Fritz Rensmann GmbH & Co. KG
Date: 10/2018
1. Scope of Application
We conclude contracts solely in accordance with our current General Terms and Conditions. Our General Terms and Conditions do not apply to consumers. Once the client has received a copy of our General Terms and Conditions, they shall apply to all subsequent transactions arising from ongoing business dealings. Revised versions shall apply from the date of our written notification of the changes. We shall not be bound by any conflicting, deviating or unilateral terms and conditions of the client, even if we do not expressly object to them or provide or accept services without reservation.
2. Conclusion of Contract
(1) If our quotation is ‘subject to change’, we may freely withdraw it until we receive the order. If the quotation is ‘subject to prior sale’, our quotation is merely a non-binding invitation to the client to submit an offer of their own. The client is bound by their offer for four weeks from the date we receive it.
(2) We reserve the right to make technical changes on the part of the manufacturers. We reserve all rights to drawings, plans and calculations.
(3) We are entitled to make partial deliveries, provided this is reasonable for the client.
(1) Prices are quoted ex works or ex warehouse, excluding packaging, freight, postage, value protection and transport insurance, and subject to statutory value added tax. For international deliveries, the customer shall bear the customs clearance costs.
(2) The prices stated in quotations and order confirmations are based on the prices of raw materials, energy, wages, etc. valid at the time the quotation is issued. Any cost increases occurring between the conclusion of the contract and delivery, for which we are not responsible, exceeding 3 per cent of the agreed price shall entitle us to adjust the price appropriately in line with the impact of the relevant cost factors, without any profit margin, provided that the customer resells the goods in the course of commercial trade or uses them themselves.
(3) Cash discounts, rebates or bonuses require prior written agreement. Agreed cash discounts are only permissible if the client is not in arrears with other claims arising from the business relationship.
(4) Our claims become due, in the case of goods for collection, upon the goods being made available and receipt of our invoice; in the case of agreed delivery, upon delivery and receipt of the invoice by the client, unless a later payment date or advance payment has been agreed in writing. Where partial deliveries have been agreed, partial payments shall become due accordingly.
(5) Any payment terms granted shall lapse if we become aware of a material deterioration in the client’s financial position, or if the client provides incorrect or incomplete information regarding their creditworthiness, or if the client falls into arrears with other claims arising from the business relationship, even where bills of exchange with a later due date are outstanding. In such cases, outstanding claims shall become due immediately, provided the client is not entitled to any rights to withhold performance. Furthermore, any security interests may be enforced, and outstanding deliveries may be made conditional upon the provision of appropriate security or payment in advance. If the client refuses to provide this, we may withdraw from the contract to the extent that we have not yet rendered any services.
(6) Bills of exchange and cheques shall only be accepted on account of performance and subject to a separate agreement. Bills of exchange must be discountable. Any charges incurred, which shall be calculated from the due date of the invoice amount and shall be payable immediately, shall be borne by the client.
(1) Dispatch is at the client’s expense and risk. Goods reported as ready for dispatch must be called off by the client immediately. If the goods are not called off, the risk of accidental loss of the goods shall pass to the client upon notification that the goods are ready for dispatch.
(2) The obligation to deliver shall be suspended in the event of delivery delays caused by industrial action and unforeseeable extraordinary events, such as measures taken by public authorities, transport disruptions, etc., for the duration of their impact or, in the event of impossibility, in full, provided that we are not responsible for the disruption.
(1) The client’s claims arising from the contract may only be assigned with our prior written consent.
(2) Set-off against our claims is only permitted in respect of counter-claims arising from the client’s own rights which have been finally and conclusively established or acknowledged in writing. Withholding of payments is permitted only if we have materially breached an obligation arising from the same contractual relationship from which the client derives its right of retention and, despite a written request, have failed to offer adequate security.
(3) We may apply payments to settle the oldest outstanding invoice items, including any interest and costs incurred, in the following order: costs, interest, principal claim.
(1) The obligations to inspect and give notice of defects in accordance with section 377 of the German Commercial Code (HGB) shall apply, provided that obvious defects are reported within one week of their discovery and described as precisely as possible. The timely dispatch of the written notice of defects shall be sufficient to meet the deadline.
(2) The warranty shall lapse if the items in question – locomotives, gearboxes, engines, wheel sets, etc. – have been modified or repaired by the customer’s own workshop or by other workshops.
(3) Damage resulting from incorrect or negligent handling, excessive strain or the use of unsuitable operating fluids or lubricants, as well as damage caused by chemical or electrical influences, collision or other accidents, does not constitute a defect.
(4) The warranty is excluded for second-hand goods, such as engines or power units.
(5) If the goods delivered are defective, we may either rectify the defect or supply equivalent goods free from defects (subsequent performance).
(6) If the subsequent performance involving goods free from defects fails or is not carried out within a period of at least four weeks set by us, the client may withdraw from the contract or reduce the remuneration. The client may only claim damages subject to the conditions set out in Clause 7.
(7) If, following notification of a defect and the expiry of the deadline set for rectification, the Client fails to indicate which rights they are claiming under Clause 6(6), a period of three weeks may be set in writing for them to provide clarification. Once this period has expired without result, the authority to decide shall pass to us.
(1) Claims for damages by the client, regardless of the legal basis, as well as claims for reimbursement of wasted expenditure, are excluded, unless the cause of the damage is attributable to a breach of duty arising from gross negligence or wilful misconduct, or to a breach of essential contractual obligations arising from at least negligence; in the latter case, liability is limited to the amount of the typically foreseeable damage.
(2) This limitation of liability shall not apply to personal injury, i.e. to damage resulting from loss of life, bodily injury or damage to health, nor shall it apply in cases of liability under the Product Liability Act or where a guarantee has been given.
(1) Contractual claims for damages and claims for reimbursement of wasted expenditure on the part of the client shall be subject to a limitation period of two years, unless they arise from a defect in the goods. In such cases, the limitation period shall be one year, as is the case for the right to subsequent performance under Clause 6(5); this also applies to repair orders. Claims for recourse under Section 478 et seq. of the German Civil Code (BGB) remain unaffected. The warranty period for rectification of defects is generally six months; however, it shall end at the earliest upon the expiry of the aforementioned limitation period for the claim for subsequent performance.
(2) Clause 8(1) shall not apply in the event of an intentional or grossly negligent breach of duty or a breach of material contractual obligations, nor in the cases specified in Clause 7(2); in such cases, the statutory limitation periods shall apply.
(1) Title to the goods delivered shall not pass to the customer until all liabilities arising from the business relationship have been settled. In the case of an open account (current account), the retention of title shall serve as security for the outstanding balance.
(2) The customer must store the goods subject to retention of title with due care, maintain them at their own expense and insure them against loss and damage to the extent customary for a prudent trader. Claims arising from the insurance contracts are assigned to us; we hereby accept such assignment.
(3) The customer is entitled to dispose of the goods subject to retention of title in the ordinary course of business, provided that they are not in default or that no prohibition on assignment of the purchase price claim has been agreed between them and their customers. The customer is not entitled to pledge the goods subject to retention of title, transfer them by way of security or otherwise encumber them. In the event of resale, the Customer must, for its part, reserve title to the goods, even if the sale took place together with other items or following processing, combination or mixing. The Customer hereby assigns to us its claims arising from the resale up to the amount of the invoice value of the goods subject to retention of title, together with all security and ancillary rights; we hereby accept such assignment.
(4) In the event of default, other material breaches of duty or a significant deterioration in the client’s financial position, the client shall, subject to section 107(2) of the Insolvency Code (InsO), surrender the goods subject to retention of title without delay. We shall be entitled to enter the client’s business premises to collect the goods. In such cases, we may, on the client’s behalf, notify the client’s customers of the assignment of claims arising from the resale and collect such claims.
(5) The client must report immediately any enforcement measures taken by third parties against the goods subject to retention of title, claims assigned to us or other securities, and must provide the documents necessary for us to intervene.
(6) We undertake to release, at the Client’s request, any security to which the Client is entitled under the foregoing provisions, to the extent that the invoice value of the goods subject to retention of title exceeds the claims to be secured by more than 20 per cent. The selection of the goods subject to retention of title to be released shall be at our discretion.
(7) If the retention of title is invalid under the foreign law of the country in which the delivered goods are located, the customer must provide equivalent security. If the customer fails to do so, all outstanding invoices shall become due immediately.
(1) The place of performance for delivery and payment is our registered office.
(2) The place of jurisdiction for all disputes arising from commercial transactions with registered traders and legal entities under public law is, for both parties, our registered office (Section 38 of the German Code of Civil Procedure (ZPO)); this also applies to proceedings relating to bills of exchange and cheques. The client may also, at their discretion, be sued at their general place of jurisdiction.
(3) German law shall apply; the United Nations Convention on Contracts for the International Sale of Goods (CISG – ‘Vienna Sales Convention’/UN Sales Convention) is excluded.
Should any individual provision of these terms and conditions or of the supply agreement be or become invalid, in whole or in part, this shall not affect the validity of the remaining provisions or the remaining parts of such clauses. The invalid provision shall be replaced by a valid provision that corresponds to the intended economic purpose.