General Terms and Conditions
General Terms and Conditions of Ralf Koch Aufzugs-Service GmbH for Delivery, Installation, Service and Maintenance:
I. General Provisions
1. Customer accepts and agrees to be bound by these General Terms and Conditions and the price list in effect at the time the order is placed. Until revoked the General Terms and Conditions shall also apply to any future orders, whether or not expressly made applicable again. Any other general terms and conditions conflicting with, differing from, or supplementing our General Terms and Conditions are hereby rejected, even if we know of, but do not expressly object to, such other general terms and conditions and/or if we render services without any reservation of rights.
2. As used in these General Terms and Conditions, the term "consumer" shall mean any natural person entering into a transaction for purposes unrelated to his or her commercial or self-employed business activities (§ 13 of the German Civil Code (BGB)). As used in these General Terms and Conditions, the term "commercial enterprise" shall mean any natural person, legal entity, or partnership with legal capacity entering into a transaction for purposes of his/her/its commercial or freelance professional activities (§ 14 of the German Civil Code (BGB)). To the extent that the following provisions of these General Terms and Conditions refer to the "Ordering Party", this term shall mean both consumers and commercial enterprises.
II. Delivery Terms
Section 2 Offer and Acceptance
1. All offers, including prices, made in brochures, advertisements, etc., are subject to change and non-binding. We reserve the right to make technical changes, as well as changes to shapes, colors and/or weights, to the extent reasonable. Custom offers specifically prepared for Customer are valid for a period of 24 business days from the date of the offer, unless otherwise provided. Koch shall not be bound by specifications in offers and/or order confirmations that contain obvious errors, i.e., typographical or mathematical errors. Instead, the specifications that were obviously intended are controlling.
2. By placing an order, the Ordering Party makes a binding offer to purchase the ordered product. The offer is not accepted until an order confirmation has been sent or the product has been delivered. Any collateral agreements, representations or warranties must be in written form.
3. Koch reserves all rights, claims, and interest, including all copyrights, in and to cost estimates, drawings and similar documentation. The same shall apply to all documentation designated as "confidential." Such documentation may not be made accessible to any third parties except with our prior express consent.
Section 3 Prices and Payment Terms
1. All prices shall be for delivery "ex works," excluding packaging and applicable VAT; applicable VAT shall be stated separately in the invoice at the legal rate in effect on the invoice date. If the Ordering Party requests shipment of the product, there will be an additional charge for shipping costs. At the request of the Ordering Party, shipments will be insured in the name and for the account of the Ordering Party.
2. The Ordering Party will also be invoiced separately for any expenses incurred as a result of any changes made to the type or scope of delivery at the request of the Ordering Party after transmission of our order confirmation and/or as a result of compliance with subsequent or unforeseeable regulatory conditions or requirements.
3. In the case of long-term contracts and in cases in which the time period between the contract date and the agreed and/or actual delivery date is longer than six months, the prices of Koch in effect at the time the product is delivered or service is rendered apply. In the event of any price increases by suppliers, increases in the cost of labor or shipping, or any other unexpected cost increases, Koch shall have the right to demand that the parties renegotiate the price.
4. Deduction of any cash discount is subject to a separate written agreement. Unless otherwise agreed, the purchase price shall be due immediately without deduction from the invoice date. In addition, the statutory provisions governing non-payment shall apply.
5. The Ordering Party shall have no right to offset any counterclaims, unless such counterclaims have been established by a final and conclusive court judgment, are undisputed, or liability for such counterclaims has been accepted by us. The Ordering Party shall have no right to refuse performance based upon any counterclaims, unless such counterclaims arise from the same contract.
Section 4 Transfer of Risk
Delivery shall be made "ex works." The risk of accidental loss of or damage to the sold product shall transfer to the Ordering Party at the time of delivery or, in the case of shipment, at the time the sold product is turned over to the carrier, provided that the Ordering Party is a commercial enterprise. If the Ordering Party is a consumer, the risk of accidental loss of or damage to the sold product shall not transfer to the Ordering Party until the time of delivery, even in the case of shipment. In the event of the Ordering Party's wrongful rejection of the sold product, the risk of accidental loss of or damage to the sold product shall transfer the Ordering Party on the date the sold product is ready for shipment. The Ordering Party is liable for any storage costs. The same shall apply to any partial deliveries.
Section 5 Delivery Periods
All specified delivery dates and periods are approximate only, unless a binding delivery date is expressly confirmed in writing by Koch. The delivery period does not begin to run until all technical matters have been settled by mutual agreement with the Ordering Party. The delivery period shall be reasonably extended in the event of any unforeseeable obstacles not within the reasonable control of Koch, such as force majeure, strikes, or business disruptions. The Ordering Party shall be promptly notified of the reasons for and anticipated duration of any delay. If the delay is not expected to be resolved within a reasonable time period, both the Ordering Party and Koch may rescind the contract in whole or in part.
Section 6 Reservation of Title
1. Koch hereby reserves title to the sold product until full payment of the purchase price. In the event of any breach of contract by the Ordering Party, including, without limitation, non-payment, Koch shall have the right, after setting a reasonable grace period, to rescind the contract and to demand return of the sold product. Koch shall have the right to sell the sold product upon return. The sales proceeds shall be credited against the liabilities of the Ordering Party after deduction of the reasonable costs of sale. If the supplier should be unable to exercise its right of rescission, the supplier may recover damages in the cases defined by law.
2. The Ordering Party shall treat the sold product with due care. In particular, the Ordering Party shall regularly service and inspect the product at its own cost, to the extent necessary. If such service or inspection is not performed, any written warranties shall become null and void.
3. The Ordering Party shall provide Koch with prompt written notice of any attachment or other interventions by third parties, or of any damage to or destruction of the sold product. Likewise, Koch shall be promptly informed if the sold product is transferred to the possession of a third party or if the residence of the Ordering Party changes. Any lien holders shall be promptly informed of the reservation of title.
4. If any secured goods are installed as fixtures on a property or in a building of a third party by or on behalf of the Ordering Party, the Ordering Party hereby assigns to seller any claims for compensation, including subsidiary rights and security interests, against the third party or against whom it may concern. If any secured goods are installed as fixtures on the property of the Ordering Party, Customer hereby assigns to seller any claims, including subsidiary rights, resulting from a sale of the property or any property rights.
5. If the value of collateral held by seller exceeds seller's claim by a total of more than 10% on a more than temporary basis, Koch shall upon demand of the Ordering Party release the appropriate amount of collateral, with the specific collateral subject to release to be selected by seller.
Section 7 Claims for Defects
1. The Ordering Party, if a commercial enterprise, shall have claims for defects only if the Ordering Party has complied with its duties of inspection and notice of defect under § 377 of the German Commercial Code (HGB). If the Ordering Party is a commercial enterprise, Koch may, at its sole option, either repair the defect or deliver a replacement product. If the Ordering Party is a consumer, the Ordering Party may choose between repair and replacement. Koch shall however have the right to refuse the remedy chosen by the Ordering Party, if such remedy is possible only at unreasonable cost and the other remedy would not be unduly burdensome for the Ordering Party.
2. If the Ordering Party is a commercial enterprise, the condition of the sold product is generally warranted to be in conformity only with the manufacturer's product specifications. Any other public, promotional or advertising statements by the manufacturer shall not constitute agreed warranties of quality for the product.
3. Koch is liable in accordance with applicable law for any claims for damages brought by the Ordering Party based upon any willful or grossly negligent actions or omissions of Koch or its agents or representatives. For any other claims not based upon willful or grossly negligent actions or omissions, Koch's liability shall be limited to reasonably foreseeable damages. The foregoing provision shall not apply to any liability for wrongful harm to life, limb or health, or to liability attaching by operation of law in accordance with the German Products Liability Act (Produkthaftungsgesetz).
4. The limitation period for any claims for defects by the Ordering Party shall, unless a claim is subject to the limitation period provided for in § 438 para. 1 no. 2 of the German Civil Code (BGB), be one year from delivery of the goods, provided that the Ordering Party is a commercial enterprise and has fully complied with its obligation to provide Koch with notice of defect in accordance with subsection 1. If the Ordering Party is a consumer, the limitation period for any claims for defects shall, unless a claim is subject to the limitation period provided for in § 438 para. 1 no. 2 of the German Civil Code (BGB), be two years from delivery of the goods.
5. Except as agreed in writing, Koch makes no legal warranties to the Ordering Party. Any manufacturer's warranties shall remain unaffected thereby.
Section 8 Limitations of Liability
Koch's liability for any other claims for damages based upon ordinary negligence shall be limited to reasonably foreseeable damages. The same shall apply to any ordinary negligence by Koch's agents and representatives. Any liability of Koch for negligent breach of material contractual obligations is hereby excluded, if the Ordering Party is a commercial enterprise. Liability for wrongful harm to life, limb or health shall remain unaffected thereby; the same applies to liability attaching by operation of law in accordance with the German Products Liability Act (Produkthaftungsgesetz).
Section 9 Final Provisions
1. The laws of the Federal Republic of Germany, with the exception of the provisions of the UN Convention on Contracts for the International Sale of Goods, shall apply.
2. If the Ordering Party is a merchant, any disputes arising from this Agreement shall be determined exclusively by a court of competent jurisdiction at the place of Koch's registered office in Berlin. The same shall apply, if the Ordering Party is a consumer and has no general place of jurisdiction in Germany or no place of residence, or if the habitual place of abode of the Ordering Party is unknown at the time legal action is filed.
3. If any provisions of this Agreement, including these Delivery Terms, are or become invalid in whole or in part, the validity of the remaining provisions shall remain unaffected thereby. Any provision that is invalid in whole or in part shall be replaced by such valid provision as most closely approximates the economic effect of the original provision.
III. Installation Terms
In the event that Koch provides installation or similar services, whether in addition to delivery of the sold product or exclusively, the following Installation Terms shall apply in conjunction with the Delivery Terms:
Section 1 Requirements for Installation
1. If delivery is obviously damaged in part or incomplete, the Ordering Party shall notify Koch thereof at the latest one business day after delivery of the sold product. In the event of the Ordering Party's wrongful (including slightly negligent) failure to provide such notice, the Ordering Party will be invoiced for any resulting additional installation costs. Delivered parts shall be stored in a dry location and protected from the effects of weather and damage by third parties. Our services do not include obtaining any necessary permits from building authorities or any other government agencies, nor do they include any necessary surveying services. The Ordering Party agrees to indemnify and hold harmless Koch from and against any and all claims brought by third parties in connection therewith.
2. To guarantee proper installation, the following requirements must be satisfied:
- For inground installations, Koch shall be informed of any inground obstacles (e.g., added soil, bedrock, rocks, etc.) in due time. At the time the order is accepted, Koch assumes for purposes of its calculations that the ground on the work site is free of any such obstacles and satisfies the criteria for soil class 3-4. Should any obstacles be discovered in the installation process, Customer will be charged for the installation expenses at the then applicable hourly rates for installers and equipment, as well as for incidental costs.
- All border markers and utility lines (gas, water, power, telephone, etc.) on the work site shall be accurately marked by the Ordering Party and disclosed to the installers of Koch prior to the start of installation. In the event of the Ordering Party's wrongful (including slightly negligent) failure to do so, the Ordering Party shall indemnify and hold harmless Koch from and against any and all liability for resulting damages.
- Necessary main electrical terminal (operational) and fulfillment of all structural requirements to allow for smooth completion of the installation process, including, but not limited to, elevator shaft with installations, Halfen cast-in channels, fastening carrier.
3. The Ordering Party shall ensure that installation can proceed on the agreed date, in particular that all necessary preparatory work, such as masonry, plaster, and floor work, has been completed. All floors must be accessible and carry sufficient weight. At the latest five days prior to the agreed date, the Ordering Party shall advise Koch in writing whether installation can proceed on the agreed date.
4. The Ordering Party shall inform the installation staff of any applicable safety regulations, in particular as they pertain to welding work, non-smoking, safety clothing, etc. In the event of the Ordering Party's wrongful (including slightly negligent) failure to do so, the Ordering Party shall indemnify and hold harmless Koch from and against any and all liability for resulting damages.
5. Electrical power for tools and any necessary lighting on the work site shall be made available by the Ordering Party. If a lockable recreation room for installers is needed for the storage of tools and small parts the Ordering Party will be provided with advance notice and such a lounge shall then be made available by the Ordering Party. If the system to be installed has an electrical motor, the necessary electrical equipment shall be installed, and the systems shall be connected and adjusted by the Ordering Party.
6. After installation the Ordering Party shall note the following/take the following precautions: upon completion, but pending acceptance, the installed components shall be protected from damage on the work site. Unless otherwise agreed, any use of the system prior to acceptance shall be prohibited. Doors to equipment rooms must remain locked at all times and protected from unauthorised access.
Section 2 Work at Hourly Rates
If the Ordering Party is charged for installation not based on a flat rate, but rather based on time expended, the installation work shall be invoiced on the basis of hourly rates, plus any costs of travel, shipping, equipment, etc., in accordance with the installation price list of Koch as amended from time to time. Work at hourly rates shall be invoiced, and payment shall be made after invoicing, in accordance with Section 3 of the Delivery Terms.
Section 3 Acceptance of Delivery
Upon completion of the installation work, the Ordering Party shall have the right and obligation to accept delivery of the work by written installation protocol. Any failure of the Ordering Party, in breach of its obligation, to accept the installation services within a reasonable time period as specified by Koch shall be deemed equivalent to acceptance. From the time of acceptance, Koch shall no longer have any claims for defects under § 634 nos. 1 through 4 of the German Civil Code (BGB) with respect to any known defects, unless at the time acceptance the Ordering Party reserves its rights to bring such claims for defects in the future.
Section 4 Limitation of Claims
The limitation period for any claims by the Ordering Party for defective installation shall be one year from acceptance of delivery. The limitation period provided for in § 634a para. 1 no. 2 shall remain unaffected thereby.
IV. Service and Maintenance Terms
If Koch provides servicing or maintenance services or similar services, whether in addition to delivery and/or installation of the sold product or exclusively, the following Service and Maintenance Terms shall apply in conjunction with the Delivery and Installation Terms:
Section 1 Service
Service by Koch includes the following:
1. Travel to the work site, and completion of the work specified in the service agreement, including any legally required functionality tests, in accordance with the agreed time schedule;
2. Depending on operating hours, Koch shall inform the Ordering Party of the current condition of the system and propose measures to restore the original technical performance of the system.
3. The costs of any work or repairs not provided for in the service schedule will be charged separately (at the then applicable hourly rates). This shall apply, in particular, to the repair of any defects or damages that may occur between service intervals and are not the direct result of services to be rendered in accordance with the service agreement.
Section 2 Maintenance
Maintenance services of Koch include the following:
1. Service in accordance with Section 1 "Service";
2. Completion of any necessary repairs; and
3. Correction of any malfunctions occurring between service intervals.
Section 3 Requirements for Service and Maintenance
Koch will perform service work only if the elevator system has been properly installed and is operated under proper operating conditions. The Ordering Party agrees to operate the elevator system subject to the agreement in a proper manner and to perform all necessary care and cleaning work as per the operating instructions. The Ordering Party shall instruct and authorize a designated person to provide the service technicians of Koch with access to the system without any waiting periods, who shall be present during service. The scope of the service agreement shall not include any repair of malfunctions caused by improper treatment of the system by the Ordering Party, any actions by third parties, or force majeure. The same shall apply to any malfunctions caused by environmental conditions at the place of installation, by utility systems, by accessories or parts not in conformity with the specifications of Koch and/or by the manufacturer. The scope of performance shall not include the delivery of supplies, consumables with the exception of incidentals and lubricants or accessories, or the replacement of parts subject to wear and tear. Koch shall be provided with prompt notice of any change in Customer’s use of the system (extent, location, components used).
Section 4 Price Changes
The Ordering Party shall be provided with written notice of any price changes. Within two months from receipt of a new price list, the Ordering Party shall have the right to terminate the contract in writing. Koch shall advise the Ordering Party of its termination right in the new price list.
Last revised May 2007