General terms and conditions of sale, delivery and payment
of ROKON Filterbau GmbH, Stellwerkstraße 16, 33647 Bielefeld
- • The delivery terms and conditions set out below apply to all agreements, deliveries and other services, including consulting services, unless they have been amended or excluded with ROKON’s express consent.
II. Offers and conclusion of contract
- Offers are always non-binding. Conclusions of contract and other agreements are only binding if confirmed in writing by ROKON.
- Verbal subsidiary agreements and promises made by our employees or sales representatives shall only be binding if confirmed in writing. Any rights from the contractual relationship may only be transferred to third parties with our written consent.
- Any documents, such as diagrams, drawings, weights and dimensions are non-binding, unless they have been recognised as binding in the offer or order confirmation. We reserve all rights to ownership and copyrights for quotations, drawings and other documentation. They may not be disclosed to third parties. We shall undertake to solely disclose drawings our contracting partner has marked as confidential to third parties with its consent.
- All performance curves, as well as performance and consumption specifications are only an approximate guide, as they are largely determined by different physical and chemical states and the composition of materials, operation and maintenance. Warranted performance, consumption and power specifications are deemed to be met, if the value is not more than 10 per cent below the power requirement.
- Tube and duct parts will always be delivered as accurately as possible. However, these parts must be fitted together on site. No costs may be charged to us for this work.
- Any complaints regarding order confirmations or invoices have to be made within a week. They shall not release the purchaser from his obligation to pay.
- Unless otherwise agreed, all prices quoted are ex works, including loading at the factory, but excluding packaging. VAT will be added at the current standard rate.
- All prices are in € (value). Any payments must be made within 10 days less 2% discount or 30 days net after invoice date. Special agreements shall require explicit confirmation by us.
- If, after an order has been confirmed and prior to shipment of the goods, an increase in wages or other prime costs occurs within the company, including our purchasing costs at suppliers, we shall be entitled to add the higher costs to the original selling price. Any costs for agreed additional services, potential accessory charges, public taxes, other additional taxes and the like are to be paid by the customer, unless otherwise stipulated by law.
- Unless otherwise agreed, payment must be made within 10 days less 2% discount or otherwise 30 days net free of transaction fees to ROKON’s paying agent (accounts).
- The contracting partner is only entitled to offset claims made by ROKON, if the counter claim is undisputed or legally binding. He may only assert a right of retention for such claims, if it is based on claims relating to the contract.
- If the contracting partner is in default of payment, we shall be entitled to charge interest at a rate of 8% above the base interest rate, plus sales tax. The right to claim any further damages caused by default remains unaffected.
- Bills of exchange and cheques shall only be accepted in lieu of payment upon prior written agreement by us. Any collection costs and discount expenses shall be charged to the customer.
- If, after conclusion of contract, a deterioration of the customer’s financial situation occurs or becomes known to us or bill protests are effected, for whatever reason, thus endangering the performance of our claim for payment, we shall be entitled to demand payment in advance and immediate payment of all outstanding invoices as well as invoices not yet due, to withhold goods not yet delivered and to stop work on orders still in progress. We shall be entitled to assert such rights, if the customer is in default of payment.
V. Delivery times and deadlines
- Delivery times and deadlines are only approximate, unless we have expressly stated them to be binding. Delivery times begin with entry of the order confirmation, but not before the relevant documentation, approvals and clearances are provided by the contracting partner and we have received the agreed down payment.
- The delivery time is deemed as being met, if the delivery item has left the factory before the deadline has expired or if the customer has been advised that the item is ready for dispatch.
- In the event of force majeure and other unforeseeable circumstances beyond our control, which render the provision of the delivery or service unreasonably difficult or impossible, we shall be entitled – even if we are in default – to extend the delivery period for the goods or service by the duration of the impediment plus an appropriate lead time. These are circumstances such as strikes, lock-outs, raw material shortages and the like. The extension of this deadline shall also apply, if such circumstances occur at subcontractors.
- Any claims for damages resulting from a delay in delivery due to negligence are only permitted following written notice of a grace period. Such a grace period must be at least 14 days.
- If there is a delay in the acceptance of the goods, ROKON shall be entitled to fully or partly rescind this contract or request claims for damages due to non-performance, including any lost profit, without setting a grace period. In case of non-performance, the supplier shall be entitled to demand a lump sum compensation of 25% of the invoice value, unless a higher damage can be proven.
VI. Shipment, transfer of risk and part shipments
- Unless otherwise agreed, the choice of transport route and mode of transport shall be left to the discretion of ROKON. If requested, the goods shall be insured at the customer’s own expense. Packaging will not be taken back.
- All risks are transferred to the customer upon handover of the goods to a carrier or freight forwarder, at the latest, however, when the goods leave the factory or plant.
- If shipment is delayed due to circumstances within the customer’s control, all risks shall be transferred to the customer as of the date the goods were ready for dispatch. Storage costs may be charged in such a case.
- ROKON shall be entitled to provide part shipments and additions and reductions to the agreed delivery quantity in line with industry standard practices.
VII. Retention of title
- All goods shall remain our property until payment is received in full, irrespective of any legal grounds, including future or contingent claims and those from contracts concluded concurrently or at a later date. This also applies, even if payments are made on specific claims. In the case of an outstanding invoice, the retained title shall be deemed as collateral for all balances payable to us.
- In the case of treatment or processing of the reserved goods or mixing of these goods with other goods, the retention of title shall continue to apply to such processed or mixed goods. If the reserved goods are processed or inseparably mixed with other items that are not our property, we shall acquire co-ownership rights to the new item based on a ratio of the invoice value of the reserved goods to the invoice value of the other goods used at the time of processing or mixing. The ensuing rights of co-ownership shall be deemed as reserved goods pursuant to these terms and conditions. If our goods are combined or inseparably mixed with other movable items to form a single product and the other item is considered the main product, the customer shall transfer ownership to us on a pro rata basis, provided he owns the main product. The product created by processing, combining and mixing goods is subject to the same conditions that apply to the reserved goods.
- The customer is solely permitted to sell the reserved goods during the normal course of business, provided he is not in default of payment and only on condition that the customer’s claim arising from the sales transaction is assigned to us and is equal to the invoiced sum of our claim. In the case of the resale of reserved goods in which we have acquired a co-ownership share pursuant to para. 2, the transfer of the claim shall be equal to these co-ownership shares. The resale of reserved goods is equivalent to installation in land or in buildings with connected plants or use in fulfilling other service or delivery contracts by the customer.
- The contracting partner shall be entitled to collect all claims from the resale, until such authority be revoked by us. We shall only exercise our right to revocation, if the customer does not meet our payment terms or we become aware of circumstances, which in our dutiful judgment serve to reduce the customer’s credit worthiness. The customer is not entitled to transfer any claims. At our request, he shall undertake to inform his customers about such a transfer.
- Should we exercise our retention to title, this shall be deemed as a withdrawal from contract, if expressly stated by us in writing. The customer’s right to own the reserved goods shall become null and void, if he fails to fulfil his contractual obligations. We shall then be entitled to take ownership of our reserved property and to sell it by private sale or public auction at the highest price possible. After deduction of expenses, the proceeds shall be credited to the buyer against the amounts he owes. Any excess shall be paid to him.
- If the value of our securities exceeds the total claim against the customer by more than 10%, at the customer’s request, we shall undertake to release securities at our discretion.
- Until the goods have been paid in full, ROKON is entitled to insure the delivery item against theft, breakage, fire damage and water damage, as well as other damages at the customer’s expense, unless the customer can provide proof of insurance coverage of the item in question.
- The contracting partner may not pledge the items delivered as collateral, nor transfer ownership of them as security. ROKON must be informed immediately, in the case of pledges and confiscation or other orders by third parties.
VIII. Warranty, Notice of defects and liability
ROKON shall assume liability for defects in the goods delivered, including the absence of expressly warranted features, to the exclusion of all other claims, as follows:
- ROKON must repair or replace any defective part free of charge. In such a case, ROKON may, at its own discretion, decide whether to repair or replace a part. The warranty period is limited to one year and begins on the date of commissioning. Immediate written notification must be given to us in the event of any defect being found in the goods. Replaced parts shall become our property. If a delay occurs with regard to shipment, installation or commissioning through no fault of ROKON, the warranty shall expire no later than 12 months from the transfer of risk. In the case of major third party products, the liability assumed by ROKON shall be limited to the transfer of liability claims against the supplier of such third party products. The customer may only demand compensation from ROKON for non-performance, if we have failed to repair or replace the part after setting a fixed period of grace. The same shall apply to withdrawal from contract.
- The customer’s right to assert claims for defects shall expire without exception 6 months after the duly submitted notice of defect, but not before the warranty period expires.
- ROKON shall not assume any liability for damages incurred on the following grounds: Improper or inappropriate use, faulty assembly or commissioning by the customer or third parties, normal wear and tear, incorrect or negligent handling, unsuitable equipment, substitute materials, defective construction work, unsuitable construction base, chemical, electrochemical or electrical influences, unless they are attributable to a fault of ROKON.
- In order for us to undertake all repairs and replacements we deem necessary in our sole discretion, the customer, upon notifying us, shall grant us the time and opportunity required, otherwise we shall be released from all liability for defects. The customer has the right to rectify the defect himself or allow it to be rectified by third parties and request compensation for the necessary expenses, solely in urgent cases, where there is a risk to operating safety or to prevent excessive levels of damage, of which we must be notified immediately, or if we are in default with regard to the rectification of the defect.
- From the direct costs incurred by repairs or replacements – provided the complaint is deemed to be justified – the costs of removal and installation and if this can be reasonably demanded in individual situations, the costs of any provision required for fitters and auxiliary staff shall be charged to ROKON. All other costs shall be charged to the customer.
- The warranty period for the replacement part and repair shall be three months, but is valid at least until the expiry of the original warranty period for the delivered item. The defects liability period for the delivered item shall be extended by the length of any downtime caused by repair work.
- In the event of inappropriate changes or repair work carried out by the customer or third parties without prior approval from ROKON, ROKON shall be released from all liability for the consequences resulting thereof.
- All other customer claims, in particular, claims for damages not incurred for the delivered item, where permitted by law, are hereby excluded. Any claims against ROKON otherwise not expressly stipulated in these terms and conditions, in particular, claims for damages due to impossibility of performance, default, breach of secondary contractual obligations, culpa in contrahendo and tort, where permitted by law, are hereby excluded, unless caused by wilful intent or gross negligence on behalf of ROKON, a legal representative or agent.
IX. Place of performance and court of jurisdiction
The place of performance for ex works deliveries is the registered office of ROKON. The sole court of jurisdiction for all disputes arising between the parties, where permitted by law, is Bielefeld.
X. Invalidity of provisions
Should any individual provisions of these terms and conditions be or become ineffective, they shall be replaced by such regulations that most closely reflect the economic purpose of the contract, while giving due consideration to the interests of both parties. The terms and conditions of this contract shall also remain unaffected by the invalidity of an individual provision.
As amended 07.2005