General Terms and Conditions of Delivery and Assembly
1. Area of application
1.1 All deliveries, services and offers of the ROTHO division of Robert Thomas Metall- und Elektrowerke GmbH & Co. KG (hereinafter also referred to as "Contractor") shall be made exclusively on the basis of these General Terms and Conditions of Delivery and Assembly (GTC). These are an integral part of all contracts which the Contractor concludes with its contractual partners (hereinafter also referred to as "Customer") for the deliveries or services offered by it. They shall also apply to all future deliveries, services or offers to the Client, even if they are not separately agreed again.
1.2.These GTC shall apply exclusively; conflicting or deviating GTC of the Client shall not be recognized unless the Contractor has expressly agreed to their validity in writing
2. Offers, contract signing and documents
2.1 The Contractor's offers are non-binding until final order confirmation.
2.2 The client's order is a binding offer.
2.3 The legal relationship between the Contractor and the Client shall be governed solely by the purchase contract concluded in writing, including these GTC. This fully reflects all agreements between the contracting parties on the subject matter of the contract. Verbal promises made by the Contractor prior to the conclusion of this contract shall not be legally binding and verbal agreements between the contracting parties shall be replaced by the written contract.
2.4Additions and amendments to the agreements made, including these GTC, must be made in writing to be effective.
2.5 Information provided by the Contractor on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as representations of the same by the Contractor (e.g. drawings and illustrations) are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.
2.6 The Contractor reserves the right of ownership or copyright to all offers and cost estimates submitted by it as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Client. The Client may not make these items accessible to third parties, disclose them, use them itself or through third parties or reproduce them without the express consent of the Contractor. At the Contractor's request, the Client must return these items to the Contractor in full and destroy any copies made if they are no longer required in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. An exception to this is the storage of electronically provided data for the purpose of standard data backup. The data and information contained in the documents shall not constitute any guarantee commitments; guarantee commitments shall in any case require express written confirmation by the Contractor
3. Prices / payment conditions
3.1 The prices apply to the scope of services and delivery listed in the order confirmations. Additional or special services shall be invoiced separately. The prices are quoted in euros free carrier (FCA) plus packaging, statutory VAT, customs duties for export deliveries as well as fees and other public charges.
3.2 Prices can be agreed as a binding fixed price, as a percentage fee, as a guide price, according to hourly expenditure or measurement; they are generally subject to statutory VAT. The parties have the right to renegotiate an appropriate increase in prices if the period between order confirmation and delivery date is longer than 12 months for reasons for which the contractor is not responsible.
3.3 If the scope of the respective order performance is changed by mutual agreement during the execution of the order, in particular if it is extended, the Contractor may demand a corresponding adjustment of the agreed prices and remuneration, in particular an increase thereof. The Contractor shall be entitled to temporarily suspend the performance of the contractual services until agreement has been reached on a corresponding adjustment of the prices and remuneration if the Contractor has informed the Client of this in writing in advance. Any delays resulting from this shall not be borne by the Contractor. A unilateral change to the contract performance by the client is excluded.
3.4 Unless otherwise agreed, the Contractor shall be entitled, at its reasonable discretion, to demand an appropriate advance payment and to issue partial invoices for services already rendered or depending on the progress of performance.
3.5 All invoices of the Contractor shall be due for payment net cash within 10 days of receipt.
3.6 Upon expiry of the above payment deadline, the client shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. The Contractor reserves the right to claim further damages caused by default.
3.7 The Client shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been recognized by the Contractor. The Client shall only be authorized to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.
3.8 The Contractor shall be entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, it becomes aware of circumstances which are likely to significantly reduce the Client's creditworthiness and which jeopardize the payment of the Contractor's outstanding claims by the Client arising from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).
4. Delivery / delivery time / duty to cooperate
4.1 Deliveries are ex works.
4.2 The time of performance shall be determined by the agreements between the contracting parties. The Contractor's adherence to this time shall be subject to the condition that all commercial and technical questions between the contracting parties have been clarified and that the Client has fulfilled all obligations incumbent upon it, such as the provision of the necessary official certificates or approvals or the payment of a deposit. If this is not the case, the delivery time shall be extended accordingly. This shall not apply if the Contractor is responsible for the delay.
4.3 Deadlines and dates for deliveries and services promised by the Contractor are always only approximate, unless a fixed deadline or a fixed date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third party commissioned with transportation.
4.4 The Contractor may - without prejudice to its rights arising from default on the part of the Client - demand from the Client an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the Client fails to meet its contractual obligations towards the Contractor.
4.5 If the Client is responsible for a delay, it shall bear the additional costs incurred for waiting times and additional travel times required by the Contractor's personnel.
4.6 The Contractor shall not be liable for impossibility of delivery 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 (not exclusively, but also war, pandemics, terrorism, travel restrictions, embargo, hostage-taking, operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which the Contractor is not responsible. If such events make delivery or performance significantly more difficult or impossible for the Contractor and the hindrance is not only of a temporary nature, the Contractor shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period. If the Client cannot reasonably be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by immediate written declaration to the Contractor.
4.7 The Contractor shall only be entitled to make partial deliveries if
a) the partial delivery can be used by the customer within the scope of the contractual purpose,
b) the delivery of the remaining ordered goods is ensured and
c) the Client does not incur any significant additional expenditure or additional costs as a result (unless the Contractor agrees to bear these costs).
4.8 The occurrence of a delay in delivery by the Contractor shall be determined in accordance with the statutory provisions. In any case, a reminder from the Client is required irrespective of this.
4.9 The Client shall be liable to the Contractor for ensuring that the services provided by it and the documents, information, data and items provided as part of the cooperation are free from third-party property rights that exclude or impair their contractual use by the Contractor.
5. Place of performance / shipping / packaging / transfer of risk / acceptance
5.1 The place of performance for all obligations arising from the contractual relationship shall be Neunkirchen (Siegerland), unless otherwise agreed. If the Contractor is also responsible for assembly, the place of performance shall be the place where the assembly is to take place.
5.2 The type of shipment and packaging are subject to the dutiful discretion of the contractor.
5.3 The risk shall pass to the Client at the latest upon handover of the delivery item (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or if the Contractor has assumed other services (e.g. shipment or assembly). If the Contractor is also responsible for assembly, the Client shall be obliged to store the delivery items properly and protected from the weather until assembly. If dispatch or handover is delayed as a result of circumstances caused by the Customer, the risk shall pass to the Customer from the day on which the delivery item is ready for dispatch and the Contractor has notified the Customer of this.
5.4 Storage costs after the transfer of risk shall be borne by the Client. In the case of storage by the Contractor, the storage costs shall amount to 0.5% of the order value of the delivery items to be stored per week or part thereof. The assertion and proof of further or lower storage costs shall remain reserved.
5.5 The consignment shall only be insured by the Contractor against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Client and at the Client's expense.
5.6 If acceptance is to take place, the purchased item shall be deemed to have been accepted if
a) the delivery and, if the Contractor is also responsible for assembly, the assembly has been completed,
b) the Contractor has notified the Client of this with reference to the deemed acceptance in accordance with this Section 5.6 and has requested acceptance,
c) 24 working days have passed since delivery or installation or the client has started to use the purchased item (e.g. has put the delivered system into operation) and in this case 12 working days have passed since delivery or installation and
d) the Client has failed to accept the goods within this period for a reason other than a defect notified to the Contractor which makes the use of the purchased item impossible or significantly impairs it.
6. Material defects and defects of title
6.1 The warranty period shall be one year from delivery or, if acceptance is required, from acceptance. This does not apply if the law prescribes longer periods in accordance with §§ 438 Para. 1 No. 2 (buildings and items for buildings), 445a, 445b, 478 (supplier recourse) and 634 a Para. 1 No. 2 BGB (construction defects) and in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty by the contractor and in the event of fraudulent concealment of a defect.
6.2 The delivered items must be carefully inspected immediately after delivery to the Client or to the third party designated by the Client. With regard to obvious defects or other defects that would have been recognizable during an immediate, careful inspection, they shall be deemed to have been approved by the Client if the Contractor does not receive a written notice of defects within seven working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the Customer if the Contractor does not receive the notice of defects within seven working days of the time at which the defect became apparent; however, if the defect was already apparent at an earlier time under normal use, this earlier time shall be decisive for the start of the notice period. At the Contractor's request, a rejected delivery item shall be returned to the Contractor carriage paid. In the event of a justified notice of defects, the Contractor shall reimburse the costs of the most favorable shipping route, insofar as this bearing of costs does not constitute disproportionality within the meaning of §§ 439 para. 4, 635 para. 3 BGB.
6.3 In the event of material defects in the delivered items, the Contractor shall initially be obliged and entitled to rectify the defect or make a replacement delivery at its discretion within a reasonable period of time. In the event of failure, i.e. the impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the Client may withdraw from the contract or reduce the purchase price appropriately.
6.4 If a defect is due to the fault of the Contractor, the Client may claim damages under the conditions set out in Section 7 of these GTC.
6.5 In the event of defects in components from other manufacturers which the Contractor cannot remedy for licensing or factual reasons, the Contractor shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the Client or assign them to the Client. warranty claims against the manufacturers and suppliers for the account of the Client or assign them to the Client. Warranty claims against the Contractor for such defects shall only exist under the other conditions and in accordance with these GTC if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, e.g. due to insolvency. For the duration of the legal dispute, the limitation period for the Client's relevant warranty claims against the Contractor shall be suspended.
6.6 The warranty shall not apply if the Client modifies the delivery item or has it modified by a third party without the Contractor's consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the Client shall bear the additional costs of remedying the defect resulting from the modification.
6.7 Any delivery of used items agreed with the client in individual cases shall be made to the exclusion of any warranty for material defects.
7.Liability / compensation
7.1 The Contractor shall pay damages, irrespective of the legal grounds, exclusively in accordance with the principles set out below.
7.2 The Contractor shall be liable without limitation in the event of intent and gross negligence for damages resulting from a breach of the duty of care.
7.3 In cases of slight negligence, the Contractor shall be liable for the breach of material contractual obligations for the damage typical of the contract and foreseeable at the time of conclusion of the contract. In other cases of slightly negligent breach of duty, the Contractor's liability is excluded. Essential contractual obligations are all obligations whose fulfillment is essential for the proper performance of the services and on whose compliance the client regularly relies and may rely. Indirect damage and consequential damage resulting from defects in the delivery item shall only be eligible for compensation if such damage is typically to be expected when the delivery item is used as intended.
7.4 Otherwise, liability for damages is excluded, regardless of the legal nature of the asserted claim. In particular, the Contractor shall not be liable for unforeseeable damages.
7.5 The restrictions and limitations according to clauses 7.1. to 7.5. do not apply to damage to life, limb and health, liability under guarantees, liability under the Product Liability Act and other mandatory statutory provisions.
7.6 The above limitations of liability (7.1. to 7.5.) shall apply equally to breaches of duty by the organs and vicarious agents of the Contractor and to claims for reimbursement of futile expenses (Section 284 BGB). A change in the burden of proof to the detriment of the Client is not associated with the above provisions.
7.7. Insofar as the Contractor provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by it, this shall be done free of charge and to the exclusion of any liability.
8. Assembly, repairs and other services
The following also applies to assembly, repairs and other services:
The client must inform the contractor's personnel at its own expense about existing safety regulations and dangers and take all necessary measures to protect persons and property at the workplace.
8.1 The Client shall support the Contractor's personnel in the performance of the work at its own expense to the extent necessary and provide the necessary assistance, such as preparation of the construction site, provision of tools and lifting equipment, provision of water and electricity, etc.
8.2 The Client's assistance must ensure that the Contractor's work can be started immediately after the arrival of the Contractor's personnel and can be carried out without delay until acceptance.
8.3 If the Client fails to comply with its obligations, the Contractor shall be entitled, but not obliged, to perform the actions incumbent on the Client in its place and at its expense.
8.4 If a service cannot be provided for reasons for which the Contractor is not responsible, services already provided by the Contractor and expenses incurred shall be compensated by the Client.
8.5 Parts replaced in the exchange procedure shall become the property of the Client. The Contractor reserves the right to waive its ownership of the replaced parts at the Client's expense.
8.6 If the service is lost before acceptance through no fault of the Contractor, the Client shall reimburse the Contractor the price less any expenses saved.
8.7 Only repair deadlines confirmed in writing by the Contractor shall be binding.
8.8 In the case of assembly, repairs and other services, the client's right to reduce the purchase price shall be determined in accordance with the statutory provisions. The right of reduction shall also exist in other cases of failure to remedy defects. The client shall only be entitled to withdraw from the contract if it can prove that it has no interest in the installation, repairs and other services despite the reduction.
9. Intellectual property, industrial property rights, use of software
9.1 All industrial property rights shall remain the property of the Contractor. The Contractor shall only grant the Client a perpetual, non-exclusive, non-transferable right to use any industrial property rights, including samples, cost estimates, drawings and similar information of a physical or non-physical nature, insofar as this is necessary for the use of the delivery items/services.
9.2 Drawings, models, templates, training documents, etc. shall remain the exclusive property of the Contractor. They shall only be entrusted for the agreed purpose and may not be used for any other purpose. Copies or other reproductions may only be made for the agreed purpose. Neither originals nor reproductions may be handed over to third parties or made accessible in any other way.
9.3 If software is included in the scope of delivery, the customer shall be granted a non-exclusive right to use the software supplied, including its documentation. It is provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited. The client may only reproduce, revise, translate or convert the software from the object code into the source code to the extent permitted by law (§§ 69 a ff. of the German Copyright Act). The client undertakes not to use manufacturer information - in particular copyright notices - or to change them without the Contractor's prior express consent. All other rights to the software and the documentation, including copies, shall remain with the Contractor or the software supplier. The granting of sublicenses is not permitted.
10. Rights of use
For all works and work results developed by the Contractor on behalf of the Client, the Contractor shall grant the Client the exclusive and perpetual right to use them to the extent described in the respective order upon full payment.
11. Confidentiality
The Client and the Contractor are mutually obliged to treat all information relating to the business and operational affairs of the other party as strictly confidential and to use it only within the scope of the purpose of the respective order placed. Within the scope of this purpose, the Contractor shall be entitled to pass on the information to third parties.
12. Retention of title
12.1 The delivered goods shall remain the property of the Contractor until they have been paid for in full.
12.2 In the case of mutual commercial transactions, the delivered goods shall remain the property of the Contractor until full payment of all the Contractor's claims against the Client existing on the invoice date. The Client shall only be entitled to resell the goods in the ordinary course of business. The Customer hereby assigns its claims from the resale to the Contractor. The Contractor hereby accepts the assignment. In the event of default at the latest, the Customer shall be obliged to name the debtor of the assigned claim to the Contractor. If the value of the securities existing for the Contractor exceeds the Contractor's claim by more than 20% in total, the Contractor shall be obliged to release securities of the Contractor's choice at the request of the Client or a third party affected by the Contractor's overinsurance.
12.3 If the Contractor's goods are treated or processed, the Contractor shall be regarded as the manufacturer in accordance with Section 950 BGB and shall retain ownership of the products at all times during processing. If third parties are involved in the processing, the Contractor shall be limited to a co-ownership share in the amount of the invoice value of the goods subject to retention of title. The property thus acquired shall be deemed to be reserved property.
12.4 The Client is obliged to insure all goods delivered subject to retention of title against fire and theft at its own expense and to provide the Contractor with evidence of the conclusion of the insurance policy upon request. The Client's claims against the insurance company for compensation are hereby assigned to the Contractor.
12.5 In the event of default of payment or payment difficulties, the Contractor shall be entitled to reclaim delivered goods. Taking back the goods shall only be deemed a withdrawal from the contract if this is expressly communicated to the Client by the Contractor in writing. Otherwise, the goods shall be taken back to secure the Contractor's claims. All transportation and storage costs associated with taking back the goods shall be borne by the Client. The same applies to any reduction in value and dismantling costs.
13 Commissioning of subcontractors
13.1 The Contractor shall be entitled, with the Client’s consent, to commission and use subcontractors in the course of performing an order. The Client shall only refuse ist consent to the commissioning of a subcontractor if this conflicts with the legitimate interests of the Client.
13.2 If a subcontractor is commissioned, no direct contractual relationship shall arise between the subcontractor and the Client. In relation to the Client, the Contractor shall remain solely responsible for the execution of an individual order.
14. Jurisdiction / Applicable law / Effectiveness
14.1 The place of jurisdiction shall be the Contractor’s registered office. However, the Contractor shall also be entitled to sue the Client at any other statutory place of jurisdiction.
14. 2The contract is subject to the law of the Federal Republic of Germany to the exclusion of international private law and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
14.3 The invalidity of individual provisions of these GTC shall