General Terms and Conditions of Trade of REICH GmbH Date 3/2007
§ 1 Validity of These Terms and Conditions
For any and all contractual relations between the company REICH GmbH (hereafter referred to as ‘manufacturer’) and the customer, the following General Terms and Conditions of Trade are exclusively valid.
These are also valid for all future business relations, even if they are not again expressly agreed upon. These terms and conditions are deemed to be adopted as binding at the very latest upon acceptance of the goods or services. Contradictions by the customer with reference to his own General Terms and Conditions or Conditions of Purchase are hereby rendered null and void. They are only valid if the manufacturer has expressly agreed to them in writing prior to a contract being performed. The manufacturer’s General Terms and Conditions of Trade (hereinafter GTCT) are still valid if he carries out, without complaint, the delivery to the Orderer although he has knowledge of terms which are contradictory to, or terms of the Orderer which deviate from his GTCT.
All agreements made between the manufacturer and the customer towards the execution of this contract are to be set down in writing in this contract.
§ 2 Offer and Conclusion of Contract
Offers made by the manufacturer are subject to change and without obligation. If the order is to be qualified as an offer according to § 145 BGB (German Civil Code) then the Manufacturer can accept the offer within 2 weeks. Declarations of acceptance, all orders and any other oral agreements must be confirmed in writing or by telex or fax by the manufacturer to be legally binding. Orders made by the customer are binding offers for him.
Drawings, diagrams, measurements, weights and other data concerning goods or services are only binding if this has been agreed expressly in writing.
§ 3 Prices
The manufacturer’s prices are to be understood, unless otherwise agreed, ex warehouse excluding packaging. The legal rate of VAT is not included; it is listed separately on the invoice at the legal rate for the day of issue of the invoice. Additional deliveries or services are invoiced separately. The Manufacturer reserves the right to make appropriate alterations in the prices if, after conclusion of contract, reductions in costs or increases in costs, in particular on account of alterations in the prices of materials or raw materials occur. Evidence of the latter will, upon request, be provided for the Orderer.
§ 4 Delivery and Performance Period
Agreed delivery dates or periods and/or performance dates or periods, which can be either binding or unbinding, must be in written form.
Should the delivery or completion of service be delayed completely or partially due to circumstances beyond the control of the manufacturer, in particular for example due to acts of God like disruptions to the transport system, strikes, fires, water damage, electricity cuts, disruptions to production, measures taken by local authorities, lock-outs, lack of materials, or other unavoidable events – even if they effect a supplier of the manufacturer or their sub-suppliers – the manufacturer is entitled, even in the case of binding agreements on periods and dates of completion, to extend the delivery period for the duration of the hindrance in addition to an appropriate warm-up period or, with regard to the non-completed part, to withdraw from the contract completely or in part.
Should the hindrance last longer than 3 months, the customer, after granting an appropriate extension of the original term, is entitled to withdraw from the contract with reference to the part which has not been completed. If the delivery period is lengthened or the manufacturer is freed from his obligations, the customer has no claims to compensation arising from this.
In so far as the manufacturer is responsible for not meeting dates and periods for which he has made a binding commitment, or is in arrears, the customer has the right to compensation for damages resulting from said delay to an amount of 1/2 % for every complete week of the delay, in total, however, 5% of the invoice amount of the deliveries and services pertaining to the delay. Claims in excess of this are precluded unless the delay is the result of at least gross negligence on behalf of the manufacturer. The manufacturer is entitled to make part shipments and partial completion of services at any time. Prerequisite for the manufacturer meeting his delivery and service obligations is the punctual and proper completion of the customer’s own obligations. Should the customer be in default of acceptance, the manufacturer is entitled to demand compensation for the losses incurred; on begin of the default of acceptance, the risk of accidental deterioration or loss of the goods passes to the customer.
§ 5 Cancellation of the Order, Alterations to the Order
In all cases in which completion or delivery of the object of delivery is not possible due to the fault of the customer, the customer is still obliged to remit the payment sum agreed upon. The same is valid if the customer reduces the order volume after receipt of the order confirmation. The manufacturer must, however, in this case offset expenses saved, earned by using his work resources elsewhere or from maliciously omitting to use said resources.
Additional orders as well as changes to the service volume before or during the production of the tools are to be made separately by the customer. Changes to the order or additional orders are not contained in the prices in the order conformation or the offer from the manufacturer and separate payment rates apply. Additional services in this sense are in particular those services which should or must be carried out to adapt the object of delivery contrary to the specifications and standards quoted by the customer with regard to his working basis.
§ 6 Proprietary Rights
Should the manufacturer be obliged to deliver the object of delivery according to exact specifications of the customer (drawings, models, patterns, sketches etc.), it is the responsibility of the customer to assure that the proprietary rights of third parties are not infringed upon. In the case of a wilful breach of such obligations, the customer is obliged to free the manufacturer from all and any claims by third parties.
§ 7 Assembly
The Manufacturer only carries out assembly work if this has been previously agreed upon in writing. Otherwise the Orderer is responsible for the proper and correct assembly of the products supplied in individual parts for self-assembly.
Any recommendations or items of advice provided by the Manufacturer in respect of suitable assembly companies are in no way binding. The Manufacturer assumes no liability for damages which arise for the Orderer on account of faulty assembly carried out by himself in the assembly of the products supplied, to the product itself or in any other manner.
§ 8 The Passing of Risk
The risk of loss or damage to the object of delivery passes to the customer as soon as the service/product has been accepted and/or as soon as the consignment is passed on to the persons in charge of transport or has left the manufacturer’s warehouse to be shipped. Should shipment become impossible for reasons beyond the manufacturer’s control, the passing of risk occurs when the customer has been notified that the goods are ready for despatch. After the passing of risk, the customer bears the risk for any kind of loss or damage to the object of delivery or the service/product.
§ 9 Guarantee
The guarantee for faults and title fraud is 12 months and begins with the acceptance of the service or the delivery of the goods. The sale of used objects takes place under the strict exclusion from any guarantee.
The customer accepts with respect to all deliveries and services of the manufacturer both the duty to examine and to give notice of defects according to § 377 of the Commercial Code. On completion of a contract for services, §377 of the Commercial Code is applicable mutatis mutandis. After the passing of risk and/or acceptance of the product, the customer is obliged to examine the latter immediately with regard to its functionality and to inform the head of customer services of the manufacturer immediately, however, at the latest within a period of 7 days after acceptance, in writing and in clearly understandable format of any faults found. The customer is obliged to put at the disposal of the manufacturer any and all information and documentation necessary for the fault to be found. If no fault can be ascertained during the examination by the manufacturer, the customer bears the cost of the examination.
Should a fault be found, the manufacturer is entitled, according to his own preference, to attempt to repair the fault a total of three times or to undertake to redeliver (re-performance). In so far as the re-performance is unsuccessful, after granting an extension of the original term, the customer’s rights according to § 437 paragraph 2. and 3. of the German Civil Code remain unaffected. The extension must be granted in writing; it must be at least 14 working days.
If the customer has a legal right to cancellation, the obligation for compensation of the value according to § 346, paragraph 3, no. 3 of the German Civil Code is only valid if the customer has shown every care and attention due to a conscientious businessman. The right of the manufacturer to re-performance is only invalid upon payment of damages, even if the customer makes a previous demand to this effect.
Should the manufacturer’s operational or maintenance instructions not be adhered to, changes to the production be made, parts exchanged or production materials employed which do not confirm to the original specifications of the manufacturer, then any and all guarantee claims become null and void if the customer is not in a position to contradict a substantiated statement that one of the above-mentioned conditions has caused the fault.
§ 10 Reservation of Title
Until receipt of all payments from the business relationship with the Orderer the Manufacturer retains ownership of the object of contract. In the case of behaviour on the part of the Orderer which is in breach of contract, in particular in the case of arrears of payment, the Manufacturer is entitled to demand the return of the object of supply. The return of the goods constitutes withdrawal from the contract. The Manufacturer has the authority, after return of the goods, to utilise them, the yield from the utilisation is to be set against the Orderer’s liabilities – with the deduction of appropriate utilisation costs.
The Orderer is entitled to continue to sell the object of contract, however he already surrenders to the Manufacturer all accounts due from his accounts due in the amount of the end sum of invoices (including value added tax) which accrue from further sales to his purchasers and, in fact, regardless of whether the object of contract is sold on with or without further processing. The manufacturer gives the customer revocable authority to collect the demands transferred to the manufacturer for his invoice and in his name. This authority to collect can only be revoked if the customer does not meet his payment obligations.
Processing and transformation of the goods are always carried out by the Orderer for the manufacturer. If the object of contracted is combined with other objects not belonging to the Manufacturer the Manufacturer acquires co-ownership of the new object in the ratio of the value of the object supplied (final invoice amount including value added tax) compared to the other processed objects at the time of processing. Furthermore the same is valid for the object coming into existence as a result of the processing as for the object supplier with proviso. If the object of supply is inseparably combined with other objects which are not the property of the Manufacturer then the Manufacturer acquires co-ownership of the new object in the ratio of the value of the object supplied (final invoice amount including value added tax) compared to the other processed objects at the time of combination.
If the combination takes place in such a way that the Orderer’s object is to be regarded as the main object then it is deemed to be agreed that the Orderer transfers the pro rata portion of co-ownership of the new object to the Manufacturer.
The Orderer also assigns to the Manufacturer, as security, the liabilities which arise for him vis-à-vis a third party via the connection of the object supplied to a plot of land.
The Manufacturer commits itself to release to the Orderer, upon request, the securities to which the former is entitled insofar as the realisable value of the securities exceeds the accounts payable to be secured (including all bottom line accounts payable from current accounts) to which the Manufacturer is now or will be in the future entitled from the Orderer, for any legal reason, by more than 10%; the choice of which securities are to be released lies with the Manufacturer.
If third parties lay claim to the conditional goods, in particular in the case of pawning transactions, the Orderer has the obligation to make the third party aware of the Manufacturer’s ownership claims pertaining to the conditional goods and to inform the Manufacturer immediately so that the latter can protect his ownership rights. In so far as the third party is not in a position to reimburse the Manufacturer for any court costs or out-of-court costs arising in this context, the Orderer is liable for these.
§ 11 Security rights to objects handed over
As a security for the liability arising from the contract the Orderer assigns to the Manufacturer the ownership of the objects processed by the Manufacturer. Insofar as the objects may not be in the ownership of the Orderer then the rights of expectancy thereto are to be assigned. The Manufacturer and the Orderer are in agreement as to the handover.
The Orderer is not entitled to assign transfer to third parties of the objects which are under the security ownership of the Manufacturer. He is however allowed to continue to sell the objects in the course of usual business or to process them. The claim to the purchase price vis-à-vis the Purchaser is hereby assigned to the Manufacturer in the course of assignment in advance. Insofar as processing leads to a new material item then the Manufacturer is valid as processor according to § 950 BGB. In respect of securities § 10 is correspondingly valid.
§ 12 Payment
The invoices of the manufacturer are due upon receipt. (and payable with 2% cash discount for C.O.D. payment and for payment within 10 days after date of invoice or net without discount within one month of invoice date.)
In the case of delivery abroad the Manufacturer is entitled, for the purpose of the securing of his payment claims, to demand the transfer of an unlimited, directly enforceable bank guarantee from a major bank based upon the Laws of the Federal Republic of Germany.
Should the customer fall into arrears with payments, the manufacturer is entitled to demand compensation from the moment where the payment becomes overdue for the amount of 10% above the basis rate of interest of the European Central Bank valid at that particular time. The interest can only be set at a lower rate if the customer can prove a lesser burden; the manufacturer is entitled to prove a higher burden.
Should the customer not meet his payment obligations arising from this agreement within one week, the manufacturer is entitled to stop any further work for the customer. Any delays arising from such a stoppage cannot be taken into consideration in contractual penalty agreements.
The customer is only authorised to set off or retain a payment with regard to the payment demands of the manufacturer if such contradictions have been legally ascertained, are agreed upon and have been recognised.
§ 13 Limitation of Liability
Claims to compensation – on whatever legal basis whatsoever –are ruled out against the manufacturer as well as against his vicarious agents and those performing an obligation for him, in as far as no wilful or grossly negligent act is committed.
In the case of grossly negligent actions or culpable neglect, the liability of the manufacturer is restricted to the amount of the damages typical and predictable for the contract.
Unaffected is the liability of the manufacturer for damage to life, limb and health, a liability according to the product liability law and any other claims from product liability as well as on acceptance of a guarantee by the manufacturer. Should the customer invoke the rights in a guarantee, it is his responsibility to prove that the circumstances warrant bringing the guarantee into operation. Similarly unaffected is a liability on the part of the Manufacturer for the guilty infringement of a substantially contractual obligation, of a so-called cardinal obligation, the fulfilment of which makes possible the implementation of the contract; in this case, however, the liability for compensation for damages is limited to the damages occurring which are foreseeable or typical.
§ 14 Applicable Law, Jurisdiction, Partial Nullity
The laws of the
Republic are valid for these General Terms and Conditions and for all and any legal relations between the manufacturer and the customer, with the exception of the UN Convention on Contracts for the International Sale of Goods (CISG).
In as far as the customer is a registered trader in the context of the Commercial Code, a legal person under public law or under separate public estate, the principal place of business of the manufacturer is the court of jurisdiction for any and all legal disputes arising directly or indirectly from this contractual relationship. The business premises of the Manufacturer are the place of fulfilment.
Should one condition in these terms and conditions, or a clause or condition in the framework of other agreements be or become invalid, the validity of all other conditions or agreements is unaffected.