All transactions with full merchants shall be governed solely by the terms and conditions defined below.
Customers who are not full merchants shall be furnished with these General Terms and Conditions of Sale upon the first transaction and shall confirm receipt of the same. They shall then be deemed to apply to all further transactions. Special terms and conditions, amendments or supplementary agreements shall only be binding if explicitly confirmed by us in writing. Conflicting terms and conditions defined by the business partner shall be deemed to be waived upon acceptance of the first delivery. We accept no obligation or responsibility whatsoever for any agreements reached by our representatives that are not consistent with these Terms and Conditions of Sale.
Section 1 Quotations
Our quotations are subject to confirmation.
Section 2 Orders
Since we release all incoming orders for immediate production, orders can only be cancelled very rarely and always conditional upon our agreement, even if the delivery date has not yet been reached. We must demand that you take delivery of customised manufacturing orders or, if appropriate, pay compensation.
Section 3 Prices
(1) Prices are always quoted ex factory, excluding packaging. Alternate terms must be agreed separately in writing. Prices are quoted net. Sales tax must be added at the relevant applicable rate unless our price list specifically states that "sales tax is included".
(2) Information about prices and performance characteristics and other declarations or assurances shall only be binding on us if issued or confirmed in writing by us. Agreed prices apply only for the agreed order in each case.
Section 4 Delivery periods
Shall be adhered to wherever possible. All information relating to delivery times shall be deemed to be approximate and subject to confirmation. In the event of force majeure or circumstances beyond our or our suppliers' control that prevent performance (e.g. transportation and factory disruptions, strikes, shortage of raw materials, etc.), we shall be entitled to delay delivery or to withdraw from the contract in part or in whole, which shall not, however, constitute grounds for assertion by the customer of any claims whatsoever. Partial deliveries are permissible.
Section 5 Payment
Our invoices are payable within ten days of the date of invoice less 2% discount or within thirty days in full. All payments may only be effected to the accounts listed on the front of the invoice. In the event of non-payment of a due invoice amount despite repeated reminders, all other outstanding invoice amounts shall fall immediately payable and we reserve the right to demand immediate payment even if the agreed payment period has not yet expired. The acceptance of bills of exchange, cheques, payment instructions and similar means of payment shall be at our discretion.
Any such acceptance shall always be conditional upon payment. Any discounting and collection charges and interest must be reimbursed to us immediately. We only accept bills of exchange that are acceptable in the German state central bank system (Landeszentralbanken).
Customers shall not be entitled to any rights of offsetting or retention unless such claim for offsetting or retention is undisputed or has been established by a court of law. We are entitled to provide collateral, which may also take the form of a guarantee, to avoid any right of retention being exercised.
The total amount outstanding and owed by a customer to us shall become immediately due and payable if that customer ceases to effect payments, if its liabilities are proven to exceed its assets, if settlement or insolvency proceedings are instigated against it, or if it defaults on honouring outstanding bills of exchange or cheques. The same shall apply in the event of any material deterioration in the customer's financial circumstances. In such cases we shall be entitled to demand the provision of adequate security or to withdraw from the contract.
Section 6 Shipment
All consignments are shipped at the risk and expense of the customer.
Unless we receive specific instructions, we shall ship at our discretion to the indicated address but shall not accept any liability for selecting the cheapest means of transportation. We reserve the right to ship from any site we choose in the Federal Republic of Germany, but not necessarily from the place of performance (Clause 10)
Section 7 Reservation of title
(1) We retain title to the merchandise until such time as the customer has satisfied all claims owing to us, even if the merchandise itself has been paid. Pledging or transferring merchandise that is subject to reservation of title is not permitted.
(2) In the event that it resells or leases the merchandise that is subject to reservation of title in the course of its normal business, the customer hereby assigns as security all future claims arising from the resale or rental agreement against its customers to us until such time as all claims have been satisfied; no further declarations to this end shall be necessary. The assignment shall also include residual outstanding claims arising in connection with existing current account relationships or upon the termination of such relationships between the customer and its customers. In the event that the merchandise that is subject to reservation of title is sold or leased in conjunction with other products and an individual price for the reserved merchandise is not agreed, the customer shall assign to us preferentially that portion of the total price or total rent owing that corresponds to the value of the reserved goods as invoiced by us. The customer shall be authorised to collect the assigned claims arising from the resale or rental agreement until further notice; the customer shall not, however, be entitled to utilise them in any other way, e.g. by means of assignment. The customer shall notify its customer of the assignment at our request and shall provide us with the information and documentation, e.g. invoices, needed to asset the customer's rights. The customer shall bear all the costs of collection and intervention. In the event that the customer receives bills of exchange in the course of its authorisation to collect the assigned claims arising from the resale, the title to these bills and the underlying securitised right shall be transferred to us as security. The transfer of the bills of exchange shall be substituted by the agreement that the customer shall take them into safekeeping on our behalf and shall then immediately deliver the endorsed bills to us. In the event that the value of the claims assigned to the supplier are paid to the customer or to one of the customer's banks in the form of cheques, the customer is under obligation to notify us immediately and to forward payment on to us. Title to the cheques and to the underlying securitised right shall transfer to us as soon as the customer receives them. The transfer of the cheques shall be substituted by the agreement that the customer shall take them into safekeeping on our behalf and shall then immediately deliver the endorsed cheques to us.
(3) In the event that the customer processes, reworks or combines the reserved merchandise with other products, such processing, reworking or combination shall be deemed to take place on our behalf. We gain direct title to the product resulting from the processing, reworking or combination. In the event that this may not be possible for legal reasons, the customer agrees that we shall gain title to the new product once it is processed, reworked or combined. The customer shall safeguard the new product on our behalf with the customary due diligence. The product resulting from the processing, reworking or combination shall be deemed to be reserved merchandise. In the event that the processing, reworking or combination involves other products that do not belong to us, we shall gain co-title to the new product in the ratio of the share of the processed, reworked or combined reserved merchandise relative to the value of the new product. In the event that the new product is sold or leased, the customer already assigns as security to us its claim arising against its customers from the sale or rental agreement, together with all associated rights, without the need for any separate declaration to the effect at a later date.
The assignment shall, however, only apply in the amount that corresponds to the value of the processed, reworked or combined reserved merchandise as invoiced by us. The claim assigned to us shall take preference over all other claims.
(4) In the event that the customer combines the reserved merchandise with land or mobile assets, the customer shall also assign as security to us its claim to remuneration for the combination, together with all ancillary rights, without the need for a separate declaration to this effect. In the event that the customer owns the land or is entitled to receive rent on this land for other legal reasons, the customer also assigns this rental income to us. Section 7.3 (3) shall apply mutatis mutandis to the amount of the assigned claim.
(5) In the event that the customer partially or wholly defaults on its payment obligations or presentation of bills of exchange, if its liabilities exceed its assets or it ceases payment, or if settlement or insolvency proceedings are instigated against the customer, we shall be entitled to the immediate return of all merchandise that is subject to reservation of title. Equally, we shall be entitled to assert all further rights arising from the reservation of title immediately; the same shall apply in the event of any material deterioration in the customer's financial circumstances. The customer shall ensure that we or our agent can access the customer's business premises in their entirety during business hours. Demanding the return or taking possession of the merchandise shall not constitute a withdrawal from the contract. We shall be entitled to dispose of the reserved merchandise with due commercial diligence and to offset the proceeds against any outstanding claims.
(6) In the event that the value of the collateral exceeds by more than 20% our claims arising from the ongoing business relationship with the customer, we shall be obliged at the customer's request to release collateral of the customer's choice.
Section 8 Execution
Unless we have specifically acknowledged any special requests, we shall adopt our customary approach to execution (design, processing, materials, etc.).
Section 9 Warranty
Complaints relating to incomplete or incorrect deliveries or to recognisable defects shall be considered if notified to us in writing within one week from reception of the merchandise. Concealed defects must be notified in writing immediately upon detection but at the latest within 6 months of delivery. Warranty claims cover the repair or replacement of the defective parts. Claims for conversion or reduction or for the compensation of direct damages are excluded. All warranty claims shall lapse if the subject of delivery is modified by a third party or if our instructions with regard to the handling of the subject of delivery are not followed. Returns of defective merchandise shall only be accepted by us after prior agreement. Our packing list must be included with the return shipment. In light of our various production facilities, the address for return delivery must be requested from our office in Cologne prior to return. We can only acknowledge complaints if the merchandise is returned to us as carefully as we shipped it. We are not liable for any damages occurring during transportation or for any lost merchandise. In such cases, we recommend requesting an incident report from the railway company, forwarding agent or parcel delivery service in order to protect your rights to compensation.
Â§ 10 Place of performance and court of jurisdiction
(1) Cologne is the sole court of jurisdiction for all merchant customers, including for all proceedings involving cheques and bills of exchange. The same court of jurisdiction shall apply for customers who - at the time of instigating court proceedings - do not have a general court of jurisdiction in the Federal Republic of Germany.
(2) The laws of the Federal Republic of Germany are solely applicable. The Prague Convention dated 01.07.1964 on the harmonisation of laws governing international purchases and the United Nations Convention on the International Sale of Goods dated 11.04.1980 are excluded.
REMIS GMBH â€¢ Mathias-BrÃ¼ggen-Str. 67-69 â€¢ 50 829 Cologne, Germany
Tel. +49 (0)221/ 7 88 80 - 0 â€¢ Fax +49 (0)221/ 7 88 80 - 249
www.remis.de â€¢ firstname.lastname@example.org
Â§ 1 General - Scope
(1) Solely our terms and conditions of purchase shall apply; other terms and conditions of the supplier that deviate from our terms and conditions will not be accepted unless we have given our explicit consent in written form regarding their applicability. Our terms and conditions of purchase shall also apply if we accept the supplierâ€™s delivery without reservation in knowledge of contrary or deviant terms and conditions of the supplier.
(2) All agreements reached between ourselves and the supplier for the purpose of executing this contract must be set out in writing in this contract.
(3) Our terms and conditions of purchase shall only apply vis-Ã -vis entrepreneurs pursuant to Â§ 310 I BGB (German Civil Code).
(4) Our terms and conditions of purchase shall also apply for any future business with the supplier.
Â§ 2 Offer, Offer Documents
(1) The supplier shall be obliged to accept our order within a period of two weeks.
(2) We shall retain the right of property and copyright on images, drawings, calculations and other documents; they may not be made accessible to third parties without our explicit consent in writing. They are to be used exclusively for production on the basis of our order; they must be returned to us after completion of the order without us having to request this. They must be concealed from third parties; to this extent, the provision of Â§ 9 paragraph 4 applies.
Â§ 3 Prices, Terms of Payment
(1) The price shown in the order shall be binding. In the absence of any other written agreement, the price shall include delivery to our works, packaging included. Returning the packaging shall be subject to a special agreement.
(2) The legal value added tax is not included in the price.
(3) Invoices can only be processed by us if they contain the order number shown in our order, in accordance with the specifications of the latter; the supplier shall be responsible for any consequences resulting from the non-compliance with this obligation unless he is able to prove that he is not responsible for these consequences.
(4) As far as nothing else has been agreed upon in writing, we shall pay the purchase price with a 3% cash discount within 14 days starting from when the supply and invoice are received, or net within 30 days after invoice receipt.
(5) We shall be entitled to exercise rights of set-off and detention to the legal extent.
Â§ 4 Delivery Period
(1) The delivery period indicated in the order shall be binding.
(2) The supplier shall be obliged to send us, without delay, a written notification of any circumstances that have arisen or become apparent to him and from which it is evident that the stipulated delivery period cannot be kept.
(3) In the event of delay in delivery we shall be entitled to assert statutory claims. After a reasonable period has passed without success, we shall be entitled in particular to claim damages in lieu of performance and to demand cancellation of the contract. If we claim damages, the supplier shall be entitled to provide evidence to us that he is not responsible for the infringement in question.
Â§ 5 Transfer of Risk â€“ Documents
(1) If no other agreement has been made in writing, delivery shall be effected carriage paid to our works.
(2) The supplier shall be obliged to make sure that all shipping documents and delivery notes quote our exact order number; if he fails to do so, any delays in processing shall not be our responsibility.
Â§ 6 Inspection for Defects â€“ Liability for Defects
(1) We shall be obliged, within an appropriate period, to give the goods a visual spot-check for possible deviations in quality and quantity; the complaint shall be deemed on time if it is received by the supplier within a period of 10 working days from the date of receipt of the goods or, in the case of hidden defects, from the date these are discovered.
(2) We shall be entitled to assert statutory defect claims without restriction; in all cases we shall be entitled to ask the supplier to repair the defect or deliver new goods at our discretion. We expressly reserve the right to claim for damages, and in particular to claim for damages in lieu of performance.
(3) We shall be entitled to eliminate defects ourselves and at the supplierâ€™s expense if there is imminent danger or if particularly urgent cases require it.
(4) The statutory period of limitation is 36 months from the day of transfer of risk.
Â§ 7 Product Liability â€“ Indemnification - Liability Insurance Protection
(1) Insofar as the supplier is responsible for damage to a product, he shall be obliged to indemnify us on first demand from any damage claims of third parties; this shall apply to the extent that the cause is to be found in his area of command and organisation and that he himself is liable to third parties.
(2) Within the scope of his liability for cases of damage in the sense of paragraph 1, the supplier shall also be obliged to reimburse any expenses pursuant to Â§Â§ 683, 670 BGB (German Civil Code) as well as pursuant to Â§Â§ 830, 840, 426 BGB arising from or in connection with a recall campaign of ours. We shall notify the supplier as far as possible and reasonable regarding the content and extent of the recall measures to be performed and shall give him an opportunity to comment. Other statutory claims shall not be affected by this.
(3) The supplier undertakes to take out comprehensive product liability insurance for a sufficient amount of coverage per personal injury / material damage for the duration of the present contract, i.e. to the full extent of the limitation period for defects; any additional claims to which we are entitled shall not be affected.
Â§ 8 Industrial Property Rights
(1) The supplier guarantees that no third-party rights within the Federal Republic of Germany are violated by or in connection with his delivery.
(2) If claims are asserted against us by a third party due to such infringement, the supplier shall be obliged to indemnify us from these claims on first demand; we shall not be entitled to conclude any agreements with the third party â€“ in particular concerning a settlement - without the consent of the supplier.
(3) The supplierâ€™s duty to indemnify shall relate to all expenses we inevitably sustain from or in connection with the assertion of third party rights.
(4) The statutory period of limitation for these claims shall be 10 years, starting from the day the respective contract is concluded.
Â§ 9 Reservation of Ownership â€“ Provision â€“ Tools - Confidentiality
(1) Insofar as we provide parts to the supplier, we shall retain the ownership of said parts. Any processing or conversion by the supplier shall be performed on our behalf. If our reserved goods are processed together with other objects that do not belong to us, we shall acquire co-ownership of the new object at the ratio of the value of our object to the other processed objects at the time of processing.
(2) If the object we provide is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object at the ratio of the value of the reserved property to the other mixed objects at the time of mixing.
(3) We reserve ownership of tools; the supplier shall be obliged to use such tools exclusively for manufacturing the goods we have ordered. The supplier shall be obliged, at his own expense, to insure the tools belonging to us at their reinstatement value against the risk of fire, water and theft. At the same time, the supplier hereby automatically assigns any claims for damages arising from this insurance to us, and we hereby accept this assignment. The supplier shall be obligated to perform all necessary service work and inspections as well as any maintenance and repair work at his own expense and in due time. He shall immediately inform us of any malfunctions; if he culpably fails to do so, the right to claim damages shall remain unaffected.
(4) The supplier shall be obliged to keep all images, drawings, calculations and other documents and information strictly confidential. They may only be disclosed to third parties with our explicit consent. The duty to maintain confidentiality shall also apply after the end of this contract; it shall expire if and to the extent that the production knowhow in the images, drawings, calculations and other documents have become common knowledge.
(5) As far as the collateral rights to which we are entitled in accordance with paragraph 1 and/or paragraph 2 exceed the purchase price of all our reserved property not yet paid for by more than 10%, we shall be obliged, on the supplierâ€™s demand, to release collateral rights at our discretion.
Â§ 10 Venue â€“ Place of Performance
(1) As far as the supplier is a merchant, our registered place of business is the venue; however, we are also entitled to bring action against the supplier at the court of his place of residence. Unless otherwise stipulated in the order, our registered place of business is the place of fulfilment. Solely the law of the Federal Republic of Germany applies. The provisions of the Uniform Law on the International Sale of Goods as well as the Uniform Law on the Formation of Contracts for the International Sale of Goods are expressly excluded.
REMIS GMBH, Mathias-BrÃ¼ggen-Str. 67-69, 50829 Cologne