General Terms of Sales and Delivery of Norbert KELLER AG/SA, L-9911 Troisvierges for end customers (B2C) - Status: 06.2013

I. Contractual basis

1. Orders are accepted by KELLER AG exclusively on the basis of these contractual conditions.  Our written confirmation of order is decisive for every contract. This must always be confirmed by the customer by means of signature. By signing the order the customer indicates his acceptance of these Terms of Sales and Delivery without reservation.  If the customer refers for his part to his own ‘terms of business’, and if the latter contradict these conditions, then the conditions of KELLER AG are deemed to be agreed upon. No manufacture of goods will be undertaken without the signature of the customer.  In the case of deliveries at short notice, the invoice which is issued may serve in place of a written confirmation.

2. Any statements of any kind, whether issued by word of mouth, by telephone or telex, as well as any supplementary agreements, are only valid if confirmed by us in writing.  Objections to the confirmation of order or the confirmation of supplementary agreements must be communicated to us without delay, at the latest within 3 working days.

3. All offers are without obligation.

II. Scope and object of performance

1. The order price comprises the planning and the technical processing of graphic illustrations usual in the market. Additional detailed design and assembly plans are available for a fee.

2. The order price includes the respective standard connections to the wall and to the base. Special connections are listed and invoiced separately.

3. The on-site measurement can take place only after receipt of the signed order by KELLER AG. So that the on-site measurement can taken place, the positions to be measured should be freely accessible and free from all obstacles. Delays in the schedule for the on-site measurement result directly in delays in the manufacturing and installation. If the on-site measurement has to be performed in several phases due to on-site effects (e.g. delays in the completion of the concrete and masonry work), then these additional interventions are charged according to the number of hours worked.

4. If the customer should express the request that certain preliminary performances be commenced despite the lack of written building permission, then the customer undertakes to pay for the working hours expended on the preliminary performance.   KELLER AG issues an invoice for a down-payment for this, which is to be settled by the customer before the commencement of the respective performance.  This lump sum shall be offset against the total order amount on receipt of the written permission. In the case that building permission is not granted, the amount remains credited to KELLER AG, taking into consideration the performance actually rendered.  In case of failure to comply with the contract, the customer undertakes to pay for the performances rendered by KELLER AG up to that point in time including a reasonable surcharge for the failure to comply.

5. Ordering of the required materials and production can take place only after the written confirmation of the design drawings by the owner and after receipt of the written building permission and settlement of the first down-payment invoice.

6. Sealing work by KELLER AG is limited to the sealing of the construction manufactured and installed by KELLER AG as well as the direct connecting area, if necessary. KELLER AG is neither responsible nor liable for sealing work on the existing building fabric and outside its own connecting work. The drain and feed pipes are to be executed by the customer. They are not part of this offer.

7. All preliminary and subsequent work necessary for the erection of the KELLER constructions (concrete, masonry, plastering, etc.) as well as any necessary additional work (heating installation, painting, joinery, electrical work, etc.) are not part of the scope of performance of KELLER AG; the customer is responsible for organising these on site. KELLER AG will recommend companies to you that will offer, perform and charge for this work separately.

III. Applicable guidelines for aluminium surfaces and glazing

1. The respective manufacturer’s guidelines for the visual evaluation of coated and anodised surfaces on aluminium apply to errors in the surface treatment of aluminium in the construction industry.   The guidelines represent an evaluation standard for the visual quality of aluminium surfaces in the construction industry. Accordingly, colour deviations can occur depending on the type of coating.  No guarantee of colour evenness can be given. When checking for features the visual plan view of the visible surface is decisive. Checking is usually performed in diffuse daylight at a distance of 5 (five) metres in the case of external surfaces or at a distance of 3 (three) metres in the case of internal surfaces and at a viewing angle of 90 (ninety) degrees.

2. The respective manufacturer’s guidelines for the visual evaluation of panes of glass apply to glass errors in the construction industry. The guidelines represent an evaluation standard for the visual quality of glass products in the construction industry. The evaluation of the visual quality of glass is performed at a distance of at least 3 (three) metres and a viewing angle of 90 (ninety) degrees to the surface in normal, diffuse daylight, with no direct sunlight or back light and without artificial lighting.   Objections may not be specially marked.  Errors that are not recognisable from this distance are not evaluated and are therefore not a valid cause for complaint.

3. In case of glass breakage, the use of flat glass (float glass) is not recommendable for traffic routes due to the risk of accidents. Laminated safety glass (LSG – usually two laminated flat panes of glass, which are bonded/laminated with one or several very durable films) offers optimal safety for indoor and outdoor use, by the fact that in case of damage, the shattering glass clings to the film, and it is therefore protected against penetration and falling. This glass also provides good burglary protection, as the transparent films within the glass structure are difficult to overcome. Not only flat glass, but also laminated safety glass (flat glass in composite film) can only be subjected to thermal loads to a restricted extent. These must be absolutely equipped with suitable sun protection, in order to prevent so-called thermo-cracks (glass breakage caused by thermal influences). Thermo-cracks occur as a consequence of uneven heating of the pane of glass as a result of direct exposure to sunlight. The glass expands unevenly, and tension values exceeding the load limit are caused. This damage occurs in the event of high and uneven exposure to direct sunlight, such as, for example, in case of partial shading of a pane, or when the panes of several sliding leaves stand open in front of one another and if too high heating of individual panes of glass occurs between the leaves.

4. This information must also be absolutely observed during the construction phase; and faults caused by incorrect application of protective foils must be avoided.

5. Tempered safety glass (TSG) provides effective protection against thermo-cracks. It is flat glass, which has been thermally treated after cutting, thus being extremely insensitive to temperature-related tension values. TSG is almost exclusively used in Southern countries, at least with darkened panes. Apart from its high thermal and mechanical load-bearing properties, this glass provides safety upon destruction, by shattering into many small, non-dangerous pieces of glass. The designation safety glass originates from this (not from the safety provided by burglary protection). Due to the heat treatment, soiling of the glass (stains and streaks) or a change in light refraction may occur. In darkened windows, these minor impairments generally are not detected or are tolerated. In transparent window panes they may lead to unjustified complaints. We would like to point out that KELLER AG will not assume any liability whatsoever for such production-related causes. The selection of the glass and the shading by the customer, based on the position, alignment and construction properties of the object, are responsible for the permanently trouble-free operation.

IV. Orders and subsequent changes

1. Orders placed by the customer are binding.

2. Subsequent requests for changes on the part of the customer are only binding for us in so far as we have issued our express written agreement.

3. If the production takes place in accordance with dimensions specified by the customer, then changes of dimension are only possible if they are communicated by the customer promptly enough that the changes of dimension can still be taken into account in the manufacturing. Otherwise, agreement shall basically not be given. In the case of changes which are accepted, depending on the extent of the desired changes, the customer must both reckon with reasonable delays in production and bear the costs to which the order for the changes gives rise.

V. Prices

1. The prices include carriage-paid delivery and installation. Customs and other import duties, if applicable, shall be paid by the customer.

2. Prices are stated in EURO. The price stated in the price list which is valid at the time of delivery shall apply, plus the valid legal rate of VAT.

VI.  Collection and delivery dates

1. The stated collection and delivery dates are without obligation. Delivery periods start at the earliest after clarification of all technical and commercial details.  A stated delivery date indicates the expected date of delivery to the building site. Delivery times which are mentioned outside the contract are for information purposes only and do not place us under any obligation.

2. Force majeure or other circumstances occurring at KELLER or one of KELLER'S suppliers (operational disturbances, painting or powder coating problems or similar, lack of transportation means etc.) release us from the obligation of timely fulfilment of the contract for their duration.

3. Fulfilment of collection or delivery dates or periods presupposes prompt receipt of all the documents to be supplied by the customer or his representative, along with any necessary approvals, releases, preliminary work by third parties, and also presupposes that the agreed terms of payment and any other obligations are or have been met by the customer or his authorised representative.  If these prerequisites are not fulfilled, the periods shall be prolonged to a reasonable extent and according to the order book in our production department; this does not apply if we are responsible for the delay. KELLER AG is entitled to make partial deliveries.

4. Claims on the part of the customer for compensation for damages due to delays in delivery and non-fulfilment are excluded, except in cases of deliberate intent or gross negligence. In any event, any claim to compensation for damages is limited to the amount of the order value.

5. Any costs for testing and acceptance are the responsibility of the customer.

6. If a delivery date has been agreed and this is postponed by the customer, we are entitled to require payment to the extent of the services or goods already completed and made available to the customer.

7. In the absence of an agreement to the contrary, delivery shall be made to the building site.

VII. Taking back of goods

The taking back of goods is fundamentally excluded, since they are made to measure on behalf of the customer.

VIII. Acceptance of the performances

1. Immediately after completion of the work a written acceptance of the building site takes place, wherein the customer confirms the proper execution of the order or specifies any defects. If the customer should not have the possibility to sign the acceptance document on request, then the order is deemed to have been properly executed and approved if the customer does not notify any defects by registered post within 7 calendar days after completion of the work.  On acceptance the remainder of the order becomes due for payment in accordance with the agreed terms of payment.

2. KELLER AG is entitled to partial acceptances if the completion is delayed by external or on-site effects or if the building site has to be completed in several phases. KELLER AG accepts no liability for damage caused by employees from other trades following a partial or final acceptance of KELLER constructions and elements. The building owner shall ensure an orderly and proper building completion.

3. KELLER AG participates exclusively in building site discussions that are important for the constructive completion of this order.

IX. Packaging

1. We shall select the packaging at our own discretion.

2. Pallets for long goods and other additional transport aids remain our inalienable property. They must be handled with care and may not be used for any other purpose than storage of the goods which have been delivered.  If they are not released in good time, we are entitled to charge the customer for them based on the price for brand new pallets of the same type obtaining on the day in question. Such payments are due immediately.

X. Terms of payment

1. In so far as not expressly agreed to the contrary, payments for goods which have been supplied must be effected within 30 days of the invoice date without deduction. This also applies for goods which we put into storage on request of the customer or for any other reason for which we are not responsible.  If the goods are put into storage on request of the customer  for a reason for which we are not responsible, the day when the goods are completed is considered to be the day of despatch.

2. A payment is considered received once the amount has been credited to the account of KELLER AG.

3. We retain the right to demand prepayment, payment of deposits or instalments.

4. The customer is not entitled to offset counterclaims which are not recognised by us or which are disputed by us nor is he entitled to withhold payment, either in part or in full.

5. The customer is not entitled to make any claims based on late issue of invoices.

6. The acceptance of bank-guaranteed cheques is excluded.

7. If the customer enters into arrears of payment with regard to an invoice or if circumstances become known after conclusion of the contract which may cast the creditworthiness of the customer seriously into doubt, all claims against the customer will fall due immediately, without taking payment targets which have been allowed into consideration.

8. In case of delayed payment we are entitled by rights and without issuing a reminder to impose interest for delayed payment at the rate of 15 percentage points above the respective base lending rate.  Imposition of further compensation for delayed payment (at least a fixed amount of 20% of the amount owing, with a minimum of 25.-€) is hereby not excluded.

9. KELLER has the right to withdraw from the order or to carry out outstanding deliveries only against provision of security and/or to require compensation on grounds of non-fulfilment if there has been a basic worsening of the financial circumstances of the customer at the time of delivery of the goods, in particular if he has not fulfilled his payment obligations to a serious extent or if long-term attachment of assets is implemented or if court or out-of-court settlement or insolvency 

XI. Reservation rights

1. The quality or warranted characteristics of the object of the contract which we are obliged to provide results exclusively from the contractual agreements entered into with the customer. Samples, brochures, and other information gained from advertising material is non-binding and does not represent a guarantee of quality or warranted characteristics, but serves for descriptive purposes only, conveying a general impression of the products described.

2. Reference to technical standards only serves to describe product performance and capability and is also not to be taken as a description of warranted characteristics.

3. We reserve the right to make changes at any time to the design or implementation, choice and form of material, form of profile or to make other changes which serve technical advance as far as is reasonable for the customer.

4. We supply advice to the best of our knowledge and belief, based on our experience. However, no liability of any kind whatsoever is accepted in connection with advice which is given.  Information and details regarding the suitability and application or use of our products, for example suggestions in the form of written documents, calculations or drawings or offered by word of mouth, as well as drafts and similar items which concern assembly, design, arrangement, processing, finishing, mounting, statics, tendering and help with calculations, are not part of our performance either as a main or subsidiary obligation and are non-binding in every case. They do not free the customer from the duty to undertake his own inspections. We only accept liability for any errors within the framework of the aforementioned ancillary services in cases of deliberate intent or gross negligence. Claims arising from infringement of secondary contractual obligations lapse in the same manner as rights under guarantee.

5. In so far as a defect within the goods for which we are responsible is present, we undertake to correct the defect or provide a substitute at our discretion. The customer must allow us reasonable time and opportunity to correct the defect.  If such allowance is not made, we are freed from the obligation to correct the defect.

XII. Liability

1. We accept liability according to the legal regulations, in so far as the customer asserts claims for compensation of damages or a claim based on infringement of a basic contractual obligation, which is based on deliberate intent or gross negligence on our part or on the part of our employees.  In so far as we are not charged with deliberate contractual infringement, our liability to provide compensation is limited to the foreseeable damages which may typically occur.

2. In particular, in this case we are not liable for loss of profit on the part of the customer or for unforeseeable indirect consequential damages. In so far as the above provisions do not state to the contrary, claims for compensation on the part of the customer are excluded, regardless of legal reason. The above limitations on liability do not apply in so far as our liability is mandatory, based on the provisions of product liability law, if life limb or health have been injured or if claims for compensation based on the absence of warranted characteristics are raised against us or if a defect has been maliciously concealed.

3. In so far as our liability is excluded or limited, this is shall also apply in favour of our employees.

4. In the case of unjustified complaints regarding faults, e.g. if assembly instructions were not followed, where we have been commissioned with correction of the faults, we shall impose corresponding charges.

5. The extent of liability for indirect or subsequent damages is limited to compensation for the foreseeable damage which typically occurs.

6. We do not accept liability if repair or replacement is jeopardised by arbitrary action on the part of the customer or a third party.

7. Claims of any kind whatsoever lapse if the customer does not fulfil his payment obligations in good time.

8. Warranty claims lapse one month after rejection of a complaint.

XIII. Warranty and guarantee

1. The legally stipulated warranty period of 24 months applies.

2. The warranty conditions are specified in the KELLER AG warranty certificate as follows: The warranty on the construction and sealing applies to the entire construction (roof construction and side elements).  KELLER AG guarantees the mandated characteristics for air permeability EN 12207, driving rain tightness EN 12208, and resistance to wind loads EN 12210 or window and door elements supplied and installed by KELLER AG.

3. KELLER AG provides a guarantee of 5 years on the surface refinement (paint coating and anodised finish). This guarantee includes protection against: Corrosion. Effective protection of coated surfaces in aggressive environments (chloride-containing air, proximity to the coast, swimming baths, multi-storey car parks, etc.) against filiform corrosion is only provide by an optionally available coating with pre-anodisation or anodised finish! Discolouration, ‘loss of gloss’ and chalking. The respective Qualanod and GSB regulations are mandatory here in order to classify the characteristics. Blistering of the surface coating, peeling and flaking.

4. The functional reliability of the delivered materials is only ensured for normal use and with annual documented servicing by a specialised company approved by KELLER AG for the guarantee periods stated above. Mobile and mechanical parts (fittings) and seals require regular care. The warranty covers exclusively the replacement or repair of the faulty components and only after an appraisal by KELLER AG and in the sense of the applicable quality requirements.  The specialist approved by KELLER AG has the right to carry out two rectification measures on site before the exchange of the goods is considered.

5. KELLER AG undertakes to rectify defects as quickly as possible in cases where a warranty claim is justified.

6. Any possibly occurring warranty claims must always be reported to KELLER AG in writing within 7 days after detection of the defect. A warranty claim only exists in the event of fully paid invoices and provided that the original invoice is submitted.  If KELLER AG is assigned with the elimination of a defect having no claim on the valid warranty, KELLER AG is entitled to invoice the costs incurred.

7. Spare parts exchanged under the warranty become the property of KELLER AG.

8. The manufacturer’s warranty is not extended or renewed by a replacement or repair.

9. The warranty is rendered void if the client repairs or adapts the product supplied or has it repaired or adapted without the express agreement of KELLER AG.

10. The statutory manufacturer’s guarantee on all electrical and electronic components is 2 years.

11. The manufacturer’s guidelines apply for the glazing. Glass breakage is generally excluded.

12. KELLER shall not be liable for negligent causation of a guarantee claim, force majeure and consequential damages of any nature whatsoever.

XIV. Retention of title

1. The goods remain our property until all claims arising from the delivery of goods from our product range or the rendering of services have been completely met; the goods can be reclaimed by us if prompt payment is not effected.

2. Goods are invariably supplied subject to retention of title subject to the following additional provisions: If conditional goods supplied by us are mixed or processed with other goods, no matter of what kind, we attain joint ownership of the goods in the proportion of the value attributable to our goods. As long as the retention of title is in force, the customer may neither pledge the item supplied nor assign it in the form of security.  Sale of materials supplied by us, even in processed form is not permitted if payments have been suspended.  If the customer accepts payment or other compensation for resale of the goods subject to retention of title before our claims have been completely satisfied, such payment or compensation is deemed to have been accepted on our behalf.

XV. Other obligations arising from the contract

1. Rights of the customer accruing from the supply contract are non-transferable.

2. Our illustrations, drawings, drafts, designs, calculations and other documents are subject to patent and copyright protection.  The customer shall provide compensation for all damages which arise from infringement of any protective rights. The customer is not permitted to transfer any of the aforementioned items to third parties without our express written permission. The customer expressly recognises all protective rights to which KELLER AG is entitled.

3. Should individual provisions of the AVLB or of a contract based on them be or become invalid, the validity of the remaining provisions shall not be affected.

XVI. Place of fulfilment and legal venue

1. The place of fulfilment for supply is our production factory, place of fulfilment for payments and all other obligations arising form the supply relationship  – in so far as the confirmation of order does not state to the contrary  – is our registered office in L-9911 Troisvierges.

2. Our registered office is  the sole legal venue for all disputes arising from the contractual relationship.  However, we are also entitled to issue complaints at the registered office of the customer.

3. The laws of Luxembourg apply exclusively.

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