Standard Terms and Conditions of sale and delivery
These Standard Terms and Conditions of Sale and Delivery apply to the sales of products of ROBERS -Leuchten GmbH & Co. KG (hereinafter referred to as “ROBERS”). ROBERS Terms and Conditions of sale and delivery shall exclusively apply, save as varied by express agreement accepted in writing by both parties.
The offer, order acknowledgement, order acceptance of sale of any products covered herein is conditioned upon the terms contained in this instrument. Any conditionals or different terms proposed by Buyer are objected to and will not be binding upon ROBERS unless assented in writing by ROBERS.
These Standard Terms and Conditions shall govern any future individual contract of sale between ROBERS and the Buyer to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be mad, by Buyer.
Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document of information issued by ROBERS shall be subject to correction without any liability on the part of ROBERS.
No order submitted by Buyer shall be deemed to be accepted by ROBERS unless and until confirmed in writing by ROBERS or ROBERS’ representative after submittal.
ROBERS reserves all intellectual property rights and copyrights with respect to ROBERS’ illustrations, drawings, calculations and other documents. Documents and drawings provided to the Buyer as well as constructive services and proposals for the design and manufacture of the ROBERS goods provided by ROBERS may only be used by the buyer for the intended purpose and may not be made accessible to third parties or published without the written consent of ROBERS.
a) Orders placed in writing, orally, by telephone or towards ROBERS’ representatives shall only be deemed accepted after written confirmation of ROBERS. In case of an request/order for immediate delivery, the invoice shall be classified as ROBERS’ order confirmation. Any terms and conditions of the Buyer which deviate from the ROBERS Terms and Conditions as well as any agreements made with ROBERS’ representatives shall be subject to written acceptance by ROBERS.
b) An order shall not be confirmed by ROBERS until the Buyer has checked and validated the offer documents and technical drawings of ROBERS and returned them to ROBERS. The term “validated” shall be defined as follows: The offer documents shall be dated and signed by the Buyer and returned with the note “Bon pour accord” or “Bon pour fabrication”. All product information and specifications must be checked beforehand by Buyer or, in the case of possible options, a binding selection must be made (e.g. colour, quantity, glass). Production will only begin with release of the validated and signed offer documents and receipt of the agreed prepayment.
3. Terms of delivery, Force Majeure
a) Changes in the execution and/or quantity of the ordered products that are initiated by the Buyer after the order confirmation has already been issued and which lead to additional costs shall be borne by Buyer.
b) Events of force majeure, including strikes, operational disruptions (e.g. fire, water or machine damage), shortages of energy and raw materials, transport bottlenecks or obstacles that are not caused by ROBERS and all other hindrances which, from an objective point of view, were not caused by ROBERS, as well as official measures and the improper performance of the contracts between Robers and its suppliers shall release ROBERS from its delivery obligations. ROBERS shall inform its customers of any delay in delivery due to the aforementioned circumstances in writing or in text form in due time. In this case, ROBERS shall be entitled to postpone the delivery for the duration of the hindrance or to withdraw from the contract in whole or in part because of the part not yet fulfilled, provided that ROBERS has fulfilled its obligation to provide information as defined above and has not assumed the procurement risk or a delivery guarantee.
c) In the event that Buyer cancels the order after ROBERS’ acception of the order for reasons other than force majeure, Robers reserves the right to retain 50% of Buyer’s prepayment on the order as compensation for expenses and damages already incurred to ROBERS. Should ROBERS be proven to have incurred more than 50% of the expenses due to the expenses and services already rendered at the time of the cancellation of the order, Buyer will be charged for the higher expenses.
4. Delivery period
a) The delivery period shall be a maximum of 10 weeks after dispatch of the written order confirmation by ROBERS.
b) ROBERS shall adhere to specified delivery periods provided that suppliers deliver the materials within the delivery period as agreed upon with suppliers. ROBERS shall inform the Buyer without delay as soon as ROBERS becomes aware that delivery periods have been exceeded. Exceeding delivery periods shall not entitle the Buyer to assert claims for damages or to withdraw from the purchase contract without, in the latter case, setting a reasonable grace period of at least four weeks.
a) The prices are valid for delivery ex works.
b) Invoices of ROBERS are to be paid in advance: 50% prepayment upon receipt of ROBERS’ order confirmation, 50% payment 1 week prior to the confirmed delivery date.
c) The statutory value added tax is not included in our prices; it will be listed separately in the invoice at the statutory rate on the day of invoicing.
On presentation of a valid EU VAT ID: Application of the reverse charge procedure in accordance with Art. 196 of the VAT Directive (VAT System Directive) as amended by Directive 2008/8/EC.
6. Deliveries & transfer of risk
a) Unless otherwise stated in the order confirmation, delivery is agreed “ex works”, Weseker Weg 36, 46354 Südlohn, Germany. The transfer of risk of the sold item occurs “ex works” when ROBERS notifies Buyer that the products are available for collection. The Incoterms 2010 apply.
b) Deliveries shall be made at the expense and risk of the Buyer. Even in the case of agreed carriage paid delivery, as well as in the case of delivery by own or third-party vehicles, the transport risk shall be borne exclusively by the buyer. ROBERS shall only compensate buyer in case of damage or breakage of the product during transport if the Buyer instructs ROBERS to insure all products against the risk of breakage and the costs for the insurance amounting to 1% of the net value of the products are borne by Buyer.
c) If no specific shipping instructions have been specified by the Buyer, ROBERS shall select the most favourable shipping method at ROBERS’ best discretion.
d) Unless expressly agreed otherwise, ROBERS is entitled to make partial deliveries if this is reasonable for the Buyer and if ROBERS informs the Buyer of this in advance.
e) The Buyer must guarantee receipt of the products at the agreed delivery date and provide suitable unloading vehicles (e.g. forklift trucks). In the case of bulky deliveries, the buyer must ensure that the place of delivery can be reached by an articulated lorry. Unloading times: maximum 1 hour for partial deliveries, maximum 2 hours for the entire truck, unloading times beyond this are at the expense of the Buyer.
f) If the Buyer does not accept the products on the agreed delivery date, the additional costs for waiting times and new delivery shall be borne by Buyer.
7. Liability for defects
a) Insignificants and commercial deviations – such as e.g. traces of manual processing due to hammer blows, welding and grinding marks, slight colour deviations when painting by hand or blisters in hand-blown glass – in size and design do not constitute a reason for complaints. Likewise, colour changes due to climatic and atmospheric conditions to which the luminaires are exposed after delivery are no reason for complaints.
b) Complaints regarding the number of items or otherwise recognisable defects in the quality of the products can only be considered if notification is made within 8 days of receipt of the consignment. For hidden defects, the statutory provisions pursuant to § 434 et seq. BGB (GERMAN CIVIL CODE) shall apply. – The Buyer’s rights in respect of defects require that Buyer has duly complied with Buyer’s obligations to inspect and give notice of defects to ROBERS in accordance with § 377 of the German Commercial Code (HGB). ROBERS shall be obliged to comment on the complaints within one week, otherwise the Buyer shall be entitled to return the products. If complaints prove to be justified and the products are still in their original condition, reasonable compensation will be paid after return or the products.
c) If the Buyer fails to notify ROBERS, the products shall be deemed to have been accepted, unless the defect was not identifiable during the inspection.
d) If such a defect is discovered later, the notification must be made immediately after detection; otherwise the products shall be deemed to have been approved even with regard to the defect.
e) If a third party claims compensation and/or damages against ROBERS for damage caused by the Buyer, Buyer shall indemnify ROBERS against such claims.
f) The limitation period for claims based on defects is 24 months, calculated from the transfer of risk.
a) Subject to the following exceptions, we shall not be liable, in particular not for claims of the Buyer for damages or reimbursement of expenses – for whatever legal reason – in the event of breach of duties arising from the contractual obligation.
b) The above exclusion of liability pursuant to Clause 8 a) shall not apply insofar as liability is stipulated by law:
i. For own intentional or grossly negligent breach of duty and intentional or grossly negligent breach of duty by legal representatives or vicarious agents;
ii. For the violation of essential contractual obligations; “essential contractual obligations” are those obligations that protect the Buyer’s essential contractual legal positions, which the contract has to grant him according to its content and purpose; “essential” are also those contractual obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose fulfillment Buyer has relied and may rely regularly;
iii. In the event of injury to life, limb or health, also by legal representatives or vicarious agents;
iv. In the event of default, insofar as a fixed delivery and/or performance date was agreed;
v. Insofar as ROBERS has assumed the guarantee for the quality of ROBERS’ products or the existence of a performance success, or a procurement risk within the meaning of § 276 BB;
vi. In the case of liability under the Product Liability Act or other mandatory statutory liability provisions.
c) In the event that ROBERS or its representatives are only guilty of slight negligence and there is no case of the aforementioned clauses 8 b) iv) to vi), ROBERS shall only be liable for contractually typical and foreseeable damage, even in the event of a breach of material contractual obligations.
d) ROBERS’ liability shall be limited to the amount to the foreseeable average damage typical for the contract for each individual case of damage. This shall not apply if ROBERS is guilty of fraudulent intent, intent or gross negligence for claims based on injury to life, limb or health or in the case of a claim based on a tortious act or an expressly assumed guarantee or the assumption of a procurement risk in accordance to § 276 BGB or in cases of legally mandatory higher liability sums. Any further liability is excluded.
e) The exclusions or limitations of liability in accordance with the above Clauses 8 a) to d) shall apply to the same extent for the benefit of ROBERS’ representatives, ROBERS’ executive and non-executive employees and other vicarious agents as well as ROBERS’ subcontractors.
f) Buyer’s claims for damages arising from this contractual relationship may only be asserted within a preclusive period of one year from the beginning of the statutory limitation period. This shall not apply if ROBERS is guilty of intent or gross negligence, for claims based on injury to life, limb or health, or in the case of a claim based on a tortious act or an expressly assumed guarantee or the assumption of a procurement risk in accordance with § 276 BGB, or in the event that a longer limitation period is mandatory by law.
9. Retention of title
Notwithstanding delivery and the passing risk in the goods, or any other provision of these conditions, the property in the goods shall not pass to the buyer until ROBERS has received payment in full of the price of the goods and all other goods agreed to be sold by ROBERS to the buyer for which payment is then due. Before payment has been made, the Buyer may neither pledge the goods nor assign them by way of security. The buyer is obliged to treat the goods with care; in particular, Buyer is obliged to insure them sufficiently at his own expense against fire, water and theft at replacement value. In the event of seizure of these goods by third parties, the Buyer shall be obliged to notify ROBERS immediately. The Buyer may sell or further process the goods within the framework of a proper business operation. If the Buyer resells or further processes the goods, this shall be deemed to have been done on our behalf and for our account. The claim to payment of the sales proceeds shall be deemed to have been assigned to us in any case of resale.
10. Place of performance and jurisdiction
The place of performance and jurisdiction shall be the ROBERS’s registered office or the district court of Borken i.W., Germany.
Managing Director: Alexander Robers, Felix Robers
11. Applicable law and relevant translation
In the event of a dispute, German law shall apply excluding the UN Convention on Contracts for the International Sale of Goods. The German version of our Terms and Conditions of Sale and Delivery shall be binding and applicable in the event of a dispute.