Unless an exception has been expressly agreed, our goods and services are supplied exclusively on the basis of the following terms and conditions. The same applies to any future transactions of this kind, even if these terms and conditions are not expressly referred to in an individual transaction. We hereby explicitly reject any conditions of purchase or other terms and conditions of our contracting partner - hereinafter referred to as the purchaser - which deviate from the present terms and conditions. We will not be bound by the purchaser's own terms and conditions even if we fail to explicitly reject such terms and conditions upon conclusion of the contract
Quotations are given without obligation. Statements made by our sales representatives, service technicians or commercial agents become effective only upon our confirmation. All drawings and illustrations and all dimensions, performance ratings and other numerical data contained in our brochures, printed matter or other data carriers are non-binding unless expressly confirmed by us. The purchaser is responsible for checking all information and technical data to ensure suitability for a specific use. We reserve the right to make changes, even after receipt and/or acceptance of order, provided that this is reasonable and commensurate for the purchaser in a particular case. Since our quotations are given without obligation, all orders require our written confirmation. A contract is only formed once we have confirmed the purchaser's order or delivered the goods. Changes to contractual agreements may be made only with our permission and in accordance with the following conditions (cf. §§ 12 and 13).
Unless otherwise agreed, our price lists valid on the day on which the order is confirmed apply. A price list becomes invalid when a new price list is published. All our prices are net and do not include value added tax. Unless otherwise agreed the prices are ex warehouse and do not include transport and packaging costs or the costs of any transport insurance, which is only taken out at the express request of the purchaser. Where a term of delivery exceeding four months has been agreed, we are entitled to pass on to the purchaser by way of price increases any increases in costs that have occurred in the interim in respect of materials, manufacturing, assembly, personnel, delivery or the like.
Unless expressly agreed otherwise, our invoices are payable without deduction within 30 days of the date of invoice. Bills of exchange and cheques are accepted only by express agreement and only as conditional payment and subject to being discounted. All necessary expenses involved are the responsibility of the purchaser. The acceptance of a bill of exchange after its settlement date or prolongation does not constitute a deferment of payment. We reserve the right to return bills of exchange or cheques at any time. Should the purchaser be in default of payment, we reserve the right to charge interest at 10% above the basic bank interest rate as per Article 247 of the German Civil Code. The purchaser is however free to prove that no loss has been incurred as a result of the default or that a loss has not been incurred to such an extent. The right to claim higher damages as a result of the default is likewise not excluded. For every reminder issued from the time of the default we are entitled to charge a reminder fee of EUR 5.00 unless the purchaser can prove that a loss has not been occurred to such an extent. In this respect as well, we reserve the right in individual cases to claim higher damages as a result of the default. Should the purchaser be in default of payment, all outstanding accounts become immediately payable, irrespective of previously agreed payment targets, even if for the settlement of such payment we have accepted bills of exchange or cheques on account of payment. If there is a substantial deterioration in the financial circumstances of the purchaser that puts our claim at risk, we are entitled to demand payment in advance or adequate security. This applies also in the event that such circumstances exist prior to the conclusion of the contract but become known to us only subsequently. If no advance payment or security is provided within the period of grace notwithstanding a reasonable extension of the original term, we are entitled to withdraw from the contract or to claim damages in lieu of performance. In the cases specified above payment or provision of security may not be made contingent upon the return of current bills of exchange. Payments to third parties, and in particular to sales representatives or agents, may not be made in full discharge of obligations unless expressly agreed otherwise.
Offsetting by the purchaser with counter-claims is excluded unless such counter-claims are undisputed or have been legally established. The purchaser is not entitled to assert a right of retention unless it derives from the same contractual relationship or the counter-claims are undisputed or have been legally established.
a) Unless expressly agreed otherwise, the specified delivery times are approximate unless a binding date has been explicitly agreed. Adherence to delivery dates is dependent on all commercial and technical queries between the contracting parties being agreed. Deliveries are subject to our own timely and proper receipt of supplies. We will notify the purchaser of any delays as soon as possible.
b) The term of delivery is regarded as having been met if the purchaser is notified on time that the goods are ready for dispatch, even if dispatch proves not to be possible through no fault of our own. If the goods are to be dispatched by us, the delivery day is deemed to be the day of dispatch. If collection has been agreed, the delivery day is deemed to be the day on which notification of readiness for dispatch was sent. If only approximate delivery times have been agreed, the purchaser may give notice of default no earlier than ten working days after the end of this delivery time.
c) In the event of a delay in delivery caused by acts of God, riot, strike, lockout, operational disruptions that are beyond our control or occurring at our suppliers' plants, the period of delivery shall be extended by the period of time required to remedy the fault to the extent that such a fault affects the production or delivery of the delivery item. We will notify the purchaser as soon as possible of the beginning and end of any such delays. In the event of permanent operational disruptions that are beyond our control or in the event that we have, through no fault of our own, not received the supplies ordered from our suppliers, both we and the purchaser are entitled to withdraw from all or part of the contract to the exclusion of all claims for damages. Operational disruptions are deemed to be permanent where they continue for at least two months.
d) Claims for damage compensation against us in respect of the delay in delivery may only be asserted subject to the terms of § 10 c) to e) below.
Delivery is made by a suitable means of transport of our choice, at the expense of the customer. Packaging material is to be disposed of by the purchaser at its own cost. Transport insurance is taken out only at the purchaser's express request. All deliveries - even if by agreement we bear the shipping costs free domicile for example - are made at the purchaser's risk unless we use our own vehicles and personnel for shipping. The risk is transferred to the purchaser when the goods are handed over to the postal service, package courier service, forwarding agent or haulier's agent, and at the latest when the goods leave our works. For deliveries outside Germany the shipping conditions specified in the confirmation of order apply.
We are entitled to make partial deliveries. Such partial deliveries are invoiced on delivery and are payable in accordance with § 4. Call-off deliveries must be accepted within 12 months of confirmation of order. A default in acceptance comes into effect without further notice at the end of this period unless the purchaser is prevented from accepting the goods for reasons beyond its control.
We retain the title to all goods delivered by us (retained goods) until the purchase price is paid in full and until all claims arising from the business relationship are paid.
The purchaser is entitled to process and resell the goods in the ordinary course of business, provided, however, that the purchaser is not in default regarding its duties towards us and does not suspend payments. More specifically, the following provisions apply: Any processing or finishing of the goods subject to retention of title is not binding on us as the manufacturer of the goods pursuant to Article 950 of the German Civil Code. According to Article 950 of the German Civil Code, the act of processing or finishing the goods subject to retention of title does not grant the purchaser the right of ownership to the new goods. If the goods subject to retention of title are processed, mixed, combined or amalgamated with other objects, we acquire co-ownership in the resulting new product in proportion to the ratio between the invoice value of our goods subject to retention of title and the total value. The provisions applicable to the goods subject to retention of title shall equally apply to any co-owner's shares created under the aforementioned provisions. The purchaser herewith assigns to us all claims from the resale or any other disposal, such as contracts for work, including all ancillary rights, and covering also our co-owner's shares to the extent that the goods have been processed, mixed, combined or amalgamated or permanently integrated, thus leading to our co-ownership to such goods in the amount of our invoice value. Insofar as the goods subject to retention of title have been processed, mixed, combined, amalgamated or permanently integrated, such an assignment shall entitle us to a fraction of the claim from the resale corresponding to the ratio between the invoice value of our goods subject to retention of title and the invoice value of the object.
Where goods subject to retention of title are resold by the purchaser together with other goods not supplied by us, the purchaser herewith assigns to us a fraction of the claim resulting from the resale amounting to the invoice value of the goods subject to retention of title. If the purchaser has sold the claim as part of a genuine factoring transaction, then the purchaser herewith assigns to us the claim against the factor taking its place. If the purchaser places the claim resulting from the resale in an existing current account relationship with the final purchaser, the purchaser herewith assigns to us its claims from the current account relationship amounting to the invoice value of the goods subject to retention of title. We hereby accept the above assignment. The purchaser is authorised to collect the claims assigned to us until such permission is revoked. The collection authorisation ceases in the event of revocation resulting from a delay in payment or cessation of payment by the purchaser. In that case we are authorised by the purchaser to notify the final purchaser of the assignment and to collect the claim ourselves. Upon request the purchaser is obliged to provide us with a detailed list of the claims due to the purchaser including the names and addresses of the final purchaser, the amount of the individual claims, the invoice date etc. and to provide us with all information and documents necessary for us to assert the assigned claims and to permit the verification of the information provided. Pledges or transfers of ownership by way of security of the goods subject to retention of title or of the assigned claims are not permitted. We are to be informed of levies of execution immediately, stating the name of the attaching creditor. If the realisable value of the securities assigned to us exceeds our total claim against the purchaser by more than 10%, we are obliged to release them if requested by the purchaser. The purchaser stores the goods subject to retention of title free of charge on our behalf. The purchaser must insure them against the customary risks such as fire, theft and water, to the customary extent. The purchaser herewith assigns to us its claims for compensation arising from losses of the aforementioned type against insurance companies or other parties liable for damages, to the value of our claims.
We accept the assignment.
In countries in which the validity of any retention of title is subject to certain conditions or formal requirements, the purchaser must ensure that these are met and notify us thereof. If the purchaser does not meet this obligation or if the agreement of a retention of title is not possible in the country in question, we have the right to make delivery dependent upon the granting of an irrevocable, unconditional and unlimited directly enforceable guarantee from an approved German bank or savings bank to the value of all the liabilities existing at the time of concluding the contract. The guarantee is subject to German law.
a) In the case of justified complaints, subsequent performance is effected at our choice by either rectification or replacement, provided the statutory requirements are met. Furthermore, the purchaser is entitled to further statutory claims to withdraw from contracts and reductions, insofar as the statutory requirements for these have been met. Article 377 HGB shall continue to apply.
b) Where by way of exception the purchaser has rights of recourse pursuant to Article 478 of the German Civil Code (BGB) under statutory provisions, these rights exist only insofar as the purchaser has granted no rights to the end purchaser that go beyond the legal rights on the grounds of material defects.
c) Claims for damages by the purchaser shall be unlimited in accordance with the law if they result from injuries to life, body or health and were caused by an intentional or negligent breach of duty by us, one of our statutory representatives or agents, or
are based on the Product Liability Act, or
are the result of a grossly negligent breach of duty by us, our statutory representatives or agents, or
if they were carried out in a malicious fashion, or
if we have accepted a purchasing risk or a guarantee and are therefore liable.
d) If any damage is based solely upon a wilful breach of a material contractual duty (cardinal duty) by ourselves, our legal representatives or performing agents, we are likewise liable for compensation; this, however, is limited to the typical and foreseeable damage unless we are held liable without limitation in accordance with section b) and c) of this paragraph.
e) Material contractual duties (cardinal duties) within the meaning of the above provisions are such duties whose fulfilment is central to the proper execution of the contract and on whose observance the purchaser may regularly rely. Material contractual duties (cardinal duties) are moreover such duties whose violation would put at risk the achievement of the purpose of the contract. The statutory provisions regarding the distribution of the burden of proof remain. Further claims for compensation against us, our legal representatives, performing agents and vicarious agents are excluded, regardless of the legal foundation upon which they are based.
f) Where maintenance agreements have been concluded for equipment or systems, we are not liable for observance of maintenance intervals. The purchaser bears sole responsibility for monitoring the observance of maintenance intervals, since such intervals are dependent in particular also upon the nature and extent of use. Changes to or rescheduling of previously agreed maintenance dates are permissible; claims for damage compensation arising from missed dates and any consequential losses arising as a consequence thereof are excluded, unless the non-observance of the maintenance date is based upon wilful intent or gross negligence on our part or on that of our performing agents.
Claims by the purchaser due to material defects shall expire after one year, unless,
a) these are claims of the type regulated in § 479 BGB or
b) the defect was maliciously concealed or is based on a wilful breach of duty on our part or on that of our legal representatives or performing agents.
In cases a) and b) and for material defect claims not excluded in § 10, the statutory periods of limitation apply.
The statutory provisions regarding the suspension, expiry delay and restart of the limitation period remain.
Unless specifically agreed, the purchaser may withdraw from the contract if the purchased item is defective and the statutory conditions of withdrawal (in particular Article 440 of the German Civil Code) have been met. In the event of a breach of duty which does not consist of a defect in the purchased item, the purchaser is moreover only entitled to withdraw from the contract if we or our legal representatives or performing agents are responsible for such breach of duty and if the statutory conditions of withdrawal are met. The statutory provisions regarding the distribution of the burden of proof remain. § 6 c) of these conditions shall remain unaffected. In other cases (such as intentional order errors or other errors in motivation on the part of the purchaser), the purchaser may only cancel or withdraw from the contract with our express permission. No entitlement to such permission to withdraw exists. If permission is granted, the goods must be labelled with our part number and returned to us (Ruwac Industriesauger GmbH, Westhoyeler Str. 25, 49328 Melle, Germany), carriage paid and in the original packaging. All returns in such cases are made at the purchaser's risk. For the acceptance of returned goods, we charge a handling fee of 20% of the order value or at least EUR 250.00, unless otherwise agreed by contract. If in such cases we have already purchased materials for custom-built goods, the cost of such materials in addition to net costs is to be borne by the purchaser unless an exception has been expressly agreed.
Changes to the technical specifications by the customer after conclusion of the contract are possible only with our permission. No entitlement to such permission exists. If we give our permission and unless otherwise agreed, the purchaser is obliged to bear in addition to any additional costs arising from such a change the net cost of any materials already purchased for this order but no longer needed because of the change.
If the purchaser breaches its duties - for example refuses acceptance despite our request - and if we are entitled for that reason to claim liquidated damages in compensation for non-performance, we are entitled to claim damages amounting to 25% of the purchase price. This does not apply if the purchaser can prove that no loss has been incurred or that a loss has not been incurred to such an extent. We reserve the right to assert a claim for additional damages.
The place of fulfilment for all claims resulting from contractual relationships between us and the purchaser is Melle. The place of jurisdiction is Osnabrück, if the purchaser is a businessman, a legal entity under public law, or a public law special fund. We reserve the right, however, also to pursue a claim against the purchaser at its general place of jurisdiction.
This contract is governed solely by the substantive law of the Federal Republic of Germany, as between two parties domiciled in Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.