Terms and Conditions of Purchase of Rack & Roll GmbH

1 General

1.1 We place orders exclusively on the basis of these Terms and Conditions of Purchase (“Terms and Conditions”). The GTP shall apply to all business relations with our business partners and suppliers (“Seller”) concerning the sale and/or delivery of movable goods (“Goods”), irrespective of whether the Seller manufactures the Goods itself or purchases them from suppliers (§§ 433, 650 BGB).
1.2 Deviating, conflicting or supplementary contractual terms and conditions of the Seller shall only apply if we have expressly agreed to them in writing. Counter-confirmations of the Seller with reference to contractual terms and conditions are hereby expressly rejected. The GTP shall also apply if we accept the delivery without reservation in the knowledge of deviating, contradictory or supplementary contractual terms of the Seller. 1.3 The GTP shall apply only if we have expressly agreed to them in writing.
1.3 The GTP shall also apply to all future contracts with the Seller without our having to refer to them again in each individual case.
1.4 Individual agreements made with the Seller in individual cases (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these GTP. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
1.5 These Terms and Conditions shall only apply if the Seller is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.

2 Offer/offer documents/conclusion of contract

2.1 Offers made by the Seller are free of charge and non-binding for us.
2.2 Our employees are not authorised to make verbal subsidiary agreements that go beyond the content of the written contract.
2.3 The Seller shall confirm each order without delay, stating the binding price and the binding delivery time. Delivery schedules shall become binding at the latest if the Seller does not object to an order within one week of receipt.
2.4 Until acceptance of the order by the Seller, we shall be entitled to revoke it. The Seller shall point out obvious errors (e.g. spelling and calculation errors) and incompleteness of the order including the order documents to us for the purpose of correction or completion before conclusion of the contract.
2.5 We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents; they may only be used for processing our order and may only be made available to third parties with our written consent, even after termination of the contract. The obligation to maintain secrecy shall only expire if and to the extent that the knowledge contained in the documents provided has become generally known. After completion of the order, they must be returned to us without being requested to do so.

3 Delivery and Delay in Delivery

3.1 The agreed delivery period is binding. Agreed delivery dates must therefore be strictly adhered to. The Seller may not invoke delivery difficulties due to a strike or lockout, irrespective of whether they occur at the Seller’s or one of its suppliers. The Seller may only invoke the absence of necessary information and/or documents to be supplied by us if it has not received the information and/or documents despite having set a reasonable deadline.
3.2 Without prejudice to further claims, in such cases and in cases of delayed delivery or performance due to force majeure, we shall be entitled to set a reasonable period of grace at our discretion.
period of grace at our reasonable discretion. The Seller shall confirm the new delivery period in writing.
3.3 The receipt of the goods by us shall be decisive for compliance with a delivery date or delivery period. In the case of delivery “ex works”, the Seller shall make the goods available in good time, taking into account the usual time for loading and dispatch. If acceptance has been agreed, successful acceptance shall be decisive for compliance with a delivery date. Acceptances shall be made formally. § Section 640 BGB remains unaffected.
3.4 In the event of delayed delivery or performance, we shall be entitled to the statutory claims. The provisions of section 3.7 remain unaffected. In this respect, the Seller shall be liable for intent and any kind of negligence. No limitation or exoneration of the seller’s liability is agreed. Acceptance of the delayed delivery does not constitute a waiver of claims for compensation.
3.5 The seller is not entitled to partial performance. Anything to the contrary shall only apply if we have agreed to partial performance in writing.

3.6 As soon as the seller must expect that he will not be able to meet agreed delivery dates, he must notify us immediately, stating the reasons and the expected duration of the delay. In the event of a delay in delivery, the Seller shall be obliged to pay liquidated damages in the amount of 0.3% of the affected net delivery value per working day, but in total not more than 5% of the affected net delivery value; we reserve the right to assert further statutory claims (in particular rescission and further damages). We reserve the right to prove that higher damages have been incurred. The seller reserves the right to prove that no damage at all or only a significantly lower damage has been incurred.
3.7 In the event of earlier delivery than prescribed, we reserve the right to return the goods at the Seller’s expense. If no return is made in the case of early delivery, the goods shall be stored with us until the agreed delivery date at the expense and risk of the seller.

4 Shipping and transfer of risk

4.1 The seller shall bear the transport risk. This shall also apply if the shipment is postponed at our request. The risk of accidental loss and accidental deterioration shall pass to us upon handover at the place of performance. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis in the event of acceptance.
4.2 Unless otherwise agreed, the goods shall be transported “free domicile” to the place specified in the order at the Seller’s expense. The respective place of destination shall also be the place of performance for the delivery and any subsequent performance (obligation to deliver).
4.3 Insofar as we bear the costs of dispatch and/or transport in individual cases, we shall be entitled to determine the type and manner of packaging and/or dispatch. If we do not make use of this right, the seller shall choose the most favourable of several possibilities for shipment and/or packaging.
4.4 Shipping documents such as delivery notes, packing slips and the like shall be enclosed with the consignments. The order numbers and the markings required in the order shall be indicated in all documents. A dispatch note and a delivery note (in duplicate) must be sent to us for each individual consignment no later than on the day of dispatch. A corresponding dispatch note with the same content must be sent to us separately from the delivery note.
4.5 If, upon receipt of the delivery item, we do not have proper shipping documents in accordance with section 4.4 or if our order numbers are not correctly indicated in the shipping documents, all additional costs and delays resulting therefrom shall be borne by the seller; we shall not be responsible for any delays in processing and payment resulting therefrom. In such cases we shall also be entitled to refuse acceptance of the delivery at the Seller’s expense.
4.6 The Seller shall be obliged to take back the transport and outer packaging used by him, insofar as we wish to take back this packaging, at our discretion at our place of business in Kulmbach or at the place of destination within the usual business hours within one week after our request.
within one week of our request. If the Seller is in default with the fulfilment of this obligation, he shall bear the additional costs for disposal incurred by us as a result. 5.

5. performance obligations, inspection for defects and liability for defects

5.1 The Seller shall comply with the recognised rules of technology, the safety regulations and the agreed technical standards and data for its deliveries.
5.2 The Seller warrants that the goods delivered by it comply with the statutory provisions of the country in which the goods are delivered and sold as intended with regard to their composition, quality, packaging, declaration and goods specification.
5.3 In any case, those product descriptions which – in particular by designation or reference in our order – are the subject matter of the respective contract or have been included in the contract in the same way as these EKB shall be deemed to be an agreement on the quality. It makes no difference whether the product description originates from us, from the seller or from third parties.
5.4 If the delivery contract is based on a sample submitted to us by the Seller and tested and accepted by us, the Seller shall deliver all deliveries and partial deliveries at least in a type and quality corresponding to the sample (purchase after sample).

5.5 The Seller waives its right from the fiction of approval of § 377 para. 2 HGB (German Commercial Code) insofar as the defect to be complained about is not obvious, i.e. our obligation to inspect is limited to defects which become obvious during our incoming goods inspection under external examination including the delivery papers (e.g. transport damage, wrong and short delivery) or which are recognisable during our quality control in the random sampling procedure. In all other respects, it shall depend on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. Our obligation to give notice of defects discovered later remains unaffected.
5.6 We shall be entitled without restriction to reject goods delivered in excess. All costs arising from an excess delivery shall be borne by the seller.
5.7 The Seller waives the defence that defects have remained unknown to us due to gross negligence (§ 442 para. 1 p. 2 BGB).
5.8 If we have notified the seller of a defect or sent the notification to the seller before the statutory or contractual claims for defects had become time-barred, we may refuse to pay the purchase price even after the limitation period has expired to the extent that we are entitled to do so on the basis of the defect rights to which we are entitled.
5.9 The limitation period is 36 months, calculated from the transfer of risk, unless a longer limitation period applies by law. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance. Claims arising from defects of title shall not become statute-barred beyond this in any case as long as the third party can still assert the right – in particular in the absence of a statute of limitations – against us.

6. declaration of origin

6.1 In the event that the Seller makes declarations regarding the originating characteristics of the goods, the Seller shall be obliged to enable the verification of these certificates of origin by the customs administration and to provide both the information required for this purpose and any confirmations that may be required.
6.2 The seller further undertakes to compensate for any damage caused by the fact that the declared origin is not recognised by the competent authority due to a lack of certificates or a lack of verification possibilities. 7.

7. substances and materials provided, transfer of ownership

7.1 Substances and materials (e.g. software, finished and semi-finished products) as well as tools, templates, samples and other objects which we provide for the purpose of production and/or processing shall remain our property, irrespective of their nature and type.
shall remain our property irrespective of the type and scope of the Seller’s performance and shall be kept in safe custody for us at the Seller’s expense and risk (separately as long as they are not processed) and insured against destruction and loss to a reasonable extent. The provisions in para.
2.5 shall apply accordingly.
7.2 Any processing, mixing or combining (further processing) of provided items by the Seller shall be carried out on our behalf. The same shall apply in the event of further processing of the goods supplied by us, so that we shall be deemed to be the manufacturer and shall acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions. 7.3 The transfer of ownership of the goods to us shall be unconditional and without regard to the payment of the price. If, however, in individual cases we accept an offer of the seller to transfer title conditional on payment of the purchase price, the seller’s retention of title shall expire at the latest upon payment of the purchase price for the goods delivered. We shall remain authorised to resell the goods in the ordinary course of business even before payment of the purchase price with advance assignment of the claim arising therefrom (alternatively validity of the simple reservation of title extended to the resale). This excludes all other forms of retention of title, in particular the extended retention of title, the passed-on retention of title and the retention of title extended to the further processing of the goods.

8 Legal Consequences of Breaches of Contract, Liability and Damages

8.1 In the event of non-compliance with fixed dates, warranted characteristics and guarantees as well as in the event of irremediable defects of title, we shall be entitled to withdraw from the contract and to claim liquidated damages in the amount of 5 % of the delivery price (any liquidated damages according to clause 3.6 shall be credited). This shall not affect our right to claim higher damages upon proof. The Seller reserves the right to prove that no damage or only minor damage has been incurred.
8.2 Outside of essential contractual obligations, we shall not be liable for slight negligence. For the gross negligence of simple vicarious agents, we shall only be liable for compensation for the typical foreseeable damage. Further claims for damages are excluded.
8.3 The seller shall be liable in accordance with the statutory provisions. Limitations of liability are expressly contradicted.

9. invoicing and terms of payment

9.1 Invoices must be submitted separately from the consignment of goods in duplicate, quoting the order and purchase order numbers. The Seller shall be responsible for any delays caused by non-compliance with these obligations, without any responsibility on our part.
9.2 Unless otherwise agreed, payments for invoices received from the 01st to the 15th of the month shall be made on the 30th of the calendar month, for invoices received from the 16th to the end of the month on the 15th of the following month less a 3% discount.
9.3 Payment periods shall run from receipt of the invoice, but not before receipt of the goods or, in the case of services requiring acceptance, not before their acceptance and, if accompanying documents, test certificates (e.g. works certificates) or similar documents are part of the scope of services, not before their handover to us in accordance with the contract.
9.4 The timeliness of payments shall depend on the completion of the payment process by us and not on the receipt of the payment by the Seller.
9.5 We do not owe any interest on arrears. The statutory provisions shall apply in the event of default in payment.

10. set-off, assignment and right of retention

10.1 We shall be entitled to set off any counterclaim against claims of the Seller.
10.2 Offsetting by the seller with counterclaims is excluded unless the claims are undisputed or have been legally established.
10.3 The Seller shall only be entitled to exercise the right of retention insofar as its counterclaim is based on the same contractual relationship.
10.4 The transfer of a claim against us to a third party is excluded unless we have expressly agreed to this in writing.

11. prices – price increases

11.1 The price stated in the order is binding. Unless otherwise agreed in the individual case, the price includes all services and ancillary services of the seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including transport and liability insurance).
11.2 Unless otherwise stated, the statutory value added tax is included in the price.
11.3 Price increases after conclusion of the contract are excluded.

12. property rights

12.1 The Seller warrants that the goods are free from third party rights, in particular that the goods are not subject to third party property rights or domestic or foreign industrial property rights which could be infringed by delivery to us or by resale or further processing of the goods by us or third parties.
12.2 In the event that third parties assert such rights to the goods, the Seller shall – without prejudice to any further rights on our part – be obliged to clarify the justification of the asserted claims without delay in consultation with us.
12.3 If claims are asserted against us by a third party in this respect, the Seller shall be obliged to indemnify us against such claims upon first written request; we may only assert claims of the third party against the Seller based on agreements or settlements to the extent that the Seller has agreed to such claims or to the extent that legal claims of the third party are covered.
12.4 The Seller’s obligation to indemnify shall also apply to all expenses necessarily incurred by us as a result of or in connection with the claim by a third party.

13 Supplementary provisions for the purchase of machinery and equipment

13.1 Insofar as machines or plants are delivered, the scope of delivery must include the following EC Machinery Directive Declaration of Conformity or manufacturer’s declaration:
– Machinery Directive 2006/42/EC
– EMC Directive 2014/30/EU
– Low Voltage Directive 2014/35/EU
each in the version valid at the time of delivery.
13.2 The declaration of conformity or manufacturer’s declaration and instructions for the proper operation of the unit are part of the documentation to be delivered.
13.3 Machines and systems must be suitable for 3-shift operation without restrictions.
13.4 The seller is obliged to ensure the availability of the components required for the operation of the machine or plant for a period of ten years. If this is unreasonable for the seller, he may fulfil this obligation by naming a suitable supplier who will ensure the availability of the components.

14 Self-execution of the order

The seller is obliged to execute the order in his own company. He shall only be entitled to transfer the order to third parties with our prior written consent. The Seller shall bear the procurement risk for its services unless otherwise agreed in individual cases (e.g. limitation to stock).

15 Place of jurisdiction, place of performance, choice of law

15.1 If the Seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Kulmbach, Germany shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from or in connection with the contractual relationship. The same shall apply if the Seller is an entrepreneur (§ 14 BGB).
15.2 Unless otherwise stated in the order, our registered office in Kulmbach shall be the place of performance.
15.3 These terms and conditions as well as the entire legal relationship between the Seller and us shall be governed by the laws of the Federal Republic of Germany to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods (CISG).
16 Final clause
All provisions contained in the general terms and conditions of purchase shall be divisible and shall be judged separately from the other provisions if one or more provisions are invalid or unenforceable. Should one of the above provisions be invalid or not become part of the contract, this shall not affect the validity of the remaining provisions. In this case, the contracting parties undertake already now to enter into negotiations with the aim of replacing the invalid provision with a clause that comes as close as possible to what the parties intended economically with the previous provision.

Download Declaration of Performance

(Status: 08/2018)