Conditions

19. June 2017/No Comments

TERMS OF SERVICE

Artdepartment Berlin GmbH “Area Container Buildings”

(Only valid in relation to entrepreneurs, legal entities under public law and special funds under public law.)

1. Scope

a) The following general terms and conditions apply exclusively to all our deliveries and services in the area of “container structures”. Conflicting (purchase) conditions only become valid if we have recognized them by means of a separate written declaration.

b) These general terms and conditions only apply to companies, legal entities under public law or special funds under public law.

c) Contractual deviations from the content of these general terms and conditions are only valid if they have been agreed in writing. The regulations of VOB / B only apply if this has been expressly agreed in writing in relation to the individual case.

2. Offer / Conclusion of contract

a) Our offers are non-binding. The contract is only concluded upon receipt of our written order confirmation by the customer, but no later than when the delivery is made.

b) Information about product data and product properties contained in sales brochures, offers and attached documents do not constitute guarantees or warranted properties of the product. They only become part of the contract if they are listed in the order confirmation or confirmed in other written agreements.

c) We reserve the right to deviate from the contract description in terms of construction if this appears technically necessary or sensible, insofar as it is reasonable for the customer and the value and usability of the goods are not impaired as a result.

3. Price / Payment / Set-off and Retention

a) Our prices are in euros, from the place of pre-assembly of the components, plus costs for packaging, transport and installation / assembly at the destination. Prices are generally plus the statutory value added tax.

b) Insofar as no other payment agreement has been made in the contract and the contractual maturity requirements are met, amounts invoiced by us are to be paid without deduction within 14 days of the invoice date.

c) If there is a period of more than three months between the contractually stipulated delivery time and the time of actual delivery / acceptance by the customer for reasons that result from the customer’s sphere of influence or risk, we are entitled to approximately this time to pass on any price increases that have occurred in the context of our purchase prices to the customer to a reasonable extent. The same applies in the opposite direction in the event that there are discounts within the scope of our purchase prices during this time.

d) If, for reasons that are within the customer’s sphere of risk (e.g. preparation of the building site, approval under public law), delays arise that lead to additional costs for us, e.g. the need to temporarily store contractual items, the resulting additional costs must be borne by the customer.

e) The customer is only entitled to offset against our due invoice claims or to assert a right of retention due to counterclaims if these counterclaims have been legally established, are undisputed or recognized by us.

4. Delivery, Transport, Assembly

a) Unless otherwise stated in the order confirmation or the type of service does not necessarily indicate otherwise (e.g. on-site assembly), the place of performance for our contractual deliveries and services is the headquarters of our company in Berlin. When delivering the contractual items to the customer’s destination, the customer bears the material risk, in particular also the transport risk, from the time we hand over the contractual items to the commissioned transport company.

b) The creation of construction clearance at the contractually specified installation site / assembly site is the sole responsibility of the customer. This applies in particular to the recovery of the necessary official permits, any necessary neighbor approval up to the creation of the load-bearing subsurface / load-bearing foundations including static evidence, if necessary.

If the customer should experience delays in the process of establishing the construction clearance, be it in terms of the legal requirements for approval, or in the actual execution, we are entitled to temporarily store the contractual items at a suitable location at the customer’s expense.

Insofar as a payment due date is tied to the time of delivery of the contractual items (also in the formulation, for example, “two weeks before delivery”), in this case the time of storage of the contractual item for the customer is to be set instead of the delivery of the contractual item to the customer.

c) Should we be in default of delivery with our contractual performance, we shall be liable to the customer in accordance with the statutory provisions, insofar as we are essential
Contractual obligations have been culpably violated and we or our representatives or vicarious agents are accused of gross negligence or intent. Except in the case of intent, our liability for damages is limited to the foreseeable, typically occurring damage and in the amount to a maximum of 0.5% of the delivery value per week of delay, a maximum of 5% of the total delivery value. The delivery value is determined according to the invoice amount of the main service net, excluding VAT and excluding additional costs such as planning or transport, installation, on-site assembly, etc.

Further legal claims of the customer – outside the area of damage caused by delay as such – remain unaffected.

5. Liability for defects

a) The customer is obliged to check the contractual items on delivery at the contractual destination in detail for defects and / or any deviations from the content of the contract in terms of quantity, size, materials and scope of equipment and to communicate any complaints to us immediately in writing. Defects recognizable upon delivery and / or deviations from the contractually agreed equipment that are not reported to us in writing immediately upon delivery can no longer be asserted against us afterwards. The regulation of § 377 HGB applies here.

b) The customer is aware that used containers from commercial shipping are used as the starting material for our products
Transport and storage show various signs of wear. Such signs of use are accepted by the customer and do not justify any claims for defects, unless the subsequent intended use of the container is permanently impaired
.

c) In the case of justified notices of defects and / or justified complaints about deviations in the contractually stipulated equipment, we are primarily entitled to rework, as far as this is technically possible. If the rework fails, the customer has to allow us a second attempt at rework. If this second attempt is also unsuccessful, the customer has other legal options (withdrawal from the contract and / or compensation). In this case, we shall only be liable to the customer for damages if we or our representatives or vicarious agents have acted with intent or gross negligence. Unless there is intent, our liability is limited to the replacement of the foreseeable, typically occurring damage. We are not liable for further, atypical damage processes – except in the case of intent.

Except in the case of willful intent or gross negligence, we are also not liable for further consequential damage caused by defects, in particular not for lost profit.

In the event of injury to life, body and health by us, by our legal representatives or by our vicarious agents, we are liable in accordance with the statutory provisions, as well as in the case of liability for dangerous situations (e.g. according to the product liability law).

d) Claims against us due to material defects in the delivered items become statute-barred after two years, unless the law prescribes other deadlines (e.g. according to § 438 Paragraph 1 No. 2 BGB (buildings and materials for buildings), according to § 478, 479 BGB (Delivery recourse) and § 634 a Para. 1 No. 2 BGB (construction defects).

In the case of delivery items made of container material, which are to be regarded as a building according to their nature, according to § 438 I No. 2 BGB or after being set up at the customer’s site in accordance with § 634 a I No. 2 BGB, the statutory limitation period of five years remains, unless the customer relocates the container construction that is the subject of the contract during the term of these five years to a location that differs from the originally contractually agreed location.

In the event that the subject of the contract is relocated by the customer to a location other than the one specified, the limitation period due to defects in our service is limited to a total of two years, starting from the handover of the contractual container construction to the customer at the first location specified in the contract.

If a contractual container construction is moved to another location within two years after the first delivery, our liability for material defects is limited to such material defects, the cause of which we or our representatives or vicarious agents have deliberately or grossly negligent, provided that these material defects do not result in an infringement caused by life, body or health. In the latter case, the statutory provisions apply.

6. Retention of title

a) Even after delivery and assembly at the customer’s premises, the contractual objects are subject to our retention of title until all of our due claims from the contractual relationship with the customer – possibly also from other delivery contracts – have been fully settled.

The customer is entitled to resell the goods subject to retention of title in the ordinary course of business, provided that he also reserves ownership to his customer until the purchase price has been paid in full and the subsequent customer agrees to the assignment of the local customer’s purchase price claim from this resale to us.

In the event of such a resale, the customer hereby assigns to us the purchase price claim against his buyer. We accept the assignment. The resale and the assignment of claims must be reported to us at the time of execution.

The same applies if the customer sets up the goods that are subject to retention of title on third-party land in such a way that ownership passes to the owner of the land on a legal basis. As a precaution for this case, the buyer already now assigns to us any claims for compensation against the property owner, regardless of the legal reason, up to the amount of the claims we are still entitled to against the customer. We accept the assignment.

As long as the contractual invoice price has not been paid to us in full, the customer is not entitled to assign or pledge the contractual item as security.

7. Copyright / other property rights

We reserve the property rights and copyrights to the design of our products as well as to all drafts, construction drawings, photographs and other documents made by us.

A second use of this design, these drafts, construction drawings etc. is expressly not permitted without our prior written consent.

8. Other

a) Insofar as the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or special fund under public law, Berlin is agreed as the place of jurisdiction for all legal disputes that arise directly or even indirectly from the contractual relationship between us and the customer. Jurisdictions that are designated as exclusive by law remain unaffected.

b) The law of the Federal Republic of Germany applies. The right of unsale is excluded.

c) The customer’s attention is drawn to the fact that we use electronic data processing for in-house processing of business transactions and for processing the business relationship, whereby customer data is also stored. We only use this customer data internally for contract processing.

d) Insofar as our contractual services also include the rental of furniture, e.g. to equip container structures, our general rental conditions apply in addition.