REO Delivery Conditions
Conditions of sale and delivery
§ 1 scope
For all deliveries of the
REO-USA, Inc.
8450 E 47th St
Indianapolis, IN 46226
USA
as well as their affiliated companies worldwide
– hereinafter referred to as “REO” –
The present conditions apply exclusively, unless something else has been expressly agreed.
§ 2 General Commissions
(1) For the legal relationships between REO and the customer in connection with the deliveries and / or services (hereinafter: deliveries), these general terms and conditions of sale and delivery apply exclusively. General terms and conditions of the customer only apply to the extent that REO has expressly consented to them in writing. The mutually consistent written declarations are authoritative for the scope of the deliveries.
(2) REO reserves its property and copyright exploitation rights without restriction to cost estimates, drawings and other documents (hereinafter: documents). The documents may only be made accessible to third parties with the prior consent of REO and must be returned immediately upon request if REO is not awarded the order. Sentences 1 and 2 apply accordingly to the purchaser’s documents; However, these may be made available to third parties to whom REO has authorized deliveries.
(3) The customer has the non-exclusive right to use standard software and firmware with the agreed performance features in unchanged form on the agreed devices. The customer may make a backup copy of the standard software without an express agreement.
(4) Partial deliveries are permissible as long as they are reasonable for the customer.
(5) The term “claims for damages” in these general terms and conditions of sale and delivery also includes claims for reimbursement of wasted expenses.
§ 3 prices, terms of payment and offsetting
(1) The prices are in € ex works excluding packaging plus the applicable statutory sales tax, subject to change. If the quantities of material are specifically identified, the additional price required on the day of the order confirmation will arise according to the official, published notifications. If the products to be delivered contain copper, a copper base of € 1.53 / kg is included in the price. The current copper value is calculated on the day the order is placed with the applicable MK value + 10% processing surcharge. This value can be used for max. 1 year. Calls made after the end of the year of the fixed period will be recalculated with the applicable MK note + 10%.
(2) According to the EC antitrust decision for iron and steel, REO is entitled to charge an Fe surcharge from 01.01.1983. The amount of this surcharge is adjusted at regular intervals to reflect the current shopping situation. The surcharge is currently between 4 and 4.5%.
(3) The Price Clause Act (PreisKlG) of 14.09.2007 applies to all contracts. For contracts that were concluded before the law came into force, the previous regulations of the Price Indication and Price Clause Act (PrAKG) and the Price Clause Ordinance (PrKV) apply.
(4) Should costs change or the list prices change by the delivery day, REO expressly reserves the right to correct prices.
(5) If REO has taken over the installation or assembly and nothing else has been agreed, the customer bears all necessary ancillary costs, such as travel and transport costs and allowances, in addition to the agreed remuneration.
(6) Payments are to be made free REO paying agent. Unless otherwise agreed, invoices are payable within 30 days of the invoice date. If payment is made within 10 days of the invoice date, REO pays a 2% discount, whereby it is expressly pointed out that copper surcharges are not discountable.
Shipping to unknown customers only takes place against prepayment.
(7) The customer can only set off claims that are undisputed or have been legally established.
(8) REO will only take back transport packaging if it is returned “carriage paid”.
§ 4 retention of title
(1) The objects of the deliveries (reserved goods) remain the property of REO until all claims to which it is entitled against the customer from the business relationship have been fulfilled. If the value of all security interests to which REO is entitled exceeds the amount of all secured claims by more than 20%, REO will release a corresponding part of the security interests at the request of the customer; REO is entitled to choose between different security rights when approving.
(2) During the existence of the retention of title, the purchaser is prohibited from pledging or assignment by way of security and reselling is only permitted to resellers in the normal course of business and only on the condition that the reseller receives payment from his customer or makes the reservation that the property belongs to the customer is only transferred when the latter has fulfilled his payment obligations.
(3) If the customer resells the goods subject to retention of title, he already now assigns his future claims from the resale against his customers with all ancillary rights – including any balance claims – to REO as a precaution, without the need for further special declarations. If the reserved goods are resold together with other items without an individual price having been agreed for the reserved goods, the customer shall assign that part of the total price claim to REO that corresponds to the price of the reserved goods invoiced by REO.
(4) a) The customer is permitted to process the reserved goods or to mix or combine them with other items. The processing is done for REO. The customer shall store the new item for REO with the care of a prudent businessman. The new item is regarded as reserved goods.
b) REO and the purchaser already now agree that in the event of connection or mixing with other items that do not belong to REO, REO is in any case entitled to co-ownership of the new item to the extent of the proportion of the value of the connected or mixed reserved goods at the value of the remaining goods at the time of connection or mixing. The new item is considered to be reserved goods.
c) The provision on the assignment of claims according to No. 3 also applies to the new item. However, the assignment is only valid up to the amount corresponding to the value invoiced by REO for the processed, combined or mixed reserved goods.
d) If the customer connects the goods subject to retention of title with real estate or moveable items, he shall, without the need for further special declarations, also his claim, which he is entitled to as remuneration for the connection, with all ancillary rights in the amount of the ratio of the value of the connected goods retained to the other connected goods at the time of connection to REO.
(5) Until further notice, the customer is authorized to collect assigned claims from the resale. If there is an important reason, in particular in the case of default in payment, suspension of payments, opening of insolvency proceedings, bill protest or justified indications of over-indebtedness or impending insolvency of the customer, REO is entitled to revoke the customer’s authorization to collect. In addition, after prior warning, REO can disclose the assignment of security, utilize the assigned claims and demand that the customer disclose the assignment by way of security within a reasonable period of time.
(6) In the event of seizures, confiscations or other dispositions or interventions by third parties, the customer must notify REO immediately. If a legitimate interest is substantiated, the customer must immediately provide REO with the information required to assert his rights against the customer and hand over the necessary documents.
(7) In the event of a breach of duty by the purchaser, in particular in the event of default in payment, REO is entitled to withdraw from the contract in addition to taking back the goods after the unsuccessful expiry of a reasonable deadline set for the purchaser; the statutory provisions on the dispensability of setting a deadline remain unaffected. The purchaser is bound to the publishing. The withdrawal or the assertion of the reservation of title or the seizure of the reserved goods by REO does not constitute a withdrawal from the contract, unless the REO has expressly stated this.
§ 5 Deadlines for Deliveries; default
(1) Compliance with deadlines for deliveries presupposes the timely receipt of all documents to be supplied by the purchaser, necessary permits and releases, in particular of plans, as well as compliance with the agreed terms of payment and other obligations by the purchaser. If these requirements are not met in a timely manner, the deadlines will be extended accordingly; This does not apply if REO is responsible for the delay.
(2) Failure to meet deadlines is due to
a) force majeure, eg B. mobilization, war, acts of terrorism, riot or similar events (eg strike, lockout),
b) Virus and other attacks by third parties on REO’s IT system, insofar as these were carried out despite compliance with the usual care for protective measures,
c) Obstacles due to German, US American and other applicable national, EU or international regulations of foreign trade law or due to other circumstances for which REO is not responsible, or
d) Failure to deliver REOs on time or properly,
the deadlines are extended accordingly.
(3) Delivery dates are adhered to as guaranteed as far as possible. Compensation for late delivery cannot be granted unless it is agreed in the offer or confirmation according to the deadline and amount.
(4) Both claims for damages by the purchaser due to delay in delivery and claims for damages instead of performance that go beyond the limits specified in No. 3 are excluded in all cases of delayed delivery, including any delivery deadline set after REO has expired. This does not apply if there is liability in cases of willful intent, gross negligence or injury to life, limb or health. The purchaser can only withdraw from the contract within the framework of the statutory provisions if REO is responsible for the delay in delivery. A change in the burden of proof to the detriment of the customer is not associated with the above regulations.
(5) Upon request by REO, the customer is obliged to declare within a reasonable period of time whether he is withdrawing from the contract due to the delay in delivery or whether he insists on delivery.
(6) If dispatch or delivery is delayed by more than one month after notification of readiness for dispatch at the request of the customer, the customer may be entitled to a storage fee of 0.5% of the price of the delivery items for each additional month commenced, up to a maximum of 5%. , be calculated. The contracting parties are at liberty to provide evidence of higher or lower storage costs.
§ 6 Transfer of Risk
(1) The risk is transferred to the purchaser as follows, even in the case of carriage paid delivery:
a) in the case of delivery without installation or assembly, if it has been dispatched or picked up. At the request and expense of the customer, the delivery will be insured by REO against the usual transport risks;
b) In the case of delivery with installation or assembly, on the day of takeover in the company’s own facility or, if agreed, after a successful trial run.
(2) If the dispatch, the delivery, the start, the implementation of the installation or assembly, the takeover in the own company or the trial operation is delayed for reasons for which the customer is responsible or the customer is in default of acceptance for other reasons, the risk goes to the customer.
§ 7 Installation and assembly
Unless otherwise agreed in writing, the following provisions apply to installation and assembly:
(1) The customer must take over at his own expense and provide in good time:
a) all earthworks, construction and other ancillary work outside the industry, including the required skilled and auxiliary workers, building materials and tools,
b) the utensils and materials required for assembly and commissioning, such as scaffolding, hoists and other devices, fuels and lubricants,
c) Energy and water at the point of use including connections, heating and lighting,
d) at the assembly site for the storage of machine parts, apparatus, materials, tools, etc., sufficiently large, suitable, dry and lockable rooms and suitable work and recreation rooms for the assembly staff, including sanitary facilities appropriate to the circumstances; In addition, to protect the property of REO and the assembly staff on the construction site, the customer must take the measures that he would take to protect his own property,
e) Protective clothing and protective devices that are necessary due to special circumstances at the assembly site.
(2) Before starting the assembly work, the customer must provide the necessary information about the location of concealed electricity, gas, water lines or similar systems as well as the necessary static information without being asked.
(3) Before the start of the installation or assembly, the supplies and objects required for the start of the work must be at the installation or assembly site and all preparatory work must have progressed so far that the installation or assembly began as agreed and without interruption can be carried out. Access routes and the installation or assembly area must be leveled and cleared.
(4) If the installation, assembly or commissioning is delayed due to circumstances for which REO is not responsible, the customer must bear the reasonable costs of waiting time and any additional travel required by REO or the assembly staff.
(5) The customer must immediately certify to REO on a weekly basis the duration of the working hours of the assembly staff and the completion of the installation, assembly or commissioning.
(6) If REO requests acceptance of the delivery after completion, the purchaser must do this within two weeks. It is the same as acceptance if the customer allows the two-week period to elapse or if the delivery has been put into use – possibly after an agreed test phase has been concluded.
§ 8 receipt
The customer may not refuse to accept deliveries due to minor defects.
§ 9 material defects
The REO is liable for material defects as follows:
(1) All those parts or services that show a material defect are to be repaired free of charge at REO’s option, to be delivered again or to be rendered again, provided that the cause was already present at the time of the transfer of risk.
(2) Claims for supplementary performance become statute-barred 12 months from the start of the statutory limitation period; The same applies to withdrawal and reduction. This period does not apply if the law prescribes longer periods in accordance with §§ 438 Paragraph 1 No. 2 (buildings and items for buildings), 479 Paragraph 1 (right of recourse) and 634a Paragraph 1 No. 2 (construction defects) BGB Willfulness, malicious concealment of the defect as well as non-compliance with a quality guarantee. The legal regulations on suspension of expiration, suspension and restart of the deadlines remain unaffected.
(3) Notices of defects by the customer must be made in writing. Complaints can only be considered if they are reported within 8 days of receipt of the shipment, stating the delivery note number. In the event of transport damage, it is imperative that the transport driver take a picture immediately.
(4) In the event of notices of defects, payments by the customer may be withheld to an extent that is reasonable in relation to the material defects that have occurred. The customer can only withhold payments if a complaint is made, the justification of which cannot be doubted. The purchaser has no right of retention if his claims for defects have expired. If the notice of defects is wrong, REO is entitled to demand reimbursement of the expenses incurred by the customer.
(5) REO is to be given the opportunity to provide supplementary performance within a reasonable period.
(6) If the subsequent performance fails, the customer can – regardless of any claims for damages in accordance with No. 10 – withdraw from the contract or reduce the remuneration.
(7) Claims for defects do not exist in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable equipment, defective construction work, unsuitable subsoil or which arise due to special external influences that are not required by the contract, as well as non-reproducible software errors. If the purchaser or a third party undertakes improper changes or repairs, there are no claims for defects for these or the consequences thereof.
(8) Claims of the customer due to the expenses necessary for the purpose of the supplementary performance, in particular transport, travel, labor and material costs, are excluded if the expenses increase because the object of the delivery is subsequently moved to a location other than the branch of the has been brought by the customer, unless the shipment corresponds to its intended use.
(9) The purchaser’s right of recourse against REO in accordance with § 478 BGB (recourse by the entrepreneur) only exists to the extent that the purchaser has not made any agreements with his customer that go beyond the statutory claims for defects. For the scope of the purchaser’s right of recourse against REO in accordance with Section 478, Paragraph 2 of the German Civil Code, No. 8 also applies accordingly.
(10) Claims for damages by the customer due to a material defect are excluded. This does not apply in the case of fraudulent concealment of the defect, non-compliance with a guarantee of quality, injury to life, limb or health and an intentional or grossly negligent breach of duty on the part of REO. A change in the burden of proof to the detriment of the customer is not associated with the above regulations. Any further claims or claims other than those regulated in this Section 9 due to a material defect are excluded.
§ 10 industrial property rights and copyrights;
Defects in title
(1) Unless otherwise agreed, REO is obliged to make the delivery free of industrial property rights and third party copyrights (hereinafter: property rights) only in the country of the place of delivery. If a third party raises justified claims against the customer due to the infringement of property rights through deliveries made by REO and used in accordance with the contract, REO is liable to the customer within the period specified in § 9 No. 2 as follows:
a) REO will, at its option and at its own expense, either obtain a right of use for the deliveries in question, change them so that the property right is not violated, or exchange them. If REO cannot do this under reasonable conditions, the customer is entitled to the statutory rights of withdrawal or reduction in price.
b) REO’s obligation to pay damages is based on § 13.
c) The aforementioned obligations of REO only exist if the customer immediately notifies REO in writing of the claims asserted by third parties, does not recognize a violation and REO reserves the right to take all defense measures and settlement negotiations. If the customer ceases to use the delivery in order to reduce damage or for other important reasons, he is obliged to point out to the third party that the cessation of use does not constitute an acknowledgment of an infringement of property rights.
(2) Claims by the customer are excluded if he is responsible for the infringement of property rights.
(3) Claims by the purchaser are also excluded if the infringement of property rights is caused by special specifications by the purchaser, by an application not foreseeable by REO or by the fact that the delivery is changed by the purchaser or used together with products not supplied by REO.
(4) In the event of infringement of property rights, the provisions of § 9 No. 4, 5 and 9 apply accordingly to the claims of the customer regulated in No. 1a).
(5) If there are other legal defects, the provisions of Section 9 apply accordingly.
(6) Any further claims or claims other than those regulated in this § 10 by the customer against REO and its vicarious agents due to a legal defect are excluded.
§ 11 Reservation of Performance
(1) The fulfillment of the contract is subject to the proviso that there are no obstacles due to German, US or other applicable national, EU or international regulations of foreign trade law as well as no embargoes or other sanctions.
(2) The customer is obliged to provide all information and documents that are required for export, shipment or import.
§ 12 impossibility; Contract adjustment
(1) If delivery is impossible, the customer is entitled to claim damages, unless REO is not responsible for the impossibility. However, the purchaser’s claim for damages is limited to 10% of the value of that part of the delivery that cannot be used appropriately due to the impossibility. This limitation does not apply if there is liability in cases of willful intent, gross negligence or due to injury to life, limb or health; A change in the burden of proof to the detriment of the customer is not associated with this. The right of the customer to withdraw from the contract remains unaffected.
(2) If events within the meaning of Section 5 No. 2a) – c) significantly change the economic significance or the content of the delivery or have a significant effect on REO’s operation, the contract will be appropriately adapted in good faith. If this is not economically justifiable, REO has the right to withdraw from the contract. The same applies if the required export permits are not issued or cannot be used. If REO wishes to make use of this right of withdrawal, REO must notify the customer immediately after recognizing the consequences of the event, even if an extension of the delivery time was initially agreed with the customer.
§ 13 Other claims for damages
(1) Unless otherwise regulated in these General Terms and Conditions of Sale and Delivery, claims for damages by the customer, regardless of the legal reason, in particular due to breach of obligations arising from the contractual relationship and from tort, are excluded.
(2) This does not apply if liability is as follows:
a) according to the product liability law
b) intent
c) in the event of gross negligence on the part of owners, legal representatives or executive employees
d) in the event of malice
e) in the event of non-compliance with an assumed guarantee
f) due to culpable harm to life, body or health or
g) due to the culpable violation of essential contractual obligations
(3) The claim for damages for the breach of essential contractual obligations is limited to the contract-typical, foreseeable damage, unless another of the aforementioned cases is present.
(4) A change in the burden of proof to the detriment of the customer is not associated with the above regulations.
§ 14 Place of Jurisdiction and Applicable Law
(1) The mutual place of jurisdiction for the place of payment and performance is the place of REO’s invoicing. Other conditions, in particular pre-printed purchasing conditions, only apply with an express written agreement. If, for internal reasons, the customer wishes to comply with his conditions, this will affect the prices given according to the additional costs to be incurred. With the appearance of these general sales and delivery conditions, all previous ones lose their validity.
(2) These conditions including their interpretation are subject to German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
§ 15 Binding nature of the contract
The contract remains binding in its remaining parts even if individual provisions are legally ineffective. This does not apply if adherence to the contract would represent unreasonable hardship for one of the parties.