General Terms and Conditions of RMB GmbH, Hansmertenweg 87, D-33335 Gütersloh, No. 01/2012
Area of validity:
Only the version effective at the time of order of the following General Business and Payment Terms and Conditions apply to the business terms between RMB GmbH and the Orderer.
General payment terms
Unless agreed otherwise, our offers, deliveries and services connected therewith are based exclusively on these Sales and Delivery Terms and Condition. We do not accept terms and conditions of the customer, which oppose ours or are not included in our sales and delivery terms and condition, even if we do not object to their validity expressly on a case-by-case basis.
Moreover, our Sales and Delivery Terms and Conditions apply to all future offers, deliveries, and other services we provide to our Customers even if we do not have an express agreement. The ordered products can be paid as follows. The purchase price of the ordered products and services is payable and due immediately upon conclusion of the agreement.
Payments can be made by credit cards, bank debit, advance payment, cash on delivery, or by invoice. In the event, we do business with a business entity, RMB can grant a payment deferral, which will be specified on the cost estimate.
We invoice in Euros and our invoices are due and payable in Euros. Unless otherwise agreed, all payments are due and payable in full 30 days after the date of the invoice. The payment is effectively made as soon as we can use the amount without recourse (receipt of payment).
Bills of exchange and checks are only accepted for payment and applied as payment after they are credited to our account without reservation. The Customer is charged any costs incurred thereby, particularly bank fees, discount, bill of exchange and other expenses plus value-added-tax. These charges are due and payable immediately.
Set-offs and retention of payment having the effect of a set-off are only permitted if approved by us, if undisputed, or if decided or legal claims of the Customer determined by a court of law. If the delivery is defective any set-off rights of the Customer shall remain unaffected therefrom.
General Terms and Condition
Our offers are subject to change and non-binding unless they were specifically marked as bindings or include a specific acceptance date. This applies also to drawings, plans, catalogues, samples, cost estimates and other documents and any software we have provided to our Customer and to which we reserve the right of ownership, copyrights and intellectual property rights (including the right to register these rights). Confidential information, particularly offers and order confirmation for machinery and systems as well as drawings may only be made accessible to third parties upon our approval.
Prior to concluding the agreement the Customer must inform us if the ordered delivery item
• | is not only intended for ordinary use | |
• | is utilized under unusual circumstances or under circumstances that require an increased wear and tear or that constitute a particular health, safety, or environmental risk | |
• | is utilized under unusual circumstances or under circumstances that require an increased wear and tear or that constitute a particular health, safety, or environmental risk |
§ 1 Conclusion of contract
The offer of RMB GmbH is subject to change. A purchase agreement concerning the Customer's order is concluded when the Customer completes the form provided by RMB online and transmits it by Internet, fax or phone to RMB GmbH and RMB accepts it express by mailing a confirmation e-mail or implied by sending the merchandise. (Online Shop!)
If after the conclusion of the agreement, it becomes obvious that our demand for payment is at risk through the Customer's inability to perform then we shall have the right to refuse performance or performance preparing services. The right to refuse performance no longer applies if payment is made or security for it is provided. We can grant the Customer a specific grace period for payment/collateral security. After the period expires without success, we are entitled to rescind the agreement. In agreements concerning the production of unreasonable items (customized productions), we can rescind the agreement immediately; the statutory regulations concerning the waiver of a notice shall remain unaffected thereby.
§ 2 Cost estimate
In the event of business agreements with business entities, cost estimates shall be valid for a period of 30 days from the date the document was prepared (with the exception of the case described in paragraph 9). The legally authorized buyer accepts the cost estimates by his or her signature and the company stamp and he or she returns it to RMB GmbH by fax. Acceptance of the cost estimate includes the acceptance of the General Payment and Business Terms and Conditions.
§ 3 Processing and ordering procedure
As soon as all necessary elements are available, then the order is prepared.
Required elements:
• | return of the cost estimate as specified in paragraph 2 | |
• | a current and accurate delivery address, a contact person, and a telephone number. |
The order is not processed as long as we do not have the specified elements. RMB GmbH shall not be liable for any delays in deliveries because of this defect. If the address specified is inaccurate in whole or in part and RMB GmbH must sent the order back to the warehouse because it cannot be delivered then RMB GmbH reserves itself the right to invoice the Customer for any additional processing and delivery costs resulting therefrom.
• | Germany € 25.00 per package | |
• | remaining Europe € 60.00 per package | |
• | pallet by weight |
§ 4 Delivery
All deliveries are shipped at the cost and risk of the Customer. After the order is received and the payment is made, the order is delivered to the home address of the Buyer, the Orderer, or any other desired address specified in the order within a delivery term from 4 working days to 3 weeks provided force majeure is not preventing timely delivery. (Online Shop!) We have the right to partial deliveries if
• | the Customer can utilize the partial delivery within the framework of the contractually specified intended purpose | |
• | the remaining items of the order are ensured and |
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• | it does cause an unreasonable additional expense or additional costs to the Customer (unless, we declare covering these expenses). |
If we have agreed with the Customer on a time of delivery, installation, or set-up service, then the Customer is obliged to undertake all necessary preparation at the set-up site to enable us to carry out the intended work. In particular, the Customer is obliged to provide electrical connections, compressed air connections and sufficient lighting at the workplace. Furthermore, the Customer must provide dry and lockable rooms to store the tools of the installers.
If it's the Customer's fault that we cannot complete the intended work of complete it within a reasonable time then the Customer shall be liable toward us for an damages we suffered, in particular, to reimburse us for the additional costs, additional trips and working time spent by our employees unproductively or additional time needed by them as a result. When determining the damage, the additional costs for the additional work of our employees and the additional costs for additional trips can be applied in accordance with our effective installation cost guidelines. The contractual parties are however free to prove a higher or significantly lesser actual damage.
The delivery term is determined by the agreements between the contractual parties. Requirement for maintaining the delivery term is that the Customer provides all necessary documents within a timely manner and the Customer clarifies completely all technical questions and specifications required for the desired realization. The time during which the Customer is in arrears with the agreed payment is not part of the calculated delivery term, i.e. the delivery term is extended by the time during which the Customer is in arrears.
In deliveries, the risk transfers to the Customer at the time any delivery leaves our warehouse. The same shall apply to partial deliveries. If the shipment is delayed due to circumstances beyond our control, then risk passes to the Customer with the notice that the delivery is ready to ship. Upon the Customer's request and at the Customer's expense, we are obliged to obtain the insurance covers desired by the Customer. If our employees carry out the transport then we have the risk with regard to circumstances caused by our employees' fault; however, the accidental risk is born in any case by the Customer. If set-up or installation is part of the contractually owed services and acceptance is part of this service, then the risk transfers at the end of the day on which the acceptance test was carried out or -- if it was not carried out by the Customer's fault -- should have been carried out, however, no later than at the end of the day on which the Customer has begun utilizing the delivery item for the Customer's own commercial purposes. Irrespective therefrom, the Customer is obliged to pay for the realized services if the delivery items are damaged or destroyed at the site of installation prior to acceptance by unavoidable circumstances, which are not our fault.
A written acceptance protocol must be prepared of the acceptance test. This protocol must be signed by both contractual parties. Any defects on the delivery item must be documented.
The delivery item is accepted if
• | the delivery item shows no or only negligible defects or |
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• | the acceptance test could not be carried out due to the Customer's fault or |
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• | the Customer began operating the delivery item for the Customer's own commercial purposes. If a contractual non-conformance is discovered on the delivery item during the acceptance test then we are entitled and obliged to rectify this contractual non-conformance immediately. |
§ 5 The right to cancel and return, money-back guarantee
The Orderer has the right to cancel the agreement within seven working days from receipt of the merchandise without specifying any reasons. The deadline is met is the revocation is sent in a timely manner to RMB GmbH, Hansmertenweg 87, D-33335 Gütersloh or by e-mail to service@rmb-solutions.com. In the event of revocation, the Orderer is obliged to return the merchandise to RMB GmbH at Orderer's expense. In the event of non-compliance with the delivery terms, RMB GmbH is additionally willing to accept the Orderer's cancellation of the order and it will refund any payments it has already received.
(Online Shop!)
§ 6 Pricing
The price specified on the order form includes all taxes and dues. It includes the statutory value-added-tax, excise duties, and other dues. Postage is invoiced separately in accordance the price sheet on the order form. RMB GmbH reserves itself the right to change prices.
§7 Payment default
In the event of business transactions with commercial entities, late fees are levied from the day of the payment date specified on the invoice. The basis for calculating the late fees is the total amount of the order, onto which 1.5 times the statutory interest rate is charged. (Online Shop!)
§8 Presentation of products
The characteristics of the products offered by RMB GmbH are described on the homepage. The illustrations are not binding. RMB GmbH shall not be liable for errors in the products' description. All texts and illustrations on the pages of RMB GmbH are subject to a worldwide copyright. Any copies event parts thereof are prohibited (4).
§ 9 Retention of ownership
The delivered merchandise shall remain the property of RMB until all payments RMB GmbH is owed by the Customer are paid in full.
We reserve the right to retain ownership on the delivered merchandise until all -- even future -- payments (including additional charges such as bill of exchange fees, financing charges, and interest) due and payable under the business relation with the Customer are made in full. If an open account is agreed with the Customer, then the retention of ownership title is in force until the balance of the permitted open account is paid in full. If a check or a bill of exchange is accepted, then performance is completed once the check or bill of exchange has been credited and we can utilize the amount without the risk of recourse. If payment by check or bill of exchange has been agreed with the customer then the retention of ownership title is in force until the bill of exchange issued by us was paid by the Customer and it will not stop by the credit of the check received by us.
(1) | The Customer is obliged to treat the merchandise subject to the retained title with care and to inform us promptly in the event of enforcement action, attachment and loss; we have the right to rescind the agreement in the event of non-compliance with this duty. The Customer is responsible for all expenses, which have to be expended within the framework of a third party motion to vacate an enforcement action and perhaps the recovery of the delivery items to the extent they cannot be collected by third parties. |
(2) | In the event of default or if the Customer breaches other significant contractual duties, we are entitled to take back temporarily the items subject to a retained title. Taking back these items does not constitute a rescission of contract. |
(3) | With regard to the merchandise with retained title, the Customer assigns to us already at this time from the resale or further processing or any other legal basis (insurance, prohibited action, loss of property by connecting the delivery item to a real property) the claim for the amount of the purchase price, production invoice or any other claims (including the acknowledged balances of the open account agreement or in the event of bankruptcy of the business partner, the existing "causal account balance") in the amount of the value of the invoice of the merchandise with retained title; we hereby accept this assignment. We hereby grant the Customer a revocable authorization to collect for us in the Customer's own name the claim assigned to us. This authorization to collect may only be revoked if the Customer does not meet its payment obligations properly. In such an event, the Customer must provide us upon our request the necessary information about the assigned claims, provide us the corresponding documents and to notify the debtor of the assignment. The assignment of the claim in accordance with (sentence 1) serves to secure all claims -- even future ones -- arising under the business relationship with the Customer. |
§ 10 Retention of title, set-off, reduction
(1) Our warranty is subject to the following provisions. Paragraphs 3, 7, and 9 of the following regulations do however not apply if our Customer (or its customer or an additional customer) sells the newly produced delivery item unchanged to a consumer, i.e. a natural person to whom this purchase agreement cannot be assigned to that person's commercial or freelance professional work. In these cases, the legal provisions apply in lieu of the specified paragraphs.
(2) If the purchase is for both Parties a commercial business transaction then the Customer must notify us of any defects immediately in writing provided this is in agreement with a proper business transaction; however, notification of hidden defects must be done upon discovery – otherwise, the merchandise is deemed accepted.
(3) If the delivered merchandise has a not insignificant defect then the Customer can request upon our choosing either the rectification of the defect (rectification or delivery of a defect free item (replacement delivery)). The rectification includes neither the expansion of a defective item nor the renewed installation if we were not originally obliged to install. We will cover any costs necessary for the inspection and rectification, in particular the costs of transport, of travel, work and material costs (but not the costs for disassembly and installation) provided there is a defect. We may request reimbursement from the Customer for any costs incurred if it is determined that the demand for defect rectification was unjustified.
(4) In urgent cases, e.g. imminent danger to the operational safety or aversion of unreasonable damages, then the Customer has the right to rectify the defect and to demand reimbursement of the expenses that were objectively necessary. We must be notified immediately of and if possible prior to such self-remedy. There is no right to self-remedy if we would be entitled to refuse a respective rectification under legal provisions.
(5) If we are not ready or unable to rectify/replace the delivery item, particularly if it is delayed beyond reasonable terms for reasons which are at our fault, or if the rectification/replacement delivery fails in any other manner, then the Customer has the right to rescind the contract or reduce the purchase price provided additional attempts to rectify the matter are unreasonable for the Customer.
(6) Any claim for material defects is excluded if the delivery item was used in an unsuitable or improper manner, if the installation was faulty or the Customer's commissioning or commissioning by third parties not engaged by us was the culprit of the defect, or it was caused by normal wear and tear (particularly of wear and tear parts), if the delivery item was handled improperly or carelessly; insufficient maintenance, insufficient operating resources and replacement materials, defective installation, unsuitable property, chemical, electrochemical, electrical or electronic influences provided we were not the cause for it. The Customer is aware that individually constructed systems achieve their full capacity only after a reasonable runtime.
(7) Subject to sentence 2, the statute of limitation for claims for material defects ends as soon as the delivered item has 2,500 operating hours; however, no later than after one year. If we are responsible for injuries to life, body, or health and in cases of intent and gross negligence then the statute of limitation for claims for material defects shall be two years. The period of the statute of limitations begins at the date of shipment. If acceptance is part of it, then the period of the statute of limitations begin at the end of the day on which the acceptance test was carried out or -- if it was not carried out by the Customer's fault -- should have been carried out, however, no later than at the end of the day on which the Customer has begun utilizing the delivery item for the Customer's own commercial purposes.
(8) We are only liable for damages of a defect to the delivery item within the limits specified in § 11.
(9) If the defective delivery item has been produced by a third party, then we are entitled to cede our material defect claims against our supplier to the Customer and to inform the Customer about the assertion of (legal) claims against the supplier. Recourse against us under paragraphs 3 and 8 can only be asserted once the claims against our own suppliers could not be asserted despite a timely (legal) action was filed or the claim was unreasonable in a particular case.
§ 11 Liability
RMB GmbH shall only be liable for gross negligence and intent. The same applies to the liability of employers, agents, and representatives. In the event of slight negligence, we shall be liable only
a) for damages arising from injuries to life, physical injuries or injuries to health
b) for damages from non-compliance with a significant contractual duty.
Significant contractual duties are such duties the fulfilment of which enables the proper execution of the agreement and the contractual party puts and can regularly faith into their compliance. Our liability however in the event of non-compliance with significant contractual duties shall be limited to the replacement of the typical foreseeably occurring damage. To the extent that our liability is excluded or restricted based on the above referenced provisions, then the same shall apply to the liability of our organizational bodies, employees, staff members, workers, legal representatives, and other agents.
§ 12 Privacy policy
a) RMB GmbH will store and process electronically any personal information, the Orderer discloses to RMB GmbH at the time of the order within the framework of the legal provisions of the Federal Data Protection Act (BDSG). RMB GmbH utilizes this information only to the extent necessary to process the order. RMB GmbH will not provide personal information of the Orderer to third parties without the Orderer's consent.
b) Upon request, the Orderer will receive from RMB GmbH at any time information about the data, which RMB has stored with regard to the Orderer. The Orderer may revoke at any time the granted permission to store these data and the Orderer can cancel the customer relationship with RMB. Subsequently, RMB will delete immediately all data related to the person of the respective Orderer.
§ 13 Applicable law, jurisdiction
a) This Agreement is governed by European law.
b) Jurisdiction is Gütersloh. If the Customer is a businessperson in accordance with the German Commercial Code, a legal entity under public law or special fund under public law, then jurisdiction for all rights and duties of the contractual parties arising under all types of business transactions -- even for disputes arising under bill of exchange and check dealings -- is the place of performance (Gütersloh). The same applies if the Customer has no general domestic jurisdiction, has relocated the ordinary place of residence abroad or the domicile or general residence is not known at the time legal action is taken. However, we have the right to sue at the general jurisdiction of the Customer.
§ 14 Severability Clause
If individual provisions of the Agreement including these provisions are ineffective in whole or in part, or if this Agreement contains a gap, it does not affect the effectiveness of the remaining provisions or parts of such provisions. Respective legal regulations take the place of the ineffective or missing provisions.
Please write to us if you have any questions concerning our General Terms and Conditions.