General Terms and Conditions of R&R-BETH GmbH – as of 01/2016

  1. General
  1. The following General Terms and Conditions (GT&Cs) are applicable for all delivery and service contracts concluded by R&R-BETH GmbH.
  2. The GT&Cs are applicable to persons who, with the conclusion of the contract, carry out their industrial or independent professional activities (entrepreneurs), as well as legal persons under public law or special funds under public law.
  3. The GT&Cs are also applicable to all future business relationships, even if no reference to these GT&Cs is made or they are not agreed upon again.
  4. The contractual partner’s counter-confirmation with reference to its own general terms and conditions is hereby rejected. Should our order be confirmed by the contractual partner in a way deviating from our GT&Cs, only our GT&Cs shall apply even if we do not object. Deviations only apply if we have expressly confirmed them in writing.
  1. Contents of the contract
  1. Unless special agreements have been made, the contractual declarations of the underlying contract (order, order confirmation, acceptance declaration) must be made in writing.
  2. Offers submitted by R&R-BETH GmbH to general requests are non-binding unless they have been expressly confirmed as binding.
  3. Agreements with employees of R&R-BETH GmbH only become binding and a contractual object following written confirmation by one of the managing directors of R&R-BETH GmbH.
  4. Documents forming part of an offer, like images, drawings and weight and measurement indications, are merely approximate unless they have been expressly designated as binding.
  5. R&R-BETH GmbH retains all proprietary rights and copyright to all physical and non-physical designs, cost estimates, drawings and similar information; these may not be made accessible to third parties. R&R-BETH GmbH undertakes not to disclose to third parties any information or documents which the contractual partner has designated as confidential except with the contractual partner’s consent.
  6. All necessary and required construction permits and other authorisations required by public law, such as an operating licence, must be obtained by the contractual partner. R&R-BETH GmbH bears no liability for authorisations which are missing or have not been granted, nor for the continuance of authorisations which have been granted.
  1. Prices
  1. The prices stated in an offer by R&R-BETH GmbH shall be valid on the condition that all of the order data in the underlying offer, especially drawings and construction plans, remain unchanged.
  2. All of the prices quoted by R&R-BETH GmbH apply ex works. They do not include the costs associated with loading, packaging, freight, insurance, customs duty, marginal costs and unloading. VAT of the respective statutory amount will be added to the prices. Invoices are issued in euros.
  3. For contracts with an agreed delivery time of more than four months, R&R-BETH GmbH reserves the right to increase the prices as a consequence of price increases occurring after the conclusion of the contract, in particular due to increases in material costs. Should this increase amount to more than 5% of the agreed price, the contractual partner shall be entitled to terminate the contract unless the extension of the delivery time is due to a request on its part or they are responsible for in on some other grounds.
  4. Changes to the scope of delivery and service made by the contractual partner after the conclusion of the contract as well as additional work caused by procedural changes will be charged separately. The same applies to additional work and modifications to system components which have already been completed.
  1. Payment
  1. In the absence of special agreements and in the absence of reference to payment terms in the offer, the payment owed according to the contract, without any deductions, shall be payed as follows:
  • 30% following receipt of the order confirmation,
  • 60% at delivery and
  • 10% following start-up, but latest two weeks after the transfer of risk.
  1. Notwithstanding clause 1., R&R-BETH GmbH is entitled to demand an advance payment by the contractual partner relating to the contractually owed payments should Euler Hermes Kreditversicherung-AG or a comparable insurance company reject the conclusion of credit insurance due to the amount owed by the contractual partner to R&R-BETH GmbH according to the contract, whereby rejection by one insurance company is sufficient.
  2. Discounts will be granted upon individual agreement.
  3. All invoices generated by R&R-BETH GmbH are to be paid within 21 calendar days of the date on the invoice. A payment is only deemed to have been made if R&R-BETH GmbH is able to access the amount in question.
  4. In case of default of payment by the contractual partner, R&R-BETH GmbH is entitled to demand payment of all debts still open at that time, also debts for which a respite has been granted and debts for which bills of exchange or cheques have been given, and to withhold all outstanding deliveries and services until all debts have been paid in full. In this case, the agreed delivery period will be extended accordingly. In addition, R&R-BETH GmbH is entitled to suspend any further work that may be outstanding in an order during this extended delivery period.
  5. If the contractual partner fails to make payment for longer than 5 calendar days, R&R-BETH GmbH is entitled to demand advanced payment and to withhold any outstanding deliveries and services until such advanced payment has been made.
  6. The right to retain payments or to set-off payments with counterclaims shall be available to the contractual partner only to the extent that its counterclaims are verifiably uncontested or are legally enforceable. The contractual partner shall only be entitled to a right of retention regarding claims resulting from the same contractual relationship. In the event of defective delivery or service, the contractual partner may not withhold payment of an amount equal to the value of the defective delivery or service; its right of retention is limited to an amount equal to the reduced value of the delivery or service caused by the defect.
  1. Delivery
  1. Delivery periods or delivery dates shall only be binding if they have been expressly confirmed in writing by R&R-BETH GmbH.
  2. Delivery periods confirmed in writing begin with the conclusion of the contract, but not before all commercial and technical queries have been clarified between the contractual parties and not before the contractual party has met all obligations for which it is responsible, such as obtaining the necessary official permits or authorisations and settling all payments owed.
  3. The delivery period shall be deemed met when the good(s) for delivery have left the R&R-BETH GmbH plant before the expiry of the delivery period or the contractual partner has been notified that the goods are ready to ship.
  4. In case of an unavoidable event, such as a strike, lockout or supplier delay or default, the delivery period shall be extended, or the delivery date shifted, accordingly.
  5. If, as a result of an unavoidable event, in particular an event stated in clause 4., a delivery or service by R&R-BETH GmbH is impossible, R&R-BETH GmbH shall be entitled to withdraw from the contract in whole or in part.
  6. Deliveries shall be made ex works. Liability for accidentally destroyed or damaged goods shall be transferred to the contractual party upon their delivery to the transport company, but latest upon their departure from the plant. Following notification that the goods are ready to ship, if delivery is delayed by more than one working day for reasons for which R&R-BETH GmbH is not responsible, risks shall transfer with the expiry of the working day subsequent to the date stated on the notification that the goods are ready to ship.
  7. Shipment shall be carried out by one of the forwarders or carriers to be chosen by R&R-BETH GmbH, if nothing to the contrary has been agreed. R&R-BETH GmbH assumes no liability for the selection of the forwarders or carriers and the packaging, insofar as a legal representative or assistant of R&R-BETH GmbH acts with intent or gross negligence.
  8. If shipment is delayed at the request of the contractual party, the storage costs shall be for the contractual party’s account starting from the expiry of the working day subsequent to the date stated on the notification that the goods are ready to ship. Storage in the R&R-BETH GmbH plant shall result in storage costs of 0.017% of the invoice amount of the stored goods per calendar day.
  9. R&R-BETH GmbH shall only be in arrears of a contractual obligation if the contractual partner has set a grace period of at least 14 days. This shall also apply when a binding delivery period or delivery date has been agreed. Following an occurrence of default, the contractual party can claim compensation for the delay of maximum 0.5% for each full week, but not exceeding 5% of the value of the delayed delivery or service. Damages for non-performance are limited to the amount of the order value. This limitation to the compensation liability shall not apply if the legal representatives or executive employees of R&R-BETH GmbH have acted with intent or gross negligence.
  10. R&R-BETH GmbH is entitled to withdraw from the contract in whole or in part and to demand compensation liability due to non-performance should the contractual partner, following the notification that the goods are ready for shipment, default for more than two weeks in the acceptance of the goods ready for delivery, in the issuance of the shipping order, in the fulfilment of payment obligations or in the furnishing of an agreed security, and R&R-BETH GmbH has granted the contractual partner a grace period of at least two weeks in writing, with the threat that it will withdraw from the contract should the grace period expire without success.  R&R-BETH GmbH has the right and full possibility to assert a higher actual damage claim and demand compensation liability from the contractual partner in the amount of 20% of the payments owed according to the contract without furnishing evidence of damages. In this respect, the contractual partner shall have the right to furnish evidence that no or only slight damage was caused.
  1. Reservation of title
  1. R&R-BETH GmbH reserves the title to all delivered goods until the fulfilment of all of the contractual partner’s obligations in the existing business relationship.
  2. The contractual partner is obliged to insure R&R-BETH GmbH’s property in the form of delivered goods against damages caused by theft, fire, water or breakage, whereby the benefits of the insurance shall be in favour of R&R-BETH GmbH. Should the contractual partner not immediately, upon R&R-BETH GmbH’s demand, provide evidence of having taken out insurance against theft, fire, water or breakage, R&R-BETH GmbH shall be entitled to take out their own insurance. The costs hereby accrued shall be reimbursed by the contractual partner to R&R-BETH GmbH.
  3. The contractual partner may not sell, lend, pledge or offer as a security goods that are subject to reservation of title. In the event of assignment, seizure or any other interventions by third parties, the contractual partner must immediately notify R&R-BETH GmbH.
  4. As long as a reservation of title in favour of R&R-BETH GmbH exists, delivered goods that are subject to the reservation of title, goods produced out of these delivered goods or new items created through combination with these delivered goods may neither be sold nor charged without the consent of R&R-BETH GmbH. In case of further sale, the contractual partner hereby assigns to R&R-BETH GmbH all claims from the further sale including all secondary rights to the third party to the value of the total invoiced amount with the authorisation of a proportionate entitlement.
  5. In case of a payment default, R&R-BETH GmbH is entitled to repossess the delivered goods that are subject to the reservation of title, and the contractual partner is obliged to hand over the goods. Due to the reservation of title, R&R-BETH GmbH can only exercise the demand for the return of goods when it has withdrawn from the contract. The contractual partner shall bear the costs related to the repossession of the goods.
  6. If an application has been filed for the initiation of insolvency proceedings concerning the contractual partner’s assets,

R&R-BETH GmbH shall be entitled to withdraw from the contract and to demand the immediate return of the delivered goods.

  1. Installation
  1. The contractual partner shall support the R&R-BETH GmbH installation personnel during installation at its own cost.
  2. The contractual partner shall take the necessary measures for the protection of persons and goods at the installation site. The contractual partner must inform the R&R-BETH GmbH installation supervisor of any safety regulations, such as may be of significance to the installation personnel. The contractual partner shall advise R&R-BETH GmbH of any violations by the installation personnel of such safety regulations. In the event of serious violations, the contractual partner may, after consulting with the installation supervisor, deny the violating worker access to the installation site.
  3. The contractual partner shall provide technical assistance at its own expense, in particular for the performance of the following services:
  • installation of the components provided by the customer,
  • construction of installation openings, and resealing these,
  • lightning protection fuses and grounding devices,
  • auxiliary materials, such as electricity, gas, water and lubricants,
  • disposal of residual and waste material, as well as unusable lubricants,
  • construction works such as foundations, floor ducts, sealing openings as well as insulation tasks
  • all masonry, roofing, carpentry, electricity, and plumbing work as well as the provision of scaffolding, cranes and hoisting devices, loading and unloading devices as well as building site transport,
  • sound and heat insulation measures, spark and fire extinguishing systems and equipment as well as automatic gate valves,
  • prevention of the fire hazards associated with welding and grinding work through appropriate preparation of the work space as well as maintaining a constant fire watch during the welding and grinding work and for 24 hours following the conclusion of the welding and grinding work,
  • additional equipment according to the provisions of the Major Accident Ordinance,
  • deionisation equipment against static charges, sound level and emission measurements,
  • provision of necessary dryers and lockable rooms for the storage and security of components and tools.
  1. The contractual partner’s technical assistance must guarantee that installation can be started immediately after arrival of the installation personnel and carried out without delay until acceptance by the contractual partner. Should the contractual partner require special plans or instructions for the installation, R&R-BETH GmbH will make them available in good time.
  2. Should the contractual partner fail to fulfil its obligations, R&R-BETH GmbH shall be entitled to carry out the actions assigned to the contractual partner in its stead and at its expense. Doing so shall not influence the legal rights and claims of R&R-BETH GmbH.
  3. If an installation period is agreed for which written confirmation by R&R-BETH GmbH is required, this will be considered to be fulfilled if, by its expiration, the installation has been completed by R&R-BETH GmbH and notification regarding the completion of the installation has been sent to the contractual partner.
  4. Should installation work be delayed due to the occurrence of circumstances for which R&R-BETH GmbH cannot be held responsible, the contractual partner shall grant a reasonable grace period; this shall also apply if such circumstances arise after R&R-BETH GmbH is already in delay. The contractual partner shall bear the costs which arise from the delay.
  5. The contractual partner is obliged to accept installation as soon as it has been notified of the completion of works. Should acceptance be delayed through no fault of R&R-BETH GmbH, acceptance shall be deemed to have occurred after a period of one week has elapsed since notification of the completion of the installation.
  6. R&R-BETH GmbH shall remedy defects in the installation at its own cost. This shall not apply if the defect is insignificant in terms of the contractual partner’s interests or is due to circumstances that are attributable to the contractual partner.
  7. If an installation piece delivered by the contractual partner is damaged through the fault of R&R-BETH GmbH during installation, this shall be repaired at the cost of R&R-BETH GmbH.
  8. In the event of damage to or loss of devices and tools provided by R&R-BETH GmbH during transport to or at the installation site, the contractual partner is obliged to compensate for the associated damages as long as R&R-BETH GmbH is in no way at fault. Damage attributable to normal wear and tear shall not be covered by this provision.
  1. Claims for defects
  1. The contractual partner is obliged to inspect the goods delivered by R&R-BETH GmbH immediately after delivery and to inform R&R-BETH GmbH immediately of any recognisable defects according to Sections 377 and 378 of the German Commercial Code (HGB). The notification of recognisable defects shall be made in writing by the contractual partner and must be made before the expiry of the fifth working day after delivery, whereby receipt of the notification by R&R-BETH GmbH is authoritative.
  2. If goods are produced according to the contractual partner’s drawings or instructions, R&R-BETH GmbH only bears liability for conformity of the system components (delivered goods) with the drawings or instructions.
  3. Any cracks occurring on firebricks, fireproof masonry or fireproof cement are of a physical nature and do not represent a defect.
  4. Defects which were existing or assessed during the transfer of risk will be resolved by R&R-BETH GmbH through the option of either repair or replacement. Replaced parts become the property of R&R-BETH GmbH.
  5. R&R-BETH GmbH assumes claims for defects for goods which are not produced by R&R-BETH GmbH, in particular electrical system units and hydraulic system units, by assigning their claim for defects against the suppliers to the contractual partner. In this case, the contractual partner can only demand repair or replacement from R&R-BETH GmbH provided that the supplier is unreasonably delayed or is incapable.
  6. In order for R&R-BETH GmbH to carry out the repairs or replacements it deems necessary, the contractual partner must grant it the required time and opportunity after prior consultation with R&R-BETH GmbH, otherwise R&R-BETH GmbH shall be released from all liability for the consequences arising therefrom. Only in urgent cases of threats to the operational safety or in order to prevent disproportionate damage may the contractual partner repair the defect itself or have the defect repaired by a third party and demand compensation for the necessary expenses for this repair from R&R-BETH GmbH, whereby the contractual partner must inform R&R-BETH GmbH immediately and to the extent possible about the removal of the defect.
  7. Should the claim of a defect be revealed to be unjustified, the contractual partner shall bear the costs occurred by R&R-BETH GmbH as a result of this claim.
  8. If only an insignificant defect exists, the contractual partner shall only have the right to reduce the price. The right to a reduction of the price is excluded in all other cases.
  9. R&R-BETH GmbH accepts no responsibility in the following cases in particular: unsuitable or improper use; incorrect installation or setting into operation by the contractual party or third parties; natural wear and tear; incorrect or negligent handling; improper maintenance; inappropriate equipment; deficient construction work, unsuitable construction base; chemical, electrochemical or electrical influences - to the extent that R&R-BETH GmbH is not responsible for such conditions.
  10. R&R-BETH GmbH shall not be liable, on whatever legal grounds, for damages caused to anything other than the goods delivered by us except
  • in cases of deliberate intent,
  • in cases of gross negligence on the part of R&R-BETH GmbH’s legal representatives and their executive employees,
  • in cases of culpable injury to life, body, health,
  • for damages which R&R-BETH GmbH’s legal representatives and their executive employees have maliciously concealed,
  • for damages to delivered goods, insofar as liability exists under the German Product Liability Act for personal injury or property damage for goods used privately.
  1. If it is responsible for breaching essential contractual obligations, R&R-BETH GmbH shall also be liable in case of gross negligence by non-executive employees and slight negligence. In cases of slight negligence, liability shall be limited to damage which is reasonably foreseeable and typical for this kind of contract.
  2. Further claims are excluded.
  1. Limitation

All of the contractual partner’s claims cease to be valid twelve months from the transfer of risks. The claims stated in clause VII. 10. cease to be valid according to the statutory periods. The statutory periods also apply to defects in construction or delivered goods which have been used in construction in accordance with their common use and have caused the defectiveness thereof.

  1. Applicable law, place of performance, jurisdiction
  1. For the complete legal relations between R&R-BETH GmbH and the contractual partner, solely the authoritative law of the Federal Republic of Germany is in force.
  2. The place of performance for all contractual obligations of R&R-BETH GmbH and the contractual partner is Bad Lobenstein.
  3. The exclusive jurisdiction for all disputes arising from the contract or because of the contract is Bad Lobenstein.
  4. Should individual clauses of these GT&Cs be invalid in whole or in part this shall have no effect on the validity of the remaining clauses. In lieu of this the statutory regulations will apply.