General terms and conditions (GTC)
the company ROPA Fahrzeug- und Maschinenbau GmbH, Sittelsdorf 24, D-84097 Herrngiersdorf
§ 1 Scope of application - Contract partners
- These GTC apply exclusively for legal transactions between the company ROPA Fahrzeug- und Maschinenbau GmbH, Sittelsdorf 24, D-84097 Herrngiersdorf (referred to as the "Seller" below) and contractors or legal entities under public law or special funds under public law (referred to as the the "Purchaser" below).
- The Contractor is a natural or legal entity or a legally constituted partnership that conducts business in the course of its commercial or professional activities.
- Deviating terms and conditions of the Purchaser are expressly contradicted. We shall only recognise terms and conditions of the Purchaser that conflict with or deviate from these terms and conditions if we expressly agree to their validity in writing.
- These GTC shall also apply to all business transactions with the Purchaser, insofar as legal transactions of a related nature are concerned, even if they are not mentioned in subsequent contracts.
§ 2 Offers and conclusion of contract
- The offers of the Seller are non-binding and without obligation.
- Unless otherwise specified, the Seller will maintain the prices in the offers for a period of 30 days from the date of the offer.
- The Seller may accept orders that are considered offers in accordance with Sec. 145 BGB (German Civil Code) within two weeks if a deadline has not been set.
- Statements of acceptance require the specific written confirmation of the Seller before they are effective.
- Statements of acceptance deviating from the Seller's offer will be binding if they are not rejected within 2 weeks.
- The Seller's public statements, drawings, diagrams, dimensions, weights, descriptions and other technical specifications contain approximate values. They are non-binding for the Seller unless they are specifically confirmed in writing.
- If the Seller provides technical information or makes applicable recommendations in conjunction with the contract, they are not warranty statements.
- The Seller has the right to reject claims arising from the business connection.
§ 3 Prices
- Unless otherwise agreed, all Seller's prices are ex works plus any delivery costs, packaging and insurance and are expressed in euros.
- All prices are subject to the statutory value added tax in effect in Germany on the date of delivery. It will be included in invoices to other member states of the European Union, unless the VAT number of the customer is supplied.
§ 4 Payment - Reimbursement/right of retention
- Unless otherwise agreed in the purchase contract, the Seller's invoices shall be due immediately after invoicing without deduction and shall be paid exclusively to the Seller's account specified in the order confirmation/contract.
- Foreign payments must be free of charge for the Seller. The Purchaser will be liable for any fees or expenses.
- The Seller is authorised to apply payments initially to previous debts. If costs and interest have already been incurred, the Seller is authorised to apply the payment to costs, then interest and finally to the main payment.
- A payment is not considered complete until the Seller can dispose of the amount.
- If reasonable doubt of the payment capacity or credit-worthiness of the Purchaser arise and the Purchaser is not prepared to pay in advance in spite of a demand for payment, or is not prepared to provide suitable security for the service provided, the Seller is entitled to withdraw from the contract if it has not been performed.
- The Seller is authorised to apply a fee of €15 for each payment reminder sent.
- In the event of delay with more than one obligation, all remaining open demands of the Purchase will be due for immediate payment.
- In the event of delay in payment by the Purchaser, the Seller, after a reasonable period for payment or provision of security has expired without result, may retain all open deliveries until all open invoices have been paid or withdraw from all contracts to which these terms and conditions of sale apply.
- The Seller reserves the right to demand compensation for further damages due to delay.
- The Seller may transfer outstanding invoices arising from deliveries and services to third parties for financing purposes, e.g. to a factor.
- The Purchaser is not authorised to offset claims of the Seller, unless they are undisputed or legally specified claims.
- The Purchaser will be authorised to exercise a right of retention only if the counterclaim is based on the same contractual relationship.
§ 5 Delivery and delay in acceptance
- Delays in delivery and services due to act of God and due to events that significantly delay the Seller's making delivery or make it impossible due to no fault of the Seller - including difficulties in procuring materials incurred after the order, works disruptions, strike, lockout, shortage of transport, government orders etc., including if incurred by suppliers of the Seller or their subcontractors - allow the Seller to delay binding deadlines and schedules. In such cases the Seller may delay the delivery or service for the duration of the disruption plus an appropriate start-up period or withdraw from the contract in whole or in part due to the unfulfilled part of the performance. The extension will not take effect if the other party is not informed of the reason for delay immediately as soon as it is clear that the contractual deadlines cannot be maintained. Claims for damages by the Purchaser will not be accepted in the above circumstances to the extent that the Seller has met its obligations in accordance with this provision.
- If the Seller is responsible for non-compliance with the binding deadlines and schedules and this results in delays, the Purchaser has a claim for damages due to delay in the amount of ½% for every full week of the delay, with the total amount not to exceed 5% of the invoice value of the deliveries and services affected by the delay. Any additional claims shall not be accepted unless the delay is due to the gross negligence or deliberate action of the Seller.
- The delivery will be made ex Seller's works.
- The transport and packaging costs of the delivery are charged to the Purchaser.
- Unless specifically agreed, the Seller is free to select the transport company and the type of transport equipment.
- The right of reasonable partial deliveries and partial services and their invoicing is specifically reserved by the Seller to the extent that a partial delivery is acceptable for the Purchaser.
- Deliveries may be made prior to the communicated delivery date.
- Unless agreed otherwise in the purchase contract, delivery dates are dates of transfer to the freight carrier / delivery company, and in the event of performance disruptions for reasons for which the Purchaser is responsible, the delivery date is the date on which the goods are ready for dispatch from the Seller's premises.
- If the goods are not accepted by the deadline due to the fault of the Purchaser, the Seller may store the goods at the expense of the Purchaser, and/or withdraw from the contract after setting a reasonable deadline and to sell the goods otherwise. The Purchaser will be liable for any resulting damages and additional expenses. The Seller reserves the right to make additional claims.
§ 6 Transfer of risk
- The risk is transferred to the Purchaser as soon as the Seller has delivered to goods to the transport company, freight forwarder or other person or organisation appointed for shipping, or the goods have left the Seller's works for shipping. This also applies for shipping the goods without the same location or in the event that the goods are transported by the Purchaser's personnel and/or transport equipment.
- If the goods are ready for shipping and the shipping or acceptance of the goods is delayed for reasons for which the Seller is not responsible, the risk is transferred at the time of notification that the goods are ready for shipping.
- If the delivery is delayed by circumstances for which the Purchaser is responsible, the risk of accidental destruction or deterioration of the goods is transferred to the Purchaser from the time at which the Purchaser delays acceptance or is in default.
§ 7 Warranty - requirement for inspection and notification of complaints
- The warranty period for new goods is twelve months from transfer of risk.
- Used goods are sold subject to exclusion of liability for defects.
- The Purchaser is required to inspect the delivered goods without delay for deviations in quality and quantity and to notify the Seller of detectable defects in writing within one week of receipt of the goods. If a complaint is not submitted within 7 days, the goods are considered free from defects and complete, unless a defect is found that was not detectable at the time of inspection. The notification period is met by dispatch of the complaint within the period.
- The above is also applicable for shipping damage.
- Defects in a part of the delivery do not mean that the entire delivery is defective.
- The Purchaser will allow the Seller the right to inspect purported defects or have them inspected by an independent accredited expert before starting remediation work. The cost of the expert inspector will be borne by the party whom the inspector decides is at fault.
- In the event of defects the Seller has the right to repair the goods or deliver defect-free replacements (substitute delivery). The Seller must always have the opportunity fulfil the delivery within an appropriate period.
If, despite all the care taken, the delivered goods show any defect which was already present at the time of the transfer of risk, the Seller may, at his discretion, demand that
a) the faulty part or goods are sent to the Seller for repair and then return to the Purchaser free of charge for the Purchaser;
b) the Purchaser retains the faulty part or goods and allows a service technician of the Seller to come and repair the items at a time arranged with the Purchaser;
c) have the repair performed by the Purchaser or a third party under the specific direction of the Seller and the Purchaser will reimburse the Purchaser for all expenses incurred.
- If a substitute delivery is made, the Purchaser is required to return the faulty item to the Seller.
- Replaced parts become property of the Seller.
- If the Purchaser requests that warranty work be conducted at a location determined by the Purchaser, the Seller may agree to this request subject to the requirement that parts subject to the warranty are not charged but the working and travel costs must be paid in accordance with the standard rates of the Seller.
- If the rectification work is not successful three times, the Purchaser may demand cancellation or the contract or a reduction of payment without affecting any claims for damages.
- Warranty claims will not be accepted for damage for which the Purchaser is responsible after transfer of risk due to unsuitable or improper use, or damage due to specific external influences that are not specified under the contract, or damage to to faulty installation or commissioning by the Purchaser or third parties, faulty or negligent treatment, damage to the painted surface and resulting corrosion, unsuitable equipment, chemical or electrochemical or electrical influences, and natural wear and tear.
- The warranty obligation does not cover damage due to continuing use in spite of the occurrence of a defect.
- Claims for defects do not arise in the event of only minor deviation from the agreed characteristics, only insignificant effects on usability or natural wear and tear.
- The warranty period for seasonal machine ends at the end of the first period of use if the machine has been used for the harvest.
- If the Seller's assembly, operating or service instructions are not observed, if modifications to products are made and/or parts are replaced and/or consumable materials are used that do not conform to the original specifications of the Seller, the warranty will lapse due to faults in the goods if the Purchaser cannot contest a substantiated statement that one of the above circumstances has caused the defect.
- Claims by the Purchaser for expenses due to rectification, particularly transport, travel, working and material expenses, will not be accepted if the expenses are increased because the Purchaser transferred the goods delivered by the Seller to a location other than the Purchaser's location, unless the movement conforms to the designated use.
- Claims against the Seller for defects may be made by the Purchaser only and are not transferable.
- The above warranty limitations shall not apply in the case of damages arising from injury to life, body or health, or for other damages based on an intentional or grossly negligent breach of duty or fraudulent intent on the part of the Seller, or for damages covered by liability under mandatory statutory provisions, such as the Product Liability Act, or in the case of the assumption of warranties.
§ 8 Liability
- The Seller will accept liability as required by law if the Purchaser makes claims for damages based on malice or gross negligence, including malice and gross negligence of its representatives or agents, or if a significant contractual obligation is culpably violated. Significant contractual obligations are obligations that must be fulfilled for correct performance of the contract and on compliance with which the contracting party relies and is entitled to rely.
- If the Seller is not accused of malicious violation of the contract, the liability for damages is limited to the foreseeable typical damage.
- The deadline for submission of claims for damage 12 months from transfer of risk.
- The liability due to culpable injury to life, body or health remains unaffected; this also applies for the mandatory liability under the Product Liability Act.
- Unless otherwise regulated above, the Seller will not accept any further liability.
- To the extent to which the liability of the Seller is excluded or limited, this shall apply equally to its agents.
§ 9 Retention of ownership
- The Seller retains ownership of the delivered item until all demands arising from the contract have been paid in full. This is also applicable for future demands, including those arising from contracts made simultaneously or later during the continuing business relationship until they have been met, even if the Seller does not always specifically refer to them.
- The Purchaser must handle the purchased item with care so long as the property rights have not been fully transferred. The Purchaser is particularly required to insure the item against theft, fire and water damage at the new value. If maintenance and inspection are required, the Purchaser must perform this work at the Purchaser's expense.
- If the ownership has not yet been transferred, the purchaser must refer to the ownership of the Seller in the event of actions by third parties affecting the retained goods, particularly in the case of attachment orders, and must inform the Seller in writing without delay if the delivered item has been attached or is subject to other actions by third parties.
- If the third party is not able to reimburse the Seller for the legal and other costs of a charge in accordance with Sec. 771 ZPO (Civil Code Regulations), the Purchaser is liable to the Seller for the outstanding amount.
- The Seller is authorised to resell the retained goods in the normal course of business. At this time the Purchaser transfers to the Seller all liabilities in full resulting from the resale.
- If retained goods are resold after processing or connection with objects that are the exclusive property of the Purchaser, at this time the Purchaser transfers to the Seller all liabilities in full resulting from the resale. If retained goods are resold not processed by the Purchaser or after processing or connection with objects that are not the property of the Purchaser, at this time the Purchaser transfers to the Seller all liabilities to the value of the retained goods with all ancillary rights and rank before the remainder resulting from the resale. The Seller will accept the assignments.
- The Purchaser will perform any work or processing of the retained goods without any obligations arising for the Seller. If the retained goods are processed, connected, mixed or combined with other goods that do not belong to the Seller, the Seller retains ownership of the new item in the ratio in the new item of the value of the retained goods at the time of processing, connection, mixing or combination. If the Purchaser takes sole ownership of the new item, the Purchaser grants the Seller at this time co-ownership of the new item at the ratio of the value of the processed, connected, mixed or combined retained goods; the Purchaser retains the new item for the Seller free of charge.
- If the Purchaser sell the retained goods while they are still subject to retention, the Seller will retain ownership of the retained goods until all liabilities arising from the business relationship have been settled in full and the Purchaser at this time transfers the liabilities against the customer for surrender of the retained goods and all other rights against the customer. The Seller will accept the assignments.
- The Purchaser remains authorised to collect the liability even after the assignment. The authorisation of the Seller to collect the liability itself remains unaffected. However, the Seller will not collect the liability so long as the Purchaser makes payment under the obligations from the proceeds, is not in arrears with payments and in particular there is no application for insolvency proceedings or payments have not been stopped.
- On request by the Seller the Purchaser must provide the Seller with the information required for collection of the assigned liabilities, provide applicable documentation and notify the debtor of the assignment.
- The Seller agrees to release the securities due to it on request of the Purchaser if the value exceeds the secured liabilities by more than 20%. The Seller will select the security that is to be released.
- If the Purchaser violates the contract – particularly by being in arrears and significant deterioration of assets – the Seller may cancel the contract and demand return of the retained goods. The Purchaser is liable for the cost of return.
- The Seller is authorised to assert its rights from the retention of ownership contrary to Sec. 449 Part 2 BGB without prior cancellation of the purchase contract. After assertion of the retention of ownership, the Purchaser may not derive any property right from the contract.
§ 10 Design changes
- The Seller retains the right to make design changes.
- If such a design change occurs between the conclusion of the contract and the delivery or handover of the goods or the performance of the service, the Purchaser shall not be entitled to rescind the contract if the design change was required due to changes in legislation and/or the change in other technical standards (DIN, TA etc.) and/or the design change is at least equivalent technically.
- The Seller is not obliged to make design changes to products that have already been delivered if the previously delivered products are not faulty.
§ 11 Provided documents - Confidentiality
- The Seller retains ownership and copyright in all documents provided to the Purchaser in connection with the order, such as calculations, drawings, programmes etc. The documents must not be accessible to third parties, unless the Seller provides specific approval in writing to the Purchaser.
- The Purchaser is obliged to treat all non-public business and technical information and knowledge that becomes known as a result of the business relationship between the Seller and the Purchaser as confidential.
§ 12 Governing law, contract language, place of performance, court of jurisdiction
- The law of the Federal Republic of Germany will apply with exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).
- The language of the contract is German.
- The place of performance is Herrngiersdorf.
- If the customer is a merchant, a legal entity under public law, or a special fund under public law, or in Germany without a court of jurisdiction, the Seller's head office is the exclusive court of jurisdiction for all disputes arising from this contract. The Seller also reserves the right to charge the customer at its general court of jurisdiction.
As of 2021-12