general terms and conditions of RAUSCH CLASSICS GmbH October 2011
1 ApplicationAll our products or services (hereinafter referred to as „Services“) and offers – including those provided in the future – are provided subject exclusively to our Terms and Conditions (hereinafter referred to as „Terms“). These Terms form part of all contracts made with us; they apply even if not specifically referenced. Our Terms only apply vis-à-vis entrepreneurs [Unternehmer] (German Civil Code [BGB] § 14, § 310). Our Terms apply exclusively. The customer‘s terms and conditions do not apply, even if we do not object to them separately. They do not become part of the contract even if the order is accepted or filled without reservation.
2 Formation of ContractOur offers are non-binding unless expressly stated otherwise. We only undertake contractual guarantees [„Garantie“] that we have explicitly identified as such in writing. The contract is not formed until our written order confirmation has been provided. We can accept the customer‘s purchase orders within 15 business days. Oral and phone agreements are only legally valid if we confirm them in writing. The order confirmation exclusively governs the scope and subject-matter of the Service. If the order confirmation contains changes to the customer‘s purchase order, the customer is deemed to have consented to them if he does not object in writing within a reasonable period of time. Illustrations or information (dimensions, allowable loads, tolerances, drawings, technical data, etc.) are only approximations, unless exact conformity is necessary for the Service to be used for the contracted purpose. Any obvious mistakes or printing, spelling, arithmetical or costing errors are not binding and do not give grounds for any claim.
3 Payment, DeliveryUnless agreed otherwise, invoices are due immediately without discounts. Payment is deemed to be made when our account is credited. The customer may only exercise a right of retention or set-off if his claims against us are undisputed or upheld by final and absolute judgment. Service deadlines are only approximate unless we have expressly agreed to a fixed Service deadline. Service deadlines begin upon receipt of the order confirmation, but not before all technical and commercial questions have been resolved or a required advance payment has been made. We will comply with Service deadlines subject to timely delivery by our own suppliers; we will provide notifications of delays. We are not liable for faults of our suppliers. After a non-binding Service deadline expires, the customer may only withdraw from the contract after he has fixed in writing an additional period of at least 30 days for us to perform our obligations and has warned us that he will refuse performance if we do not perform within this additional period. If the shipment is delayed due to circumstances beyond our control, risk will pass to the customer upon issuing the ready-to-ship notice. Force majeure events, government actions, and other circumstances for which we are not at fault – for example, strikes, operational upsets, missing permits, difficulties in procuring materials, civil unrest, embargoes, travel warnings issued by the German Federal Foreign Office – that render our performance or that of our suppliers impracticable or impossible other than temporarily, exempt us from our obligation to perform for the duration of their effects. We are not liable for impossibility or delays due to such events. The customer may ask us to declare within 2 weeks whether we intend to withdraw from the contract or perform within a fair and reasonable period. We may partially or completely withdraw from the contract if we cannot be reasonably expected to perform for the above reasons; this does not entitle the customer to damages. The customer may withdraw from the contract after fixing an additional period of time for us to perform our obligations if he can no longer be reasonably expected to accept the Service for the above reasons. If we are in default in performance due to slight negligence, our liability for liquidated damages for each completed week of delay is 0.5% up to but not exceeding 5% of the amount invoiced for the Service affected by the default. We may prove that the damages are smaller. In all other regards, our liability for default in performance is governed by the liability provisions of these Terms.
4 Retention of TitleWe retain title to the Service until all payments owed under the business relationship have been received. The customer has a revocable right to sell the Service in the ordinary course of business. The customer now hereby assigns to us as security all claims arising from the resale of the Service, in lieu of the Service, or otherwise in respect of the Service (e.g. insurance, tort), including all ancillary rights. We hereby accept the assignment. The customer has a revocable right to collect claims assigned to us in his own name and for our account. We may withdraw from the contract and require the customer to immediately restore the Service to us or, if applicable, assign his rights of restoration against third parties if the customer breaches the contract by, without limitation, defaulting on payments or filing for bankruptcy (enforcement event). The customer has no right of retention in this case. This is without prejudice to claims for damages, including claims for compensation of lost profits. We can satisfy the debt owed by selling the repossessed Services by private contract.
5 DefectsThe customer must carefully inspect the received Service without unreasonable delay upon receipt. We must be notified of any defects in writing without unreasonable delay („notice of defects“). Damages sustained in transit must be documented vis-à-vis the carrier. German Commercial Code [HGB] § 377 applies in all other regards. If no notice is given, the Service is deemed to be free from defects or in conformity with the purchase order, unless the defect in question was not detectable during the inspection. Notice of such defects must be given immediately after discovery. Any resale or other use of an allegedly defective Service is deemed approval of the Service, indicating performance as contracted, and to that extent precludes the possibility of claims for defects. By negotiating about notices of defects, we do not waive the defense that the notices were late, unsubstantiated, or otherwise insufficient. Damage reduction measures do not constitute an acknowledgement of defects. We extend no guarantee of compliance with any special regulations that apply to the customer‘s business or to imports or exports, nor do we guarantee that any necessary permits or approvals have been obtained. The Service may only be used in the country for which it has been ordered. Unless otherwise agreed upon, the customer bears the responsibility, liability, and cost of any export. Liability for infringements of intellectual property rights outside Germany is only assumed by separate written agreement. We are entitled to deviate from the stipulated quality or quantity due to irregularities in materials, or to adapt our Service to technical progress in terms of construction, design, dimensions, weight or color within the customary industry tolerances, provided (a) this does not restrict the usability of our Service for the contracted purpose, (b) no contractual guarantee exists, and (c) the customer can be reasonably expected to accept the change(s) and/or deviation(s) in light of an objective assessment of all circumstances. The customer must give us the requisite time and opportunity to – at our option – perform any repair or provide any substitution that we deem necessary; otherwise, we are exempted from all liability for the resultant consequences. If we decide to provide a substitution, we may stipulate that it can only be provided concurrently with the return of the defective Service. Replaced parts become our property. If the customer or a third party performs improper repairs without previously giving us the opportunity to remedy the defect, we will assume no liability for the resultant consequences. We bear the expenses necessary to remedy the defect to the extent they have not been increased by the transportation of the Service to a location other than the place of performance. We do not extend any warranties in cases of inappropriate or improper use or incorrect assembly by the customer or third parties, failure to follow the manufacturer’s processing guidelines, natural wear and tear, incorrect or negligent handling or storage, improper preventive maintenance or care, inappropriate supplies or chemical, electrochemical, electrical or environmental influences, unless we are at fault for such cases. The customer only has remedies over against us as set forth in German Civil Code [BGB] § 478 to the extent that the customer‘s agreements with the consumer do not go beyond the statutory claims for defects. Unless otherwise agreed, the period of limitation for claims for defects expires 1 year after the handover/shipment date unless the law prescribes longer periods, the defect was concealed with intent to deceive, or it relates to a personal injury or a contractual guarantee. The period of limitation is only tolled in accordance with German Civil Code [BGB] § 479 if the customer has demonstrably honored a warranty to his own customer. Any further claims or claims not governed by these Terms that the customer may have against us due to a defect are excluded.
6 LiabilityWe have unlimited liability under statutory provisions for personal injuries, in accordance with the German Product Liability Act [Produkthaftungsgesetz], if we have guaranteed certain characteristics or have concealed defects with intent to deceive, or for losses that are based on willful misconduct or covered by our commercial general liability insurance. We are also liable for grossly negligent breaches of duty as provided for by statute; only if the grossly negligent breach of duty pertains to an immaterial contractual obligation is our liability limited to the foreseeable losses which are typical for the contract. In the case of slight negligence, we are liable for breaches of material contractual obligations, but only for the foreseeable losses which are typical for the contract and which could be expected to occur. We assume no liability whatsoever in any other case. Material contractual obligations are obligations (a) whose satisfaction is essential to the proper performance of the contract and (b) upon whose satisfaction the customer does and may reasonably rely. The liability exclusions and limitations also apply to our directors, officers, legal representatives, employees, and other agents for which we are vicariously liable. Contributory fault by the customer reduces our liability accordingly.
7 Liability LimitationIf liability is limited to the foreseeable losses that are typical for the contract, liability for each loss will be limited to three times the relevant order value, and no more than twice this sum per calendar year. This limitation does not apply if more extensive losses are covered by existing commercial general liability insurance. The customer will notify us in writing if he could sustain a loss in excess of this liability limitation by using our Service. In this case we will make the customer an offer to take out additional insurance to cover the additional risk.
8 Non-DisclosureThe customer will keep all the contents of the contract strictly confidential, including, but not limited to, prices, discounts, know-how, and other business secrets, and will refrain from disclosing or otherwise making available to third parties any information, documentation, drawings or other documents without our express written approval. The customer will impose the same non-disclosure obligation on his employees and associate companies and on third parties to whom the contents are disclosed. We may use the customer (including his logo, brand) and the project as a reference as long as the customer does not object giving good cause.
9 Final ProvisionsAmendments and modifications hereto that are not based on an individual agreement must be made in writing (including fax). This also applies to a waiver of the written form requirement. Should provisions of these Terms be or become invalid, the validity of the remaining provisions will be unaffected thereby.
German law applies unless national law inevitably conflicts with it. Unless otherwise agreed and irrespective of the agreed upon Incoterm, the place of our registered office is the place of performance and jurisdiction, including with respect to warranty claims. However, we are entitled to bring action against the customer at the court that has jurisdiction over the place of the customer‘s residence.
The arbitral tribunal pursuant to the Swiss Rules of International Arbitration of the Swiss Chamber of Commerce has jurisdiction over all legal disputes with customers outside the EU arising out of or in connection with the contract. The arbitral tribunal consists of three arbitrators. The seat of the arbitration is Zurich, Switzerland. The arbitration proceedings will be conducted in the contract language.