RSG Rohrbau Service GmbH

General Terms and Conditions of Sale
RSG Rohrbau Service GmbH

- As of 2012 -

Section 1
General – Applicability

1. Our Terms and Conditions of Sale are the only applicable conditions; we do not recognise any conflicting or divergent customer conditions of sale unless we expressly consent to their applicability in writing. Our Terms and Conditions of Sale will also apply if we are aware of conflicting or divergent customer conditions and carry out delivery to the customer without reservation.

2. All agreements concluded between us and the customer for the purposes of performing this contract are set down in writing in this contract.

3. Our Terms and Conditions of Sale only apply to entrepreneurs in the meaning of Section 310 paragraph 1 of the German Civil Code.

Section 2
Offer – Offer Documents

1. If the order can be classified as an offer under Section 145 of the German Civil Code, we will be able to accept this within two weeks.

2. We reserve our proprietary rights and copyrights for illustrations, drawings, calculations and other documents. This also applies to written documents marked as ‘confidential’. Before transferring them to third parties, the customer requires our express written consent.

Section 3
Prices – Terms and Conditions of Payment

1. Unless otherwise stated in the order confirmation, our prices apply ‘ex works’ and do not include packaging; packaging is invoiced separately.

2. Statutory VAT is not included in our prices; it is charged separately at its statutory rate on the day of the issuance of the invoice.

3. Any cash discounts require special written consent.

4. Unless otherwise stated in the order confirmation, the purchase price is due (without deduction) for payment within 30 days of the invoice date. The legal regulations concerning the consequences of default in payment apply.

5. The customer shall only have rights of set-off if the customer’s counter-claims are finally determined without further legal recourse, undisputed or recognised by us. In addition, the customer is only authorised to exercise rights of retention insofar as the customer’s counter-claim is based on the same contractual relationship.

Section 4
Delivery Time

1. The delivery time specified by us will only commence once all technical issues have been addressed.

2. Adherence to our delivery obligation also requires that the customer properly and punctually meets its obligation. We reserve the right to claim non-fulfilment of the contract as a legal defence.

3. If the customer should default in acceptance or culpably breach other duties to cooperate, we are entitled to demand compensation for any arisen damage, including any additional expenses. Further reaching claims or rights remain reserved.

4. If the criteria described in paragraph 3 are present, the risk of accidental destruction or degradation of the purchased item shall transfer to the customer at the point at which the customer defaults or delays.

5. We will be liable under the legal provisions insofar as the underlying purchase agreement is a firm deal in the meaning of Section 286 paragraph 2 no. 4 of the German Civil Code or Section 376 of the German Commercial Code. We are also liable under the legal provisions insofar as the customer is entitled, as a result of a default in delivery for which we are responsible, to assert that the its interests in the continued performance of the contract are at an end.

6. Furthermore, we will be liable under the legal provisions insofar as the default in delivery is based on a deliberate or grossly negligent contractual breach for which we are responsible; blame for our representatives or vicarious agents is to be attributed to us. Insofar as the default in delivery is based on a deliberate or grossly negligent contractual breach for which we are responsible, our liability for damages will be restricted to the foreseeable damage which typically occurs in such cases.

7. We will also be liable under the legal provisions if the default in delivery for which we are responsible is based on a culpable breach of a material contractual obligation; in this case, however, our liability for damage will be restricted to the foreseeable damage which typically occurs in such cases.

8. Any other legal claims and rights which the customer may assert or have remain reserved.

Section 5
Transfer of Risk – Packaging Costs

1. Unless otherwise stated in the order confirmation, delivery is agreed ‘ex-works’.

2. If the customer wishes, we will cover the delivery with transport insurance; the customer shall bear the additional costs incurred.

Section 6
Liability for Defects

1. Customer claims for defects require that the customer has duly complied with its duty to inspection and objection under Section 377 of the German Commercial Code.

2. If there is a defect in the purchased item, the customer is entitled, at its discretion, to either a supplementary performance in the form of removal of defects or delivery of a new item free of defects. If the customer opts to have the defects removed or a new item delivered, we are obliged to bear all expenses necessary for the purposes of supplementary performance, in particular all transport, labour and material costs, insofar as they do not increase due to the fact that the purchased item was taken to a different place than the place of fulfilment.

3. If the supplementary performance should fail, the customer shall be entitled to, at its own discretion, demand either a cancellation or price reduction.

4. We will be liable under the legal provisions if the customer files claims for compensation based on intent or gross negligence, including intent or gross neglicence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentionally breaching the contract, our liability for damages shall be restricted to the foreseeable damages which typically occur in such cases.

5. We will be liable under the legal provisions if we culpably breach a material contractual obligation; however, our liability for damages will again be restricted to the foreseeable damages which typically occur in such cases.

6. If, due to a negligent breach of obligations, the customer has any right to file a claim for compensation for damages instead of the service, our liability for damages shall be restricted to the foreseeable damage which typically occurs in such cases.

7. Liability due to culpable injury to life, body or health remains unaffected; this also applies to mandatory liability under the German Product Liability Act.

8. Unless otherwise specified above, liability is excluded.

9. The limitation period for claims for defects is 12 months, commencing upon the transfer of the risk. This does not apply if the purchased item is ordinarily used for construction and has caused the defect.

10. This shall not affect the limitation period for recovering from the supplier as provided for under Sections 478 and 479 of the German Civil Code; it is five years, commencing upon delivery of the defective item.

Section 7
Joint Liability

1. Any further liability for damages, as provided for in section 6, is excluded, regardless of the legal nature of the claim filed. This applies in particular to claims for damages arising from faults during the formation of the contract, other breaches of obligations or tort claims for the replacement of material damages under Section 823 of the German Civil Code.

2. The restriction in paragraph 1 also applies if the customer claims compensation for futile expenses instead of the performance or claiming for damages.

3. Insofar as the liability for damages to us is excluded or limited, this shall apply with regard to the personal liability for damages of our staff, employees, representatives and vicarious agents.

Section 8
Reservation of Proprietary Rights

1. We reserve our ownership of the purchased item until receipt of all payments from the delivery agreement. If the customer acts in breach of the contract, in particular by defaulting on payment, we are entitled to recall the purchased item. In recalling the purchased item, we are cancelling the contract. Upon retracting the purchased item, we are authorised to sell it; the proceeds from the sale shall be set off against the liabilities of the customer, minus reasonable sales costs.

2. The customer is obliged to treat the purchased item with care; the customer is especially obliged to insure, at its own cost, the purchased item at its original value against damage from fire, water and theft. If maintenance and inspection work is required, the customer must carry this out at its own cost at the correct time.

3. In the case of attachments or other interference from third parties, the customer must immediately notify us in writing in order that we can institute legal proceedings under Section 771 of the German Code of Civil Procedure. If the third party is unable to reimburse us with the legal and extrajudicial costs of legal proceedings under Section 771 of the German Code of Civil Procedure, the customer shall be liable for our resulting loss.

4. The customer is entitled to resell the purchased item as part of the normal course of business. In doing so, the customer assigns to us all claims to the value of the total invoice amount (including VAT) of our claim which arise against it from its purchasers or third parties after resale. This is irrespective of whether the purchased item was resold modified or otherwise. The customer remains authorised to collect this claim, even after assigning its claims. Our right to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer fulfils its payment obligations from the proceeds received, does not default on payment and, in particular, hs not stopped payment and has not applied to institute reorganisation or insolvency proceedings. However, if this is indeed the case, we shall be able to demand that the customer inform us of the assigned claims and their debtors, provide all information required for collection, surrender the relevant documents and inform the debtors (third parties) of the assignment.

5. Processing or reshaping the purchased item by the customer is always undertaken for us. If the purchased item is processed with other items not belonging to us, we shall acquire joint ownership of the new item at a ratio of the value of the purchased item (total invoice amount including VAT) to the other processed items at the time of processing. The same applies to the item created through processing as for the purchased item delivered under reserve.

6. If the purchased item is inextricably combined with other items not belonging to us, we shall acquire joint ownership of the new item at a ratio of the value of the purchased item (total invoice amount including VAT) to the other processed items at the moment when the items were combined. Should the items be combined in such a way that the customer’s item is to be considered the main item, it shall be deemed agreed that the customer will grant us proportional joint ownership. The customer shall hold in trust the resulting sole or joint ownership for us.

7. The customer also assigns to us its claims to secure our claims against the customer which arise against a third party from the connection between the purchased item and real property.

8. We undertake to release the securities due to us at the request of the customer insofar as the realisable value of our securities exceeds that of the claims to be secured by more than 10%; the choice of which securities to be released rests with us.

Section 9
Place of Jurisdiction – Place of Fulfilment

1. Provided that the customer is a businessperson under the German Commercial Code, our place of business shall be the place of jurisdiction; however, we have the right to file an action against the customer at the customer’s court of residence.
   
   

2. The governing law shall be the law of the Federal Republic of Germany; the UN Convention on Contracts for the International Sale of Goods is excluded.
   
   

3. Unless otherwise stated in the order confirmation, our place of business shall be the place of fulfilment.