Terms of delivery and payment | July 2016

§ 1 – Validity

(1) For all deliveries, services and offers of Rudolph Keramik GmbH (in the following also: seller) apply exclusively on the basis of these General Terms of Delivery and Payment (hereinafter also: Conditions). The terms and conditions form an integral part of all contracts that the seller concludes with his contractual partners. They also apply to all future contracts, deliveries, services or offers, even if they are not separately agreed again. The seller points out changes to the conditions.

(2) Terms and conditions of the client or third parties do not apply. This also applies if the seller does not expressly object to the validity in individual cases or refers to a letter containing or referring to terms and conditions.

(3) The conditions apply only to entrepreneurs.

§ 2 – Offer and contract

(1) The offers made by the seller are subject to confirmation and non-binding, unless they are expressly marked as binding or have a specific acceptance period contain. In particular, the seller reserves the right to change prices when the costs have changed after the offer has been made. In addition, even after conclusion of the contract with regard to the type of production, certain deviations in dimensions, weights, shapes, colors and quantities are reserved.

(2) For the legal relationship between seller and client the written purchase contract, including these conditions, shall apply. The purchase agreement fully reflects all agreements and is final. Verbal promises of the seller before conclusion of contract are legally not binding Verbal agreements are replaced by the written contract. This does not apply if the continuation has been expressly agreed.

(3) Supplements and amendments to the agreements made, including these General Terms of Delivery, must be made in writing in order to be valid.

With the exception of managing directors or authorized representatives, the employees of the seller are not entitled to make deviating verbal agreements. In order to preserve the written form, the transmission by fax or by e-mail is sufficient, provided the copy of the signed declaration is transmitted.

(4) Information provided by the seller on the subject matter of the delivery or service (eg dimensions, weights, utility values, loading capacity, tolerances, colors and technical data) and illustrations thereof (eg drawings and illustrations) are only approximate, unless their usability to the contractually intended purpose requires an exact match. These details are not guaranteed characteristics, but descriptions or labels of the delivery or service. Customary deviations and deviations, which take place due to legal regulations or represent technical improvements, are permissible, as far as they do not affect the usability for the contractually intended purpose.

(5) The seller reserves ownership or copyright to all offers and quotations submitted by him as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the client.

The client may not make these objects available to third parties without the express consent of the seller, either as such or in terms of content, notify them, or use or duplicate them themselves or through third parties. At the Seller’s request, he must return these items in full to him and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

§ 3 – Prices and payment

(1) The prices apply to the scope of service and delivery stated in the order confirmations. They do not apply to follow-up orders. There is no obligation to perform according to previous orders. The prices are quoted in euros ex works, plus VAT, transport packaging, Euro pallets, tolls, transport costs and, in the case of export deliveries, customs, fees and other legal fees.

(2) Invoice amounts are to be paid within 30 days after invoicing without deduction. Decisive is the receipt of payment by the seller. Checks are valid only after redemption as payment; The customer bears the higher costs incurred by check or bill of exchange payment.If the client does not pay at maturity, the outstanding amounts shall be subject to interest at a rate of 9 percentage points above the base rate from the due date; the assertion of higher interest and further damages in case of default remains unaffected. Deviating may be agreed, but requires the written form to be effective.

(3) The contracting party may only offset against counterclaims which are undisputed or have been legally established.

(4) The seller is entitled to execute or provide outstanding deliveries or services only against advance payment or provision of security if he becomes aware of circumstances after conclusion of the contract which are capable of substantially reducing the previous creditworthiness of the client.

§ 4 – Delivery and delivery time

(1) Deliveries are made ex works seller and also with carriage paid delivery at the risk of the contractor.

(2) The deadlines and deadlines specified by the seller are not binding, but only in prospect. This does not apply if a fixed deadline or a fixed date expressly agreed or expressly agreed and confirmed in writing. In the case of dispatch, delivery periods and delivery dates refer to the time of transfer to the freight forwarder, carrier or other third party commissioned with the transport. 

(3) The seller may – without exception to his rights in default of the client – require the client to extend delivery and performance periods or postpone delivery and service appointments by the period in which the client does not meet its contractual obligations to the seller.

(4) The seller shall not be liable for the impossibility of delivery or for delays in delivery, insofar as these are due to force majeure or other unforeseeable events at the time of the conclusion of the contract (eg breakdowns of any kind, difficulties in material or energy procurement, delays in transport, strikes, legitimate lockouts , Lack of manpower, energy or raw materials, difficulties in obtaining necessary regulatory approvals, regulatory action or failure to deliver, incorrectly or timely supplied by suppliers) that the seller is not responsible for. If such events make the delivery or service considerably more difficult or impossible for the seller and the hindrance is not just temporary, the seller is entitled to withdraw from the contract the case of obstacles of a temporary duration, the delivery or service periods shall be extended or the delivery or service dates shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the customer can not reasonably be expected to accept the delivery or service as a result of the delay, he can withdraw from the contract by means of an immediate written declaration to the seller.

(5) The seller is only entitled to partial deliveries if:

• The partial delivery can be used by the client within the scope of the contractual purpose, and
• The client will not incur any significant additional expenses or additional costs (unless the seller agrees to assume these costs).

(6) If the seller defaults on a delivery or service or if a delivery or service becomes impossible for him for whatever reason, the liability of the seller for damages shall be limited in accordance with § 8 of these conditions.

§ 5 – Place of performance, shipping, packaging, transfer of risk, acceptance

(1) Place of performance for all obligations arising from the contractual relationship is Ratekau, unless otherwise specified.

(2) The shipping method and the packaging are subject to the dutiful discretion of the seller.

(3) The risk is transferred to the customer at the latest with the handing over of the delivery item (whereby the beginning of the loading process is decisive) to the forwarding agent, carrier or other third party designated for the execution of the shipment. This also applies if partial deliveries are made or the seller has taken on other services (e.g. shipping or installation). If the shipment or delivery is delayed as a result of a circumstance the cause of which lies with the customer, the risk shall pass to the customer from the day on which the item to be delivered is ready for dispatch and the seller has informed the client. (4) Storage costs after transfer of risk shall be borne by the customer. To store through the seller amount the storage cost [0.25]% of the invoice amount of the stored delivery items per expired week. The assertion and proof of further or lower storage costs are reserved. 

(5) The consignment will be insured by the seller only at the express request of the customer and at his expense against theft, breakage, transport, fire and water damage or other insurable risks.

§ 6 – Warranty, material defects

(1) The warranty period is one year from delivery.

(2) The delivered items are to be examined carefully immediately after delivery to the client or to the third party appointed by him. They shall be deemed to have been approved by the Customer in respect of obvious defects or other defects that would have been apparent in the course of an immediate, careful examination unless the Seller receives a written notice of defects within fourteen working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the customer if the complaint is not received by the seller within seven working days after the time when the defect was revealed; If the defect was already apparent to the client under normal conditions of use at an earlier date, that earlier date is decisive for the commencement of the period of notice. At the request of the seller, a rejected delivery item shall be returned carriage paid to the seller. In case of legitimate complaint, the seller pays the costs of the cheapest shipping route; this does not apply if the costs increase because the delivery item is located in a place other than the place of intended use. 

(3) In the event of material defects of the delivered goods, the seller is obliged and entitled to rectify or replace the goods within a reasonable period of time. In case of failure, d. H. the impossibility, unreasonableness, refusal or inappropriate delay of the repair or replacement delivery, the client can withdraw from the contract or reduce the purchase price appropriately.

(4) If a defect is based on the fault of the seller, the client may claim damages under the conditions specified in § 8.

(5) A delivery of used items agreed in individual cases with the client is made under exclusion of any warranty for material defects.

§ 7 – Property Rights

(1) Each party to the contract shall notify the other party in writing without delay if claims are asserted against him for infringement of industrial property rights or copyrights.

(2) In the event that the delivery item infringes a commercial property right or copyright of a third party, the seller can make subsequent performance or eliminate the defect after his choice to be made within a reasonable time. The customer is only entitled to rescind or reduce the contract if the seller fails to remedy the defect or reduce it within a reasonable period of time. For any claims for damages of the client applies § 8.

(3) In the event of infringement by products of other manufacturers supplied by the seller, the seller will assert his claims against the manufacturers and upstream suppliers for the account of the client or assign them to the customer. Claims against the seller in these cases in accordance with this § 7 only if the judicial enforcement of the aforementioned claims against the manufacturer and suppliers was unsuccessful or, for example, due to insolvency, hopeless.

§ 8 – Liability for damages due to fault

(1) The liability of the seller for damages, for whatever legal reason, in particular impossibility, delay, inadequate or incorrect delivery, breach of contract, breach of obligations in contract negotiations and tort, as far as it is in each case a fault, limited in accordance with this § 8 ,

(2) The seller is not liable in case of simple negligence on the part of his organs, legal representatives, employees or other vicarious agents, as far as it is not a violation of essential contractual obligations. Essential to the contract are the obligation to timely delivery of the delivery item whose freedom from defects that affect its functionality or serviceability more than insignificantly, as well as advisory, protective and custody duties that enable the client to use the contractual object or the protection of body or life of the client’s personnel or the protection of their property against significant damage.

(3) Insofar as the seller is fundamentally liable for damages according to § 8 (2), this liability is limited to damages which the seller foresaw upon conclusion of the contract as a possible consequence of a breach of contract or which he should have foreseen when applying due care. Indirect damages and consequential damages, which are the result of defects in the delivery item, are also only substitutable, as far as such damages are typically to be expected when the delivery item is used as intended.

(4) In the case of liability for simple negligence, the Seller’s liability for damage to property and the resulting further pecuniary loss is limited to an amount of EUR 3 million per claim, even if it is a breach of essential contractual obligations

(5) The above exclusions and limitations of liability apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of the seller.

(6) Insofar as the seller provides technical information or acts in an advisory capacity and this information or advice does not belong to the contractually agreed scope of services owed by him, this is done free of charge and to the exclusion of any liability.

(7) The limitations of this § 8 do not apply to the liability of the seller for willful conduct, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.

§ 9 – Retention of title

(1) The following agreed retention of title serves to safeguard all current and future claims of the seller against the client arising from the existing supply relationship between the contracting parties.

(2) The goods delivered by the seller to the client remain the property of the seller until full payment of all secured claims. The goods as well as the goods, which come under the following provisions and which are subject to retention of title, are hereinafter referred to as “reserved goods”.

(3) The client stores the reserved goods free of charge for the seller.

(4) The customer is entitled to process and sell the goods subject to retention of title in the ordinary course of business until the event of recovery (paragraph 9) has occurred. Pledges and chattel mortgages are inadmissible. The right to resell expires upon cessation of payment, application or opening of insolvency proceedings.

(5) If the reserved goods are processed by the client, it is agreed that the processing takes place in the name and for the account of the seller as the manufacturer and the seller directly the property or – if the processing is made of materials of several owners or the value of the processed thing is higher than that Value of the Reserved Goods – the co-ownership (fractional ownership) of the newly created object in proportion of the value of the reserved goods to the value of the newly created object acquires. In the event that no such acquisition of ownership by the seller should occur, the client already transfers his future ownership or – im o. G. Relationship – co-ownership of the newly created thing for safety to the seller. If the reserved goods are combined with other things to a uniform thing or inseparably mixed and is one of the other
If the seller considers the goods as the main item, the seller transfers proportionately the co-ownership of the unitary item in the ratio mentioned in sentence 1, insofar as the main item belongs to him.

(6) In the case of resale of the goods subject to retention of title, the customer hereby assigns to the purchaser the resulting claim against the purchaser – in the case of co-ownership of the seller of the reserved goods, proportionally in accordance with the Co-ownership – to the seller. The same applies to other claims that take the place of the reserved goods or otherwise arise in respect of the reserved goods, such. B. insurance claims or claims from tort in the event of loss or destruction. The seller revocably authorizes the customer to collect the claims assigned to the seller in his own name. The seller may only revoke this direct debit authorization in the event of realization. Upon request by the seller, the client must notify the assignment to its debtors and provide the information necessary for the assertion of the assigned rights and hand over the necessary documents.

(7) If third parties access the goods subject to retention of title, in particular by seizure, the client will immediately inform them of the seller’s property and inform the seller in order to enable him to enforce his property rights. If the third party is unable to reimburse the seller for any legal or extrajudicial costs incurred in this connection, the client shall be liable to the seller for this purpose.

(8) The seller will release the reserved goods as well as the goods or receivables that replace them if their value exceeds the amount of the secured claims by more than 50%. The selection of the items to be released thereafter lies with the seller.

(9) If the seller withdraws from the contract in the event of breach of contract by the client – in particular default of payment – (recovery case), he is entitled to demand the reserved goods out. The client will allow the seller all measures necessary to secure the reserved property. All costs resulting from the return shall be borne by the customer.

§ 10 – Exclusive and special models

(1) For products manufactured exclusively for the contract partner (exclusive models), a deviation of +/- 10% of the delivery quantity is permitted.

(2) The cost of producing molds for special models is borne by the client. Manufactured forms remain with the seller, but may only be used by him for further orders of this customer.

(3) The seller may destroy handed over samples and drawings three months after delivery or offer, unless otherwise agreed.

§ 11 – Final provisions

(1) If the customer is a merchant or does not have a general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising from the business relationship between the seller and the client is Lübeck or the principal’s domicile. For complaints against the seller, however, Lübeck is the exclusive place of jurisdiction in these cases. Mandatory legal provisions on exclusive jurisdictions remain unaffected by this provision.

(2) The relations between the seller and the client are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply.

(3) Insofar as the contract or these General Terms and Conditions contain gaps in the regulations, those legally effective provisions shall be deemed to have been agreed which the contracting parties would have agreed according to the economic objectives of the contract and the purpose of these General Terms of Delivery, if they had known the regulation gap.

Note:
The client acknowledges that the seller stores data from the contractual relationship in accordance with § 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transfer the data to third parties (eg insurance companies) for the fulfillment of the contract.