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General Terms and Conditions

Rempp Küchen GmbH Terms of Delivery and Payment for Businesses (June 2023)

1. General – Scope

1.1

The general terms and conditions, in particular in terms of deliveries, services and offers apply to all present and future business relationships with our commercial customers who are considered enterprises as defined by Section 14 German Civil Code (BGB) (hereinafter referred to as “Customer” or “Customers”. This also applies for all future business transactions with customers, even if our general terms and conditions are not separately agreed again in individual cases.

1.2  

Differing, conflicting or supplementing general terms and conditions of customers are not subject of the contract even if acknowledged. They do not obligate us even if we refer to a document of the customers containing their conditions or make reference thereof when concluding a contract. This does not apply if we expressly consent to their applicability.

2. Contract conclusion

2.1 

Our offers are non-binding, unless dictated otherwise by circumstances, they merely represent requests to the customer to submit to us definitive contractual offers (“invitatio ad offerendum”). Our information on price indication (marked by an offer number) is non-binding. Technical changes to our offers such as changes in shape, colour and/or weight are reserved within a reasonable scope.

Upon ordering a product the customer declares in a binding manner to have purchased the ordered product. We are entitled to accept the contract offer within two weeks after receipt. A contract comes into force with our written order confirmation. The same applies for supplements or amendments to the order. Orders and commissions accepted by way of a confirmation of receipt are subject to our examination, in particular with regard to the required credit limit requirements of the customers. Mere electronic confirmation (in EDI format) regarding the receipt of the electronic order or commission are not deemed as acceptance. After positive examination we will send a separate order confirmation.

If we do not issue an order confirmation the contract comes into force with the delivery and acceptance of the ordered goods.

If we provide technical information or act in an advisory capacity, this takes place as pure courtesy under the exclusion of liability, unless the advice is expressly agreed in writing as part of our service.

2.2

The contract is concluded subject to the correct and timely self-supply by our supplier. This applies only if we are not responsible for non-delivery, in particular with the conclusion of a congruent covering transaction with our supplier. The customer shall immediately notify us regarding non-availability of the service. The consideration will be refunded immediately.

2.3 

Specifications regarding the subject of the delivery or service (in particular weight, dimensions, colours, design or other technical specifications) are only approximately relevant, unless the usability for contractually required purposes requires a precise match. The specifications do not represent guaranteed quality features. Deviations customary in the sector, legal or technically required adjustments are permissible, provided this does not impair the usability for agreed purposes. We notify our customers regarding deviations and adjustments without delay.

3. Price and terms of payment

3.1

Our prices are ex-works (INCOTERM 2020: EXW Rempp kitchens factory location) and apply for the scope of delivery and services as conclusively listed in the written order confirmation. Additional or special services are charged separately. All taxes, customs duties and other fees and duties applicable for deliveries and services in the destination country are borne by the customers. The sales tax in the respective statutory amount on the day of the delivery is added to the prices.

3.2

We reserve the right to reasonable annual adjustment of catalogue prices for future, i.e. not yet accepted orders and commissions with timely notification (six weeks as a rule) and at our discretion.

3.3  

Unless agreed otherwise, all our prices are in EUR ex-works, unpackaged and free loaded on truck (INCOTERM 2020: EXW Rempp kitchens factory location). The packaging is charged at cost price. Freight costs are to be submitted without discount or reimbursed without discount by the customer on request.

3.4  

If there lies more than four months between the order confirmation and order retrieval we reserve the right to charge our prices valid at time of delivery. In any case, we pass on the price reductions. In the event of changes in price our customer receives a new order confirmation. Should the price items or factors such as material and raw material prices, wages and salaries decisive for our price determination change significantly after our submission of an offer or order confirmation we are entitled to change the prices applicable on the day of the delivery. The price increases must be kept within the range of the respective cost increases and must be limited to the market price.

3.5

In case of delivery of products in countries outside EU the customer must submit a confirmation of arrival or an alternative proof. In case of failure to submit we reserve the right to charge sales taxes applicable in the Federal Republic of Germany.

3.6

Our invoices are payable immediately. Payment targets require special written agreement.

3.7

If payments via SEPA direct debit are agreed, then the period for pre-notification with regards the direct debit is at least one business day (24 hrs.). The pre-notification can also be made in invoicing.

In case of payment after the due date our rights are determined according to Section 288 BGB as regards interest on arrears.

3.8

We are not obligated to any further deliveries under any current contract before full payment of all due invoice amounts including statutory interest. Assertion of a default damage remains reserved.

3.9

If the customer is in default with due payments at least twice within 12 months, a commercial credit insurer, central regulator or the like reduces the limit for the customer or insolvency proceedings are initiated over the assets of the customer we are entitled, after setting a grace period of 12 days for outstanding deliveries under any current contract, to demand cash payment prior to delivery or to withdraw from the contract with the expiry of the payment target.

3.10

Offsetting with and the withholding of the due invoice amount are permissible for the customer only in case of undisputed or legally established claims. Bills of exchange, if they are endorsed as payment, are accepted only against reimbursement of expenses.

3.11

Unless agreed otherwise, the payment must be made in cash, via check (only on account of performance) free of bank or giro transfer fees in euros. We are not obligated to accept bill of exchange. Should this be the case the buyer shall pay for bank, discount and collection fees.

4. Delivery, transfer of risk

4.1

The delivery periods are based on the specifications in our order confirmation. The delivery periods or deadlines mentioned by us are only approximations, unless a fixed delivery time or a fixed deadline has been expressly agreed. We are entitled to notify a specific delivery deadline (delivery notification).

4.2

The compliance with our delivery obligation assumes the timely and proper fulfilment of the obligations of the customer, in particular if he has made an agreed payment or if he has provided the documents, templates, samples or drawings, etc. required for the order processing. The customer is obligated to accept the delivery on the notified date. We reserve the right to claim for costs incurred due to delays in accepting the delivery.

4.3

We provide our service (place of performance) in the agreed calendar week at the registered office or our company in Wildberg. Partial deliveries are permissible within the delivery periods agreed with the customers, provided they are customary or reasonable for the customers or if delivery items are different, unrelated furniture.

4.4

Unless agreed otherwise or handled differently by us for the benefit of the customers, the delivery is made ex-works, unpackaged and provided for collection from the production location (INCOTERM 2020: EXW Rempp kitchens factory location). If we take over the delivery to the customer, the customer shall ensure suitable unloading conditions at the unloading point, in particular a level parking space for trucks, loading dock for level unloading as well as a location outside the flow of road traffic.

4.5

The risk of accidental loss and the accidental deterioration of the goods is transferred to the customer with the handover of the purchased item to the freight forwarder, carrier or otherwise with the party commissioned with the transport; the handover is deemed to have taken place if the customer is in default of acceptance.

4.6

Unless agreed otherwise the delivery is made ex-works (INCOTERM 2020: EXW Rempp kitchens factory location).

5. Delivery interruption – force majeure

5.1

Definition according to RAL GZ 430, Annex 20.

In general, the term “Force majeure” refers to an externally occurring, operationally unrelated and reasonably to be expected and even with reasonably utmost care unavoidable event (rather than many: BGHZ 100, 185). Usually events such as natural catastrophes (hurricanes, earth quacks or floods), (local) epidemics, pandemics, wars and political unrest are considered “Force majeure”. A strong indication for the presence of force majeure are also the official measures and warnings.

5.2

There is agreement between the supplier and the customer that the following circumstances are also attributable to force majeure:

5.3

Legal consequences due to force majeure as defined under Section 5:

A contracting party who is unable to supply as per the contract due to force majeure, is obligated to inform the customer immediately regarding the reason and the expected duration of the delay in delivery. At the request of the customers the supplier is obligated to demonstrate the objective presence of force majeure and the impact on delivery capacity.

Contractual delivery periods are extended automatically by the duration of the hindrance due to force majeure. Other reasons for delay should not be taken into account. Damage claims, contractual penalties or termination/withdrawal from contract based on delivery delay caused by force majeure may not be asserted.

In the event of delivery delays caused by force majeure the contract shall be amended accordingly in good faith at the request of one of the parties. If this is deemed to be economically unjustified by the supplier, the supplier is entitled to withdraw from the contract in part or as a whole.

In the event of withdrawal all services rendered must be reimbursed immediately. Further compensation claims of the customers are excluded. Not-temporary disruptions can be assumed to exist if the disruption lasts longer than five weeks.

If goods acceptance is not reasonable for the customer due to a not-temporary disruption, he can also withdraw from the contract after setting a grace period in a written statement to us.

Compensation claims or contractual or customary penalties are excluded, if the respective contracting party has met its above mentioned obligations.

6. Subsequent delivery period

6.1 After the expiry of the delivery period specified in the order a subsequent delivery period of 14 days starts without further explanation. After the expiry of the subsequent delivery period the withdrawal from the contract is deemed to have taken place under the exclusion of compensation claims. The withdrawal from the contract according to Section 1 paragraph 2 does not take effect if the customer notifies us during the subsequent delivery period that it insists on the fulfilment of the contract. We are, however, released from delivery obligation if within the subsequent delivery period the customer does not respond to our inquiry as to whether it insists on the fulfilment of the contract.

6.2

If the customer claims damage compensation instead of performance due to a delay, he must set us a 4-week grace period within the ongoing subsequent delivery period in accordance with Section 6 paragraph 1, associated with the threat that the customer rejects fulfilment once the period is expired. The claims of the customer due to delayed delivery are excluded before the expiry of the subsequent delivery period.

7. Guarantee

7.1

Our goods are industrially manufactured and are intended for use by the end consumer in private households.

7.2

The delivered goods must be carefully examined immediately after delivery as well as when installed at the end consumer. Section 377 BGB applies as well as the specifications of the deliver note. Hidden defects must be notified to us by the customer immediately after being detected. The customer bears the burden of proof in order to demonstrate all eligibility criteria, as well as for the time of the detection of the defect and the timeliness of the claim. Complaints are excluded after the expiry of the complaint period. Place of subsequent performance is our registered office. At our request the rejected goods must be returned to us. In the event of justified defect complaint we reimburse the reasonable return costs.

7.3

To the extent we are obligated to perform subsequent performance in the event of defects, this is carried out at our discretion through improvement or subsequent delivery. We do not bear incurred costs for removal and installation for subsequent delivery. In this case, we grant a service fee in the amount of EUR 250. In case of failure, the impossibility, unacceptability, refusal or unreasonableness of the delay in improvement or replacement delivery, the customer may only withdraw from the contract or reduce the purchase price appropriately. The withdrawal is possible only if the defect can not be remedied (i.e. the cost of defect removal must exceed at least 10% of the invoice amount).

7.4

Our obligation to provide subsequent performance does not apply if the customer modifies the goods or has them modified without our consent and as a result the defect removal becomes impossible or made unreasonably difficult. The same applies to other guarantee claims.

7.5

The customer waves the right of recourse for asserting claims for costs (installation or removal costs) incurred in connection with subsequent performance towards the end consumers. To this extent, he waives his claims against us in accordance with Section 445a(1) and 2 BGB and Section 439(3) BGB. In return, we grant the customer an equal compensation for this waiver consisting of the following items:

a.) We do not bear any incurred costs of removal and installation in case of subsequent delivery. In this case, we grant a service fee in the amount of EUR 250.

b.) Simplified complaint processing: The customer needs to only show the defectiveness of a delivery item. He must provide proof of defect only upon our express request.

7.6

To the extent that our goods are qualified as digital products ((Section 327(1) sentence 1 BGB)) or as goods with digital elements ((Section 327(3) sentence 1 BGB)), it applies that our customer will first attempt as a priority to acquire the updates in accordance with Section 327f BGB or Section 475(3) no. 2 and (4) no. 2 BGB from the mentioned actual manufacturer of the digital products or goods with digital elements. Thereafter, the statutory regulations apply.

7.7

If the customer has assumed an obligation to product safety, e.g. in accordance with ProdSG (Product Safety Act) he must inform us immediately and in full regarding planned measures.

7.8

We are obligated to accept the goods return for inspection of defects only if the customer has previously notified the return stating the invoice number and the invoice date in writing. Acceptance of the goods returns in no way implies the acknowledgement of the defect complaint of the customer.

7.9

No guarantee is accepted for faulty installation or faulty, negligent or improper use or handling of the goods by the customer.

7.10

As a rule, only our product description in the order conformation is agreed as the quality of the goods. Deviations in quality, colour, width, weight, equipment or design that are common in the industry or insignificant or technically unavoidable cannot be subject to complaint. Public statements, leaflet descriptions, figures or advertising regarding the delivery item and its intended use do not represent information on the quality of the goods.

7.11

The limitation period for defect claims is 24 months, calculated as of the transfer of risk.

8. Liability

8.1

Our fault-based liability for compensation, regardless of the legal ground, in particular due to impossibility, delayed, defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations and tort is limited as follows:

8.2

We are not liable in case of simple negligence of our corporate entities, statutory representatives, employees or other vicarious against, unless it concerns a breach of essential contractual obligations (cardinal obligations). Essential contractual obligations include obligation to timely delivery of goods free of significant defects as well as consulting, protection and duty to exercise proper care, that allow our customer the contractual use of the goods or the protection of life and limb of its personnel or the protection of its assets against significant damages. Regarding liability in case of faulty self-delivery please refer to Section 2.2).

8.3

To the extent that we are liable based on the merit of the damage claim, this liability is limited to damages that we should have foreseen as possible result of the breach of contract when concluding the contract or should have foreseen if we had exercised due diligence. All damages not arising from the goods themselves (direct damages), but as a result of the defects in the goods can be compensated only if such damages are typically to be expected with proper use of the goods.

8.4

The above mentioned exclusion of liability and liability limitations also apply to the same extent for our corporate entities, statutory representatives, employees or other vicarious agents.

8.5

The above mentioned limitations do not apply for our liability due to intentional conduct, gross negligence, for guaranteed quality features, due to injury to life, limb or health or our liability according to the Product Liability Act.

9. Retention of title

9.1

The retention of title agreed bellow serves to secure all our existing and future claims against the customer (secured claims).

The goods remain in our ownership until the full payment of all claims from goods deliveries under the overall business relationship, including side agreements, compensation claims and cashing of checks and bills of exchange. Moreover, we reserve the right to retain the ownership of goods subject to retention of title until the complete fulfilment of secured claims. The retention of title also remains in force if individual claims are included in the current invoice and the balance is drawn and acknowledged by us.

In the event of delayed payment or cessation of payment by the customer we shall be entitled, upon declaring the withdrawal from the contract, to demand the return of goods subject to retention of title.

9.2

The customer is entitled to process and resell the goods subject to retention of title in the proper course of business, provided that it is not in default with the fulfilment of its obligations towards us or stops its payments. To this end the following is agreed:

9.3

The processing or transforming of the goods subject to retention of title takes place for us as the manufacturer within the meaning of Section 950 BGB. Through the processing or transforming of the goods subject to retention of title we acquire ownership of the new item and not the customer. Nevertheless, should the customer acquire future ownership, it transfers this to us for purposes of securing the secured claims. The expectant right of the customer to processed or transformed items remains force. In internal relationship the customer releases us from all third party claims arising from the processing or transforming.

 

9.4

If the goods subject to retention of title are processed, mixed, blended or joined with other items, we acquire co-ownership to the new item to a portion corresponding to the ratio of the invoice value of our goods subject to retention of title to the total value (co-ownership share). If the goods subject to retention of title are joined to a uniform item using another item and if one of these items is considered as principle item or if the goods subject to retention of title are permanently built-in, then the customer, to the extent possible, transfers the proportional co-ownership to us as security as per the above Section 1. The provisions applicable to goods subject to retention of title apply to the co-ownership share accordingly.

9.5

The customer hereby assigns to us the claim with all ancillary rights arising from the resale of the goods subject to retention of title – including any balance claims – regardless of whether the purchase item resale of the goods subject to retention of title. The same applies for claims based on other legal grounds that take the place of the goods subject to retention of title (e.g. Claims from factory delivery, insurance claims or claims from tort) or claims from the genuine factoring of the claim.

To the extent that the goods subject to retention of title have been processed, mixed, blended or permanently built-in we are entitled, from this assignment of security, to a first-ranking fractional value of the respective claim from the resale in the ratio of the invoice value of our goods subject to retention of title to the invoice value of the object.

If the goods subject to retention of title are sold by the customer together with other goods not delivered by us, the customer hereby assigns a first-ranking share of the claim from the joint sale in the amount of the invoice value of our goods subject to retention of title.

If the claim from resale is placed in a current account relationship with its buyer by the customer, the customer hereby assigns to us its claims from the current account relationship in the amount of the invoice value of the goods subject to retention of title.

The assignment includes in particular not only payment claims, but also claims for surrender especially for the case that the customer resells in turn under retention of title.

We herewith accept the above assignment.

9.6

The customer is authorised to collect assigned claims provided he meets his payment obligations. The collection authorisation expires with payment default of the customer or with significant deterioration of customer’s financial situation. In this case, the seller is hereby authorised by the customer to inform the buyer regarding the assignment and to collect the claims itself. To assert the assigned claims the customer must provide the required information and allow us to examine this information. In particular, he must provide us with a precise listing of claims to which he is entitled with names and address of buyer, amount of the individual claims, invoice date etc.

Amounts collected by customer from us in this respect must be retained in a separate bank account and transferred to us immediately for the purposes of securing the claims.

9.7

Should the value of the security to which we are entitled exceed our complete claims by more than 10%, we shall be obligated to release securities at the discretion of the customer upon his request.

9.8

Pledging or security assignment of goods subject to retention of title and/or the assigned claims are not allowed. We must be informed of pledge immediately stating the pledgee.

9.9

The customer stores the goods subject to retention of title for us free of charge. He shall protect and secure them against common hazards such as fire, theft, water to the usual extent. The customer hereby assigns to us damage claims he is entitled to from damages of the type mentioned above against insurance companies or parties liable to compensation in the amount of the invoice value of the goods. We hereby accept this assignment.

9.10

If we take back delivery items in exercise of our right to retention of title, the customer is entitled to withdraw from the contract only if we have expressly declared this. The seller is allowed to satisfy himself from the private sale of the goods subject to retention of title that have been taken back.

10. Intellectual property rights

10.1

We reserve the ownership and copyright to all documents, photos, videos and advertising material provided to our customers. The customer is authorised to use these in its own analogue or online media towards third parties to the extent agreed for purposes of advertising our goods for the duration of the business relationship and taking into account our commercial property rights. The customer is not allowed to transfer to third parties (such as catalogue service provider or online third party platforms).

10.2

For the case that our delivered goods violate the commercial property rights or copyright of a third party, we shall replace or modify our goods at our discretion and at our cost or grant our customers the right of use by concluding an appropriate licence contract. Any damage claims of the customer are subject to the limitations of Section 8.

11. Place of performance, Jurisdiction

11.1

Place of performance and place of subsequent performance for all deliveries and services from the contractual relationship is Wildberg, if the customer is a merchant.

11.2

If the customer is a merchant or legal person under public law or special fund under public law or if he does not have general place of jurisdiction in Germany, the place of jurisdiction, at our discretion, is the competent court of our registered office or the registered office of the customer, according to the value in dispute. For legal actions against us the competent court of our registered office is the exclusive place of jurisdiction according to the value in dispute. Mandatory statutory provisions regarding the exclusive place of jurisdiction remain unaffected. This also applies for checks and bill of exchange claims. However, we reserve the right to also take action against the customer at its general place of jurisdiction or to take recourse to interim relief.

12. Final provisions

12.1

The contractual relationship is governed exclusively by German law excluding the conflict of laws of international private law (IPR) and the UN Sales Convention (CISG).

12.2

Decisive for the legal relationship between us and our customers is the written concluded agreement in addition to this general terms of delivery and payment.

12.3

The customer shall inform us immediately and at the latest together with a possible report he sends to the market surveillance authority regarding risks he becomes aware of as defined under Product Safety Act or Product Liability Act.

12.4

Should individual provisions of the contract with the customer 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 complete or partial invalid regulation shall be replaced by a regulation whose economic success comes closest to that of the invalid regulation.

Last updated June 2023