Conditions of Sale and Delivery (GTC)

I. Offer

Offers are non-binding and subject to change. The documents that form part of the offer, such as illustrations, drawings, data regarding weight, tolerances and dimensions represent merely approximate values, provided they have not been expressly described as binding. The supplier shall be entitled to reserve his rights with regard to ownership and copyright of quotations, drawings and other documents; they may not be made accessible to third parties. Where plans have been designated by the customer as confidential, the supplier shall be obliged to permit access thereto by third parties only with the consent of the customer.
 

II. Scope of Delivery

With regard to the scope of delivery, the written order confirmation of the supplier shall be authoritative. If the supplier extends an offer that is bound by a time commitment and this offer is accepted in timely fashion, this shall constitute sufficient acceptance where no order confirmation has been provided in a timely fashion. Collateral agreements and amendments shall require written confirmation by the supplier.

III. Prices and Payment

1. In accordance with the binding Euro price list, all prices shall apply ex factory VS-Schwenningen, exclusive of packaging. We reserve the right to adjust these prices should cost factors change prior to delivery. Minimum quantity surcharges shall be invoiced on individual orders for spare parts, repair work and custom-made products. Packaging shall be invoiced at cost price and cannot be returned. Sales tax shall be added to the prices in the applicable statutory amount. Transport costs shall be borne by the client.

2. Invoices for repairs, installations, tools, development costs and for models shall be payable immediately in net cash. No discounts shall be provided on invoices pertaining to special agreements. All other invoices shall be payable within 10 days with 2% discount or within 30 days strictly net. Bankable bills of exchange shall only be accepted as payment in accordance with special agreement. Expenses and rebates shall be charged at the bank's customary rates. No retention of payments or offsetting shall be permitted on the basis of counterclaims advanced by the ordering party and disputed by the supplier. 

Where payment deadlines are missed, we reserve the right to charge default interest in the amount of 2% in excess of the applicable Federal Bank discount rate.

IV. Time for Delivery

1. The delivery period shall commence upon dispatch of the order confirmation, but not before the customer has provided all required documents, permits and approvals and rendered the agreed payment in timely fashion.

2. The delivery period shall be deemed complied with if the delivery item has left the factory by the time of its expiration or notification has been provided of its readiness for shipping.

3. The delivery period shall be reasonably extended where measures are taken in connection with labor disputes, in particular strikes and lockouts, as well as in the event of the occurrence of unforeseeable barriers or obstacles that are beyond the control of the supplier, provided such barriers or obstacles can be demonstrated to have had a significant impact on the completion or delivery of the delivery item. This shall also apply if these circumstances are encountered by sub-contractors. The supplier shall bear no responsibility for the aforementioned circumstances should they arise in connection with existing payment default. In important cases, the supplier shall notify the customer as soon as possible of the beginning and end of such barriers and obstacles.

4. If the customer suffers damages on account of a delay to be attributed to the fault of the supplier, then the customer shall be entitled to claim compensation for the delay, to the exclusion of all further claims. For each full week the delay persists, compensation shall amount to ½ percent or, at the highest, 5 percent of the value of that portion of the overall delivery that cannot be used in timely fashion or in accordance with the contract as a result of the delay.

5. If the shipment is delayed at the request of the customer, then, commencing one month following notification that the goods are ready for shipment, the customer shall be charged for those storage costs arising on account of their storage at the supplier's factory, and indeed in an amount equal to three-quarters of one percent of the invoice amount billed each month. Following expiry of a reasonable grace period, the supplier shall nevertheless be entitled to make other arrangements for the delivery item, and to supply the customer in accordance with a reasonably extended deadline.

6. Compliance with the delivery period shall require fulfillment of the customer's obligations under the contract.

V. Transfer of Risk and Acceptance

1. Our deliveries are made exclusively ex factory..

2. Transfer of the risk shall occur, at the latest, at the moment the parts supplied are dispatched to the customer, including where partial deliveries are to be made or where the supplier has assumed other expenses, e.g., shipping costs or delivery and installation. The supplier shall be entitled to insure the delivery item against damage due to theft, breakage, fire, water, and other hazards at the expense of the customer, provided the customer himself has not concluded demonstrable arrangements to insure the goods. At the request and expense of the customer, the shipment shall be insured by the supplier against damage resulting from theft, breakage, transport, fire and water as well as other insurable risks.

3. If the shipment is delayed due to circumstances attributable to the customer, then the risk shall pass as of the date upon which notification was made that the goods are ready for dispatch. The supplier shall nevertheless remain obliged to secure the insurance at the request and expense of the customer who desires it.

4. Irrespective of the provisions contained in Section VII, items delivered shall be accepted by the customer, even if they reveal insignificant defects.

5. Partial deliveries shall be permitted.

VI. Reservation of Title

The goods (including goods on consignment) shall remain the property of the seller until full payment is made on all claims, including ancillary claims, claims for compensation for damages, future claims and redemption of all checks and bills of exchange.

The purchaser shall be entitled to process the goods and to sell them, having regard to the following provisions:

1. Irrespective of the right of the seller to withdraw at any time, the authority of the purchaser to process reserved goods in the ordinary course of business shall terminate upon suspension of payment by the purchaser or where insolvency proceedings are initiated against the assets of the purchaser to avoid bankruptcy.

2. By processing the reserved goods, the purchaser processing the goods on behalf of the seller shall not acquire title to the new item in accordance with §950 BGB (German Civil Code). If the reserved goods are processed, mixed, or blended together with other items, then the seller shall acquire co-ownership of the new item in proportion to the value of his reserved goods as compared with the overall value thereof.

3. In the event the goods are processed, mixed, or blended and the seller asserts co-ownership herein to the extent of the amount of the invoice, the purchaser shall hereby assign, to the seller, and indeed proportionately where applicable, any claim the purchaser may have resulting from resale of the reserved goods, together with any ancillary rights that may arise on the basis of such claim. As a result of this assignment, the seller shall be entitled to a corresponding share of any purchase price claim based on the proportion of the invoice value of his reserved goods to the invoice value of the item.

If the purchaser has sold this claim in connection with a real factoring contract, then he shall assign the claim that takes its place to the seller against the real factoring. The seller shall accept this assignment.

4. The seller shall not collect on the assigned claims as long as the purchaser complies with his payment obligations. The purchaser shall be obliged, however, to provide the seller with a list of all claims available to the seller, including the names and addresses of the customers, the amounts of the individual claims, invoice dates etc., as well as to notify his customers with regard to the assignment and to provide the seller with all information required for enforcement of the assigned claims.

He shall be entitled to collect on the claims himself as long as the seller does not instruct him otherwise in this regard.

Should the purchaser default with regard to a payment or should the purchaser's assets situation significantly worsen, then the purchaser shall authorize the seller to notify the customers with regard to this assignment, and to collect on the claims. In this case, the seller shall be entitled to demand that his representative be permitted to examine the customer's accounting records in order to verify the existence of the assigned claims. Amounts received on account of assigned claims shall be kept separate until transfer.

5. The reservation of title shall continue to exist where individual claims of the seller are recorded in a current account, whereof the balance is determined and acknowledged. The seller shall be entitled to the reservation of title not only with regard to the acknowledged and abstract closing balance, but with regard to causal balances as well.

6. The seller shall release deliveries that have been fully paid for if the assurance provided on the basis of the reservation of ownership exceeds the amount of the claim to be secured by 10%.

7. No pledging or security transfer of the reserved goods and/or the assigned claims or factoring shall be permitted. The seller must be immediately notified of any pledge, and of the identity of the attachment creditor.

8. As soon as he has discontinued payment and immediately after providing notice with regard to the suspension of payment, the purchaser shall provide the seller with a list of all reserved goods in existence to the extent such goods have been processed, together with a list of third-party debtors, as well as copies of the invoices.

9. If the seller takes back the delivered goods on the basis of his reservation of title, then he shall only be entitled to withdraw from the contract if the seller makes an express declaration to this effect. The seller shall also be entitled to satisfy his claim by means of private sale of the reserved goods that have been taken back.

10. The purchaser or commission agent shall store and safeguard the reserved goods for the seller. He shall be obliged to insure the goods against damage from fire, theft and water. The purchaser hereby assigns any claims he may have against insurance companies or other parties that may be liable for compensation for damages of the type listed in clause 2 to the seller, and indeed in the amount of the seller’s claims.

11. Any rights arising on the basis of reservation of title and all special forms thereof determined in these conditions shall remain applicable until such time as a release has been granted with respect to all contingent liabilities assumed by the seller on behalf of the purchaser.

VII. Liability for Defective Delivery

Where deliveries contain defects, where particular qualities and/or characteristics are absent despite provision of an express warranty in this regard, the supplier shall be liable, to the exclusion of further claims, irrespective of the provision contained in Section IX 4 as follows:

1. At the reasonable discretion of the supplier, and in accordance with the supplier's election, all those parts that, within 12 months (within 3 months in the case of multiple shift operations) of their initial commissioning, as the result of circumstances occurring prior to the transfer of risk - in particular due to defective construction, poor materials or defective design - prove to be unusable or not insignificantly impaired with respect to their usability, shall be either repaired free of charge or resupplied. The supplier shall be notified immediately in the event any such defects are ascertained. Replaced parts shall become the property of the supplier.

If shipment, assembly/installation, or commissioning is delayed without fault on the part of the supplier, then liability shall expire 12 months, at the latest, from the date of the transfer of risk. With respect to essential third-party products, the liability of the supplier shall be restricted to the assignment of any liability claims the supplier may have against the supplier of the third-party product.

2. In all cases, the right of the customer to assert claims on the basis of defects shall cease to exist 6 months following the date timely notification was provided regarding the existence of the defect, but at the earliest upon expiration of the warranty period.

3. No liability shall be assumed for damages arising on the basis of the following: Unsuitable or improper use, defective assembly and/or commissioning by the customer or third parties, natural wear, defective or negligent handling, unsuitable operating equipment, substitute materials, defective construction work, unsuitable construction base, chemical, physical, fluidic, electrotechnical or electrical influences, provided these cannot be attributed to the fault of the supplier.

4. The customer shall grant such time and opportunity as may be required for the performance of all repairs and substitute deliveries determined necessary in accordance with the reasonable discretion of the supplier, failing which the supplier shall be released from any liability he may bear on account of defects. Only in urgent cases involving operational security hazards and in order to prevent the occurrence of disproportionately greater damages, and whereby immediate notification is to be provided to the supplier or where the supplier has delayed with regard to rectification of the defect, shall the customer be entitled, in accordance with the written permission of the supplier, to repair or remedy the defect or to have it repaired by a third party, and to demand compensation from the supplier for any expenses incurred thereby.

5. From the immediate costs arising on account of the repairs and/or substitute delivery, the supplier - as far as the objection proves to be justified - shall bear the costs of the replacement part including shipment as well as reasonable costs associated with installation and removal and, in addition, if this can be reasonably demanded in the individual case, the costs of any necessary provisions required by the suppliers’ technicians and assistants. Apart from that, the customer shall bear the costs.

6. With regard to the replacement part and the repairs, the warranty period shall be 3 months, but this period shall continue until the expiry of the original warranty period applicable to the delivery item. The limitation period for liability for defects in the delivery item shall be extended by the period during which operations had to be discontinued in order for the repair work to be carried out.

7. Any liability arising on account of improper modifications or modifications carried out by the customer or by third parties without the prior consent of the supplier or for repair works shall expire.

8. Additional claims of the customer, in particular any claims for compensation for damages not arising with regard to the delivery item itself, shall be excluded to the extent permissible in accordance with law.

VIII. Liability for Ancillary Obligations

If, due to the fault of the supplier, the delivered item cannot be used by the customer as a result of defective implementation arising on the basis of recommendations and advice provided either before or after conclusion of the contract as well as other ancillary obligations under the contract - in particular instructions for operation and maintenance of the delivery item - then the provisions of Section VII and IX shall apply, to the exclusion of any additional claims the customer may have.

IX. Customer's right of withdrawal

1. The customer shall be entitled to withdraw from the contract if overall performance thereof or the transfer of risk associated therewith ultimately becomes impossible. The same shall apply in the event of incapacity on the part of the supplier. The customer shall also be entitled to withdraw from the contract if, in the case of an order for similar or identical items, the performance of a part, portion or element of the delivery becomes impossible as regards quantity and the customer has a legitimate interest in refusing a partial delivery. If this is not the case, the customer shall be entitled to reduce his performance or consideration accordingly.

2. In the event of performance default within the meaning of Section IV of the delivery conditions, where the customer grants the defaulting supplier a reasonable grace period accompanied by an express declaration stating that he shall refuse to accept performance following the expiry of this period, and the supplier fails to comply with this grace period, then the customer shall be entitled to withdraw from the contract.

3. If the impossibility occurs during the period of acceptance default or by reason of the fault of the customer, then the customer shall be obliged to effect some remedying performance or to provide some form of remedy as consideration.

4. Moreover, the customer shall be entitled to withdraw from the contract if the supplier fails to comply with a reasonable grace period which has been granted to him in order to effect repairs or substitute delivery required due to a defect to be attributed to the supplier within the meaning of the delivery conditions. The customer's right of withdrawal shall also exist in the event of impossibility or incapacity on the part of the supplier to effect repairs or substitute delivery.

5. Excluded are, to the extent permitted by law, any other, further claims of the customer, in particular with regard to conversion, cancellation or reduction or abatement as well as with regard to compensation for damages of any kind, as well as for those damages not arising on account of the delivery item itself.

X. Supplier’s Right of Withdrawal

Where unforeseen events occur within the meaning of Section IV of the delivery conditions, provided such events significantly alter the economic importance or the content of the contractual performance or significantly affect the operations of the supplier, and where impossibility of performance becomes evident only following execution of the contract, reasonable modifications shall be made to the contract. To the extent this is not economically justifiable, the supplier shall be entitled to withdraw from the contract, either fully or partially.

The customer shall not be entitled to claim damages due to such a withdrawal. If, after he has become aware of the implications of the event, the supplier wishes to avail himself of his right of withdrawal, he shall be obliged to notify the customer of this fact, even if an agreement has already been made with the customer for extension of the delivery period.

XI. Jurisdiction

With respect to all disputes arising on the basis of the contractual relationship, where the customer is a merchant, juridical person under public law or a funds under public law, any claims shall be asserted before the competent court of the headquarters or main office of the company which, in the case of our company, is the court in Villingen-Schwenningen.

The supplier shall also be entitled to bring his claim in the headquarters or main office of the customer.

Warranty

You have chosen a ROMESS product for good reason. ROMESS has extensive experience in electronics, mechanics, hydraulics and in the construction of appliances and devices specially conceived for operations in the service business.

Upon receipt of this warranty card, you, as the purchaser, confirm that you have taken proper possession of the goods, defect-free and without visible signs of damage. On the basis of our experience, this device has been developed in practice-oriented fashion and corresponds to the latest state-of-the-art technology.

We provide you a 12-month warranty on this device in accordance with our warranty conditions:

1. The warranty shall exclusively cover material defects or manufacturing defects. No warranty claims can be made for damages arising due to improper handling or non-observance of the operating instructions, No further or additional liability shall be assumed. With regard to engine damage and damage to pumps or valves, the warranty conditions of the particular manufacturer shall apply. If the maintenance interval prescribed in accordance with statute for all emission testing devices is not observed, then the warranty claim shall expire. The following items shall not be covered by the warranty: electrical fuses, heaters and radiators, incandescent bulbs and glow lamps, electronic control units, sensors, plugs and clips, connector cables and hoses, accessory kits, filter cartridges, oxygen sensors as well as expendable parts.

2. In accordance with our election, rectification of defects and repairs shall be carried out by the appropriate ROMESS service provider, either at the operation site or by way of substitute delivery. Costs of shipping and transport shall be borne by the purchaser.

3. Any claims other than the claim for corrective action provided for in clause 1 shall not be justified under this warranty. With respect to damages arising due to delayed or insufficient corrective action, we shall only assume liability in cases involving willful intent, malice, or gross negligence.

4. In addition, warranty claims can only be made with respect to devices that have not been repaired by the customer and/or by third parties. We only assume warranty for original parts.

5. Claims and complaints concerning the device must be submitted to our company within 8 days following receipt of the goods; claims and complaints regarding latent defects must be made immediately after such defects are ascertained.

6. The warranty claim must be submitted to our company or to the appropriate ROMESS service provider, accompanied by this warranty card and the purchase receipt, within the warranty period.

7. The warranty period is 12 months. This period shall commence upon the date of the invoice.