General Terms and Conditions of Business for wind load calculations Friedrich Ossenberg-Schule GmbH + Co. KG, Amerikastraße 2, 58675 Hemer, GERMANY
(Hereinafter known as FOS®)
1. General, Scope of application
The following terms and conditions shall apply for all offers, goods and services for wind load calculations. Any general terms and conditions of business the Customer may have shall definitely not apply. These T&Cs shall also apply between the Parties for future services without specific reference having to be made to them.
FOS® shall only enter into contracts with entrepreneurs. An entrepreneur is a natural person or legal entity or a partnership having legal capacity which is acting in the course of its commercial or independent professional work when entering into a legal transaction.
2. Offers, Order confirmation
Unless expressly agreed otherwise, offers shall be subject to change without notice. Technical descriptions in offers, leaflets and other information shall not be binding.
The Customer shall be bound by his offer for three weeks. The order shall only be regarded as having been accepted if it is confirmed in writing by FOS®. This shall apply accordingly for supplements and amendments.
Subsequent amendments at the Customer’s insistence shall be invoiced to him.
3. Prices and Payments
The prices agreed when the contract is signed shall apply.
Subject to agreements made otherwise, wind suction calculations shall be charged on the basis of time actually taken. If an hourly rate has not been agreed in a contract, the hourly rate quoted at that time by FOS® in its price list shall apply. The wind suction calculations drawn up by professional planners shall be invoiced at the fixed sums valid at that time. FOS® shall charge a minimum sum of two roof area lump sums for having wind suction calculations drawn up by professional planners. If fixed sums have not been agreed the lump sums shown in the FOS® price list in force at that time shall apply.
Value added tax shall have to be paid at the rate in force at that time in addition to the prices. Invoices shall be payable in accordance with the date given or if the date has not been stated within 14 days from the date of invoice net cash free to the point of payment.
Preparatory work such as samples, drafts, sketches or concepts shall be invoiced separately.
If, after a contract has been awarded, it turns out that additional work is necessary which could not have been foreseen when the contract was signed, FOS® may invoice such work in addition. If the surcharge exceeds 10% of the total price, the Customer shall consequently be entitled to withdraw from the contract. Unless his attention has already been drawn to the unscheduled price increase by FOS® and the Customer has not raised an objection to this in writing.
4. Object of performance
FOS® shall draw up wind suction regulations laid down by the Zentralverbandes des Deutschen Dachdeckerhandwerks (Central Association of the Central Association of the German Roofing Trade), status as at 12/2012. In these the requirement for storm clips is calculated by means of information provided by the Customer. The Customer is obliged to take measurement results included, in particular laying patterns and methods, and number of fixings into account as appropriate when converting the results of the wind suction calculation into a technical format. Subject to the regulations in No 11, FOS® shall not accept any liability for discrepancies from the wind suction calculation. FOS® shall be entitled to transfer some or all the duties incumbent upon it under this contract to third parties.
5. Transfer of rights of use
The copyrights materialising for the wind suction calculation, the individual information as well as any incorporated elements there may be shall belong to FOS®. FOS® grants the Customer a non-exclusive right of use to the wind suction calculation, limited to the purpose for which the wind suction calculation has been drawn up. Rights of use other than this shall only be granted by means of a separate agreement and for a corresponding remuneration.
FOS® shall be entitled to state its name as author by inserting a notice to this effect on every calculation drawn up by it. It may insert this copyright notice itself and the Customer shall not be entitled to remove it without the consent of FOS®.
6. The Customer’s obligation to co-operate
The Customer shall have to notify FOS® in good time of all the information necessary to work out the wind suction calculations. In particular, the Customer shall undertake to FOS® to hand over the data sheet filled in correctly and in full. Insofar as the Customer is aware that information over and above that in the input fields in the data sheet is required for the actual wind suction calculations to be worked out, he shall have to notify FOS® of this information separately.
Subject to agreements otherwise, the wind suction calculation shall not apply for exposed areas.
When applying the results of the wind suction calculations the Customer shall have to take into account the assumption that the wind suction calculations are based upon the roof tiles supplied being totally free of defects. In accordance with generally recognised tolerances, up to 3% of the roof tiles supplied may be defective.
7. Time limit for performance and Termination
Deadlines shall only be binding if they have been expressly confirmed as such by FOS®. Non-compliance with this deadline shall not be detrimental for FOS®, if and insofar as the delay is the result of a breach of duties or obligations by the Customer.
The contract may be terminated prematurely by either Party in the event of substantial breaches of duty by the other Party, in particular if the Customer persistently fails to discharge his duties to co-operate in accordance with Number 6 of this contract or the Customer fails to pay down payments due.
When this contract is effectively terminated by the Customer all rights of use to wind suction calculations already produced as well as title to all representations thereof shall pass over to the Customer in return for the payment of the value of the work already carried out.
The right to terminate the contract in accordance with Section 649 of the German Civil Code [BGB] shall not apply.
8. Acceptance and time of payment
Upon completion of the wind suction calculation and its transfer to the Customer’s sphere of control, the Customer shall be obliged to issue written acceptance within 5 working days, unless there are substantial defects.
If the Customer fails to declare acceptance within six weeks from the wind suction calculations being handed over to him, and if in the meantime he has not notified any important defects, the performance shall be regarded as having been accepted by no later than this point in time.
Acceptance shall also be rendered by the Customer uses the performance without stating that the utility has been substantially reduced.
FOS® is at all times entitled to submit parts of the wind suction calculations for early partial acceptance, which the Customer has to grant if the part can be assessed as it is. Once parts of the wind suction calculation have been accepted, they cannot be rejected by the Customer subsequently and a modification to them cannot be demanded either, unless there are circumstances extant which could not yet have been identified by the Customer at the point in time of partial acceptance. The scope and point in time of the obligation to pay a remuneration shall not be affected by a partial acceptance and shall be determined solely by these T&Cs.
After the completed wind suction calculation submitted has been completely accepted, the Customer is to be invoiced for the total remuneration minus down payments already made with the presentation of a final invoice.
9. Default, Impossibility, Withdrawal
If FOS® is in default with handing over an item, and if it is guilty of the reproach of gross negligence or intent in connection with being in default, the Customer is to be compensated for all losses he sustains as a result thereof. In the event of ordinary negligence the Customer’s claims shall not be admitted.
10. Warranty / Quality defects
FOS® shall furnish a warranty as follows:
The Customer shall be obliged to inspect the results of the work immediately after handover and notify FOS® of existing defects in writing within 48 hours. Defects notified late, that is other than as stated in the above obligation shall not be covered by warranty. Concealed defects which only become apparent over the course of time are to be reported by the Customer in writing immediately upon discovery. Notified defects shall only be recognised as such if they have been reported in writing.
Subject to No 11, FOS® cannot be held liable for losses incurred by the Customer because the order was not placed on time.
The period covered by warranty shall be 12 months and shall begin with the passing of risk over to the Customer.
11. Liability for breaches of duty
Irrespective of the warranty provisions as well as other special the following shall apply in the event that FOS® has breached a duty:
FOS® shall be liable for its employees, assistants and vicarious agents to pay compensation for damages for an unlimited amount for ordinary negligence as well in the event of death, personal injury and physical harm.
In addition to this, FOS® may only be held liable to the following extent:
If FOS® breaches a cardinal contractual obligation, that is, one which has to be fulfilled if the contractual objective is to be achieved, FOS® shall also be liable in cases of intent, gross negligence and ordinary negligence. In these cases FOS® shall pay compensation for damages foreseeable when the contract was signed and typical for the contract. If in doing so FOS® does not act with intent or gross negligence, but instead only with ordinary negligence, the liability of FOS® with regard to this shall be limited to 100,000.00 € per claim, and to double this amount per annum.
If the breach of duty by FOS® does not constitute a breach of a cardinal contractual duty, FOS® may only be held liable for cases of gross negligence and intent.
The liability of FOS® on account of fraudulent intent and under the German Product Liability Act shall not be affected as a consequence.
The Customer shall have to allow any contributory negligence to be counted towards the liability of FOS®, e.g. failure to participate as required (e.g. by stating incorrect or insufficient information in the data sheet).
Subject to the above limitations of liability, FOS® cannot be held liable for property damage or personal injury incurred as a result of the Customer having passed over incorrect and/or incomplete data for the wind suction calculations to FOS®. This shall apply accordingly if the Customer does not use the results of the wind suction calculations at all or if he uses them incorrectly.
12. Prohibition of assignment, Offsetting, Retention
The Customer’s rights from the transactions entered into with FOS® must not be transferred without the written consent of FOS®. The Customer shall only be entitled to offset against claims asserted by FOS® if his claim is not disputed or if it has been adjudicated. The Customer may only exercise a right of retention if it is based upon the same legal relationship.
Should one or more of the above provisions be or become invalid or contain a gap, the remaining provisions shall not be affected by this as a result. In such a case the Parties to the contract shall be obliged to replace an invalid provision with one which is valid and which comes closest to the economic objective of the invalid provision. This shall also apply to fill any unintended gaps there may be which are in need of being filled.
Agreements differing from, or in addition to, those provisions above shall only be valid if an additional written agreement is made to the contract entered into by the Parties. Such a written agreement must refer to the amended provisions. The elimination of this requirement for written form must also be made in writing.
The place of fulfilment for all obligations created by this contract shall be Hemer.
The exclusive place of jurisdiction for all disputes arising from this contractual relationship as well as concerning its validity shall, as we choose, be the courts having jurisdiction where we are based or where the Customer is based.
This contractual relationship shall be governed by the law of the Federal Republic of Germany alone. It is expressly stated that the UN Convention on Contracts for the International Sale of Goods [CISG] shall not apply.
Hemer, September 2017