General Terms and Conditions (AGB)
General Terms and Conditions of R&R-BETH GmbH – Status 08/2013
I. General information
1 The following General Terms and Conditions (GTC) apply to all contracts concluded by R&R-BETH GmbH for the supply of goods and services.
2. the GTC apply to persons who, when concluding the contract, are acting in the exercise of their commercial or independent professional activity (entrepreneurs), as well as legal entities under public law or a special fund under public law.
3. the GTC shall also apply to all future business relationships, even if they are not referred to again or if they are not agreed again.
4. counter-confirmations of the contractual partner with reference to his general terms and conditions are hereby expressly contradicted. If our order is confirmed by the contractual partner in deviation from our General Terms and Conditions, only our General Terms and Conditions shall apply, even if we do not object. Deviations shall only apply if they are expressly confirmed by us in writing.
II Content of the contract
1. unless special agreements have been made, the contractual declarations on which the contract is based (order, order confirmation, declaration of acceptance) must be made in writing.
2. offers made by R&R-BETH GmbH in response to general inquiries are subject to change unless they are expressly confirmed as binding.
3. agreements with employees of R&R-BETH GmbH shall only become binding and subject matter of the contract after written confirmation by one of the managing directors of R&R-BETH GmbH.
4. the documents belonging to an offer, such as illustrations, drawings, weights and dimensions, are only approximate unless they are expressly designated as binding.
5 R&R-BETH GmbH reserves the right of ownership and copyright to samples, cost estimates, drawings and similar information of a tangible and intangible nature; they may not be made accessible to third parties. R&R-BETH GmbH undertakes to make information and documents designated as confidential by the contractual partner accessible to third parties only with the latter’s consent.
6. any necessary building permits and other permits required under public law, such as operating permits, must be obtained by the contractual partner. R&R-BETH GmbH shall not be liable for missing or non-issued permits or for the existence of a granted permit.
III Prices
1. the prices stated in an offer from R&R-BETH GmbH shall apply subject to the proviso that the order data on which the offer is based, in particular drawings and construction plans, remain unchanged.
2 All prices quoted by R&R-BETH GmbH are ex works. They do not include the costs of loading, packaging, freight, insurance, customs, marginal costs and unloading. Value added tax at the respective statutory rate shall be added to the prices. Invoicing shall be in euros.
3 R&R-BETH GmbH reserves the right to increase the prices for contracts with an agreed delivery time of more than four months from the conclusion of the contract in accordance with the cost increase occurring from the conclusion of the contract, in particular in the event of material price increases. If this increase amounts to more than 5% of the agreed price, the contractual partner shall have the right to terminate the contract if the extension of the delivery time is not due to his request or is otherwise attributable to him.
4. changes to the scope of delivery and services requested by the contractual partner after conclusion of the contract as well as additional services due to procedural changes shall be remunerated separately. This also applies to additional services and the modification of system components that have already been completed.
IV. Payment
1. in the absence of a special agreement and in the absence of payment deadlines specified in the offer, the remuneration owed under the contract shall be paid without any deduction as follows:
– 30 % after receipt of the order confirmation,
– 60 % on delivery and
– 10% after commissioning, but no later than two weeks after the transfer of risk.
2. notwithstanding clause 1, R&R-BETH GmbH shall be entitled to demand advance payment from the contractual partner in respect of the remuneration owed under the contract if Euler Hermes Kreditversicherung-AG or a comparable insurance company refuses to take out credit insurance vis-à-vis R&R-BETH GmbH for the remuneration owed by the contractual partner under the contract, whereby the refusal of an insurance company shall be sufficient.
3. cash discount is granted by agreement.
4 All invoices from R&R-BETH GmbH must be paid within 21 calendar days of the invoice date. Payment shall not be deemed to have been made until R&R-BETH GmbH has the funds at its disposal.
5. in the event of default in payment by the contractual partner, R&R-BETH GmbH shall be entitled to declare due for payment all claims still outstanding at this time from the business relationship, including deferred claims and those for which bills of exchange or checks are available, and to withhold outstanding deliveries and services until all claims have been settled in full. Agreed delivery periods shall be extended accordingly in this case. In addition, R&R-BETH GmbH shall be entitled to suspend further production on orders that have not yet been fully completed, with a corresponding extension of the delivery periods.
6. if the contractual partner is in default of payment for more than 5 calendar days, R&R-BETH GmbH shall be entitled to demand advance payment and to withhold outstanding deliveries and services until the advance payment has been made.
7. the contractual partner shall only be entitled to withhold payments or offset them against counterclaims to the extent that its counterclaims are demonstrably undisputed or legally enforceable. However, the contractual partner shall only be entitled to a right of retention with regard to claims arising from the same contractual relationship. In the event of a defective delivery or service, the contractual partner may not withhold payment of an amount of money corresponding to the value of the defective delivery or service; his right of retention is limited to the amount of money corresponding to the lower value of the delivery or service due to the defect.
V. Delivery
1. delivery periods or deadlines shall only be binding if they have been expressly confirmed in writing by R&R-BETH GmbH.
2. delivery periods confirmed in writing shall commence upon conclusion of the contract, but not before all commercial and technical questions between the contracting parties have been clarified and not before the contracting party has fulfilled its obligations, such as the provision of the necessary official certificates or approvals and the making of payments owed.
3. the delivery deadline shall be deemed to have been met if the item or items to be delivered have left the factory of R&R-BETH GmbH or the contractual partner has been notified of readiness for dispatch by the time the deadline expires.
4. in the event of an unavoidable event, such as strikes or lockouts as well as delays or failure on the part of suppliers, the delivery period shall be extended or the deadline postponed accordingly.
5. if delivery or performance by R&R-BETH GmbH becomes impossible as a result of the occurrence of an unavoidable event, in particular in the case of the events referred to in clause 4, R&R-BETH GmbH shall be entitled to withdraw from the contract in whole or in part.
6 Deliveries are ex works. The risk of accidental loss or accidental deterioration shall pass to the contractual partner upon delivery to the forwarding agent, at the latest when the goods leave the factory. If delivery is delayed by more than one working day after notification of readiness for dispatch for reasons for which R&R-BETH GmbH is not responsible, the risk shall pass at the end of the working day following notification of readiness for dispatch.
7 Shipment shall be made by a forwarding agent or carrier to be selected by R&R-BETH GmbH, unless otherwise agreed. R&R-BETH GmbH shall not be liable for the selection of the forwarding agent or carrier and the packaging if a legal representative or vicarious agent of R&R-BETH GmbH acts with intent or gross negligence.
8. if dispatch is delayed at the request of the contractual partner, the latter shall bear the costs arising from storage after expiry of the working day following notification of readiness for dispatch. In the case of storage at the R&R-BETH GmbH plant, the storage costs shall amount to 0.017% of the invoice value of the stored items per calendar day.
9 R&R-BETH GmbH shall only be in default with the fulfillment of a contractual obligation if the contractual partner has set a grace period of at least 14 days. This shall also apply if a binding delivery period or deadline has been agreed. After the occurrence of default, the contractual partner may claim compensation for default of a maximum of 0.5% for each full week, but no more than a total of 5% of the value of the delayed delivery or service. Compensation for non-performance shall be limited to the value of the order. This limitation of liability for damages shall not apply if the legal representatives or executives of R&R-BETH GmbH have acted with intent or gross negligence.
(10) R&R-BETH GmbH shall be entitled to withdraw from the contract in whole or in part and to claim damages for non-performance if the contractual partner is more than two weeks in arrears with the acceptance of the items ready for delivery, the issue of the shipping order, the fulfillment of its payment obligations or the provision of an agreed security after notification of readiness for shipment and R&R-BETH GmbH has set the contractual partner a grace period of at least two weeks in writing with the threat that the contract will be rescinded if the grace period expires without result. R&R-BETH GmbH shall have the right, without prejudice to the possibility of claiming higher actual damages, to demand 20% of the remuneration owed under the contract as compensation from the contractual partner without proof of damages. In this respect, the contractual partner shall have the right to prove that no damage or significantly less damage has been incurred.
VI Retention of title
1 R&R-BETH GmbH shall retain title to all goods delivered until all liabilities of the contractual partner arising from the existing business relationship have been settled.
2. the contractual partner shall be obliged to insure R&R-BETH GmbH’s ownership of delivered goods against damage caused by theft, fire, water or breakage, whereby the claims arising from the insurance shall be assigned to R&R-BETH GmbH. If the contractual partner does not immediately provide R&R-BETH GmbH with proof of insurance cover for damage caused by theft, fire, water or breakage at R&R-BETH GmbH’s request, R&R-BETH GmbH shall be entitled to take out its own insurance. The costs incurred by R&R-BETH GmbH in this respect shall be reimbursed by the contractual partner.
3. the contractual partner may not sell, lend, pledge or assign by way of security the goods subject to retention of title. The contractual partner must inform R&R-BETH GmbH immediately in the event of seizure, confiscation or other disposal by a third party.
4. as long as a retention of title exists in favor of R&R-BETH GmbH, the delivered item subject to retention of title or the item manufactured from it or the new item created by combination may not be sold or encumbered without the consent of R&R-BETH GmbH. In the event of a resale, the contractual partner hereby assigns all claims from the resale with all ancillary rights to its contractual partner (third-party debtor) up to the amount of the invoice with the authority to collect the claim on a pro rata basis by way of security.
5. in the event of default in payment, R&R-BETH GmbH shall be entitled to take back the goods delivered subject to retention of title and the contractual partner shall be obliged to surrender them. However, due to the retention of title, R&R-BETH GmbH can only make use of the demand for return if it has withdrawn from the contract. The costs associated with taking back the goods shall be borne by the contractual partner.
6. in the event of an application for the opening of insolvency proceedings against the assets of the contractual partner, R&R-BETH GmbH shall be entitled to withdraw from the contract and demand the immediate return of the delivery item.
VII Assembly
1. the contractual partner shall support the installation personnel of R&R-BETH GmbH in carrying out an installation at its own expense.
2. the contractual partner must take the necessary measures to protect persons and property at the installation site. He shall inform the assembly manager of R&R-BETH GmbH of existing safety regulations insofar as these are of importance for the assembly personnel. He shall inform R&R-BETH GmbH of any breaches of such safety regulations by the assembly personnel. In the event of serious violations, the contractual partner may, in consultation with the installation manager, refuse the violator access to the installation site.
3. the contractual partner is obliged to provide technical assistance at its own expense, in particular to provide the following services:
– Assembly of the components to be provided by the customer,
– Creation of installation openings and re-sealing,
– Lightning protection and earthing devices,
– Auxiliary materials such as electricity, gas, water and lubricants,
– Disposal of residual and old material and unused lubricants,
– Structural work, such as foundations, floor ducts, sealing of openings and insulation work
– all bricklaying, roofing, carpentry, electrical and plumbing work as well as the provision of scaffolding, crane and lifting vehicles, loading and unloading equipment and construction site transportation,
– Sound and heat insulation measures, spark and fire extinguishing systems and equipment as well as automatic gate valves,
– Exclude the risk of fire during necessary welding and grinding work by preparing the work areas accordingly and maintaining a permanent fire watch during the welding and grinding work and 24 hours after completion of the welding and grinding work,
– Additional equipment resulting from the provisions of the Major Accidents Ordinance,
– Deionization devices against static charges, sound level and emission measurements,
– Provision of necessary dryers and lockable rooms for storing and securing components and tools
4. the contractual partner’s technical assistance must ensure that assembly can begin immediately after the arrival of the assembly personnel and can be carried out without delay until acceptance by the contractual partner. If special plans or instructions of the contractual partner are required for the installation, the contractual partner shall make them available to R&R-BETH GmbH in good time.
5. if the contractual partner fails to meet its obligations, R&R-BETH GmbH shall be entitled to perform the actions incumbent on the contractual partner in its place and at its expense. Otherwise, the statutory rights and claims of R&R-BETH GmbH shall remain unaffected.
6 If a binding installation period is agreed, for which the written confirmation of R&R-BETH GmbH is required, this shall be deemed to have been complied with if the installation has been completed by R&R-BETH GmbH by the time it expires and notification of the completion of the installation has been sent to the contractual partner.
7. if assembly is delayed due to the occurrence of circumstances for which R&R-BETH GmbH is not responsible, the contractual partner shall grant a reasonable grace period; this shall also apply if such circumstances occur after R&R-BETH GmbH is in default. The costs incurred as a result of the delay shall be borne by the contractual partner.
8 The contractual partner shall be obliged to accept the installation as soon as it has been notified of its completion. If acceptance is delayed through no fault of R&R-BETH GmbH, acceptance shall be deemed to have taken place one week after notification of completion of the installation.
9 R&R-BETH GmbH shall remedy defects in the installation at its own expense. This shall not apply if the defect is insignificant for the interests of the contractual partner or is based on a circumstance attributable to the contractual partner.
10. if an assembly part supplied by the contractual partner is damaged during assembly through the fault of R&R-BETH GmbH, it must be repaired at its expense.
11. in the event of damage to or loss of the equipment and tools provided by R&R-BETH GmbH during transportation to the installation site or at the installation site, the contractual partner shall be obliged to compensate the associated damage, provided that R&R-BETH GmbH is not at fault. Damage attributable to normal wear and tear shall not be taken into account.
VIII. Claims for defects
1. the contractual partner is obliged to inspect the goods delivered by R&R-BETH GmbH immediately after delivery and to notify R&R-BETH GmbH immediately of any recognizable defects in accordance with §§ 377, 378 HGB (German Commercial Code). The notification of recognizable defects must be made by the contractual partner in writing and must be made at the latest by the end of the 5th working day after delivery, whereby the receipt of the notification by R&R-BETH GmbH shall be decisive.
2. in the case of production according to drawings or instructions of the contractual partner, R&R-BETH GmbH shall only be liable for conformity of the system components (delivered goods) with the drawings or instructions.
3. cracks occurring in fireclay bricks or refractory linings and refractory cement are due to physical reasons and do not constitute a defect.
4 R&R-BETH GmbH shall rectify defects that were present or were caused at the time of the transfer of risk by repair or replacement, at its discretion. Replaced parts shall become the property of R&R-BETH GmbH.
5. for commercial goods, in particular units of the electrical system and hydraulics, which are not manufactured by R&R-BETH GmbH, R&R-BETH GmbH shall accept claims for defects in the form that R&R-BETH GmbH assigns its claims for defects against the supplier to the contractual partner. In this case, the contractual partner may only demand rectification or subsequent delivery from R&R-BETH GmbH if the supplier is unreasonably delayed or unable to do so.
6. the contractual partner must give R&R-BETH GmbH the necessary time and opportunity to carry out the rectification and/or replacement delivery deemed necessary by R&R-BETH GmbH after consultation with R&R-BETH GmbH; otherwise R&R-BETH GmbH shall be released from liability for the resulting consequences. Only in urgent cases of danger to operational safety or to prevent disproportionately large damage shall the contractual partner have the right to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary expenses from R&R-BETH GmbH, whereby the contractual partner must notify R&R-BETH GmbH immediately and, as far as possible, before the defect is remedied.
7. the contractual partner shall bear the costs incurred by R&R-BETH GmbH as a result of the complaint if the complaint about a defect proves to be unjustified.
8. if there is only an insignificant defect, the contractual partner shall only be entitled to a price reduction. The right to reduce the price shall otherwise be excluded.
9. no liability on the part of R&R-BETH GmbH shall be assumed in particular in the following cases: unsuitable or improper use, incorrect assembly or commissioning by the contractual partner or third parties, natural wear and tear, incorrect or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences – unless R&R-BETH GmbH is responsible for them.
10 R&R-BETH GmbH shall only be liable for damage that has not occurred to the delivered item itself, regardless of the legal grounds
– with intent,
– in the event of gross negligence on the part of the legal representatives of R&R-BETH GmbH and its executive employees,
– in the event of culpable injury to life, limb or health,
– in the event of defects which the legal representatives of R&R-BETH GmbH and its executive employees have fraudulently concealed,
– in the event of defects in the delivered item, insofar as liability exists under the Product Liability Act for personal injury or property damage to privately used items.
11. in the event of culpable breach of material contractual obligations, R&R-BETH GmbH shall also be liable for gross negligence on the part of non-executive employees and for slight negligence. In the case of liability for slight negligence, liability shall be limited to reasonably foreseeable damage typical of the contract.
12. further claims are excluded.
IX. Statute of limitations
All claims of the contractual partner shall become time-barred 12 months after the transfer of risk. The claims mentioned under point VIII. 10. shall become statute-barred in accordance with the statutory periods. The statutory periods shall also apply to defects in a building or for delivered items that have been used for a building in accordance with their normal use and have caused its defectiveness.
X. Applicable law, place of performance, place of jurisdiction
1. all legal relationships between R&R-BETH GmbH and the contractual partner shall be governed exclusively by the law of the Federal Republic of Germany applicable to legal relationships between domestic parties.
2. the place of performance with regard to all contractual obligations of R&R-BETH GmbH and the contractual partner is Bad Lobenstein.
3. the exclusive place of jurisdiction for all disputes arising from and in connection with the contract shall be Bad Lobenstein.
4 Insofar as individual clauses of these GTC are invalid in whole or in part, this shall not affect the validity of the remaining clauses. The statutory provisions shall apply instead.
R&R-BETH GmbH
