General Terms and Conditions of Sale of Roth GmbH & Co. KG
(Last updated: 12/2019)
I. Validity / Offers
1. These General Terms and Conditions of Sale shall apply to all - including future - contracts with companies, legal entities under public law and special funds under public law for deliveries and other services. We shall not be bound by the Purchaser's Terms and Conditions of Purchase even if we do not expressly object to them again after we receive them.
2. Our offers are subject to change without notice. Agreements, in particular, verbal side agreements, promises, guarantees and other assurances made by our sales staff prior to or upon conclusion of the Contract shall only become binding upon our confirmation in writing.
3. The interpretation of trade terms, such as "EXW", "FOB" and "CIF", shall be governed by the latest version of the INCOTERMS.
4. The documents belonging to the offer, such as drawings, illustrations, technical data, reference to standards, as well as statements in advertising material, shall not be considered quality characteristics, assurances of characteristics or guarantees, unless they are expressly designated as such in writing.
5. Deviations of the delivered item from offers, patterns, samples and preliminary deliveries shall be permissible in accordance with the applicable DIN/EN standards or other relevant technical standards.
1. Unless otherwise agreed, our prices are indicated ex works excluding packaging, in each case plus statutory value-added tax.
2. In the case of Contracts with an agreed delivery time, we reserve the right to increase the prices in accordance with the cost increases that have occurred, in particular due to collective wage agreements, increases in material prices or exchange rate fluctuations.
3. If the goods are delivered packaged, we shall invoice the packaging at cost price; within the framework of the statutory provisions, we shall take back packaging that we deliver if it is returned to us with the freight prepaid by the Purchaser within a reasonable period of time.
III. Payment and Settlement
1. Our invoices shall be due within 30 days net, in each case from invoice date. Payment must be made within these periods in such a way that the amount required to settle the invoice is available to us by the due date at the latest. The Purchaser shall be in default, at the latest, 30 days after the due date of our claims, without requiring a reminder.
2. Granted discount periods start from the invoice date. An agreed discount always refers exclusively to the invoice value, excluding freight and shall be subject to the complete settlement of all due liabilities of the Purchaser at the time of the discount.
3. Invoices for amounts below EUR 50.00 as well as for assembly, repairs, moulds and tooling costs shall be due immediately and payable net.
4. If the term of payment is exceeded, at the latest, after default, we shall be entitled to charge interest in the amount of the respective bank rates for bank overdrafts, but at least interest at rate of 8 percentage points above the base interest rate. We reserve the right to assert further claims for damages caused by default.
5. The Purchaser shall not be entitled to withhold payment or offset counterclaims that we dispute or that have not been legally established. This shall not apply if the Purchaser's counterclaims result from the same contractual relationship and/or if they would entitle the Purchaser to refuse performance in accordance with § 320 of the German Civil Code (Bürgerliches Gesetzbuch BGB).
6. If it becomes apparent after conclusion of the Contract that our payment claim is at risk due to the Purchaser's inability to pay, we shall be entitled to the rights arising from §321 of the German Civil Code (BGB) (defence of insecurity). We shall then also be entitled to demand payment of all claims arising from the current business relationship with the Purchaser and to revoke the direct debit authorisation in accordance with Clause V/5. In case of default of payment, we shall also be entitled to demand the return of the goods after the expiration of a reasonable grace period and to prohibit the resale and further processing of the delivered goods. Taking back the goods shall not constitute a withdrawal from the Contract. The Purchaser can prevent all these legal consequences through payment or a security in the amount of our jeopardized payment claim. The provisions of the German Insolvency Code shall remain unaffected by the above provisions. The Purchaser's inability to pay shall also be deemed to be insufficient if the Purchaser is in default of payment for at least three weeks with a substantial amount (from 10% of the due claims) and if his existing limit with our commercial credit insurance has been considerably downgraded.
IV. Delivery Times
1. Delivery periods and dates shall be deemed to have been met if the delivery item has left our premises by the time they expire.
2. Our obligation to deliver is subject to correct and timely self-delivery, unless we are responsible for incorrect or late self-delivery.
3. Force majeure events shall entitle us to postpone deliveries for the duration of the obstruction and a reasonable lead period. This shall also apply if such events occur during an existing delay. Force majeure shall be deemed to include currency, trade policy and other sovereign measures, strikes, lockouts, operational disruptions for which we are not responsible, obstruction of traffic routes, delays in import/customs clearance, as well as all other circumstances which, through no fault of our own, make deliveries and services considerably more difficult or impossible. It is not relevant whether the circumstances occur with us, the supplier or another upstream supplier. If, as a result of the above events, implementation becomes unreasonable for one of the contracting parties, it may withdraw from the contract by immediate declaration in writing.
V. Retention of Title
1. All delivered goods shall remain our property (reserved goods) until all claims arising from the business relationship have been settled, irrespective of their legal basis, including claims arising in the future or conditional claims (balance reservation). The balance reservation, however, does not apply to prepayment or cash transactions that are settled step by step. In this case, the delivered goods shall remain our property until the purchase price for these goods has been paid in full.
2. The treatment and processing of the reserved goods shall be carried out for us, as a manufacturer, within the meaning of § 950 of the German Civil Code (BGB) without any obligation on our part. The processed goods shall be deemed to be reserved goods within the meaning of Clause V/1. If the Purchaser processes, combines or mixes the reserved goods with other goods, we shall be entitled to joint ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. If our ownership lapses due to combination or mixing, the Purchaser hereby transfers to us his ownership rights to the new stock or item to the extent of the invoice value of the goods subject to retention of title and shall keep them in safe custody for us free of charge. The resulting joint ownership rights shall be regarded as reserved goods within the meaning of Clause V/1.
3. The Purchaser may only sell the reserved goods in the ordinary course of business at his normal terms and conditions and as long as he is not in default, provided that the claims from the resale are transferred to us in accordance with Clauses V/4 to V/6. He shall not be entitled to dispose of the reserved goods in any other way.
4. The Purchaser's claims from the resale of the reserved goods shall hereby be assigned to us. They serve as security to the same extent as the reserved goods. If the reserved goods are sold by the Purchaser together with other goods not sold by us, the assignment of the claim from the resale shall only apply to the amount of the resale value of the reserved goods sold in each case. In the event of the sale of goods in which we have joint ownership shares according to Clause V/2, the assignment of the claim shall apply to the amount of such joint ownership shares.
5. The Purchaser shall be entitled to collect claims from the resale until our revocation - which is permissible at any time - is revoked. If the Purchaser is in default of payment, we shall also be entitled to demand the return of the goods after expiration of a reasonable grace period and to prohibit the resale and further processing of the delivered goods. Taking back the goods shall not constitute a withdrawal from the Contract. At our request, the Purchaser shall be obliged to inform his customers immediately of the assignment to us - unless we do so ourselves - and to provide us with the information and documents required for collection.
6. The Purchaser must inform us immediately of any seizure or other impairment by third parties.
7. If the value of existing securities exceeds the secured claims by more than 50% in total, we shall be obliged to release securities of our choice at the Purchaser's request.
VI. Execution of Deliveries
1. With the transfer of the goods to a forwarding agent or freight carrier, at the latest; however, upon leaving the warehouse or - in case of drop shipments - the risk in all transactions, including carriage paid and carriage paid deliveries, passes to the Purchaser. Duty and costs of unloading shall be borne by the Purchaser. We shall only provide insurance at the instruction and expense of the Purchaser.
2. We shall be entitled to make partial deliveries to a reasonable extent. In case of manufactured goods, excess and short deliveries of up to 10% of the agreed quantity are permissible.
3. In case of call-off orders, we shall be entitled to manufacture the entire order quantity or have it manufactured. Any requests for changes can no longer be considered after the order has been placed, unless this has been expressly agreed. Unless firm agreements have been made, call-off dates and quantities can only be met within the scope of our delivery or manufacturing capabilities. If the goods are not called off in accordance with the Contract, we shall be entitled to invoice them as delivered after a reasonable period of grace has elapsed.
4. In case of Contracts with continuous deliveries, we shall be given call-offs and classifications for approximately equal monthly quantities. If the goods are not called off or divided up on time, we shall be entitled, after setting a grace period without a result, to divide up the goods ourselves and deliver them or to withdraw from the part of the Contract still outstanding and demand damages instead of performance. Our stock must be accepted at the end of the Contract.
VII. Liability for Defects
1. The properties of the goods, in particular, their quality, type and dimensions, shall be determined in accordance with the agreed standards, and in the absence of an agreement in accordance with the DIN and EN standards applicable at the time of conclusion of the contract and in the absence of such standards in accordance with custom and practice. References to standards and similar regulations as well as information on qualities, types, dimensions, weights and usability of the goods, information in drawings and illustrations as well as statements in advertising material shall not constitute assurances or guarantees unless they are expressly designated as such in writing. The same applies to declarations of conformity and corresponding markings, such as CE and GS. The Purchasers shall be responsible for suitability and usage risks.
2. The provisions of the German Commercial Code (HGB) shall apply to the inspection of the goods and the notification of defects with the following stipulation:
- The Purchaser shall be obliged to inspect the relevant properties of the goods for the respective use immediately after delivery and to notify us immediately in writing of any defects in the goods. In case of an intended installation or mounting of the goods, the relevant properties for the installation or mounting also include the internal properties of the goods. The obligation to inspect shall also exist if an inspection certificate or other material certificate has been supplied. Defects that cannot be discovered immediately after delivery, even with the most meticulous inspection, must be reported in writing immediately after discovery.
- If, in case of installation or mounting of the goods, the Purchaser fails to inspect the properties of the goods relevant for the intended purpose of use, at least randomly, prior to installation or mounting (e.g. by means of functional tests or a trial installation), this shall constitute a particularly severe disregard of the care required in commercial dealings (gross negligence) in relation to us. In this case, the Purchaser's rights in respect of defects with regard to these properties shall only be considered if the defect in question has been fraudulently concealed or a guarantee has been given for the quality of the item.
3. If the Purchaser discovers defects during inspection of the goods or subsequently, he shall be obliged to make the rejected goods or samples thereof available to us for the purpose of investigating the complaint and to allow inspection of the rejected goods within a reasonable period of time. The Purchaser cannot otherwise refer to defects of the product.
4. If the goods are defective, the Purchaser shall be entitled to the rights to remedy defects in accordance with the statutory regulations of the German Civil Code (BGB) - subject to the restrictions that we shall be entitled to choose between subsequent improvement and subsequent performance and that minor (insignificant) defects shall only entitle the Purchaser to reduce the purchase price.
5. If the Purchaser has installed the defective goods in another item or attached them to another item in accordance with their nature and intended use, he may only demand compensation for the necessary expenses for removing the defective goods and installing or mounting the repaired or supplied defect-free goods ("removal and installation costs") in accordance with the following provisions.
- Only those removal and installation costs are required which directly concern the removal or disassembly of the defective goods and the installation or mounting of identical goods, which have been incurred based on customary market conditions and which are proven to us by the Purchaser in writing, at least, by presenting suitable supporting documents.
- Additional costs incurred by the Purchaser for consequential damages caused by defects, such as loss of profit, downtime costs or additional costs for replacements shall not be considered direct costs for removal and installation and shall therefore not be eligible for reimbursement of expenses according to § 439 Para. 3 of the German Civil Code (BGB). The same applies to sorting costs and additional expenses arising from the fact that the goods sold and delivered are located at a place of performance other than the agreed place of performance.
- The Purchaser shall not be entitled to demand an advance payment for removal and installation costs and other costs of subsequent performance.
6. Insofar as the expenses claimed by the Purchaser for subsequent performance in individual cases, in particular, in relation to the purchase price of the goods in defect-free condition and taking into account the significance of the lack of conformity, are disproportionate, we shall be entitled to refuse reimbursement of these expenses. Such expenses are disproportionate, in particular, if the expenses claimed, in particular for removal and installation costs, exceed 150% of the invoiced value of the goods or 200% of the depreciation caused by the defect of the goods.
7. Further claims shall be excluded in accordance with Clause VIII. This shall apply in particular to claims for compensation of
- Damages that have not occurred to the goods themselves (consequential damages),
- Costs for the self-correction of a defect without the legal requirements being met, and
- Removal and installation costs, insofar as the goods we supplied were no longer available in their original property at the time of installation or mounting or a new product has been manufactured from the goods delivered prior to installation.
8. An unjustified demand for the removal of defects shall entitle us to compensation if the Purchaser could have identified through careful examination that there was no material defect.
VIII. General Limitation of Liability and Statute of Limitations
1. We shall only be liable for breach of contractual and non-contractual obligations, in particular for impossibility of performance, default, fault in consulting, fault in contract initiation and tortious acts - also for our executive staff and other vicarious agents - in cases of intent and gross negligence; in the latter case, liability shall be limited to the typical contractual damage foreseeable at the time the Contract was concluded.
2. The restrictions from VIII.1 shall not apply in the case of culpable violation of essential contractual obligations. The obligation to deliver on time and the absence of defects in the goods which more than insignificantly impair their functionality or fitness for use as well as consultation, protection and care obligations which are intended to protect the Purchaser or his personnel from considerable damage are essential to the Contract. Furthermore, the limitations shall not apply in cases of mandatory liability under the German Product Liability Act, in case of injury to life, limb or health and also not if and insofar as we have fraudulently concealed defects or guaranteed their absence. The rules on the burden of proof remain unaffected by this.
3. If we are in default with a delivery or other service, the Purchaser may demand compensation for the damage caused by default in addition to the service; in case of slight negligence; however, compensation shall be limited to a maximum of 10% of the agreed price for the service in default. The Purchaser's right to compensation instead of performance in accordance with VIII.1 and VIII.2 shall remain unaffected.
4. Unless otherwise agreed, contractual claims against us arising from or in connection with the delivery of the goods shall lapse one year after delivery of the goods. This shall not apply insofar as § 438 para. 1 no. 2 of the German Civil Code (BGB), §§ 478, 479 of the German Civil Code (BGB) or § 634 a para. 1 no. 2 of the German Civil Code (BGB) prescribe longer periods as well as in cases of injury to life, body or health, in the event of intentional or grossly negligent breach of duty by us or the fraudulent concealment of a defect. In the event of defective subsequent performance, the limitation period shall not start again.
1. We reserve the right of ownership and copyright to cost estimates, drafts, drawings and other documents; they may only be made accessible to third parties in agreement with us. Drawings and other documents belonging to offers shall be returned on request.
2. Insofar as we have supplied items in accordance with drawings, models, samples or other documents provided by the Purchaser, the Purchaser shall guarantee that the property rights of third parties are not infringed. If third parties prohibit us from manufacturing and supplying such objects by invoking property rights, we shall be entitled - without being obliged to review the legal situation - to discontinue any further activities and to demand compensation for damages in the event of fault on the part of the Purchaser. In addition, the Purchaser undertakes to release us immediately from all claims of third parties in connection therewith.
X. Test Parts, Moulds, Tools
1. If the Purchaser must provide parts for the execution of the order, they shall be delivered, at no charge, to the production site with the agreed quantity; otherwise, with a reasonable additional quantity for any rejects, on time, free of charge and free of defects. If this does not occur, any costs and other consequences caused thereby shall be borne by the Purchaser.
2. The production of test parts, including the costs for moulds and tools, shall be borne by the Purchaser.
3. For tools, moulds and other production equipment provided by the Purchaser, our liability shall be limited to the same care as exercised in own matters. The Purchaser shall bear costs for maintenance and care. Our storage obligation shall expire - regardless of the Purchaser's ownership rights - at the latest, two years after the last production from the mould or tool.
XI. Place of Performance, Place of Jurisdiction and Applicable Law
1. The place of performance for our deliveries, for subsequent performance and for payments by the Purchaser shall be our premises. The place of jurisdiction shall be the registered of our headquarters. We can also bring an action against the Purchaser at his place of jurisdiction.
2. All legal relationships between us and the Purchaser shall be governed by German law to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).
XII. Applicable Version
In case of doubt, the German version of these General Conditions of Sale shall apply.
XIII. Final Provisions
1. The invalidity of individual provisions shall not affect the validity of the remaining General Terms and Conditions of Sale. Invalid provisions shall be replaced by legal provisions that come close to the provision.
2. Data Privacy | The entity responsible for data privacy according to Art. 4, Para. 7 of the EU General Data Protection Regulation (DSGVO) is Roth GmbH & Co. KG, Andernacher Straße 14, D-90411 Nürnberg, Germany. Our Data Privacy Officer can be reached at firstname.lastname@example.org. The supervisory authority responsible for us is the Bavarian State Office for Data Protection Supervision, Promenade 27, D-91522 Ansbach, email@example.com.
We process personal data only to the extent necessary for the performance of business relationships with our business customers. For this purpose, we store the contact details of our customer contacts, i.e. surname, first name, business telephone numbers, business e-mail addresses and, if applicable, responsibilities for the duration of the business relationship or, to protect legitimate interests or legal obligations, and beyond. Further personal information is not collected.
We do not pass on contact details to third parties.