General Terms and conditions

1. Scope of application, order, data protection

1.1 All our deliveries of goods and services are performed exclusively according to the following terms and conditions. These are also applicable to all future transactions with the purchaser, insofar as they are of a similar nature. Any terms and conditions of the purchaser contrary to or deviating from our general terms and conditions will not be accepted by us unless we explicitly consent to their validity in writing. Our general terms and conditions remain valid even if we perform a delivery without reservation in the full knowledge of terms and conditions of the purchaser contrary to or deviating from our general terms and conditions.

1.2 Our terms and conditions also apply to future transactions with the purchaser, insofar as these business transactions are of a similar nature.

1.3 The following order applies to the type and scope of services which apply to both parties:

• the provisions of our order confirmation or, insofar as no order confirmation is available, the provisions of our offer,
• the additional contractual conditions specified in our order confirmation and specific and general technical conditions or, insofar as no order confirmation is available, the additional contractual conditions specified in our offer and specific and general technical conditions,
• these sales and delivery conditions,
• the applicable statutory regulations.

1.4 The general terms and conditions specified hereunder apply solely to entrepreneurs as defined by Section 14 Par. 1 BGB (German Civil Code) or legal entities under public law or public funds governed by public law. An entrepreneur according to Section 14 BGB is a natural person or legal entity or a judicable partnership acting in the exercise of their commercial or self- employed occupational activity when entering into a legal transaction.

1.5 Within the course of fulfilling the contract we shall comply with all respective applicable data protection regulations – particularly the General Data Protection Regulation (GDPR) and the Federal Data Protection Act. Details on data processing and the rights of data subjects can be found at the end of these General Terms and Conditions and in our Privacy Policy on our website at www.repabad.com/datenschutz.html.

1.6 The contractual parties shall also subject their employees and any possible subcontractors to the data protection regulations.

2. Quotations, quotation documents, conclusion of contract, right of modification

2.1 Our offers are non-binding until a final order confirmation has been issued.

2.2 We reserve our property rights and copyrights with regard to drawings and other quotation documents; these must not be made accessible to any third parties without our explicit prior consent. Any reference to technical standards or other information contained in these documents or any other documents provided by us serves as performance specification only and does not constitute any warranty promise, in particular any guarantee of quality or durability.

Insofar as we provide recommendations for using our delivery/service, we shall provide these to the best of our knowledge. However, because of the great number of possible uses, different requirements and individual conditions for use, we do not accept any liability for the suitability of the goods for a specific possible use unless we have explicitly provided a written assurance for the suitability. The purchaser shall always be obligated to check the suitability of the goods for their envisaged purpose.

2.3 An order placed with us is a binding offer on the part of the purchaser. We are entitled to accept this offer within 2 weeks by either sending an order confirmation to the purchaser or delivering the ordered goods to the purchaser within that period. Punctual dispatch of either the order confirmation or the ordered goods shall be sufficient for period keeping.

2.4 We reserve the right to effect modifications of design and form, deviations in colour shades, changes in the scope of delivery and other alterations or deviations in the promised delivery even after the order confirmation has been issued, as far as such alterations or deviations in consideration of our interests are reasonable for the purchaser. Furthermore, we are entitled to provide deliveries with customary increased or reduced delivery amounts with a deviation in scope of up to 10% compared to the ordered amount.

3. Prices, terms of payment, rescission, offset/retention

3.1 The price shall be based on the order confirmation or – insofar as no order confirmation is available – based on our offer, and otherwise on our price list valid at the time of order placement.

3.2 Unless stated otherwise in the order confirmation or our price list, our prices are quoted ex works or ex warehouse (see provision 4.1), excluding packaging, transport costs and customs duties. Furthermore, the prices quoted are net plus the respective applicable statutory value-added tax. For deliveries within the EU purchasers must state their value-added tax ID no. If a delivery is not subject to value-added tax the purchaser must notify us accordingly in good time and provide the necessary proof.

3.3 Any deduction for an early payment discount requires a specific agreement in writing. Prompt arrival of payment on our bank account shall be the decisive criteria for entitled deduction for early payment.

3.4 Unless stated otherwise in the order confirmation, payment of the purchase price is due immediately, even for partial deliveries.

3.5 Unless otherwise specified, our invoices are due for payment without any deduction within 30 days of the invoice date. Thereafter the customer shall be in default without a separate reminder being required. Default interest shall be charged at 9% p.a. in excess of the current base rate according to Section 247 BGB. This is without prejudice to the assertion of claims for collateral damages. Cheques and bills of exchange are not accepted as means of payment.

3.6 If any circumstances come to our knowledge which cast doubt on the purchaser’s creditworthiness, or if our claim for payment is substantially endangered due to over-indebtedness of the purchaser, or if the purchaser is in default with payment of the purchase price, we shall be entitled to demand advance payment in full or the provision of securities, and to withdraw from the contract if such conditions are not fulfilled within the set time limit.

3.7 The purchaser is only entitled to set-off, if his/her counterclaims are legally established, undisputed or recognised in writing by us. The purchaser is entitled to exercise a right of retention, if his counterclaim is based on the same contractual relationship.

In the case of defects the purchaser shall only be entitled to a right of retention if the goods are obviously defective. Furthermore, the amount of payment withheld must be appropriate with regard to the defects and the envisaged costs of supplementary performance.

4. Risk transfer, transport costs, packaging

4.1 Unless stated otherwise in the order confirmation, our ex works or warehouse delivery (EXW) is agreed. With handover of the delivery item to a forwarder or freight carrier, but at the latest when the delivery item has left our premises or one of our delivery warehouses, the risk is transferred to the purchaser. This also applies if we bear the costs of transport. Shipment is effected invariably on behalf of the purchaser.

If shipment is delayed by circumstances caused by the purchaser, the risk is transferred to the purchaser from the day when the goods are ready for shipment.

4.2 If we have agreed a “free domicile” delivery with the purchaser, and the delivery address is no more than 50 km distant from the company domicile of the purchaser, we bear the transport costs to the front door. For the delivery of installation accessories, service parts and similar products, this only applies if the delivery is made in connection with the delivery of a bath tub, whirlpool or steam bath. If the delivery address is located on an island, the purchaser shall be liable to pay a freight surcharge in every case.

4.3 We do not take back transport packaging. The purchaser is obliged to dispose of this at his/her own expense.

5. Delivery, partial delivery, delivery time, procurement risk/procurement guarantee, self-delivery/force majeure

5.1 Part deliveries are permissible, if

• tthe partial delivery can be used by the purchaser for the intended purpose,
• delivery of the remainder of the ordered goods is guaranteed and
• the purchaser does not incur any significant additional expense or significant additional costs thereby, unless we agree to bear such additional costs.

5.2 Delivery times and dates indicated by us are only agreed as approximations, unless we have explicitly promised or agreed on a fixed deadline. The delivery time begins on the day when the order confirmation is sent, but not before the punctual, proper and complete fulfilment of the obligations with which the purchaser must comply before delivery, i.e. particularly not before all documents, authorisations and approvals required from the purchaser have been provided and prepayments have been made as agreed. Delivery time and delivery deadlines must be complied with if the delivery item has left the works or the distribution depot by the end of the delivery time or if there has been notification that the goods are ready for delivery.

5.3 In the case of contractual amendments which may have an effect on the delivery time, the delivery time shall be extended by a reasonable period, unless agreed otherwise by special contractual arrangement.

5.4 We accept no procurement risk unless a special written agreement has been made to that effect using the wording “We bear the procurement risk for …”. Consequently our obligation to deliver an item solely defined by its type constitutes neither the acceptance of a procurement risk nor a procurement guarantee.

5.5 If for reasons beyond our control we fail to receive any deliveries or services from our sub-suppliers or sub-contractors correctly (i.e. in terms of quantity and quality according to the delivery agreed on with the purchaser), or on time, in spite of correct congruent procurement planning on our part, or in the event of force majeure, i.e. performance impediments not due to a wilful act or negligence on our part with a duration of more than 14 calendar days, we shall notify the purchaser to that effect immediately. In such cases we shall be entitled to delay the deliveries and services by the duration of the impediment plus a reasonable start-up period, or withdraw from the contract in whole or in part in respect of the non-fulfilled part of the contract, insofar as we have fulfilled our aforementioned obligation of notification, made no agreement to bear the procurement or production risk, and the impediment is of a permanent nature. Force majeure includes strikes, lockouts, governmental interventions, energy and raw material shortages, transport bottlenecks and disruptions of operations beyond our control (e.g. through fire, water or machine damage), and all other types of impediments which, viewed objectively, are not due to any wilful act or negligence on our part.

If an agreed date or period of time for a delivery or service has been exceeded due to the aforementioned circumstances by more than four weeks, or if in the event of a non-binding date of delivery/service further adherence to the contract on the part of the purchaser would be objectively unreasonable, the purchaser shall be entitled to withdraw from the contract on the grounds of the part of the contract not yet fulfilled. In such a case, the purchaser shall have no further rights, in particular no rights to claims for damages.

5.6 Even in the event of a delivery default due to a wilful act or negligence on our part, the purchaser shall be entitled to claim damages on the grounds of late delivery in lieu of the delivery and compensation for expenses incurred only according to the conditions specified under Section 7.

6. Legal and material defects

6.1 Any claims of the purchaser regarding defects require that he/she checked the quantity and condition of the goods immediately after receiving them and provided written notice of the defects in good time (for instance by email, telefax); the notice shall be deemed to have been provided in good time if we receive it within 5 calendar days, calculated from the day of receipt, or in the case of hidden defects calculated from the day defects are discovered. In the case of mutual business transactions between entrepreneurs the obligation to check and to provide notice of defects pursuant to Section 377 of the German Commercial Code (HGB) shall remain unaffected. If the delivered goods, in terms of their type or utilisation purpose are to be fitted into another object or to be attached to another object, the purchaser must already check the delivered goods before fitting or attaching them.

6.2 We accept no liability for defects due to faulty installation on the part of the purchaser or third parties, normal wear and tear or non-observance of cleaning and maintenance instructions. Any claims for defects shall be excluded after final inspection especially for silicone joints (maintenance joints according to DIN 52460) and sealing lips.

6.3 In the event of a delivery or service defect whose cause was already known at the time of risk transfer, the purchaser shall be entitled to supplementary performance at our option either by rectification of the defect or by delivery of a new item free of defects. We shall bear the costs of expenses necessary for supplementary performance – for instance in particular working, material, transportation and travelling costs – if the costs of the chosen supplementary performance do not exceed the value of the delivered goods by more than 100%, or by 150% if we are at fault.

6.4 In the event of any items other than the defective delivery item being damaged in the course of supplementary performance, the purchaser shall be entitled to claim such damages only as specified in Section 7 below.

6.5 If we are not prepared to grant supplementary performance, or if such performance fails at least twice, or the supplementary performance is unreasonable for the purchaser, or setting of a deadline according the alternative regulations specified in Section 281 Par. 2, 323 Par. 2 BGB is dispensable, the purchaser shall be entitled at his option to either reduce the price or withdraw from the contract. This does not apply to construction work as subject of liability for defects; here the purchaser shall not be entitled to withdraw from the contract even in the cases as specified in the aforementioned Clause 1. In any case, the purchaser is only entitled to claim damages or compensation for expenses as specified in Section 7 hereunder. The purchaser’s rights of recourse against us within the framework of supplier recourse pursuant to Sections 445a, b, 478 of the German Civil Code shall exist only insofar as the purchaser has not agreed with his consumer on any claims for defects which go beyond statutory requirements.

7. Claims for damages and expenses

7.1 Unless provided otherwise above, any and all claims for damages and compensation for expenses are excluded regardless of their legal grounds, subject to Section 7.2 hereunder; this applies in particular to claims for damages on the grounds of faults during contractual negotiations, contract initiation or business contacts of a similar nature, or on the grounds of other breaches of duty and tortious claims for compensation of property damages according to Section 823 BGB, and of expenses on the part of the purchaser in lieu of a claim for damages instead of performance.

7.2 The limitation of liability as specified in Section 7.1 does not apply

1. insofar as the cause of damage is due to a wilful act or gross negligence on our part or on the part of our representatives or vicarious agents, with the compensation for damages being restricted to the foreseeable and transaction-typical damage in the case of gross negligence;
2. in the event of a culpable breach of essential contractual duties; in all such cases the compensation for damages shall also be restricted to the transaction-typical damage foreseeable at the conclusion of the contract. Essential contractual duties shall be such duties as protect the essential contractual legal positions of the purchaser, which must be granted to the purchaser by the contract according to its content and purpose. Essential contractual duties are also such duties whose performance is necessary for proper execution of the contract and on whose performance the purchaser is entitled to rely;
3. in cases of mandatory liability under product liability law;
4. in cases of damage from loss of life, bodily injury or damage to health;
5. in the event of default, insofar as a fixed deadline for the delivery and service has been set by contractual agreement;
6. in the event of fraudulent concealment of a material defect, on assumption of the procurement or production risk as specified in Section 276 BGB, or on exceptional assumption in writing of a quality or durability guarantee as specified in Section 443 BGB;
7. in any other cases of legally mandatory liability.

Reversal of the burden of proof is not associated with the aforementioned provisions.

7.3 Any compensation claims on the part of the purchaser for expenses are limited to the value of the interest which the purchaser has in the fulfilment of the contract.

7.4 Insofar as our corporate liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff members, representatives and vicarious agents.

8. Limitation

8.1 Subject to clause 2 hereinafter, any claims for defects involving repaBAD bath tubs and whirlpools become time-barred after 5 years. For all other deliveries and services (for instance whirlpool and steam bath technology/electrics, washbasin and bathroom furniture) claims for defects are time-barred after 2 years. The limitation period begins at the time of risk transfer in each case. For deliveries and services for and/or on a building, the statutory periods remain valid (Sections 438 Par. 1 clause 2, 634a Par. 1 clause 2 BGB); this also applies to the limitation period for recourse claims on the grounds of a supplier regress according to Sections 4445a, b, 478 BGB.

In goodwill cases, the limitation period for claims for defects shall not begin anew with after an attempted supplementary performance on our part. In the event of a supplementary performance entitlement, our acceptance of the claim in the form of supplementary performance through rectification or replacement delivery according to Section 212, Par.1, clause 1 BGB shall be limited to such defects as were the subject of the purchaser’s request for supplementary performance, or which are caused by a faulty supplementary performance; notwithstanding the limitation period for the original delivery item shall continue.

8.2 Any other claims for damages incurred by the purchaser from or in connection with a delivery become time-barred 12 months from detection or grossly negligent lack of knowledge of the damage and the damaging party, and after 5 years from incursion regardless of detection or grossly negligent lack of knowledge.

8.3 In cases as specified in Section 7.2, the statutory limitation period for claims for damages and expense compensation remains valid.

9. Retention of title

9.1 The delivered goods remain our property until all receivables from the business relationship between our company and the purchaser have been paid in full (reserved goods), even if payments are made for specified receivables. Even the inclusion of individual receivables in a current account invoice, as well as balancing of the account and acceptance of the same shall have no effect on the reservation of proprietary rights. Payment shall only be regarded as made when we receive money or credit.

9.2 Should the reserved goods be resold by the purchaser, either alone or together with goods which are not our property, the purchaser already now assigns to us all claims arising from the resale to the amount of the value of the reserved goods, with all ancillary rights and with priority above the remainder; we accept this assignment. The value of the reserved goods is the total amount due to us as shown on our invoice (including VAT) plus a security surcharge of 10 per cent which, however, shall not be applied to the exent that the rights of third parties are enforceable against it. If we are co-owners of the resold reserved goods, the assignment of the claims shall apply to the amount equivalent to the proportional value in our joint property.

9.3 Should the reserved goods be installed as a fixture on a piece of property owned by the purchaser or a third party, the purchaser shall already now assign to us all claims arising from the sale of the property or of property rights and/or claims for remuneration arising against third parties from the installation to the amount of the value of the reserved goods, with all ancillary rights including the right to be granted a security mortgage, and with priority above the remainder; we accept this assignment. The aforementioned Section 9.2, clause 2, applies accordingly.

9.4 The purchaser shall be entitled and authorised to effect the resale, use or installation of the reserved goods only in the ordinary course of business and only on condition that the claims as specified in Sections 9.2 and 9.3 are in actual fact assigned to us. The purchaser is not authorised to make any other disposals of the reserved goods, in particular to pledge or transfer such goods as securities.

The purchaser remains authorised to collect the receivables assigned to us as specified in the aforementioned Sections 9.2 and 9.3 until we give notice of revocation; this is without prejudice to our entitlement to collect the assigned receivables ourselves. We will not exercise our right of revocation nor our own collection authority as long as the purchaser fulfils his payment obligation from the proceeds and does not enter into default. At our request, the purchaser shall name the debtors of the assigned claims and supply all information required for collection, hand over the relevant documents and notify the debtors of the assignment; we shall also be authorised to notify the debtors of the assignment ourselves.

9.5 In the event of cessation of payments or an application for opening insolvency procedures on the part of the purchaser, all rights to resale, use or installation of the reserved goods and the authorisation to collect the assigned claims shall expire.

9.6 In cases of breach of contract on the part of the purchaser, in particular payment default, and of presence of further legal prerequisites according to Section 323 BGB, we shall be entitled to withdraw from the contract and collect the reserved goods following our withdrawal from the contract. Following collection of the reserved goods, we shall be authorised to dispose of such goods; the proceeds from the disposal less reasonable disposal costs shall be offset against the purchaser’s debts.

9.7 The purchaser shall be obliged to take due care of the reserved goods and insure such goods at his own expense at replacement value against loss or damage through fire, water and theft. The purchaser shall assign to us already now any claims against insurance for damage to the reserved goods to the value of the reserved goods; we accept this assignment.

10. Place of fulfilment, legal venue, applicable law, severability clause

10.1 The place of fulfilment and supplementary performance is our company domicile. The place of fulfilment for paying the price and for the other performances of the purchaser is also our company domicile.

10.2 The legal venue is our company domicile, if the purchaser is a merchant, legal entity under public law or a fund under public law, without prejudice to our entitlement to take legal action against the purchaser also at another legal venue.

10.3 The law of the Federal Republic of Germany shall apply. If the purchaser is domiciled outside Germany (Art. 10 CISG), the standard UN commercial law (CISG) shall be applicable in addition to the contractual agreements and our general terms and conditions, thereby taking precedence over the other statutory regulations under German law.

10.4 Should a provision of these terms and conditions be or become legally ineffective, the validity of the other terms and conditions shall remain unaffected. The contractual partners shall be under obligation to endeavour to replace the ineffective provision with a regulation that comes as close as possible to the original provision in terms of its commercial effect.

Privacy Policy

1. We collect, store, process and use the purchaser’s personal data if, insofar and as long as they are necessary for establishing, implementing or terminating this contract. Further-reaching collection, storage and use of the purchaser’s data shall occur only if this is required or allowed by statutory legislation or the purchaser has consented to this.

2. The purchaser is aware that the implementation of pre-contractual measures and fulfilment is necessary on the basis of Art. 6 (1) letter b) GDPR: inter alia his/her name, the contact person, the entrepreneurial capacity and the address.

3. Within the framework of statutory requirements we are entitled to check the risk of payment defaults by the purchaser for the purpose of the decision on establishing, implementing or terminating the contract between the two parties. Data for this purpose are collected, processed and used on the basis of Art. 6 (1) letter b) GDPR.

4. We shall also be entitled to transfer the data to third parties, if and insofar as this is necessary for implementing pre-contractual measures and for fulfilling this contract (for instance for dispatch, invoicing or customer support) pursuant to Art. 6 (1) letter b) GDPR or for fulfilling a legal obligation in the sense of Art. 6 (1) letter c) GDPR. Within the framework of statutory requirements, under certain circumstances we may also use forward these data to third parties (for instance debt collection companies) for the purpose of enforcing claims consistent with Art. 6 (1) letter b) and/or f) GDPR.

5. Pursuant to statutory requirements, upon request we shall provide the purchaser free-of-charge information about his personal data which has been stored. Pursuant to statutory requirements, the purchaser shall have the right to request reporting, erasure, restriction of the processing of data concerning him or her or transfer of such data to a third party. The purchaser shall also be entitled to lodge a complaint with a supervisory authority.

6. The purchaser may object at any time to any possible use of his or her personal data (i) for the necessary performance of a task which was assigned to us in the public interest or through the exercising of public authority or (ii) for the necessary protection of our legitimate interests or those of a third party – such as, if necessary in accordance with the above provision 4 – pursuant to Art. 21 (1) GDPR through a formless notification to us. If we are unable to demonstrate any overriding compelling legitimate grounds for processing the affected data, we shall no longer use such data for these purposes after receiving the objection.

7. In the same way the purchaser may at any time object free-of-charge to the use of his or her personal data for direct marketing purposes pursuant to Art. 21 (2) GDPR through a formless notification to us that shall be effective for the future. After receiving the objection we shall no longer use the affected data for these purposes.

8. We are the responsible entity for all issues related to data protection and for exercising the rights cited above. Details can also be found in our Privacy Policy on our website at www.repabad.com/datenschutz.html.

(01/2019)