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Design Solutions for Toilet Partitions
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| General terms and conditions |
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Click on Terms and Conditions for a pdf file to download or print (70 kB).
Version: March 2007
1.0 Applicability
1.1 All contracts and agreements relating to our provision of goods and services are subject
to the following conditions. They are recognised by the Client at the time of placing
the order or when the contract is signed, not later than the acceptance of the first
delivery of goods or services and they apply throughout the duration of the commercial
relationship. Any other conditions are invalid even if we do not expressly refute
them to you; other conditions are only valid if we have recognised them specifically in
writing. Our Conditions of Sale apply also to future contracts with the Client. We do
however reserve the right to change these conditions.
1.2 The following Conditions of Sale apply exclusively to businesses as defined in § 14 BGB
(German Civil Code).
1.3 All agreements arrived at by ourselves and the Client for the purpose of performing a
concluded contract shall be recorded in writing in the said contract. Verbal agreements
with any of our employees who do not have legal powers of representation either before
or at the time of conclusion of the agreement are not valid except with our written
confirmation. After the contract has been concluded any verbal changes or extensions
shall be confirmed in writing.
2.0 Quotations, contract conclusion, contract contents
2.1 Our quotations are subject to change without notice. A contract only exists when we
confirm it in writing. If we do not confirm the contract in writing it shall come into effect
at the latest when delivery is executed and in this case the delivery note shall be deemed
confirmation of the contract. Our written confirmation of contract applies strictly to the
type and scope of performance.
2.2 All content in our printed materials, catalogues and pricelists concerning weights,
prices, dimensions and other technical specifications are only for the purposes of
description and identification and should not be regarded as definitive. Industry
standard deviations are permissible except in cases where there is an agreement to the
contrary and provided this does not affect the use defined in the contract, normal use
or the quality. We reserve the right to make changes which are normal in the industry
or which are unavoidable, in particular through technical advances or batch changes
from our suppliers inasmuch as these changes are not unreasonable from a client
perspective.
2.3 If during the performance of the contract differences of opinion arise between the parties
to the contract on matters such as the content of IT technical terms and symbols,
quality requirements, format demands etc. then adherence to the EN European Standards
valid at the time of the conclusion of the contract shall be taken as agreed. If an
EN standard changes after contract conclusion but before completion of contract performance,
we shall take account of the provisions of the new standard provided it is
reasonable under the circumstances.
2.4 Inasmuch as there is nothing agreed to the contrary the sale and supply of hardware
and/or software is not dependent on the installation of these products by ourselves or
third parties. This applies both to developing standard software to meet the needs of
the client and also to the creation of bespoke software for the client.
3.0 Prices and Conditions of Payment
3.1 Our prices are quoted in Euros (EUR) and are net. Any charges for transport and packing
are charged separately. The prices are subject to VAT at the statutory rate. Changes in
the statutory rate of VAT will only be taken into account with regard to the Client if a
period of longer than 4 months has expired between the conclusion of the contract and
the agreed date of delivery or performance.
3.2 We calculate the prices agreed at the conclusion of the contract on the basis of cost factors
prevailing at the time. If between the conclusion of the contract and the agreed date
for delivery/performance these cost factors including materials, salaries, energy, outgoings,
freight etc change, we shall be entitled to update the price accordingly, provided
there is a period of at least 4 months between contract conclusion and the agreed
date for delivery/performance.
3.3 Our installation and maintenance work is charged by time unless an inclusive charge
has been agreed specifically. Invoicing shall at our discretion be monthly, quarterly or
at the end of the contractual performance. If requested by us so to do, the Client shall
make appropriate advance payments. If the contractual products or performance are
inadequate sentences 2 and 3 shall not apply before the contractual products or performance
have been accepted
3.4 The Client shall certify the time and performance of our installation and maintenance
staff on the template supplied. The necessary travel time and any waiting time shall be
included in the working time.
3.5 The travel costs of the installation and maintenance staff and in particular costs of travel
and accommodation and additional costs for subsistence shall be charged to the Client.
3.6 Our invoices are due for payment net within 30 days of the invoice date or within 8 days
with 2% discount. The date of receipt of payment shall be defined as the day on which
we have received the sum or it has been credited to our bank account. Bills of exchange
and cheques only count when payment has been honoured. Payment by bill of
exchange is acceptable only if agreed in advance. Bill of exchange costs and discounts
are the responsibility of the Client and shall be paid immediately in cash. The risks
involved in the payment route shall be the responsibility of the Client.
3.7 The Client shall be entitled to offset or retain payments only we do not dispute their
claim or if it has been legally established. The offsetting of Client’s counterclaims which
we have disputed or which are not legally established is not permissible.
4.0 Late payment, deferred payment, deterioration in financial position
4.1 If the Client is late making payment we shall be entitled to charge interest at 8% above
base rate for the duration of the delayed payment. This shall not limit our right to claim
for consequential damages.
4.2 In case of delayed payment we shall be entitled to charge interest at 4% above base rate.
4.3 If the Client is late in making a payment or if there are grounds for believing that the
Client will become incapable of paying then we can stop work on current jobs and
demand the immediate payment in advance of all payments not yet due including bills
of exchange and also sums overdue or we can demand appropriate securities. If the
Client does not meet our demand for payment in advance or for securities we shall be
entitled to withdraw from the contract or contracts and to charge the Client for the costs
arising to that point and also lost profits.
5.0 Leadtime
5.1 The specially to be agreed lead time begins when the contract is concluded but not until
the Client has provided all necessary documentation, authorisations, clearances etc and
not until any agreed advance payment has been received. Our observing the time for
delivery or performance is in all cases dependent on the Client having fulfilled their
contractual duties.
5.2 The delivery date shall be deemed honoured if on or by the delivery date the contractual
goods have left our works or they have been announced ready for despatch.
Requests for changes or additions shall extend the delivery date appropriately. The
same shall apply in the event of unforeseeable circumstances which are not our responsibility,
such as force majeure, industrial disputes, strikes, lock-outs, late delivery of
supplies of essential raw materials, materials or components. Equally the same shall
apply if our subcontractors find themselves in similar unforeseeable circumstances.
6.0 Request for Installation and Maintenance, time for performance
6.1 Installation and maintenance should be requested not later than 10 days before the
start of work.
6.2 All temporary delays to our performance of the contract caused by force majeure shall
also free us for the duration of such delay from the obligation to install and maintain,
especially sending staff at the right time and in the right numbers. The same shall apply
in the case of other delays to our performance which are not our responsibility such as
fire, flood, industrial dispute measures or measures taken by the authorities.
6.3 The deadline shall be deemed to have been met if by that date the installation or maintenance
is ready for acceptance by the Client or in the case of a contractually foreseen
test, ready for the test. Fig. 5.1 applies accordingly.
7.0 Delivery, dispatch, transfer of risk and insurance
7.1 We deliver ex-works, not free, and costs of delivery are the responsibility of the Client.
Packing is charged at cost. If the Client has not given appropriate instructions we shall
be entitled but not legally bound to insure the delivery against damage in transit and
loss in his name taking into account our costs so incurred. Part deliveries are permissible
to a reasonable degree.
7.2 Transport of the goods is at the risk of the Client. The danger of accidental loss transfers
to the Client at the latest on despatch of the goods even if we have undertaken
other performances e.g. transport costs or installation. This also applies to part deliveries.
7.3 If despatch is delayed by circumstances which are the fault of the Client the risk transfers
to the Client on day when readiness to despatch was communicated to the Client.
8.0 Acceptance in the case of installation and maintenance
8.1 If the subject of our contractual performance is installation or maintenance then acceptance
follows provision of the contractually agreed performance. In the absence of any
agreement to the contrary our installation and maintenance work is independent of any
obligation to transfer or hand over hardware or software.
8.2 After software installation we demonstrate, if this is contractually agreed, the guaranteed
characteristics and the main program functions in accordance with the agreed
specifications by means of appropriate acceptance tests.
8.3 The client is obliged to accept the installation and maintenance work as soon as completion
is shown and the acceptance tests in 8.2 have been carried out successfully.
Acceptance shall be confirmed and documented in an acceptance report to be signed
by both parties.
8.4 Acceptance shall not be declined for minor faults. We can set a fair deadline for submitting
the declaration of acceptance after which our performance shall be deemed to
have been accepted.
9.0 Delay in acceptance
If the Client does not accept the contractual goods or services by the deadline, we shall
be entitled to charge 10% of the agreed price plus VAT as compensation for any losses.
The Client shall be entitled to prove that we have suffered losses on a smaller scale or
no losses at all. We retain the right to claim higher losses if incurred.
10.0 Reservation of title, assignment
10.1. We retain title of all goods supplied by us until all claims against the Client arising from
our contractual relationship, including challenged claims and subsidiary claims, have
been paid and any bills of exchange and cheques received in payment have been
honoured. This applies also to future claims.
10.2 Acquisition of ownership on the part of the Client to goods subject to reservation of
ownership is excluded if the goods are processed into a new product as defined in
§ 950 BGB (German Civil Code). If there is a connection or mixing with other goods
which do not belong to the Client then we shall be co-owners in the proportion of the
invoiced value of our goods relative to the other goods at the time of processing,
connecting or mixing.
10.3 The client may only dispose of our goods subject to reservation of ownership through
the usual commercial channels and only provided there are no late payment issues. The
Client shall not be entitled to dispose of the goods subject to reservation of ownership
in any other way, in particular transfer of ownership by way of security or assignment.
Charges by the Client for products and labour arising from the onselling of our goods
subject to reservation of ownership shall be allocated in advance to us to the extent of
our invoiced totals up to the point where all outstanding debts have been paid to us.
The Client is irrevocably entitled to collect these receivables. The Client undertakes to
communicate to us on demand the names of third party debtors and the amounts
owing, and all other information and documentation so that we are in a position to
collect such assigned debts.
10.4 We undertake to release securities to which we are entitled at the request of the Client
inasmuch as the realisable value of such securities exceeds the secured debts by more
than 10%.
10.5 We are entitled to retrieve the supplied goods in case of delayed payment, threat of cessation
of payments, insufficient information relating to an incapacity to pay or the
financial situation of the Client, if there are distraints or bills are noted or if there is an
application for the opening of insolvency proceedings. The Client undertakes to make
restitution. The Client shall be responsible for all costs arising from the retrieval and
disposal of the goods. The disposal costs shall be deemed to be 10% of the normal selling
price without obligation to provide evidence. These costs may be set higher or
lower if we can prove higher ones or the Client lower ones. In case of late payment or
payment difficulties through a significant worsening of the Client’s financial situation
we also entitled to cancel with immediate effect the authorisation for the Client to sell
on the goods subject to reservation of ownership and to call in the assigned debts.
10.6 The Client must inform us immediately in case of distraint by third parties or other
situations affecting the goods supplied. The Client shall bear any costs arising from the
distraint.
11.0 Software goods and services
11.1 In the absence of any contractually agreed variation the Client shall be granted a limited
duration software licence which is non exclusive and non transferable for company
use with the products for which the programs and customising are supplied.
11.2 In the absence of a special written licence agreement with us any use outside the
contractually agreed use of the software, customisations and circuitry is expressly
excluded.
11.3 We reserve all other rights to the programs, customisations and documentation and circuitry
including copies and subsequent extensions. In the absence of our written agreement
in advance, the Client shall ensure that these programs, customisations, circuitry
and documentation are not accessible to third parties.
11.4 The granting of the software licence does not include the acquisition of any rights. In
particular we reserve all rights to publication, duplication, processing and sale.
11.5 The Client is prohibited from modifying or translating our software without our written
agreement in advance. Reverse engineering the programs provided into other code
forms (decompiling) and any other form of reverse engineering the various stages of
the software are permissible exclusively for the purpose of error rectification or extending
the program functionality but only with our written authorisation in advance.
11.6 The Client may only make copies of the program to the extent that this is necessary for
the use of the program. Necessary copies of the program include installation of the
program from the original data media to the hard drive of the hardware where it will be
used and loading the program into the working memory. Otherwise copies may only
be made for archiving purposes as backup or for troubleshooting. Only a single backup
copy may be made and retained and this shall be clearly identified as a backup copy of
the said program. Removing the copy protection or other protection routines is only
permissible inasmuch as smooth operation of the program is affected by these protection
arrangements. The Client shall have the burden of proof.
11.7 Source program licences require a special written agreement.
11.8 Copyright notices, serial numbers and other program identifying features shall not
under any circumstances by removed or modified. If the originals of the software bear
copyright notification this notification shall be included by the Client in any copies of
the software.
11.9 In the absence of anything agreed to the contrary, the rights to use the software shall
be deemed to have been granted with contract confirmation and supply of the programs,
documentation and later customisations.
11.10 The Client shall be responsible as a substantial contractual obligation for backing up
existing data and programs in a machine-readable form before installation of the software
or modification of the software, in order to ensure that they can be replaced reasonably
easily and at reasonable cost.
11.11 The Client may only sell or give long-term the software which has been customised or
specially written for him including User Manual and other material on condition that the
Recipient declares himself to be in agreement with these Conditions of Sale continuing
to be valid with regard to the Recipient. If such transfer takes place the Client must give
the new user all program copies and backup copies and destroy any remaining copies
not transferred. The Client shall have no right to use the program after such transfer.
The same restrictions shall apply with regard to the transfer of the software to a third
party for a limited duration. Any commercial leasing or rental of the software is
expressly excluded. The Client shall not transfer the software to a third party if there
are reasonable grounds to suspect that the said third party would violate the contractual
conditions. If transfer to a third party occurs the client shall be obliged to communicate
the name and full address of the third party.
11.12 Multiple use and use across a network
a) The Client may use the software on any available hardware. If the software is transferred
to different hardware then the software on the first hardware location must be deleted.
Simultaneous saving, storing or using of the software on more than one item of
hardware is not permitted.
b) The use of the said software on a network or other multi-workstation computing
system is not permitted if such arrangements allow for simultaneous multiple use. In
such a case the Client must use access arrangements to prevent such multiple use;
otherwise the Client shall be obliged to pay us a network fee, the cost of which shall
reflect the number of users connected to the computer system. Such use on a network
is only permitted after payment in full of the network fee to be agreed separately.
c) The Client is obliged to inform us in advance and in writing of any change in hardware
or the intention to use the software on a network.
11.13 We shall be free to allocate program creation and/or maintenance in whole or part to a
subcontractor. If a subcontractor is used we shall be responsible for the subcontractor
just as we would be responsible for our own employee carrying out the task.
11.14 On termination of the business relationship the Client is obliged to return all original
data media and complete documentation, materials and other paperwork inasmuch as
these items were provided on a non-permanent basis. This correct return also includes
the absolute deletion and purging of any existing copies of the software. We reserve
the right to forego the return and to make arrangements for the deletion of the software
and destruction of the documentation.
12.0 Client collaboration
12.1 In describing, locating , confirming and reporting errors the Client shall follow the
instructions given and use our checklists where appropriate.
12.2 The Client shall be as precise as possible in reporting errors and asking questions. The
Client shall have competent employees available for this purpose.
12.3 The Client shall be personally present at proving tests and shall have competent
employees on hand who are authorised to assess and make decisions on errors, increased
functionality and reduced functionality and changes in the program structure.
Other use of the computer system must be suspended during our maintenance work if
we so require.
12.4 The above terms apply equally with regard to installation and maintenance work to be
performed by us. The Client must assist by ensuring that the installation and/or maintenance
work can start immediately on our arrival and continue without interruption or
delay until the Client has accepted the work.
12.5 If the Client does not fulfil his obligations we shall after giving due notice be entitled
but not obliged to carry out the necessary tasks on his behalf and at his expense. Furthermore
our legal rights and entitlements shall remain unaffected.
13.0 Warranty, Liability, Expiry
13.1 Our goods and services to traders are subject in all events to the legal duties relating
to acceptance examination and lodging of complaints.
13.2 Contractors who are not traders must inform us in writing immediately of any obvious
defects in the contractual goods with 2 weeks of receipt; otherwise claims for defects
are excluded. Sending it off in timely manner is sufficient for compliance with the time
limit. The contractor has full responsibility for proving all claims and in particular the
claim itself, the time the defect was established and the claim being made at the correct
time.
13.3 If there is valid proof of a fault or faults then payments may only be withheld to the
extent that they are proportionate to the fault or faults present.
13.4 We shall be liable for faults which are notified at the correct time as follows:
The Client must give us the necessary time and opportunity to carry out all remedies
and replacement supplies which we deem necessary, otherwise we shall be from our
liability for defects. A number of attempts at remedy or fresh supplies shall be permissible,
provided they are reasonable from the Client’s perspective. Our obligation under
warranty shall cease if the Client or a third party has without our approval carried out
repairs, caused damage or made modifications to which the fault may be attributable
or related.
13.5 If remedy or replacement is not possible or if it has been deemed to have finally failed
or we have delayed to an unreasonable extent, the Client may demand a reduction in
the price or cancellation of the Contract.
13.6 All further contractual claims are excluded, whether they be against us, our legal representatives
and employees, including claims for damages for direct or indirect damage,
lost profits and from the remedial work, unless the damage be typical foreseeable
damage from the violation of essential contractual duties or the damages relate to wilful
or gross negligence. The aforesaid exclusion does not apply to damage in the form
of human injury or death or damage to health caused by ourselves, our legal representatives
or our employees.
13.7 Liability for loss of data shall be limited only to the typical cost of restoring the data,
had it been backed up regularly in accordance with the risks involved.
13.8 These clauses also apply to our employees.
13.9 If our supplies are limited to software or software components or hardware components
or subassemblies for use in association with existing hardware then in the absence
of any written agreement to the contrary we cannot guarantee the overall functioning
of the components supplied by us in coordination with the Client’s existing components
or components sourced elsewhere.
13.10 Our verbal and written technical advice and suggestions, calculations, project planning
etc. are intended to explain to the Client the best possible use of our products. It does
not free the Client from his obligation to check for himself and convince himself of the
suitability of our products for the intended purpose. If by the conclusion of the contract
and as a result of our culpable negligence in our incumbent secondary obligations or
incorrect instructions the contractual object cannot be used in accordance with the
contract then our liability is as defined in Sections 13.4 und 13.5 of these Conditions
to the exclusion of any other claims by the Client.
13.11 All further contractual and non-contractual claims by the Client are excluded, whatever
they may be and whatever their basis in law, e.g. debts at the time of the conclusion of
the contract, actual violation of the contract, unauthorised actions, offsetting amongst
joint debtors, whether the claims be against us, our legal representatives and
employees, unless the damage be typical foreseeable damage from the violation of
essential contractual duties or the damages relate to wilful or gross negligence. Claims
for damages for injury, death or damage to health caused by ourselves, or legal representatives
or our employees remain unaffected by this exclusion of liability.
13.12 The warranty period shall extend for 2 years. Sentence 1 does not apply for claims for
damages inasmuch as we are liable in accordance with the aforesaid provisions.
13.13 The above provisions also apply to our installation and maintenance work.
14.0 Warranty and liability for software programs
If software programs constitute part of the contractual performance Section 13 applies
subject to the proviso that the Client understands that with state of the art software it
is not yet possible to create a computer program totally free of errors. In view of this we
warrant that the programs and documentation are fit for the usual purpose and are
such as is normal in this context and that the Client can expect. A non significant
degree of usability or detail is not deemed significant in this respect.
15.0 Software confidentiality and duty of care
15.1 The Client shall treat as confidential all information to which he has access during the
business relationship and which goes beyond the mere external look and feel of the
program. This applies in particular to methods we use, processes and documentation,
materials and papers relating to the program.
15.2 The Client is obliged to ensure the confidentiality vis-à-vis third parties and his own
employees, and in particular to prevent unauthorised third party access to the program
by taking appropriate precautions.
15.3 The Client shall ensure safe keeping of the supplied data media in a location secure
from access by unauthorised third parties and specifically bring to the attention of his
employees the duty to maintain confidentiality and exercise proper care as agreed.
16.0 Concluding provisions, place of execution, applicable law, place of
jurisdiction, partial validity
16.1 German law shall apply. The application of the Convention of Contracts for the International
Sale of Goods is excluded.
16.2 The place of jurisdiction shall be agreed to be Offenburg, Germany, for all present and
future claims arising from the commercial relationship between businessmen, legal
persons under public law or a special fund under public law. We are also however entitled
to take legal proceedings against the Client in courts having legal jurisdiction over
the location of his registered office.
16.3 The same shall apply if the Client has no general place of jurisdiction in Germany, changes
his place of residence or usual place of abode from Germany to another country or
if his address or usual place of abode is not known at the time the legal action is brought.
In the case of deliveries to locations abroad we can at our discretion also take legal
proceedings against the Client in the capital of the country in which his registered office
is located. Furthermore we are in the aforesaid cases in Sentence 1 entitled at our
discretion and in accordance with the Rules of Arbitration of the International Chamber
of Commerce, Paris to have disputes arising from our commercial relationship settled
in final judgment by one or more of the judges nominated by these rules of
arbitration to the exclusion of ordinary jurisdiction. The court of arbitration shall be in
Offenburg.
16.4 If one or more sections of these Conditions of Sale should be or should become
ineffective then this shall not affect the validity of the contracts concluded nor the
validity of the other sections of the Conditions of Sale.
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