1. 1. General provisions
1.1 All deliveries, services and quotes of Bernd Richter GmbH (hereinafter: “Seller” or “We”) shall be based exclusively on these General Terms and Conditions. They constitute an integral part of all contracts concluded by the Seller with its contractual partners (hereinafter also called “Customers”) for the deliveries or services offered by the Seller. They shall also apply to all future deliveries, services or quotes to the Customer, even if they are not agreed separately again.
1.2 These General Terms and Conditions shall apply only to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 para. 1 of the German Civil Code (BGB).
1.3 Any terms and conditions of the Customer or of third parties shall not apply, even if the Seller does not separately object to their validity in particular cases. Even if the Seller refers to a letter containing or referring to the terms and conditions of the Customer or of a third party, this shall not constitute an agreement to the application of such terms and conditions.
1.4 Individual agreements made with the Customer in particular cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these GTC. Such individual agreements shall be made in writing to be effective. Other than managing directors or authorized signatories, the Seller’s employees shall not be entitled to make any verbal agreements in deviation from the written agreement.
1.5 Transmission by way of telecommunication, in particular by fax or e-mail, shall be sufficient to comply with the written form requirement, provided that a copy of the signed declaration is transmitted.
2. Quote, order acceptance and withdrawal
2.1 Our quotes shall be subject to change and non-binding, subject to prior sale.
2.2 This shall also apply if we have furnished the Customer with catalogs, technical documentation (e.g. drawings, plans, computations, calculations, references to DIN standards), other product descriptions of the documents – including in electronic form – to which we reserve property and copyrights.
2.3 We shall not assume any liability for the accuracy of manufacturer’s information.
2.4 The order placed by the Customer shall be deemed to be a binding offer of contract.
2.5 Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Customer.
2.6 Any orders or calls shall require a minimum quantity of 20 units per item. In case of failure to comply with this requirement, we shall charge € 150 per order items with a smaller order quantity.
2.7 If our order confirmation contains deviations from the Customer’s order, the deviations shall be deemed approved by the Customer, unless the Customer has objected in writing within 8 days of the date of issue of the order confirmation.
2.8 The Customer shall have the right to withdraw from the contract without stating any reason with the Seller’s consent (as the case may be, prior to delivery of the goods). In such case, the Seller shall be entitled to claim a flat amount of 15% of the net order amount as damages, unless the other contracting party is able to demonstrate no damage at all or significantly less damage than the flat amount has been incurred. Our right to specifically calculate damage and, as the case may be, to claim higher damages shall remain unaffected by this provision.
3. Scope of the delivery obligation
Given the special characteristics of our production, we retain the right to make excess and short deliveries of up to 10% of the quantity ordered in case of custom-made products and to modify the stipulated price for the total delivery in accordance with such excess or short delivery. The stipulated unit price per unit shall remain unaffected.
4. Delivery times, delivery and shipping
4.1 The delivery time shall be agreed individually or specified by us upon acceptance of the order, but shall not be binding.
4.2 If stipulated delivery times cannot be met for reasons not under the Seller’s control (cases of force majeure, such as war, threat of war, riot, use of force by third parties against persons or property, sovereign interventions, including currency and commercial policy measures, labor disputes in our company or at our suppliers or transport companies, interruption of intended transport connections, fire, shortage of raw materials, shortage of energy and other operational disruptions, such as software failures in our company or at our suppliers), fixed delivery times and dates shall be extended by the duration of such impediment. The Seller shall thus notify the Customer without undue delay and indicate the expected new delivery time.
4.3 This shall also apply if we are already in delivery default or if the performance impediments specified above existed already prior to conclusion of the contract, without us being aware thereof.
4.4 In the event of acceptance default, any other culpable breach of duties to cooperate on the part of the Customer or delay in delivery due to culpable conduct on the part of the Customer, we shall be entitled to compensation for the resulting damage, including any additional expenses (e.g. storage costs). We shall retain the right to charge a storage fee in the amount of 1% of the net value of the goods per month or part thereof. We shall retain the right to assert further claims.
4.5 In such case, the risk of accidental loss or accidental deterioration of the goods shall pass to the Customer at the time of acceptance default or other breach of duties to cooperate.
4.6 Acceptance default on the part of the Customer shall entitle us to withdraw from the contract or to claim damages for non-performance after setting a reasonable grace period with corresponding warning has expired without results. Our claim for damages shall amount to a flat 30% of the net value of the goods of the order, unless the Customer is able to demonstrate no damage at all or significantly less damage than the flat amount has been incurred. Our right to specifically calculate damage and, as the case may be, to claim higher damages shall remain unaffected by this provision.
4.7 Insofar as the Customer might reasonably be expected to accept this, we shall be entitled to make partial deliveries and provide partial services, which we may invoice separately in each case.
4.8 We shall deliver our goods in standard commercial packaging
4.9 Call orders shall be valid for a maximum of 12 months. After expiry of 12 months, we shall retain the right to deliver any remaining quantities, charging back any granted quantity discounts.
5. Prices, purchase commitment, return deliveries of goods and payment
5.1 Unless stipulated otherwise in particular cases, sales shall be made at the respective applicable daily prices, plus the respective applicable statutory value-added tax.
5.2 We shall have the right, but not the duty, to take back goods returned to us by the Customer without justified grounds for complaint, which are in perfect condition, by issuing a credit note for the purchase price, less 10%, and in any event at least € 20 plus VAT for administrative expenses. If the goods are damaged, the reduction in value may also be deducted from the credit note. In addition, any shipping and packaging costs incurred by us may also be deducted from the credit note. The deduction for administrative expenses shall be either higher or lower if we are able to demonstrate higher or the Customer demonstrates lower expenses.
5.3 Return delivery shall be made carriage paid, including packaging. The transport risk shall be borne by the Customer.
5.4 Unless expressly stipulated otherwise, payment of the purchase price shall be made within 30 days of the invoice date, without any deductions.
5.5 We shall retain the right to offset the payment against the respective oldest claim in each case. Cash discounts may not be deducted in case of any due open claims. Cash discounts generally are not granted in case of repair orders.
5.6 If thus stipulated, we accept bankable or properly taxed bills of exchange as conditional payment. Credit notes for checks or bills of exchange shall be made subject to receipt, deducting any costs of such checks and bill of exchange, with value date on the day on which we are able to dispose of the counter-value.
5.7 We shall retain the right in particular cases to make delivery only against cash, cash on delivery or advance payment.
5.8 Claims shall become due and payable immediately, regardless of the term of any bills of exchange that may have been accepted and credited, if facts become known that give rise to doubts about the Customer’s creditworthiness.
5.9 In the event of default of payment, we shall be entitled to charge statutory default interest at a rate of 9 percentage points above the respective applicable base interest rate (Section 288 para. 2 BGB). After the final reminder, we shall be entitled to charge dunning fees in the amount of € 25. The Seller shall retain the right to assert further damage due to default. A claim to commercial rate default interest (Section 353 of the German Commercial Code (HGB)) shall remain unaffected.
5.10 Any offsetting against the Customer’s counterclaims that are disputed shall not be admissible. If a notice of defects is asserted, payments may be withheld only to the extent it is in reasonable proportion to the defects occurred. However, this shall be the case only if we have no doubts about the justification of the complaint asserted.
6. Passage of risk, acceptance
6.1 The risk shall pass to the Customer upon the deliverable leaving the plant, even if part deliveries are made or if we have assumed other performances as well, e.g. the shipping costs or delivery and installation. Where acceptance is required, this shall be decisive for the passage of risk. Acceptance must take place without undue delay on the acceptance date, or in the alternative, after our notification of readiness for acceptance. The Customer may not refuse acceptance in the event of minor defects.
6.2 If shipment or acceptance is delayed or does not take place due to circumstances not under the Seller’s control, the risk shall pass to the Customer on the date of notification of readiness for shipment or acceptance.
6.3 We undertake to take out insurance at the Customer’s request and expense.
6.4 Part deliveries shall be admissible if the Customer can be reasonably expected to accept them.
7. Reservation of ownership
7.1 We shall reserve ownership of the sold goods until all current and future claims under the purchase contract and any ongoing business relationship have been paid in full (in the alternative: until the purchase price (including VAT and shipping costs) for the goods concerned has been paid in fill).
7.2 In the event of any conduct on the part of the Customer in breach of contract, in particular, in the event of default of payment, we shall be entitled to take the goods back after issuing a reminder and the Customer shall be obliged to surrender the goods.
7.3 The assertion of the reservation of ownership as well as the seizure of the delivery items by us shall not be considered a withdrawal from the contract, unless the provisions of the Consumer Act (Verbrauchergesetz) apply or if we have explicitly declared this in writing.
7.4 The Customer shall be entitled to resell the delivery items in the ordinary course of business; however, the Customer hereby assigns to us all claims in the amount of the purchase price stipulated by and between us and the Customer (including value-added tax) which accrue to the Customer from such resale, irrespective of whether the delivery items are resold without or after processing. The Customer shall be authorized to collect such claims following their assignment. Our power to directly collect the claims shall remain unaffected; however, we undertake not to collect the claims as long as the Customer duly meets their payment obligations and is not in default of payment. If this is the case, however, we may demand that the Customer discloses the assigned claims and their debtors, provides all information required for collection, surrenders the associated documents and notifies the debtors (third parties) of the assignment.
7.5 Any processing or transformation of the goods by the Customer shall in all instances be done on our behalf. If the delivery items are processed with other items not owned by us, we shall acquire co-ownership of the new item in proportion of the value of the delivery items relative to the other processed items at the time of processing.
7.6 If the delivery items are inseparably mixed with other items not owned by us, we shall acquire co-ownership of the new item in proportion of the value of the delivery items relative to the other mixed items. The Customer shall keep the co-ownership for us.
7.7 The Customer may not pledge the delivery items or assign them as security. In the event of seizure, as well as confiscation or any other third-party pledges, the Customer shall thus notify us without undue delay and furnish all information and documents required to safeguard our rights. Enforcement officials or any third party must be notified of our ownership.
7.8 At the Customer’s request, we undertake to release the securities due to us to the extent their value exceeds the claims to be secured by more than 20%, unless they have already been settled.
8. Notice of defects, warranty, general limitations of liability, producer’s liability
8.1 The Customer’s rights in case of defects shall be contingent upon the Customer having duly complied their obligations to inspect and give notice of defects pursuant to Section 377 HGB, with such notice to be made in writing.
8.2 The Consumer’s rights due to defects in the goods shall be determined in accordance with the statutory provisions, provided that the Customer is to grant us a reasonable period of time for subsequent performance of no less than 4 weeks. The Customer shall be free to grant us a shorter period in particular cases if it can be shown that a period of 4 weeks would be unreasonable.
8.3 The period for subsequent performance shall in no case commence prior to the return of the goods. If only part of the delivered goods is defective, the Customer’s right to demand reversal of the contract or damages in lieu of performance shall be limited to the defective part of the delivery, unless such limitation would be impossible or unreasonable.
8.4 Our liability for damage due to injury to life, limb or health based on a culpable breach of duty, shall not be excluded or limited.
8.5 We shall be liable for any other damage of the Customer only if such damage is based on a willful or grossly negligent breach of duty by us, one of our legal representatives or vicarious agents. If we have caused the damage only by slight negligence, we shall be liable only in the event of a breach of essential contractual obligations, and in fact limited to damage that is usually reasonably foreseeable at the time of concluding the contract. Besides, claims for damages on the part of the Customer for breach of duty, tort or any other legal basis shall be excluded. Moreover, indirect and consequential damage resulting from defects in the delivery item may be subject to compensation only if such damage is typically to be expected when the delivery item is used for its intended purpose.
8.6 The above limitations of liability shall not apply to the absence of promised characteristics if and to the extent that the warranty had the purpose of protecting the Customer against damage other than to the delivered goods as such.
8.7 Where our liability is excluded or limited, this shall also apply to the personal liability of our employees and vicarious agents.
8.8 The above exclusions of liability shall in any case also apply to consequential damages, but shall not apply to claims under the Product Liability Act (Produkthaftungsgesetz).
8.9 The Customer shall indemnify us against all claims for damages asserted by third parties based on the provisions on tort or product liability or any other provision due to defects in the goods manufactured or delivered by us or the Customer, if such claims would also be justified against our contractual partner or merely are no longer justified as they have lapsed. Under these conditions, the Customer also is to indemnify us against the costs of any legal disputes initiated against us due to such claims.
9. Repair
9.1 If a quotation is requested prior to any repair, this is to be explicitly stated. The cost of such quotation may be charged to the Customer.
9.2 In the absence of any defects report, clearly showing the material defect, repair shall be carried out outside of warranty. We shall be free to decide whether we carry out the repair internally or commission a third-party workshop to do so. Shipment shall be at the Customer’s risk and for their account.
10. Export control provisions
The Customer shall be obligated to verify whether delivered goods if intended for export can be exported. The Customer shall be responsible for compliance with such export regulations up to the end user. Any violations of these provisions are liable to prosecution.
11. Applicable law, jurisdiction
11.1 Contractual relations between Seller and Customer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
11.2 Place of performance and exclusive place of jurisdiction for all disputes arising under or in connection with this contractual relationship shall be Wipperfürth.
12. Packaging
We shall use exclusively packaging that can be reused by the Customer or disposed of without any issues. Hence we shall not be required to take back any sales packaging. We will take back transport packaging by sending it free of charge to our headquarters in Wipperfürth.
13. Limitation
13.1 Claims due to defects in quality or title of the goods delivered by us shall lapse one year from delivery or, if acceptance is required, from acceptance.
13.2 The statutory limitation period shall apply to claims for damages on the part of the Customer due to injury to life, limb or health or any willful or grossly negligent breaches of duty by the Seller or the Seller’s vicarious agents.
13.3 Moreover, any other claims of the Customer – on any legal basis whatsoever – shall lapse after 12 months; this shall also apply to the statute of limitations for claims under a recourse claim in the supply chain pursuant to Section 445b para. 1 BGB, unless the last contract in the supply chain is not a purchase of consumer goods. The expiry suspension under Section 445b para. 2 BGB shall remain unaffected.
13.4 The statutory time limits shall apply to any claims for damages.
13.5 If the goods are a building or an item that was used for a building in line with its customary use and has caused its defectiveness, the statutory period of limitation shall apply.
14. Data privacy
The Seller may process and store the data concerning the respective purchase contracts within the framework of the applicable statutory provisions. For details refer to the privacy policy available on the Seller’s website.
15. Final provisions
Insofar as individual provisions of these GTC are or become invalid, this shall not affect the validity of the remaining provisions. Any invalid clause shall be replaced by the statutory provision.
BERND RICHTER GmbH
Hansestraße 4, D-51688 Wipperfürth,
Germany,
Local Court of Cologne HRB 38028
Status: February 2021