§ 1 SCOPE OF THE GENERAL TERMS
1. These general terms of sales and supplies of REMA Lipprandt GmbH und & Co. KG (hereinafter: the Supplier) are exclusivelyin force; adverse or varying terms of sales and supplies of the orderer, mandator or buyer (hereinafter: the Orderer) are not accepted, unless the Supplier accepts these through written confirmation. The general terms of sales and supplies of the Supplier will even then be valid, if he executes unconditionally the orders of the Orderer with knowledge of the adverse or varying terms of sales and supplies of the Orderer.
2. The scope of the contractual agreements between Supplier and Orderer is determined by the written representations. If a contract is concluded without mutual written representations, the contractual agreements shall be determined by the written confirmation of the order by the Supplier. Without such written confirmation, the written order of the Orderer is decisive.
3. Additional agreements are not binding unless being confirmed in writing by the Orderer.
4. These General Terms of Sales and Supplies are also valid for all future transactions, if the Orderer is a merchant according to Sec. 24 AGBG (Standard Form Contracts Act).
5. The rules of the Verband Deutscher Elektrotechniker (Association of German Electrical Engineers) shall apply to all matters concerning the security of services and supplies. Deviations are premissible, if the same safety standard will be achieved by different means. Necessary protective devices belong to the scope of delivery, if required by law or explicitly agreed upon.
§ 2 Orders
1. The order received from the Orderer is a binding offer according to Sec. 145 BGB (German Civil Code).
2. The Supplier has the right to accept the order by sending a written confirmation within 4 weeks or by delivering the ordered goods within the same period of time.
3. The Supplier retains all titles and copyrights to all illustrations, diagrams, designs, drawings, blueprints and estimates of costs or expenses. Such documents may not be made accessible to third parties unless the Supplier has consented in writing. Upon request of the Supplier the Orderer has to return all such documents if the order is not given.
4. Subsec. (3) applies accordingly to documents of the Orderer. These documents may be made accessible to such third parties without written consent, for which the Supplier is authorized to delegate services or supplies.
§ 3 PRICES AND CONDITIONS OF PAYMENT
1. Unless expressed otherwise in the written confirmation of the order, all given prices apply ex works excluding erection or installation and packing, which can be billed separately.
2. The Supplier reserves the right to raise the prices accordingly, if after a period of 4 months following the concluding of the contract an increase of costs occurs, especially based on alterations of collective wage agreements or increase of prices for materials. Upon request of the Orderer the reasons for a raise of prices will be substantiated.
3. If the Orderer is a merchant according to Sec. 24 AGBG (Standard Form Contracts Act), the period given in (2) is reduced to 6 weeks.
4. Any deduction of cash discount requires written agreement.
5. Unless expressed otherwise in the written confirmation of the order, payments are due net within 30 days from the date of invoice. If the Orderer is in arrears of payments for more than 30 days, the Supplier shall be entitled to ask for default interest of 4% above the current discount rate of the Deutsche Bundesbank. If the Supplier is able to prove higher damages caused by the delay of payments, he may ask for payment of higher damages. The Orderer is entitled to prove that lower or no damages were caused by the delay of payments.
6. The value-added tax set by law is not included in the prices of the Supplier; it will be shown separately as set by law on the date of invoice.
7. Payment must be made free on paying office of the Supplier.
8. If the Orderer is not a merchant according to Sec. 24 AGBG (Standard Form Contract Act), he has the right to terminate the order, if price adjustments higher than 5% occur. The valueadded tax is then included in the price.
9. The Orderer can only set off those claims against the Supplier, which are undisputed or recognized by a nonappealable court-judgment or by the Supplier. The Orderer can enforce a lien only if his counterclaim is based on the same contractual relationship.
10. If the Orderer files a complaint in respect of a defect of goods according § 10, he must comply with his contractual obligations, especially the covenanted conditions of payment. In case of filing a complaint, he may retain payments only to an amount in reasonable proportion to the occured defects. If the delivery is destinated for the commercial enterprise of the Orderer, he may retain payments only if he has filed a complaint the merits of which have been established by both parties.
§ 4 RETENTION OF TITLE
1. Title to all goods is retained by the Supplier until all claims originating from his contractual relationship with the Orderer are satisfied. Any behaviour of the Orderer not in conformity with the contract, especially delay of payments, entitles the Supplier to take the goods back. The retraction is not a termination of the contract unless this is explicitly expressed in writing.
2. If the Orderer is a merchant according to Sec. 24 AGBG (Standard Form Contract Act) the retention of title shall apply to all claims originating between the Orderer and the Supplier.
3. For the time during which the title is in retention, pledging or chattel mortgage is not permitted. The Orderer is permitted to resell the goods in normal course of business under the condition of assigning all claims originating from the resale including value-added tax to the Supplier. These claims then are concidered as being already assigned with the signing of the contract between Orderer and Supplier, regardless whether the goods are sold with or without specification. The Orderer keeps the right to collect the claims after the assignment. This does not affect the Supplier´s right to collect the claim himself, but he is obligated to refrain from collecting for as long as the Orderer fulfils his obligations to pay, and no cessation of payments occurs or petition of bankruptcy or composition proceedings is filed. Upon request the Orderer must disclose the assigned claims und their debtors, give all information necessary for collection, hand over the pertinent documents and notify the debtors of the assignment. Any specification or transformation of the goods by the Orderer is considered to be performed on behalf of the Supplier. If the goods are processed with other materials, not belonging to the Supplier, the Supplier acquires coownership of the new product pro rata of the value of his goods in relation to the
other processed materials at the time of processing. The same applies to the case of unseparable assembly or confusion of goods with other materials. If the assembly or confusion takes place in a way that the goods of the Orderer are considered as main part, it is considered to be agreed upon that the Orderer transfers pro rata co-ownership to the Supplier. The Orderer holds all such goods (joint) property of the Supplier in custody for the Supplier.
4. The Supplier is obligated to release securities insofar as the securities exceed the secured claims for more than 20%. The Supplier has the choice of which securities are to be released.
§ 5 PROHIBITION OF ASSIGNMENT
1. The Orderer is not permitted to assign any claim originating in the contractual relationship against the Supplier to a third party.
§ 6 PERIOD OF DELIVERY
1. The period of deliveries or services is governed by § 1 (1). The beginning of the period of delivery requires the in time receipt of all documents, necessary permits, releases, clarification and approval of plans, clarification of all technical matters, compliance with conditions of payments and other obligations. Otherwise the period of delivery does not begin until after the fulfilment of these requirements.
2. The period of delivery is complied with (a) for deliveries without erection or installation, if the consigned goods, ready for operation, are shipped or picked up within the period of delivery. If the delivery is delayed for reasons which the Orderer is responsible for, the period of delivery is complied with, if notification of readyness for shipment is given within the period of delivery.
(b) for deliveries including erection or installation, if erection or installation is completed within the period of delivery.
3. If the period of delivery is not complied with because of mobilisation, war, riot, strike, lockout or other unforeseeable circumstances, the period of delivery will be adequately extended.
4. If the Supplier is in default, his liability for damages is limited to 50% of the forseeable damages. The liability for unforseeable damages requires the proof of intentional or wantonly negligent breach of contract. Without proof of further damages the Orderer is entitled to ask for every full week of delay for damages in the amount 0.5% of the value of the part of delivery or service, which has not been put into operation because of delayed performance. The overall damages for delay are limited to a maximum of 5% of the declared value of the goods to be delivered. The Supplier has the burden of proving that the damages were lower. These limitations do not apply, if a fixed-date transaction was agreed upon or if the Orderer claims, based on the Supplier´s delay, that his interest in the fulfilment of the contract has ceased.
5. The right of Orderer to rescission of the contract after expiration of an extention granted remains unaffected.
6. If the Orderer requests delay of delivery, the Supplier can ask for storage charges in the amount of 0.5% of the amount of invoice for every month commenced beginning one month after notice is given that the goods are ready for shipment. The storage charges are limited to 5% unless the Supplier proves higher costs.
§ 7 TRANSFER OF RISK
1. The risk is transfered to the Orderer
(a) for deliveries without erection or installation, if the consigned goods, ready for operation, are shipped or picked up within the period of delivery. The Supplier will insure the goods against breakage, damages in transportation or fire only upon request and costs of the Orderer.
(b) for deliveries including erection or installation from the day when the goods are taken over for operation. If a test run is agreed upon, the risk passes after faultless test under the condition that the test or takeover in the Orderer´s plant follows the erection or installation without delay after readyness for operation is declared.
2. If the delivery or the beginning of the erection or installation is delayed upon request of the Orderer or based upon reasons within his responsibility, the risk passes with the beginning of the delay. The Supplier is obligated to effect all requested insurances upon the Orderer´s Costs.
§ 8 ERECTION AND INSTALLATION
1. For any kind of erection or installation the following provisions apply unless agreed otherwise in writing:
(a) The Orderer has to pay for and fulfill his obligations in time with regard to:
(aa) auxiliary personnel such as laborers in sufficient number and, if necessary, bricklayers, carpenters, fitters, crane operators, other skilled laborers with the necessary tools;
(bb) excavation works, foundations, engineering, mortising, scaffolding, plastering, painting and other works unusual in the Supplier´s trade including the necessary materials;
(cc) objects and materials necessary for erection and operation, e.g. props, wedges, bases, cement, cleaning materials, lubricants, fuel etc. furthermore scaffolds, lifting gear and other devices;
(dd) power and water including the necessary connections at the point of use, heating and general lighting;
(ee) suitable and dry rooms of sufficient size at the site which can be locked for storage of machineryparts, equipment, materials, tools etc. and adequate working rooms and accomodation for the Supplier´s personnel including reasonable sanitary installations; furthermore the Orderer must follow the same provoisons for safeguarding the property of the Supplier and erection personnel at the site as he would for his own;
(ff) protective clothing and devices, which are necessary for the particular circumstances at the site and which are not usual for the Supplier´s trade.
2. If the Supplier has undertaken to provide erection or installation on an actual cost basis, the following provisions shall apply in addition to those as under (1):
(a) The Orderer shall pay to the Supplier the rates agreed upon at the time of order for work and premiums for overtime-, night-, Sunday- and holiday work, for works under unusually difficult conditions and for planning and supervision. Time spent for preparations, travelling, errands and reporting is considered as working hours.
(b) Separately paid will be travelling expenditures, transportation costs for tools and personal luggage, allowances for working time as well as for off-days and holidays.
§ 9 ACCEPTANCE
1. Goods delivered must be accepted by the Orderer, even if they give rise to minor complaints. Partial delivery is permitted unless agreed otherwise.
§ 10 LIABILITY FOR DEFECTS
1. If a service or object becomes unfit or substatially affected for use as a result of circumstances occuring before the transfer of risk, especially because of unfit materials or unsufficient execution, the Supplier must at his discretion repair or replace the object or perform anew the service. The Supplier must be notified of the ascertainment of such faults in writing without delay.
2. The liability for defects does not cover natural waer and tear nor damage arising after transfer of risk because of faulty or negligent handling, excessive strain, unsuitable materials for operation, unsufficient construction works, unsuitable soil conditions or such chemical, electrochemical or electrical influences as were not assumed by the contract. This applies also to all alterations or repairs performed improperly by the Orderer or third parties.
3. If the Orderer is a merchant according to Sec. 24 AGBG (Standard Form Contract Act), he is only entitled to warranty claims, if he complies with his duties to examine and complain according to Sec. 377, 378 HGB (German Commercial Code).
4. In case of repair the Supplier bears all expenses necessary for the removal of defects, especially costs for transport, travelling, work and materials, unless these are increased by moving the object to a place different from the place of delivery. The Supplier bears these costs only to an amount limited by the price of the sold object itself.
5. The orderer must grant the Supplier a reasonable period of time necessary for the removal of the defects. Any denial frees the Supplier from his obligation to remove the defects. If the Supplier is not able or willing to remove the defects, or if the removal is delayed for an unreasonable period of time, for which the Supplier is responsible, or the removal of defects or the replacement is delayed for other reasons, the orderer is entitled at his discretion to withdraw from the contract or ask for a reduction of the purchase price.
6. Liability for other claims of the Orderer, regardless for their legal grounds, especially for damages not incurred in the delivered goods itself, lost profits or other pecuniary damges, is excluded unless provided otherwise hereinafter. This does not apply, if the liability is based upon wanton negligence or intent or absence of warranted qualities.
7. A warranty of quality is only agreed upon, if confirmed in writing.
8. If the Supplier negligently fails to perform the contractual duties, his liability is limited to the forseeable damages.
9. Subsec. 1 – 8 apply accordingly to those claims of the Orderer for repair, replacement or damages, which arise from proposals or advise rendered or the failing to perform collateral duties.
10. The liability for defects is limited to defects occuring during a period of 12 months from the day of transfer of risk regardless of the period of operation. This limitation period in actions for breach of warranty is a prescription period and applies also to claims for consequential damages unless based upon tort. The limitation period for repairs is 3 months and for replacements 6 months. This period runs at least until expiration of the original warranty limitation period for the sold goods.
§ 11 IMPOSSIBILITY OF PERFORMANCE, ADJUSTMENT OF CONTRACT
1. If it becomes impossible for the Supplier to perform his contractual obligations based upon reasons within the responsiblity of the Supplier, the Orderer is entitled to ask for damages limited to 10% of the value of the part of delivery or service which could not be put into operation because of this impossibility. Further claims are excluded unless based upon intent or wanton negligence. The Orderer´s right to terminate the contract remains unaffected.
2. Insofar as unforseen events as described in § 6 (3) materially affect or change the economic consequence or substance of the delivery or service or have major effect on the Supplier´s business, this contract shall be reasonably adjusted within good faith. If adjustment should be considered unreasonable, the Supplier may withdraw from the contract. If the Supplier wants to exercise this right to withdraw, he must notify the Orderer immediately after recognizing the significance of the event regardless whether an extention of the period of delivery is agreed upon.
§ 12 OVERALL LIABILITY, FURTHER CLAIMS FOR DAMAGES
1. Further liability for damages other than provided in § 10 and 11 is excluded regardless of the legal grounds. This applies especially to claims arising from breach of duties during the conclusion of the contract, breach of collateral duties and claims for producer´s liability.
2. Subsec. (1) does not apply, if the liability is based upon intent or wanton negligence of the Supplier, his statutory representatives or other agents. It also does not apply to initial inability to perform and claims based upon the Produkthaftungsgesetz (Product Liability Act), insofar as liability is mandatory according to this Act.
3. The exclusion or limitation of Supplier´s liability applies also to the personal liablity of his employees or agents.
§ 13 JURISDICTION, PLACE OF PERFORMANCE
1. If the Orderer is a registered merchant or legal entity, the Supplier´s place of business is the place of jurisdiction for all litigation arising directly or indirectly from this contract. At Supplier´s choice also the place of Suppliers branch office or the Orderer´s domicile can be the place of jurisdiction.
2. If the Orderer has not the full status of a merchant according to the Handelsgesetzbuch (German Commercial Code), Subsec. (1) shall apply also, if the Orderer has changed his domicile or ordinary residence after conluding this contract outside the Federal Republic of Germany or if his domicile or ordinary residence is unknown at the time of bringing an action.
3. Unless expressed otherwise in the written confirmation, the Supplier´s place of business is also the place of performance for this contract.
§ 14 VALIDITY OF CONTRACT, APPLICABLE LAW
1. All contractual relations are governed by German law.
2. If any provision of the contract is void, the remaining part of the contract remains unaffected.
§ 15 REPRINTS
1. Reprints, creation of copies and their distribution also in electronical media is allowed only with permission of REMA Lipprandt GmbH und & Co. KG.