General Terms and Conditions of Sale and Delivery of Rovita GmbH
1.1 These General Terms and Conditions of Sale and Delivery (hereinafter referred to as “GTCs”) shall apply exclusively to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) (hereinafter referred to as “Customer”), i.e. natural persons or legal entities who, when entering into a legal transaction, act in the interest of their commercial or independent professional activity.
1.2 These GTCs apply exclusively for the business relationship with our customers, including information and advice. If our GTCs have been introduced into the business with the customer, they shall also apply to all further business relations between the customer and us, unless otherwise expressly agreed in writing. Deviating General Terms and Conditions of Purchase of the customer shall only apply if and to the extent that we expressly accept them in writing. Our silence with regard to such deviating General Terms and Conditions of Purchase shall in particular not be deemed as acceptance nor consent, also not for future contracts.
1.3 Our General Terms and Conditions of Purchase shall apply in place of any General Terms and Conditions of Purchase of the customer even if, according to these, the acceptance of the order is provided for as unconditional acceptance of the General Terms and Conditions of Purchase, or if we deliver after having been informed by the customer of the applicability of his General Terms and Conditions of Purchase, unless we have expressly waived the applicability of our General Terms and Conditions of Purchase in writing. By accepting our order confirmation, the customer expressly acknowledges that it waives its legal objection derived from the General Terms and Conditions of Purchase.
1.4 If framework agreements have been concluded between the parties, these shall take precedence. They shall be supplemented there by these GTC, unless more specific provisions have been made.
2.1 Information and explanations regarding our products are based exclusively on our previous experience.
2.2 A reference to standards, similar regulations as well as information, descriptions and illustrations of our products in offers and brochures and our advertising shall only constitute a statement of the properties of our products if we have expressly declared the property to be a “characteristic of the product”; otherwise, these are non–binding, general descriptions of performance.
2.3 A guarantee shall only be deemed to have been assumed by us if we have designated a property and/or a performance outcome as “legally guaranteed” in writing.
2.4 The basic data provided to us by the customer for the manufacture of the products, i.e. the values and specifications provided by the customer, shall be used by us as a basis for the manufacture of the products.
2.5 We do not assume any liability for the usability of our products for the purpose intended by the customer outside of the legally mandatory liability, unless we have agreed otherwise in writing with the customer.
2.6 We reserve the property rights and copyrights to illustrations, drawings, weight and dimension specifications, performance and other property descriptions, cost estimates and other documents relating to our products and services. The customer undertakes not to make the documents listed in the above sentence available to third parties unless we give our express written consent
3.1 If agreed, we provide the customer with product samples of the ordered products before manufacturing the entire products. Only after testing and confirmation of the product sample by the customer shall we subsequently produce the entire ordered products.
3.2 The properties of any product samples shall only become part of the contract if this has been expressly agreed in writing.
3.3 The customer is not entitled to use or pass on product samples. Our product samples remain – unless a purchase has been expressly agreed – our property and may not be used or made available to third parties without our written consent. All copyrights, design and utility model rights to sample copies shall remain with the rights holders despite the transfer.
4.1 Our offers are subject to change unless they are expressly marked as binding or contain binding commitments. They are merely requests to the customer to place orders. Even in ongoing business transactions, a contract shall only be concluded when we confirm the customer’s order in writing or in text form (i.e. also by fax or email). In case of immediate delivery, our confirmation can be replaced by our invoice.
4.2 Our order confirmation shall be decisive for the content of the delivery contract.
4.3 All agreements, ancillary agreements, assurances and amendments to the contract must be in writing. This also applies to the waiver of the written form agreement itself. Verbal amendments to the contract or additions to the contract are null and void. The priority of an individual agreement (§ 305 b BGB) remains unaffected.
4.4 The customer must inform us in writing in good time before conclusion of the contract of any special requirements for our products.
4.5 We are only obligated to provide products from our own stock.
4.6 The assumption of a procurement risk does not lie solely in our obligation to deliver an item determined only by its type. We shall only assume a procurement risk by virtue of a separate written agreement using the wording “we assume the procurement risk…”.
4.7 If the shipment is delayed at the request of the customer or for reasons for which the customer is responsible, we are entitled to store the products starting with the expiry of the period set with the written notice of readiness for shipment and to invoice the resulting costs at 0.5% of the net invoice sum of the stored products for each month or part thereof. The assertion of further rights remains unaffected. The customer reserves the right to prove that no costs or significantly lower costs were incurred. In addition, we shall be entitled to dispose otherwise of the contractual products after expiry of the deadline and to resupply the customer within a reasonable period of time.
5.1 Binding delivery dates and delivery periods must be expressly agreed in writing. In the case of non–binding or approximate delivery dates and delivery periods (approx., about, etc.), we shall make every effort to comply with them.
5.2 A transaction for delivery by a fixed date shall only be deemed to exist if we have expressly confirmed such a transaction for delivery by a fixed date in writing or if the legal requirements for a transaction for delivery by a fixed date are met. Merely the unilateral designation of a delivery as a firm deal by the customer is not sufficient for this.
5.3 Delivery and/or performance periods shall commence upon receipt of our order confirmation by the customer, but not before all details of the execution of the order have been clarified and all other prerequisites to be fulfilled by the customer have been met or, in particular, agreed down payments or securities have been paid in full. The same shall apply to delivery and/or performance dates. If the customer has requested changes after placing the order, a new reasonable period for delivery and/or performance shall commence upon our confirmation of the change.
5.4 If we are in default of delivery, the customer must first set us a reasonable grace period of at least – unless unreasonable in individual cases – 14 days for performance. If this period expires without result, claims for damages due to breach of duty – irrespective of the reason – shall only exist in accordance with the provisions of Sections 5.6 and 11.
5.5 We shall not be in default as long as the customer is in default with the fulfillment of obligations towards us, including those arising from other contracts.
5.6 If the customer incurs damage due to our delay, it shall be entitled to claim compensation for the delay to the exclusion of any further claims. It shall amount to 0.5% for each full week of delay, but in total not more than 5% of the net price of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay. Any further compensation on our part due to the damage caused by the delay is excluded. This shall not apply in the event of intentional or fraudulent trading on our part, in the event of damage due to injury to life, limb or health, and in the event of default in the event of an agreed fixed transaction (cf. Clause 5.2) in the legal sense.
5.7 As long as means of transport to be provided by the customer are not available, we are not obliged to deliver. However, we shall be entitled to effect delivery by means of our own or hired means of transport in the event of an executable shipping order or call–off order. In this case, the products are transported at the risk of the customer.
6.1 If, for reasons for which we are not responsible, we do not receive the deliveries or services of our suppliers required for the performance of our contractual delivery owed for this purpose, or do not receive them correctly or on time, despite proper and sufficient coverage prior to the conclusion of the contract with the customer, or if events of force majeure occur, we shall inform our customer in writing or in text form in due time. In this case, we are entitled to postpone the delivery for the duration of the impediment or to withdrawfrom the contract in whole or in part due to the part not yet fulfilled, provided that we have fulfilled our aforementioned duty to inform and have not assumed the procurement risk. Force majeure shall include strikes, lockouts, official interventions, shortages of energy and raw materials, transport bottlenecks for which we are not responsible, operational hindrances for which we are not responsible e.g. due to fire, water and machine damage -, and all other hindrances which, viewed objectively, were not culpably caused by us.
6.2 If a delivery date or a delivery period has been bindingly agreed and if the agreed delivery date or the agreed delivery period is exceeded due to events pursuant to Section 6.1, the customer shall be entitled to rescind the contract with respect to the part not yet performed after the expiry of a reasonable grace period if it is objectively unreasonable to expect it to continue adhering to the contract. Further claims of the customer, in particular claims for damages, are excluded in this case.
6.3 The foregoing provision pursuant to Clause 6.2 shall apply mutatis mutandis if a customary delivery period has been exceeded for the reasons stated in Clause 6.1, even without a contractual agreement on a fixed delivery date.
7.1 Unless otherwise agreed in writing, we shall ship the goods uninsured at the risk and expense of the customer and ex our works, i.e. the registered office of our company in Trostberg (INCOTERM EXW).
7.2 If our order confirmation contains a clause listed in INCOTERMS, the latest version of INCOTERMS shall apply to the respective clause, unless otherwise stated in our order confirmation.
7.3 We reserve the right to choose the transport route and the means of transport. However, we shall endeavor to take into account the customer’s wishes with regard to the mode and route of shipment; any additional costs incurred as a result – even in the case of agreed freight–free delivery – shall be borne by the customer.
7.4 If shipment is delayed at the customer’s request or through the customer’s fault, we shall store the products at the customer’s expense and risk. In this case, the notification of readiness for shipment is equivalent to the shipment.
7.5 The risk of accidental loss or accidental deterioration shall pass to the customer when the products to be delivered are handed over to the customer, the carrier, the freight forwarder or the undertakings otherwise designated to carry out the shipment, but no later than when the products leave our works/place of business.
7.6 If the shipment is delayed because we exercise our right of retention as a result of the customer’s default in payment in whole or in part or for any other reason for which the customer is responsible, the risk shall pass to the customer no later than the date of notification of readiness for shipment.
7.7 If the products are taken over by the customer or a third party designated by the customer, the takeover dates/times must be coordinated with us in good time.
8.1 The customer must notify us of any recognisable material defects immediately, but no later than 14 days after collection in the case of delivery ex works/business location, otherwise after delivery. The customer shall notify us of any hidden material defects immediately upon discovery, however, before the expiry of the warranty period pursuant to Section 8.6. Failure to give notice of defect in due time shall exclude any claim of the customer based on breach of duty due to material defects. This shall not apply in the event of intentional or fraudulent action on our part, the assumption of a guarantee of freedom from defects by us or in the event of liability under the Product Liability Act.
8.2 The notice of defects according to Clause 8.1 must be made in writing. Failure to give notice of defects in due form also excludes any claim of the customer due to defects.
8.3 In addition, the transport company must be notified of any visible material defects upon delivery and the recording of the defects must be arranged by the transport company. Notifications of defects must contain a description of the defect. Failure to give notice of defects in due time shall preclude any claim of the customer based on breach of duty due to defects. This shall not apply in the event of intentional or fraudulent acts on our part, in the event of injury to life, limb or health or assumption of a guarantee of freedom from defects or liability under the Product Liability Act.
8.4 Upon commencement of processing, treatment, combination or mixing with other items, the delivered products shall be deemed to have been approved by the customer in accordance with the contract in the event of recognizable material defects. The same shall apply in the event of onward shipment from the original destination. Before commencing any of the aforementioned activities, the customer shall be responsible for clarifying, by means of appropriate tests in terms of scope and methodology, whether the products supplied are suitable for the processing, procedure and other uses intended by it
8.5 Other breaches of duty are to be warned in writing by the customer without delay, setting an appropriate remedy period, before further rights are asserted.
8.6 Insofar as the breach of duty does not exceptionally relate to a work performance on our part, withdrawal shall be excluded insofar as our breach of duty is insignificant.
8.7 Unless expressly agreed otherwise or in the case of §§ 478, 479 BGB (right of recourse in the supply chain), we shall provide a warranty for material defects for a period of one (1) year, calculated from the date of transfer of risk (see clause 7).
8.8 Further claims of the customer due to or in connection with defects or consequential damage caused by defects, irrespective of the reason, shall only exist in accordance with the provisions of Section 11, unless they are claims for damages under a warranty which is intended to protect the customer against the risk of possible defects. Even in this case, however, we shall only be liable for the typical andforeseeable damage.
8.9 If unauthorized changes are made to the products that do not comply with our specifications, we shall not be liable for the resulting consequences.
8.10 Our warranty and the liability resulting therefrom shall also be excluded insofar as defects and related damage are not demonstrably due to defective material. In particular, the warranty and the resulting liability are excluded for the consequences of incorrect use, excessive use or unsuitable storage conditions, for example the consequences of chemical, electromagnetic, mechanical or electrolytic influences that do not correspond to the intended, average standard influences. This shall not apply in the event of fraudulent or intentional conduct on our part or injury to life, limb or health or liability under the Product Liability Act.
8.11 The acknowledgement of breaches of duty, in particular in the form of material defects, must always be made in writing.
9.1 All our prices are always quoted in EURO, freight and value added tax to be borne by the customer at the statutory rate. The prices as well as price surcharges shall be determined according to our price list generally valid at the time of the conclusion of the contract, unless otherwise agreed.
9.2 We are entitled to unilaterally adjust prices as appropriate (§ 315 BGB) in the event of an increase in material procurement or production costs, taxes, wage and ancillary wage costs
as well as energy costs and costs resulting from environmental regulations, if there are more than four months between conclusion of the contract and delivery. An increase in the aforementioned sense is excluded to the extent that the cost increase in the aforementioned factors is offset by a cost reduction in some of the other aforementioned factors with respect to the total cost burden for the delivery.
9.3 Our invoices are payable within 14 days after delivery of the products without any deduction, unless otherwise agreed in writing.
9.4 In the absence of payment, the customer shall be in default of payment within 15 days of delivery, even without a reminder.
9.5 Upon the occurrence of default, the customer shall be charged default interest in the amount of 9% above the base interest rate applicable at the time the payment claim is due. We reserve the right to assert claims for damages in excess thereof.
9.6 The date of payment shall be the date on which the money is received by us or credited to our account.
9.7 Default of payment by the customer shall cause all payment claims arising from the business relationship with the customer to become due immediately. In this case, all of the customer’s liabilities to us shall become due for payment immediately, irrespective of any deferral agreements or instalment agreements.
9.8 If payment terms are not met or if circumstances become known or recognisable which, according to our due commercial discretion, give rise to justified doubts about the creditworthiness of the customer, including facts which already existed at the time of conclusion of the contract but which were not known to us or should have been known to us, we shall be entitled, without prejudice to further statutory rights in such cases, to discontinue further work on current orders or deliveries and to demand advance payments or the provision of securities acceptable to us for outstanding deliveries and, after unsuccessful expiry of a reasonable grace period for the provision of such securities – without prejudice to further statutory rights – to withdraw from the contract. The customer is obliged to compensate us for all damages resulting from the non–execution of the contract.
9.9 The customer shall only have a right of retention or set–off with regard to counterclaims that are not disputed or have been established as final and absolute.
9.10 The customer may only exercise a right of retention to the extent that its claim is based on the same contractual relationship
10.1 We reserve title to all goods delivered by us (hereinafter referred to as a whole as “goods subject to retention of title”) until all our claims arising from the business relationship with the customer, including claims arising in the future from contracts concluded at a later date, have been settled. This shall also apply to a balance in our favor if individual or all claims are included by us in a current account and the balance is drawn.
10.2 The customer shall insure the reserved goods sufficiently, in particular against fire and theft. Claims against the insurance company arising from a claim relating to the reserved goods are hereby assigned to us in the amount of the value of the reserved goods.
10.3 The customer is entitled to resell the delivered products in the ordinary course of business. It is not permitted to make other dispositions, in particular pledges or the granting of ownership by way of security. If the goods subject to retention of title are not paid for immediately by the third party purchaser
upon resale, the customer is obligated to only resell subject to retention of title. The right to resell the goods subject to retention of title shall lapse automatically if the customer suspends payment or defaults on payment to us.
10.4 The customer hereby assigns to us all claims, including securities and ancillary rights, accruing to it against the end buyer or against third parties from or in connection with the resale of the reserved goods. It may not enter into any agreement with its customers that excludes or impairs our rights in any way or nullifies the advance assignment of the claim. In the event of the sale of goods subject to retention of title with other items, the claim against the third party purchaser shall be deemed assigned in the amount of the delivery price agreed between us and the customer, unless the amounts attributable to the individual goods can be determined from the invoice.
10.5 The customer remains entitled to collect the claim assigned to us until our revocation, which is permissible at any time. At our request, the customer shall be obliged to provide us with all information and documents required for the collection of assigned claims and, if we do not do so ourselves, to inform its customers immediately of the assignment to us.
10.6 If the customer includes claims from the resale of goods subject to retention of title in a current account relationship existing with its customers, it shall now assign to us a recognised closing balance resulting in its favour in the amount corresponding to the total amount of the claim from the resale of our goods subject to retention of title included in the current account relationship.
10.7 If the customer has already assigned claims from the resale of the products delivered or to be delivered by us to third parties, in particular on the basis of genuine or non–genuine factoring, or has entered into other agreements on the basis of which our current or future security rights may be impaired in accordance with this Clause 10, it shall notify us thereof without undue delay. In the event of non–genuine factoring, we shall be entitled to withdraw from the contract and demand the return of products already delivered. The same applies in the case of genuine factoring if the customer cannot freely dispose of the purchase price of the receivable under the contract with the factor.
10.8 In the event of breach of contract by the customer, in particular in the event of default in payment, we shall be entitled to take back all goods subject to retention of title without having to withdraw from the contract beforehand. In this case, the customer is obligated to hand over the goods without delay. We may enter the customer’s business premises at any time during normal business hours in order to determine the stock of the goods delivered by us. The taking back of the goods subject to retention of title shall only constitute a rescission of the contract if we expressly declare this in writing or if mandatory statutory provisions provide for this. The customer must immediately inform us in writing of any access by third parties to goods subject to retention of title or claims assigned to us.
10.9 If the value of the securities existing for us in accordance with the above provisions exceeds the secured claims by more than 10% in total, we shall be obliged to release securities of our choice to this extent at the customer’s request.
10.10 Machining and processing of the goods subject to retention of title shall be carried out for us as manufacturer within the meaning of § 950 BGB without, however, obligating us. If the goods subject to retention of title are processed or inseparably combined with other items not belonging to us, we shall acquire co–ownership of the new item in the ratio of the invoice value of our goods to the invoice values of the other processed or combined items. If our goods are combined with other movable objects to form a uniform object which is to be regarded as the main object, the customer hereby assigns to us co–ownership thereof in the same proportion. The customer shall keep the property or co–property for us free of charge. The co–ownership rights arising hereunder shall be deemed to be reserved goods. At our request, the customer shall be obliged at any time to provide us with the information required to pursue our
ownership or co–ownership rights.
11.1 In principle, we shall only be liable for intent and gross negligence on our part and on the part of our legal representatives and vicarious agents. Our liability and that of our legal representatives and vicarious agents for slight negligence shall therefore be excluded, unless it concerns
(a) the violation of essential contractual obligations,
(b) the breach of obligations within the meaning of Section 241 (2) of the German Civil Code (BGB), if the customer can no longer reasonably be expected to accept our performance,
(c) the injury to life, body and health,
(d) the assumption of a guarantee for the quality of a service, for the existence of a success of a service or for a procurement risk,
(e) malice,
(f) initial impossibility,
(g) claims under the Product Liability Act or
(h) other cases of mandatory legal liability.
“Material contractual obligations” are those obligations that protect legal positions of the customer that are material to the contract and that the contract is precisely intended to grant to the customer according to its content and purpose. Furthermore, essential contractual obligations are those whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the customer regularly relies and may rely.
11.2 Unless we can be accused of an intentional breach of duty or in the event of injury to life, limb or health or other cases of mandatory statutory liability, we shall only be liable for typical and foreseeable damage.
11.3 Liability for indirect damages and consequential damages is excluded, unless we have violated an essential contractual obligation or we, our executives or our vicarious agents are accused of an intentional or grossly negligent breach of duty, or in the event of injury to life, limb or health.
11.4 Any further liability for damages than that provided for in the above paragraphs is excluded, irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages due to culpa in contrahendo, due to other breaches of duty or due to tortious claims for compensation for property damage in accordance with § 823 BGB.
11.5 The exclusions or limitations of liability pursuant to the above Sections 11.1 to 11.4 shall apply to the same extent in favour of our executive and non–executive employees and other vicarious agents as well as our subcontractors.
11.6 Claims of the customer for damages arising from this contractual relationship may only be asserted within a preclusion period of one (1) year from the statutory commencement of the limitation period. This shall not apply if we are guilty of malice, intent or gross negligence or in the event of a claim based on a tortious act. The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected.
11.7 A reversal of the burden of proof is not associated with the preceding provisions.
12.1 We are only obliged to deliver the products free of rights or claims of third parties which are based on industrial property rights or other intellectual property and which we knew at the time of conclusion of the contract or did not know due to gross negligence, unless the right or claim is based on industrial property rights or other intellectual property
(a) according to the law of the Federal Republic of Germany, provided that our customer has its registered office or branch office
there; or
(b) under the law of a foreign country, provided that the customer has its registered office or place of business there; or
(c) under the law of a third country only if we have expressly agreed in writing with the customer on the use or sale of our products
in that third country.
12.2 If a third party asserts justified claims against our customers with regard to the products supplied by us in accordance with
paragraph 1 above, we shall be liable to the customer within the period specified in clause 8.7 as follows:
(a) We shall, at our discretion, first attempt to obtain, at our expense, either a right of use for the deliveries concerned or modify the products in such a way that the property right is not infringed, or replace them. If we are unable to do so on reasonable terms, the customer shall be entitled to its statutory rights, which shall, however, be governed by these General Terms and Conditions of Sale and Delivery.
(b) The customer is obligated to immediately inform us in writing of the claims asserted by the third party not to acknowledge an infringement and to reserve all defensive measures and settlement negotiations for us. If the customer ceases to use the products in order to mitigate damages or for other important reasons, it shall be obligated to point out to the third party that the cessation of use does not constitute any acknowledgement of an infringement of property rights. If, as a result of the use of the products supplied by us, the customer is attacked by third parties on account of infringements of industrial property rights, the customer undertakes to inform us of this immediately and to give us the opportunity to participate in any legal dispute. The customer shall support us in every respect in the conduct of such litigation. The customer shall refrain from actions that could impair our legal position.
12.3 Our obligation under Paragraph 1 does not extend to cases
(a) in which the infringement of property rights results from the fact that we have based the manufacture of the products on information or other data provided or specified by the customer, or
(b) in which the infringement of property rights is caused by an application by the customer not foreseeable by us or by the fact that the products are modified by the customer or mixed or used together with products not supplied by us.
12.4 Our liability according to Clause 11 remains unaffected.
13.1 The customer undertakes to keep confidential such facts, documents and knowledge which come to its attention in the course of the performance of the business relations with us and which contain technical, financial, business or market–related information about our company, provided that we have designated the respective information as confidential or have an obvious interest in keeping it confidential (hereinafter collectively referred to as “Confidential Information”). The customer shall use the confidential information exclusively for the purpose of the contractual implementation and execution of the contractual relationship with us and the individual contracts based thereon.
13.2 The disclosure of confidential information by the customer to third parties requires our express and prior written consent.
13.3 The obligation to maintain secrecy pursuant to Section 13.1 above shall not apply if it can be proven that the respective confidential information:
(a) is state of the art accessible to the general public or this information becomes state of the art without any action on the part of the customer or
(b) was already known to the customer or is made known by a third party authorised to disclose it, or
(c) is developed by the customer without our involvement and without utilising other information or knowledge obtained through the contractual contact, or
(d) must be disclosed due to mandatory legal provisions or court or official orders.
14.1 The place of performance for all contractual obligations shall be the registered office of our company, with the exception of the case of the assumption of a debt to be discharged at creditor’s domicile.
14.2 The exclusive place of jurisdiction for all disputes shall be – to the extent permitted by law – the court having jurisdiction over the registered office of our company. However, we are also entitled to sue the customer at its general place of jurisdiction.
14.3 All legal relations between the customer and us shall be governed exclusively by the laws of the Federal Republic of Germany, in particular to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CSIG).
15.1 An application for the opening of insolvency proceedings by the customer or the customer’s suspension of payments not based on rights of retention or other rights shall entitle us to withdraw from the contract at any time or to make the delivery of the object of sale dependent on the prior fulfillment of the payment obligation. If the delivery of the object of sale has already taken place, the purchase price shall become due immediately in the aforementioned cases. We are also entitled to reclaim the purchased item in the aforementioned cases and to retain it until the purchase price has been paid in full.
15.2 If the customer suspends payments or files for insolvency, the customer shall no longer be entitled to sell, process, combine or mix reserved goods (see Section 10.1). In this case, it shall rather carry out the immediate separate storage and marking of the goods subject to retention of title and shall hold in trust for us amounts due to us from assigned claims due to product deliveries and amounts received by it.
Notice:
In accordance with the provisions of the Federal Data Protection Act, we would like to point out that our bookkeeping is carried out via EDP systems and that in this context we also store the data received on the basis of the business relationship with the customer.