as blowholes and pores or blistering in normal dimensions are in the nature of the matter and do not represent a defect of the goods. It goes without saying that every concrete part or every product is subjected to an intensive inspection, in particular with regard to the aforementioned properties, before it leaves our factory. Colour deviations are the result of manual work and make each element a unique piece. For further and clarifying information on the quality of the materials of the goods, we refer on the one hand (a) to Code of Practice No. 1 on exposed concrete surfaces of precast elements made of concrete and reinforced concrete (06/2015) of the Fachvereinigung Deutscher Betonfertigteilbau e.V. (Association of German Precast Concrete Manufacturers). (Annex 1) and on the other hand (b) to the notes for artificial stone (terms, requirements, testing and monitoring of DIN 18500 of April 1991 (Annex 2). If you have any questions regarding this property, we are at your disposal and ask you to contact us before concluding the contract.

 

7.2 (Guarantees) We do not assume any quality and durability guarantees (§ 443 BGB). In the event of mixing or modification of the delivered goods with other products by the customer or other owner, the liability for defects shall not apply. This does not apply if the mixing or modification was not the cause of the defect in the goods.

 

7.3 (Obligations of examination and notification of defects) The customer’s claims for defects require that he has fulfilled his statutory obligations of examination and notification of defects (§§ 377, 381 HGB). If a defect becomes apparent during the inspection or at a later date, we must be notified thereof in writing without delay. The notification shall be deemed to have been made without delay if it is made within two weeks, whereby timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the customer shall notify us in writing of obvious defects (including incorrect and short deliveries) within two weeks of delivery, whereby timely dispatch of the notification shall also suffice to meet the deadline. If the customer fails to carry out the proper inspection (in accordance with sentences 1-3) and/or to give notice of defects (in accordance with sentence 4), our liability for the undisclosed defect shall be excluded.

 

8. Warranty, material defects

 

8.1 (Warranty period) The warranty period is one year from delivery or, if acceptance is required, from acceptance. This period does not apply to claims for damages by the customer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by us or our vicarious agents, which shall in each case be time-barred in accordance with the statutory provisions.

 

8.2 (Warranty lapsed) The warranty shall not apply if the customer modifies the goods or has them modified by a third party without our consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the customer shall bear the additional costs of remedying the defect resulting from the modification.

 

8.3 (Delivery of used items) A delivery of used items agreed with the customer in an individual case shall be made to the exclusion of any warranty for material defects.

 

8.4 (Warranty rights) Provided that no modifications have been made in these GTC, the statutory warranty law shall apply.

 

9. Liability regulations

 

9.1 (Principle) Insofar as nothing to the contrary arises from these GTC including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.

 

9.2 (Exclusion of liability) We shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable subject to a milder standard of liability in accordance with statutory provisions (e.g. for care in own affairs):

1. a) for damages arising from injury to life, body or health,
2. b) for damages arising from the not insignificant breach of a material contractual obligation (obligation whose fulfilment is a prerequisite for the proper performance of the contract and on whose compliance the contractual partner regularly relies and may rely) and compensation for damages caused by delay (§286 BGB); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.

 

9.3 (Scope of application) The limitations of liability resulting from § 9.2 shall also apply in the event of breaches of duty by or in favour of persons for whose fault we are responsible in accordance with statutory provisions. They do not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the products and for claims of the customer under the Product Liability Act.

 

9.4 (Right of withdrawal) Due to a breach of duty that does not consist of a defect, the customer may only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 651, 649 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

 

9.5 (Limitation of liability) In the event of liability for simple negligence, our liability to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to an amount of EUR 3,000,000.00 per case of damage (corresponding to the current sum insured under our product liability insurance or third-party liability insurance), even if this involves a breach of material contractual obligations.

 

9.6 (Included groups of persons) The above exclusions and limitations of liability apply to the same extent in favour of our executive bodies, legal representatives, employees and other vicarious agents.

 

9.7 (Liability for information) Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this shall be done free of charge and to the exclusion of any liability.

 

9.8 (Limitation of the exclusion and limitation of liability) The limitations of this § 9 do not apply to our liability for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.

 

10. Final provisions

 

10.1 (Place of jurisdiction) If the customer is a merchant, a legal entity under public law or a special fund under public law or if the customer does not have a general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between us and the customer shall be, at our discretion, Berlin (Germany) or the customer’s registered office. In these cases, however, Berlin (Germany) shall be the exclusive place of jurisdiction for actions against us. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this provision.

 

10.2 (Applicable law) The relations between us and the customer shall be governed exclusively by the law of the Federal Republic of Germany.

 

10.3 (Severability clause) Should any provision of this contract be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions of this contract. The same shall apply if and to the extent that a loophole should become apparent in this contract. In place of the invalid or unenforceable provision or in order to fill the gap, an appropriate provision shall apply which, as far as legally possible, comes closest to or corresponds to what the contracting parties intended economically or would have intended according to the sense and purpose of this contract if they had considered this point. This shall also apply if the invalidity of a provision is based, for example, on a scope of performance or time (period or date) provided for in this contract; in such cases, a legally permissible measure of performance or time (period or date) which comes as close as possible to what was intended in economic terms shall replace what was agreed.

 

10.4 (Data protection notice) The customer acknowledges that we store data from the contractual relationship in accordance with § 28 of the Federal Data Protection Act for the purpose of data processing and that we reserve the right to transmit the data to third parties (e.g. insurance companies, transport service providers) insofar as this is necessary for the fulfilment of the contract.