1. General Matters
German law shall apply. This choice of law shall not apply if it deprives the consumer of any mandatory provisions of the law of the state in which they have their usual place of abode. The GTC shall apply irrespective of whether we become a contracting party as contractor or customer.
We hereby object to application of the contracting party’s terms and conditions. This shall also apply if the business partner refers to its business or purchasing conditions via counter-confirmations or in any other manner. Deviations from our terms and conditions shall only be effective if confirmed by us in writing.
These terms and conditions shall replace any previous terms and conditions.
The GTC shall not apply to any contracts awarded in accordance with VOB/A or VOL/A.
2. Other Contract Bases
2.1 Offer and Order acceptance
Any offers shall be subject to change and non-binding until acceptance of the order. A contract with the contractor shall only be deemed entered into when the customer accepts an offer of the contractor without reservation or when the customer receives a written order confirmation from the contractor or when the contractor starts to perform the service. If the contractor issues any written order confirmation, this shall be decisive for the content and scope of the contract, except of explicitly agreed otherwise. If the customer’s order deviates from our offer, a contract shall be entered into only upon our confirmation.
Any drawings, illustrations, dimensions, weights, or other performance details shall only be binding if explicitly agreed in writing.
Any public statements made by third parties, in particular in advertising, regarding the product’s quality shall not be deemed guarantees of quality on the part of H. Schubert GmbH; except if explicitly agreed in writing.
The prices are subject to confirmation. Any orders shall be accepted only on the basis of the prices applicable at the time of receipt of the order by us. Unless otherwise agreed, the purchase price shall be paid within 10 days after delivery. Default interest shall be charged at a rate of 5% above the respective base interest rate per annum. We reserve the right to claim any higher default damages. If we claim any higher default damage, the customer shall have the right to prove to us that the claimed default damage was not incurred at all or at la significantly lower amount.
Any discounts granted as well as any sales and freight charges (if agreed) shall be forfeited in case of judicial or extrajudicial settlement proceedings, insolvency, and payment default of more than one month.
For successive delivery contracts and all orders on call, we shall charge the prices valid at the time of the call. This shall apply accordingly to any other orders, provided that the delivery is performed more than four months after the conclusion of the contract.
2.3 Delayed Delivery
The agreed delivery period shall be extended by the duration of the delay if the performance owed by us is delayed by force majeure, lawful strike, inability on the contractor’s part or that of one of its suppliers without any fault of its own or by unfavourable weather conditions.
If the delay takes for an unreasonably long time, either contracting party may withdraw from the contract without compensation. If the delivery cannot be made on the agreed date due to circumstances for which the customer is responsible, the risk shall pass to the customer at the time of receipt of the notification that the goods are ready for delivery. The customer shall bear the storage costs. We reserve the right to assert further costs from the delay.
2.4 Complaint of Defects
The customer must inform us of any obvious defects in our performance in writing within two weeks of delivery of the goods or upon acceptance of the performance. After expiry of this period, claims for defects due to obvious defects can no longer be asserted. This shall not apply if the customer is a consumer. The farther-reaching provisions in the case of commercial purchase shall remain unaffected. Tolerances and colour differences within a product shall not be considered defects. Environmental influences may affect the colour and shape, just as is the case for the original materials.
2.5 Limitation of Defects
The warranty period for contracts with contractors not involving construction work shall be one year. The limitation period for warranty for repair work that does not constitute construction work shall be one year, no matter the type of contractual partner. The provisions of this paragraph shall not apply in the cases of intent or gross negligence or if any claims are asserted for injury to life, limb, or health or if the seller has fraudulently concealed the defect or assumed a guarantee for the quality of the delivery item.
2.6 Implementation of Warranty
In case of justified notices of defect, we shall have the option of either repairing the defective delivery items or providing the customer with a replacement delivery in return for taking back the item subject to complaint. The customer shall not be due any reduction of the remuneration or rescission of the contract while we comply with our obligations to remedy the defects, except if the improvement has failed. If improvement or replacement is impossible, fails, or is refused, the customer may, at their discretion, demand a corresponding price reduction or declare rescission of the contract. Improvement shall be deemed failed after the second unsuccessful attempt, except if the nature of the item or the defect or other circumstances indicate otherwise. The above provisions under 2.6. shall not apply to consumer transactions concerning the purchase of movable goods.
2.7 Costs for Removal and Installation
The statutory provisions in the law on sales contracts for the application of removal and installation costs shall apply without restriction. We fully object to any deviations from the provision in § 439 (3) of the German Civil Code (Bürgerliches Gesetzbuch; BGB).
It must be possible to load the transport car from the side for pick-up at the imi plant.
Delivery shall require that the vehicle can drive directly to the building to be unloaded there. Additional costs caused by further transport routes or more difficult transport from the vehicle to the building shall be charged separately. Transports beyond the 2nd floor shall require provision of mechanical transport equipment by the customer. Stairs must be passable and protected against damage. If the execution of our work or the work of persons charged by us is obstructed by any circumstances for which the customer is at fault, the corresponding costs (e.g., working time and travel expenses) shall be invoiced.
We may demand an advance payment for partial services in the amount of the value of the services rendered if no individual payment plan has been agreed.
We shall be liable without limitation for any damage to life, limb, and health caused by negligent or intentional breach of obligations by our legal representatives or vicarious agents, as well as for damage covered by liability under the Product Liability Act (Produkthaftungsgesetz), and for any damage caused by intentional or grossly negligent breaches of contract and fraudulent intent by our legal representatives or our vicarious agents, notwithstanding the above provisions and the following limitations of liability. Where we have given any guarantee of quality and/or durability regarding to the goods or parts of them, we shall also be liable within the scope of such guarantee. However, we shall only be liable for damage based on the absence of the guaranteed quality or durability that does not occur directly on the goods if the risk of such damage is obviously covered by the guarantee of quality and durability.
We shall also be liable for damage caused by simple negligence as far as such negligence relates to the breach of contractual obligations for which compliance is of particular relevance for achieving of the contractual purpose (cardinal obligations). However, we shall only be liable as far as the damage is typically associated with the contract and foreseeable. We shall not be liable for simple negligent breaches of secondary obligations that are not essential to the contract. The limitations of liability from sentences 1 – 3 shall also apply as far as the liability for the legal representatives, executive employees, and any other vicarious agents is concerned.
Any further liability shall be excluded, no matter the legal nature of the asserted claim. As far as our liability is excluded or limited, this shall also apply to the personal liability of our employees, representatives, and vicarious agents.
3. Formal acceptance
The customer shall be obligated to accept the contractor’s services. Inessential defects shall not entitle the customer to refuse acceptance. In the case of separable partial services, the contractor may also demand partial acceptance. The customer shall be obligated to accept the contractor’s services within 14 days after completion and request by the contractor, except if the customer refuses acceptance during this period, stating at least one defect. If the customer does not accept the service within the set period in spite of the contractor’s request and in spite of being obligated to do so, the service shall be deemed accepted. If the customer is a consumer, the contractor commits to explicitly informing the customer of the consequences of acceptance not being declared or being refused without indication of defects together with the request for acceptance.
4. Liquidated Damages
If the customer terminates the contract for work in accordance with § 648 BGB, we shall be due an amount of 10% of the contract total or 10% of the remuneration for the part of the service not yet performed as compensation for damages. We may claim a higher amount subject to corresponding proof. The customer explicitly reserves the right to prove that a lesser damage has been incurred.
5. Maintenance, Inspection, and Care Notices
5.1 Please note that maintenance work must be performed for permanent function, in particular:
– Fittings and moving components must be checked and oiled or greased at need
– Sealing joints must be inspected periodically
– Interior and exterior coatings (e.g., windows, floors, stairs) must be treated again based on the type of paint or stain, weather exposure, and use
This work shall not be part of the scope of the order if not explicitly agreed otherwise. Neglected maintenance work may impair the service life and function of the components without giving any rise to claims for defects.
5.2 Professional installation of modern windows and exterior doors improves the building’s energy quality and makes the building envelope tighter. Additional requirements for ventilation of the building must be met in accordance with DIN 1946-6 in order to maintain indoor air quality and prevent mould growth. Any ventilation concept that may be necessary in this respect shall be a planning task that is not part of the order placed with the contractors. It must be arranged by the customer/builder in any case
5.3 Any inessential, reasonable deviations in the dimensions and executions (colour, thickness, and structure), in particular in case of repeat orders, are reserved where they are due to the nature of the materials used (solid woods, veneers, leather, fabrics, and similar) and customary or representing a product feature.
5.4 The customer shall ensure suitable climatic room conditions (humidity, temperature) for protection and preservation of the delivered components (e.g., windows, stairs, parquet flooring).
The customer must only set off claims against the contractor as far as their claims are undisputed, legally valid, or at least ready for a decision or in case of counter-claims from the same contractual relationship (this shall also include repayment claims after exercising the consumer’s right of revocation).
7. Reservation of Title
7.1 We retain title in any delivered items until full payment of the remuneration.
7.2 The customer shall be obligated to inform us of any seizure of the objects subject to retention of title without undue delay in text form, and to inform the lien holders of the retained title. The customer shall not have the right to sell, give away, pledge, or assign the items delivered to them subject to retention of title by way of security.
7.3 If the delivery is made for a business operation maintained by the customer, the items may be resold within the scope of proper business management. In this case, the customer’s claims against the purchaser arising from the sale are hereby assigned to us in the amount of the value invoiced for the goods delivered subject to retention of title. In case of resale of the items on credit, the customer shall retain title towards their purchaser. The customer hereby assigns any rights and claims arising from this retention of title towards their customer to us.
7.4 If any objects subject to retention of title are installed as essential components in the customer’s property, the customer hereby assigns the claims arising from any sale of the property or of property rights to us in the amount of the invoice value of the items subject to retention of title with all ancillary rights.
7.5 If any objects subject to retention of title are installed as essential components in a third party’s property by the customer or on behalf of the customer, the customer hereby assigns any claims for remuneration against the third party or the party concerned to us in the amount of the value invoiced for the items subject to retention of title with all ancillary rights. If the goods subject to retention of title are processed, combined, or mixed with any other objects by the customer, we shall be due shared title in the new object at the ratio of the value invoiced for goods subject to retention of title to the value of the other objects.
8. Title and Copyright
We reserve title and copyrights in any cost estimates, drafts, drawings, and calculations. They must not be used, reproduced, or made available to third parties without our consent. They must be returned without undue delay if the order is not placed.
9. Settlement of Disputes
We are neither willing not required to participate in dispute resolution proceedings before a consumer arbitration board.
10. Place of jurisdiction
If both contracting parties are merchants, the exclusive place of jurisdiction shall be the registered office of our company.