General terms and conditions of business
1. Validity of the terms and conditions
1.1 These terms and conditions apply to transactions with Container Galerie UG (limited liability) (hereinafter referred to as the seller) if the customer (hereinafter referred to as the buyer/orderer or client) is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). This also applies to deviating or contradictory terms and conditions of the customer. These do not become part of the contract even if the seller does not expressly object to them again.
1.2 In the case of ongoing business relationships, this also applies if the Seller has not expressly referred to this in the course of the relationship.
2. Offer, documents
2.1 Documents not expressly named in the offer, such as illustrations, drawings or weight and dimensions, are only approximate. Until the offer is accepted, all documents submitted remain the property and copyright of the seller; they may not be made accessible to third parties. A violation of this gives rise to claims for damages.
2.2 Obvious printing errors and mistakes in offers, order confirmations, price lists, etc. are only binding on the Seller to the extent of the corrected content.
3. Prices and payments
3.1 Unless otherwise agreed, prices are ex works or station of Container Galerie UG (limited liability) without loading plus the applicable statutory value added tax.
3.2 If the purchase price/market price for materials required according to the respective position of the offer (e.g. building materials, construction elements) that are to be delivered or provided after 4 months from the conclusion of the contract demonstrably increases by more than 5%, the agreed price will change according to the weighting of the material share in this position.
3.3 The Buyer is not entitled to withhold payments due to warranty claims or other counterclaims not recognized by the Seller.
3.4 If the Buyer is in default with an agreed payment within seven days after invoicing or other performance, the Seller may either insist on performance of the contract and
(a) the fulfilment of its own obligations until the payment of the
postpone outstanding payments or other services,
b) request a reasonable extension of the delivery period,
c) demand payment of the entire outstanding purchase price,
d) unless the buyer has a reason for relief, charge interest on arrears at a rate of 2% per month from the due date,
or declare withdrawal from the contract after granting a reasonable grace period.
3.5 The Buyer shall in any event reimburse the Seller for any reminder and collection costs incurred as further damages for delay.
3.6 If the buyer has not made the payment or other service owed upon expiry of the grace period pursuant to 4.2, the seller may withdraw from the contract by written notice. At the seller's request, the buyer must return any goods already delivered to the seller and compensate the seller for the reduction in value of the goods and reimburse all justified expenses that the seller had to incur in order to implement the contract. With regard to goods not yet delivered, the seller is entitled to make the finished or partially processed parts available to the buyer and to demand the corresponding share of the sales price for this.
4. Delivery period, delay in delivery and duty to cooperate
4.1 The Seller is entitled to make partial and advance deliveries.
4.2. If the buyer does not accept the goods provided in accordance with the contract at the contractually agreed place or at the contractually agreed time and the delay is not due to an act or omission on the part of the seller, the seller can either demand performance or withdraw from the contract after setting a grace period. If the goods have been segregated, the seller can store the goods at the buyer's expense and risk. The seller is also entitled to reimbursement of all justified expenses that he had to incur in order to perform the contract and which are not included in the payments received.
4.3 If the building materials or construction elements required for the execution of the object of purchase - in particular wood, steel, paint, mineral oil products, insulation materials, drywall profiles and drywall elements, pipes, gravel, sand, gypsum, bitumen, roofing felt or roof foil, copper, industrial metals - cannot be procured by the seller within the usual procurement times by the execution dates owed by him, the seller is entitled to an extension of the construction period and to a claim for reimbursement of additional costs incurred as a result of the extension of the construction period.
4.4 The extension of the construction period will be calculated according to the duration of the delay in delivery by the subcontractors plus an appropriate surcharge for the resumption of construction and any postponement to a less favourable time of year.
4.5 The Buyer may only assert rights arising from a delay in performance if he has given the Seller two written notices setting a reasonable deadline (at least 14 days each time) for performance.
4.6 If the execution of the contract is delayed due to the Buyer's failure to comply with or incorrect performance of his duty to cooperate - e.g. due to the lack of a building permit - or for reasons for which the Buyer is responsible, the Buyer shall pay interest to the Seller on the purchase price at the statutory default interest rate for the duration of the delay, starting ten days after the invoice is issued, whereby the Seller is not precluded from asserting further rights.
4.7 If the buyer is ultimately unable to fulfil his duty to cooperate (e.g. he does not receive a building permit), the buyer must pay 25% of the gross purchase price as compensation if neither he nor the seller is at fault, whereby the buyer reserves the right to prove that the damage was minor. In the event of particularly high damage, the seller reserves the right to claim proven higher damage instead of the flat-rate compensation. In this case, the provisions of Section 280 Paragraph 1 Sentence 2 of the German Civil Code (BGB) also apply.
4.8 Furthermore, any delay in providing cooperation is considered a significant breach of duty within the meaning of Sections 280, 281, 323 of the German Civil Code (BGB). If the buyer does not comply with his obligation to cooperate on time, the seller will request cooperation. If the buyer has still not complied with his obligation to cooperate within 2 weeks from the date of the letter of request, whether this is the buyer's fault or not, the seller can withdraw from the contract. In this case of withdrawal, the buyer will pay a flat-rate compensation of 25% of the gross purchase price if neither he nor the seller is at fault, whereby the buyer reserves the right to prove that the damage was minor. In the event of particularly high damage, the seller reserves the right to claim proven higher damage instead of the flat-rate compensation.
4.9 If the buyer withdraws from the contract before the seller has provided the services or if the contract is cancelled and the seller accepts the withdrawal, the buyer shall pay a flat-rate compensation of 25% of the gross purchase price. The seller reserves the right to prove that the damage is particularly high, and the buyer reserves the right to prove that the damage is less.
5. Retention and offsetting
5.1 The customer may only offset claims that are undisputed or legally established. The customer is also entitled to offset if he asserts complaints about defects or counterclaims arising from the same contract.
5.2 The customer is only entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
6. Transfer of risk, shipping/freight costs and installation of the purchased item
6.1 When the buyer receives notification that the goods are ready for dispatch, the risk is transferred to him. This applies regardless of whether the goods are dispatched from the place of performance. Shipping, including tolls, is at the buyer's expense.
6.2 The installation of the goods is at the buyer's risk; any crane and scaffolding costs are borne by the buyer; any costs for foundations and other preparations for installation, as well as any connection of supply lines and media, are the responsibility of the buyer.
7. Notices of defects and warranties
7.1 The buyer must inspect all delivered goods immediately and report any defects in writing within one week of delivery at the latest.
7.2 Claims for defects do not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability or in the case of natural wear and tear.
7.3 Minor deviations in the quality of the goods from the sample do not constitute a defect. Dimensional deviations are minor if the deviation does not exceed 5%.
7.4 If the Buyer or third parties carry out improper repairs or modifications, no claims for defects shall be valid for these or the resulting consequences.
7.5 If the delivered goods are defective, the seller has the right to choose between repair or replacement in accordance with Section 439 of the German Civil Code (BGB). Only if repair or replacement has not been attempted or has not been successful despite two written grace periods of at least four weeks each, does the buyer have the right to a reduction in price.
7.6 In the case of delivery of used containers, modular buildings, halls and used components, the warranty is excluded.
7.7 Any further warranty claims shall expire as follows: For the delivery of new containers, modular buildings, new halls and new components, the warranty period shall be two years.
7.8 For claims for damages in the event of intent and gross negligence as well as in the event of injury to life, body and health based on an intentional or negligent breach of duty by the Seller, the statutory limitation period shall apply.
8. Retention of title, compensation claims, enforcement
8.1 The seller reserves title to the goods delivered until all financial obligations of the buyer have been met. The buyer must comply with the necessary formal requirements to safeguard the retention of title.
8.2 The buyer is obliged to treat the item with care as long as ownership has not yet been transferred to him. In particular, he is obliged to insure it at his own expense against theft, storm, fire and water damage to the replacement value. If maintenance and inspection work must be carried out, the buyer must carry this out in a timely manner at his own expense. As long as ownership has not yet been transferred, the buyer must notify the seller immediately in writing if the delivered item is seized or subject to other interventions by third parties. If the third party is unable to reimburse us for the legal and extrajudicial costs of a lawsuit in accordance with Section 771 of the Code of Civil Procedure, the buyer is liable for the loss we incur.
8.3 The processing and treatment of the reserved goods always takes place for the seller, without the seller being obligated by this and without its ownership being lost as a result. If the buyer combines the reserved goods with other goods, the seller acquires ownership of the combined items, provided that their reserved goods remain the main item. If ownership of the reserved goods passes to the buyer as a result of combination, mixing or blending into another main item, the buyer hereby transfers joint ownership to the seller in the ratio of the value of the reserved goods to the value of his other main item at the time of transfer of ownership. If the buyer sells reserved goods, alone or together with goods not belonging to the seller, the buyer hereby assigns to the seller the claims arising from the resale in the amount of the value of the reserved goods with all ancillary rights and priority over the rest. The seller accepts the assignment.
8.4 If the buyer installs defect-free reserved goods as an essential component in his property and the seller thereby loses ownership, the buyer undertakes to grant a corresponding first-ranking land charge on the property with enforcement submission for the value of the reserved goods with ancillary claims. In the event that the installation takes place without the seller's consent, the buyer hereby assigns the claim against the third party arising from the connection with the property, as well as the claim from the contract underlying the connection, in the amount of the value of the reserved goods with all ancillary rights, including a claim to the granting of a land charge against the third party, to the seller, who accepts the assignment.
8.5 If the value of the securities granted exceeds the Seller’s claims against the Buyer by more than 20%, the Seller is obliged to retransfer securities subject to release at its discretion.
8.6 If goods that are not connected to a property are delivered for resale in the usual, proper course of business of the Buyer, the Buyer assigns to the Seller all rights arising from the resale in accordance with the preceding provision.
8.7 The Buyer is authorized to collect assigned claims, subject to revocation, only in the ordinary course of business.
8.8 In the event of seizure or other claims, the Buyer is obliged to assert the Seller’s right of ownership and to notify the Seller immediately.
9. Construction and advertising signs, reference object
9.1 The Seller is entitled to put up a construction sign and advertising sign free of charge during any construction period.
9.2 The buyer authorizes the seller to present the property in the seller's advertising materials, including by means of photos, as a reference property and to allow the seller's customers to inspect the property. This applies to both exterior and interior shots as well as exterior and interior inspections.
10. Limitation of Liability
10.1 The seller is liable for information, advice and all claims for damages and non-contractual claims of the buyer only insofar as these arise from intentional or grossly negligent actions of the seller or his vicarious agents. For actions of vicarious agents and in the event of a breach of a material contractual obligation, the seller is only liable to the amount of the purchase price, and in any case not beyond the typical foreseeable damage. Alleged damage must be proven by the buyer.
10.2 Excluded from the exclusion of liability are claims for damages due to injury to life, body or health, for damage to goods that are not the subject of the contract, and claims for damages resulting from the violation of essential contractual obligations. Essential contractual obligations are those whose fulfillment is necessary to achieve the purpose of the contract.
10.3 The object of purchase only offers the level of safety that can be expected on the basis of approval regulations, operating instructions, the seller’s regulations on handling the object of purchase – in particular with regard to any mandatory inspections – and other information provided
10.4 Provisions of the Product Liability Act (ProdHaftG) remain unaffected.
10.5 All claims for damages arising from defects in deliveries and/or services must – unless the defect is expressly acknowledged by the Seller – be asserted in court within one year after the expiry of the contractually agreed warranty period, otherwise the claims expire.
11. Industrial property rights
11.1 The buyer guarantees that the seller will not infringe any patents, copyrights or other industrial property rights of third parties when fulfilling the contract through drawings or instructions provided by the buyer. The buyer shall indemnify the seller against all claims and costs asserted against the seller as a result of such infringements within the scope of the contractual execution of the order.
12. Place of performance, place of jurisdiction
12.1 This contract and the entire legal relationship between the parties are subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
12.2 The place of performance and exclusive jurisdiction for all disputes arising from this contract is the registered office of Container Galerie UG (limited liability). The place of jurisdiction is Bad Homburg vd Höhe.
