Cincinnati Smale Riverfront Park

General Terms and Conditions of Richter Spielgeräte GmbH

Our assembly work is subject to our terms and conditions of assembly.
Terms and Conditions of Delivery and Payment, gültig ab 01.05.2020

1.    Scope

Our offers, business transactions and deliveries are made exclusively on the basis of the following terms and conditions. These shall also apply to future transactions, even if they are not expressly agreed again. Counter-confirmations of the buyer with reference to his own general terms and conditions are hereby contradicted.
 

2.    Quotations

Our offers are based on the documents provided, they are non-binding, as are cost estimates, which are drawn up to the best of our knowledge. The documents of our offers, such as illustrations, drawings, information on services, qualities, materials, weights, dimensions, functions and safety information, as well as all brochure information and information in other printed materials are only approximately authoritative, unless they are expressly designated as "binding". A warranty of certain properties shall only be deemed to exist if a corresponding declaration has been expressly made. All contractual agreements must be in writing in accordance with § 126b BGB (e.g. e-mail, fax, letter).

 

3.    Intellectual property

3.1 Brochures, catalogues, production templates, drawings, models, tools, etc. prepared by us are and remain - unless expressly agreed otherwise - our property or right of use. The customer is not entitled to use and exploit these documents outside the contract concluded with us or to make them accessible to third parties.

3.2 The customer undertakes to support us to the best of his ability in asserting claims against copycats, plagiarists and other infringers of our industrial property rights, copyrights or know-how rights.

 

4.    Conditions of delivery

4.1 All list prices are net ex works and do not include statutory VAT. Unless otherwise agreed, the current rates of our forwarding agents shall apply. Delivery shall be made uninsured at the risk of the customer. The risk shall pass to the ordering party when the goods are handed over to the forwarding agent, carrier or other shipping agent. The freight charges may include a share for packaging, if applicable.

4.2 The choice of the transport route and the means of transport are left to our discretion, to the exclusion of any liability.

4.3 The recipient must have transport damage certified by the carrier immediately upon receipt. Complaints will only be accepted within 8 days of receipt of the equipment. Only then can claims for compensation be made against the transport company. Please notify us within 3 days so that we can assist you with the claims process.

4.4 The confirmed delivery periods or delivery dates are non-binding for us. They are to be understood from the date of dispatch of the order confirmation or from the date of written declaration of all technical details and special requests and presuppose the timely receipt of all documents to be supplied by the customer and agreed down payments. Insofar as delays in performance occur due to force majeure - these are e.g. strike, lockout or official orders, also at our suppliers and subcontractors, we shall not be responsible for a delay even in the case of bindingly agreed deadlines and dates. We are entitled to postpone delivery for the duration of the hindrance. Otherwise, any damages caused by delay shall be limited to ½ % of the value of the goods per week, but not more than 10 % of the total invoice value of the delivery affected by the delay. This limitation of liability shall not apply in the event of gross negligence or intent.

4.5 Partial deliveries, as well as excess and short deliveries to the extent customary in the trade, are permissible.

4.6 If there is an insignificant defect, the customer may not refuse acceptance if we acknowledge our obligation to remedy the defect.

 

5.    Conditions of payment

5.1 Our invoices are due for payment within 30 days of the invoice date. We grant a 2% discount for payment within 14 days. The invoice shall be issued on the date of delivery or, in the event of a delay in delivery caused by the customer, on the date of our readiness for dispatch. If the payment date is exceeded, the customer shall pay interest at a rate of 8 % above the respective base interest rate of the European Central Bank, even without prior reminder and without prejudice to further claims.

5.2 We are entitled to invoice partial deliveries from an overall order separately.

5.3 A set-off or the assertion of a right of retention due to counterclaims not recognised by us or not legally established is excluded.

5.4 We reserve the right to carry out a credit check, which may result in different payment conditions.

5.5 Deliveries to private persons or private institutions (e.g. associations) are generally made against advance payment.

 

6.    Retention of title

The delivered devices remain our property until full payment of our invoice and all existing ancillary claims. In the event of resale or installation of the equipment, it is agreed that the resulting claim or its countervalue (including insurance claims) is assigned to us by way of security from the outset. In the event of installation, we shall receive co-ownership in proportion to the value. 7.

 

7.    Remedy of defects and limitation of liability

7.1 Our performance refers to craftsmanship, use of appropriate materials as well as stable and durable construction. The statutory provisions shall apply to the purchaser's rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below.

7.2 The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions and manufacturer's specifications which are the subject of the individual contract or which were publicly announced by us (in particular in catalogues or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the goods.

7.3 Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether or not there is a defect (§ 434 Para. 1 S. 2 and 3 BGB). However, we shall not assume any liability for public statements by third parties to which the buyer has not referred to us as being decisive for the purchase.

In this respect, it must be expressly pointed out that in particular no defect exists in the legal sense,
a) if the damage to the goods
     - is due to improper use or
     - was caused by improper installation by the customer or
      - is due to wilful damage (e.g. cut ropes and cables).

b)  if it is merely a case of normal wear and tear of the goods, e.g.

  • the detachment of the paint coating on recorded surfaces made of wood or powder-coated metal due to use;
  • the corrosion of the surfaces of metal parts;
  • the normal wear and tear of bearings, joints, chains, valves, running surfaces and ropes made of natural fibre material due to use;
  • the formation of cracks in solid wood outdoors as a natural characteristic of this material, insofar as this only affects the external appearance in terms of aesthetics and does not affect stability or durability.

Our liability is expressly excluded in cases in which

  • the goods have been altered by the buyer or
  • if the original technical markings on the goods have been altered or removed, or        
  • the maintenance of the play equipment and the fall protection which encloses the play equipment when it is buried in the ground has not been carried out properly or if no professional repair has been carried out using original spare parts.

7.4 The purchaser's claims for defects are subject to the condition that he has fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent during delivery, inspection or at any later time, we must be notified of this in writing without delay. In any case, obvious defects shall be notified to us in writing within 12 working days of delivery and defects not apparent on inspection within the same period of time from discovery. If the buyer fails to carry out the proper inspection and/or give notice of defects, our liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions.

7.5 If the delivered item is defective, we may choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). Our right to refuse subsequent performance under the statutory conditions remains unaffected.

7.6 We are entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.

7.7 The buyer shall give us the time and opportunity required for the subsequent performance owed. In the event of a replacement delivery, the buyer shall return the defective item to us in accordance with the statutory provisions. The supplementary performance does not include the removal of the defective item or the re-installation if we were not originally obliged to install it.

7.8 We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if there is actually a defect. Otherwise, we may demand reimbursement from the buyer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognisable to the buyer.

7.9 In urgent cases, e.g. in the event of a risk to operational safety or to prevent disproportionate damage, the Buyer shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be notified immediately of such self-execution, if possible in advance. The right of self-execution does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.

7.10 If the subsequent performance has failed or if a reasonable deadline to be set by the buyer for the subsequent performance has expired unsuccessfully or is dispensable according to the statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there shall be no right of withdrawal.

7.11 Claims of the buyer for damages or reimbursement of futile expenses shall also exist in the event of defects only in accordance with § 8 and are otherwise excluded.

 

8.    Design and material change

8.1 Unless otherwise stipulated in these GTCs including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.

8.2 We shall be liable for damages - irrespective of the legal grounds - within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), only for

a) Damages resulting from injury to life, body or health,

b) damages arising from the breach of a material contractual obligation (obligation the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.

8.3 The limitations of liability resulting from para. 2 shall also apply in the event of breaches of duty by or in favour of persons for whose fault we are responsible in accordance with statutory provisions. They do not apply if we have fraudulently concealed a defect or have given a guarantee for the quality of the goods and for claims of the buyer under the Product Liability Act.

8.4 The buyer may only withdraw from or terminate the contract due to a breach of duty which does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory prerequisites and legal consequences shall apply.

 

9.    Other provisions

9.1 The period for the assertion of claims for defects shall be from the date of delivery:

  • 2 years for all moving parts and ropes
  • 5 years for hardware parts
  • 5 years for parts made of wood, with the exception of
    – pressure impregnated wood according to DIN 68800 (fir / spruce) 7 years.
    – Robinia and hard paper laminate 10 years *
  • 15 years for parts made of concrete and metal (including floor anchors made of steel).     
  • 3 years for all other parts.

Insofar as acceptance has been agreed, the limitation period shall begin with acceptance.
* If wood chips are used as fall protection (see also page 125), the statute of limitations is reduced to 5 years in the case of rot damage to wooden stand posts in the earthworks.

9.3. The above limitation periods of the law on sales also apply to contractual and non-contractual claims for damages of the buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. However, claims for damages by the Buyer pursuant to § 8 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become statute-barred exclusively in accordance with the statutory limitation periods.

 

10.    Design and material changes

We are entitled to make changes at any time which do not impair the functionality of our delivery items without affecting the content of the contract in other respects.

 

11.    Data protection

11.1 Richter Spielgeräte GmbH stores the data required for the processing of business transactions, complaints and the provision of services on an EDP basis. All personal data shall be treated confidentially by Richter Spielgeräte GmbH and shall not be passed on to third parties for the purpose of advertising or market research. By placing an order, the customer agrees that the data required for the performance of the contract may be stored by Richter Spielgeräte GmbH.

11.2 If the customer provides Richter Spielgeräte GmbH with data which he considers to be trustworthy and for which he considers a special interest worthy of protection, Richter Spielgeräte GmbH must be informed of this before the data is provided.

 

12.    Other provisions

12.1 Place of performance is Frasdorf/Obb.

12.2 The place of jurisdiction for all disputes, including actions on cheques and bills of exchange, shall be Rosenheim, Upper Bavaria, insofar as the purchaser is a registered trader or has no general place of jurisdiction in Germany or moves its place of residence or business abroad after conclusion of the contract. However, we are also entitled to sue the customer at his general place of jurisdiction.

12.3 The invalidity of individual provisions shall not affect the validity of the remaining provisions.
provisions. Ineffective provisions shall be replaced by effective provisions which come as close as possible to the
the intended purpose as closely as possible.

12.4 German law shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.