Made in Germany

General terms and conditions

A. General Terms and Conditions of Delivery and Payment

§1 SCOPE OF APPLICATION

1. These General Terms and Conditions of Delivery and Payment (hereinafter also referred to as "GTC") apply to all contracts, including deliveries of materials and services, between ems Isoliertüren GmbH and clients who are entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law, provided and to the extent that reference is made to these GTC in the contract.
"Client" within the meaning of these terms and conditions is the customer of the user of these terms and conditions.
Any differing or conflicting terms and conditions of the client are not recognized by us and will not become part of the contract unless we have expressly agreed to their validity in writing. Even if we are aware of conflicting terms and conditions of the client, we will only provide deliveries/services in accordance with our General Terms and Conditions. This also applies if the client's order (contract offer) is made with reference to their General Terms and Conditions and we do not object to these General Terms and Conditions of the client.
These terms and conditions also apply to all future business transactions with the client, even if no explicit reference is made to them again.
If these General Terms and Conditions are (partially) invalid or have not become part of the contract, the statutory provisions shall apply in their place. The remainder of the contract shall remain in effect. Individual agreements between us and the client (hereinafter collectively referred to as "the Parties") shall always take precedence, notwithstanding the other provisions of these General Terms and Conditions.
Any changes or additions to these Terms and Conditions are only valid if agreed upon in writing or text form. This also applies to any amendment of this written form clause.

§2 OFFERS / OFFER DOCUMENTS

Our offers are non-binding unless otherwise stated in the order confirmation.
We reserve all proprietary and copyright rights to illustrations, drawings, calculations, and other documents – including those in electronic form. The client and other persons acting under their responsibility may not make these documents accessible to third parties unless we have given the client our express consent to do so.
The content and scope of our services, as well as the conditions for their provision, are set out in our offer letter. The client bears sole responsibility for ensuring that the assumptions made in the offer letter are correct. The client must inform us immediately before execution if the assumptions made in the offer letter are incorrect. If our assumptions are incorrect, we reserve the right to amend our offer letter accordingly, particularly with regard to the scope of services, prices, deadlines, or other conditions.
Transfers of the client's rights and obligations arising from the contract with us to third parties, in particular the right to delivery, rectification of defects and compensation for damages, are only permitted with our prior written consent.

§3 PRICES / PAYMENT TERMS

Unless otherwise stated in our order confirmation, our prices are ex-works. Packaging costs are not included and will be billed separately.
We reserve the right to adjust our prices to the extent that cost reductions or increases occur after the conclusion of the contract, for example, due to changes in wages, material costs, or distribution costs. Only circumstances that arise two months or more later may be considered. Upon request from the client, we are obligated to provide a written justification for the price adjustment. A statutory adjustment of the contract based on the principles of frustration of purpose pursuant to Section 313 of the German Civil Code (BGB), as well as any existing right of the client to a price adjustment, remains unaffected. In cases of a price adjustment whose effects are so significant that they cannot reasonably be expected of the client, the client has the right to terminate the contract.
All applicable taxes, in particular statutory value-added tax (VAT), are not included in our prices. VAT is payable at the time of invoicing according to the then-current statutory rate.
Cash discounts require a written agreement.
Unless otherwise specified in the order confirmation, payment of the remuneration is due net (without deduction) within 14 days of the invoice date.
The client has a right of set-off only if their counterclaims have been legally established, are undisputed, or have been acknowledged by us. Likewise, they may only exercise a right of retention if their counterclaim is based on the same contractual relationship.

§4 DELIVERY AND DELIVERY TIME, LIABILITY FOR DELAY IN DELIVERY

The binding adherence to agreed delivery and assembly dates presupposes the timely and proper fulfillment of all obligations and duties of cooperation on the part of the client.
We aim to deliver the goods and services according to the schedule specified in our offer. However, the stated delivery or completion dates are generally estimates and not binding. Unless there is an explicit agreement regarding delivery or completion dates, the commissioned goods and services will be provided within a reasonable timeframe.
Unless otherwise agreed in the order confirmation, delivery is "ex works".
In the event of non-acceptance by the client or culpable breach of other obligations to cooperate, we are entitled to claim compensation for the resulting damages and any additional costs. Further claims remain reserved. The rights under § 642 of the German Civil Code (BGB) remain unaffected.
If the conditions pursuant to Section 4 Paragraph 3 are met, the risk of accidental loss or accidental deterioration of the object of purchase passes to the customer as soon as the customer defaults on acceptance or payment.
We are liable in accordance with statutory provisions if the underlying purchase agreement is a fixed-date transaction pursuant to Section 286 Paragraph 2 No. 4 of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB). Likewise, we are liable in accordance with statutory provisions if, due to delivery delays for which we are responsible, the customer is entitled to withdraw their interest in further performance of the contract.
We are also liable in accordance with statutory provisions if the delivery delay is due to intentional or grossly negligent breach of contract on our part; the liability for fault on the part of our representatives or agents is attributed to us. In the event of a delivery delay due to gross negligence on our part, our liability is limited to the foreseeable, typically occurring damage.
Likewise, we are liable in accordance with statutory provisions if the delivery delay for which we are responsible is based on the culpable breach of a material contractual obligation; here too, our liability for damages is limited to the foreseeable, typically occurring damage.
The limitations of liability set forth in the preceding paragraphs do not apply in the case of injury to life, body and health, for a defect after the assumption of a guarantee, in the case of fraudulently concealed defects, in the case of liability under the Product Liability Act or the General Data Protection Regulation or the Federal Data Protection Act.
Other legal claims and rights of the client remain unaffected.
If the client changes agreed delivery or completion dates, they shall bear all resulting relevant costs and expenses. Any further claims arising from this change remain unaffected.

§5 RISK TRANSFER / PACKAGING

The risk of performance and the risk of accidental loss or accidental damage to the goods (transfer of risk) passes to the customer as soon as the customer makes the goods available for collection, notifies the customer, and requests collection. If a different acceptance period has been agreed upon, the transfer of risk only occurs upon the unsuccessful expiry of that period.
Transport packaging and all other packaging in accordance with the provisions of the Packaging Act will not be taken back.

§6 LIABILITY FOR DEFECTS / TOTAL LIABILITY / STATUTE OF LIMITATIONS

We confirm the following:
1. We apply the necessary care in providing our services in accordance with recognized technical standards.
2. At the time of this offer, we are not aware of any third-party rights that would prevent delivery or performance by us.
If we fail to comply with the aforementioned clause §6 paragraph 1b, we reserve the right, at our own expense, to take one of the following alternatives at our sole discretion, each of which shall constitute the sole legal consequences of the aforementioned violation:
1. Obtaining the usage rights for the benefit of the client, so that the client can continue the use.
2. Modifications, adjustments or changes to our deliveries and services to avoid infringements of third-party rights, provided that this does not significantly impair performance and function.
3. Substitution of our agreed services by others, provided that these do not have a significant impact on the performance and function.
The client guarantees that he is the owner of the rights of use for the deliveries and services to be provided by him and that their use for the agreed deliveries and services does not infringe any rights of third parties and indemnifies us against any claims by third parties upon first request.
Should the client violate their obligations under Section 6, Paragraph 3, we reserve the right, at our discretion and at our expense, to refuse performance and withdraw from the contract. In this case, the client cannot derive any rights whatsoever.
The statutory rights of the client in respect of defects presuppose that the client has properly complied with his obligations to inspect and give notice of defects pursuant to Section 377 of the German Commercial Code (HGB).
Our deliveries and services are exclusively for use in the purpose stated in the order confirmation.
We are not liable for damages or delays caused by the use of material that is yet to be tested. Likewise, we are not liable for damages or delays resulting from defects caused by normal wear and tear or misuse, or in cases of only minor impairment of usability or only minor deviations from the agreed-upon specifications.
If the purchased item is defective, we are entitled, at our discretion, to remedy the defect by either repairing it or delivering a new, defect-free item. In the case of repair, we will bear all necessary costs, including transport, travel, labor, and material costs, provided these costs do not increase because the purchased item was moved to a location other than the place of performance.
Should the subsequent performance fail, the client is entitled, at their own discretion, to withdraw from the contract or to a price reduction. The client's claims for damages remain unaffected.
Claims for damages by the client due to intent or gross negligence, including intent or gross negligence on the part of our representatives or agents, are subject to statutory provisions. In the absence of intent on our part, liability for damages is limited to foreseeable, typically occurring damages.
We are liable in accordance with statutory provisions if we culpably breach a material contractual obligation; even in this case, liability for damages is limited to foreseeable, typically occurring damages. A material contractual obligation exists if the breach relates to an obligation on whose fulfillment the client relied and was entitled to rely.
The limitations of liability set forth in the preceding paragraphs do not apply in the case of injury to life, body and health, for a defect after the assumption of a guarantee, in the case of fraudulently concealed defects, in the case of liability under the Product Liability Act or the General Data Protection Regulation or the Federal Data Protection Act.
Any further liability for damages not regulated in clauses §6 paragraphs 1 to 12 is excluded – regardless of the type of claim. This applies in particular to claims for damages based on culpa in contrahendo (fault in contract formation), other breaches of duty, or torts pursuant to § 823 of the German Civil Code (BGB) that seek compensation for property damage.
The limitation according to clause §6 paragraph 13 also applies if the client demands compensation for wasted expenses instead of claiming damages for non-performance.
Should our liability for damages be excluded or limited, this also applies to the personal liability for damages of our employees, workers, staff, representatives and agents.
Claims for defects by the client that are not covered by Section 438 Paragraph 1 No. 2 of the German Civil Code (BGB) or, in the case of a contract for work and services, by Section 634a Paragraph 1 No. 2 of the German Civil Code (BGB), become statute-barred one year after delivery of the goods. This period does not apply to claims for damages by the client arising from injury to life, body, or health, or from intentional or grossly negligent breaches of duty by ems Isoliertüten GmbH or its agents, which are subject to the respective statutory limitation periods.
The client receives no legally binding guarantees from us.
Public statements, praise, or advertising by the manufacturer are not considered contractually guaranteed characteristics.
Should a design flaw caused by us become known during the provision of services or at a later date, we will endeavor to rectify the problem at our own expense.

§7 RETENTION OF TITLE

We retain title to the goods until all outstanding payments from the ongoing business relationship with the customer have been received in full, including any remaining balance. In the event of a breach of contract by the customer, particularly in the case of late payment, we are entitled, after setting a reasonable deadline, to repossess the goods. Repossession of the goods constitutes withdrawal from the contract. We are entitled to sell the repossessed goods, and the proceeds will be used to settle the customer's liabilities, less reasonable costs of sale.
The buyer undertakes to handle the purchased item with care and to insure it adequately against fire, water, and theft damage at its replacement value at their own expense. Any necessary maintenance and inspection work must be carried out promptly at the buyer's own expense.
As long as ownership has not yet been transferred, the client is obligated to notify us immediately in writing of any attachments or other interventions by third parties so that we can file a lawsuit pursuant to Section 771 of the German Code of Civil Procedure (ZPO). If the third party is unable to reimburse us for the court and out-of-court costs of a lawsuit pursuant to Section 771 of the ZPO, the client is liable for the resulting loss.
The customer is entitled to resell the purchased goods in the ordinary course of business. However, the customer hereby assigns to us all claims against its customers or third parties arising from such resale, up to the total invoice amount (including VAT), regardless of whether the goods are resold before or after processing. The customer remains authorized to collect these claims even after assignment. Our right to collect the claims ourselves remains unaffected. However, we will not collect the claims as long as the customer fulfills its payment obligations, is not in default of payment, and no application for insolvency proceedings has been filed or payments have been suspended. Should any of these occur, however, we are entitled to demand that the customer disclose the assigned claims and the corresponding debtors, provide all information necessary for collection, and notify the debtors (third parties) of the assignment.
Any processing or modification of the purchased goods by the customer is always carried out on our behalf. If the purchased goods are processed together with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the purchased goods (final invoice amount including VAT) relative to the other processed items at the time of processing. The same provisions apply to the item created through processing as to the purchased goods delivered under reservation of title.
If the purchased goods are inseparably mixed with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the purchased goods (final invoice amount including VAT) relative to the other mixed items at the time of mixing. If the mixing occurs in such a way that the customer's item is considered the principal item, it is agreed that the customer transfers proportionate co-ownership to us. The customer holds the resulting sole or co-ownership in trust for us.
The client also assigns to us, as security for our claims against him, any claims against a third party arising from the connection of the purchased item with a property.
We undertake to release the collateral held by us at the client's request to the extent that the realizable value of our collateral exceeds the secured claims by more than 10%. The selection of the collateral to be released is at our discretion.

§8 INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES

When we manufacture and deliver items and equipment according to the customer's specifications, drawings, or models, the customer is responsible for ensuring that no third-party intellectual property rights are infringed. The customer shall indemnify us against any related third-party claims and compensate us for any resulting damages as well as for the necessary legal costs incurred.
Should a third party invoke their own intellectual property rights and prohibit us from manufacturing the product, we are entitled to cease work without examining the legal situation. We are obligated to inform the client immediately.
The client is aware that we utilize our own specific know-how in providing our services. The client acquires no rights to this know-how, nor to any further developments, modifications, or adaptations that arise in the course of fulfilling the contract or otherwise, either by us or on our behalf. All claims or rights to this information and its further developments, modifications, or variations remain exclusively our property. The client is granted only a simple right of use for internal purposes within their own business operations, provided they require this information for the use of the deliveries and services we provide.
All intellectual property rights and copyrights to all reproductions, drawings, or other documents remain with us. The client must obtain our express written consent before passing these documents on to third parties.

§9 JURISDICTION / APPLICABLE LAW / SEVERABILITY CLAUSE

If the client is a merchant, a legal entity under public law, or a special fund under public law, the agreed place of jurisdiction is Pansdorf. However, we reserve the right to also sue the client at their general place of jurisdiction.
The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods.
Should individual contractual provisions be or become invalid due to new legal regulations, the validity of the remaining provisions of the contract shall not be affected, provided that the purpose of the contract can still be achieved. The parties are then obligated to replace the invalid provision with a provision that most closely approximates the economic intent of the invalid provision in a legally permissible manner. The same applies if a gap requiring supplementation should arise during the execution of this contract.

B. Assembly conditions

If, in addition to delivering the purchased goods, we also or exclusively undertake assembly and similar services, the following assembly conditions apply in conjunction with or as a supplement to the General Terms and Conditions. The provisions in Section A §1 apply accordingly:

§1 ASSEMBLY REQUIREMENTS

The client is responsible for ensuring that all structural prerequisites for a flawless and smooth installation are met by the agreed start date. Provided that the agreed-upon site work has been completed, we guarantee prompt and continuous installation. Should any delays or disruptions occur that are beyond our control, we reserve the right to invoice the resulting costs separately. We assume that normal site conditions are present for the installation, allowing for uninterrupted execution without any special additional work.

§2 DELIVERY

If the goods are not accepted by us or a subcontractor commissioned by us, the customer must immediately check the goods for completeness and integrity.
Delivery must be possible with a truck up to 40 tons. The delivered parts must be stored in a weatherproof and secure location, protected from damage by third parties, and theft-proof, free of charge. A suitable and secure storage area, protected from theft and damage, must be provided free of charge near the installation site. A suitable forklift must be available for unloading.
A suitable opening must be provided for bringing the building components into the building lying down. Adequate transport routes and equipment, such as forklifts, elevators, etc., must be available between the access opening/storage location and the installation location for moving the components within the building. Transport of the components within the building on a level surface must be possible within a 50 m radius.
Installations must be requested at least two full calendar weeks in advance. We will send you a request form for this purpose. The request is only considered complete once the form has been fully filled out and received by us in a timely manner. Installations take place Monday through Friday between 7:00 a.m. and 5:00 p.m. Services performed outside these hours will be charged at an additional cost. The installation site must be freely accessible during this time, and there must be no obstructions from other trades or internal transport, even outside the client's working hours. Obstacles such as pipes, ducts, air curtains, etc., in the installation area must be removed for the duration of the work. Any utility lines running under plaster in the installation area must be clearly marked by the client beforehand. A marking line must be present at the installation opening. Electricity must be available within a maximum distance of 50 meters from the installation location. All necessary preparatory work for the installation, such as masonry, plastering, chiseling, and flooring, must be completed. The floor must be walkable and have sufficient load-bearing capacity. The required opening must be present according to our specifications. If, during installation, it becomes apparent that installation in aerated concrete/Poroton or hollow brick blocks is necessary, the resulting additional costs will be charged separately. This does not apply if a corresponding agreement has been made beforehand.
Installation on a level, finished floor. Installation takes place at temperatures above freezing. If necessary, the client must provide thermal insulation between the installation and assembly areas. If installation is in exterior walls, level access from the outside must be ensured. For sliding doors, care must be taken to ensure that the area for the door is not obstructed by shelves or other objects when open. If threshold-free sliding doors (with floor guides) are used, the floor work must be completed before installation; otherwise, additional costs for a separate installation visit may be incurred.

For work at heights of 3 meters or more, assembly aids such as scaffolding, lifting platforms, or forklifts must be provided for the entire duration of the assembly, even outside the customer's normal working hours. The following are not included:
1. Power supply
2. Frame casting ready for painting
3. Final cleaning of doors and frames
The following services are not included in the installation, but can be ordered optionally:
1. adjusting the doors after the engine has cooled down
2. Subsequent setup and adjustment of radar detectors
3. Participation in an expert assessment
4. Acceptance testing of the hold-open system for fire protection products
5. Initial commissioning for electrically powered products
Hourly rate work If the installation is not billed at a flat rate, the work will be billed at an hourly rate plus any travel and freight costs incurred, as well as the use of equipment such as forklifts or lifting platforms.

Waiting times caused by delays on the part of the client or by third parties commissioned by him will be charged in addition to our current daily rates.

Instructions from the site management to carry out additional work that is not part of our contractual services will be performed on an hourly basis according to our current daily rates.
Inspection / Acceptance

The client is responsible for an inspection immediately after the installation is completed.
Disposal

The client must provide containers for disposing of the packaging material.
General

The client is obliged to inform the assembly personnel about existing safety regulations, in particular regarding safety clothing, smoking bans, welding or clamping work, etc.

Should the client fail to comply with this obligation, or do so only through slight negligence, and damages result as a result, the client is obligated to indemnify us against any and all liability for damages. If any of the aforementioned conditions are not met and this leads to an interruption of the work, a daily wage fee will be charged.

§3 ACCEPTANCE

Upon completion of the assembly work, the client is entitled and obligated to inspect and accept it.
The acceptance is deemed equivalent if the client fails to carry out the installation work despite our setting a reasonable deadline for acceptance, even though he is obligated to do so.
From the time of acceptance, no further claims for defects can be made against us with regard to known defects, unless the client expressly reserves their rights based on these defects at the time of acceptance.

§4 STATUTE OF LIMITATIONS

The client's claims for defects relating to the installation expire one year after acceptance. The limitation period pursuant to Section 634a Paragraph 1 No. 2 of the German Civil Code (BGB) remains unaffected. This limitation period does not apply to claims for damages by the client arising from injury to life, body, or health, or from intentional or grossly negligent breaches of duty by ems Isoliertüren GmbH or its agents, which are subject to the respective statutory limitation periods.

§5 CONSTRUCTION SERVICES

If we provide construction services in accordance with the definition in § 1 VOB/A (Contract Regulations for Construction Services Part A), these are subject to the provisions of VOB Parts B and C in the version valid at the time of the conclusion of the contract.

ems Isoliertüren GmbH, January 2024