General Terms and Conditions of Rack & Roll GmbH
1 General, scope of application
1.1 We provide services for our business partners (“customers”) exclusively on the basis of these General Terms and Conditions (“GTC”). We order goods and/or the delivery of movable objects on the basis of our terms and conditions of purchase. 1.2.
1.2 Deviating, conflicting or supplementary contractual terms and conditions of the Customer shall only apply if we have expressly agreed to them in writing. Orders placed by the customer with reference to contractual terms and conditions are hereby expressly rejected. Our General Terms and Conditions shall also apply if we perform services for the customer without reservation in the knowledge of deviating, conflicting or supplementary contractual terms and conditions of the customer.
1.3 Our GTC shall also apply to future contracts with the same customer without our having to refer to them again in each individual case.
1.4 Individual agreements made with the customer in individual cases (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
1.5 Insofar as assembly conditions are attached to the order documents, these shall be an integral part of the contract.
1.6 Our General Terms and Conditions shall only apply to entrepreneurs within the meaning of § 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law.
2 Offers/Quotation Documents/Basis of Calculation
2.1 Our offers are subject to confirmation. In order to be valid, the contract requires our written confirmation of the customer’s order.
2.2 We can accept the customer’s order within four weeks.
2.3 We reserve the right of ownership and copyright to illustrations, drawings, calculations and other documents prepared by us which are subject to copyright. This shall also apply if the documents have been handed over to the customer – irrespective of the reason. They must be returned on request and may not be made accessible to third parties without our written consent. Duplications and imitations are not permitted.
2.4 We expressly reserve the right to insignificant deviations from information contained in the documents belonging to the offer, insofar as these do not permanently impair the function of the agreed service.
2.5 The calculations of our shelves are based on the following regulations and codes of practice, unless otherwise described:
Eurocode Parts 0, 1, 3, 5, 7 and 8
DIN EN 15512 Stationary shelving made of steel
DG UV Shelving 108-007 Storage facilities and equipment (previously BGR 234)
3.1 Our prices apply “ex works”, excluding packaging. Packaging shall be invoiced separately.
3.2 We reserve the right to change our prices appropriately if, after the conclusion of the contract, cost increases or cost reductions for which we are not responsible occur, in particular due to material costs, increases in raw material prices, auxiliary material prices, wages and
wages and salaries, freight or public charges. We shall prove the change in these costs to the customer upon request.
3.3 Statutory value added tax is not included in our prices. It will be shown separately on the invoice in the legally determined amount applicable at the time of invoicing.
3.4 All customs duties, fees, taxes and other public charges shall be borne by the Buyer, even if they are incurred outside Germany.
3.5 Currency fluctuations shall be borne in full by the customer; the agreed prices in euros shall not be affected by currency fluctuations in relation to the currency of our customers.
4. terms of payment/offset
4.1 Payments for goods and ancillary services shall be made in full in cash within 10 days of receipt of the invoice.
4.2 If, after conclusion of the contract, we become aware of circumstances which, according to our due commercial judgement, justify reasonable doubts about the creditworthiness of the customer, for example the initiation of insolvency proceedings, indications of an imminent suspension of payments (non-compliance with payment targets, etc.), our claims shall become due immediately, irrespective of the term of any bills of exchange accepted or credited or payment targets granted. In this case, we shall also be entitled to carry out outstanding deliveries only against advance payment or provision of security.
4.3 All payments shall be made in euros. If the prices of other currencies are stated in our offer, the official euro exchange rate of the foreign exchange market in Frankfurt am Main (12:00 CET) for the day on which the written order confirmation was issued by us shall be used as the basis for the conversion.
4.4 The submission of bills of exchange and cheques requires our consent. If payment by bill of exchange or cheque has been agreed, we shall accept the bill of exchange or cheque only on account of performance; bill charges and costs as well as the risk for timely presentation and protest shall be borne by the customer.
4.5 In the event of default in payment, we shall be entitled, without prejudice to our other rights, to withhold any deliveries already ordered or any promised work until all claims have been settled in full.
4.6 The customer is only entitled to set-off in the case of written consent or with legally established or undisputed claims. Furthermore, he is only entitled to exercise the right of retention insofar as his counterclaim is based on the same contractual relationship.
4.7 If partial deliveries are agreed, the customer shall be obliged to make partial payments on request in the amount corresponding to the value of the partial delivery in relation to the total delivery.
5 Delivery Time/Delay/Liability
5.1 If the performance of our services requires the customer’s cooperation, such as the obtaining of official permits, final destination declarations, import permits, import certificates, import permits, the release of drawings, etc., the delivery periods specified by us shall not commence until the customer has duly fulfilled all obligations and duties incumbent upon it in this respect.
5.2 If the customer is in default of acceptance or if he violates the obligations to cooperate incumbent upon him, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Any special services required in this respect shall be charged to the customer on an hourly basis. We reserve the right to assert further claims. The customer is obliged to temporarily store goods already delivered for the period of default in acceptance and the breach of existing duties to cooperate until we have performed the entire service at his expense and risk.
5.3 If delivery deadlines are stated in the order documents as “approximate deadlines”, we are entitled to exceed the stated deadlines by a maximum of two weeks.
dates by a maximum of two weeks. If this right is exercised, we shall give notice of this as early as possible. All subsequent contractual deadlines shall be extended accordingly.
5.4 Our delivery periods do not take into account delays in cross-border transports and deliveries. If delays occur at the border crossing (e.g. due to customs declarations and clearances, traffic jams or queues due to customs declarations and clearances, border closures or similar), these delays shall be borne by the customer and shall extend the delivery periods accordingly.
5.5 Obstacles, in particular events of force majeure, entitle us to postpone delivery for the duration of the obstruction. Legitimate industrial action, mobilisation, war, blockades, import and export bans, shortages of raw materials and energy, fire, traffic blocks, bad weather (e.g. during assembly work) and other circumstances for which we are not responsible shall be deemed equivalent to force majeure. In this respect, it is irrelevant whether they occur with us, a pre-supplier or a sub-supplier.
5.6 If, in the case of a delivery, we prove that we are not supplied on time by our suppliers despite careful selection of our suppliers and despite conclusion of the necessary contracts on reasonable terms, the delivery period shall be extended by the period of the delay caused by the untimely supply by our suppliers.
5.7 If delivery becomes impossible due to events as described in clauses 5.3 and 5.4 or if the temporary impediment to performance caused thereby lasts longer than four weeks, we shall be entitled to withdraw from the contract. After the expiry of the four weeks, the customer may demand a declaration from us as to whether we wish to withdraw or deliver within a reasonable period. If we do not make a declaration within a reasonable period of time, the customer may for his part exercise any rights to which he is entitled by law.
5.8 Liability for delay shall be governed by clause 10.
5.9 In the event of a delivery abroad owed by us, we shall procure the licences, permits or approvals required for the export. We shall be entitled to withdraw from a contract in whole or in part without compensation if the necessary export licences, permits, releases or approvals are not granted by the authorities or are not granted within a reasonable period of time.
5.10. In the absence of a separate agreement, we shall not be obliged, over and above clause 5.9, to procure certificates or documents in order to obtain the necessary licences, permits or other formalities for import or to arrange for customs clearance.
5.11. Without separate agreement, we are not obliged to comply with specifications on weight and metrology, packaging, labelling and markings that are required outside Germany.
5.12. We are not obliged to insure goods without a separate agreement.
6. dispatch, packaging
6.1 In the event of an agreed shipment by us, we shall be free to choose the means of transport, unless a special agreement has been made in the order confirmation. Additional costs for a method of dispatch requested by the customer or for an accelerated method of dispatch shall be borne by the customer, even if we bear the freight costs.
6.2 In the event that the contract is rescinded, the customer shall return the goods delivered by us to our place of business in Kulmbach at his own expense and risk, provided that he is responsible for the termination of the contractual relationship.
6.3 The customer is obliged to return the transport and outer packaging used by us to our place of business in Kulmbach within the usual business hours if he wishes us to take back this packaging. Transport and outer packaging shall only be taken back by us if they are free of foreign substances (substances which do not originate from the delivered goods) and sorted according to different packaging materials. If the customer does not comply with this obligation, he shall bear the additional costs of disposal incurred by us as a result. 7.
7 Delivery / collection and transfer of risk
7.1 In the event of delivery of the goods, the unloading of the vehicles shall be carried out by the customer.
7.2 In the event of self-collection by the customer, only trucks or containers that permit lateral loading with forklift trucks may be loaded. If several collectors arrive at the same time, they will be dispatched one after the other.
7.3 If the goods are delivered by us and assembled and/or set up by the customer, the risk shall pass to the customer when the goods are made available at the location specified in the order confirmation. This shall also apply to partial deliveries.
7.4 If the delivery or shipment of the goods is delayed for reasons for which the customer is responsible, the risk of loss or deterioration, in particular the risk of impairment of the surface quality due to prolonged outdoor storage, shall pass to the customer upon receipt of the notification that the goods are ready for delivery or shipment.
8. notices of defects
8.1 The customer’s rights in respect of defects presuppose that the customer complies with his obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
8.2 Upon shipment of the goods, the customer must also immediately notify the responsible forwarder or carrier of any damage or complaint or have it confirmed.
9. claims for defects
9.1 Load capacity specifications shall only apply in the event of assembly by us or in the event of assembly in accordance with our instructions and in compliance with all specifications. If assembly is carried out by the customer in deviation from the assembly instructions, we shall not accept any liability for the intended loads unless the deviation has no effect whatsoever on the loads.
In the event that no original RACK & ROLL components are used for repairs / system retrofits, the product liability expires to the full extent for the racking system used. This also applies to load capacity specifications.
9.2 If goods supplied by us or a work manufactured by us is defective, the customer’s claims are initially limited to supplementary performance. Subsequent performance shall be effected, at our discretion, by remedying the defect or by new delivery. In the event of failure to remedy the defect, the customer may, at its option, demand a reduction in the remuneration for the work or, if the subject matter of the liability for defects is not a construction work, demand rescission of the contract if the statutory requirements are met. 9.3 If the customer has a claim for damages due to a defect in the work, the customer shall be entitled to demand a reduction in the remuneration for the work.
9.3 If the customer asserts claims for damages due to defects,
– we shall be liable in accordance with the statutory provisions, provided that the claims for damages are based on intent or gross negligence by us or our vicarious agents.
– we shall be liable in accordance with the statutory provisions if we have negligently breached a material contractual obligation; in this case, however, our liability shall be limited to the foreseeable, typically occurring damage, unless we have committed an intentional breach of contract.
Liability for culpable injury to life, limb and health and mandatory liability under the Product Liability Act shall remain unaffected.
The limitations of liability in this clause 9.3 shall also apply in the event of breaches of duty by or in favour of persons for whose fault we are responsible in accordance with statutory provisions. They do not apply if we have fraudulently concealed a defect or have given a guarantee for the quality of the goods.
9.4 The period of limitation for claims for defects shall be
– insofar as the performance owed by us consists of the construction or handover of a building
or in the handing over of an object which is used for a building in accordance with its customary manner of use and which has caused the defectiveness thereof, shall be five years;
– insofar as the customer’s claims for defects are based on intent or gross negligence or for injury to life, limb or health as well as for claims under the Product Liability Act and § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB, the respective statutory limitation periods; and
– 12 months in all other cases.
The above limitation periods shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case.
9.5 Insignificant defects do not entitle the buyer to withhold payment.
9.6 Subsequent performance does not include the removal of the defective item or the re-installation if we were not originally obliged to install it.
9.7 We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if there is actually a defect. Otherwise, we may demand reimbursement from the customer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognisable to the customer.
10 Limitation of liability
If claims for damages are asserted against us due to breaches of duty which do not relate to the warranty,
– we shall be liable in accordance with the statutory provisions insofar as the claims for damages are based on intent or gross negligence by us or our vicarious agents;
– we shall be liable in accordance with the statutory provisions if we have negligently breached a material contractual obligation (obligation the fulfilment of which is a prerequisite for the proper performance of the contract and the observance of which the contractual partner regularly relies on and may rely on); in this case our liability shall be limited to the foreseeable, typically occurring damage.
Any further liability is excluded – regardless of the legal nature of the asserted claim. Liability for damages arising from injury to life, body or health as well as mandatory liability under the Product Liability Act shall remain unaffected.
The limitations of liability under this Clause 10 shall also apply in the event of breaches of duty by or in favour of persons for whose fault we are responsible in accordance with statutory provisions. They do not apply if we have fraudulently concealed a defect or have given a guarantee for the quality of the goods.
11. retention of title
11.1 The goods shall remain our property until all claims against the customer to which we are entitled have been paid in full. The inclusion of individual claims in current invoices or balance relationships and their recognition shall not cancel the retention of title. If the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the delivered goods after setting a reasonable deadline. The taking back of the goods by us does not constitute a withdrawal from the contract unless we have expressly declared this in writing. The seizure of the goods by us shall always constitute a withdrawal from the contract. After taking back the goods, we shall be entitled to realise them; the proceeds of realisation shall be set off against the customer’s liabilities – less reasonable realisation costs.
11.2 The customer shall be entitled to resell the goods in the ordinary course of business; this shall
This excludes pledging or transfer of ownership by way of security by the customer. He hereby assigns to us all claims in the amount of the final invoice amount (including value added tax) of our claim which accrue to him from the resale against his customer or third parties, irrespective of whether the goods have been resold without or after processing. The customer shall remain authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
11.3 In the event of seizures or other interventions by third parties, our customer shall notify us in writing without delay so that we can bring an action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs pursuant to § 771 ZPO, the customer shall be liable for the expenses incurred by us.
11.4 The processing or transformation of the goods by the customer shall always be carried out for us. If the goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods (final invoice amount, including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the goods delivered under reservation of title. If we are only entitled to a co-ownership share in the goods, the acquisition of the co-ownership share in the new item shall be effected proportionately.
11.5 If goods subject to retention of title become an integral part of the customer’s real property, the customer hereby assigns to us the claims arising from the sale of the real property or rights to real property limited to the amount of the value of the goods subject to retention of title with all ancillary rights and with priority over the rest. If the goods become an integral part of the real property of a third party, the customer hereby assigns to us the claims against the third party arising from this combination of goods and real property in the amount of the value of the goods (final invoice amount, including value added tax) including ancillary rights to secure our claims with priority over the rest.
11.6 If the total realisable value of the securities granted to us exceeds 110% of our outstanding residual claims against the customer not only temporarily, we are obliged to release the securities to which we are entitled in the exceeding amount at the customer’s request. The selection of the securities to be released shall be incumbent upon us.
12. storage of data
Upon conclusion of the contract, the customer consents to the storage of his personal data by us for the purpose of order processing and invoicing by means of electronic data processing.
13. final provisions
13.1 Should one of the above provisions be invalid or not become part of the contract, this shall not affect the validity of the remaining provisions. In this case, the parties undertake already now to enter into negotiations with the aim of replacing the invalid provision with a clause which comes as close as possible to what the parties intended economically with the previous provision.
13.2 These GTC and the entire contractual relationship between the customer and us shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods of April 1980.
13.3 Unless otherwise stated in the order confirmation, the place of performance for our services, all payments and all bills of exchange received shall be our registered office in Kulmbach.
13.4 If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all legal disputes arising from the contractual relationship and with regard to its formation and validity (including actions on bills of exchange) shall be Kulmbach. The same applies if the customer is an entrepreneur (§ 14 BGB). However, we shall also be entitled, at our discretion, to sue the customer at his place of
place of residence or place of business.
13.5 The contractual language is German. Declarations and communications shall be made in German. However, we are authorised, at our discretion, to write in English. In this case, our customers are also authorised to reply in English.
14 Special conditions relating to the United Kingdom of Great Britain and Northern Ireland and the withdrawal from the European Union (so-called Brexit)
14.1 If the Customer is domiciled in the United Kingdom of Great Britain and Northern Ireland when the contract is concluded, the following shall apply in derogation of clause 13.4:
(1) All disputes arising out of or in connection with this contract or concerning its validity shall be settled in accordance with the Arbitration Rules of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e.V. (DIS) to the exclusion of the ordinary courts of law.
(2) The arbitral tribunal shall consist of a sole arbitrator.
(3) The place of arbitration shall be Kulmbach.
(4) The language of the proceedings shall be German.
(5) The law applicable to the matter shall be the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods of April 1980.
14.2 We would like to point out that the rules and regulations pursuant to section 2.5 apply to our products. Any specifications from the United Kingdom of Great Britain and Northern Ireland deviating from this shall not be owed by us.
14.3 The parties agree that all costs, risks and other disadvantages to the contract associated with the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union shall be borne by the customer. Claims of the parties due to a disruption or the discontinuation of the basis of the contract according to § 313 BGB remain unaffected by this.