Rempp Küchen GmbH Terms of Delivery and Payment for Businesses (January 2015)
1. General – Scope
1.1. The terms of business apply to all present and future business relations with our business customers (referred to hereinafter as customers).
1.2. Even if known, the customer’s divergent, contradictory or supplementary general terms of business shall not become an integral part of the contract unless they are explicitly included within its scope in writing.
2. Conclusion of Contract
2.1. Our offers are subject to confirmation unless the circumstances indicate otherwise and represent only invitations to the customer to submit definitive offers to treat (‘invitatio ad offerendum’) to us. We reserve the right to make technical changes to our offers and changes to the form, colour and/or weight within the bounds of what is reasonable. By ordering goods the customer makes a binding declaration that it wishes to purchase the goods ordered. We are entitled to accept in writing the offer to treat contained in the order within two weeks of receipt. A contract comes into being upon our written acknowledgment. The same applies to additions or amendments to the order. If we do not issue an acknowledgment, the contract comes into being upon delivery and acceptance of the goods ordered.
2.2. The contract shall be concluded subject to correct and timely receipt of deliveries from our suppliers. That applies only in cases where we are not responsible for non-delivery, in particular if a congruent hedging transaction has been concluded with our supplier. The customer will be informed without delay about the non-availability of the supply. The consideration will be reimbursed without delay.
3. Prices and Terms of Payment
3.1. Our prices are ex works. All taxes and other duties on deliveries and services payable in the country of delivery shall be to the customer’s account. VAT at the statutory rate in force on the date of delivery will be added to the prices.
3.2. If the factors relevant to our pricing, such as material and raw materials prices, wages and salaries change significantly after we have made an offer or issued an acknowledgment, we shall be entitled to charge the prices applicable on the date of delivery. The price increases must remain within the framework of the relevant cost rises and shall be limited to the price achieved on the market.
3.3. For deliveries of goods to other EU states the customer shall produce confirmation of arrival or alternative proof on request. In the absence of such proof we reserve the right to charge the VAT applicable in the Federal Republic of Germany.
3.4. Our invoices are payable immediately. Times allowed for payment require special written agreement.
3.5. If payments by SEPA direct debit are stipulated, the pre-notification period for the debit shall be at least one business day (24 hours). Pre-notification can also take place at invoicing. In the event of payment after the due date our rights shall be determined by Section 288 of the German Civil Code with regard to default interest.
3.4. We shall not be obliged to make any further deliveries under any current contract until full payment of all invoice amounts due, including statutory interest. We reserve the right to claim damage caused by default.
3.5. In the event of undue delay in payment by the customer or impending insolvency or other significant deterioration in the customer’s financial circumstances, after setting a final deadline of 12 days we can demand cash payment before delivery or cancel the contract in respect of deliveries still outstanding under any current contract and the time allowed for payment shall cease to apply.
3.6. Set-off with and retention of invoice amounts due shall be permissible only in the case of claims that are undisputed or non-appealable. Bills of exchange accepted in payment will be accepted only against reimbursement of the expenses.
3.7. Unless otherwise agreed, payment shall be made cash, by cheque (on account of performance only), bank transfer or giro transfer in euros free of expense. We are not obliged to accept bills of exchange. If this happens, the customer shall pay the bank, discount and collection charges.
4. Delivery, Passing of Risk
4.1. The times for delivery are in accordance with the information in our acknowledgment.
4.2. Meeting our delivery commitment requires timely and correct fulfillment of the customer’s obligations, in particular if the customer has to make an agreed payment on account or has to provide documents, templates, samples or drawings, etc. needed for order processing.
4.3. Our performance is rendered by agreed calendar weeks at our company headquarters in Wildberg. Part deliveries are permissible within the delivery times agreed with the customer if they are customary or acceptable to the customer or if the delivery item comprises various pieces of furniture that do not belong together.
4.4. The risk of accidental loss and accidental deterioration of the goods passes to the customer at handover of the object of sale to the forwarder, carrier or other agent handling the shipping. Default of acceptance by the customer shall be equated with handover in this sense. Delivery is ex works unless otherwise agreed.
5. Suspension of Delivery
In the event of force majeure, industrial action and other disruptions not our fault that last or are expected to last for longer than one week, the time for delivery or time for acceptance shall be extended by the period of time necessary to remove the obstacle. In this case we will inform the customer immediately about the delay. If it becomes unreasonable for us or for the customer to perform the contract because of such an impediment which is not our/their fault or if the duration of the impediment exceeds six weeks, both parties shall be entitled to cancel the contract with respect to the part affected by the
impediment. Compensation claims shall be excluded if the party concerned has satisfied its above-mentioned obligations.
6. Subsequent Delivery Period
6.1. Upon expiry of the time for delivery stated in the order, a subsequent delivery period of 14 days commences unannounced. Upon expiry of the subsequent delivery period the contract shall be deemed cancelled, excluding any compensation claims. Cancellation of the contract according to Clause 1 (2) shall not occur if during the subsequent delivery period the customer tells us that it insists on performance of the contract. However, we shall be released from the delivery commitment if, upon being asked, the customer fails to indicate within the subsequent delivery period whether it insists on performance of the contract.
6.2. If the customer wants to claim compensation for a delay in lieu of performance, during the subsequent delivery period according to Section 5 (1) it must set us a period of 4 weeks together with the threat of declining performance after expiry of the time. Customer’s claims for late delivery shall be excluded until expiry of the subsequent delivery period.
7.1. If the customer has assumed a product safety obligation, for example under the German Product Safety Act, it shall without delay inform us fully about planned measures.
7.2. The customer must notify us in writing of any defects and missing parts within 9 days at most from receipt of the goods. The customer shall notify us of hidden defects without delay upon discovery. The burden of proof for all qualifying conditions, including the date of discovery of the defect and timeliness of notification, lies with the customer. No complaints will be accepted after expiry of the time limit for notification.
7.3. We are only obliged to accept goods returned for the purpose of verifying defects if the customer has given us advance written notice of the return, quoting the invoice number and invoice date. Accepting returned goods in no circumstances constitutes acceptance of the customer’s complaint about defects.
7.4. Our warranty does not cover faulty installation or faulty, negligent or improper treatment of the goods by the customer.
7.5. Only our product description in the acknowledgment shall be considered the stipulated quality of the goods. Customary or insignificant or technically unavoidable deviations in quality, colour, width, weight, features or design shall not give rise to complaints. Public statements, brochure descriptions, illustrations or advertising relating to the delivery item and its intended use do not constitute quality descriptions of the goods.
7.6. In the event of justified notification of defects we shall be entitled to carry out repairs or to deliver replacement goods free from defects or, in the case of discontinued models, to deliver equivalent goods free from defects within an appropriate time from receipt of the returned goods. Any expenses of dismantling and installation in the case of replacement shall not be to our account.
7.7. If cure is unsuccessful, the customer shall be entitled at its option to cancel the contract or demand a reduction in the purchase price due to a defect.
7.8. The period of limitation for claims arising from defects is 24 months from passing of risk.
7.9. If a claim for a defect is made against the customer in the event of resale of the goods to a consumer, the customer’s recourse against us shall be governed, subject to any compensation claims in accordance with Section 8 of the Terms of Delivery and Payment, by the legal provisions of Sections 478 and 479 of the German Civil Code.
8.1. Save as otherwise provided below, there shall be no claim for compensation. A claim for compensation shall exist if the customer asserts compensation claims based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Unless we are accused of intentional breach of contract, liability to compensate shall be limited to the foreseeable damage typically occurring.
8.2. We shall also be liable to indemnify if we culpably breach a fundamental contractual obligation. In this case, however, the liability to indemnify shall be limited to the foreseeable damage typically occurring.
8.3. Liability for culpable injury to life, limb or health shall likewise be unaffected; this shall also apply to mandatory liability under the German Product Liability Act.
9. Retention of Title
9.1. The goods remain our property until full payment of all debts arising from deliveries of goods in the entire business relationship, including incidental claims, compensation claims and honouring of cheques and bills. Retention of title remains effective even if we have included individual claims in a current account and the balance has been struck and accepted.
9.2. The customer may dispose of or process the reserved goods only in the ordinary course of business and only provided there is no permanent deterioration in its financial circumstances.
9.3. The customer hereby assigns the claim including all ancillary rights arising from resale of the reserved goods – including any current account balance claims – to us. The customer is authorized to collect the assigned claims as long as it fulfills its payment obligations. The authority to collect shall lapse in the event of payment default by the customer or significant deterioration of the customer’s financial circumstances. In that case, the seller is hereby authorized by the customer to notify the customers of the assignment and to collect the claims itself. To enable the assigned claims to be asserted the customer must give us the necessary information and allow us to check that information. In particular, the customer shall on request provide us with a detailed list of its claims with the customer’s names and addresses, amount of the individual claims, invoice dates, etc.
9.4. If the value of the security held for us exceeds the total amount of our claims by more than 10% we shall be obliged to release securities accordingly at the customer’s request and option.
9.5. Pledging reserved goods or claims assigned or transferring them as security are not permissible. Attachments shall be notified to us straight away, with the name of the attaching creditor.
9.6. The customer shall store the reserved goods for us without payment and shall insure them in the customary amounts against the usual risks like ire, theft and water damage. The customer hereby assigns to us its compensation claims against insurance companies or persons liable for damages arising from damage of the above-mentioned kind in the amount of the invoice value of the goods. We accept assignment.
9.7. If we take back the delivery item in exercise of our retention of title rights, the contract shall be deemed cancelled only if we have made an express declaration to that effect. The seller can satisfy itself by private sale of the reserved goods taken back.
10. Place of Performance, Place of Jurisdiction
10.1. The place of performance for all performances under the supply contract shall be Wildberg if the customer is a merchant.
10.2. The place of jurisdiction in business transactions with our customers who are merchants entered in the commercial register shall be our company headquarters (Wildberg). This shall apply even if the customer who is a merchant does not have its place of general jurisdiction in Germany or if its registered office is not known at the time of raising the action. This also applies to actions based on cheques or bills of exchange. However, we also reserve the right to sue the customer at its place of general jurisdiction.
11. Final Provisions
11.1. The law of the Federal Republic of Germany shall apply. The United Nations Convention on Contracts for the International Sale of Goods dated 11. April 1980 shall not apply.
11.2. Should individual provisions of the contract with the contracting party including these general terms of business be or become wholly or partly ineffective, that shall not affect the validity of the other provisions. The wholly or partly ineffective provision shall be replaced by a provision coming as close as possible to the economic intent of the ineffective provision.