General Terms & Conditions for Sale
Section 1 General information and scope of validity
(1) The following General Terms & Conditions for Sale apply to all business dealings of Rotoclear GmbH as the supplier, hereinafter referred to as: "ROTOCLEAR" with their customers, hereinafter referred to as: "Buyer". The General Terms & Conditions of Sale only apply if the Buyer is an entrepreneur (Section 14 of the German Civil Code), a legal entity under public law or a special fund under public law.
(2) The current version of the General Terms & Conditions of Sale as a framework agreement also apply for future contracts with the same Buyer without any special reference being required in individual cases.
(3) These General Terms & Conditions of Sale apply exclusively. Any different, contradictory or supplementary General Terms & Conditions of Sale of the Buyer are only included as an element of the contract if their validity is expressly accepted by ROTOCLEAR. This requirement of consent applies, for example, if ROTOCLEAR supplies goods to the Buyer without reservation although being aware of the General Terms & Conditions of Sale of the Buyer.
(4) Any individual agreements made in individual cases with the Buyer, including any supplementary agreements, supplements or amendments have priority over these General Terms & Conditions of Sale. A written contract or written confirmation of ROTOCLEAR is necessary for the validity of such agreements.
(5) Declarations and notices relevant in law which are to be made by the Buyer towards ROTOCLEAR after conclusion of contract (e.g. stipulation of deadlines, notice of defects, notice of withdrawal or reduction) are only valid when made in writing.
(6) Notes on the validity of statutory regulations only have an explanatory function. For this reason the statutory regulations also apply without any such explanation if they are not directly amended or expressly excluded by these General Terms & Conditions of Sale.
Section 2 Conclusion of contract
(1) Offers from ROTOCLEAR are non-binding and are subject to change without notice. This also applies if ROTOCLEAR provides the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents – including in electronic form – to which ROTOCLEAR has reserved copyright and property rights.
(2) The order submitted by the Buyer applies as a binding contractual proposal. If nothing to the contrary is stipulated in the order, ROTOCLEAR is entitled to accept this proposal within a period of three weeks after its receipt by ROTOCLEAR.
(3) The Buyer can be notified of this acceptance either in writing (e.g. by means of an order confirmation) or by delivery of the goods to the Buyer.
(4) Illustrations, drawings, dimensions, weights and other performance data are only binding if expressly agreed in writing.
Section 3 Delivery time and delivery default
(1) The delivery time is agreed individually or stated by ROTOCLEAR when the order is accepted. If this is not the case, the delivery time is approximately three weeks after conclusion of contract.
2) If ROTOCLEAR cannot meet the binding deadlines for reasons which ROTOCLEAR is not answerable (non-availability of goods or services), ROTOCLEAR will promptly notify the Buyer accordingly and at the same time inform the Buyer of the new delivery date. If the goods or services are not available within the new delivery time, ROTOCLEAR is entitled to withdraw either wholly or partially from the contract; ROTOCLEAR will promptly reimburse any payment made by the Buyer. Such a case of non-availability in this sense may arise, for example, if ROTOCLEAR experiences delays in supplies from its vendors. The withdrawal and termination rights of ROTOCLEAR as well as the legal regulations on contract implementation in the event of exclusion of the performance obligation (e.g. impossibility or unreasonableness of fulfilment and/or supplementary fulfilment) remain unaffected. The withdrawal and termination rights of the Buyer in accordance with Section 8 of these General Terms & Conditions of Sale also remain unaffected.
(3) The occurrence of default in delivery on the part of ROTOCLEAR is determined in accordance with legal regulations. A notice must, however, be submitted by the Buyer.
Section 4 Delivery, transfer of risk, acceptance, default of acceptance
(1) Deliveries will be made ex works, which is also the place of fulfillment. When requested by the Buyer, the goods will be sent to another destination and the costs charged to the Buyer (sale to destination). If no contrary agreements have been made, ROTOLEAR is entitled to specify the delivery method (especially carriers, transport route, packaging).
(2) The risk of accidental loss and accidental deterioration of the goods is passed to the Buyer at the latest when the goods are handed over. In the event of sale to destination, however, the risk of accidental loss and accidental deterioration of goods as well as risk of delay is already transferred when the goods are handed to the carrier, forwarder or the person or organization charged with carriage of the goods. If acceptance has been agreed, this is decisive for transfer of risk. The statutory regulations of the works contract also apply to the agreed acceptance in accordance with the law. Transfer or acceptance is also deemed to be effective if the Seller is in default of acceptance.
(3) If the Buyer defaults in acceptance of delivery, fails to cooperate or if the delivery of goods from ROTOCLEAR is delayed for other reasons for which the Buyer is answerable, ROTOCLEAR is entitled to demand reimbursement of any resulting damage including any incurred costs (e.g. storage costs).
Section 5 Prices and payment conditions
(1) If no alternative agreements have been made in writing, the prices valid at the time of contract conclusion apply excluding sales tax and packaging. Packaging costs will be invoiced separately.
(2) In the event of sale to destination (Section 4, paragraph 1 of these General Terms & Conditions of Sale) the Buyer will bear the transport costs ex works and the costs of any transport insurance taken out at the request of the Buyer. Any customs duties, fees, taxes and other public charges will be borne by the Buyer. Transport packaging and other packaging cannot be returned to ROTOCLEAR in accordance with the Packaging Ordinance; these become the property of the Buyer; packaging required for specific forms of transport such as pallets, wire boxes and transport frames are excluded.
(3) The sales price is due for payment within 30 days of the date of the invoice and delivery or acceptance of the goods unless other agreements have been made in writing.
(4) When the payment deadline has elapsed, the Buyer will be in default. The legally stipulated rate of default interest will apply for the period in which the Buyer is in default. The right to assert greater damages caused by default is reserved. The right of ROTOCLEAR to commercial maturity interest (Section 353 of the German Commercial Code) remains unaffected.
(5) The Buyer only has the right of offset if his claim has been confirmed by law or is uncontested. In the event of faults in the supplied goods, Section 7 paragraph 6 of these General Terms & Conditions of Sale remains unaffected. The Buyer is only entitled to exercise his right of retention if the counterclaim is based on the same contractual relationship.
(6) If ROTOCLEAR becomes aware of circumstances which call the credit standing of the Buyer into question, especially if a check is not honoured or payments discontinued or if ROTOCLEAR becomes aware of any other circumstances which call the credit standing of the Buyer into question, ROTOCLEAR is entitled to demand that the remaining outstanding sums are due immediately, even if ROTOCLEAR has accepted checks. In this case ROTOCLEAR is also entitled to demand advance payment or security.
(7) ROTOCLEAR is entitled to offset payments of the Buyer with debts of an earlier date if the Buyer is informed of such offsets. If costs or interest have already been incurred, ROTOCLEAR is authorized to first charge for these costs, then the interest due and finally the bill for the main service.
Section 6 Retention of title
(1) ROTOCLEAR reserves the right to retention of title of the sold goods until full payment of all current and future accounts receivable arising from the sales contract and an ongoing business relationship (secured receivables).
(2) The goods subject to retention of title may not be pledged to third parties nor used as a security before full payment has been made. The Buyer must inform ROTOCLEAR immediately in writing if and to which extent such access is given to goods belonging to ROTOCLEAR.
(3) Should the Buyer act in violation of this contract, especially with regard to nonpayment of the due sales price, ROTOCLEAR is entitled to withdraw from the contract in accordance with statutory regulations and/or demand surrender of the goods on the basis of retention of title. The request to surrender the goods does not automatically involve a declaration of withdrawal; ROTOCLEAR is entitled to only demand surrender of the goods and reserve the right to withdrawal. If the Buyer does not pay the due sales price, ROTOCLEAR is only entitled to exert these rights if it has unsuccessfully set the Buyer a suitable deadline for payment or such a deadline is not required by law.
(4) The Buyer is entitled to sell and/or process the goods which are subject to retention of title during the normal course of business. In this case the following provisions also apply:
(a) The retention of title includes the full value of products resulting from processing, mixing or connection of goods belonging to ROTOCLEAR, whereby ROTOCLEAR will be regarded as the manufacturer. If the retention rights of third parties remain unaffected as the result of processing, mixing or connection with goods of third parties, ROTOCLEAR will acquire joint ownership in relation to the invoice value of the processed, mixed or connected goods. Furthermore the same applies for the resulting product as for the supplied goods which are subject to retention of title.
(b) The Buyer already transfers the rights to ROTOCLEAR to outstanding assets resulting from further sales of the goods or of the product due from third parties either wholly or to the extent of the joint ownership to which ROTOCLEAR has rights as stipulated in the previous paragraph. ROTOCLEAR will accept this cession. The obligations of the Buyer stipulated in Section 6, paragraph 2 of the General Terms & Conditions of Sale also apply in consideration of the assigned receivables.
(c) Both ROTOCLEAR and the buyer shall be entitled to collect the receivables. ROTOCLEAR undertakes not to collect such receivables as long as the Buyer fulfills its payment obligations toward ROTOCLEAR, does not default in payment, has not applied for insolvency and if its performance is not impaired in any other way. If this is the case, however, ROTOCLEAR can demand that the Buyer notifies ROTOCLEAR of the assigned receivables and the debtors, provides all information required for collection, surrenders the corresponding documentation and informs the debtors (third parties) of the assignment.
(d) If the obtainable value of the securities exceeds the outstanding receivables due to ROTOCLEAR by more than 10 percent, ROTOCLEAR will release securities of its choice when requested by the Buyer.
Section 7 Claims for defects of the Buyer and warranty
(1) The statutory regulations apply for the rights of the Buyer in the event of material defects or defects of title (including incorrect supplies and shortfalls as well as incorrect assembly or faulty assembly instructions) if no other provisions are made in the following sections. The special statutory regulations for final delivery to a consumer remain unaffected in all cases (supplier's recourse in accordance with Sections 478, 479 of the German Civil Code).
(2) The basis for liability for defects on the part of ROTOCLEAR is mainly the agreement made regarding the properties of the goods. Claims for defects are invalid in the event of negligible deviation from the agreed properties, negligible limitation of usability, natural wear or wear occurring after transfer of risk resulting from faulty or negligent treatment, excessive wear, unsuitable operating resources, faulty construction work, unsuitable building ground or due to special external influences which are not included in the contract. If the Buyer or third parties perform any inappropriate repair work or modifications, claims for defects are excluded for these and any resulting consequences.
(3) Warranty rights of the Buyer are based on the assumption that the Buyer has fulfilled his inspection and complaint obligations according to Section 377 of the German Commercial Code correctly. Independently of these inspection and complaint obligations the Buyer is obliged to declare any obvious defects (including incorrect goods and quantities) within two weeks of delivery in writing, whereby compliance with this deadline is met if notification is sent in good time. If the Buyer fails to perform the necessary inspection and/or notification of defects, the liability of ROTOCLEAR for such unreported defects is excluded.
(4) The consent of ROTOCLEAR must be obtained before the goods are returned.
(5) Should, in spite of all due care, the supplied goods be faulty and such faults already have occurred before transfer of risk, ROTOCLEAR will repair the goods or replace the goods if the fault has been reported within the set deadlines. The right of ROTOCLEAR to refuse the selected manner of subsequent fulfilment in accordance with legal conditions remains unaffected.
(6) ROTOCLEAR is entitled to make the due subsequent fulfilment dependent on payment of the sales price by the Buyer. The Buyer is, however, entitled to retain a part of the sales price in relation to the defect.
(7) The Buyer is obliged to grant ROTOCLEAR the necessary time and opportunity to meet subsequent fulfilment obligations and is in particular obliged to surrender the faulty goods for inspection purposes. If the faulty goods are replaced, the Buyer is obliged to return the faulty goods to ROTOCLEAR in accordance with statutory regulations.
(8) Claims of the Buyer for costs arising from subsequent fulfilment, especially travel and transport costs as well as working material costs are excluded, if such costs are higher due to the fact that the goods supplied by ROTOCLEAR are subsequently brought to a different destination than the location of the Buyer, unless the shipment is in keeping with its intended use. If, however, the demand for rectification of defects of the Buyer is unjustified, ROTOCLEAR can demand reimbursement of any incurred costs.
(9) In urgent cases, e.g. if the operational safety is threatened or to prevent disproportionate damage, the Buyer is entitled to rectify the fault itself and demand reimbursement of objectively necessary expenses from ROTOCLEAR. ROTOCLEAR must be informed immediately of such selfremedy of defects, beforehand if possible. The right to selfremedy of defects does not apply if ROTOCLEAR would be entitled to refuse subsequent fulfillment in accordance with legal regulations.
(10) If the subsequent fulfillment was not successful or if a deadline for subsequent fulfillment to be set by the Buyer has elapsed without success or if this is dispensable according to law, the Buyer is entitled to withdraw from the contract or to a reduction in the sales price. If the fault is negligible, however, the Buyer is not entitled to withdraw from the contract.
(11) Claims of the Buyer for damages or compensation of wasted expenses only apply in accordance with Section 8 of the General Terms & Conditions of Sale and are otherwise excluded.
(12) The warranty claims towards ROTOCLEAR only apply for the direct Buyer and are not transferrable.
Section 8 Other liability
(1) If no other stipulations are made in these General Terms & Conditions of Sale including the following provisions, ROTOCLEAR shall be liable for violation of contractual and noncontractual obligations in accordance with applicable statutory regulations.
(2) ROTOCLEAR is liable for damages – irrespective of the legal grounds – in the event of intentional misconduct or gross negligence. In the event of simple negligence ROTOCLEAR is only liable
(a) For injury to life, limb or health,
(b) For damage resulting from the violation of a main contractual obligation (obligation which must be met to enable correct implementation of the contract and on which the contractual partner relies and can rely); in this case the liability of ROTOCLEAR is, however, limited to foreseeable, typically occurring damage.
(3) The liability restrictions of Section 2 do not apply if ROTOCLEAR has maliciously concealed the defect or has specifically guaranteed for the properties of the goods. The same applies for the claims of the Buyer in accordance with the Product Liability Act.
(4) The Buyer can only withdraw from the contract on the basis of a violation of obligations connected with a defect if ROTOCLEAR is answerable for the violation of obligation. A free right of the Buyer to terminate the contract is excluded. Otherwise the legal conditions and legal consequences apply.
Section 9 Period of limitation
(1) Contrary to statutory regulations, the general period of limitation for claims resulting from defects and defects of title is one year from delivery. If acceptance is agreed, the period of limitation commences upon acceptance.
(2) However, if the goods are a building or an object which has been used as a building in accordance with its normal use and which have caused its defectiveness (construction material), according to the statutory regulations the period of limitation is five years from delivery. The special statutory provisions for real claims for restitution of property of third parties, fraudulent intent of the Supplier and claims for Suppliers' recourse for delivery to the consumer shall remain unaffected in any case.
(3) The previously mentioned statutory periods of limitation of the Law on Sales also apply for contractual and non-contractual claims for damages of the Buyer based on a fault of the goods, unless the application of the regular statutory period of limitation would result in a shorter period of limitation in individual cases. The periods of limitation of the Product Liability Act always remain unaffected. Otherwise the claims for damages of the Buyer in accordance with Section 8 of the General Terms & Conditions of Sale are exclusively subject to the statutory periods of limitation.
Section 10 Language, Applicable law, Jurisdiction
(1) These AVB exist in a German and in an English language version. The German language version of the AVB shall be the prevailing and solely binding version.
(2) The law of the Federal Republic of Germany shall apply to these General Terms & Conditions of Sale and all legal relations between ROTOCLEAR and the Buyer to the exclusion of all international and supranational (contractual) legal systems, especially the UN Convention for the International Sale of Goods (CISG). The conditions and effects of the retention of title in accordance with section 6 AVB, however, are subject to the law applicable at the location of the goods, if this selection of applicable law in favour of German law is not permissible or invalid.
(2) If the Buyer is an entrepreneur in the sense of the German Commercial Code (German Handelsgesetzbuch), a legal entity under public law or a special fund under public law, the registered offices of ROTOCLEAR in Heidelberg shall apply exclusively – also internationally – as the place of jurisdiction for all disputes arising directly or indirectly from the contractual relations. ROTOCLEAR is, however, also entitled to bring legal action at the general court of jurisdiction of the Buyer.
Section 11 Severability clause
(1) Should individual provisions of these General Terms & Conditions for Sale be or become invalid or contain omissions, the remaining provisions shall remain unaffected. The Parties undertake to replace the invalid provision with a legally valid provision which comes closest to the commercial intent of the invalid provision or which remedies this omission.
(2) Individual agreements with the Buyer in particular cases, including side agreements, supplementary agreements or amendments take in any case precedence over these General Terms & Conditions for Sale. These individual agreements are only valid if made in writing or confirmed in writing by ROTOCLEAR.
(3) Declarations and notifications with legal effect of the Buyer made to ROTOCLEAR after conclusion of the contract (e.g. deadlines, notice of defects, declarations of cancellation or reduction) are only valid if made in writing.
4) References to legal provisions are declaratory only. Legal provisions remain valid irrespective of whether a reference has been made to them or not, as far as legal provisions have not been changed or excluded explicitly in these General Terms & Conditions for Sale.
Supplemental Terms for US Customers
In addition to the Allgemeine Verkaufsbedingungen/General Terms & Conditions for Sale of Rotoclear GmbH, Rotoclear GmbH and the Buyer agree as follows:
1. Disclaimer of Implied Warranties
To the maximum extent permitted by law, the express warranties set forth in the enclosed general terms and conditions for sale are the only warranties made by ROTOCLEAR with respect to the products and services. ROTOCLEAR disclaims all warranties that may be implied or arise by custom or trade usage, including warranties of non-infringement, merchantability, satisfactory quality or fitness for any particular purpose. ROTOCLEAR’s express warranties shall not be enlarged, diminished or affected by, and no obligation or liability shall arise out of, ROTOCLEAR rendering technical or other advice, training or services in connection with the products.
2. Limitation of Liability
ROTOCLEAR’s liability to the Buyer under this Agreement is limited to the amounts actually paid to ROTOCLEAR under this Agreement. Furthermore, ROTOCLEAR shall not be liable to the Buyer or any other party for any personal injury or damages suffered by the Buyer in connection with the use of ROTOCLEAR’s equipment under any cause of action, including strict product liability. ROTOCLEAR shall not be liable for loss of use, interruption of business, damage or expense incurred in connection with the availability, operation or use of the product, or any technical malfunction thereof. ROTOCLEAR shall not be liable to the Buyer or any other party for any special, incidental, exemplary or consequential damages of any kind even if ROTOCLEAR has been advised of the possibility of such damages.
The clauses numbers 1) and 2) above shall in their English language version be prevailing and solely binding terms between ROTOCLEAR and the Buyer in the supplemental terms (exemption to clause 2 § of 10 (1)).