General terms and conditions (GTC)
for the company ROPA Fahrzeug- und Maschinenbau GmbH, Sittelsdorf 24, D-84097 Herrngiersdorf
§ 1 Scope - Contract Partners
- These GTCs apply exclusively for legal transactions between the company ROPA Fahrzeug- und Maschinenbau GmbH, Sittelsdorf 24, D-84097 Herrngiersdorf (herinafter called "Seller") and companies or legal persons of public law or legal entities of public law (hereinafter called "orderer").
- Contractor is a natural or legal entity or a partnership vested with legal capacity, which for conclusion of a legal transaction, acts exercising commercial or independent professional activity.
- Deviating terms and conditions of the customer are expressly rejected. We only recognize the orderer's deviating conditions or conditions that contradict these sales conditions if we expressly agree to their validity in text form.
- These GTCs also apply for all business transactions with the orderer insofar these are legal transactions of a related kind, even if they are not mentioned in later contracts.
§ 2 Offer and entering into a contract
- The offerings of the seller are conditional and non-binding.
- Insofar as nothing else is specified, the seller will be bound to the prices contained in its offers for 30 days from the date of the offer.
- The seller can accept orders, which can be regarded as offers according to § 145 BGB, within two weeks insofar as no acceptance date has been set.
- Declarations of acceptance require the express written confirmation of the seller to be legally effective.
- Declarations of acceptance that deviate from the orderer's offer become binding if they are not contradicted within 2 weeks.
- Public statements, drawings, figures, dimensions, weights, descriptions, and other technical data of the seller provide approximate values. They are non-binding for the seller if they are not confirmed explicitly in writing.
- If the seller makes application-technical specifications in connection with the contract or if it provides appropriate recommendations, these do not represent warranty declarations.
- The seller is entitled to relinquish the claims from the business relationship.
§ 3 Prices
- Insofar as nothing to the contrary is agreed, all prices of the seller apply from the factory plus any delivery costs, packaging, and insurance costs due, and are stated in Euros.
- All prices are plus the legally-applicable VAT in Germany. They will be invoiced for deliveries to other member states of the European Union, insofar as the customer's VAT number is not stated.
§ 4 Payment - Compensation/right of retention
- Insofar as nothing else is agreed upon in the purchase contract, the seller's invoices are due immediately after invoicing without deduction and shall be paid exclusively into the seller's account specified in the order confirmation/contract.
- Foreign payments must be free of charge for the seller. Any fees due must be borne by the orderer.
- The seller is entitled to offset older debts first with payments. If costs and interest have already accrued, the seller is entitled to credit the payment first to costs, then to interest, and last to the principal.
- Payment only counts as made when the seller has control over the amount.
- If there are justified doubts about the ability to pay or creditworthiness of the orderer and if the orderer is nevertheless not ready to prepay despite appropriate payment request or ready to provide suitable security for the payment he must make, then the seller, insofar as it has not yet performed, has the right to withdraw from the contract.
- The seller is entitled to assess EUR 15 for each reminder sent.
- In case of delay with one or more obligation, all receivables still due from the orderer are due to be paid immediately.
- In case of delay of the orderer, the seller, after it has set an appropriate grace period for payment or provision of security and this has elapsed without result, is entitled to retain all deliveries not yet made until payment of all receivables still owed or to withdraw from all contracts for which these sales conditions apply.
- The seller reserves the right to press claims for other damages for delays.
- The seller is entitled to relinquish its receivables from the deliveries and services to third parties for financing purposes, e.g. to a factor.
- The orderer is not permitted to offset the seller's receivables unless the claims are undisputed or legally established.
- The orderer will be authorized to exercise a right of retention only if the counterclaim is based on the same contractual relationship.
§ 5 Delivery and default of acceptance
- The seller is not responsible for delivery and service delays due to force majeure or due to events that make it very difficult or impossible for the seller to deliver but that are not its fault - these also include material procurement difficulties, operational breakdowns, strike, lock-out, lack of means of transport, official orders, etc. even if they occur at the seller's suppliers or sub-suppliers - also for binding, agreed-upon dates. In these cases, the seller is entitled to shift the delivery or service by the duration of the hindrance plus an appropriate start-up time or to withdraw from the contract entirely or partially due to the part not yet fulfilled. The extension does not go into force if the other party has not been made aware immediately of the reason for the hindrance, insofar as it can be foreseen that the contractual dates cannot be adhered to. The orderer's damage claims are excluded in the aforementioned cases, insofar as the seller has satisfied its obligations with respect to this provision.
- Insofar as the seller is responsible for non-adherence to binding, promised periods and dates or is in default, the orderer has claim to delay damages in the amount of ½ % for each completed week of the delay, in total, however, up to 5 % of the invoice value of the deliveries and services affected by the delay. In addition, claims exceeding this are excluded unless the delay is due to the seller's gross negligence or intention.
- The delivery of the goods is made from the seller's factory.
- Delivery is made with respect to transport and packaging at the orderer's costs.
- If there is no separate agreement, the seller has the option to select the transport company and type of transport.
- The right to reasonable partial deliveries and partial services as well as their invoicing is reserved expressly for the seller insofar as the orderer can be expected to accept a partial delivery.
- Deliveries before the beginning of a communicated delivery period are permissible.
- Insofar as nothing else is agreed upon in the purchase contract, delivery dates refer to the transfer to the freight company/deliverer and in case of service disturbances for reasons for which the orderer is responsible, the delivery date is the time at which the goods are ready to ship from the seller's.
- If as a result of the fault of the orderer the acceptance of the goods does not happen in timely fashion, the seller is entitled to store the goods at the orderer's cost, and/or after setting an appropriate grace period, to withdraw from the contract and sell the goods another way. Damage done to the seller this way and any additional costs shall be charged to the orderer. Any additional claims by the seller are reserved.
§ 6 Transfer of risk
- The risk is transferred to the orderer as soon as the seller has delivered the goods to the transporter, the freight carrier or another person or institution commissioned with the sending or the goods have left the seller's plant for the purpose of shipping. This also applies for shipping of the goods within the same location and for the case that the goods are transported by the company's own personnel and/or the seller's own means of transport.
- If the goods are ready for shipping and if the shipping or the acceptance of the goods is delayed for reasons for which the seller is not responsible, then the risk is transferred to the orderer with the receipt of the communication of the readiness for shipping.
- If the delivery is delayed due to circumstances for which the orderer is responsible, then the risk of accidental ruin or a decline in the condition of the goods is transferred to the orderer at the time at which the orderer is in default with respect to acceptance or default of the debtor.
§ 7 Warranty - inspection and reporting of complaints
- The warranty period for new goods is twelve months from the transfer of risk.
- For used goods, a sale occurs with exclusion of liability for defects.
- The orderer is obligated to examine the goods delivered immediately for quality and quantity deviations and to report to the seller in text form any recognizable defects within a period of one week from the receipt of the goods. If a complaint is not made within 7 days, then the goods count as properly and completely delivered, unless there is a defect that could not be detected during the examination. For keeping of a term, the timely sending is sufficient.
- The aforesaid also applies for transport damage.
- Defect of a part of the delivery does not entitle complaining about the entire delivery.
- The orderer grants the seller the right, before beginning of service work to examine defects asserted itself or have them examined by a neutral sworn expert. The costs of the expert shall be borne by that party to whose disadvantage the expert decides.
- In case of defects, the seller is, at its option, entitled to repair or deliver defect-free replacement goods (replacement delivery). The seller must always have the opportunity to repair within a reasonable period.
If, despite all care, the goods delivered demonstrate a defect that was already present at the time of transfer of risk, the seller can at its option demand that
a) the damaged part or goods be returned to the seller for repair and subsequent return free of charge to the orderer;
b) the orderer can keep the damaged part or goods and the seller's service technician can come to the orderer after mutual agreement about the date, in order to make a repair;
c) the repair by the orderer itself or by a third party is undertaken at the express instruction of the seller and the seller shall repay the orderer the necessary costs.
- In case of a replacement delivery, the orderer is obligated to return the defective item to the seller.
- Replaced parts become the property of the seller.
- If the orderer demands that warranty work be done at a place it determined, the seller can fulfill this demand, whereby parts under warranty are not charged, while work time and travel costs must be paid at the seller's standard rates.
- If the repair fails three times, the orderer can, regardless of any damage claims, at his option demand the annulment of the contract or the lowering of the compensation.
- No warranty will be offered for damage for which the orderer is responsible after the transfer of risk due to improper or proper use or damage due to special external influences that are not assumed according to the contract or damage due to incorrect installation or start-up by the orderer or third parties, incorrect or careless handling, damage to the painted surface and resulting corrosion, unsuitable operating materials, chemical or electrochemical influences, and natural wear.
- The warranty obligation does not include damage that arose due to further use despite occurrence of a defect.
- Defect claims do not exist in case of insignificant deviation from the agreed-upon quality, in case of only insignificant compromising of the usability or natural wear.
- For seasonal machines, the warranty period for new goods ends with elapsing of the first deployment time, insofar as the machine was used for the harvest.
- If the seller's installation, operation or maintenance instructions are not followed, changes are made to products, and/or parts changed out and consumable materials used that do not correspond to the seller's original specifications, then the warranty is voided due to defects of the goods if the orderer does not contradict an appropriate substantiated assertion that only one of these circumstances created the defect.
- Claims of the orderer due to expenses required for the purpose of repair, in particular transport, travel, work, and material costs, are excluded insofar as the expenses increase because the goods delivered by the seller has been brought after the fact to another place than the orderer's premises, unless the transfer corresponds to its proper use.
- Claims against the seller due to defects are only allowed for the orderer and may not be relinquished.
- The preceding limitations of the warranty do not apply in the case of damage arising from injury of life, body or health or for other damage that relies on an intentional or grossly negligent violation of duty or malice of the seller, as well as for damage from liability according to mandatory legal provisions such as the product liability law, as well as in the case of the assumption of warranties.
§ 8 Liability
- The seller will accept liability as required by law if the orderer makes damage claims 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.
- Insofar as the seller is not accused of intentional contract violation, the damage liability is limited to the foreseeable, typical damages.
- The limitation period for damage claims is 12 months from the transfer of risk.
- The liability due to culpable injury of life, body or health remains unaffected by this, this also applies for the mandatory liability according to the product liability law.
- Unless otherwise regulated above, the seller will not accept any further liability.
- Where the seller does not accept liability or liability is restricted, this same provision is also applicable for its agents.
§ 9 Retention of title
- The seller retains title to the item delivered until complete payment of all of its receivables from the contract. This also applies for future receivables that may arise, also from contracts concluded simultaneously or later in the ongoing business relationship until their settlement, even if the seller does not constantly rely expressly on these.
- The orderer is obligated, as long as the title has not been transferred to him, to handle the item purchased carefully. In particular, he is obligated to insure it sufficiently at the new value at his own expense against theft, fire, and water damage. If service and inspection work must be performed, the orderer must perform these at his own cost in timely fashion.
- As long as the title has not yet been transferred, in case of access of third parties to the retained goods, especially seizures, the orderer must inform about the seller's title and must inform the seller immediately in text form if the object delivered is impounded or otherwise subjected to interventions of third parties.
- Insofar as the third party is not in a position to pay the seller the legal and extralegal costs of a suit according to § 771 ZPO, the orderer is liable for the seller's loss.
- The orderer is entitled to further sell the retained goods in the course of proper business. He thus relinquishes to the seller all receivables arising from the further sale in their full amount.
- If after processing or connection with objects that are exclusively the property of the orderer retained goods are sold, the orderer already relinquishes to the seller all receivables arising from the further sale in their full amount. If without processing or processing or connection with objects that are not the property of the orderer retained goods are sold, the orderer relinquishes to the seller at this point all receivables in the amount of the retained goods with all ancillary rights and ranking before the rest in their full amount. The seller accepts the relinquishment.
- The orderer undertakes any processing of the retained goods for the seller without having obligations arise for the seller. In case of the processing, connection, mixing or blending of the retained goods with other goods that do not belong to the seller, the seller has a co-ownership share in the new item in relation to the value of the retained goods to the other processed goods at the time of processing, connection, mixing or blending. If the orderer acquires sole ownership of the new item, he thereby grants the seller co-ownership in the new item in relation to the value of the processed, connected, mixed or blended retained goods; he shall keep the the new item for the seller free of charge.
- If the orderer sells the retained goods while retaining title, the seller remains the owner of the retained goods up to the complete payment of all receivables from the business relationship and the orderer relinquishes to the seller even now the receivables against his purchaser on handover of the retained goods and all other rights against his purchaser. The seller accepts the relinquishment.
- The orderer remains empowered even after the relinquishment until collection of the receivable. The right of the seller to collect the receivable himself remains unaffected by this. However, the seller will not collect the receivable as long as the orderer fulfills his payment duties from the appropriated revenue, is not in payment default, and especially no claim to the opening of a bankruptcy process has been made or there is no insolvency.
- At the request of the seller, the orderer must provide the details required for payment about the relinquished receivables, transfer appropriate documents, and indicate the relinquishment to the debtor.
- The seller obligates himself to release the securities due him on the orderer's request insofar as their value exceeds the receivables secured by more than 20%. The selection of the security to be released shall be made by the seller.
- In case of behavior of the orderer contrary to contract – in particular payment delay and essential deterioration of assets – the seller is entitled to withdraw from the contract and demand the retained goods. The orderer must bear the costs of the handover.
- The seller is entitled to assert its rights from retention of title against § 449 Para. 2 BGB without prior withdrawal from the respective purchase contract. After asserting the retention of title, the orderer cannot derive any more right to possession from the contract concluded.
§ 10 Design changes
- The seller reserves the right to make design changes.
- If there is such a design change between contract conclusion and delivery or handover of the goods or performance of the service, the orderer is not entitled to withdraw if the design change was required due to a change of the legal situation and/or the change of other technical standards (DIN, TA, etc.) and/or the design change is at least equivalent technically.
- The seller is not obligated to make design changes for already-delivered products, insofar are already-delivered products are not defective.
§ 11 Documents handed over - confidentiality
- The seller retains the title and copyright to all documents handed over to the orderer in connection with the order granting, such as calculation, drawings, programs, etc. These documents may not be made accessible to third parties unless the seller grants the orderer express permission for this in text form.
- The orderer is obligated to keep all non-public commercial and technical information, e.g. knowledge that becomes known due to the business relationship between the seller and the orderer, as a trade secret.
§ 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 headquarters 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.
Status as of 12/2021