§ 1 Scope of application
For all contracts concluded by us with a customer concerning our deliveries and services as well as for pre-contractual obligations in this regard, these General Terms and Conditions (GTC) shall apply exclusively in business dealings, unless otherwise expressly agreed in writing. Other terms and conditions shall not become part of the contract, even if we do not expressly object to them. This shall also apply if we render our services to the customer without reservation in the knowledge of conflicting or deviating conditions or if we refer to them in individual correspondence.
Even if no further reference is made to this when concluding similar contracts when current business relations exist, our General Terms and Conditions shall apply exclusively in the version that can be called up by the customer at www.ref-center.com/agb when commissioned to do so, unless the contracting parties agree otherwise in writing. Upon request, the current version of the GTC shall also be sent to the customer free of charge in printed form.
These GTC only apply to entrepreneurs, legal entities under public law or special funds under public law as defined in § 310 Para. 1 BGB (German Civil Code).
§ 2 Contract Conclusion
Our offers are subject to confirmation and non-binding, unless the offer is designated as bind in writing. The customer shall be bound for three weeks by declarations to conclude contracts (contractual offers).
A legal obligation shall only come about through a contract signed by both parties or our written order confirmation, and also through the fact that we begin to provide services in accordance with the contract. We can demand written confirmations of verbal contract declarations by the customer.
§ 3 Subject matter of contract
The scope, type and quality of the deliveries and services shall be determined by the contract signed by both parties or our order confirmation, otherwise by our offer. Other information or requirements shall only become part of the contract if the contracting parties agree to this in writing or if we have confirmed it in writing. Subsequent changes to the scope of services require a written agreement or our express written confirmation.
Product descriptions, representations and technical data are performance descriptions, but no guarantees. A guarantee requires an explicit written declaration.
We reserve the right to make minor changes to services if these are insignificant changes to services that are reasonable to the customer. In particular, normal traces of use are to be accepted by the customer. This shall also apply if the customer refers to brochures, drawings or illustrations in his order, unless expressly agreed as binding quality.
§ 4 Time for performance, delays, partial performance, place of performance
Information on delivery and performance dates are non-binding unless we have designated them as binding in writing. All delivery and performance periods are subject to the correct and timely delivery of goods by our suppliers. Delivery periods begin with the dispatch of the order confirmation by us, but not before all commercial and technical questions between the customer and us have been clarified and the customer has fulfilled all obligations incumbent upon him (e.g. provision of necessary official approvals, releases or performance of agreed down payments).
Delivery and performance periods shall be extended by the period in which the customer is in default of payment under the contract, by the period in which we are prevented from delivering or performing due to circumstances for which we are not responsible, and by a reasonable start-up period after the end of the impediment. These circumstances also include force majeure, delays by our suppliers and industrial disputes. Deadlines shall also be deemed extended by the period in which the customer does not provide a cooperation service in breach of contract, e.g. does not provide information, does not create access, does not supply a provision or does not make employees available.
If the contracting parties subsequently agree on other or additional services that affect agreed deadlines, these deadlines shall be extended by an appropriate period.
Reminders and deadlines set by the customer must be in writing in order to be effective. A grace period must be reasonable. A period of less than two weeks is only reasonable in the case of special urgency.
We may render partial services if the delivered parts can be used reasonably by the customer.
Agreed delivery dates shall be deemed to have been met if the goods have been handed over to the carrier on the agreed delivery date or if we have notified the carrier that the goods are actually ready for dispatch.
If we are not (finally) supplied by our supplier themselves, although we have carefully selected him and the order meets the requirements of our delivery obligation, we shall be entitled to rescind the contract in full or in part with respect to the customer if we notify the customer of our non-supply and - to the extent permissible - offer to assign to the customer the claims to which we are entitled against the supplier.
The place of performance for training courses and consulting services shall be the place where the training or consulting is to be provided. Otherwise, our registered office shall be the place of performance.
§ 5 Packaging, Shipping, Transfer of Risk, Insurance
Our deliveries shall be packed at the customer's expense in a manner customary in the trade.
The risk shall pass to the customer as soon as the product has left our company or distribution warehouse. This also applies to partial deliveries, deliveries within the scope of subsequent performance as well as if we assume further services, such as in particular shipping costs or delivery. If a contract for work and services requires acceptance, the risk shall pass upon acceptance.
We shall select the mode of dispatch, the carrier and the transport route, unless we have received written instructions from the customer. In this selection we shall only be liable for intent or gross negligence.
At the express request of the customer, the delivery shall be insured at the customer's expense against the risks specified by the customer - insofar as this is reasonably possible for us.
§ 6 Prices, renumeration, payment, offsetting
Unless otherwise agreed by the contracting parties, all prices shall apply ex our registered office. All prices and remunerations are net prices plus the respectively applicable statutory value added tax and any other statutory levies in the country of delivery as well as plus travel costs, expenses, packaging, shipping and, if applicable transport insurance. Additional services requested by the customer will be invoiced on a time and material basis.
Unless the contracting parties have agreed otherwise, payments are due immediately after performance and receipt of the invoice by the customer without deduction and are payable within 10 days, provided that a sufficient credit limit of the commercial credit insurer is available. If the credit limit is not sufficient, we are entitled to demand payment in advance or payment via a trustee service (Paypal etc.) at our discretion.
Bills of exchange and cheques are generally not accepted, otherwise only on account of payment.
In the event of default in payment, the customer shall pay interest at the rate of eight percentage points above the base interest rate applicable at the time. This shall not affect the right to assert any further damage caused by default.
If the default of the customer lasts longer than 30 calendar days, if he has bills of exchange or cheques protested or if an application is made for the opening of insolvency proceedings against his assets or a comparable proceeding under another legal system, we shall be entitled to declare all claims against the customer immediately due and payable, to withhold all deliveries and services and to assert all rights from retention of title.
The customer may only set off claims which are undisputed by us or which have been determined to be final and absolute by a court of law. Except within the scope of § 354a HGB (German Commercial Code), the customer may only assign claims arising from this contract to third parties with our prior written consent, which may not be unreasonably withheld. The customer shall only be entitled to a right of retention or the defence of non-performance of the contract within the respective contractual relationship.
We reserve the right (if the goods or services are not to be delivered or rendered within four months after conclusion of the contract) to increase our prices accordingly if cost increases occur after conclusion of the contract, in particular due to collective wage agreements and material price increases. We will prove these to the customer upon request.
In the case of a purchase price in a foreign currency, the customer shall bear the risk of a deterioration in the exchange ratio of the currency against the Euro for the period from the conclusion of the contract.
§ 7 Reservation of ownership
Our services shall remain our property until full payment of all claims to which we are entitled from the business relationship with the customer. The claims also include cheque and bill of exchange claims as well as current account claims.
The customer is obliged to treat the goods subject to retention of title with care for the duration of the retention of title. In particular, he is obliged to insure the goods at his own expense against fire, water and theft at replacement value. The customer hereby assigns to us all compensation claims arising from this insurance. We hereby accept the assignment. If an assignment should not be permissible, the customer hereby irrevocably instructs his insurer to make any payments only to us. Further claims by us remain unaffected. Upon request, the customer shall provide us with evidence of the conclusion of the insurance policy.
The customer shall only be permitted to sell the goods subject to retention of title in the ordinary course of business. The customer is not entitled to pledge the goods subject to retention of title, to assign them by way of security or to make other dispositions which endanger our property. In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing and provide all necessary information, inform the third party of our ownership rights and cooperate in our measures to protect the goods subject to retention of title. The customer shall bear all costs for which he is responsible and which must be incurred in order to cancel the access and to recover the goods, insofar as they cannot be collected from the third party.
The customer hereby assigns to us the claims from the resale of the goods with all ancillary rights, irrespective of whether the goods subject to retention of title are resold without or after processing. We hereby accept this assignment. If an assignment should not be permissible, the customer hereby irrevocably instructs the third-party debtor to make any payments only to us. The customer is revocably authorised to collect the claims assigned to us in trust for us. The collected amounts are to be transferred to us immediately. We may revoke the customer's authorisation to collect and the customer's authorisation to resell if the customer does not properly meet his payment obligations towards us, is in default of payment, ceases payments or if insolvency proceedings are instituted against the customer's assets. A resale of the claims requires our prior consent. The customer's right to collect expires upon notification of the assignment to the third-party debtor. In the event of revocation of the right to collect, we may demand that the customer discloses the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and notifies the debtors of the assignment.
In the event that the customer's claims from the resale are included in a current account, the customer hereby also assigns to us his claim from the current account against his customer in the amount of the purchase price including value added tax agreed for the resold reserved goods.
If we assert our claims pursuant to § 6 para. 5, the customer shall grant us immediate access to the reserved goods, send us an exact list of the existing reserved goods, separate the goods for us and surrender them to us at our request.
The processing or transformation of the goods subject to retention of title by the customer shall always be carried out on our behalf. The customer's expectant right to the goods subject to retention of title shall continue in respect of the processed or transformed item. If the goods are processed, combined or mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivered goods to the other processed items at the time of processing. The customer shall keep the new goods in safe custody for us. For the rest, the same provisions as for the goods subject to retention of title shall apply to the object created by processing or transformation.
At the customer's request, we shall be obliged to release the securities to which he is entitled, insofar as the realisable value for the securities exceeds our claims arising from the business relationship with the customer by more than 10%, taking into account customary valuation discounts. The valuation shall be based on the invoice value of the goods subject to retention of title and the nominal value of claims.
In case of delivery of goods to other legal systems in which the retention of title provision under this paragraph does not have the same security effect as in the Federal Republic of Germany, the customer hereby grants us a corresponding security right. If further declarations or actions are required for this, the customer shall make these declarations and take actions. The customer shall cooperate in all measures which are necessary and conducive to the effectiveness and enforceability of such security rights.
§ 8 Contract binding and contract termination
In the event of a breach of duty on our part, the customer may only terminate the exchange of services prematurely for whatever legal reason (e.g. rescission, claim for damages in lieu of performance, termination for good cause) in addition to the statutory prerequisites under the following conditions: The customer may only terminate the exchange of services in the event of a breach of duty on our part, for whatever legal reason (e.g. rescission, claim for damages in lieu of performance, termination for good cause) in addition to the statutory prerequisites under the following conditions:
a) The breach of contract must be objected to in writing. The removal of the disturbance is to be demanded with setting of a deadline. In addition, it is to be threatened that after the unsuccessful expiry of this period no further services will be accepted with regard to the fault complained of and that the exchange of services will thus be partially or completely terminated.
b) The deadline for remedying the disturbance must be reasonable. A period of less than two weeks is only reasonable in the case of particular urgency. In the event of serious and final refusal to perform or under the other statutory conditions (§ 323 para. 2 BGB), the setting of a time limit may be waived.
c) The termination of the exchange of services (in whole or in part) due to the failure to remedy the disruption can only be declared within three weeks after expiry of this period. The period shall be suspended for the duration of negotiations.
The customer may only demand the rescission of the contract due to a delay in performance if we are solely or predominantly responsible for the delay, unless the customer cannot reasonably be expected to adhere to the contract due to the delay due to a weighing of interests.
All declarations in this context must be made in writing for order to be effective.
Termination in accordance with § 649 BGB (German Civil Code) shall remain permissible in accordance with the statutory provisions.
We may terminate the contractual relationship with immediate effect if the customer has made incorrect statements about the facts determining his creditworthiness or has finally suspended payments, or if proceedings have been instituted against him to make an affidavit unnder oath, or if insolvency proceedings or comparable proceedings under another legal system have been instituted against his assets, or if an application has been made for such proceedings to be instituted, unless the customer immediately pays in advance.