General Terms and Conditions of Business and Delivery
As of 15/06/2014
§ 1 Scope
(1) These terms and conditions contain the exclusively applicable conditions, insofar as they are not amended by written agreement, between you and us, the company RP-Technik GmbH, Managing Directors Reinald and Roland Pasedag, Hermann-Staudinger-Straße 10-16 in 63110 Rodgau, commercial register number HRB 47929 at Amtsgericht Offenbach, Tax ID -number DE 296414578. Differing or conflicting terms and conditions will not be recognized by us unless we have expressly agreed to them.
(2) These terms and conditions shall only apply to companies, legal entities under public law or public special funds within the meaning of § 310 para. 1 BGB (German Civil Code).
§ 2 Conclusion of Contract
(1) Our offers are not binding. In proposals, and in accompanying documents provided information on weights, performance, capacity, and other product characteristics are not guarantees or assured properties. They only become quality attributes of the object of delivery [...]and an integral part of the contract if they are listed in the order confirmation or confirmed in other written agreements.
The same applies to drawings, sketches, plans, diagrams, dimensions, weights and other performance data, which are provided by you or your agents prior to closing of the contract.
(2) The contract comes only into force through the receipt of our order written order confirmation, in any case, however, with the execution of the delivery.
(3) Other agreements and commitments have not been met. Contract changes and supplements as well as supplements and contractual drafting declarations must be in writing.
(4) This also applies to the lifting of the written form requirement.
§3 Price/Price Adjustment/Payment/Offset and Retention
(1) Our prices are plus VAT at the statutory amount on the day of billing.
(2) Unless otherwise specified in the order confirmation, our prices are in EURO "ex works" plus other costs and public charges for packaging and transport.
(3) Unless other agreements have been made and the other preconditions of maturity are present, the price is to be paid within 10 days from the date of invoice.
(4) Therefore, in lack of any other agreement, incoming payments are used at our discretion to compensate for the oldest or the lowest secured liabilities.
(5) We reserve the right for contracts with a delivery period exceeding two months from order to adjust our prices accordingly if there are, after conclusion of the contract, cost reductions or cost due to changes in material prices. These and the basics of the respective pricing we will evidence on request. If the increase is more than 5%, you are entitled to a contractual right of redemption.
(6) The position to be taken from you for non-compliance with agreed payment, not only considerable arrears and only after conclusion of the contract recognizable risk to our counter claim by lack of performance, for example by a request to open insolvency proceedings against your assets, entitle us, to suspend outstanding deliveries only against advance payment or provision of securities. If our claim to counter-performance is jeopardized and the customer fails to comply with our demand to opt for performance against simultaneous payment or provision of collateral within a reasonable period, we can rescind the contract after expiration of the deadline, without prejudice to other legal rights, according to the statutory conditions of the contract. Where you are answerable for jeopardizing our claim to counter-performance, we shall also be entitled to declare all our other claims [...]immediately due and payable, in so far as we have already rendered our performance.
(7) Offset against counterclaims shall be excluded except where the counter-claims have been stated legally binding, undisputed or recognized by our company. To this extent, also the right to retention is excluded.
§ 4 Retention of Title
(1) The goods remain our property until full payment. If you are in default with payment for more than 10 days, we are entitled to [...]rescind the contract and to claim back the goods already delivered by us.
(2) You are entitled to sell goods under retention of title in the ordinary course of business.
However, in this case, you transfer all claims from such resale, irrespective of whether this takes place before or after processing of the goods delivered under retention of title, in the amount of the invoice value of our claim to us. Notwithstanding our right to collect the debt ourselves, you have the right to assert the claim even after the assignment of claim. In this context, we commit ourselves not to collect the receivables as long as and to the extent that you meet your payment obligations, no application for insolvency or similar proceedings are filed or no cessation of payment has been set. Insofar as the above securities exceed the secured claims by more than 10%, we are obliged to release the securities of our choice at your request.
§ 5 Terms of Delivery / Force Majeure
(1) We deliver the goods in accordance with the agreements made with you. Incidental shipping costs are shown separately on the invoice. Delivery dates and delivery deadlines are only binding if confirmed by us in writing.
(2) If we do not or do not provide the goods as stipulated in the contract, you must set an extended deadline for us to provide the service. Otherwise, you are not entitled to rescind the contract.
(3) War, riots, lawful industrial action, orders of higher authority, energy and raw material shortages, transport and inevitable breakdowns and all other cases of force majeure (also at our suppliers) release us from the obligation to deliver for the duration of the disruption and to the extent of their impact.
§ 6 Warranty
(1) As far as the delivered goods are defective, you are entitled under the law, to demand a subsequent performance in the form of remedying the defect or delivering a new defect free item. We have the option as to the type of supplementary performance. If we fail to render the subsequent performance, you are entitled to reduce the purchase price or rescind the contract. We are not obligated to remedy minor defects. The measures necessary to remedy the defect, in particular transport, travel, labour and material costs, we have to bear, provided these are not increased because the goods have been delivered to a place other than the place of delivery. If the subsequent performance fails within a reasonable period, whereby we shall be entitled in general to two attempts of subsequent performance, you can withdraw from the contract or reduce the remuneration. You are entitled to claims for damages and compensation for futile expenses under the following conditions stated in § 7.
(2) We may refuse subsequent performance as long as your due payment obligations are not fulfilled towards us to the extent corresponding to the fault-free part of the rendered performance. If the notice of material defects is incorrect, we shall be entitled to request compensation [...] from you for the expenses we incurred as a result. The prerequisite for all warranty rights is that you have properly [...]
performed all examination and objection requirements in accordance with § 377 HGB (German Commercial Code). The notification of defects must be in writing.
(3) The statute of limitation for the delivered goods is limited to 12 months, except in the case of damage claims, starting with the receipt of the goods, insofar that the law according to §478 and § 479 BGB (German Civil Code) (delivery regress) does not provide for longer limitations.
§ 7 Limitation of Liability
We are liable for intent and gross negligence. Furthermore, we are liable for the negligent breach of duties whose fulfilment allows for the proper execution of the contract, and whose breach jeopardises the achievement of the purpose of the contract, and on whose compliance you regularly rely on as a customer. In the latter case, however, we are only liable for the foreseeable, typical damage. We are not liable for the negligent breach other than those mentioned in the previously standing obligations. The foregoing disclaimers do not apply to injury to life, limb or health. The liability under the Product Liability Act remains unaffected.
§ 8 Final Provisions
(1) Changes or additions to these terms and conditions must be in writing. This also applies to the cancellation of this written form requirement.
(2) The law of the Federal Republic of Germany, excluding the CISG, applies.
(3) Place of performance is Rodgau; the exclusive jurisdiction for all disputes arising out of or in connection with this Contract is determined by the location of its headquarters in Rodgau.
(4) If any provision of this contract should be ineffective or oppose the statutory regulations, this will not affect the remainder of the contract. The contracting parties will jointly replace the invalid provision with a legally valid provision which comes closest to the commercial purpose of the invalid provision. The above provision applies accordingly in case of loopholes.