1.Scope; Deviating conditions; Future transactions; Overriding agreements
1.1 Every contract that we, Riese & Müller GmbH, Am Alten Graben 2, 64367 Mühltal, Germany, enter into with our customers regarding our deliveries and other services, and all of our of-fers and declarations of acceptance on which those contracts are based are governed exclusively by these General Terms and Conditions ("GTC").
1.2 These GTC apply only to entrepreneurs as defined by § 14 of the German Civil Code ("BGB"). We do not acknowledge any of the customer's terms and conditions that oppose or deviate from these GTC unless we have expressly consented to them in an individual case. If the respective business relationship is ongoing, these GTC also apply to all future transactions even if they are not explicitly mentioned during those transactions.
1.3 Deviating conditions in a dealer handbook that is valid toward the customer, or in another partnership or framework agreement entered into with the customer, take precedence over these GTC. Individual agreements with the customer (including individual side agreements and amendments) and deviating information in our online dealer portal also take precedence.
2.Written form or text form; Offers; Contract formation; Product documents
2.1 Unless otherwise expressly agreed on a case-by-case basis, and unless the contract was entered into through our online dealer portal, all offers and declarations of acceptance, amendments, and other side arrangements and agreements that are made before or when the contract is entered into, must use the written or text form (letter, fax, or email, jointly referred to hereinafter as "in writing").
2.2 Our offers are nonbinding unless they are expressly designated or agreed as binding. The customer is bound by its offer for two weeks. A valid contract is formed when we accept the customer's offer in writing, but when the customer accepts our delivery at the latest (deviating from item 2.1 to that extent).
If the customer is our dealer and places an order through our online dealer portal, the purchase contract is entered into when that order is sent successfully and we issue a notice of receipt, deviating from the preceding provisions of this item 2.2. The delivery period indicated in the online dealer portal will be generated using the current merchandise inventory and does not constitute a defined delivery date. Therefore, that date is not part of our offer. We will send the anticipated delivery date to the customer in the order confirmation, which the customer will receive from us by e-mail within three business days after the order is placed.
2.3 Product documents, illustrations, drawings, information about services, weight and measurement data, especially in our catalogs and on our internet site, are drafted as precisely as possible. However, they are only approximate values and do not constitute information on the quality of the goods unless they have been expressly designated as binding. Changes in design or shape, deviations in color, and changes in the scope of delivery remain reserved during the delivery period unless the changes and deviations are considerable and unacceptable to the customer in consideration of its interests.
3.Delivery periods and deadlines; Partial deliveries; Force majeure; Delay in delivery; Deliveries from our suppliers
3.1 Unless otherwise indicated or agreed, delivery periods and deadlines are nonbinding. Delivery periods begin when the contract is entered into unless the customer is obligated to render preliminary services. In that case, the delivery period will begin when we receive the service that the customer shall render for us.
3.2 Partial deliveries are permitted to the extent the customer finds acceptable.
3.3 In cases of force majeure, or other unforeseeable events that happen to us or our suppliers, such as lawful strikes or lockouts, import or export bans, governmental actions, epidemics, pandemics, etc., that temporarily prevent us, through no fault of our own or fault attributable to us, from delivering the goods on the agreed date or during the agreed period, the delivery periods and deadlines will be extended by the duration of the disruptions of performance, including during the delay. If such hindrance prevents performance for more than four months, we may withdraw from the contract. Any statutory rights of withdrawal to which we or the customer are entitled will remain unaffected.
3.4 If we exceed a nonbinding delivery date or period by four weeks, the customer may demand that we perform the delivery. We will enter default as soon as we receive that demand unless we are not to blame that the delivery date or period was exceeded. If the customer wishes to withdraw from the contract, demand damages in lieu of performance, or both, the customer must grant us a reasonable grace period, in writing, of at least two weeks after the start of the default. No grace period need be set if this is dispensable under the statutory provisions.
3.5 If any of our suppliers fail to make a delivery or make it late, we will not enter default toward the customer, except if we are to blame for the non-delivery or late delivery. If it is established that we are not to blame for our supplies not being delivered to us, we may withdraw from the contract. Any statutory rights of withdrawal to which we or the customer are entitled will remain unaffected.
4.Prices; Price adjustment
4.1 Unless otherwise agreed – especially by being otherwise indicated in our dealer handbook and our price lists – our prices are understood as being in euros and ex works Mühltal, Ger-many, plus the costs for packaging and shipping and any statutory sales tax.
4.2 If the delivery is made in accordance with the agreement more than one month after the agreement is entered into, we may adapt the prices to any increases in wages, salaries, taxes, customs, freight costs, and material and production costs that have occurred in the meantime, at our due discretion, and will be obligated to do so if those costs decrease.
5.Delivery location; Shipping; Bearing risk; Transferring risk
The delivery location is our factory in our registered office in 64367 Mühltal, Germany. Unless otherwise agreed – especially by being otherwise indicated in the dealer handbook – we ship the goods to the customer at its expense and risk. The risk will be transferred to the customer when the goods are handed over to a forwarding agent or freight forwarder. If the shipment of the goods is delayed and we are not to blame, or if the customer fails to accept the goods on time although they were offered to the customer, the risk will be transferred to the customer as soon as the notification is made that the goods are ready to be shipped. The customer may not pick up the goods. We may transmit delivery notes exclusively through electronic means, or, if the customer is our dealer, provide them exclusively through our online dealer portal, but are not obligated to do either.
6.Terms of payment; Invoicing; Delay in payment; Deterioration in assets; Set-off and retention
6.1 Unless otherwise agreed, the purchase price and the price for packaging, shipping, and any other ancillary services is due without deduction within 14 days after the delivery and invoicing. If that period expires to no avail, the customer will enter default unless it was not to blame for the late payment. We may transmit invoices to the customer exclusively through electronic means or, if our customer is our dealer, provide them exclusively through our online dealer portal. We are not obligated to use any invoicing portal provided by the customer.
6.2 If the customer is our dealer and a SEPA direct debit for companies is agreed, we shall grant a 3% discount on the net purchase price for the merchandise. Differing from item 6.1, we normally collect the due invoiced amount from the customer's bank account, minus the discount, two (but no more than five) days after delivery and invoicing. The time limit for providing information in advance for the SEPA direct debit for companies is shortened to one day; the advance information is provided by email. If a chargeback occurs due to insufficient funds in the account, we will collect the due claim again, without granting the discount but plus the accrued bank fees and without prejudice to further claims.
6.3 During the payment delay, we may demand interest in the statutory amount, as well as the statutory lump sum damages for default. Any further claims or rights due to the late payment will remain unaffected.
6.4 If it becomes apparent after the contract has been entered into that our claim to consideration is jeopardized by the customer's inability to pay, we may refuse to provide the performance we owe until the customer renders the consideration or provides collateral. We may specify a reasonable period during which the customer shall render the consideration or provide the collateral (at the customer's discretion) pari passu in return for the service. After that period expires, we may withdraw from the contract; demand compensation for damage or expenses if the statutory requirements for doing so have been met; or both.
6.5 The customer may effect set-off only if its counterclaim is uncontested, is ready to be decided, or has been finally adjudicated. The customer may assert a right of retention only if its counterclaim is uncontested, is ready to be decided, or has been finally adjudicated, and is based on the same contract relationship.
7.Retention of title
7.1 The delivered goods will remain our property until all claims arising from this purchase agreement, and all other claims that we acquire against the customer in direct connection with the delivered goods for whatever legal reason, have been paid in full. Furthermore, the goods will remain our property until all other claims that we acquire against the customer for whatever legal reason, now or in the future (including all balance claims arising from the current account), are fulfilled. In cases of current accounts, the reserved goods serve to ensure our balance claims.
7.2 If the validity of that reservation of title is tied to special requirements in the customer's country, including procedural requirements, the customer shall ensure that those require-ments are fulfilled at its expense.
7.3 At our request, the customer shall at its expense insure the reserved goods against loss and damage in an adequate amount; the customer hereby assigns to us any claims it might have against the insurance company due to loss of or damage to the reserved goods, and we accept that assignment.
7.4 If the customer is our dealer, the customer may resell the reserved goods within the course of ordinary business. The customer may not resell the goods if it is in arrears with payment or discontinues its payments more than temporarily. As long as we own the reserved goods, we may revoke the authority to process or resell them if we have an objectively justifiable reason. The customer hereby assigns to us any claims and ancillary rights that arise from processing or combining the goods, and we accept that assignment.
7.5 The customer may collect the receivables in accordance with item 7.3 until we revoke that right. We may revoke the customer's right to collect if there is an objectively justifiable reason for doing so. We may collect the receivables ourselves, but will not do so as long as the customer complies with its payment obligations. If the customer fails to comply with its payment obligations, thereby entitling us to collect the receivables ourselves, the customer shall hand over to us at our request an index of all the goods whose title is reserved, the assigned claims, and the names and addresses of the debtors with the amounts of the claims. We may inform the debtors of the claim assignment, and the customer shall do the same on our request.
7.6 If the customer processes the goods or combines them with other goods we do not own, we will be entitled to co-ownership of the new item in the ratio of the value of the reserved goods to the other goods at the time they were processed or combined. If the customer acquires sole ownership of the new item, the customer shall grant us co-ownership of that new item in the ratio of the value of the processed or combined reserved goods to the value of the new item, and shall store that new item for us at no charge.
7.7 As long as we reserve the title to the goods, our express consent must be obtained before they may be pledged, transferred by way of security, leased, or otherwise surrendered or modified in a way that would impair our security, subject to item 7.3. The customer shall label the reserved goods as our property and, if the customer's entire warehouse inventory is transferred by way of security to anyone or any entity who is not a party to this agreement (a "nonparty"), shall inform that nonparty of our reserved property and exclude the reserved goods from that transfer by express declaration. If any nonparties take any encroaching actions, such as enforcement measures, the customer shall inform us without undue delay, give us all the information and documents we need to protect our rights, and inform the nonparty of our reserved title.
7.8 If the customer discontinues payments more than temporarily or makes a motion to initiate insolvency proceedings, or if insolvency proceedings are initiated against its assets, the customer shall at our request return any reserved goods that we still own. Furthermore, if the customer breaches the contract, including without limitation by defaulting on payment, we may demand the return of the reserved goods.
7.9 At customer's request, we shall (1) waive our right to reservation of title or (2) release collateral (at our discretion) if the customer has fulfilled all obligations connected with the reserved goods or if the realizable value from the collateral granted to us due to reservation of title, transfer by way of security, and assignment of future claims exceeds the total sum of our claims against the customer by more than 10%.
8.Notice of defects; Liability for defects
8.1 Our liability for defects is based on the legal statutes, modified by the following provisions of this item 8.
8.2 The customer shall inspect the delivered goods without undue delay after delivery. The customer shall give us written notice of obvious defects without undue delay, but no later than one week after delivery. The customer shall also give us written notice of hidden defects without undue delay, but no later than one week after the defect is discovered. If no such report is made, the goods will be deemed accepted as unobjectionable.
8.3 If the customer gives prompt notice of a defect in accordance with 8.2, the customer is enti-tled to have the defect cured or a defect-free item delivered (supplementary performance), at our discretion. Replaced parts become our property.
8.4 Except for claims to damages due to defects, and subject to item 8.5, the customer's claims due to defects in new or used goods will become time-barred in one year after the goods are delivered to the customer.
8.5 If the customer is our dealer, the following applies to the statute of limitations, except for claims to damages due to defects, differing to that extent from item 8.4:
If the dealer resells new goods to an end customer who enters into the purchase agreement for purposes that cannot be primarily allocated to his or her commercial or independent professional activity (that customer, a "Consumer"), the dealer's claims against us will become time-barred in two years after the dealer delivers the goods to the Consumer, but no more than three years after we deliver the goods to the dealer. Differing from this, if the goods are resold to the Consumer as used goods, the dealer's claims against us will become time-barred in one year after the dealer delivers the goods to the Consumer, but no more than two years after we deliver the goods to the dealer.
8.6 The customer will have no claims for defects if and to the extent that defects, damage, or expenses arise because
8.7 Liability for defects does not apply to natural wear and tear.
8.8 The customer may claim damages due to defects only insofar as our liability is not excluded or limited under item 9. Further claims for defects, or claims other than those regulated in this item 8, are excluded.
8.9 The provisions of this item 8 do not affect claims due to defects that we have fraudulently concealed or that are included in a quality guarantee.
9.1 We shall be fully liable for any damage caused by intent or gross negligence. If a material performance obligation or major secondary obligation is breached due to slight negligence, our liability will be limited to losses that are typical for this type of contract and that were foreseeable when the contract was entered into; a secondary obligation is "major" if its breach jeopardizes the attainment of the contract objective, or its fulfillment enables proper contract execution in the first place, and the customer may rely on its being complied with. We shall not be liable for any slightly negligent breach of secondary contractual obligations that are not major secondary obligations.
9.2 The preceding exclusions and limitations of liability do not apply if defects are fraudulently concealed or a quality guarantee is assumed, nor do they apply to statutory product liability rights regarding defective products or to injury to life, limb, or health. This does not entail a shift in the burden of proof to the customer's detriment.
9.3 Any limitation or exclusion of our liability also applies to the personal liability of our employees, representatives, and vicarious agents.
9.4 Except for claims arising from tortious acts, claims for damages for which liability is limited under this item 9 will become time-barred in one year after the statutory limitation period begins.
10.1 Unless otherwise agreed, the place of performance for all rights and obligations arising from the contract relationship is our registered office.
10.2 If the customer is a merchant, a legal entity under public law or a special fund under public law, or if the customer does not have a general forum in Germany, our registered office will be the exclusive forum for all disputes arising from the contract relationship. However, we may also sue the customer at any other legal place of jurisdiction.
10.3 The laws of the Federal Republic of Germany will apply in exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
10.4 Finding individual provisions of these General Terms and Conditions to be invalid, now or in the future, will not invalidate the other provisions.