General Terms and Conditions (GTC)

General Terms and Conditions of Purchase

I. General Regulations

1. Any order placed by Blank Metallbau-Technik GmbH (hereinafter referred to as the Purchaser) and the seller/supplier (hereinafter referred to as the Seller) shall be governed exclusively by the following provisions of the Purchaser’s General Terms and Conditions of Purchase. In the event of a further or permanent business relationship between the Purchaser and the Seller, the Purchaser’s Terms and Conditions of Purchase shall continue to apply to each further order or purchase.

2. The Seller’s terms of sale or other general terms and conditions are hereby expressly rejected. (The Seller is obliged to confirm the validity of the Purchaser’s Terms and Conditions of Purchase to the Purchaser in writing for each order, or for the first order, whereby electronic form is sufficient. Should a written confirmation not be given, the Purchaser’s Terms and Conditions of Purchase shall be deemed to have been tacitly agreed. In this case, too, the Purchaser’s Terms and Conditions of Purchase shall continue to apply to further orders or in the event of a permanent business relationship. The one-time confirmation shall be effective in the event of a business relationship, i.e. in the event of further orders or purchases, without the need for further confirmation.)

3. The Terms and Conditions of Purchase also apply to framework agreements, call-off purchases and successive delivery contracts. Here, too, a one-time confirmation is binding for further purchases or deliveries. Orders, purchases and contracts are only binding for the Purchaser if they are made in
writing, whereby electronic form is sufficient. Binding agreements, arrangements, etc. require written confirmation from the Purchaser.

4. The submission of offers to the Purchaser upon request is free of charge.

5. Documents or other objects of the Purchaser provided, such as calculations, models, materials provided, samples, technical specifications, etc., which are made available to the Seller, may only be used for manufacture and/or delivery to the Purchaser. A transfer or notification to third parties is expressly prohibited and excluded. The Seller may not use the materials designated above within the scope of the order for its own purposes, but exclusively for the fulfillment of the Purchaser’s order. The Seller shall keep secret the knowledge of the Seller associated with the order, which also includes material compositions, processes, etc. The Seller is expressly obliged to maintain confidentiality. This applies to every order and also in the event of termination of a business relationship. After termination of the order by delivery, all documents, samples, etc. provided in connection with the order shall be returned to the Purchaser. The creation of duplicates, copies, the storage of provided data, etc. is expressly prohibited and excluded.

II. Offers

1. The Seller’s offers, which are submitted at the Purchaser’s request, must show all prices, costs, such as freight and shipping costs, other ancillary costs and, in the case of foreign companies, any customs duties incurred.

2. The agreed prices, should no shipping costs, other ancillary costs, etc. have been included in the offer, shall be deemed to be agreed lump-sum prices and shall in principle be free of freight, packaging and shipping costs, or other ancillary costs, in relation to the receiving point specified by the Purchaser. In other cases in which packaging, shipping and other ancillary costs have not been expressly agreed, these costs are included in the agreed price. In these cases, the delivery shall be carried out free of charge for the Purchaser by the Seller.

3. Insofar as prices for freight, shipping and other ancillary costs, such as packaging costs, are increased by the Seller, in particular in the course of a business relationship, this must be notified to the Purchaser in writing. This then requires confirmation from the Purchaser. A retroactive change of prices for orders already placed is excluded. In the event of price increase reservations on the part of the Seller, these require the consent of the Purchaser.

4. The deadlines for invoices issued by the Seller shall commence, provided that the complete delivery has been carried out, upon receipt of the invoice by the Purchaser. Based on the receipt of the invoice, invoices are settled by the Purchaser either within 14 days with a deduction of three percent discount, within 30 days with a deduction of 2% discount or within 60 days without deduction. The deadlines for payment and the deduction of discount shall run from receipt of the invoice by the Purchaser, but not before receipt of the goods, or in the case of services within the scope of a contract for work and services not before their acceptance and, if the scope of the contract includes documents, documentations, instructions, not before receipt of these documents.

5. Payment by the Purchaser can be made by check or bank transfer. The deadlines mentioned in the above paragraphs are met in case of payment by check if the check was sent by mail on the due date, in case of transfer if the payment order for transfer was given to the bank institution of the Purchaser on the due date.

6. Default of payment occurs at the earliest after 60 days from receipt of the invoice by the Purchaser, if the requirements of the above paragraphs are met. The default interest rate is five percentage points above the base interest rate p.a.

7. The Purchaser may assert rights of set-off and retention within the scope of the statutory provisions.

III. Delivery Dates, Scope of Delivery, Transfer of Risk

1. Contractually agreed delivery dates or periods are binding and must be strictly adhered to by the Seller. The Seller is obliged to inform the Purchaser of expected delivery delays before the contractual acceptance of the order. Exceeding the delivery date or an agreed delivery period after conclusion of the contract shall be the sole responsibility of the Seller, unless there is a case of force majeure. In the event of known or expected delivery delays after conclusion of the contract, the Seller shall inform the Purchaser immediately.

2. In the event of default in delivery, the Purchaser shall be entitled to the statutory claims, in particular claims for damages including the assertion of any contractual penalties that the Purchaser has forfeited to third parties. The default in delivery shall occur automatically with the non-compliance with the agreed delivery date or exceeding the agreed delivery period, without the need for a reminder from the Purchaser.

3. In the event of notification by the Seller after conclusion of the contract that a delivery delay will occur, the Purchaser shall be entitled to a right of withdrawal from the contract in addition to the claims for damages pursuant to paragraph 2.

4. Unless otherwise agreed or subsequently approved by the Purchaser, the deliveries shall be made to the extent ordered. Partial deliveries deviating from this provision are inadmissible. In the event of inadmissible partial deliveries, the Purchaser is entitled to accept the partial delivery and to withdraw from the contract with regard to the remaining delivery and to assert the claims for damages specified under paragraph 2.

5. The risk of accidental loss, accidental deterioration or damage to the goods shall be borne by the Seller until the goods are handed over at the agreed place of destination. The Seller shall insure the deliveries against transport damage at its own expense.

IV. Reservation of Title

1. Apart from the statutory rights of reservation of title, the Seller shall not be entitled to any further reservation of title. The ownership of the goods passes to the Purchaser upon payment.

2. § 449 para. 2 BGB is not waived.

V. Warranty, Compensation for Damages, Limitation

1. The Seller undertakes to carry out the delivery free of material defects and defects of title.

2. The delivered goods, objects, etc. must comply with the recognized rules of technology and the contractually agreed properties, DIN standards, insofar as such exist for the delivered object, as well as the safety, occupational safety, accident prevention and other regulations.

3. If the delivered object is defective, the Purchaser shall be entitled to the statutory rights and claims. If the Purchaser defaults in fulfilling the contract vis-à-vis a third party as a result of the execution of the removal of defects, the Seller shall be obliged to compensate the Purchaser for the damage incurred. Further claims for damages shall remain unaffected.

4. The period from § 377 BGB, insofar as it is a commercial transaction for both contracting parties, for the notification of a defect, is one month for the Purchaser. The period begins with the delivery to the place of destination specified by the Purchaser. The delivery to a different place does not start the period.

5. The limitation period for claims for defects is two years. In the event that the ordered goods relate to the installation in a property, a period of five years applies.

6. If the goods are delivered in a contractually deviating and/or inferior quality, the Seller is obliged at the request of the Purchaser to perform the service in accordance with the contractually agreed quality. Alternatively, the Purchaser shall have a right to withdraw from the contract including the statutory claims for damages and the assertion of any contractual penalty that may arise in the event of default in delivery vis-à-vis a third party, as well as further claims of the third party.

7. If special qualities or the origin of the materials used are not complied with, or if a possibility of inspection by the Purchaser is not made possible, the delivered goods shall be deemed to be defective. The liability according to paragraph 6 shall occur vis-à-vis the Seller if a culpable conduct of the Seller exists or in the case of the absence of a warranted characteristic.

8. The Seller is obliged to indemnify the Purchaser in the event of an infringement of copyrights, recording obligations, violation of patent rights or utility model rights and claims of third parties. Furthermore, the Seller is obliged to compensate the Purchaser for any resulting damage, in particular if the delivered goods cannot be used due to a foregoing violation. In the event that a delay in delivery occurs as a result, the provisions under II.2 shall apply. In this case, the Purchaser shall have the right to withdraw from the contract.

VI. Applicable Law, Place of Performance, Place of Jurisdiction

1. The law of the Federal Republic of Germany shall apply exclusively to every contract. This also applies to contracts with companies that have their registered office within the EU. International contract law does not apply.

2. The place of performance for all deliveries – be it once or from a business relationship – is exclusively the registered office of the Purchaser – even for deliveries directly to a construction site.

3. If the Seller is a merchant, a legal entity under public law, a trader or other special fund under public law, the place of jurisdiction is the place of business of the Purchaser for all legal disputes, also within the scope of a bill of exchange or check process. The Purchaser can only be sued in the courts responsible for its place of business.

VII. Formal Requirements, Legal Validity, Data Protection

1. Should amendments to the contract be made, even if only a partial amendment to the contract, this requires the written form. Verbal collateral agreements have no legal effect.

2. Should one of the provisions of the Purchaser’s Terms and Conditions of Purchase be invalid, the parties undertake to make a legally permissible provision corresponding to the meaning and purpose. In the event of a loophole, the parties undertake to close this loophole by means of a legally effective provision.

3. All declarations of intent that have an influence on the order or on the ongoing business relationship must be in writing. This applies in particular to terminations, declarations of withdrawal, assertion of claims for damages, etc.

4. The Purchaser is entitled, in compliance with the statutory provisions on data protection, to have data of the Seller that originate from the Seller itself, even if these originate from third parties, processed within the meaning of the Federal Data Protection Act or by third parties commissioned by the Purchaser

General Terms and Conditions of Sale

§1 Scope

1. These terms of sale apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of § 310 paragraph 1 BGB. We only recognize conflicting or deviating terms and conditions of the purchaser if we expressly agree to their validity in writing.

2. These terms of sale also apply to all future transactions with the purchaser, insofar as they are legal transactions of a related nature.

§ 2 Offer and Conclusion of Contract

1. If an order is to be regarded as an offer in accordance with § 145 BGB, we can accept it within two weeks.

§ 3 Documents Provided

1. We reserve all ownership and copyrights to all documents provided to the purchaser in connection with the order, such as calculations, drawings, etc. These documents may not be made accessible to third parties unless we give the purchaser our express written consent to do so. If we do not accept the purchaser’s offer within the period specified in § 2, these documents must be returned to us immediately.

§ 4 Prices and Payment

1. Unless otherwise agreed in writing, our prices are ex works, excluding packaging and plus value added tax at the applicable rate. Packaging costs will be invoiced separately.

2. The purchase price must be paid exclusively to one of the accounts listed below in our business paper. The deduction of a discount is only permitted with a written, special agreement.

3. Unless otherwise agreed, the purchase price is payable within 30 days of delivery. Default interest will be charged at a rate of 12% above the respective base interest rate p.a. (see Annex 1). The assertion of a higher damage caused by default remains reserved.

After an agreement has already been reached on the payment term, the payment term can be unilaterally and immediately changed (also to possible advance payment) in the event of expected difficulties in ongoing projects in which there is a risk of delayed payment and/or non-payment of the purchase price. For this purpose, written information from our side (also by e-mail) is sufficient.

4. Unless a fixed price agreement has been made, reasonable price changes due to changed wage, material and distribution costs for deliveries that take place 3 months or later after conclusion of the contract remain reserved.

§ 5 Rights of Retention

1. The purchaser is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.

§ 6 Delivery Time

1. The start of the delivery time specified by us requires the timely and proper fulfillment of the purchaser’s obligations. The defense of non-performance of the contract remains reserved.

2. If the purchaser is in default of acceptance or culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims remain reserved. If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased item passes to the purchaser at the point in time at which the purchaser is in default of acceptance or payment.

§ 7 Transfer of Risk upon Dispatch

1. If the goods are dispatched to the purchaser at the purchaser’s request, the risk of accidental loss or accidental deterioration of the goods passes to the purchaser upon dispatch to the purchaser, at the latest upon leaving the factory/warehouse. This applies regardless of whether the goods are dispatched from the place of performance or who bears the freight costs.

§ 8 Retention of Title

1. We reserve title to the delivered item until full payment of all claims arising from the delivery contract. This also applies to all future deliveries, even if we do not always expressly invoke this. We are entitled to take back the purchased item if the purchaser acts in breach of contract.

2. The purchaser is obliged to treat the purchased item with care as long as ownership has not yet been transferred to them. In particular, they are obliged to adequately insure it at their own expense against theft, fire, and water damage at its replacement value. If maintenance and inspection work must be carried out, the purchaser must perform it promptly at their own expense. As long as ownership has not yet been transferred, the purchaser must immediately notify us in writing
if the delivered item is seized or subjected to other interventions by third parties. Insofar as the third party is unable to reimburse us for the judicial and extrajudicial costs of a lawsuit pursuant to Section 771 ZPO, the purchaser is liable for the loss incurred by us.

3. The purchaser is entitled to resell the reserved goods in the ordinary course of business. The purchaser hereby assigns to us the claims of the buyer arising from the resale of the reserved goods, up to the final invoice amount agreed with us (including VAT). This assignment applies regardless of whether the purchased item has been resold without or after processing. The purchaser remains authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the purchaser fulfills their
payment obligations from the collected proceeds, is not in default of payment, and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended. 4. Any processing, transformation, or alteration of the purchased item by the purchaser is always carried out in our name and on our behalf. In this case, the purchaser’s expectant right to the purchased item continues with the transformed item. If the purchased item is processed with other items not
belonging to us, we acquire co-ownership of the new item in proportion to the objective value of our purchased item to the other processed items at the time of processing. The same applies in the case of commingling. If the commingling occurs in such a way that the purchaser’s item is to be regarded as the main item, it is agreed that the purchaser transfers co-ownership to us proportionally and holds the resulting sole ownership or co-ownership for us. To secure our claims against the purchaser, the purchaser also assigns to us such claims that accrue to them against a third party through the connection of the reserved goods with a property; we accept this assignment now.

§ 9 Warranty and Notification of Defects, as well as Recourse/Manufacturer’s Recourse

1. The purchaser’s warranty rights presuppose that they have duly fulfilled their inspection and notification obligations pursuant to Section 377 HGB.

2. The period under Section 377 BGB, insofar as it concerns a commercial transaction for both contracting parties, for the notification of a defect, is for the destination specified by the purchaser. Delivery to a different location also starts the period.

3. Claims for defects become time-barred 12 months after the delivery of the goods supplied by us to our purchaser. For claims for damages in cases of intent and gross negligence, as well as for injury to life, body, and health based on an intentional or negligent breach of duty by the user, the statutory limitation period applies. Insofar as the law mandatorily prescribes longer periods pursuant to Section 438 (1) No. 2 BGB (buildings and items for buildings), Section 479 (1) BGB (right of recourse), and Section 634a (1) BGB (construction defects), these periods apply. Our consent must be obtained before any return of goods.

4. Should the delivered goods exhibit a defect despite all due care, which was already present at the time of the transfer of risk, we will, subject to timely notification of defects, either rectify the goods or deliver replacement goods, at our discretion. We must always be given the opportunity for subsequent performance within a reasonable period.

5. Claims for defects do not exist in the case of only insignificant deviations from the agreed quality, only insignificant impairment of usability, natural wear and tear, or damage arising after the transfer of risk due to faulty or negligent handling, excessive stress, unsuitable operating materials, defective construction work, unsuitable subsoil, or special external influences not stipulated in the contract. If improper repair work or alterations are carried out by the purchaser or third parties, no claims for defects shall exist for these and the resulting consequences.

6. Claims by the purchaser for expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor, and material costs, are excluded insofar as the expenses increase because the goods supplied by us have subsequently been moved to a location other than the purchaser’s place of business.

7. Recourse claims of the purchaser against us exist only insofar as the purchaser has not made agreements with their customer that go beyond the legally mandatory claims for defects. Furthermore, paragraph 6 applies mutatis mutandis to the scope of the purchaser’s recourse claim against the supplier.

§ 10 Miscellaneous

1. This contract and all legal relations between the parties are governed by the law of the Federal Republic of Germany, with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

2. The place of performance and exclusive jurisdiction for all disputes arising from this contract is our registered office, unless otherwise stated in the order confirmation.

3. All agreements made between the parties for the purpose of executing this contract are laid down in writing in this contract.

§ 11 Formal Requirements, Legal Validity, Data Protection

1. Should amendments to the contract occur, even if only a partial amendment, these must be in writing. Oral ancillary agreements have no legal validity.

2. Should any of the provisions of our terms of sale be invalid, the parties undertake to agree on a legally permissible provision that corresponds to the meaning and purpose. In the event of a regulatory gap, the parties undertake to close it with a legally effective provision.

3. All declarations of intent that influence the order or the ongoing business relationship must be in writing. This applies in particular to terminations, declarations of withdrawal, assertion of claims for damages, etc.

4. Blank Metallbau-Technik GmbH is entitled, in compliance with the statutory provisions on data protection, to have the purchaser’s data, whether originating from the purchaser themselves or from third parties, processed in accordance with the Federal Data Protection Act or by third parties commissioned by Blank Metallbau-Technik GmbH.