Ritter & Bader

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General Terms and Conditions

General Terms and Conditions

 

I. General

 

The following Terms and Conditions shall exclusively apply. Any deviating provisions to the contrary from the customer which we do not expressly accept shall be non-binding for us even if we don't expressly reject them. Counter-confirmations by the customer with reference to their own general terms and conditions of business or purchase are hereby expressly rejected by us. Our Terms and Conditions of Sale and Payment shall apply even if we do carry out the delivery to the customer or carry out any business without any reservations despite being aware that the customer has contradictory or deviating conditions. These Terms and Conditions shall apply for all future transactions with the customer. They shall exclusively apply towards companies in terms of the German Civil Code [BGB].

 

Changes to the terms will be notified to customers with long-term obligations in writing highlighting the changed terms and shall be deemed to be accepted if the customer continues with this long-term obligation without objecting within a reasonable period of time.

 

II. Offers

 

Our offers are subject to changes and non-binding unless we have expressly declared them in writing as being binding. They shall have a maximum validity of 14 days. Contracts are only concluded through our written order confirmation or execution of the order. The information about characteristics given in our public statements such as catalogues, brochures, newsletters, adverts, images, advertisements and price lists shall only form part of the condition insofar as they have become a part of the contract. Public statements by a third manufacturer or their agents shall only form part of the condition of the goods if contractually agreed or where we have explicitly and publicly made them our own in writing. Statements concerning the condition of goods or services do not include a guarantee (assurance) according to section 276 subsection 1 BGB or section 443 BGB where not explicitly stated in writing.

 

III. Prices

 

Unless otherwise agreed in writing, all prices are ex works excluding packaging plus statutory value added tax. The value added tax will be stated separately in the invoice at the day of the invoicing in the respective statutory amount. The deduction of any early payment discount shall require a specific written agreement. In the event that after the conclusion of a deal, there is a general increase in wages or material/raw material prices or other circumstances which increase the price for the production or distribution for which we cannot be held accountable for, we reserve the right to reasonably increase the prices. We will account for these to the customer upon request. If the manufacturer or supplier increases their prices before we have delivered, we shall also be entitled to increase the price agreed with the customer for the goods not yet delivered accordingly. However, the right to subsequently increase prices after the conclusion of the deal shall only exist if and insofar as we increase our prices in general and only if we are not in arrears with deliveries. Unless agreed otherwise with us, the purchase price shall be payable net (without deductions) immediately upon receipt of the invoice by the customer.

 

IV. Delivery

 

Delivery times or deadlines which have not been expressly agreed in writing shall only be non-binding information. In the event of a delay in delivery, the customer has to grant a reasonable grace period. The delivery periods shall begin with the date of our order confirmation; Saturdays are not working days. Our delivery time shall be deemed to be observed when our product has left the factory or a ready-to-ship notification has been given by us before the expiry. Insofar as an acceptance is necessary, the date of the acceptance shall be the decisive factor; however, this shall not apply in case of a justified refusal of acceptance. Events of force majeure, unforeseeable circumstances and other unforeseeable disturbances of our business premises or the business premises of our supplier, which occur despite the reasonable care exercised under the circumstances of the case, for which neither we nor our supplier can be held accountable for, postpone the delivery dates by a reasonable period. We shall be entitled to withdraw from the contract insofar as the delivery is not possible within a reasonable period of time. Insofar as we have concluded any congruent covering transaction with suppliers in order to fulfil our purchase contract, we shall not be obliged to deliver if the supplier is unable to deliver. We will immediately notify the customer of these circumstances. Any amounts already paid will be immediately refunded by us. Partial deliveries and partial services shall be permitted insofar as they are reasonable for the purchaser.

In the event that the delay of delivery was not caused by an intentional or gross negligent violation of the contract for which we can be held accountable for, our liability shall be limited to the foreseeable, typically occurring damage.

In the event that our delay of delivery is caused by a culpable violation of an essential contractual obligation, the customer shall be entitled to demand lump sum compensation of 0.5% of the purchase price for each full week of the delay, in total, however, no more than 5% of the purchase price. We are entitled to prove that no or significantly smaller damage has occurred.

Any further statutory claims and rights of the customer due to a delay of delivery on our part remain unaffected.

 

V. Terms of Payment

 

Unless agreed otherwise, our invoices shall be payable immediately net without discount. If after the conclusion of the contract, legitimate doubts as to the creditworthiness of the customer should arise, we shall be entitled to demand advance payment or a security within a reasonable period of time. In the event that the customer does not fulfil this request in due time, we shall be entitled to rescind from the contract upon expiry of this deadline.

 

The customer shall only have any rights of set-off if their counterclaims have been established with legally binding effect, are undisputed or acknowledged by us. Furthermore, they shall only be entitled to exercise a right of retention insofar as their counterclaim is based on the same contractual relationship and has been established with legally binding effect, is undisputed or acknowledged by us.

 

VI. Transfer of Risks

 

The risk of accidental loss and accidental deterioration shall pass on to the buyer with the handover in case of freight-paid delivery and in case of sale by delivery to a place other than the place of performance upon delivery to the forwarding agent, carrier or other person or institution designated with the task of performing shipment. This shall also apply even if we assume further services such as shipping costs or the delivery. Insofar as an acceptance is necessary, the risk shall pass on with the acceptance. It shall be deemed equivalent to a handover if the Buyer defaults on acceptance or if the loading or dispatch is delayed due to reasons for which the buyer is accountable for. In this case, the risk shall pass on to the buyer at the time of the readiness for loading or dispatch.

 

VII. Warranty

 

Any claims for defects by the customer require that they properly fulfilled their inspection and defect notification obligations owed pursuant to section 377 HGB [German Commercial Code]. Obvious defects must be reported to us by the customer in writing within one week of receipt of the subject matter of the contract or if the defect is discovered at a later point in time, it must be reported in writing within one week of discovery. If not, the goods shall be deemed to have been accepted.

In the event of the existence of a defect and its timely notification, we will at first and at our discretion provide warranty either through repairs or by providing a replacement. During the supplementary performance, the reduction of the purchase price or the withdrawal from the contract by the customer shall be excluded. However, this shall not apply if due to legal provisions we are entitled to refuse supplementary performance.

If the supplementary performance is unsuccessful, the customer shall be entitled to reduce the consideration or - in the event of major defects - to withdraw from the contract.

In the event of a defect, the customer shall have the right to retain only a reasonable proportion of the purchase price depending on the type of the defect and usage impairment. Furthermore, we shall be entitled to refuse rectification until the customer has paid a reasonable proportion of the purchase price, in particular the price for parts free from defects, taking into consideration the respective defect. We will bear the expenses necessary for the supplementary performance. This shall not apply for expenses that incur because the purchase object is brought to another place than the business seat of the buyer, unless this relocation complies with the intended use.

Warranty claims shall become statute-barred within one year of the commencement of the statutory limitation period.

Insofar as our products are incorporated into installations and a defect of this installation occurs and this may be due to a defect or error in the products delivered by us, we shall then be granted access to the construction documentation and the technical details to the extent that they concern our delivery item. If this access is refused, we shall have the right to refuse the supplementary performance. In this case there shall then be the defence of non-compliance with the obligation to cooperate against the entitlement to withdraw from the contract and/or compensation and we shall have a right to retention with regard to the warranty claims.

Any further claims of the customer with regard to defects than in accordance with the above paragraphs shall be excluded.

The customer shall only be entitled to make claims for damages with regard to the defect under the following conditions if the supplementary performance was unsuccessful or we refuse the supplementary performance. The right of the customer to claim any further damages under the following conditions remains unaffected by this.

 

VIII. Liability with Regard to Advice

 

Insofar as we provide advice about applications, give information or recommendations etc., we shall only be liable for grossly negligent wrong advice. We shall only be liable for information or recommendations if this was made in writing. These kinds of claims shall become statute-barred one year after the exchange of information and/or advice.

 

In any case, a claim for damages shall be limited to a maximum of 10% of the purchase price agreed upon for the delivery of the goods. This shall also apply for any claims in accordance with section VII.

 

IX. Limitation of Liability

 

Irrespective of the above regulations under VII. and VIII., we shall be liable in accordance with the statutory provisions insofar as the customer asserts claims for damages resulting from intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. As far as we are not accused of wilful breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.

We shall be liable pursuant to the statutory provisions insofar as we culpably violate a contractual obligation; however, in the event of slight negligence, our liability shall be limited here as well to the foreseeable and typically occurring damage.

The liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability in accordance with the German Product Liability Law. Liability for claims that lie within the scope of protection of any warranty made by us (guarantee, section 276 para. 1 BGB) or a quality and durability guarantee (section 443 BGB) remains unaffected. For damages which are based on defects of the guaranteed quality and durability but do not directly occur in the goods, we shall only be liable if the risk of such damage is obviously covered by the quality and durability guarantee.

Unless agreed otherwise above, liability shall be excluded. This shall also apply if the customer asserts a claim for replacement of unnecessary expenses in lieu of the claim for damages. To the extent that our liability is excluded or limited, this shall also apply with regards a liability for our legal representatives, officers and other vicarious agents.

The above paragraphs shall also apply for claims which the customer asserts from transferred rights.

Claims for damages due to a defect become statute-barred one year after the delivery of the goods; this shall not apply insofar as malice can be alleged.

 

X. Damages for Non-Acceptance

 

If the customer does not accept properly ordered goods even after a reasonable grace period or if the customer declares verbally or with words to that effect even before the delivery that they will not accept the goods, we can withdraw from the contract without any further reminder and can request damages for non-performance. We may request as damages 25% of the order price without deductions. This shall also apply in the event of our legitimate withdrawal for the contract after the legitimate request to advance performance or depositing of securities. Furthermore, we shall be entitled to claim higher damages in lieu of these lump sum damages. The customer shall be entitled to demonstrate and prove lower damages on our part.

 

XI. Copyrights

We reserve all property rights and copyrights to drafts, plans and drawings as well as other documents created by us. These may in particular only be passed on or made available to third parties with our express consent. Drawings and other documentation within the framework of offers shall be immediately returned to us upon request.

Insofar as we delivered items based on drawings, models, samples or other documents, the customer shall ensure that the property rights of any third parties will not be violated. If any third party forbids us in particular to manufacture and deliver these kinds of objects referring to their property rights, we shall be entitled - without having to check the legal situation - to cease any further activities in this regard and to claim damages if the buyer is at fault. Furthermore, the buyer shall be obliged to indemnify us against all these infringements of rights in connection with claims of any third parties.

 

XXI. Retention of Title

 

We retain the title to all goods delivered by us until the complete settlement of all claims from the ongoing business relationship by the customer. This shall also apply even if the purchase price for certain delivery of goods specified by the customer has been paid. The customer shall be obliged to treat the goods with care and to insure them against theft and fire. Insofar as maintenance and inspection works are necessary, the customer has to carry these out on a regular basis. The customer has to keep all items which remain our property safe free of charge and with the diligence of a prudent businessman.

The customer shall be obliged to immediately inform us of any access by third parties, e.g. in the event of an attachment, as well as any damages or destruction of the goods.

We shall be entitled to withdraw from the contract and request the return of the goods in the event of any conduct of the customer in breach of the contract, in particular in case of default in payment or in case of a violation of an obligation under the above two paragraphs of this provision.

The buyer shall be entitled to resell the goods in the proper course of business. However, they shall be obliged to impose on their customers our retention of title. The customer then already assigns to us all receivables in the amount of the invoice amount which accrue to them as a result of the resale to any third parties. We accept this assignment. If the goods resold are co-owned by us, then the assignment of the receivables shall apply for the amount equivalent to our proportional value of our co-ownership. After the assignment the undersigned shall be entitled to recover the receivable themselves as soon as the entrepreneur does not properly fulfil their payment obligations and gets in arrears. Upon our request, the buyer shall be obliged to provide us with the information and documents necessary for the assertion of our rights against their customer. The taking back of the goods or the demand for the return of the goods shall not be deemed to be withdrawal from the contract. The handling and processing of the goods by the buyer shall always be in our name and on our behalf. If the goods are processed with items not owned by us, we shall obtain the co-ownership in the new goods in the proportion of the value of the goods delivered by us with the other goods processed. The same applies if the goods are mixed with other goods which do not belong to us.

We undertake to release the securities provided under this agreement upon request of the customer to the extent that the value of our securities exceeds the receivables to be secured by more than 20%. It shall be at our discretion to decide which securities we want to release.

 

XIV. Final Provisions

 

Only the laws of the Federal Republic of Germany shall apply. The provisions of the United Nations Convention on contracts for the International Sale of Goods shall not apply.

 

The language of the contract shall exclusively be German. This shall also apply with respect to any product descriptions, brochures, offers and order confirmations. Insofar as we use translations, only the German version on which the translation is based shall be decisive. Any liability for misunderstandings from translations is not assumed.

 

If the customer is a merchant, a legal entity under public law or public-law special funds, then the place of performance and exclusive jurisdiction for all disputes arising from this contract shall be our registered seat. The same applies if the customer does not have a general jurisdiction in Germany or the domicile or habitual place of residence is not known at the time the action is filed.

 

In the event that individual provisions of this contract concluded with the customer and including this General Terms and Conditions are or become ineffective in whole or in part, this shall not affect the effectiveness of the remaining provisions. The provision which is entirely or partially ineffective shall be a replaced by a provision which comes as close to the economic outcome of the ineffective provision as possible.

 

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