§ 1 Scope
(1) These Terms and Conditions of Sale, Delivery and Lease (hereinafter „Terms and Conditions”) apply – with the excep- tion of purchase of deliveries and services – for any legal transaction with RIEDELCommunications GmbH & Co. KG, Uellendahler Straße 353, 42109 Wuppertal, Germany (here- inafter “RIEDEL”) exclusively.
(2) Differing provisions of the contractual partner (hereinaf- ter “Customer”) or his general conditions and terms shall not apply, except if explicitly agreed upon in writing. This require- ment of consent also applies, for example, if RIEDEL carries out the delivery or service without any reservation.
§ 2 Conclusion of a Contract
(1) All offers from RIEDEL are subject to change and non- binding. A contract is only concluded if and when RIEDEL confirms the Customer’s binding request / offer in writing. The scope and due date of delivery are only bindingly deter- mined by RIEDEL’s written order confirmation.
(2) Drawings, dimensions, weights and other performance data stated in brochures or any other information provided to the Customer are only binding if explicitly agreed in writing. Such specifications are no warranty of features, not even if they are standard specifications such as the DIN standard.
§ 3 Prices, Payment Terms
(1) Unless otherwise stipulated in the order confirmation, the prices specified within the order confirmation are valid as per current price list of RIEDEL plus value added tax at the appli- cable statutory rate, any other possible taxes (withholding tax etc.), customs or any other applicable fees, and costs for packaging and freight. These costs, charges, taxes, customs and other duties shall be borne by the Customer.
(2) Customer agrees to indemnify and hold RIEDEL harmless against any and all administrative instructions by any State or jurisdiction where Customer performs his activities, as well as any judgment holding the Customer liable for withholding taxes on its payments. The Customer will indemnify RIEDEL against the full amount of the withholding taxes as well as any associated penalties or interest.
(3) Deliveries and services are subject to the precondition that there are no obstacles due to national or international regu- lations, in particular export control regulations as well as em- bargoes or other sanctions (cf. § 8).
(4) Any information provided by RIEDEL in an offer respec- tively the order confirmation regarding expenses for person- nel and material depend on the timeline specified in the offer or order confirmation, respectively. The Customer is aware that any changes to the timeline may lead to an adaption of personnel and material costs.
(5) The daily rate for personnel covers a maximum of 10 work- ing hours, including any travel and break times. Overtime hours are billed separately.
(6) If the delivery time specified by RIEDEL in the offer may only be met by way of express delivery due to delayed com- missioning by the Customer, any additional costs arising for such express delivery shall be borne by the Customer. The same applies if RIEDEL is only able to meet the agreed deliv- ery time by way of express delivery due to unforeseen or in- evitable difficulties, such as powers of nature, or strikes. Such additional costs will be billed separately.
(7) RIEDEL reserves the right to adjust prices to a reasonable extent in the event of cost reductions or cost increases occur- ring following conclusion of the contract, in particular as a re- sult of tariff agreements or increase in material prices. Evi- dence of changed costs shall be provided to Customer upon request.
(8) The price is due and payable net within 10 days from the date of the invoice. However, RIEDEL shall be entitled at any time, even within the framework of an ongoing business rela- tionship, to execute a delivery or service in whole or in part only against advance payment.
(9) In the event Customer exceeds the due date for payment, interest in the amount of 9 percentage points above the re- spective base interest rate p.a. shall accrue. RIEDEL reserves all rights to claim further damages for delay as well as a lump sum compensation for collecting delayed payments in the amount of 40,00 EUR.
(10) Customer shall be entitled to offset only insofar as the Customer’s counterclaim is undisputed or assessed in a le- gally binding judgment and if such claim is based on the same transaction.
§ 4 Date of Delivery, Sub-Contractors
(1) The date of delivery is non-binding, unless otherwise ex- plicitly stipulated as fixed date in the order confirmation.
(2) Delivery is conditioned upon timely and proper perfor- mance of all duties of the Customer and upon clarification of all technical questions.
(3) RIEDEL is authorized to employ subcontractors to provide its services.
§ 5 Passing of Risk
(1) Unless otherwise stipulated in the order confirmation, de- livery of goods shall be performed FCA Wuppertal (INCO- TERMS 2000).
(2) Besides, the risk of accidental loss and accidental deterio- ration of the goods shall pass to the Customer upon handover at the latest. In the case of a sale by delivery, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the freight for- warder, carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. The handover shall be deemed to have taken place if the Customer is in default of acceptance.
(3) If the Customer is in default of acceptance, fails to cooper- ate or if the delivery is delayed by RIEDEL for other reasons caused by Customer, RIEDEL shall be entitled to demand compensation for the resulting damage, including additional expenses (e. g. storage costs).
§ 6 Retention of Title
(1) RIEDEL retains title until all present and future payments arising from the purchase contract and current business rela- tionship (secured claims) with the Customer have been set- tled.
(2) Customer is obliged to handle the goods with due care. Customer has to insure all goods against fire and water dam- ages as well as theft on his own expense.
(3) Customer shall immediately inform RIEDEL in writing if the goods become subject of distrait or any other encum- brances of third parties. In this event, RIEDEL is entitled to immediately claim repossession of the goods.
(4) Customer shall be authorized until further notice to resell goods in course of his regular business. In case of conclusion of a contract with a third party the Customer hereby assigns all claims arising out of such resale in the sum of the final in- voice amount (including value-added tax). RIEDEL hereby ac- cepts such assignment. Notwithstanding RIEDEL’s right to claim direct payment, Customer shall be entitled to receive the payment on the assigned claims. RIEDEL agrees not to demand payment on the assigned claims to the extent the Customer complies with all his obligations for payment.
(5) RIEDEL undertakes to release securities upon Customer’s request insofar as the securities exceed the security claim by more than 10 %.
§ 7 Warranty (in case of sale)
(1) In case of material defects RIEDEL will, at RIEDEL’s sole discretion, remedy the defects or deliver a conforming good. (2) In case RIEDEL and Customer agreed upon an additional Service Level Agreement (SLA), all provisions therein are considered to be specific regarding the supplementary per- formance (the SLA shall not exclude secondary claims such as compensation for damages).
(3) The warranty period for goods in mint condition is two years starting from the day of delivery, for wear parts (e.g. with battery components) one year.
In case of used goods, the warranty granted by RIEDEL from the date of delivery of the goods depends on the age of the equipment:
(3.1) Device age 1-2 years: 2 years warranty;
(3.2) Device age 2-4 years: 1 year warranty;
(3.3) Device age 5 years or older: no warranty.
(4) The customer's claims for defects are subject to the Cus- tomer having complied with his statutory inspection and no- tification obligations (§§§ 377, 381 HGB). If a defect becomes apparent during delivery, inspection or at any time thereaf- ter, RIEDEL must be notified immediately in writing. In any case, obvious defects must be reported in writing within 2 working days of delivery and defects not visible during the in- spection within the same period of time after discovery. If the Customer fails to properly inspect the goods and/or report defects, RIEDEL's liability for defects not reported, not re- ported in time or not reported properly is excluded in accord- ance with the statutory provisions.
(5) The warranty is void in case Customer opens or alters the product without prior written consent of Riedel.
§ 8 Export
(1) The Customer is responsible for ensuring that any required import, export and freight licences etc. are available. Accord- ingly, the Customer undertakes to provide all information, documents, approvals and certificates required for export, import or shipment without delay at his own expense.
(2) If there are delays in the provision of services due to the aforementioned procedures and measures (approval, exami-
nation or information procedures, etc.), the deadlines and de- livery dates shall be postponed accordingly, unless RIEDEL is solely responsible for this delay.
(3) If parts of the service should then become legally impossi- ble, the contract shall be considered as not concluded in this respect. The remaining part shall continue to exist, unless the Customer proves that the remaining part is no longer of inter- est to him. The Customer has no claims or rights due to a de- lay or because of a complete or partial cancellation of the contract.
(4) RIEDEL shall be released from its performance obligations if any legally binding notices, directives or statutory or other public law provisions oppose the fulfilment. This applies in particular for export control, import control and embargo or quota regulations as well as foreign exchange restrictions. The same applies for agents and suppliers if employed by RIEDEL.
§ 9 Liability
(1) In case of damages to life, body or health as well as dam- ages under the terms of the German Product Liability Act RIEDEL shall be liable according to statutory law.
(2) For any other damages in case of breach of any contrac- tual obligations RIEDEL shall be liable as provided below: (2.1) In case of fraudulent intent, intent or gross negligence of RIEDEL’s legal representatives or executive employees, RIEDEL shall be liable according to statutory law.
(2.2) In case of damages caused by negligent breach of fun- damental contractual obligations (1. alternative) as well as for damages caused by intent or gross negligence of RIEDEL’s vi- carious agents without breach of fundamental contractual obligations (2. alternative) RIEDEL’s liability shall be limited to the typical damage. Fundamental contractual obligations are duties being a prerequisite for enabling the proper fulfil- ment of the contract. All other liability for slight negligence shall be excluded.
(2.3) RIEDEL shall not be liable for any loss of profit, indirect damages, consequential damages and any other possible claims of third parties, e.g. in case of a breakdown of data lines.
(2.4) RIEDEL shall not be liable for damages or delays of the delivery of the goods which have been exposed to an export to a country outside of Germany (so-called export control risk) unless the Customer can prove that the damage cannot be related to the import-related official measures and RIEDEL is to be held responsible for it.
(3) For any other damages not due to a breach of contractual obligations, RIEDEL’s liability shall be limited to damages caused by intent or gross negligence of RIEDEL’s legal repre- sentatives or executive employees.
(4) RIEDEL shall not be liable for claims for damages in con- nection with the purchase of used goods - irrespective of their legal basis - unless RIEDEL, its legal representative or agent have grossly negligently or intentionally violated their obliga- tions.
(5) Any liability not expressly provided for above shall be dis- claimed.
§ 10 Force Majeure
RIEDEL shall be relieved from its contractual obligations in cases of force majeure. Force majeure applies in particular, but not limited to, in cases of war, flood, natural catastrophes as well as in any other cases where incidents are beyond con- trol of RIEDEL, e.g. water ingress, power blackout and dis- connection or destruction of data-carrying conductions.
§ 11 Modification of material contractual circumstances
(1) RIEDEL shall have the unilateral right to terminate the agreement with the Customer if a change in the applicable laws, e.g. resulting from the withdrawal of the United King- dom from the European Union (Brexit), leads to a fundamen- tal change in the contractual circumstances. Fundamental changes shall include, but are not limited to circumstances: (1.1) where the contractually obliged provision or receipt of services is rendered impossible;
(1.2) where the continuation of the contract would place a substantial and significant financial burden on RIEDEL. A sub- stantial and significant burden is generally inferred when the contractual costs increases by at least 10 percent;
(1.3) where the performance of the contract would be against the then applicable competition law.
(2) In any event, RIEDEL shall be entitled to impose on the Customer all costs caused by the Customer as a result of the withdrawal of the United Kingdom from the European Union, in particular the costs of importing and exporting a delivery to the United Kingdom for the Customer.
§ 12 Jurisdiction, Applicable Law
(1) Exclusive place of jurisdiction and place of performance is Wuppertal, unless otherwise stipulated in the order confirma- tion.
(2) The relationship between RIEDEL and Customer shall be governed by the laws of the Federal Republic of Germany ex- cluding the United Nations Convention on Contracts for the International Sale of Goods (CISG), the Hague Uniform Laws on the Sale of Goods and the Vienna Convention on Contracts for the International Sale of Goods.
Special Provisions applicable to Leases and the Provision of Additional Services.
In addition to the Terms and Conditions provided for above the following provisions shall apply to the lease of equipment (hereinafter “Leased Equipment”) and (when applicable) to the provision of additional services:
§ 13 Terms of Lease
RIEDEL reserves the right to provide the Customer with a functionally equivalent Lease Equipment instead of the or- dered Lease Equipment.
§ 14 Careful Handling of Leased Equipment
(1) Customer shall treat the Leased Equipment diligently and carefully and shall retain the original case used for delivery of the Leased Equipment.
(2) Customer is only entitled to sublet or otherwise cede the Leased Equipment to any third party with the prior written consent of RIEDEL. Even if such consent has been obtained, the customer remains responsible for any fraudulent or neg- ligent behavior of the third party when using the Leased Equipment.
(3) Repairs by Customer or his authorized representative re- garding the Leased Equipment are only allowed upon prior written consent of RIEDEL.
(4) Customer shall not be allowed to carry out alterations of any kind to the Leased Equipment or to open it. In case of an alteration any costs for restoration to the original site shall be borne by the Customer.
§ 15 Device-Specific Provisions
(1) If the Leased Equipment is about radio equipment these radio sets will be delivered with pre-selected frequency un- less otherwise agreed.
(2) Transfer and use of Leased Equipment abroad shall only be allowed upon RIEDEL’s prior written consent.
(3) Fees and costs according to the fulfilment of governmen- tal requirements shall be borne by Customer.
(4) Customer shall be responsible for all aspects of an event where the Leased Equipment is used and shall obtain all nec- essary official approvals if required.
§ 16 Term of Lease and Return of Leased Equipment
(1) The term of the contract is stipulated in the order confir- mation.
(2) Either party may terminate the contract with immediate effect for cause by way of written declaration to the respec- tive other party. Good cause is given for RIEDEL in particular in case of repeatedly delayed payments by the Customer, if the Customer enters into insolvency proceedings or other- wise fails to fulfil his obligations under the contract despite having received a warning by RIEDEL.
(3) The Customer undertakes to return at his own expense the Leased Equipment cleaned, in original condition and in the original case in which the Leased Equipment was initially de- livered, after the lease ends. The return is only possible dur- ing RIEDEL’s business hours.
(4) If the Customer does not return the Leased Equipment upon the end of lease RIEDEL reserves the right to claim the stipulated or usual rent as loss-of-use indemnification for the duration of the delayed return.
(5) If the customer loses or breaks the Leased Equipment or for any other reason is not able to return it to RIEDEL upon the end of the lease, the applicable list price will be invoiced to the Customer.
§ 17 Legal consequences in case of withdrawal from the Lease Agreement prior to the start of the Lease Period
(1) If a Customer withdraws from the contract before the be- ginning of the lease period, the Customer must make propor- tionate payments to the following extent, unless otherwise agreed in the order confirmation:
(1.1) up to 3 months before the beginning of the lease period: no payment is due
(1.2) 3 months to one month before the beginning of the lease: 50 percent of the originally agreed lease price.
(1.3) one month to 10 days before the beginning of the lease: 80 percent of the originally agreed lease price
(1.4) from 10 days before the beginning of the lease, a with- drawal by the customer is excluded and the full lease price must be paid.
(2) If the Customer withdraws from the contract due to force majeure and if the acceptance of partial services is still possi- ble, the remuneration can be reduced by the portion for the services not rendered. The Customer must prove the impos- sibility of accepting services and/or partial services.
§ 18 Warranty (in case of Lease)
(1) If, at the beginning of the lease period, during an obliga- tory inspection or at any time thereafter, a defect in the leased property becomes apparent, RIEDEL must be notified immediately in writing. In any case, obvious defects must be reported in writing within 2 working days from the beginning of the lease period and defects not visible during the inspec- tion within the same period from the time of discovery. If the Customer fails to properly inspect the goods and/or report defects, RIEDEL's liability for defects not reported, not re- ported in time or not reported properly is excluded in accord- ance with the statutory provisions.
(2) Warranty and liability for damages which were present at handover (Sec. 536a of the German Civil Code) shall be dis- claimed unless RIEDEL acted deliberately or with gross negli- gence.
(3) Warranty period is one year starting from the end of the year when the entitlement was established and the Customer became aware of the circumstances justifying the claim or was able to acquire such knowledge without gross negli- gence.
§ 19 Additional Services (e.g. Provision of Personnel and Assembling)
(1) In case RIEDEL takes on additional services according to the order confirmation, e.g. the provision of personnel or as- sembling, RIEDEL shall only provide the services explicitly stipulated in the order confirmation.
(2) In case of assembling and setup, Customers must duly per- form all preliminary works at the place of performance that are necessary for RIEDEL to fulfil its services without undue delay and under adequate working conditions. RIEDEL shall not be obliged to check equipment made available by Cus- tomer.
(3) If assembling, setup and start-up are delayed due to rea- sons beyond RIEDEL’s control, Customer undertakes to bear any costs incurred according to the current price list of RIEDEL.
(4) RIEDEL shall provide its services with the diligence of a prudent businessman and according to the state-of-the-art. As a basic principle, contractual work services are not subject to the contract.
(5) Unless otherwise agreed, RIEDEL shall be free to appoint any individual to provide the required services. While choos- ing the personnel RIEDEL will reasonably take the Customer’s interests into account.
§ 20 Data Protection
If the provision of additional services by RIEDEL is connected with the processing of personal data of Customer (e.g. in case of video surveillance on behalf of customer), the parties con- clude the data processing agreement provided by RIEDEL for this purpose.