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General Terms and Conditions of Röber Kunststoffe GmbH
§ 1 General
(1) Röber Kunststoffe GmbH based at Gewerbestrasse 11, 57612 Kroppach, hereinafter referred to as "Röber", is a specialized manufacturer and trader in acrylic, polycarbonate and PET glasses of different colours and formats.
(2) Supplies, services and offers by Röber are provided exclusively in the course of business dealings with corporations, corporate bodies under public law or special funds under public law on the basis of the General Terms and Conditions as set out below. The latter shall also apply to all future legal transactions even if not expressly agreed again.
(3) In the event customer does not want the General Terms and Conditions to apply Röber shall be notified of the same in advance in written form. Any deviating terms and conditions (of purchase) of customer are hereby objected. Therefore the terms and conditions of the customer or any third party shall not apply even if Röber does not expressly object in the individual case or Röber makes reference to a letter containing customer´s or a third party´s terms and conditions or refers to the same.
§ 2 Offers and Conclusion of Contract
(1) All offers by Röber shall be subject to confirmation and non-committal unless expressly designated as binding or contain a certain term of acceptance. Purchase orders may be accepted by Röber in writing or by telefax or email within a period of two weeks after receipt.
(2) The subject matter of the services owed by Röber follows from the order confirmation, change or amendment of contract if any, including these General Terms and Conditions. The agreements made shall fully reflect the understanding of the parties thereto in terms of the subject matter of the contract. Oral promises by Röber prior to contract conclusion shall have no legal effect and any oral agreement between the parties shall be replaced by a written contract unless such agreement expressly shows that it continues to apply in a binding manner.
(3) The services ordered shall be rendered, subject to any diverging provision in a case given, in accordance with the standardization for types, dimensions and properties of plastic materials (polymethyl methacrylate sheets) as defined by DIN ISO 7823-2.
(4) The following tolerances shall be deemed agreed in particular:
a) Acrylic glass GS: DIN 16957
b) Acrylic glass XT: DIN 16958
c) PVC: DIN 16927
(5) A purchase order may only be changed by an amendment or supplemental agreement. Every change request by customer shall be deemed an offer to Röber to terminate the first order in conjunction with an offer to conclude a new contract. Röber shall not be under no obligation to accept the customer´s offer.
(6) The conclusion of contract as well as supplements and amendments of the arrangements made including these General Terms and Conditions require the written form to become operative. Except managing directors or holders of special statutory authority (Prokurist) of Röber no employee of Röber shall have the power to make any deviating oral agreement. To fulfil the requirement of written form, a transmission by telecommunication shall suffice with the proviso that the copy of the signed declaration is transmitted (e.g. signed document sent by telefax or as pdf-attachment of an email).
(7) Information given by Röber on the delivery items (e.g. weights, dimensions, value in use, resilience, tolerances and technical data) and the depiction of the same (e.g. drawings and illustrations) shall be deemed proximate figures only unless the usability as provided for in the contract requires a strict conformity. They shall not be deemed guaranteed quality features but are descriptions or characterizations of the delivery or service. Customary deviations and deviations required by statutory regulations or constituting technical improvements and a replacement of components by at least equal components shall be permitted to the extent the same do not affect the usability for the contractual purpose.
(8) Röber reserves the title to the property and copyright of all proposals and cost estimates submitted and the drawings, figures, calculations, brochures, catalogues, models and other documents and implements made available to customer. Without Röber´s express approval customer shall not make accessible these items, neither as such nor the content of which, to any third party, disclose the same, reproduce or make itself use of them or have them used by any third party. Company names, brands and other labels shall not be removed from the items delivered by Röber. At Röber´s request customer shall return these items completely and destroy copies that might have been made if the same are no longer needed by customer in the course of ordinary business or if negotiations do not result in a contract.
§ 3 First-off sample
(1) Röber is a manufacturer of plastic product series of different sizes and colours tailored to the customer´s requirements.
(2) Prior to commencement of production of the customized series Röber provides customer with a first-off sample of the series. Customer may request a new delivery of the sample as long as the sample delivered deviates significantly from the contract specification and repeated delivery is not unreasonable for Röber.
(3) If the sample complies with the requirements specified, customer shall approve the sample. If customer fails to approve the approvable sample within a period of two weeks despite written request by Röber and after having set a deadline, or refuses the approval finally, the sample shall be considered approved notwithstanding Röber´s right to withdraw from contract and entitlement to claim damages and reimbursement of expenses due to non-performance.
(4) The sample approved describes the contractual quality of the plastic parts to be produced in series. A guaranty of quality cannot be derived from it.
§ 4 Prices
(1) The prices of the goods and services owed by Röber shall be those defined in the order confirmation and contract change and supplement agreed, if any, in the alternative those indicated in the price list applicable at the time of agreement of the relevant performance. The prices shall apply to the scope of work specified in the order confirmation. Any extra or special performance will be charged separately.
(2) Unless agreed otherwise, the prices are quoted in EURO ExW (Incoterms 2010) 57612 Kroppach plus packaging, applicable rate of value added tax, insurance and, for export shipment, customs duty and fees and other public charges.
(3) Insofar as the agreed prices are based on Röber´s list prices and the delivery is to be rendered later than four months after contract conclusion, the list prices of Röber applicable on delivery shall apply (always less a percentage or firm discount agreed).
(4) Costs incurred due to subsequent changes of contract specifications requested by customer will be charged extra.
§ 5 Delivery and Service Period
(1) Time limits and deadlines held out in prospect by Röber for deliveries and services shall always be considered approximate only unless a firm time limit or deadline has been expressly agreed or promised. If shipment has been agreed the delivery times and delivery dates shall refer to the date of handover to the forwarding agent, carrier or any third party commissioned with shipment.
(2) Röber shall not be liable for the impossibility of delivery or delay in delivery to the extent the same has been caused by acts of god or any other event (e.g. business disruptions of any kind, difficulties in procuring material or energy, transport delays, strike, legal lockouts. shortage of labour, energy or raw materials, difficulties in obtaining official permits, regulatory action or lack of, incorrect or late supplies by contractors) not to be attributed to Röber. If such kinds of event makes delivery or the provision of services difficult or impossible for Röber and the impairment is not only of temporary nature, Röber shall be entitled to withdraw from contract. Should hindrances be of temporary nature the periods or dates of delivery and service shall extend by the period of hindrance plus a reasonable start-up period. If customer cannot be expected to put up with the acceptance of the delivery or service due to the delay, customer may withdraw from the contract by prompt written declaration towards Röber.
(3) Without prejudice to its rights relating to delays by customer Röber may request customer to accept an extension of the delivery and services periods or postponement of delivery and service dates by the period customer fails to perform its contractual duties towards Röber, in particular the approval of the first-off sample as per § 3.
(4) If Röber defaults in delivery or provision of services or any delivery or service becomes impossible irrespective of the reason, the liability of Röber shall be limited to damages as defined by § 11 (Liability) of these General Terms and Conditions.
§ 6 Handover, Delivery, Partial Delivery and Transfer of Risk
(1) Subject to any arrangement to the contrary in a given case, handover or delivery shall not take place before customer has rendered the agreed payment in full.
(2) At the customer´s request Röber arranges the shipment to customer. The costs of the same shall be borne by customer. Deliveries will be made ex works. The shipping method and packaging shall be up to Röber´s discretion.
(3) Only at customer´s express request and costs consignments shall be insured by Röber against theft, breakage, damage in transit, by fire and water or any other insurable risks.
(4) Röber shall be entitled to make part deliveries if such part delivery can be used by customer within the framework of the contractual purpose, the delivery of the residual goods ordered is ensured and no substantial extra or additional cost will be incurred by customer (unless Röber agrees to pay such costs).
(5) The risk of accidental loss or accidental deterioration of the goods shall be transferred to customer not later than upon handover (start of loading being essential) to the forwarding agent, carrier or any third party commissioned with the shipment. It shall apply irrespective of which party bears the cost of shipment and also when the goods are carried by Röber´s own staff. Sentence 1 shall apply even if part deliveries are made or Röber has taken on other services, too. If the goods are ready for dispatch and shipment or acceptance delay for reasons not to be attributed to Röber, the advice of readiness for dispatch shall be deemed the handover upon which the risk transfers to customer.
(6) If the goods are returned because they are undeliverable, Röber shall be under no obligation to safekeep the same for customer, unless customer is not responsible for the delivery obstacle. Röber shall have the right to destroy the goods after having checked the correctness of dispatch, notification of customer and expiry of a reasonable time limit for collection. Röber´s entitlement to remuneration shall not be affected by it. Any temporary safekeeping shall take place at customer´s risk.
(7) Storage costs accruing after transfer of risk shall be borne by customer. If stored by Röber the cost of storage shall amount 0.25% of the invoice amount of the items stored for each full week. Röber reserves the right to claim and verify higher or lower storage costs.
§ 7 Payment and Default
(1) Unless agreed otherwise in writing, Röber´s invoices shall be payable without deduction immediately upon issue of the same. An invoice shall be deemed paid as soon as Röber can dispose of the money. If payment is made by cheques it shall be deemed rendered when the cheque has been cashed. If customer fails to perform upon due date, default interest of 5% per annum shall be paid on the outstanding amounts beginning from the due date. The right to claim higher interest or damages in case of default shall remain unaffected.
(2) If customer defaults, interest of eight (8) percentage points above the base rate shall be charged from the relevant date. Röber reserves the right to claim greater damage due to delay in performance.
(3) Röber shall be entitled despite any contrary provisions of customer to initially set off payments to older debts and will inform customer on the kind of setoff made. If costs and interest have accrued already, Röber shall be entitled to set off against these costs first, then the interest and finally against the main performance.
(4) Röber shall be entitled to deliver goods or provide services only against advance payment or provision of securities if after contract conclusion Röber becomes aware of any circumstances geared to diminish substantially the customer´s creditworthiness (e.g. suspension of payment, return of cheque, termination of credit insurance) and by which the payment of outstanding debts to Röber arising from the contractual relationship (in case of skeleton agreements including from other individual contracts falling under the same skeleton agreement) is jeopardized. In such case Röber shall also be entitled to request payment of all remaining debts by customer even if Röber accepted cheques.
(5) If customer withdraws from contract after conclusion of the sales contract for reasons not to be attributed to Röber, 20% (twenty percent) of the gross amount of purchase shall become due and payable immediately. The customer shall be free to furnish proof that no or lesser damage or loss in value has occurred.
§ 8 Retention of title
(1) Up until settlement of all claims from the business relationship (including all current account balance claims from a current account relation limited to said business relationship) due to Röber against customer on whatever legal ground, Röber shall be provided with the following securities.
(2) Up until settlement in full of all secured claims the goods delivered shall remain Röber´s property. The goods and the goods falling under the retention of title and taking their place according to the provisions set out below shall be called "retained goods" hereinafter. If hereinafter reference is made to the value of goods or of an object, it shall mean the invoice value, the list price in absence of an invoice and the objective value in absence of a list price.
(3) Customer shall keep the retained goods for Röber free of charge and with the care of a prudent businessman. Customer shall insure the retained goods properly and furnish evidence of such insurance at Röber´s request.
(4) Customer shall be entitled up until the occurrence of an enforcement event (§ 11) to process the retained goods in the ordinary course of the business and compound or combine them with other objects including real property (hereinafter also designated as "processing" and "process") and sell the same. Any pledging or assignment as security shall be prohibited.
(5) If retained goods are processed by customer, it shall be deemed agreed that such processing takes place in the name and for account of Röber as the manufacturer, and Röber acquires ownership or Ð if the processing incorporates materials of multiple owners or the value of the processed item is higher than that of the retained goods Ð co-ownership in the newly created item in proportion of the value of retained goods to the value of the newly created item. If no such acquisition of ownership in favour of Röber occurs and the newly created item is a movable property, customer shall transfer to Röber in advance its future ownership or co-ownership in the newly created item as defined in sentence 1 as security.
(6) If the retained goods are resold customer shall assign to Röber in advance the claims against the purchaser out of the resale Ð in case of RöberÔs co-ownership in the retained goods at the proportion of the co-ownership share only - for security. The same shall apply to other claims taking the place of the retained goods or arising otherwise with respect to the retained goods, e.g. insurance claims or claims arising from tortious act in case of loss or destruction.
(7) If customer processes the retained goods on behalf of its purchaser ("end customer"), customer shall assign in advance the claim due to customer as reimbursement for supply and processing as security but only proportionately in accordance with the co-ownership share of Röber. If the retained goods are combined with real property, the amount of the claim assigned shall be determined based on the proportion of the value of the retained goods delivered by Röber to that of the other combined movable goods.
(8) Until further notice customer shall be authorized to collect the claims assigned according to the paragraphs 6 and 7. Customer shall immediately pass through to Röber all payments rendered on the assigned claims up to the amount of the secured claims. Should compelling reasons exist, in particular default in payment, suspension of payment or justified indications of overindebtedness or imminent insolvency of customer, Röber shall be entitled to revoke the customer´s authority to collect. Röber shall also be entitled after prior warning and subject to a reasonable term for payment and fruitless expiry of the same to disclose the assignment for security, realize the claims assigned and request the disclosure of the assignment for security by the customer to the end customer. In case of compelling reason according to sentence 3 and fruitless expiry of the time limit according to sentence 4 resp. customer shall provide Röber with the information required by Röber to enforce its rights towards the end customer and make available the necessary documents.
(9) If retained goods are seized by any third party, in particular by way of pledging, customer shall inform such party immediately on Röber´s ownership und Röber as well to enable Röber to enforce its ownership rights. If said third party is unable to reimburse Röber for the legal or out-of-court expenses, customer shall be liable towards Röber.
(10) Röber will release the retained goods and items or claims taking their place provided their value exceeds the amount of the secured claims by more than 20%. The kind of items to be released shall be up to Röber.
(11) If Röber withdraws from contract (enforcement event) due to breach of contract by customer Ð in particular default in payment - Röber shall be entitled to reclaim the retained goods.
§ 9 Set-off, Retention and Assignment
(1) Customer may only set off or retain if the counterclaims due are uncontested, final and binding. However, customer shall be entitled regardless the other prerequisites of sentence 1(1.1) to set off also in cases where it wants to set off against a claim of Röber being in a relationship to the customer´s claim that requires reciprocal performance (e.g. set-off against a claim for damages due to non-performance or default against a claim for payment of reimbursement owned),
(1.2) to retain even if the right of retention due to counterclaims from the same contractual relationship is asserted.
(2) Except for the provisions of Sect. 354a HGB (Commercial Code) customer may assign claims of this contract upon prior written approval by Röber only.
§ 10 Warranty
(1) The items supplied shall be carefully inspected upon arrival at the customer´s or the party designated. In terms of obvious or any other defects that would have been detectable if an immediate careful inspection had been made the goods shall be considered accepted by customer if no written notice of defect is received by Röber within seven (7) business days after delivery. As regards other defects the delivery items shall be considered approved by customer if a notice of defect is not received by Röber within seven (7) business days after the date upon which the defect showed up. If under conditions of normal use the defect could have been recognized by customer earlier, such earlier point in time shall be essential for the commencement of the notification period. At Röber´s request an objected item shall be returned to Röber carriage paid. If the notice of defect is justified Röber will refund the costs of the most favourable route of shipment. This provision shall not apply if the costs increase because the delivery item is located at a place other than that of the intended use.
(2) In case of material defects of the goods delivered Röber shall have the option to remedy such defect initially by either rework or replacement. If such action comes to nothing, i.e. impossibility, unreasonableness, refusal or unreasonable delay of rework or replacement, customer may withdraw from contract or reduce the purchase price adequately.
(3) If components from other manufacturers are found defective, and such defects cannot be removed by Röber for licence or other factual grounds, Röber will at its option assert its warranty claims against the manufacturers and suppliers for the account of customer or assign the same to customer. In case of such defects warranty claims can only be raised against Röber under the other prerequisites and according to these General Terms and Conditions if a legal enforcement of the above claims against the manufacturer and supplier failed or appeared to have no prospect because of insolvency, for example. The period of limitation of the customer´s warranty claims against Röber does not run for the duration of the lawsuit.
(4) Claims for defect of quality shall be excluded insofar as the defect occurred due to the fact that the item was wrongly installed by customer or a third party commissioned by customer, the item was changed or modified, parts replaced or consumables were used that did not comply with the original specifications or the maintenance and service intervals prescribed by manufacturer were not observed which hampered the elimination of defects or rendered it impossible. In any case customer shall bear the extra cost of defect removal caused by such change.
(5) A delivery of used items agreed with customer in a given case shall be free of warranty for defects of quality.
(6) As for the rest the provisions of § 11 (Liability) shall apply to claims for damages.
§ 11 Liability
(1) Röber shall pay damages or refund wasted expenditure for whatever legal ground (e.g. contractual and similar obligations, breach of duty and tort) to the following extent only:
(1.1) Liability for damage caused intentionally or based on warranty shall be unlimited.
(1.2) For damage caused by gross negligence Röber shall be liable up to the amount of damage typically foreseeable upon conclusion of contract.
(1.3) Liability for slight negligence shall be excluded. In case of breach of fundamental contractual obligations enabling the proper performance of the contract in the first place and the adherence to the same the other party can usually rely on (cardinal duties, such as on-time delivery of zero-defect goods) however, Röber shall be liable up to the amount of the damage typically foreseeable upon contract conclusion.
(1.4) If Röber defaults in performance, Röber shall also be liable without limitation because of this performance for accidental events unless the damage would also have occurred if performance had been on time.
(2) To the extent the liability of Röber is excluded or limited, it shall also apply to the personal liability on the side of employees, representatives or agents of Röber.
(3) If Röber provides free of charge technical information or advice not belonging to the scope of work contractually agreed, it shall be done to the exclusion of liability.
(4) The limitation of § 11 (Liability) shall not apply to damage resulting from injury to life, body and health and claims as defined by the product liability law.
§ 12 Statute of limitations
(1) The limitation period shall be
(1.1) for claims for repayment of remuneration due to withdrawal or reduction: one year but not less than three months from the date of submission of effective declaration of withdrawal or reduction;
(1.2) for other claims due to defects of quality: one year;
(1.3) for claims due to legal defects: two years if the legal defect does not lie in a sole and exclusive right of a third party based on which the third party may request the surrender or destruction of the items left to customer;
(1.4) for other claims for damages or replacement of wasted expenditure: two years.
(2) Subject to any individual agreement to the contrary the statute of limitations shall commence in the cases of the paragraphs 1 a) to c) in accordance with the legal provisions of the applicable warranty law, in the case of paragraph d) on the date customer becomes aware of the circumstances giving rise to a claim or had to gain knowledge of without coarse negligence. The limitation period commences at the latest upon expiry of the maximum period as defined by Sect. 199 BGB (German Civil Code).
(3) In cases of damages and reimbursement of expenses due to intent, coarse negligence, warranty fraudulent intent and in the cases as set out in § 11, paragraph 4 the limitation period prescribed by law generally apply.
§ 13 Confidentiality
The parties shall not disclose towards third parties any business and corporate secrets and other confidential information relating to their business relationship and the other party´s corporate activities. This requirement shall survive the termination of the contractual relationship.
§ 14 Final clauses
(1) Contracts concluded including these General Terms and Conditions and the future legal relations between Röber and customer shall be governed exclusively by the law of the Federal Republic of Germany excluding the UN Convention for the International Sale of Goods.
(2) If not provided otherwise by an individual purchase order, Westerburg shall be the place of performance.
(3) If customer is a merchant, corporate body under public law or special fund under public law, Westerburg shall be the sole place of jurisdiction for all disputes that may arise out of the business relationship between Röber und customer. For legal actions by Röber against customer any other place of jurisdiction shall apply. Imperative provisions of the law on sole places jurisdiction shall remain unaffected by this provision.
(4) Should the contract concluded with customer on the basis of these General Terms and Conditions contain any gap, effective provisions shall be deemed agreed that fill such gap and would have been agreed by the parties in view of the commercial objectives of the contract had the parties been aware of the gaps.
Simon Zimpfer - Zimpfer Photography, Lydia Kroeker, Bettina Röber
Fotolia: Jonas Glaubitz, Inga Nielsen, Kzenon