§ 1 Scope, form
1 These General Conditions of Sale (GCS) apply to all our business relations with our customers (“purchaser”). The GCS apply only if the purchaser is an entrepreneur (§ 14 German Civil Law Book (BGB)), a legal entity under public law or a special fund under public law.
2 The GCS apply in particular to contracts for the sale and/or delivery of movable objects (“goods”), irrespective of whether we manufacture the goods ourselves or have purchased them from subcontractors (§§ 433, 650 BGB). Unless otherwise agreed, the GCS shall apply in the version valid at the time of the purchaser’s order or, in any case, in the last version communicated to the purchaser in text form as a framework agreement, also for similar future contracts, without us having to point them out in each individual case.
3 Our GCS apply exclusively. Any deviating, conflicting or supplementary general purchaser’s terms and conditions of business shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This consent requirement applies in all cases, for example, even if we are aware of the purchaser’s terms and conditions and make the delivery to him without reservation.
4 Individual agreements made with the purchaser in individual cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these GCS. For the content of such agreements, subject to proof to the contrary, a written contract or our written confirmation is decisive.
5 Legally relevant declarations and notifications of the purchaser with regard to the contract (e.g. setting of deadlines, notice of defects, rescinding or reduction), must be submitted in writing, i.e. in written or text form (e.g. letter, email, fax). Legal formal requirements and further evidence, in particular in the case of doubts about the legitimacy of the declarant, remain unaffected.
6 References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply, insofar as they are not directly amended or expressly excluded in these GCS.
§ 2 Conclusion of contract
1 Our offers are subject to change and non-binding. This shall also apply if we provide the purchaser with catalogues, brochures and other advertising material as well as technical documentation (e.g. drawings, plans, evaluations, calculations, references to DIN standards), other product descriptions (including technical specifications, dimensions, weights, etc.) or documentation – also in electronic form – to which we have retained ownership and copyrights.
2 The order of the goods by the purchaser is considered a binding offer of contract. Provided that the order doesn´t include anything to the contrary, we shall be entitled to accept this offer of a contract within 2 weeks after its receipt by us.
3 Acceptance may be either be declared in writing (e.g. by confirmation of order) or by delivery of the goods to the purchaser.
§ 3 Delivery period and delay in delivery
1 The delivery period is agreed in each case or stated by us upon acceptance of the order.
2 If this is not the case, the delivery period is approximately 4 weeks from the order.
If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we will inform the purchaser of this without delay and simultaneously declare the expected, new delivery time. If performance also within the new delivery period is not available, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already rendered by the purchaser. As a case of the non-availability of the service in this sense shall be deemed to be in particular the non-timely delivery to us by our supplier. If we have concluded a congruent covering transaction neither we nor our supplier are at fault, or in the individual case we are not obligated to procure.
3 The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the purchaser is required. If we are in default of delivery, the purchaser shall be entitled to demand flat-rate compensation for his/her damage caused by delay. The flat-rate for damages is 0.5% of the net price (delivery value), but in total not more than 5% of the delivery value of the goods delivered late for each completed calendar week of the delay. We reserve the right to provide proof that the purchaser does not suffer any damage at all or only substantially less damage than the aforementioned flat-rate calculation.
4 The rights of the purchaser pursuant to § 8 of these GCS and our statutory rights, in particular in case of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 4 Delivery, transfer of risk, acceptance, default of acceptance
1 Delivery is made ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the purchaser, the goods will be shipped to another destination (sales shipment). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
2 The risk of accidental loss and accidental deterioration of the goods shall be borne by the purchaser at the latest upon handover. However, in the case of a sales shipment, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay is transferred already with delivery of the goods to the forwarding agent, the carrier or any other person or institution responsible for the execution of the shipment. Insofar as an acceptance is agreed upon, this shall be decisive for the transfer of risk. Also in all other respects, the statutory provisions of the law governing contracts for work and services shall also apply for an agreed upon acceptance. The handover or acceptance is subject to same if the purchaser is in default of acceptance.
3 If the purchaser is in default of acceptance, fails to cooperate or there is a delays in our delivery for other reasons for which the purchaser is responsible, we are entitled to compensation for the damage arising from this including additional expenses (e.g. storage costs).
The proof of higher damage and our legal claims (in particular compensation of additional expenses, reasonable compensation, termination) shall remain unaffected; the flat rate is, however, to be offset against further monetary claims. The purchaser shall be entitled to prove that we have not incurred any damage at all or that the damage is significantly less than the aforementioned lump sum.
§ 5 Prices and terms of payment
1 Unless otherwise agreed in individual cases, our current prices at the time of the conclusion of the contract, ex warehouse, plus statutory value-added tax in the respective specified currency is valid. In case of doubt EUR is agreed as currency.
2 In the case of sales shipment (§ 4 para. 1), the purchaser shall bear the transport costs, including packaging ex warehouse and, where applicable, the costs of any transport insurance requested by the purchaser. Any customs duties, fees, taxes and other public charges shall be borne by the purchaser.
3 The purchase price is due and payable free of charge to one of our business accounts specified in the invoice within 14 days from the date of invoice and delivery or acceptance of the goods. However, we shall be entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation.
4 Upon expiry of the aforementioned payment deadline, the purchaser shall be in default. During the period of default, the purchase price shall bear interest at the applicable statutory default interest rate. We reserve the right to assert further damage caused by delay. With respect to merchants, our claim to the commercial due date interest (§ 353 HGB) shall remain unaffected.
5 The purchaser shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the purchaser’s counter rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these GCS.
6 If, after the contract has been concluded, it becomes apparent (e.g. through an application for the opening of insolvency proceedings) that our claim to the purchase price has been endangered by the lack of capacity of the purchaser, we are entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). For contracts concerning the production of nonsubstitutable goods (custom-made products), we may declare rescission immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
7 The granting of a cash discount requires express agreement.
§ 6 Retention of title
1 Until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims), we retain title to the goods sold.
2 The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The purchaser shall notify us in writing without delay if an application is made to open insolvency proceedings or if third parties (e.g. attachments) seize the goods belonging to us.
3 In case of breach of contract by the purchaser, in particular in case of non-payment of the due purchase price, we are entitled to withdraw from the contract in accordance with the statutory provisions or/and to demand the return of the goods on the basis of the reservation of title. The demand for return does not simultaneously include declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the purchaser does not pay the purchase price due, we may only assert these rights if we have previously set the purchaser a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.
4 Until revoked in accordance with (c) below, the purchaser shall be authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
a. The retention of title shall extend to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
b. The purchaser hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or the product in total or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The obligations of the purchaser set forth in para. 2 shall also apply with regard to the assigned claims.
c. The purchaser remains authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the purchaser meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the reservation of title by exercising a right pursuant to para. 3. If this is the case, however, we may demand that the purchaser inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. Furthermore, in this case we shall be entitled to revoke the purchaser’s authority to further sell and process the goods subject to retention of title.
d. If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the purchaser’s request.
5 The purchaser is obliged to treat the goods subject to retention of title with care.
In particular, he/she is obliged to insure them adequately at his own expense against fire, water and theft damage at replacement value, provided that the goods are high-value goods.
If maintenance and inspection work must be performed, the purchaser must perform this in good time at his/her own expense.
§ 7 Claims for defects of the purchaser
1 The statutory provisions shall apply to the purchaser’s rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions) , unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier recourse pursuant to §§ 478 BGB).
Claims from supplier recourse are excluded if the defective goods have been further processed by the purchaser or another entrepreneur, e.g. by incorporation into another product.
2 The basis of our liability for defects is primarily the agreement reached on the quality of the goods. All product descriptions and manufacturer’s specifications which are the subject of the individual contract or which were publicly announced by us (in particular in catalogues or on our internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the goods.
3 Insofar as the quality has not been agreed upon, it is to be judged according to legal regulation whether a defect exists or not (§ 434 Abs. 1 S. 2 und 3 BGB). However, we shall not be liable for public statements made by the manufacturer or other third parties (e.g. advertising statements) to which the purchaser has not drawn our attention as being decisive for his purchase.
4 The purchaser’s claims for defects shall be subject to the condition that he has complied with his statutory obligations to examine the goods and to give notice of defects (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent during delivery, inspection or at any later time, we must be notified of this in writing without delay. In any case, obvious defects shall be notified in writing within 2 working days from delivery and defects not detectable upon inspection within 5 working days from discovery. If the purchaser fails to properly inspect the goods and/or notify us of defects, our liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions.
5 If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering an item free of defects (replacement). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
6 We are entitled to make the subsequent performance owed dependent on the purchaser paying the purchase price due. However, the purchaser shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
7 The purchaser shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the purchaser shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor the re-installation if we were not originally obliged to install it.
8 We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if a defect is actually present.
Otherwise, we may demand reimbursement from the purchaser of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection costs and transport costs), unless the lack of defectiveness was not apparent to the purchaser.
9 In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the purchaser shall have the right to remedy the defect him/herself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be informed immediately of any such self-performance, where possible in advance. The right of self-performance shall not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
10 If the supplementary performance has failed or if a reasonable period to be set by the purchaser for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the purchaser may withdraw from the purchase contract or reduce the purchase price. However, in the case of an insignificant defect, there is no right of withdrawal.
11 Claims of the purchaser for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with § 8 and are otherwise excluded.
§ 8 Other liability
1 Insofar as nothing to the contrary arises from these GCS, including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
2 In the event of intent and gross negligence, we shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. due care in own affairs; insignificant breach of duty), only
for damages resulting from injury to life, body or health,
a. for damages resulting from the breach of an essential contractual obligation (obligation, the fulfilment of which enables the proper execution of the contract in the first place and on the compliance with which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to b. the compensation of the foreseeable, typically occurring damage.
3 The limitations of liability resulting from paragraph 2 shall also apply to breaches of duty by or in favour of persons for whose fault we are responsible according to statutory provisions. They shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the purchaser under the German Product Liability Act (Produkthaftungsgesetz).
4 Due to a breach of duty that does not consist of a defect, the purchaser may only withdraw or terminate the contract if we are responsible for the breach of duty. A free right of termination of the purchaser (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 9 Limitation
1 Notwithstanding Section 438 (1) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
2 If, however, the goods are a building structure or an item that has been used for a building structure in accordance with its customary manner of use and has caused the defectiveness thereof (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (Section 438 (1) No. 2 BGB). This shall not affect other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB).
3 The above sales law limitation periods shall also apply to contractual and non-contractual claims for damages of the purchaser based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. However, claims for damages by the purchaser pursuant to § 8 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall lapse exclusively according to the
statutory limitation periods.
§ 10 Confidentiality obligation of the purchaser, data protection (privacy)
1 All business or trade secrets that become known to the purchaser during the business relationship may neither be exploited nor disclosed to third parties without our written consent, unless the business or trade secrets are generally accessible. This also applies to the time after termination of this contract. In case of doubt, the foregoing shall also apply to employees in the purchaser’s company who are not integrated into the work process. The information subject to secrecy may only be disclosed to the purchaser’s employees and consultants who must necessarily be informed thereof for the proper performance of the delivery. Upon our request, the purchaser shall be obliged to submit to us its written confidentiality obligations with the employees concerned and thus prove their confidentiality obligation even beyond the existence of their employment relationship.
2 We observe data protection; in this regard, we refer to our data protection (privacy) information (available at https://www.rex-industrie-produkte.de/en/service/datenschutz.html).
§ 11 Choice of law and place of jurisdiction
1 The law of the Federal Republic of Germany shall apply to these GCS and the contractual relationship between us and the purchaser to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
2 If the purchaser is a merchant in the sense of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Vellberg. The same shall apply if the purchaser is an entrepreneur within the meaning of § 14 BGB. However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GCS or a prior individual agreement or at the general place of jurisdiction of the purchaser. Overriding statutory provisions, in particular on exclusive responsibilities, shall remain unaffected.
Graf von Rex GmbH
Großaltdorfer Straße 59
74541 Vellberg, Germany