GENERAL TERMS AND CONDITIONS OF REICH THERMOPROZESSTECHNIK GMBH (AS AT: 02.09.2019)
Section 1 General – Scope
The following terms and conditions apply to all existing and also all future contracts and terms and conditions concluded by REICH Thermoprozesstechnik GmbH (hereinafter: REICH).
All agreements must be documented in writing in this contract.
These terms and conditions shall apply without restriction to all business relationships with purchasers that are not consumers. They apply to contracts with considers with restrictions – insofar as this is legally admissible.
Different, contrary or supplementary General Terms and Conditions of the purchaser shall only become a component of the contract to the extent that REICH expressly consents to their validity. This requirement for consent shall apply in any case, for example also if REICH unconditionally makes the delivery to the purchaser in knowledge of its general terms and conditions.
Individual agreements concluded with purchasers in specific cases (including side-agreements, addenda and amendments) shall have priority in every case before these General Terms and Conditions.
Section 2 Conclusion of the contract
All offers from REICH are always non-binding. A duty to deliver only arises upon sending a proper order confirmation. Verbal or telephone agreements only become valid after confirmation in writing, unless the order is immediately accepted and performed by REICH. The Terms and Conditions referenced here shall also apply in this case.
Insofar as the delivery of series parts is object of the delivery agreement, if the purchaser has provided tools REICH is also required after prior announcement to carry to meaningful repair work to the tools for and on the account of the purchaser as normal hourly rates.
Section 3 Prices
All stated prices are net. The respective, currently applicable statutory VAT shall also be charged, along with the costs for packaging, transport and any insurance premiums, which are billed separately to the purchaser. Any customs, fees, taxes and other public charges shall be borne by the purchaser.
For contracts with a lead time of more than four months, REICH reserves the right to adjust the prices corresponding to the occurring cost increases due to collective bargaining agreements or increases in material costs. If the increase is more than 7.5% of the agreed price, the purchaser reserves the right of withdrawal.
If REICH takes the purchaser's requested changes into account, the purchaser shall bear the additional costs incurred as a result.
Section 4 Lead time
A delivery date is stated according to the best estimate when accepting the order. The delivery date is only binding if it is expressly designated as binding.
A delivery deadline agreed in writing is complied with if the object of the contract has left the REICH factory or readiness for shipping has been announced before the end of the delivery period.
The delivery term shall be extended reasonably if there are measures within the framework of labour disputes, notably strikes and lock-outs, as well as in the event of unforeseen obstacles that are outside REICH's sphere of influence. This also applies if these circumstances arise among REICH's subcontractors. The purchaser shall immediately be advised in these cases.
REICH reserves the right to make partial deliveries to the purchaser to a reasonable extent.
If the purchaser suffers damages because of a delayed delivery, for which REICH is responsible, it reserves the right to demand compensation for delay. This shall total a maximum of 5% of the value of the part of the late delivery, insofar as the purchaser is not able to document greater damages.
Section 5 Transfer of risk
Delivery shall be by REICH ex warehouse, which is also the place of performance. Upon demand from and at the cost of the purchaser, the goods shall also be shipped to another destination. Unless agreed otherwise, REICH reserves the right to determine the type of shipping, notably the transport company, route, packaging.
Risk shall transfer to the purchaser upon shipment of the object or on the day of notification of readiness for shipping. This shall also apply to freight-paid and insured shipments.
REICH shall insure the shipment against theft, breakage, transport, fire and water damage at the express request from purchaser and at its costs.
Section 6 Payment terms, default
Unless agreed otherwise, payment must be made without deduction within 10 calendar days of the invoice date. This also applies to prepayment and part-payment invoices.
The purchaser shall be in default upon expiration of the above payment period. During default, the purchase price shall accrue interest at the respective applicable default interest rate; which at present is 9 percentage points above the respective base rate. In addition, the statutory default compensation shall accrue (s. 288 (5) BGB). REICH reserves the right to claim additional compensation for default.
Offsetting is only possible if the counter-claim is undisputed, has been acknowledged in writing by REICH or has been legally determined. This shall also apply to rights of retention due to claimed defects to the contractual object.
Section 7 Retention of title
REICH shall retain ownership of the contractual object until receipt of all payments from the delivery contract. The contractual object may not be pledged or used as collateral until payment in full. The purchaser shall immediately inform REICH of enforcement actions concerning the conditional contractual objects, stating the documents required for an intervention; this shall also apply to impairments of other kinds. The purchaser shall inform the third parties in advance of the existing rights /to the contractual object. The purchaser shall bear the costs for an intervention by REICH if the third party is unable to reimburse them.
If the purchaser sells the contractual object within the framework of ordinary business in full or in a processed form, it herewith transfers its purchase price demand to REICH at the amount corresponding to REICH's demand. REICH herewith accepts this transfer. The purchaser is irrevocably authorised to collect the claims ceded to REICH for its account in its own name.
The retention of title covers the products created by the processing, mixing or combining of goods up to their full value. If third party ownership remains after processing, mixing or combining with goods, REICH shall acquire shared ownership in relation to the invoice value of the processed, mixed or combined goods. Moreover, the same applies to the product created as to the goods delivered subject to retention of title.
If the value of all securities existing for REICH exceeds the existing claims by more than 10%, upon request from the purchaser REICH shall release securities selected by REICH.
Section 8 Use of the contractual object during retention of title
For the duration of the retention of title, REICH shall grant the purchaser the right to use the contractual object as long as the purchaser remains within the agreed payment terms. The purchaser is aware that the contractual object to be delivered by REICH is fitted with an internal operating hours meter (400 operating hours).
If the purchaser defaults on payment of the agreed purchase price, REICH reserves the right to switch off the contractual object after 400 operating hours. After a telephone call from REICH' customer service, the purchaser shall then receive the required access data for the further provisional use of the contractual object.
If the purchaser pays the purchase price in full before the end of the stated 400 operating hours, upon request from the purchaser REICH shall provide a code, which disables the aforementioned default setting of the internal operating hours meter and this allows the unrestricted use.
Section 9 Defects and liability
Claims by the purchaser due to defect require it to have performed its statutory duties of inspection and complaint (s. 377 HGB). If a defect is identified during the inspection or subsequently, the purchaser shall immediately inform REICH of this in writing. Notification is immediate if it is made within two weeks, whereby the timely sending of the notification is sufficient for meeting the deadline. Irrespective of this duty of inspection and complaint, the purchaser shall report obvious defects in writing within two weeks of delivery; the timely sending of the notification is also sufficient for meeting this deadline. If the purchaser omits the correct inspection and / or notification of defects, REICH's liability for the unreported defect is excluded.
For all defects, for which REICH is liable, at its discretion it reserves the right either to correct the defect or to make a replacement delivery. REICH shall only bear the costs for the replacement, including shipping, for direct costs incurred here.
The purchaser shall not bear the risk for unspecific or unclear determination of the performance order in respect of the precise dimensions and qualitative design of the contractual object. In any case, REICH's liability shall only be taken into account to the extent that how REICH performed the order could not be understood from the order.
If unintended changes or processes or repairs are made to the contractual object according to the current and generally acknowledged state of technology without REICH being aware, REICH's liability shall be excluded.
Additional claims by the purchaser, notably a claim for replacement of damages not suffered by the contractual object itself, are excluded. This liability exclusion shall expressly not apply in the case of malice, gross negligence or culpable breach of material contractual duties.
If performance becomes partly or fully impossible for REICH or if the full provision of the service is not reasonable, both parties reserve the right to withdraw from the contract. In the case of partial delivery, the purchaser can reduce the payment. A rejection of the partial delivery is only possible if the purchaser proves that it has a justified interest in this and it is unreasonable. Additional claims by the purchaser, notably for compensation instead of performance, are excluded.
Provided there are no damages from injury to life, limb or health, REICH's liability is restricted or excluded as follows: Depending on the grounds, REICH is liable for any culpable breach of material contractual duties. Outside these duties (also pre-contractual duties), REICH is only liable in the case of gross negligence. The amount of the liability is limited to replacement of the typical foreseeable damage. However, this restriction does not apply exclusively in the case of gross negligence.
Irrespective of all duties of notification and complaint, warranty claims again REICH shall expire no later than one year after delivery of the contractual object.
The purchaser can withdraw from the contract if the entire performance is ultimately impossible for REICH. In the event of partial impossibility, the purchaser can withdraw from the contract if it proves that it has a justified interest in rejecting a partial delivery and this is not reasonable for it. If this is not the case, the purchaser can reduce the payment correspondingly.
The purchaser also has a right of withdrawal if REICH culpably misses a reasonable additional deadline set for a repair or replacement or if the repair or replacement fails multiple times.
All other additional claims by the purchaser, notably for termination or reduction, as well as for reimbursement of damages of any kind, are excluded, also damages not suffered to the contractual object itself. This liability exclusion shall not apply in the case of malice, gross negligence or culpable breach of material contractual duties. In the latter case, REICH is only liable for typical contractual, reasonably foreseeable damage.
Section 10 Place of jurisdiction – Place of performance
If the purchaser is not a consumer as defined in s. 13 BGB, REICH's place of business is both place of performance and place of jurisdiction, however REICH reserves the right to sue the purchaser at its local court. Irrespective of the contractual partner's place of domicile, the law of the Federal Republic of Germany shall exclusively apply. The application of international law, notably the UN Convention on the International Sale of Goods, is excluded – both in direct application and indirectly through German law This shall also apply to the interpretation of these Terms and Conditions.
If individual conditions or parts hereof are invalid, the validity of the remaining terms and conditions shall not be affected thereby. Within the framework of what is reasonable in good faith, the contractual partners shall replace an invalid condition with a valid regulation with an equivalent commercial effect, insofar as this does not result in a material change to the content of the contract; this shall apply if a matter requiring resolution is not expressly regulated.