General Terms & Conditions of Payment and Delivery of Maschinenbau Riebsamen GmbH & Co. KG (“KG”) in business transactions with COMPANIES.
§ 1 Scope
1. The following provisions shall apply to all business relations, any services, in particular offers for deliveries/services as well as consultations of the Company with companies pursuant to §§ 310, 14 BGB (German Civil Code).
2. The following provisions shall apply exclusively; other purchasing and other provisions of the Customer shall not become part of the contract; these are hereby expressly rejected.
§ 2 Conclusion of the contract
1. The offers of the Company are made without any commitment.
2. Unless otherwise agreed, the Company accepts no liability for the correctness of the content of brochures, price lists, sketches, drawings, Internet pages, advertising mailings and other business documents; the right to make changes in this regard is reserved; see also § 3.
3. An order shall be deemed accepted upon delivery/service provision or upon receipt of the order confirmation. Confirmations or differing agreements must be made in writing.
§ 3 Technical information on the composition
1. Unless otherwise agreed, details in catalogues, sales documents, sketches, drawings, samples, etc. are only approximate descriptions of condition, in particular for quality and dimensions; deviations are possible. All specifications of the Company are descriptions of performance only and are not guarantees, unless otherwise expressly agreed at the time of conclusion of the contract.
2. The Company’s technical application advice, both verbal and written, is non-binding – also with regard to any third-party property rights – and does not release the Customer from its own examination of the Company’s products for their suitability for the intended processes and purposes.
§ 4 Order changes
Changes to the order before or after receipt of the order confirmation can only be taken into account by the Company if any additional costs incurred as a result are borne by the Customer and a sufficient extension of the delivery period is granted.
§ 5 Delivery, provision
1. Deliveries are made net (particularly without delivery costs) ex works from the Company at 88348 Allmannsweiler, Germany. The risk shall pass to the Customer once the service has been handed over to the transport carrier. The Customer will bear the costs for shipment from the business headquarters of the Company at 88348 Allmannsweiler, Germany.
2. Binding provision dates or delivery dates or non-binding provision periods or delivery periods shall be stated in writing. Periods of provision or delivery periods shall commence upon conclusion of the contract.
3. Correct and timely self-supply remains reserved; the Company does not assume any procurement risk. Otherwise, an impediment for which the Company is responsible shall not entitle the Company to withdraw from the contract.
4. The Company shall be liable in the event of impossibility of delivery/service in cases of wilful intent or gross negligence on the part of an organ of the Company, a representative or vicarious agent.
5. In cases of force majeure (in particular in the event of war or natural disasters) or other operational disruptions occurring at the Company or its suppliers which prevent the Company from delivering or providing on the agreed date or within an agreed period without the Company being responsible, the Company shall be entitled to postpone the provision/delivery or service provision for the duration of the impediment or, in the event of ultimate impossibility of delivery/service provision due to the aforementioned cases of force majeure, to withdraw from the contract.
§ 6 Delivery and acceptance obligations
1. In the case of call-off orders without agreement of delivery periods, production batch sizes and provision periods, the Company may, unless otherwise agreed in writing, demand a binding determination in this regard no later than 3 months after confirmation of the order. If the Customer does not comply with this request within 3 weeks, the Company is entitled to set a 2-week grace period and, after its expiry, to withdraw from the contract and claim damages instead of performance.
2. Goods reported ready for shipment must be called off immediately after expiry of the delivery period/delivery date; if this does not happen, the Company shall be entitled, at the Customer’s expense, to dispatch them at its own discretion or to store them at the expense and risk of the Purchaser; the same shall apply if shipment cannot be carried out for reasons for which the Company is not responsible.
3. If the Customer demands that necessary tests be carried out by the Company, the type and scope of the tests shall be agreed upon. If this does not happen, at the latest when the contract is concluded, the costs incurred shall always be borne by the Customer.
§ 7 Right of withdrawal
The Customer may only withdraw from the contract within the framework of the statutory provisions if the Company is responsible for the breach of duty; in the event of defects, however, the provisions of § 13 of the General Terms & Conditions and the statutory requirements shall apply. In the event of breaches of obligations, the Customer shall declare within a reasonable period of time after being requested to do so by the Company whether it will withdraw from the contract due to the breach of obligations or insist on performance.
§ 8 Acceptance
1. The Customer is obligated to accept the performance.
2. In the event that a non-binding provision period has been agreed upon, the Customer shall be obliged to accept the service at the Company’s registered office in 88348 Allmannsweiler, Germany, within 7 days of receipt of the provision notification. In the event of non-acceptance, the Company can make use of its legal rights.
3. In the event of non-acceptance, the Company shall allow the Customer a further 7-day period for acceptance, after which the Company shall be entitled to withdraw from the contract and claim damages from the Customer.
4. If the dispatch of the delivery is delayed at the request of the Customer by more than 2 weeks after the agreed delivery date or, if no exact delivery date had been agreed, after the Company’s notification of readiness for shipment, the Company may charge a flat-rate demurrage fee for each month (pro rata if applicable) amounting to 0.5% of the value of the performance, but not more than 5% of the value of the performance. The Customer has the right to prove that the Company has not suffered any damage or that the damage is significantly lower. The Company is allowed to prove that a higher amount of damage has been incurred.
§ 9 Transfer of risk, shipping
The place of fulfilment is the Company headquarters at 88348 Allmannsweiler, Germany.
§ 10 Prices
Unless otherwise agreed, prices are net ex works of the Company in Allmannsweiler, Germany. As a matter of principle, they refer to the value of the service and are always subject to change; however, the stated price shall apply as the minimum price. In particular, packaging, postage and VAT will be charged additionally.
§ 11 Payment conditions, delay
1. By placing an order, the Customer confirms its solvency and creditworthiness.
2. Payment for the Company’s deliveries and services must be made net (without deductions) within 14 days of the invoice date.
3. In the event that there are defects, the Customer shall not be entitled to a right of retention unless the delivery/service is obviously defective or the Customer is obviously entitled to refuse acceptance of the delivery/service. The Customer shall also be entitled to a right of retention from the same legal relationship if the counterclaim has been legally established, is undisputed or disputed and is ready for a decision. However, in such a case the Customer shall only be entitled to withhold to the extent that the amount withheld is in reasonable proportion to the defects and the anticipated costs of subsequent performance (in particular a remedy of the defect). The Customer shall not be entitled to assert claims and rights on account of defects if it has not made due payments and the amount due is in reasonable proportion to the value of the – defective – services.
4. In the event of delay in payment, the Company shall be entitled to charge interest on arrears at a rate of 10 percentage points above the base rate (§ 247 of the German Civil Code). The Customer has the right to prove that the Company has not suffered any damage lower than 10 percentage points above the base interest rate (§ 247 of the German Civil Code). The Company is allowed to prove that a higher amount of damage has been incurred. The statutory interest rate remains unaffected by the provision above.
5. If the Customer is in default of payment or if there is a threat of cessation of payments by the Customer or if comparable financial conditions exist with regard to the Customer, all outstanding claims and bills of exchange shall become due immediately. If immediate payment is due thereafter, the Company shall be entitled to take back services already delivered as a precaution without the Customer’s obligation to pay expiring as a result. If the delivery or service has not yet been provided, the Company may, in the event of payment being due immediately, make this dependent on advance payments or the provision of security.
6. The Company may withdraw from the contract or parts of the contract by written declaration if the Customer becomes insolvent, the Customer becomes over-indebted, the Customer stops making payments or the Customer files for insolvency. The Customer shall notify the Company immediately of the occurrence of insolvency, over-indebtedness or cessation of payments. If the Customer fails to give such notice, it shall be obliged to pay to the Company the flat-rate amount of 5% of the value of the performance.
7. The Customer shall only have the right to compensation if its counterclaims have been legally established, are undisputed or disputed but are ready for a decision.
§ 12 Retention of ownership
1. The goods shall remain the property of the Company until all its claims against the Customer arising from the business relationship have been satisfied.
2. In the event of breaches of obligations by the Customer, in particular default in payment, the Company shall be entitled, even without setting a deadline, to demand the return of the goods and/or to withdraw from the contract; the Customer shall be obliged to surrender the goods. The demand to surrender the delivery item does not constitute a declaration of withdrawal on the part of the Company unless this is expressly declared.
3. The Customer is revocably entitled to resell the reserved goods in the ordinary course of business. The claims arising from the resale or any other legal reason (e.g. damages in tort, insurance claims) with regard to the reserved goods shall already now be assigned by the Customer to the Company in the amount of the invoice value of the reserved goods. The Company accepts the assignment. The Customer is revocably authorised to collect the claims assigned to the Company in its own name.
4. In the event of access by third parties to the Company’s reserved goods (in particular in the event of a seizure or in the event of the exercise of a statutory lien), the Customer shall draw attention to the Company’s ownership and notify the Company in writing without delay.
5. If the reserved goods are inseparably combined with other items not belonging to the Company, the Company shall acquire co-ownership of the new item in the proportion of the value of the reserved goods to the other combined items at the time of combination. If the combination takes place in such a way that the Customer’s item can be regarded as the main item, it shall be considered agreed that the Customer shall transfer co-ownership to the Company on a pro rata basis. The same applies in the event that they are mixed.
6. Section 12 No. 3 shall also apply with regard to the co-ownership share, according to which, in the event of resale of the co-owned conditional performance, the claims arising from the resale or any other legal reason (e.g. damages in tort, insurance claims) with regard to the reserved goods shall already now be assigned by the Customer to the Company in the amount of the invoice value of the reserved goods. The Company accepts the assignment. The Customer is revocably authorised to collect the claims assigned to the GmbH in its own name. Upon appropriate request, the Customer shall be obliged to pay exclusively to the GmbH the claims against third parties to which the Company is entitled from the assignment and which have already been collected by the Customer’s contractual partner.
7. If the value of the securities to which the Company is entitled from retention of ownership exceeds the total claims existing against the Customer by more than 10%, the Company undertakes, at the Customer’s request, to release the securities to which it is entitled to the extent that these exceed the value limit.
8. In addition, the Customer is obliged to treat the delivery item with care; in particular, it is obligated to sufficiently insure it at its own expense against fire, water and theft damage at replacement value. If maintenance and inspection work is necessary, the Customer must perform this at its own costs in a timely manner.
9. In the event of seizure or other interventions by third parties, the Customer shall notify the Company in writing without delay. The Customer shall be liable to the Company for the court and out-of-court costs of any necessary action pursuant to § 771 ZPO (the Civil Procedure Code of Germany) (third-party action).
§ 13 Damage and claims
1. The Customer shall only be entitled to claims arising from liability for defects if these are properly asserted.
2. Claims for damages do not exist in the event of an insignificant deviation from the agreed quality or in the event of an insignificant impairment of the usability.
3. In the event of a justified complaint, the Company shall in no case be obligated to make a new delivery or manufacture within the scope of subsequent performance. The Company shall in any case have the right to choose between rectification of defects, new delivery and rescission. If the subsequent performance fails, the Customer shall be entitled to reduce the price or – if a construction work is not the subject of the liability for defects – to withdraw from the contract at its discretion. The Customer’s right to claim damages in lieu of performance in accordance with the statutory provisions and these Terms & Conditions shall remain unaffected.
4. The limitation period for claims and rights due to defects in the deliveries/services – irrespective of the legal grounds – is 1 year. However, this does not apply in the cases of § 438 I No. 1 of the German Civil Code (defect of title in immovable property), § 438 I No. 2 of the German Civil Code (buildings, property for buildings), § 479 I of the German Civil Code (contractor’s right of recourse) or § 634a I No. 2 of the German Civil Code (buildings or work the success of which consists in the provision of planning and supervision services for them). The time limits specified in the preceding sentence 2 are subject to the statutory limitation period.
5. The limitation period begins with the acceptance or delivery of the goods.
6. Unless expressly stipulated otherwise, the statutory provisions on the start of the limitation period, the suspension of the expiry of the limitation period, the suspension and the recommencement of limitation periods shall remain unaffected.
7. The statutory rules on the burden of proof shall remain unaffected by the above provisions.
8. In the event of an infringement of third party industrial property rights for which the Company is responsible, the Company may, at its discretion, either obtain at its own expense a right of use sufficient for the agreed or presumed use and transfer it to the Customer, or modify the delivered goods in such a way that the industrial property right is not infringed or replace the delivered goods, provided that in each case the agreed and presumed use of the delivered goods is not impaired as a result. If this is not possible for the Company or if the Company refuses subsequent fulfilment or if this fails, the Customer shall be entitled to the statutory rights and claims. Claims for damages and reimbursement of expenses shall be governed by § 15 of these General Terms & Conditions.
9. If the Company has to deliver based on drawings, models, samples or using parts provided by the Customer, the Customer shall be responsible for ensuring that the property rights of third parties in the country of destination of the goods are not infringed as a result. The Company shall advise the Customer of any rights it is aware of. If deliveries are made based on drawings or other information provided by the Customer and if this infringes the industrial property rights of third parties, the Customer shall indemnify the Company against all claims, in particular those of the owners of the industrial property rights.
10. If the Company hands out drawings and documents or suggestions for the advantageous design of workpieces to the Customer, these shall not be passed on and may be reclaimed by the Company at any time.
11. Licence claims by the Customer based on industrial property rights to models and production equipment sent in or produced or procured on its behalf are excluded if these are used by the Company in accordance with the contract.
12. Unless otherwise agreed at the time of conclusion of the contract, the Company shall be obligated to provide the delivery free of industrial property rights and copyrights of third parties only in the country of the place of delivery. If the use of the delivery item leads to the infringement of industrial property rights or copyrights, the Company shall, at its own expense, procure the right for the Customer to continue using the delivery item or modify the delivery item in a manner reasonable for the Customer in such a way that there is no longer any infringement of industrial property rights.
13. The Company shall furthermore indemnify the Customer against undisputed or legally established claims of the relevant property right holders.
§ 14 Copyright and industrial property rights, moulds and tools
1. The Company reserves all property rights and copyrights to its own drawings, samples and similar information; they may only be made accessible to third parties by the Customer with the express prior written consent of the Company.
2. The Company shall in any case claim the exclusive right to manufacture the corresponding goods with regard to the designs, drawings and tools produced by the Company. Passing on or duplication of these documents as well as the tools, exploitation and communication of their contents are not permitted unless this is expressly permitted in writing by the Company.
3. If the Company manufactures or procures models, moulds, tools and other moulding equipment on behalf of the Customer, the Company shall invoice a part of the costs for this separately. Since these proportional costs do not cover the Company’s expenses, the models and moulds as well as tools including accessories remain the property of the Company. The same applies to modifications as well as to replacement models, tools and subsequent moulds. Tooling, moulding costs etc. are to be paid on invoice with the addition of the respective statutory value-added tax. If 3 years have passed since the last delivery of the articles made from them, the Company is not obliged to store them any longer.
§ 15 Claims for damages/liability
1. The liability of the Company as well as the personal liability of the legal representatives, vicarious agents and employees of the Company for slightly negligent breaches of duty is excluded. This shall only apply if the slightly negligent breaches of obligations do not relate to material contractual obligations (obligations which have to be fulfilled in order for the contract to be properly executed and on which the contractual partner may regularly rely), injuries to life, limb or health or damage to guarantees assumed or claims under the Product Liability Act are affected. Regardless of any fault on the part of the Company, any liability due to fraudulent concealment of a defect, from the assumption of a guarantee or a procurement risk as well as under the Product Liability Act, shall remain unaffected. If the damage is covered by an insurance policy taken out by the Customer, the Company shall only be liable for any associated disadvantages to the Customer, such as higher insurance premiums or interest disadvantages, until the claim is settled by the insurance company.
2. Liability due to delay in delivery and impossibility within the scope of § 5 of the General Terms & Conditions shall remain unaffected.
§ 16 Contractual penalties
If the Company concludes a contract with the Customer for the delivery of services (in particular production materials) and if the Customer exceeds delivery dates agreed upon in writing, the Customer shall also be obliged to pay 1% of the order value for the first week or part thereof, a further 2% of the order value for the second week or part thereof and a further 3% to a maximum of 5% of the order value from the third week or part thereof as a penalty to the Company.
§ 17 Place of fulfilment, court of jurisdiction, applicable law, transfer of rights
1. The place of fulfilment is the corporate headquarters at 88348 Allmannsweiler, Germany. The local and internationally exclusive court of jurisdiction for delivery and payment of present and future business relations (including actions on cheques and bills of exchange), contractual and non-contractual disputes, as well as all disputes arising from a business relationship among fully qualified merchants, is the Bad Saulgau Local Court or the Ravensburg Regional Court – Chamber for Commercial Matters – depending on the jurisdictional dispute amount. This jurisdiction shall in particular also exclude any other jurisdiction provided for by law because of a personal or factual connection. The Customer is also not entitled to bring a counterclaim, offset or retention against the Company before any court other than the court that has exclusive jurisdiction. However, the Company shall be entitled in individual cases to bring an action at the Customer’s place of business or before other courts that have jurisdiction on the basis of domestic or foreign law. The same place of jurisdiction shall apply if the Customer does not have a general place of jurisdiction in Germany and moves its place of residence or business or habitual abode out of Germany after conclusion of the contract or if its place of residence or business or habitual abode is not known at the time the action is brought.
2. All business relations shall be governed exclusively by German substantive law under the exclusion of any international conventions, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).
3. The Customer is only permitted to transfer its rights under this contract to third parties with the consent of the Company. The same applies to assignments of claims against the Company.
§ 18 Severability clause
If individual provisions of the contract with the Customer or one or more provisions of these General Terms & Conditions or parts thereof are or become invalid, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision that comes as close as possible to the intended economic purpose.
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