Oberhauser Bau-Systeme GmbH
Rohrbach – Bahnhof 18
84494 Niederbergkirchen / Germany
GENERAL SALES AND DELIVERY CONDITIONS OF THE OBERHAUSER COMPANY
Oberhauser Bau-Systeme GmbH
Rohrbach – Bahnhof 18
84494 Niederbergkirchen / Germany
1. Validity, deviating terms and conditions, power of representation
These General Terms and Conditions apply to consumers and entrepreneurs. Consumers in the sense of these terms and conditions are natural persons with whom business relations are entered into without a commercial or independent professional activity being attributable to them. Entrepreneurs within the meaning of these terms and conditions are natural or legal persons or partnerships with legal capacity with whom business relations are entered into and who act in the exercise of their commercial or independent professional activity.
The contracting parties agree that the General Terms and Conditions of Oberhauser in their currently valid version shall be the basis for all future purchase and work supply contracts concluded between them within the scope of their business relationship. Possible later amendments of the GTC shall become effective if the customer has been demonstrably informed about them in text form and does not object to this notification within three weeks.
Any terms and conditions of the customer that deviate from or supplement these GTC shall not apply. They will only become effective with Oberhauser’s explicit written confirmation. This also applies if Oberhauser, being aware of the customer’s deviating terms and conditions, executes the delivery or other service without reservation.
Oberhauser’s employees are not entitled to make additional agreements that go beyond the written contract or to change or modify these terms and conditions. The power of representation of the managing directors and authorized signatories in numbers authorized to represent Oberhauser remains unaffected.
2. Offers, conclusion of contract, industrial property rights
Offers from Oberhauser are subject to change. A contract is only concluded upon confirmation by Oberhauser in text form.
Oberhauser reserves its property rights, copyrights, design patents and other industrial property rights on all illustrations, calculations, drawings, drafts, constructions, tools and other documents. The customer is only allowed to use them within the scope of the purpose of the contract. Any other use, especially copying, passing on to third parties or other commercial use is not permitted.
In the event that the customer provides illustrations, calculations, drawings, drafts, constructions or other documents, he shall be liable to Oberhauser for ensuring that no industrial property rights, in particular patents, design patents, copyrights or other rights of third parties are infringed by the use of the documents. The customer shall indemnify Oberhauser from any claims of third parties for such infringements.
3. Prices, terms of payment
All prices are ex works plus packaging and plus the statutory value added tax applicable at the time.
The handover or delivery of goods and services is always against prepayment, whereas delivery against invoice is subject to a successful credit check. Unless otherwise agreed, invoices from Oberhauser are due for payment immediately upon receipt and are to be paid by the customer within ten days from the date of invoice without deduction.
If the customer defaults on his payment obligations, Oberhauser is entitled to charge the customer an appropriate fee of at least Euro 5.00 for each reminder, unless the customer proves that the actual costs incurred are lower. In case of exceeding the due dates or in case of deferment, Oberhauser is entitled to demand interest on the due date or deferment in the amount of 8 percentage points per annum above the respective base interest rate according to § 247 BGB.
If the customer is in default of payment, Oberhauser is entitled, without prejudice to further claims and rights, to extraordinarily terminate any existing deferment agreement and to make all claims immediately due.
If the customer does not meet his payment obligations despite reminders, stops his payments or a bank does not honour a cheque or direct debit due to insufficient funds, Oberhauser is entitled to make all existing claims immediately due for payment.
Oberhauser also reserves the right to exclude certain types of payment in individual cases in order to secure the credit risk and to execute requested deliveries only against advance payment, cash on delivery or immediate payment upon delivery or handover. Should facts become known after the conclusion of the contract, which give rise to objective doubts that the customer will fulfil the contract in accordance with his duties, e.g. due to insolvency or refusal to fulfil, Oberhauser is entitled to demand advance payment or appropriate securities and in case of refusal, to withdraw from the contract.
Oberhauser is entitled to assign the claims arising from the business relationship.
4. Set-off, right of retention
The customer shall only be entitled to set-off rights if his counterclaim has been legally established or recognized by Oberhauser.
A right to refuse performance or right of retention can only be based on claims from the same contractual relationship.
An assignment of claims is only allowed with prior written consent of Oberhauser.
5. Delivery, reservation of self-supply, delay, force majeure, partial performance
The observance of agreed delivery periods presupposes that the customer fulfils all his obligations properly and in good time.
We reserve the right to correct and timely delivery to ourselves.
If the customer is in default of acceptance or if he culpably violates other obligations to cooperate, Oberhauser is entitled to demand compensation for any damages incurred, including any additional expenses. Further claims or rights are reserved.
As far as the conditions in section 5.3 are met, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to the customer at the point in time when the customer is in default of acceptance or debtor’s delay.
Oberhauser is liable according to the legal regulations, as far as the underlying purchase contract is a firm deal in terms of § 286 Abs. 2 Nr. 4 BGB or § 376 HGB. Oberhauser is also liable according to the legal conditions, if as a consequence of a delay in delivery for which Oberhauser is responsible, the customer is entitled to claim that his interest in the further fulfilment of the contract has ceased.
Oberhauser shall also be liable according to the legal conditions, if the delay in delivery is due to an intentional or grossly negligent breach of contract for which Oberhauser is responsible; a fault of its representatives or vicarious agents shall be attributed to Oberhauser. If the delay in delivery is based on a grossly negligent breach of contract for which Oberhauser is responsible, their liability for damages is limited to the foreseeable, typically occurring damage.
Otherwise, in case of a delay in delivery, Oberhauser shall be liable for each completed week of delay within the scope of a lump sum compensation for delay in the amount of 0.5% of the delivery value, but not more than 5% of the delivery value.
Further legal claims and rights of the customer remain reserved.
6. Handover, transfer of risk, transport
Unless otherwise agreed in individual cases, deliveries shall be ex works 84494 Niederbergkirche, Rohrbach-Bahnhof 18.
If the delivery is made to another location at the request of the customer, this shall be at the risk and for the account of the customer. The customer shall inform Oberhauser in writing and in due time of any instructions regarding the type of shipment. They are only binding for Oberhauser, if Oberhauser confirms them in writing.
The risk of accidental loss and accidental deterioration is transferred to the customer in case of delivery ex works, as soon as the object of purchase has been made available to the customer. Otherwise, the risk of accidental loss and accidental deterioration shall pass to the customer upon delivery of the object of purchase to the customer, at the latest upon delivery of the object of purchase to the transport person. This also applies if partial services are provided or Oberhauser has taken over additional services, such as transport.
Oberhauser will take out a transport insurance exclusively on special instruction and at the expense of the customer.
Separate agreements apply to the taking back of packaging (see BGBl. I p. 212)
7. Retention of title
Oberhauser reserves the right of ownership of the purchased goods until all payments from the business relationship with the customer have been received. In case of breach of contract by the customer, especially in case of default of payment, Oberhauser is entitled to take back the purchased goods. The taking back of the object of sale by Oberhauser shall be considered as a withdrawal from the contract. Oberhauser is entitled to sell the purchased item after taking it back, the proceeds of sale are to be credited against the customer’s liabilities (less reasonable costs of sale).
The customer is obliged to treat the object of purchase with care; in particular, he is obliged to insure it sufficiently at his own expense against fire, water and theft damage at replacement value. If maintenance and inspection work is necessary, the customer must carry this out in good time at his own expense.
In case of seizure or other interventions by third parties, the customer must inform Oberhauser immediately in writing, so that Oberhauser can file a suit according to § 771 ZPO (German Code of Civil Procedure). As far as the third party is not able to reimburse Oberhauser the judicial and extrajudicial costs of a lawsuit according to § 771 ZPO, the customer shall be liable for the loss incurred by Oberhauser.
The customer shall be entitled to resell the object of purchase in the ordinary course of business; however, he hereby assigns to Oberhauser all claims in the amount of the final invoice amount (including VAT) of our claim, which arise from the resale against his customers or third parties, regardless of whether the object of purchase has been resold without or after processing. The customer remains entitled to collect this claim even after the assignment. Oberhauser’s authority to collect the claim himself remains unaffected. However, Oberhauser commits itself not to collect the claim as long as the customer meets his payment obligations from the collected proceeds, is not in default of payment and especially no petition for the opening of composition or insolvency proceedings has been filed or payments have been suspended. However, if this is the case, Oberhauser may demand that the customer informs Oberhauser about the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) about the assignment.
The processing or alteration of the purchased goods by the customer is always carried out for Oberhauser. If the purchased goods are processed with other objects that do not belong to Oberhauser, Oberhauser shall acquire co-ownership of the new object in proportion of the value of the purchased goods (final invoice amount, including VAT) to the other processed objects at the time of processing. For the rest, the same applies to the object resulting from processing as to the object of sale delivered under reservation.
If the object of sale is inseparably mixed with other objects that do not belong to Oberhauser, Oberhauser shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other mixed objects at the time of mixing. If the mixing is done in such a way that the customer’s item is to be considered the main item, it is agreed that the customer transfers co-ownership to Oberhauser proportionally. The customer shall keep the sole ownership or co-ownership for Oberhauser.
The customer also assigns to Oberhauser the claims to secure their claims against him, which arise against a third party through the connection of the purchased item with a property.
Oberhauser agrees to release the securities to which it is entitled upon the customer’s request, as far as the realizable value of our securities exceeds the claims to be secured by more than 10%; Oberhauser is free to choose which securities to release.
“Confidential Information” shall mean all information, documents, records and data (whether in written, oral, visual, electronic or any other form), in particular all technical, scientific and business information, financial data, business and marketing information, know-how, manufacturing processes, concepts, drawings, plans, designs, specifications, data carriers, samples, measurement data, measurement analyses, reports, prototypes and project documents as well as all other information marked as “confidential” which is handed over, transferred or otherwise disclosed by one party (hereinafter referred to as “Disclosing Party”) to the other party (hereinafter referred to as “Receiving Party”) during the term of the Agreement. This includes copies of such information in paper and electronic form.
All Confidential Information that is transmitted or otherwise made available by the Disclosing Party to the Receiving Party
may only be used by the Receiving Party to fulfil the respective contractual purpose, unless otherwise expressly agreed in writing with the Disclosing Party.
may not be reproduced, distributed, published or passed on in any other form by the Receiving Party, unless this is necessary for the fulfilment of the purpose of the contract or in connection with the commissioning of subcontractors or unless Oberhauser is obliged by law or official regulations to pass on Confidential Information, test reports and documentation to authorities or to third parties involved in the fulfilment of the contract.
The confidentiality obligations shall continue to apply for a period of 5 years after termination of the contract.
9. Agreement on quality, assembly
The object of purchase is in conformity with the contract if it is suitable for normal use or has a quality which is usual for objects of the same type and which the customer can expect according to the type of object. Samples, brochure details or information resulting from other advertising material are non-binding guidelines.
Any agreement on quality that deviates from these terms and conditions or the assumption of a guarantee require Oberhauser’s written confirmation to be effective. Oberhauser’s employees are not entitled to make or give any agreements on quality or guarantees that go beyond the written contract and these terms. The power of representation of the managing directors and authorized signatories in numbers authorized to represent Oberhauser shall remain unaffected.
If Oberhauser supports the construction management or other personnel of the customer by its personnel in supervising the assembly or installation, Oberhauser shall only be liable for the selection of technically suitable personnel. Oberhauser shall not assume any tasks and activities of construction management, specialist construction management, construction supervision, planning or coordination as well as assembly work. Furthermore, Oberhauser shall not be responsible for the professional, proper and correct insertion of the object of purchase.
10. Obligation to examine and give notice of defects, claims for defects
Warranty claims of the customer presuppose that he has fulfilled his duties of examination and notification of defects according to § 377 HGB. Notification of defects must be made in writing.
In case of a defect in the purchased goods, Oberhauser is entitled to choose between subsequent performance in the form of removal of the defect or delivery of a new defect-free item. In the case of supplementary performance Oberhauser is obliged to bear all expenses necessary for the purpose of remedying the defect, especially transport, travel, labour and material costs, as long as these are not increased by the fact that the purchased item was brought to a place other than the place of performance.
If the supplementary performance fails, the customer is entitled to demand withdrawal or reduction at his discretion.
Oberhauser shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence of its representatives or vicarious agents. As far as Oberhauser is not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
Oberhauser shall be liable according to the legal regulations, if we culpably violate an essential contractual obligation; however, even in this case the liability for damages shall be limited to the foreseeable, typically occurring damage. An essential contractual obligation shall be deemed to exist if the breach of duty refers to an obligation on the fulfilment of which the customer relied and was entitled to rely.
Liability for culpable injury to life, body or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.
Unless otherwise regulated above, liability is excluded.
The limitation period for claims for defects is 12 months, calculated from the transfer of risk.
The period of limitation in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected; it is five years, calculated from delivery of the defective item.
11. Extended durability guarantee for products in the Solar Mounting Systems division
Insofar as Oberhauser grants a guarantee with the customer on the durability of components or systems, the following provisions shall apply:
Unless otherwise agreed, a warranty period of 10 years shall apply. As far as a possible shorter life span is explicitly stated for certain components in general or for a certain type of use, or as far as an exchange within a shorter period of time is provided for within the framework of Oberhauser’s individually created planning, the warranty period is limited to this life span or period of time. In the case of the outdoor steel support structure, the warranty period shall expressly be 5 years.
The warranty is granted on the durability of the items purchased and shall exclusively result in the claims specified below.
If, despite proper installation and handling, damage to the purchased items should occur under normal use, Oberhauser shall replace the affected component immediately within the warranty period. The warranty is limited to the subsequent delivery and installation of the defective parts upon notification of the damage within the warranty period. Any legal warranty or liability claims remain unaffected.
The obligation to provide a guarantee does not apply if the damage was caused in connection with incorrect installation or handling of the system or in connection with extraordinary stress (e.g. storm damage, effects due to instability of the ground, special chemical or biological effects), unless the damage was demonstrably not caused by this but was essentially caused by a material or construction error. Installation and handling shall be governed by the technical product descriptions and installation instructions supplied by us for the respective products, the legally prescribed or generally recognised standards and principles of architecture and, if applicable, primarily by the plans, statics and instructions produced by us individually for the customer.
No claims shall exist insofar as the damage is covered by insurance against storms and similar events (elementary insurance) or can usually be covered.
This guarantee only justifies claims of Oberhauser’s customer, through whom all guarantee cases are to be settled. The assertion by third parties is only possible if Oberhauser agrees to it.
12. Liability, compensation for damages and expenses
Any further liability for damages other than that provided for in clause 11 is excluded, irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or claims in tort for compensation for property damage in accordance with § 823 BGB.
The limitation according to 11.1 shall also apply if the customer demands compensation for useless expenses instead of a claim for compensation for damages.
Insofar as liability for damages against us is excluded or limited, this shall also apply with regard to the personal liability for damages of Oberhauser’s employees, workers, staff, representatives and vicarious agents.
13. Applicable law, place of performance, place of jurisdiction
The law of the Federal Republic of Germany shall apply in its current version.
Unless otherwise stated in the purchase contract, Oberhauser’s place of business shall be the place of performance.
If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of business shall be the place of jurisdiction. However, Oberhauser is also entitled to sue the customer at the court of his place of residence.
According to § 33 of the German Federal Data Protection Act, we point out that the customer data is stored and used for business purposes.
Status January 2020