General Terms and Conditions of Sale and Delivery of RAUCH Landmaschinenfabrik GmbH
1. Area of application of the terms and conditions
1.1. All statements, information, offers, contracts, deliveries provided by us as well as, in general, all consultation and other services rendered in this respect, including customer service, maintenance and the deliveries and services provided in this framework, now or in the future, are exclusively based on these terms and conditions. These terms and conditions are deemed accepted at the latest with the acceptance of the goods and services.
1.2. All agreements concluded by us and the customer for the purpose of the implementation of the contract are stipulated in writing in this contract.
1.3. We shall not accept any contradicting terms and conditions of the customer or terms and conditions of the customer deviating from these terms and conditions of sale, unless their applicability has been expressly agreed in written form. Our terms and conditions of sale shall also apply if we are aware of contradicting terms and conditions of the customer or such terms and conditions deviating from our terms and conditions of sale and carry out the delivery to the customer without reservation.
1.4. These terms and conditions shall only apply to entrepreneurs, e.g. merchants, small traders and farmers, i.e. to natural or legal entities under private law or a joint partnership with legal capacity, who, when concluding a legal transaction, are exercising their commercial or independent professional activity. The term entrepreneur includes legal entities (e.g. municipalities) or institutions (e.g. municipal enterprises) under public law insofar as the main focus is on business under private law. These terms and conditions also apply to all future transactions with the customer.
2. Conclusion of the contract
2.1. Any information provided in brochures, advertisements, technical descriptions, price lists and/or other sales and information documents are for informational purposes only and thus non-binding and without engagement.
2.2. Our offers are always non-binding unless otherwise indicated in the order confirmation. Any offers by the customer can be accepted by us within a period of 2 weeks. The acceptance is usually implemented by means of an “order confirmation”.
2.3. Any figures, drawings, calculations, technical documents, weights and dimensions and other technical information as well as other documents which are part of our offer or our order confirmation are only roughly decisive unless they are expressly marked as binding. Deviations are inappropriate and unacceptable by the customer if they exceed the customary extent. We reserve property rights and copyright in these documents as well as in any cost estimates. The same applies to any written documents which are labelled “confidential”. Before their disclosure to third parties, whether of the original, a copy or any other form of reproduction, the customer shall obtain our express written approval.
2.4. Our agents, including but not limited to intermediaries, sales representatives or employees, are not entitled to make oral side agreements or to provide oral warranties, statements or information which contradict the order confirmation, deviate from it or exceed its content. Such statements shall only apply bindingly if we have accepted them in written form.
3.1. Our prices are net prices: they are indicated in Euro and generally exclude the respective statutory value-added tax unless, in individual cases, the service is exempted from tax. The statutory value-added tax on the day of invoicing is shown separately in the invoice.
3.2. Unless otherwise stipulated in our order confirmation, our prices are “ex works”, excluding packaging as well as loading and unloading; these items are invoiced separately. If, according to Verpackungsverordnung [German packaging ordinance], we are obliged to take back the packaging used, the customer shall assume the costs for the return transport of the packaging used.
3.3. For the punctuality of all payments, including the cheques and/or bills of exchange handed over in fulfilment, the point in time of the unconditional crediting of the payment to one of our accounts and/or the date of the receipt of the cheque and/or the bill of exchange shall be decisive. The deduction of a discount is only admissible if a specific written agreement in this respect has been made. Discount pledges only apply if the buyer is not in arrears with the payment of previous deliveries.
4. Performance times
4.1. Any information on performance times (deadlines or periods) is only approximate and has a foreseeable, non-binding character. Such times are only strictly binding if we have agreed on them expressly and in written form. For the compliance with the delivery deadlines, all technical questions must be clarified, the necessary documentation must be provided, official approvals must be obtained and the obligations of the customer must be fulfilled punctually and orderly, for instance the receipt of agreed payments and collaterals. The right to defence by reason of non-fulfilment of contract is reserved. Any delay with respect to this obligation shall lead to a corresponding delay of the performance times.
4.2. Compliance in this regard is subject to correct and punctual self-delivery.
4.3. If the customer is in default in acceptance or if they culpably infringe any other obligation to cooperate, we are entitled to claim reimbursement for any damage incurred in this respect, including possible additional expenses. Any further claims shall remain unaffected. Additionally, in such case, the risk of an accidental loss or deterioration of the purchased goods is transferred to the customer at the point in time at which the latter defaults with respect to the acceptance or payment.
4.4. In the event of a default in delivery, we shall be held liable in accordance with the statutory provisions provided that the underlying purchase agreement is a firm deal in the sense of section 286 (2) (4) BGB [Bürgerliches Gesetzbuch, German civil code] or 376 HGB [Handelsgesetzbuch, German commercial code]. We shall also be held liable in accordance with the statutory provisions if, as a result of a default in delivery for which we are responsible, the customer is entitled to claim that their interest in the further fulfilment of the contract is discontinued. Additionally, in accordance with the statutory provisions, we shall be liable if the default in delivery is based on an intentional or grossly negligent infringement of the contract for which we, our representative and/or vicarious agent assume(s) responsibility. The same applies if the delay in delivery is based on a culpable infringement of a substantial contractual obligation for which we, our representative and/or vicarious agent assume(s) responsibility. Provided that the delay in delivery is based on a grossly negligent infringement of the contract and/or an infringement of a substantial contractual obligation for which we, our representative and/or vicarious agent assume(s) responsibility, our compensation liability shall be restricted to the foreseeable, typically occurring damage.
4.5. Otherwise, insofar as the ordering party is entitled to a compensation for the damage caused by the default, our liability for every complete week of the default shall be limited to 0.5% of the agreed net remuneration, maximally, however, to not more than 5% of the net remuneration agreed with us.
4.6. In cases of force majeure, we shall be exempted from our delivery obligation for the duration of the interruption; the delivery period shall be prolonged correspondingly. If the respective interruptions lead to a delay in performance of more than four months, the ordering party may withdraw from the contract. Other rights of withdrawal remain unaffected by this provision. Cases of force majeure include but are not limited to labour disputes; strikes; lawful lock-outs, including at our sub-suppliers and/or their respective main sub-contractors; fire and water damage; transport damage for which we are not responsible and which lead to a destruction of the goods and/or their main parts or of their usability; war and other catastrophes.
4.7. We are entitled to carry out partial deliveries and render partial services unless such partial deliveries and/or partial services are not of interest for the buyer and/or not reasonable.
5. Transfer of risk
Unless otherwise stated in the order confirmation, the delivery “ex works” has been agreed upon. If the goods are shipped to the buyer on their request, if no other agreements have been made in the order confirmation, the risk of an accidental loss or an accidental deterioration of the goods is transferred to the customer when the goods are handed over to the forwarding agent or freight forwarder or, at the latest, when the goods leave the factory/warehouse.
6.1. The defect rights of the customer require them to examine the goods immediately upon shipment, if this is possible in accordance with the ordinary course of business, and to immediately inform us about any detected defects or deviating quantities in written form.
6.2. If a defect in the purchased goods is present, we are free to choose to either render a subsequent performance in the form of a rectification of the defect or to deliver new goods which are free of defects. Both the claim to a rectification of defects as well as to a subsequent improvement can only be asserted towards us and such work may only be implemented by us and/or a third party commissioned by us. In the event of a rectification of defects, we are obliged to bear all expenses incurred for the purpose of the rectification of defects, including but not limited to any transportation, infrastructure, labour and material costs, provided that such expenses do not increase due to the fact that the purchased goods are first brought to another location which is not the place of performance unless such transport is in accordance with the intended use.
6.3. If a subsequent improvement fails, the customer may choose to reduce the remuneration or to withdraw from the contract.
6.4. We assume liability in accordance with the statutory provisions if the customer raises claims for compensation which are based on intent or gross negligence, including intent or gross negligence by our representatives or vicarious agents, or on the fact that we have culpably infringed a substantial contractual obligation. Insofar as we are not accused of an intentional infringement of the contract, the compensation liability is limited to the foreseeable, typically incurred damage.
6.5. The liability due to a culpable injury to life, bodily injury or health damage remains unaffected; the same applies to the mandatory liability according to Produkthaftpflichtgesetz [product liability law].
6.6. Unless otherwise stated above, the liability is excluded.
6.7. The limitation period for claims for defects is 12 months, calculated as of the transfer of risks.
6.8. Any delivery of used items agreed with the customer in individual cases shall be made to the exclusion of any warranty for material defects. The restrictions do not apply to the liability of the seller for intentional and grossly negligent conduct gross negligence, for guaranteed characteristics and essential contractual obligations, for and essential contractual obligations, for injury to life, limb or health or under the body or health or under the Product Liability Act.
7. Limitations of liability
7.1. Any further compensation liability than provided for in paragraph 6 is excluded, irrespective of the legal nature of the asserted claim. In particular, this applies to compensation claims arising from culpability at the time of the conclusion of the contract, due to other infringements of obligations and/or for offence claims to compensation for property damages according to section 823 BGB and/or damages which have not occurred in the delivered goods themselves such as lost profits or other financial losses (indirect consequential damage/damage claims of third parties). The limitations also apply if, in place of a claim for compensation of damages, instead of the performance, the customer demands compensation for useless expenditures.
7.2. If the compensation liability is excluded or limited towards us, this also applies with respect to the personal compensation liability of our employees, representatives and vicarious agents.
8. Retention of title
8.1. We retain title to the purchased goods until the receipt of all payments from accounts receivable based on this delivery contract and accounts receivable including all balances from current accounts to which we are already entitled or to which we will be entitled. If the customer acts in violation of the contract, in particular in the event of default in payment, we are entitled to take back the purchased goods. Our taking back the purchased goods constitutes a withdrawal from the contract. Once we have taken back the purchased goods, we are entitled to utilise them. The revenue of such utilisation is to be charged against the receivables from the customer, minus reasonable costs of utilisation.
8.2. The customer is obliged to treat the purchased goods with care; in particular, they are obliged to obtain a sufficient insurance cover at their own expenses, for fire, water and theft damages at the replacement value of the goods. If maintenance and inspection work is required, the customer shall carry out such work within due time and at their own expenses.
8.3. In the event of attachment or other third-party interventions, the customer shall immediately notify us in writing so that we can file a suit according to section 771 ZPO [Zivilprozessordnung, German code of civil procedure]. If the third party is not able to refund our judicial and extra-judicial expenses of a suit according section 771 ZPO, the customer shall be liable for any losses incurred by us.
8.4. The customer is entitled to re-sell the purchased goods in the ordinary course of business; however, they shall already now assign to us all claims amounting to the total invoice sum (including VAT) of our claim which they incur from the re-sale to their customers or third parties, irrespective of whether the purchased goods have been re-sold before or after processing. The customer shall remain entitled to collect this claim after the assignment. Our entitlement to collect the claim ourselves remains unaffected. However, we undertake not to collect the claim as long as the customer fulfils their payment obligations resulting from the proceeds received, is not in default with payment, and, in particular, does not submit an application for opening composition or insolvency proceedings and no suspension of payments is given. If this is the case, however, we may demand that the customer inform us about the claims assigned and their debtor, provide all information required for the collection, hand out the related documents and inform the debtor (third party) about the assignment.
8.5. The processing or restructuring of the purchased goods by the customer is always carried out for us. If the purchased goods are processed with other objects which we do not own, we shall acquire joint ownership in the new goods in the relationship of the value of the purchased goods (total invoice sum, including VAT) to the other processed objects at the point in time of processing. Apart from that, for the goods created with the processing, the same provisions apply as for the purchased goods delivered under reservation.
8.6. If the purchased goods are inseparably mixed with other objects which we do not own, we shall acquire joint ownership in the new goods in the relationship of the value of the purchased goods (total invoice sum, including VAT) to the other mixed objects at the point in time of mixture. If the mixture is carried out in such a way that the goods of the customer are regarded as main object, it is herewith agreed that the customer transfers a pro-rata joint ownership to us. The customer shall store the created goods owned by us or jointly owned by us for us.
8.7. Additionally, in order to secure our claims towards them, the customer shall also assign to us the claims arising from the connection of the purchased goods with a property towards a third party.
8.8. We undertake to release the collateral to which we are entitled upon request by the customer, to an extent that the realisable value of our collateral exceeds the claims to be secured by more than 10%; the selection of the collateral to be released shall be at our discretion.
9. Applicable law/place of jurisdiction
9.1. The possible ineffectiveness or impracticability of one or several provisions shall not affect the validity of the remaining provisions.
9.2. The entire contractual relationships, including the form, the conclusion, the interpretation, and the fulfilment, shall be subject to the substantive provisions of the laws of the Federal Republic of Germany, comprehensively and in every aspect. The provisions of the United Nations Convention on the International Sale of Goods are excluded.
9.3. The place of performance for the delivery and the payment is the location of our company headquarters.
9.4. The exclusive place of jurisdiction for all legal disputes directly and indirectly arising out of the contractual relationship shall be the location of our company headquarters. We are furthermore entitled to file a suit at the location of the customer’s headquarters at our own discretion.
RAUCH Landmaschinenfabrik GmbH 1/2017