Calenberg Ingenieure GmbH General Terms and Conditions of Business

 

Section 1 Scope

(1)    (1) The following General Terms and Conditions of Business govern the contractual relationship between Calenberg Ingenieure GmbH, Am Knübel 2-4, 31020 Salzhemmendorf, Germany (Contractor), and business operators, legal entities under public law or trusts under public law as defined in Section 310 Para. 1 German Civil Code (BGB) as the Client. They apply to all goods offered by Calenberg Ingenieure, in particular those in the Divisions Structural Bearings/Static, Vibrations
Dynamics, Track System Construction, Noise Control and Environmental Protection. We hereby expressly exclude any of the Client's conditions which add to, differ from or conflict with our General Terms and Conditions of Business. They shall thus also not apply if the Client has based their order or any other declaration on such own conditions. We only recognise conditions which add to, differ from or conflict with our General Terms and Conditions of Business if we have expressly agreed that they apply in writing.
 
(2) Our General Terms and Conditions of Business also apply to all future business transactions with the Client if they are transactions of a related type.
 
 

Section 2 Quote and conclusion of the Contract

(1) Our quotes are non-binding and subject to change unless they are expressly marked as binding or contain a specific period of acceptance. We may accept orders within fourteen days after they are received.
 
(2) The written sales contract and these General Terms and Conditions are the sole basis for the legal relationship between us and our Client. These fully reflect all agreements between the contractual parties regarding the subject matter of the Contract. Oral commitments made by Calenberg Ingenieure GmbH before this Contract is concluded are not legally binding and oral agreements between the contractual parties are replaced by the written Contract unless it is expressly stated in each case that they are binding.
 
(3) Additions and amendments to the agreements reached, including such changes to these General Terms and Conditions, must be in written form to be valid. Telecommunication transmission, in particular by fax or email, is sufficient to comply with the requirement for written form, provided that a copy of the signed declaration is transmitted.
 
(4) Information that Calenberg Ingenieure provides on the object of delivery or service, such as weight, dimensions, utility values, load-bearing capacity, tolerances and technical data, and our representations of these, such as drawings and other images, are only approximate unless usability for the purpose stipulated in the Contract requires precise conformity. They are not guaranteed characteristics; they are descriptions or identifications of the delivery or service. Deviations customary in the trade and deviations which are due to statutory regulations or constitute technical improvements or the replacement of components with equivalent parts are permitted, provided they do not impair usability for the purpose stipulated in the Contract.

(5) We reserve the ownership or copyright for all quotes and cost estimates that we submit and for drawings, other images, calculations, brochures, catalogues, models, tools and other documents and auxiliary material provided to the Client. The Client may not make these objects or their contents accessible to third parties, disclose or publish them, use such objects themselves or have them used or reproduced by third parties without the Contractor's express consent. At our request, the Client must return these objects to us in their entirety and destroy any copies that may have been made if they are no longer needed during the ordinary course of business or if negotiations do not lead to the conclusion of a contract. The storage of electronically provided data for the purpose of normal data backups is excluded from such requirements.
 
 

Section 3 Delivery & delivery period

(1) Deliveries are made ex works.
 
(2) Deadlines and dates for deliveries and services that the Contractor has signalled that they will provide are always only approximate unless a fixed deadline or date has been expressly accepted or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party contracted to provide transport.

(3) Without prejudice to their rights arising from default on the Client's part, the Contractor may require that the Client extend delivery and performance periods or postpone delivery and performance dates by the same amount of time during which the Client fails to meet their contractual obligations towards the Contractor.

(4) The Contractor shall not be liable if delivery proves impossible or if there are delays in delivery if these are caused by force majeure or other events that were not foreseeable at the time when the Contract was concluded and for which the Contractor is not responsible. Such events include interruptions in operations of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in procuring necessary official approvals, official measures, the failure of suppliers to deliver and suppliers making an incorrect delivery or delaying delivery. The Contractor is entitled to withdraw from the Contract if such events make the delivery or service significantly more difficult or impossible for the Contractor and the hindrance is not merely temporary. In the event of temporary hindrances, delivery or performance deadlines shall be extended or the delivery or performance dates shall be postponed by the period that the hindrance lasted plus a reasonable start-up period. If the Client cannot be reasonably expected to accept the delivery or service as a result of the delay, they may withdraw from the Contract by sending the Contractor an immediate written notification of termination.
 
(5) The Contractor is entitled to make partial deliveries if
  • the Client can use the partial delivery within the scope of the contracted intended use
  • the delivery of the remaining ordered goods is assured and
  • the Client does not incur any significant additional work or additional costs as a result (unless the Contractor declares that they are willing to bear such costs).

 
(6) If the Contractor is in default with a delivery or service or if it becomes impossible for them to make a delivery or provide a service, for whatever reason, the Contractor's liability for damages shall be limited in accordance with Section 7 of these General Terms and Conditions.
 
 

Section 4 Prices and payment

(1) Prices apply to the scope of services and delivery indicated in order confirmations. Extra or special services are calculated separately. Prices are indicated ex works in euros and do not include packaging, statutory value added tax, duty for export deliveries, fees and any other public dues.

(2) If the agreed prices are based on the Contractor's listed prices and delivery will not be made until more than four months after the Contract is concluded, the Contractor's listed prices valid at the time of delivery shall apply.

(3) Invoice amounts must be paid immediately without any deductions unless agreed otherwise in writing. The date of payment corresponds to the date when the Contractor actually receives payment. Payment by cheque is not permitted unless it is agreed separately in individual cases. If the client does not make payment by the due date, the outstanding amounts shall bear interest of 5% p.a. from the due date; the right to claim higher interest and further damages in the event of default will remain unaffected.

(4) The Client is only permitted to offset counterclaims or withhold payments due to such claims if the counterclaims are undisputed or have been recognised in a court of law.

(5) The Contractor shall be entitled to carry out or provide outstanding deliveries or services against advance payment or provision of security only if, after concluding the Contract, they become aware of circumstances which are likely to reduce the Client's creditworthiness significantly and which puts at risk the payment of the Contractor's outstanding receivables from the Client specified in the Contract concerned.

 
 

Section 5 Place of performance, shipment, packaging, transfer of risk, acceptance

(1) The place of performance for all obligations arising from the contractual relationship is the location of our branch office unless
agreed otherwise.

(2) The Contractor shall decide on the mode of shipment and packaging according to their best judgement.

(3) The risk shall pass to the Client at the latest when the delivery item is handed over (with the start of the loading process being the determining factor) to the forwarder, carrier or other third party designated to perform shipment. This also applies if partial deliveries are made or the Contractor has taken on other services, such as shipping or installation. If shipment or handover is delayed as a result of circumstances for which the Client is responsible, the risk shall pass to the Client on the day on which the delivery item is ready for shipment and the Contractor has notified the Client of such circumstances.

(4) The Client shall bear any storage costs after the transfer of risk.  If it is the Contractor who provides storage, storage costs shall amount to 0.25% of the invoice amount for the delivery items to be stored for each complete week. The right to assert and prove further or lower storage costs is reserved.

(5) The Contractor shall only insure the consignment against theft, breakage, transport, fire and water damage, or other insurable risks at the Client's express request and at the Client's expense.
 
 

Section 6 Warranty & material defects

(1) The warranty period is one year after delivery. This period does not apply to the Client's claims for damages based on loss of life, physical injury or harm to health or which are due to a deliberate or grossly negligent breach of duty on the part of the Contractor or their vicarious agents. Rights to assert such claims are subject to statutory regulations. The limitation period is five years if the delivered objects have been used in a structure as per its customary use and have caused a deficiency in the structure.

(2) The delivered items must be carefully examined immediately after delivery to the Client or to a third party that they designate. In the case of obvious defects or other defects which would have been detected on immediate, careful inspection, the Client shall be deemed to have approved them if the Contractor does not receive a written complaint within seven working days of delivery. In the case of other defects, the Client shall be deemed to have approved by the delivery items if the Contractor does not receive notification of defects within seven working days of the time at which the defect became apparent; however, if the defect was already apparent to the Client during normal use at an earlier point in time, this earlier point in time shall be decisive for the start of the notification period. A delivery item which is the subject of a complaint shall be returned to the Contractor carriage paid on the Contractor's request. If the notification of defect is justified, the Contractor will pay the costs of the most favourably priced mode of shipment; this does not apply if costs increase because the delivery item is at a different location to the location of intended use.

(3) If the delivered items contain material defects, the Contractor is obliged and entitled to repair or deliver replacements at their discretion within a reasonable period of time. If the Contractor fails to provides such a remedy, i.e. due to the impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the Client may withdraw from the Contract or reduce the purchase price to a reasonable extent.

(4) If the Contractor is to blame for the defect, the Client can demand compensation for damages under the conditions stipulated in Section 7.

(5) In the case of defects in components by other manufacturers which the Contractor cannot remedy for reasons of licence law or practical reasons, the Contractor shall, at their discretion, either assert their warranty claims against the manufacturers and suppliers on behalf of the Client or assign them to the Client. Warranty claims against the Contractor shall only exist for such defects under other conditions and in accordance with these General Terms and Conditions if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or, for instance, has no prospect of success due to insolvency. The limitation of the Client's warranty claims against the contractor is suspended for the duration of such a legal dispute.

(6) The warranty shall not apply if the Client modifies the delivery item or has a third party modify it without the Contractor’s consent and it is unreasonably difficult or impossible to rectify as a result. Whatever the case, the Client shall bear the additional costs of remedying the defect due to such a modification.

(7) If the Client agrees to delivery of used objects at any time, such a delivery shall not include a warranty for material defects.
 
 

Section 7 Liability

(1) The Contractor's liability for damages is limited as specified in the provisions of this section (Section 7), irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and unauthorised action if fault is involved.

(2) The Contractor shall not be liable in the event of slight negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents unless a breach of material contractual obligations is involved.    Essential contractual obligations include the requirement to deliver the delivery item on time and its being free from defects of title and from material defects which impair its functionality or usability more than merely insignificantly. Such requirements also comprise the obligations to advise, protect and provide care which are intended to allow the Client to use the delivery item as agreed or which are intended to protect the Client's personnel’s lives or physical well-being or protect its property from considerable damage.

(3) If the Contractor is liable for damages for reasons as specified in Section 7 (2), such liability is limited to damages which the Contractor foresaw at the time when the Contract was concluded as a possible consequence of a breach of contract or which
they should have foreseen when applying due diligence. Indirect and consequential damages resulting from defects in the delivery item are only eligible for compensation if such damages are typically to be expected when the delivery item is used as intended.

(4) In the event of liability for slight negligence, the Contractor's obligation to pay compensation for material damage and resulting further financial losses is limited to an amount of 1,000,000.00 euros per claim, even if the negligence is a breach of essential contractual obligations.

(5) The aforementioned exclusions and limitations of liability apply equally to the Contractor’s executive bodies, legal representatives, employees and other vicarious agents.

(6) If the contractor provides technical information or acts in an advisory capacity and this information or advice does not form part of the contractually agreed scope of services that they are required to provide, such information and advice is given free of charge and to the exclusion of any liability.

(7) The limitations in this section do not apply to the Contractor’s liability due to wilful misconduct, for guaranteed characteristics, due to loss of life, physical injury or harm to health or based on provisions in the German Product Liability Act (ProdHaftG).
 
 

Section 8 Retention of title

(1) The delivered goods remain our property (goods subject to the retention of title) until the final payment of all receivables arising from the business relationship. In the case of multiple receivables or a standing account, the retention of title shall be deemed security for the account receivables, even if individual deliveries of goods have already been paid.

(2) If the Client acts in breach of contract, e.g. default on payment, we have the right to take back the goods subject to the retention of title after setting a reasonable deadline for payment. If we take back the goods subject to retention of title, this constitutes a withdrawal from the Contract. We are entitled to use the goods subject to the retention of title after taking them back.  After deduction of an appropriate amount for recovery costs, the sale proceeds shall be offset against the amounts that the Client owes us.

(3) In the event that third parties seize the goods subject to the retention of title, particularly in the case of distraint, the Client shall draw the attention of third parties to our ownership and inform us immediately, so that we can enforce our rights of title.

(4) The Client is entitled to process and sell the goods subject to the retention of title during their ordinary course of business provided they are not in default. It is forbidden to pledge goods as collateral or transfer them by way of security. The Client hereby assigns to us all receivables in their entirety arising from the resale or any other legal grounds (insurance, tort) with regard to the goods subject to the retention of title by way of security. We grant the Client revocable authorisation to collect any receivables assigned to us for their account in their own name. The authorisation to collect is revoked if the Client does not properly meet their payment obligations or is experiencing payment difficulties,
sequestration measures are taken against them or judicial insolvency proceedings are initiated against their assets or the opening of such proceedings is rejected due to lack of sufficient assets.

(5) The goods shall be processed or remodelled always on our behalf as a manufacturer, but without any obligation on our part. If the delivery items are processed together with other items that do not belong to us, we shall acquire joint ownership of the new item according to the ratio between the value of the delivery items and the value of the other processed items on the date of processing.    If the delivery items are linked together or inseparably mixed with other items that do not belong to us, we shall acquire joint ownership of the new item according to the ratio between the value of the delivery items and the value of the other processed items on the date of processing. If the Client's item is regarded as the main item in the combination or mix, it is agreed that the Client shall transfer proportional co-ownership of the new item to us. The Client shall hold the co-ownership thus created in safe keeping for us.

(6) We are obliged to release the securities to which we are entitled in this respect when the liquid value of our securities exceeds the receivables to be secured by more than 10 fold; in doing so, we shall be responsible for selecting the securities to be released.
 
 

Section 9 Final provisions

(1) The place of performance for all delivery obligations on our part and for other contractual obligations on the part of both parties is the registered office of our branch.

(2) This Contract, these Terms and Conditions of Business and all legal relationships between the Client and us are subject to the laws of the Federal Republic of Germany to the exclusion of any references to other law systems and international treaties. The UN Purchasing Convention does not apply.

(3) Hannover is the place of jurisdiction for any disputes arising from this contractual relationship. However, we are entitled to bring an action against the Client in the court corresponding to their place of business.

Date of General Terms and Conditions: 03/2017