General Terms and Conditions of Sale of Ridex GmbH
§ 1 Scope and offers
(1) These General Terms and Conditions of Sale (“GTCS”) shall apply exclusively to companies, legal entities under public law or special funds under public law within the meaning of § 310 paragraph 1 BGB (Bürgerliches Gesetzbuch – German Civil Code). We shall only recognise any terms and conditions of the customer which conflict with or deviate from our GTCS if we expressly agree to their validity in writing.
(2) These GTCS shall also apply to all future transactions with the customer, insofar as these are legal transactions of a related kind.
(3) Our offers are subject to change. Agreements, in particular verbal promises, guarantees and other assurances made by our sales employees prior to or upon conclusion of an agreement shall only become binding upon our confirmation in text form.
(4) The interpretation of commercial clauses such as "EXW", "FOB" and "CIF" shall be based on the latest version of INCOTERMS.
(5) Legally relevant declarations and notifications to be made to us by the customer after conclusion of an agreement (e.g. setting of deadlines, reminders, declaration of withdrawal) must be made in text form to be effective.
§ 2 Conclusion of agreement
(1) If an order is to be regarded as an offer in accordance with § 145 BGB, we can accept it within two weeks.
(2) We shall not be obliged to provide any attestations or certificates not expressly agreed upon or to provide any other documents and shall in no case be responsible for the fulfilment of the obligations associated with the market placement of the goods.
§ 3 Documents handed over
We reserve the property rights and copyrights to all documents, such as calculations, drawings, etc., provided to the customer in connection with the placing of the order. These documents may not be made available to third parties unless we give the customer our express written consent.
§ 4 Prices, payment and invoicing
(1) Invoicing shall be based on the list prices valid at the time of delivery plus statutory value added tax.
(2) If no special agreement has been made, the prices are inclusive of packaging.
(3) We reserve the right to change our prices appropriately if, after conclusion of an agreement, cost reductions or cost increases occur, in particular as a result of significant increases in raw material prices, energy costs or increased costs due to changes in legal regulations - e.g. customs duties, levies, currency compensation, changes in wage costs, e.g. due to collective agreements, changes in the price of materials or distribution costs for deliveries. We will provide corresponding evidence to the customer on request.
(4) Payment shall be made cashless - without deduction of cash discount - in such a way that we can dispose of the amount on the due date. Unless otherwise agreed, our invoices are due 14 days after the invoice date. Payment shall be made in such a way that the amount required for the settlement of the invoice is available to us at the latest on the due date. The customer shall be in default at the latest 10 days after the due date of our claim without the need for a reminder.
(5) Counterclaims disputed by us or not legally established shall not entitle the customer to either retention or offsetting. This does not apply if the customer's counterclaims are in mutuality (Synallagma) with the main claim and they would entitle the customer to refuse performance according to § 320 BGB.
(6) If, after conclusion of an agreement, it becomes apparent that our claim for payment is endangered by the customer's lack of ability to pay or if other circumstances arise which indicate a significant deterioration in the customer's ability to pay, we may refuse to make agreed advance performance and fulfil the rights arising from § 321 BGB. This also applies insofar as our obligation to perform is not yet due. In such cases, we can also make all claims from the current business relationship with the customer due for payment.
§ 5 Delivery, Delivery Periods, delay
(1) The beginning of and compliance with agreed delivery periods presupposes the fulfilment of the obligations to cooperate, in particular the timely receipt of all provisions, documents, permits, examinations, releases to be provided by the customer, compliance with the agreed terms of payment, in particular the making of agreed down payments.
(2) Delivery times/dates for deliveries and services (Delivery Period(s)) announced by us are always only approximate. This shall not apply if a fixed Delivery Period has been expressly confirmed or agreed.
(3) If non-compliance with Delivery Periods is due to force majeure and other disruptions for which we are not responsible, e.g. war, terrorist attacks, import and export restrictions, including those affecting suppliers, the agreed Delivery Periods shall be extended by the duration of the disruption. If, as a result of the aforementioned events, one of the contracting parties cannot reasonably be expected to complete the agreement, it may withdraw from the agreement by means of an immediate declaration in text form.
(4) If we are not able to deliver within four (4) months after the initially anticipated delivery date, the customer and we shall be entitled to withdraw from the agreement in whole or in part to the extent of the services affected by the delay; we will immediately reimburse any payment already made by the customer. This shall also apply if we are unable to deliver within three (3) months of the Delivery Period initially confirmed or agreed.
In the event of a delay in delivery, the customer may only withdraw from the agreement within the scope of the statutory provisions if we are responsible for the delay.
(5) If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to make further claims. Insofar as the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.
(6) We shall be entitled to make partial deliveries and issue corresponding invoices.
(7) If dispatch of the goods is impossible due to extraordinary circumstances for which we are not responsible, we shall be entitled, without prejudice to immediate invoicing, to store the goods otherwise for the account and risk of the customer if our storage facilities are not sufficient for this purpose.
§ 6 Retention of title
(1) We reserve title of the delivered goods until full payment of all claims arising from the delivery agreement (Reserved Goods). This also applies to all future deliveries, even if we do not always expressly refer to this. We shall be entitled to take back the purchased goods if the customer acts in breach of the agreement.
(2) Insofar as maintenance and inspection work is required on the goods subject to retention of title, the customer must complete such work in time at his own expense.
(3) As long as title has not yet been transferred to the customer, the customer shall be obliged to treat the Reserved Goods with care. In particular, he is obliged to insure Reserved Goods sufficiently at his own expense against theft, fire, and water damage at replacement value. As long as title has not yet been transferred, the customer must inform us immediately in writing if the Reserved Good is seized or exposed to other interventions by third parties. Insofar as the third party is not able to reimburse us for the judicial and extrajudicial costs of a lawsuit in accordance with § 771 ZPO, the customer shall be liable for these costs.
(4) The customer is entitled to resell the Reserved Goods within normal business transactions. The customer hereby assigns to us the debts of the purchaser from the resale of the Reserved Goods in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply irrespective of whether the purchased item has been resold without or after processing. The customer remains authorised to collect the debt even after the assignment. Our authority to collect the debt ourselves remains unaffected. However, we shall not collect the debt as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended.
(5) Processing and treatment of the Reserved Goods shall be carried out for us as the manufacturer within the meaning of § 950 BGB (German Civil Code), without any obligation on our part. The processed goods shall be deemed to be Reserved Goods within the meaning of § 6 (1) of these GTCS. If the customer processes, combines or mixes the Reserved Goods with other goods, we shall be entitled to co-title of the new item in the ratio of the invoice value of the Reserved Goods to the invoice value of the other goods used. If our title expires due to combination or mixing, the customer shall already now transfer to us title to which he is entitled to the new stock or item to the extent of the invoice value of the Reserved Goods and shall keep them in safe custody for us free of charge. The resulting co-title rights shall be deemed to be rights according to Reserved Goods within the meaning of § 6 (1) of these General Terms of Sale.
§ 7 Passing of risk
(1) Delivery shall be EXW (Incoterms® 2020) unless expressly agreed otherwise.
(2) Notwithstanding section 1 and only if agreed with the customer, we shall ship the goods to the destination specified by the customer. This shall be done - also with regard to packaging - at the expense of the customer. The risk of accidental loss and accidental deterioration of the goods in the cases of sentence 1 of this paragraph shall pass to the customer upon handing over of the goods to the forwarding agent, carrier or other transport person. This also applies if partial deliveries are made.
§ 8 Acceptance
The customer may not refuse to accept deliveries due to minor defects.
§ 9 Liability for defects and notification of defects
(1) Claims for material defects shall become time-barred after 12 months. The statutory period of limitation shall apply to claims for damages in cases of intent and gross negligence as well as in cases of injury to life, body and health which are based on an intentional or negligent breach of duty by the customer. Before any return of the goods, our consent must be obtained in text form.
(2) Warranty rights of the customer require that the customer has properly fulfilled his obligations to examine the goods and make a complaint in accordance with § 377 HGB (Handelsgesetzbuch – German Commercial Code). If the customer does not give us the opportunity and a reasonable time to convince us of the notified defect and, if necessary, to carry out the necessary subsequent performance (repair or replacement delivery), all claims for defects shall no longer apply. This does not apply to consequential damages for which the requirements of sections 9 and 10 are fulfilled.
(3) In the event of a material defect within the limitation period, the cause of which was already present at the time of the passing of risk, we may, at our discretion, either remedy the defect or deliver a defect-free item as subsequent performance. The good complained about shall be sent to us for examination. Our right to refuse subsequent performance under the statutory conditions remains unaffected.
(4) If the subsequent performance fails, the customer may - without prejudice to any claims for damages - withdraw from the agreement or reduce the price in accordance with the statutory provisions.
(5) Claims of the customer due to expenses necessary for the purpose of subsequent performance, in particular transport, travel, work and material costs, shall be excluded if the expenses increase because the goods delivered by us have later been taken to a place other than the customer's branch office, unless the transfer corresponds to their intended use.
(6) Claims for defects shall not exist in the event of only insignificant deviation from the agreed quality, only insignificant impairment of usability, natural usage or tear and wear and tear as well as damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable equipment or due to special external influences that are not provided for under the agreement. If repair work or modifications are carried out by the customer or third parties, no claims for defects shall exist for these and the consequences thereof.
(7) Recourse claims of the customer against us shall only occur insofar as the customer has not made any agreements with his customer that go beyond the statutory claims for defects, e.g. goodwill arrangements.
(8) The customer shall give us, or a third party obliged to provide a warranty the necessary time and opportunity to carry out the warranty work. He shall only be entitled to carry out such work himself, except in the cases of § 637 BGB, with our consent in text form. We shall bear the expenses required for subsequent performance to an extent which must be in reasonable proportion to the value of the item in a defect-free condition, to the significance of the defect and/or to the possibility of obtaining subsequent performance by another means; any costs exceeding this shall be covered by the customer.
(9) We shall only be liable for damages due to breach of contractual or non-contractual obligations in the event of intent or gross negligence, in the event of negligent or intentional injury to life, body or health, due to the assumption of a guarantee of quality or durability in the event of negligent or intentional breach of material contractual obligations, due to mandatory liability under the German Product Liability Act (Produkthaftungsgesetz), or due to other mandatory liability.
(10) However, compensation for damages for the violation of essential contractual obligations shall be limited to the foreseeable damage typical for the agreement, provided that there is no intent or gross negligence or liability due to injury to life, body or health or due to the assumption of a guarantee of quality.
(12) The provisions of § 9 of these GTCS shall apply mutatis mutandis to defects of title which are not based on the infringement of third party property rights.
§ 10 Property rights and copyrights
(1) We reserve all property rights, patent rights, rights of use, design rights, trademark rights, copyrights, personal rights and other protective rights, in particular to illustrations, drawings, cost estimates, drafts as well as other documents, designs, design proposals, templates, work documents, moulds, copyrights, know-how and calculations belonging to us. No transfer of the right to or from such an object is associated with delivery. The customer acknowledges our trademark rights and rights regarding other marks used and will not use them for any other purpose, in particular will not pass them on to third parties.
(2) The customer is not entitled to use our intellectual property for purposes other than the agreed contractual purpose. After the end of the agreement, the customer must return to us the drawings made available to him at our request. The customer accepts that he must make a declaration of our intellectual property rights in any advertising material produced by him or for him in connection with the goods. The customer is obliged to use the marking used by us. The customer is not permitted to remove or alter the markings on the goods or to apply other markings to the goods without our prior written consent.
(3) The customer shall inform us immediately after becoming aware of the (alleged) infringement of property rights or risks in this respect and, at our request, shall - as far as possible - leave the conduct of legal disputes (including out-of-court) to us.
§ 11 Confidentiality
(1) All business or technical information coming from us shall be kept secret from third parties as long as and to the extent that it is not demonstrably publicly known, and may only be made available in the customer's own business to those individuals who must necessarily be consulted for its use and who are also obliged to maintain secrecy.
(2) We reserve the property rights and copyrights to all documents and materials provided by us to the customer, such as in particular drawings, illustrations, drafts, calculations, descriptions, plans, models, samples, technical specifications, data carriers, other documents, tools, parts and materials. Such documents and materials are to be used exclusively for the contractual performance and are to be returned to us in full (including any copies or records made) after completion of the agreement. Goods manufactured by us on the basis of documents and materials may neither be used by the customer himself nor offered or supplied to third parties.
(3) Without our prior, express written consent, the customer is prohibited from naming us or the business relationship between the customer and us in any form as a reference.
§ 12 Export control
(1) The deliveries and services (fulfilment of the agreement) shall be subject to the provision that there are no obstacles to fulfilment due to national or international export control regulations, in particular embargos or other sanctions. The customer shall comply with the applicable export control and sanction regulations and laws of the European Union (EU), the United States of America (US/USA) and other legal systems (export control regulations). The customer undertakes to obtain all information and documents required for export or shipment. Delays due to export inspections or approval procedures shall invalidate any deadlines and Delivery Periods. If necessary approvals are not granted or if the delivery and performance cannot be approved, the agreement shall be deemed not to have been concluded with respect to the goods concerned.
(2) We are entitled to terminate the agreement without notice if the termination is necessary for us to comply with national or international legal provisions.
(3) In the event of a termination pursuant to § 12 (2) of these GTCS the assertion of damages or the assertion of other rights by the customer due to the termination shall be excluded.
(4) The fulfilment of the contractual obligations by us is subject to the provision that the applicable export control regulations do not conflict with this. In such a case we are therefore in particular entitled to refuse or withhold fulfilment of the agreement without any liability towards the customer.
§ 13 Obligations under the Packaging Act (Verpackungsgesetz)
(1) The customer shall bear all packaging and disposal obligations arising in connection with the placing of the order, including all fees incurred. The customer, as the distributor of packaging subject to the system participation obligation, assures that he is registered and licensed in accordance with the national legislation of the country of destination (at the end customer's place of residence) and will provide us with evidence of this upon request.
§ 14 Place of jurisdiction and applicable law
(1) All legal relations between us and the customer shall be governed exclusively by German law, excluding the conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) The place of jurisdiction is Berlin, subject to a different exclusive place of jurisdiction. However, we shall also be entitled to sue the customer at any other competent court.
§ 15 Compliance with anti-corruption and anti-trust law
(1) The customer assures that no acts or omissions will be committed which, irrespective of the form of participation, may lead to regulatory or criminal prosecution, in particular for corruption or violation of cartel and competition law, by the customer, persons employed by the customer or third parties commissioned by the customer (hereinafter referred to as "Violation" or "Infringements").
(2) The customer is responsible for taking appropriate measures to avoid Infringements. In particular, the customer shall bind its employees or third parties commissioned by the customer under a corresponding obligation.
(3) The customer will inform us immediately if he has knowledge or a concrete suspicion of cases of corruption which are in a concrete connection with this agreement or its fulfilment.
§ 16 Obligation to notify in the case of product safety measures
In the event that product safety measures in connection with our goods take place at or against the customer (e.g. official market monitoring measures, such as the ordering of a withdrawal or a recall) or the customer intends to take such measures himself (e.g. notifications to market monitoring authorities), the customer shall inform us immediately in writing.
§ 17 Miscellaneous
Should a provision of these GTCS and the further agreements made be or become invalid, the validity of the remaining provisions shall not be affected. The contracting parties are obliged to replace the invalid provision by a provision that comes as close as possible to the invalid provision in terms of its economic success.