1 Conclusion of contract
1.1 Fahrengold GmbH, a limited liability company with its registered office in Berlin and entered in the Commercial Register of the Charlottenburg District Court under registration number HRB 205821, ("supplier") offers its customers the manufacture, delivery and assembly of modularly constructed products for the securing and presentation of vehicles, in particular garages and stages for vehicle presentation (the totality of the components as well as the assembled product each the "Fahrengold product"). Due to the modular design, Fahrengold products can be highly individualised and quickly assembled according to the wishes of the customer.
1.2 These General Terms and Conditions of Business (hereinafter referred to as "GTC") conclusively regulate the contractual relationship between the supplier and the customer signing the order confirmation ("purchaser") with regard to the supplier's services specified in the order confirmation. Other contracts, in particular the General Terms and Conditions of the Customer, shall not apply. Individual agreements made in individual cases between the Supplier and the Purchaser (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC.
1.3 The order form provided to the customer does not itself constitute a contractual offer by the supplier, but merely an invitation by the supplier to the customer to submit a contractual offer (invitatio ad offerendum). The signing of the order form by the Purchaser shall be deemed to be a binding offer of contract.
1.4 Unless otherwise stated on the order form, the Supplier is entitled to accept the Customer's offer to enter into a contract within two weeks of receipt by the Customer by countersigning the order form and delivering it to the Customer by letter, email or fax (the agreement thus concluded between the Supplier and the Customer with regard to the services of the Supplier specified in the order confirmation hereinafter also referred to as the "Contract").
2 Services of the Provider
In accordance with these GTC, the supplier shall manufacture and deliver the ordered modules of the Fahrengold product and (insofar as required for the respective Fahrengold product) install them on the existing foundation. The supplier is entitled to employ third parties for the manufacture, delivery and assembly of the Fahrengold product.
The supplier shall manufacture the Fahrengold product in accordance with the contractual agreement with the purchaser. The agreed quality results from the product description in the order confirmation.
4.1 The place of manufacture shall be Berlin (Germany), the place where the supplier carries out his performance (place of performance). The Fahrengold product will be shipped from the place of manufacture to another destination at the purchaser's expense (sale by delivery to a place other than the place of manufacture). Unless otherwise agreed, the supplier shall be entitled to determine the type of shipment (in particular the transport company, the shipping route and the packaging).
Unless the Vendor and the Purchaser agree otherwise in writing, i.e. in text or written form (e.g. email, letter or fax) (hereinafter also referred to as "Proper Form"), the place of destination of the mail order purchase shall be the delivery address specified in the order confirmation or, if no delivery address is specified, the customer address specified in the order confirmation (the Purchaser's property at this address shall hereinafter also be referred to as the "Purchaser's Property").
The risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or the person otherwise designated to carry out the shipment (in each case the "Supplier"), unless Section 475 (2) of the German Civil Code applies.
4.2 If a delivery date is stated in the order confirmation, this does not result in a deviation from section 4.1, in particular the supplier does not assume any obligation to deliver and also does not bear the risk of delay of the dispatch purchase. The specification of the delivery date merely serves to enable the necessary coordination between the supplier, the purchaser and the supplier. In this respect, the Purchaser is only obliged, in coordination with the Supplier, to hand over the goods to the Supplier in good time so that the Supplier can deliver on the delivery date in accordance with the delivery time stated by the Supplier. However, the supplier shall endeavour to influence the supplier, if necessary, with the aim of delivery on the delivery date.
4.3 If no delivery date is stated in the order confirmation, this clause 4.3 shall apply: The purchaser shall have the right to request the manufacture of the Fahrengold product at any time from the date of the conclusion of the contract (i.e. drawing and countersignature of the order confirmation by the supplier and purchaser) ("conclusion of the contract") by notifying the supplier in due form ("call-off").
The supplier shall be entitled and obliged to hand over to the supplier all modules of the Fahrengold product required for assembly within a number of weeks specified in the order confirmation ("manufacturing period"). However, the manufacturing period shall not commence until the purchaser has made the down payment in accordance with section 4.5.
The purchaser shall not call off the Fahrengold product until all the preconditions to be fulfilled by the purchaser for the assembly of the Fahrengold product have been met and, in particular, all the necessary permits under public law for the assembly of the Fahrengold product have been obtained. The parties shall endeavour to agree jointly on a date for handover, taking into account the expected delivery time.
4.4 Partial deliveries shall be permissible insofar as they are reasonable for the customer. If the delivery is delayed for reasons for which the Purchaser is responsible, or if the Purchaser is in default of acceptance for other reasons, the risk shall pass to the Purchaser.
4.5 The purchaser is obliged to obtain any official permits for road and pavement closures at his own expense, insofar as these are necessary for the delivery of the Fahrengold product modules. The supplier shall provide the purchaser with all necessary information regarding the delivery at the purchaser's request so that the purchaser can assess the necessity of permits within the meaning of this clause.
4.6 The purchaser shall ensure that any soiling of the road caused by lorries or assembly vehicles leaving the site is removed without delay. He shall indemnify the Supplier against all claims which may be asserted against him for failure to comply with this obligation.
5.1 The supplier is entitled and obliged to assemble all modules of the Fahrengold product immediately after delivery. The purchaser shall provide electricity and water free of charge for assembly.
5.2 The supplier shall only be obliged to install the modules at a "possible location" on the customer's property. The possible locations may be specified in the order confirmation by stating at which locations of the purchaser's property assembly of the modules of the Fahrengold product is possible, or at which locations assembly is excluded, in which case all other buildable locations of the purchaser's property shall be deemed possible locations. The supplier and the purchaser may also subsequently agree on the possible locations in due form. If the supplier and the purchaser have not specified the possible locations, only those locations on the purchaser's property shall be deemed possible locations at which (a) it is technically possible to erect the Fahrengold product, and (b) the total costs of the manufacture, delivery and assembly of the Fahrengold product do not exceed the total price due to the location or nature of the purchaser's property.
6 Public-law permits, foundations and connections
6.1 The purchaser shall be solely responsible for creating the legal and technical preconditions for the installation of the Fahrengold product, in particular the production of suitable foundations and the obtaining of any necessary building permit. The purchaser is also responsible for ensuring that the Fahrengold product is connected to the power grid and the Internet by means of the interfaces integrated into the garage.
6.2 The purchaser shall ensure that the required excavation and dimensionally accurate foundation construction have been carried out in accordance with the minimum dimensions (depth, external dimensions and value) specified by the supplier at the time of delivery.
6.3 The supplier shall not provide any planning services for the purchaser with regard to the permissibility of the erection of the Fahrengold product on the purchaser's property under building planning and building regulations law.
All advice and other information provided by the supplier with regard to possible locations for the Fahrengold product on the purchaser's property, in particular in the course of an inspection of the purchaser's property, shall be provided solely with regard to the technical and, in particular, structural feasibility of erecting the Fahrengold product.
The supplier shall not assume the function of site manager in the sense of building regulations.
7 Prices, terms of payment
7.1 The total price in EURO unless otherwise agreed written to be paid by the purchaser is stated in the order confirmation. This includes the price for all ordered modules of the Fahrengold product, the costs of delivery and the costs of assembly.
7.2 The total price shall include the applicable statutory value-added tax. Any other taxes, customs duties and fees as well as other public charges shall be borne by the purchaser.
7.3 The Purchaser shall transfer the total price free of charges to the Supplier's bank account stated in the order confirmation. Payment terms deviating from this must be agreed in writing (by letter, e-mail or fax) between the Supplier and the Customer.
7.4 The Purchaser shall pay the total amount of the invoice issued within five bank working days of the issue of the invoice. If partial payment has been agreed, the down payment shall be paid after the invoice has been issued (commercially rounded) within five bank working days after conclusion of the contract ("Down Payment"). The remaining total price shall be paid within five bank working days after completion of production and before delivery to the Purchaser. Otherwise, invoices shall be paid within 5 bank working days.
Upon expiry of the aforementioned payment periods, the customer shall be in default in each case. During the period of default, the purchase price shall bear interest at a rate of 5 percentage points (or 9 percentage points if the Purchaser is not a consumer) p.a. above the base rate. The supplier reserves the right to assert further damage caused by default. With respect to merchants, the Supplier's claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected.
7.5 The Customer shall only be entitled to set-off rights insofar as its claim has been legally established or is undisputed, or if the Customer sets off counterclaims from the same contract. The same applies to the right of retention, the effective exercise of which is also dependent on the counterclaim of the customer being based on the same contractual relationship. The right of the customer to assert his other claims against the supplier as his own rights in a separate legal dispute remains unaffected.
8 Retention of Title
8.1 The supplier retains title to the Fahrengold product (both to the individual modules and other components and, in the case of assembly, to the assembled garage) until all present and future claims of the supplier arising from the contract (hereinafter "secured claims") have been paid in full.
8.2 The goods subject to retention of title may not be pledged to third parties or assigned as security before the Secured Claims have been paid in full. The Purchaser shall notify the Supplier immediately in writing (by letter, e-mail or fax) if and to the extent that third parties seize the goods belonging to the Supplier.
9 Rights in case of delay and defects; liability
9.1 If a delivery has a material or legal defect ("defect") at the time of the transfer of risk, the Supplier shall first be obliged to remedy the defect within a reasonable period of time. This shall not apply if the Supplier is entitled to refuse subsequent performance on the basis of statutory provisions.
9.2 Subsequent performance shall be effected, at the option of the Purchaser, by remedying the defect (subsequent improvement) or by delivering new goods (subsequent delivery). In doing so, the Purchaser must grant the Supplier a reasonable period of time for subsequent performance. During the supplementary performance, the customer is not entitled to reduce the purchase price or to withdraw from the contract. If the supplier has unsuccessfully attempted to remedy the defect twice, the remedy shall be deemed to have failed. If the subsequent fulfilment has failed, the orderer is entitled to reduce the total price or to withdraw from the contract at his discretion.
9.3 The orderer may only assert claims for damages due to a defect if the subsequent performance has failed. The Purchaser's right to assert further claims for damages in accordance with the following paragraphs shall remain unaffected.
9.4 The Supplier shall be liable in accordance with the statutory provisions for damage to life, limb and health caused by a culpable breach of duty by the Supplier, its legal representatives or vicarious agents. Furthermore, the Provider shall be liable in accordance with the statutory provisions for other damages based on intentional or grossly negligent breaches of contract as well as fraudulent intent on the part of the Provider, its legal representatives or vicarious agents. Insofar as the scope of application of the Product Liability Act is opened, the provider shall be liable without limitation in accordance with its provisions.
The supplier is also liable within the scope of a quality and/or durability guarantee, provided that the supplier has given such a guarantee with regard to the delivered item. If damage occurs that is based on the fact that the quality or durability guaranteed by the supplier is missing and if this damage does not occur directly to the delivered item, the supplier is only liable for this if the risk of such damage is obviously covered by the quality and durability guarantee.
9.5 If damage due to default or due to a defect is based on the simple negligent breach of an essential contractual obligation, i.e. the simple negligent breach of an obligation the fulfilment of which makes the proper performance of the contract possible in the first place and on the observance of which the Customer may regularly rely, the Supplier's liability shall be limited to the damage foreseeable at the time of conclusion of the contract and typical for the contract. The same shall apply if the Purchaser is entitled to claims for damages instead of performance.
9.6 There shall be no further liability claims against the Supplier, irrespective of the legal nature of the claims asserted by the Purchaser against the Supplier.
10 Contractual right of withdrawal
10.1 If the erection of the Fahrengold product on the purchaser's property requires approval under public law, the purchaser shall have the right to withdraw from the contract in the event of a legally binding refusal of approval under the following conditions:
10.1(a) the Purchaser has duly applied for the permit, has duly exercised against the refusal of the permit and, in particular, has exercised in due time all legal remedies available at the respective stage of the proceedings to the extent that they have an overwhelming prospect of success (by way of illustration: if, for example, the Purchaser's application for a building permit is rejected by a German administrative authority, the Purchaser must file a legally admissible objection against this decision to the extent that there is an overwhelming prospect of success for the respective legal remedy in each case and/or file an action against the initial decision or the notice of objection. (b) the Purchaser shall file an appeal against the initial decision or the notice of appeal, as the case may be, and, if necessary, appeal to the courts);
10.1(b) the Purchaser proves to the Vendor by sending a copy of the notice of refusal and/or, in the case of an appeal, of the final decision concluding the proceedings (the decision shall be certified by a notary public in each case at the Vendor's request and translated into German or English if it is in another language) that the approval has been refused with final effect.
A right of withdrawal within the meaning of sentence 1 shall only exist if the permit has been refused for all possible locations or if it is clear from the decision concluding the proceedings that the permit would also be refused for the other possible locations.
10.2 If (a) it is technically impossible to erect the Fahrengold product on the customer's site, or (b) the total costs of manufacture, delivery and assembly of the Fahrengold product would exceed the total price due to the location or nature of the customer's site, either party has the right to withdraw from the contract.
10.3 If, in the case of clause 4.3, the purchaser fails to call for the Fahrengold product within twelve months of conclusion of the contract, the supplier shall be entitled to withdraw from the contract and to claim damages in lieu of performance, unless the purchaser proves to the supplier, at the latter's request and within one week, that the purchaser has applied for the necessary approval under public law and that the decision on the approval has not yet become final.
11 Final Provisions
11.1 Applicability of statutory provisions
References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
11.2 Notices and communication
Notifications and any communication must be made in writing (by letter, e-mail or fax). The contact details of the customer and the supplier listed in the order confirmation shall be deemed to be correct. The Purchaser and the Supplier are obliged to inform each other if their respective contact details change.
11.3(a) If the Purchaser's domicile or habitual residence at the time of conclusion of the contract is in Germany, the following shall apply:
The sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship, if (i) the Purchaser is a merchant, a legal entity under public law or a special fund under public law, or (ii) if the Purchaser moves its place of residence or habitual abode outside Germany after the conclusion of the contract or if this place of residence or habitual abode is not known at the time the action is brought, shall be the registered office of the Supplier. However, the Supplier shall also be entitled to bring an action at the Purchaser's general place of jurisdiction.
11.3(b) If the Purchaser's place of residence or habitual abode at the time of conclusion of the contract is not in Germany, the following shall apply:
If there is no case of Art.17 Brussels Ia Regulation or Art.15 LugÜ, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of the Supplier, although the Supplier shall also be entitled to bring an action at the general place of jurisdiction of the Purchaser.
In all other respects the statutory provisions shall apply.
11.3(c) Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
11.4 Applicable law
German substantive law shall apply to the legal relationships in connection with these General Terms and Conditions - without prejudice to Article 6 (2) sentence 2 of the Rome I Regulation and other mandatory statutory provisions - to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The prerequisites and effects of the above agreed reservation of title shall be governed by the law at the respective place of storage of the goods, insofar as the choice of law made in favour of German law should be inadmissible or ineffective under the respective law.
11.5 Severability clause and partial invalidity
Should any provision of these GTC be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected. The invalid provision shall be deemed to be replaced by a valid provision which comes as close as possible to the economic purpose of the invalid provision.