General Terms and Conditions of Sale and Delivery of Rotogal GmbH, Wilsum

Scope of application

The following conditions apply only to merchants, legal entities under public law or a special fund under public law.

I. Application

1. orders shall only become binding upon confirmation of the order by the supplier. Amendments and supplements shall be made in text form. All offers are subject to change unless they are designated as fixed offers.

2. these terms and conditions shall also apply in the case of ongoing business relationships to future transactions in which no express reference is made to them, provided that they have been received by the customer in the case of an order previously confirmed by the supplier.

3. the customer's terms and conditions shall not apply unless they have been expressly recognised by the supplier.

II Prices

1. in case of doubt, the prices are ex works excluding freight, customs duties, ancillary import duties and packaging plus VAT at the statutory rate.

2. if the decisive cost factors change significantly after submission of the offer or after order confirmation up to delivery, the supplier and purchaser shall agree on an adjustment of the prices and the cost shares for moulds.

3. if the price is agreed to be dependent on the weight of the parts, the final price shall be based on the weight of the approved reference samples.

4. the supplier is not bound to previous prices for new orders (= follow-up orders).

III Delivery and acceptance obligation

1. delivery periods shall commence after receipt of all documents required for the execution of the order, the down payment and the timely ordering of materials, insofar as these have been agreed. The delivery deadline shall be deemed to have been met upon notification of readiness for dispatch if dispatch is delayed or impossible through no fault of the supplier.

2. if an agreed delivery deadline is not met due to the supplier's own fault, the customer shall be entitled to demand compensation for delay or to withdraw from the contract after expiry of a reasonable grace period, unless the supplier has acted with gross negligence or intent, to the exclusion of further claims. The compensation for delay shall be limited to a maximum of 5% of that part of the delivery which has not been made in accordance with the contract. Cancellation is excluded if the customer himself is in default of acceptance. The customer reserves the right to provide evidence of higher damages.

3. reasonable partial deliveries as well as reasonable deviations from the order quantities up to plus/minus 10% are permissible.

4. in the case of call-off orders without an agreement on duration, production batch sizes and acceptance dates, the supplier may demand a binding specification of these no later than three months after order confirmation. If the Buyer does not fulfil this request within three weeks, the Supplier shall be entitled to set a two-week grace period and to withdraw from the contract and/or claim damages after this period has expired.

5. if the customer does not fulfil his acceptance obligations, the supplier shall not be bound by the provisions on self-help sales, without prejudice to other rights, but may sell the delivery item on the open market after prior notification of the customer.

6. events of force majeure shall entitle the supplier to postpone the delivery for the duration of the hindrance and a reasonable start-up time, or to withdraw from the contract in whole or in part due to the part not yet fulfilled. Force majeure shall include strikes, lockouts or unforeseeable, unavoidable circumstances, e.g. operational disruptions, which make it impossible for the supplier to deliver on time despite reasonable efforts; the supplier must provide evidence of this. This shall also apply if the aforementioned impediments occur during a delay or at a subcontractor. The Purchaser may request the Supplier to declare within two weeks whether it wishes to withdraw from the contract or deliver within a reasonable period of grace. If he does not declare his intention, the purchaser may withdraw from the unfulfilled part of the contract. The Supplier shall notify the Purchaser immediately if a case of force majeure as described in paragraph 1 occurs. The Supplier shall minimise the Purchaser's inconvenience as far as possible, if necessary by handing over the moulds for the duration of the obstruction.

IV. Packaging, dispatch, transfer of risk and default of acceptance

1. unless otherwise agreed, the supplier shall choose the packaging, mode of dispatch and dispatch route.

2. the risk shall also pass to the customer in the case of carriage paid delivery when the goods leave the supplier's works. In the event of delays in despatch for which the customer is responsible, the risk shall already pass upon notification of readiness for despatch.

3. at the written request of the customer, the goods shall be insured at his expense against risks to be specified by him.

V. Retention of title

1. the deliveries shall remain the property of the supplier until all claims to which the supplier is entitled against the customer have been fulfilled, even if the purchase price for specially designated claims has been paid. In the case of a current account, the reserved title to the deliveries (reserved goods) shall serve as security for the Supplier's balance invoice. If, in connection with the payment of the purchase price, a liability of the Supplier under a bill of exchange is established, the reservation of title shall not expire before the bill of exchange has been honoured by the Purchaser as drawee.

2. processing and treatment by the customer shall be carried out on behalf of the supplier to the exclusion of the acquisition of ownership in accordance with § 950 BGB; the supplier shall become co-owner of the item thus created in accordance with the ratio of the net invoice value of his goods to the net invoice value of the goods to be processed or treated, which shall serve as reserved goods to secure the claims of the supplier in accordance with paragraph 1.

3. in the event of processing (combination/mixing) with other goods not belonging to the supplier by the customer, the provisions of §§ 947, 948 BGB shall apply with the consequence that the supplier's co-ownership share in the new item shall now be deemed to be reserved goods within the meaning of these terms and conditions.

4. the purchaser is only permitted to resell the goods subject to retention of title in the ordinary course of business and on condition that he also agrees a retention of title with his customers in accordance with paragraphs 1 to 3. The purchaser is not authorised to dispose of the goods subject to retention of title in any other way, in particular by pledging them or assigning them as security.

5. in the event of resale, the purchaser hereby assigns to the supplier all claims and other justified claims against his customers arising from the resale, including all ancillary rights, until all claims of the supplier have been fulfilled. At the Supplier's request, the Purchaser shall be obliged to provide the Supplier immediately with all information and documents necessary to assert the Supplier's rights against the Purchaser's customers.

6. if the reserved goods are resold by the customer after processing in accordance with paragraph 2 and/or 3 together with other goods not belonging to the supplier, the assignment of the purchase price claim in accordance with paragraph 5 shall only apply to the amount of the invoice value of the supplier's reserved goods.

7. if the value of the securities existing for the supplier exceeds the supplier's total claims by more than 10%, the supplier shall be obliged to release securities of the supplier's choice at the customer's request.

8. the supplier must be notified immediately of any seizure or confiscation of the reserved goods by third parties. Any resulting intervention costs shall in any case be borne by the purchaser, unless they are borne by third parties.

9. if the supplier makes use of his retention of title in accordance with the above provisions by taking back goods subject to retention of title, he shall be entitled to sell the goods on the open market or have them auctioned. The goods subject to retention of title shall be taken back at the proceeds realised, but at most at the agreed delivery prices. Further claims for damages, in particular loss of profit, remain reserved.

VI Liability for material defects

1. the quality and design of the products shall be determined by the reference samples, which shall be submitted to the Purchaser for inspection by the Supplier on request. The reference to technical standards serves to describe the performance and is not to be interpreted as a guarantee of quality.

2. if the supplier has advised the customer outside the scope of his contractual performance, he shall only be liable for the functionality and suitability of the delivery item if this has been expressly assured in advance.

3. notices of defects must be made in writing without delay. In the case of hidden defects, the complaint must be made immediately after discovery. In both cases, unless otherwise agreed, all claims for defects shall lapse 12 months after the transfer of risk. Insofar as the law prescribes longer periods in accordance with § 438 Para. 1 No. 2 BGB, 479 Para. 1 BGB and § 634a Para. 1 No. 2 BGB, these shall apply.

4. in the event of a justified notice of defects - whereby the reference samples approved in writing by the purchaser determine the quality and design to be expected - the supplier is obliged to provide subsequent fulfilment. If he does not fulfil this obligation within a reasonable period of time or if subsequent improvement fails despite repeated attempts, the purchaser is entitled to reduce the purchase price or to withdraw from the contract. Further claims, in particular claims for reimbursement of expenses or compensation for damages due to defects or consequential damages, shall only exist within the framework of the provisions of VII.

5. unauthorised reworking and improper handling shall result in the loss of all claims for defects. Only in order to prevent disproportionately large damage or in the event of delay in remedying the defect by the Supplier shall the Purchaser be entitled, after prior notification of the Supplier, to rectify the defect and demand reimbursement of the reasonable costs incurred.

6. normal wear and tear shall not give rise to any warranty claims.

7. recourse claims in accordance with §§ 478, 479 BGB only exist if the claim by the consumer was justified and only to the statutory extent, but not for goodwill arrangements not agreed with the supplier and presuppose compliance with the obligations of the party entitled to recourse, in particular compliance with the obligation to give notice of defects.

VII General limitations of liability

In all cases in which the supplier is obliged to pay compensation for damages or expenses on the basis of contractual or statutory claims in deviation from the above conditions, he shall only be liable insofar as he, his executive employees or vicarious agents are guilty of intent, gross negligence or injury to life, limb or health. Liability for the culpable breach of essential contractual obligations remains unaffected; however, liability is limited to the foreseeable damage typical for the contract, except in cases of sentence 1. A change in the burden of proof to the detriment of the customer is not associated with the above provisions. 

VIII. Terms of payment

1. all payments are to be made in € (Euro) exclusively to the supplier.

2 Unless otherwise agreed, the purchase price for deliveries or other services must be paid within 10 days of the invoice date. Any discount granted shall be subject to the settlement of all undisputed invoices due earlier. No discount shall be granted for any payments by bill of exchange.

3. if the agreed payment date is exceeded, interest shall be charged at the statutory interest rate of 8% above the respective base rate of the ECB, unless the supplier can prove higher damages. The Purchaser reserves the right to prove lower damages.

4 We reserve the right to refuse cheques or bills of exchange. Cheques and rediscountable bills of exchange shall only be accepted on account of performance; all associated costs shall be borne by the customer.

5. the customer may only offset or assert a right of retention if his claims are undisputed or have been recognised by declaratory judgement.

6. persistent non-compliance with terms of payment or circumstances which give rise to serious doubts as to the creditworthiness of the customer shall result in all claims of the supplier becoming due immediately. Furthermore, in this case the Supplier shall be entitled to demand advance payments for outstanding deliveries and to withdraw from the contract after a reasonable period of grace has expired without success.

IX. Place of fulfilment and jurisdiction

1. place of fulfilment is the registered office of our company.

2. the place of jurisdiction is also the registered office of our company. We reserve the right to take action against the buyer at his general place of jurisdiction.

3 German law shall apply exclusively. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (BGB 1989 p. 586) for the Federal Republic of Germany (BGB 1990 p. 1477) is excluded.

X. Severability clause

Should individual provisions of this contract be invalid or should this contract contain loopholes, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision that comes as close as possible to the meaning and purpose of the invalid provision in a legally permissible manner. In the event of loopholes, the provision that corresponds to what would reasonably have been agreed in accordance with the meaning and purpose of this contract if the matter had been considered from the outset shall be deemed to have been agreed.