Terms of Service

I. Validity Area

1. The given Terms of Service (hereafter “Terms”) are valid for all current and future business relationships, orders, services, advice, recommendations, plans, sketches and auxiliary services unless specified otherwise in contracts. All additional agreements and contract revisions require our written confirmation to be binding.

II. Exclusions

1. These conditions are valid without exceptions. The client’s contradicting or deviating conditions are not part of the contract and will not supersede our conditions even if we do not raise objections concerning such client conditions. We will perform our services unconditionally unless there is a written individual deviating agreement. It is agreed that German law will be applicable in the case of foreign clients.

III. Contract Awarding

1. Offers are not binding. All agreements become binding after our written contract confirmation. The confirmation requirement also applies to all additions, revisions and additional agreements.
2. Brochures, catalogues, drawings, images as well as weight and dimensional data in our offers are only binding characteristics for delivering goods when explicitly so designated.

3. Technical changes are permitted to a foreseeable extent unless the contract stipulates otherwise.

4. The contract conclusion is subject to the correct and timely delivery by our supplier, only under the circumstance that the non-delivery is not our responsibility. The client will be informed about the service unavailability without delay. Any compensation already provided will be refunded immediately.

5. We will confirm having received the order immediately when the client orders the goods electronically. The receipt confirmation is not a contract confirmation but can be associated with it.

6. We will save the contract text when the client places an order electronically and the text will be delivered at the client’s request together with the current Terms.

Data Protection Statement

All client personal data collected and saved for signing the sales agreement will be used exclusively for purposes of the sales agreement. Data saved includes the client’s first and last name, company name with invoicing and delivery address as well as a phone number and/or e-mail address. The data can at any time be made accessible again to the client by e-mail at the client’s request. The client can also at any time request the deletion of the data. The collected data will not be forwarded to third parties unless there is a payment delay or a contract violation by the client that requires the intervention of a lawyer or credit reform.

IV. Confidentiality

1. The client as well as ourselves are obligated to use the documentation, which includes examples, models, software and knowledge concerning the business relationship, only for joint aims and to protect the documentation and knowledge in the same way that one protects one’s own documentation against third parties when the other party declares the documentation as confidential or has an overt interest in the documentation’s secrecy. The given obligation begins with the initial receipt of the documentation or knowledge. The obligation is not valid concerning documentation and knowledge that is generally known or was known to the partner already at the time of receipt without request for confidentiality or was obtained from an authorised third party or was used by the receiving party without developing the secrecy of the other party.

V. Drawings and Descriptions

1. Drawings and technical documentation that we deliver to our clients concerning goods to be delivered or their production remain as our property and must be returned to us at the end of the contractual obligations unless specified otherwise.

VI. Examples and Production Means

1. The production costs of samples and production means (tools, forms, templates etc.) will be billed separately by us unless agreed upon otherwise. The given condition also applies to worn out production means that need to be replaced. We will bear the maintenance and storage costs as well as damage and destruction risk concerning the production means.

2. We have the right to invoice the production costs incurred to date should the client cease cooperation during the production means preparation period and does not restore cooperation despite our written demands to do so. We store the production means free of charge for a period of three months from the last delivery. We are no longer obligated to keep the production means in disposition after the three month term ends. The production means remain as our property even if the client has paid for them. The client has the right to demand delivery of the production means if we repeatedly have produced sub-quality work or for other reasons have been incapable of performing delivery or have become insolvent. Client specific production means may only be subcontracted to third parties by us with the client’s prior written consent, which must not be unreasonably withheld. The production means remain freely in our disposal after expiry of the storage period.

VII. Offers

1. Our offers are not binding and are subject to change until the contract is signed. We maintain the right of correction in case of calculation or typing errors in an offer. A corrected offer is considered to be a new offer.

VIII. Prices

1. Our prices are in euros ex. factory and do not include value added tax, packaging, transportation and insurance.

2. Products with unspecified prices or prices specified only as current list price will be charged according to the price valid on the delivery date. Poppen Gewächshausbau GmbH & Co. KG maintains the right to take into consideration price changes that have occurred prior to delivery but only three months after signing the contract for metal as well as changes to other cost factors and their components. The calculations are based on the quantity or weight established for Poppen Gewächshausbau GmbH & Co. KG. A later reduction in the ordered quantity gives us the right to increase the item cost in a corresponding manner.

IX. Payment, Default, Offsetting

1. The client is obligated to pay invoices within 10 days. After expiry of the payment period the client is in default. The consumer is in payment default 30 days after the invoice date.

2. The client is invoiced €5.00 for the first reminder and €10.00 for the second reminder in case of payment default, whereas we maintain the right to prove and validate higher default charges while at the same time the client has the right to prove lower charges. Calculations are always based on the invoice date (demand creation moment).

3. We have the right, despite the client’s claims otherwise, to use payments to first cover older debts. If costs and interest already exist we have the right to use payments first to cover the costs, then the interest and lastly the main obligation. Our demands become immediately payable even if there are payment terms, should the client be in default with one or more payments, exchange bills or cheques are disputed, the client stops payments, is in debt, insolvency has been applied for or opened against the client’s assets or in their absence the opening has been refused.

4. We have the right under the above described circumstances to demand the return of reserved goods and to release ourselves from the contract. Exchange bills are only accepted with prior agreement and the costs as well as discount charges are at the client’s expense.

5. The right of offsetting costs exists only if the client has made legally valid demands against us, which we have recognised.

6. Claims against us can only be made directly by the client and are not assignable. A retention right only exists if the counterclaim arises out of the same contractual relationship.

7. We reserve the unrestricted right to assign our claims to third parties.

8. We maintain the right, after the contract is signed, if there are reasons to doubt the client’s credit worthiness or his economic relationships, to demand prepayment or a security deposit from the client according to our preference within one week. We also have the choice to withdraw from the contract and demand immediate payment for costs incurred. We maintain the right to withdraw from the contract in refusal cases. The client does not have the right to claim damage in refusal cases and we have the right to invoice the client and demand payment for the costs of all services incurred until the given moment.

X. Delivery

1. Delivery periods and dates we provide are only binding if they have been confirmed in writing by us. Delivery periods begin from the confirmation date. The period is considered as fulfilled if the products/services have left our plant at expiry of the period or the client has been informed of the delivery readiness. The client has the right to establish a new deadline, which is sent to us using registered mail should we exceed the agreed upon term. The client has the right to withdraw from the contract if we fail to deliver by the new deadline. The client is only entitled to damages concerning non-fulfilment if our delay has been caused intentionally or through gross negligence. Should delivery delays be caused by official orders or measures, force majeure, strike, lockouts, traffic disruptions or due to delivery difficulties of our delivery company then the delivery period or deadline is extended by the duration of such disturbances. We have the right in cases where such disturbances will not be removed in foreseeable time to restrict or stop delivery as well as partially or entirely withdraw from the contract without the client having the right of additional delivery or compensation. We are obligated to inform the client of such circumstances immediately and to reimburse the client for counter-payments.

2. An over or under delivery within 10 percent of the total contract quantity is tolerated to the extent that it is acceptable to the other contracting party. The total price will be adjusted according to the actual quantity.

3. The product type and quantities need to be informed at least one month before the delivery deadline in the case of delivery on demand contracts, unless agreed upon otherwise. We have the right, after unsuccessful establishment of a new delivery deadline to compile the order ourselves and deliver the goods or to withdraw from the unfulfilled part of the delivery contract if the order composition is not informed on time. If the client’s individual retrievals cause the contract amount to be exceeded then Poppen Gewächshausbau GmbH & Co. KG is entitled to deliver the excess according to the prices valid at time of retrieval or delivery.

XI. Shipping and Risk Transfer

1. Goods declared as ready for shipping must be taken over by the client without delay. We otherwise have the right to send the goods as we desire or to store them at the client’s cost and risk. We also have storage rights under the circumstances when our chosen shipping method cannot be utilised through no fault of our own.

2. The transportation means and routes are at our discretion if no agreement exists otherwise.

3. If consignment sales according to § 447 BGB are selected, then the accidental loss and deterioration risk of the goods is transferred to the client when the goods are delivered to the freight forwarder, freight driver or other person stipulated for making the consignment.

4. The client’s acceptance default has no bearing on the transfer.

XII. Title Retention

1. We remain owner of the goods until the invoice has been paid in full in the case of consumer contracts.

2. We remain owner of the goods until all demands of the current contract have been fully settled in the case of corporate contracts.

3. The company is entitled to sell the goods in the course of ordinary business. Claims to us according to the invoice amount are now covered through resale to third parties. We accept the cession. The company is entitled after the cession to realise the claims against third parties. We reserve the right to realise the claims ourselves as soon as the company does not properly fulfil its financial obligations and runs into default.

4. The client is obligated to inform us when a third party has obtained access to the goods through seizure or the goods have been damaged or destroyed.

5. We have the right, in case the client behaves in contradiction to the contract, especially in the case of payment defaults or violating an obligation in the conditions under point XII, to withdraw from the contract and demand back the goods.

XIII. Warranty

1. The client is obligated immediately after receiving the goods to check that the ordered quantity and ordered type match.

2. Within one week of receiving the goods the company must notify us in writing of obvious defects. The obvious defects must be immediately pointed out to the driver, should the goods be delivered by a forwarding company or as part of a collective delivery, otherwise the enforcement of warranty claims is not possible. Adhering to deadlines is sufficiently fulfilled by timely shipment. The company bears the full proof burden for all claims, especially for the defect itself, the moment of discovering the defect and the timeliness of the complaint. We guarantee that the delivered goods were prepared without defects in accordance with the agreed upon technical delivery conditions.

3. The warranty period for the company is one year from the delivery date of the goods. The warranty does not apply if the client has not notified us of defects in a timely manner as specified in the above provisions. The client will no longer receive a warranty from us, unless agreed otherwise.

4. We will choose to resolve warranty covered defects initially either through repair or replacement when the client is a company. The client in principle has the right to choose, demanding a reduction of the invoice amount (reduction) or the cancellation of the contract (termination) when the improvement or additional delivery is not successful. The client will not have the right of termination in the case of minor contract breaches or product defects.

5. The client has no right to compensation because of the defect should the client choose to abandon the contract because of an unsuccessful reorder attempt after a defect.

6. The client is obligated to give us the opportunity to check the noticed defect on location.

XIV. Liability Limitations

1. The liability of Poppen Gewächshausbau GmbH & Co. KG is based exclusively on the agreements in the following sections. The client does not have a right to further reaching claims.

2. This liability disclaimer does not apply if the damages were caused by intent or gross negligence, or if Poppen Gewächshausbau GmbH & Co KG has fraudulently concealed a defect or taken up a warranty concerning the goods’ quality and this warranty has the specific function of protecting the client against the claimed damage.

3. The liability disclaimer also does not apply to damages resulting from injury to life, limb or health, which are caused by a negligent or wilful breach of duty by us, a legal representative or vicarious agent of ours.

XV. Property Rights

Poppen Gewächshausbau GmbH & Co. KG is not responsible when goods have been prepared using the client’s drawings, samples, models or other data and we did not know or did not have to know that the property rights of third parties are damaged as a consequence. The client is obligated to free us under such circumstances from the demands of third parties under such law infringements.

XVI. Partnership Clause

The compensation payments, in particular the compensation damage must take into consideration in good faith the partner’s economic conditions as well as the type, extent and duration of the business relationship and the reasonable value of the goods.

XVII. Changes to the Terms of Service and Other Contract Provisions

1. Poppen Gewächshausbau GmbH & Co. KG at any time reserves the right to change the Terms and other contractual provisions. The client will be informed of changes to the Terms in a suitable manner. The client has the right to terminate the contract if the changed Terms offer the client significant disadvantages. The right of termination is removed on the date the changed condition comes into force.

XVIII. Concluding Provisions

1. The legislation of the Federal Republic of Germany applies.

2. The provisions of the UN Sales Convention are not applicable.

3. The place of fulfilment and jurisdiction for both parties is our place of business.

4. Additional agreements must be made in writing even if the additional agreement waives the requirement of written agreements.

5. The validity of the remaining provisions is not affected should single provisions of the contract including these Terms of Services be or become fully or partially void for the client. Partly or fully unacceptable provision should be replaced with a provision whose economic meaning is as close as possible to the void one. The statutory provisions of the Civil Code apply in all other matters.