Terms and conditions of Geyssel Fahrtreppen GmbH - New construction, sale, repair

§ 1 General
(1) The terms and conditions of Geyssel Fahrtreppen GmbH, will apply for all the offers, supplies and services. This will apply to all future offers and services from the purchaser, even if it wasn’t agreed separately.
(2) Deviating, conflicting or added terms and conditions of the purchaser or third person won’t be applicable, even if the contractor in a particular way is not objecting the standing. There won’t be any agreement with the conditions of third persons, even if a contractor is taking it for reference.
(3) Individually made agreements (inclusively side agreements, additions and changes) have priority over the terms. For these kinds of agreements, a mutual confirmation in writing is a must.
(4) References to the application of statutory provisions only serve clarification purposes. Even without these clarifications, the legal regulations apply, so far as they won’t be changed or removed from these terms and conditions.

§Contract content
(1) The offers of the purchaser are subject to change. Information before the contract, especially descriptions, price suggestions, information in prospects, leaflets and application instructions are for information purposes only to provide some general knowledge. If nothing else has been agreed, they won’t be part of the contract.
(2) For the respective contract, decisively is the confirmation of the order from the purchaser, in terms of price, quantity, execution, delivery time, delivery conditions and so on. Minor deviations with shape, colour, weight and material, both in terms of order confirmation and given samples, will be reserved, and agreed as contract equal thing, provided that it is insignificant, and the contractor is expressing an interest in a deviation-free order in writing. Technical changes will be reserved, as long as it is from the progressed technology, or in individual cases within the interest of the purchaser or the service of the object, from the contract is useful.

§ 3 Costs
(1) For the purchasers costs of the deliveries packaging, delivery and insurance is included in Euro. For domestic deliveries there will be additional VAT, which is valid on the day of purchase. VAT, Fees, customs charges and costs for charges are not included.
(2) For services to the construction/ maintenance/ repair of machinery are calculated-if nothing else was agreed- according to the following provisions of the contractor:
(a) The remuneration is not based on hours of work. The client is obliged to submit time sheets on sight and hereby confirm the time line.
(b) There will be surcharges for additional-, night-, Sunday and bank holiday works, for work under difficult circumstances and for planning, surveillance and documentation there will be surcharges levied.
(c) Preparation, travel and running times, as well as feedback are included in the working time.
(d) Travel expenses for arrival and departure will be calculated after the actual expenditure (wage and costs of means of transport.
(e) Transport costs of hand tools, personal luggage, cargo, packaging, delivery of equipment and materials, as well as technical documents of usual trips and allowances will be charged separately.
(f) Environmental disposal of used parts equipped or replaced components, as well as the packaging materials will be paid by the purchaser. Material costs inclusive waste, construction and connection costs will be charged separately.
(3) In case of a price agreement, the contractor can correct the costs, if subsequently the goods and services, directly or indirectly the costs rise because of changes in the cost factors (for example: newly added public dues, additional charges, cargos or other legal actions or changes in the cost factors like wage and material costs). This will apply to consumers only, if between the contract agreement and performance, it is more than 4 months. A price adjustment is coming off, if the contractor has agreed a binding fixed price in writing. If the increase in price is more than 10% of the agreed price, because of the above circumstances, the client can terminate the contract: claims for damages will not be available for him.
(4) Charges from authorities or third parties for the deliveries and services will be paid by the customer.

§ 4 Execution time
(1) The execution will be made on the agreed execution time, respectively on the agreed appointment. The execution time will start with the acquisition of the order confirmation from the contractor to the client, but not before the clarification of all the execution times, which the client has to give.
(2) If the execution time will be exceeded, the client can give the contractor an extension in writing. The same will apply, if the agreed date is exceeded. After expiration of the extension, the legal rights can be used, whereas the right for compensation instead of the services is only given, if in relation to the exceeded date, there is gross negligence of the contractor.
(3) Unexpected incidents like natural disaster, war, traffic congestions or breakdowns, fire, explosions, strike, locked out, delays of the deliveries, machinery, systems, resources or energy, official decrees and so on, will extend the deadline. Will the execution be impossible, because of the mentioned circumstances; the contractor will be freed from the service obligation. In these cases the client can’t derive claims for compensation. If the interruption longer than 4 months, the rights of both parties will be determined by the statutory provisions. This will only apply, if the contractor immediately informs the client about the above circumstances.
(4) Partial services to the total order remain reserved. The contractor is entitled to provide invoices for the partial services.

§ 5 Execution/ Risk transfer/ participation of the client
According to each order content, the following conditions apply to the deliveries, construction and/or maintenance/ repairing:
A) Deliveries
(1) If there hasn’t been an agreement made, about the type of delivery, this is done at the expense of the client at the discretion of the contractor, whereas the contractor is not committed to select the cheapest delivery option.
(2) The Risk is passed on to the client, as soon as the product leaves the warehouse. By request of the client, the deliveries can be insured against breakages, transport damage and fire damage, which he has to pay.
(3) If the good is ready for delivery, but there is delay, which is not the contractors fault, the risk is passed onto the client, on the day of the delivery, or after handing it over to the carrier.
(4) Is the collection agreed, the purchase has to be collected on the agreed day. If there has not been a day agreed, then within 14 days. The risk will be going to the customer, on the in writing agreed purchase day, or after the takeover. If the pickup is delayed, which was not the contractors fault, then after the 15th day he is eligible to charge his or a third party cost to the client. Further charges are reserved.
(5) The client is taking the transport risk. This will also apply, if carriage prepaid has been agreed.
(6) If the client is the consumer, than he is committed to reprove the damage to the company, and may refuse the acceptance. If the client is an entrepreneur, than according to §377 HGB, he is committed to properly fulfill their investigation and reprimand obligations.
B)
(1) The customer has to provide the following cooperative actions on time and continued, at his own expense:
a) Provision of all necessary auxiliary personnel, especially brick layers, carpenter, lock smith, crane driver, and other skilled workers.
b) Provision of the necessary tools and required quantity.
c) Implementation of the necessary preparation work, especially ground works, ballast works, stem works, scaffolding works, plastering, and painting works, inclusive the implementation of these necessary materials, building and supplies.
d) Provision of necessary heating and light at the work place.
e) Provision of required outbuildings, especially big enough, dry, lockable rooms for the storage of machinery parts, machines, materials and tools.
f) Provision of enough lounges, and sanitary installations.
g) Provision of enough safeguard on the building site for the owner of the contractor and his agents.
h) Provision of necessary protection clothes and devices for the agents of the contractor, as long as these are offered according to the location type, and he has not confirmed on demand to hold such.
i) Announcement according to location of concealed electricity-, gas-, water-, computer-cables or similar facilities.
j) Announcements of necessary static conditions, optionally creating a static proof of suitability of the path of movement and a possible storage location and the installation location for the device.
k) Availability of ground-level delivery and control systems of the way for the transfer of device.
l) Ensuring the necessary loads in the areas delivery, ways of shipment, a possible storage location and the installation location.
2) If the contract refers to the diagnosing and resolving of intermittently occurring errors, than repeated activities (checking and change work) can be required. A fixed price payment or price agreement will be rejected for these kinds of services; they will be calculated based on actual effort.

§ 6 Approval
(1) If the risk is not passed over for any reasons, it will be passed over at the very latest on the purchase from the services of the customer. This will apply for the partial services as well.
(2) The service will count as accepted, once the contractor will inform the client in writing of the completed service, and will not contradict within 12 days after this notice, quoting the failure reasons.
(3) The purchase cannot be refused due to minor defects.
(4) The work is considered accepted, when the client after the installation of the power-on lamp unreservedly access into operation.

§ 7 Pay conditions
(1) The invoices of the contractor are due without deduction upon receipt by the client and the delivery or acceptance of the service, and are no later than 30 days due. This will also count if for short services a price reduction (cash discount) was agreed, and the short deadline was not met. The relevant date for the timeliness of payment is the date of the credit by the contractor.
(2) With the expiration of the payment period, the customer is in delay. This will apply to a client who is a consumer only, if he was informed on the bill of these consequences.
(3) During the delay, the invoice amount is to be paid at the applicable statutory default interest rate.
a) If the client is a consumer, the statutory default interest rate will be 5 percent over the basic interest rate.
b) Otherwise the statutory interest rate will be 8 percent over the basic interest rate, but 10 percent of the invoice amount. In case the legal interest is less than the minimum rate, the customer is entitled to prove the incurred lower loss of interest to the contractor.
(4) The contractor reserves the right to claim further damages for delay.
(5) If there is a reasonable doubt for the solvency of the client, the contractor is entitled to without considering the originally agreed term of payment of the advance payment of the amount or the settlement of an open invoice.
(6) Complaints regarding invoices by the contractor shall be informed within a period of 14 days in writing after receipt of the invoice. If the contractor does not get a complaint in writing from the client, than the invoice will be counted as approved from the contractor.
(7) The client has the set-off right as far as his claim is legally established or uncontested.
(8) If the client is not a customer, he has the right of retention, and authorized to carry out other claims for subsequent performance if the counterclaims have been legally established or are undisputed. His right of retention for entitlement of the subsequent fulfilment is limited to the amount of the subsequent fulfilment.
(9) Claims against the contractor can only be transferable with the prior written consent.

§ 8 Safety (retention of title, security assignment, encumbrancer)
The client ensures the contractors claims, according to this section by retention of title (1.), security assignment (2.), and encumbrancer (3.) under similar validity of the following ancillary provisions (4.).
This will apply for several, also future claims arising, irrespective of the legal basis (in particular of any outstanding balance), together with costs, interest and VAT. The safety includes besides the still unpaid product, also older already paid products in the current account, up to a value of 120% of the respective outstanding balance. Final repayment of the outstanding balance will be credited according to the principle of the temporal sequence of the service, whereby the safety of the earlier delivery and the safety of the later deliveries will be replaced. Payments on account of performance or place of fulfillment are not regarded as final redemption.
(1) Retention of title
Deliveries of the contractor will stay till the fulfillments of the requirements, property of the contractor (conditional goods), even when payments for specifically designated claims were made.
The client is committed, not to use the product like the owner, and not do anything which could decrease the value of the product, during the retention of title. If the client is no consumer, he has to keep the conditional goods like a respectable businessman with care, for the contractor, and to insure them at his request.
The client is not allowed to pledge the conditional goods, or to assign them for security. This exclusion also applies for the sale-and-lease-back-act.
If the client offends against these obligations, or if he is unavailable to pay, the contractor is allowed to demand the immediate return of his in his property standing goods or his power of control, on the expenses of the client. After the taking back, the contractor is allowed to use the conditional goods and the proceeds to be credited to the customer's liabilities. In the taking-back or the seizure of the goods, there is no declaration of withdrawal from the contract, unless it is explicitly stated.
The client is obliged, to save the main and side rights of the contractor on the resale of the conditional goods on credit. As long as this is the case, the client is allowed for reselling usual businesses. This authorization will end, when the client is in delay with the pay of the conditional goods.
The editing and processing from the client, counts as on behalf of the contractor, made by the contracting authority on its own responsibility, without the contractor having any responsibilities. The legal transaction disclosure is made by the contracting authority in its own interests and its own responsibility.
If the good is edited or processed without any help of third party property (stranger things), the contractor acquires the equitable lien under this section. If the good is mixed, connected or edited with things owned by third parties, the contractor gets co-ownership on the new things, in relation to the conditional goods and the value of the stranger things, in the moment of the edit or process. If the conditional good is built in a property of a third person, or if a transaction leads to the loss of the ownership rights of the contractor, the claims of the customer from the corresponding transaction amount of the invoice value of the goods goes over to the contractor.
(2) Security assignment
The Customer shall assign to the contractor’s claims and rights, in particular compensation claims and security interests from the resale of the goods are already up to the amount of arrears of the contractor's claims costs plus interest. This also applies for fractional rights.
The client is obliged, to save the main and side rights of the contractor on the resale of the conditional goods on credit. If the customer meets the commitments of the contractor against his obligations, he is entitled to collect debts. Whenever and as long as this is not the case, the debt collection depends on the allowance of the contractor. This also applies to transfers of claims by third parties as part of (real) factoring. The contractor can dependent on his permission, that the factor in amount of the debt goes to him, or that further safeties will be ordered.
If the client is taking the claim without approval, this takes place in trust on the contractor. This is at all times entitled to demand fiduciary relationship from this immediate accounting and immediate disbursement of the amounts collected. The contractor assumes all assignments under this section.
(3) Encumbrancer
In addition to the security assignment, the client pledges the contractor several purchase price claims towards third parties from the resale of the reserved goods. The contractor is entitled to collect the pledged receivables up to the amount of its arrears of receivables, together with costs and interest, if the client is in delay for the payments due. The client is obligated to save the main and side rights of the contractor, with the resale of the conditional goods on credit.
(4) Ancillary provisions to the safety
If the value for the safeties, which were ordered for the contractor permanently, exceeds the outstanding balance over 20%, he is obliged, at the written request of the customer, to release securities at his discretion.
The client is obliged to inform the contractor upon first request its clients immediately together about all necessary information, in particular about his own receivables and/or rights over the customers/ contractual partners and the location of the conditional goods, in writing, so the contractor can claim his rights to the customer/ contractual partner of the client. The client in this case has to hand over all the necessary documents without any delay, and on request submit current credit proof to third party debtors, suitable at his own expenses.
The Contractor shall be entitled to the notification of the assignment and pledge of claims of the customer, even with garnishees. The contractor is entitled to only make use of these rights, if and as long as the client is in delay with the payment of the conditional goods.
On seizure or other third party access on the conditional goods, or the pledged receivables which were -----------------------As long as the third person is not in the situation to refund the judicial and/or extra judicial costs of the litigation.
Several safeties extend after this section, also in the case that a insolvency chooses the execution of the contract, according to § 103 InsO. They back up all the newly created contractor’s claims of the settlement option against the bankruptcy estate.

§ 9 Warranty
(1) The contractor provides warranty according to the legal regulations. The statute of limitation for claims arising from defects is one year. It starts with the delivery, respectively the purchase.
(2) Defects, which were caused by third persons, are not included in the warranty. If a defect is discovered after improper engage of third persons, it is up to the client to prove that this already existed upon passing of risk and is not caused only by improper repairs.
(3) The client is obliged to check the services received immediately. The visible defects should be notified within 2 weeks after the receipt of the service, and hidden defects immediately. If the buyer fails the proper investigation and notification of defects, the liability of the contractor for the undisplayed defect is impossible.
(4) If the client is no consumer, he is entitled to subsequent performance (removal of the defects within a reasonable time or flawless additional delivery), in case of poor performance. Additional statutory regulations (withdrawal or reduction, damages or reimbursement of expenses) will only be entitled to the client, if the rectification fails or is unreasonable. The same will apply if the contractor is rejecting the rectification seriously and finally, unless he rejects because the rectification is only associated with disproportionate costs. A rectification will only count as failed, if the contractor has tried it two times, without any success.
(5) The guarantee of the contractor does not range over to defects after transfer of risk with the contracting authority with natural wear and tear, excessive use, moisture, excessive heating of premises, unsuitable equipment, faulty construction work, unsuitable building ground, other temperature and weather influences or through unsuitable or improper treat, repairs, maintenance etc. and such chemical, electromechanical or electrical influences take place, which are not provided after the contract. Belated change of use on the service has to be shown to the contractor before the implementation; if the client doesn’t do this notification, and is the contractor not in the situation for adjustment, the client cannot make the defect rights valid, from a reduction of usability.
(6) The withdrawal for non-contractual performance shall be excluded if the breach of duty is irrelevant, or the client the circumstance which would entitle him to resign, which he would be responsible for.
(7) The guarantee of secondhand cars is not valid, if the customer is no consumer.

§10 Liability of the contractor
(1) As far as from these terms and conditions there is nothing due to the subsequent provisions, the contractor is liable for any breach of contractual and non-contractual obligations under the relevant statutory provisions.
(2) The contractor is liable for damages, whatever legal justification, only as long as it was his intention or gross negligence. The Contractor shall be liable for simple negligence only for:
a) For damages from injuries of their lives, their body or their health.
b) For damages arising from breach of an essential contractual obligation (Responsibility, which makes the proper execution of the contract in the first place and on whose compliance the contractual partner regularly relies and may rely so-called cardinal obligations); in this case, the liability of the contractor is limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of the liabilities from the section 2 do not count, as far as the contractor has discreet a lack, or has taken over a guarantee of quality. The same applies for claims after the product liability law.

§ 11 Rights
(1) Parts delivered from the contractor, his technical procedures and processes are copyrighted and design protected by law. The client is eligible to use these for himself (or possibly as part of his activity). The unauthorized use, especially the unauthorized disclosure to third persons is strictly prohibited.
(2) If the client goes against these bans, a reasonable discretion is to be determined by the contractor, in case of dispute a penalty from the competent court has to be paid.
(3) The contractor reserves the right for offenses, and to cancel the business relationship and further claims, especially to make the exchange of information and indemnification valid.

§ 12 Early termination
If the contract will be earlier cancelled, without the contractor giving a reason, than the client has to pay the provided services, the expenses and the loss of profit. The contractor can, according to his decisions charge a lump sum of a maximum of 20% of the contract price. In this case, the proof will stay reserved for the client that the provided services, expenditure and profit are not created in this amount, or are neglected.

§ 13 Final provisions, choice of law, jurisdiction, place of performance
(1) It is only the law of the Federal Republic of Germany, excluding the provisions of international sales law. This also applies for deliveries to the overseas.
(2) As long as the client is a general merchant, legal entity under public law or public-sector fund, the place of performance for all the services is Cologne.
(3) As long as the client is a general merchant, legal entity under public law or public-sector fund, all the disputes resulted from the contract relationship, the jurisdiction is also Cologne. This will also apply for disputes with certificate and exchange process and with dunning.
(4) If the client is not a general merchant, legal entity under public law or public-sector fund, than Cologne will be agreed as the jurisdiction, if the client has not postponed the jurisdiction in the federal republic of Germany, or his usual stay or residence outside of Germany. This also applies, if the residence or usual stay couldn’t be determined in the time of bringing the action.

§ 14 Salvatoric clause
(1) If any regulations of this contract or these terms and conditions are invalid, or will become invalid in the future, this will not affect the validity of the remaining regulations.
(2) Unless the invalidity relates to the regulations of the contract, the parties agree to replace the invalid provision by a valid one, which the economic purpose intended by the parties most closely.
(3) In case the invalidity of a regulation is affecting the terms and conditions, instead of the invalid regulation, the legal regulations will count.

§ 15 Data saving
The contractor is entitled to process and save the data of the client for the purpose of the Federal Data Protection Act, which he received from the business relation; insofar this is appropriately part of the execution of the contract.

Stand: 06.10.2015