Terms of delivery and payment of Rempp Küchen GmbH for entrepreneurs (April 2018)
1. General – Scope of application
1.1 The terms and conditions apply to all current and future business relationships with our business customers (hereinafter referred to as customers).
1.2 Deviating, conflicting or supplementary general terms and conditions of the customer, even with knowledge, are not part of the contract, unless their validity is expressly agreed in writing.
2. Conclusion of contract
2.1. Our offers are non-binding, as far as nothing else results from the circumstances, only represent requests to the customer to submit definitive contract offers to us (“invitatio ad offerendum”). We reserve the right to make technical changes to our offers and changes in design, colour and/or weight within reasonable limits.
With the order of a commodity the customer declares bindingly his intent to acquire the ordered commodity. We are entitled to accept the contract offer in the order within 2 weeks after receipt in writing. A contract is concluded with our written order confirmation. The same applies to additions or changes to the order.
If we do not give an order confirmation, the contract is concluded with delivery and acceptance of the ordered goods
2.2. The contract is concluded subject to the correct and timely delivery by our suppliers. This only applies in the event that we are not responsible for the non-delivery, especially when concluding a congruent hedging transaction with our supplier. The customer is informed immediately about the unavailability of the service. Compensatory measures will be refunded immediately.
3. Prices and terms of payment
3.1. Our prices are ex works. All taxes and other duties payable for deliveries and services in the country of destination shall be borne by the customer. Added to the prices is the value added tax in the respective statutory amount on the day of delivery.
3.2. If, after the submission of an offer by us or after an order confirmation, the relevant factors for our price determination, such as material and raw material prices, wages and salaries, change significantly, we are entitled to charge the prices valid on the day of delivery. The price increases must be within the respective cost increases and must be limited to the price enforced on the market.
3.3. Upon delivery of goods in other EU countries, the customer must provide a confirmation of arrival or an alternative proof on request. If the submission is omitted, we reserve the right to charge sales tax in the Federal Republic of Germany.
3.4. Our invoices are due for payment immediately. Payment terms require a special written agreement.
3.5. If payments are arranged by means of a SEPA direct debit, the deadline for pre-notification regarding the direct debit is at least one business day (24 hours). The pre-notification can also be done in billing.
When paying after the due date, our rights under § 288 BGB (German Civil Code) regarding default interest are determined.
3.4. Before full payment of all invoice amounts due, including statutory interest, we are not obliged to any further delivery from any current contract. The assertion of damage caused by delay remains reserved.
3.5. If, within twelve months, the customer is in default of payments due for at least two months or if the customer has requested the opening of insolvency proceedings, we shall be entitled, after a grace period of 12 days, to demand cash for outstanding deliveries for any current contract with elimination of the payment date or to withdraw from the contract.
3.6. Offsetting and withholding of due invoice amounts is only permissible for undisputed or legally established claims. Bills of exchange, as far as they are taken in payment, are only accepted against reimbursement of expenses.
3.7. Unless otherwise agreed, the payment must be made in cash, by check (only on account of performance), bank or giro transfer free of charge in euros. We are not obliged to accept bills of exchange. As far as this happens, the customer must pay the bank, discount and collection charges.
4. Delivery, transfer of risk
4.1. The delivery times are based on the information in our order confirmation.
4.2. Compliance with our obligation to deliver presupposes the timely and proper fulfilment of the obligations of the customer, in particular if he must pay an agreed down payment or if he must provide necessary documents, templates, samples or drawings or the like for the execution of the order.
4.3. The provision of our services will take place on agreed calendar weeks at the headquarters of our company in Wildberg. Partial deliveries are permitted within the terms of delivery agreed with the customer, insofar as they are customary or reasonable for the customer or the delivery item is a variety of non-matching furniture.
4.4. The risk of accidental loss and accidental deterioration of the goods passes to the customer when the goods are handed over to the freight forwarder, carrier or other agent responsible for transport; A transfer in this sense is the same if the customer is in default of acceptance.
Unless otherwise agreed, delivery is ex works.
5. Interruption of delivery
In the case of force majeure, industrial action and non-culpable disruption of operations which have lasted more than a week or are likely to last, the delivery period or acceptance period is extended by the period necessary to remove the impediment. In this case, we will inform the customer immediately about the delay. If the performance of the contract becomes unreasonable for us or the customer because of such a non-culpable disruption, or if the disruption lasts longer than six weeks, both contracting parties are entitled to withdraw from the contract regarding the scope of services affected by the disruption.
Claims for damages are excluded if the respective contracting party has fulfilled its obligations.
6. Grace period
6.1. After expiry of the delivery deadline specified in the order, a subsequent delivery period of 14 days will be set in motion without explanation. After expiry of the subsequent delivery period, the withdrawal from the contract with the exclusion of claims for damages shall be deemed to have taken place. The withdrawal from the contract according to para. 1 sentence 2 does not occur if the customer states during the subsequent delivery period that he insists on the fulfilment of the contract. However, we shall be released from the delivery obligation if the customer does not comment on our request within the subsequent delivery period whether he insists on fulfilment of the contract.
6.2. If the customer wishes to claim damages instead of performance due to any delay, he must set us a 4-week period within the current period for subsequent submission pursuant to § 5 (1), together with the threat that he will refuse performance after the deadline. Before expiry of the subsequent delivery period, the customer’s claims for late delivery are excluded
7.1. If the customer has taken over an obligation for product safety, for example according to the ProdSG, he must inform us immediately and completely about planned measures.
7.2. Notifications of defects and the absence of parts must be reported to us in writing within 9 days of receipt of the goods at the latest. The customer must notify us of hidden defects immediately after their discovery. The customer bears the burden of proof for all eligibility requirements, including the time of the determination of the defect and the timeliness of the complaint. After expiry of the complaint period, complaints are excluded.
7.4. We are only obliged to accept returns of goods for the examination of defects if the customer has previously notified the return in writing, stating the invoice number and the invoice date. With the acceptance of returned goods, a recognition of the complaint of the customer is not connected in any case.
7.5. No warranty is accepted for incorrect assembly or faulty, negligent or improper handling of the goods by the customer.
7.6. As a condition of the goods basically only our product description in the order confirmation is agreed. Industry-specific or insignificant or technically unavoidable deviations in quality, colour, width, weight, equipment or design may not be objected to. Public statements, brochure descriptions, illustrations or advertising on the object of delivery and its intended purpose do not constitute a description of the quality of the goods.
7.7. In the case of legitimate complaints, the customer has the right to rectification or the right to delivery of defect-free replacement goods or, in the case of failed models, the right to delivery of equivalent, defect-free goods within a reasonable period after receipt of the rejected goods. Any costs incurred for removal and installation are not at our expense for subsequent delivery. For this we grant a service fee of 250, – € in this case.
7.8. If the supplementary performance fails, the customer is entitled, at his discretion, to demand termination or reduction.
7.8. The limitation period for claims for defects is 24 months, calculated from the transfer of risk.
7.9. If the customer is claimed in the event of a resale of the goods to a consumer because of a defect, the recourse of the customer directed towards us, subject to any claims for damages, which are in accordance with para. 8 of the terms of delivery and payment, is subject to the statutory provisions of §§ 478, 479 BGB (German Civil Code).
8.1. Unless otherwise provided below, the claim for damages is excluded. A claim for damages exists if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Unless we are charged with intentional breach of contract, the liability for damages is limited to the predictable, typically incurred damage.
8.2. We continue to be liable for damages if we culpably violate a material contractual obligation; In this case, however, the liability for damages is limited to the predictable, typically occurring damage.
8.3. Liability for culpable injury to life, body or health also remains unaffected; this also applies to the mandatory liability under the Product Liability Act.
9. Retention of title
9.1. The goods shall remain our property until full payment of all claims arising from deliveries of goods from the entire business relationship, including ancillary claims, claims for damages and the payment of checks and bills of exchange. The retention of title shall remain valid even if individual claims are included in a current invoice and the balance is drawn and acknowledged.
9.2. The customer may only sell or process the goods subject to retention of title in the ordinary course of business and provided that his financial circumstances do not deteriorate in the long term.
9.3. The customer hereby assigns to us the claim with all ancillary rights from the resale of the reserved goods, including any balance claims.
The customer is authorised, as long as he meets his payment obligations, to collect the assigned claims. The collection authorisation expires if the customer defaults in payment or if the financial circumstances of the customer deteriorate significantly. In this case, the seller is hereby authorised by the customer to inform the customers of the assignment and to collect the claims themselves. For the assertion of the assigned claims, the customer must provide the necessary information and allow us to verify this information. In particular, he must hand over to us a detailed list of his claims with the name and address of the customer, amount of the individual claims, date of invoice, etc. on request.
9.4. If the value of the security existing for us exceeds all our claims by more than 10%, we are obliged to release the securities of his choice at the request of the customer.
9.5. Seizures or assignments of ownership of the reserved goods or the assigned claims are inadmissible. We are to be informed immediately of seizures, stating the seizure creditor.
9.6. The customer stores the reserved goods for us free of charge. He must insure them against the usual dangers such as fire, theft, water in the usual extent. The customer hereby assigns to us his claims for compensation, which are due to him of damage of the above-mentioned kind against insurance companies or substitute obligors in the amount of the invoice value of the goods. We accept the assignment.
9.7. If we take back the delivery item in the exercise of our right of retention of title, then the contract is only rescinded if we have expressly declared this. The seller can satisfy himself from the withdrawn retained goods by private sale.
10. Place of performance, jurisdiction
10.1. Place of performance for all services from the delivery contract is Wildberg, if the customer is a merchant.
10.2. Jurisdiction in business transactions with our commercial customers is the seat of our company (Wildberg). This also applies if the fully commercial customer does not have a general place of jurisdiction in Germany or if the place of business is not known at the time the complaint is filed. This also applies to check and bill of exchange suits. However, we reserve the right to also sue the customer at his general place of jurisdiction.
11. Final provisions
11.1. The law of the Federal Republic of Germany applies. The United Nations Convention on Contracts for the International Sale of Goods of 11/04/1980 (UN Sales Convention) is excluded.
11.2. Should individual provisions of the contract with the contracting party, including these general terms and conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially ineffective provision is to be replaced by a provision whose economic success comes as close as possible to the ineffective one.