I. General provisions
1. The scope of deliveries or services (hereinafter referred to as „Deliveries“) shall be governed by the written declarations of both parties. However, general terms and conditions of the purchaser (hereinafter referred to as „Purchaser“) shall only apply insofar as the supplier or service provider (hereinafter referred to as „Supplier“) has expressly agreed to them in writing. The consent applies to this one business transaction exclusively. For all further transactions these General Terms and Conditions continue to apply.
2. The Supplier reserves the unrestricted property rights and copyrights to offers, parts lists, drawings and other documents (hereinafter referred to as „Documents“). The Documents may only be made accessible to third parties with the prior written consent of the Supplier and must be returned to the Supplier without delay if the order is not placed with the Supplier.
II. Prices and terms of payment
1. Unless otherwise stated in the order confirmation, our prices are ex works including packaging. Special packaging will be charged at cost price plus the applicable value-added tax. If public charges are introduced or levied subsequently and if such charges are affecting the goods or the shipment of the goods they shall be invoiced to the Purchaser.
2. Payments are to be made to the designated account of the Supplier, free of any fees or charges.
3. If the Supplier has taken over the erection or assembly and unless otherwise agreed, the Purchaser shall bear, in addition to the agreed remuneration, all necessary ancillary costs such as travel ex-penses, costs for the transport of tools and personal luggage and allowances.
4. The Purchaser shall only be entitled to set-off rights if his counterclaims have been legally estab-lished, are undisputed or acknowledged by us. If the Purchaser is a commercial Purchaser, he shall only be entitled to exercise a right of retention or a right to refuse performance if the counterclaims are on the basis of the same contractual relationship.
5.If we are obliged to make advance payment and if, after conclusion of the contract, circumstances become known to us according to which our payment claim is endangered due to the Purchaser‘s lack of ability to pay, we may, at our discretion, demand either securities within a reasonable period or payment at delivery. If the Purchaser does not comply with this, we shall be entitled to rescind the contract subject to further statutory rights.
III. Cancellation costs
If the Purchaser cancels an order without actually having a contractual or legal right of rescission, we can claim 30% of the sales price for the costs incurred by processing the order and for lost profit, irrespective of the possibility of asserting a higher actual loss. The Purchaser reserves the right to prove a lesser damage.
IV. Retention of title
1. The items of the Deliveries (hereinafter referred to as Reserved Goods) shall remain the property of the Supplier until all claims to which the Supplier is entitled against the Purchaser arising from the business relationship have been satisfied.
2. During the existence of the retention of title, the Purchaser is prohibited from pledging or assigning as security. Resale is only permitted to resellers in the ordinary course of business and only on the condition that the reseller receives payment from his purchaser or makes the reservation that owner-ship shall not pass to the Purchaser until he has fulfilled his payment obligations.
3. a) If the Purchaser resells goods subject to retention of title, he hereby assigns his future claims from the resale against his purchaser with all ancillary rights - including any balance claims - to the Supplier by way of security, without requiring a special declaration at a later date. If the reserved goods are resold together with other items without an individual price having been agreed for the reserved goods, the Purchaser shall assign to the Supplier that part of the total price claim which corresponds to the price of the reserved goods invoiced by the Supplier with priority over the remaining claim.
b) If a legitimate interest is substantiated, the Purchaser must provide the supplier with the information required to assert his rights against the Purchaser and hand over the necessary documents.
c) Until revoked, the Purchaser is entitled to include the assigned claim from the resale. If there is an important reason, in particular in case of default of payment, suspension of payments, opening of insolvency proceedings, protest of a bill of exchange or well-founded indications for over-indebtedness or impending insolvency of the purchaser, the supplier is entitled to revoke the purchaser‘s right of inclusion. In addition, the Supplier may, after prior warning and subject to a reasonable period of no-tice, may disclose the assignment of the securities, utilize the assigned claims, and request disclosure of the assignment of the securities.
4. a) If the purchaser is permitted to process the reserved goods or to mingle them or combine them with other items. The processing, mingling or combination (hereinafter referred to as „Processing“) shall be carried out on behalf of the Supplier. The Purchaser shall care for the new item for the Supplier with the diligence of a prudent businessman. The new item shall be deemed to be Reserved Goods.
b) In the event of Processing with other items not belonging to the Supplier, the Supplier shall be entitled to co-ownership of the new item in the amount of the proportion resulting from the ratio of the value of the processed, mingled or combined (hereinafter referred to as „processed“) reserved goods to the value of the remaining processed goods at the time of processing. If the Purchaser acquires sole ownership of the new item, the Supplier and the Purchaser agree that the Purchaser shall grant the Supplier co-ownership of the new item created by Processing in the ratio of the value of the processed reserved goods to the other processed goods at the time of Processing.
c) In the event that the new item is sold, the Purchaser hereby assigns to the Purchaser his claim arising from the resale with all ancillary rights to the supplier by way of assignment as security, without any further special declarations being required. However, the assignment shall only apply to the amount corresponding to the value of the processed goods subject to a retention of title invoiced by the Supplier. In as far as a claim is being assigned to the Supplier it shall be satisfied with priority.
No. 3.c) shall apply with regard to the collection authorization and the precondition for its revocation.
d) If the Purchaser combines the reserved goods with real estate or movable property, he shall also assign his claim, which he is entitled to as remuneration for the combination, with all ancillary rights to the amount of the ratio of the value of the combined reserved goods to the other combined goods at the time of the combination to the supplier as security without requiring any further special explanation.
5. In the event of an attachment, seizure or confiscation another disposition or interventions by third parties, the Purchaser shall pay the Supplier without delay. 6. In the event of breaches of duty by the Purchaser, in particular if a default in payment occurs, the Supplier shall be entitled to rescind the contract and take back the Retained Goods after unsuccessful expiry of a reasonable period of grace set for the Purchaser; the statutory provisions on the dispensability of setting a period of grace shall remain unaffected. The Purchaser is obliged to surrender the goods.
V. Time limits for deliveries and delay
1. The observance of time limits for deliveries requires the timely receipt of all documents to be sup-plied by the Purchaser, necessary permits and releases, drawings in particular and the agreed terms of payment and other obligations by the Purchaser to be observed. If these conditions are not met in time, time limits shall extend accordingly. This, however, shall not apply if the Supplier is to be held ac-countable for the delay. Unless otherwise agreed or arising from the contract or the contractual relationship, the delivery period stated by us shall be non-binding. Partial and excess deliveries, insofar as they are reasonable for the Purchaser, are permissible without prior notice. In the case of delivery ex works, the delivery period shall be deemed to have been observed upon written notification of readiness for delivery.
2. Delays in delivery due to force majeure or due to unforeseen circumstances not attributable to us - such as operational disruptions, strikes, lockouts, difficulties in procuring raw materials, official orders, etc. - shall not constitute a delay. An agreed delivery period shall be deemed to be extended by the duration of the hindrance. If the Supplier is in default, the Purchaser shall grant a reasonable grace period. And, if this period has lapsed, the Purchaser may - insofar as he can credibly demonstrate that he has suffered a loss as a result – demand compensation for each completed week of delay of 0.5 % in total but not more than 5 % of the price of that part of the supplies which could not be used as intended due to the delay.
3. Both, claims for damages by the Purchaser for delay in delivery and claims for damages in lieu of performance which exceed the limits specified in No. 2 shall be excluded in all cases of delayed delivery, even after expiry of a delivery deadline set for the Supplier.
VI. Delivery, Shipping and Transfer of Risk, Acceptance
1. Even in the case of carriage paid deliveries the risk shall pass to the Purchaser as follows:
a) In the case of deliveries which are not to be installed or assembled, when they have been dis-patched or collected. At the Purchaser‘s request and expense, deliveries shall be insured against the usual transport risks.
b) In the case of deliveries which are to be installed or assembled, on the day of acceptance into own operation or, if agreed, after faultless trial operation.
2. If dispatch, delivery, commencement, performance of installation or assembly, acceptance at the Purchaser‘s own premises or trial operation is delayed for reasons for which the Purchaser is responsible or if the Purchaser is in default of acceptance for other reasons, the risk shall pass to the Purchaser.
3. The Purchaser may not refuse to accept deliveries due to insignificant defects. The Purchaser is not permitted to return the goods without prior written notice and our express consent.
4. The products, software, technologies (hereinafter referred to as "goods") supplied by us may be subject to export controls, economic sanctions or other provisions of foreign trade law which may prohibit or restrict delivery. Insofar as the consent or approval of an authority is required for a delivery, the validity of the relevant contract is subject to the condition precedent that the consent or approval is granted. If, after conclusion of the contract, the consent or approval of an authority is required and this is not granted or if the performance of the contract otherwise becomes impossible due to provisions of foreign trade law (in particular due to the imposition of embargoes or sanctions), we may withdraw from the contract; claims for compensation by the Purchaser are excluded.
Insofar as it is necessary to ensure compliance with the provisions of foreign trade law, to apply for any necessary export control license and to enable the competent authorities to carry out export control checks, the Purchaser is obliged to provide us with all necessary information and documents in good time, completely and correctly. This may include, in particular, details of the end user and the issue and provision of an end-user certificate.
The goods delivered to the Purchaser are generally intended to remain with the Purchaser. If the Purchaser resells the delivered goods or otherwise transfers them to third parties, the Purchaser must ensure on its own responsibility that all applicable national or international regulations of export control and foreign trade law are complied with; in particular, the goods may not be transferred to companies or persons that are subject to an embargo or sanctions of the Federal Republic of Germany, the European Union or the United States.
VII. Material Defects
1. Warranty rights (claims for defects) of the commercial Purchaser presuppose an inspection of the delivery immediately after receipt. In case of any visible defects we must be notified in writing immediately. In case of hidden defects we must be notified in writing immediately after their discovery, specifying the defect (art. 377 German Commercial Code). If the Purchaser is not a commercial Purchaser, he must notify us in writing of any obvious defects within 14 days of their discovery.
2. Claims for defects cannot be asserted if there are only insignificant deviations from the quality or only an insignificant impairment of usability. When ordering custom-made products, variant products and articles not kept in stock, it should be noted that production-related quantity tolerances of +/- 10 % may occur. 3. All those deliveries or services which show a material defect within the limitation period shall be repaired, replaced or redelivered free of charge by us - at our discretion - provided that the cause of the defect already existed at the time of transfer of risk.
4. Payments by the Purchaser in the event of notices of defects may only be withheld to an extent that is in reasonable proportion to the defects that have occurred. However, payments may only be withheld if the condition of Section II.4 above is fulfilled.
5. If the Purchaser wrongfully notifies us of the existence of a defect for reasons for which we cannot be held accountable we shall be entitled to charge the Purchaser for the reasonable expenses incurred by us for the purpose identifying or remedying the defect.
6. Claims of the Purchaser due to expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses are increased by a subsequent transfer of the delivered item to a location other than the original place of delivery, unless such a relocation is presupposed under the contract. We are entitled to charge the Purchaser with additional costs, accordingly. This shall also apply to the Purchaser‘s claims for reimbursement of expenses pursuant to art. 445 a German Civil Code (recourse of the Seller) provided that the last contractual arrangement in the supply chain is not a sale of consumer goods.
7. If the Purchaser has installed the goods which were defective at the time of transfer of risk in another item in accordance with their type and intended use or has attached them to another item, he may - in accordance with art. 439 para. 2 German Civil Code - demand reimbursement of expenses from us for the removal of the defective goods and the installation, assemblance or attachment of the repaired or subsequently delivered defect-free goods (so-called removal and installation costs) only in accord-ance with the following provisions.
8. Dismantling and installation costs are required within the meaning of art. 439 para. 3 German Civil Code in as far as they relate to the removing or the attachment of identical products, which have been incurred on the basis of customary market conditions and which are proven to us by the Purchaser at least in text form by submitting suitable documents. The Purchaser is not entitled to demand an advance payment for dismantling and installation costs. Without our consent the Purchaser is not permitted to set off claims for reimbursement of expenses for dismantling and installation costs unilaterally against purchase price claims or other payment claims. Claims of the Purchaser in excessing the necessary dismantling and installation costs, in particular costs for consequential damage caused by defects such as extra costs for replacement purchases, shall not be reimbursed within the framework of subsequent performance in accordance with art. 439 Para. 3 German Civil Code, since such costs do not constitute dismantling and installation costs.
9. We shall be entitled to refuse reimbursement of expenses if the asserted claim within the meaning of art. 439 para. 3 German Civil Code is disproportionate in individual cases, more specifically, in relation to the purchase price of the goods in defect-free condition while the significance of the non-conformity with the contract has to be taken into account. Disproportionality shall in any case be assumed if the expenses claimed exceed a value of 150 % of the purchase price of the goods in a defect-free condition or 200 % of the defectrelated depreciation of the goods.
10. Claims of the Purchaser due to expenses necessary for the purpose of subsequent performance are excluded insofar as the expenses increase because the item of the delivery was subsequently taken to a location other than the Purchaser‘s registered seat.
11. The Purchaser shall inform us immediately about a warranty case that has occurred with one of the contractual partners. The Purchaser‘s right of recourse against us as the Supplier pursuant to art. 445 a German Civil Code (recourse of the seller) shall only exist to the extent that the Purchaser has not entered into any agreements with his Supplier that go beyond the statutory warranty claims.
12. In the event of unjustified notices of defects, the Purchaser shall reimburse us for the costs thereby incurred. However, this only applies if the Purchaser has recognized or negligently not recognized that a defect is not present, but the cause for the appearance complained of by him is within the realm of his responsibility.
13. Claims for material defects of the commercial Purchaser shall become statute-barred after 24 months from transfer of risk. If subsequent performance is required due to a defect, the limitation period until subsequent performance shall be deemed to be suspended but not to start over. This shall not apply if applicable law provides for longer periods pursuant to art. 438 para. 1 no. 2 German Civil Code (buildings and goods for buildings), art. 428 para. 3 German Civil Code (fraudulent concealment), art. 479 para. 1 German Civil Code (right of recourse) and art. 634a para. 1 no. 2 German Civil Code (construction defects).
14. Before the Purchaser can assert further claims or rights (withdrawal, reduction, damages, reim-bursement of expenses) we have to be put in a position first to remedy the defect within a reasonable period of time, unless we have given a guarantee to the contrary. Claims for damages due to defects are subject to following section VIII. The assertion of further claims and rights against us or our vicarious agents due to a material defect is excluded.
15. Shipment shall be effected for the account and risk of the Purchaser.
VIII. Claims for damages and liability for other reasons
The assertion of claims for damages due to defects of our performance owed to the Purchaser is excluded, unless we have caused the defects intentionally, grossly negligently or by negligent breach of duty. The assertion of consequential harm caused by a defect, in particular loss of profit, due to such defects shall be excluded insofar as we have caused the defect by slight negligence or through no fault of our own. The limitation of liability shall also apply to the Purchaser‘s claims for reimbursement of expenses due to defects.
IX. Security and industrial property rights
1.Our goods comply with the basic safety requirements of the EC Machinery Directive and the state of the art. Repairs and maintenance work must be carried out by qualified personnel only. If changes are made to the delivery item without our consent, the manufacturer‘s declaration loses its validity and the originator is the manufacturer within the meaning of the EC Machinery Directive.
2. We do not assume any liability for deliveries to areas outside the Federal Republic of Germany if our products infringe the industrial property rights of third parties.
X. Place of jurisdiction and applicable law
1. If the Purchaser is a commercial purchaser, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of ruck Ventilatoren GmbH. However, the Supplier shall also be entitled to sue at the Purchaser‘s domicile.
2.The entire legal relationship in connection with this contract shall be governed by German substantive law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XI. Binding nature of the contract
The contract remains binding in its remaining parts even if individual provisions turn out to be legally ineffective. The same shall apply if there is a loophole in the contract. In place of the legal invalidity or the loophole, an appropriate provision shall be made which comes as close as possible to the will of both parties to the contract and the purpose of the contract.
Status 26.08.2021