General Sales Conditions of räder GmbH
Section 1 Scope, Form
(1) These General Terms and Conditions of Sale (GTC) shall apply to all our business relationships with our customers ("Buyers"). The GTC shall only apply if the Buyer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law, or a public special fund.
(2) Unless stipulated otherwise, the GTC, as amended at the time of the Buyer's purchase order or, at any rate, in the version last provided to the Buyer, shall also apply as a framework agreement for similar future agreements without us having to again refer to them in each particular case.
(3) Our GTC shall apply exclusively. Differing, conflicting or additional General Terms and Conditions of the Buyer may have only become part of the contract if and insofar as we have expressly consented to their validity in writing. This consent requirement shall apply to every situation, for example even if the Buyer refers to its GTC within the scope of its order and we do not expressly object to this reference.
(4) Any legally relevant declarations and notifications by the Buyer with regard to the contract (e.g. the communication of a deadline, a notification of defects, a withdrawal or price reduction) shall be made in writing. The term written form within the meaning of these GTC shall include all communication made in writing or in text form (e.g. letter, e-mail, fax).This shall not affect any statutory formal requirements or proof, in particular with regard to the identification of the person making the declaration.
Section 2 Conclusion of Contract
(1) Our offers are subject to change and non-binding. This shall apply as well if we have provided the Buyer with catalogs, technical documentation, other product descriptions or documents - including in electronic form.
(2) A purchase order for the goods by the Buyer is deemed to be a binding contractual offer. Unless indicated otherwise in the purchase order, we shall be entitled to accept this contractual offer within 10 days of our receipt.
(3) Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.
Section 3 Delivery Time and Default in Delivery
(1) The delivery time shall be agreed upon individually or specified by us upon acceptance of the order. If this is not the case, the delivery time is approximately four weeks from the conclusion of the contract. We shall have the right to make partial deliveries to a reasonable extent. We may cancel backorders under a value of goods of EUR 30.00.
(2) If we are unable to meet binding delivery times for reasons for which we are not responsible (non-availability of performance), we shall inform the Buyer thereof without delay and at the same time notify the Buyer of the expected new delivery time. If performance is not possible within the new delivery time, we shall be entitled to withdraw from the contract in whole or in part. We shall immediately refund any consideration already paid by the Buyer. An inability of performance exists, for example, in the event of a non-timely self-delivery by our supplier, if we have concluded a congruent covering transaction, in the event of other disruptions in the supply chain, for example due to force majeure, in the event of COVID effects or if we do not have a procurement requirement in the individual case.
(3) The occurrence of the default in delivery will be determined based on the statutory provisions. In any case, however, a reminder by the Customer will be required.
(4) The rights of the Buyer pursuant to clause 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to an impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
Section 4 Delivery, Transfer of Risk, Default of Acceptance
(1) Delivery shall be made ex warehouse, which is also the place of performance for the delivery and subsequent performance, if any. Upon the Buyer's request and expense, the goods can be shipped to a different destination (contract of sale involving the carriage of goods). Unless stipulated otherwise, we shall be entitled to determine the type of shipment (in particular, transport company, shipping route, packaging) itself.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest with the handover. In the event of a contract of sale involving the carriage of goods, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the haulier, carrier or other person or company tasked with executing shipment at the time the goods are handed over to them. If acceptance has been agreed, this shall be decisive for the transfer of risk. In other respects as well, the statutory provisions of work contract law apply accordingly for any acceptance that was agreed upon. Default of acceptance by the Buyer is deemed to be equivalent to handover or acceptance.
(3) If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the resulting damages including additional expenses (e.g. storage costs). In this case, we shall charge a lump-sum compensation of 0.5% of the net value of the goods per calendar day, starting with the delivery date or - in the absence of a delivery date - with the notification that the goods are ready for shipment. The right to substantiate higher damages and our statutory claims (e.g. reimbursement of additional expenses, compensation, termination) shall remain unaffected; the lump sum shall, however, be offset against any further monetary claims. The Buyer shall have the right to prove that no damages or only substantially lower damages were incurred.
Section 5 Prices and Payment Terms
(1) Unless otherwise agreed upon in individual cases, our current prices at the time of the conclusion of the contract shall apply, ex warehouse, plus statutory VAT and a packaging fee of 1.5% of the net sales price.
(2) In the case of a contract of sale involving the carriage of goods (clause 4 para. 1), the Buyer shall bear the transport costs ex warehouse and the costs of transport insurance requested by the Buyer, if any. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
(3) For orders below EUR 100, we charge a minimum quantity surcharge of EUR 20.00. New customers in Germany are required to place an initial minimum order in the amount of EUR 2,000.00. For shipping within Germany, a flat-rate transport fee of EUR 7.95 shall be deemed as having been agreed upon. Delivery within Germany is carriage paid as of a net order value of EUR 1,000.00. Shipment to foreign countries is carried out on request and charged according to expenditure. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
(4) We do not take back any transport packaging or other type of packaging in accordance with the German Packaging Ordinance. It becomes the property of the Buyer. This shall not apply to pallets.
(5) The purchase price shall be due and payable within 30 days from the date of invoice and delivery or acceptance of the goods. We shall, however, be entitled at any time, including within the framework of an ongoing business relationship, to make any delivery in whole or in part only against advance payment. We shall declare any such reservation at the latest when the order confirmation is provided. We grant a 3% discount for payment within 8 days.
(6) Upon expiry of the aforementioned payment deadline, the Buyer shall be in default. During the period of default, the purchase price shall be subject to interest at the applicable statutory default interest rate. We reserve the right to assert further damages caused by delay. With respect to merchants, our claim to the commercial due date interest (Section 353 of the German Commercial Code (HGB)) shall remain unaffected.
(7) The Buyer shall only be entitled to set-off or retention rights to the extent that its claim has been legally established or is undisputed.
(8) If the Buyer culpably defaults on its payment, we shall be entitled to demand the payment of the entire remaining purchase price. In addition, we shall be entitled at any time to demand appropriate security for any outstanding claims. If the buyer does not provide the requested security, we may refuse performance or withdraw from the contract. We shall also be entitled to the same right if, after the conclusion of the contract, it becomes apparent (e.g. because a request for the initiation of insolvency proceedings was filed) that our claim to the purchase price is jeopardized by the Buyer's inability to pay.
(9) A rescission or cancellation of an order is only possible with our consent, except in cases permitted by law. Unless agreed upon otherwise, the cancellation fee for a disengagement shall amount to 10% of the invoiced item affected by the cancellation up to 30 days after the order confirmation, 20% of the invoiced item up to 60 days after the order confirmation and 30% of the invoiced item up to 90 days after the order confirmation. The Buyer shall be entitled to prove that we did not incur any or lower damages.
Section 6 Retention of Title
(1) Until all of our current and future claims under the purchase contract and an ongoing business relationship (secured claims) have been paid in full, we shall retain the title to the goods sold.
(2) Until the secured claims are satisfied in full, the Buyer may not pledge the goods subject to retention of title to any third parties or assign said goods as security. The Buyer must inform us immediately in writing if an application to open insolvency proceedings is filed or if third parties have access to the goods that belong to us (e.g. seizures).
Section 7 Claims for Defects of the Buyer
(1) The basis of our liability for defects is the agreement reached on the quality and the presumed use of the goods (including accessories and instructions).
(2) All product descriptions and manufacturer's specifications which are the subject of the individual contract or which were made public by us (in particular in catalogs or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on quality in this sense. Illustrations, drawings, dimensions, quality specifications, color shades, etc. are approximate values customary in the industry. We reserve the right to make customary deviations, technical changes and adjustments with regard to shape, color and/or quality if such changes and deviations are reasonable in consideration of the Buyer's interest.
(3) In the case of goods with digital elements or other digital content, we shall owe the provision and, if applicable, updates of the digital content only insofar as this is expressly stated in an agreement on quality pursuant to clause 2. In this respect, we accept no liability for public statements made by the manufacturer or other third parties.
(4) The customer shall immediately inspect the goods for defects. If the Buyer fails to properly inspect the goods and/or to immediately notify us of any defects, we shall not be liable for said defects.
(5) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (remediation) or by delivering a defect-free item (replacement). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
Section 8 Other Liability
Insofar as nothing to the contrary is stated in these GTC or applies due to indispensable statutory provisions (e.g. the Product Liability Act), we shall be liable for the reimbursement of expenses and damages - irrespective of the legal grounds - within the framework of fault-based liability in the event of intent or gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g.diligence in our own affairs; insignificant breach of duty), only
a) for damages resulting from an injury to life, body or health,
b) for damages resulting from the breach of an essential contractual obligation (an obligation, the fulfillment of which allows for the proper execution of the contract in the first place and on the fulfillment of which the contractual partner regularly relies and may rely on); in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damages.
Section 9 Limitation
(1) Notwithstanding Section 438 para. 1 no. 3 BGB, the general statute of limitations for claims relating to defects of quality or title shall be three years from the transfer of risk. If acceptance has been agreed, the limitation period begins with the acceptance.
(2) If the goods are a building structure or an item that has been used for a building structure in accordance with its customary use and caused its defectiveness (building material), the limitation period shall be five years from delivery in accordance with the statutory provision (Section 438 para. 1 no. 2 BGB). Other special statutory provisions governing the statute of limitations shall remain unaffected as well (in particular Section 438 para. 1 no. 1, para. 3 and Sections 444 and 445b BGB).
(3) The above limitation periods under sales law also apply to contractual and non-contractual claims for damages on the part of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (Section 195, 199 BGB) would lead to a shorter limitation period in the particular case. Claims for damages of the Buyer pursuant to Section 8 in the event of intent, gross negligence and injury to life, body or health as well as under the German Product Liability Act shall become time-barred exclusively according to the statutory limitation periods.
Section 10 Property Rights and Confidentiality
(1) We shall be entitled to all rights to the goods in question, associated documents, advertising materials or other business documents and rights pertaining to the Buyer. This applies in particular to our trademarks, copyrights and technical property rights. Our trademarks, other marks, images and designs may only be used for the purpose of selling the products in compliance with our instructions and without having been altered. We have the right to prohibit their use at any time, unless a legal or contractual justification applies.
(2) The Buyer shall respect Räder's industrial property rights and know-how and shall neither challenge them nor allow them to be challenged by third parties or support third parties in challenging them in any form.
(3) The respective contractual terms and details of the cooperation, in particular business secrets, shall be treated confidentially. The Buyer shall keep confidential Räder's business and trade secrets which have been entrusted to the Buyer or have become known to the Buyer as such during its activities for the company, even after the termination of the contractual relationship.
(4) The Buyer must return to Räder without undue delay any documents relating to confidential business transactions that were entrusted to the Buyer after they have been used in accordance with the order, and in any event no later than upon termination of the contractual relationship.
(5) The Buyer must ensure that the aforementioned obligations are also adhered to by its employees, representatives or other participants.
Section 11 Resale Specifications
(1) With regard to any distribution, the Buyer ("Distributor") must comply with the quality standards and the sales concept of Räder GmbH. The Distributor shall be responsible in this regard. If reselling to dealers, the Distributor must likewise require them to comply with the following sales specifications.
(2) The Distributor shall promote the sales of our products. The Distributor shall do its utmost to ensure a high quality product presentation and professional promotion.
(3) In this regard the Distributor shall be regarded a free and independent contractor, who is acting in its own name and on its own account. The remuneration due to the Distributor is the dealer discount as listed in the respective order confirmation or price list. The Distributor shall not be entitled to any territory protection. In particular, Räder reserves the right to sell the products directly without any limitation. No compensation is granted to the Distributor in this regard.
(4) The Distributor shall create attractive and professional product presentations as well as online and offline advertisements, taking into account the look and feel of the Räder design.
(5) Insofar as products were expressly obtained for offline distribution, they may not be distributed online. The same shall apply vice-versa. Online sales and the online advertising of Räder products are only permitted insofar as they constitute a resale via the company's own online presence. Online sales via listing platforms (e. g. Amazon, Ebay, Alibaba, Rakuten, Etsy, Hood, or the like) is expressly prohibited and only permitted if approved by Räder in writing.
(7) Distributor shall inform Räder without undue delay regarding any non-permitted use of the brand names and other protected marks by third parties. This shall also apply with regard to all infringements of competition law and all breaches of industrial property rights.
Section 12 Governing Law and Place of Jurisdiction
(1) The law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Sales Convention, shall apply to these GTC and the contractual relationship between us and the Buyer.
(2) The exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office in Bochum. However, we are also entitled to bring an action at the place of performance of the delivery obligation under these GTC or an over-riding individual agreement or at the general jurisdiction of the Buyer. Overriding statutory provisions, especially concerning exclusive jurisdiction, shall remain unaffected.