General Terms and Conditions
of Bürstenhaus Redecker GmbH
Section 1 – General Provisions
1. The following General Terms and Conditions (GTCs) shall apply to all legal transactions, services and deliveries of Bürstenhaus Redecker GmbH, Bockhorster Landweg 19, 33775 Versmold, Germany (hereinafter “Redecker”), unless the principal is an entrepreneur.
2. The following GTCs shall also apply to all transactions concluded in future.
3. These GTCs shall apply exclusively; any deviating or conflicting GTCs of the principal shall not be recognised.
4. Individual arrangements made with the principal in the individual case (including side agreements, amendments and modifications) shall take precedence over these GTCs in any case.
5. Legally relevant declarations or notices to be made by the principal vis-à-vis Redecker after conclusion of the agreement (for ex. setting of time limits, notices of defects, declaration of withdrawal or price reduction) shall require written form to become effective.
6. References to the application of statutory regulations shall only have clarifying significance. Therefore, the statutory regulations shall also apply without any such clarification, unless they are directly amended or explicitly excluded in these GTCs.
Section 2 – Subject Matter of the Agreement
1. Our offers shall be subject to alteration and shall not be binding.
2. The presentation and promotion of items in our dealer online shop, in our catalogues or on our website shall not constitute a binding offer for the conclusion of a purchase agreement.
3. By sending a purchase order, the principal shall be deemed to submit a legally binding offer. The principal shall be bound to the offer for a period of one week after sending of the purchase order.
4. Immediately after receipt of the offer, we shall send an acknowledgement of receipt of the offer to the principal which shall not constitute any acceptance of the offer. An agreement shall realise only if we accept the principal’s purchase order by way of a declaration of acceptance or by delivering the items ordered.
5. We can only take into account orders from a minimum order value of € 150.00. For one or several first-time order/s outside the Federal Republic of Germany, the minimum order value shall be € 250.00.
6. If delivery of the goods ordered by the principal is impossible, for ex. because the relevant goods are not in stock, we will refrain from any declaration of acceptance. In this case, any agreement shall not materialise. We shall immediately notify the principal thereof.
7. In case of custom-made products, quantity deviations up to 20% may occur.
Section 3 – Prices
1. Unless agreed otherwise in the individual case, our respective prices valid upon conclusion of the agreement acc. to the price list shall apply, i.e. ex works and plus the statutory VAT, packaging and shipping costs.
2. To the extent that the agreed prices are based on the list prices and delivery is intended to take place only more than four months after conclusion of the agreement, the Redecker list prices valid upon delivery shall apply.
Section 4 – Invoice, Terms of Payment
1. Subject to any deviating contractual regulations, Redecker shall invoice its services immediately after provisioning.
2. For first-time orders, delivery shall be effected only after receipt of the purchase price plus shipping costs (prepayment).
3. If, after conclusion of the agreement, Redecker becomes aware of any circumstances suitable to substantially reduce the principal’s creditworthiness and jeopardising payment of the outstanding receivables of Redecker by the principal from the respective contractual relationship (incl. from any other individual orders to which the same framework agreement applies), Redecker shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of a collateral security.
Section 5 – Offsetting, Right of Retention
The principal may offset remuneration claims of Redecker only against claims that are undisputed or have been legally established. The principal may assert any right of retention only in cases where claims are undisputed or have been legally established. In case of defects, the principal’s counter-rights shall remain unaffected thereby.
Section 6 – Bearing of Risks
1. All deliveries shall be made ex works.
2. Any dispatch shall be made at the expense and risk and on behalf of the principal.
3. Upon handover of the goods to the carrier, the risk of accidental destruction or accidental deterioration shall pass to the principal.
Section 7 – Retention of Title
1. The retention of title agreed below shall serve to secure all respective existing current and future receivables of Redecker from the principal from the delivery relationship existing between the contracting partners (incl. balance receivables from any current account relation limited to said delivery relationship).
2. The goods delivery by Redecker to the principal shall remain the property of principal until all secured receivables have been paid in full. The goods as well as the goods subject to retention of title taking its place in acc. with the provisions below shall hereinafter be referred to as “goods subject to retention of title”.
3. The principal shall store the goods subject to retention of title free of charge for Redecker.
4. The principal shall be entitled to process and alienate the goods subject to retention of title in the ordinary course of business upon occurrence of any case of utilisation (para. 9). Pledging and chattel mortgaging shall not be permitted.
5. If the principal processes the goods subject to retention of title, it shall be agreed that such processing shall take place in the name and for the account of Redecker as manufacturer and that Redecker shall immediately acquire ownership or, if such processing is made from substances of several owners or if the value of the processed item exceeds the value of the goods subject to retention of title, co-ownership (fractional ownership) of the newly created item at the ration of the value of the goods subject to retention of title to the value of the newly created item. In case that no such acquisition of ownership occurs on the part of Redecker, the principal shall already now transfer his/her future ownership or, at the aforementioned ratio, co-ownership of the newly created item as a collateral security to Redecker. If the goods subject to retention of title are combined or inseparably intermingled with any other item to form a uniform item and if any of the other items is to be regarded as the main item, Redecker shall transfer co-ownership of the uniform item to the principal at the ratio stipulated in sentence 1 to the extent that the main item is the property of Redecker.
6. In case of any further alienation of the goods subject to retention of title, the principal shall already now assign the resulting receivable from the acquirer to Redecker by way of security, in case of any co-ownership of Redecker of the goods subject to retention of title: on a pro rata basis acc. to the co-ownership share. The same shall apply to any other receivables taking the place of the goods subject to retention of title or arising otherwise with regard to the goods subject to retention of title, such as insurance claims or claims resulting from unlawful acts in case of loss or destruction. Redecker shall irrevocably authorise the principal to collect in his/her own name the receivables assigned to Redecker. Redecker may revoke this collection authorisation at any time.
7. If third parties access the goods subject to retention of title, especially by seizure, the principal shall immediately point them to the ownership of Redecker and shall inform Redecker thereof to enable Redecker to enforce its rights of ownership. If said third party is unable to reimburse Redecker for the judicial and extrajudicial costs due to Redecker in this context, the principal shall be liable vis-à-vis for said costs.
8. Redecker shall release the goods subject to retention of title as well as the items or receivables taking their place to the extent that their value exceeds the amount of the secured receivables by more than 20%. The right to select the objects to be released accordingly shall be incumbent upon Redecker.
9. If the principal acts contrary to the agreement, especially by default of payment, and Redecker withdraws from the agreement (case of utilisation), Redecker shall be entitled to demand surrender of the goods subject to retention of title.
Section 8 – Delivery, Default
1. In principle, delivery dates and deadlines shall be non-binding guidelines. This shall not apply only if dates are expressly agreed in writing as fixed dates. If any provision of documents (models/data) assented by the principal is delayed, any firmly committed delivery dates shall be postponed accordingly.
This shall apply, mutatis mutandis, in case of any delays in performance as a result of any incorrect or non-timely self-delivery or caused by force majeure or any other events not foreseeable upon conclusion of the agreement (e.g. operational breakdowns of any kind, difficulties in the procurement of materials or energy, delays in transit, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties in the procurement of necessary official approvals, official orders) and not attributable to Redecker. If such events make it considerably more difficult or impossible for Redecker to execute delivery or performance and the impediment is not merely of a temporary duration, Redecker shall be entitled to withdraw from the agreement. In case of any obstacles of a temporary duration, the delivery and performance dates shall be extended or the delivery or performance dates shall be postponed by the period of such impediment plus an appropriate starting period. To th extent that the principal cannot be reasonably expected to accept delivery or service as a result of such delay, the principal may withdraw from the agreement by means of an immediate written notification to Redecker.
2. Occurrence of any delay shall be governed by the statutory regulations. However, a reminder by the principal shall be required in any case. If Redecker comes in default of delivery, the principal may claim compensation for any damage caused by such delay; in case of slight negligence by Redecker, this entitlement shall be limited to a maximum of 5% of the agreed price.
If the principal claims compensation for damages instead of performance due to the delay by Redecker, this claim for compensation for damages instead of performance shall be limited, in case of slight negligence by Redecker or its auxiliary agents, to a maximum of 30% of the price.
For any culpably caused damage due to any violation of life, body or health, Redecker shall be liable without limitation acc. to the statutory conditions and within the statutory limits.
Section 9 – Obligation to Give Notice of Defects
The principal shall give notice of obvious defects in items delivered or work services rendered by us immediately, eight days after receipt of the goods or service at the latest. Notice of hidden defects must be given immediately after discovery of the flaw.
Section 10 – Warranty
1. If any material defect exists in items delivered or work services rendered by Redecker, we shall be liable vis-à-vis the principal for subsequent performance, price reduction, redhibition and reimbursement of expenses under the statutory conditions and within the statutory limits.
2. If the statutory conditions are met, we shall be further liable vis-à-vis the principal for compensation for damages instead of performance. In case of any merely slight breach of duty by Redecker or its auxiliary agents, the claim to compensation for damages instead of performance shall be limited to the foreseeable damage as per agreement.
3. If any other claims for compensation for damages (other than compensation for damages instead of performance) are justified, Redecker shall be liable acc. to the provisions of section 11 hereof.
4. Material defects in objects delivered or work services rendered by us shall come under the statute of limitations in 12 months. The statute of limitations for delivered movable objects shall commence upon handover; for any other work services, it shall commence upon acceptance.
Section 11 – Other Liability
1. Unless provided for otherwise herein including the provisions stipulated below, we shall be liable acc. to the relevant legal regulations for any violation of contractual and non-contractual obligations.
2. We shall be liable for compensation for damages, for any legal reason whatsoever, in case of wilful intent and gross negligence. In case of slight negligence, we shall be liable only
a) for any damage arising from any violation of life, body or health;
b) for any damage arising from any violation of an essential contractual obligation (an obligation, the fulfilment of which is a prerequisite for enabling proper implementation of the agreement in the first place and on compliance with which the contracting partner regularly relies and may regularly rely). In this case, however, our liability shall be limited to compensation for the foreseeable, typically arising damage.
3. The limitations of liability resulting from clause 2. shall not apply to the extent that we have maliciously concealed any defect or assumed any guarantee for the condition of the goods. The same shall apply to any claims of the principal acc. to the German Product Liability Act. For claims for compensation for damages instead of performance due to default or based on material defects, the liability from section 8 clause 2 and section 10 clause 2 hereof shall remain unchanged.
Section 12 – Place of Performance and Place of Jurisdiction
The place of performance for all services shall be the registered office of Redecker. The place of jurisdiction for both parties shall for amounts in dispute up to € 5,000 shall be Halle/Westphalia, Germany; for amounts in dispute of more than € 5,000, it shall be the District Court [Landgericht] of Bielefeld, Germany.
Section 13 – Applicable Law
The contractual relations shall be governed by German substantive law to the exclusion of the United Nations Convention on Contracts for the International Sale of Good (CISG).
Section 14 – Final Provisions
These General Terms and Conditions shall continue to be binding in its remaining parts even if individual stipulations are legally ineffective.