General Terms and Conditions of Sale - RiMO GERMANY GmbH & Co. KG (hereinafter referred to as “RiMO”), Amerikastraße 4, 58675 Hemer
(Version as of 2021)
Preamble
RiMO GERMANY GmbH & Co. KG develops, produces and distributes products in the fields of kart construction and special-purpose vehicle construction (hereinafter referred to as “products” or “goods”). The products are partially developed and produced according to the customer’s individual requirements, and partially manufactured as standard products in serial production. The range of products includes new and used karts as well as spare parts and individual components for the kart industry. RiMO GERMANY GmbH & Co. KG further offers powder coating services
§ 1 General – Scope of Application
1. These General Terms and Conditions of Sale (“GTCS“) apply to the deliveries carried out and the services provided by RiMO GERMANY GmbH & Co. KG, represented by RiMO GERMANY Verwaltungs-GmbH, represented by Managing Director Peter Bertram in accordance with the agreement concluded between us and the customer.
2. Our terms and conditions of sale apply exclusively; any conditions of the customer contrary to or deviating from these terms and conditions of sale will not be recognized unless explicitly agreed in writing. Our terms and conditions of sale also apply if we are aware of the customer’s conditions contrary to or deviating from our conditions while unreservedly providing the service to the customer.
3. With your purchase order and/or order confirmation you agree to our General Terms and Conditions of Sale. Please print these General Terms and Conditions of Sale to complete your documents and read them carefully before placing your purchase order/submitting your order confirmation. The latest version of our General Terms and Conditions of Sale is always available on our homepage www.rimo-germany.com.
4. The expressions “us” and “we” mentioned in this General Terms and Conditions of Sale always refer to RiMO GERMANY GmbH & Co. KG. The term “RiMO” is used throughout the following terms and conditions.
5. The term “customer” used in the following terms and conditions refers to the respective client and/or purchaser and can also be stated as “you”.
6. Our General Terms and Conditions of Sale apply to both consumers and companies unless any distinction is made in the respective clause.
§ 2 Instructions Regarding the Products and Resale
1. In order to prevent damages, all instructions stated by us in brochures, instruction manuals or other product information material must be strictly observed. We explicitly warn against any use or treatment of the products beyond the defined scope of application. Any further customer or user must be provided with adequate information. In no event does this statement involve a declaration on our part that these instructions are concluding.
2. Sale, resale and distribution of the supplies and services as well as any technology or documentation connected thereto may be subject to German, EU, US or export control laws and/or the export control law of further states. Resale to embargoed countries and/or blocked persons and/or persons who use or might use the supplies and services for military purposes, weapons of mass destruction or nuclear technology is subject to approval. By submitting the order, the customer declares conformity to such laws and regulations and ensures that the deliveries and services will neither directly nor indirectly be brought into countries that prohibit or limit the import of such goods. The customer declares to own all approvals required for the export and/or import.
§ 3 Confidentiality
1. Insofar as and to the extent that not generally known to the public or intended for resale by the customer, any commercial or technical information provided by us (including features relevant to objects possibly handed over as well as other knowledge or experience) must not be disclosed to third parties. Within the own company, it may only be provided to those persons who need to be consulted for the use of such information and who are also obliged to confidentiality. This information remains the exclusive property of RiMO.
2. Such information must not be reproduced or used for commercial purposes without our prior written consent.
3. Upon request, the entire information provided by us (including any copies or records) as well as all loaned objects have to be returned to us immediately and completely or to be destroyed unless they are essential for the customer’s business operations, which must be proven by the customer on demand.
4. We reserve all rights in connection to the aforementioned information (including copyrights and the right to register industrial property rights such as patents, registered designs, semiconductor chip protection, etc.).
§ 4 Offer
1. The customer’s order constitutes a binding offer we can confirm within two weeks by submitting an order confirmation, by delivering the goods or by providing the services. Previous offers submitted by us are always non-binding.
2. The receipt of our price list does not constitute an offer. Orders submitted upon general offers, newsletters or price lists do not constitute an obligation on our part to deliver.
3. Patterns are non-binding; they only define the general character of the goods, but not their individual features. Future deviations from patterns are no grounds for complaint and do not represent any defect.
4. If the customer is a contractor, we explicitly reserve the right to supply production-related excess or shortfall and excess or short deliveries. Production excess or shortfall and excess or short deliveries of up to 10% of the order quantity are customary in the industry and considered as fulfilment of the contract. In the event of an order with production shortfall/shortdelivery, the customer is not entitled to claim a subsequent delivery of the shortfall quantity. § 9 no. 4 additionally applies for production excess or shortfall and excess or short deliveries.
5. Unless explicitly stated as binding, any information contained in our printed matter (e.g. price lists, brochures), estimates, on data storage media or websites as well as all offer-related documents such as illustrations, descriptions, drawings, dimension and weight data and further specifications as well as DIN, VDE or other operational or inter-company standards and samples referred to are only approximate indications.
6. Agreements made verbally or by telephone as well as written and verbal arrangements with our representatives are not binding for us unless confirmed in writing.
7. If the customer is a contractor and cancels a confirmed order, we are entitled to demand 10% of the sales price as compensation for the costs resulting from the order processing and the lost profit.
§ 5 Terms and Conditions of Delivery and Delivery Deadlines
1. If the customer is a contractor, the Incoterms in their latest version apply to all trade terms. Unless otherwise agreed, delivery will be carried out EX WORKS RiMO production works. For any workmanship, finishing or repair to be carried out on certain goods and machines, these are to be delivered by the customer DDP RiMO production works and will be returned EX WORKS. We reserve the right to have the delivery carried out by our own delivery organisation.
2. If the customer is a consumer, we will also deliver the goods EX WORKS unless otherwise agreed between the parties. The consumer will be informed about the delivery costs when the order is confirmed.
3. If there is a delay in delivery or service provision due to the customer’s fault, the risk will be transferred to the customer from the day of notice of readiness.
4. If no fixed delivery date has been agreed, delivery will be carried out within four to eight weeks after conclusion of the contract in the case of new productions. As for spare parts, delivery will be carried out within one week after conclusion of the contract. Services will be provided within one week after conclusion of the contract unless a fixed completion date has been agreed.
5. We may also determine a calendar week as delivery and/or service date. As far as the customer’s obligation to cooperate is required, the deadline will not start unless the customer’s obligation has been fulfilled.
6. If delivery or service deadlines stated by us are made the basis for order confirmation, such deadlines will be extended by the duration of the delay in the event of strikes and force majeure.
7. Our compliance with the delivery and service period implies that all commercial and technical issues between the contracting parties are clarified, and that the customer has fulfilled all obligations such as providing the required official certifications and approvals or making an advance payment. If this is not the case, the delivery and service period will be reasonably extended. This does not apply if we are responsible for the delay.
8. Changes subsequently desired by the customer will result in our entitlement to suspend the delivery or service provision until the requests for changes have been checked for their feasibility and their impact, especially regarding the cost and deadline situation. The changes will not be binding until confirmed in writing. We will then be able to reasonably extend the delivery or service deadlines in order to implement the changes.
9. If the customer is a contractor, all delivery and service deadlines will be observed by us exclusively with the reservation of punctual delivery by our suppliers. In the event of non-delivery, incorrect or unpunctual deliveries by our suppliers, we are entitled to withdraw from the contract.
10. If the customer is a consumer, we will immediately contact the customer in the event of unpunctual delivery by our supplier. The customer is then entitled to withdraw from the contract.
§ 6 Delay in Delivery and Default of Acceptance
1. If we fall behind on the delivery or service, the customer has to state upon request whether the delivery or service continues to exist or if other statutory rights will be asserted. To the extent that the assertion of rights on the part of the customer implies that a grace period has to be set, this period will be at least two weeks.
2. In the event of delay in delivery or service, the customer is only entitled to withdraw from the contract within the scope of the statutory provisions if we are responsible for such delay.
3. The liability for such delay in delivery or service is limited to 0.5% and a maximum of 5% of the delivery/service value within the scope of a generalised compensation for delay for each full week of the delay. In the event of non-fulfilment of substantial contractual obligations, the liability is limited to the usual foreseeable damage.
4. In the event of default of acceptance or non-fulfilment of other obligations to cooperate on the part of the customer, we are entitled to prefer third-party orders and to reasonably extent the delivery/service period.
5. Without prejudice to further entitlements, any default of acceptance will entitle us to demand compensation for any damage incurred including any additional expenditure. If the shipment of the delivery is delayed for reasons attributable to the customer, the risk of accidental loss will be transferred to the customer upon notice of readiness.
6. If, upon request of the customer, the shipment or delivery will be delayed by more than one month after notice of readiness, the customer can be charged with storage fees of 0.5% of the price of the delivery items for each month started. The maximum storage fee charged, however, will be a total of 5% of the price of the delivery items. Both parties reserve the right to prove higher or lower storage fees. Further entitlements resulting from default of acceptance remain unaffected.
§ 7 Packaging
1. Packaging of the goods will take place at our discretion in consideration of the transport route unless the type of packaging is stipulated by the customer.
2. If the customer is a contractor, we are free to select a transport route at reasonable discretion unless separate agreements have been made. Any costs resulting from the mode of dispatch selected by the customer will be charged to the customer. This applies for both express deliveries and over-night deliveries, even if we initially bear the expenses.
3. If the customer is a consumer, the packaging costs will be indicated with the order confirmation.
4. Upon request of the customer, we will insure the shipment against all insurable risks. However, these costs are to be borne by the customer.
§ 8 Reservation of Title
1. If the customer is a consumer, the goods will remain our property until full payment of the purchase price has been received.
2. If the customer is an entrepreneur, the goods will remain our property until all outstanding debits have been settled by the customer, even if the specific goods have already been paid.
3. In the event of third-party compulsory execution proceedings involving the goods subject to reservation of title, the customer is obliged to inform us immediately and provide us with the documents required for intervention. This also applies to any other types of impairment. Regardless of this, the customer has to inform such third parties in advance about the rights relating to the goods. If the customer is a contractor, it is the customer’s responsibility to bear the costs for the intervention unless the third party is capable of refunding these costs.
4. If the customer is a contractor and the goods subject to reservation of title will be resold or leased, the customer has to assign to us in advance and as security all claims against its purchasers resulting from the mentioned business until the complete settlement of our claims. If the goods subject to reservation of title are processed, transformed or combined with other items, the ownership of the item produced will be immediately transferred to us. Such items are deemed to be goods subject to reservation of title. The customer is not entitled to dispose over the goods subject to reservation of title or joint ownership or the claims assigned to us.
5. If the customer acts contrary to the agreement as well as in the event of delay in payment, unauthorized use of the goods subject to reservation of title, significant deterioration of the customer’s financial situation, exchange or cheque protests as well as the opening of insolvency proceedings relating to the customer’s assets applied for by the customer itself or third parties, or if such proceedings are rejected for lack of assets, we are entitled to interdict the workmanship, processing and sale of the goods subject to reservation of title. Furthermore, these events will entitle us to take possession of those goods and, in order to do so, enter the customer’s premises, request appropriate information and access the customer’s books to a reasonable extent.
6. If the value of the security exceeds our claims against the customer by more than 20%, the customer may request us to release, at our discretion and to the respective extent, the securities we are entitled to.
§ 9 Prices and Terms and Conditions of Payment
1. The price stated by us in the order confirmation and/or invoice is binding.
2. If the customer is a consumer, the price stated by us will include the statutory value added tax.
3. If the customer is a contractor, the price will be stated as net amount in EUR (€). Hence, the statutory value added tax will not be included in our prices, but shown separately on the invoice in the amount applicable on the day of invoicing.
4. In the event of excess or short deliveries, the actually delivered amount will be charged. The price indicated on our invoice is binding.
5. Unless otherwise agreed, the invoice amount shall be paid without any discounts within 30 (thirty) days upon receipt of the goods and/or upon completion of all services.
6. Our employees or representatives are entitled to receive payments only if they possess a written collection authority.
7. No interest will be paid for advance payments and/or payments on account.
8. As a matter of principle, payments are to be transferred by the customer on its own risk and expense to the account stated by us.
9. The customer is entitled to set-off rights only if its counterclaims are legally binding, undisputed or recognised by us. The customer is entitled to exercise the right of detention only if its counterclaim is based on the same contractual agreement.
10. The acceptance of exchanges in lieu of payment is subject to our prior written consent.
§ 10 Delay in Payment, Deterioration of the Customer’s Financial Situation
1. The customer falls behind on payment if the invoice amount is not paid within 30 (thirty) days upon receipt of the goods and/or upon completion of the service and invoice submission. Any other deadline shall be applicable only if explicitly agreed by the parties in writing.
2. In the event of delay in payment on the part of the customer, we are entitled to charge default interest of 8.00% above the current base rate. If the customer is a consumer, default interest of 5.00% above the current base rate will be charged. Provided that we are entitled to charge higher interest on the basis of statutory provisions or higher interest charges resulting from increased credit procurement costs, we are entitled to allocate such interest.
3. In the event of delay in payment, the customer will bear all dunning, collection, levy and information charges arising in connection with the collection of the receivables.
4. We are entitled to withdraw from the contract if the customer filed for the opening of insolvency proceedings relating to its assets, made a statutory declaration according to § 807 ZPO (German Code of Civil Procedure) or the opening of insolvency proceedings was rejected for lack of assets.
§ 11 Price Adaption
1. If the customer is a contractor, the agreed price will apply. If the price has increased at the time the service is provided due to a changed market price or increased fees of the third parties involved in the service provision, the higher price will apply. If this price exceeds the agreed price by 20% or more, the customer is entitled to withdraw from the contract. This right has to be exercised immediately after disclosure of the increased price.
2. If the customer is a consumer, changes in prices are permitted only if there is a period of more than four months between the conclusion of the contract and agreed delivery date. If the wages, materialcosts or statutory taxes will change until the delivery, we are entitled to change the price to a reasonable extent according to the increases or decreases in costs. The customer shall be entitled to withdraw from the contract only if the price increase substantially exceeds the rise in the general cost of living between order and delivery.
3. If the customer is a consumer, the prices stated by us include the statutory value added tax. If the customer is a contractor, the price will be stated as net amount in EURO. Hence, the statutory value added tax will not be included in our prices, but shown separately on the invoice in the amount applicable on the day of invoicing.
§ 12 Limitation of Own Claims
1. Contrary to § 195 BGB (German Civil Code), our claims for payment are limited to five years. § 199 BGB applies with reference to the beginning of the limitation period.
§ 13 Warranty Period, Liability for Defects
1. If the customer is a consumer, our liability in case of a defect shall be in accordance with the statutory provisions unless the following will result in any limitations. The consumer is obliged to inform us in writing about any apparent defects within two weeks after occurrence of the defect.
2. If the customer is a contractor and a defective product has been delivered, the customer has to set a reasonable grace period for subsequent performance. In this case, we are entitled to choose whether we rectify the defect by repair or replace the defective product by a new product. Complaints due to apparent defects and quantity deviations can be considered only if immediately reported to us in writing or at the latest three working days after receipt of the goods. Complaints due to hidden defects can be considered only if immediately reported to us in writing after discovery of the defect.
3. If the customer is a consumer, the limitation period for claims for defects is two years for the delivery of new items and works services, and one year for used items. This shall not apply in case of claims for compensation due to defects. § 14 applies to claims for compensation due to a defect.
4. If the customer is a contractor, the limitation period for claims for defects is one year for the delivery of new items and works services and starts at the time of delivery of the product. If used items are provided, delivery will be carried out with the exclusion of warranties. In the event of a delivery recourse according to §§ 478, 479 BGB, the limitation period remains unaffected. This will not apply in case of claims for compensation due to a defect. § 14 applies to claims for compensation.
5. If the customer is a contractor, setting a reasonable grace period for subsequent performance is not required if dispensable according to § 323 section 2 BGB and in particular, if we seriously and finally reject a subsequent performance, the service is critically dependent on its timeliness or other special circumstances exist, justifying an immediate withdrawal or immediate demand for compensation taking into consideration the interests of both parties.
6. In the event of any complaints, the customer may withhold payments only to an extent which is in reasonable proportion to the defects which have occurred. The customer may withhold payments only if the complaint asserted is justified beyond doubt. If the complaint is unjustified, we are entitled to demand from the customer the reimbursement of any costs resulting thereof.
7. No guarantees in a legal sense are granted to the customer.
8. If the customer is a contractor and entitled to claim damages in lieu of performance, to withdraw from the contract or still demand supplementary performance, we may request the customer to exercise its rights within a reasonable period. The customer shall inform us in writing about the respective decision. If the customer will not exercise its rights at due date, the right to claim damages in lieu of performance may be asserted only or the withdrawal be declared only if a new period for supplementary performance set by the customer has expired unsuccessfully.
9. Unless otherwise agreed, the aforementioned rights do not apply if and as far as the defects resulted partially or fully from improper handling, improper use, improper storage or non-observance of the instructions given by the manufacturer or other instructions for the delivered product provided by us.
10. Deliveries of batched goods or second-choice goods are always carried out with the explicit exclusion of any rights to complain due to optical defects or other reductions in quality.
§ 14 Liability for Damages
1. Our liability for breaches of contract as well as breaches arising from offence is limited to intent and gross negligence. This does not apply in case of injury to life, body and health of the customer, to claims arising from the breach of material obligations, i.e. obligations resulting from the nature of the contract and jeopardising the performance of the contract when breached, as well as for compensation for damages due to delay (§ 286 BGB). We will be liable for every degree of responsibility in this respect.
2. The aforementioned liability exclusion will also apply for slightly negligent breaches by our agents.
3. Unless liability for damages not resulting from injury to life, body and health of the customer is excluded in cases of slight negligence, such claims will be in lapse after one year starting with their origination and/or in case of compensation claims due to defects with the handing over of the item.
4. Insofar as liability for damages on our part is either excluded or limited, this will likewise apply with regard to personal liability for damages on the part of its manual and non-manual employees, whether permanent or freelance, its representatives and its agents.
§ 15 Force Majeure
1. If one of the contracting parties is prevented from fulfilling its contractual obligations due to force majeure, this will not be considered as a breach of the contract, and the deadlines stipulated in the contract or due to the contract will be reasonably extended in accordance with the duration of the obstacle.
2. All circumstances independent from the will and influence of the contracting parties, including but not limited to natural disasters, government measures, decisions on the part of the authorities, blockades, war and other military conflicts, mobilisation, civil unrest, terror attacks, strikes, lockouts and other industrial unrest (including at our suppliers), confiscation, embargoes and other unforeseeable, serious conditions that are beyond the control of the parties and that arise after the conclusion of this agreement are deemed to be force majeure events.
3. The contracting parties shall be exempt from their obligations according to these contractual conditions provided they prove that the said non-fulfilment was prevented by circumstances beyond their control and arose upon the signing of the respective supply agreement.
4. Each contracting party will make every necessary and reasonable effort to reduce the extent of the consequences resulting from force majeure events.
5. The contracting party affected by the force majeure event will immediately inform the other contracting party in writing about the beginning and end of the obstacle.
6. If the force majeure events or the circumstances beyond the responsibility of the contracting parties continue for more than two months, the contracting parties will reach an agreement on the continuation of the contract. If there is no agreement achievable, the party not affected by the previously mentioned circumstances will be entitled to terminate the contract by a unilateral written declaration without observing an additional notice period.
§ 16 Property Rights and Copyrights
1. We do not assume liability for claims arising from the infringement of third-party industrial property rights or copyrights (hereinafter referred to as property rights) if the property right is owned by the customer and/or by an enterprise in which the customer holds, directly or indirectly, a majority of the shares or voting rights.
2. We do not assume liability for claims arising from the infringement of property rights unless at least one property right of the European countries is published.
3. The customer must immediately notify us of any (alleged) infringements of property rights and the risks relating thereto which become known and, at our request - insofar as possible - allow us to conduct the litigation (including non-judicial proceedings).
4. We are entitled, at our discretion, to obtain a right of use for a product infringing a property right, to modify it so that it no longer infringes the property right or to replace it by an equivalent substitute product which no longer infringes the property right. If this is not possible subject to reasonable conditions or within a reasonable period of time, the customer shall - insofar as the customer allowed us to carry out a modification - be entitled to the statutory rights of rescission. We are also entitled to withdraw from the contract under the aforementioned conditions.
5. We further reserve the right to take the aforementioned measures even if the infringement of the property right is not finally established under a court decision or if we have not recognized it.
6. Claims by the customer are excluded insofar as the customer is responsible for the infringement of the property right or if the customer does not support us to a reasonable extent in the defence against third-party claims.
7. Claims by the customer are further excluded if the products are manufactured according to the customer’s specifications or instructions or the (alleged) infringement of the property right results from the use in interaction with another object not originating from us or if the products are used in a way we were not able to foresee.
8. Insofar as the production or distribution of articles is carried out according to drawings, patterns or other documents and instructions provided by the customer, and the infringement of third-party property rights (in particular third-party industrial property rights) caused due to these circumstances, the customer will hold us harmless from any claims arising.
9. For any further claims of the customer or other claims than those regulated by § 17 and resulting from the infringement of third-party property rights are excluded.
§ 17 Copyrights of the Customer
1. We reserve all property rights and copyrights with regard to estimates, drawings, plans and other documents as well as other tangible and intangible information, including in electronic form; they may be made available to third parties only with our prior written consent.
§ 18 Formal Requirements
1. Legally relevant declarations and notifications which have to be provided by the customer to us or a third party have to be made in writing.
2. Verbal commitments by our representatives or other agents are subject to our written confirmation.
§ 19 Place of Performance, Choice of Law and Place of Jurisdiction
1. Unless otherwise stated in the agreement, our place of business shall be the place of performance and payment.
2. The law of the Federal Republic of Germany shall apply for the agreement and any legal disputes resulting from or in connection with the business relationship between us and the customer. The United Nations Convention on Contracts for the International Sale of Goods is excluded.
3. The statutory provisions regarding the places of jurisdiction remain unaffected unless otherwise stipulated by the particular rules set out in the following sections 4 and 5.
4. If the customer
§ 20 Severability Clause
1. If one or more provisions are or become ineffective, this shall not affect the effectiveness of the remaining provisions.
Version as of October 17, 2012 –© Kanzlei-Weiler