Terms and Conditions
General Terms and Conditions (GTC) Rolko North America, Inc. (in the following called ROLKO or “we”, “our”)
a) These General Terms and Conditions (GTC) shall apply exclusively for all existing, pending and future businesses between the parties. Divergent, conflicting or complementary General Terms and Conditions of the customer and/or provisions not complying to binding laws - even if we are aware of them - have no validity under the terms of this contract, unless we expressly agree to them in writing during signing of the contract.
b) The latest edition of the ROLKO General Terms and Conditions at signing of the contract shall apply. With a new version of our GTC older versions automatically lose their validity. In case of amendments/additions to our GTC, we will forward the new conditions to our customer. If the customer does not object the new terms and conditions within 2 weeks after receipt, they become binding for all existing contracts. We explicitly inform the customer about the legal consequence of the changes to our GTC.
2. Offers and Orders
a) Our offers are subject to change and are limited with expiration date. This also applies for any offer submitted by our outside sales organization and/or by our distributors. An order received from a customer is understood as an offer to enter into a contract. This contact will only become binding with our order confirmation carried out within a reasonable time frame thereafter and – in exception – by execution of the order and shipment of the goods.
b) Any changes, supplements or verbal additions to our offer and the contracts have to be confirmed in writing to become legally binding.
c) All illustrations, drawings, dimensions, weights, shades of color and other performance data published in our catalogues, price lists or other media, are only approximate, non-binding and subject to change, unless they have been explicitly specified by us as binding. Within reason for the customer we reserve the right to make modifications to the product, if technically necessary and/or for proper function required, as long as the modifications do not impair function nor value of the product. Within reasonable limits for the customer and within the scope of the commercial standards we are also entitled to ship products with unavoidable marginal deviations in quality, color, size and weight. We will notify our customer on time about any of those occurrences. Short- and over delivery of the ordered quantity, as long as within generally accepted commercial limits, do not entitle the customer to demand remuneration.
d) The customer will hold full responsibility for the correctness and content of all documents (specs, sketches, drawings, data sets, etc.) we receive from him in regard to the product. We are not obliged to perform a thorough special review of those documents.
a) Unless otherwise agreed, prices are in USD. Prices do not include packaging, freight, insurance, customs- and/or any other public fees. Type of packaging is generally based on the means of transportation, unless otherwise agreed per contract.
b) In case of a substantial change of the cost factors relating to the product and to the order (e.g. increase of wages, raw materials, energy costs, exchange rates, etc.), we reserve the right to make price adjustments to the extent of the impact of these cost factors. We will notify the customer ahead of time about the necessary adjustments and – upon request – disclose the appropriate documents substantiating cost increase and impact to the initially agreed compensation.
4. Delivery, Passing of Risk
a) Without other instructions from the customer, we will choose mode of transport and route at our own discretion and by considering the best interest of our customer. We are not liable, if selected means of transportation is not the most cost-efficient and/or not the fastest.
b) By handing the goods over to our forwarder or shipping agent, but latest when they leave our factory/storage, the risk for the goods is passed to the customer.
c) Within reason for the customer we are entitled to make partial shipments and/or provide a partial service at any time.
5. Delivery Time
a) Unless date of completion and delivery date of the goods are explicitly stated as firm, any information given in this context is only approximate and non-binding. A mutually agreed firm and binding delivery period begins earliest with our confirmation of the order.
b) The delivery time shall be deemed met, when the goods have left our factory/inventory latest at the confirmed ship date, or when we have notified our customer that the goods are ready for dispatch. In case of a delay of the shipment, the customer has to grant us a reasonable grace period.
c) The delivery period shall extend within reason, if by occurrence of unforeseeable circumstances, which we – referring to this particular case – cannot avert despite reasonable diligence (i. e., destruction of the operation, delay in the arrival of key raw materials and key components, caused by forced majeure, like war, terror attack, riot, strike, lockout), or if a delivery on time is obstructed by domestic-, EU-, or international regulations of the trade law. This also applies likewise for the same circumstances effecting our sub-suppliers. Should a delivery be impossible due to one or several of the circumstances mentioned above, we are released from our delivery obligation. If – without our fault - the delivery time prolongs in the before mentioned cases, or if we are released from our delivery obligation, all claims for pecuniary loss of our customers as a result of this situation are void. We grant the customer the same legal consequences in regard to his purchase commitment, if aforementioned circumstances occur at him.
6. Terms of Payment
a) By default, all prices are in USD. If by mutual agreement a different currency is used, any negative influence on the exchange rate after order confirmation will be passed on to the customer. Unless otherwise agreed, invoices are payable
- within 10 days after date of invoice @ 2% cash discount or
- within 30 days net, without deduction, in the agreed currency and with reference to our invoice number. A payment transaction is only deemed as complete after we have unrestricted access to the full invoice amounts paid.
b) We accept drafts and checks only by express agreement and only after fulfillment. Any payment transaction by draft or check is only deemed as fulfilled payment after we have the equivalent value, including monetary reimbursement of all fees and expenses in our account. We are not obliged to a timely submission of drafts and checks and not obligated to file for protests.
c) In case of a payment term default of the customer, we are entitled to charge interest of 8 % p. a. above the published bank rate. Beyond, we reserve the right for further claims. To new customers without any prior business history we may only ship against “cash on delivery” or prepayment of the full invoice amount.
d) At acceptance of the order, we assume a good credit rating of our customer. In case we get knowledge that the credit rating of a customer has been substantially down rated to a point where we can see our claim for compensation jeopardized, we are entitled to demand adequate security or pre-payment, giving to customer a reasonable grace period. If the customer does not follow this request, nor in a timely manner, we are entitled to withdraw from the contract and to demand compensation. All this does not relieve the customer from his obligations on the part of the contract already fulfilled by us.
e) The customer is only permitted to offset compensation of our claim with any of his claims, if the counterclaims have been legally established, if they are not disputed by us, or if the claims are the result of a non-compliance of a principal obligation (e. g., obligation to deliver a product without defects). 7. Warranty a) A particular quality feature of the goods delivered by us must be explicitly agreed upon in advance. For evidentiary purpose this agreement mmust be in writing, or has to be confirmed by both parties in writing. Any verbal statement, recommendation or advertisement does not constitute an agreement by nature. We fundamentally do not give the customer any guaranties within the meaning of the law, unless those guaranties have been explicitly confirmed and agreed to in writing.
a) A particular quality feature of the goods delivered by us must be explicitly agreed upon in advance. For evidentiary purpose this agreement must be in writing, or has to be confirmed by both parties in writing. Any verbal statement, recommendation or advertisement does not constitute an agreement by nature. We fundamentally do not give the customer any guaranties within the meaning of the law, unless those guaranties have been explicitly confirmed and agreed to in writing.
b) We do not recognize any defects and damages as a result of improper installation and incorrect operation by the customer, nor any defects/damages as a result of excessive stress, a false and unapproved application or due to improper use or operation. The customer has to read carefully and to observe the user´s manual or any other user instructions if such is included with the product.
c) The customer is obligated to immediately inspect incoming goods, within reasonable commercially acceptable limits, for existing defects/damages. Claims for obvious defects/damages have to be submitted to us in writing within 1 week after receipt of the goods. Hidden defects have to be reported to us in writing within 1 week after discovery. If the customer does not report the deficiency to us within above specified time limits, the product is considered to be delivered according to the contract. Warranty claims of the customer in regard to this deficiency will no longer exist. The customer bears the burden of prove for the deficiency itself, date of the inspection, discovery of the deficiency, as well as for a timely submittal of the claim.
d) Unless otherwise agreed per contract, the warranty period is 1 year after delivery of the goods. This does not apply, if the specifics of the delivered product by law demand a longer warranty period.
e) In case of a defect/damage under the terms of the clauses above, we grant warranty per our choice, either by elimination/correction of the defect/damage, or by replacing the product. The customer is obligated to provide us with the defect/damaged goods for inspection and remedy action. In case of a replacement of the product, the customer has to provide us with the defect/damaged item. Provided, that our choice of remedy fails, is not completed within a reasonable time-frame specified from the customer, or remedy is rejected by us, the customer has the choice of either withdrawal, reduction of the purchase price, or to claim for compensation within the limits and guide lines of § 8). If the customer chooses withdrawal of the contract after a failed remedy, we will take the product in a step by step action back against a refund of the agreed purchase price. In addition, further claims of the customer for compensation due to the defect/damage of the product are limited to §8) of this GTC. If the customer chooses a price discount, the goods will remain with him. The reduction of the price is limited to the difference between original price and the remaining value of the defect/damaged product.
a) We are not liable for minor infringements of unessential contract obligations. We are only liable by intentional or gross negligent breach of our contractual obligations and we are liable for culpable violation of essential contractual points (e. g., duty to provide a product w/o defect). In all other cases, any liability is excluded.
b) If we are we are liable hereunder, the liability for minor and for gross negligent actions is limited to the typical and foreseeable damage, at the point in time when the contract is concluded.
c) Aforementioned limited liability does not apply for loss of life and injuries to body and health, attributed to us. Furthermore, not for claims under the product liability law and not for claims caused by intentional concealment of a defect and for those cases where we have given a guarantee for certain features of the product.
9. Liability in case of changes to the product
a) Any modification to the product by the customer or executed by a contracted third party is not permitted, unless the modification meets all applicable safety standards and the customer explicitly has obtained in advance our written consent. For this purpose the customer has to provide us upon demand with a meaningful and comprehensive documentation, including all applicable drawings.
b) In case modifications to the product are made without our explicit written consent, or the product is used in an application not approved by us, and a third party is damaged or injured as a result, the customer is obligated to release us immediately and without prompting from all claims of the third party. 10. Retention of title a) We retain the title to the delivered goods until full payment of all claims due to us from the business relationship with the customer. Until we have received full payment, the customer is not entitled to pledge the goods to third parties or use them as a security deposit.
10. Retention of title
a) We retain the title to the delivered goods until full payment of all claims due to us from the business relationship with the customer. Until we have received full payment, the customer is not entitled to pledge the goods to third parties or use them as a security deposit.
b) The customer is entitled to sell the goods, regardless of the condition, in the ordinary course of business, as long as he fully complies and meets the obligations arising from his business relationship with us. By entering into this contract, the customer shall relinquish all claims and supplement rights of his customers or third parties, resulting from the sale or further processing of the goods as security to us. We accept this waiver. If the customer includes a claim from a resale of our goods in a current account relationship with a third party, the current account claims are considered to be transferred over to us at the full amount. After current account balance, the acknowledged balance amount will replace it, which is considered as transferred up to that amount of the original current account claim. Our title retention and the security transfer applies as security for the entire balance of the claim until the full invoice has been paid. The customer is obligated to provide us upon request with the names of all debtors arising from the sale of the reserved goods, including amount and due date of the individual claim.
c) By unbalanced invoices our retention of title and the security transfer applies for the total balance. The customer is authorized to collect claims from the resale himself. But we reserve the right to revoke this concession at any time.
d) If the goods reserved to us are sold together with other goods not our property, a portion of the claims is transferred to us, which corresponds to the share of the value of the goods delivered by us. If the goods delivered by us are further processed or reshaped from the customer, this transformation is carried out on our behalf and we retain the title (§ 950 BGB; Civil Code of the Federal Republic of Germany). If the goods delivered by us are transformed by the customer together with other goods not our property, into a new product, we retain a share of the title of the new product, equivalent of the value of the delivered good (invoice amount, incl. VAT). Any potential added value as result of the transformation has to be considered in the proportion of the purchase price of the individual components. For the resale auf such transformed goods, for which the customer is authorized under the ordinary course of business, clauses below apply:
e) The customer is obligated to notify us immediately about any pending foreclosure actions on the reserved goods of third parties. In addition he is obligated to immediately disclose to and provide us with the necessary documentation so we can take appropriate defensive measures.
f) We commit ourselves to release the share of the security value entitled to us, which exceeds the value of our claims by more than 20%.
11. Court jurisdiction, applicable law
a) For all direct and indirect disputes arising from the contractual relationship, exclusive place of jurisdiction is: Civil Court of 33790 Halle/Westphalia, Germany
b) For the entire contractual relationship the laws of the Federal Republic of Germany apply, under exclusion of the UN law.
12. Final provisions In case one or more clauses of these terms and conditions do not apply or are invalid, the validity of the contract itself and the remaining individual clauses shall not be affected and are still valid. We and our customer commit ourselves in such a case to adapt the ineffective clause by considering economical fairness for both parties in such a way, which comes closest to the invalid original clause.
January 23, 2014