Terms and conditions
OF RHODIUS MINERALQUELLEN UND GETRÄNKE GMBH & CO. KG
I. APPLICATION OF THE TERMS
1. The deliveries, services, and offers of Rhodius are based on these terms and conditions exclusively. They also apply to any future business relationships, even if they are not explicitly agreed again. These terms and conditions shall be deemed accepted at the latest upon receipt of the goods or services.
2. Rhodius does not accept any terms and conditions of the customer that are contrary to or deviate from these terms and conditions, except if their validity is explicitly confirmed by Rhodius in text form. The terms and conditions of Rhodius and rejection of any deviating or conflicting terms and conditions shall also apply if Rhodius performs any deliveries or services for the customer without reservation and knowing of the customer’s deviating or conflicting terms and conditions.
II. OFFER, CONCLUSION OF CONTRACT, AND TECHNICAL PROPERTIES
1. Offers from Rhodius are subject to change without notice, except if explicitly stated otherwise in them. Rhodius may accept the customer’s offers within a period of two weeks after submission. Declarations of acceptance, orders, and order confirmations must be made in text form. The delivery note or the goods invoice shall be deemed declaration of acceptance or order confirmation if Rhodius executes the order within the acceptance period.
2. The properties, in particular composition and durability of the delivered items, shall be determined exclusively by the product information printed on the respective labels and packaging. Representations or guarantees of the above product characteristics shall require text form. Characteristics of the delivered items that go beyond the product characteristics referred to above shall only be deemed agreed if this is confirmed separately by Rhodius in text form.
3. We reserve the right to change recipes, in particular to comply with changes to the food regulations.
III. EXPORT AND IMPORT
1. The customer shall ensure that the goods can be exported. It shall bear the risk of export bans at the time of entering into the agreement.
2. As far as necessary, the customer shall obtain the import permit as well as any approvals, permits, and other required documents in connection with import and any transit through third countries. It shall bear the risk of import bans.
IV. DELIVERY, PERFORMANCE OBSTACLES, PARTIAL DELIVERIES
1. Any delivery and execution deadlines shall be approximate indications and are not binding. Agreements on binding delivery dates must be made in text form. They must designate them as binding explicitly.
2. Compliance with agreed delivery deadlines shall depend on the timely receipt of all documents to be provided by the customer (e.g. labels, packaging), any required permits, information, and releases, as well as the customer’s compliance with the agreed terms of payment. If these prerequisites are not met in time, the deadlines shall be extended accordingly; this shall not apply if Rhodius is responsible for the delay.
3. We shall not be responsible for any delivery or service delays due to force majeure and due to events that make delivery or rendering of our services considerably more difficult or impossible for Rhodius, including any subsequently occurred issues in procuring materials, disruptions of operation, strikes, lockouts, personnel bottlenecks, lack of means of transport, authority orders, mobilisation, war, riot, etc., also if they occur at our suppliers, their subsuppliers or subcontractors, even if deadlines and dates were bindingly agreed. This shall entitle Rhodius to delay the delivery or service for the duration of the obstacle and a reasonable start-up time, or to withdraw from the agreement wholly or in part concerning the part not yet completed. This shall apply if they arise during a delay that has already occurred. Rhodius must inform the customer of such obstacles without undue delay. If the obstacle continues for more than three months, the customer shall have the right to withdraw from the agreement concerning to the part not yet met, to the exclusion of all other rights, after setting a reasonable grace period in text form.
4. Default on the side of Rhodius shall only occur following a reminder if this it is submitted in text form. A grace period set for subsequent performance must be reasonable. In case of doubt, a period of at least two weeks shall be deemed reasonable. Setting of a deadline shall require text form.
5. Partial deliveries and separate invoicing for them shall be permissible and cannot be refused by the customer if the remainder is still to be delivered or if the partial delivery is not without interest for the customer.
6. If Rhodius is in default, the customer may demand compensation in the amount of 0.5% of the price of the delayed delivery in total for each completed week of the delay, but not more than 5% in total, provided that it can credibly prove that it has suffered damage as a result. Both claims to damages by the customer due to delay in performance and claims to damages in lieu of performance beyond these limits shall be excluded in all cases of delayed performance, even after expiration of a performance deadline that may have been set by Rhodius. This shall not apply in cases of mandatory liability due to intent, gross negligence, or injury to life, body, or health. The customer must only withdraw from the agreement within the framework of the statutory provisions if Rhodius is responsible for the delay in performance. This does not imply any change in the burden of proof to the disadvantage of the customer.
V. SCOPE OF DELIVERY
1. The scope of delivery shall be determined by the contractual declarations made in text form.
2. We reserve the right to make technical changes due to the improvement of technology or requirements of the legislator during the delivery period, provided that the object of delivery is not significantly changed, and the changes are reasonable for the customer.
If the customer has to pay damages for non-fulfilment, Rhodius shall have the right to a flat rate of 15% of the agreed net remuneration. The customer has the right to prove that no damage has occurred at all or that the damage is considerably lower than the flat rate. Rhodius shall have the right to assert a demonstrably incurred higher damage.
VII. PACKAGING AND SHIPPING
The place of performance for any obligations concerning Rhodius shall be the registered office of Rhodius, unless otherwise agreed. The delivery shall be at the customer’s risk and expense as far as Rhodius delivers or dispatches. Rhodius shall have the right, but not the obligation, to insure deliveries in the interest and at the expense of the customer.
VIII. NOTIFICATION OF DEFECTS AND WARRANTY
1. The statutory provisions, in particular § 377 of the German Commercial Code (Handelsgesetzbuch; HGB), shall apply to notices of defects by entrepreneurs. Any other obvious defects must be reported without undue delay.
2. Representations of properties of the goods or services shall require text form. Information from in promotional literature shall be non-binding and does not constitute any warranty.
3. Deviations in the quality of the goods shall not constitute any defects in the goods, provided that they do not significantly impair use of the object of delivery for the contractually stipulated purpose when used or processed in a professional manner. Rhodius does not guarantee that deliveries are completely uniform in colour and form or that they correspond to any samples or specimens.
4. To the extent that a duly submitted notice of defects is justified, Rhodius shall have the right to make a replacement delivery at their choice if the customer is an entrepreneur. Rhodius shall not have the right to subsequent delivery of a purchase if and as far as the customer asserts claims to recourse in accordance with § 479 (1) or (2) of the German Civil Code (Bürgerliches Gesetzbuch; BGB). If the replacement delivery fails, the customer shall have the right to choose between withdrawing from the agreement or demanding a corresponding reduction of the agreed price (reduction) or, if the legal requirements for this are met, compensation for damages.
5. If the customer is an entrepreneur, the warranty period for the purchase of new goods shall be one year from delivery, except where a longer period is stipulated by law in accordance with no. 2 of §§ 438 (1) BGB (buildings or objects intended for buildings) or 479 (1) or (2) BGB (right of recourse). Warranty rights for the purchase of used goods shall be excluded if the customer is an entrepreneur.
6. If any complaint due to a defect proves to be unjustified, the customer shall be obligated to reimburse Rhodius for all expenses that it had a right to consider necessary to incur in order to process and examine the complaint due to defect.
7. Customer claims for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour, and material costs, shall be excluded if arising or increasing because the object of the delivery was taken to a different location than the place of handover, except if the transfer corresponds to the contractually agreed use.
8. The customer shall not have any recourse claims against Rhodius as far as they are based on the fact that the customer has made agreements with his buyer that exceed the legal warranty regulations.
IX. RESERVATION OF TITLE
1. The objects of the deliveries (reserved goods) shall remain the property of Rhodius until the purchasing price and all claims it is due against the customer from the business relationship have been met in full.
2. Treatment and processing of the reserved goods shall be performed for Rhodius without obligating it.
3. The customer shall only have the right and authorised to sell, combine, or mix the reserved goods in its regular, orderly course of business and on the condition that the claims described below actually pass to Rhodius. Title shall only pass to the customer’s contractual partner when the latter has met its payment obligation in full. The customer shall not have any right to dispose of the reserved goods in any other way, in particular pledging or transfer of ownership by way of collateral.
4. The customer hereby assigns all claims arising from the sale of the reserved goods or from the combination or mixing of the reserved goods with other objects (including any balance claims from current accounts) to Rhodius in the amount of the value of the reserved goods with all ancillary rights and with priority over anything else. Rhodius accepts this assignment. The value of the reserved goods shall be the amount invoiced by Rhodius plus a security surcharge of 10%. The latter shall, however, not be taken into account if violating any third-party rights.
IX. RETENTION OF TITLE (CONTINUED)
5. Rhodius revocably authorises the customer to collect the claims assigned to it in its own name for the account of Rhodius as long as it meets its obligations towards Rhodius, does not enter default of payment, and no application for the opening of insolvency or settlement proceedings has been filed. The customer shall name the debtors of the claims assigned to Rhodius to Rhodius upon its request, inform them of the assignment, provide all information about the assigned claims required for collection, and hand over the documents required for collection. Rhodius shall also be authorised to notify the debtors of the assignment.
6. If the customer enters default of payment, Rhodius shall have the right to demand return of the goods if it has unsuccessfully set a reasonable deadline for performance. Taking back or seizure of the reserved goods by Rhodius shall not constitute withdrawal from the agreement. After taking back the goods, Rhodius shall have the right to put them to best possible utilisation. The proceeds from the sale shall be credited against the customer’s liability – less reasonable costs of sale. The customer’s claim to performance shall be lost in this case.
7. If and as far as the securities present to the benefit of Rhodius exceed the claims to be secured by more than 20%, Rhodius shall release a corresponding part of the security rights at the customer’s request.
8. If any third parties access the reserved goods or other collateral, the customer shall be obligated to point out the rights of Rhodius and to inform Rhodius about the access immediately.
X. LEGAL RELATIONSHIPS WITH EMPTIES
1. Empties shall be the bottles, crates, containers, pallets, and pallet baskets provided by Rhodius.
2. The empties shall not become the customer’s property. They are only provided to it for the intended use. Any disposal of the empties contrary to the intended purpose, in particular by pledging or assignment as collateral, as well as any misuse, such as use for filling by the customer or third parties, or contamination with harmful substances, shall not be permitted.
3. The customer shall be obligated to return the empties to Rhodius immediately, at the latest three months after emptying. No credit note shall be issued if the customer returns any empties marked as the property of a third party or not corresponding to the delivered goods in shape, colour, content, size, or opening, or severely damaged or soiled. Such empties shall be made provided to the customer for collection again. If the customer does not collect such empties within 14 days, Rhodius may dispose of them. The customer shall be obligated to reimburse Rhodius for any costs and expenses incurred by Rhodius as well as for all damages in connection therewith.
4. The customer must inform his purchasers of the title in the empties in a suitable form. The customer hereby assigns any claims of the customer against a third party arising from provision of the empties or in any other manner connected to the provision of the empties are to Rhodius, which accepts this assignment. The customer shall notify Rhodius without undue delay if any third party claims the empties from itself or its customer. It shall take all measures necessary for release.
5. The customer shall be obligated to return the empties immediately upon termination of the business relationship, without the need for a special request.
6. Empties must be returned carriage paid to Rhodius, Burgbrohl site. Returned empties shall be credited to the oldest outstanding empties.
XI. INVOICING OF THE EMPTIES
1. In order to secure title in the empties and to secure the claim to return, a deposit shall be charged in the amount of the deposit value of all empties not yet returned by the customer. The deposit may be paid in instalments for larger deliveries and ongoing business relations. The deposit payment shall not affect the obligation to return the empties. The customer’s claims to return of the deposit can only be assigned to third parties with the consent of Rhodius.
2. A separate deposit account shall be kept for the deposit paid by the customer. Rhodius shall inform the customer about the balance of the deposit account with each invoice. If the customer does not object within one month, the notified balance shall be deemed accepted.
3. The final settlement of the deposit account shall be made immediately upon termination of the business relationship, and otherwise six months after the last order. Rhodius shall have the right to offsetting against a credit balance on the deposit account with all counterclaims to which it is entitled against the customer from the business relationship.
XII. PROMOTIONAL MATERIAL/EQUIPMENT/TAP AND COOLING TECHNOLOGY
Promotional material, equipment as well as tap and cooling technology provided to the customer on loan shall be the inalienable property of Rhodius and shall be returned to Rhodius within seven working days upon request or at termination of the business relationship, or shall be paid for at the purchasing price.
The purchaser shall only have any s claims to damages or compensation for expenses made in vain in accordance with the following provisions. They shall be excluded in all other respects.
As far as nothing else results from these GTC, including the following provisions, Rhodius shall be liable for violation of contractual and non-contractual obligations in accordance with the relevant legal regulations. Rhodius shall be liable for damages – for whatever legal reason – in cases of intent and gross negligence. In cases of simple negligence Rhodius shall only be liable
- for damage from injury to life, body, or health,
- for damage from more than inconsiderable violation of an essential contractual obligation (obligation that must be met to permit proper execution of the contract and on the compliance with which the contracting partner regularly relies and may rely on); in this case, however, Rhodius’ liability shall be limited to replacement of the foreseeable damage typical for the contract.
The limitations of liability from the preceding paragraph shall not apply if Rhodius fraudulently concealed the defect or has assumed a guarantee for the quality of the object of delivery.
The same shall apply to any claims of the customer under the Product Liability Act (Produkthaftungsgesetz).
Subject to deviating provisions in these general terms and conditions, Rhodius’ liability for production downtimes, loss of profit, loss of use, loss of contract, or any other consequential or indirect damage is excluded.
The customer may only withdraw from the agreement due to any breach of obligations that does not comprise a defect if Rhodius is responsible for the breach of obligations. As far as Rhodius’ liability is excluded or limited, this shall also apply to its employees, workers, representatives, and vicarious agents.
XIV. TERMS OF PAYMENT, OFFSETTING
1. Prices quoted towards consumers shall include the statutory value added tax, and towards customers who are not consumers excluding statutory value added tax as applicable at the respective time. If the contracting parties do not agree on individual prices, the price lists of Rhodius applicable at the time of placement of the order shall apply.
2. The remunerations for services and other work shall also be based on the price lists of Rhodius that are valid at the time the order is placed. These will be submitted on request of the customer or can be viewed by it in the business premises of Rhodius.
3. The purchasing price and any other fees shall be due for payment upon delivery of the object of delivery. Deduction of discount shall only be permissible if explicitly agreed in writing. Deduction of an agreed cash discount for new invoices shall not be permitted if any older due invoices are still pending payment.
4. Deviating agreements regarding due date and deductions shall require text form.
5. If the customer is in default of payment, Rhodius shall have the right to make further deliveries to the customer only against advance payment, without any prejudice to its further rights.
6. Any cheques and bills of exchange shall only be considered payment after they have been redeemed. Acceptance of a bill of exchange shall always require prior agreement in text form. If any bills of exchange are accepted, bank interest and charges shall be borne by the customer and charged to it. They shall be payable in cash immediately.
7. Default of payment shall occur immediately in the event of culpable non-redemption of direct debits, cheques, or bills of exchange. Rhodius shall have the right – subject to assertion of a damage exceeding this – to charge an amount of EUR 20.00 per non-redemption for which Rhodius is responsible. The customer has the right to prove that no damage has occurred at all or that the damage is considerably lower than the flat rate.
8. The customer must only offset its own claims if such claims are undisputed or have been finally established. The same shall apply to the exercise of retention rights, except if the retention right is due to intentional or grossly negligent breach of the agreement by Rhodius. Furthermore, the customer must only assert any right of retention as far as its rights are based on the same contractual relationship as the claims of Rhodius against which the customer asserts the rights in question.
XV. DATA PRIVACY
Please note that the data necessary in the context of the business transaction are processed and stored by means of an EDP system in accordance with § 33 of the Federal Data Protection Act (Bundesdatenschutzgesetz). The data are collected, processed, and used within the scope of the business transaction. The text of the contract is not stored in electronic business transactions.
XVI. PLACE OF PERFORMANCE, PLACE OF JURISDICTION
1. In the absence of any agreement to the contrary, the place of performance for any obligations of the contractual partners shall be Burgbrohl.
2. If the customer is an entrepreneur, legal entity under public law, or public-law investment fund, or if it has no general place of jurisdiction in Germany, the exclusive place of jurisdiction shall be Burgbrohl for any disputes arising from the contractual relationship. Beyond this, Rhodius shall be entitled to initiate legal steps against the customer at its general place of jurisdiction.
3. These terms and conditions and the entire legal relationship between the contracting parties shall be subject to the law of the Federal Republic of Germany, subject to exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).