I. Scope
1. The following conditions of sale apply to all contracts between the customer and us, Reinert-Ritz GmbH, for the delivery of goods. They also apply to all future business relationships, even if they are not expressly agreed on again. Our conditions of sale apply exclusively. Differing, conflicting or supplementary conditions of the customer, which we do not expressly acknowledge, are only part of the contract if and insofar as we have expressly consented to their validity. This consent requirement always applies, even if we carry out the order without reservation in the knowledge of conflicting, supplementary or deviating conditions of the customer.
2. All the agreements made between the customer and us for the execution of contracts are put into writing in the contracts. If contracts are written both in German and a foreign language, then the German language version prevails in case of dispute.
3. These conditions of sale only apply if the customer is an entrepreneur (§ 14 German Civil Code), a corporate body under public law or a public special fund.
II. Offer/contract formation/consultation
1. An order by the customer is deemed a binding offer to conclude a contract. Unless stated otherwise in the order, we may accept this offer in writing within two weeks (e.g. by sending an order confirmation) or by sending the products ordered.
2. Our offers are non-binding and subject to confirmation. Samples and specimens are non-binding indications. All verbal and written information on possible applications and the suitability of our goods are made to the best of our knowledge. However, they are only based on our experience and do not regularly count as guaranteed. They do not justify any claims against us. In particular, the customer is not released from the requirement to check the suitability of the goods for the purpose intended by him.
III. Conditions of payment
1. Unless agreed otherwise in the individual case, our prices apply as valid at the time of the conclusion of contract, ex works without packaging. Our prices do not include the statutory VAT. This is shown separately on the invoice in the statutory amount on the day of invoicing.
2. In case of a rise in the cost factors decisive for the price formation (in particular prices for production materials, operating materials, wages and freight), on which we have no influence and for which we are not responsible, we are entitled to increase the originally agreed price accordingly. In the case of such an increase in the price, the customer is entitled to withdraw from the contract within fourteen (14) days of becoming aware of the price increase.
3. The invoice amount is due for payment net (without deductions) immediately after invoicing and delivery of the goods, provided no other payment term is stated in the order confirmation. For existing business relations, we grant a 2% discount deduction for payments within 10 days from the invoice date. Otherwise, discount deduction is only permitted given a special written agreement between us and the customer. Payment is only deemed to have been made once we are able to dispose of the amount.
4. If the customer defaults on payment, subject to the assertion of further rights, we reserve the right to claim default interest for the period of default in line with the applicable statutory default interest. Our entitlement to claim the commercial maturity interest (§ 353 German Commercial Code) from merchants remains unaffected.
5. The customer’s option to set off claims for defects if defective goods are delivered, and other claims from the same contractual relationship, against our purchase price claim is not limited by these conditions of sale. However, the customer can only offset claims from other legal relationships against our purchase price claim if his claims are undisputed, if they have been accepted by us or if they have been legally established. As the buyer, the customer may only exercise a right of retention if his counterclaim is based on the same purchase contract.
6. We reserve the right to demand payment securities and/or advance payments.
7. If the customer is in default of payment or justified doubts about his solvency arise, we are entitled to make all claims against him due and/or to withhold any outstanding deliveries in whole or in part or to withdraw entirely from the existing contracts in accordance with the statutory provisions.
IV. Delivery and performance time
1. The delivery times stated in our order confirmation apply. Other delivery dates or periods that have not been expressly agreed as binding, are only non-binding information that we endeavour to comply with. A delivery time specified by us does not start until the technical issues have been clarified, in particular all the documents required for the execution of the order as well as any advance payment have been received. Likewise, the customer is to fulfil all the obligations incumbent on him properly and in due time.
2. The start of our delay in delivery is determined by the legal regulations. However, a reminder by the customer is always required. Our delivery has been completed on time if the goods have left our factory or warehouse or, as agreed, that of our supplier, before the expiry of the agreed period.
3. We are not liable for delays in delivery and performance due to circumstances beyond our control, which not only temporarily make the delivery considerably more difficult or impossible, e.g. strikes, lockouts, official orders, shortages of energy or raw materials, war, unrest, fire, floods and other natural phenomena, etc., also if they affect our suppliers, even in case of bindingly agreed times and dates. They entitle us to postpone the delivery or performance by the duration of the hindrance plus a reasonable grace period or to withdraw from the contract in whole or in part with respect to the part of the contract which is not yet fulfilled. Claims for damages by the customer are excluded in this case. If the delivery or performance is delayed by more than two months, subject to the exclusion of all further claims, the customer is entitled to withdraw fully or partly from the part of the contract not yet fulfilled due to the delay.
4. If we are in default of delivery, the customer can demand liquidated damages for his damage caused by default. In case of default of delivery for which we are liable, the liquidated damages for each full week of default amount to 3 % of the net price of the goods (delivery value), but not more than 15% of the delivery value in the aggregate.
5. Any further liability for a default of delivery for which we are liable is excluded. The further statutory claims and rights of the customer, which he is entitled to alongside the claim for damages due to a default of delivery for which we are liable, are not affected.
6. We are entitled to carry out partial deliveries and partial performances at any time, provided this is reasonable for the customer.
7. If the customer is in default of acceptance, we are entitled to demand compensation for the resulting damage and any additional expenses. The same applies if the customer culpably violates his duties to cooperate. On commencement of the default of acceptance or debtor’s delay, the risk of accidental deterioration and accidental loss passes to the customer.
V. Transfer of risk/dispatch/packaging
1. Our delivery is ex works/warehouse (Nordhorn/Germany), which is also the place of performance. At the request and expense of the customer, the goods are dispatched to another destination (sale by dispatch). Unless otherwise agreed, we are entitled to determine the method of dispatch (in particular transport company and packaging) and the dispatch route ourselves. We make every effort to take the wishes and interests of the customer into account with regard to the dispatch method and dispatch route; any additional costs thus incurred – also if freight delivery is agreed – are borne by the customer. Goods notified as ready for dispatch have to be called off by the customer without delay.
2. The risk of accidental loss and accidental deterioration of the goods passes to the buyer on transfer of risk at the latest. However, in case of sale by dispatch, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay are already transferred when the goods are handed over to the forwarder, the carrier or other person or institution responsible for carrying out the delivery. Insofar as acceptance is agreed, this is decisive for the transfer of risk. The customer is obliged to check the goods immediately after delivery for completeness, visible damage and any defects, and to report any losses, defects or damage to us without undue delay.
3. We do not take back transport packaging and all other packaging in accordance with the packaging regulation. Pallets, lattice boxes and other reusable packaging is to be returned to us. The customer is to dispose of the packaging at his own expense.
4. If the dispatch or call off of goods which are ready for dispatch is delayed at the request or through the fault of the customer, we store the goods at the expense and risk of the customer. In this case, advice of readiness to dispatch is equivalent to dispatch.
5. The dispatch of goods is not insured unless expressly agreed otherwise. At the request and expense of the customer, we insure the delivery through transport insurance.
VI. Defect claims/warranty/liability
1. Claims due to obvious defects, wrong delivery or considerable quantity deviations are to be reported to us in writing immediately, at the latest fourteen days after delivery of the goods. Hidden defects are to be reported in writing immediately after their discovery. If the customer fails to properly inspect and/or give notification of defects, our liability for the defect that is not notified, not notified in time or improperly, is excluded in accordance with the statutory provisions.
2. We are only liable for advice on processing and/or possible applications of our products in case of express written agreement.
3. If the goods delivered are defective, we can initially choose whether we provide subsequent performance by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement). Our right to refuse subsequent performance in line with the statutory conditions remains unaffected. The customer is to grant us a reasonable period for subsequent performance. We are entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer is entitled to retain part of the purchase price which is appropriate in relation to the defect. In case of remedying of the defect, we bear the necessary expenses. In case of replacement delivery, the customer is to return the defective item in accordance with the statutory provisions. The subsequent performance does not include the deinstallation of the defective item or the reinstallation if we were not originally obliged to install it.
4. If the subsequent performance fails, the customer may, at his discretion, demand a decrease in the price (reduction) or declare his withdrawal from the contract. In case of a minor defect, however, there is no right of withdrawal. The subsequent improvement is deemed to have failed on the second unsuccessful attempt unless, based on the subject matter of the contract, further attempts at subsequent improvement are appropriate and reasonable for the customer.
5. Also in case of defects, claims of the customer for damages or compensation for futile expenses are only accepted in accordance with section VII (Liability) and are otherwise excluded.
6. The customer’s warranty claims for material and legal defects expire one (1) year after delivery. Insofar as acceptance has been agreed, the period of limitation begins with the acceptance. However, if the goods constitute a construction or an item which, in accordance with its usual purpose, is used for a construction, and has caused it to be defective (building material), in accordance with the statutory provisions, the limitation period is 5 years from the date of delivery (§ 438 para. 1 no. 2 German Civil Code). Further special statutory regulations on the statute of limitations also remain unaffected (esp. § 438 para. 1 no. 1, para. 3, §§ 444, 479 German Civil Code). The above limitation periods under sales law also apply to contractual and non-contractual claims for damages by the customer which are based on a defect of the goods, unless the application of the normal statutory limitation period (§§ 195, 199 German Civil Code) would lead to a shorter limitation period in individual cases. However, claims for damages by the customer in accordance with section VII para. 2 sentence 1 and sentence 2(a) and the Product Liability Act only expire after the statutory limitation periods.
7. According to the legal regulations, we are obliged to take back the new goods or to decrease (reduction) the purchase price, also without the setting of an additional period of grace as otherwise required, if the customer’s purchaser, as the consumer of the new movable property (sale of consumer goods) sold would be able to demand the return of these goods or a decrease (reduction) in the purchase price from the customer due to the defect of the goods or a recourse claim is made against the customer on the same basis. We are furthermore obliged to reimburse any expenses of the customer, in particular transport, travel, labour and material costs, which he had to bear in relation to the end user in the context of the subsequent performance due to a defect of the goods which existed on transfer of risk from us to the customer. The claim is excluded if the customer has not duly fulfilled his duties of examination and notification of defects in accordance with § 377 German Commercial Code.
8. The obligation under section VI no. 5 is excluded if it concerns a defect based on advertising statements or other contractual arrangements which do not originate from us, or if the customer has given the end user a special guarantee. The obligation is also excluded if the customer was not obliged by the statutory provisions to fulfil the warranty rights of the end user himself, or if he failed to make this objection to a claim asserted against him. This also applies if the customer has provided the end user with warranties which go beyond the legal requirements.
VII. Liability
1. Provided these conditions of sale, including the following provisions, do not specify otherwise, in case of a breach of contractual and non-contractual obligations, we are liable in accordance with the statutory provisions.
2. We are liable for damage — for whatever legal reason — in the context of fault-based liability in cases of intent and gross negligence. In case of ordinary negligence, we are only liable subject to a milder standard of liability according to legal regulations (e.g. for care in our own affairs)
a) for damage resulting from injury to life, limb or health,
b) for damage resulting from the significant violation of a material contractual obligation (an obligation which is essential for the proper execution of the contract and on the compliance of which the contractual partner regularly relies and can rely on); in this case, however, our liability is limited to compensation for the foreseeable damage typically occurring.
3. The liability limitations resulting from para. 2 also apply in case of breaches of duty by, or in favour of, persons whose culpability we are responsible for according to the legal regulations. They do not apply if we fraudulently conceal a defect or have taken on a guarantee for the quality of the goods and for claims of the buyer under the Product Liability Act.
4. The customer can only withdraw or cancel due to a breach of duty that does not relate to a defect if we are responsible for the breach of duty. A free right of cancellation on the part of the customer (in particular acc. §§ 651, 649 German Civil Code) is excluded. In all other regards, the legal requirements and legal consequences apply.
VIII. Industrial property rights and copyrights
1. We reserve our rights of ownership, copyrights and other property rights to all illustrations, calculations, drawings and other documents. The customer may only pass these on to third parties with our written consent, irrespective of whether we have labelled these as confidential.
2. If we have to deliver according to drawings, models, samples or based on parts provided by the customer, the customer guarantees that this does not violate the rights of third parties. The customer indemnifies us from the claims of third parties and is to reimburse us for any compensation of damages incurred. If one of the contracting parties is forbidden to manufacture or deliver by a third party on the basis of a property right owned by him, we are entitled – without reviewing the legal situation – to cease work until the legal situation is clarified by the customer and the third party. If, due to the delay, the continuation of the order is no longer reasonable for us, we are entitled to declare our withdrawal from the contract. In this case, the provision in section IV no. 3 applies accordingly.
3. All rights of ownership, copyrights and other property rights to all models, forms, tools, devices, designs and drawings designed by us or by third parties on our behalf remain in our possession unless expressly otherwise agreed in writing. This also applies if the customer pays corresponding portions of the costs.
IX. Retention of title
1. The goods delivered (reserved goods) remain our property until all claims, including all current account balance claims, which we hold against the customer now or in the future are fulfilled. If the customer behaves in violation of the contract, e.g. default of payment, we have the right to take back the reserved goods after setting a reasonable period of grace. If we take back the reserved goods, this does not, at the same time, constitute a withdrawal from the contract. Instead, we are entitled to only demand the return of the goods and to reserve the right of withdrawal. After deducting an appropriate amount for the exploitation costs, the proceeds of the sale are to be offset against the amounts owed to us by the customer.
2. The customer is to treat the reserved goods with care and insure them at his own expense against damage caused by fire, water and theft at their replacement value. Maintenance and inspection work that becomes necessary is to be carried out by the customer in good time at his own expense.
3. The customer is entitled to sell and/or use the reserved goods in the ordinary course of business, provided he is not in default of payment. Pledges or assignment as security are not permissible. The customer hereby assigns the claims arising from the resale or another legal reason (insurance, tort) with respect to the reserved goods (including all current account balance claims) to us in full by way of security. We accept the assignment. We revocably authorise the customer to collect the claims assigned to us for his account in his own name. The collection authorisation can be revoked at any time if the customer does not duly meet his payment obligations. The customer is also not authorised to assign this claim by means of factoring for the purpose of collecting debts, unless the factor is, at the same time, obliged to effect payment directly to us at the amount of the debts for as long as we still hold claims against the customer.
4. Any processing or transformation of the reserved goods by the customer is carried out on our behalf. If the reserved goods are processed with other items which do not belong to us, we acquire the co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including value added tax) to the other processed items at the time of processing. The same applies to the new item created by processing as to the reserved goods. If the reserved good are inextricably mixed with other items which do not belong to us, we acquire the co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including value added tax) to the other mixed items at the time of mixing. If, as a result of the mixing, the customer’s item is to be seen as the main item, the customer and we agree that the customer assigns us proportionate co-ownership of this item. We hereby accept the assignment. Our sole or co-ownership of an item thus generated is secured for us by the customer.
5. If third parties have access to the reserved goods, especially through seizures, the customer is to refer to our rights of ownership and notify us without delay so that we can enforce our rights of ownership. If the third party is not in a position to reimburse us for any judicial or extrajudicial costs incurred in this context, the customer is liable for this.
6. We are obliged to release the securities provided to us to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10 %. The selection of the securities to be released is at our discretion.
X. Place of performance/jurisdiction/applicable law/severability clause
1. The place of performance and jurisdiction for deliveries and payments (including settlement actions based on documentary evidence and actions on cheques and bills of exchange) and all disputes arising between us and the customer with regard to the purchase contracts concluded between us and the customer is our registered office (Nordhorn/Germany). We are, however, also entitled to sue the customer at his place of residence and/or business.
2. The relations between the contracting parties are governed exclusively by the law of the Federal Republic of Germany to the exclusion of international private law (Introductory Act to the German Civil Code). The application of the CISG is excluded. To the extent that the choice of law in favour of the law of the Federal Republic of Germany is inadmissible or ineffective here, the prerequisites and effects of the retention of title in accordance with section IX are subject to the law at the respective storage location of the reserved goods.
3. If a provision of these terms of payment and delivery or in the context of other agreements be or become wholly or partially invalid or unenforceable, this does not affect the validity of all the other provisions or agreements.
4. The headings for the individual provisions of these terms of payment and delivery are for convenience only and have no independent regulatory content and no legal significance.
5. The data of the customer relating to the business transactions with him is processed in accordance with the Federal Data Protection Act.
Valid: 14th February, 2018
