General Terms and Conditions of Business
General Terms and Conditions of Brielmaier Motormäher GmbH, version July 2021
- All deliveries, services and offers from Rapid Technic GmbH are made exclusively under the following general terms and conditions (hereinafter: T&C). The T&C are part of all contracts that Rapid Technic GmbH concludes with its Contractors (hereinafter: Contractor) about the deliveries and other services offered by it during the course of business transactions. They shall also apply to all future deliveries, services or offers to the Contractor, even if reference should not be made explicitly in individual cases in the future.
- Any terms and conditions of the Contractor or third parties that contradict or deviate from our T&C shall not apply and shall require our express written consent to be effective. Even if we refer to a letter, and the terms and conditions of the Contractor or of a third party contain or refer to such, this does not constitute an agreement with the validity of those terms and conditions. Our T&C shall also apply if we carry out the deliveries and services without reservation in the knowledge of conflicting or deviating terms and conditions.
2. Offers and conclusion of contract
- The offers contained in our sales documents, catalogues and price lists as well as on the Internet are, unless expressly designated as binding, always subject to change and without obligation, i.e. only to be understood as an invitation to submit an offer. Orders shall not become binding on us until they are confirmed by us in writing. For the purpose of maintaining the written form, transmission by telephone, in particular by fax or e-mail, is also sufficient, provided that the copy of the signed declaration is transmitted. In the case of immediate execution of the order, the delivery note or the goods invoice shall also be deemed to be the order confirmation.
- The contract concluded in writing, including these T&C, is solely relevant for the legal relations between us and the Contractor. The latter shall fully state all agreements between the contracting parties on the subject matter of the contract.Verbal side agreements or assurances by our employees or commercial representatives, which go beyond the content of the order confirmed in writing, always require written confirmation and are ineffective until such time.
- Amendments to, and modifications of the agreements made, including these T&C and confirmations according to the above paragraph, must be made in writing in order to be effective. With the exception of managing directors or procurists, our employees are not entitled to make agreements which deviate from the written agreement.
- Our information concerning the subject of the delivery or service (e.g. weights, dimensions, usage values, load capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximate, unless the usability for the purpose stipulated in the contract requires an exact conformance. They are not guaranteed characteristics, but descriptions or markings of the delivery or service. Customary deviations and deviations that are based on legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts are permitted, provided that they do not impair the usability for the purpose stipulated in the contract.
- We reserve the right to the ownership or copyright of all offers and cost estimates submitted and drawings, illustrations, calculations, brochures, catalogues, models, tools, and other documents and aids made available to the Contractor. The Contractor may neither make these objects accessible to third parties as such nor in terms of content, disclose them, use or reproduce them himself or through third parties without our express consent. At our request, the customer must return these items in full and destroy any copies made if they are no longer required by him in the normal course of business or if negotiations do not lead to the conclusion of a contract. This does not apply to the storage of electronically provided data for the purpose of standard data backup.
3. Delivery deadlines and delays
- Our deliveries are made ex works or ex stock in accordance with the current Incoterms (2020).
- The delivery dates received from us shall in principle only be deemed to be approximate unless otherwise expressly agreed in writing. The delivery date starts with the day of clarification of all technical and other details of the order, the provision of any necessary documents and the agreed down payment. If dispatch has been agreed, delivery periods and delivery dates refer to the time of delivery to the forwarding agent, freight carrier or other third party responsible for the transport.
- Without prejudice to our rights arising from the delay of the Contractor, we can demand from the Contractor an extension of delivery and service deadlines or a postponement of delivery and service dates by the period during which the Contractor does not fulfil his contractual obligations toward us.
- We are entitled to make partial deliveries if
- the partial delivery can be used for the Contractor within the scope of the contractual purpose,
- the delivery of the remaining ordered goods is assured
- and the Contractor does not incur any significant additional expenses or additional costs (unless we agree to bear these costs).
- We shall not be liable for impossibility of delivery or for delays in delivery, insofar as these are caused by force majeure or other events which cannot be foreseen at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, pandemics, lawful lockouts, labour shortages, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the lack thereof, incorrect or late delivery by suppliers) that we are not responsible for. If such events make the delivery or performance considerably more difficult or impossible for us and this impediment is not of a temporary duration, we are entitled to withdraw from the contract. In the case of obstacles of a temporary duration, the delivery or service deadlines shall be extended or the delivery or service dates postponed by the period of the impediment plus a reasonable start-up period. If the Contractor is not expected to accept the delivery or service as a result of the delay, he can withdraw from the contract by sending us an immediate written declaration.
- If we are in default with a delivery or service or if a delivery or service becomes impossible for us, regardless of the reason, our liability is limited to damages according to sections 7 and 8 of these T&C.
4. Shipping, transfer of risk, packaging
- Unless otherwise agreed, we shall determine the mode of dispatch, route of dispatch and means of dispatch at our discretion. Special wishes of the Contractor must be expressly agreed in writing. Any additional costs incurred as a result of this shall be borne by the Contractor.
- With the delivery of the goods to the forwarding agent, freight carrier or other third parties designated for expediting the dispatch (whereby the start of the loading process is decisive), the risk, the risk of breakage and burden of proof regarding proper packaging and loading pass to our Contractor. This also applies if partial deliveries are made.
In all other respects, the risk shall pass upon acceptance of the goods.If the dispatch or handover is delayed due to a circumstance for which the Contractor is responsible, the risk passes to the Contractor from the day on which the goods are ready for dispatch and we have informed the Contractor thereof.
- If the transport is carried out using our own vehicle or by third-party vehicles, the delivery of the goods shall be deemed to have been effected, at the latest, once the goods have been made available to the recipient on a surfaced roadway on the vehicle in front of the delivery point. Unloading is the sole responsibility of the Contractor. Any unloading by our employees and their assistance during unloading does not imply acceptance of any further risk or liability. It is the sole duty and obligation of the Contractor to provide suitable unloading devices and to provide the necessary personnel during unloading.
- If we need to store the goods due to a delay in acceptance or at the request or fault of the Contractor, we will store the goods at the Contractor's cost and risk.
- The goods will only be insured by us at the express request of the Contractor and at its cost against theft, breakage, transport, fire and water damage or other insurable risks.
- If acceptance has to take place, the goods shall be deemed to have been accepted, if
- the delivery and, if we are also responsible for installation, the installation is completed
- we have informed the Contractor of this with reference to the assumed acceptance in accordance with this section 4.6 and have requested him to accept it
- twelve working days have elapsed since the delivery or installation or the contracting party has started to use the goods and in this case six working days have elapsed since delivery or installation and
- the Contractor has failed to accept the goods within this period for any other reason than a defect which has been reported to us, which makes the use of the goods impossible or significantly impairs the use of the goods.
5. Prices and payments
- The prices that are applicable at the time of the order confirmation shall apply. The prices are valid for the scope of services and deliveries listed in the respective order confirmation. Additional or special services will be charged for separately. Unless otherwise agreed, our prices are exclusive of packaging, freight and other shipping costs, duty in the case of export deliveries, as well as other fees and other public charges and VAT. These costs are shown separately. If necessary, we refer to the current Incoterms.
- All invoices are due for payment on the agreed due date. Unless otherwise agreed, invoices are due for payment 30 days after the invoice date at the latest, without deduction. Payments shall always be used to settle the oldest due and payable liabilities, plus any interest on the debt incurred. Discount agreements shall not apply if the Contractor is in arrears with the payment of previous deliveries and services.
- The date of payment shall be determined by the date of receipt in our account. If the customer fails to pay on the due date, the outstanding amounts shall besubject to interest from the due date at the annual interest rate shown on the reminder; the assertion of higher interest rates and further damage in the event of delay shall remain unaffected.
- Payments by cheque or bill of exchange will not be accepted.
- If the delivery or service is to take place four months after the conclusion of the contract or later, we reserve the right to renegotiate the price if the costs, wages etc. change. If other time limits have already been agreed in writing in our offer, the conditions of this offer shall prevail.
- We are not obliged to make any further delivery and performance from any current contract until full payment of all due invoice amounts including interest due etc. has been made.
- The Contractor shall only be entitled to offset counterclaims or the assertion of rights of retention on account of counterclaims from the same contractual relationship (under which the delivery was effected), if the counterclaims are undisputed or have been determined to be legally binding.
- We are entitled to carry out or provide outstanding deliveries or services only against advance payment or security if, after conclusion of the contract, we become aware of circumstances which are capable of substantially reducing the creditworthiness of the Contractor and by which our payment of outstanding claims by the Contractor from the respective contractual relationship (including from other individual orders for which the same general agreement applies) is at risk.If the Contractor refuses to provide the advance payment or security, we are entitled to withdraw from the contract, whereby the relevant invoice for already performed deliveries and services is due for payment immediately.
- Without prejudice to other rights, we may withdraw from the contract if the Contractor does not settle the due claim after setting a deadline or if an application is filed to open insolvency proceedings with respect to his assets.
6. Retention of title
- We reserve title to the goods until full payment of the secured claims has been made. The goods and the goods which replace them in accordance with the following provisions, which are included in the reservation of title, are hereinafter referred to as "reserved goods".In the case of goods which the Contractor obtains from us within the framework of a current business relationship, we reserve the right of ownership until all of our claims arising from the business relationship, including future claims arising from contracts concluded at the same time or later, have been settled. This also applies if individual or all claims have been accepted by us in a current invoice and the balance has been drawn and recognised. If an alternative liability arises in connection with payment of the purchase price by the Contractor, the reservation of title does not expire before the exchange of title is redeemed by the Contractor as the drawee. In the event of delay in payment by the Contractor, we are entitled to take back the goods after a reminder and the Contractor is obliged to return them.
- The Contractor shall store the reserved goods for us free of charge.
- The Contractor is entitled to process and sell the reserved goods in the ordinary course of business until an enforcement event (section 6.8) occurs. Pledging and transfer of ownership by way of security are not permitted.
- If the reserved goods are processed by the Contractor, it is agreed that processing shall take place in the name and on behalf of Brielmaier Motormäher GmbH as the manufacturer, and that the Contractor acquires immediate ownership or – if the processing takes place using materials from several owners or if the value of the processed item is greater than the value of the reserved goods – co-ownership (ownership of fractions) of the newly created item in proportion of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur at Brielmaier Motormäher GmbH, the Contractor must transfer his future ownership or – in the above-mentioned relationship – co-ownership of the newly created item to Rapid Technic GmbH as collateral immediately. If the reserved goods are combined with other items to form a uniform item or are inseparably mixed and one of the other items is to be regarded as the main item, Brielmaier Motormäher GmbH, insofar as the main item belongs to it, transfers the co-ownership of the uniform item to the Contractor on a pro rata basis in the relationship referred to in section 1.
- In the event of the resale of the reserved goods, the Contractor already now assigns to Brielmaier Motormäher GmbH by way of security the resulting claim against the purchaser – in the case of co-ownership of Brielmaier Motormäher GmbH of the reserved goods pro rata according to the co-ownership share. The same shall apply to other claims that replace the reserved goods or otherwise arise with respect to the reserved goods, such as insurance claims or claims arising from tort in the event of loss or destruction. Brielmaier Motormäher GmbH authorises the Contractor to collect the claims assigned to Brielmaier Motormäher GmbH in its own name. Brielmaier Motormäher GmbH may only revoke this direct debit authorisation in the event of enforcement.
- If third parties access the reserved goods, in particular by attachment, the Contractor shall immediately inform them of Brielmaier Motormäher GmbH's ownership and inform Brielmaier Motormäher GmbH of this to allow it to assert its rights of ownership. If the third party is not in a position to reimburse Brielmaier Motormäher GmbH for the legal or out-of-court costs incurred In connection with this, the Contractor of Rapid Technic GmbH shall be liable for this.
- Brielmaier Motormäher GmbH shall release the reserved goods as well as the goods or claims replacing them, insofar as their value exceeds the amount of the secured claims by more than 50 %. Brielmaier Motormäher GmbH is responsible for selecting the items to be released afterwards.
- If Brielmaier Motormäher GmbH withdraws from the agreement because the Contractor behaves in a manner that breaches the contract – in particular in the case of delay in payment – (enforcement event), it is entitled to demand the return of the reserved goods.
7. Notice of defects, warranty and liability
- The Contractor shall immediately inspect the goods delivered by us to him or to the third party designated by him. The statutory inspection and notification obligation according to § 377 of the German Commercial Code applies. The goods shall be deemed to have been approved by the Contractor with regard to obvious defects or other defects that would have been apparent in the event of an immediate, careful examination, if we do not receive a written notification of defects within seven working days of delivery. With regard to other defects, the goods shall be deemed to have been approved by the Contractor if we do not receive the notification of defects within seven working days from the time when the defect was found; If the defect was already apparent at an earlier point in time during normal use, then this earlier date shall be decisive for the commencement of the above-mention notice period. By our request, goods which have been the subject of a complaint must be returned to us freight-free. In the event of justified notice of defects, the costs of the most favourable shipping route shall be reimbursed; this shall not apply if the costs increase because the goods are located at a place other than the place of intended use.
- Production-related deviations in dimensions, contents, thicknesses, weights and colour shades are permitted within the scope of the customary industry tolerance, provided that no guarantee of quality exists within the meaning of § 443 of the German Civil Code.
- If the Contractor finds defects in the goods, he may not dispose of the goods or process them further until an agreement has been reached on the processing of the complaint or a proof-securing procedure is carried out by an expert appointed by the Chamber of Commerce and industry at the head office of the Contractor. The warranty is void if the Contractor modifies the delivery item or has it modified by third parties without our consent and the rectification of defects is made impossible or unreasonable. In any case, the Contractor shall bear the additional costs of the removal of defects arising from the modification.
- The Contractor is obliged to give us the opportunity to determine the notified defect on the spot or to make the object or the corresponding sample thereof available for inspection by our request. In the event of culpable refusal of return delivery, the warranty shall be null and void.
- If warranty claims have been made, we are entitled to determine the type of supplementary performance (replacement delivery, rectification), taking into account the nature of the defect and the legitimate interests of the Contractor. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the Contractor may withdraw from the contract or reduce the purchase price accordingly. In the event of a minor breach of contract, particularly in the case of minor defects, the Contractor shall not be entitled to withdraw from the contract.
- The warranty period shall, to the extent permitted by law, be fixed between us and the Contractor for one year; it shall commence from the submission of the documents "Guarantee card or handover report" by the Contractor to our customer service 6 months after delivery to the Contractor at the latest if no final sale takes place. If demo machines are a constituent of the contract, the warranty period shall only begin in this case with the first day of use as a demo machine and not the deadline of the final sale by the dealer. Insofar as the law prescribes binding longer warranty periods, these shall apply. This period shall not apply to claims for damages by the Contractor arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by Brielmaier Motormäher GmbH or its vicarious agents, which shall be time-barred in accordance with the statutory regulations.
- In the event of defects in components from other manufacturers, which we cannot remedy for licensing or factual reasons, we shall at our discretion assert our warranty claims against the manufacturers and suppliers on behalf of the Contractor or assign them to the Contractor. Warranty claims against us in the event of such defects shall only exist under the other conditions and in accordance with these T&C if the legal enforcement of the aforementioned claims against the manufacturer and supplier has been unsuccessful or is futile due to insolvency, for example. For the duration of the litigation, the limitation period of the respective warranty claims of the Contractor against Brielmaier Motormäher GmbH shall be suspended.
- All warranty claims are void if the individual components are not the original parts or the original spare parts or if no "Guarantee card or handover report" document exists (from section 7.6.).
- A delivery of used items agreed with the Contractor in individual cases takes place under exclusion of any warranty for material defects.
8. General liability and limitation of liability
- Claims for damages and reimbursement of expenses (hereinafter: claims for damages) of the Contractor against us, our legal representatives, employees or vicarious agents, regardless of the legal reason, particularly due to violation of obligations from the contractual relationship and from tort, are limited in accordance with this section 8.
- Brielmaier Motormäher GmbH is not liable in the case of simple negligence of its agencies, legal representatives, employees or other vicarious agents, unless it is a violation of essential contractual obligations. Essential contractual obligations include the obligation to deliver and install the delivery item on time, its freedom from defects in title and material defects which impair its functionality or suitability for use more than insubstantially, as well as consulting, protection and custodial duties, the purpose of which is to enable the Contractor to use the delivery item in accordance with the contract or to protect the life or limb of the personnel of the Contractor or protect his property from significant damage.
- Insofar as Brielmaier Motormäher GmbH is liable for damages in accordance with the preceding paragraph, this liability is limited to damages which Brielmaier Motormäher GmbH has foreseen at the time of conclusion of the contract as a possible consequence of a breach of contract or which it should have foreseen if the customary care had been taken. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation if such damage is typically to be expected when the delivery item is used for its intended purpose.
- The above exclusions and limitations of liability apply to the same extent in favour of the agencies, legal representatives, employees and other vicarious agents of Brielmaier Motormäher GmbH.
- Insofar as Brielmaier Motormäher GmbH provides technical information or provides advice, and this information or advice does not belong to the contractually agreed scope of services owed by the company, this is done free of charge and under the exclusion of any liability.
- The limitations of this section do not apply to the liability of Brielmaier Motormäher GmbH due to deliberate behaviour, for guaranteed characteristics, for injury to life, body or health or according to the product liability law.
9. Property rights
Brielmaier Motormäher GmbH shall, in accordance with this clause, ensure that the delivery item is free from industrial property rights or copyrights belonging to third parties. Each party to the contract shall immediately notify the other party in writing if any claims are asserted against it for the violation of such rights.
In the event that the delivery item violates a commercial property right or copyright of a third party, Rapid Brielmaier Motormäher GmbH shall, as it chooses and at its expense, modify or replace the delivery item in such a way that no rights of third parties are violated, but the delivery item continues to fulfil the contractually agreed functions, or give the Contractor the right of use by entering into a license agreement with the third party. If Brielmaier Motormäher GmbH fails to do so within a reasonable period of time, the Contractor is entitled to withdraw from the contract or reduce the purchase price accordingly. Any claims for damages by the Contractor are subject to the restrictions of these T&C.
In the event of legal violations by products from other manufacturers supplied by Brielmaier Motormäher GmbH, Brielmaier Motormäher GmbH shall, as it chooses, assert its claims against the manufacturers and suppliers on behalf of the contractor or assign them to the contractor. In such cases, claims against Brielmaier Motormäher GmbH shall only exist in accordance with this section if the enforcement of the aforementioned claims against the manufacturers and suppliers has been unsuccessful or, is futile due to insolvency, for example.
10. Data storage
The Contractor is hereby informed that we process the personal data obtained within the framework of the business relationship in accordance with the provisions of the data protection regulations. We refer to our data protection declaration in accordance with the GDPR.
11. Place of performance and jurisdiction
- The place of performance for all obligations arising from the contractual relationship is the registered office of our company at 88693 Deggenhausertal, unless otherwise specified. If we are also responsible for installation, the place of performance is the place where the installation is to be carried out.
- The exclusive local place of jurisdiction for all disputes arising is the registered office of our company at 88693 Deggenhausertal. We reserve the right to choose the local jurisdiction of the Contractor instead. This regulation does not affect mandatory statutory provisions concerning exclusive jurisdictions.
- The contractual relations between Brielmaier Motormäher GmbH and the Contractor are exclusively subject to German law, excluding the UN Sales Convention (United Nations Convention on Contracts for the International Sales of Goods of 11.04.1980 (CISG).
12. Severability clause
Should individual provisions of the contract with the Contractor, including these T&C, be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected thereby. The completely or partially ineffective regulation shall be replaced by a regulation whose economic success comes as close as possible to that of the ineffective regulation.