General Terms and Conditions of Business
A General Terms and Conditions
1. Validity of our GTC
These general terms and conditions apply for Hünnebeck GmbH and its holding companies, in particular Hünnebeck Deutschland GmbH (in the following referred to as Hünnebeck). The general terms and conditions of contract, sale and hire outlined in the following apply to all of our deliveries and services - including those performed in the future. We are not bound by deviating conditions of the ordering party even if we fail to contradict these terms and we perform these services without reservation despite knowledge of our contract partner’s contradictory or deviating conditions. Deviating conditions will only be incorporated into the contract with our express, written acknowledgment. The observance and validity of mandatory statutory provisions, e.g.: the German Product Liability Act (Produkthaftungsgesetz) remain unaffected by the following terms and conditions. The general contract terms and conditions apply for all of the contracts concluded with our company, as long as these are concluded with a business owner in the sense of the German Civil Code (BGB). For sales contracts, the terms and conditions of sale printed under B also apply; for hire contracts, the terms and conditions of hire printed under C also apply; for service contracts governing the planning and execution of formwork and scaffolding work, the terms and conditions of service for formwork and scaffolding work printed under D also apply.
2. Conclusion and Scope of Contract
Our offers remain unbinding until we declare them to be binding in writing.
3. Industrial Rights/Confidentiality
We reserve all proprietary and intellectual property rights to all diagrams, drawings, calculations and other documentation. This also applies to written documents designated as “confidential”. These may not be made available to third parties without Hünnebeck’s prior express written consent.
4. Deadlines and Appointments
The delivery period indicated by Hünnebeck does not commence until all technical issues have been resolved. The delivery period commences when we issue order confirmation, provided all of the contract requirements have been clarified and the ordering party has satisfied all of its obligations, including but not limited to providing the necessary certificates and permits or paying a deposit. Our delivery obligation is subject to correct and timely delivery from our suppliers (self-supply), unless we are at fault for incorrect or untimely self-supply, in particular when concluding congruent coverage transactions with our supplier. Force majeure and other hindrances beyond our control such as walkouts, strikes, lockouts, government bans, energy and transport difficulties and operational disturbances, etc. will extend deadlines and postpone due dates based on their severity. If we are late in fulfilling the contract for any other reasons, the verifiable damage caused by the delay is limited to 0.5 % of the contract price of outstanding delivery for each full week of delay, with a maximum limit of 5 % of the total contract value. For hire contracts, the total contract value is the rental charge for three months. This limitation of liability does not apply in cases where we enter into default intentionally or through gross negligence.
Our prices are ex-works excluding the legally applicable VAT on the day of delivery and are based on the cost factors that prevail at the time of contract conclusion. We reserve the right to change our prices as we deem appropriate if costs increase or decrease following conclusion of the contract, in particular due to labor agreements or material price changes. We will provide the ordering party with proof of these changes on request.
6. Payment: Forms, Terms, Withholding, Offsetting
Payments are due within 14 calendar days from the date of invoice at the latest. The date of receipt of payment is decivise for the deadlines. Without express written agreement stating otherwise, the ordering party is not entitled to cash discounts or any other reductions in price. Bills of exchange and checks are only accepted for payment if a special agreement has been made. The ordering party bears all discount charges, stamp duties and other bank charges. In the case of bills of exchange and checks, no obligation is accepted for timely presentation or protest. The ordering party bears all collection charges and protest costs.
Withholding or offsetting payment is only permissible for undisputed or legally determined counterclaims.
The ordering party is only entitled to withhold payment insofar as the ordering party’s counterclaim is based on the same contract relationship.
The ordering party may only assign claims arising from the contract relationship with Hünnebeck with the prior express written consent of Hünnebeck. Section 354 (a) of the German Commercial Code (HGB) remains unaffected hereof.
7. Termination Rights, Defense of Uncertainty
If Hünnebeck is required to deliver goods or services in advance in order to satisfy the terms of a mutual contract, Hünnebeck may refuse performance if it becomes apparent that Hünnebeck’s claim for compensation is endangered as a result of the ordering party’s inability to fulfill its contract obligations. The right to refuse performance no longer applies if compensation is made or security is provided. The following list provides examples of subsequent situations in which Hünnebeck is authorized to terminate the contract should compliance with the ordering party’s payment obligations or the enforceability of the claims against the ordering party be endangered:
a) The ordering party is more than 30 days late with payment and, after weighing the interests of both parties, it would be unreasonable to expect Hünnebeck to continue the contract relationship, or
b) The ordering party’s creditworthiness deteriorates considerably following contract conclusion.
c) The ordering party stops payment or declares its intention to stop payment, bills of exchange accepted from the ordering party are under protest, the ordering party issues an affirmation in lieu of oath,
d) The financial circumstances of the personally liable shareholder deteriorate considerably or are at significant risk, and in the event of a change in or the death of the personally liable shareholder. If there is good cause for the breach of an obligation arising from the contract, Hünnebeck is first required to set a reasonable deadline for the ordering party to, at its discretion, either effect payment or provide security. The contract may only be terminated upon expiration of this deadline. Other conditions apply only if the ordering party seriously and definitively refuses to effect payment or special circumstances exist that justify immediate termination after weighing the interests of both parties.
8. Information Requirements
The ordering party is required to notify Hünnebeck immediately should any of the circumstances outlined in numeral 7 arise. Furthermore, the ordering party is required to inform Hünnebeck if there is a change in any shareholder with at least 25 % of the voting rights (Change of Control).
9. Consequences of Late Payment
If the purchasing party delays payment, we are entitled to charge late payment fees of nine (9) percentage points above the base rate. Furthermore, we reserve the right to make higher claims for damages due to late payment. If the ordering party is a merchant, we are also entitled to demand interest of 5 % starting from the due date.
10. Limitation of Liability
We accept liability in accordance with the applicable legal provisions.
In deviation from numeral 10.1, we are liable in cases of minor negligence only insofar as:
- there is a culpable breach of material contractual obligations, performance of which is necessary to enable the due implementation of the contract in the first place and which the purchaser can readily rely on compliance with,
- or the breach interferes with achieving the purpose of the agreement,
- or if a case of compulsory statutory liability exists under the German Product Liability Act (Produkthaftungsgesetz), a case of culpa in contrahendo exists,
- or in the event of fatal injury, bodily injury or damage to health.
Legal provisions regarding the burden of proof remain unaffected hereof.
For third-party products and services in business transactions with merchants, legal entities or special funds under public law, our warranty is primarily effected by assigning warranty claims against our subcontractors/suppliers to the ordering party. A claim on our part is only possible if legal action taken against our subcontractor/supplier is unsuccessful, it is evident that there is little prospect of success or our subcontractor/supplier has declared bankruptcy.
Without exception, our products must be assembled according to and observing our respectively applicable instructions for assembly and use. The use of our products with other manufacturers’ parts is strictly prohibited. We are not liable if our instructions for assembly and use are not observed or third-party materials are used, unless the ordering party proves that the damage incurred is not due to the use of these third-party materials.
Furthermore, no liability is accepted for any safety and health protection plans of the hirer, including but not limited to assembly instructions, risk analyses and other safety-related information.
Hünnebeck’s liability exclusion or limitation also applies to the personal liability of employees, workers, worker representatives and agents.
Unless otherwise stipulated in the foregoing, Hünnebeck is indemnified from all forms of liability. Specifically, all claims for damages extending beyond those stipulated here are excluded - irrespective of the legal nature of the asserted claims. This applies in particular to claims for damages resulting from culpa in contrahendo, other breaches of duty or tortious claims for compensation pursuant to Section 823 of the German Civil Code (BGB).
11. Statute of Limitations
Unless otherwise agreed, the ordering party’s claims against us arising from and in connection with the delivery of the goods expire one year after delivery. The provisions outlined in Section 438 para. 1 no. 2 (buildings and building materials), 479 para. 1 (claims for recourse) and 634a para. 1 no. 2 (building defects) BGB remain unaffected hereof. The short statute of limitations does not apply to the ordering party’s claims for damages resulting from fatal injury, bodily injury or damage to health or an intentional or grossly negligent breach of duty.
12. Copyright and Usage Rights
All rights to any documents provided remain reserved. Any use within the scope of the contract is permissible. Further uses, in particular for obtaining offers from third parties are hereby expressly excluded.
A current account will be established for all mutual claims that arise following an initial order. Contracts and these conditions remain legally binding even if individual provisions are legally ineffective. Invalid provisions will be replaced with valid ones that come as close as possible to the meaning and purpose of the original contracts.
We are not liable for any errors in printed matter, obvious errors or typographical or arithmetical errors. The sole venue of jurisdiction - including for claims in processes involving documents, bills of exchange or checks - for both parties and for all current and future claims arising from the business relationship is Ratingen, Germany. However, we are entitled to file a lawsuit at the ordering party’s place of business.
All legal relationships are governed by German law. International sales law, in particular the UN convention on Contracts for the International Sale of Goods (CISG), is excluded. The ordering party’s information is saved in accordance with the respectively applicable data privacy laws in the Federal Republic of Germany.
B Terms and Conditions of Sale
1. Retention of Title
All delivered items remain our property pending full payment of all receivables, in particular for purchases, hire contracts, assembly and freight. For deliveries made on open account, the retained property will be used as security for the outstanding balance. The ordering party is not authorized to pledge, transfer ownership by way of security or use our property in any other way, unless we expressly authorize this in writing. The ordering party must notify us immediately of any third-party infringement of our property rights. If the third party is unable to reimburse us for any in-court or out-of-court costs associated with a lawsuit in accordance with Section 770 of the German Civil Procedure Act (ZPO), then the ordering party is liable for the losses we incur. Furthermore, the ordering party is also liable for any and all intervention costs if these costs cannot be recovered from the third party. As an exception, the ordering party is authorized to resell the purchased item within the ordinary course of business; however, the ordering party already assigns claims against the third party to us now. We hereby accept the assignment. If the ordering party resells our retained goods together with other goods or after further processing, the assignment of the claim shall not exceed the value of the retained goods. We are authorized to announce the assignment. In relation to the second ordering party, the initial ordering party is authorized to resell these goods notwithstanding the foregoing, provided our claim arising from the sale of the resold goods has been satisfied. If the delivered items are combined with other movable objects to form a new, homogeneous item or processed or transformed into a new product, then we retain ownership or joint ownership of the new item or product in proportion to its value in relation to the new item at the time of processing or transformation. If the value of existing securities for our claims exceeds the value of our receivables due by more than 10 %, we are obliged to release the securities of our choosing at the ordering party’s request. The value of the existing securities for our claims is determined as follows:
The net purchase price minus freight charges is decisive. A deduction of 30 % is made from the date of purchase on a pro rata basis for each year or part thereof beginning with the previous value. If the ordering party delays payment or does not redeem a bill of exchange when due or breaches the contract in some other way, we are authorized to set an appropriate deadline and, if this deadline is not met, to retake possession of the retained goods and enter the ordering party’s business premises to do so if necessary. Repossession does not constitute withdrawal from the contract. The same applies if, following conclusion of the contract, it becomes apparent that our claims for compensation arising from this or other contracts with the ordering party are endangered as a result of the ordering party’s inability to fulfill its contract obligations.
2. Failure to Meet Payment Obligations
If we withdraw from the contract due to the ordering party’s failure to meet payment obligations or other breach of contract duty or retake possession of the delivered products for other reasons resulting from our retention of title, the ordering party must compensate us for the period when it was in possession thereof based on the value of the product measured according to our rental charges. The compensation must not exceed the purchase price. Moreover, the expenses incurred as a result of the contract must also be reimbursed.
3. Transfer of Risk and Shipping
The risk for the delivery object passes to the ordering party upon transfer to the shipper or freight forwarder or directly to the ordering party, even for freight-free deliveries. We may determine the shipping method and type of packaging used. The ordering party is responsible for shipping, freight, packaging, customs and unloading charges and costs for wait times exceeding two hours during unloading.
4. Receipt, Fulfillment and Acceptance
The ordering party must accept the goods, even if they contain minor defects. Partial deliveries are permissible. In the case of an express agreement on acceptance, the ordering party must accept the delivery object at our plant or one of our warehouses. A record of acceptance must be created upon request. If Hünnebeck orders the ordering party to accept the goods within a specified period and the ordering party does not accept the goods, then the goods are deemed accepted provided the ordering party does not issue an express statement indicating its refusal to accept the goods and Hünnebeck notifies the ordering party at the beginning of the period that non-acceptance or failure to make a statement within the specified period constitutes assumed acceptance.
The ordering party’s right to claim for defects requires the ordering party to inspect items on delivery and issue complaints if necessary in accordance with Section 377 HGB. If the purchase object contains a defect, Hünnebeck is authorized, at its discretion, to effect subsequent performance by either eliminating the defect or delivering a new item that is free of defects. When eliminating the defect, we are required to bear any expenses associated with eliminating the defect, in particular transportation, route, workmanship and material costs inasmuch as these are not increased due to the fact that the purchased items are to be delivered to a location other than the fulfillment location. If subsequent performance is unsuccessful, the ordering party is entitled to withdraw from the contract or demand a price reduction at its discretion. The ordering party may only demand compensation within the scope of the liability limitations in these terms and conditions. The ordering party does not have the right to withdraw from the contract in the case of minor defects.
C Terms and Conditions of Hire
The terms outlined in numerals 1 through 13 apply to the lease of formwork, formwork elements, scaffolding, accessories and other movable objects. The terms outlined under numeral 14 apply to ancillary services (technical work, engineering services, assembly and other works or services).
1. Hire Contract, Condition of the Hired Formwork
A hire contract concluded by way of a formwork specification prepared by Hünnebeck should include binding information on the period of hire and the amount of material to be held in reserve for this period. The hire contract must contain the following information: dimensions for the area to be equipped with formwork, the date by which the project must be completed and cycle planning information if provided by the hirer. This information should be provided by the hirer before the contract is concluded, specifically by transferring work, process and time plans (building schedules). If no other agreements have been made, the guidelines and quality criteria of the Concrete Formwork Quality Control Association (Güteschutzverband Betonschalungen e.V.) of December 2011 apply with respect to the expected condition and quality of the hired material. These guidelines can be viewed at www.gsv-betonschalungen.de/en/index.html. Hünnebeck will send these guidelines to the hirer on request.
2. Period of Hire
The minimum period of hire is 30 calendar days provided no other agreement has been made. This period begins on the day the equipment leaves Hünnebeck’s warehouse and ends on the day that the equipment is returned to the rental warehouse specified by us. For pre-assembled equipment the period of hire begins with the start of the assembly time to be specified in the hire contract, provided this is acceptable.
3. Rental Charges, Ancillary Costs, Payment
The hirer is obliged to remit a monthly payment based on our rental charges. The rental charge is calculated at the end of each month for that month, this takes place on a daily basis depending on the actual length of the respective months. In case of a hire of less than one month, a minimum of 30 calendar days will be invoiced. No deductions will be made to rental charges due to inclement weather or holidays. Cash discounts as outlined in numeral 14 may not be applied to rental charges and ancillary services. If the hirer authorizes us to directly debit payment from its account, Hünnebeck may, at its discretion, provide a cash discount of 2 %. The hirer bears the costs of basic expenses (costs for order-related sorting, bundling and provision of equipment) and the costs of transporting equipment to and from the site. Rent and ancillary costs are due 10 days after the date of invoice without deductions.
4. Condition of the Material for Hire/Delivery and Delivery Deadlines
The hired equipment is delivered in good working condition ex works with all of the parts necessary to ensure proper operation. Hired equipment is generally used material. The hirer has no claims to new equipment. The hirer must accept the hired equipment unless this equipment exhibits major defects. Following delivery, the hirer must immediately inform Hünnebeck in writing should any defects become apparent. If the hirer fails to do so, the delivery is assumed to be accepted, unless the defect was not readily discernible during the inspection. If such a defect is discovered at a later time, this defect must be reported immediately following discovery; otherwise the delivery will be deemed accepted even in light of this defect. Timely notification is sufficient to preserve the rights of the hirer. Hünnebeck may not invoke the foregoing provisions if it has maliciously concealed a defect. Compliance with agreed delivery dates cannot be guaranteed unless the hirer fulfills all its contract and cooperation obligations.
5. Special Obligations of the Hirer/Return of Formwork
The hirer must observe the formwork manufacturer’s instructions for assembly and use along with the currently valid work safety laws, in particular the accident prevention regulations (UVV). The instructions for assembly and use can be found at www.huennebeck.de. Hünnebeck will send these instructions to the hirer on request. The hirer is responsible for obtaining all of the applications and permits required in order to use the hired equipment on site. The hirer must constantly monitor the hired equipment at the site where it is used and remove any damaged parts. The hirer must ensure that the hired material is protected against theft. In the event of theft, the hirer is obliged to notify us of the incident immediately in writing and inform the local law enforcement agencies. The hirer must send Hünnebeck a copy of the police report without delay. The hirer bears all risks associated with the use of the hired formwork. Statutory liability for breaches of duty remains unaffected hereof. Return delivery of the hired equipment takes place at the hirer’s risk and expense. Transport insurance is only concluded at the hirer’s express request and expense. The hirer is obliged to return the hired equipment in its complete, original technical condition, free of any damages or defects beyond normal wear and tear, in clean, ready-to-use condition, disassembled, properly bundled, palletized and/or ready for unloading with a forklift. The hirer must replace any unusable or lost hired equipment in accordance with statutory regulations. Hired equipment is considered to be unusable when the repair of the damaged equipment would result in more expenditure than simply replacing it. Under the conditions of the foregoing, the hirer bears the costs for the disposal of scrap parts or cut-off supports. The hirer must return the hired equipment to the agreed warehouse unless expressly stipulated otherwise upon conclusion of the contract. Numeral 9 applies mutatis mutandis for return deliveries. The hirer must offer proof of return of the hired equipment in full. The hirer will reimburse Hünnebeck for lost or unrepairable parts at the full list price for the purchase of our products. If the hirer does not fulfill the foregoing obligations, then the hirer is required to compensate Hünnebeck for the period during which the hired equipment was not available for rehire by paying a fee in the amount of our general rental charges. The hirer is required to reimburse Hünnebeck for all of the expenses associated with returned material that cannot be unloaded with forklifts during the return process. The hirer is obliged to notify us of its intention to return the hired material at least three working days prior to return delivery.
6. Cleaning/Repair of Hired Equipment
If the hirer cleans the hired formwork prior to return delivery, the equipment must be returned in the condition specified in the guidelines and quality criteria of the Concrete Formwork Quality Control Association (Güteschutzverband Betonschalungen e.V.) of December 2011 unless otherwise agreed. Hired equipment that is not returned at the level of quality specified in the guidelines and quality criteria of the Concrete Formwork Quality Control Association (Güteschutzverband Betonschalungen e.V.) of December 2011 will be cleaned by a professional cleaning service at the expense of the hirer. The hirer will receive written notice of the scope and costs for this work before it commences. The hirer then has five working days following this notice to obtain more information regarding cleaning expenditure on site. Once this period has elapsed, we will automatically perform the cleaning work according to our cleaning standards. The currently valid list prices for cleaning are used to determine the costs for this service. Wear and tear resulting from normal use is included in the rental charge. Damages to formwork resulting from a breach of duty on the part of the hirer are excluded. In particular, these damages include breakthroughs, cuts or drill holes in the shell of the frame and element formwork. Legal provisions regarding the burden of proof remain unaffected hereof. The hirer bears the costs for repair and cleaning unless it is not responsible for the damages. Due to the level of professional expertise required, only Hünnebeck is permitted to perform repairs.
7. Right to Inspect
We are authorized to inspect hired equipment. For this reason we must be informed of the location where the equipment will be used. For returned hired equipment we reserve the right to inspect items to ensure completeness and freedom from defects. Depending on business operations, this inspection may take place any time up to eight working days following the return. Acceptance of the goods does not constitute acknowledgment of completeness and freedom from defects.
8. Subletting, Use by Third Parties
Hired formwork and other hired equipment may not be sublet or loaned out to third parties; nor is it permissible to make this equipment available to third parties in any other form without Hünnebeck’s consent. The use of formwork by one of the hirer’s subcontractors does not require permission in the sense of the preceding clause. Claims against third parties arising from the provision of our equipment for hire are already assigned to us now. We must be informed immediately of any pledges or other restrictions associated with the equipment. Customers may not move hired materials to a location other than the one specified in the hire contract without Hünnebeck’s express written authorization.
9. Transfer of Risk
If Hünnebeck assumes responsibility for transporting the hired formwork, then Hünnebeck bears the transport risk until the equipment is transferred to the hirer. If the hirer assumes responsibility for transporting the hired formwork, then the hirer bears the transport risk to the point of transfer to the shipper or freight forwarder or until such time as the equipment is transferred directly to the hirer. Hünnebeck may specify the type of shipping and packaging, such as cage pallets, stacked pallets, transport containers, etc. - while considering the hirer’s interests. The hirer bears the costs of shipping, freight, packaging and unloading. Furthermore, the hirer is responsible for wait times exceeding two hours during unloading unless the hirer is not responsible for the delays.
10. Monitoring Obligation
The hirer must constantly monitor the hired equipment at the site where it is used and remove any damaged parts. We will provide free replacement if the hirer can prove that damages were not caused by improper handling, the use of force or any other improper behavior on its part.
11. Load Values
Our published tables and instructions contain load values for our equipment for hire. These must be strictly observed.
Hünnebeck is authorized to display appropriately sized advertisements for the company and its products on visible areas of the hired equipment. Placement of advertisements for the hirer or third parties - in particular the building owner - requires Hünnebeck’s prior written consent insofar as such advertising requires an alteration to the substance of the hired equipment. The hirer bears the costs for placing advertisements for the hirer or third parties.
13. Premature Termination, Compensation
If the hirer breaches obligations accepted within the scope of the contract, we are authorized to terminate the contract relationship and demand compensation in lieu of the remaining rental charges. In the event of termination, we hereby refuse permission for further use of the hired material in accordance with Section 545 BGB.
14 Ancillary Services
14.1 Additional Services
The hirer may order additional services from Hünnebeck. These include, for example:
- Engineering services in the form of structural analyses or plans for using formwork;
- Transport and logistics services;
- Repairs resulting from damages caused by improper handling of formwork material,
- And cleaning of formwork material upon return.
The renter bears the costs of these ancillary services.
14.2 Assembly Plans
a) For pre-assembly the hirer will receive the assembly plans before pre-assembly begins - in due time and considering the mutual interests of both the hirer and Hünnebeck.
b) Hünnebeck’s assembly plans must meet recognized scientific and technical standards.
c) The ordering party must inspect these plans within a reasonable period to verify their accuracy. After inspecting the plans, the ordering party must sign and return them to Hünnebeck without delay.
d) The ordering party must notify Hünnebeck in writing if it wishes to have the assembly plans modified to meet its expectations. If the ordering party fails to provide notice, the plans are considered approved unless it is not possible to approve them.
a) Acceptance takes place immediately once assembly work is finished and Hünnebeck announces its completion. Acceptance takes place at the assembly site.
b) A record must be created of the acceptance and signed by the ordering party and Hünnebeck.
c) If the ordering party does not show up at the agreed acceptance date, then the assembly work is deemed complete provided it is free of defects. Minor defects are excluded.
14.4 Assembly and Disassembly Work
a) The ordering party bears the costs for the assembly and disassembly work.
b) The ordering party bears any transport costs or costs for the use of machines (cranes, etc.) incurred. Furthermore, the ordering party bears any travel expenses incurred by Hünnebeck, provided these are reasonable.
14.5 Additional Expenses
a) If assembly work is interrupted as a result of building circumstances, the organization of the site or for any other reason attributable to the ordering party, the ordering party will bear any and all additional expenses.
b) The same applies for additional expenses beyond the work ordered, in particular for modified assembly work and services, and for other unforeseen difficulties that are the responsibility of the ordering party.
c) Insignificant additional expenses are excluded.
14.6 Engineering and Structural Services
The rates for engineering services must not exceed or fall below the maximum or minimum rates outlined in the fee schedules for architects and engineers (HOAI), respectively. The ordering party bears the costs for structural analysis and planning services.
D Conditions for Formwork and Scaffolding Work
1. Prices and Securities
1.1 Partial Payment
Hünnebeck is entitled to demand partial payments in the amount of 15 % of the total contract value, including any supplements after completion of technical work on the order and an additional 60 % following assembly. The remaining balance is due following disassembly. Section 632 (a) BGB remains unaffected hereof.
Hünnebeck can request an absolute performance guarantee in the amount of the total unpaid compensation for work, provided Hünnebeck does not discover that the ordering party’s ability to meet its contract obligations in terms of Section 321 BGB is endangered and was unable to obtain this knowledge through reasonable means at the time the contract was concluded. Hünnebeck’s rights arising from Section 648a BGB remain unaffected hereof.
2. Binding Offers
Hünnebeck will only use paper-based blueprints provided by the ordering party to prepare the offer.
3. Ordering Party’s Obligation to Cooperate
The following standard duties reflect the obligation to cooperate in the sense of Sections 642, 643 BGB, and a breach of these duties entitles Hünnebeck to make legal claims pertaining thereto. If a defect in the services to be provided by Hünnebeck is the result of the ordering party’s failure to cooperate, the rights of Hünnebeck apply in accordance with Section 645 BGB.
The ordering party will provide Hünnebeck with an adequately sized, level and solid space for pre-assembly, interim storage of materials, formwork and scaffolding free of charge. This area must be situated in a location that ensures smooth entry and exit and allows standard rigs and extendable trailers to turn around. The ordering party will also provide suitable hoisting equipment and operating personnel for the unloading of materials, formwork and scaffolding in this storage area.
The ordering party will provide Hünnebeck with suitable hoisting equipment and operating personnel along with lifting tackle in the entire work area including interim transports free of charge for the entire period of the material delivery until such time as the materials have been disassembled. The ordering party will provide a road rail excavator for work near railways. These hoists will be available to Hünnebeck free of charge, 24 hours a day.
The ordering party will provide sanitary facilities and daytime accommodations free of charge for the number of personnel Hünnebeck is required to have in the vicinity of the construction site as specified in the contract. If the number of personnel required increases due to additions to the contract, the ordering party is obliged to increase the capacity of the facilities and accommodations on site accordingly.
Services Hünnebeck does not expressly mention in the offer will be performed on site. In particular, the ordering party must meet its obligation to cooperate with respect to Hünnebeck’s formwork and/or scaffolding work.
4. Scope of Service
The scope of service does not include an auditable structural analysis. The ordering party must always request this separately in writing.
Hünnebeck is authorized to plan in and/or use formwork, scaffolding or supporting material that deviates from the service specifications in the event that Hünnebeck is unable to procure the material outlined in the contract through reasonable means and the substitute material is equal to the original material in terms of its technical, functional and structural quality.
Hünnebeck is only required to inspect the ordering party’s preparatory work to the extent possible taking into account the additional level of specialized knowledge to be expected vis-à-vis the ordering party. Hünnebeck is also authorized to verbally inform the ordering party of its concerns regarding preparatory work and/or planning services. A person who is qualified to receive such information is someone who the ordering party has hired to perform the role of site manager.
Hünnebeck is entitled to award partial services to subcontractors.
5. Delivery Period
Hünnebeck is not obliged to begin technical work on the formwork and scaffolding construction (structural analysis for the construction plans) until the buyer has delivered all of the required construction and survey plans in copy/blueprint form along with a dxf file and has completed all of the measures required in order to coordinate the overall formwork concept. The ordering party is obliged to release all of the relevant planning documents without delay and in writing. The ordering party’s approval cannot be replaced by the approval of the ordering party’s customer.
If the assembly deadline specified in the contract is delayed due to circumstances that are not the fault of Hünnebeck, then Hünnebeck is authorized to demand a flat-rate compensation amounting to 90 % of the daily rental charges stipulated in the contract from the envisaged deadline until such time as assembly actually begins. The ordering party can provide proof that Hünnebeck actually suffered lesser damages, resulting in a corresponding reduction of Hünnebeck’s claim for compensation.
Days on which the daily temperature low is below 0 °C are considered to be bad weather days. Hünnebeck is not required to perform services on these days. The contractually agreed completion date will be postponed based on the number of bad weather days.
Hünnebeck requires 14 days advance notice for performing assembly and/or disassembly work on formwork and/or scaffolding. Hünnebeck is not required to commence work until 14 calendar days following the date on which the ordering party issues its express approval of plans for the formwork and/or scaffolding work.
6. Liability for Defects
If the purchase object contains a defect, Hünnebeck is authorized, at its discretion, to effect performance by either eliminating the defect or delivering a new item that is free of defects. When eliminating the defect, Hünnebeck is required to bear any expenses associated with eliminating the defect inasmuch as these are not increased due to the fact that the purchased items are to be delivered to a location other than the fulfillment location. The ordering party’s claims for defects require the ordering party to inspect items on delivery and issue complaints if necessary in accordance with Section 377 HGB.
Should Hünnebeck seriously and finally refuse to remedy the defect and/or effect subsequent performance or re-manufacture the item due to disproportionately high costs, subsequent performance fails and/or it would be unreasonable to expect the ordering party to accept it under the circumstances, the ordering party may, at its discretion, choose a reduction in compensation (discount) or rescission of the contract (withdrawal) along with compensation instead of demanding performance under the liability limitations set forth in these terms and conditions. The ordering party does not have the right to withdraw from the contract in the case of minor defects.
The ordering party is not authorized to withdraw if Hünnebeck is not responsible for the breach of duty resulting from a defect.
Further claims remain unaffected hereof in cases of malicious concealment of defects or acceptance of a guarantee for the quality or condition of goods or services. Guarantees must be given expressly, using the specific term “guarantee”.
Last updated: March 2017