1. Scope, Incorporation of Standard Business Terms, Client’s Terms and Conditions
1.1 Unless otherwise agreed, our products and services are supplied under the following General Terms and Conditions (GTC), which become an integral part of the agreement and shall only apply to traders as specified by section 14 of the German Civil Code (BGB).
1.2 Our Terms and Condition apply exclusively. Any divergent, conflicting or supplementary general terms and conditions that the client may provide shall only constitute an integral part of the agreement if we have expressly consented to their effectiveness. This requirement of consent shall apply to all and any cases, including, but not limited, to cases where we do not expressly reject the client’s GTC that might have been included as a reference during the ordering procedure.
1.3 Any legally relevant declarations and notifications provided by the client in relation with the agreement (e.g. notification periods, notification of defects, withdrawal or reduction) must be made in writing. The written form requirement under these GTC implies declarations made in writing and as text (e.g. letter, e-mail, fax). Statutory formal requirements and additional documents, in particular where required to prove the legitimation of the party making the declaration, remain unaffected.
1.4 Individual agreements and specifications included in our order confirmation shall prevail over these GTC.
1.5 Unless otherwise agreed, these GTC in the version effective at the time the client placed the order or in the version last communicated to the client shall serve as a frame agreement for similar future agreements and shall not oblige us to explicitly refer to these GTC in each individual case.
2. Offers, Conclusion of the Agreement
2.1 Our offers to conclude an agreement shall always be non-binding. This shall also apply if we have provided the client with catalogues, technical documentation (e.g. drawings, plans, calculations, costings, references to DIN standards), other product descriptions or documents – including in electronic form – to which we reserve any ownership and potential copy rights.
2.2 The client’s order shall be deemed a binding offer to conclude an agreement. Our confirmation issued after the client has placed the order is required to conclude the agreement in cases where no written agreement was established.
3. Prices and Payment
3.1 Unless otherwise agreed, our prices are ex works (EXW) at our factory in Rheinmünster.
3.2 Where applicable, the legally applicable value added tax has to be added to our prices.
3.3 All payments shall be made by cost-free bank transfer to the bank account specified by us. Payments shall be deemed as having been made in due time on the date when they are credited to our account.
4. Modifications of the Agreement, Requests for Modifications
4.1 Unless otherwise agreed, the text form shall be mandatory for any modifications that deviate from our order confirmation, whereas our confirmation in text form shall be sufficient.
4.2 In the event of subsequent modifications and additional services requested by the client, the agreed dates for delivery and completion shall be extended appropriately whilst we shall be entitled to modify the agreed prices in line with the pricing basis for the originally ordered services and the specific costs of the modified or additional services.
5. Place of Performance
Unless otherwise agreed, our factory in Rheinmünster shall be the place of performance (and cure if required) (obligation to be performed at the place of performance of the debtor).
6. Time of Delivery and Completion
6.1 For deliveries ex works, the delivery time shall be deemed to have been observed if the delivery item is available for handover on the agreed date and we have notified the client of such delivery date.
6.2 We shall be entitled to extend the agreed delivery and completion periods if the client fails to make the agreed payments on the due date or fails to make them in full; the relevant periods shall be extended in proportion to the number of days that a payment is in arrears. If the client defaults on payment for more than 14 calendar days, we shall be entitled to suspend the works. In the event of a legitimate interruption of work, agreed delivery and completion dates will no longer be binding. In such cases, the new delivery date after the end of the impediment shall be scheduled in accordance with our operating procedures and workload.
6.3 We are obliged to notify the client immediately in writing if we are unable to perform our services in due course. Delivery and completion dates will be extended if the impediment was caused by:
a) the client’s failure to co-operate as required or a circumstance within the client’s sphere of influence, such as the improper condition of a vehicle provided to us by the client,
b) by a strike or lockout ordered by the employers’ association which affects our company or a company that works directly for us or a supplier’s company,
c) delays of our suppliers’ delivery to us, provided such transaction was covered by a congruent agreement, or caused by any other interruption of the supply chain, e.g. force majeure, which releases us from our obligation to procure the relevant items in individual cases,
d) force majeure or other circumstances beyond our sphere of influence.
7. Delivery, Acceptance
7.1 Works provided by our factory will be delivered, services provided by our factory require acceptance.
7.2 The client must not withhold the acceptance of services that were duly provided according to the agreement (sections 433, para 2, and 640 of the German Civil Code (BGB)). Where services are provided by our factory, we are entitled to request a written declaration of acceptance before hand-over/delivery.
7.3 The risk of accidental destruction and accidental deterioration passes to the client not later than upon handover of the delivered item. In the case of a sales shipment, however, the risk of accidental destruction and accidental deterioration of our deliveries and services as well as the risk of a delay in delivery passes to the forwarding agent, the carrier or the person or body specified to carry out the shipment. If acceptance was agreed, it shall be decisive for the passing of the risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly to the acceptance. Delivery and/or acceptance shall be deemed equivalent if the client is in default of acceptance.
7.4 If we have duly notified the client of the completion, the client cannot invoke the fact that the person(s) sent by him for acceptance did not have authorisation to declare acceptance.
7.5 In the case of mutual commercial transactions agreed between the parties, we are entitled to claim storage charges for the continued storage of the work/delivery of work pursuant to Section 354 of the German Commercial Code (HGB) if the client is in default of acceptance.
8. Retention of Title, Vehicle Documents, Co-Ownership
8.1 Where movable items are delivered, we retain title to such items in accordance with section 449 BGB until the payment owed by the client has been made in full; the transfer of ownership is subject to the condition precedent of full payment of the remuneration owed (retention of title). In the event of default of payment, we may demand the return of our reserved ownership even without revoking the agreement if we have unsuccessfully granted the client a reasonable period for curing the default of payment.
8.2 Pursuant to the German Road Licensing Regulations (StVZO) and in accordance with section 952 BGB, we will retain the ownership of any vehicle documents of vehicles in our ownership until the ownership is transferred to the client. If we provide the client with vehicle documents for the purpose of registering the vehicle before ownership will be transferred, the client must return the vehicle registration certificate (part II of the German vehicle registration certificate) to us immediately after registration.
8.3 If we furnish a vehicle provided by the client with superstructures and interior fittings, we shall acquire co-ownership of the vehicle and the vehicle documents in accordance with section 947 BGB by combining the items in our ownership. The transfer of co-ownership shall be subject to the condition precedent of full payment of the remuneration owed.
Where we have acquired co-ownership of a vehicle, the client is obliged, at our request, to hand over the vehicle registration document (registration certificate part II) to us for storage until the remuneration owed has been paid in full.
Statutory liens remain unaffected.
8.4 If, contrary to Section 8.2, the registration certificate is not returned or, contrary to Section 8.3, the registration certificate is not submitted, we are not obliged to hand over the vehicle before full payment of the owed remuneration (section 273 BGB) and the client is in default of acceptance after we have completed the service owed (section 298 BGB).
9. Claims of the Client Based on Defects
9.1 The rights of the client in the event of material defects and defects of title (including incorrect and incomplete delivery as well as inappropriate assembly/installation or defective instructions) are governed by the statutory provisions, unless otherwise specified below.
9.2 We are only obliged to supply and, if necessary, update the digital content of products with digital elements or other digital content if this is explicitly set out in a quality agreement. We do not assume any liability for public statements made by the supplier or other third parties.
9.3 We shall not be liable for defects of which the client was aware at the time of entering into the agreement, or which the client was not aware of due to gross negligence on his part, or for which the client has failed to fulfil his statutory inspection and notification obligations.
9.4 In the event of defects, we are entitled, at our discretion, to either remedy the defect or make a subsequent delivery/reproduce the item. The client is obliged to grant sufficient time and the adequate capacities for curing the defect. We are entitled to withhold the cure owed until the client has paid the outstanding remuneration. The client is only entitled to retain a part of our remuneration that is reasonable in relation to the defect.
9.5 If a defect is proven to exist, we shall bear or reimburse the expenses necessary for testing and curing the defect, in particular transport, travel, labour and material costs, as well as any costs of removal and installation, in accordance with statutory provisions and these General Terms and Conditions. Where the client knew or should have known that no defect existed, we may demand compensation for the costs incurred as a result of the unjustified request for curing defects.
9.6 The client is entitled to revoke the agreement or reduce the remuneration in accordance with statutory provisions if a reasonable period of time granted by the client for curing the defect has expired without success or is dispensable under applicable law. This right to revoke the agreement does not apply to minor defects.
9.7 Claims of the client for the reimbursement of expenses pursuant to section 445a para. 1 BGB are excluded, unless the last contract in the supply chain is a purchase of consumer goods (sections 478, 474 BGB) or a consumer contract on the supply of digital products (sections 445c sentence 2, 327 para. 5, 327u BGB). Claims of the client for reimbursement of futile expenses (section 284 BGB) only exist for our defective services or performances subject to the following clauses 10 and 11.
10. Liability
10.1 Unless otherwise set out in 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.
10.2 We shall be liable for damages – regardless of the legal basis – in the event of intent or gross negligence within the scope of fault-based liability. Subject to the statutory limitations of liability (e.g. diligence in one’s own affairs; minor breach of duty), we shall only be liable in the event of slight negligence for
a) damages resulting from injury to life, body or health,
b) damages resulting from the breach of a material contractual obligation (an obligation whose fulfilment is essential to the proper performance of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
10.3 The limitations of liability arising from 10.2 shall also apply to third parties and to breaches of duty attributable to persons (including in their favour) insofar as we are legally responsible for their fault. They shall not apply if a defect was fraudulently concealed or if a guarantee was given as to the nature of the quality of our deliveries and services, nor shall they apply to claims by the client under the Product Liability Act.
10.4 The client’s right to withdraw from or terminate the agreement for breach of duty excluding defects is restricted to cases where we are responsible for such breach of duty. Any unrestricted right of termination by the client (in particular under sections 650, 648 BGB) is excluded. In all other respects the statutory provisions shall apply.
11. Limitation Period
11.1 Contrary to sections 438, para. 1, no. 3, 634a, para. 1, no. 1 of the BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. Where acceptance was agreed, the limitation period shall start on acceptance. The provisions set out in sections 438, para. 1, no. 2 BGB, 634a, para. 1, no. 2 BGB and other specific statutory provisions regulating limitation periods (in particular sections 438, para. 1, no. 1, para. 3, 444, 445b, 634a, para. 3 BGB) shall remain unaffected.
11.2 The limitation periods set out above for the sale of goods and, as the case may be, for producing a work also apply to contractual and non-contractual claims for damages by the client that are based on a defect in the delivery item, unless a shorter limitation period would be applicable in individual cases regulated by a standard limitation period (sections 195, 199 BGB). Claims for damages brought forward by the client pursuant to sec. 10.2 sentences 1 and 2 (a) as well as claims under the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
12. Applicable Law and Place of Jurisdiction
12.1 This agreement is governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the CISG.
12.2 If the client is a merchant within the meaning of the German Commercial Code, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship, including internationally, is our registered office in Rheinmünster. The same applies to clients who are traders as defined by section 14 BGB. Notwithstanding the above, we are also entitled in each case to initiate legal proceedings at the place of performance of the contractual delivery in accordance with these terms and conditions or a prevailing individual agreement, or at the client’s general place of jurisdiction. Any superior legal provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
General terms and conditions as of: 12/2024 – Bischoff + Scheck GmbH, Victoria Boulevard D 100, 77836 Rheinmünster