General Terms and Conditions (GTC)

General Terms and Conditions (GTC) of R&R-BETH GmbH – version 08/2013

I. General

1. The following General Terms and Conditions (GTC) apply to all contracts concluded by R&R-BETH GmbH for deliveries and services.
2. The GTC apply to persons who, when concluding the contract, act in the exercise of their commercial or self-employed professional activity (entrepreneurs), as well as to legal entities under public law or special funds under public law.
3. The GTC also apply to all future business relations, even if they are not referred to again or agreed again.
4. Any confirmations by the contracting party with reference to its own general terms and conditions are hereby expressly rejected. If our order is confirmed by the contracting party in a manner deviating from our GTC, only our GTC shall nevertheless apply, even if we do not object. Deviations shall apply only if expressly confirmed by us in writing.

II. Contract Content

1. Unless special agreements have been made, the contractual declarations underlying the contract (order, order confirmation, declaration of acceptance) must be in writing.
2. Offers submitted by R&R-BETH GmbH in response to general inquiries are non-binding unless expressly confirmed as binding.
3. Agreements with employees of R&R-BETH GmbH become binding and part of the contract only after written confirmation by one of the managing directors of R&R-BETH GmbH.
4. Documents belonging to an offer, such as illustrations, drawings, weight and dimensional data, are only approximate unless expressly designated as binding.
5. R&R-BETH GmbH reserves ownership and copyright in samples, cost estimates, drawings and similar information of a tangible or intangible nature; they may not be made accessible to third parties. R&R-BETH GmbH undertakes to make information and documents designated as confidential by the contracting party accessible to third parties only with the contracting party’s consent.
6. Any building permits and other permits required under public law, such as an operating permit, must be obtained by the contracting party. R&R-BETH GmbH shall not be liable for missing or non-granted permits nor for the continued validity of a granted permit.

III. Prices

1. The prices stated in an offer by R&R-BETH GmbH apply subject to the condition that the order data underlying the submission of the offer, in particular drawings and design plans, remain unchanged.
2. All prices stated by R&R-BETH GmbH are ex works. They do not include the costs of loading, packaging, freight, insurance, customs, border costs and unloading. VAT shall be added at the applicable statutory rate. Invoicing is in euros.
3. R&R-BETH GmbH reserves the right, in the case of contracts with an agreed delivery time of more than four months from the conclusion of the contract, to increase prices in accordance with cost increases occurring after conclusion of the contract, in particular increases in material prices. If such an increase exceeds 5% of the agreed price, the contracting party has a right of termination, provided that the extension of the delivery time is not due to its request or otherwise attributable to it.
4. Changes in the scope of deliveries and services requested by the contracting party after conclusion of the contract, as well as additional services due to process-related changes, shall be remunerated separately. This also applies to additional services and modifications of already completed plant components.

IV. Payment

1. In the absence of special agreements and payment deadlines stated in the offer, the remuneration owed under the contract shall be paid without any deduction as follows:
   – 30% upon receipt of the order confirmation,
   – 60% upon delivery, and
   – 10% after commissioning, but no later than two weeks after the transfer of risk.
2. Deviating from clause 1, R&R-BETH GmbH is entitled to demand an advance payment from the contracting party with respect to the remuneration owed under the contract if Euler Hermes Kreditversicherung-AG or a comparable insurer refuses to conclude credit insurance in relation to the remuneration owed by the contracting party to R&R-BETH GmbH; refusal by one insurer is sufficient.
3. A cash discount (skonto) is granted by agreement.
4. All invoices of R&R-BETH GmbH must be paid within 21 calendar days from the invoice date. Payment shall be deemed made only when R&R-BETH GmbH can dispose of the amount.
5. In the event of default in payment by the contracting party, R&R-BETH GmbH is entitled to declare immediately due all outstanding receivables from the business relationship at that time, including deferred receivables and those for which bills of exchange or cheques exist, and to withhold further deliveries and services until full settlement of all receivables. Agreed delivery periods shall be extended accordingly. In addition, R&R-BETH GmbH is entitled, with a corresponding extension of delivery periods, to suspend further production for orders not yet fully executed.
6. If the contracting party is in default of payment for more than 5 calendar days, R&R-BETH GmbH is entitled to demand advance payment and to withhold outstanding deliveries and services until the advance payment is made.
7. The contracting party is entitled to withhold payments or set off counterclaims only insofar as its counterclaims are demonstrably undisputed or have been finally adjudicated. A right of retention exists only with respect to claims arising from the same contractual relationship. In the case of defective delivery or service, the contracting party may not withhold payment of an amount corresponding to the value of the defective delivery or service; its right of retention is limited to the amount corresponding to the reduced value caused by the defect.

V. Delivery

1. Delivery periods or dates are binding only if expressly confirmed by R&R-BETH GmbH in writing.
2. Written confirmed delivery periods begin with the conclusion of the contract, but not before all commercial and technical issues between the parties have been clarified and not before the contracting party has fulfilled its obligations, such as providing required official certificates or permits and making due payments.
3. The delivery period is deemed met if, before its expiry, the item(s) to be delivered have left the R&R-BETH GmbH works or the contracting party has been notified that the goods are ready for dispatch.
4. If an unavoidable event occurs, such as strikes or lockouts, as well as delays or failures at suppliers, the delivery period shall be extended or the date postponed accordingly.
5. If, as a result of an unavoidable event, in particular the events mentioned in clause 4, a delivery or service by R&R-BETH GmbH becomes impossible, R&R-BETH GmbH is entitled to withdraw from the contract in whole or in part.
6. Deliveries are ex works. The risk of accidental loss or accidental deterioration passes to the contracting party upon handover to the carrier, at the latest upon leaving the works. If dispatch is delayed after notification of readiness for dispatch by more than one working day for reasons for which R&R-BETH GmbH is not responsible, the risk passes upon expiry of the working day following the notification of readiness for dispatch.
7. Dispatch shall be carried out by a forwarder/carrier to be selected by R&R-BETH GmbH unless otherwise agreed. R&R-BETH GmbH is not liable for the selection of the forwarder/carrier or for packaging unless a legal representative or vicarious agent of R&R-BETH GmbH acts with intent or gross negligence.
8. If dispatch is delayed at the request of the contracting party, the contracting party shall bear the storage costs incurred after expiry of the working day following the notification of readiness for dispatch. If stored at the R&R-BETH GmbH works, storage costs amount to 0.017% of the invoice value of the stored items per calendar day.
9. R&R-BETH GmbH shall be in default of fulfilling a contractual obligation only if the contracting party has set a grace period of at least 14 days. This also applies if a binding delivery period or date has been agreed. After default occurs, the contracting party may claim a delay compensation of a maximum of 0.5% for each full week, but in total no more than 5% of the value of the delayed delivery or service. Damages for non-performance are limited to the order value. These limitations of liability do not apply if the legal representatives or executive employees of R&R-BETH GmbH acted intentionally or with gross negligence.
10. R&R-BETH GmbH is entitled to withdraw from the contract in whole or in part and to claim damages for non-performance if the contracting party, after notification of readiness for dispatch, is in default for more than two weeks with acceptance of the items ready for delivery, issuing the dispatch order, fulfilling its payment obligations or providing agreed security, and R&R-BETH GmbH has set the contracting party a written grace period of at least two weeks with the warning that it will withdraw from the contract after expiry of the grace period without result. R&R-BETH GmbH has the right, without prejudice to claiming a higher actual loss, to demand 20% of the remuneration owed under the contract as damages without proof of loss. The contracting party is entitled to prove that no loss or a substantially lower loss was incurred.

VI. Retention of Title

1. R&R-BETH GmbH retains title to all delivered goods until full settlement of all liabilities of the contracting party arising from the existing business relationship.
2. The contracting party is obliged to insure the goods owned by R&R-BETH GmbH against damage caused by theft, fire, water or breakage, and to assign the insurance claims to R&R-BETH GmbH. If the contracting party fails to provide immediate proof of such insurance upon request by R&R-BETH GmbH, R&R-BETH GmbH is entitled to take out insurance itself. The costs incurred shall be reimbursed by the contracting party.
3. The contracting party may neither sell, lend, pledge nor transfer by way of security any goods subject to retention of title. In the event of seizure, attachment or other disposition by a third party, the contracting party must inform R&R-BETH GmbH immediately.
4. As long as retention of title exists in favor of R&R-BETH GmbH, the delivered item subject to retention of title, an item manufactured from it, or a new item created by combination, may neither be sold nor encumbered without the consent of R&R-BETH GmbH. In the event of resale, the contracting party hereby assigns to R&R-BETH GmbH, by way of security, all claims from the resale, together with all ancillary rights, against its contracting partner (third-party debtor) up to the amount of the invoice, with authorization to collect the claim proportionately.
5. In the event of default in payment, R&R-BETH GmbH is entitled to repossess the delivered goods subject to retention of title, and the contracting party is obliged to surrender them. However, based on the retention of title, R&R-BETH GmbH may only make use of the demand for surrender if it has withdrawn from the contract. The costs associated with repossession shall be borne by the contracting party.
6. If an application is filed to open insolvency proceedings over the assets of the contracting party, R&R-BETH GmbH is entitled to withdraw from the contract and demand immediate return of the item delivered.

VII. Installation / Assembly

1. The contracting party must support the installation personnel of R&R-BETH GmbH at its own expense during installation.
2. The contracting party must take the measures necessary at the installation site to protect persons and property. It must inform the installation manager of R&R-BETH GmbH of existing safety regulations insofar as they are relevant to the installation personnel. It shall notify R&R-BETH GmbH of violations of such safety regulations by installation personnel. In the event of serious violations, the contracting party may, in consultation with the installation manager, deny the offender access to the installation site.
3. The contracting party is obliged, at its own expense, to provide technical assistance, in particular the following:
   – installation of components to be provided by the customer,
   – creation of installation openings and resealing,
   – lightning protection and grounding devices,
   – consumables such as electricity, gas, water and lubricants,
   – disposal of residual and old material as well as unusable lubricants,
   – construction work such as foundations, floor channels, sealing of penetrations and insulation work,
   – all masonry, roofing, carpentry, electrical and plumbing work as well as provision of scaffolding, crane and lifting vehicles, loading and unloading equipment and on-site transport,
   – sound and thermal insulation measures, spark and fire extinguishing systems and equipment as well as automatic shut-off valves,
   – elimination of fire risk for required welding and grinding work through proper preparation of work areas, as well as maintaining a постоян fire watch during welding/grinding and for 24 hours after completion,
   – additional equipment required under the Major Accidents Ordinance (Störfallverordnung),
   – deionization devices against static charges, noise level and emission measurements,
   – provision of necessary dryers and lockable rooms for storage and safeguarding of components and tools.
4. The contracting party’s technical assistance must ensure that installation can begin immediately after arrival of the installation personnel and can be carried out without delay until acceptance by the contracting party. If special plans or instructions of the contracting party are required for installation, it shall provide them to R&R-BETH GmbH in due time.
5. If the contracting party fails to meet its obligations, R&R-BETH GmbH is entitled to perform the actions incumbent on the contracting party in its place and at its expense. In all other respects, the statutory rights and claims of R&R-BETH GmbH remain unaffected.
6. If a binding installation period is agreed (requiring written confirmation by R&R-BETH GmbH), it is deemed met if installation by R&R-BETH GmbH has been completed before its expiry and a notice of completion has been sent to the contracting party.
7. If installation is delayed due to circumstances for which R&R-BETH GmbH is not responsible, the contracting party shall grant a reasonable grace period; this also applies if such circumstances occur after R&R-BETH GmbH has fallen into default. The costs arising from the delay shall be borne by the contracting party.
8. The contracting party is obliged to accept the installation as soon as it has been notified of its completion. If acceptance is delayed without fault of R&R-BETH GmbH, acceptance is deemed to have occurred one week after notification of completion.
9. R&R-BETH GmbH shall remedy installation defects at its own expense. This does not apply if the defect is insignificant for the contracting party’s interests or is attributable to circumstances for which the contracting party is responsible.
10. If an installation part supplied by the contracting party is damaged due to fault of R&R-BETH GmbH during installation, it shall be repaired at R&R-BETH GmbH’s expense.
11. In the event of damage to or loss of devices and tools provided by R&R-BETH GmbH during transport to the installation site or at the installation site, the contracting party is obliged to compensate the resulting loss insofar as R&R-BETH GmbH is not at fault. Damage attributable to normal wear and tear is disregarded.

VIII. Claims for Defects

1. The contracting party must inspect the goods delivered by R&R-BETH GmbH immediately after delivery and notify R&R-BETH GmbH of any apparent defects without undue delay in accordance with §§ 377, 378 of the German Commercial Code (HGB). Notice of apparent defects must be given by the contracting party in writing and must be received by R&R-BETH GmbH no later than the end of the 5th working day after delivery.
2. In the case of manufacture according to drawings or instructions of the contracting party, R&R-BETH GmbH is liable only for conformity of the plant components (delivered goods) with the drawings or instructions.
3. Cracks occurring in fireclay bricks or refractory linings and refractory cement are physically inherent and do not constitute a defect.
4. Defects that existed or were inherent at the time risk passed shall be remedied by R&R-BETH GmbH, at its choice, by repair or replacement delivery. Replaced parts become the property of R&R-BETH GmbH.
5. For purchased goods, in particular units of the electrical system and hydraulics that are not manufactured by R&R-BETH GmbH, R&R-BETH GmbH handles defect claims by assigning its defect claims against the supplier to the contracting party. In this case, the contracting party may demand repair or replacement from R&R-BETH GmbH only if the supplier delays unreasonably or is unable to perform.
6. For the repair and/or replacement deemed necessary by R&R-BETH GmbH, the contracting party must, after consultation with R&R-BETH GmbH, grant the required time and opportunity; otherwise R&R-BETH GmbH is released from liability for the consequences arising therefrom. Only in urgent cases endangering operational safety or to prevent disproportionately large damage, the contracting party has the right to remedy the defect itself or through third parties and to demand reimbursement of necessary expenses from R&R-BETH GmbH; the contracting party must notify R&R-BETH GmbH immediately and, if possible, before remedying the defect.
7. If a defect complaint proves unjustified, the contracting party shall bear the costs incurred by R&R-BETH GmbH as a result of the complaint.
8. If only an insignificant defect exists, the contracting party is entitled only to a reduction of the price. Otherwise, the right to reduce the price is excluded.
9. No liability is assumed by R&R-BETH GmbH particularly in the following cases: unsuitable or improper use, faulty installation or commissioning by the contracting party or third parties, natural wear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable ground, chemical, electrochemical or electrical influences—provided these are not attributable to R&R-BETH GmbH.
10. For damage not occurring to the delivered item itself, R&R-BETH GmbH is liable—regardless of the legal basis—only
    – in cases of intent,
    – in cases of gross negligence by the legal representatives of R&R-BETH GmbH and its executive employees,
    – in cases of culpable injury to life, body or health,
    – in cases of defects fraudulently concealed by the legal representatives of R&R-BETH GmbH and its executive employees,
    – in cases of defects of the delivered item insofar as liability exists under the Product Liability Act for personal injury or property damage to privately used items.
11. In the event of culpable breach of essential contractual obligations, R&R-BETH GmbH is also liable in cases of gross negligence by non-executive employees and in cases of slight negligence. In cases of liability for slight negligence, liability is limited to the damage typical of the contract and reasonably foreseeable.
12. Further claims are excluded.

IX. Limitation Period

All claims of the contracting party are time-barred 12 months after the transfer of risk. The claims mentioned in section VIII.10 are time-barred in accordance with statutory limitation periods. Statutory periods also apply to defects of a building or to delivered items that were used for a building in accordance with their usual use and caused its defectiveness.

X. Applicable Law, Place of Performance, Jurisdiction

1. All legal relationships between R&R-BETH GmbH and the contracting party are governed exclusively by the law of the Federal Republic of Germany applicable to legal relationships between domestic parties.>
2. The place of performance for all contractual obligations of R&R-BETH GmbH and the contracting party is Bad Lobenstein.
3. The exclusive place of jurisdiction for all disputes arising from the contract and in connection with the contract is Bad Lobenstein.
4. If individual clauses of these GTC are wholly or partially invalid, this does not affect the validity of the remaining clauses. The statutory provision shall apply instead.

R&R-BETH GmbH