Terms of delivery and payment of Rempp Küchen GmbH for entrepreneurs (January 2019)
Terms
of delivery and payment of Rempp Küchen GmbH (June 2023)
1.
General
– Scope
1.1.
The general terms and conditions,
in particular in terms of deliveries, services and
offers apply to all present and
future business relationships with our commercial customers who are considered
enterprises as defined by Section 14 German Civil Code (BGB) (hereinafter
referred to as “Customer” or “Customers”. This also applies for all future
business transactions with customers, even if our general terms and conditions
are not separately agreed again in individual cases.
1.2.
Differing, conflicting or
supplementing general terms and conditions of customers are not subject of the
contract even if acknowledged. They do not obligate
us even if we refer to a document of the customers containing their conditions
or make reference thereof when concluding a contract. This does not apply if we
expressly consent to their applicability.
2.
Contract
conclusion
2.1.
Our offers are non-binding, unless
dictated otherwise by circumstances, they merely represent requests to the
customer to submit to us definitive contractual offers (“invitatio ad
offerendum”). Our information on price indication
(marked by an offer number) is non-binding. Technical changes to our offers
such as changes in shape, colour and/or weight are reserved within a reasonable
scope.
Upon ordering a product the customer declares in a
binding manner to have purchased the ordered product. We are entitled to accept
the contract offer within two weeks after receipt. A contract comes into force
with our written order confirmation. The same applies for supplements or
amendments to the order. Orders and commissions
accepted by way of a confirmation of receipt are subject to our examination, in
particular with regard to the required credit limit requirements of the
customers. Mere electronic confirmation (in EDI format) regarding the receipt
of the electronic order or commission are not deemed as acceptance. After positive
examination we will send a separate order confirmation.
If we do not issue an order confirmation the contract
comes into force with the delivery and acceptance of the ordered goods.
If we provide technical
information or act in an advisory capacity, this takes place as pure courtesy
under the exclusion of liability, unless the advice is expressly agreed in
writing as part of our service.
2.2.
The contract is concluded subject
to the correct and timely self-supply by our supplier. This applies only if we
are not responsible for non-delivery, in particular with the conclusion of a
congruent covering transaction with our supplier. The customer shall
immediately notify us regarding non-availability of the service. The
consideration will be refunded immediately.
2.3. Specifications regarding the subject of the delivery
or service (in particular weight, dimensions, colours, design or other
technical specifications) are only approximately relevant, unless the usability
for contractually required purposes requires a precise match. The
specifications do not represent guaranteed quality features. Deviations
customary in the sector, legal or technically required adjustments are
permissible, provided this does not impair the usability for agreed purposes.
We notify our customers regarding deviations and adjustments without delay.
3.
Price
and terms of payment
3.1.
Our prices are ex-works (INCOTERM
2020: EXW Rempp kitchens factory location) and apply for the scope of delivery
and services as conclusively listed in the written order confirmation.
Additional or special services are charged separately. All taxes, customs
duties and other fees and duties applicable for deliveries and services in the
destination country are borne by the customers. The sales tax in the respective
statutory amount on the day of the delivery is added to the prices.
3.2.
We reserve
the right to reasonable annual adjustment of catalogue prices for future, i.e.
not yet accepted orders and commissions with timely notification (six weeks as
a rule) and at our discretion.
3.3.
Unless
agreed otherwise, all our prices are in EUR ex-works, unpackaged and free
loaded on truck (INCOTERM 2020: EXW Rempp kitchens
factory location) . The packaging is charged at cost
price. Freight costs are to be submitted without discount or reimbursed without
discount by the customer on request.
3.4.
If there
lies more than four months between the order confirmation and order retrieval
we reserve the right to charge our prices valid at time of delivery. In any
case, we pass on the price reductions. In the event of changes in price our
customer receives a new order confirmation. Should the
price items or factors such as material and raw material prices, wages and
salaries decisive for our price determination change significantly after our
submission of an offer or order confirmation we are entitled to change the
prices applicable on the day of the delivery. The price increases must be kept
within the range of the respective cost increases and must be limited to the
market price.
3.5.
In case of delivery of products in
countries outside EU the customer must submit a confirmation of arrival or an
alternative proof. In case of failure to submit we reserve the right to charge
sales taxes applicable in the Federal Republic of Germany.
3.6.
Our invoices are payable
immediately. Payment targets require special written agreement.
3.7.
If payments via SEPA direct debit
are agreed, then the period for pre-notification with regards the direct debit
is at least one business day (24 hrs.). The pre-notification can also be made
in invoicing.
In case of payment after the due date our rights are
determined according to Section 288 BGB as regards interest on arrears.
3.8.
We are not obligated to any further
deliveries under any current contract before full payment of all due invoice
amounts including statutory interest. Assertion of a default damage remains
reserved.
3.9.
If the customer is in default with
due payments at least twice within 12 months, a commercial credit insurer,
central regulator or the like reduces the limit for the customer or insolvency
proceedings are initiated over the assets of the customer we are entitled,
after setting a grace period of 12 days for outstanding deliveries under any
current contract, to demand cash payment prior to delivery or to withdraw from
the contract with the expiry of the payment target.
3.10.
Offsetting with and the withholding
of the due invoice amount are permissible for the customer only in case of
undisputed or legally established claims. Bills of exchange, if they are
endorsed as payment, are accepted only against reimbursement of expenses.
3.11.
Unless agreed otherwise, the
payment must be made in cash, via check (only on account of performance) free
of bank or giro transfer fees in euros. We are not obligated to accept bill of
exchange. Should this be the case the buyer shall pay for bank, discount and
collection fees.
4.
Delivery,
transfer of risk
4.1.
The delivery periods are based on
the specifications in our order confirmation. The
delivery periods or deadlines mentioned by us are only approximations, unless a
fixed delivery time or a fixed deadline has been expressly agreed. We are
entitled to notify a specific delivery deadline (delivery notification).
4.2.
The compliance with our delivery
obligation assumes the timely and proper fulfilment of the obligations of the
customer, in particular if he has made an agreed payment or if he has provided
the documents, templates, samples or drawings, etc. required for the order
processing. The customer is obligated to accept the
delivery on the notified date. We reserve the right to claim for costs incurred
due to delays in accepting the delivery.
4.3.
We provide our service (place of
performance) in the agreed calendar week at the registered office or our
company in Wildberg. Partial deliveries are permissible within the delivery
periods agreed with the customers, provided they are customary or reasonable
for the customers or if delivery items are different, unrelated furniture.
4.4.
Unless
agreed otherwise or handled differently by us for the benefit of the customers,
the delivery is made ex-works, unpackaged and provided for collection from the
production location (INCOTERM 2020: EXW Rempp kitchens
factory location) . If we take over the delivery to
the customer, the customer shall ensure suitable unloading conditions at the
unloading point, in particular a level parking space for trucks, loading dock
for level unloading as well as a location outside the flow of road traffic.
4.5.
The risk of accidental loss and the
accidental deterioration of the goods is transferred to the customer with the
handover of the purchased item to the freight forwarder, carrier or otherwise
with the party commissioned with the transport; the handover is deemed to have
taken place if the customer is in default of acceptance.
4.6.
Unless agreed otherwise the
delivery is made ex-works (INCOTERM 2020: EXW Rempp kitchens factory location)
.
5.
Delivery
interruption – force majeure
5.1
Definition according to RAL GZ 430,
Annex 20
In general, the term “Force majeure” refers to an
externally occurring, operationally unrelated and reasonably to be expected and
even with reasonably utmost care unavoidable event (rather than many: BGHZ 100,
185). Usually events such as natural catastrophes (hurricanes, earth quacks or
floods), (local) epidemics, pandemics, wars and political unrest are considered
“Force majeure”. A strong indication for the presence of force majeure are also
the official measures and warnings.
5.2
5.2
There is agreement between the
supplier and the customer that the following circumstances are also
attributable to force majeure:
–
– Unavoidable transport and freight
delays (in particular in case of access delays despite timely handover of the
goods from the supplier to the transport person)
– –
Business interruptions for which
the supplier is not responsible or pandemic-related capacity reductions of all
kinds due to shortage of workforce, energies, primary products, raw materials
and not in time or not proper own pre-delivery of the suppliers (interruption
in the supply chain), which alter the economic importance or the content of the
delivery or adversely affect the operation of the suppliers
–
– Natural hazards at the supplier or
its sub-suppliers
– –
Strikes or labour disputes,
including lawful lockouts
– Production
process impairing attack on the IT system of the suppliers
– –
Delays due to difficulties in the
procurement of required official permits for which the supplier is not
responsible
–
– In the event of border closing or
official measures, instructions or warnings
–
–
5.3.
Legal consequences due to force
majeure as defined under Section 5:
A contracting party who is unable to supply as per the
contract due to force majeure, is obligated to inform the customer immediately
regarding the reason and the expected duration of the delay in delivery. At the
request of the customers the supplier is obligated to demonstrate the objective
presence of force majeure and the impact on delivery capacity.
Contractual delivery periods are extended
automatically by the duration of the hindrance due to force majeure. Other
reasons for delay should not be taken into account. Damage claims, contractual
penalties or termination/withdrawal from contract based on delivery delay
caused by force majeure may not be asserted.
In the event of delivery delays caused by force
majeure the contract shall be amended accordingly in good faith at the request
of one of the parties. If this is deemed to be economically unjustified by the
supplier, the supplier is entitled to withdraw from the contract in part or as
a whole.
In the event of withdrawal
all services rendered must be reimbursed immediately. Further compensation
claims of the customers are excluded. Not-temporary disruptions can be assumed
to exist if the disruption lasts longer than five weeks.
If goods acceptance is not
reasonable for the customer due to a not-temporary disruption, he can also
withdraw from the contract after setting a grace period in a written statement
to us.
Compensation claims or contractual or customary
penalties are excluded, if the respective contracting party has met its above
mentioned obligations.
6.
Subsequent delivery period
6.1. After the
expiry of the delivery period specified in the order a subsequent delivery
period of 14 days starts without further explanation. After the expiry of the
subsequent delivery period the withdrawal from the contract is deemed to have
taken place under the exclusion of compensation claims. The withdrawal from the
contract according to Section 1 paragraph 2 does not take effect if the
customer notifies us during the subsequent delivery period that it insists on
the fulfilment of the contract. We are, however, released from delivery
obligation if within the subsequent delivery period the customer does not
respond to our inquiry as to whether it insists on the fulfilment of the
contract.
6.2 If the
customer claims damage compensation instead of performance due to a delay, he
must set us a 4-week grace period within the ongoing subsequent delivery period
in accordance with Section 6 paragraph 1, associated with the threat that the
customer rejects fulfilment once the period is expired. The claims of the
customer due to delayed delivery are excluded before the expiry of the
subsequent delivery period.
7.
Guarantee
7.1 Our goods are industrially manufactured and are intended
for use by the end consumer in private households.
7.2 The delivered goods must be carefully
examined immediately after delivery as well as when installed at the end
consumer. Section 377 BGB applies as well as the specifications of the deliver
note. Hidden defects must be notified to us by the customer
immediately after being detected. The customer bears the burden of proof in
order to demonstrate all eligibility criteria, as well as for the time of the
detection of the defect and the timeliness of the claim. Complaints are
excluded after the expiry of the complaint period. Place
of subsequent performance is our registered office. At our request the rejected
goods must be returned to us. In the event of justified defect complaint we
reimburse the reasonable return costs.
7.3 To the extent we are obligated to
perform subsequent performance in the event of defects, this is carried out at
our discretion through improvement or subsequent delivery. We
do not bear incurred costs for removal and installation for subsequent
delivery. In this case, we grant a service fee in the amount of EUR 250. In case of failure, the impossibility, unacceptability,
refusal or unreasonableness of the delay in improvement or replacement
delivery, the customer may only withdraw from the contract or reduce the
purchase price appropriately. The withdrawal is possible only if the defect can
not be remedied (i.e. the cost of defect removal must exceed at least 10% of
the invoice amount).
7.4 Our obligation to provide subsequent
performance does not apply if the customer modifies the goods or has them
modified without our consent and as a result the defect removal becomes
impossible or made unreasonably difficult. The same applies to other guarantee
claims.
7.5. The customer waves the right of recourse
for asserting claims for costs (installation or removal costs) incurred in
connection with subsequent performance towards the end consumers. To this
extent, he waives his claims against us in accordance with Section 445a(1) and
2 BGB and Section 439(3) BGB. In return, we grant the customer an equal
compensation for this waiver consisting of the following items:
a)
We do not bear any incurred costs of removal and installation in case of
subsequent delivery. In this case, we grant a service fee in the amount of EUR
250.
b) Simplified complaint processing: The customer needs
to only show the defectiveness of a delivery item. He must provide proof of
defect only upon our express request.
7.6 To the extent that our goods are
qualified as digital products ((Section 327(1) sentence 1 BGB)) or as goods
with digital elements ((Section 327(3) sentence 1 BGB)), it applies that our
customer will first attempt as a priority to acquire the updates in accordance
with Section 327f BGB or Section 475(3) no. 2 and (4) no. 2 BGB from the
mentioned actual manufacturer of the digital products or goods with digital
elements. Thereafter, the statutory regulations apply.
7.7 If the
customer has assumed an obligation to product safety, e.g. in accordance with
ProdSG (Product Safety Act) he must inform us immediately and in full regarding
planned measures.
7.8 We are
obligated to accept the goods return for inspection of defects only if the
customer has previously notified the return stating the invoice number and the
invoice date in writing. Acceptance of the goods returns in no way implies the
acknowledgement of the defect complaint of the customer.
7.9 No guarantee
is accepted for faulty installation or faulty, negligent or improper use or
handling of the goods by the customer.
7.10 As a rule,
only our product description in the order conformation is agreed as the quality
of the goods. Deviations in quality, colour, width, weight, equipment or design
that are common in the industry or insignificant or technically unavoidable
cannot be subject to complaint. Public statements, leaflet descriptions, figures
or advertising regarding the delivery item and its intended use do not
represent information on the quality of the goods.
7.11 The limitation
period for defect claims is 24 months, calculated as of the transfer of risk.
8. Liability
8.1 Our
fault-based liability for compensation, regardless of the legal ground, in
particular due to impossibility, delayed, defective or incorrect delivery,
breach of contract, breach of obligations in contract negotiations and tort is
limited as follows:
8.2 We
are not liable in case of simple negligence of our corporate entities,
statutory representatives, employees or other vicarious against, unless it
concerns a breach of essential contractual obligations (cardinal obligations).
Essential contractual obligations include obligation to timely delivery of
goods free of significant defects as well as consulting, protection and duty to
exercise proper care, that allow our customer the contractual use of the goods
or the protection of life and limb of its personnel or the protection of its
assets against significant damages. Regarding liability in case of faulty
self-delivery please refer to Section 2.2).
8.3 To
the extent that we are liable based on the merit of the damage claim, this
liability is limited to damages that we should have foreseen as possible result
of the breach of contract when concluding the contract or should have foreseen
if we had exercised due diligence. All damages not arising from the goods
themselves (direct damages), but as a result of the defects in the goods can be
compensated only if such damages are typically to be expected with proper use
of the goods.
8.4 The
above mentioned exclusion of liability and liability limitations also apply to
the same extent for our corporate entities, statutory representatives,
employees or other vicarious agents.
8.5 The
above mentioned limitations do not apply for our liability due to intentional
conduct, gross negligence, for guaranteed quality features, due to injury to
life, limb or health or our liability according to the Product Liability Act.
9. Retention of title
9.1. The
retention of title agreed bellow serves to secure all our existing and future
claims against the customer (secured claims).
The
goods remain in our ownership until the full payment of all claims from goods
deliveries under the overall business relationship, including side agreements,
compensation claims and cashing of checks and bills of exchange. Moreover, we reserve the right to retain the ownership of
goods subject to retention of title until the complete fulfilment of secured
claims. The
retention of title also remains in force if individual claims are included in
the current invoice and the balance is drawn and acknowledged by us.
In the event of delayed payment or cessation of
payment by the customer we shall be entitled, upon declaring the withdrawal
from the contract, to demand the return of goods subject to retention of title.
9.2. The
customer is entitled to process and resell the goods subject to retention of
title in the proper course of business, provided that it is not in default with
the fulfilment of its obligations towards us or stops its payments. To this end
the following is agreed:
9.3 The
processing or transforming of the goods subject to retention of title takes
place for us as the manufacturer within the meaning of Section 950 BGB. Through
the processing or transforming of the goods subject to retention of title we
acquire ownership of the new item and not the customer. Nevertheless, should
the customer acquire future ownership, it transfers this to us for purposes of
securing the secured claims. The expectant right of the customer to processed
or transformed items remains force. In internal relationship the customer
releases us from all third party claims arising from the processing or
transforming.
9.4 If
the goods subject to retention of title are processed, mixed, blended or joined
with other items, we acquire co-ownership to the new item to a portion
corresponding to the ratio of the invoice value of our goods subject to
retention of title to the total value (co-ownership share). If the goods
subject to retention of title are joined to a uniform item using another item
and if one of these items is considered as principle item or if the goods
subject to retention of title are permanently built-in, then the customer, to
the extent possible, transfers the proportional co-ownership to us as security
as per the above Section 1. The provisions applicable to goods subject to
retention of title apply to the co-ownership share accordingly.
9.5 The customer
hereby assigns to us the claim with all ancillary rights arising from the
resale of the goods subject to retention of title – including any balance claims
– regardless of whether the purchase item resale of the goods subject to
retention of title. The same
applies for claims based on other legal grounds that take the place of the
goods subject to retention of title (e.g. Claims from factory delivery,
insurance claims or claims from tort) or claims from the genuine factoring of
the claim.
To the extent that the goods subject to retention of
title have been processed, mixed, blended or permanently built-in we are
entitled, from this assignment of security, to a first-ranking fractional value
of the respective claim from the resale in the ratio of the invoice value of
our goods subject to retention of title to the invoice value of the object.
If the goods subject to retention of title are sold by
the customer together with other goods not delivered by us, the customer hereby
assigns a first-ranking share of the claim from the joint sale in the amount of
the invoice value of our goods subject to retention of title.
If the claim from resale is placed in a current
account relationship with its buyer by the customer, the customer hereby
assigns to us its claims from the current account relationship in the amount of
the invoice value of the goods subject to retention of title.
The assignment includes in particular not only payment
claims, but also claims for surrender especially for the case that the customer
resells in turn under retention of title.
We herewith accept the above assignment.
9.6 The customer is authorised to
collect assigned claims provided he meets his payment obligations. The
collection authorisation expires with payment default of the customer or with
significant deterioration of customer’s financial situation. In this case, the
seller is hereby authorised by the customer to inform the buyer regarding the
assignment and to collect the claims itself. To assert the assigned claims the
customer must provide the required information and allow us to examine this
information. In particular, he must provide us with a precise listing of claims
to which he is entitled with names and address of buyer, amount of the individual
claims, invoice date etc.
Amounts collected by customer from us in this respect
must be retained in a separate bank account and transferred to us immediately
for the purposes of securing the claims.
9.7 Should the value of the security to
which we are entitled exceed our complete claims by more than 10%, we shall be
obligated to release securities at the discretion of the customer upon his
request.
9.8 Pledging or security assignment of
goods subject to retention of title and/or the assigned claims are not allowed.
We must be informed of pledge immediately stating the pledgee.
9.9 The customer stores the goods
subject to retention of title for us free of charge. He shall protect and
secure them against common hazards such as fire, theft, water to the usual
extent. The customer hereby assigns to us damage claims he is entitled to from
damages of the type mentioned above against insurance companies or parties
liable to compensation in the amount of the invoice value of the goods. We
hereby accept this assignment.
9.10 If we take back delivery items in
exercise of our right to retention of title, the customer is entitled to
withdraw from the contract only if we have expressly declared this. The seller
is allowed to satisfy himself from the private sale of the goods subject to
retention of title that have been taken back.
10.
Intellectual property rights
10.1 We
reserve the ownership and copyright to all documents, photos, videos and
advertising material provided to our customers. The customer is authorised to
use these in its own analogue or online media towards third parties to the
extent agreed for purposes of advertising our goods for the duration of the
business relationship and taking into account our commercial property rights.
The customer is not allowed to transfer to third parties (such as catalogue
service provider or online third party platforms).
10.2 For
the case that our delivered goods violate the commercial property rights or
copyright of a third party, we shall replace or modify our goods at our
discretion and at our cost or grant our customers the right of use by
concluding an appropriate licence contract. Any damage claims of the customer
are subject to the limitations of Section 8.
11.
Place
of performance, Jurisdiction
11.1
Place of performance and place of
subsequent performance for all deliveries and services from the contractual
relationship is Wildberg, if the customer is a merchant.
11.2
If the
customer is a merchant or legal person under public law or special fund under
public law or if he does not have general place of jurisdiction in Germany, the
place of jurisdiction, at our discretion, is the competent court of our
registered office or the registered office of the customer, according to the
value in dispute. For legal actions against us the competent court of our
registered office is the exclusive place of jurisdiction according to the value
in dispute. Mandatory statutory provisions regarding the exclusive place of
jurisdiction remain unaffected. This also
applies for checks and bill of exchange claims. However, we reserve the right
to also take action against the customer at its general place of jurisdiction
or to take recourse to interim relief.
12.
Final
provisions
12.1
The
contractual relationship is governed exclusively by German law excluding the
conflict of laws of international private law (IPR) and the UN Sales Convention
(CISG).
12.2
Decisive for
the legal relationship between us and our customers is the written concluded
agreement in addition to this general terms of delivery and payment.
12.3
The customer
shall inform us immediately and at the latest together with a possible report
he sends to the market surveillance authority regarding risks he becomes aware
of as defined under Product Safety Act or Product Liability Act.
12.4
Should individual provisions of the
contract with the customer including these general terms and conditions be or
become invalid in whole or in part, this shall not affect the validity of the
remaining provisions. The complete or partial invalid regulation shall be
replaced by a regulation whose economic success comes closest to that of the
invalid regulation.
Last updated June 2023