This is a translation provided for information only. Under clause 12.3, the German version of these Terms is the authoritative text.
1. General scope
1.1 All deliveries, services and offers of RLK GmbH (“RLK”) are subject exclusively to these General Terms and Conditions (“GTC”). The GTC are an integral part of all contracts concluded by RLK with its customers for the offered deliveries or services. Unless otherwise agreed, the GTC in the version valid at the time of the customer’s order or in any case in the version last notified to the customer in text form shall also apply as a framework agreement for similar future contracts without RLK having to refer to them again in each individual case.
1.2 The range of services and products offered by RLK is aimed at entrepreneurs. These GTC only apply if the customer is a natural person, legal entity or a partnership with legal capacity that is acting within its commercial or independent professional activity when concluding the contract.
1.3 Terms and conditions of the customer or third parties shall not apply, even if RLK does not separately object to their validity in individual cases. Even if RLK refers to a letter, which contains or refers to the terms and conditions of the customer or a third party, this does not constitute an agreement to the validity of those terms and conditions. This also applies in particular if RLK carries out the delivery to the customer without reservation in the knowledge of the customer’s general terms and conditions.
2. Offer, conclusion of contract, deviations
2.1 The information contained on RLK’s websites, in brochures, price lists, catalogues, circulars and other printed media or in the documents belonging to the offer, such as illustrations, descriptions, technical data and performance specifications, are non-binding and do not constitute an offer to conclude a contract.
2.2 All offers made by RLK are subject to confirmation unless they are expressly marked as binding. Orders or commissions from the customer are deemed to be a binding contractual offer. Unless otherwise stated in the order, RLK can accept this contractual offer within four weeks of receipt.
2.3 The legal relationship between RLK and the customer shall be governed solely by the written contract consisting of (i) the customer’s offer, including the order documents, as confirmed by RLK’s order confirmation, or (ii) the timely acceptance of the binding written offer submitted by RLK together with the documents referred to therein, and (iii) in both cases these GTC. The contract fully reflects all agreements between the contracting parties on the subject matter of the contract. Subject to proof to the contrary, a written contract or the written confirmation of RLK shall be authoritative for the content of individual agreements made with the customer in individual cases (including ancillary agreements, supplements and amendments).
2.4 Information provided by RLK on the subject matter of the delivery or service (e.g. weights, dimensions, tightness, utility values, load-bearing capacity, tolerances and technical data) as well as representations of the same (e.g. drawings and illustrations) are only approximately authoritative unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. RLK reserves the right to make technical changes and deviations due to legal regulations, such as packaging regulations. Any deviations are to be accepted insofar as they are reasonable for the customer. RLK reserves the right to make changes to products and services that do not impair functionality.
3. Prices, invoicing, payment
3.1 The prices apply to the scope of services and deliveries listed in the order confirmation, in particular the manufacture of the products. Additional services or special services will be charged separately.
3.2 Insofar as the agreed prices are based on RLK’s list prices and the delivery date is more than four months after conclusion of the contract, RLK’s list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount). If the then current list prices deviate by more than 5% from the list prices applicable at the time of conclusion of the contract, the customer shall be entitled to terminate the contract. A price increase is not permitted if RLK has issued a price guarantee.
3.3 Invoices shall be issued by RLK at the times stated in the order confirmation or after delivery. Invoices are payable within fourteen days of receipt of the invoice; payments must be made to the bank account specified by RLK in the invoice, unless otherwise agreed in writing. If the customer fails to make payment when due, interest shall be charged on the outstanding amounts during the period of default at the statutory default interest rate applicable in Germany; the right to claim further damages for default is reserved.
3.4 If RLK manufactures a product according to the customer’s individual wishes, in particular by printing a logo or other individualization tailored to the customer, the customer undertakes to make a down payment of 50% (in words: fifty percent) of the agreed price.
3.5 RLK may make the performance of deliveries and services dependent on receipt of payment for the first instalment specified in the order confirmation; if this payment is delayed, all dates and deadlines shall be extended accordingly.
3.6 Offsetting with counterclaims of the customer or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established. In the event of product defects, the customer’s counter rights, in particular in accordance with clause 7 of these GTC, shall remain unaffected.
3.7 RLK is entitled to make or provide outstanding deliveries or services only against advance payment or the provision of security if, after conclusion of the contract, RLK becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the customer and as a result of which payment of RLK’s outstanding claims under the respective contractual relationship is jeopardized. In addition, RLK is entitled to refuse performance and, after setting a reasonable deadline, to withdraw from the contract. In the case of contracts for the manufacture of individualized items (customized products), RLK may declare its withdrawal immediately.
3.8 In the case of intra-Community deliveries to an EU member state other than Germany, RLK does not charge VAT provided RLK has the customer’s valid VAT identification number. In the case of both, deliveries to and collections from an EU member state, the customer is further obliged to sign a confirmation to RLK that the object of an intra-Community delivery has reached another EU member state (a confirmation of receipt in accordance with the requirements of section 17a of the German Value Added Tax Implementing Regulation (UStDV) as amended). The customer may use a document provided by RLK to submit the confirmation of receipt. The confirmation of receipt must be signed by hand or transmitted electronically. If RLK does not have a valid VAT identification number or if the confirmation of receipt is missing, RLK is obliged to treat the delivery as taxable and to issue the customer with a new invoice including the statutory VAT. The customer must immediately refund the VAT to RLK. Any additional expenditure incurred by RLK as a result of the subsequent treatment as a taxable delivery must be borne by the customer and reimbursed to RLK without delay.
4. Delivery, partial deliveries, delivery time
4.1 Given service or delivery deadlines and dates, in particular the delivery dates automatically generated by RLK’s ordering system, are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport. As a matter of principle, delivery periods shall not commence before clarification of all technical data.
4.2 RLK is entitled to make partial deliveries unless they are not economically viable for the customer.
4.3 RLK shall not be liable for impossibility of delivery or performance or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lock-outs, shortages of labour, energy or raw materials, war, terrorist attacks, pandemics, difficulties in obtaining the necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which RLK is not responsible. Insofar as such events make the delivery or service considerably more difficult or impossible for RLK and the hindrances are not only of temporary duration, RLK is entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines will be extended or postponed by the period of the hindrance plus a reasonable start-up period.
4.4 If RLK – regardless of the cause – is in default with a delivery or service or if a delivery or service becomes impossible for it, RLK’s liability for damages is limited in accordance with the provisions of clause 8 of these GTC. Otherwise, RLK’s default shall be determined in accordance with the statutory provisions of the German Civil Code (Bürgerliches Gesetzbuch “BGB”). In any case a reminder by the customer is required.
4.5 The respective deliveries and services are subject to the proviso that there are no obstacles to fulfilment due to national or international regulations, in particular export control regulations as well as embargos or other sanctions. The contracting partners undertake to provide all information and documents required for export, transfer and import. The customer shall reimburse RLK for any costs incurred in this respect. Delays due to export inspections or licensing procedures invalidate deadlines and delivery times. If the necessary approvals are not granted or if the customer is not prepared to reimburse RLK for the aforementioned costs, the contract shall be deemed not to have been concluded in respect of the parts concerned; claims for damages shall be excluded in this respect and on account of the aforementioned exceeding of deadlines.
4.6 The rights of the customer pursuant to clause 8 of these GTC and RLK’s statutory rights under the BGB, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
4.7 Compliance with any binding delivery obligation on the part of RLK presupposes the timely and proper fulfilment of the customer’s obligations. If delays occur as a result of circumstances for which the customer is responsible, the customer must compensate RLK for all additional expenses and damages arising from this in addition to the agreed remuneration.
5. Place of performance, dispatch, packaging, transfer of risk, acceptance
5.1 Unless otherwise agreed, deliveries for standard goods shall be made EXW RLK’s registered office in accordance with Incoterms® 2020. Deliveries for goods specially produced for customers shall be made EXW Hong Kong Harbour (Container Port Road, Kwai Chung), Hong Kong in accordance with Incoterms® 2020. The place named shall also be the place of performance for deliveries and any subsequent performance. The persons retained by both parties (e.g. vicarious agents, personal of the carrier) are entitled to assist with loading. If RLK undertakes customs or other formalities vis-à-vis authorities on behalf of the customer, RLK will invoice the customer for the corresponding costs.
5.2 The method of dispatch and the packaging are subject to the reasonable discretion of RLK.
5.3 Storage costs after transfer of risk shall be borne by the customer. In the case of storage by RLK, the storage costs amount to 0.25% of the invoice amount of the products to be stored per expired week. The respective party reserves the right to claim and prove further or lower storage costs.
5.4 The consignment will only be insured by RLK against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the customer and at the customer’s expense.
6. Customer logos
6.1 Insofar as it has been agreed that customer logos or other text requests of the customer are applied to RLK products, the customer is in particular obliged to provide RLK with a sufficient number of logos, trademarks and illustrations in perfect (in order, “i.O.”) series production quality for the purpose of creating the products. If the customer fails to meet its obligations to cooperate in due time, any delays resulting therefrom shall be at its expense. The customer is liable to RLK for ensuring that the documents, information and data provided by it, in particular the customer’s logos, are free of errors and free of third party property rights which preclude or impair RLK’s use in accordance with the contract.
6.2 Should third parties nevertheless assert claims for infringement of third party rights, the following shall apply:
The customer shall immediately notify RLK in writing of any such third party claims and shall provide RLK with all information necessary and available to defend itself and provide other appropriate assistance which can be reasonably expected.
The customer shall assume the extrajudicial and judicial defense of such claims at its own expense. The customer reserves the right to decide on a settlement. The customer shall immediately instruct RLK to defend against such claims. If this does not happen, RLK must defend the claims at its own discretion and to the best of its ability.
The customer shall indemnify RLK against all claims, claims for damages and other costs arising in connection with an alleged or proven infringement of property rights.
The same shall apply in connection with the customs’ inspection of products which have been provided with the customer’s logo or other text requests of the customer, in particular if the export or import of the deliveries is refused. In this case, the customer also remains obliged to pay the full purchase price.
6.3 RLK will provide the customer with a proof copy. This must be checked and approved without delay. If the customer does not notify RLK in writing within fourteen (14) days of sending the proof copy, the customer shall be deemed to have approved the proof for printing. Proof copies are only binding for type and design, not for colour, unless otherwise confirmed in writing. Minor colour tolerances are due to technical reasons and are permissible.
7. Warranty, material defects
7.1 The provisions of the applicable law shall apply to the customer’s rights in the event of defects of quality and title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated in these GTC.
7.2 A defect does not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of the usability, in the case of natural wear and tear or in the case of damage which occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress or which occurs as a result of special external influences which are not assumed under the contract. If the customer or third parties carry out improper modifications or repair work on the services, deliveries and/or products of RLK, any and all claims for defects and resulting consequences shall be excluded.
7.3 The customer’s claims for defects are subject to the condition that the delivered products have been carefully inspected immediately after delivery to the customer or to the third party designated by the customer. Obvious defects or other defects, which would have been recognizable in the course of an immediate, careful inspection, are deemed to have been approved by the customer if RLK does not receive a written notice of defect within seven (7) business days of delivery. With regard to other defects, the products shall be deemed to have been approved by the customer, if the notice of defect is not received by RLK within seven (7) business days of the time at which the defect became apparent. However, if the defect was already apparent at an earlier point in time during normal use, this earlier point in time shall be decisive for the commencement of the period for giving notice of defects. At RLK’s request, the complained products have to be returned to RLK carriage paid. In the event of a justified complaint, RLK will reimburse the costs of the cheapest way of shipment; this does not apply if the costs increase because the products are located at a place other than the place of intended use.
7.4 In the event of material defects in the delivered products, RLK shall first be obliged and entitled to rectify the defect or make a replacement delivery at the customer’s discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the customer may withdraw from the contract or reduce the purchase price appropriately. If three attempts by RLK to remedy the defect occurring after acceptance fail, RLK is not obliged to make further attempts to remedy the defect.
7.5 RLK is entitled to make the supplementary performance dependent on the customer paying the price due within the meaning of clause 3 of these GTC. The customer in turn is entitled to retain a reasonable part of the price due in relation to the defect.
7.6 The customer shall be liable to RLK for goods and deliveries which have been damaged during inspections arranged by the customer in accordance with clause 7.3 of these GTC have been damaged.
7.7 The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, shall be borne or reimbursed by RLK in accordance with the statutory provisions if there is actually a defect. Otherwise, RLK may demand reimbursement from the customer of the costs incurred as a result of the unjustified request for rectification of the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognizable to the customer.
7.8 Excess or short deliveries as well as dimensional tolerances to a minor extent customary in the industry as well as the delivery of a relatively small number of defective goods, insofar as the latter is technically unavoidable, shall not entitle the customer to complain the delivery.
7.9 The customer shall only be entitled to claims for damages or reimbursement of futile expenses, also in the event of defects in accordance with clause 8 of these GTC; otherwise all claims are excluded.
7.10 The customer may not assign warranty claims without RLK’s prior written consent.
8. Liability for damages due to fault
8.1 Unless provided for differently in these GTC, including the following provisions, RLK shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the provisions of the applicable law.
8.2 RLK is liable for damages – irrespective of the legal grounds – within the scope of liability for fault in cases of intent and gross negligence. In the case of simple negligence, RLK is only liable, subject to limitations of liability arising from the applicable law (e.g. care in own affairs; insignificant breach of duty), for
a) damages resulting from injury to life, body or health,
b) damages arising from the breach of a material contractual obligation (obligation which fulfilment is essential to the proper performance of the contract and on which observance the customer regularly relies and may rely); in this case, however, RLK’s liability is limited to compensation of the foreseeable, typically occurring damage.
8.3 The limitations of liability set forth in clause 8.2 of these GTC shall also apply to third parties and in the event of breaches of duty by persons (also in its favour) for whose fault RLK is responsible in accordance with statutory provisions. They do not apply insofar as RLK has fraudulently concealed a defect or has assumed a guarantee for the quality of the products and for claims of the customer under the German Product Liability Act (Produkthaftungsgesetz).
9. Limitation
9.1 In deviation from section 438 para 1 No. 3 BGB, the general limitation period for claims arising from defects of quality and defects of title shall be one year from delivery. Any mandatory applicable special statutory provisions on the limitation period shall remain unaffected.
9.2 The above limitation periods shall also apply to contractual and non-contractual claims for damages of the customer based on a defect of the products, unless the application of the regular statutory limitation period (sections 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages of the customer pursuant to clause 8.2 para 1 and para 2 (a) of these GTC as well as under the German Product Liability Act (Produkthaftungsgesetz) shall become time-barred exclusively in accordance with the relevant applicable statutory limitation periods.
10. Retention of title, exclusion of transfer of ownership by way of security
10.1 The delivered products remain the property of RLK (reserved goods) until payment has been made in full and until all present and future claims to which RLK is entitled against the customer under the purchase contract and an ongoing business relationship have been settled. In the event of third parties’ access to the reserved goods, the customer will inform about RLK’s ownership and notify RLK immediately. The transfer of ownership by way of security or the pledging of the reserved goods is not permitted. Dispositions by third parties, in particular seizures or assignments, must be notified to RLK without delay, together with the documents required for an intervention.
10.2 The customer is entitled to use and sell the delivered products in the ordinary course of business as long as it is not in delay.
10.3 If the customer is in breach of the contract, in particular in case of non-payment of the purchase price due, RLK is entitled to demand surrender of the goods on the basis of the reservation of title. The exercise of the rights arising from the retention of title or a demand for surrender is not deemed to be a withdrawal from the contract unless RLK expressly declares the withdrawal.
10.4 The customer hereby assigns to RLK all claims arising from the resale of the reserved goods. The customer is revocable entitled to collect these claims. The customer must inform RLK upon request about the assigned claims and their debtors (list of claims, copies of invoices). RLK is entitled to disclose the assignment to the customer’s debtor if the customer defaults on payment to RLK. Any processing or further processing of the products supplied by RLK by the customer is carried out for RLK. RLK acquires ownership rights to the amount of the market value of the goods at the time of processing or further processing. If the products supplied are combined with other items, RLK acquires co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other items at the time of processing. RLK will release the aforementioned securities on request at the discretion of the customer insofar as their value sustainably exceeds the claim by more than 20%.
11. Choice of law, mediation, dispute resolution
11.1 If the customer is domiciled in Germany, the substantive law of the Federal Republic of Germany shall apply exclusively to the contract and to all disputes, claims or legal disputes arising from or in connection with the contract, including questions of its formation or validity. In the event of the application of the German Civil Code (BGB), the applicability of sections 305-310 BGB is excluded.
If the customer is domiciled outside Germany, the contract and all disputes, claims or legal proceedings arising out of or in connection with the contract, including questions of its formation or validity, shall be governed exclusively (also to the exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods) by the UNIDROIT Principles of International Commercial Contracts, as amended from time to time and available in 15 languages; current version 2016 available at https://www.unidroit.org/instruments/commercial-contracts/unidroit-principles-2016.
11.2 In the event of disagreement on the validity and interpretation of this contract, the parties shall first conduct direct negotiations.
In the event of failure of direct negotiations, a mediation procedure shall be conducted. Direct negotiations shall be deemed to have failed if both parties agree on this or if one party has set a negotiation deadline of two weeks with reference to this provision and this deadline has expired without a settlement.
The aim of mediation is to work out, with the help of a neutral mediator, an agreement that takes into account the economic, legal and personal circumstances of the parties.
The mediation shall be conducted by a lawyer trained as a mediator, who shall be subject to confidentiality and shall be appointed by the parties by mutual agreement. The mediation rules may be determined by agreement of the parties, otherwise they shall be determined by the mediator.
If no agreement is reached on the person of the mediator, the Chamber of Industry and Commerce at the registered office of RLK shall be requested for a decision. The decision of the Chamber of Industry and Commerce shall be binding on the parties.
The limitation period for claims subject to mediation is suspended for the duration of the mediation proceedings. To this end the mediation is deemed to begin with the official acceptance by the mediator of his/her appointment, which the mediator shall notify the parties in writing. Mediation ends with the determination by the mediator of either the agreed settlement or the failure of the mediation. The parties waive recourse to ordinary courts or arbitration courts for the duration of the mediation proceedings. Measures of interim legal protection shall remain excluded from this.
The costs of mediation shall be borne equally by the parties, unless otherwise agreed in the mediation proceedings.
If no solution is reached in the mediation within a period of one month, either party shall be entitled to initiate (arbitration) proceedings in accordance with clause 11.3 of the GTC.
11.3 For all customers whose registered office is located in Germany or the European Union or the European Economic Area, the following shall apply: The exclusive place of jurisdiction for all disputes arising from the contract (cf. clause 2.3 of the GTC), including disputes about its conclusion and/or validity, shall be the registered office of RLK.
If the customer’s registered office is located outside Germany or the European Union or the European Economic Area, the following shall apply: All disputes arising out of or in connection with the contract, including disputes regarding its conclusion and/or validity, shall be finally settled in accordance with the Rules of Arbitration of the German Institution of Arbitration (DIS), excluding recourse to the ordinary courts of law. The place of arbitration shall be Hamburg. The language of the arbitration proceedings shall be the language in which the order confirmation of RLK or the binding offer of RLK (cf. clause 2.3 of the GTC) is written. Documents may be submitted in German or English. Arbitrators must be fluent in German and English. Up to a claim value of EUR 500,000 the arbitral institution shall appoint a sole arbitrator, unless the parties jointly agree on a sole arbitrator. If the value of the claim exceeds EUR 500,000 during the arbitration (as determined by the final decision of the sole arbitrator), the sole arbitrator shall become the chairman. In this case, the arbitral institution will give each party the opportunity to appoint a co-arbitrator within a short period of time. The arbitration shall be governed by the IPBA (“Inter-Pacific Bar Association”) Guidelines on Privilege and Attorney Secrecy in International Arbitration, adopted by resolution of the IPBA Council on 13 October 2019 (https://ipba.org/sites/main/media/fck/files/2020/IPBA%20Guidelines.pdf).
12. Miscellaneous
12.1 Legally relevant declarations and notifications by one party to the other with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing.
12.2 The use of the term “in writing” means a document or any information transmitted in text form, including e-mail, or a digital record transmitted by means of EDI or other systems. “EDI” means Electronic Data Interchange, i.e. the transmission of data via electronic communication links between the parties or other machine-readable data carriers. Statutory formal requirements and further evidence, in particular in case of doubt about the legitimacy of the declarant, shall remain unaffected.
12.3 Only the German version of the GTC shall be authoritative. Any translations of these GTC into other languages serve only to inform the customer. In the event of any differences between the language versions, these GTC in German shall take precedence.
12.4 Should any provision of the contract or these GTC be or become void this shall not affect the validity of the remaining provisions. The invalid provision shall be deemed replaced by such legally effective provision which the contracting partners would have agreed in accordance with the economic objectives of the contract and the purpose of these GTC if they had been aware of the invalidity. In case of doubt, RLK shall have a right of determination to be exercised with due discretion. The same shall apply to any loophole.