General Terms and Conditions of Dipl.-Ing. Herwarth Reich GmbH

General Terms and Conditions of Delivery and Payment

§ 1 Scope

These general terms and conditions of delivery and payment shall applyexclusively. Any Purchaser's terms and conditions which may be inconsistentherewith shall be of no effect.

§ 2 Offers and Orders

1. All offers and orders shall be valid only for the binding period statedtherein and are otherwise without engagement.

2. No order shall be deemed to be accepted unless it has been confirmedin writing by the Supplier. The Supplier's written acknowledgement oforder shall govern the actual scope of supply. Revisions, supplementsor oral agreements shall also be subject to written acceptance by theSupplier.

3. All offers, drawings or other information shall remain the Supplier'sproperty and copyright and shall not be disclosed to any third party. The Supplier agrees not to disclose drawings or information classified asconfidential by the Purchaser to any third party without the Purchaser'sexpress permission.
The Purchaser shall accept full responsibility for information, templates, patterns, samples and the like which are provided by himself.

§ 3 Scope of Supply

The Supplier's written acknowledgement of order shall govern the actualscope of supply, or, in the absence of a timely acknowledgement of order, theSupplier's offer with the proviso that a time limit on acceptance shall havebeen stated therein and that the offer shall have been accepted in due time.Subagreements and/or revisions shall be subject to written confirmation by the Supplier.

§ 4 Prices and Terms of Payment

1. Unless otherwise specifically stated, the prices shall be understood exworks including in-house loading but exclusive of packing and exclusiveof the legal value-added tax imposed in the country concerned.

2.The prices quoted in the offers and acknowledgements of order shall bebased upon the costs in effect at the date of submission of the offer un-less fixed prices have been agreed.
Any new rise occurring in the costs of raw materials, subcontractedproducts, wages, taxes, dues, attestations, fees, etc. up to the date ofdelivery and making the goods to be supplied more expensive, either direct or indirect, shall be at the Purchaser's expense, except where the Purchaser cannot pass the rising costs on or where less than 4 monthslie between order and delivery.
Prices of previous or current orders shall not be binding for follow-uporders.

3. Unless otherwise specifically stated, payment shall be made cash, freeSuppliers' paying bank, as follows:
a) Cash without any discount not later than 30 days from date of invoice or cash less 2 % discount within 10 days from date of in-voice.
b) Mere wage labour such as assembly costs and freight costs shallbe payable immediately on receipt of invoice without discount.

4. Withholding of payments or offsetting on account of any Purchaser's counterclaims, the rightfulness of which is contested by the Supplier,shall not be acceptable.

5. Failure to observe the agreed dates of payment shall entitle the Sup-plier, without prejudice to his other legal rights, to charge a default fee equal to the bank interest and charges in effect on open business cred-its while he shall be under no obligation to serve a special reminder.

6. Where the Purchaser fails to fulfil his liability to pay or fails to meet hiscommitments arising out of the property retention clause, the entire re-maining debt, even including bills with later maturities, shall become duefor payment.

7. In the event of cancellation of the contract, the fixed price less directcosts of that portion of work which still needs to be conducted by the Supplier for completion of the products on order, shall become immediately due for payment.

8. The costs incurred by cancellation or rescission of a contract shall besettled immediately on receipt of invoice.

§ 5 Delivery Time

1. The delivery time shall commence with the posting of the acknowledgement of order, but not before the procurement of documents, permissions, releases to be obtained by the Purchaser and/or before receipt of the agreed payment on account, if any.

2. The delivery time shall be deemed to have been adhered to when thegoods to be supplied have left the works or when readiness for despatch has been advised before its expiration.

3. The delivery time shall be reasonably extended in the event of industrialstrife, and strikes and lock-outs in particular, or in the event of any unforeseen circumstances outside the Supplier's control as far as such circumstances have an evidenced, substantial effect on completion or delivery of the goods to be supplied. The same shall apply to unforeseencircumstances encountered by subcontractors.
The Supplier shall neither be liable for the aforesaid circumstances evenif they occur when progress of work is already delayed. The Supplieragrees to notifv the Purchaser of the commencement and cessation ofany important unforeseen circumstances as soon as possible.

4. Where the Purchaser sustains a loss that is attributable to a delay theSupplier is responsible for, the former shall be entitled to claim penaltyto the exclusion of any further claims. The penalty shall amount to ½ %of the value of the complete scope of supply for each full week of delaybut shall not exceed a total of 5 % as a maximum.

5. Where despatch is delayed on the Purchaser's request, he shall becharged for the costs incurred by storage or, where storage is at theSupplier's works, for not less than ½ % of the invoiced amount for eachmonth of storage, commencing 1 month following the advice of readiness for despatch.
The Supplier shall nevertheless be entitled to dispose otherwise of thegoods to be supplied after he shall have fixed a reasonable deadlineand after fruitless expiration of the same and to supply the Purchaserwithin a reasonably extended period of time.

6. Adherence to the delivery time is conditioned upon the Purchaserfulfilling his contractual duties.

7. Any subsequent modifications requested by the Purchaser shall suspend the delivery time pending clarification of the said modificationswhereupon the delivery time shall be reinstated.

§ 6 Transfer of Risk and Receipt of Goods

1. The risk shall be transferred to the Purchaser on despatch of the goodsto be supplied at the latest, even if partial deliveries are executed or ifthe Supplier is still bound to other commitments such as assumption ofthe despatch costs or implementation of transport and/or assembly.
The Supplier shall insure the consignment against theft, breakage,transit, fire and water damages and any other insurable risks on thePurchaser's request and at his expense.

2. Where despatch is delayed due to circumstances the Purchaser isresponsible for, the risk shall be transferred to the Purchaser on the dayof readiness for despatch; the Supplier shall, however, take out the in-surance policies requested by the Purchaser at the expense of the latter.

3. Delivered goods, even if they incorporate minor defects, shall be accepted by the Purchaser without prejudice to the rights arising out of thewarranty liability.

4. Partial deliveries shall be admissible.

5. Despatch-related nonconformities shall be reported to the Supplier inwriting immediately on receipt of the goods.

§ 7 Property Retention

1. It is agreed that title and right of possession to the goods supplied shallremain with the Supplier until all payments arising out of the contractand business relations have been received. The Purchaser shall neitherput the goods supplied in pawn nor pledge them as security. In theevent of seizure, confiscation or other third party decrees, he shall beobliged to notify the Supplier immediately thereof. Any behaviour of thePurchaser that may be contrary to the terms of contract including anydelay in payment in particular, shall entitle the Supplier to recover thegoods supplied after his having served a reminder and shall oblige thePurchaser to hand them over. Vindication of the property retention rightand/or seizure of the goods supplied by the Supplier shall not bedeemed as revocation of the contract.

2. Where Supplier's goods are combined with other components to form acomplete system, it shall be taken for granted that the Purchaser transfers the pro rata coownership to the Supplier in the sense of § 947 article 2 BGB and keeps the system portion concerned in safe custody onthe Supplier's behalf.
The Purchaser shall insure the goods supplied against all pertinent risksthroughout the property retention period with the proviso that the Supplier shall be entitled to the rights arising out of the insurance contracton a pro rata basis. Policy and premium receipt shall be presented tothe Supplier on demand.

3. Where the Purchaser in turn alienates the system in the ordinary courseof business, either through installation of the system supplied or other-wise, he shall be obliged to notify the subsequent purchaser of the existing property retention in accordance with the foregoing article and tobind him accordingly.

4. The Supplier shall be entitled to insure the goods supplied against theft,breakage, fire, water and other damages at the Purchaser's expenseunless the Purchaser provides evidence that he has taken out the insurance policy by himself.

§ 8 Testing

All goods are submitted to a thorough dimensional and overall inspection atthe Supplier's work before despatch. Parts ordered for acceptance by aclassification society or acceptance authority are handled in accordance withtheir standards. The corresponding costs incurred shall be at the Purchaser'sexpense.

§9Liability for Defects in Goods Supplied

The Supplier shall be liable for defects in goods supplied, including absenceof any explicitly assured properties, to the exclusion of further claims andwithout prejudice to the provisions contained in § 9, subsection 4, as follows:

1. All those parts shall be repaired or replaced free of charge at the Supplier's own discretion which have proved to be inoperative or significantly affected in their operativeness within 6 months from testing as aresult of circumstances which occurred prior to the transfer of risk, particularly due to faulty design, substandard material or workmanship. Anysuch defects found shall be immediately reported to the Supplier inwriting. Replaced parts become the Supplier's property.
If despatch, assembly or commissioning is delayed without the Supplier's fault, liability shall expire not later than 12 months following thetransfer of risk.
For important subcontracted products, the Supplier's liability shall belimited to assignment of the liability claims which he is holding againstthe supplier of the subcontracted products except where gross negligence on the Supplier's behalf or an assured property is involved.

2. The Purchaser's right to enforce claims by reason of defects shallbecome stale in any case 6 months from the date of prompt notificationof complaint but on expiration of the warranty period at the earliest.

3. No warranty claims shall be accepted for damage caused by:
improper or inexpert application, faulty assembly and/or repair by the Purchaser or any third party, normal wear and tear, wrong or careless handling, unsuited operating materials, substitute materials, inadequate site preparations, unsuited foundations, chemical, electrotechnical or electrical influences except where the said damage is due to a Supplier's fault.

4. The Purchaser, following an agreement with the Supplier, shall give thelatter reasonable time and opportunity for enabling implementation of allrepairs and replacements deemed to be necessary at the Supplier'sown discretion, as otherwise the Supplier shall be absolved of his liability for defects. It is only in emergencies when reliability of operation is atrisk or when disproportionately large damages need to averted, of whichthe Supplier shall be informed immediately, or when the Supplier is indelay with the rectification of a defect, that the Purchaser shall be entitled to rectify the defect either by himself or to have it rectified by a thirdparty and to claim reimbursement of the reasonable costs incurred fromthe Supplier.

5. Out of the direct costs incurred by repair and/or replacement, the Supplier shall bear the costs of the replacement part including despatch andreasonable removal and installation costs, provided that the complaintproves to be justified, and, in addition, the costs for making his assembly staff and assistants available, if the latter may be fairly expected onaccount of the given circumstances. Any other costs shall be at the Purchaser's expense.

6. The warranty period for replacement parts and/or repairs is 3 monthsbut shall by no means terminate before expiration of the original warranty period for the goods supplied. The liability period for defects ingoods supplied shall be extended by the time for which operation wassuspended due to the repair work.

7. Alterations or repairs conducted inexpertly by the Purchaser or any thirdparty and without the Supplier's prior permission shall absolve the Supplier of any liability for consequences arising therefrom.

8. Further claims of the Purchaser, and especially claims for compensationof damages which have not occurred directly on the goods supplied,shall be excluded.
The foregoing exclusion of liability shall not apply to wilful acts or grossnegligence on behalf of the owner or his executives or to negligent infringement of important contractual duties.
In the event of negligent infringement of important contractual duties,the Supplier shall be liable only for the reasonably foreseeable damagethat is typical of the contract except where wilful acts or gross negligence on behalf of the owner or his executives are involved.
The exclusion of liability shall neither apply to those cases where theproduct liability law stipulates liability for injury to persons or damage toproperty on privately used objects in the event of defects in goods supplied, nor shall it apply in the event of absence of any explicitly assuredproperties when it was just this assurance that was aimed at securing the Purchaser against damages occurring not directly on the goods supplied.

9. Where the goods supplied cannot be used by the Purchaser as providedfor in the contract due to the Supplier's fault and as a result of nonperformance or faulty execution of proposals and/or consultations, beforeor after conclusion of the contract, or of any other contractualsubagreements, and instructions for operating and maintaining thegoods supplied in particular, the foregoing provisions contained in § 7and § 9 shall apply accordingly to the exclusion of further claims by thePurchaser.

§ 10 Purchaser's Right of Revocation, Rescission and other Supplier's Liabilities

1. The Purchaser shall be entitled to revoke the contract where complete performance becomes finally impossible for the Supplier prior to the risk of transfer which shall also include inability of the Supplier. The Purchaser may also revoke the contract where products of the same kindare on order and where execution of part of the delivery becomes impossible due to the quantity involved or where he has a lawful interest inthe rejection of a partial delivery; the Purchaser, if he refrains from rejection, shall be entitled to reduce the consideration accordingly.

2. Where performance is delayed in the sense of § 5 of the terms andconditions of delivery, the Purchaser shall be entitled to revocation afterhe shall have granted the Supplier failing to complete within the contractual period a reasonable extension of time with the specific statement that acceptance of the performance would be rejected following expiration of the said extension and when the said extension has expired after all.

3. If the impossibility occurs during default of acceptance or due to aPurchaser's fault, the latter shall remain liable to consideration.

4. The Purchaser shall also be entitled to revoke the contract when the Supplier, after having been granted a reasonable extension of time forrepair or replacement in conjunction with a defect he is responsible forin the sense of the terms and conditions of delivery, lets the said extension pass to no avail due to his fault. The Purchaser's right of revokingthe contract shall also be enforceable in all other events of repair or replacement failures on behalf of the Supplier.

5. Any further claims of the Purchaser, and especially claims for termination or impairment of value or for compensation of damages of whatever nature including those which have not occurred directly on the goodssupplied, shall be excluded.
The foregoing exclusion of liability shall not apply to wilful acts or grossnegligence on behalf of the owner or his executives or to negligent infringement of important contractual duties.
In the event of negligent infringement of important contractual duties, the Supplier shall be liable only for the reasonably foreseeable damagethat is typical of the contract except where wilful acts or gross negligence on behalf of the owner or his executives are involved.
The exclusion of liability shall neither apply to those cases where the product liability law stipulates liability for injury to persons or damage toproperty on privately used objects in the event of defects in goods supplied, nor shall it apply in the event of absence of any explicitly assuredproperties when it was just this assurance that was aimed at securingthe Purchaser against damages occurring not directly on the goodssupplied.

§ 11 Supplier's Right of Revocation

In the event of unforeseen circumstances in the sense of § 5 subsection 3 ofthe terms and conditions of delivery, the Supplier shall be entitled to revokethe contract in whole or in part where the said circumstances change the commercial importance or scope of performance substantially or have aconsiderable effect on the Supplier's operations or where execution turns outto be impossible at a later date.
The Purchaser shall not be entitled to claim compensation of damages by reason of such revocation. The foregoing exclusion of liability shall not applyto wilful acts or gross negligence on behalf of the owner or his executives orto negligent infringement of important contractual duties.

§ 12 Place of Performance and Venue

Any disputes arising out of the contract shall come within the jurisdiction ofthe competent court at the place of the Supplier's registered office when thePurchaser is a general merchant, body corporate or public corporation.
The Supplier shall also be entitled to institute legal proceedings at the placeof the Purchaser's registered office.

§ 13 Nonassignment of Contractual Rights

The Purchaser shall not assign his contractual rights to any third party without the Suppliers express permission.

§ 14 Governing Law

The contract shall be interpreted and governed by the laws of Germanyexcept where it may be inconsistent with imperative statutory provisions. 


Bochum, 01.08.2001



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Reich-cK puts the emphasis on cutting-edge production methods in its component manufacturing and machining processes: The ISO 9001 certified quality management system comes up with close-to-production test and inspection systems and thus warrants conformity with the performance specifications of our customers. Compliance with the documentation requirements for the components in question is ensured by certified and customer audited systems. Continual improvement is a matter of course for us: This is why we continually invest in production facilities, test and inspection equipment, and the optimization of production processes.

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