General Terms and Conditions

General Terms and Conditions of Business (GTC) for All Group Undertakings of the Novoferm Corporate Group in Germany Per 01/20
Effective per 01/06/2020

1. Scope of application

  1. The General Terms and Conditions of Business for all group undertakings of the Novoferm corporate group in Germany per 01/2020 apply to any and all purchase contracts and contracts for work and materials (whether including ancillary installation services or not) of NOVOFERM. Per 01/01/2020, the personal scope of application encompasses the following group undertakings:
     
    o Novoferm GmbH, Schüttensteiner Str. 26, 46419 Isselburg (Reg.: Coesfeld Local Court HRB 7771)
    o Novoferm Vertriebs GmbH, Schüttensteiner Str. 26, 46419 Isselburg (Reg.: Coesfeld Local Court HRB 12057)
    o Novoferm Spareparts GmbH, Isselburger Strasse 31, 46459 Rees (Reg.: Coesfeld Local Court HRB 13895)
    o DSS Docking Solution und Service GmbH, Springrad 4, 30419 Hanover (Reg.: Hanover Local Court HRB 202851)
    o TST Tor System Technik GmbH, Willi-Bleicher-Strasse 7, (Industrial Park — Im grossen Tal), 52353 Düren (Reg.: Düren Local Court HRB 2646)
    o Novoferm tormatic GmbH, Eisenhüttenweg 6, 44145 Dortmund, (Reg: Dortmund Local Court HRB 14016)
    o Novoferm Riexinger Türenwerke GmbH, Industriestrasse 12, 74336 Brackenheim (Reg.: Stuttgart Local Court HRB 320355)
    o Novoferm Siebau GmbH, Backeswiese 23, 57223 Kreuztal (Reg: Coesfeld Local Court HRB 14898)

    hereinafter known collectively as NOVOFERM and in the context of a party to a contract with the customers known as “we.”
  2. The General Terms and Conditions of Business per 01/20 govern solely business transactions with entrepreneurs within the sense of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch; BGB), legal entities governed by public law and special funds under public law. Our purchase contracts and contracts for work and materials (whether including ancillary installation services or not) are based solely and exclusively on these terms and conditions. They will be deemed accepted upon placement of an order or at the latest upon acceptance of the delivery. Our Terms and Conditions of Business do not apply to public works contracts (VOB/A, VOL/A) even if and when reference is made to them in a quotation or parts thereof in specific cases. Customers’ terms and conditions to the contrary do not become elements of the contract unless we have expressly accepted their application in writing. Our terms and conditions also apply to any and all future business transactions.
  3. The General Terms and Conditions of Business per 01/2020 do not apply to any contracts for service, maintenance, installation, repair and other ancillary services that are not merely ancillary obligations of a sales contract. Any independently established contractual relationships of which the subject of the contract is a service (contracts of service) or a performance success (contracts for work and services) are governed by the special regulations of the Terms and Conditions for Service, Installation and Repair per 01/20. Application to construction contracts is precluded; any and all such contracts are governed by specifically negotiated and agreed contract terms.
  4. Part I regulates the terms and conditions of contract for NOVOFERM’s online sales platforms. These platforms have been designed as strictly business platforms and are not accessible to consumers within the sense of Section 13 BGB. NOVOFERM currently operates the following platforms:
     
    o NOVOSALES trading platform of Novoferm Vertriebs GmbH
    o TORMATICSALES trading platform of Novoferm tormatic GmbH
    o Novoferm Online-Shop trading platform of Novoferm GmbH for export customers
    o SPAREPARTS trading platform of Novoferm Spareparts GmbH
    o mydocking eShop trading platform of DSS Docking Solution und Service GmbH
  5. Part II regulates the terms and conditions of purchase contracts on which any and all purchase contracts and contracts for work and materials (whether including ancillary installation services or not) are based.
  1. Part III regulates the terms and conditions for work and services that serve as the supplementary basis of any and all purchase contracts if and when the purchased product is manufactured specifically for the customer or modified according to the customer’s specifications.
  2. Part IV regulates the terms and conditions for ancillary services under a contract for work (installation, operational startup) for any and all sales contracts including ancillary installation services within the sense of Section 1 (2).

Part I Terms and conditions of contracts for the online sales platforms

2. Terms and conditions of use, conclusion of contract

  1. The use of NOVOFERM’s trading platforms requires registration with the operator in charge of the specific platform. Verification of the customer’s entrepreneurial status and the customer’s acceptance of the terms and conditions of use of the platform is a prerequisite for the creation of a customer account. NOVOFERM reserves the right to request (as verification of the registered user’s entrepreneurial status) presentation of the trade registration and/or the VAT identification number from companies that are not registered in the Commercial Register or the Corporate Register.
  2. Registered customers may use the order function of the sales platforms solely if and when they accept application of the General Terms and Conditions of Business for All Group Undertakings of the Novoferm Corporate Group in Germany per 01/20 to any and all transactions initiated or concluded via the sales platform. Customers will be notified during the order process insofar as terms and conditions that deviate from or supplement the General Terms and Conditions of Business apply to online orders.
  3. The presentation of products on the trading platforms represents solely an opportunity — and one that is non-binding on NOVOFERM — for customers to order the products shown. Customers may cancel the selection and ordering process at any time.
  4. Customers’ submission of orders represents a binding declaration within the sense of an offer to NOVOFERM to buy the contents of the shopping cart. The order in the shopping cart may be reviewed, modified and printed out before submission. Functions and commands are explained by commonly used icons and text displays. Customers place binding orders by clicking on the button “Place a binding order now.” Opportunities to withdraw submitted orders have not been provided for commercial purchases and B2B transactions between entrepreneurs within the sense of Section 14 BGB.
  5. Acceptance of the offer is declared either by written order confirmation from NOVOFERM or by delivery of the products. The automatically generated confirmation of the receipt of the order does not represent acceptance of the offer; it documents solely that NOVOFERM has received the order and that the order is being processed.
  6. The presumable, but non-binding delivery date is stated in NOVOFERM’s order confirmation. Customers will receive a shipping notification before the delivery of heavy products. Customer will be notified when the ordered products are ready for collection.
  7. NOVOFERM is free to refuse to accept online orders. The decision is at the discretion of NOVOFERM. If and when NOVOFERM does not want to execute an online order, customers will receive a message in lieu of the order confirmation.
  8. NOVOFERM stores the text of the contract after the conclusion of the contract. Registered customers can view and print out their orders for a period of six years after conclusion of the contract.

Part II Terms and conditions of purchase

3. Offer and conclusion of contract

  1. Our quotations are non-binding unless expressly marked otherwise.
  2. The documents enclosed with the quotation and our brochures, catalogues and product presentations on the internet give only approximate information and illustrations as customary in the industry unless otherwise marked. We reserve ownership and copyright to the documents enclosed with the quotation. Forwarding to third parties is permissible solely with our prior written consent.
  3. The purchase contract is accepted by the issue of our written order confirmation or by the actual execution of the delivery.
  4. Modifications or changes and subsidiary agreements shall not be binding unless in writing.
  5. If and when the buyer submits a declaration of intent or of knowledge by remote data transmission — in particular, but not limited to, email, including any attached files — the data we have received or retrieved are binding.

4. Delivery — Place of performance — Passing of risk — Insurance

  1. Unless otherwise agreed, we ship ex works (EXW Incoterms® 2020). If and when delivery is made by a third-party company we have engaged for manufacture of the products, shipment is from the production site or warehouse of the specific third party.
  2. Reasonable partial deliveries are permissible. In particular, the delivery of bulky products (e.g. frames, doors, industrial doors etc. ) separately from their accessories is permissible unless otherwise agreed.
  3. The place of performance for the delivery obligation incumbent on us is the agreed place of delivery, alternatively the registered office of the NOVOFERM group undertaking that has concluded the purchase contract with the buyer.
  4. Our delivery obligation for collection orders will be deemed fulfilled as soon as we have notified the buyer of the readiness for delivery and the buyer is in default of acceptance. Risk passes to the buyer when the consignment has been made available in the collection warehouse.
  5. In all other cases, risk passes to the buyer upon the transfer of the products to the shipping agent or freight forwarder, but at the latest upon the products leaving our plant or warehouse or the plant or warehouse of the actual supplier.
  6. Should the buyer wish us to deliver the products, packing, loading and shipment will be carried at our discretion and always for the account of and at the risk of the buyer. Insofar as our employees or agents provide support during packing, loading and unloading or during transport, they act as the buyer’s vicarious agents and at its risk.
  7. Products that the buyer is obligated to collect pursuant to agreement will be stored at the buyer’s expense and risk from the point in time at which the buyer has been notified that the products are ready for collection and the buyer is in default of collection.
  8. When products are delivered to the buyer, it shall ensure that unloading can take place without delay. Waiting times, protection and storage expenses or return freight or expenses for additional travel will be billed on a time and material basis.
  9. The conclusion of transport and similar insurance is the buyer’s responsibility. In the event of damage in transit, it is the buyer’s responsibility to arrange for a report to be drawn up immediately by the appropriate person regarding the facts as otherwise any potential claims against the shipping agent, freight carrier or their insurers might be lost.

5. Delivery time, default of acceptance

  1. Information regarding delivery times in brochures, catalogues, presentations on the internet, cost estimates and quotations are shown subject to the reservation that our own plants and suppliers are able to fulfil their obligations to us; our deliveries are subject to our ability to delivery in all other cases as well.
  2. Delivery periods or dates shown in quotations, orders or order confirmations are legally binding contractual periods or dates solely if they have been expressly agreed as binding.
  3. Compliance with the delivery period shall be determined solely and exclusively by notification of readiness for shipping or, in cases of delivery, upon transfer of the products to the shipping agent or freight forwarder. The delivery will also be deemed in compliance with the agreed delivery period if and when the essential components of the products are ready for shipment at the agreed point in time or, in cases of delivery, have been transferred to the shipping agent or freight carrier; the subsequent provision of minor accessories does not represent a failure of on-time delivery.
  4. We are entitled to set a reasonable period for acceptance and, after the fruitless expiration of this period, to dispose otherwise of the ordered products and to supply products to the buyer in accordance with a reasonable extension of the delivery period. Alternatively, we are entitled to store the products at the buyer’s expense and risk and to bill the buyer for the purchase price.
  5. If the buyer is in default of acceptance of the products, we have the right, after a deadline of 14 days has passed, either to demand acceptance or removal of all or part of the purchased products or services or to rescind the contract and request damage compensation in lieu of performance. In addition to the verifiable loss in the specific case, we are entitled to charge 15 percent of the net order value for overhead expenses and a further 15 percent for lost profit. The buyer has the right to prove a lower or non-existent amount of overhead expenses or lost profit.

6. Order changes, cancellation

  1. Changes to orders for products in stock are possible if and when a reasonable processing fee is accepted; current fees are announced in our price list for ancillary costs and in the terms and conditions on the relevant company’s website. Any expenditures that have been made or costs that have been incurred shall be reimbursed in each and every case of a (partial) cancellation that we have approved in a specific instance. When accepting return of previously delivered stock products, we charge a return fee for each and every consignment that must be processed; we publish the current charges in our price list for ancillary costs and in the terms and conditions on the relevant company’s website. The calculation is made as a percentage of the net value of the products plus VAT, but as a minimum in the amount of the stated flat-rate remuneration per consignment. Products cannot be returned unless they are undamaged and in their original packaging.

7. Force majeure, hindrances to performance for which neither party is accountable

  1. If force majeure prevents us from making delivery, the delivery date will be extended without further action for the duration of the force majeure plus a reasonable lead-in time. Circumstances unforeseeable at the time of the agreement of the delivery date for which we are not accountable and that make the performance unreasonably difficult or temporarily impossible will be deemed the equivalent of force majeure. Examples include, but are not limited to, industrial action, official actions, unavoidable shortages of raw materials or energy, major disruptions in operations due to destruction of the facility in its entirety or of important departments or the failure of indispensable production facilities or the loss of major parts of the workforce due to pandemics, serious transport disruptions etc. such as road blocks, industrial action in the transport industry, general travel or flying prohibitions. The above provisions also apply in the event that our upstream suppliers are impacted by the aforementioned circumstances. The described circumstances release us accordingly from our obligations even if they occur during a default period that has previously occurred. We will notify the buyer of any such circumstances as quickly as possible. The requirement of a notification can be waived if and when the buyer is already aware of the circumstances. If and when the circumstances last for more than three months, we have the right to rescind the contract. At the buyer’s request, we must declare whether we will rescind the contract or will deliver the products within a reasonable period that we set. Buyer’s damage compensation claims are precluded in these cases. Either party may rescind the contract without incurring any damage compensation obligations if and when it is clear that the circumstances have made performance of the contract impossible.
  2. If and when shipment is temporarily prevented or delayed owing to reasons for which we are not accountable, the delivery period (or delivery date) will be extended by the verifiable duration of the hindrance. The calculation of the extension of the period or date shall take into account a reasonable lead-in time for the resumption of the delivery actions. Customer’s claims for performance or claims in lieu of performance are precluded during the period of the hindrance.

8. Default, limitation of liability

  1. Unless an express fixed date has been agreed, default of delivery will not be deemed to have occurred until a reminder has been issued. The buyer may not rescind the contract until a reasonable deadline has expired. The buyer is obligated to accept the products even after the deadline has expired unless we received the cancellation notice before shipment of the products or notification that the products were ready for shipment.
  2. If we, our legal representatives or vicarious agents are accountable for the default owing to wilful intent or gross negligence or had guaranteed a fixed date or the buyer’s interests in the performance have verifiably lapsed owing to the occurrence of the default, we are liable in accordance with statutory provisions.
  3. To the extent that the default of delivery was caused by the culpable breach of a material contractual obligation and the failure to comply with the obligation jeopardises the purpose of the contract, the liability is limited to the foreseeable damage or loss that typically occurs in such cases and to a maximum of 5 percent of the purchase price of the products affected by the default of delivery. Insofar as timely partial deliveries are not reasonable for the buyer, they shall not be taken into account when calculating the upper liability limit (maximum 5 percent of the total purchase price of the delivery).
  4. Loss or damage from loss of rent or production, loss of use, downtime expenses, lost profit or contract penalties promised to third parties that accrue to the buyer or its customers because of default of delivery will be compensated solely if and when a binding delivery date had been agreed and the buyer had referred concretely in writing to the threat of loss or damage and of expenses in the event the deadline was exceeded.
  5. Liability is precluded in all other respects.

Prices, minimum order, ancillary expenses

  1. Unless otherwise stated in the order confirmation, our prices are shown in EUROS, net, free shipping address stated in the shipment clause, plus value-added tax applicable at the point in time of delivery, solely for the specific order and the itemised services. Special services shall be billed separately. The terms and conditions and ancillary costs are regulated locally for each and every NOVOFERM undertaking and are announced in the price list for ancillary costs and conditions on the internet site of the company with which you conclude your contract.
  2. In the event of delivery free construction site, the price is always shown free lorry, on drivable road, accessible at ground level, unless otherwise agreed. We charge delivery costs if and when the minimum order value for deliveries free construction site has not been met; current fees are announced in our price list for ancillary costs and in the terms and conditions on the relevant company’s website.
  3. Delivery addresses at island or mountain locations without lorry access lead to additional expenditures of time and in logistics. After agreement on the additional expenditures in multimodal transport (ferry, ship’s freight, helicopter, etc.), NOVOFERM will charge to the buyer the additional expenditures at its own costs plus a shipping surcharge of 25 percent on the special freight costs. The terms and conditions of the engaged service providers apply to parcel delivery. All islands that have a direct bridge connection to the mainland are not considered islands (Fehmarn, Poel, Rügen, Usedom, Zingst); prices and transport terms and conditions as applicable for the national mainland remain valid in these cases.
  4. The unloading as well as the transport to the place of use and storage are the buyer’s responsibility. If the buyer does not make a forklift and handling personnel available, our transport agent is entitled to unload the products itself at the buyer’s expense and risk.
  5. If no unloading aids (crane, forklift) are available at the unloading site, an unloading aid (carried forklift) and operating personnel can be made available at the buyer’s request and expense. They must be ordered at the latest immediately upon receipt of the delivery notification. Otherwise, any additional expenses or return freight charges shall be reimbursed by the buyer.
  6. Unless otherwise agreed, we will assume the costs of freight and packaging in the case of a total value (per delivery) of an amount as announced in our current price list for ancillary costs and terms and conditions on the relevant company’s website.
  7. NOVOFERM reserves the right to set varying minimum order values for specific group undertakings or to bill surcharges for orders below the minimum order value.
  8. For parcel delivery of spare parts or small parts by post or carrier, we charge flat rates for postage and packaging that are dependent on the type of shipment, the current amount of which we announce in our price list for ancillary costs and terms and conditions on the relevant company’s website. We are liable for the arrival time solely and exclusively within the scope of the terms and conditions of the contracted freight carrier.
  9. If prices have not been agreed in writing as binding, the prices stated in our order confirmation apply; otherwise, the prices shown in the pertinent price list in force at the time of performance of the contract apply.
  10. Unless otherwise agreed (e.g. fixed prices), the parties reserve the right to adjust prices if raw material prices, prices from upstream suppliers, wages, transport costs, tax rates or other cost factors change by more than 5 percent between the price agreement and performance of the order and the specific change was not foreseeable at the time the contract was concluded. The burden of proof shall be borne by the party claiming the adjustment. The claim can be asserted no earlier than 4 months after conclusion of the contract.

10. Terms and conditions of payment, collection authorisation, cash discount, default of payment, deterioration of assets, security, preclusion of offset, retention rights

  1. Unless otherwise noted in the order confirmation, the purchase price is due net (without any deductions) immediately upon the buyer’s receipt of the invoice.
  2. NOVOFERM reserves the right for single group undertakings to require advance payment for the first two orders from new customers.
  3. If installation has been contracted as an ancillary service, payments of the part of the purchase price attributable to the products themselves are due in cash without deductions after shipment within 10 days of the invoice date, regardless of when the products are actually received and without any consideration of the time of the performance of installation services.
  4. Partial deliveries shall be paid separately in each case in accordance with our Terms and Conditions of Payment.
  5. Payments shall be made directly to us. Our representatives, field staff, warehouse managers and similar persons are entitled to accept payments solely if we have issued written authorisation to them to do so. Payments made to them in spite of this provision shall be deemed to have been performed solely after we have received the payment.
  6. Deduction of a cash discount is subject to express agreement. If and when a cash discount has been agreed in a specific case, the right to deduct the discount lapses if the buyer is in default of payment of another invoice. Payments will first be credited to any interest claims and to the oldest receivables that are in arrears.
  7. If a SEPA direct debit mandate has been issued, the debit is announced in the invoice. If and when payment terms of less than three days have been agreed (postal delivery time of the invoice), the invoice will be sent in advance in text form or by fax for the buyer’s information. The direct debit will be effected in accordance with the concluded agreement. We charge a reasonable processing fee to cover our internal processing costs in addition to the out-of-pocket bank fees for any return debits; current fees are announced in our price list for ancillary costs and in the terms and conditions on the relevant company’s website.
  8. If the agreed net credit line has been exceeded, we are entitled, without prejudice to any other statutory claims we may have, to charge default interest in the amount of 9 percentage points above the current basic interest rate, but no less than 12 percent. Provision of proof of lower or higher loss or damage from default is permitted.
  9. Any and all rebates, bonuses and other concessions that have been granted become null and void for any and all deliveries affected by default of payment. All granted cash discounts are revoked in the event of default of payment.
  10. Any partial payments or payments without payment details that are received will, after occurrence of default of payment, be credited initially to any interest claims and then to the oldest receivables that are in arrears.
  11. If and when the buyer is in default of payment or if and when we become aware of circumstances that justify legitimate doubts about the buyer’s solvency or creditworthiness, we are entitled, regardless of any previously agreed terms and conditions of payment, to request at our discretion either reasonable advance payment or surety. In case of doubt, payments shall be deemed reasonable if and when they are accepted as a cash transaction during bankruptcy proceedings or are regarded as non-contestable. If this request is not met, we furthermore have the right, upon expiration of a reasonable period, to refuse to fulfil the contract and to request damages in lieu of the consideration.
  12. The buyer may in all cases, as long as our notification of rescission has not been received, restore the originally agreed terms and conditions of payment by sending an unconditional and unlimited absolute surety in the sum of the outstanding part of the purchase price, including ancillary costs for packaging, shipment and transport (shipping agents, carriers, transport insurers etc.) as well as any and all any potential claims to payment from subsequent addenda or services pursuant to Part IV. If the remuneration has not been agreed, security shall be provided in the amount of the reasonable remuneration common at the location. On request, we will notify the buyer of the amount of security we regard to be necessary; the notification will be binding on us within the sense of this clause.
  13. In the event of the failure to meet payment deadlines or of the submission of a petition for bankruptcy, we may prohibit the installation or the resale of the delivered products and request their surrender to us. The above provisions are without prejudice to the rights and obligations pursuant to Part II Section 15 (Retention of title).
  14. The buyer may set off counterclaims solely if they are uncontested or have been finally adjudicated or if pending litigation is not delayed by the offset.
  15. The above provision applies mutatis mutandis to the assertion of the buyer’s rights of retention. The buyer is entitled to exercise a right of retention, however, solely if and when it is based on the same contractual relationship.

11. Inspection and complaint obligation, objections

  1. Transport damage (in particular, but not limited to, damage to packaging, glass breakage etc) and deviations in quantity shall be checked at the time and place of delivery and any complaint shall be made immediately to the freight carrier, who shall confirm the damage in writing. The buyer shall provide qualified personnel for this purpose. If the products cannot be immediately surrendered and accepted upon delivery of the products to the construction site, the buyer shall bear the burden of proof that the delivery was incomplete or had suffered transport damage.
  2. Complaints of obvious damage, incorrect deliveries and other obvious defects as well as the incompleteness of the delivery shall be submitted to us in writing immediately after delivery.
  3. The products we have delivered shall be inspected immediately for defects even if samples were previously sent. The (partial) delivery will be deemed accepted if the buyer has not, before installation or processing or within a limitation period of 8 days after receipt at the place of destination, made any complaint to us in writing regarding defects or deviations in characteristics that are obvious or would have become discernible during proper inspection.
  4. Complaints regarding defects or deviations that were not discernible until a later point in time shall be submitted in writing within a limitation period of 8 days after discovery.
  5. The buyer is not entitled to assert the following claims for defects and, in the event of the resale of the products, the statutory rights of recourse unless it has complied with its duty of inspection and obligation to give notice of defects in accordance with this agreement. If notification of defects is not submitted until the products, despite discernible defects, have been processed or worked or modified, said defects in particular are precluded from the warranty.
  6. We must be given the opportunity to review the complaint if this is possible. The buyer is obligated to send us explicit photographs or descriptions of the defect, its symptoms or causes together with the complaint insofar as this appears expedient in relation to the complaint. Otherwise, any claims for defects and warranty claims are void if the condition at delivery can no longer be determined beyond doubt.
  7. Any and all expenses we incur as a result of unjustified complaints regarding defects, in particular, but not limited to, travel expenses, shall be borne by the buyer.

12. Warranties, claims due to defects, warranty period

  1. Warranties must be declared expressly as such in the order confirmation or agreed subsequently in writing. The special terms and conditions of warranty in Part II Section 14n apply.
  2. Information about the characteristics of our products, their processing and application, regarding special dimensional accuracy and regarding compliance with DIN standards found in advertising materials becomes contractual content or warranted characteristics solely if this has been expressly agreed in the specific case. Product modifications are possible at any time and may have the effect that information in advertising materials is outdated.
  3. We do not assume any warranties for differences in quality, dimensions, density, weights etc. provided that such differences do not exceed deviations that are customary in the industry or usual in the material, in particular if they are within the tolerances of quality regulations or standards. Special requirements for precise adherence to dimensions must be stated expressly in the purchase order and must be confirmed by us.
  4. We do not assume any warranties for defects or damage arising from the causes shown below:
     

    • Improper or careless utilisation and handling
    • Improper storage
    • Faulty assembly or installation or incorrect operational startup by the buyer or third parties
    • Incorrect protective coatings or failure to apply coatings in good time
    • Use of inappropriate paints, mortar, adhesives etc
    • Characteristics or requirements of the installation situation intended by the buyer for the products that were not known at the time of the conclusion of the contract
    • Non-observance of protection regulations or protection orders in specific cases
    • Non-observance of installation instructions, operating instructions or maintenance instructions
    • Lack of or incorrect instruction of the users/operating personnel
    • Lack of trial operation
    • Natural attrition
    • Natural wear and tear
    • Changes in colour and surface caused by exposure to light
    • Lack of or incorrect maintenance, especially, but not limited to, non-compliance with maintenance regulations
    • Use of unsuitable operating materials
    • Use of unsuitable spare parts by the buyer or third parties
    • Improper or flawed maintenance or repairs by the buyer or third parties
    • Chemical, electronic or electric influences (e.g. magnetic fields) or other unsuitable ambient conditions
    • Improper interventions by the buyer or third parties, provided that we are accountable for the circumstances prompting the interventions

    

  1. In the event of justified complaints made in good time, we will, at our option, carry out subsequent improvement or replace the product.
  2. Replaced parts become our property. The release for scrapping or other environmentally-friendly disposal within the sense of the Lifecycle Management Act [Kreislaufwirtschaftsgesetz] must be agreed with us.
  3. We are entitled to a reasonable period of time for replacement deliveries.
  4. Unless otherwise agreed, the subsequent performance is owed ex works for subsequent delivery and on the installation site for subsequent improvement. We are entitled to have the subsequent improvement carried out by our vicarious agents on site.
  5. In the event of remedy of defects, we will assume the required expenses, provided that said expenses have not been increased by the removal of the product to a site other than the place of performance. Any additional expenses incurred because, unbeknown to us at the time of the conclusion of the contract, claims due to defects must be satisfied outside the Federal Republic of Germany will be borne by the buyer. We are entitled to request a reasonable advance payment for the presumed additional expenses that will be incurred. To the extent that remuneration is billed according to expenditure of labour, only the reference times defined for our own services, billed at the rates usual in the specific country, will be accepted.
  6. If the defect does not affect suitability for use and there are no major defects, we are entitled to grant a reduction in price in lieu of subsequent performance.
  7. More extensive claims of the buyer are subject to the prerequisite that we have not remedied major defects within a reasonable period of time or that two attempts at subsequent improvement of the same defect have failed; this provision does not apply if further attempts at subsequent improvement are appropriate to the products and reasonable for the buyer.
  8. Even after the deadline has passed, we are entitled to carry out subsequent performance until we have received an unequivocal notification from the buyer expressly rejecting our further performance.
  9. Instead of rescission of the contract and compensation in lieu of performance, the buyer may request reimbursement of the expenses incurred by its own or third-party remedy, provided that these expenses do not exceed the net order value of the defective part of the delivery.
  10. Installation and removal costs in the event of resale to the buyer’s customers will be reimbursed solely and exclusively if they are the consequence of defects that cannot be detected by proper inspection prior to resale. The maximum amount of the reimbursement is limited. Insofar as remuneration is paid for work performed, solely the standard times set for our own work at the wage costs customary in the specific country will be accepted if and when the buyer has culpably allowed a deadline set by the customer for subsequent performance (remedy of defects) to expire without offering subsequent performance.
  11. Rescission may not be declared nor — if we owe performance — may acceptance be refused because of minor defects.
  12. The buyer’s failure to declare its acceptance, although obligated to do so, within two weeks after notification of completion or issue of the final invoice is the equivalent of acceptance. Any reservations due to defects must be declared during this period.
  13. The duration of the warranty period is based on statutory periods for any and all deliveries and services unless otherwise regulated in the following provisions. The term of the warranty in the case of a limitation period pursuant to Section 438 (1) no. 3 is one year if and when the buyer is a merchant in the sense of the German Commercial Code [Handelsgesetzbuch; HGB] and the purchase contract is a commercial transaction.
  14. If an acceptance procedure has been agreed, the period commences upon the final day of the acceptance, the occurrence of the acceptance equivalents (waiver of acceptance, acceptance by conclusive behaviour of the buyer or upon expiration of the period pursuant to Section 640 (2) BGB) or, at the latest, upon occurrence of default of acceptance.
  15. Complaint of defects, subsequent correspondence, measures for examination and determination of defects and subsequent performance activities neither suspend nor inhibit the expiration of the limitation period. Any such effects shall be expressly agreed in specific cases.
  16. Defect-related compensation for damages is limited by the liability agreement in Part II, Section 13 below.
  17. Claims due to defects may not be transferred or assigned without our prior consent. The buyer is the sole claimant. Warranty claims are transferable in accordance with the provisions of the terms and conditions of warranty in Part II Section 14.

13. Liability

  1. The provisions below are without prejudice to mandatory provisions of product liability regulations.
  2. In accordance with statutory provisions, we are liable for breaches of warranty, personal injury and intent or gross negligence on our part or on the part of our legal representatives or vicarious agents.
  3. If we, our legal representatives or our vicarious agents negligently breach a contractual obligation of such significance that non-compliance would endanger the purpose of the contract, our obligation to provide compensation for material damage or loss is limited to the foreseeable damage or loss that typically occurs.
  4. More extensive claims are precluded.
  5. Provisions precluding or limiting our liability apply as well to the personal liability of our employees, workers, temporary employees, representatives and vicarious agents.
  6. The buyer shall notify us immediately of any imminent damage or loss. We are not obligated to compensate any damage or loss that could have been avoided if we had been notified in good time.
  7. The buyer shall maintain adequate stocks of spare parts (in particular of all parts subject to wear and tear), operating materials etc. so that consequential damage or loss — caused in particular, but not solely, by a lack of, or limited, opportunities for use — is avoided.

Terms and conditions of warranty

  1. The terms and conditions of warranty of the relevant manufacturer apply to merchandise (third-party products). We provide an independent warranty as the manufacturer within the sense of the terms and conditions below solely and exclusively for NOVOFERM products.
  2. The offer of a warranty agreement is extended to the buyer as the party to the contract. If and when warranty agreements are offered, they are included in the specific product descriptions (installation, operating or maintenance instructions). We provide the most recently revised version on the NOVOFERM internet sites. We waive the requirement of a formal declaration of acceptance.
  3. The warranty promises and the related terms and conditions under which the claim is granted are dependent on the product. The restrictions below apply as a general principle.
  4. The stipulated warranty period commences with the passing of the performance risk to the buyer, but at the latest upon the handover of the subject of the warranty. A possible later point in time of processing or installation is not relevant and does not result in the recommencement of the period if the buyer transfers the warranty claim to its customers.
  5. In all cases, the warranty claim covers solely the repair free of charge or, at our option, replacement (part) delivery. Removal and installation costs are not covered under the warranty.
  6. The warranty claim expires if the circumstances on which it is based result from causes for which the buyer or the customer itself is accountable, in particular, but not limited to, the following::
     

    • Improper or careless utilisation and handling
    • Improper storage
    • Faulty assembly or installation or incorrect operational startup by the buyer or third parties
    • Incorrect protective coatings or failure to apply coatings in good time
    • Use of inappropriate paints, mortar, adhesives etc
    • Non-observance of protection regulations or protection orders in specific cases
    • Non-observance of installation instructions, operating instructions or maintenance instructions
    • Lack of or incorrect instruction of the users/operating personnel
    • Natural attrition
    • Natural wear and tear
    • Changes in colour and surface caused by exposure to light
    • Lack of or incorrect maintenance, especially, but not limited, non-compliance with maintenance regulations
    • Use of unsuitable operating materials
    • Use of unsuitable spare parts by the buyer or third parties
    • Improper or flawed maintenance or repairs by the buyer or third parties
    • Chemical, electronic or electric influences (e.g. magnetic fields) or other unsuitable ambient conditions
    • Improper interventions by the buyer or third parties
  7. If the buyer wishes to transfer the claims from a warranty agreement to its customers, it must submit a warranty application. The customer’s address data and the installation site of the product concerned must be provided with the customer’s consent (point (a) of Art. 6 (1) GDPR [General Data Protection Regulation]). The warranty application must be filled out completely and signed by the customer. We reserve the right to refuse to transfer the warranty claim in specific cases for legitimate reasons.

15. Retention of title (extended, expanded), storage obligation, factoring, exploitation

  1. The provisions of this Section 15 (2) to (15) do not apply to advance payment and cash payment transactions (full payment of the purchase price before or upon delivery). In all other respects (full payment of the purchase price after delivery), the following rights and obligations are agreed:
  2. Until full payment of all the trade receivables owed to us by the buyer now or in future, the following securities shall be provided to us; we will, on request and at our discretion, release securities correspondingly if their value permanently exceeds our total receivables by more than 10 percent.
  3. The products remain our property.
  4. The retention of title remains effective even if and when specific receivables are included in a running account and the balance has been determined or acknowledged (current account reservation). In the event of multiple business transactions, the retention of title remains effective even if and when a consignment has been paid, but there is still an unpaid balance from other consignments (expanded retention of title).
  5. The buyer is entitled to process the reserved goods in the normal course of business as long as it is not in default of payment.
  6. Processing or alteration is always done on our behalf as manufacturer, but without any obligation on our part. If the products are processed together with products, materials or other third-party assets that do not belong to us, including processing for third parties as manufacturers, we acquire co-ownership of the new product in the ratio of the value of our products to the third-party assets at the time of the processing.
  7. If our (co-)ownership expires through mixing, combination or processing, it is agreed here and now that the buyer’s (co-)ownership to the single product will be transferred to us in the ratio of the value of the products (invoice value). The buyer will properly safeguard, care for and insure the (co-)owned products free of charge and ensure that no risk to third parties emanates from the (co-)owned products. Products in which we hold (co-)ownership are known hereinafter as reserved goods.
  8. The buyer is entitled to sell the reserved goods in the normal course of business as long as it is not in default of payment. Pledging or conveyance by way of security is prohibited. The buyer hereby assigns to us here and now any claims related to the reserved goods arising for the buyer from the resale or other legal reasons (balance from current account, remuneration for installation, benefits paid by an insurance company, damage compensation for actions in tort) in the invoice value of the reserved goods as security. It is irrelevant for the assignment whether we, the buyer or vicarious agents of the one or the other party carry out the installation. The buyer is revocably authorised to collect any receivables assigned to us for its account on its own behalf. We may revoke this authorisation to collect if the buyer does not correctly meet, or is unable to meet, its payment obligations.
  9. The buyer is entitled to sell the receivables arising from business with its customers and assigned to us to a factor in the form of genuine factoring solely after obtaining our consent. The claim against the factor is assigned to us here and now in the amount of 110 percent of the invoice value of the relevant reserved goods. If the claim against the factor also serves as security for other suppliers with retention of title, the assignment is limited to the amount of the share resulting from the ratio of all of the receivables secured by retention of title and assignment against the customer (quota share). Our claim from the relevant contractual relationship against the buyer becomes due immediately and without deduction of cash discount upon the factor’s payment of the purchase price for the receivable.
  10. In the event of third-party attachment of the reserved goods, the buyer will refer to our title and notify us immediately. The buyer bears any expenses and loss or damage caused by the attachment to the extent that they cannot be collected from third parties.
  11. In the event of the buyer’s conduct in breach of the contract — in particular, but not limited to, default of payment — we are entitled to repossess the reserved goods. The buyer gives its consent here and now to this repossession of the reserved goods in this case. Should the reserved goods be in possession of a third party, the buyer here and now assigns its claims for surrender of the products against the third party to us. If and when the third party is entitled to legitimate claims to the reserved goods, said claims will be given due consideration. As the indirect owner of the reserved goods, we have the right to enter the buyer’s premises.
  12. Neither our repossession nor our seizure of the reserved goods nor the disclosure of the assignment of security represents the rescission of the contract if the buyer is itself a merchant within the sense of commercial law regulations.
  13. At our request, the buyer is obligated to give us information regarding all assigned receivables, in particular, but not solely, a list of debtors with their names, addresses, amounts of the receivables, dates and numbers of invoices, and, on request, to provide the documents necessary to assert the claims.
  14. We are entitled to claim the reserved goods and buyer’s assets that are subject to our material influence as security and to exploit them freely on the open market following an unsuccessful offer of a reasonable transfer fee if the buyer is itself a merchant within the sense of commercial law regulations.
  15. The recoverable value (security value) is authoritative for assessment of any and all securities. If this cannot be determined in a reasonable manner and within a reasonable period of time, we are entitled, for the assessment of products securities, to use their delivery price, excluding any additional services, value-added tax, discounts, rebates and freight and other ancillary costs; receivables will be assessed at their nominal value.

16. Technical modifications

We may carry out technical modifications that serve to improve the products without the buyer’s prior consent, provided that the modifications are reasonable for the buyer.

17. Privacy policy

We wish to point out that data related to business incidents are processed electronically at NOVOFERM, and we reserve the right to communicate to the insurer any data required to obtain commercial credit insurance. Please also note our data protection declarations and terms of use for internet services published on the NOVOFERM website.

18. Proper law for international business transactions

These Terms and Conditions of Business and any and all legal relationships between us and the buyer are governed by the laws of Germany, precluding application of the UN Convention on the International Sale of Goods of 11 April 1980 (CISG — “Vienna Sales Convention”).

19. Authoritative contract language, rules of interpretation

  1. Unless otherwise agreed, German is the contract language. If and when a version of the order confirmation in the buyer’s language or another foreign language has been issued in addition to the order confirmation in German, the German document is solely authoritative. If an order confirmation solely in a foreign language has been issued, the wording of the German translation is solely authoritative for interpretation.
  2. If and when there is disagreement between the parties regarding the wording of a translation pursuant to Subsection (1), a publicly appointed official document translator will be jointly engaged at the expense of the two parties; the translator’s wording will be authoritative for the interpretation of the contract.
  3. If the question of the interpretation of the contract or the authoritative version cannot be clarified by mutual agreement, the competent court will determine the basis of the interpretation on its own authority.

20. Place of payment, venue

  1. If and when the buyer is a merchant within the sense of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the place of performance for the buyer’s contractual obligations is as shown below:
     

    • Novoferm GmbH: registered office in 46419 Isselburg-Werth
    • Novoferm Vertriebs GmbH: registered office in D-46419 Isselburg-Werth
    • Novoferm Spareparts GmbH: registered office in D-46459 Rees
    • DSS Docking Solution und Service GmbH: registered office in D-30419 Hanover
    • TST Tor System Technik GmbH: registered office in D-52353 Düren
    • Novoferm tormatic GmbH: registered office in D-44145 Dortmund
    • Novoferm Riexinger Türenwerke GmbH: registered office in D-74336 Brackenheim-Hausen
    • Novoferm Siebau GmbH: business address in D-57223 Kreuztal.
  2. If and when the buyer is a merchant, a legal entity under public law or a special fund under public law within the sense of the German Commercial Code (HGB) or does not maintain a registered office in the Federal Republic of Germany, sole and exclusive venue for any and all disputes arising directly or indirectly from this contractual relationship is as shown below:
     

    • Concerning Novoferm GmbH, D-46419 Isselburg-Werth: Bocholt Local Court
    • Concerning Novoferm Vertriebs GmbH, D-46419 Isselburg-Werth: Bocholt Local Court
    • Concerning Novoferm Spareparts GmbH, D-46459 Rees: Coesfeld Local Court
    • Concerning DSS Docking Solution und Service GmbH, D-30175 Hanover: Hanover Local Court
    • Concerning TST Tor System Technik GmbH, D-52353 Düren: Düren Local Court
    • Concerning Novoferm tormatic GmbH, D-44145 Dortmund: Dortmund Local Court
    • Concerning Novoferm Riexinger Türenwerke GmbH, D-74072 Heilbronn/Neckar: Heilbronn Local Court
    • Concerning Novoferm Siebau GmbH, D-46459 Rees: Coesfeld Local Court
      The above provisions apply mutatis mutandis to legal proceedings against the buyer. We are also entitled, however, at our discretion to initiate legal proceedings at the venue of the buyer’s registered office.

 

Part III Contract for work and materials

21. Supplement to Part II, Section 5: Default of acceptance for special products

  1. If, and to the extent that, the stored products have been manufactured in accordance with buyer’s specifications or cannot otherwise be sold directly owing to buyer’s instructions (custom products), and the buyer does not pay the purchase price and/or the expenses of the storage and warehousing despite the setting of a deadline and the warning of the destruction of the products, we are entitled to destroy the products at the buyer’s expense and risk. In this case, the buyer owes the purchase price, the expenses for storage and removal, warehouse fees and the expenses for destruction less the scrap value of the products. During this period, the buyer is entitled to submit proposals for exploitation that will reduce the loss and to collect the products or have them stored at its own expense at any time after remitting payment.
  2. Special products are generally excluded from exchange or cancellation.

22. Buyer’s collaboration, subsequent change requests, no return of products, effects on price and performance time

  1. Each and every delivery period begins solely after receipt of any and all documents necessary for the execution of the order, clarification of any and all material details for starting manufacture, after release of the plans for production or procurement of the products and after receipt of payment, insofar as it has been agreed that payment will be due when the order is placed. Our compliance with the delivery or service period is subject to the provision that any and all commercial and technical issues between the parties have been clarified and that the buyer has fulfilled all its collaboration obligations.
      
  2. If the buyer is obligated to collaboration or if the buyer is responsible for collaboration actions that are essential for fulfilment of the contract, we will submit an informal request for the actions before manufacturing the products. The agreed delivery period will be extended pursuant to Subsection (4) unless we are accountable for the delay.
  3. The agreed delivery period will be extended, even if no request has been made, if, and for as long as, the buyer has not fulfilled its contractual obligations and its collaboration obligations and responsibilities agreed at the time of the conclusion of the contract. The above provision applies in particular if and when the buyer [has not]:
     
    • Provided plans or data (for the delivery item or construction projects to be produced or processed with it)
    • Provided material or accessories (for the delivery item or for construction projects to be produced or processed with them)
    • Provided the necessary official certificates or approvals
    • Approved in good time the production drawings or
    • Effected an agreed down payment or advance payment
     
  4. If and when manufacture or delivery or our ancillary service is temporarily prevented or delayed owing to reasons for which we are not accountable, the delivery period (or delivery date) will be extended by the verifiable duration of the hindrance. The calculation of the extension of the period or date shall take into account a reasonable lead-in time for the resumption of the performance actions. Customer’s claims for performance or claims in lieu of performance are excluded during the period of the hindrance. The delivery period will be extended by a reasonable time in the event of buyer’s subsequent requests for changes or modifications.
  5. If and when the manufacture or delivery or our performance is delayed because of the aforementioned circumstances or at the buyer’s request, any and all additional expenses that have been incurred will be billed to the buyer and shall be reimbursed by the buyer.
  6. Changes after release of the plans for production or procurement are possible solely upon assumption of the expenses that have been incurred. We will bill the processing costs for subsequent change on a time and material basis; a minimum of €80.00 plus value-added tax will be charged. Changes in the order after the start of production are no longer possible. The return of products that have been manufactured in accordance with the order is generally excluded.

23. Supplement to Part II, Section 11: Warranty

  1. When manufacturing in accordance with the buyer’s drawings, we accept responsibility — independently of any other warranty and liability limitations — solely for manufacture in conformity with the drawings. The above provision applies mutatis mutandis to any other instructions and specifications of the buyer. We will point out any discernible reasons for concern.
  2. We do not assume any warranties for defects or damage arising from the causes shown below:
     
    • Failure to collaborate or inadequate collaboration (cf. collaboration obligations, Section 22)
  3. If we choose to supply a replacement, we are entitled to a reasonable period of time to do so, in particular, as required for the production of the replacement products.

Part IV Supplementary terms and conditions for installation services

24. Scope of application

  1. If we owe installation as well as delivery of the supplied products, the following Terms and Conditions of Installation apply supplementarily. These terms and conditions do not apply to remodelling, installation, repair or overhaul, inspection, maintenance or testing activities (service) that have been contracted separately. They supersede the provisions of Parts II and III solely and insofar as this has been stated expressly.
  2. The regulations of VOB/B (Construction Tendering and Contract Regulations) apply solely if expressly agreed. The above provisions are without prejudice to the regulations concerning retention of title (Part II Section 15), which remain content of the contract.

25. Transfer of the performance obligation

  1. Installation services that have been contracted as part of the delivery will, at our discretion, be transferred to a third-party company or person.
  2. The contracted third party is our vicarious agent pursuant to Chapter II, Section 13 (5).
  3. The contracted third party does not hold any power of representation. The third party is a receiving messenger for orders (e.g. spare parts, additional services, change requests or similar matters) and forwards the buyer/customer’s declaration of intent to us during the regular course of business. Change requests, orders and similar matters should be communicated directly from the buyer/customer to our competent project manager to avoid delays or miscarriage of communication.

 26. Cooperation obligation of the buyer/customer for preparation of the work

  1. The buyer/customer shall carry out any and all preparations required for the performance of an unobstructed and trouble-free installation. Unless otherwise agreed, it shall call up our performance once the prerequisites have been met.
  2. In the case of fire and smoke protection seals, the walls and doors/door openings must be built as required in the general construction permit and the installation instructions concerning the specific product. The required documents may be obtained at www.novoferm.de. The dimension tolerances must conform to DIN 18100.
  3. Evenness tolerance of the floor in accordance with DIN 18202, Table, 3, Line 4 with augmented requirements must be provided by the construction in the threshold area for the installation of “smoke-proof” doors, sliding doors, rolling doors and sectional doors. Moreover, the floor construction must be smooth, even and seamless in accordance with the requirements of our general building code approval (AbZ) and/or the general building code test certificate (AbP).
  4. All of the door openings must be freely accessible upon commencement of the installation so that our fitters can begin work without waiting.
  5. If and when loading bridges are involved, the entire installation can be carried out in one single operation and without interruption and does not involve any chiselling and breaking work or masonry, plastering, concreting, sealing or pointing work. Access to the pits of the dock levellers must be possible from the outside with the use of a telescopic forklift. The following services by the builder shall be provided free of charge for NOVOFERM on the delivery date indicated:
     
    • Any substructure that may be required (if not included in the agreed scope of services)
    • Any electrical connections that may be necessary (depending on the product) or site power (400 V, 16 A) shall be laid to the opening
    • Rule mark at every gate opening.
    • Level, load-bearing and offset-free mounting surface. It must be possible to set up ladders, equipment and lifting platforms in a stable position.
    • Closed structure in the area of the industrial doors and dock levellers (rainproof roof and wall).
    • Firm, level and load-bearing hall floor to at least 250 mm above the upper edge of the finished floor.
    • If necessary, cleaning by third parties of the products delivered by NOVOFERM from possible contamination that might have occurred at the construction site.
  6. The following collaboration actions on the part of the buyer/customer are required so that the products can be transported to the installation site without hindrance and additional expense:
     
    • An unloading opportunity in the vicinity of the building that can be used by a 40-tonne semi-trailer must be assured.
    • The transport of the products into the building with the forklift we have brought must be possible. A level and paved surface of adequate size for the unloading and transport to the installation site is required.
    • A building entrance and transport route appropriate to the size of the product to the installation site must be provided.
    • A drivable transport route to the various floors must also be provided within the building.
    • Paved areas of adequate size must be provided on both sides of the installation opening.
  7. Suitable parking spaces for the installation vehicles must be reserved free of charge in immediate proximity to the construction site.
  8. The buyer/customer shall provide a suitable lockable room/container in the building for the storage of doors and accessories.
  9. The buyer/customer shall provide helpers for any necessary transport or chiselling work, aids such as lifting equipment, electricity, water etc. at the installation site in good time and free of charge. Hole chiselling and masonry work, erection and dismantling of scaffolding and installation work shall be assumed by the buyer/customer.
  10. Additional expenses arising from difficulties and obstacles caused by the construction and the additional expenses of the installation company contracted to do the work will be charged forward to the buyer/customer against records.

27. Construction site safety, environmentally-friendly disposal

  1. The buyer/customer is responsible for safety on the construction site. Our construction supervisors or our fitters will point out any discerned risks. If the source of the danger is not eliminated immediately, the installation in the endangered installation areas must be discontinued. Any additional expenses incurred as a consequence will be charged on to the buyer/customer against records.
  2. The buyer/customer is responsible for the provision of waste and rubble containers in which we can deposit our packaging material or any construction rubble we may cause. The environmentally-friendly disposal of the waste and rubble is at the expense and risk of the buyer/customer. If a container is not made available, we will dispose of the waste/rubble at the expense and risk of the buyer/customer.

28. Execution of installation, visual inspection and passing of risk when using the products on site

  1. We carry out the installation within the scope of VOB/C, metal construction work DIN 18360. In accordance with VOB/C, masonry and chiselling work, the grouting and elastic gouging of the wall seals are not ancillary services and are consequently not a component of the contract unless explicitly stated in the contract (see Section 29 (6)).
  2. To the extent possible, we carry out a trial run and check the door function as part of the installation work by the fitters for power-operated products (doors, industrial doors etc). If the buyer/customer wishes for us to carry out the initial operational startup, we must charge for the labour time and travel expenses incurred for this task.
  3. The buyer/client is required to perform a visual inspection after door installation to document that the products are free of damage. If the use of the installed products is intended prior to acceptance, the risk of remuneration for the partial performance rendered transfers to the buyer/customer after confirmation that the products are free of damage. We offer subsequent performance (repair of damage) within a reasonable time. If parts must be reordered or re-produced, provisional measures may also be offered insofar as permissible.
  4. As an alternative to the subsequent performance referred to in Subsection (3), appropriate protective measures may be offered for partial services intended for use ahead of schedule.

29. Limits to performance, ancillary services not included, completion work to be performed by builder

  1. The readiness for operation and functional capability of power-operated doors and industrial doors are not achieved until after the internal electric installations and laying (connection) of the required power lines have been completed by the builder. According to the limits to performance of the DIN regulation, all routing and connection of any electrical parts as shown in our circuit diagrams as well as the power supply and wiring of parts with the necessary cables must be performed by the builder. If we are contracted to carry out the electric installation, the installation and operational startup is included in our prices. The creation and laying of the power lines must be performed by the builder in all cases.
  2. Experience leads us to recommend strongly, however, that you engage us to perform the internal installation and operational startup on the basis of verified costs of materials and labour. Only then can we ensure the functional reliability of the door systems we supply.
  3. If we are awarded a supplementary contract to carry out the electric installation, we require that the power lines to the switch cabinet and the delivery and the routing of the primary switch or the 400-volt outlet have been prepared by the builder before the installation.
  4. With “smoke-proof doors” (in accordance with DIN 18095), the grouting of the joints by the builder between the frame and the wall must be elastic on at least on one side (preferably the hinge side) to comply with approval requirements. The jointing is not required for NovoPorta Premio doors (combined fire and smoke protection) if they are installed in solid walls and backfilled with mineral mortar (Mortar Group II grade as a minimum).
  5. The parts we deliver will be welded on and cold galvanised or primed during installation on steel structures of the building built by the builder (not permitted for fire-resistant seals).
  6. In accordance with the performance limits of the DIN regulation (18360 ATV Metal Construction Work), the backfilling or grouting of our products, in particular the frames and thresholds after their attachment to the building in accordance with the specifications of building authority approvals or the recognised rules of technology (e.g. backfilling, plugging, grouting, mortaring or permanently elastic grouting) is a special service that must either be provided by the builder or additionally ordered. The same applies to the compensation of building shell tolerances (Section 4.2.10 DIN 18360). It is possible to conclude a supplementary contract for these services with us after consultation. If and when we are engaged for the connection or compensation work, the backfilling or sealing will be carried out in accordance with the approval and agreement. When grouting, the space between door frame and wall is filled with cement mortar of Mortar Group II. The seam between door frame and wall that is still visible will remain (as will exposed concrete or exposed masonry) with the resulting surface and will not be plastered.
  7. Any and all filling, plastering or painting work is the responsibility of the builder. Our vicarious agents are not equipped for this work.
  8. If the grouting work is a part of our contract, we will use silicone or acrylic (available in the options white, concrete grey or transparent) for the work.
  9. The setting and/or securing of the door locking devices or of the wall- or floor-mounted door bumpers, including travel expenses to the site, is subject to additional charge if the wall or the floor has not been completed at the time of the installation or is optionally work to be performed by the builder. The above provision also applies if the door locking mechanism must be embedded in concrete.

30. Installation date, hindrances, extension of the installation period

  1. Unless otherwise agreed, the installation date will not become binding until we have confirmed it. Obstacles, difficulties or changes in the scope of the service will extend the installation period. A confirmed, binding appointment will be cancelled in these cases, and a new date must be agreed, as necessary, in consideration of the circumstances.
  2. Whenever the work activities are resumed after interruptions for which NOVOFERM is not accountable, the new work period must be planned, scheduled and agreed upon anew. It is incumbent on the customer to request resumption of the work activity in good time.

31. Modifications of the installation contract

  1. If, during the course of the agreed installation work, our fitters are requested to perform other installation services or installation services that have not been contracted, relevant reports will be submitted after the end of the work. The modified or additional work will be charged at hourly rates for labour and may lead to an extension of the installation period.

32. Installation price, charges for waiting periods, no offset of own performance

  1. The agreed installation price is based on the assumption that the installation of all parts of the complete contract can be carried out without any hindrances or difficulties and without interruption. Waiting periods and expenses for additional travel to the site or overnight accommodation at the installation site resulting from the lack of or delays in performance of the buyer/customer’s collaboration obligations, from lack of performance or performance carried out too late by the builder or from other causes for which we are not accountable will be charged additionally. The above provision applies as well in the event of an interruption in the installation work for which the customer is accountable and that requires the withdrawal of the fitters from the installation site.
  2. The buyer/customer may request neither payment nor deduction from the agreed installation price for its own contribution to the installation without express written agreement.

33. Labour at hourly rates

  1. Labour at hourly rates as well as waiting periods and interruptions in installation will be charged against records.
  2. These charges are based on the rates in effect at the time of the conclusion of the contract; the current amount of such rates as well as surcharges for overtime, night, weekend and holiday work that we have announced in our price list for ancillary expenses and in the terms and conditions on the relevant company’s website apply.
  3. In addition, we charge the usual allowance for expenses per fitter and day, the current amount of which we publish in our price list for ancillary costs and in the terms and conditions on the relevant company’s website, based on the actual duration of the assignment of the fitters assigned to your project. If overnight accommodation is required, any overnight expenses incurred by the fitters for reasonable accommodation shall be reimbursed against records as well.

34. Travel expenses, distance to the place of performance

  1. Driving time/travel time is working time (see Section 33 (2)). Driving time is determined by the distance to the place of performance, the point in time and traffic conditions. The travel time depends on flight/transport schedules and the services offered by passenger carriers.
  2. We will select the vicarious agent suitable for the performance at our own discretion, taking into account the customer’s interests (Section 315 (3) BGB). NOVOFERM maintains a Germany-wide network of vicarious agents with its own service companies and their locations, with NOVOFERM contract fitters and service partners. The journey is either from the location of the chosen vicarious agent or agreed upon for the order or from an upstream service location and the return journey is back to the same location. The assignment of the fitters depends on various criteria. Their selection takes into account in particular the know-how of the vicarious agents for the specific product (product know-how), their availability and suitability for the circumstances of the type of assignment (e.g. emergency assignment), circumstances and scope of the contractual performance (number of service employees required), e.g. for long-term construction sites or special constructions. Special regional circumstances such as area coverage (e.g. in structurally weak areas) may also necessitate further access routes. The number of assigned service employees is also dependent on statutory regulations regarding occupational safety and guidelines of the employers’ liability insurance associations (accident prevention regulations). Depending on the situation and the customer’s needs, several fitters may travel in one vehicle or several fitters may travel in separate vehicles from different locations. The selection decision is made by the installation scheduler after the order has been placed and all technical questions have been clarified, usually 14 days before the planned start of the service. If the customer places particular importance on the assignment of specific vicarious agents, this request must be communicated at the same time as the order is placed or agreed subsequently, provided that any additional costs and performance time risks caused by the request are assumed.
  3. Travel expenses involving an installation/service vehicle are calculated on the basis of the kilometres driven on your behalf by each vehicle and charged at a flat rate per kilometre, the current amount of which we publish in our price list for additional costs and in the terms and conditions on the relevant company’s website. Any parking costs incurred will be charged according to actual expenditure.
  4. Travel expenses will be reimbursed to a reasonable extent (flight: economy class; train: 2nd class, seat reservation) against records.

35. Performance records, burden of proof

  1. At our request, the customer shall certify daily the hours worked (at the latest, however, after completion of the work) in the activity reports (reports).
  2. Activity reports signed by the customer without reservation are in principle incontestable billing data for the customer regarding the reported travel and performance times, substances and materials. If a vicarious agent (e.g. site or facility manager) who does not hold power of representation from the customer signs the report, the customer bears the onus of proof that the contents of the report are not correct.
  3. Unsigned activity reports will be sent to the customer with the invoice. If the customer does not object to the reported content within one month of receipt, the customer bears the onus of proof that the reported content is not correct.

36. Performance risk, acceptance, default of acceptance

  1. If an obligation to deliver to the site has been agreed, the performance risk, in abrogation of Part II, Section 4, passes to the buyer/customer upon the installation of the delivered product.
  2. If and when the delivered product is damaged after installation, we are not obligated to repair the damage or to deliver a new product if and when this is caused by the breach of a protection order or if the delivered products are used before acceptance (e.g. doors, locks etc.) (cf. Section 28 (3) and (4)).
  3. An acceptance of ancillary service is not owed. We will notify the buyer/customer after receiving the assigned fitter’s notice of completion. The joint inspection of the installed products may be agreed at the buyer/customer’s expense.
  4. If acceptance has expressly been agreed and the acceptance does not take place immediately after the completion of the installation work, the performance will be deemed accepted at the latest upon the expiration of 12 workdays after the end of the work, but in any case immediately after utilisation of the service has commenced.
  5. The installation of the accessories (hardware, etc.) is owed immediately in the course of the installation by the fitter (installation of the doors, industrial doors etc.). If separate installation becomes necessary because of reasons related to the builder’s work (e.g. subsequent painting or flooring work), and if the work is consequently interrupted for a major period (more than two weeks), we are entitled to issue a partial final invoice based on the quotation calculation or order confirmation for the installation work by the fitters that has been completed. The customer is obligated to carry out this partial acceptance. Subsection 4 applies mutatis mutandis. The performance risk passes to the customer upon the partial acceptance. We will bill any additional expenses incurred for the fitters because of assembly times or additional travel against records.

37. Validity, nullity of previous terms and conditions

  1. Should any of the above provisions be invalid, partially invalid or precluded by an separate special agreement, the validity of the remaining provisions will not be affected.
  2. The above terms and conditions supersede any and all general terms and conditions of business for the NOVOFERM group undertakings designated in Section 1 and govern any and all contracts concluded on or later than 01/06/2020.

Isselburg-Werth in March 2020
Executive Management of the NOVOFERM Group Undertakings

 

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