1. General, Scope of Application
1.1 The Terms and Conditions set forth below (Terms & Conditions of Sale) govern all sales of RHEINMAGNET Horst Baermann GMBH, which maintains its registered place of business in Neunkirchen, Germany, and is entered in the Commercial Register of the Local Court of Siegburg under HRB 16422 (hereinafter referred to as RHEINMAGNET), to its contractual partner (hereinafter referred to as the BUYER) unless otherwise specifically agreed in writing.
1.2 These Terms & Conditions of Sale will apply to future orders even if not presented separately.
1.3 RHEINMAGNET sells exclusively to entrepreneurs. Entrepreneurs are natural or artificial persons or legal partnerships that act in the capacity of businesses or self-employed professionals when entering into legal transactions (§ 14(1) of the Civil Code (Bürgerliches Gesetzbuch – BGB)).
1.4 The Terms & Conditions of Sale apply only to entrepreneurs, public law corporations and public special funds.
1.5 Terms and conditions of the Buyer will apply only if consistent with these Terms & Conditions of Sale or if RHEINMAGNET has expressly agreed to the application of such terms or conditions of the Buyer in writing. These Terms & Conditions of Sale will apply even if RHEINMAGNET makes delivery without objection despite knowledge of the existence of terms and conditions of the Buyer that conflict with or differ from these Terms & Conditions of Sale.
2. Quotations
Quotations of RHEINMAGNET will be subject to confirmation unless otherwise specifically agreed or delivery has been made. RHEINMAGNET may accept orders placed by the BUYER within two weeks after receipt.
3. Prices
3.1 Prices will be understood to be ex works plus legally applicable value-added tax. Prices do not include the cost of packing and insurance.
3.2 Insofar as agreed prices are based on list prices of RHEINMAGNET and delivery is scheduled for a point in time more than four months after execution of the respective contract, the list prices of RHEINMAGNET in effect as of the date of delivery will apply (in each case less agreed rebates, discounts for prompt payment, etc.).
4. Delivery/Passage of Risk in the Case of Shipment Freight Prepaid
4.1 In the event that the contract calls for shipment freight prepaid, this will apply only for standard shipment. The Buyer will bear any additional or special costs, e.g., for express shipment or drayage. The Buyer will bear the cost of unloading in the case of delivery freight prepaid or delivery free construction site by truck.
4.2 In the event that the contract calls for delivery freight prepaid, RHEINMAGNET’s responsibility will be limited to proper delivery of the goods to the freight forwarder on a timely basis, and it will not be responsible for delays caused by the freight forwarder. Shipping times indicated by RHEINMAGNET are therefore not binding.
4.3 In the event that the contract calls for delivery freight prepaid, the risk of loss or damage will pass to the Buyer as soon as the goods are handed over to the freight forwarder, the carrier or any other party responsible for shipment as specified in the contract.
4.4 The goods will not be insured during shipment. The goods may be insured at the written request and expense of the Buyer.
5. Delivery/Passage of Risk in the Case of Delivery Ex Works
5.1 In the event that the contract calls for delivery ex works, RHEINMAGNET will make the goods available for collection at the agreed time at its premises in Neunkirchen-Seelscheid.
5.2 In the event that the contract calls for delivery ex works, the risk of loss or damage will pass to the Buyer as soon as the goods leave the premises of RHEINMAGNET.
6. Partial Shipment
RHEINMAGNET may make partial delivery unless the Buyer cannot be reasonably expected to accept such delivery. It will regularly be assumed that the Buyer can be reasonably expected to accept quantities that are 10% reater or 10% less than those ordered.
7. Delivery
7.1 Unless agreed otherwise, delivery periods indicated by RHEINMAGNET will not be binding unless a firm delivery period or firm delivery date has been specifically promised or agreed. Insofar as shipment has been agreed, delivery periods and dates will be based on the time of transfer of possession to the freight forwarding company.
7.2 Insofar as RHEINMAGNET cannot adhere to binding delivery periods for reasons beyond its control, RHEINMAGNET reserves the right to negotiate a new delivery period with the Buyer. This will apply in particular in the case of the failure of a supplier to make timely delivery to RHEINMAGNET if RHEINMAGNET has entered into a congruous hedging transaction. RHEINMAGNET will without delay inform the Buyer of the reasons for any such failure to make timely delivery. In the event that RHEINMAGNET also cannot make delivery within the new delivery period for reasons beyond its control or it should prove impossible to agree upon a new delivery period, RHEINMAGNET may rescind the contract. RHEINMAGNET will without delay refund any consideration already paid by the Buyer. The legal rights of the Buyer will remain unaffected if it has in any event issued a default notice.
8. Payments
8.1 Invoices will become due and payable to the account of RHEINMAGNET specified in the invoice within 10 days of issuance after deduction of a discount of 2% for prompt payment or will be due in full within 30 days. Discounts for prompt payment will be disallowed if payment of previous invoices is still outstanding. Payment will be considered to have been received when credited to the account of RHEINMAGNET.
8.2 RHEINMAGNET may make delivery of outstanding goods or services contingent upon payment in advance or provision of satisfactory security if circumstances become known after execution of the contract that result in the material deterioration of the creditworthiness of the Buyer and jeopardize the Buyer's payment of the outstanding receivable of RHEINMAGNET arising from this contract.
8.3 RHEINMAGNET is under no obligation to accept bills of exchange and checks. Acceptance will be contingent upon clearance and the discount possibilities available to RHEINMAGNET through its banks as well as upon reimbursement of all expenses incurred.
8.4 In the event of arrears, RHEINMAGNET may require payment of a minimum processing fee in the amount of €10 unless the BUYER can prove to RHEINMAGNET that RHEINMAGNET has incurred no loss or only a lower loss. This will not prejudice any claims for further damages.
9. Retention of Title
9.1 Goods delivered by RHEINMAGNET (the Goods) will remain the property of RHEINMAGNET until receipt in full of all amounts due RHEINMAGNET by the Buyer.
9.2 The Buyer may dispose of and/or process Goods to which RHEINMAGNET retains title in the normal course of its business. This will cease to apply if the Buyer falls into arrears or has agreed with the Buyer’s customers that receivables arising from disposal and/or processing of the Goods may not be assigned.
9.3 Goods to which RHEINMAGNET retains title may not be pledged or otherwise encumbered prior to receipt of payment in full. The Buyer will without delay inform RHEINMAGNET in writing of any possible or realized attempts to seize or take possession of Goods to which RHEINMAGNET retains title.
9.4 In the event that the Goods are processed or converted by the Buyer, it is agreed that such processing will be carried out on behalf of and for the account of RHEINMAGNET in its capacity as manufacturer and that RHEINMAGNET will immediately acquire ownership rights in the new product created. In the event that materials from several owners are processed, RHEINMAGNET will acquire joint ownership rights (co-ownership) in the new product proportional to that share of the value of the new product resulting from the Goods and the value of the processing.
9.5 In the event that the Goods are inseparably combined with or attached to other goods that are not the property of RHEINMAGNET (Other Goods) by the Buyer and such Other Goods are then considered to constitute the principal product, the Buyer hereby assigns to RHEINMAGNET any future ownership interest that the Buyer may have in such inseparably combined or attached product or a joint ownership interest in an amount proportional to that share of the value of the new product resulting from the Goods and the value of the processing to secure amounts due RHEINMAGNET within the meaning of paragraph 9.1.
9.6 In the event that Goods should be inseparably combined with or attached to Other Goods and are then considered to constitute the principal product, RHEINMAGNET will become the owner of the inseparably combined or attached property pursuant to § 947(2) of the Civil Code.
9.7 In the event that neither the Goods nor Other Goods should be considered the principal product, RHEINMAGNET will acquire a joint ownership interest in the inseparably combined or attached property pursuant to § 947(1) of the Civil Code.
9.8 In the event that the Buyer should dispose of the Goods or inseparably combine the Goods with, attach the Goods to or process the Goods together with Other Goods, the Buyer hereby assigns to RHEINMAGNET all claims against the Buyer’s customers arising from the product of such inseparable combination, attachment or processing (the Product) in their entirety, including any remuneration for the performance of work contained therein as well as all subsidiary rights, in particular securities, not, however, to exceed
(i) a maximum of up to 110% of the outstanding amounts pursuant to paragraph 9.1 if the Product consists exclusively of materials of the Buyer in addition to the Goods,
(ii) a maximum of up to 110% of the outstanding purchase price of the Goods if the Product consists of materials supplied by third parties who retain title to such materials as well as the Goods.
9.9 If the Buyer maintains a running account with customers, this anticipatory assignment will also apply to any outstanding balance due in connection with such accounts. The same will apply in the case of other receivables that take the place of the Goods to which RHEINMAGNET retains title or otherwise come into being in connection with such Goods, e.g., insurance claims or claims arising from negligence in the case of loss or destruction. RHEINMAGNET accepts such assignment.
9.10 The Buyer may collect receivables assigned to RHEINMAGNET on behalf of and for the benefit of RHEINMAGNET as long as RHEINMAGNET has not revoked this authorization. RHEINMAGNET’s right to collect such receivables itself will remain unaffected; RHEINMAGNET will, however, refrain from collection of such receivables or revocation of authorization to collect such receivables as long as the Buyer properly fulfills his payment obligations. If, however, the Buyer should be in breach of the contract and in particular insofar as the Buyer should be in breach of payment, RHEINMAGNET may require that the Buyer disclose the assigned receivables and the names of the respective creditors to RHEINMAGNET, inform the respective creditors of the assignment and turn over to RHEINMAGNET all documents and information such as RHEINMAGNET may require to collect the outstanding amounts.
9.11 RHEINMAGNET agrees to release any security interests provided to RHEINMAGNET at the request of the Buyer insofar as the value of such security interests exceeds that of the secured claims pursuant to paragraph 9.1 by 10%. RHEINMAGNET may at its sole discretion determine which securities to release.
10. Warranties
10.1 The Buyer, which is a merchant, may only exercise its warranty rights if it has fulfilled its obligations to inspect the Goods and to notify RHEINMAGNET of any defects pursuant to § 377 of the German Commercial Code (Handelsgesetzbuch – HGB). Any notification of defective Goods sent to RHEINMAGNET must specify in writing the nature of the defect and the date of delivery.
10.2 Any specifications provided by RHEINMAGNET as regards the goods or services (e.g., weight, dimensions, consumption values, strength, tolerances and technical data) or representations thereof (e.g., drawings and illustrations) are to be considered approximations unless use for the purpose contemplated under this contract requires strict compliance with such specifications and RHEINMAGNET should have been aware of this. Such specifications represent no guarantee in terms of quality, workmanship or performance, but are descriptions or designations of goods or services. Unless they interfere with the use of the goods or services for the purpose contemplated under this contract, deviations commonly found in the trade and deviations that are made for the purposes of compliance with provisions of law or represent technical improvements as well substitution of components by equivalent components will be permissible. Paragraph 11 of these Terms & Conditions of Sale will remain in effect.
10.3 RHEINMAGNET extends no warranty for defects resulting from improper use by the Buyer or from failure to comply with instructions or from use in combination with improper materials or from the combination with, integration in or attachment to products of other manufacturers if RHEINMAGNET has not expressly indicated that it has no reservations regarding such products.
10.4 In the event that RHEINMAGNET must honor a warranty in view of the above provisions, RHEINMAGNET may at its sole discretion cure the defect through replacement or repair. In the event that corrective work should prove inadequate, the Buyer may at its sole discretion cancel the contract or reduce the price. This will not affect the right of the Buyer to claim damages as provided by law.
10.5 In the case of defects in components of other manufacturers that RHEINMAGNET cannot remedy for reasons having to do with license rights or other material reasons, RHEINMAGNET will at its sole discretion enforce its warranty claims against the manufacturer and/or supplier on behalf of the Buyer or assign such claims to the Buyer. In the case of such defects, warranty claims may be brought against RHEINMAGNET as otherwise permitted under the law or pursuant to these Terms & Conditions of Sale only if legal enforcement of such claims against the manufacturer and/or supplier should prove unsuccessful or have no prospects of success. The limitation period for such warranty claims of the Buyer against RHEINMAGNET will be suspended for the duration of the legal dispute.
10.6 RHEINMAGNET warrants in this paragraph 10.6 that the Goods do not infringe the intellectual property or proprietary rights of third parties (Infringement of Rights). Each of the Parties to the contract will without delay notify the respective other Party in writing of any claims brought in connection with any Infringement of Rights. RHEINMAGNET will in any such case at its sole discretion remedy at its expense any Infringement of Rights either by modifying or exchanging the Goods without compromising the contractually agreed functionality or secure the use of the corresponding right for the Buyer by obtaining the required license. In the event that RHEINMAGNET should be unable to do so within an appropriate period of time, the Buyer may rescind the contract, reduce the purchase price accordingly and/or claim damages as permitted under the law or pursuant to these Terms & Conditions of Sale.
10.7 In the case of any Infringement of Rights arising from the products of other manufacturers supplied by RHEINMAGNET, RHEINMAGNET will at its sole discretion enforce its claims against the manufacturer and/or supplier on behalf of the Buyer or assign such claims to the Buyer. Claims against RHEINMAGNET will in any such case be honored pursuant to this paragraph 10.6 only if legal enforcement of such claims against the manufacturer and/or supplier should prove unsuccessful or have no prospects of success. The limitation period for the respective warranty claims of the Buyer against RHEINMAGNET will be suspended for the duration of the legal dispute.
10.8 The warranty claims of the Buyer will become time-barred one year after the risk of loss and damage passes to the Buyer. This will not apply as regards liability due to willful misconduct.
11. Tolerances
The dimensional tolerances of PERMAFLEX Magnets will be provided in quotations of RHEINMAGNET upon request. Unless agreed otherwise, the following will be considered to have been accepted:
(i) in the case of extruded PERMAFLEX strips deviations in width of ± 0.5 mm
(ii) in the case of magnetic foils deviations in width of ± 5 mm
(iii) in the case of foils and strips deviations in thickness of ± 0.1 mm
(iv) in the case of cutouts of magnetic foil: ± 1 mm, hard ferrite
tolerances,unless specified otherwise, pursuant
to DIN IEC60404-8-1
12. Returns
RHEINMAGNET will not accept returns unless agreed to in advance. RHEINMAGNET will be under no obligation to accept returns except as provided otherwise under the law or these Terms & Conditions of Sale.
13. Offsetting/Right of Retention/Right to Withhold Performance
The Buyer may not exercise any right of setoff or retention unless its counterclaim is undisputed or has been found legally enforceable.
14. Limitation of Liability
14.1 Unless stipulated otherwise in these Terms & Conditions of Sale, including the provisions set forth below, RHEINMAGNET’s liability for any breach of contractual obligations or other obligations will be governed by the relevant provisions of law.
14.2 RHEINMAGNET will be liable for damages – for whatever legal reason – in the case of willful misconduct and gross negligence. In the case of simple negligence, RHEINMAGNET will be liable only in the case of
a) claims arising in connection with the loss of life, bodily injury or illness; and
b) claims arising in connection with the breach of a material contractual obligation (i.e., an obligation that must be fulfilled to permit proper performance of the contract and performance of which may regularly be relied upon by the respective other party). The liability of RHEINMAGNET will in such cases be limited to foreseeable and typically occurring damage.
14.3 The limitations to RHEINMAGNET’s liability pursuant to paragraph 12.2 above will not apply in the case of its concealment of a defect with intent to deceive or if RHEINMAGNET has issued a guarantee covering any specifications of the respective products. The same will apply in the case of claims of the Buyer under the Product Liability Act (Produkthaftungsgesetz – ProdHaftG).
15. Force Majeure
Force majeure, labor disputes, disruption of operations beyond its control, civil disorder, regulatory measures and other unavoidable events will release RHEINMAGNET and the Buyer from their contractual duties for the duration of the disruption and insofar as they are affected by such disruption. Each of the Parties will without delay provide the respective other Party with all necessary information regarding the nature, scope and duration of disruptions and adapt their contractual duties accordingly in good faith.
16. Final Provisions
16.1 In the event that any provision of this contract should be or become void, invalid, or unenforceable, this will not affect the validity of the contract and its other provisions. Any void, invalid or unenforceable provision will be replaced by an appropriate provision that most closely approximates the economic intent of the previous provision contemplated by RHEINMAGNET and the Buyer in terms of form, content, time and sphere of application within the limits of the legally permissible. The same will apply accordingly to any omission in the contract.
16.2 The place of performance is Neunkirchen-Seelscheid.
16.3 Any legal disputes arising from this contract or as regards its execution and validity (including actions brought in connection with bills and checks) will be submitted to the courts of Cologne if the Buyer is a businessman, a public law corporation or public special fund. RHEINMAGNET may also at its sole discretion seek recourse against the Buyer before the courts at the Buyer’s registered place of business.
16.4 The legal relationship between RHEINMAGNET and the Buyer is governed by the laws of the Federal Republic of Germany to the exclusion of uniform private international law and in particular the U.N. Convention on the International Sale of Goods. The in rem effects of retention of title and the complementary provisions contained in paragraph 9 of these Terms & Conditions of Sale will be determined by the law of the jurisdiction in which the retained property or product is located unless the choice of German law to the exclusion of uniform private international law and the U.N. Convention on the International Sale of Goods in particular is inadmissible or invalid.
RHEINMAGNET Horst Baermann GmbH 12/2014