GENERAL TERMS AND CONDITIONS
(Status: October 2013)
Haus Rabenhorst O. Lauffs GmbH & Co. KG
Rabenhorststraße 1, 53572 Unkel/Rhein, Germany
Phone: +49 (0) 22 24 / 18 05-0
Fax: +49 (0) 22 24 / 18 05-90
IBAN DE61 574501200009000118
IBAN DE12 480201510001532154
IBAN DE45 370100500009492505
§ 1 General information, scope of applicability
(1) These general terms and conditions for delivery and payment apply for all contracts concluded between Haus Rabenhorst O. Lauffs GmbH & Co. KG (hereafter: "Haus Rabenhorst" and the customer (hereafter: "Purchaser") as well as for all other deliveries and services. They also apply for all future business dealings with the purchaser, even if they are not expressly agreed upon again.
The general terms and conditions for delivery and payment only apply if the purchaser is a business operator (§ 14 BGB [German Civil Code]), a legal entity under public law or a special fund under public law.
(2) Our general terms and conditions for delivery and payment apply exclusively. Other general terms and conditions of business of the purchaser that differ, contradict or supplement these only become part of the contract insofar as we have expressly consented to their applicability. This required consent always applies, e.g. even if we carry out the delivery to the purchaser unconditionally and with knowledge of the purchaser's general terms and conditions.
(3) Legally relevant declarations and notifications provided to us by the purchaser after the conclusion of the contract (e.g. deadlines, payment reminders, notices of defects) must be made in writing to be valid.
(4) References to the validity of statutory regulations apply only for purposes of clarification. For this reason, even without this type of clarification, the statutory regulations apply inasmuch as they have not been specifically modified or expressly excluded in these general terms and conditions for delivery and payment.
(5) Electronically produced order confirmations and invoices, etc., generated by Haus Rabenhorst are binding even without a signature.
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This also applies if we have provided the purchaser with catalogues, other product descriptions or documentation - in electronic form as well - for which we have reserved the property and copyrights.
(2) The purchaser's order of goods is considered a binding contractual offer.
(3) Acceptance can occur either in written form (e.g. an order confirmation) or by delivery of goods to the purchaser. Delivery is subject to confirmation by Haus Rabenhorst.
§ 3 Delivery deadline and delayed delivery
(1) Delivery dates and deadlines are only binding if we have confirmed them in writing.
(2) If we are not able to meet binding delivery deadlines for reasons beyond our control (unavailable goods/services), we will inform the purchaser immediately and provide the new expected delivery date. If the goods or services are not available by the new delivery date either, we are entitled to withdraw, in whole or in part, from the contract; we shall immediately refund any compensation already made by the purchaser. In this situation, non-availability of goods or services applies particularly to our own deliveries from our suppliers that are not on time if we have concluded a corresponding covering transaction, if neither we nor or suppliers are at fault (e.g. due to lack of raw materials, difficulties in procurement of materials, transportation problems, export and import limitations, force majeure, etc.), or if we are not required to procure anything in this specific case.
(3) Delayed delivery is determined according to statutory regulations. But the purchaser is always required to provide a reminder.
(4) The rights of the purchaser in accordance with § 10 of these general terms of delivery and payment and our legal rights, particularly regarding the exclusion of the obligation to perform (e.g. due to impossibility or unreasonable expectation of fulfillment and/or subsequent fulfillment) remain unaffected.
§ 4 Pricing and payment conditions
(1) If nothing else has been agreed in a specific case, our respective, current prices in effect when the contract is concluded, according to the price list, apply, plus VAT, with no extra delivery costs. When goods are delivered abroad, the prices are ex warehouse and according to the price list for the respective country. The purchaser is responsible for paying any customs duties, fees, taxes and other official charges.
The current prices can be found in the respective applicable price list. In the context of our general business policies, we are entitled to change our prices at any time.
(2) Our invoices are due and payable within 30 days.
(3) If the purchaser grants authorisation to use a debit charge procedure to collect payment, the invoiced amounts shall be debited from the specified account with the SEPA direct debiting process when they are due. On the invoice, Haus Rabenhorst shall inform the purchaser of the upcoming debit charge at least one calender day in advance of the debit charge due date. In some specific cases, the amount debited can differ from the amount listed in the individual invoice if several invoices have the same due date. If this is the case, the sum total of the amounts listed in all of the invoices shall be debited from the account. The purchaser is obligated to have sufficient funds in the respective account specified in the SEPA direct debit mandate and to ensure that the amounts due can be debited by Haus Rabenhorst.
(4) When the previously mentioned payment deadline has passed, the purchaser is in default. During the default period, the legally applicable interest shall be added to the purchase price. We reserve the right to claim damages incurred due to an ongoing delay. Our entitlement to interest due to delay (§ 353 HGB [German Commercial Code]) remains unaffected. If payments that are due are not paid, we reserve the right not to fulfil new orders.
(5) For each overdue notice provided following the onset of default, we are entitled to demand a reminder fee of EUR 5.00. The purchaser is at liberty to demonstrate that there were no expenses related to overdue notices of that the costs were substantially lower than the total amount claimed.
(6) The purchaser has the right to compensation or retention only inasmuch as the claim is legally established or is uncontested. In case of deficiencies in delivery the purchaser's reciprocal rights, particularly those in accordance with § 9 Para. 3 Sentence 2 of these general conditions of delivery and payment, remain unaffected.
(7) If it becomes apparent after the contract is concluded that our claim to the purchase price is endangered due to the capacity of the purchaser to pay (e.g. due to an application to begin bankruptcy proceedings), we are entitled to refuse fulfilment and - perhaps after setting a deadline - to withdraw from the contract in accordance with the statutory regulations (§ 321 BGB [German Civil Code]).
§ 5 Delivery, transfer of risk, acceptance and delay of acceptance
(1) If nothing else has been agreed, we are entitled to determine the shipping method (particularly the transport company, the transport route/method, packaging) ourselves.
(2) The delivery shall be made in the allotments listed in the respective applicable price list.
(3) The risk of the accidental destruction or accidental deterioration of the goods is transferred to the purchaser at the latest when the goods are delivered. In a sale that involves shipping to another destination, however, accidental destruction and accidental deterioration of the goods as well as the risk of delay is transferred when the goods are accepted by the transporter, the freight carrier or any other person or organization responsible for carrying out the shipment. Official transfer takes place even if the purchaser delays acceptance.
(4) If the purchaser delays acceptance, neglects to cooperate or delays our delivery for other reasons for which the purchaser is responsible, we are entitled to demand restitution for the resulting damage incurred, including extra expenses (e.g. storage costs).
(5) We accept no liability for goods ordered from Haus Rabenhorst and for which invoices were issued, which are then stored at Haus Rabenhorst, at a delivery warehouse or with a commissioned logistics partner. Haus Rabenhorst reserves the right to invoice storage costs.
(6) The goods cannot be returned. Exceptions must be discussed with Haus Rabenhorst.
§ 6 Retention of ownership
(1) The goods delivered (reserved goods) remain our property until all present or future accounts receivable have been settled, including all outstanding balances in current accounts. If the purchaser acts in contradiction to the contract - particularly if payment of an amount due is delayed - we have the right to take back the reserved goods after we have set a reasonable deadline for payment. The purchaser is responsible for the transport costs for goods return. Repossession of the reserved goods represents a withdrawal from the contract.
(2) The purchaser must handle the reserved goods in an appropriate manner. At the purchaser's costs, the goods must be sufficiently insured against fire and water damage as well as theft.
(3) The purchaser is permitted to use the reserved goods and sell them in the ordinary course of business, as long payment is not in default.
However, the purchaser is not permitted to use the reserved goods as collateral. As a security, as of now the purchaser transfers to us the entire scope of payments claimed by the purchaser from the purchaser's customers from the resale of the reserved goods as well as claims made by the purchaser of the purchaser's customers or third parties with respect to the reserved goods that result from another legal basis (particularly claims due to illegal sales and claims for insurance benefits), including all outstanding balances in current accounts. We accept the transfer of these payments.
The purchaser is allowed to collect these claimed payments that have been assigned to us by using the purchaser's own invoices, as long as we do not revoke this authorisation. Our right to collect these payments ourselves remains unaffected by this allowance; however we will not assert these claims ourselves and will not revoke the direct debit mandate, as long as the purchaser properly fulfils the payment obligations.
However, if the purchaser acts in contradiction to the contract - particularly if a payment is delayed - we can require the purchaser to inform us regarding the assigned payments and the respective debtor, to inform the respective debtors of the payment assignment and to provide us with all of the documentation as well as all of the information that we need to assert the claims for payment.
The purchaser is also not permitted to assign these payments in order to settle them by means of factoring, unless the purchaser also irrevocably obligates the factor to surrender this compensation directly to us as long as we still have claims for payment from the purchaser.
(4) If the reserved goods are garnished or otherwise seized by third parties, the purchaser must immediately inform us regarding our property in writing so that we can assert our property rights.
(5) If the purchaser requires it, we are obligated to release the collateral to which we are entitled to the extent that its realisable value exceeds the value of our outstanding accounts receivable from the purchaser by more than 10%. However, in this case we are allowed to select the collateral to be released.
§ 7 Required deposits on empty containers
(1) The deposit requirement and the amount of the deposit can be found in the respective applicable price list.
(2) Inasmuch and as far as Haus Rabenhorst will take back the empty containers, the following rules apply:
(a) Returns can be made only in commercially acceptable amounts.
(b) Returned containers will only be accepted in the shipping boxes or in the appropriate disposal bags used for PET bottles.
(c) No credit will be given for third party bottles.
(d) Empty containers are returned at the same time as goods are delivered.
§ 8 Packaging rules
Haus Rabenhorst meets its legal obligations with regard to its non-returnable products, ensuring that all sales packaging can be returned by all private end-users within the country. This sales packaging is licensed by an operator of a dual system of waste collection.
If goods are delivered outside of the country, at the purchaser's own cost, the purchaser is obligated to find and use a similar system, which ensures that all sales packaging, repackaging and transport packaging can be returned by all private end-users and which meets other required, special recycling and recovery requirements. However, this only applies inasmuch as there is a corresponding legal requirement in the respective country.
§ 9 Purchaser's claims with regard to deficiencies
(1) Any claims with regard to deficiencies made on the part of the purchaser require that the purchaser has met the legal inspection and reporting obligations (§§ 377, 381 HGB [German Commercial Code]). If a deficiency is noticed upon inspection or at a later time, we must be notified immediately in writing. If notification is made within two weeks, it is considered immediate; this requirement is met if the notification is sent within the two week period. Regardless of this inspection and notification requirement, the purchaser must acknowledge obvious deficiencies (including erroneous delivery or shortage of items) in writing on the delivery note while the transporter is present; both must sign the note and it must be reported immediately to Haus Rabenhorst customer service. If the purchaser neglects to perform a proper inspection and/or deficiency report, our liability for deficiencies that are not reported is excluded.
(2) If the delivered item is deficient, we can initially decide if we will rectify the situation by correcting the deficiency (subsequent improvement) or if we will deliver an item without deficiencies (replacement delivery). Our right to refuse rectification in accordance with legal requirements remains unaffected.
(3) We are entitled to make our obligatory rectification dependent on the purchaser's payment of the sales amount due. However, the purchaser is entitled to retain a portion of the purchase price that corresponds with the deficiency.
(4) The purchaser must give us the time and opportunity required for us to make the obligatory rectification; in particular, for having the goods in question tested. If we provide a replacement delivery, the purchaser must return the deficient item to us in accordance with the statutory regulations.
(5) If an actual deficiency exists, we will pay the costs related to testing and rectification, in particular, the costs for transportation, work and materials. However, if the purchaser's claim for deficiency rectification is unjustified, we can claim reimbursement of the resulting costs from the purchaser.
(6) If the rectification is faulty or the deadline set by the purchaser for rectification expires without a successful solution or it is unnecessary according to the statutory regulations, the purchaser can withdraw from the purchase contract or reduce the purchase price. However, there is no right to withdraw associated with insignificant deficiencies.
(7) Claims of the purchaser for damages or replacement with regard to futile efforts are only possible in accordance with § 10 and are excluded in other cases.
§ 10 Other liability
(1) Inasmuch as these general terms of delivery and payment, including the following specifications, do not suggest otherwise, in case of a violation of contractual and non-contractual obligations, we are liable in accordance with the respective statutory regulations.
(2) With respect to damage claims - regardless of the legal basis - we are liable in cases of intent and gross negligence. In cases of slight negligence we are only liable for
a) damages that arise from injury to life, body or health;
b) damages that arise from the violation of a significant contractual obligation (a requirement which must be met so that the contract can even be implemented in the first place and with regard to which the contracting partners may and can assume compliance); in this case, however, our liability is limited to replacing foreseeable, typical damage.
(3) The limitations on liability resulting from para. 2 do not apply if we act in bad faith and do not mention a deficiency or if we have assumed a guarantee for the characteristics of the goods. The same applies for claims made on the part of the purchaser in accordance with product liability law.
(4) In case of a violation of obligations that does not consist of a deficiency, the purchaser can only withdraw from or terminate the contract if we are responsible for the violation. In all other cases, the legal requirements and consequences apply.
§ 11 Data processing
All personal data made available to us in the context of the business relationships will only be recorded, processed and used for the purposes of order processing and in order to uphold justified corporate business interests in terms of customer service, this in accordance with the current valid regulations for the protection of personal data. The purchaser consents to Haus Rabenhorst collecting, processing and using the purchaser's information.
§ 12 Final provisions
(1) If any provisions in this contract are found ineffective and/or are unable to be implemented either as a whole or in part, the validity of the remaining provisions remains unaffected. The same applies if this contract includes a legal gap. In place of the provision that is ineffective or unable to be implemented, the provision that should apply is one that is effective and can be implemented and that best corresponds with the ineffective provision from an economic perspective. In case there is a legal gap, the provision that should apply is one that is effective and can be implemented and that would have been agreed by the parties with respect to the sense and purpose of this contract had they thought about this gap.
(2) There are no additional oral agreements.
(3) Any modifications and supplements to this contract and all of the declarations of intent associated with this contract must be made in writing. This also applies to an agreement that revokes the requirement for the written form.
(4) This contract and all of the legal relationships of the contract parties are subject to the law of the Federal Republic of Germany with the exclusion of UN purchasing law (CISG).
(5) Place of fulfilment for the obligations on both sides in Unkel on the Rhine.
(6) The legal venue for all disputes, including disputes regarding the effectiveness of these general terms of delivery and payment, their effective inclusion in this contract or a contract concluded on its basis as well as the resulting legal consequences is the legal venue responsible for Unkel on the Rhine or Cologne, inasmuch as the purchaser is a business operator in terms of the German Commercial Code, a legal entity under public law or a special fund under public law. However, we are also entitled to file suit at the general legal venue of the purchaser.