General Terms and Conditions
Purchasing Terms and Conditions of RSG Electronic Components GmbH (Limited Liability Company)
(1) The following terms and conditions shall exclusively apply to all purchases of goods and services by RSG, unless RSG and the supplier have expressly agreed otherwise. Our terms and conditions shall apply to all contracts with our suppliers regarding their goods and services. These terms and conditions shall even apply to all future supplies, services or orders, even if not expressly agreed upon.
(2) Any conflicting terms and conditions of our suppliers or third parties shall not apply, even if we have not expressly objected to them. Even if we refer to a document which contains the terms and conditions of the supplier or a third party or a reference to them, this shall not constitute our agreement with the applicability of these terms and conditions.
(3) All items, materials and services shall be ordered in accordance with these purchasing terms and conditions.
(1) Unless our order expressly contain a time period, our orders must be accepted within one week after the date of the order. An acceptance is timely if we receive the acceptance within one week.
(2) We are authorized to change the date and the place of the delivery as well as the packaging at any time by giving 7 calendar days' notice in writing prior to the agreed date of delivery. The same applies to modifications of the specifications if these can be incorporated in the production process of the supplier without the necessity of major adjustments; in this case the notice requirement is 7 calendar days. We will reimburse the supplier for reasonable and identified additional costs which are caused by our request for modification. To the extent a request for modification causes a delay in delivery which cannot be avoided in the normal production process of the supplier with reasonable efforts, the agreed delivery date shall be adjusted accordingly. The supplier shall notify us in writing about any additional costs or delays in delivery which he reasonably expects in due time prior to the delivery date, however, at a minimum five (5) days after the receipt of our request for modification.
(3) If our order is placed after an offer is received, our order shall constitute the acceptance of the offer. All orders must be in writing and are binding if they are placed on our order form and signed. Any modifications of the contract conditions must be expressly accepted by us in writing. This even applies to the requirement that all modifications must be in writing.
3. Prices/Invoices/Payment Terms
(1) All prices are fixed prices in which all additional costs are included. Freight cots, e.g. costs for shipping crates and boxes and transportation will only be paid for if expressly agreed upon. All freight costs must be identified on freight invoices. The supplier must not assign its claims against us, unless we have expressly agreed to such assignment.
(2) The invoice shall be sent in duplicate stating the order number to the postal address of RSG. Payment of any invoice shall be made within 30 days, unless the parties have agreed otherwise.
(3) All order confirmations, shipment documents and invoices have to include our order number, any item number, delivery quantity and delivery address. In the event that one or more of these items are missing and that our processing in the due course of business is delayed, all agreed payment dates shall be adjusted by the period of delay.
(4) In the event of a delay of payment, we shall pay delay interest in the amount of five (5) % above the prime lending rate in accordance with § 247 BGB (German Civil Code).
4. Delivery/Transfer of Loss/Force Majeure
(1) The delivery date included in the order is binding. We are not obligated to accept prior delivery, unless we have expressly agreed so.
(2) If the supplier does not deliver the goods or services at the agreed delivery date or if the supplier performs the services in a way that the scheduling of RSG is at risk, we reserve the right not to accept the delivery at all and to send the delivery back to the supplier at its costs. The supplier shall include with each delivery a shipping bill which shall contain the order number of RSG. The supplier shall be fully responsible for any delays in the processing of the invoice and inspection of the delivery which are caused by the fact that one or more of these items are missing.
(3) If the day on which the delivery has to take place at the latest can be determined according to the contract, the supplier shall be in delay after that day irrespective of whether we have sent a notice.
(4) In the event of a delay, we shall be entitled to all statutory rights, including the right to cancel the contract and to demand damages instead of performance after having set a reasonable extension of time.
(5) The supplier shall not be entitled to make partial deliveries, unless we have expressly agreed.
(6) The risk of losses passes, even if we have agreed on a shipment by third parties, if the goods are handed over to us or a third party appointed by us at the agreed place of delivery.
(7) None of the parties shall be liable for incidents which are beyond one's control, e.g. force majeure. The supplier shall be excused from its contractual obligations if we are informed within five (5) days after the supplier has first had knowledge in writing about these incidents.
5. Reservation of ownership
(1) We reserve our ownership rights and copyrights with regard to all orders placed as well as to drawings, pictures, calculations, descriptions and other documents which we provided to the supplier. The supplier must not, without our express consent, provide these documents to third parties, disclose them, use them itself or through third parties, nor duplicate them. The supplier shall return these documents, including any copies, at our request if he has no further need in due course of business or if the negotiations do not lead to a contract.
(2) Any reservation of title/ownership by the supplier shall only apply, if they refer to our obligation for payment of the goods, as to which the supplier reserves its rights. Any expanded or extended reservation of title shall not be admissible.
(1) In the event of defects, the statutory rights shall apply. Notwithstanding the foregoing, the warranty period shall be thirty (30) months.
(2) The supplier guarantees that all items, materials and works are in accordance with the respective drawings, specifications, samples and/or other descriptions, which were part of the contract, and that they are free from any defects. In any case, RSG shall be entitled to damages for defective goods or services which do not correspond to the agreed standards and explicit, implied or statutory guarantees and warranties.
(3) We shall be allowed to notify the supplier of any apparent defects of items, i.e. bad or defective workmanship or defective material, as well as goods which do not correspond to the samples, the specifications or other standards or which do not even appear in our order within ten (ten) working days after the delivery to our customers. In the case of concealed defects, RSG shall be entitled to notify the supplier within ten (10) working days after such defect is discovered by us or our customers. The supplier shall bear all costs for the transportation in each direction, for packaging and for all other related expenses. Any returned items or materials, or those the acceptance of which was declined, will be replaced after written instructions by RSG. RSG shall be entitled to return any surplus deliveries at the supplier's cost and risk. Any warranty rights of RSG shall be barred after 24 months after the delivery, unless statutory law provides for a longer period.
(4) An acceptance or approval of samples does not constitute a waiver of our warranty rights.
(5) The receipt of our written notice of defects shall suspend the period of limitation of our warranty rights. In the event of the delivery of a substitute or the remedy of defects, the warranty period for the replaced or remedied item starts again, unless we have reason to believe that the supplier did not consider himself obligated to remedy the defect and performed the remedy / supplied the substitute to enhance goodwill or for similar reasons.
(6) RSG reserves the right to refuse the acceptance of deliveries and / or to return them to the supplier at its costs, if they do not comply with the agreed samples, specifications or standards. If RSG cannot reasonably expected, based on the defective delivery, to accept any further delivery by the supplier, RSG shall be entitled to cancel any pending orders.
7. Products Liability
(1) The supplier shall be liable for any claims based on damages to persons or to property which were caused by a defective product supplied by the supplier; supplier shall be obligated to indemnify us for all of these claims.
(2) If we are obligated to initiate a recall towards third parties due to a defect of a product of the supplier, the supplier shall bear any costs related to such recall.
(3) The supplier shall, at its own costs, be obligated to maintain products liability insurance with an adequate coverage which, unless agreed otherwise, does not have to cover the risks of recalls or punitive or other damages. The supplier shall, at our request, provide us with a copy of such insurance policy.
8. Intellectual Property Rights
(1) The supplier guarantees that deliveries do not violate third parties' intellectual property rights.
(2) The supplier shall indemnify RSG against all claims of third parties for the violation of intellectual property rights and shall reimburse us for any expenses incurred in that regard. The supplier's obligation shall be irrespective of the supplier's fault.
9. Replacement parts
(1) The supplier shall be obligated to ensure delivery of spare parts for all products delivered to us for a period of 5 years at a minimum after the respective delivery.
(2) In the event the supplier intends to discontinue the delivery of spare parts for products delivered to us, he will notify us immediately after he reaches such a decision. Any decision to discontinue the delivery of spare parts for products delivered to us shall be - irrespective of par. 1 - at least 10 months prior to any discontinuation.
(1) The supplier is obligated to keep secret all terms of any order as well as all information provided for that purpose and documents (excluding information which is publicly available) for a period of 2 years after the conclusion of a contract and to only use such information to process the order. The supplier shall, at our request, immediately return any such information after an inquiry is settled or the order is executed.
(2) The supplier must not, without our prior written consent, make any references to our business relationship in marketing materiel or brochures etc. or display any products manufactured in accordance with our order.
(3) The supplier shall insure that any sub-suppliers are bound accordingly.
(1) To the extent that orders are placed in the context of a master agreement, the terms and conditions of the master agreement shall supersede the terms and conditions of these purchasing terms and conditions. Any terms and conditions of the supplier shall not apply.
(2) The contractual relationship shall exclusively be governed by the laws of the Federal Republic of Germany, with the exclusion of all conflicts-of-laws-provisions (international private law) and the Convention on the International Sale of Goods (CISG). Notwithstanding any statutory regulations regarding exclusive jurisdiction, the courts of Offenbach, Germany, shall have exclusive jurisdiction for all disputes arising from or in connection with all deliveries based on these terms and conditions.
(3) If a provision of these general terms and conditions is not valid or not enforceable, the validity and enforceability of the remaining provisions shall not be affected.
Delivery and payment Terms and Conditions of RSG Electronic Components GmbH (Limited Liability Company)
We deliver according to our General Terms and Conditions. The following terms and conditions shall exclusively apply to all our goods and services; unless expressly agreed upon in writing, any conflicting or deviating terms and conditions by the ordering party shall not apply. Our terms and conditions shall even apply if we deliver any goods or perform any services for the ordering party without any reservation despite having knowledge of conflicting or deviating terms and conditions of the ordering party. In the scope of ongoing business relations our terms and conditions shall even apply, as revised on the date of conclusion of the contract even when not explicitly agreed upon.
Any offer shall be subject to change without notice. A contract shall only be formed upon our written confirmation of the order. The scope of our goods or services shall be conclusively determined by our written confirmation of the order, including any exhibits. Any side agreements and modifications shall only be binding upon our written confirmation.
With regard to cost estimates, drawings and other documents (hereinafter "Documents"), we reserve our unrestricted proprietary rights and copyrights. The Documents may only be made available to third parties upon our prior consent. Unless a order is placed with us, the Documents shall, upon request, be immediately returned to us.
In the event that the customer order qualifies as a new offer, we may accept it within 5 weeks.
In order for us to comply with the delivery date stated by us, all technical questions must be agreed upon; further, the ordering party must completely fulfill all of its duties and obligation on time. This shall particularly include the timely receipt of all documents to be submitted by the ordering party, all necessary approvals and acceptance of all plans. If these prerequisites are not timely fulfilled, the delivery date shall be reasonably extended, unless the delay is caused by us.
We reserve the right of defense of nonperformance of contract.
If the noncompliance with a delivery date is caused by force majeure, e.g. mobilizing, war, rebellion or similar events, including e.g. strike, lockout etc., the delivery date shall also be reasonably extended. If the ordering party is in delay accepting the goods or services or otherwise violating other duties and obligations to cooperate, we shall be entitled to claim the damages incurred by us so far, including any additional expenses. Particularly, we shall be entitled to invoice the ordering party for the costs of storage incurred beginning one month after indicating readiness for shipment. In case of storage in our facilities, the costs of storage shall be at least 1% of the invoice amount for each month of storage required, if shipment is delayed on request of the ordering party or for other reasons for which the ordering party is responsible. The ordering party shall be entitled to produce evidence to us that as a consequence of the delay we have incurred no or less damages than claimed. We shall reserve the right of asserting further claims.
We reserve the right, after the expiration of a reasonable additional time we have set, to otherwise dispose of the goods or services or to supply the ordering party after another reasonable extended period.
We shall be liable in accordance with statutory law, if the delay in delivery is caused by an intentional or grossly negligent breach of contract for which we are responsible. In the event of gross negligence, our liability for damages shall be limited to typical and foreseeable damages, unless the damage is caused by an officer or the management of RSG. In the event of light negligence, we shall only be liable for damages, if the delay is due to a breach of a contractual duty which is essential for the performance of the contract, the violation of which will constitute a risk for the entire contract and the compliance of which the other party can reasonably expect. In this case, our liability shall be limited to the foreseeable and typical damage.
In all other cases, the damages of the other party caused by the delay shall be limited as follows: for each full week of the delay to 3% of the delivery value, not to exceed 10% of the delivery value for the respective part of the delivery which was delayed.
Any further claims for damages by the ordering party due to the delay of delivery as well as claims for damages instead of performance, which would exceed the above stated limits shall be excluded, even after expiration of any time limit set for delivery.
During the term of the contract we are entitled to partial shipments, unless such partial shipments are of no use to the ordering party. In the event of partial shipments, each shipment shall be considered a separate transaction for which an invoice can be issued. Any defects of a partial delivery of a delayed partial delivery shall have no influence to other partial deliveries whether already performed or outstanding. In particular, the ordering party may not cancel the whole contract or demand damages with regard to the whole contract, if a partial delivery is defective or delayed; unless the ordering party can prove that the remaining partial delivery is of no use. The ordering party is, upon request, obligated to state within a reasonable time frame whether it will cancel the contract in part or in whole due to the delay or whether it still requests performance of the contract. The above provisions shall not constitute a change of the burden of proof to the disadvantage of the ordering party.
3. Shipment and passage of risk
The risk shall pass to the ordering party even with freight prepaid as follows:
Offenbach shall be the agreed place of delivery for all deliveries without installation or mounting. If the ordering party requests delivery to another place, risk of loss shall pass with the handing over of the goods to the carrier. The ordering party shall bear all costs of such shipment. Upon request by the ordering party we will insure the goods against the normal transportation risks at the cost of the ordering party.
If the shipment, delivery, beginning or start of operation or test operation is be delayed for reasons for which the ordering party is responsible, or the ordering party is in delay of acceptance for other reasons, the risk of loss shall pass to the ordering party at this time.
Shipment and packaging shall be at the discretion of RSG.
Express shipments shall always be sent freight collect.
4. Prices and payment
Any prices shall be subject to change without notice and are meant ex RSG warehouse.
The invoice amount shall be payable without deduction within the time period stated after the date of the invoice. Any objections to our invoices or requests for credits must be made within three months after the delivery. Thereafter, the invoices or any credits given shall be deemed accepted.
We reserve the acceptance of checks or bills of exchange and such acceptance shall only be on account of performance, but not in discharge of debt. Any bill of exchange costs and overdraft expenses shall be to the debit of the ordering party. Payments shall only be credited at the day when RSG receives the invoice amount.
The ordering party shall only have the right of setoff if their counter-claims are based on a binding judgment or on a counter-claim which is not contested. The ordering party shall only be entitled to exert a right of retention as far as their counter-claim is based upon the same contract relationship. The statutory burden of proof shall apply. The ordering party shall also not have any right of retention for contested counter-claims.
Payments to employees or commercial agents shall only be valid, if these have authorization to accept such payments.
Prior to payment of due invoices, including interest for delay, RSG shall not be obligated to further deliveries from any current contract. The ordering party shall automatically be in delay with payment after 14 days of the receipt of the invoice, without any further obligation to issue a reminder. If the ordering party is in delay of payment, all payments shall become immediately due and RSG may also be entitled to demand immediate payment in cash prior to any further deliveries. The same shall apply for checks are not honored on the ordering party's part.
If, after the conclusion of contract, circumstances become known which, in our sole discretion, can reduce the credit worthiness of the ordering party (in particular, nonpayment, insolvency proceedings, attachment or enforcement proceedings, protest of a check or bill of exchange), all outstanding claims of RSG shall immediately become due and payable irrespective of the term of any bills accepted. Further, such circumstances shall entitle us to complete open deliveries only against advance payment or provision of security, and after lapse of an additional period of time of one week, we shall be entitled to refuse delivery in total or partly and to either withdraw from the contract or to demand compensation for damages for non-performance.
We reserve the right to make deliveries against cash, c.o.d. deliveries or advance payment.
5. Reservation of ownership
The goods/services delivered by us shall remain our property until complete settlement of all claims from the business relationship between RSG and the ordering party; the reservation shall relate to the agreed balance. Complete settlement of accounts shall be deemed upon receipt of the present value by us; in any case, the final credit to our account shall be decisive.
In case of a violation of a contractual duty by the ordering party, particularly, delay of payment, we shall be entitled to redeem our property. Any redemption by us shall not constitute a cancellation of the contract unless explicitly declared by us in writing. Any attachment of the goods by us shall always constitute a cancellation of the contract; no separate notice of cancellation shall be necessary. After reclaiming the goods we shall be entitled to dispose of them. Any proceeds shall be set off against accounts payable of the ordering party, less adequate cost of realization.
The ordering party shall be obligated to store the goods with reasonable care at no further charge to us. The ordering party shall be obligated to store the goods separately, indicating that the goods are our property; the accounting must reflect any claims which are assigned to us. The ordering party must insure the goods which is our property at its own cost for the replacement value against normal damages, e.g. destruction, loss, damages resulting from fire, water and theft. If requested, the ordering party shall be obligated to prove such insurance. The ordering party hereby assigns to us any claims against the insurer because of loss or damage of our property. If maintenance and inspection is necessary, the ordering party shall perform it in time at its own cost. In case of attachments or other interferences by third parties, the ordering party shall immediately notify us in writing, in order to enable us to initiate legal proceedings in time. In addition, the ordering party shall notify any third party of our rights. As far as the third party is not able to compensate us for judicial and extrajudicial expenses of any legal proceedings, the ordering party shall be liable for expenses incurred.
The ordering party shall be entitled to sell the goods in the orderly course of business as long as the ordering party fulfills its contractual obligations. Any pledges or transfers as security shall be prohibited. However, the ordering party shall assign all claims in the amount of the invoiced final price (including VAT) of our claim, arising from the sale against its customer or third parties. The ordering party shall continue to be entitled to collect the proceeds in its own name. Our power to collect the proceeds directly from the third party shall remain unaffected. We are entitled to revoke the authority to collect the proceeds at any time if the ordering party is in delay with regard to its payment obligations, an insolvency proceeding was requested or opened or if the financial situation of the ordering party has changed for the worse. If we revoke the ordering party's authority to collect the proceeds, the ordering party shall, at our request, be obligated in inform us about the assigned claims and the respective debtors, to disclose all information which we require to collect the proceeds, to hand over the pertinent documents and to inform the debtors (third parties) of the assignment.
If the ordering party processes the goods, it is agreed that such processing shall occur for the account of RSG as the manufacturer and that RSG shall obtain ownership - or if the processing takes places by processing items of several owners or if the value of the processed item is higher than the value of the goods - joint ownership with regard to the new item. The value of the goods shall be the final price on the invoice including VAT. In the event that RSG does not obtain (joint) ownership, the ordering party shall transfer its ownership or - in the respective proportion - its joint ownership with regard to the new item as security.
If the goods are combined inseparably with other items, which do not belong to us, or are incorporated with other items to one item, the ordering party shall transfer joint ownership of the new item in relation of the value of the goods (final price on the invoice including VAT) to the other items at the time of incorporation. If the combination of the items occurs in such a way that the goods constitute the major part, the ordering party shall transfer sole ownership to us. The ordering party shall store the item(s) which are (jointly) owned by RSG for us.
The ordering party shall also assign to us the claims to secure our claims against the ordering party which arise from the combination of the goods with real property versus a third party.
We agree to release our securities upon request by the ordering party inasmuch as the realizable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released shall be within our discretion.
6. Defects and Warranty
In the event that the goods contain defects for which we are responsible, we will, at our sole discretion, either deliver new goods without defects or remedy the defects which existed prior to the transfer of risk. The foregoing shall not constitute a change of the statutory regulations concerning the burden of proof.
The ordering party shall immediately inform us in writing of any defects of the goods and, to the extent possible, identity and describe the defect. We shall have the right to ascertain the defect on site. If the notice of defect is not justified, we shall be entitled to demand of the ordering party the expenses incurred by us.
We reserve ownership of replaced parts according to the provisions of these terms and conditions.
We shall have the right to remedy any defects within a reasonable time. If we cannot remedy the defects, the ordering party may cancel the contract or reasonably reduce the purchase price, notwithstanding any claims for damage according to the provisions of these terms and conditions.
Any claims of the ordering party for expenses necessary in context with the remedy, particularly transport, travel, work and material costs shall be limited to 5% of the contract value, if the expenses are increased because the goods have to be subsequently brought to another site than the agreed place of performance. This shall not apply if the transport is in accordance with the intended use of the goods.
With regard to liability, sec. 7 of these term and conditions shall apply. Any further claims of the ordering party against us and persons acting on our behalf for any defects or damages caused by defects, other than those provided under sec. 7, shall be excluded.
The following regulations shall apply to any claims of the ordering party for damages, compensation for expenses, irrespective as to the legal basis, particularly, but not limited to, due to violation of contractual obligations, torts, defects of the goods and damages caused by these defects. The statutory provisions shall apply in case of intent, claims based on Products Liability Act, malicious concealment of defects and violation of life, body or health. Otherwise, the following regulations shall apply:
In the event of gross negligence, our liability is limited to typical and foreseeable damages; provided that the damage was not caused by executives or management.
In the event of light negligence, we are only liable if we violate a contractual duty, the performance of which is essential for the contract and can be reasonably expected by the ordering party and the violation of which threatens the goal of the contract. In these cases our liability is limited to typical and foreseeable damages. In all other cases, our liability for negligence is excluded.
In no case shall we be liable beyond the statutory provisions. The foregoing shall not constitute a shift of the burden of proof.
Any claims for liability and expenses which were caused by defects shall be barred after one year. Sec. 438 par. 1 no. 1a BGB (German Civil Code) shall be applicable. All other claims for liability and expenses shall be barred after two years after the claim arises. The foregoing provisions shall not apply in the event of intent, claims based on Products Liability Act, malicious concealment of defects and violation of life, body or health or gross negligence; in this case, the statutory regulations shall apply. If, according to the statute of limitation, a claim is barred earlier, then the statute of limitations shall apply.
8. Intellectual property rights
All copyrights and other intellectual property rights, in particular trademarks and patents, shall remain our property.
The courts of Offenbach, Germany, shall have exclusive jurisdiction for all disputes arising from or in connection with the contract if the ordering party is a merchant, a legal person according to public law or a special fund under public law. In addition, we shall be authorized to bring a lawsuit at the ordering party's place of business.
In addition, the contractual relationship shall exclusively be governed by the laws of the Federal Republic of Germany, with the exclusion of all conflicts-of-laws-provisions (international private law) and the Convention on the International Sale of Goods (CISG).
If a provision of these general terms and conditions is not valid or not enforceable, the validity and enforceability of the remaining provisions shall not be affected.