General Terms and Conditions of BAUWESTA Metallbau GmbH

 § 1             General - Area of application

(1)             Our conditions of sale apply exclusively; conditions to the contrary or customer conditions which deviate from our conditions of sale are not recognized by us, unless we have expressly agreed to their application in writing. Our conditions of sale also apply, even if we make delivery in recognition of contrary or customer conditions which deviate from our conditions without reservation.

(2)             All agreements which are made between us and the customer for the purpose of completion of this contract, are outlined in writing in this contract.

(3)             Our conditions of sale apply only with respect to enterprises in the sense of § 310 (1) of German Civil Code.

§ 2            Bid – Bid Documents

(1)             If the order can be classified as a bid in accordance with § 145 of German Civil Code, then we can accept this within a period of 2 weeks.

(2)             We reserve the right of ownership and copyright for illustrations, diagrams, calculations, and other documentation. This also applies for such written documentation, which is classified as “confidential”. Transfer to third parties requires the client to obtain our express written consent.

(3)             Illustrations, dimensions, weights, or other performance dimensions are only binding if this is expressly agreed upon in writing.

§ 3            Price – Conditions of Payment

(1)             Unless otherwise expressed in the order confirmation, our prices apply “ex Works”; excluding packaging; this will be listed in the invoice.

(2)             The legal Value Added Tax is not included in our prices; it will be listed in the amount legally applicable on the date of invoicing in the invoice.

(3)             The deduction of a discount requires a special written agreement.

(4)             If not otherwise stated in the order confirmation, the purchase price is payable (without discount) within 14 days of the date of invoice. The legal regulations with regards to default of payment apply.

(5)             Set-off rights are only available to the client if his counterclaims are legally binding, uncontested or confirmed by us. Otherwise he is only entitled to right of detention in so far as his counter claim applies to the same contractual relationship

(6)             In case of failure to meet an agreed-upon payment date, default occurs (§ 286 (II) German Civil Code). In this case the supplier is entitled to demand a default interest     according to the framework outlined in § 288 of German Civil Code in the amount of 8% annually above the base interest rate (§ 247 of German Civil Code), so long as the    supplier does not indicate a higher interest bearing default rate. Exchange and checks are only accepted on account of payment. If they are presented at external locations, the supplier is not liable for the timely protesting. Discount, exchange, and collection costs are paid by the purchaser. Claims do not entitle withholding of payments due. Rights of detention and offset with contested and non-legally binding counterclaims are excluded.

§ 4            Delivery Time

(1)             The start of the delivery time indicated by us determines the clarification of all technical questions.

(2)             The compliance with our delivery obligations takes into account the punctual and correct fulfillment of the obligation of the client. The defense of non-fulfillment of the contract is reserved.

(3)             If the client is in default of receipt or if he culpably violates other obligations to cooperate then we are entitled to demand compensation for the damages which we have thus far incurred, including any additional expenses. The right to additional claims is reserved.

(4)             If the conditions outlined in section (3) are met, the risk of accidental damage or theft of the items purchased is transferred to the customer at the time in which this product falls into failure to receive or default of the debtor.

(5)             We are liable in accordance with the legal conditions, if the purchase contract which is the basis is a firm deal in the sense of § 286 (2)(4) of German Civil Code or of § 376 of German Commercial Code. We are also liable according to legal conditions, if, due to a default in delivery for which we are responsible the customer is entitled to make claim that his interests in the continued fulfillment of the contract has been discontinued.

(6)             Furthermore we are liable in accordance with the legal conditions, if the default in delivery is due to deliberate or gross negligence violation of the contract on our part; fault on the part of our representatives or contract employees is our responsibility. If the default in delivery is not due to a deliberate violation of the contract, then our liability for damages is limited to the foreseeable, typical damages.

(7)             We are also liable in accordance with the legal conditions if the default in delivery which is attributable to us is due to the culpable violation of a significant contractual obligation; in this case however the liability for damages is limited to the foreseeable, typical damages.

(8)             In addition we are liable in the case of default in delivery for each complete week of default within the framework of a lump-sum default payment in the amount of 0.5% of the value of goods delivered, however not to exceed a maximum of 5% of the value of goods delivered.

(9)             Additional legal claims and rights of the customer are reserved.

§ 5            Transfer of Risk – Packaging Costs

(1)             Unless otherwise specified in the order confirmation, the delivery is agreed upon as “ex works”.

(2)             Special agreements apply for the return of packaging.

(3)             If the customer wishes, we will cover the delivery through transport insurance; any costs so incurred will be paid by the customer.

§ 6            Warranty

(1)             Warranty claims by the customer require that he has correctly fulfilled his obligations in accordance with § 377 of German Commercial Code for inspection and requirement to make a claim.

(2)             If a defect in the purchased item is present, the customer is entitled, at his discretion, to compensation either in the form of a correction of the defect or the delivery of a new, defect-free item. In case of repair of the defect we are required to pay all necessary expenses for the purpose of repair of the defect, in particular transportation, handling,   work, and material expenses, in as far as these are not increased by the fact that the item purchased was brought to a location other than the delivery location.

(3)             If the rectification fails, then the customer is entitled, at his choosing, to demand a withdrawal or reduction.

(4)             We are liable in accordance with the legal conditions if the customer files claims for damages, which are based on intent or on gross negligence, including from intent or gross negligence of our representatives or contractual employees.

                  If we are not shown to be guilty of intentional violation of the contract, then the liability for damages is limited to the foreseeable, typical damages.

(5)             We are liable in accordance with the legal conditions if we culpably violate a significant contractual obligation; in this case however the liability for damages is limited to the liability for damages is limited to the foreseeable, typical damages.

(6)             If the customer is entitled to claim for compensation for the damage instead of delivery, then our liability is also limited within the framework of (3) to compensation for the foreseeable, typical damages.

(7)             The liability due to culpable injury to life, body, or health is unaffected; this also applies to the mandatory liability in accordance with the product liability law.

(8)             So far as nothing is regulated to the contrary by the above, liability is excluded.

(9)             The statute of limitations for claims for damages is 12 months, beginning with the transfer of risk.

(10)           The statute of limitations in the case of a delivery recourse in

                  accordance with § § 478,479 of German Civil Code remains unaffected; it is five years, beginning with the return of the defective item.

(11)           The guarantee is excluded for used delivered items if the customer (party placing the order) is a retailer.

§ 7            Joint liability

(1)             Liability for damages in addition to that covered in § 6 is- without regard to the legal nature of the claim filed – excluded. This applies in particular to claims for damages due to fault at the time of the conclusion of the contract, due to other violations of obligation or due to tort claims for compensation for damage to goods in accordance with § 823 of German Civil Code.

(2)             The limits according to section (1) also apply, if the customer, in stead of a claim for compensation for the damage, requests instead of delivery compensation for expenses incurred.

(3)             If our liability for damages is excluded or limited, this also applies with respect to the personal liability for damages on the part of our employees, workers, coworkers, representatives, and contractual employees.

§ 8            Protection of reservation of property rights

(1)             We reserve the ownership of the goods purchased up until the receipt of all payments called for in the delivery contract. In the case of actions by the customer which violate the contract, in particular default of payment, we are entitled to take back the goods purchased. The withdrawal of the goods purchased comprises a withdrawal from the contract. We are authorized to the recycling of the goods purchased upon the withdrawal of the goods purchased, the proceeds from the recycling will be applied to the accounts payable of the customer – less appropriate recycling expenses.

(2)             The customer is obligated to handle the goods purchased with due care; in particular he is obligated to sufficiently insure these at his own expense against fire, water, and theft at their replacement value. If maintenance and inspection work is required, the customer must perform these in a timely manner at his own expense.

  (3)             In case of attachment or other intervention by third parties the customer must inform us without delay in writing, so that we can file a complaint in accordance with § 771 of Code of Civil Procedure. If the third party is not in the position to compensate us for the judicial and extrajudicial costs of a complaint in accordance with § 771 of the Code of Civil Procedure, then the customer is responsible to us for the resulting expense.

(4)             The customer is entitled to resell the goods purchased in normal business; he assigns us however all requirements in the amount of the invoice final amount (including value added tax) from our requirement, which result from the further sale to his customer or third party, independent of whether the goods purchased were sold with or without additional processing. For the collection of this amount due the customer remains authorized even after the withdrawal. Our authorization to collect the amount due remains unaffected by this.

                  Nevertheless we are obligated not to collect the amount due, so long as the customer fulfills his payment obligations from the amount collected, does not go into default of payment and in particular no filing for opening of a reorganization or insolvency proceeding is made or a stop payment order is on hand. If this is however the case, then we can require that the customer notifies us and their creditors of the amount payable which was ceded, gives us all required information for the collection, submits the         documentation for this and notifies the creditors (third parties) of the cession.

(5)             The processing or alteration of the goods purchased by the customer will always be carried out for us. If the goods purchased are processed with other items which do not belong to us, then we acquire the co-ownership of the new item in relation to the value of the item purchased (final invoiced amount, including value added tax) to the other     processed items at the time of processing. The same otherwise applies for the item which results from the processing as for the delivered goods purchased which are under                  reservation of ownership.

(6)             If the goods purchased are mixed together in an inseparable manner with other items which do not belong to us, then we acquire the co-ownership of the new item in relation to the value of the item purchased (final invoiced amount, including value added tax) to the other mixed items at the time of mixing in the manner, that the customer views the item as a completed product, then it is agreed, that the customer transfers to us proportional co-ownership. The customer will keep the resulting sole or jointly owned property           in safe storage for us.

(7)             The customer cedes to us also the amount payable for the securing of our amounts payable from him, which result through the connection of the goods purchased with property against a third party.

(8)             We are obligated to release the security deposit at our disposal upon request from the customer, as the realizable value of our security exceeds the amount payable secured by this by more than 10% ; the choice of which security is to be released is at our discretion.

§ 9            Jurisdiction – Place of Fulfillment

(1)             In so far as the customer is a businessman, our business location is the court of jurisdiction; we are however entitled, to also file complaints against the customer in his local court of jurisdiction.

(2)             The laws of the Federal Republic of Germany apply; the validity of the UN-uniform law on the international sale of goods is excluded.

(3)             Unless otherwise stated in the order confirmation, our business location is the place of fulfillment.