©RIEBSAMEN Maschinenbau GmbH & Co. KG - Bierstetter Strasse 1 - D 88348 Allmannsweiler
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Riebsamen Maschinenbau
Maschinenbau GmbH&Co.KG
 
 

 

Terms amd Conditions

General Terms of Payment and Delivery
of Maschinenbau Riebsamen GmbH & Co. KG
hereinafter referred to as the “Company” -  in business transactions with businesspersons- hereinafter referred to as the “Customer”.

§ 1 Scope

1. The following provisions apply to all the Company’s business relations and all the Company’s performance with respect to businesspersons pursuant to §§ 310, 14 German Civil Code (BGB), in particular to offers relating to deliveries/services and advisory services. 

The following provisions will also apply to such business relations even if this is not expressly agreed in future. 

2. The following provisions apply exclusively; differing conditions of purchase and other stipulations on the Customer’s part will not form part of the contract and are herewith expressly rejected.

§ 2 Conclusion of Contract

1. The Company’s offers are without engagement.

2. Unless otherwise agreed, the Company accepts no liability for the accuracy of the content of brochures, price lists, sketches, drawings, Internet pages, advertising mails and other business documents; the right to make changes in this respect is reserved; cf. also § 3.

3. An order is deemed to be accepted upon delivery/provision of services or by receipt of the order confirmation. Confirmations or deviating agreements must be given in writing.

§ 3 Technical Information as to Characteristics

1. Unless otherwise agreed, information in catalogues, sales documents, sketches, drawings, specimens, samples etc. is only an approximate description of condition, in particular of quality and dimensions; deviations are possible. All the Company’s specifications are descriptions of performance only and they do not constitute warranties unless expressly otherwise agreed when the contract is concluded.

The Company accepts responsibility for technical information given by third-party manufacturers only in case of special agreement. 

2. The Company’s application-specific advice given verbally and in writing is not binding – including in respect of any third-party property rights – and does not exempt the Customer from its duty to examine the Company’s products as to their suitability for the processes and purposes envisaged. 

§ 4 Changes to Orders
Changes to orders before or after receipt of the order confirmation can be taken into account by the Company only if the Customer bears the additional cost incurred as a result and an adequate extension of the delivery term is allowed.
§ 5 Delivery, Provision

1. Deliveries are effected net (in particular without delivery costs) ex-works D-88348 Allmannsweiler, the Company’s place of business. The risk passes to the Customer upon transfer of the goods to the carrier. The Customer bears the cost of dispatch from the Company’s place of business in D- 88348 Allmannsweiler.

2. Binding dates for provision or delivery and non-binding periods for provision or delivery have to be stated in writing. Periods for provision or delivery commence upon contract conclusion.

Seven days after a non-binding period for delivery or provision has been exceeded, the Customer can call upon the Company to provide or supply the goods. The Company is entitled to supply the ordered goods to the Customer within another 7 days.

In the event of default, the Company is liable according to the statutory provisions in case of intent or gross negligence on the part of a body of the Company, a representative or persons/entities engaged by the Company for fulfilling the Company’s obligations.

In cases of slight negligence, the Company’s liability is limited to the foreseeable damage or loss typical of the contract unless it involves injury to life, body or health or the breach of fundamental contractual duties (these being duties whose fulfilment is essential for proper performance of the contract and whose observance the contracting party may rely on). As for the rest, the Company’s liability due to delay in performance for damages in addition to performance is limited to maximally 15% of the value of the performance. If the Customer additionally wishes to rescind the contract and/or claim damages in lieu of performance, after the expiry of the 7-day term pursuant to § 5, No. 2, clause 3 the Customer has to set the Company a reasonable period of another 7 days for delivery and provision. The Company’s liability for damages in lieu of performance is limited to maximally 15% of the value of the performance. The Company is not liable if the damage or loss would also have occurred upon timely provision.

3. The proviso of the Company receiving correct and timely supplies applies; the Company does not assume any procurement risk. As for the rest, an obstacle for which the Company is responsible does not entitle the Company to rescission.

The Company will inform the Customer without delay about the non-availability of the goods for delivery and, in the event of rescission, the Customer will be given the respective consideration without delay. 

4. If delivery/performance is impossible, the Company is liable according to the statutory provisions in cases of intent or gross negligence on the part of a body of the Company, a representative or persons/entities engaged by the Company for fulfilling the Company’s obligations.

In cases of slight negligence, however, the Company’s liability is limited to the foreseeable damage or loss typical of the contract unless it involves injury to life, body or health or the breach of fundamental contractual duties (these being duties whose fulfilment is essential for proper performance of the contract and whose observance the contracting party may rely on). As for the rest, the Company’s liability due to impossibility is limited to damages and compensation for expenditure incurred in vain totalling maximally 15% of the delivery/performance. Any further claims by the Customer due to impossibility of delivery/performance are barred. The Company is not liable if the damage or loss would also have occurred upon timely provision.

This is without prejudice to the Customer’s right to rescission under § 7.

5. In cases of force majeure (in particular in case of armed conflict or natural disasters) or other operational disruptions which occur at the Company or its suppliers and prevent the Company or its representatives from supply or provision by the agreed date or within the agreed term, the Company is entitled to defer the provision/delivery or performance for the duration of the impediment and - in the event of final impossibility of delivery/performance due to the said cases of force majeure - to rescind the contract.

If respective disruptions result in a delay in delivery or provision of more than 2 months, the contracting parties may rescind the contract. This is without prejudice to other rights of rescission. The Company has to inform the Customer about the non-availability of the performance promptly after the expiry of the 2-month term and, in case of rescission, to give the Customer the consideration promptly thereafter.

§ 6 Obligations of Delivery and Taking Delivery

1. If call-off orders do not include any agreement on delivery dates, batch sizes and periods for provision, the Company is entitled - unless agreed otherwise in writing – to call for a binding agreement on these points no later than 3 months after the order has been confirmed. 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 rescind the contract and claim damages in lieu of performance.

2. Goods reported ready for dispatch have to be called off without delay after expiry of the delivery period/date; if this is not done the Company is entitled to dispatch them at the Customer’s expense or to store them at the Customer’s cost and risk at the Company’s option and discretion. The same applies if dispatch cannot be effected for reasons for which the Company is not responsible.

3. Insofar as the Customer calls for necessary tests to the performed by the Company, their nature and scope are to be agreed. If this is not done, at the latest when the contract is concluded, the cost incurred is always for the Customer’s account.

§ 7 Right of Rescission
The Customer is entitled to rescind the contract under the statutory regulations only if the Company is responsible for a breach of duty; in case of defects, however, the provisions of § 13 of the General Terms and Conditions and the statutory requirements stand. In case of breach of duty, the Customer is obliged to declare within a reasonable period following the Company’s request whether it rescinds the contract due to the breach of duty or insists on performance.
§ 8 Taking Delivery

1. The Customer is obliged to take delivery of the goods.

2. In the event that a non-binding period for provision was agreed, the Customer is obliged to take delivery at the Company’s place of business in D-88348 Allmannsweiler within 7 days from receipt of the notification of provision. If delivery is not taken, the Company is entitled to avail itself of its statutory rights. 

3. If delivery is not taken, the Company is obliged to set a term of another 7 days for the Customer to do so. After that term has expired, the Company is entitled to rescind the contract and claim damages from the Customer.

If the Company claims damages on a flat-rate basis (except for a delay charge § 7 No. 4), they are maximally 15% of the value of the performance. The Customer is entitled to furnish proof that the Company incurred no loss or substantially less loss. The Company is entitled to furnish proof that higher loss was incurred.   

4. If dispatch of the consignment is deferred at the Customer’s request by more than 2 weeks after the agreed delivery date or, if an exact delivery date was not agreed, after the Company’s notification of readiness for dispatch, the Company is entitled to make a flat-rate delay charge for every month (pro rata temporis, as the case may be) amounting to 0.5% of the value of the performance, but maximally 5% of the value of the performance. The Customer is entitled to furnish proof that the Company incurred no loss or substantially less loss. The Company is entitled to furnish proof that higher loss was incurred.

§ 9 Passing of Risk, Dispatch

The place of performance is the Company’s place of business in D-88348 Allmannsweiler.

If the Company dispatches the goods at the Customer’s request to a place other than the place of performance, the risk passes to the Customer as soon as the Company has consigned the      goods to the forwarder, carrier or to another person or entity designated for the carriage of the goods.

§ 10 Prices
Unless otherwise agreed, the prices are net ex works of the Company in Allmannsweiler. The prices relate generally to the value of the performance and are always without engagement; the minimum price is however deemed to be the price indicated. In particular, packaging, postage and VAT are charged additionally.
§ 11 Terms of Payment, Default

1. In placing the order, the Customer confirms his ability to pay and credit worthiness.

2. Payment for the Company’s deliveries and services must be made net (without deduction) within 14 days from presentation of invoice. 

Payment shall be deemed to be effected in case of cheques when credited to the Company’s account without reservation, the Company being under obligation to cash the cheque immediately after receipt; in case of cash payment upon receipt of the money or in case of direct debit/transfer upon credit entry without reservation.  

3. In the event of defects the Customer has no right of retention unless the delivery/performance is obviously defective or the Customer is obviously entitled to refuse acceptance of the delivery/performance. Further, under the same legal relationship the Customer has a right of retention insofar as the counterclaim has become res judicata, uncontested or contested, and is ready for decision. In such a case the Customer is, however, entitled to retention only to the extent that the withheld sum is commensurate with the defects and with the anticipated cost of supplementary performance (in particular, rectification of defects). The Customer is not entitled to assert claims and rights based on defects if the Customer has failed to make payments due and the amount due is commensurate with the value of the performance, albeit defective.

4. In the event of default in payment, the Company is entitled to charge interest on arrears in the amount of 10 percentage points above the base interest rate (§ 247 German Civil Code (BGB)).

The Customer is entitled to furnish proof that the Company incurred no loss or substantially less loss than 10 percentage points above the base interest rate (§ 247 German Civil Code (BGB)). The Company is entitled to furnish proof that higher loss was incurred. The foregoing provision is without prejudice to the statutory interest rate.

5. If the Customer is in arrears or in case of impending cessation of payments by the Customer or comparable financial conditions relating to the Customer, all outstanding debts and bills of exchange will become due immediately. In the event of immediate maturity, the Company is entitled to recover possession of performance already supplied by way of security, without the Customer’s obligation to pay being discharged as a result. In the event of immediate maturity, the Company is entitled to make delivery or performance not yet effected subject to advance payment or the provision of security. 

6. The Company is entitled to rescind the contract or parts of the contract by written declaration if the Customer becomes unable to pay, overindebted, ceases payments or files an insolvency petition. The Customer has to notify the Company immediately of the onset of insolvency, overindebtedness or cessation of payment. If the Customer fails to do so, the Customer is obliged to pay the Company the flat-rate amount of 5% of the value of the performance.
The Customer is entitled to furnish proof that the Company incurred no loss or substantially less loss; the Company is entitled to furnish proof that higher loss was incurred. 

7. The Customer has the right to set-off only if the Customer’s counterclaims arising from the same legal relationship have become res judicata, uncontested or contested but are ready for decision.

§ 12 Reservation of Title

1. The goods remain the property of the Company until all the claims against the Customer to which the Company is entitled from the business relationship have been satisfied.

2. In the event of breach of duty by the Customer, in particular default in payment, the Company is entitled – even without setting a time period – to require surrender of the goods and/or to rescind the contract; the Customer is obliged to surrender the goods. The demand for surrender of the delivery item does not constitute rescission by the Company unless this is expressly declared.

3. The Customer is revocably entitled to resell the goods subject to retention of title in the normal course of business. The Customer here and now assigns to the Company the claims that accrue in respect of the goods subject to retention of title from the resale or on any other legal grounds (e.g. damages in tort, insurance claims) to the amount of the invoice value of the goods subject to retention of title. The Company accepts the assignment. The Customer is revocably authorized to collect the claims assigned to the Company in the Customer’s own name.   

The Customer is obliged, when called upon, to pay - to the Company only - those claims against third parties to which the Company is entitled from the assignment which have already been collected from the Customer’s contracting party.

4. In case of recourse by any third party to the goods subject to the Company’s retention of title (in particular in case of attachment or exercise of a statutory lien), the Customer is obliged to draw attention to the Company’s title and to notify the Company in writing without delay. 

5. If the goods subject to retention of title are inseparably combined with other items that are not the Company’s property, the Company acquires co-ownership of the new item proportionate to the value of the goods subject to retention of title in relation to the other combined items at the time when they are combined. If the combination is such that the Customer’s item is to be regarded as the main item, it is deemed agreed that the Customer transfers proportional co-ownership to the Company. The same applies if the goods are mixed. 

6. § 12 No. 3 also applies with respect to the co-ownership share, whereby upon resale of the co-owned goods subject to retention of title the Customer here and now assigns the claims to the Company that accrue in respect of the goods subject to retention of title from the resale or on any other legal grounds (e.g. damages in tort, insurance claims) to the amount of the invoice value of the goods subject to retention of title. The Company accepts the assignment. The Customer is revocably authorized to collect the claims assigned to the Company in the Customer’s own name.   The Customer is obliged, when called upon, to pay - to the Company only - those claims against third parties to which the Company is entitled from the assignment which have already been collected from the Customer’s contracting party.

7. If the value of the securities to which the Company is entitled from the reservation of title exceeds the aggregate claim against the Customer by more than 10%, the Company undertakes to release the securities to which it is entitled at the Customer’s request, insofar as they exceed the value threshold.

8. As for the rest, the Customer is obliged to treat the delivery item with care, in particular the Customer is obliged to insure the delivery item at replacement value at his own expense against damage or loss caused by fire, water and theft. If maintenance and inspection work is necessary, the Customer is obliged to perform such work promptly at its own expense.

9. The Customer is obliged to notify the Company in writing without delay in case of attachments or other third-party intervention. The Customer is liable to the Company for the judicial and extra-judicial cost of any action required pursuant to § 771 German Code of Civil Procedure (ZPO) (third-party action against execution).

§ 13 Defects and Notification of Defects

1. The Customer is entitled to claims arising from liability for defects only if such claims are properly made.

For the commercial orderer on whom the duties of inspection pursuant to § 377 German Commercial Code (HGB) are incumbent, this requires that he has properly fulfilled the inspection and complaint obligations he owes under this regulation. Other businesspersons have to notify apparent defects in writing within 10 days after receipt of the Company’s goods, otherwise any claims for defects become forfeited.

The performance is deemed to be approved if the Customer is the commercial orderer on whom the duties of inspection pursuant to § 377 German Commercial Code (HGB) are incumbent and he does not assert in writing claims for apparent defects promptly – in the case of other businesspersons no later than 10 days after delivery of the goods/performance of services.

The same applies if the commercial Customer on whom the duties of inspection pursuant to § 377 German Commercial Code (HGB) are incumbent does not assert in writing claims for hidden defects promptly after their discovery – in the case of other businesspersons no later than 10 days  thereafter.

2. Claims for defects are excluded in case of insignificant deviation from the agreed characteristics or insignificant impairment of usability.

3. If a complaint is justified, in no case is there any obligation on the Company’s part for replacement or re-manufacture within the scope of supplementary performance. In any event the Company has the right to choose between rectification of defects, replacement and reversal of the transaction. If supplementary performance fails, the Customer has the right to reduce the price or – if building work is not the object of the liability for defects – to rescind the contract, at the Customer’s option. This is without prejudice to the Customer’s right to demand damages in lieu of performance in accordance with the statutory provisions and these conditions.

If the Customer wishes to demand damages in lieu of performance, or self-remedy, failure to rectify defects is constituted only after the second abortive attempt. The statutory cases of dispensability of setting a time limit remain unaffected.

4. The period of limitation for claims and rights due to defects in the deliveries/services, on whatever legal grounds, is 1 year. However, this does not apply in the cases of § 438 I No. 1 German Civil Code (BGB) (defects of title for immovable property), § 438 I No. 2 German Civil Code (BGB) (buildings, objects for buildings), § 479 I German Civil Code (BGB) (businessperson’s right of recourse) or § 634a I No. 2 BGB (building or work the result of which consists in the provision of planning or supervisory services therefor). The periods specified in the above clause 2 are subject to the statutory period of limitation.

The periods of limitation according to § 12 No. 4 also apply to all claims for damages against the Company that are associated with the defect, regardless of the legal grounds of the claim.

Insofar as claims for damages of any kind – not associated with a defect – exist against the Company, the period of limitation of § 13 No. 4 applies to them.

The shortened periods of limitation do not apply in case of intent or in case of fraudulent concealment of a defect by the Company or if the Company has given a warranty for the characteristics of the deliveries/services. If the Company has fraudulently concealed a defect then - instead of the periods specified in § 12 No. 4 para. 1 – the statutory periods of limitation applicable in the absence of fraudulent intent apply to the exclusion of the extension of time in case of fraudulent intent under §§ 438 III German Civil Code (BGB) and 634a III German Civil Code (BGB).

The shortened periods of limitation also do not apply to claims for damages in cases of injury to life, body or health, nor to claims under the Product Liability Act, in case of intentional or grossly negligent neglect of duty or breach of fundamental contractual duties (these being duties whose fulfilment is essential for proper performance of the contract and whose observance the contracting party may rely on).

References to claims for damages in this provision also cover claims for compensation of expenditure incurred in vain.

5. The period of limitation begins upon taking delivery/delivery of the goods.

6. Unless expressly stated otherwise, the statutory provisions governing the commencement of the limitation period, the stay of expiry, suspension and recommencement of periods are unaffected.

7. The foregoing provisions are without prejudice to the statutory provisions governing the onus of proof.

8. In case of an infringement of third-party property rights for which the Company is responsible, the Company can choose either to acquire at its own expense a right of use adequate for the agreed or presumed use and to assign said right to the Customer, or to alter the goods supplied in such a way as not to infringe the property right, or to replace the goods supplied, provided that in each case this does not detract from the agreed and presumed use of the goods supplied. If this is not possible for the Company or if supplementary performance is refused by the Company or fails, the Customer is entitled to the statutory rights and claims. § 15 of these General Terms and Conditions applies to claims for damages and reimbursement of expenses.  

9. If the Company is obliged to supply according to drawings, models, samples or with the use of parts provided by the Customer, the Customer takes responsibility for third-party property rights not being hereby infringed in the country of destination of the goods. The Company will inform the Customer of rights of which the Company is aware. If deliveries are effected according to drawings or other information provided by the Customer and if third-party property rights are hereby infringed, the Customer will indemnify the Company against all claims, in particular claims of property right holders.   

If Company is prohibited from producing or supplying by a third party with reference to a property right in its possession, the Company is entitled – without examining the legal situation – to stop work until the legal situation has been clarified by the Customer and the third party. If it would be unreasonable to require the Company to continue the order due to the delay, the Company is entitled to rescind the contract.

10. If the Company hands over drawings and records to the Customer and proposals for the advantageous design of workpieces, they are not allowed to be passed on and the Company has the right to require their return at any time.

11. Licence claims by the Customer based on industrial property rights for models and production equipment submitted or manufactured or obtained on the Customer’s behalf are excluded insofar as they are used by the Company according to contract.

12. Unless otherwise agreed upon contract conclusion, the Company is obliged to effect delivery free from third-party industrial property rights and copyrights only in the country of the place of delivery. If use of the delivery item leads to infringement of industrial property rights or copyrights, the Company will, at its own expense, obtain the right for the Customer to continue using the delivery item or will modify the delivery item in a manner acceptable to the Customer so that the property right is no longer infringed.
Should this not be possible within a reasonable period or on economically reasonable terms, the Customer is entitled to rescind the contract. Given the conditions described, the Company is also entitled to rescind the contract.

13. Furthermore, the Company will indemnify the Customer against any claims that are uncontested or have become res judicata from the respective holders of the property rights.

§ 14 Copyrights and Industrial Property Rights, Moulds and Tools

1. The Company reserves all ownership rights and copyrights to and in its own drawings, samples and similar information; they may be made accessible to third parties by the Customer only after the Company has given prior written consent.

2. The Company claims the sole right to manufacture of the goods from the designs, drawings and tools made by the Company. These records and tools are not allowed to be passed on, duplicated or reproduced, used or their content communicated unless expressly permitted by the Company in writing.

All rights remain reserved in the event of patents being granted and utility models registered. The Customer is responsible for ensuring that the manufacture and delivery of items produced according to the Customer’s information do not infringe third-party property rights. Moulds, templates and other jigs and fixtures remain the property of the Company even if costs are charged to the orderer.

3. Insofar as the Company produces or procures models, moulds, tools and other mould equipment on the Customer’s behalf, the Company will invoice part of the costs separately. Since the Company’s expenditure is not covered by this share of the costs, the models, moulds and tools including accessories remain the Company’s property. The same applies to changes and to analogous models, tools and follow-on moulds. Tool costs and mould costs etc. are payable plus value added tax at the respective statutory rate on presentation of invoice. If more than 3 years have elapsed since the last delivery of articles produced from them, the Company is not bound to keep them.

§ 15 Claims for Damages/Liability

1. Liability of the Company and personal liability of the Company’s legal representatives, persons/entities engaged by the Company for fulfilling its obligations and employees for slightly negligent breaches of duty is ruled out. This applies only insofar as the slightly negligent breaches of duty do not concern any breach of fundamental contractual duties (these being duties whose fulfilment is essential for proper performance of the contract and whose observance the contracting party may rely on), injury to life, body or health, or harm to guarantees given or claims under the Product Liability Act. Regardless of any culpability on the Company’s part, any liability due to fraudulent concealment of a defect, from undertaking a warranty or a procurement risk and under the Product Liability Act remains unaffected.

Insofar as the loss is covered by insurance taken out by the Customer, the Company is liable only for any associated drawbacks suffered by the Customer, e.g. higher insurance premiums or interest disadvantage pending claim settlement by the insurance company.

2. Liability for default in delivery and impossibility under § 5 of the General Terms and Conditions remains unaffected.

§ 16 Contractual Penalty

If the Company concludes an agreement with the Customer relating to delivery (in particular of production materials) and the Customer exceeds delivery dates agreed in writing, the Customer is furthermore obliged to pay a penalty to the Company of 1% of the order value for the first week commenced of the overrun, a further 2% of the order value for the second week commenced and a further 3% to 5% maximum of the order value from the third week commenced.

The penalty is waived if the Company is responsible for overrun of the delivery dates agreed in writing.

§ 17 Place of Performance, Jurisdiction, Applicable Law, Transfer of Rights

1. The place of performance is the Company’s place of business in D-88348 Allmannsweiler.

Depending on jurisdictional value, the Local Court of Bad Saulgau or the District Court of Ravensburg – commercial court – is the local and internationally exclusive place of jurisdiction for delivery and payment arising from present and future business relations (including legal actions on cheques and bills of exchange), contractual and non-contractual disputes, and all disputes arising from a business relationship between registered traders. In particular, this jurisdiction precludes any other jurisdiction that may be provided by law due to a personal or substantive link. Further, the Customer is not entitled to initiate legal proceedings in respect of a cross-action, set-off or retention against the Company before any other court than that having exclusive jurisdiction. However in particular cases the Company is also entitled to file an action at the Customer’s place of business or before other courts having jurisdiction on the basis of national or foreign law.

The same jurisdiction applies if the Customer has no general place of jurisdiction in Germany and moves his place of residence/business or usual address outside Germany after conclusion of the contract or if his place of residence/business or usual address is unknown at the time the action is filed.  

2. All business relationships are governed exclusively by German substantive law to 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 allowed to transfer his rights arising from this contract to third parties only with the Company’s consent. The same applies to the assignment of claims against the Company.

18. Severability Clause

Should individual provisions of the contract with the Customer or one or more provisions of these General Terms and Conditions or parts thereof be or become inoperative, this will not affect the validity of the other provisions. The provision that is inoperative, in whole or in part, is to be replaced by one that most closely approximates the economic intent.

 
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Messe / Termine:

Ausstellung
Friedhofstechnik in Essen
14. September 2017

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©RIEBSAMEN Maschinenbau GmbH & Co. KG - Bierstetter Strasse 1 - D 88348 Allmannsweiler