General Terms and Conditions of Sale and Delivery of REHM GmbH Co KG Welding Technology (Valid as of: February 2016)
I. Scope of the General Terms and Conditions of Sale and Delivery
1. The following General Terms and Conditions of Sale and Delivery (‘REHM Sales Conditions’) apply to all offers, order confirmations and contracts concerning the sale and delivery of products or Services (‘Services’) in transactions between REHM GmbH & Co KG Welding Technology or its legal successors (collectively ‘REHM’) and companies in the sense of Sec. 14 of the BGB (German Civil Code), legal entities under public law or special funds under public law (‘Purchaser) within the realms of purchase contracts, work contracts or other contracts (collectively ‘contracts’).
2. The respective latest version of these REHM Sales Conditions shall apply exclusively to contracts between REHM and the Purchaser, as well as individual offers and order confirmations. The REHM Sales Conditions shall also apply to all future transactions even if not explicitly agreed.
3. The respective latest version of these REHM Sales Conditions shall apply exclusively to contracts between REHM and the Purchaser, as well as individual offers and order confirmations. The REHM Sales Conditions shall also apply to all future transactions even if not explicitly agreed.
4. The respective latest version of the REHM Sales Conditions can be found at [www.rehm-online.de/en/unternehmen/agb.html] or can be requested from REHM via email using the following address: [email@example.com].
II. Conclusion of Contract, Content of Contract, Deviations
1. REHM offers are subject to change, non-binding and subject to prior sale.
2. Agreements and transactions conveyed by REHM representatives only become valid with a written order confirmation from REHM.
3. The nature, scope and time of performance shall be established in the REHM order confirmation, along with any attachments.
4. REHM shall be entitled to make changes to the Services without the Purchaser’s prior permission as long as the Services’ usability is not affected.
5. REHM shall be entitled to carry out partial Services/deliveries as long as this is reasonable to the Purchaser. This is the case if (i) the partial service/delivery is usable by the Purchaser for the purposes specified in the contract, (ii) the partial service/delivery ensures the rest of the ordered products/Services and as long as the Purchaser does not incur any considerable additional costs or expenditure.
III. Deliveries and Services
1. Delivery times or periods are only binding if this has been expressly confirmed by REHM in writing.
2. REHM’s observance of a delivery period is subject to the timely receipt of all documents, necessary permits, releases, explanations and approvals of plans, and the observance of the agreed payment conditions and all other obligations by the Purchaser. If these requirements are not met in good time, the delivery time shall be appropriately extended; this does not apply if REM is responsible for the delay.
3. The execution of Services is subject to correct and timely self-delivery, unless incorrect or delayed delivery is due to reasons realting to REHM’s own fault.
4. If the delivery does not take place within an agreed time, the Purchaser may only withdraw if he/she sets another deadline in writing that is also not upheld.
5. The delivery time shall be considered as met if the operational shipment has been either handed over to a transport company, made available for pick up, or has been picked up within the agreed delivery or service deadline.
6. REHM shall not be held liable if a delivery/service is not possible or delayed insofar as this is due to force majeure or any other event unforeseeable at the time the contract was concluded (e.g. war, any kind of operational disturbance, difficulties in procuring materials or energy, transport delays, strikes, lock-outs, lack of workforce, energy or raw materials, difficulties procuring necessary official approvals, governmental measures or other incorrect or delayed deliveries/Services by other service providers or sub-companies) not due to any fault of REHM. Insofar as such circumstances make it considerably difficult or impossible for REHM to provide the delivery or service and these circumstances could be long-lasting, REHM may withdraw from the contract. In the case of short-term obstacles, the delivery period shall be extended appropriately by the duration of the obstacle plus an appropriate restarting period. The same applies to a delivery period for the provision of a Service set out by the Purchaser, especially including subsequent deadlines in accordance with Sec. 281 para. 1 and Sec. 323 para. 1 BGB. This deadline extension shall also apply if REHM is already in default of provision of service. REHM will inform the Purchaser of any delays as early as possible, including their foreseeable start and end. Insofar as it is unreasonable to expect the Purchaser to accept to delivery or service due to the delay, the Purchaser may withdraw from the contract with REHM by written confirmation.
7. If a delivery or provision of Service is delayed at the Purchaser’s request, REHM is permitted, after notification of readiness, to charge the Purchaser a fee of at least 0.5% of the (net) invoice amount regarding the delayed Service for each month of delay during the duration of the delay of Purchaser’s acceptance of delivery; these costs are limited to a total of 5% of the (net) invoice amount. The right to claim for, and provide evidence of, lower or higher costs remains reserved. Regardless of this, REHM is entitled to otherwise carry out the Service after a set deadline has passed unobserved, and to carry out the Service with the Purchaser after an appropriately extended deadline. If REHM exercises its right to otherwise carry out the Service, REHM is entitled to demand damage compensation from the Purchaser for loss of revenue and costs incurred.
8. If REHM is in default of individual Services due to reasons relating to REHM’s own fault and which are not specified in Section III 6 of REHM’s Sales Conditions, the compensation of demonstrable costs shall be limited to 0.5% of the (net) price for the delayed part of the Service for each complete week of default. The total sum shall not exceed 5% of the (net) price for the delayed part of the Service. REHM reserves the right to prove that the Purchaser incurred either lower costs or no costs at all on a case-by-case basis. The Further claims of the Purchaser relating to default shall be excluded.
IV. Acceptance, Transfer of Risk
1. The notification of readiness for pick up and dispatch regarding the ordered products is equal to delivery if the Purchaser is in default of acceptance. If the Purchaser does not accept the products, REHM is permitted to set a supplementary deadline of 10 days for acceptance. If this deadline expires unobserved, REHM is permitted to withdraw from the purchase contract and/or claim damage compensation if legal requirements are fulfilled. The provision and setting of a supplementary deadline is not necessary if the legal requirements are fulfilled insofar as the Purchaser is obviously not prepared or is not in a position to pay the purchase price even when a supplement deadline has been granted.
2. Unless otherwise agreed in textual form, dispatch of the products shall take place ‘ex works’ at the Purchaser’s risk and expense. Transport-related damages and losses must be declared by the Purchaser to the freight company in good time and in line with legal requirements. The same applies to the declaration of delays.
3. If the products are picked up either by the Purchaser or by a third party on behalf of the order, risk shall be transferred to the Purchaser once the products have left the loading machinery (e.g. pallet truck, forklift, loading conveyor etc.) at the REHM pick-up location. The vehicles used for the pick-up must be technically suitable for transporting the products, and be compatible with the loading machinery at the REHM pick-up location.
4. Unless otherwise agreed in textual form by the parties, REHM will ensure that the products are sufficiently packed.
V. Retention of Ownership
1. The following agreed retention of ownership is intended to secure all existing, future and conditional claims available to REHM against the Purchaser, regardless of their legal grounds (‘Secured Claims’).
2. The products delivered by REHM to the Purchaser remain the property of REHM until payment has been received in full for all Secured Claims. These products, as well as products affected by retention of ownership in their place in accordance with this clause will be hereafter referred to as Reserved Products.
3. The Purchaser must treat the Reserved Products with care until ownership has been transferred.
4. The Purchaser shall insure the Reserved Products against fire, theft and water damage to the new purchase value at its own expense. Insofar as maintenance and inspection is necessary, the Purchaser shall be obliged to carry these out at its own expense.
5. Insofar as the Purchaser violates the contract - especially insofar as the Purchaser is in default of payment - REHM shall be entitled to demand the return of the Reserved Products in accordance with §985 of the BGB (‘demand for return’) and to withdraw from the contract after REHM has set a reasonable deadline for payment. The Purchaser shall borne any transport costs incurred relating to return of the Reserved Products. The demand for the Reserved Products’ return does not constitute withdrawal from the contract, which should be made clear if necessary. Similarly, if REHM pledges the Reserved Products, this does not constitute withdrawal. Only REHM may use Reserved Products that have been reclaimed by REHM. Proceeds and use will be settled with the amounts owed by the Purchaser to REHM after REHM has deducted a reasonable amount for costs relating to use.
6. The redemption of individual claims in ongoing invoices or the total account balance and the recognition hereof do not annul retention of ownership.
7. The Purchaser is entitled to process and sell Reserved products in regular transactions. Pledging and chattel mortgaging are not permitted.
8. Insofar as local regulations in the state where the delivery should take place provide special requirements for the validity of retention of ownership - especially also of the Purchaser’s creditor - the Purchaser is obliged to immediately undertake all necessary measures to ensure the legality of retention and its upholding at its own expense until the payment of all claims, including future and conditional claims, available to REHM against the Purchaser, regardless of their legal grounds.
9. If the local regulations in a state where the deliveries should take place do not allow an effective agreement relating to retention of ownership, but will entitle REHM to retain other rights or to have them assigned which also serve to secure open claims, REHM reserves all these rights in advance. The Purchaser is obliged to cooperate in all measures that REHM wishes to carry out in order to protect its rights of property or other rights to the products in order to secure open claims.
10. If the Reserved Products are processed into a new moveable object by the Purchaser, it is agreed that the processing was carried out in the name of and for the account of REHM as a manufacturer and that REHM is allocated ownership or - if materials belonging to several different parties were combined or if the value of the finished object is higher than that of the reserved products - partial ownership (fractional ownership) of the new object proportional to the value of the Reserved Products. The value of the Reserved Products is based on their listed price, taking into account a reasonable deduction for use. The Purchaser is obliged to store the Reserved Products separately from products in its own possession or that of third parties (‘External Products’). If this provision is not met and the Reserved Products are inextricably mixed or mingled with External Products, REHM shall become a partial owner in accordance with legal regulations.
11. If the Purchaser is allocated sole or partial ownership due to this amalgamation, Purchaser transfers this in advance now to REHM proportionally to the value of the Reserved Goods compared to the External Goods at the time of combination. The value of REHM products is based on their listed price, taking into account a reasonable deduction for use. In this case, the Purchaser must keep the products subject to sole or partial ownership by REHM safe free of charge.
12. If the Reserved Products are further sold, the Purchaser already transfers the resulting claim against the purchaser to REHM with this contract, including any supplementary rights and statuses - in the case of partial ownership, this shall be proportional. REHM accepts the transfer. The same applies for other claims taking the place of the Reserved Products, such as insurance claims or claims resulting from unauthorised handling in the case of loss or destruction. REHM authorises the Purchaser to exercise claims in the Purchaser` own name on REHM’s behalf, and may revoke this authorisation at any time. REHM will not exercise its own authority to collect as long as the user fulfils its payment obligations to third parties. At REHM’s request, the Purchaser shall name debtors of any transferred claims and make the transfer known. REHM is also entitled to make the debtor aware of the transfer. If the Purchaser receives a claim transferred to REHM through the further sale of products within a current account relationship with its customer, the current account claim is transferred in full. After balancing, it will be replaced by a balance that will be valid up to the amount of the original claim. The Purchaser is only entitled to further transfer the claim transferred to REHM in the case of a factoring transaction. Such a transfer is only valid once the bank/factor is subject to the obligation to pay out the claim amount, with del credere deductions, directly to REHM.
13. The Purchaser must inform REHM immediately of any third party enforcement measures relating to the Reserved Products or representative claims by submitting documents necessary for contesting these. In the case of cessation of payment or if insolvency proceedings are applied for or begun (the insolvency lawyer’s legal rights remain unaffected), or a legal settlement case, the right to further sale, use and collection of representative claims shall expire. If paying by cheque or bill, this right to collect shall also expire. In this case, REHM is entitled to pick up the Reserved Products.
14. REHM will release or return the Reserved Products, and the items or claim that take their place, at the Purchaser’s request if their value exceeds 10% of the Secured Claims. The value of the Purchaser’s Secured Claims is based on their realisable value.
1. Unless other agreements have been confirmed by REHM in textual form, prices are ‘ex works’ and are subject to additional VAT as applicable.
2. REHM prices do not include packaging costs. These will be billed separately.
3. If costs for materials, raw materials, salaries and wages, or manufacturing increase between the contract’s commencement and the carrying out of the Services, REHM is entitled to change the agreed prices in accordance with these increases, taking into account any possible reductions in price in other cost groups. REHM will provide the Purchaser with price-relevant factors and concrete increases on request.
4. REHM will bill VAT separately in accordance with the relevant amount legally applicable on the day of invoicing.
VII. Payment conditions, default of payment, offsetting and retention
1. Payments must be made immediately once REHM has carried out the Service and issued an invoice.
2. REHM is entitled to accept cheques and bills in individual cases. Insofar as REHM accepts cheques or bills, acceptance shall take place in lieu of payment. Payments are only valid once credited to REHM’s bank account. Costs incurred by payment via cheque or bill, especially discounting and bill charges or stamp fees, as well as bank charges, shall be borne in full by the Purchaser.
3. Regardless of any possible differing provisions outlined by the Purchaser, Purchaser payments will be billed according to the payment, then interest, then the principal claim, or more specifically the longest standing debt.
4. If the Purchaser does not fulfil its payment obligations, in particular if a cheque bounces, if the Purchaser ceases payments, or REHM becomes aware of circumstances that cast doubt on the Purchaser’s creditworthiness and endanger REHM’s payment claim, REHM shall be entitled to demand payment in full, even if cheques were already accepted or payment was deferred, or payment in instalments was agreed. In this case, REHM is also permitted to demand payment in advance or deposits. For this REHM shall be also entitled to set a reasonable deadline. If this deadline passes unobserved, REHM shall be entitled to refuse the fulfilment of all open Services and withdraw from all contracts with the Purchaser. REHM reserves the right to exercise further rights. Damage compensation claims are excluded for the Purchaser.
5. Payment must be made directly to REHM. Without a written authorisation from REHM, no representatives are authorised to accept payment.
6. If the Purchaser is in default of payment, a default interest of 9 percentage points over the relevant base rate shall apply. REHM reserves the right to claim for higher damages. The Purchaser shall be considered in default of payment without warning 14 days after invoicing and completion of Service, unless an individual payment deadline was agreed in writing.
7. Offsetting with Purchaser counterclaims is only permitted insofar as the counterclaims are uncontested, legally established or recognised by REHM. The Purchaser only has the right of retention if its counterclaim relates to the same contractual relationship.
VIII. Property rights
REHM reserves all unlimited property and commercial rights of protection for all cost estimates, drawings and other documents; such data must not be made available to third parties without REHM’s written permission in advance. Drawings and other documents relating to offers must be immediately returned if REHM was not commissioned with the task.
IX. Construction Changes
REHM reserves the right to undertake construction changes at any time. However, REHM is not obliged to carry out this kind of changes on products already delivered.
X. Installation and assembly
The following provisions in accordance with Section X 1 to 7 of the REHM Sales Conditions are applicable to Services provided by REHM in the form of installation and assembly:
1. The Purchaser shall provide, carry out and take over the following at its own expense in a timely manner:
a) An appropriate number of help teams such as handymen and, if necessary, bricklayers, locksmiths, crane drivers and other specialist workers, as well as any tools they may require.
b) All ground, bedding, construction, trunk, scaffolding, cleaning, painting and other work not standard to the industry, including necessary work materials.
c) Objects and materials required for the assembly and operation, such as support beams, wedges, supports, cement, cleaning and sealing agents, lubricant, fuel and other scaffolding or hoisting gear and any other necessary equipment.
d) Operating power and water, including necessary connections to the point of use, heating and general lighting.
e) Sufficiently sized, lockable rooms for the storage of machine parts, apparatus, materials, tools etc. at the installation location, and suitable working and leisure rooms, including sanitary facilities, for the installation team. Generally, the Purchaser shall implement the same measures to protect REHM property and the installation team as the Purchaser would take to protect its own property and staff.
f) Any and all protective clothing and safety equipment that may be necessary for the installation location due to special circumstances and that are not standard for REHM’s field.
2. Before installation work begins, the Purchaser shall provide necessary information concerning hidden electricity cables and gas pipes or similar, as well as any required data.
3. Before installation or assembly work begins, all delivery components required for the beginning of work must be at the installation location, and all bricklaying, carpentry and other work must be far enough along so that installation or assembly can begin and be carried out without interruption as soon as the installer or assembly staff arrive. In particular, access routes and installation/assembly points should be even and clear, groundwork should be dry and secure, foundations must be filled, and, if installation is to take place inside, walls and ceilings must be complete, and windows and doors installed.
4. If installation, assembly or operation is delayed due to circumstances not owing to any fault of REHM, especially on the construction site, the Purchaser shall carry reasonable costs for waiting times and further necessary journeys by the installer or assembly staff.
5. The Purchaser is obliged to document working times for the installer or assembly staff on a weekly basis. The Purchaser is also obliged to provide the installer or assembly staff with a notification about the end of the assembly/installation immediately.
6. If REHM has taken over installation or assembly on an individual billing basis, the following applies in addition to the provisions in Section X 1 to 5 above:
a) The Purchaser shall pay REHM the rate agreed upon when the order was placed, including additional charges for overtime, night work, work on Sundays and public holidays, planning and supervision, and work in difficult circumstances. Preparation work, travel, running time and communication all count as work time.
b) Furthermore, travel costs, costs for transporting tools and personal luggage, accommodation allowance, and pay for days off and public holidays shall also be reimbursed.
7. If REHM requests acceptance of the delivery after provision, the Purchaser must accept within two weeks. If this does not happen, acceptance will be considered granted if the Purchaser refrained from accepting within this time due to reasons not relating to defects declared to REHM that either make use of the delivery impossible or considerably affect its use. The same applies if the delivery has been put into appropriate long-term use. Regardless of the express declaration of final acceptance, acceptance shall be considered granted once the equipment is put into production use. This also marks the start of the guarantee period. Also regardless of the express declaration of final acceptance, risk shall be transferred to the Purchaser once the equipment is put into production use, meaning the Purchaser will be responsible for any replacements if the equipment is damaged.
The Purchaser’s rights of guarantee are based on legal regulations subject to the following stipulations:
1. The applicability of the regulation specified in Sec. 377 of the HGB (obligation to inspect and contest defects) is expressly agreed to. All guarantee claims shall expire in one (1) year from the start of the statutory limitation period. This does not apply insofar as longer periods are mandatory by law (Sec. 438 para. 1 number 2, Sec. 479, paragraph 1 and/or Sec- 634 a) para. 1 number 2 of the BGB), and in the case of intent or gross negligence, as well as damage to body, life and health.
2. Rejected products or products with recognisable defects may not be used and/or handled.
3. REHM product descriptions are only to be seen as purchasing information. Any published information and prices do not constitute contractually relevant statements.
4. Purchaser claims regarding costs necessary for the purposes of supplementary performance, such as transport costs and work and materials costs, are excluded insofar as these costs are incurred because the object of the supplementary performance was brought to a location other than the Purchaser’s offices, unless this movement was in line with its intended use.
5. REHM's duty of guarantee is limited to improving a defect within a reasonable deadline. There is no claim to damage compensation. The Purchaser reserves the right to demand a reduction in price or annulment of the contract if supplementary performance is not successful. The performance will be considered unsuccessful if it is impossible, if REHM honestly refuses to carry it out, if delays are unreasonable, or if the number of defects make it unreasonable to the Purchaser.
6. The remedying of defects does not include normal wear and tear or damages resulting from improper or careless handling, overburdening, unsuitable operational materials, or the results of external influences such as chemical, electro-chemical or electric processes not outlined in the contract, as well as non-reproducible software errors. If the Purchaser or a third party has undertaken unsuitable changes, processing or operation, any resulting defects do not constitute grounds for defect claims.
1. The Purchaser's claims to damage compensation, regardless of their legal grounds but in particular due to violation of obligations and unauthorised trade, are excluded. This does not apply if liability is mandatory, e.g. in accordance with the Product Liability Act, in the case of injury to life, body or health, or the violation of cardinal duties (obligations whose fulfilment is vital to the contract’s fulfilment, and on which the Purchaser can regularly rely), as well as other damages caused by intent or gross negligence on the part of REHM, its legal representatives or vicarious agents. Damage compensation for the violation of contractual obligations is limited to typical, foreseeable damages, unless liability involves damage to life, body or health, intent or gross negligence. The above regulations do not affect the Purchaser’s duty to provide evidence.
2. The Purchaser's claims to damage compensation shall expire in one (1) year after the statutory start of the limitation period. This limitation period is not applicable in the case of damages arising from intent or gross negligence, damages to the body, health or life and insofar as legal limitation periods are mandatory.
3. Unless liability is strictly mandatory by law, REHM’s liability is limited as follows: REHM’s compensation for property damage is limited to EUR 5 million, and resulting further pecuniary loss compensation is limited to a sum of EUR 100,000 per damage case (in accordance with the current coverage sum for product liability or liability insurance), even in the case of violation of a cardinal obligation.
XIII. Impossibility, contractual adjustment
1. If it is not possible for REHM or the Purchaser to fulfil their relevant service obligations, the general principles of law shall apply to the following extent: if this impossibility is due to REHM’s own fault, the Purchaser is permitted to demand damage compensation. However, the Purchaser’s damage compensation claim is limited to 10% of the value of the relevant part of the service/delivery that cannot be purposefully carried out. Any Purchaser damage compensation claims that exceed 10% are excluded. This does not apply if liability is mandatory in accordance with Section XII 1. The Purchaser's right to withdraw from the contract remains unaffected.
2. Insofar as unforeseeable circumstance in the sense of Section III 6 alter the economic meaning or the content of the delivery considerably, or have a considerable effect on REHM’s operation, the contract shall be suitably adjusted in good faith. Insofar as this is not economically reasonable, REHM shall have the right to withdraw from the contract. If REHM exercises this right of withdrawal, REHM must inform the Purchaser immediately after becoming aware of the scope of the circumstances, even if an extension of the delivery deadline was already agreed with the Purchaser.
XIV. Place of fulfilment and supplementary performance, applicable law and place of jurisdiction
1. Unless otherwise agreed in writing, Göppingen is the place of fulfilment. The place of fulfilment for supplementary performance is the delivery/service location.
2. German law applies exclusively to these REHM Sales Conditions and the legal relationship between REHM and the Purchaser as a whole, with the exclusion of the UN Sales Convention (United Nations Convention on Contracts for the International Sale of Goods) and conflict of laws.
3. If the Purchaser is a merchant in the sense of the German Commercial Code, a legal entity under public law, or a special fund under public law, Göppingen is the exclusive place of jurisdiction for all disputes arising from or in relation to this contractual relationship. This also applies if the Purchaser’s statutory domicile or administrative base is not within Germany. REHM is permitted to initiate legal proceedings at the court of the Purchaser’s general place of jurisdiction. Mandatory legal regulations concerning exclusive places of jurisdiction remain unaffected by this provision.
XV. Saving storage
REHM is permitted to collect, save, process and use for its own purposes any personal data provided insofar as is required for processing the contract and within the realms outlined by law. REHM shall not transfer this data to third parties.
The Purchaser must adhere to all legal requirements applicable at the time of the contract’s completion. The Purchaser is aware that REHM does not encourage or tolerate any kind of direct or indirect advantages regarding fulfilling contractual goals, nor any anti-competitive practices. If the Purchaser violates this provision, REHM shall be granted the right to terminate all contracts with the Purchaser without notice. The Purchaser shall be held liable for all consequences resulting from a violation of this provision.
XVII. Salvatorische Klausel
If a provision in these REHM Sales Conditions or a provision within the framework of any other agreement should be or become ineffective, all other provisions and agreements shall remain unaffected. This does not apply if it would be unreasonably difficult for one party to uphold the contract.
Valid as of: February 2016