General terms and conditions of sale, delivery and payment of RUX GmbH
§ 1 – Applicability
1. These general terms and conditions shall apply exclusively. Any terms and conditions of purchaser that are contrary or different to our terms and conditions shall not apply unless they have been expressly confirmed in writing. Our general terms and conditions of sale, delivery and payment shall also apply when we effect unconditional delivery to the purchaser although we are aware that the purchaser’s terms and conditions are contrary or different.
2. Our general terms and conditions of sale, delivery and payment shall also apply for all future transactions with purchaser.
§ 2 – Offers
1. The offers and quotations we make shall be subject to confirmation in all parts.
2. We reserve ownership rights as well as copyrights to illustrations, drawings, calculations und other documents. The documentation mentioned may not be made accessible to third parties without our express written consent.
§ 3 – Prices and terms of payment
1. Insofar as nothing to the contrary has been agreed, our prices are quoted “ex works” excluding packaging and freight, which will be invoiced separately.
2. All prices we quote are net amounts that are subject to value added tax at the statutory rate valid on the date of invoicing.
3. Insofar as nothing to the contrary has been agreed contractually, the purchaser shall be deemed as in default at the latest 30 days after receipt of invoice or request for payment unless default has come about earlier on account of a reminder or overdue notice. The purchaser shall not be entitled to deduct discount without any specific written agreement in this respect.
4. The purchaser shall only be entitled to offsetting rights when same’s counter claims have been established in law, are undisputed or have been recognised by us. Moreover, the purchaser shall only be authorised to exercise a right of retention when the counter claim is based on the same contractual relationship as the claim for payment.
5. An administration fee of EUR 20.00 will be levied on orders below a minimum order value of EUR 50.00.
§ 4 – Delivery and delivery period
1. The periods and dates we indicate for delivery and execution shall be deemed as approximate unless a fixed deadline or date has been expressly assured or agreed. When shipments have been agreed, delivery periods and delivery dates shall refer to the time when the goods are handed over to a forwarding agent, carrier or other third party commissioned with the transportation.
2. Should we be late in effecting delivery for reasons we are responsible for, purchaser’s claims to compensation for the damage caused by the delay shall be limited to an amount of 0.5 % of the value of the delivery for each completed week of delay and to a maximum of 5 % of the value of the delivery. This limitation shall not apply when the delay has been caused with intent, by gross negligence or through the infringement of significant contractual obligations (these are obligations that need to be fulfilled to make the proper performance of the contract at all possible in the first place, whose observance our contractual partner may normally rely on).
3. Both claims to compensation on the part of the purchaser for delays in delivery as well as claims for compensation in lieu of delivery going beyond the limits mentioned in Clauses 1. and 2. shall be excluded in all cases of delayed delivery, even after expiry of a deadline that may have been set us for delivery. This shall not apply in cases of intent, gross negligence or injury to life, body or health where liability is mandatory; an amendment of the burden of proof to the disadvantage of the purchaser is not associated with this. The purchaser may only withdraw from the contract within the framework of the statutory provisions when we are responsible for the delay in delivery.
4. The purchaser shall, upon our request, be obliged to state within a reasonable period whether it will withdraw from the contract and/or demand compensation in lieu of performance or insist on performance as a result of the delay in delivery.
5. Should the purchaser be in default of acceptance or infringe against other cooperation obligations, we shall be entitled to demand compensation for the resulting damage and, in addition, for any additional expenses incurred. In such cases, the risk of an accidental loss or deterioration of the purchased item(s) shall pass to the purchaser at that moment when same is in default of acceptance.
6. Acts of God or operational disruptions affecting either us or our suppliers that, through no fault of our own, temporarily prevent us from supplying the contractual object(s) at the agreed time or within the agreed period shall correspondingly move backward the dates and prolong the periods mentioned in Clauses 1 to 5 of this paragraph by the duration of the default caused by these circumstances. The purchaser may withdraw from the contract if such disruptions result in a postponement in delivery of more than four months. Other cancellation rights shall remain unaffected by this.
7. The adherence to agreed delivery dates or legally set delivery periods presupposes that we are supplied by our sub-suppliers punctually with the ordered input material or purchased parts necessary for the fulfilment of the order commissioned (reservation of self-supply). Should we not be able to adhere to agreed or set delivery periods as a result of non-punctual delivery from our sub-suppliers, we shall not be deemed to be in default when the input material was ordered in good time and we have otherwise made every reasonable effort to ensure punctual delivery of the input material.
§ 5 – Transfer of risk
1. Insofar as nothing to the contrary has been contractually established, “ex works” delivery shall be deemed as agreed. This shall also apply when the purchased item(s) is/are despatched to another address at the request of the purchaser. The risk shall transfer to the purchaser when the purchased item(s) is/are handed over to the transport party.
2. We shall take out transportation insurance for the delivery if this is requested by the purchaser; the costs resulting for this shall be borne by purchaser.
3. The material is normally supplied unpacked and unprotected against rust. In the case of packed material, the purchaser assumes the obligation of unpacking and disposing of the packaging at own expense.
§ 6 – Warranty claims
1. Warranty rights on the part of the purchaser are subject to it having properly exercised its inspection and complaint obligations pursuant to § 377 HGB (German Commercial Code). § 377 HGB shall also apply correspondingly when we are to purely perform work on behalf of the purchaser. Additionally, the delivered goods are to be properly and correctly stored, processed and used. Correct and proper storage of wooden material, for example, means it is appropriately ventilated. A correct and proper handling of scaffolding when it is assembled or disassembled necessitates compliance with all prescribed technical provisions including the DIN standards as well as observation of all approval requirements and state guidelines.
2. Insofar as the purchased item(s) is/are faulty, we shall always be provided with an opportunity of putting things right first (supplementary performance) as per § 439 BGB (German Civil Code).
3. Should we not be willing or able to rectify the situation or should such supplementary performance be delayed beyond a reasonable period of time on grounds that we are responsible for, or should supplementary performance be unsuccessful for other reasons, the purchaser shall be free to decide whether to withdraw from the contract or to demand a lowering of the purchase price (reduction).
4. Insofar as nothing to the contrary has been agreed below, more far-reaching claims on the part of the purchaser – irrespective of the legal grounds – shall be deemed excluded. We are not therefore liable for claims that do not concern the delivered item itself: in particular, we are not liable for missed earnings or other financial losses of the purchaser. The above exemption from liability shall not apply when the damage was caused through intent or gross negligence or in cases of injury to life, body or health. Similarly, it will not apply when we have assumed a guarantee for the quality of the item or its durability. The above exemption from liability shall again not apply to damage caused as a consequence of the culpable infringement of significant contractual obligations (these are obligations that need to be fulfilled to make the proper performance of the contract at all possible in the first place, whose observance our contractual partner may normally rely on). Insofar as it is not a case of intent or gross negligence or that we have assumed any guarantees, our liability in such situations shall be limited in terms of its amount to the level of foreseeable damage typical for this type of contract.
5. Any warranty claims on the part of the purchaser shall be barred after twelve months. This shall not apply when longer periods as per § 438  No. 2 BGB (Construction Work and Objects for Construction Work), § 479  BGB (Right of Recourse) and § 634a  No. 2 BGB (Construction Defects) are required by law.
§ 7 – Total liability
1. More far-reaching liability for compensatory damages and reimbursement of expenditure than that envisaged in § 6 – irrespective of the legal nature of the asserted claim – shall be deemed excluded. This provision shall not apply to claims that are filed against us pursuant to §§ 1 and 4 of the Product Liability Act. Similarly, the exclusion of liability shall not apply in cases of intent, gross negligence, injury to life, body or health or when significant contractual obligations are infringed (these are obligations that need to be fulfilled to make the proper performance of the contract at all possible in the first place, whose observance our contractual partner may normally rely on). However, the amount of the claim for damages in the event of infringement of significant contractual obligations shall be limited in terms of its amount to the level of foreseeable damage typical for this type of contract insofar as it is not a case of intent or gross negligence or there is liability on account of an injury to life, body or health. An amendment of the burden of proof to the disadvantage of the purchaser is not associated with the above provisions.
2. Insofar as our liability is excluded or limited, this shall also extend to the personal liability of our employees, workforce, staff members, representatives and agents.
§ 8 – Retention of title
1. We reserve the right of ownership to the purchased item(s) until full settlement of the purchase price incl. auxiliary costs (freight, packaging etc.). Should the purchaser act contrary to contract i.e. default in payment for instance, we shall be entitled to withdraw from the contract and repossess the purchased item(s). After repossessing the purchased item(s), we shall be authorised to remarket such. The remaining remarketing proceeds after deducting reasonable remarketing costs are to be credited against the obligations of the purchaser.
2. The purchaser shall be obliged to treat the purchased item(s) carefully. Same shall insure such at own expense against fire, water and theft with the insured sum being adequate to cover the replacement value. The purchaser shall carry out any service and maintenance work that may be or become necessary in good time and at own expense.
3. The purchaser shall be obliged to notify us immediately in writing of any seizure or other interventions of third parties. In such cases, the purchaser is also obliged to support us in full in the court and out-of-court assertion of our rights, in particular to furnish us with the necessary documents.
4. The purchaser shall be entitled to resell the purchased item(s) in the ordinary course of its business. However, the purchaser herewith already assigns all its claims against its customers or third parties arising from such reselling in the amount of the final invoice amount (including VAT). This assignment shall apply irrespective of whether the purchased item(s) is/are resold without or after being processed. We herewith accept such assignment. The purchaser shall remain entitled to collect its claims within the framework of its ordinary course of business. This entitlement shall lapse when the purchaser does not meet its payment obligations out of the proceeds received, or when same defaults in payment. It also lapses when application is made for the opening of insolvency or composition proceedings on purchaser’s assets or when the purchaser suspends payments. In such cases, we shall be entitled to collect the assigned claim ourselves. The purchaser shall be obliged to provide us with all the necessary information and associated documents to enable collection. In such a case, the purchaser shall also be obliged to notify the debtor (third party) of the assignment.
5. The processing or transformation of the purchased item(s) is always done on our behalf by the purchaser. If the purchased item(s) is/are processed with other objects not belonging to us, we acquire co-ownership of the new item in the relation of the value of the purchased item(s) to the other processed item(s) at the point in time of processing. Incidentally, the same shall apply to the object(s) created in the processing operation as for the purchased item(s) supplied under retention of ownership.
6. If the purchased item(s) is/are inseparably combined with other objects not belonging to us, we acquire co-ownership of the new item in the relation of the value of the purchased item(s) to the other combined item(s) at the point in time of processing. If combination has meant that the object of the purchaser is to be considered the main item, it shall be deemed as agreed that the purchaser proportionately transfers co-ownership. The purchaser shall safe-keep the resulting sole or co-ownership on our behalf.
7. At the request of the purchaser we undertake to release the collateral we are entitled to when the realisable value of the collateral exceeds the claim to be secured by more than 10 %. We shall select the collateral to be released at our own discretion. In such cases, the purchaser shall mark the scaffolding material in its possession in such a way that it is possible to unambiguously identify the material still standing in our ownership. Should the assignment of claims be waived, the purchaser shall be obliged to previously disclose all its claims resulting from the sale of scaffolding material.
§ 9 – Place of fulfilment, applicable law and place of jurisdiction
1. Insofar as nothing to the contrary has been agreed contractually, the place of fulfilment shall be the registered offices of the company. These are located in Hagen.
2. The law of the Federal Republic of Germany shall apply exclusively to all business relations with us. Application of the UN Convention on Contracts the International Sale of Goods shall be deemed excluded.
3. Insofar as the purchaser is a qualified businessperson, the courts of the Federal Republic of Germany shall have international jurisdiction in the event of any legal disputes. The place of jurisdiction shall in all events be the location of our company. We are however entitled to bring proceedings against the purchaser at same’s general place of jurisdiction. This competency provision shall also apply for claims arising out of bills of exchange or cheques.
4. Should the purchaser infringe against VAT law provisions, in particular with regard to stating a VAT ID number, the purchaser shall be obliged to compensate us for any taxation disadvantage thus ensuing. We reserve the right to file more far-reaching claims for damages.
§ 10 – Final provisions
Should these general terms and conditions of sale, delivery and payment contain any loopholes, it shall be deemed as agreed that they be replaced by such legally effective provisions that the parties to the contract would have agreed upon in view of the commercial objectives of the contract and the purpose of these general terms and conditions of sale, delivery and payment if they had known about such loopholes.