1. Business relationship
(1) These terms and conditions of business shall form the basis of a partnership-like contractual relationship and apply to all supplies and services including the services as experts (hereinafter referred to as “Services”) of sc-refit GmbH to its clients (hereinafter referred to as “Client”). They shall apply in particular also within the scope of future contracts and agreements concluded, unless they are expressly modified or excluded.
(2) Any opposing or deviating terms and conditions of the Client shall only be applicable if sc-refit has consented in writing to their effectiveness.
(3) Ancillary agreements, amendments and additions to these General Terms and Conditions of business, of order confirmations and/or of quotations shall only be effective if sc-refit confirms them in writing.
2. Contractual basis and conclusion of contract
(1) Product information, advertising materials and price information shall be only of an informative or exemplary nature and shall only become the basis of the contract after individual mention in the order confirmation.
(2) Measurement, weight and performance data as well as illustrations shall be only approximate and without engagement, unless they are designated expressly as being binding.
(3) Quotations from sc-refit shall be made without engagement and subject to confirmation, unless in individual cases the binding nature has been warranted in writing. Legally binding contracts shall come into being only upon written confirmation by sc-refit. This can be transmitted electronically (e-mail, fax). Should in an individual case an order confirmation be omitted, the contract on which the order is based shall come into being upon the start of the service for the Client.
(4) sc-refit shall reserve all industrial property rights (copyright, patent, utility model) to the cost estimates, drawings, drafts and their calculated basis prepared by it. These documents must not be published or made accessible to third parties without sc-refit’s consent and in the event of the order not being placed are to be returned to sc-refit upon first demand.
(5) Expert reports together with all related listings, calculations and other details shall not be used other than for the purpose specified in the order. Any other use or disclosure requires prior written approval by sc-refit.
(6) The designations and specifications laid down at the time of the conclusion of the contract shall represent the technical status at this point in time. sc-refit expressly reserves the right to make design changes for spare parts and other goods, unless these changes are of a fundamental nature and the contractual purpose is considerably restricted.
3. Prices, invoicing, terms of payment
- The quotation prices are to be understood as being plus statutory value-added tax at the point in time of the service, unless final prices are expressly stated.
- If after the conclusion of the contract quantities, dimensions or types of design are changed, the prices agreed upon shall be reduced or increased in accordance with the change.
- If the start of the Services by sc-refit takes place more than two months after the placing of the order and if wages and material prices have changed by the start of the Services, sc-refit shall be entitled and obliged to make a reasonable price adjustment, unless a longer price guarantee has been expressly agreed upon.
- Payments shall be made to sc-refit in euros without any deduction within 10 days of the invoice date. Deviating payment agreements shall require to be made in written form. Acceptances or bills receivable shall not be accepted.
- In the event of default in payment by the Client the provisions of the German Civil Code (BGB) shall apply.
4. Delivery and service, default by sc-refit
(1) If deadlines agreed upon are not met and sc-refit defaults, the Client can in accordance with the following provisions withdraw from the contract or demand damages for non-performance. The Client must, however, first of all set an additional period of two weeks starting upon receipt by sc-refit of notice of the setting of the additional period.
(2) The extended liability in accordance with Art. 287 of the German Civil Code (BGB) shall be excluded. The Client shall only be able to demand damages for non-performance, if sc-refit or its vicarious agent has caused the damage/loss by intent or gross negligence.
(3) sc-refit shall not be in default if spare parts cannot be procured despite their being ordered in a timely manner, no safe or unimpeded access to the place of performance of services (construction site) is possible or other sovereign measures or circumstances acknowledged in case law are present.
5. Liability for defects
- The Client must check sc-refit’s work/service immediately after delivery to the place agreed upon.
- If this shows obvious defects or if obviously goods different from those ordered have been delivered, the Client must notify sc-refit of this in writing without undue delay, but not later than within one week. Otherwise the work/service performed and/or the goods delivered shall be considered approved.
- In the event of a justified notification of defects sc-refit shall be obliged to carry out subsequent improvement and/or to make substitute delivery at its reasonable discretion, in which case it is to be granted a period of at least two weeks for carrying out the subsequent improvement and/or substitute delivery.
- The period for subsequent improvement shall be reasonably extended if sc-refit is dependent upon being supplied with spare parts and presents the Client with delivery times that cannot be avoided.
- In the event of third-party interference in work/services provided by sc-refit all liability for defects shall be excluded.
- If sc-refit does not meet its above mentioned obligations within the periods agreed upon, the Client shall be entitled to demand a reasonable reduction of the remuneration or to withdraw from the Contract. However, sub-services by sc-refit completed in themselves and free of defects shall be invoiced on the terms and conditions agreed upon. Any other claims for defect liability and damages because of consequential damage caused by a defect shall be expressly excluded, unless liability on the part of sc-refit can be seen from Item 8.
6. Reservation of title
- sc-refit shall reserve title to spare parts and other goods delivered up to the receipt of all payments under the respective contract and of any possibly outstanding items from contracts already performed by sc-refit.
- To the extent that the items supplied have become essential integral parts of an item of real estate, the Client shall permit the reservation of title to be realised in that sc-refit shall be entitled to carry out dismantling of the items subject to reservation of title at the Client’s expense. The pre-requisite for this shall be that dismantling takes place without any major negative effect on the building structure.
7. Withdrawal
If the Client withdraws from the order before the completion of the work/service agreed upon, without a breach of contract by sc-refit having been committed it shall be obliged to pay for sub-services by sc-refit which in themselves have been completed on the terms and conditions agreed upon. For work/services not carried out, upon declaration of withdrawal a lump-sum payment of damages shall be due and payable to sc-refit. The amount of the damages payable shall amount to 25% of the order value plus a planning and general expense lump-sum of 10% of the order value, in each case related to the value of the not executed work/services and excluding value-added tax (VAT).
8. Liability of sc-refit and damages
- Claims by the Client for damages and compensation for expenses, no matter on what legal grounds, in particular due to the breach of obligations resulting from the contractual relationship or from tort, shall be excluded, unless the following provisions lead to liability on the part of sc-refit.
- The exclusion in paragraph 1 shall not apply in so far as liability is mandatorily applicable, e.g. in accordance with the German Product Liability Act (Product Liability Act), in cases of intent or gross negligence, due to injury to life and limb, due to impairment of health, the fraudulent concealment of a defect or the breach of major contractual obligations. Damages payable for the breach of major contractual obligations shall, however, be limited to the damage/loss that is typical of the contract and foreseeable, unless a case of intent or gross negligence or liability due to the injury of life and limb, or due to impairment of health is involved.
- Exclusions of liability or restrictions of liability in favour of sc-refit shall apply also to the personal liability of sc-refit’s employees, representatives and vicarious agents.
- Liability on the part of sc-refit in the event of intentional duty-breaching behaviour of its subcontractors or vicarious agents shall be excluded, unless sc-refit has grossly infringed its discretion in the selection and supervising of subcontractors or vicarious agents.
- The limitation of the claims for damages to which the Client is entitled according to this Item 8 is based, unless otherwise provided below, on the limitation periods in art. 634a German Civil Code (BGB) and 438 German Civil Code (BGB) applying to claims for material defects, provided that claims shall become time-barred within four years at a max insofar no shorter time-limit shall apply. In any case the statute of limitation shall begin upon delivery of the sales item or upon receipt of the expert report by the customer and furthermore, upon acceptance of work / services. In the case of claims for damages according to the German Product Liability Act the statutory Statute of Limitations shall apply.
- No change in the burden of evidence to the Client’s disadvantage is associated with the aforementioned provisions.
9. Other agreements, data protection
(1) Should individual provisions or parts of these terms and conditions be or become ineffective, this shall not affect the effectiveness of the other provisions. The Client and sc-refit shall replace the ineffective provisions by provisions the content of which comes closest to the required legal and commercial purpose.
(2) Should individual provisions of these terms and conditions temporarily not be implemented or in a changed form no waiving of the original provision is to be deduced from this.
(3) These terms and conditions shall be subject to the law of the Federal Republic of Germany with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) of 11.04.1980.
(4) The place of jurisdiction for all disputes arising from or in connection with the contractual relationship shall be Hamburg. sc-refit shall also be entitled to sue the Client at the place of its headquarters.
(5) sc-refit shall have the right to store and process customer-related data within the meaning of the German Federal Data Protection Act in connection with the person of the Client, to the extent that this is necessary for order processing, subsequent customer support and quality control.
Stand: 01.01.2021