General terms and conditions for our supplies and services
§1 - General – Scope
- These general terms and conditions apply to our offers and contracts for supplies and services together with consulting services in business transactions with non-consumers in the terms of § 310 (1) BGB (German Civil Code). The purchaser's own general terms and conditions are contradicted. They only become binding if confirmed by us in writing. Our offers, brochures, price lists and other documentation are not binding with regard to prices and delivery possibilities.
- Placed orders only become binding on being confirmed by us in writing. When orders are carried out immediately, the delivery note or commercial invoice is deemed to be the order confirmation. Order confirmations must be reviewed immediately.
- We will endeavour to give consideration of any retrospective changes made by the purchaser. We are however not under any obligation in this respect. If work on the order has already begin (e.g. cutting, processing or similar), then such consideration is no longer possible. If the changes are implemented nevertheless, this shall result in additional costs.
§ 2 - Technical details about the product
- All details such as dimensions, weights, illustrations, descriptions, calculations, installation diagrams and drawings in pattern books, price lists and other printed matter are only approximate; these details are given as accurately as possible but are not binding for us. The same applies to details of the factories. Samples and patterns describe the average quality.
- It must be presumed that the commercial purchaser has the necessary state-of-the-art know-how about the physical behaviour and characteristics of glass or multipane insulation glass. The following rules also apply:
- technical guidelines
- tolerances manual
- other guidelines and technical bulletins published in the Download Centre on our website www.glas-nowak.de
- supplementary terms of delivery
- valid price lists
- The following guidelines apply to assessing the visual quality of our glass:
- Guidelines for assessing the visual quality of glass for the construction sector
- Guidelines for assessing the visual quality of enamelled and screen printed glass
- Technical bulletin "Visual assessment of transoms in the pane cavity"
- VFF technical bulletin "Colour uniformity of transparent glass in the construction sector"
- Complaints are only recognised and processed on the basis of these guidelines.
- Glass has an intrinsic colour which becomes more apparent, the thicker the glass is. Furthermore, specific batch-related colour deviations are possible. In the case of coated glass, the colour may appear different depending on whether looking through or at the glass. Colour fluctuations are possible and permitted provided that they comply with DIN EN410.
- The purchaser must state the glass thicknesses. We ascertain glass thicknesses on the basis of a computer software deemed suitable for this purpose among experts. However, these are merely recommendations and not a substitute for structural calculation for the specific building and project. The purchaser must check the recommended glass thickness, particularly with regard to the prevailing wind or snow loads.
§ 3 - Standards technical conditions of sale
- Public functional data of function glazing, e.g. heat insulation (Ug value), solar control (g-value), soundproofing (Rw-C? and Ctr-value) etc. are based on the valid standards and the framework conditions stated in the standards. The framework conditions in the installation situation deviate from the standard conditions, e.g. other pane size, other pane configuration, other temperatures, etc. Such deviations are permissible and do not constitute grounds for warranty claims.
- The purchaser must heed all technical data and explanations together with instructions for use and installation published and distributed by the manufacturer. We do not assume any warranty on failure to comply with these specifications.
- Insulation glass can be subject to interference phenomena, double pane effects caused by barometric conditions, anisotropic effects [ESG] and condensation on the outer surface. These physical effects are technically unavoidable and do not constitute a fault.
§ 4 - Instructions for glazing
- The currently valid guidelines issued by the glazier trade (Hadamar) must be heeded together with the following regulations
- Guidelines of ift-Rosenheim (www.ift-rosenheim.de)
- Guidelines and technical bulletins in the Download Centre on our website www.glas-nowak.de, such as:
- Guideline for handling multipane insulation glass (BF)
- Glazing guidelines ISOPANE alarm glass
- Guidelines for using triple thermal insulation glass (BF)
- BF technical bulletin on material compatibility and insulation glass (material compatibility/plasticiser migration)
- BF technical bulletin ESG-H - a regulated, externally monitored construction product on the highest safety level
§ 5 - Prices, conditions of payment
- The prices apply ex works or ex warehouse. If no specific remuneration is agreed, the remuneration generally demanded by us applies on the day of delivery. The pane surface is calculated for the specific product according to our valid price list. Packaging, insurance and other shipping costs are not included in the listed prices and offer prices. Our offers are based on the purchaser's specification without knowledge of the local conditions. The stated energy costs can change within the offer validity period or while the order is being completed if the energy cost surcharge is redefined. Statutory value added tax is stated separately in the invoice.
- If the supply or service takes place four months or more after concluding the contract, the contract partners undertake to renegotiate the price in the event of changes to costs, wages etc., giving due consideration to the changes in this process.
- We are entitled to demand payments on account to an appropriate extent. Furthermore, we are allowed to provide partial services insofar as this is reasonably acceptable for the purchaser. In this case, the purchaser is obliged to make immediate payment for the provided partial service. Payments are due for payment at the latest on handover of the supply or service, but at the latest 30 days after the invoice date. Payments will always be used to settle the oldest payable accounts plus the default interest accrued thereon. Discounts will not be granted if the purchaser is in arrears with his payments in respect of earlier deliveries.
- Special agreement is always required for payment by cheque or bill of exchange. They are only accepted as conditional payment.
- In the event of payment after the due date, interest is charged on the arrears up to 9 percentage points above the official basic rate of interest (§ 247 BGB). The interest for default shall be set higher or lower if we provide evidence of a higher interest rate or the purchaser provides evidence of a lower rate. Bank charges, discounting and collection fees connected with the acceptance of bills of exchange shall be paid by the purchaser.
- In the event of substantial deterioration in the financial circumstances of the purchaser indicating that the demand for payment is at risk due to the lack of financial solvency on the part of the purchaser, we are entitled to refuse performance pursuant to § 321 BGB until advance payments have been made or appropriate collateral provided (e.g. bank guarantee). Any partial deliveries not yet supplied or completed shall become due for immediate payment and not delivered until after
payment has been made.
- Offset is permitted only with regard to undisputed or legally binding counter claims. A right of retention based on earlier or other business transactions as part of the current business relationship cannot be asserted. Unilateral deductions from invoices are not permitted; this also applies to the disposal of packaging materials or transport packaging.
- Discount is granted – if agreed – only on the net amount and particularly not on costs, freight etc.
§ 6 - Performance, delivery
- Our deliveries in commercial transactions shall be made subject to correct and punctual deliveries to NOWAK GLAS. Wishes expressed by the purchaser with regard to the delivery date shall be given due consideration where possible but are not binding. Any agreed delivery date commences only after receiving all necessary documents (drawings, dimensions, stencils, etc.). Where agreed, payments on account can also be defined as prerequisite for performance. A performance or delivery date is extended appropriately - even with a delay - on the occurrence of an act of God and all unforeseen hindrances occurring after conclusion of the contract for which we are not answerable (particularly operational disruptions, strikes, lock-outs or disruptions to traffic routes), insofar as such hindrances have a demonstrably material influence on the intended performance or delivery. This also applies if these circumstances occur with our upstream suppliers, suppliers or subcontractors. We shall inform the purchaser as soon as possible about the start and end of such hindrances. The purchaser can demand that we declare whether we want to withdraw from the contract or make delivery within an appropriate period. If we fail to make an immediate declaration, the purchaser can withdraw from the contract. Compensation is ruled out in such cases.
We shall in no case be liable for delays caused by our upstream suppliers or missing deliveries. However, we undertake to assign to the purchaser any compensation claims on the upstream supplier.
- Our deliveries are made ex warehouse or ex works. The risk passes to the purchaser on handover to the carrier, regardless whether the carrier has been ordered by the purchaser, manufacturer or by us. This also applies to transport with our vehicles, to free and carriage-paid deliveries. We can assign to the purchaser claims against the forwarder or the forwarder's liability insurance in a separate agreement. Defects are to be noted on the delivery note immediately on unloading the consignment.
- If transport is carried out with the manufacturer's own vehicle or trucks, handover of the consignment takes place at the latest as soon as it is made available to the purchaser on the truck at the delivery site; a properly surfaced access road is prerequisite here. If the driver is the opinion that the access road is impassable, handover shall take place where troublefree arrival and departure of the vehicle is guaranteed.
- Unloading is solely the purchaser's concern: the purchaser must ensure that suitable unloading equipment is provided together with the necessary workers. Charges will be made for waiting times. If nevertheless the purchaser demands assistance in unloading (including unloading equipment), further transport or installation, then this workload will be invoiced separately. However, any involvement in such work does not constitute the assumption of any additional liability or transfer of risk. The risk of breakage is assumed by the purchaser in charge of the glass at the time of breakage. In particular when delivering the panes to the building site on racks, explicit attention is drawn to the fact that the delivered consignment must be protected from direct exposure to solar radiation.
- Packaging is provided not item for item but solely in accordance with production-related aspects. The unit of packaging length is always defined by the largest dimension.
- If we take the consignment into storage because of a delay in acceptance, the risk of deterioration and/or loss of the consignment is transferred to the purchaser. Corresponding storage fees can be invoiced in addition. The commercial invoice becomes due for payment when goods are taken into storage because of a delay in acceptance.
- Costs will be charged for the return of models and samples and for ascertaining the order parameters on the basis of a stipulated model/sample. Costs will be charged for the work involved in evaluating digital material that has been provided. No warranty is assumed for glass sent by the purchaser for processing.
- Deliveries under the minimum order value will be subject to a surcharge to make up the minimum order value. If the purchaser demands inspection of the delivered goods on site, the incurred costs will be charged insofar as the results of the inspection reveal no fault for which we are answerable.
§ 7 - Liability for material defects, statute of limitations
- In view of the special properties of glass, the purchaser is obliged to inspect the delivery immediately without culpable delay. All apparent and/or detected faults, incorrect quantities and incorrect deliveries must be noted on the delivery note. Other duties of the entrepreneur pursuant to § 377 German Commercial Code (HGB) remain unaffected. Deviations in dimensions, contents, thicknesses, weights and colours resulting from the production process are permitted within the framework of the tolerances customary in the sector, unless a quality guarantee applies pursuant to § 443 BGB.
- If a defect is ascertained, the purchaser may not dispose of the goods until agreement has been reached about processing the complaint. If in any doubt, an expert from the glazier trade is to be appointed to assess the goods by the Chamber of Commerce and Industry at the buyer's place of business. If installation is carried out in full knowledge of the complaint, any warranty claim shall be null and void unless the purchaser has explicitly reserved the right to make such claims.
- The purchaser is obliged to give us an opportunity to ascertain the reported defect on site. Faulty panes shall be returned to us, even if the fault has been confirmed on site. The return delivery must be documented with corresponding shipping documents that are endorsed to confirm receipt of the goods. Replacement delivery shall be invoiced until the return delivery is received. The credit note shall not be issued until the complaint has been recognised as such in the factory. The warranty becomes null and void in the event of culpable refusal to return the goods. The same applies to incorrect handling/packaging of the returned goods so that the condition thereof deteriorates.
- In the case of justified complaints, we shall proceed with subsequent delivery or we shall deliver a replacement, at our choice. Slight deviations from the agreed quality or immaterial impairment of usability do not justify any rectification claim on the part of the purchaser.
- The costs involved in rectification, particularly transport and travel costs, labour and material costs, shall not be paid by us insofar as these result from the fact that the purchased goods were removed after delivery to another site than the consignee's branch, unless such removal corresponds to the proper use of the goods.
- This does not affect any rights of recourse pursuant to §§ 478, 479. These only exist to the extent that the claim by the consumer was justified and only in the statutory scope, but not for goodwill arrangements not agreed with us. They presume compliance with the beneficiary's own obligations. The purchaser shall only be allowed to withdraw from the contract after a period of grace of three weeks has expired in which the defect has not been rectified. The period of grace must be stated in writing. It must include an understandable description
of the defects.
- Warranty claims against manufacturers who are entitled only to make improvements for actual or legal reasons shall be assigned to the purchaser for assertion.
- We warrant that our products are free of faults for a period of twelve months from delivery, insofar as the purchaser has not given us a timely report of the defect. This does not apply if longer periods are stated by law pursuant to § 438 (1) 2 BGB (in relation to a building and things used for a building), § 479 BGB (limitation of recourse claims) and § 634 a (1) 2 (defects in the case of a building).
§ 8 - Purchaser's liability
- The purchaser shall reach agreement with his final customer at least on the guidelines for assessing the visual quality of glass for the construction sector and of enamelled and screen printed glass to ensure consistency of the appraisal criteria in the event that any defects are assessed by an expert. Any faults assessed outside these appraisal criteria cannot be replaced.
- Apart from the claim to improvement, replacement delivery or withdrawal, the purchaser cannot assert any further warranty claims. We are not be liable for damage that does not affect the delivered item itself. In particular we are not liable for the purchaser's lost profit or other financial loss. The liability is limited to damage that we, at the point in time of concluding the contract, could foresee as a possible consequence of a breach of contract or should have been able to foresee when applying due
care and attention.
- The costs involved in rectification, particularly transport and travel costs, shall not be paid by us insofar as they result from the fact that the purchased item was removed after delivery to another site than the site of the professional activity or commercial establishment of the consignee.
- This liability disclaimer shall not apply if the damage has been caused by wilful intent or gross negligence, also on the part of a legal representative or vicarious agent.
- The liability limitations do not apply to any claims from the purchaser resulting from product liability and in the event of injuries to life and limb or loss of life on the part of the purchaser for which we are answerable. The liability restrictions also apply to the personal liability of our employees, workers, personnel, representatives and vicarious agents.
- In the event of liability for ordinary negligence, our compensation obligation is limited to the coverage arising from the product liability insurance, even where the breach of cardinal obligations is concerned.
§ 9 – Right of withdrawal
- We are entitled to withdraw from the contract for good cause. Good cause applies in particular to the lack or loss of creditworthiness or solvency on the part of the customer. Furthermore, good cause also applies to operational disruptions caused by an act of God or hindrances for which we are not responsible, such as uprising, strike, lock-out or fire.
§ 10 – Retention of title
- We retain the title to the goods until complete payment of the purchase price. With regard to goods procured from us by the purchaser in the framework of an ongoing business relationship, we retain the title to the goods until settlement of all our payables from the business relationship including payables arising in future, even those payables from simultaneously or subsequently concluded contracts. This also applies if we have transferred individual or all payables to a current account where the balance has been established and is acknowledged.
- If the purchaser is in breach of contract, particularly in arrears with payments, we are entitled to gain access to the purchaser's premises and to recover the goods or to mark them for this purpose.
- The purchaser proceeds with any processing of the goods on our behalf, without resulting in any obligations for us. In the case of processing or combination with third-party items not belonging to us, we acquire co-ownership of the new product in proportion to the ratio of the invoice value of the goods under retention of title to the other items at the point in time of processing. If the purchaser acquires sole ownership pursuant to § 947 (2) BGB, the contract partners
agree that the purchaser grants us co-ownership of the new product in the above-mentioned ratio. The new product kept free of charge for us by the purchaser consists of the goods under retention of title in the meaning of this clause.
- The purchaser may only sell the goods under retention of title in customary business transactions subject to his normal terms and conditions of business. He is only entitled and authorised to sell the goods under retention of title on condition that the payables from selling said goods are assigned to as stated in the following paragraphs. The purchaser is not entitled to dispose of the goods under retention of title in any other way. The purchaser's payables from selling the goods under retention of title are assigned to us now already including all ancillary rights, regardless of whether the goods under retention of title are sold without or after processing, mixing or combining or whether they are sold to one or several customers.
- In the event that the goods under retention of title are sold by the purchaser together with other goods not belonging to us, the payables from the sale including all ancillary rights are only assigned to us up to the amount of the invoice value of the goods under retention of title that have been sold in each case. If the goods under retention of title are sold, the payables are only assigned to us up to the amount of our co-ownership share of the sold product or the sold stocks. If the purchaser users the goods under retention of title to fulfil a contract for work or a contract for work and materials, the payables from the contract for work or contract for work and materials are assigned to us
in advance as stipulated in the preceding paragraphs. We accept this assignment.
- The purchaser is entitled to collect payables from the sale until such permission is revoked by us, which shall be permissible at any time; we shall only make use of this right of revocation in the event of default in payment. The purchaser is not entitled to assign the payables under any circumstances. We can insist that the purchaser informs his customers that the payables have been assigned to us if we have not done so ourselves. The purchaser shall give us the information and documents needed for collection, which may include stating the names and addresses of debtors and construction sites.
- It is prohibited for the goods under retention of title to be pledged or assigned as collateral. The purchaser must inform us immediately of any possible seizure or encroachments by third parties. The third party must be informed that the goods under retention of title belong to us. If the realisable value of the collateral in our favour exceeds the payables by altogether more than 20%, we shall release the surplus collateral at the purchaser's choice on his request.
§ 11 - Shipping on transport racks - disposable packaging
- Deliveries shall be made on transport racks. The purchaser is obliged to register and keep a record of the racks and to return them to us. The racks can only be returned during business hours. The returned disposable packaging must be clean, free of foreign substances and sorted according to the different packaging types. Otherwise we are entitled to demand a refund for the additional costs incurred in disposal.
- The return of our reusable racks is based on the Nowak Glas special terms and conditions for shipping on reusable means of transport
(to the special terms and conditions)
§12 - Place of fulfilment, place of jurisdiction
- The place of fulfilment and sole place of jurisdiction for deliveries and payments (including any legal action relating to cheques and bills of exchange) and for all resulting disputes is at our registered place of business insofar as the purchaser is an entrepreneur, legal person under public law or special fund under public law. However, we are also entitled to take legal action against the purchaser at his place of jurisdiction.
- Subject to the laws of the Federal Republic of Germany with the exclusion of the UN Convention on Contracts for the International Sale of Goods; this also applies to contracts with foreign companies/businesses.
§13 - Data protection
- The purchaser is aware that we save data from the contract relationship
pursuant to § 28 of the Federal Data Protection Law for the purpose of data processing
and that we reserve the right to send the data to third parties insofar as
this should be necessary to fulfil the contract.
§ 14 - Miscellaneous - severability clause
- Should any of the above provisions be invalid, this shall not affect the validity of the other provisions. The invalid provision is to be replaced by another clause that comes as close as possible to the legal and financial meaning of the invalid provision.
as of 4/2015