General Terms and Conditions of Sale and Supply

of Römheld GmbH Friedrichshütte, Hilma-Römheld GmbH and Römheld Rivi GmbH
-Version: March 2017-

I. General

1. Our quotations are exclusively intended for enterprises, public law entities and special funds under public law. Our supplies and services are therefore subject to the terms and conditions specified below. Any contradictory or deviating Purchaser‘s Terms and Conditions of Purchase shall not be applicable unless we would explicitly have consented to them in writing in individual cases The unreserved delivery of goods, performance of services or acceptance of payments by us does not constitute the acknowledgement of deviating terms and conditions by us. The present Terms and Conditions shall also apply to all future deliveries to the Purchaser.
2. Our supplies and services are in compliance with the applicable German regulations and standards. We do not guarantee compliance with other national regulations (cf. Section X).
3. To the extent required for business, we shall be entitled to save and process the Purchaser‘s data in compliance with the applicable data protection laws (in particular § 28 BDSG [Federal Data Protection Act]) on computers.
4. Insofar as these General Terms and Conditions are produced in other languages, the German version shall prevail.

II. Contractual Declarations

1. Our quotations shall be non-binding with regard to prices, quantities, delivery terms and delivery possibilities. We shall be entitled to adapt our products and service with effect for the future. We shall be entitled to adapt our products and service with effect for the future.
2. Our written order confirmation shall exclusively be decisive as regards the order acceptance, the scope of supplies and services as well as the delivery date. If orders are placed via the Internet, an electronically transmitted order receipt confirmation shall not represent a contractual declaration.
3. We shall reserve all property and copyrights to cost estimates, drawings, electronic data records, software and other documents; these shall not be disclosed to third parties without our prior written approval.

III. Price, Terms of Payment, Set-off

1. Our prices are quoted in accordance with the terms and conditions of our price list valid upon contract execution unless otherwise agreed upon. Prices are „ex works“ (EXW INCOTERMS 2010), i.e. plus freight, customs clearance, import duties, insurance, as well as packaging. VAT shall be charged at the statutory rate valid on the date of performance. Expenses for the erection, installation and commissioning of equipment shall be charged as incurred.
2. If the delivery or performance date is more than three months after contract execution, we shall be entitled to adjust the price of the goods or services as required due to the general price development beyond our control (such as exchange rate fluctuations, currency regulations, changes in customs duties, significant increase in material or manufacturing cost) or necessary due to changes with suppliers after notifying the Purchaser in good time and before performing the relevant services or delivering the goods. As regards supplies and services within three months after contract execution, the price valid on the date of contract execution shall be applicable in any case. As regards master contract with price agreements, the three month period shall commence upon the execution of the master contract.
3. Except where otherwise agreed the Customer shall remit the payment price within 30 days after issue of the invoice. Upon expiry of the payment term the Customer shall be deemed in default of payment according to § 286 para 2 no. 2 BGB (German Civil Code). Discounts require a separate written agreement.
4. The Purchaser may only set off payments against counterclaims, which are undisputed or have been stated legally binding. The Customer shall only be entitled to retention rights if these are based on the same legal transaction.

IV. Delivery Term

1. The commencement of and compliance with the performance period quoted by us is subject to the clarification of all technical issues as well as the proper fulfilment of the Purchaser‘ s obligations in due time.
2. If an agreed performance deadline is exceeded by us for reasons in our responsibility, the Purchaser shall set an adequate grace period in writing. This grace period shall be two weeks at least. If performance is not completed within this grace period, and if the Purchaser intends to withdraw from the contract or claim damages instead of performance for this reason, the Purchaser shall be obliged to notify us of this in writing, explicitly requesting us to perform in connection with another adequate grace period. Upon our request, the Purchaser shall be obliged to state whether the Purchaser will withdraw from the contract due to the delayed performance and/or claim damages instead of Performance or whether the Purchaser insists on the performance within a reasonable period.
3. Should performance be delayed due to reasons not in our responsibility, since we have not received supplies at all, in due time or adequately despite a reasonable stock being maintained, our terms shall be extended appropriately. If we have properly informed the Purchaser on the performance impediment, and if such impediment is not only temporarily, we shall be entitled to withdraw from the contract as a whole or in parts as regards the part of the contract not yet fulfilled.
4. Should the erection, installation or commissioning be delayed due to other reasons not in our responsibility, the Purchaser shall bear the reasonable cost resulting from waiting times and additionally required trips of our installation staff.

V. Shipment and Transfer of Risk

1. Should we be in default, the Purchaser may claim a lumpsum damage caused by delay in an amount of 0.2 % per full week of delay, up to a total of 5.0 % of the invoice amount. In this regard, the Purchaser does not have to prove that the Purchaser has suffered any damage due to the delay in delivery. We shall be entitled to prove that the Purchaser has not suffered any or only lower damage due to the delay than the amount charged. The assertion of damage caused by delay exceeding the said lumpsum amount shall be excluded. This shall not be applicable in case of wilful intent or gross negligence on our part.
2. We supply our goods and services „ex works“ (EXW Incoterms 2010). The risk of destruction, loss or damage to the goods shall pass to the Purchaser when the goods are loaded in our warehouse, or, if the goods cannot or are not to be dispatched, when the notice indicating the readiness for delivery is dispatched. This shall also apply if partial supplies are made or if we have accepted other services such as transport or delivery and erection.
3. Should we perform the dispatch, we shall reserve the right to select the route and method of dispatch. If customary, we deliver the goods packaged. We shall provide packaging, protection and/or transport means in accordance with our experience at the Purchaser‘s account. Packaging, protection and transport auxiliaries are only taken back in compliance with statutory requirements unless otherwise agreed upon in writing. Additional cost incurred by the Purchaser‘s Special requests shall be borne by the Purchaser. The same shall apply to increases in freight rates, extra cost for deviations, storage costs, etc. occurring after contract execution, unless carriage free delivery has been agreed upon.
4. Partial services and appropriate accounting for them are permissible unless they are unreasonable for the Purchaser.
5. As regards call orders, the goods shall be accepted in approximately equal monthly quantities. The total order quantity shall be deemed called one month upon expiry of the term agreed for the calls, in the absence of such Agreement twelve months upon contract execution. If the Purchaser does not provide an allotment of the ordered goods within one month upon expiry of the term agreed for such allotment, in the absence of such agreement within one month upon our request to do so at the latest, we may allot and deliver the goods in our discretion and at the Purchaser‘s account.
6. Customary increases and decreases in consignments of quantities are permissible.

VI. Force Majeure

If force majeure events occur, our supply obligations shall be suspended; should a significant change to the circumstances existing upon contract execution occur, we shall be entitle to withdraw from the contract. The same shall apply in relation to shortages of energy or raw materials, strikes, governmental decrees, disruption of infrastructure and operations. Should subcontractors fail to supply us at all, in due time or adequately, Section IV para. 3 shall apply.

VII. Purchaser‘s Rights in the Case of Defects

1. We shall only guarantee the conformity of the products and services delivered and performed by us with the applicable German regulations and standards. The Purchaser shall undertake to verify the products‘ conformity with the relevant legal regulations and standards for their use abroad and adapt them if required.
2. The Purchaser may not assert any claims against us for defects in our supplies and services if the value or the suitability of the said supplies and services is only insignificantly reduced.
3. To the extent supplies and services are defective and the Purchaser has met the inspection and complaint obligations pursuant to § 377 HGB [German Commercial Code], we shall replace or rework the products/services at our discretion (supplementary performance. In this regard, the Purchase has to grant us the opportunity and an appropriate period of at least 30 working days.
4. The place of performance for supplementary performance is the original delivery destination. The Purchaser may request compensation of the expenses incurred for the purpose of supplementary performance, to the extent such expenses do not increase because the delivery item has subsequently been transferred to another location, unless such transfer corresponds to its intended purpose of use.
5. Should supplementary performance fail, the Purchaser may reduce payment or withdraw from the contract. A withdrawal, however, is only permissible if the Purchaser previously threatens to withdraw in writing and sets an adequate grace period.
6. Claims to recourse on part of the Purchaser pursuant to § 478 BGB shall only exist against us to the extent the Purchaser has not made any agreements exceeding the statutory claims for defects with the Purchaser‘s customers.

VIII. Liability for Compensation

1. If not specified otherwise below, any claims by the Purchaser exceeding the provisions in Section VII shall be excluded - regardless of the legal grounds. We shall therefore not be liable for damage not occurred to the goods themselves; we shall in particular not be held liable for lost profits or other financial losses suffered by the Purchaser. To the extent contractual liability is excluded or limited, this shall also apply to the personal liability of employees, representatives and agents.
2. The limitation of liability above shall not apply if the cause of the damage is due to wilful intent or gross negligence, personal injury was caused, a claim for damages pursuant to the product liability act exists, or if we have assumed a guarantee.
3. Unless we negligently violate a major contractual obligation, liability for damages is limited to the typically caused damage; major contractual obligations are those whose fulfilment characterize the contract and on which the Purchaser may rely.
4. Apart from this, our liability for compensation is excluded.
5. In case of a loss of data, we shall only be liable to the extent which would also have occurred in case of proper data backup (daily backup) by the Purchaser.
6. Any assignment of the Purchaser‘s claims as set out in Sections VII and VIII above is impermissible. § 354 a HGB shall remain unaffected.

IX. Limitation

The period of limitation for the claims stipulated in Sections VII and VIII shall be one year. This shall not apply in cases of Section VIII para. 2 (liability in case of wilful intent, gross negligence, personal injury and according to the product liability act) and if longer periods are mandatory pursuant to § 438 para. 1 no. 2 BGB (buildings and things used for buildings), § 479 para. 1 BGB (recourse claim) and § 634a para. 1 no. 2 BGB (construction defects), or in other cases.

X. Collateral Security

Should we become aware after contract execution that the Purchaser is in an unfavourable financial situation, we may request a security customary in the trade by setting a reasonable deadline before we are obliged to supply. Should such security not be provided to us within the set deadline, we shall be entitled to withdraw from the contract. 

XI. Retention of Title

1. Sold goods shall remain our property until the satisfaction of all claims resulting from the business relationship („reserved goods“).
2. Should reserved goods be processed by the Purchaser, our retention of title shall extend to the entire new item. In case of processing, connection or combination with third party goods by the Purchaser, we shall acquire joint ownership in the proportion of the invoiced value of our goods to the other goods used by the Purchaser at the time of processing, connection or combination.
3. If reserved goods are connected or combined with a principal item of the Purchaser or third parties, the Purchaser shall transfer the Purchaser‘s rights to the new item now. Should the Purchaser connect or combine the reserved goods with a third-party principal item against consideration, the Purchaser shall assign to us the Purchaser‘s remuneration claims against the third party now.
4. The Purchaser shall be entitled to sell reserved goods in the ordinary course of business. Should the Purchaser sell such goods without receiving the full purchase price in advance or step by step against handover of the sold item, the Purchaser shall agree upon a retention of title in accordance with the present terms and conditions with the customer. The Purchaser shall assign the Purchaser‘s claims from this sale as well as the rights from the agreed retention of title now. The Purchaser shall be obliged to inform the Purchaser‘s customer of the assignment upon our request and to provide us with the information and documents required for the assertion of our rights against the Purchaser‘s customer. The Purchaser shall only be entitled to recover receivables from the sale despite the assignment as long as the Purchaser properly fulfils the Purchaser‘s obligations towards us.
5. Should the value of securities provided to us exceed our claims by over 10 percent, we shall be obliged to release securities at our discretion upon the Purchaser‘s request.

XII. Software

1. Subject to deviating agreements, we shall grant the Purchaser a non-exclusive right of use without any time limitation to the contractual software for individual and multiple workplace use, however only for the country of destination where the contractual items shall be used as agreed upon between the parties. Without any explicit agreement, the right of use shall only be granted for the country of the Purchaser‘s place of business. This right of use may only be exercised concurrently by a maximum number of natural persons for which the Purchaser has paid the purchase price.
2. The Purchaser may only use the software for the purpose of handling the Purchaser‘s internal transactions and the transactions of the companies associated to the Purchaser in accordance with § 15 AktG („group companies“). In particular, the operation of a data centre for third parties or the temporary provision of the software (e.g. as application service providing) for non-group companies is only permissible upon our prior written approval. Commercial subletting is generally prohibited.
3. Software reproductions are only permissible to the extent necessary for the contractual use. The purchaser may make the necessary number of backup copies of the software in accordance with the codes of practice. Backup copies on mobile data media shall be identified as such and be marked with the copyright note of the original data medium.
4. The Purchaser shall only be allowed to modify, extend or otherwise manipulate the software in terms of § 69 c no. 2 UrhG [copyright law] to the extent inevitably permitted by law. Before eliminating or having eliminated errors by third parties, the Purchaser shall allow us two attempts to remedy the relevant error. The Purchaser shall not be entitled to own rights of use and exploitation - exceeding the conceded rights of use - as regard such processing.
5. The Purchaser shall only be allowed to decompile the software within the limits of § 69 e UrhG, and not before we have provided the required data and/or information upon written request setting an appropriate deadline in order to ensure the interoperability with other hardware and software.
6. Should we grant the Purchaser access to amendments (e.g. patches, amendments of the operation manual) or a new edition of the subject matter of contract (e.g. update, upgrade) superseding previously provided subject matters of contract („outdated software“) in the course of subsequent improvement or maintenance, these shall be subject to the terms and conditions of this agreement. Should be provide a new edition of the subject matter of contract, the Purchaser‘s authorizations with regard to the outdated software in accordance with this contract shall expire even without our explicit return request, as soon as the Purchaser uses the new software productively.
7. The concession of rights of use is conditional upon the full payment of the agreed purchase price. In case of attachment, seizure or other disposals or interventions by third parties, the Purchaser shall notify us immediately.

XIII. Special Terms for Works

1. Subcontractors
In case of orders for works, we shall be entitled to employ subcontractors.

2. Purchaser‘s duty of cooperation in erection and installation
If erection or installation has been contracted, the Purchaser is obliged to cooperate as follows:
The Purchaser shall perform all required earthworks, construction work and other work outside our industry in due time before commencement of work. In addition, the Purchaser shall provide the required expert and auxiliary staff, as well as construction material and tools, the equipment and materials required for installation and commissioning, e.g. scaffoldings, hoists and other devices, fuels and lubricants, as well as energy and water at the location of use, including connections, heating and lighting in due time. Apart from this, the Purchaser shall take care of the storage of materials such as machinery components, devices and tools as required for erection and installation at the Installation site. The Purchaser shall be obliged to provide sufficiently sized suitable, dry and lockable working and social rooms appropriate for the installation staff. Protective clothing and safeguards required due to particular circumstances at the installation site shall be provided. Before commencement of the installation work, the Purchaser shall provide the necessary data on the location of covered electricity and gas lines as well as water pipes and similar facilities, as well as the required structural data without request. Should the erection, installation or acceptance be delayed due to reasons not in our responsibility, the Purchaser shall bear the reasonable cost resulting from waiting times and additionally required trips of our installation staff.

3. Special Manufacture
As regards unacceptable special manufacture on the Purchaser‘s behalf, the Purchaser shall only be entitled to terminate the contact for good cause, since the planning, completion and storage or specially manufactured products is connected with great effort and high expenses. In case of the non-acceptance of products manufactured in accordance with customer specifications, we shall be entitled to dispose of such products at the Purchaser‘s account upon unsuccessful request setting an appropriate deadline.

4. Acceptance
The following shall apply if services are ordered under a service contract, in particular installation services:
1. Should be request service acceptance upon completion - maybe even before expiry of the agreed completion period - the Purchaser shall perform the acceptance test within 12 working days; another term may be agreed upon. Upon request, self-contained parts of any service may be accepted separately. Acceptance may only be refused due to significant defects until their remedy.
2. If no acceptance is requested, the service shall be deemed accepted upon the expiry of 30 working days after the written notification of service completion. If no acceptance is requested, and if the Purchaser has started to use the supplies or parts of the supplies, the supplies shall be deemed accepted upon expiry of 6 working days after commencement of their use unless otherwise agreed upon. The use of parts of a structural plant to continue work shall not be deemed an acceptance.
3. Reservations for known defects or penalties shall be made by the Purchaser at the dates designated in paragraphs 1 and 2 at the latest.
4. The risk of loss and destruction shall pass to the Purchaser upon acceptance unless it has already passed pursuant to Section V para 1 above.

XIV. Applicable Law, Jurisdiction, Place of Performance

1. The legal relationships between the Purchaser and the Supplier shall exclusively be subject to the laws of the Federal Republic of Germany with exclusion of the „United Nations Convention on Contracts for the International Sale of Goods“ of 11 April 1980 [CISG].
2. In the absence of other agreements, the Supplier‘s place of business shall be the place of performance.
3. The exclusive place of jurisdiction for all disputes resulting from or in connection with this contract, including disputes regarding its validity, shall be the Supplier‘s place of jurisdiction. The Supplier shall also be entitled, however, to sue the Purchaser at the Purchaser‘s place of business.

XV. Final Provisions

Should a provision of the present General Terms and Conditions of Sale and Supply be or become invalid, the remaining provisions shall remain unaffected by this. The parties agree to replace the invalid provision by an agreement, which shall meet the economic and legal purpose of the invalid provision as closely as possible. The same shall apply to unintended gaps in provisions.