§ 1 Scope
(1) The following General Terms and Conditions of Purchasing apply for all Orders/Purchase Orders of ROTHENBERGER Werkzeuge GmbH (hereinafter referred to as ROTHENBERGER). Supplier's contradictory or deviating terms shall not be recognised unless ROTHENBERGER expressly agrees to their applicability. Vis-a-vis commercial business partners, the following Terms and Conditions shall also apply to all follow-up business, without requiring their repeat presentation.
§ 2 Offer and Conclusion of the Contract
(1) Unless otherwise expressly agreed, the Supplier is bound by quotes vis-a-vis ROTHENBERGER. This also includes samples, drawings, depictions, descriptions, including performance data, dimensions, weights, etc. submitted.
(2) Orders from ROTHENBERGER, as well as their amendment or augmentation, shall only be legally binding when they have ensued in written form. A contract with ROTHENBERGER shall only come into existence with receipt of written order confirmation. Confirmation by the Supplier must ensue immediately, at the latest, however, to be received by ROTHENBERGER within 4 calendar days of receipt of the order. Order confirmation which is received late, or which deviates from the order, shall be invalid.
(3) If the Supplier fails to confirm orders from ROTHENBERGER in writing within five calendar days of receipt by ROTHENBERGER, ROTHENBERGER shall no longer be bound by the order.
(4) Quotes, tenders and samples of the Supplier shall remain free of charge for ROTHENBERGER.
§ 3 Prices, Passing of Risk, Shipping
(1) The agreed prices are fixed prices without VAT., DDP Incoterms 2010, incl. packaging, insurance,assembly and customs duty. In the case of machinery and plant, the price shall also include the due set-up and commissioning as well as the instructing of our staff. The agreement on place of performance and place of effect shall not be affected by the price setting.
(2) The passing of risk shall ensue with delivery to the place of use.
§ 4 Delivery, Delivery Dates, Delayed Delivery
(1) All deliveries shall ensue DDP Incoterms 2010. The Supplier must inform ROTHENBERGER immediately of all circumstances leading to a delay in the date of delivery.
(2) In the case of a delay in delivery of more than three working days, ROTHENBERGER shall be entitled to charge a penalty amounting to 1%, maximum 5% of the value of the goods ordered for each week or part thereof. The penalty can be claimed regardless of any compensation claims arising from the delay and will, however, be deducted from any compensation claim.
(3) Following fruitless expiry of an appropriate period of grace, ROTHENBERGER shall be entitled to withdraw from the contract and demand compensation in accordance with the statutory stipulations.
(4) Deliveries by truck can only be accepted Monday to Friday between 07.15 h and 12.00 h and between 12.30 h and 17.00 h. On the shipping day, the Supplier must submit two copies of thedelivery note (see item 4 (2) of these General Terms and Conditions of Purchasing) to ROTHENBERGER.
(5) In the case of deliveries involving hazardous goods, the Supplier shall be obliged to comply with the German Hazardous Goods Regulation as well as all other national and European regulations andlaws.
§ 5 Incoming Goods, Examination of Goods, Notification of Defects
(1) The ROTHENBERGER Delivery Guidelines which can be viewed in the service area of the ROTHENBERGER Homepage under www.rothenberger.com/service/anlieferrichtlinien/, in German and English, are to be observed as a mandatory stipulation. All specified packaging/identification marking stipulations are binding and, in the event of non-observance, entitle ROTHENBERGER to refuse acceptance. On request, the Supplier is obliged to dispose of the packaging, free of charge. Every product, as well as its outer packaging and transport packaging must carry the barcode designation (ESupplier), otherwise ROTHENBERGER shall be entitled to refuse to accept the shipment.
(2) Delivery notes must contain our order number, order item, article number, designation of the goods and the customs tariff number. If these details are missing, ROTHENBERGER shall be entitled to return the goods to the supplier, freight forward. If necessary, the delivery note must contain the information required by the German Chemicals Prohibition Ordinance (Chemikalienverbots-VO) in the version that is valid on the date of shipment.
(3) ROTHENBERGER's obligation to examine the goods on receipt shall not apply when the parties have agreed an individual inspection plan for the quality of the goods immediately prior to or at the point of shipping. The Supplier is obliged, at the request of ROTHENBERGER, to conclude a Quality Assurance Agreement (QAA) with ROTHENBERGER.
(4) ROTHENBERGER is entitled to assert timely notice of defects within a period of up to 21 days from receipt of the goods or, in the case of concealed faults, from discovery of the fault.
§ 6 Quality
(1) All products supplied by the Supplier must comply with the statutory or official safety regulations, or those contractually agreed, as well as those applying at the place of use.
(2) Furthermore, the products delivered or services supplied by the Supplier must comply with the quality standards and technical specifications agreed with ROTHENBERGER, including all addendums and cross-references contained therein. The required documentation is an essential component of the shipment and must comply with the statutory stipulations and those applying for the trade/branch.
(3)The Supplier guarantees the conformity of the delivered products with the RoHS Directive and conformity of their marking with the German Electrical and Electronic Equipment Act (ElektroG). The Supplier shall indemnify ROTHENBERGER from every type of demand and claim of third parties due to the non-observance of the ElektroG. On request, the Supplier is obliged to submit a separate binding declaration of RoHS-conformity to ROTHENBERGER. A deviating agreement within the meaning of Section 10, Sub-section 2, Item 3 ElektroG is precluded.
(4) Even with regard to products not falling directly into the area of applicability of the RoHS Directive/the EkektroG, the Supplier undertakes to supply ROTHENBERGER, if required, with a declaration in accordance with Sub-section 3, Item 3.
(5) To the extent that the delivered products are governed by the REACH regulation, the Supplier agrees to register in accordance with the specifications of the regulation, and/or meet the other obligations. Even now, he indemnifies ROTHENBERGER from demands and claims of third parties resulting from non-observance of the stipulations of the regulation. Furthermore, the Supplier guarantees that none of his products contain hazardous substances pursuant to the currently-valid ECHA list of candidates (SVHC substances).
§ 7 Supply of Spare Parts
The Supplier guarentees to supply spare parts for the products purchased by ROTHENBERGER for the period of 10 years from the last delivery.
§ 8 Warranty, Compensation and Product Liability
(1) With regard to the owed quality of the goods to be delivered, it is agreed that all delivered items and all services rendered shall be in compliance with the latest state of the art, the relevant statutory stipulations and the regulations and guidelines of government agencies, German social insurance agencies for occupational accidents (Berufsgenossenschaften) and professional associations, as well as the latest version of the standards. Deviation from this agreement constitutes a fault. If the Supplier delivers a different item, or the quantity is too low, this shall be considered a fault.
(2) If the delivered goods are faulty, ROTHENBERGER is entitled, at its own discretion, to demand supplementary performance, a price reduction or compensation or to withdraw from the contract in accordance with the statutory stipulations. ROTHENBERGER can demand the refund of substitute performance costs for the repair of faulty goods from the Supplier, provided they do not exceed 30%of the value of the ordered goods and immediate supplementary performance is not offered by the Supplier within 3 days of notification of the fault. If the supplementary performance does not then ensue immediately, or is unsuccessful, ROTHENBERGER can charge the Supplier for all necessary and appropriate substitute performance costs. Place of performance shall be the intended location of the goods, in the case of purchase of trading goods, however, as specified by ROTHENBERGER,either at the location of the end customer or in the plant in Kelkheim.
(3) The Supplier agrees to maintain product liability insurance with coverage of at least EUR 10 millionper event of personal injury/property damage on a lump-sum basis; if ROTHENBERGER has further compensation entitlements, these shall remain unaffected.
§ 9 Payment, Invoicing
(1) A single copy of the invoices is to be sent immediately to the billing address specified in the respective order form, at the latest, however, within 10 days of delivery or complete performance according to the contract, quoting all order data.
(2) Unless otherwise agreed in writing, invoices shall be payable within 20 days less 3% cash discount or within 30 days net.
(4) Unless otherwise noted, payments will be made in every case subject to an audit of the accounts. Under no circumstances will payments constitute the acknowledgement of proper delivery or performance or a waiver of notice of defects pursuant to §377 HBG (German Commercial Code).
(5) An assignment of the Supplier's claims against ROTHENBERGER is precluded.
(6) ROTHENBERGER reserves set-off and retention rights as provided for by law.
§ 10 Industrial Property Rights
(1) The Supplier issues an assurance that no third party rights are infringed with hisdelivery/performance. If, however, third party rights are infringed, the Supplier shall be obligated to indemnify ROTHENBERGER from all liability. This indemnification obligation shall also extend to allexpenses deemed necessary by ROTHENBERGER, accruing to ROTHENBERGER in connection with the asserting of claims against ROTHENBERGER by third parties.
§ 11 Ownership, Copyright, Confidentiality
(1) All documents, material, items, etc. provided by ROTHENBERGER for the execution of the order, and which must be duly insured by the Supplier, shall remain the property of ROTHENBERGER; they may only be made accessible to third parties with the prior written consent of ROTHENBERGER and are to be returned immediately to ROTHENBERGER on request, precluding all retention rights. They must be returned to ROTHENBERGER, unbidden, at the time of delivery at the latest.
(2) The Supplier undertakes to maintain strictest confidentiality regarding all information, including know-how, of which he becomes aware in the context of the cooperation with ROTHENBERGER. In the event of an infringement of the obligation to maintain confidentiality by the Supplier, ROTHENBERGER shall be entitled to charge a penalty of EUR 50,000 for each individual case of infringement.
(3) If ROTHENBERGER's property is processed to a new moveable item, ROTHENBERGER shall acquire co-ownership of the new moveable item. The co-ownership shall be based on the ratio of the value of the processing to the value of the goods provided.
§ 12 Data Protection
ROTHENBERGER is entitled to store the Supplier's business details in the ordinary course of commercial business. Further information on data protection can be found in the data protection notice onour website under http://www.rothenberger.com/de/.
§ 13 Certificate of Origin, EC Declaration of Conformity, Binding Supplier's Declaration
(1) The Supplier must furnish proof of the origin of the goods by means of a certificate of origin; if the supplier does not comply with this obligation, he shall be liable for any resulting loss or damage incurred by ROTHENBERGER.
(2) For recurring deliveries/purchase orders, the Supplier shall be obliged to submit a long-term declaration at the beginning of every year. The Supplier must submit the EC Declaration of Conformity, or a binding Supplier's Declaration, unbidden, for each article prior to the first delivery.
§ 14 Supplier Code of Conduct
We hereby refer to the valid ROTHENBERGER Supplier Code of Conduct (SCoC) which can be viewed under www.rothenberger.com/de/ which hereby becomes an inherent part of the contractual relationship. The Supplier undertakes to comply with the terms of the SCoC.
§ 15 Place of Performance, Court of Jurisdiction, Applicable Law
(1) German law under preclusion of the UN Convention for Contracts on the International Sale of Goods shall apply exclusively.
(2) Place of performance shall be the business address of ROTHENBERGER in Kelkheim.
(3) Court of jurisdiction for all disputes with us and in relation to deliveries to ROTHENBERGER and to these Terms and Conditions of Purchasing shall be Frankfurt am Main.
§ 16 Severability Clause
Should individual provisions of these Terms and Conditions of Purchasing be or become invalid or legally void, the remaining provisions shall not be affected. The parties undertake to replace the invalid provisions with an arrangement which comes as close as possible to their economic intent.