General terms and conditions
of the Reichmann & Sohn GmbH, Rudolf-Diesel-Straße 6-8, 89264 Weißenhorn
I. Scope of application
- The following terms and conditions apply exclusively to all offers submitted by us and for all contracts concluded with us.
- Purchasing terms and conditions or deviating terms and conditions of the Customer only apply if expressly confirmed by us.
II. Conclusion of the agreement
- All our offers, especially those included in catalogues, sales brochures or on the Internet are non-binding. From a legal perspective, they are deemed to be an invitation to submit an offer.
- Orders are deemed to have been accepted if they have been confirmed by us in writing or performed in a timely manner after receipt of the order. In the latter case, the delivery slip and its content shall serve as confirmation of the order.
- Specifications of dimensions, weight and capacity, illustrations and drawing shall be deemed as approximate values unless designated by us as binding.
- In the case of quotes, plans, design drawing and other documents, we reserve ownership-based and copyright-based exploitation rights without any limitation; they may only be made available to third parties with our consent and must be returned to use without undue delay in the event that the contract is not concluded.
- Structural or design changes reserved during the delivery period, provided these are minor performance modifications and these are reasonable for the customer.
- Delivery periods begin to run only after complete clarification of all execution details. Compliance with the delivery terms is dependent on the customer meeting all contractual duties, in particular, the payment of an agreed down payment and the timely provision of required documents.
- In the event of delivery and performance delays due to force majeure or due to events that do not fall in our sphere of responsibility and that make it significantly more difficult or temporarily impossible for us to deliver — e.g. strikes, lockouts, official directives, transport disruptions, etc. — even if they occur in our upstream supply chain, the agreed is extended reasonably. If the performance impediment continues to exist for a period of more than three months, both Contracting Parties are entitled to withdraw from the contract. Claims for damages are excluded. The same applies if we are not supplied or not supplied in time by our suppliers, without this delay being attributable to a fault of ours.
- We strive to meet agreed delivery terms. If we culpably fail to meet delivery deadlines, the customer is obliged to allow us a reasonable grace period. After unsuccessful expiry of the time limit, the customer can withdraw from the contract and/or claim damages and/or reimbursement of expenses. The claim for damages and/or reimbursement of expenses of the customer based on the principles of general liability is limited in accordance with point VII).
- Partial deliveries and performance are admissible to a reasonable extent.
- If the dispatch of the goods is delayed for reasons that fall within the scope of responsibility of the customer, a storage fee of 0.5 % of the invoiced amount may be charged for each month commenced, limited, however to 5 % of the invoiced amount. The right to assert a higher damage remains reserved. The customer remains entitled to show that no or less extensive damage has occurred.
- If the customer culpably refuses to perform the contract, we are entitled to demand damage for non-performance at the rate of 20 % of the contract amount excluding VAT. The right to assert a higher damage remains reserved. The customer remains entitled to show that no or less extensive damage has occurred.
IV. Pricing, payment terms, set-off
- Unless otherwise specified, our prices are net prices plus the respective applicable VAT.
- All customs duties, taxes or similar charges incurred as a result of our deliveries and services in the country of the customer shall be borne by the customer.
- If the period between conclusion and performance of the contract is more than four months, we reserve the right to reasonably increase if an increase in costs, in particular in the costs for materials and raw materials, human resources, production and transport, occurs after the conclusion of the contract. Proof of such increases will be provided to the customer upon request.
- The customer may only set-off claims against our claims, if such claims of the customer are uncontested or established by a binding court order. The assertion of a right of retention based on a contentious claim or on claims that have not been established by a binding court order is excluded unless the claims result from the same contractual relation.
- Reichmann & Sohn GmbH reserves the right to check the creditworthiness of the customer and to exclude, if appropriate, certain methods of payment. We make express reference to the provision of data to/from third party providers for this purpose as part of the data protection policy.
V. Transport, transfer of risk, acceptance
- Goods are transported for the account of the customer. Unless otherwise agreed, the dispatch route and dispatch method shall be chosen by us. In the case of delivery of goods, the risk passes to the customer as soon as the goods have left our plant even if delivery free of freight charges has been agreed or if the customer is default of acceptance. The same applies to partial deliveries and to cases where the goods are transported by our own personnel. If the delivery is delayed for reasons that fall within the sphere of responsibility of the customer, the risk passes to the customer five days after we have notified the customer of our readiness for delivery. The same applies with the necessary modifications if the goods are delivered from the plant of a third party commissioned by us.
- Any transport damage shall be notified by the recipient to the freight carrier prior to payment of the freight charges and before acceptance of the goods. Damages or short deliveries of the goods that are not apparent at first glance shall be notified by the recipient to the freight carrier within one week after delivery.
- If performance of the works is delayed for reasons that fall within the sphere of responsibility of the customer, the works shall be deemed to have been accepted if the customer fails to accept the delivery within a reasonable period set by us to this end; however, at the latest three months after completion of the works.
VI. Notice of defects, liability for defects
- Specifications, e.g. regarding dimensions, weight and other technical details, shall be deemed to be only descriptions of properties and do not amount to a guarantee as to the quality of the goods. It is the responsibility of the customer to check if the goods are suitable for his purposes.
- The customer must carefully check the goods delivered by us for quantity, defects and properties, without undue delay after receipt. The delivery shall be deemed to have been approved if objections against obvious deviations are not notified to us without undue delay — however, not later than within one week — after receipt of the goods in writing, or if the deviation only becomes apparent at a later stage, after discovery. This does not apply if formal acceptance has been expressly agreed. If the customer detects a defect, he may not dispose of the goods, in other words, the goods may not be separated, resold or processed.
- If the delivered goods or works are defective, we are entitled to cure the defect at our choice by removal of the defect or by delivery of goods without a defect. In this case, we are entitled to request at our choice that the defective goods ne returned to us — at our expense — for reprocessing or for the purpose of replacement and subsequent dispatch to the customer, or that the customer keeps the defective goods available and permits us or a person commissioned by us to perform the reprocessing or replacement at the customer's premises. The customer shall be entitled to do so if he cannot be reasonably expected to ship the goods to us. The necessary expenses incurred for the cure (in particular transportation, route, work and material costs) shall be borne by us. This does not apply to increased expenses that result from the fact that the goods are relocated after delivery to another place than the residence or commercial establishment of the customer, unless the relocation is in line with the intended purpose of the goods.
- In the event of a failed delivery, in other words in the case of impossibility of delivery, a clear and final refusal, unreasonable delay or futile attempt to cure, the customer shall be entitled to reduce the purchase price or, at this choice, to withdraw from the contract. An unreasonable delay is assumed if the contractor does not cure the defect within a set, reasonable period. Withdrawal from the contract is excluded if the object of the liability for defects is a construction work.
- If a defect is based on a fault on our part or a fault that is attributable to us, the customer may assert claims for damages or reimbursement of expenses under the specific conditions stipulated in point VII.
- The limitation period for claims for defects is 12 months. In the event of a defect in the cases of section 438(1) No. 2 of the German Civil Code [BGB] (Construction works and goods for construction works) or Section 634a(1) No. 2 BGB (Construction works and planning or monitoring services for construction works) the limitation period is five years. If the claim for defects is contingent on fault, the limitation period shall apply in accordance with Section 7 No. 4.
- Any delivery of used goods agreed in an individual with the customer shall be subject to the exclusion of any liability for defects.
VII. General liability
- In the event of a breach of obligation, we shall be liable for damages or reimbursement of expenses — subject to any further contractual or statutory conditions for liability — only in the event of intent or gross negligence. This does not apply if the breach of obligation relates to an essential contractual obligation (contractual obligation, the breach of which jeopardises the achievement of the contractual purpose and on the compliance of which, the contracting parties as a rule rely) or to a guarantee, or leads to liability for an injury to the life, limb or health of in the event of liability under the German Product Liability Act.
- In the event of liability for a negligent breach of an essential contractual obligation, liability is limited to damage that can be typically foreseen at the time of conclusion of the contract.
- The above exclusions and limitations of liability apply to the same extent for the benefit of our corporate organs, legal representatives, employees, persons used by us to fulfil our obligations and other commissioned persons.
- The limitation period for all claims for damages or reimbursement of expenses asserted against us, regardless of their legal basis, is 12 months, unless our liability is based on intent or gross negligence or on an injury to life, limb or health or on the German Product Liability Act.
VIII. Retention of title
- The following agreed retention of title serves to secure all our existing, current or future claims against the customer resulting from the business relation with the customer (including any claims to the balance from any agreed current account).
- The delivered goods remain our property in the form of goods subject to retention of title until full payment of all secured claims.
- If the customer is in default of payment, we are entitled to claim return of the goods subject to retention of title without prior cancellation of the contract on our part.
- The customer shall keep the goods subject to retention of title on our behalf and free of charge.
- The customer is entitled to resell or process the goods subject to retention of title in the ordinary course of business. However, he assigns already now all claims up to an amount corresponding to the value of the goods subject to retention of title and authorises us to collect these claims. We hereby accept the assignment.
- The processing or conversion of the goods subject to retention of title is deemed to have been accepted by us. To this extent, we are deemed to be the manufacturers for the purposes of Section 950 BGB.
- Our invoiced amount corresponds to the value of the goods subject to retention of title. If the resold goods subject to retention of title are co-owned by the customer, the assignment of the claim extends to the amount that corresponds to the value of the customer's co-ownership share.
- In the event of processing in conjunction with goods not belonging to us, we shall acquire co-ownership of the new goods at the ratio of the value of the goods subject to retention of title to the other goods at the time of the processing. If the goods subject to retention of title are combined, intermixed or blended pursuant to Sections 947 and 948 BGB with goods not belonging to us, we shall acquire co-ownership in accordance with the statutory provisions. If the customer acquires sole ownership by combination, intermixture or blending, he transfers by the present co-ownership to us at the ratio of the value of the goods subject to retention of title to the other goods at the time of the combination, intermixture or blending.
- If the goods subject to retention of title are installed by the customer as an integral part in a property, marine structure or aircraft of the customer, the customer assigns to us by the present the claims arising out of the property, out of land rights, the vessel, marine structure or aircraft in the amount of the value of goods subject to retention of title.
- The customer is not entitled to pledge the goods subject to retention of title or to transfer ownership in them for the purpose of securing a claim.
- Until further notice, the customer remains entitled to collect the assigned claims. As long as the customer complies with his payment obligations vis-à-vis us, we shall not make use of our right to collect the claims. Upon request, the customer is obliged to provide us with the details of the debtor of the assigned claims and to notify them of the assignment without prejudice to our right to notify the debtor ourselves of the assignment.
- In the event of payment default, cessation of payment, upon an application to commence insolvency proceedings in regard to the assets of the customer or if such application is dismissed, the customer's right to sell, process, intermix or blend the goods subject to retention of title or to combine them with other goods or to exploit them in any other way lapses.
- In the case of a pledge or other intervention of third parties, the customer shall notify us without undue delay in writing to enable us to file a claim pursuant to Section 771 of the German Code of Civil Procedure [ZPO], If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of a claim pursuant to Section 771, the customer shall be liable for the costs incurred by us.
- We undertake to release our collaterals upon request of the customer, provided that their estimated value exceeds the secured claim by more than 50 %.
IX. Final provisions
- Performance for both contracting parties and for all mutual business transactions is Weißenhorn.
- The exclusive place of jurisdiction is the court in the district of our registered office. However, we shall also be entitled to file a claim at the place of the registered office of the customer or of any other court that is competent in accordance with domestic or foreign law.
- The legal relationship with the customer shall be governed by German law, excluding the United Nations Convention on Contracts for the International Sale of Goods [CISG].
- The invalidity in whole or in part of one or more of these terms and conditions shall not affect the validity of the other terms and conditions. To the extent that an invalid clause contains an effective, reasonable part, such part shall remain in effect.