General Terms and Conditions of Sale, Delivery and Business
§ 1 General - Scope
(1) Our Terms and Conditions of Sale shall apply exclusively; we do not recognise any terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge of terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale.
(2) All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
(3) Our Terms and Conditions of Sale shall only apply to entrepreneurs within the meaning of Section 310 (1) of the German Civil Code (BGB).
§ 2 Offer - Offer Documents
(1) If the order is to be qualified as an offer in accordance with § 145 BGB, we can accept this within 2 weeks.
(2) We reserve the property rights and copyrights to illustrations, drawings, calculations, samples, cost estimates and other documents or information of a tangible or intangible nature - including in electronic form. The customer requires our express written consent before passing them on to third parties.
§ 3 Payments - Terms of payment - Default in payment
(1) In the absence of a special agreement, the prices shall apply ex works, but excluding packaging. This will be invoiced separately. Value added tax at the respective statutory rate shall be added to the prices.
(2) In the absence of a special agreement, payment shall be made to us without any deduction à account in the amount of a deposit of 50% after conclusion of the contract.
(3) In the absence of a special agreement, payment of the remaining full contract price shall be made to us step by step against handover of the goods ex works.
(4) The deduction of a discount requires a special written agreement.
(5) The customer shall only be entitled to withhold payments insofar as its counterclaims are undisputed or have been legally established.
(6) The customer shall only be entitled to offset counterclaims from other legal relationships insofar as they are undisputed or have been legally established.
(7) The customer shall only have the right to offset counterclaims arising from this legal relationship insofar as they are undisputed or have been legally established.
(8) The customer shall be in default of payment with regard to the outstanding contract price if he does not pay for the contractual item (our performance) within 10 days after notification that our performance is ready for collection against delivery of the transfer of ownership ex works step by step against payment, § 286 para. 2 no. 2 BGB.
(9) The occurrence of default under other statutory provisions shall remain unaffected.
§ 4 Delivery time
(1) The delivery time results from the agreements of the contracting parties. Compliance with the delivery time by us requires that all commercial and technical questions between the contracting parties have been clarified and that the customer has fulfilled all obligations incumbent upon him, such as the provision of the necessary official certificates or approvals or the payment of deposits. If this is not the case, the delivery period shall be extended accordingly. This shall not apply if we are responsible for the delay.
(2) Compliance with the delivery time is subject to correct and timely delivery to us. We shall inform you as soon as possible of any delays that become apparent.
(3) If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims or rights remain reserved.
(4) If the conditions of paragraph (3) are met, the risk of accidental loss or accidental deterioration of the contractual item shall pass to the customer at the time at which the customer is in default of acceptance or debtor's delay.
(5) If non-compliance with the delivery time is due to force majeure, industrial disputes or other events beyond our control, the delivery time shall be extended accordingly. We shall inform the customer of the beginning and end of such circumstances as soon as possible.
(6) The customer may withdraw from the contract without setting a deadline if the entire performance becomes definitively impossible for us before the transfer of risk. Furthermore, the customer may withdraw from the contract if the execution of a part of the delivery becomes impossible in the case of an order and the customer has a justified interest in refusing the partial delivery. If this is not the case, the customer shall pay the contract price attributable to the partial delivery. The same shall apply in the event of the supplier's inability to perform.
If the impossibility or incapacity occurs during the delay in acceptance and if the customer is solely or predominantly responsible for these circumstances, he shall remain obliged to counter-performance.
(7) If the customer sets us a reasonable deadline for performance after the due date - taking into account the statutory exceptions - and if the deadline is not met, the customer shall be entitled to withdraw from the contract within the framework of the statutory provisions. At our request, the customer undertakes to declare within a reasonable period of time whether it will exercise its right of withdrawal.
§ 5 Transfer of risk - packaging costs
(1) Unless otherwise stated in the contract, delivery "ex works" is agreed.
(2) Packaging materials that have not been paid for must be returned by the customer at his own expense.
(3) If the customer so desires, we shall cover a delivery, which in the absence of an agreement to the contrary is always made at the expense and risk of the customer, by transport insurance; the additional costs incurred in this respect shall be borne by the customer.
§ 6 Liability for defects
(1) Claims for defects on the part of the customer presuppose that the customer has properly fulfilled its obligations to inspect and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
(2) Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality or only insignificant impairment of usability.
(3) Within the scope of subsequent performance, we shall not be obliged to provide the services again or to re-manufacture the contractual item.
(4) The customer's request for rectification must be made in writing.
(5) In the event of a justified notification of defects in due time, the goods shall be returned to our works by the customer free of charge and shall be repaired free of charge or replaced by faultless goods at our discretion. This also applies to vehicles (self-propelled), trailers and containers.
(6) We shall be granted a period of at least 3 weeks for subsequent performance.
(7) If the rectification of defects fails, the customer shall have the right to reduce the price or, at its option, to withdraw from the contract. If the service is to be rectified, the rectification shall be deemed to have failed at the earliest after the second unsuccessful attempt.
The customer's right to claim damages under these terms and conditions remains unaffected.
(8) The expenses necessary for the purpose of rectification shall be borne by the customer insofar as they are increased by the fact that the services or the contractual item are or have been taken to a place other than our works.
(9) Without prejudice to further claims on our part, in the event of an unjustified notice of defect, the customer shall reimburse us for the expenses incurred in inspecting and - insofar as requested - rectifying the defect.
(10) We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(11) We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, too, however, liability for damages shall be limited to the foreseeable, typically occurring damage.
(12) Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
(13) Unless otherwise stipulated above, liability is excluded.
(14) The limitation period for claims for defects is 12 months, calculated from the transfer of risk.
§ 7 Joint and several liability
(1) Any further liability for damages than provided for in § 6 is excluded - regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for property damage pursuant to § 823 BGB.
(2) The limitation according to paragraph (1) shall also apply insofar as the customer demands reimbursement of useless expenses instead of a claim for damages.
(3) Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.
§ 8 Retention of title
(1) We retain ownership of the purchased item until receipt of all payments under the contract. In the event of conduct by the customer in breach of the contract, in particular in the event of default in payment, we shall be entitled to take back the object of sale. Our taking back of the object of sale shall constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to realise it; the proceeds of realisation shall be set off against the customer's liabilities - less reasonable realisation costs.
(2) The customer is obliged to treat the object of sale with care; in particular, he is obliged to insure it adequately at his own expense against fire, water and theft at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
(3) In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
(4) The customer shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim, which accrue to him from the resale against his customers or third parties. The customer shall remain authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have not been suspended. However, if this is the case, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(5) The customer also assigns to us the claims to secure our claims against him which arise against a third party through the connection of the object of sale with a property.
(6) We undertake to release the securities to which we are entitled at the customer's request insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is incumbent on us.
§ 9 Place of Jurisdiction/Place of Performance
(1) The place of jurisdiction is our place of business; however, we are also entitled to sue the customer at the court of his place of residence.
(2) The law of the Federal Republic of Germany shall apply; the UN Convention on Contracts for the International Sale of Goods shall not apply.
(3) Unless otherwise stated in the order confirmation, our registered office shall be the place of performance.
ROKA Werk GmbH, Daimlerstraße 4, 35799 Merenberg
Merenberg, January 2019