GENERAL CONDITIONS OF SALE, DELIVERY, ASSEMBLY AND INSTALLATION
of Real Innenausbau AG, Külsheim
1. Validity and Conclusion of Contract
1.1. All services and deliveries of whatever kind to the customer are exclusively subject to our general terms and conditions of business, which the customer recognizes by placing an order or accepting a delivery. Any other conditions are not applicable, even if these are not expressly contested by Real. Our general terms and conditions of business shall also apply for all future business relationships even if they are not expressly agreed in each individual case.
1.2. Consumers, in reference to the said business relationships, are understood to be persons with whom a business relationship is established who cannot be classified as acting in an independent, commercial or professional capacity. Entrepreneurs, in reference to the said business relationships, are understood to be natural or legal entities or legally founded partnerships with whom a business relationship is established and who are acting in pursuance of a commercial or independent professional activity. Principals or customers, in reference to the said business relationships, are understood to be both consumers as well as entrepreneurs.
1.3. Offers made by Real are without engagement. A contract does not come into force until confirmed in writing by Real. The contents of order confirmations, delivery notes and other written confirmations from Real are deemed recognized as correct by the customer unless the customer immediately lodges objection in writing, at the latest within 4 working days after receipt. When ordering a work or a product, the principal or customer issues a binding declaration of the intention to place the order. We are entitled to accept the contract offer included in the order within two weeks of receipt at our address. Acceptance can be declared either in writing or by delivery of the work or product to the principal or customer.
1.4. If the consumer orders the work or the product by electronic means, we shall immediately confirm receipt of the order. The confirmation of receipt does not yet constitute a binding acceptance of the order. The confirmation of receipt may be combined with the declaration of acceptance of the order.
1.5. We reserve the right to effect any necessary or expedient technical modifications to the products. Dimensions, pictures and drawings serve solely to provide preliminary information for the customer and require written confirmation from Real to verify their binding validity. Information about properties and performance characteristics of the products serves as illustration and is not binding.
1.6. Unless otherwise expressly agreed in detail the following shall apply in regard to the content of the contract, in the following order: the stipulations and specifications contained in the written offer, the construction plans and descriptions of services, these general terms and conditions of business, the relevant, currently valid version of the German standard terms for the awarding of construction contracts, Part B (VOB/B) as well as the general provisions of the German Civil Code.
1.7. The contract is concluded subject to our correct and punctual receipt of deliveries from our suppliers. This shall apply only in the event that we are not responsible for failure to deliver, in particular if a congruent coverage business agreement has been concluded with our supplier. The customer shall be informed immediately of the unavailability of the services or delivery. Reimbursement shall be effected immediately.
1.8. If the consumer orders the work or the product via electronic means, we shall store the contract text and, on request, send it to the consumer by e-mail, together with the General Terms and Conditions of Business presented here.
2. Cost estimate/Preparatory work
2.1. Should the principal desire a binding price quotation, a written cost estimate is required; this shall contain details of the individual works and materials needed for their execution showing the respective price of each. The contracting party is bound by this cost estimate up to the end of a 4-week period following its issue.
2.2. Cost estimates shall be charged for according to agreement.
2.3. Preparatory work for the compilation of service descriptions, project documents, plans, drawings and models required by the principal are likewise subject to remuneration according to agreement.
2.4. If an order is placed on the basis of a cost estimate, any costs for the cost estimate and the costs of the preparatory work, if applicable, shall be offset against the invoice for the order. The total price when calculating the order may only be exceeded with the consent of the principal.
3.1. Terms of delivery and deadlines are only binding if they are agreed with the customer or confirmed in writing by Real. Terms of delivery shall begin on the date of the order confirmation and after clarifying the technical issues as well as the receipt of documents and plans to be submitted by the customer.
3.2. Unpredictable events, such as act of God, delivery or transport delays or labour disputes, release Real for their duration from the obligation to deliver according to the terms agreed as long as Real is not responsible for such events. Delivery terms shall be extended by the period of the disruption. Should the disruption persist for longer than 6 months, both parties are entitled to withdraw from the contract. The customer is not entitled to claim damages in this case.
3.3. Should Real fall into arrears, the customer is only entitled to withdraw from the contract after submitting a reminder and after expiry of a reasonable period of grace granted to complete or rectify performance. Damage claims are excluded unless nothing to the contrary emerges from these conditions.
3.4. Should the customer fall into default of acceptance or if he himself is responsible for a delay in delivery, Real shall be entitled to store the products at the customers risk and expense. After granting an additional period of grace for accepting the products and after fruitless expiry of same, Real can withdraw from the contract and demand compensation in lieu of performance. Further rights shall remain unaffected.
3.5. If the buyer is an entrepreneur, the risk of accidental loss and accidental deterioration of the ordered item is transferred to the buyer in the case of purchase to destination upon delivery of the item to the forwarding agent, freight carrier or other person or body assigned to perform the forwarding operation. If the buyer is a consumer, the risk of accidental loss and deterioration of the item sold is only transferred to the buyer, also in the case of purchase to destination, when the item is handed over to the buyer. The handover is unaffected by the buyer being in default of acceptance.
3.6. Real is entitled to effect part deliveries. As long as the customer remains in arrears in regard to an obligation arising from the business relationship, our obligation to deliver is suspended.
3.7. Unless otherwise agreed, our delivery and performance is deemed accepted at the latest upon being put into operation. Real is entitled to demand acceptance of part deliveries and services.
4. Prices and payment terms
4.1. All prices are charged according to the respective Real price lists valid at the time of confirming the order, unless otherwise agreed or directly arising from the order confirmation. They shall be understood as ex our warehouse, not including additional transport and transport insurance costs as well as the legal value added tax. Any fees for cheques or bills of exchange shall be borne by the customer. The customer incurs no extra charge by ordering via or using remote telecommunication means.
4.2. Unless otherwise agreed, the customer shall make payments in the following manner: 30% on placing the order or on receiving written confirmation, 30% on commencement of assembly and 30% on completion of the main assembly. The remaining amount shall be paid within eight days after receipt of invoice.
4.3. For payments by cheque or bill of exchange, the value date is deemed the date of receipt. Cheques and bills of exchange will only be accepted by Real under special agreement and solely on account of performance, subject to charges for all collection and discount expenses.
4.4. Should the customer fail to meet the terms of payment, we reserve the right to claim damages for default. During the period of delay in payment, the consumer is obliged to pay interest on the amount owed at the rate of 5% above the base rate. The entrepreneur, during the period of delay in payment, is obliged to pay interest on the outstanding debt at 8% above the base rate. In relation to the entrepreneur, we reserve the right to prove and claim higher damages through default.
4.5. Should the customer fail to meet his contractual payment obligations or should he discontinue payments or if Real becomes aware of circumstances that give reason to doubt the solvency of the customer, Real is entitled to declare the entire outstanding debt due for immediate payment and to require advance payments or demand the provision of securities. In such cases, Real is entitled to withdraw from the contract in so far as the contract has not yet been fulfilled, also without granting an extended period of grace.
4.6. The customer is entitled to offset claims only when his counterclaims have been determined in court or recognised by Real. The customer may only exercise a right of retention when his counterclaim is founded on the same contractual relationship.
4.7. In the event of later modifications of the design or construction as well as the dimensions in relation to our offer or the written confirmation, whether for reasons of customer wishes, technical necessities, unforeseen difficulties or influenced by other circumstances beyond the control of Real, Real is entitled to charge additional costs to the customer.
4.8. Our claims for contractual fees against the entrepreneur lapse after five years.
5. Distance selling contract with revocation clause
5.1. The consumer has the right to withdraw his declaration of intent in relation to the conclusion of the contract within two weeks after concluding the contract or within two weeks after receiving the ordered items. The revocation is not required to contain any reason and shall be declared in the form of a written text or by returning the delivered items; to meet the prescribed deadline, timely expedition is sufficient.
5.2. We reserve the right to begin executing the order only after expiry of the two-week revocation period.
5.3. If the consumer exercises his revocation right, he is obliged to return the delivered items if these can be sent by parcel. In the case of exercising the right to revoke the contract, the cost of returning the delivered items up to the value of 40 euro shall be borne by the consumer, unless the item delivered does not correspond to the item ordered. Should the order value exceed 40 euro, the costs for returning same shall not be borne by the consumer.
5.4. The consumer shall compensate the reduced value caused by deterioration of the item due to initial usage for the intended purpose. The consumer is entitled to examine the item with due care and attention. The consumer must compensate the loss in value caused by using the item beyond the initial examination, making it no longer possible to sell the delivered item as “new”.
6. Retention of title
6.1. In contracts with consumers, we retain title to the delivered items until full payment of the purchase price. In contracts with entrepreneurs, we retain title to the delivered items until full settlement of all commitments arising from an on-going business relationship.
6.2. The customer is obliged to treat the delivered items with due care. Should inspection and maintenance work be required, the customer shall perform this regularly at his own expense. The customer is obliged to inform us immediately in the event that a third party lays claim to the delivered items, for example by way of garnishment, as well as in the case of damage or destruction of the delivered items. The customer shall inform us without delay of a change of owner or of his own place of domicile. We are entitled to withdraw from the contract and demand return of the delivered items in the event of breach of contract on the part of the customer, in particular delayed payment or failure to meet the obligations provided in the contract.
6.3. The customer may only sell the delivered items in the proper course of business and subject to an agreement concerning an appropriate retention of title, whereby he herewith already assigns to Real the accounts receivable to the value of the debts outstanding to Real as well as the rights from the retention of title. This authorisation is revocable. We reserve the right to collect the debt ourselves as soon as the entrepreneur fails to meet his payment obligations properly and falls into payment arrears.
6.4. When processing or combining the products, the customer herewith already assigns title to the value of the products subject to retention of title as security to Real and shall hold the resulting object in safekeeping on behalf of Real. The customer is responsible for the treatment or processing of the goods subject to retention of title on Real’s behalf without this resulting in any obligations or commitments for Real. If the processing involves objects that do not belong to us, we acquire co-title to the new object to the relative value of the objects supplied by us in proportion to the other processed objects. The same shall apply if the objects are mixed with other objects that do not belong to us.
6.5. In so far as the securities assigned to Real exceed the nominal value of the outstanding accounts by more than 10%, Real shall release securities accordingly on request.
6.6. Should Real lose its title to products delivered under retention of title due to these becoming integral components of a construction plot or building, Real shall be entitled to remove the products delivered from the real estate or building at the customer’s expense and place them in storage until full settlement has been received of all accounts outstanding from the business relationship, also including such that arise in the future. When separated from the real estate or building, these objects again become the property of Real. The customer is under obligation to notify Real immediately of any existing liens or other entitlements on the part of third parties and to remove same as well as otherwise to ensure the restoration of the property without encumbrance to Real.
6.7. The customer is under obligation to take out adequate insurance against normal risks, in particular against the risk of fire, burglary and water damage for the products supplied under retention of title or the objects resulting from their combining, mixing or processing and to treat these with due care.
7.1. The entrepreneur is obliged to inspect deliveries immediately on receipt and to report any complaints as well as obvious or hidden defects to Real without delay, at the latest within two weeks after receipt of the goods or discovery of the defects, respectively. The entrepreneur shall lose warranty and compensation rights in relation to missing, guaranteed properties if he fails to make an inspection of the delivery immediately on receipt or at the latest prior to processing, consumption, use, installation or re-selling and if he does not report complaints to us in writing within one week. After expiry of these deadlines and/or at the latest six months after delivery all and any warranty and damage claims are excluded. Timely dispatch of the complaints report suffices to meet the deadline. The entrepreneur bears the full burden of proof concerning all conditions for lodging a claim, in particular in respect of the defect itself, the point of time when the defect was discovered and of the timely submission of the complaints. Consumers are obliged to report obviously visible defects in writing within a deadline period of two months after the date on which the contractually inconsistent condition of the goods is discovered. The deadline is deemed met on timely receipt of the notification by us. If the consumer fails to notify us, his warranty rights lapse two months after his discovery of the defects. This does not apply in the case of fraudulent intent on the part of the seller. The consumer bears the burden of proof in regard to the point of time at which the defect is discovered. In so far as claims exist against us from consumers for supplementary performance, as well as withdrawal from contract and rights to reduction, these lapse after two years from time of delivery and/or acceptance.
7.2. We initially provide warranty by way of rectification or replacement at our own discretion. Replaced parts, in so far as they did not already belong to Real, become the property of Real. In so far as we seriously and irrevocably refuse fulfilment, refuse rectification of defects and supplementary fulfilment due to incommensurate costs, supplementary fulfilment fails or is unacceptable to the customer, customers, at their own discretion, may merely demand a lower price (reduction) an annulment of the contract (withdrawal) and damages in the framework of the liability limitation in lieu of performance. However, in the event of a slight infringement of the contract, in particular in the case of minor defects, the principal is not entitled to withdraw from the contract. If the customer, after failed supplementary performance, should choose to withdraw from the contract due to a rights or material defect, the customer is not additionally entitled to any claim for damages in regard to said defect. If the customer, after failed supplementary performance, should choose damage compensation, the delivered items shall remain with the customer if this is acceptable to him. Compensation is limited to the difference between the purchase price and the value of the defective object. This shall not apply if we have caused the breach of contract with fraudulent intent. Warranty claims do not exist in the event that the products delivered are defective due to incorrect maintenance and cleaning, through damage, improper use, treatment or repair. For third-party products or objects combined with deliveries and services provided by Real or used in conjunction with these products, warranty or damage claims against Real are excluded, whereby Real shall assign to the customer those liability claims to which Real is entitled against the supplier of the third-party delivery. Subject to any contrary agreements, Real assumes no warranty for the functional capacity of our deliveries and services in so far as these are combined or put into operation by the customer together with third-party products. Should the customer receive defective assembly instructions, we are merely obliged to supply faultless assembly instructions and this, only in the case that the defect in the assembly instructions impedes correct and proper assembly.
7.3. In so far as Real is not responsible for a breach of obligation giving rise to a defect, the customer is not entitled to withdraw from the contract. Rights of the customer in respect of defects that are not related to a construction work and/or a work consisting in the provision of planning and supervisory services for said work shall lapse after one year towards entrepreneurs and towards consumers in two years from the date of acceptance of the work. In the case of used objects the limitation period is one year from completion of delivery. This shall not apply if the customer fails not notify us of the defect in good time (Point 1 of this provision). The short period of limitation does not apply if Real is culpable of grave fault as well as in the case of bodily injury, health damage or loss of life on the part of the customer attributable to us. Our liability in pursuance of the product liability act remains likewise unaffected.
7.4. In the event of fraudulent concealment of defects or should further guarantees in respect of properties have been assumed, further claims shall remain unaffected. From us, the customer will receive no guarantees in the legal meaning.
7.5. Further claims, in particular in respect of consequential damages, are excluded, in so far as permissible by law. All damage claims against us, also for positive breach of contract, unlawful action and, in particular, in respect of product liability or on other legal grounds, as far as legally permissible, are limited to the case of deliberate intent or gross negligence. We assume liability in the case of slight negligence if essential contractual obligations are infringed and the infringements are attributable to our operational organisation. These claims lapse after six months, whereby the limitation periods begin on the date of delivery.
7.6. Unless otherwise provided in these conditions, further claims are excluded.
8.1. In the case of violation of obligations arising from slight negligence, our liability is limited to the immediate, average, predictable extent of damages typical for the respective type of contract. The aforesaid shall apply also to breaches of obligation through slight negligence on the part of our legal representatives or vicarious agents.
8.2. In relation to entrepreneurs, we assume no liability in the case of breaches of non-essential contractual duties arising from slight negligence.
8.3. The aforesaid liability limitations do not apply to claims made by the customer on the basis of product liability. Furthermore, said liability limitations do not apply in the case of physical injury and health damage attributable to us, or loss of life on the part of the customer attributable to the contractor.
9. Intellectual property rights
9.1. The customer shall inform Real immediately in the event of claims lodged by third parties in respect of infringements of commercial, intellectual property rights by the products delivered.
9.2. The customer shall lend the necessary assistance to Real in defence of its intellectual property rights.
9.3. Should the customer be prevented by third-party rights from using the products delivered, Real, at its own discretion, shall obtain for the customer the necessary rights of usage or replace the products by other products that do not infringe any third-party rights.
9.4. Further rights on the part of the customer are excluded unless otherwise provided in these conditions.
10.1. The customer, at his own expense, shall ensure the completion of brickwork, mortising and pick work unless otherwise agreed in the framework of this contract. The customer shall guarantee at his own expense the installation of electricity connections and the necessary electric power sockets as well as the power supply for the duration of the assembly work.
10.2. The customer shall ensure that, at the appointed time and for the duration of the assembly work, the construction object is accessible without hindrance for the assembly workers of Real and can be accessed by construction site vehicles up to a maximum permissible weight of 7.5 tonnes.
10.3. Unless otherwise agreed, for interior outfitting work, all necessary conditions must be created prior to commencement of the work, in particular all brickwork, plastering, flooring and ceiling work as well as other preparatory work must be completed so that the assembly work by the Real assembly workers can begin immediately after their arrival. The customer shall be liable for all costs ensuing from any incorrect positioning or execution of the foundations as well as non-adherence to the specified assembly conditions.
11. General provisions
11.1. Changes and additions to this contract and these conditions must be in writing.
11.2. The ineffectiveness or nullity of one of the aforesaid provisions does not affect the validity of the remaining provisions. If one of the provisions of these terms of contract is ineffective, this shall be replaced, under consideration of the other provisions, by a valid provision which comes closest to achieving the business objective of the ineffective provision.
11.3. The legal relationships between Real and the customer are subject to the law of the Federal Republic of Germany, exclusively. The applicability of international, commercial law is excluded.
11.4. In so far as the customer is a business entity in the meaning of the commercial code, a legal entity under public law or a special asset under public law, the exclusive place of jurisdiction for all disputes directly or indirectly ensuing from this contractual relationship is agreed as Külsheim/Baden with the proviso that we are also entitled to sue the customer at his place of general jurisdiction. The same shall apply if the customer has no place of general jurisdiction in Germany or if the domicile or usual place of residence are unknown.
11.5. The customer is aware that personal data about the customer is recorded and processed in our normal course of business to the extent necessary for business purposes. The customer consents to this and is deemed informed in pursuance of §33 Section 1 of the German Data Protection Act.