A) General Terms
1. Application
1.1 Unless otherwise expressly agreed, the following terms and conditions shall apply exclusively to all legal transactions with the company Radler & Ruf GmbH (hereinafter referred to as Radler & Ruf).
1.2 The customer's terms and conditions shall not apply, even if Radler & Ruf does not separately object to their validity in individual cases. Even if Radler & Ruf refers to a letter that contains general terms and conditions of the client or any other third party or refers to such, this does not imply any agreement with the validity of those terms and conditions.
2. Offer and conclusion of contract
2.1 Offers and price quotations contained in brochures, advertisements and other advertising material are subject to change and non-binding.
2.2 The customer is bound to an order placed by him for four weeks after sending. Radler & Ruf is entitled to accept this offer within this period. The date on which the customer receives the order confirmation shall be decisive for compliance with the deadline. The sending of the ordered goods shall also be considered as acceptance.
2.3 Additions and amendments to the agreements made, including these GTC, must be made in writing to be effective. With the exception of managing directors and authorized representatives, Radler & Ruf's employees are not entitled to make verbal subsidiary agreements that deviate from the written agreement. Transmission by telecommunication, in particular by fax or e-mail, shall be sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.
2.4 Information provided by Radler & Ruf on the subject matter of the delivery and service (e.g. weight, measurements, serviceability, load capacity, tolerances and technical data) as well as representations thereof (e.g. drafts and illustrations) are only approximately authoritative, unless the usability for the contractually intended purpose requires exact conformity. They are no guaranteed characteristics of state but descriptions or markings of delivery or service. Customary deviations and deviations that occur due to legal regulations or represent technical improvements as well as the substitution of components by parts of equal value are permitted insofar as they do not impair the usability for the contractually intended purpose.
3. Documents provided
Radler & Ruf reserves its property rights and copyrights to cost estimates, drafts, drawings or calculations. Without written consent, they may not be used, copied or made accessible to third parties.
4. Prices and Payment
4.1 The prices apply to the scope of performance and delivery listed in the order confirmation. Additional or special services will be charged separately. Prices are quoted in Euro ex works plus packaging, the statutory value added tax, customs duty for export deliveries as well as fees and other public charges.
4.2 Payments can only be made at Radler & Ruf's business premises or by bank transfer to the business account specified by Radler & Ruf.
4.3 Invoice amounts are to be paid within 30 days without any deduction, unless otherwise agreed in writing. The date of receipt by Radler & Ruf is decisive for the date of payment.
4.4 Offsetting against counterclaims of the customer or the retention of payments due to such claims shall only be permissible insofar as the counterclaims are undisputed or have become res judicata or arise from the same order under which the service in question was performed.
4.5 Radler & Ruf shall be entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, Radler & Ruf becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the customer and by which the payment of Radler & Ruf's outstanding claims by the customer from the respective contractual relationship is jeopardized.
5. Delivery and time of delivery
5.1 Delivery dates stated by Radler & Ruf are non-binding unless they have been expressly confirmed in writing as binding delivery dates.
5.2 The commencement of the delivery period specified by Radler & Ruf shall be subject to the timely and proper fulfillment of the customer's obligations. The defense of non-performance of the contract remains reserved.
5.3 If agreed delivery dates cannot be met for reasons for which Radler & Ruf is responsible, the customer shall set a reasonable grace period, which shall in no case be less than two weeks.
5.4 Radler & Ruf shall not be liable for impossibility of delivery or for delays in delivery insofar as these have been caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. disruptions in operation of all kinds, difficulties in the procurement of materials or energy, delays in transportation, strikes, legal lockouts, shortage of manpower, energy or resources, difficulties in obtaining the necessary regulatory approvals, regulatory actions or the non-delivery, incorrect delivery or late delivery by suppliers) for which Radler & Ruf is not responsible. Insofar as such events make delivery or performance significantly more difficult or impossible for Radler & Ruf and the hindrance is not only of temporary duration, Radler & Ruf shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediately notifying Radler & Ruf in writing.
6. Material defects
6.1 Claims for defects do not exist in the case of only insignificant deviation from the agreed quality, if the impairment of usability is only insignificant, in the event of natural wear and tear as well as in the event of damage occurring after the transfer of risk as a result of faulty or negligent handling, excessive use, unsuitable equipment, inadequate construction work, unsuitable foundation or due to special external influences which are not assumed under the contract. If the customer or a third party carries out improper repair work or modifications, there shall also be no claims for defects for these and the resulting consequences.
6.2 In the event of material defects of the delivered items, Radler & Ruf shall first be obligated and entitled to rectify the defect or to make a replacement delivery at its discretion within a reasonable period of time. In case of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the customer may withdraw from the contract or reasonably reduce the purchase price.
7. Liability for damages due to fault
7.1 Radler & Ruf's liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tortious acts shall be limited in accordance with this clause 7, insofar as fault is relevant in each case.
7.2 Radler & Ruf shall not be liable in case of simple negligence of its organs, legal representatives, employees or other vicarious agents, unless it is a violation of essential parts of the contract. Essential to the contract are the obligation to deliver and install the delivery item on time, its freedom from defects of title and such material defects that impair its functionality or fitness for use more than insignificantly and advisory, protective and custodial duties intended to enable the customer to use the delivery item in accordance with the contract or have as their purpose the protection of life and limb of the customer's personnel or the protection of the customer's property from significant damage.
7.3 Insofar as Radler & Ruf is liable on the merits for damages pursuant to paragraph 7.2, this liability shall be limited to damages which Radler & Ruf foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which Radler & Ruf should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item shall also only be compensable insofar as such damage is typically to be expected when the delivery item is used for its intended purpose.
7.4 In the event of liability for simple negligence, Radler & Ruf's liability to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to an amount of 3.000.000 EUR per case of damage, even if a breach of essential contractual obligations is involved.
7.5 The above exclusions and limitations of liability shall apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of Radler & Ruf.
7.6 Insofar as Radler & Ruf provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by Radler & Ruf, this shall be done free of charge and to the exclusion of any liability.
7.7 The limitations of this clause 7 shall not apply to Radler & Ruf's liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health under the Product Liability Act.
B) Special General Terms and Conditions for contractors and public clients
1. Prices
If the agreed prices are based on Radler & Ruf's list prices and the delivery is to be made more than 4 months after conclusion of the contract, Radler & Ruf's list prices valid at the time of delivery shall apply (in each case minus an agreed percentage or fixed discount).
2. Shipping
2.1 The method of shipment and packaging are subject to the dutiful discretion of Radler & Ruf.
2.2 The risk shall pass to the customer at the latest when the delivery item is handed over to the forwarding agent, carrier or other third party designated to carry out the shipment. If the shipment or the handover is delayed due to circumstances, the cause of which lies with the customer, the risk shall pass to the customer from the day on which the delivery item is ready for shipment and Radler & Ruf has notified the customer accordingly.
2.3 Storage costs after transfer of risk shall be borne by the customer. In case of storage by Radler & Ruf, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per expired week. We reserve the right to claim and prove further or lower storage costs.
2.4 The shipment will be insured by Radler & Ruf against theft, breakage, transport, fire and water damage or other insurable risks only at the express request of the customer and at the customer's expense.
3. Warranty, material defects
3.1 The warranty period is one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to claims for damages by Radler & Ruf arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by Radler & Ruf or its vicarious agents, which shall in each case be time-barred in accordance with the statutory provisions.
3.2 Obvious defects must be reported immediately, at the latest within 7 (seven) calendar days. The period begins with the date of receipt of the goods by the customer. The timely dispatch of the notice of defect shall be sufficient to comply with the time limit.
3.3 For transactions covered by § 377 of the German Commercial Code (HGB), the above provision shall also apply to non-obvious and hidden defects, even if they arise during or after processing. The inspection obligations pursuant to § 377 of the German Commercial Code (HGB) shall remain in force.
3.4 Each notification of defects have to be made in writing.
3.5 The warranty shall not apply if the customer modifies the subject matter of the contract or has it modified by a third party without the consent of Radler & Ruf and the rectification of defects is made impossible or unreasonably difficult as a result. In any case, the customer shall bear the additional costs of remedying the defect resulting from the change.
3.6 Any delivery of used items agreed with the customer in individual cases shall be made to the exclusion of any warranty for material defects.
4. Extended retention of title
4.1 Radler & Ruf retains title to contractual items for all deliveries and services until receipt of all payments arising from the contract and the other business relationship with the customer.
4.2 The customer is entitled to resell the reserved goods in the ordinary course of business. In advance, the customer assigns to Radler & Ruf the claims against the purchaser from the resale of the reserved goods in the amount of the final invoice including VAT. This assignment shall apply regardless of whether the contractual item has been resold without or after processing. The customer remains authorized to collect the claim even after the assignment. Radler & Ruf's authority to collect the claim itself shall remain unaffected. However, Radler & Ruf shall not collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or there is no cessation of payments.
4.3 The processing or transformation of the contractual items by the customer shall always be carried out in the name and on behalf of Radler & Ruf. In this case, the customer's expectant right to the contractual item shall continue in the transformed item. If the contractual item is processed with other objects not belonging to Radler & Ruf, Radler & Ruf shall acquire co-ownership of the new object in the ratio of the objective value of the contractual item to the other processed objects at the time of processing. The same applies in the event of mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to Radler & Ruf on a pro rata basis and shall hold the sole ownership or co-ownership thus created in safe custody on behalf of Radler & Ruf. The customer shall be entitled to transfer the co-ownership to Radler & Ruf on a pro rata basis. Other disposals of the reserved goods, in particular pledges and transfers of ownership by way of security, are not permitted.
4.4 As long as ownership has not yet been transferred, the customer shall immediately notify Radler & Ruf in writing if the delivered contractual item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse Radler & Ruf for the court and out-of-court costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the loss incurred by Radler & Ruf.
4.5 If the value of the securities granted exceeds the claims by more than 20%, Radler & Ruf shall be obliged to retransfer or release the securities at the customer's request. The selection of items to be released thereafter is up to Radler & Ruf.
4.6 If Radler & Ruf withdraws from the contract in the event of a breach of contract by the customer (recovery case), in particular default of payment, Radler & Ruf shall be entitled to demand the return of the reserved goods.
5. Place of performance, place of jurisdiction and applicable law
5.1 The place of performance for all claims arising from or in connection with this contract shall be Alerheim-Rudelstetten, unless expressly agreed otherwise in individual contracts.
5.2 The exclusive local place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the place of business of Radler & Ruf. Radler & Ruf shall also be entitled to take legal action at the registered office of the contractual partner. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
5.3 The legal relationship with Radler & Ruf shall be governed exclusively by German law.
5.4 Insofar as the contract or these General Terms and Conditions contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed to in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Business and Delivery if they had known about the loophole.
C) Special GTC for consumers
1. Shipping
1.1 The delivery of the goods takes place in our business premises or in our warehouse. We only ship the goods if this has been agreed in writing in the individual case.
1.2 The shipping costs have to be borne by the customer. They include the costs of a transport insurance concluded by us.
2. Warranty, material defects
2.1 In the event of defects in the delivered goods, the customer shall be entitled to the statutory rights.
2.2 Claims for damages by the customer due to obvious material defects of the delivered goods are excluded if the defect is not reported to Radler & Ruf within a period of two weeks after delivery of the goods.
2.3 The defects shall be described in as much detail as possible for the customer.
2.4 If the customer notifies Radler & Ruf of a defect that does not exist according to Radler & Ruf's inspection and if the customer was aware of the non-existence of the defect at the time of notification or was mistaken about this due to negligence, the customer shall compensate Radler & Ruf for the damage incurred. The customer is entitled to prove that the reported defect does exist. Within the scope of the above provisions, Radler & Ruf shall in particular be entitled to demand reimbursement from the customer for expenses incurred by Radler & Ruf, such as for the inspection of the item.
2.5 The warranty period for used items is one year from delivery. This period shall not apply to claims for damages by the customer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by Radler & Ruf or its vicarious agents, which shall in each case be time-barred in accordance with the statutory provisions.
3. Reservation of proprietary rights
3.1 Delivered items remain the property of Radler & Ruf until full payment of the remuneration. The customer is obligated to immediately report in writing any seizure of the objects subject to retention of title and to inform the seizure creditors of the retention of title. The customer is not entitled to sell, pledge or assign by way of security the items delivered under retention of title.
3.2 In case of breach of contract by the customer, in particular in case of default of payment, Radler & Ruf shall be entitled to demand return of the reserved goods, provided that Radler & Ruf has withdrawn from the contract.
4. Duty to inform according to § 36 VSBG (Consumer Dispute Settlement Act)
Radler & Ruf does not participate in consumer arbitration proceedings under the Consumer Dispute Settlement Act.
Status July 2020