Terms and Conditions
General terms and conditions of Rhein Köster GmbH
The scope of the deliveries or services (hereinafter referred to as "deliveries") shall be determined by the written declarations of both parties. However, General Terms and Conditions of the Purchaser shall apply only to the extent that the Supplier or service provider (hereinafter referred to as "Supplier") has expressly agreed to them in writing. The Supplier reserves the unrestricted right of exploitation of its property rights and copyrights to cost estimates, drawings, and other documents (hereinafter referred to as "Documents"). The Documents may only be made accessible to third parties with the prior consent of the Supplier and shall, upon request, be returned to the Supplier without undue delay if the contract is not awarded to the Supplier. Sentences 1 and 2 shall apply mutatis mutandis to Documents of the Purchaser; these may, however, be made accessible to third parties to whom the Supplier may rightfully transfer Supplies. The Purchaser shall have the non-exclusive right to use standard software with the agreed performance characteristics in unchanged form on the agreed equipment. The Purchaser may make one backup copy without express agreement. Partial deliveries shall be permitted, provided they are reasonable for the Purchaser.
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Prices and terms of payment
Unless otherwise offered, the prices are ex works including packaging, plus the applicable statutory value added tax.
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If the Supplier is responsible for assembly and/or commissioning and unless otherwise agreed, the Purchaser shall bear, in addition to the agreed remuneration, all necessary incidental expenses such as travel expenses, costs for the transport of tools and equipment and personal luggage as well as allowances.
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Payments shall be made free of charge to the Supplier's paying agent. The Purchaser may only set off against claims that are undisputed or have been determined by a court of law.
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Retention of ownership
The items of the Supplies (Retained Goods) shall remain the property of the Supplier until settlement of all claims to which the Supplier is entitled against the Purchaser under the business relationship. If the value of all security interests to which the Supplier is entitled exceeds the value of all secured claims by more than 20%, the Supplier shall release a corresponding part of the security interests at the request of the Purchaser.
For the duration of the retention of title, the Purchaser may not pledge the Retained Goods or use them as security, and resale shall be possible only for resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customer or makes the transfer of title to the customer dependent upon the customer fulfilling its payment obligations.
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In the event of seizure, confiscation or other dispositions or interventions by third parties, the Customer shall notify the Supplier immediately.
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In the event of breaches of duty by the Customer, in particular default in payment, the Supplier shall be entitled to withdraw from the contract and take back the goods after the unsuccessful expiry of a reasonable deadline set for the Customer for performance; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The Purchaser shall be obliged to surrender the goods.
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Deadlines for deliveries; Delay
The observance of deadlines for deliveries presupposes the timely receipt of all documents to be supplied by the customer, necessary permits and releases, in particular of plans, as well as the observance of the agreed terms of payment and other obligations by the customer. If these conditions are not fulfilled in time, the time limits shall be extended; accordingly, this shall not apply if the Supplier is responsible for the delay.
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If non-observance of the time limits is due to force majeure, e.g. mobilization, war, riot, or similar events, e.g. strike or lockout, the time limits shall be extended accordingly.
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If the Supplier is responsible for the delay and the Purchaser demonstrably suffered a loss therefrom, the Purchaser may claim a compensation as liquidated damages of 0.5 % for every completed week of delay, but in no case more than a total of 5 % of the price of that part of the Supplies which because of the delay could not be put to the intended use.
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Purchaser's claims for damages due to delayed Supplies as well as claims for damages in lieu of performance exceeding the limits specified in No. 3 above shall be excluded in all cases of delayed Supplies even upon expiry of a time set to the Supplier to effect the Supplies. This shall not apply in cases of mandatory liability based on intent, gross negligence or injury to life, body or health. The Purchaser may only withdraw from the contract within the framework of the statutory provisions if the Supplier is responsible for the delay in delivery. The above provisions do not imply a change in the burden of proof to the disadvantage of the Purchaser.
At the Supplier's request, the Purchaser shall declare within a reasonable period of time whether it withdraws from the contract due to the delayed Supplies or insists on the Supplies to be carried out.
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If dispatch or delivery is delayed at the Purchaser's request by more than one month after notification of readiness for dispatch, the Purchaser may be charged, for every month commenced, storage costs of 0.5% of the price of the items of the Supplies, but in no case more than a total of 5%. The contracting parties are at liberty to prove higher or lower storage costs.
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Transfer of risk
The risk is transferred to the purchaser as follows, even in the case of carriage paid delivery:
a) for deliveries without installation or assembly when they have been brought to dispatch or collected. At the request and expense of the Purchaser, the Supplier shall insure the Supplies against the usual risks of transport.
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if the Supplies include assembly or erection, at the day of taking over in the own works or, if so agreed, after a fault-free trial run.
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If dispatch, delivery, the start or performance of assembly or erection, the taking over in the own works or the trial run is delayed for reasons for which the Purchaser is responsible or if the Purchaser has otherwise failed to accept the Supplies, the risk shall pass to the Purchaser.
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Installation and assembly
Unless otherwise agreed in writing, the following provisions shall apply to installation and assembly:
1. the customer shall take over at his own expense and provide in time:
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a) all earthwork, construction work and other ancillary work outside the industry, including the necessary skilled and unskilled labor, building materials and tools,
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b) the commodities and materials required for assembly and commissioning, such as scaffolding, lifting gear and other devices, fuels, and lubricants
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c) energy and water at the point of use, including connections, heating, and lighting
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d) suitable dry and lockable rooms of sufficient size adjacent to the site for the storage of machine parts, apparatus, materials, tools, etc. and adequate working and recreation rooms for the erection personnel, including sanitary facilities appropriate to the circumstances; furthermore, the Purchaser shall take all measures it would take for the protection of its own possessions to protect the possessions of the Supplier and of the erection personnel on the site,
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e) protective clothing and protective devices which are necessary due to special circumstances at the installation site.
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2. Prior to commencement of the assembly work, the Purchaser shall provide the necessary information on the location of concealed power, gas and water lines or similar installations as well as the necessary structural data without being requested to do so.
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3. Prior to assembly or erection, the materials and equipment necessary for the work to start must be available on the site of assembly or erection and any preparatory work must have advanced to such a degree that assembly or erection can be started as agreed and carried out without interruption. Access roads and the installation or assembly site must be levelled and cleared.
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4. If assembly, erection, or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the reasonable costs incurred for idle times and any additional travelling of the Supplier or the erection personnel.
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5. the Purchaser shall attest to the hours worked by the erection personnel to the Supplier at weekly intervals and shall immediately confirm to the Supplier the completion of assembly, erection, or commissioning.
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6. if the supplier demands acceptance of the delivery after completion, the purchaser must carry this out within two weeks. If this is not done, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place when the Supplies have been used, if necessary, after completion of an agreed test phase.
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Receipt
The purchaser may not refuse to accept deliveries due to minor defects.
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Material defects
The supplier is liable for material defects as follows:
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1. all those parts or services which show a material defect within the limitation period - irrespective of the operating time - shall, at the discretion of the Supplier, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the transfer of risk.
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2. claims for material defects become statute-barred after 12 months. This shall not apply where longer periods are prescribed by law according to Sections 438 para. 1 No. 2 (buildings and things used for a building), 479 para. 1 (right of recourse) and 634a para. 1 No. 2 (defects of a building) of the German Civil Code (BGB) as well as in cases of injury to life, body, or health, or where the Supplier intentionally or grossly negligently fails to fulfil its obligation or fraudulently conceals a Defect. The statutory provisions on suspension of the statute of limitations, suspension and recommencement of the periods remain unaffected.
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3. the Purchaser shall notify the Supplier immediately in writing of any defects of quality.
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4. in the event of a notification of defects, payments by the Purchaser may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The Purchaser may withhold payments only if a notice of defect is asserted, the justification of which is beyond doubt. If the notification of defects is unjustified, the Supplier shall be entitled to demand reimbursement of the expenses incurred by the Purchaser.
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5. the supplier must first be given the opportunity for subsequent performance within a reasonable period.
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6. if the subsequent performance fails, the Purchaser may - without prejudice to any claims for damages under Art. XI - withdraw from the contract or reduce the remuneration.
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7. no claims based on Defect shall exist in cases of insignificant deviations from the agreed quality, of only minor impairment of usefulness, of natural wear and tear or damage arising after the transfer of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective workmanship, unsuitable foundation soil or from particular external influences not assumed under the contract, or from non-reproducible software errors. If the Purchaser or third parties carry out improper modifications or repair work, no claims for defects shall exist for these and the consequences thereof.
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8. Claims of the Purchaser for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded if expenses increase because the subject-matter of the Supplies has subsequently been brought to another location than the Purchaser's branch office, unless doing so complies with its intended use.
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9.The Purchaser's right of recourse against the Supplier pursuant to Sec. 478 BGB ("recourse of the entrepreneur") shall be limited to cases where the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects. Furthermore, No. 8 above shall apply mutatis mutandis to the scope of the right of recourse the Purchaser has against the Supplier pursuant to Sec. 478 para. 2 BGB.
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10. For claims for damages Art. XI (Other Claims for Damages) shall apply. Any further claims or claims other than those provided for in this Art. VIII against the Supplier and its agents or any person employed in performing an obligation for whom the Supplier is vicariously liable on account of a Defect are excluded.
Payment
Payments plus the applicable value added tax are to be made free of charge to the supplier's paying agent, within 10 days of the invoice date without discount, unless otherwise offered.
If the delivery is delayed for reasons for which the customer is responsible, the date of the notification of readiness for dispatch shall be deemed the date of delivery. For payments of all kinds, the day of performance shall be the day on which the Supplier can dispose of the amount.
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General provisions
If the customer is in default of payment, interest will be charged at a rate of 8 percentage points above the base interest rate, subject to further claims. If the customer is a consumer within the meaning of § 13 BGB, 5 percentage points above the base interest rate of § 247 BGB will be charged.
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In the event of cessation of payments or application for the opening of insolvency proceedings, the entire claim of the supplier shall become due immediately.
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Services
The above terms and conditions shall also apply analogously to services provided by the supplier. We would like to point out that the above-mentioned general terms and conditions are supplemented by the following conditions:
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Illustrations and descriptions
The illustrations, dimensions, descriptions, technical details, and packaging units stated in the respective catalogues are not binding and Rhein Köster GmbH expressly reserves the right to make changes.