General Terms and Conditions of Sale of rutec Licht GmbH & Co. KG

§ 1 General, Scope of Application

  1. These General Terms and Conditions of Sale (GTCS) shall apply to all our business relations with our customers (hereinafter: "Buyer"). The GCS shall only apply within the meaning of Section 310 (1) of the German Civil Code (BGB) if the Buyer is an entrepreneur (Section 14 BGB), a legal entity under public law or a special fund under public law.
  2. The GTCS shall apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as "goods"), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 651 BGB). The GTCS in their respective version shall also apply as a framework agreement to future contracts for the sale and/or delivery of movable goods with the same Buyer without us having to reference them again in each individual case; we shall inform the Buyer immediately of any changes to our GTCS in this case.
  3. Our GTCS shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly consented to their application. This consent requirement shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer's General Terms and Conditions.
  4. Any individual agreements made with the Buyer in particular cases (including collateral agreements, supplements and amendments) shall in any case prevail over these GTCS. A written contract or our written confirmation shall be determinant for the content of such agreements.
  5. Legally relevant declarations and notifications to be made to us by the Buyer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of rescission or diminution) must be made in writing in order to be effective.
  6. References to the effectiveness of legal regulations shall only have a clarifying meaning. Even without such clarification, the legal regulations shall therefore apply insofar as they are not directly amended or expressly excluded in these GTCS.

§ 2 Conclusion of Contract

  1. Our offers are subject to change without notice and are non-binding. This shall also apply if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to which we reserve property rights and copyrights.
  2. The order of the goods by the Buyer shall be deemed a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this offer of contract within 2 weeks of its reception.
  3. Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.

§ 3 Delivery period and delay in delivery

  1. The delivery period shall be agreed individually or stated by us when the order is accepted. If this is not the case, the delivery period is approx. 16 weeks from the conclusion of the contract. The delivery period shall be deemed to have been met upon timely notification of readiness for delivery.
  2. If we are unable to comply with binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this without delay and at the same time notify the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any contribution already made by the Buyer. A case of non-availability of the performance in this sense shall be deemed to be in particular the non-timely delivery by our supplier if we have concluded a congruent hedging transaction and neither we nor our supplier are at fault or we are not obliged to obtain the goods in the individual case.
  3. The occurrence of our delay in delivery shall be determined in accordance with the legal regulations. In any case, however, a warning request by the buyer is required. If we are in default of delivery, the Buyer may demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of the delay, but in total not more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the Buyer has not suffered any damage at all or that the damage is significantly less than the above lump sum.
  4. The rights of the Buyer pursuant to § 8 of these GTCS and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected.

§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

  1. Delivery shall be made ex (warehouse) branch in 28857 Syke, Germany, which is also the place of performance. At the Buyer's request and expense, the goods shall be delivered to another destination (sale by delivery to a place other than the place of performance (Versendungskauf). Unless otherwise agreed, we are entitled to determine the type of delivery (in particular transport company, route, packaging) ourselves.
  2. The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the Buyer upon handover of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the delivery. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the legal regulations of the law on contracts for work and services (Werkvertragsrecht) shall also apply accordingly to an agreed acceptance. The default of acceptance by the Buyer shall be deemed equivalent to handover or acceptance.
  3. If the Buyer is in default of acceptance, fails to cooperate or delays our delivery for other reasons for which the Buyer is responsible, we shall be entitled to claim compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump-sum compensation in the amount of 0.5% of the net price (delivery value) for each completed calendar week of the delay, however, not exceeding a total of 5% of the delivery value of the delayed goods, beginning with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for delivery, or 10% of the delivery value of the delayed goods in the event of final non-acceptance. The proof of a higher damage and our legal claims (in particular compensation of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The purchaser shall be entitled to prove that we have not incurred any damage at all or that the damage is significantly less than the above lump sum.

§ 5 Prices and terms of payment

  1. Unless otherwise agreed in individual cases, our prices shall apply ex warehouse, plus legal value-added tax.
  2. In the case of sale by delivery to a place other than the place of performance (§ 4 para. 1), the buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the buyer. If we do not invoice the transport costs effectively incurred in the individual case, a transport cost lump sum (excluding transport insurance) in the amount of EUR 15.00 shall be deemed to have been agreed. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer. We do not take back transport packaging and all other packaging in accordance with the packaging ordinance, they become the property of the buyer; pallets are excluded.
  3. Otherwise, the purchase price is due and payable within 30 days from the date of invoice and delivery or acceptance of the goods. However, in the case of contracts with a delivery value of more than EUR 10,000.00, we shall be entitled to demand a down payment of 30% of the purchase price. The down payment is due and payable within 14 days from the date of invoice.
  4. Upon expiry of the aforementioned payment period, the purchaser shall be deemed to be in default. During the period of default, interest shall be charged on the purchase price at the legally applicable default interest rate. We reserve the right to claim further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected.
  5. The Buyer shall only be entitled to rights of off-setting or retention to the extent that his claim has been determined by court to be legally valid or is undisputed. In the event of defects in the delivery, the Buyer's rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these GTC.
  6. If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is put at risk by the Buyer's inability to pay (e.g. by filing an application for the opening of insolvency proceedings), we shall be entitled to reject performance in accordance with the legal regulations and - if necessary after setting a deadline - to rescind the contract (§ 321 of the German Civil Code (BGB)). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare rescission immediately; the legal regulations on the dispensability of setting a deadline shall remain unaffected.

§ 6 Retention of title

  1. We retain title to the goods sold until all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
  2. The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The buyer must inform us immediately in writing if and insofar as third parties have access to the goods belonging to us.
  3. In the event of breach of contract by the Buyer, in particular in the event of non-payment of the purchase price due, we shall be entitled to rescind the contract in accordance with the legal regulations or/and to demand return of the goods on the basis of the retention of title. The demand for return does not include the declaration of rescission simultaneously; we are rather entitled to demand only the return of the goods and to reserve the right of rescission. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable under the legal regulations.
  4. The Buyer shall be entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in a complementary manner
    • The retention of title shall extend to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.
    • For security purposes the Buyer hereby assigns to us the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the buyer mentioned in paragraph 2 shall apply accordingly.
    • The Buyer shall remain authorized to assert the claim in addition to us. We undertake not to assert the claim as long as the purchaser meets his payment obligations towards us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we may demand that the Buyer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.
    • If the achievable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the request of the purchaser.

§ 7 Warranty claims of the purchaser

  1. The legal regulations shall apply to the Buyer's rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated in the following. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the goods to a consumer (supplier's recourse pursuant to § 478 BGB).
  2. Our liability for defects shall be based above all on the agreed quality of the goods. All product descriptions which are the subject of the individual contract shall be deemed to be an agreement on the quality of the goods; it shall make no difference whether the product description originates from the Buyer, from the manufacturer or from us.
  3. If no agreement has been made on the quality of the goods, the legal regulations shall apply to determine whether or not there is a defect (Section 434 (3) and (4) of the German Civil Code (Bürgerliches Gesetzbuch - BGB)). However, we shall not be liable for public statements made by the manufacturer or other third parties (e.g. advertising statements).
  4. The Buyer's claims for defects require that he has fulfilled his legal obligations to examine the goods and to give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during the examination or later, we must be notified thereof in writing without delay. The notification shall be deemed to have been made without delay if it is made within two weeks, whereby timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to examine the goods and give notice of defects, the Buyer shall notify us in writing of any obvious defects (including incorrect and short deliveries) within two weeks of delivery, whereby timely dispatch of the notice shall also suffice to meet the deadline. If the Buyer fails to duly inspect the goods and/or notify us of defects, we shall not be liable for the defect not notified.
  5. If the delivered object is defective, we can first choose whether we provide subsequent performance by eliminating the defect (rectification) or by delivering an object free of defects (replacement). Our right to refuse subsequent performance under the legal requirements shall remain unaffected.
  6. We shall be entitled to make the subsequent performance we are obliged to be conditional upon the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.
  7. The Buyer shall give us the time and opportunity necessary for the subsequent performance we are obliged to, in particular to hand over the goods subject to complaint for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the legal regulations. Subsequent performance shall neither include the removal of the defective item nor its re-installation if we were not originally obligated to install it.
  8. We shall bear the expenses necessary for the purpose of examination and subsequent performance, in particular transport, travel, labor and material costs (not: removal and installation costs), if a defect is actually existent. However, if a request by the Buyer to remedy a defect turns out to be unjustified, we may demand reimbursement from the Buyer of the costs incurred therefrom.
  9. In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the Buyer shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be informed immediately of such a self-remedy, if possible in advance. The right of self-remedy shall not apply if we would be entitled to refuse a corresponding subsequent performance in accordance with the legal regulations.
  10. If the subsequent performance has failed or if a reasonable period to be set by the Buyer for the subsequent performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Buyer may rescind the purchase contract or diminish the purchase price. In the case of an insignificant defect, however, there shall be no right of rescission.
  11. Claims of the Buyer for damages or reimbursement of futile expenses shall only exist in accordance with § 8 and shall otherwise be excluded.

§ 8 Other liability

  1. Unless otherwise stipulated in these GTCS including the following provisions, we shall be liable for a breach of contractual and non-contractual obligations in accordance with the relevant legal regulations.
  2. We shall be liable for damages - irrespective of the legal grounds - in the event of intent and gross negligence. In the case of simple negligence, we shall only be liable
    • for damages resulting from injury to life, body or health,
    • for damages resulting from the breach of an essential contractual obligation (an obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damage.
  3. The limitations of liability resulting from paragraph 2 shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same shall apply to claims of the Buyer under the German Product Liability Act (Produkthaftungsgesetz).
  4. A breach of contract other than a defect shall entitle the Buyer to rescind or terminate the contract only if we are responsible for the breach of contract. A free right of termination of the Buyer (in particular according to §§ 651, 649 BGB) is excluded. In all other respects, the legal requirements and legal consequences shall apply.

§ 9 Limitation of actions

  1. In deviation from § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
  2. If, however, the goods are a construction or an object which has been used for a construction in accordance with its usual manner of use and has caused its defectiveness (construction material), the limitation period shall be 5 years from delivery in accordance with the legal regulation (§ 438 para. 1 no. 2 BGB). Also unaffected are special legal regulations for material claims for the restitiution of property by third parties (§ 438 para. 1 no. 1 BGB), in the event of fraudulent intent on the part of the Seller (§ 438 para. 3 BGB) and for claims in supplier regress in the case of final delivery to a consumer (§ 8 BGB).
  3. The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular legal limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act shall remain unaffected in any case. Otherwise, the legal limitation periods shall apply exclusively to the Buyer's claims for damages pursuant to § 8.

§ 10 Choice of Law and Place of Jurisdiction

  1. The law of the Federal Republic of Germany shall apply to these GTCS and all legal relationships between us and the Buyer, to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. The conditions and effects of the retention of title pursuant to § 6 shall be governed by the law of the respective place of storage of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective thereafter.
  2. If the Buyer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction - including international jurisdiction - for all disputes arising directly or indirectly from the contractual relationship shall be our place of business in Syke. However, we shall also be entitled to bring an action at the Buyer's general place of jurisdiction.

§ 11 Severabiity clause

Should individual provisions of this agreement be or become invalid in whole or in part, the validity of the remaining provisions shall remain unaffected. Should any provision of this agreement be invalid, it shall be replaced by a valid provision that comes as close as possible to the intended purpose in economic terms.

Latest update

September 7th, 2022