Terms and Conditions of Trade and Delivery
Robos GmbH & Co. KG
for business dealings B2B, with corporate bodies under public law and with special assets under public law (state as at month 06/2013)
§ 1 Basis of Contract
The contract between the parties is only concluded on the basis of these General Terms and Conditions of Trade and Delivery. Arrangements that deviate from these need an individual written agreement.
§ 2 Offers/Prices/Conclusion of Contract/Corrections/First Drafts/Samples/Tools
- All prices indicated are without obligation and non-committal. Effective is the price communicated on the day of shipment, plus the legal VAT of momentarily 19 %, if it is not shown separately, plus costs for shipping and handling where applicable.
- Offers made out individually stay valid for 30 days, other offers are non-binding.
- A contract only materialises by accepting a written offer of Robos company in due time or by their order confirmation in writing at the latest on the moment of delivery of the goods.
- As to pictures, drawings and descriptions in the brochures as well as other descriptions Robos company itself reserves the right to any divergences, customary in the trade that do not constrain the application as of the contractual use, without the customer getting the right to claim for any compensation. As to the contents of these brochures and descriptions as well as to the declarations of the Robos Company in context with this contract, there is no taking over of any guarantee or the delivery of any kind of assurance. In case of doubt only expressive written declarations of the Robos Company are authoritative as to the acceptance of a guarantee.
- In case of contracts with fixed-price commitment Robos has the right to refuse performance if the customer’s ability to meet financial obligations deteriorates considerably and the payment that must be effected, therefore, becomes jeopardized.
- Galley proofs and hard proofs are to be checked by the customer and declared ready for printing and give the go-ahead to the Robos Company in writing. The Robos Company takes n o responsibility for mistakes overlooked by the customer. Modifications must be made in writing. As far as the customer this way asks for modifications, alterations due to this concerning text, font, stand of the character font etc., the expenses caused can be charged to the customer in addition.
- The Robos Company has the right to invoice to the customer sketches, conceptual designs, test prints, samples and tools even if an order is modified after imprimatur or if it is not concluded continuing furthermore.
§ 3 Delivery Periods/Delay in Delivery/Impossibility/Dispatch/Excess- and Short Delivery/Risk Taking/Company Text
- Deliveries are made at cost of the customer.
- Dates of delivery/delivery periods are only binding when this was fixed in writing.
- The Robos Company is liable in case of deferment of accomplishment in cases of a deliberate act or wanton negligence of herself or of a representative or a vicarious agent according to the legal requirements. In cases of wanton negligence the liability of the Robos Company, however, is limited to the foreseeable harm, typical for the contract, if there is none of the exceptional cases as listed under phrase 5 of this regulation. Incidentally the liability of the Robos Company because of deferment of accomplishment for compensation besides the accomplishment is limited to 5 % and for compensation instead of the accomplishment to 10 % of the value of the delivery/accomplishment. Further claims of the customer are – also after expiration of a deadline that maybe had been given to the Robos Company for accomplishment/delivery – excluded. The preceding limitations do not apply in case of liability because of injury of life, body or health.
- The Robos Company is liable in case of impossibility of accomplishment in cases of a deliberate act or wanton negligence of herself or of a representative or a vicarious agent according to the legal requirements. In cases of wanton negligence the liability of the Robos Company, however, is limited to the foreseeable harm, typical for the contract, if there is none of the exceptional cases as listed under phrase 5 of this regulation. Incidentally the liability of the Robos Company because of deferment of accomplishment for compensation besides the accomplishment is limited to 5 % and for compensation instead of the accomplishment to 10 % of the value of the delivery/accomplishment. Further claims of the customer are – also after expiration of a deadline that maybe had been given to the Robos Company for accomplishment/delivery – excluded. The preceding limitations do not apply in case of liability because of injury of life, body or health.
- Delivery periods will extend adequately if there is an act of God or other obstacles that are not imputable the Robos Company. The Robos Company themselves do not assume the exercise risk. This entitles to withdraw from the contract as far as they do not receive the delivery item despite their having signed a respective purchase agreement. The Robos Company will inform the customer without delay if the delivery item will not be available in time and in case of the rescission refund the respective equivalent to the customer.
- The Robos Company has the right to effect partial shipments of individual objects of agreement with separate invoices.
- In principal the edition ordered is delivered. The customer, however, is bound to accept and take delivery of an excess or short delivery as to the edition ordered of up to 10%, in those cases the total price will increase and decrease respectively in the appropriate percentage. In case of difficult colour prints and purpose-built items, this percentage increases to 15%.
- As far as the consignment of the goods is agreed, that will be done at the customer’s risk, also with regard to an accidental perishing.
- During the transport the goods will be insured on request of the customer and for his account.
- The Robos Company reserves itself the right to attach its company text and/or its company logo onto all kinds of deliveries/packaging.
§ 4 Warranty and Liability
- The customer only has the right to claim for compensation in case the customer has duly complied with his obligations of examination and notice of non-conformity that he owes according to $ 377 HGB (German Commercial Code).
- As far as the subject of the contract/the accomplishment shows apparent defects in lawful sense, the Robos Company is obligated and has the right to supplementary performance, unless that can be rejected because of legal regulations. The customer must allow for an adequate period of time for the supplementary performance. The supplementary performance can be made by elimination of the defect (subsequent improvement) or by the supply of new goods according to the choice of the customer. In the case of elimination of the defect the Robos Company will bear the expenses required, as far as these do not increase because of the fact that the subject of the contract/the accomplishment is in a place other than the place of fulfilment.If the supplementary performance has failed, the customer can ask for reduction of the purchasing price (mitigation) or declare his withdrawal from the contract, according to his choice. The subsequent improvement is supposed to have failed after the second wasted attempt, unless further attempts of supplementary performance are appropriate and can be expected to be accepted by the customer because of the subject of the contract/the accomplishment.The customer only can claim for damages according to the following conditions because of the deficiency if the supplementary performance has failed. The right of the customer to the assertion of further claims according to the following conditions remains unaffected.
- The statutory limitation for claims and rights because of deficiencies – irrespective of legal basis – is 1 year after the supply of the subject of the contract/the accomplishment at the customer’s. This limitation is also valid for other claims for damages against the Robos Company independent of their legal basis, even then, as far as claims are not in a context with a deficiency, unless the deficiency was concealed fraudulently. The statutory limitation generally is not valid in the case of deliberate act and for claims for damages in the cases of because of injury of life, body or health or freedom, in case of claims according to the Product Liability Act, because of a grossly negligent breach of duty or in the case of the breach of essential contractual obligations.
- The Robos Company is liable in cases of a deliberate act or wanton negligence of herself or of a representative or a vicarious agent according to the legal requirements. For the rest against the Robos Company is only liable according to the Product Liability Act, because of the injury of life, the body or the health or in the case of the culpable breach of essential contractual obligations. The claim for damages because of the breach of essential contractual obligations, however, is limited to the typical, for the contract foreseeable harm. Also in cases of wanton negligence the liability of the Robos Company is limited to the typical, for the contract foreseeable harm, unless there is an exceptional case of those mentioned in phrase 2 of this paragraph.
- The liability for damages to legal interests of the customer caused by the article of sale, e. g. damages to other objects, however, is excluded. This does no apply if there is deliberate intention or wanton negligence or if there is a liability because of the injury of life, body or health.
- The regulations of the preceding paragraphs 4 and 5 are limited to compensation besides the accomplishment and to compensation instead of the accomplishment, irrespective of legal basis, especially because of deficiencies, the injury of duties out of the contractual obligations or because of tortious act. They also apply because of entitlement to refunding of futile expenditures. The liability for default, however, determines acc. to number 3. section 3, the liability for impossibility acc. to number 3. section 4.
§ 5 Terms of Payment
- Payments must be effected matching with delivery. Payment after invoicing only singly can be made if it is agreed upon in the contract. The agreement of advanced payment or a pay on account is bindingly possible for the Robos Company with order confirmation. The customer will default without further comments of the Robos Company within 10 days from maturity date, if he has not made a payment. On payment within 10 days after invoice date a cash discount of 2% is granted. In case of the existence of deficiencies the customer does not have the right of retention as far as this is not in a reasonable proportion to the deficiencies and the expenses of the supplementary performance expected (especially of a subsequent improvement).
- The refusal of drafts or cheques remains reserved. Their acceptance always is made on account of performance. The Robos Company is entitled to proof that much higher damages have incurred.
- In case of delay of payment the Robos Company has the right to charge interests in the amount of 9 % above the respective base rate of the German Federal Bank. The customer is entitled to proof that no damages or much lower damages have incurred to the contractor. This is done regardless of further rights and claims for damages. If the payment is not even effected within a period of grace accorded, the Robos Company has the following rights:
• Rescission of the contract and demand of return of potentially delivered and of goods not yet accepted respectively as well as the enforcement of handling charges in the amount of 15 % of the purchase price.
• Demand for prepayment or security furnishment for goods not yet accepted or still to be delivered and/or
• to rescind from of all (further) not yet completed contracts after fruitless grace period notification and claim for compensation for damages because of failure of performance as well as
• to assign an external debt collection institute or a lawyer’s office.
It is only the Robos Company who has the right to conduct payment instructions as to older liabilities of the customer. Maybe otherwise provided dispositions of the customer are ineffective.
§ 6 Title Retention/Transfer of Ownership/Copyrights/Property Rights of Third Parties/Tools
- The Robos Company reserves itself the proprietary rights of the goods until full payment of all outstanding bills resulting from the respective contractual relationship and of all further outstanding debits of the customer having existed at the moment of the conclusion of the contract.
- If the goods are pawned, seized or occupied otherwise by third ranks at the customer’s the customer must disclose the reservation of the proprietary rights without delay; in addition to that he must inform the Robos Company immediately about the fact of the laying claims to the goods.
- The customer may resell goods delivered under reserve within the scope of trade according to the rules under reservation of the proprietary rights. In order to furnish a security the customer assigns already by now future claims resulting from the resale of the goods delivered under reserve in the respective invoice amount until the entire payment of all claims of the Robos Company. The Robos Company hereby accepts this assignation.
- In case of a breach of duty of the customer, especially in case of default in payment, the Robos Company has the right to request the surrender of the goods delivered and/or rescind from the contract without setting a deadline; the customer is obliged to surrender the goods. A demand for the surrender of the delivered goods shall not constitute a withdrawal of the Robos Company unless this is expressly stated.
- Conceptual designs, clichés, work films and stamping tools become/stay the property of the Robos Company even when the customer has paid the costs for them proportionally. The Robos Company, nevertheless, commits itself to store tools for which the customer has fully paid the costs, as long as the customer places follow-up orders or the customer does not request the hand-over of the tools. This obligation expires without a claim for reimbursement of any type arising for he customer if the Robos Company does not receive further orders within 2 years after the last order.
- For the examination of the right of reproduction of all printing patterns (copyright) the customer only is responsible. As far as the Robos Company produces on the basis of drawings, models or samples of the customer, the customer only will accept responsibility towards the Robos Company for the fact that property rights of third parties are not infringed. If this happens nevertheless the customer must indemnify the Robos Company from any claims of these third parties as well as reimburse the costs/damages resulting from this comprehensively. In case of such laying claims the Robos Company also may directly stop the production and/or the delivery.
§ 7 Place of Fulfilment/Applicable Law
- Place of fulfilment for payments is the legal place of business of the Robos Company.
- The law of the Federal Republic of Germany shall apply.
§ 8 Miscellaneous
- Should any provision of the above terms and conditions not be valid, the validity of the remaining contractual provisions shall not be affected. Instead of the invalid provision shall be deemed as agreed as valid provision the provision which comes closest to the legal and commercial purposes of the invalid provision.
- Data of the customer that concern the business connection with him will be stored in accordance with the provisions of the Bundesdatenschutzgesetz [Federal Data Protection Act].