General Conditions of Sale of Helmut Rohde GmbH 04/2021
All our deliveries and services shall be subject to the terms and conditions of contract set forth below
1.1 The following contractual conditions apply to Helmut Rohde GmbH and its subsidiary, Rohde spol. s r.o. based in the Czech Republic (hereinafter referred to as the “Seller”). If the Seller is mentioned below, the provisions apply mutatis mutandis to the subsidiaries listed or not yet listed here but may be added in the future.
1.2 The General Terms and Conditions apply exclusively to companies within the meaning of § 14 German Civil Code, i.e., individuals or legal entities or legal partnerships who acquire the goods or services for commercial or independent professional use, corporate bodies under public law and special funds under public law.
1.3 All supplies, services and offers by the Seller are made exclusively on the basis of these General Contract Terms. These are part of all contracts that the Seller concludes with their contractual partners (hereinafter also referred to as the "Customer") for the supplies or services offered by them. They also apply to all future supplies, services or offers to the Customer, even if they are not separately agreed again.
1.4 The terms and conditions of the Customer or third parties do not apply, even if the Seller does not separately object to their validity in individual cases. Even if the Seller refers to a letter that contains the terms and conditions of the Customer or a third party, or refers to them, this does not constitute consent to the validity of those terms and conditions.
2. Offer and conclusion of contracts, quality of the goods
2.1 Offers are subject to change and are non-binding unless they are expressly marked as binding or contain a specific term of acceptance.
2.2 The Customer is bound to orders for 14 days, calculated from the time the order is received by the Seller unless the Customer has specified a shorter term of acceptance with the order.
2.3 The relevant contents of the contract are the written contractual agreements, the offer, the written order confirmation and these contractual conditions. Verbal collateral agreements do not exist. Verbal promises made by the Seller prior to the conclusion of this contract are not legally binding and verbal agreements between the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they will continue to apply.
2.4 A contract is concluded when the contract is signed. If there is an order confirmation, the contract is concluded upon receipt of the order confirmation by the Customer.
2.5 Additions and changes to the agreements made, including these General Contract Terms, must be made in writing to be effective. Except for executive directors and authorised signatories, the Seller's employees are not authorised to make oral agreements that differ from the written agreement. Transmission by telecommunication, in particular, by fax or email, is sufficient to meet the written form requirement, provided a copy of the signed declaration is transmitted.
2.6 The specifications of the Seller about the object of the supply or service (e.g., weights, dimensions, utility values, load capacity, tolerances and technical data), as well as representations of the same (e.g., drawings and images), are only approximate unless the usability for the contractually intended purpose requires an exact match. They are not guaranteed characteristics, but descriptions or designations of the supply or service. Customary deviations, and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts are permissible, provided they do not impair the usability for the contractually intended purpose. Declarations on the quality and durability of the goods, with which the Customer is granted additional rights without prejudice to their legal claims, only represent a quality and durability guarantee in accordance with § 443 German Civil Code if they are expressly designated as such. The content of product brochures is not binding information about the quality of the goods, and the prices in the price lists are subject to change.
3. Delivery date and delay in delivery
3.1 Delivery dates are only binding if they are expressly agreed and designated as such.
3.2 If despatch has been agreed upon, delivery periods and delivery dates refer to the time of handover to the freight forwarder, carrier or other third party commissioned to transport the goods.
3.3 The Seller is not liable for the impossibility of delivery or delivery delays insofar as these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g., operational disruptions of all kinds, difficulties in material or energy procurement, transport delays, strikes, lawful lockouts, manpower shortages, energy or raw materials, difficulties in obtaining the necessary official permits, measures imposed by the authorities or the absence of them, incorrect or late delivery by suppliers) for which the Seller is not responsible. If such events make the delivery or service significantly more difficult or impossible for the Seller and the hindrance is not only of a temporary nature, the Seller is entitled to withdraw from the contract. In the case of a temporary hindrance, the delivery date or service deadlines are extended, or the delivery or performance deadlines are postponed by the period of the hindrance plus a reasonable start-up period. If the Customer cannot be expected to accept the delivery or service because of the delay, they can withdraw from the contract by means of an immediate written declaration to the Seller.
3.4 If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for whatever reason, the Seller's liability for damages is limited in accordance with Clause 8 of these General Terms of Delivery.
4. Delivery, transfer of risk, shipping, packaging, insurance and delivery obstacles
4.1 Delivery takes place ex stock, which is also the place of fulfilment for the delivery and any subsequent performance.
4.2 The goods will be sent to a different destination at the request and expense of the Customer (sale by delivery to a place other than the place of performance). Unless otherwise agreed, the Seller is entitled to determine the type of shipment (in particular, the transport company, shipping route, packaging). Partial deliveries are permitted as long as they are reasonable for the Customer. The consignment will only be insured by the Seller against theft, breakage, transport, fire and water damage or other insurable risks at the express request and expense of the Customer.
4.3 The risk of accidental loss and accidental deterioration of the goods is transferred to the Customer upon delivery at the latest. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay are transferred to the forwarding agent, the carrier or the person or institution otherwise assigned to carry out the shipment. If an acceptance procedure has been agreed upon, this is decisive for the transfer of risk. In addition, the statutory provisions of the law on contracts for work and services apply accordingly to an agreed acceptance procedure. The acceptance procedure or transfer is the same if the buyer delays acceptance.
4.4 If the goods are ready for dispatch and the dispatch is delayed for reasons for which the Seller is not responsible, the risk is transferred when the Customer receives the dispatch note. This also applies if partial deliveries are made or the Seller has taken on other services (e.g., shipping or installation). This also applies if the delivery has been agreed "carriage paid".
4.5 The Customer bears storage costs after the transfer of risk. If the goods have to be stored by the Seller, the storage costs will be charged at 0.25% of the invoice amount of the delivery items to be stored per week that has elapsed. The right to assert and provide evidence of additional or lower storage costs is reserved.
5. Prices and payments
5.1 The prices apply to the scope of supply and services listed in the order confirmations. The prices are in EUR ex-works plus packaging, statutory value-added tax, customs duties for export deliveries and fees and other public charges. Additional or special services will be charged separately, in particular, costs for installation, assembly, connection, functional tests, commissioning, test operation and/or staff training.
5.2 The Seller reserves the right to change (list) prices accordingly if, after the conclusion of the contract, the production and delivery costs increase due to circumstances for which the Seller is not responsible (e.g., tariff increases, material price increases, tax increases etc.) and the Customer is informed in good time before delivery about the price increase. If a price increase of more than 1% is not exceeded within one year, the price will not increase. If price increases totalling more than 5% of the agreed net order amount are required, the Customer's consent is required for the amount in excess of 5%. This shall be deemed to have been granted if the Customer does not exercise their special right of termination granted to them in the event of an increase exceeding 5% within 14 days of the increase being announced and the Seller specifically advised them of this when the increase was announced. The notice period for this special right of termination by the Customer is one calendar month to the end of the month.
5.3 The purchase price is due and payable within 10 (ten) days of the invoice and delivery or acceptance of the goods. A deduction can only be made with a prior written agreement. The Seller is entitled at any time, even in the context of an ongoing business relationship, to carry out a delivery in whole or in part only against prepayment. A corresponding reservation must be declared with the order confirmation at the latest.
5.4 When the above payment deadline has expired, the Customer is in default. The purchase price is subject to interest at the applicable statutory default interest rate during the default. The right to claim further damage caused by default is reserved. Our right to claim commercial interest on maturity (§ 353 German Commercial Code) from merchants remains unaffected.
5.5 The Customer can only offset undisputed or legally established claims and only assert a right of retention because of such claims. The assignment of a claim directed against the Seller that does not consist of a monetary claim requires our approval to be valid.
5.6 The Seller is entitled to only carry out outstanding deliveries or services against prepayment or security if, after the conclusion of the contract, they become aware of circumstances that are likely to significantly reduce the creditworthiness of the Customer, which put payment of the Seller's outstanding receivables from the respective contractual relationship (including from other individual orders to which the same framework agreement applies) by the Customer at risk.
6. Duty to cooperate during assembly
6.1 Before starting the assembly work, the Customer must provide the necessary information about the location of concealed electricity, gas and water lines or similar systems as well as the necessary static information without being asked.
6.2 Before the start of installation or assembly, the supplies and objects required for the start of the work must be at the installation or assembly site and all preparatory work must have progressed so far that the installation or assembly can be started as agreed and carried out without interruption. Approach routes and the installation or assembly area must be smoothed and cleared.
6.3 The Customer assumes all costs for installation and assembly. In particular, the following services are to be provided by the Customer in good time: all earthworks, construction and other ancillary work outside the scope of the supplier, including the necessary skilled and auxiliary staff, building materials and lubricants, the objects and materials required for assembly and commissioning, such as scaffolding, lifting equipment and other devices, fuels and lubricants, energy and water at the point of use including connections, heating and lighting, sufficiently large, suitable, dry and lockable rooms at the assembly site for the storage of machine parts, equipment, materials, tools, etc., and work and common rooms including suitable sanitary facilities for the assembly staff. In addition, to protect our property and the assembly staff on the construction site, the Customer must take the measures that they would take to protect their own property, such as protective clothing and protective devices that are required due to special circumstances at the assembly site.
6.4 Upon request, the Customer must immediately certify the working hours of the assembly personnel and the completion of the installation, assembly or commissioning.
7. Customer warranty claims
7.1 The statutory provisions apply to the rights of the Customer in the event of material defects and defects of title (including incorrect and short deliveries as well as improper assembly or inadequate assembly instructions), unless otherwise specified below.
7.2 The warranty period is one year from the transfer of risk unless otherwise agreed in writing.
7.3 This does not apply to claims for damages by the Customer for injury to life, limb or health or for wilful or grossly negligent breaches of duty by the Seller or their vicarious agents, which are time-barred in accordance with the statutory provisions.
7.4 Delivered items are to be carefully examined immediately after delivery to the Customer or a third party designated by them. For obvious defects or other defects, which would have been recognisable with an immediate, careful inspection, they are considered accepted by the Customer if the Seller does not receive a written notice of the defects within 7 (seven) working days after delivery. For other defects, the delivery items are deemed to have been accepted by the Customer if the written notice of defects is not received by the Seller within 7 (seven) working days after the point in time at which the defect became apparent; if the defect was already apparent at an earlier point in time during normal use, this earlier point in time is decisive for the start of the notice period. If the Customer fails to examine the goods and notify us of the defect immediately, the Customer loses all rights that are directly or indirectly related to the defect.
7.5 At the request of the Seller, a rejected delivery item is to be returned to the Seller carriage paid. If the complaint is justified, the Seller will reimburse the cost of the cheapest shipping route; this does not apply if the costs increase because the delivered item is located at a location other than the location of its intended use.
7.6 The warranty does not apply if the Customer changes the delivery item or has it changed by a third party without the consent of the Seller and this makes it impossible or unreasonably difficult to remedy the defect. In any event, the Customer must bear the additional costs of remedying the defect resulting from the change.
7.7 Delivery of used items agreed with the Customer in individual cases takes place under the exclusion of any warranty for material defects.
8. Liability for damages due to negligence
8.1 The Seller's liability for damages, regardless of the legal reason, in particular, for impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, is limited in accordance with Clause 8, insofar as they are at fault in each case.
8.2 The Seller is not liable in the event of ordinary negligence on the part of their executive organs, legal representatives, employees or other vicarious agents, unless it is a breach of essential contractual obligations. Essential contractual obligations include freedom from defects of title as well as those material defects that affect the functionality or usability more than just insignificantly, as well as the duty to advise, the protection obligation and duty of care that are intended to enable the Customer to use the delivery item in accordance with the contract or to protect the life and limb of the personnel of the Customer or the protection of their property from significant damage.
8.3 Insofar as the Seller is fundamentally liable for damages in accordance with Clause 8.1, this liability is limited to damage that the Seller foresaw as a possible consequence of a breach of contract when the contract was concluded, or that they should have foreseen if they had exercised due care. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation if such damage is typically to be expected when the delivery item is used as intended.
8.4 The above exclusions and limitations of liability apply to the same extent in favour of the executive organs, legal representatives, employees and other vicarious agents of the Seller.
8.5 If the Seller provides technical information or acts in an advisory capacity and this information or advice does not belong to the contractually agreed scope of services owed by them, this is done free of charge and with the exclusion of any liability.
8.6 The restrictions of Clause 8 do not apply to the liability of the Seller due to wilful behaviour, for guaranteed characteristics, due to injury to life, body or health or according to product liability law.
9. Retention of title
9.1 The goods delivered by the Seller to the buyer remain the property of the Seller until all secured claims have been paid in full. The goods, as well as the goods covered by the retention of title which take their place in accordance with the following provisions, are hereinafter referred to as “goods subject to retention of title”.
9.2 The Customer is entitled to process and sell the goods subject to retention of title in the ordinary course of business until the enforcement of retained ownership. Pledging as collateral and transfers by way of security are not permitted.
9.3 If the goods subject to retention of title are processed by the Customer, it is agreed that the processing takes place in the name and for the account of the Seller as the manufacturer and the Seller directly owns the property or - if the processing takes place using materials from several owners, or the value of the processed item is higher than the value of the goods subject to retention of title - co-owns (fractional ownership) the newly created item in the ratio of the value of the goods subject to retention of title to the value of the newly created item. If no such acquisition of ownership should occur for the Seller, the Customer transfers their future ownership or - in the above-mentioned ratio - co-ownership of the newly created item to the Seller as security. If the goods subject to retention of title are combined with other items to form a single item or are inseparably mixed and one of the other items is to be regarded as the main item, the Seller, if the main item belongs to him, transfers proportional co-ownership of the unitary item to the buyer in accordance with the ratio in Clause 9.3.
9.4 In the event of the resale of the goods subject to retention of title, the buyer hereby assigns the resulting claim against the purchaser as security - in the case of co-ownership of the goods subject to retention of title, the proportional co-ownership share - to the Seller. The same applies to other claims that take the place of the goods subject to retention of title or otherwise arise concerning the goods subject to retention of title, such as insurance claims or claims from tort in the event of loss or destruction. The Seller revocably authorises the buyer to collect the claims assigned to the Seller in their own name. The Seller may only revoke this direct debit authorisation in the event of enforcement of retained ownership.
9.5 If third parties access the goods subject to retention of title, the Customer will immediately point out the property of the Seller and notify the Seller immediately to enable them to enforce their property rights. If the third party is not able to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Customer is liable to the Seller for this.
9.6 The Seller will release the goods subject to retention of title as well as the items or claims taking their place if their value exceeds the amount of the secured claims by more than 50%. The choice of the items to be released afterwards lies with the Seller.
9.7 If the Customer is in default of payment, the Seller is entitled in the event of rescission to demand the return of the goods subject to retention of title at their own expense.
10. Property rights and copyrights
10.1 The Seller retains unlimited ownership of all services provided or made available by them, in particular, programs, drawings and other documents with all rights, even if they have been handed over to the Customer. They are entrusted to the Customer in the sense of § 18 German Law Against Unfair Competition (“UWG”). Changes to plans, drafts, etc. may only be made by the Seller. A transfer of usage rights which are necessary for the fulfilment of the contract and regardless of whether special property rights (e.g., copyrights) exist or not, requires an express written agreement. The Customer undertakes to refrain from any other use in any form, in particular, the reproduction and distribution, the transfer to third parties or the direct or indirect reproduction, provided this is not necessary for the fulfilment of the contract.
10.2 It is presumed that the Customer has violated their obligations according to Clause 10.1 if they organise exhibitions or events that are essentially in line with the Seller's plans and concepts. The Customer is then free to provide evidence to the contrary.
10.3 In the event of a breach of the obligations listed under Clause 10.1, the Seller has at least the right to additional remuneration for the planning, design and conceptual services. Further claims for damages remain unaffected. The Customer is at liberty to prove that the damage did not occur or did not occur to the extent specified.
10.4 If a contract is not concluded, drawings, documents and other services that have already been handed over must be returned to the Seller immediately.
10.5 The documents and other services may only be made available to third parties with the consent of the Seller. In the event of a breach of this provision, the Customer is obliged to exempt the Seller from third-party claims.
10.6 If materials or documents for the production of the subject matter of the contract are handed over by the Customer, the Customer warrants that the production and delivery of the work carried out according to their documents do not infringe the property rights of third parties. The Seller is not obliged to check whether the information and documents provided by the Customer for production and delivery violate the property rights of third parties. The Customer undertakes to immediately indemnify the contractor from any claims for damages by third parties and to pay for the damage resulting from the violation of property rights and, if requested, to make advance payments.
11. Applicable law, place of performance, place of jurisdiction, final provision
11.1 The contract is subject exclusively to German law. The application of UN sales law is excluded.
11.2 The place of performance and for payments by the Customer is the Seller's place of business.
11.3 If the Customer is a merchant, a corporate body under public law or a special fund under public law, or if they no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship between the Seller and the Customer is the Sellers choice, Rosenheim. In these cases, however, Rosenheim is the exclusive place of jurisdiction for lawsuits against the Seller.
11.4 Should any provision of these contractual conditions be or become ineffective, the delivery contract and the other provisions of these contractual conditions will nevertheless remain in effect. Insofar as a provision of the contract or these general terms and conditions is ineffective or contains loopholes, the legally effective provisions that the contractual partners would have agreed according to the economic objectives of the contract and the purpose of these General Terms and Conditions if they had known of the loopholes shall apply to close these loopholes.
General Conditions of Sale of Helmut Rohde GmbH Date: 04/2021