AGB

General Terms and Conditions of Heep Gerüstbau GmbH

for entrepreneurs

Stand: May 2019

1. scope
1.1 The following GTC apply to contractors for the sale and delivery of construction equipment, hereinafter referred to as Customer, unless otherwise agreed individually between the parties.
1.2 Deviating, conflicting or supplementary GTC of the customer shall not become part of the contract, even if we are aware of them, unless we expressly agree to their validity.

2. conclusion of contract
2.1 With the exception of the characteristic “used”, illustrations of the goods and their descriptions on the website and/or in the catalog are not binding, in particular no assurance of certain, in particular technical, characteristics, of quality, availability, quantities, shape, color or weight. The named prices are valid ex warehouse (Wiesenstraße 10, 04683 Belgershain-Threna).
2.2 Upon an inquiry of the customer, Heep Gerüstbau GmbH shall prepare an individual non-binding offer.
2.3 With the confirmation of an order of the customer (order confirmation), Heep Gerüstbau GmbH submits a binding offer for the conclusion of a contract. The customer’s order is a non-binding offer by the customer to Heep Gerüstbau GmbH to submit a binding offer. Heep Gerüstbau GmbH agrees to an order of the customer at the latest within two weeks after receipt of the order, in case of electronically received orders at the latest within three working days (working days in Saxony are decisive). Notwithstanding the above, Heep Gerüstbau GmbH may confirm receipt of the order in writing, electronically or by telephone (confirmation of receipt). This confirmation of receipt does not constitute a binding offer by Heep Gerüstbau GmbH to conclude a contract, unless this is expressly declared by Heep Gerüstbau GmbH with the confirmation of receipt.
2.4 Acceptance of the offer by the customer shall be effected by signing the order confirmation. Heep Gerüstbau GmbH is bound to the offer for three working days (working days in Saxony are decisive). After expiry of this period, Heep Gerüstbau GmbH may otherwise utilize goods held in readiness.

3. subject matter/content of the contract
3.1 The replacement of used components by equivalent or compatible parts shall be permissible, provided that they do not impair the usability for the contractually intended purpose. The article designations (in particular in the catalog, on the website, in the offer, in the order, confirmation of receipt, order confirmation) of the used equipment/accessories accordingly also cover compatible articles in each case, e.g. the designation “Layher SpeedyScaf” also covers SpeedyScaf equipment compatible with the Layher series. Scaffold decking can be replaced by other types of decking (e.g. steel by solid wood or robust decking), e.g. “30 pieces of steel decking 0.32m wide” by “15 pieces of aluminum decking 0.61m wide”.
3.2 In accordance with the substitution under clause 3.1, a deviation of 10% below or above the named price shall be deemed agreed with regard to the prices.
3.3 In view of the limited availability of used construction equipment known to the contracting parties, the customer shall entitle Heep Gerüstbau GmbH, in the event that used equipment is not available on the agreed delivery date, to offer him this/these item(s) as compatible new goods. The obligation of Heep Gerüstbau GmbH to deliver the used equipment shall be waived to this extent within the scope of this authorization, and the customer’s payment obligation shall be waived accordingly. This authorization extends to the replacement of used articles in the value of maximum 10% of the designated net total (without taking into account the deviation according to section 3.2) before VAT, possible discounts, rebates, etc. by new goods, the net price of which (before VAT and before possible discounts, rebates, etc.) exceeds this designated net total by maximum 25%. Heep Gerüstbau GmbH will inform the customer without delay as soon as Heep Gerüstbau GmbH can foresee that used articles in the amount of a maximum of 10% of this named net total are not available on the agreed delivery date and submit a corresponding offer for new goods to the customer. This offer is binding and can be accepted by the customer within three working days (working days in Saxony are decisive). A new delivery date is agreed for the new goods. If used goods cannot be procured on the second-hand market (due to delivery failures), the Seller shall not be obliged to deliver them. He then has the right to withdraw from the purchase contract.

4. payment and retention of title
4.1 Payment of the purchase price and, in the case of delivery, also of the delivery costs shall be made by bank transfer or in cash prior to collection or delivery.
If no payment has been received by the date agreed with the customer for collection or delivery, Heep Gerüstbau GmbH may claim the expenses for further storage as well as the damages due to the delayed payment.
4.2 If a collection or delivery is made without prior full payment of the purchase price and delivery costs (upon delivery), the goods remain the property of Heep Gerüstbau GmbH until full payment has been made.
4.3 The customer may only assert set-off and retention if his counterclaims are legally established, undisputed or recognized by Heep Gerüstbau GmbH. Furthermore, he shall only be entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
4.4 Agreements on discounts as well as cash discounts and rebates will be clearly marked in the offer and also in the invoice of Heep Gerüstbau GmbH.
4.5 Returns of goods and material deliveries of Heep Gerüstbau GmbH are calculated from the previously issued invoice or paid amount of the purchased goods at a deduction of 70% from the new price. There is no legal claim to the return of goods or material.

5. delivery or collection of the goods
5.1 The goods shall be collected by the Customer from the warehouse (Wiesenstraße 10, 04683 Belgershain-Threna) unless delivery has been agreed. Separately stated individual delivery costs are incurred for the delivery, which are calculated according to the content and scope of the order. The date of delivery or collection of the goods is agreed individually.
5.2 If the customer has to take over the goods from the warehouse, he has to ensure a timely takeover of the goods, otherwise Heep Gerüstbau GmbH can claim the expenses for the further storage as well as the damages due to the delayed collection.
5.3 If it is agreed with the customer that the goods will be delivered, the goods will be delivered to the address specified by the customer after prior appointment, unless otherwise agreed. In this context, compliance with the delivery date is subject to the condition that Heep Gerüstbau GmbH is properly supplied on its part if Heep Gerüstbau GmbH has concluded a congruent covering transaction with its supplier at the time of the conclusion of the contract with the customer. If an incorrect or delayed delivery from suppliers of Heep Gerüstbau GmbH leads to the delivery date agreed with the customer being exceeded by more than 6 weeks, Heep Gerüstbau GmbH may withdraw from the contract unless the customer declares to Heep Gerüstbau GmbH in advance, upon corresponding request, that he wishes to adhere to the contract. Heep Gerüstbau GmbH shall inform the customer immediately about the non-availability and shall reimburse him immediately for any consideration already rendered. Cases of force majeure – in particular operational disruptions, delays in the delivery of essential raw, auxiliary and operating materials, strike and lockout – suspend the delivery obligation of Heep Gerüstbau GmbH for the duration of the disruption to the extent of its effect.
5.4 If it has been agreed with the customer that the goods will be delivered, Heep Gerüstbau GmbH shall be entitled to make partial deliveries if the partial delivery is usable for the customer within the scope of the contractually intended purpose, the remaining delivery is ensured and the customer does not incur any significant additional expense as a result. The customer may refuse to accept partial deliveries if he is justifiably not interested in a partial delivery.
5.5 If force majeure – in particular operational disruptions, delays in the delivery of essential raw materials, auxiliary materials and supplies, strike and lockout – leads to a final, permanent, irreparable impediment to performance, both parties shall be entitled to withdraw from the contract. Such a final, permanent, irreparable impediment to performance is regularly the existence of force majeure for a period of 6 weeks.

6. warranty
6.1 The customer shall fulfill its obligations under commercial law to inspect the goods and to give notice of defects.
6.2 If the new goods have a defect, Heep Gerüstbau GmbH shall, at its own discretion, remedy the defect or exchange the delivered goods for new goods. Heep Gerüstbau GmbH shall bear the expenses necessary for subsequent performance, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the delivery item was taken to a place other than the place of delivery. Should the elimination of the defect or the delivery of new goods fail, the customer may withdraw from the contract or reduce the price to that extent. At least two attempts to remedy the defect shall be reasonable for the customer. In case of insignificant breaches of duty, withdrawal is excluded. Further claims of the customer are excluded.
6.3 If used goods have a defect, a warranty exists insofar as Heep Gerüstbau GmbH was aware of the defect at the time of conclusion of the contract or was not aware of it due to gross negligence. Used scaffolds are always dirty (paint, concrete and plaster splashes). Dirt on used scaffold parts does not constitute a defect.
6.4 Claims for defects shall become statute-barred – except in cases of § 438 para. 1 item. 2 – within one year from the statutory commencement of the limitation period.
6.5. The customer must be expected to cooperate in the rectification of defects. After consultation, he shall ensure that defective goods are made available and loaded.

7. other liability
7.1 Heep Gerüstbau GmbH shall be liable for damages of the customer, regardless of the legal reason, which are based on injury to life, body, health, in the full amount.
7.2 Likewise, Heep Gerüstbau GmbH shall be liable for any other damage resulting from an intentional or grossly negligent breach of contract. If, on the other hand, it is based on simple negligence, Heep Gerüstbau GmbH shall be liable in the event of a breach of a cardinal obligation (i.e. an obligation – in any case in a reciprocal relationship – the fulfillment of which enables the proper performance of the contract in the first place and the observance of which the customer relies on and may also rely on) for damages typical for the contract and which were reasonably foreseeable at the time of the conclusion of the contract.
7.3 Any further liability is excluded. The liability from ProdHaftG as well as for fraudulent intent and/or guarantees is unaffected.

8. place of jurisdiction – place of performance – choice of law – partial invalidity
8.1 The place of jurisdiction of Heep Gerüstbau GmbH shall be exclusively Leipzig, provided that the customer is a merchant. However, Heep Gerüstbau GmbH may also sue the customer at the customer’s place of business.
8.2 The place of performance shall be the registered office of Heep Gerüstbau GmbH, provided that the customer is a merchant.
8.3 The law of the Federal Republic of Germany shall apply exclusively. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
8.4 Should any provisions of these GTC be or become invalid or void in whole or in part, this shall not affect the validity of the remaining provisions.
________________________________________________________

For consumers

Stand: May 2019

1. scope
The following GTC apply to consumers for the sale and delivery of construction equipment, hereinafter referred to as Customer, unless otherwise agreed individually between the parties.

2. conclusion of contract
2.1 With the exception of the characteristic “used”, illustrations of the goods and their descriptions on the website and/or in the catalog are not binding, in particular no assurance of certain, in particular technical, properties, of quality, availability, quantities, shape, color or weight. The named prices are valid ex warehouse (Wiesenstraße 10, 04683 Belgershain-Threna).
2.2 Upon an inquiry of the customer, Heep Gerüstbau GmbH shall prepare an individual non-binding offer.
2.3 With the confirmation of an order of the customer (order confirmation), Heep Gerüstbau GmbH submits a binding offer for the conclusion of a contract. The customer’s order is a non-binding offer by the customer to Heep Gerüstbau GmbH to submit a binding offer. Heep Gerüstbau GmbH agrees to an order of the customer at the latest within two weeks after receipt of the order, in case of electronically received orders at the latest within three working days (working days in Saxony are decisive). Notwithstanding the above, Heep Gerüstbau GmbH may confirm receipt of the order in writing, electronically or by telephone (confirmation of receipt). This confirmation of receipt does not constitute a binding offer by Heep Gerüstbau GmbH to conclude a contract, unless this is expressly declared by Heep Gerüstbau GmbH with the confirmation of receipt.
2.4 Acceptance of the offer by the customer shall be effected by signing the order confirmation. Heep Gerüstbau GmbH is bound to the offer for three working days (working days in Saxony are decisive). After expiry of this period, Heep Gerüstbau GmbH may otherwise utilize goods held in readiness.

3. subject matter/content of the contract
3.1 The replacement of used components by equivalent and compatible parts is permissible, provided that they do not impair the usability for the contractually intended purpose. The article designations (in particular in the catalog, on the website, in the offer, in the order, confirmation of receipt, order confirmation) of the used equipment/accessories accordingly also cover compatible articles in each case, e.g. the designation “Layher SpeedyScaf” also covers SpeedyScaf equipment compatible with the Layher series. Scaffold decking can be replaced by other types of decking (e.g. steel by solid wood or robust decking), e.g. “30 pieces of steel decking 0.32m wide” by “15 pieces of aluminum decking 0.61m wide”.
3.2 In accordance with the substitution under clause 3.1, a deviation of 10% below or above the named price shall be deemed agreed with regard to the prices.
3.3 In view of the limited availability of used construction equipment known to the contracting parties, the customer shall entitle Heep Gerüstbau GmbH, in the event that used equipment is not available on the agreed delivery date, to offer him this/these item(s) as compatible new goods. The obligation of Heep Gerüstbau GmbH to deliver the used equipment shall be cancelled to this extent within the scope of this authorization, and the customer’s payment obligation shall be cancelled accordingly. This authorization extends to the replacement of used articles in the value of maximum 10% of the designated net total (without taking into account the deviation according to section 3.2) before VAT, possible discounts, rebates, etc. by new goods, the net price of which (before VAT and before possible discounts, rebates, etc.) exceeds this designated net total by maximum 25%. Heep Gerüstbau GmbH will inform the customer without delay as soon as Heep Gerüstbau GmbH can foresee that used articles in the amount of a maximum of 10% of this named net total are not available on the agreed delivery date and submit a corresponding offer for new goods to the customer. This offer is binding and can be accepted by the customer within three business days (business days in Saxony are decisive). A new delivery date is agreed for the new goods. If used goods cannot be procured on the second-hand market (due to delivery failures), the Seller shall not be obliged to deliver them. He then has the right to withdraw from the purchase contract.

4. payment and retention of title
4.1 Payment of the purchase price and, in the case of delivery, also of the delivery costs shall be made in cash or by bank transfer prior to collection or delivery. If no payment has been received by the date agreed with the customer for collection or delivery, Heep Gerüstbau GmbH may claim the expenses for further storage as well as the damages due to the delayed payment.
4.2 If a collection or delivery is made without prior full payment of the purchase price and delivery costs (upon delivery), the goods remain the property of Heep Gerüstbau GmbH until full payment has been made.
4.3 The customer may only assert set-off and retention if his counterclaims are legally established, undisputed or recognized by Heep Gerüstbau GmbH. Furthermore, he shall only be entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.

5. delivery or collection of the goods
5.1 The goods shall be collected by the Customer from the warehouse (Wiesenstraße 10, 04683 Belgershain-Threna) unless delivery has been agreed. Separately stated individual delivery costs are incurred for the delivery, which are calculated according to the content and scope of the order. The date of delivery or collection of the goods is agreed individually.
5.2 If the customer has to take over the goods from the warehouse, he has to ensure a timely takeover of the goods, otherwise Heep Gerüstbau GmbH can claim the expenses for the further storage as well as the damages due to the delayed collection.
5.3 If it is agreed with the customer that the goods will be delivered, the goods will be delivered to the address specified by the customer after prior arrangement of a date, unless otherwise agreed. In this context, compliance with the delivery date is subject to the condition that Heep Gerüstbau GmbH is properly supplied on its part if Heep Gerüstbau GmbH has concluded a congruent covering transaction with its supplier at the time of the conclusion of the contract with the customer. If an incorrect or delayed delivery by suppliers of Heep Gerüstbau GmbH leads to the delivery date agreed with the customer being exceeded by more than 6 weeks, Heep Gerüstbau GmbH may withdraw from the contract unless the customer declares to Heep Gerüstbau GmbH in advance, upon corresponding request, that he wishes to adhere to the contract. Heep Gerüstbau GmbH shall inform the customer immediately about the non-availability and shall reimburse him immediately for any consideration already rendered. Cases of force majeure – in particular operational disruptions, delays in the delivery of essential raw, auxiliary and operating materials, strike and lockout – suspend the delivery obligation of Heep Gerüstbau GmbH for the duration of the disruption to the extent of its effect.
5.4 If it has been agreed with the customer that the goods will be delivered, Heep Gerüstbau GmbH shall be entitled to make partial deliveries if the partial delivery is usable for the customer within the scope of the contractually intended purpose, the remaining delivery is ensured and the customer does not incur any significant additional expense as a result. The customer may refuse to accept partial deliveries if he is justifiably not interested in a partial delivery.
5.5 If force majeure – in particular operational disruptions, delays in the delivery of essential raw, auxiliary and operating materials, strike and lockout – leads to a final, permanent, irreparable impediment to performance, both parties shall be entitled to withdraw from the contract. Such a final, permanent, irreparable impediment to performance is regularly the existence of force majeure for a period of 6 weeks.

6. warranty and liability
6.1 If the new goods have a defect, Heep Gerüstbau GmbH shall remedy the defect or, depending on the customer’s choice, exchange the delivered goods for new goods. This subsequent performance shall be carried out by Heep Gerüstbau GmbH within a reasonable period of time. It shall not take place if Heep Gerüstbau GmbH is entitled to refuse subsequent performance on the basis of statutory provisions. During the supplementary performance, the customer cannot withdraw from the contract due to the defect and cannot reduce the price. Should the elimination of the defect or the delivery of new goods fail, the customer may withdraw from the contract or reduce the price to that extent. At least two attempts to remedy the defect shall be reasonable for the customer. Heep Gerüstbau GmbH shall bear the expenses necessary for subsequent performance, in particular transport, travel, labor and material costs.
6.2 If used goods have a defect, this warranty shall apply insofar as Heep Gerüstbau GmbH was aware of the defect at the time of conclusion of the contract or was not aware of the defect due to gross negligence. Claims for defects regarding used goods shall become statute-barred within one year from the statutory commencement of the limitation period. Used scaffolds are always dirty (paint, concrete and plaster splashes). Dirt on used scaffold parts does not constitute a defect.
6.3 The customer shall be expected to cooperate in the rectification of defects. After consultation, he shall ensure that defective goods are made available and loaded.
6.4 Heep Gerüstbau GmbH shall be liable for damages of the customer, regardless of the legal grounds, which are based on injury to life, body, health, in the full amount.
6.5 Likewise, Heep Gerüstbau GmbH shall be liable for any other damage resulting from an intentional or grossly negligent breach of contract. If, on the other hand, it is based on simple negligence, Heep Gerüstbau GmbH shall be liable in the event of a breach of a cardinal obligation (i.e. an obligation – in any case in a reciprocal relationship – the fulfillment of which enables the proper execution of the contract in the first place and the observance of which the customer relies on and may also rely on) for damages typical for the contract and which were reasonably foreseeable at the time of the conclusion of the contract.
6.6 Any further liability is excluded. The liability from ProdHaftG as well as for fraudulent intent and/or guarantees is unaffected.

7 Jurisdiction – Choice of Law – Partial Invalidity
7.1 The place of jurisdiction of Heep Gerüstbau GmbH shall be exclusively Leipzig, if the customer has no general place of jurisdiction in Germany. In this case, Heep Gerüstbau GmbH may also sue the customer at the customer’s general place of jurisdiction.
7.2 The law of the Federal Republic of Germany shall apply exclusively. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
7.3 Should any provisions of these GTC be or become invalid or void in whole or in part, this shall not affect the validity of the remaining provisions.