General terms and conditions
General Terms and Conditions of Noventis - Walter Solbach Metallbau GmbH for use towards entrepreneurs
§ 1 General, scope of application
(1) Our deliveries, services and offers are made exclusively on the basis of these terms and conditions (including the additional terms and conditions for work and services). These shall therefore also apply to future business relationships, even if they are not expressly agreed again. Counter-confirmations of the customer with reference to his terms and conditions are not valid.
(2) The GTC in their respective version shall also apply as a framework agreement for future contracts with the same customer, even if they have not been expressly agreed again; we shall inform the customer immediately of any changes to our GTC in this case.
(3) The contractual relationship with our customer shall be governed exclusively by these GTC. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that we expressly agree to their validity. This requirement of consent shall also apply if we carry out the delivery to the customer without reservation in knowledge of the customer's GTC.
(4) Legally relevant declarations and notifications to be made to us by the customer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
§ 2 Offer and conclusion of contract
(1) Our offers are subject to change and non-binding. We reserve the right to make technical changes to the products as well as changes in shape and color within the bounds of what is reasonable. This shall also apply if we have provided the customer with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form. Our existing property rights and copyrights thereto shall remain unaffected.
(2) In the case of individual custom-made products, the production drawing prepared by us and checked by the customer shall be solely authoritative. The customer shall return them to us with a note of approval within five working days of receipt by him. If the return is not made within five working days, it shall be deemed to be a production drawing. Subsequent change requests will be taken into account as far as possible; the customer shall bear the additional costs associated with this.
(3) Verbal agreements, promises, assurances and guarantees made by our employees in connection with the conclusion of a contract shall only become binding upon our written confirmation.
(4) The order of the goods by the Customer shall be deemed a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 14 days of its receipt by us.
(5) Acceptance may be declared either in writing, for example by sending an order confirmation, or by delivery of the goods to the customer.
§ 3 Prices
(1) Unless otherwise stated in the order confirmation, prices are ex warehouse plus statutory value added tax. Work and services shall be invoiced on a time and material basis in accordance with our generally applicable rates.
(2) Transportation and packaging costs shall be charged separately. Any customs duties, fees, taxes and other public charges shall be borne by the customer. If the service is charged on a time and material basis, travel time and travel costs will be charged additionally.
(3) Delivery "free truck unloading point" presupposes that the location in question can be reached on an access route that is easily accessible for trucks.
(4) The prices of our offer shall apply. We reserve the right to increase prices in accordance with cost increases that have occurred due to collective bargaining agreements or material price increases.
§ 4 Terms of payment, invoicing of partial services
(1) Unless otherwise agreed, our invoices are payable within 30 days of the invoice date without deduction. We are at liberty to apply other terms of payment on a case-by-case basis, in particular for first deliveries. If the customer defaults on payment, we shall be entitled to charge interest on arrears at the statutory rate. If a higher damage caused by delay can be proven, we are entitled to claim this.
(2) We reserve the right to increase the prices for contracts with an agreed delivery period of more than 4 months in accordance with the cost increases that have occurred due to collective wage agreements or material price increases.
(3) The customer shall only be entitled to rights of set-off and retention if its counterclaims are undisputed or have been finally determined by a court of law.
(4) If it becomes apparent after conclusion of the contract that our claim to the agreed price is jeopardized by the customer's inability to pay or creditworthiness - for example by an application to open insolvency proceedings or by circumstances of which we become aware that call the customer's creditworthiness into question - we shall be entitled to demand reasonable advance payments or the provision of security. In accordance with the statutory provisions, we are entitled to refuse performance and - if necessary after setting a deadline - to withdraw from the contract. In the case of contracts for custom-made products, we can declare our withdrawal immediately. These measures serve to secure our claim to the agreed price.
(5) Partial services with corresponding invoicing are permissible insofar as this is not unreasonable for the customer. If the delivery is delayed for reasons for which the customer is responsible, we shall be entitled to invoice a progress bill in the amount of 80% of the net order value.
§ 5 EU - import turnover tax
(1) Insofar as the Customer is domiciled outside the Federal Republic of Germany, the Customer shall be obliged to comply with the import turnover tax regulations of the European Union. He has provided us with his VAT identification number and, if applicable. to notify them of any changes without being asked to do so. Upon request, he is obliged to provide information about his capacity as an entrepreneur, the use and transport of the delivered goods and for the purposes of statistical reporting requirements. Furthermore, the customer is obliged to compensate us for the effort and costs incurred due to omitted and / or inadequate information on import VAT.
(2) We shall not be liable for the consequences of inadequate or omitted information provided by the customer regarding import VAT, unless we are charged with intent or gross negligence.
§ 6 Retention of title
(1) Until all claims (including all current account balance claims) to which we are entitled against the customer now or in the future for any legal reason have been satisfied, we shall be granted the following securities, which we shall release on request at our discretion, provided that their value exceeds the claims by more than 20% on a sustained basis.
(2) The goods shall remain our property until full payment has been made. The customer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default. Pledges or transfers of ownership by way of security are not permitted.
(3) The customer hereby assigns to us in full by way of security all claims arising from the resale or any other legal grounds (insurance, tort) in respect of the reserved goods, including all current account balance claims. We revocably authorize the customer to collect the claims assigned to us in his own name. This direct debit authorization can only be revoked if the customer does not properly meet his payment obligations.
(4) In the event of access by third parties to the reserved goods, in particular seizures, the customer shall draw attention to our ownership and inform us immediately so that we can enforce our ownership rights.
(5) In the event of breach of contract by the customer, in particular default of payment, we shall be entitled to take back the reserved goods or, if necessary, to demand assignment of the customer's claims for restitution against third parties. If we take back or seize the reserved goods, this shall not constitute a withdrawal from the contract in the case of merchants. For non-merchants (consumers), ownership of the goods shall only pass to the customer once the purchase price has been paid in full.
(6) If the realizable value of the securities exceeds our claims by more than 20%, we shall release securities of our choice at the customer's request.
§ 7 Warranty
(1) The statutory provisions shall apply to the Customer's rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. We pass on the warranty conditions of the manufacturers of products supplied by us to the customer in full, but without being liable for them ourselves.
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. The product descriptions designated as such (including those of the manufacturer), which were provided to the customer prior to his order or were included in the contract in the same way as these GTC, shall be deemed to be an agreement on the quality of the goods. We shall not be liable for the only insignificant deviation from the agreed quality in the case of only insignificant impairment of the usability. For products that show a defect immediately after their arrival at the customer, the customer can claim replacement with the same goods. If an exchange is not possible, the value of the goods will be credited against a return.
(3) If no quality has been agreed, the assessment of whether a defect exists shall be based on the statutory provisions. We are not liable for public statements made by the manufacturer of supplied parts or other third parties. In the event of a warranty claim, we shall, at our discretion, either repair or replace the goods.
(4) Claims for defects on the part of the customer presuppose that he has fulfilled his statutory obligations to inspect the goods and give notice of defects. If a defect becomes apparent during the inspection or later, we must be notified of this in writing without delay. Irrespective of this obligation to inspect and give notice of defects, the customer shall immediately notify us in writing of any obvious defects, including incorrect and short deliveries. If the customer fails to properly inspect the goods and / or notify us of defects in a timely manner, our liability for the defect in question shall be excluded.
(5) The customer shall first give us the opportunity to remedy the defect within a reasonable period of time before asserting any further claims or rights. In this case, we have the choice - taking into account the interests of the customer - between repair and replacement.
(6) We are entitled to make the subsequent performance owed dependent on the customer paying the price due. The customer may, however, retain a reasonable part of the price in relation to the defect.
(7) The customer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the customer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor the re-installation if we were not originally obliged to install it.
(8) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs, if a defect is actually present. However, if a request by the customer to remedy a defect turns out to be unjustified, we may demand reimbursement of the resulting costs from the customer. Liability for normal wear and tear is excluded.
(9) If the supplementary performance has failed or a reasonable deadline to be set by the customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may withdraw from the contract or reduce the price. However, in the case of an insignificant defect, there is no right of withdrawal. Warranty claims against us are only available to the direct contractual partners and are not transferable.
(10) Claims of the customer for damages or reimbursement of futile expenses exist only in accordance with § 8 and are otherwise excluded. Delivered items must be accepted by the client, even if they have minor defects. The right to rectification remains unaffected.
§ 8 Limitation of liability
(1) Unless otherwise stated in these GTC, we shall be liable for a breach of contractual and non-contractual obligations in accordance with the applicable statutory provisions.
(2) We shall only be liable for damages - irrespective of the legal grounds - in the event of intent and gross negligence. Claims for damages arising from positive breach of contract, from culpa in contrahendo and from tort are excluded both against us and against our vicarious agents, except in cases of willful misconduct or gross negligence.
In the event of simple negligence, we shall be liable a) for damages resulting from injury to life, limb or health,
b) for damages resulting from the breach of an essential contractual obligation, the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the customer regularly relies and may rely; in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damage. This also applies to claims for damages in lieu of performance, but only to the extent that compensation for indirect or consequential damages is demanded, unless the liability is based on a warranty intended to protect the customer against the risk of such damages.
(3) The limitations of liability resulting from paragraph 2 shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods or for claims of the customer under the Product Liability Act.
(4) The customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty.
(5) The above provisions shall also apply to the personal liability of our employees, representatives and vicarious agents. Any liability shall be limited to the damage foreseeable at the time of conclusion of the contract; any liability on our part under the Product Liability Act and other claims arising from manufacturer's liability shall remain unaffected in any case. Claims for damages due to injury to life, limb or health of the customer also remain unaffected.
§ 9 Delivery, Transfer of Risk, Acceptance
(1) Delivery shall be ex warehouse. This is the place of performance of all contractual services and consideration. At the request and expense of the customer, the goods will be shipped to another destination (mail order purchase). Unless otherwise agreed, we are entitled to determine the mode of shipment.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon handover. In case of shipment, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the customer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment.
(3) Insofar as acceptance has been agreed, this shall be decisive for the time of transfer of risk. Commissioning or use in accordance with the purpose of the contract shall be deemed acceptance. An insignificant deviation from the agreed performance characteristics and acceptance criteria shall not entitle the customer to refuse acceptance. Our obligation to correct errors remains unaffected. In all other respects, the statutory provisions of the law on contracts for work and services shall apply mutatis mutandis to an agreed acceptance.
(4) If delivery is delayed for reasons for which the customer is responsible, we shall be entitled to charge the customer storage costs of 0.5% of the net price of the goods for each commenced week of storage time, commencing one month after notification of readiness for delivery.
§ 10 Delivery period and delay in delivery
(1) We shall state the expected delivery period in the order confirmation. This information is not binding.
(2) If we are unable to meet bindingly agreed delivery deadlines for reasons for which we are not responsible, we shall inform the customer of this without delay and at the same time notify the customer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the customer.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, a written reminder by the customer is required. If we are in default of delivery, the customer may demand compensation for the damage caused by the default. It shall amount to a maximum of 0.5% of the net price for each completed calendar week of the delay, but in total to a maximum of 3% of the net price of the goods delivered late. We reserve the right to prove that the customer has not suffered any damage or that the damage is significantly less than the aforementioned lump sum.
(4) The rights of the customer pursuant to § 11 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform due to impossibility or unreasonableness of performance and / or subsequent performance, shall remain unaffected.
§ 11 Limitation
(1) The customer's warranty claims against us shall become statute-barred one year after the passing of risk. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) The above limitation periods shall also apply to contractual and non-contractual claims for damages of the customer based on a defect of the goods, unless the application of the regular statutory limitation period would lead to a shorter limitation period in the individual case. The limitation periods of the Product Liability Act shall remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to the customer's claims for damages pursuant to § 8.
§ 12 Choice of Law, Place of Jurisdiction, Partial Invalidity
(1) These Terms and Conditions and the entire legal relationship between the parties shall be governed by Swiss law. The place of jurisdiction is Rothenburg / Switzerland.
(2) If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the place of our registered office shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. However, we are also entitled to bring an action at the customer's general place of jurisdiction.
(3) Should any provision in these Terms and Conditions or any provision of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
(4) Noventis AG reserves the right to amend these GTC at any time. Amendments and/or additions to these GTC must be made in writing. The version valid at the time the contract is concluded shall be authoritative.
Rothenburg, 17.02.2023
Information on the conciliation procedure
All orders placed before 01.07.2022 and delivered after 01.07.2022 are an integral part of these GTC. They were therefore issued to Noventis viscom AG and executed and invoiced by Noventis AG. There is no right to cancel the order.
Due to the company and name change, all rights and obligations will be transferred from Noventis viscom AG to Noventis AG.
Noventis viscom AG / Noventis AG
CH-6341 Baar, February 22, 2022
Noventis viscom AG / Noventis AG, Stationstrasse 90, CH-6023 Rothenburg
Noventis viscom SA / Noventis SA, Chemin du Pont-du-Centenaire 109, CH-1228 Plan-les-Ouates