1.1 All offers and services and deliveries of goods (hereinafter "Goods") are based exclusively on these Terms and Conditions. If the customer has accepted them, these terms shall also apply to all future contracts with the customer.
1.2 General terms and conditions of the customer only apply if and to the extent that we have expressly stated our consent to them in writing. References by the customer to its general terms and conditions are hereby expressly rejected.
1.3 The mere reference by us to a letter from the customer that lists its general terms and conditions or refers to them does not constitute consent to their validity. They do not apply even if we deliver the Goods in the knowledge of conflicting or deviating general terms and conditions of the customer.
2. Offer and Acceptance
2.1 Our offers are subject to change and non-binding unless they are expressly marked as binding. The ordering of Goods by the customer shall be deemed a binding contract offer. Our acceptance shall be in writing (e.g. through our order confirmation) or by delivery of the Goods.
2.2 If the acceptance according to paragraph 1 deviates from the order, it is deemed a new offer from us.
3. Product Quality
3.1 The quality of the Goods shall be determined primarily by the agreed specification.
3.2 Changes and/or additions regarding the quality and/or the scope of the delivery after conclusion of the contract must be agreed in writing.
The prices for the Goods are net prices ex works, but excluding packaging, any applicable taxes and/or duties and charges, unless otherwise agreed.
5. Delivery and Default of Acceptance
5.1 Unless otherwise contractually agreed, our delivery of the Goods takes place ex works or branch. We are entitled to determine the type of shipment (in particular the transport company, packaging, and shipping route) ourselves. Shipping and transport costs, as well as the costs of transport insurance for the delivery of the Goods, are to be borne by the customer.
5.2 The risk of accidental loss and accidental deterioration of the Goods shall pass to the customer at the time of our notification of readiness for shipment.
5.3 The risk of accidental loss and accidental deterioration of the Goods also passes to the customer if he is in default of acceptance. If the customer is in default of acceptance, omits an act of cooperation, or our delivery is delayed for other reasons attributable to the customer, we shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs).
5.4 Partial deliveries are permitted.
6. Compliance with Statutory and Official Regulations
6.1 Unless otherwise agreed in individual cases, the customer is responsible for compliance with the statutory and official regulations on import, export, transport, storage and use of the Goods.
6.2 If at the time of delivery there is a statutory or official obligation to obtain an export permit for our Goods and the export permit applied for is not granted, we are entitled to withdraw from the contract. In the event of a delay in issuance by the authorities, there is no entitlement to compensation.
7. Payments and Payment Default
7.1 Our invoices are payable within 30 days of the invoice date without any deductions plus value-added tax in its respective amount, unless otherwise contractually agreed.
7.2 In the event of default of payment by the customer, we are entitled to demand default interest of 9% above the respective base rate. We reserve the right to claim further damage or higher interest or damages in accordance with the statutory provisions.
7.3 Furthermore, we are entitled to raise the objection of unfulfilled contract and to suspend further delivery of the Goods until payment has been received in full if advance, partial or installment payments have been agreed. In addition, we can unilaterally terminate the contract in writing to the customer if the payment is not received at the latest ten (10) days after the beginning of the payment default; in this case, the customer shall reimburse us for all costs incurred plus the calculated risk and profit share. The other statutory claims for damages shall remain unaffected.
The customer can only set off our claims with undisputed or legally established counterclaims in connection with the contractually relevant sale.
9. Retention of Title
9.1 We reserve title to all Goods delivered by us until all our present and future claims against the customer have been satisfied.
9.2 If the reserved Goods are processed or integrated by the customer, our retention of title extends to the entire new product. If the customer processes, combines or mixes with other items, we acquire co-ownership of the new product at the fraction that corresponds to the ratio of the invoice value of our reserved Goods to that of the other items used by the customer at the time of processing, combination or mixing.
9.3 If the reserved Goods are combined or mixed with a main item belonging to the customer or a third party, the customer furthermore hereby transfers its rights to the new product to us in advance. If the customer combines or mixes the reserved Goods with a main item of third parties against payment, he hereby assigns to us its compensation claims against the third party in advance.
9.4 The customer is entitled to resell the reserved Goods or the new product as part of the ordinary course of business. If the customer in turn sells reserved Goods or a new product part without receiving the full purchase price in advance or concurrently and contemporaneously against handover of the reserved Goods or the new product, he must agree on retention of title with its customer in accordance with these Terms and Conditions. The customer hereby assigns in advance his claims from this resale as well as the rights from the retention of title agreed by him. At our request, he is obligated to notify the purchasers of the assignment and to provide us with the information and documents required to assert our rights against the purchasers. The customer is only authorized to collect the claims from the resale, despite the assignment, as long as he duly fulfills its obligations to us.
9.5 After withdrawal, we are entitled to assert our retention of title and can demand the immediate surrender of the reserved delivery, excluding any right of retention, unless the counterclaims are legally established or undisputed.
9.6 The customer must notify us without undue delay of any attachment or any other impairment of our property rights by third parties and must confirm the property rights in writing to both third parties and to us. The customer is prohibited from pledging or transferring as security the delivery made subject to retention of title.
10. Rights of the Customer in the Event of Defects
10.1 Defects that can be identified during the inspection or any incoming Goods inspection required by law within the customer's area of responsibility must be notified to us without undue delay in the ordinary course of business, but no later than eight (8) days after delivery; other defects are to be notified to us without undue delay, at the latest within eight (8) days after discovery or the time at which they should have been discovered given a reasonable inspection. The notification must be made in writing and precisely describe the defective condition and its extent.
10.2 If the customer fails to notify defects in due time or in the agreed form, our delivery shall be deemed to be in conformity with the contract with regard to the defect not notified in due time or in the correct form.
10.3 To allow us to verify any complaint of defects and give us the opportunity to get an exact picture of the existence of the defect, the customer must provide us with meaningful evidence.
10.4 If Goods are defective and the customer has duly notified this to us in accordance with Clause 10.1, the customer is entitled to statutory rights with the following provisos, provided the customer was not aware of the defect at the time of delivery:
a) We have the right, at our discretion, to either remedy the defect or to deliver Goods free of defects to the customer (subsequent performance).
b) We reserve the right to make two attempts at subsequent performance in the event of elimination of a defect. Should the subsequent performance fail or be dispensable on statutory reasons, the customer may either withdraw from the contract if there is a material breach of duty, or demand a reduction in price.
c) Claims for damages due to defects and claims for reimbursement of futile expenditures due to a defect are governed by Clause 11.
10.5 No claims for defects exist for damage and its consequences if defects are attributable to subsequent improper changes to the Goods that were not agreed with us by the customer, improper handling of the Goods, or to faulty documents, supplies, or faulty information from the customer.
10.6 The limitation period for claims for defects by the customer shall be one year. The limitation period begins with the delivery of the Goods.
11.1 Generally, we shall be fully liable in accordance with the statutory provisions if a breach of duty attributable to us is based on intent or gross negligence.
11.2 In the event of a simply negligent breach of a material contractual obligation, our liability is limited to compensation for the direct damage that is typically foreseeable at the time of the conclusion of the contract. In the case of a simply negligent breach of duty that is not material to the contract, liability is excluded. The statutory rules on evidence shall apply.
11.3 Insofar as our liability is limited or excluded above, this also shall apply to the liability of our employees, representatives, or vicarious agents.
11.4 Liability in the case of simple negligence does not include indirect, financial, or consequential damage, such as lost profits or business interruption, and is limited in other respects to our cumulative liability amount of no more than 20% of the contract value.
11.5 The above limitations of liability and the exclusion of liability shall not apply in the event of damage resulting from injury to life, limb or health, failure to comply with expressly accepted guarantees, fraudulent concealment of defects or intent.
In the event of reasonable doubts about the customer's ability to pay, in particular in the event of payment arrears, we may, subject to further claims, make deliveries dependent on advance payments or the granting of other securities.
13. Industrial Property Rights and Copyright
We remain the holder of all existing industrial property rights (in particular patents, brands, utility models, designs), copyrights and know-how to the Goods delivered and the documents handed over in connection with the contractual relationship. The contractual relationship does not grant licenses to any property rights, copyrights, or know-how.
14. Property Rights of Third Parties
14.1 If the customer provides us with documents, such as plans, product descriptions, documentation, the customer must ensure that these do not infringe existing property rights and shall indemnify us in this respect against all claims by third parties if a property right infringement is attributable to culpable behavior on the part of the customer. The customer shall bear any royalties or costs incurred in such cases or to avoid infringement of property rights.
14.2 If registrable property rights arise as part of the contributions to the performance of the contract, the parties will consult each other on the filing of the property rights. In such cases, we shall at least be granted a non-exclusive right of use on reasonable conditions.
15. Force Majeure
If events and circumstances, the occurrence of which are beyond our control and cannot be prevented by us (such, but not limited to, as natural disasters, war, labor disputes, raw material and energy shortages, traffic disruptions, fire and explosion damage, epidemics, pandemics, official or legally binding regulations), as well as all other cases of force majeure – even if this occurs at our suppliers, pre-suppliers and subcontractors – hinder the fulfillment of contractual obligations, we shall be released from our contractual obligations for the duration of the disruption and to the extent of its effects. If these events last longer than 3 months, each party shall be entitled to terminate the contract by means of a written declaration.
16. Receipt of Declarations
Notices and other declarations that are to be made to a party become effective if they are received by that party in writing. If a statutory or agreed deadline is to be observed, the declaration must be received within the deadline.
17.1 The customer and we shall treat all information as confidential that a party has become aware of in connection with the performance of this contract ("Confidential Information"), not make it available to third parties, and will only use and exploit it for the contractual purposes. The receiving party will, to the extent permitted by law, impose corresponding obligations on its employees.
17.2 The above obligations do not apply to such Confidential Information that the receiving party can prove was already public at the time of receipt or became public after receipt without the receiving party being involved, or was already in the possession of the receiving party at the time of disclosure or was made available to the receiving party by third parties without any obligation of confidentiality and non-use, provided that the third party did not receive this Confidential Information directly or indirectly from the issuing party or it was developed by the party itself without the use of Confidential Information.
17.3 The receiving party undertakes to take all necessary and appropriate precautions and measures so that the Confidential Information obtained is effectively protected against loss and unauthorized access at all times.
17.4 At our request, the customer will immediately return all Confidential Information recorded in writing or otherwise (including copies and reproductions), or destroy or delete it upon request, and will confirm this to us in writing upon request.
18. Data Protection
Information on the handling personal data at Rhenoflex is available at www.Rhenoflex.com.
19. Place of Jurisdiction
The place of jurisdiction is Ludwigshafen or – at our option – the general place of jurisdiction of the customer.
20. Applicable Law
The law of the Federal Republic of Germany applies exclusively, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
As of 2021