1. General

The following sales and delivery terms and conditions apply to all our services, deliveries, contracts, and offers. They apply to all present and future business transactions with the customer. For the purposes of these terms and conditions, the customer is exclusively considered a business entity in accordance with § 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB). Our sales and delivery conditions are the sole terms that apply. Deviating, conflicting, or supplementary terms and conditions of the customer do not become part of the contract, even if we are aware of them unless their validity is explicitly agreed upon in writing. Additionally, verbal collateral agreements or the complete or partial exclusion of our sales and delivery conditions, as well as warranty and assurance statements by us or our employees, require written confirmation for legal effectiveness. The requirement for consent stated in this paragraph applies in all cases, even if we carry out the delivery to the customer unconditionally while being aware of the customer's terms and conditions. The written form requirement also applies to the waiver of the written form requirement as regulated herein.

For the interpretation of these General Sales and Delivery Conditions, the German version shall prevail, even if translations of these sales and delivery conditions are provided to the customer or signed by the parties.

2. Offers

Our offers are non-binding and subject to change. This also applies if we have provided the customer with catalogs, technical documentation (e.g., calculations, estimations, references to DIN standards), other product descriptions, or documents, including in electronic form. The customer's order of the goods is considered a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within two weeks of its receipt by us. The acceptance of the customer's offer can be made either in writing (e.g., through an order confirmation) or by delivering the goods to the customer.

3. Prices and Payment Terms

Unless otherwise agreed upon in individual cases, our prices in effect at the time of contract conclusion apply (net) plus applicable statutory value-added tax. Our agreed compensation is due for payment upon delivery (according to clause 4 of these sales and delivery conditions) of the consideration owed by us. Payment by check or bill of exchange is not permitted unless expressly agreed otherwise; these means of payment are accepted only on a conditional basis. The customer is only entitled to set-off or retention rights to the extent that their claim has been legally established or is undisputed. In the case of defects in the delivery, the customer's counterclaims, in particular, remain unaffected in accordance with clause 5 of these sales and delivery conditions.

If it becomes evident after the conclusion of the contract (e.g., through an application for the opening of insolvency proceedings) that our claim for remuneration is endangered due to the customer's lack of solvency, we are entitled, in accordance with the statutory provisions, to refuse performance and, if necessary, to withdraw from the contract (§ 321 of the German Civil Code, BGB). In contracts for the manufacture of unique items (custom-made products), we can declare withdrawal immediately; the statutory regulations regarding the dispensability of setting a deadline remain unaffected.

4. Shipping, Transfer of Risk, and Delayed Delivery

Unless otherwise agreed in writing, our deliveries are made unpacked EX WORKS in accordance with INCOTERMS 2020. If we are unable to meet binding delivery deadlines for reasons beyond our control (non-availability of the service), we will inform the customer immediately and provide the new expected delivery deadline. If the service is still not available within the new delivery deadline, we are entitled to partially or completely withdraw from the contract; any consideration already provided by the customer will be promptly refunded. Non-availability of the service occurs, for example, in the event of untimely self-supply by our supplier if we have concluded a congruent cover transaction, in the case of other disruptions in the supply chain due to force majeure, or if we are not obliged to procure in individual cases. In any case, a reminder by the customer is necessary to trigger our delay in delivery, which is otherwise determined by statutory provisions.

5. Claims and Complaints for Defects

The customer's rights in the event of material and legal defects (including incorrect and incomplete delivery) are governed by the statutory provisions unless otherwise specified below.

The basis of our liability for defects is primarily the agreement made regarding the nature and intended use of the goods. If nothing has been agreed in this regard, it shall be determined according to the statutory regulations whether a defect exists or not. We are generally not liable for defects that the customer is aware of at the time of contract conclusion or negligently unaware of (§ 442 of the German Civil Code, BGB).

If the customer is a merchant, their claims and complaints for defects also require compliance with their statutory inspection and notification obligations (§§ 377, 381 of the German Commercial Code, HGB). The complaint must be made in writing. If the customer is entitled to subsequent performance and a reasonable deadline set by the customer has expired unsuccessfully or is dispensable according to statutory provisions, the customer may, according to the statutory provisions, withdraw from the contract or reduce the price. However, there is no right to withdraw in the case of a minor defect.

6. Retention of Title

Until full payment of all our current and future claims arising from the respective orders and an ongoing business relationship (hereinafter also referred to as "secured claims"), we retain ownership of the delivered goods (hereinafter also referred to as "reserved goods"). The inclusion of individual claims in a current account or the drawing of a balance and its recognition does not nullify the retention of title. If our liability is established in connection with the customer's payment obligation, such as in the case of liability through bills of exchange, the retention of title remains in effect until all bills of exchange issued by the customer as the drawee have been redeemed.

The customer is obligated to handle the reserved goods with care. Until full payment, the customer must insure the reserved goods against all risks of damage and provide us with proof of insurance upon request. The customer hereby assigns to us, by way of security, any claims they may have against the insurance company resulting from an insurance claim, up to the amount of the outstanding debt; we accept the assignment. At the same time, the customer authorizes us to notify the insurer of the assignment.

The reserved goods may not be pledged to third parties or transferred as security until full payment of the secured claims. The customer must immediately notify us in writing if an application for the initiation of insolvency proceedings is filed or if any third-party claims (e.g., seizures) are made against the goods owned by us. In the event of the customer's contractual breach, especially non-payment of the due remuneration, we are entitled, in accordance with the statutory provisions, to withdraw from the contract and/or demand the return of the goods based on the retention of title. The demand for return does not simultaneously constitute a declaration of withdrawal; rather, we are entitled to only demand the return of the goods while reserving the right to withdraw. We may exercise these rights only if the customer has failed to make the due remuneration and we have previously set the customer a reasonable payment deadline without success, or if such a deadline is dispensable according to statutory provisions.

Until further notice, the customer is authorized, subject to the following provisions in lit. (c), to resell and/or process the reserved goods in the ordinary course of business. In this case, the following additional provisions apply:

(a) The retention of title extends to the products resulting from the processing, mixing, or combining of our goods to their full value, and we are deemed the manufacturer. If, in the case of processing, mixing, or combining with goods belonging to third parties, their ownership rights remain in effect, we acquire co-ownership in proportion to the invoiced values of the processed, mixed, or combined goods. In all other respects, the same provisions that apply to the goods delivered under retention of title shall also apply to the resulting products.

(b) The customer hereby assigns to us, by way of security, any claims arising from the resale of the reserved goods or the products, in their entirety or up to the amount of our possible co-ownership share as specified in the preceding paragraph. We accept the assignment. The obligations of the customer specified in paragraph 3 of this clause 6 also apply with regard to the assigned claims.

(c) The customer remains authorized, in addition to us, to collect the assigned claims. We undertake not to collect the claims as long as the customer fulfills their payment obligations towards us, is not in default of performance, and we do not assert the retention of title by exercising a right in accordance with paragraph 4 of this clause 6. However, if this is the case, we may demand that the customer informs us of the assigned claims and their debtors, provides all necessary information for collection, hands over the associated documents, and notifies the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the customer's authorization to further sell or process the goods subject to retention of title.

(d) If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice upon the customer's request.

7. Liability

Our contractual and non-contractual liability is governed by the statutory provisions. We are liable for damages and expenses – regardless of the legal basis – only in cases of intent and gross negligence, within the scope of statutory liability. In the event of ordinary negligence, we are liable only if no statutory liability limitations apply (e.g., care in our own affairs; insignificant breach of duty), and only:

(a) for damages resulting from injury to life, body, or health,

(b) for damages resulting from a breach of a material contractual obligation, i.e., an obligation whose fulfillment is essential for the proper execution of the contract and on which the contracting party regularly relies or may rely; in this case, our liability is limited to the compensation for the foreseeable and typically occurring damage.

The liability limitations resulting from the above paragraph 2 also apply to breaches of duty by persons whose negligence we are liable for under statutory provisions. They do not apply in the case of mandatory statutory liability provisions. They particularly do not apply if a defect has been fraudulently concealed or if a guarantee for the quality of the goods has been assumed, as well as for your claims under the Product Liability Act.

If the customer is responsible for product damage, they are obliged to indemnify us upon first demand for any claims for damages by third parties. The customer may only withdraw or terminate the contract for a breach of duty that does not constitute a defect if we are responsible for the breach of duty. The customer's right of termination (in particular, in accordance with §§ 650, 648 of the German Civil Code) is excluded. The statutory requirements and consequences apply in all other respects.

8. Loading Equipment

Loading equipment (e.g., pallets) will be charged at cost if they are not returned free of charge within 14 days after delivery to the customer. Sales and delivery conditions of Resch GmbH & Co. KG as of 01.06.2022

9. Reconditioning

In the case of reconditioning, the customer is not entitled to the return of the same packaging, but only to similar packaging of the same type that has been refurbished.

Special provisions for industrial packaging/IBCs

Industrial packaging/IBCs handed over to us must be emptied according to the state of the art (i.e., drip-free, clean, and/or free of residue). If the industrial packaging/IBCs contained toxic and/or strongly smelling substances, or substances classified as transport category 0 according to RN 10011.4 Amendment Regulation to ADR or substances according to No. 2.3 "Carcinogenic and Mutagenic Substances" of the Technical Instructions on Air Quality Control of February 27, 1986, based on the most recent classification of carcinogenic substances (Class 1 and 2 according to the Hazardous Substances Ordinance and TRGS 905), they must be chemically neutralized or pretreated and be free of product and odor. Rinsed industrial packaging/IBCs must be clearly marked as such by the sender. The following substance classes according to ADR are excluded from acceptance: Class 1, 2, 6.2, and 7.

10. Jurisdiction, Choice of Law, Place of Performance

For these sales and delivery conditions and the contractual relationship between us and the customer, the law of the Federal Republic of Germany applies, excluding the provisions of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG). If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes directly or indirectly arising from the contractual relationship is our place of business in Schwerte. The same applies if the customer is an entrepreneur within the meaning of § 14 of the German Civil Code. However, in all cases, we are also entitled to file a lawsuit at the place of performance of the delivery obligation according to these sales and delivery conditions or a priority individual agreement or at the general place of jurisdiction of the customer. Priority statutory provisions, in particular regarding exclusive jurisdictions, remain unaffected.

Consent Management Platform by Real Cookie Banner