Röhm - Clamping jaws catalogue Page 145
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General conditions of sale and delivery 6. If the Purchaser has resold the item purchased in regular business transactions, the Purchaser herewith now assigns to us all claims to payment in the amount of the final invoice amount (including value added tax), such as due to the Purchaser from the resale to his customer or a third party, irrespective of whether the item purchased has been resold without or after further reworking. The Purchaser remains authorized to collect this payment, even after assignment. Our own authority to collect payment ourselves will not be affected hereby. However we undertake not to collect payment providing the Purchaser satisfies his own commitments to payment from the proceeds collected, does not default in payment and in particular providing the initiation of insolvency proceedings is not petitioned or payments cease to be made. Should this, however, be the case, we will be able to demand that the Purchaser provides us with details of the assigned payments and their debtors as well as all information necessary to collect payment, that he hands over the relevant documentation to us and notifies the debtors (third parties) of the assignment. 7. The processing or reworking of the item purchased by the Purchaser will always be carried out on our behalf. If the item purchased is processed with other items not belonging to us, we will acquire co-ownership to the new item to the value of the item purchased (final invoice amount including value added tax) in relation to the other processed items at the time of reworking. The same will apply to the thus newly created items as for the items delivered subject to retention of title. 8. If the item purchased is processed with other items not belonging to us, we will acquire co-ownership to the new item to the value of the item purchased (final invoice amount including value added tax) in relation to the other processed items at the time of reworking. If the intermixing is such that the Purchaser’s item is to be deemed the main item, it is herewith agreed that the Purchaser will transfer co-ownership to us proportionately. The Purchaser will keep the property in which we hold exclusive ownership or co-ownership on our behalf. § 8 Quality Defects We are liable for defects in quality as follows: 1. All parts or services will be remedied, at our discretion, free of charge or redelivered or provided again that are found to feature a quality defect during the statutory period of limitation - irrespective of service life - providing the origin thereof already existed at the time of the passing of risk. 2. Claims to quality defects will become statute-barred in 12 (twelve) months. The period of time commences with the passing of risk (Section 6). 3. The Purchaser will immediately file written objection to the quality defect with us. 4. In the event objections are filed, the Purchaser will be permitted to refrain from payment to an extent appropriate to the quality defects featured. The Purchaser will only be able to refrain from payment if an objection is asserted, the justification of which cannot be doubted. If the objection has been asserted unjustifiably, we will be entitled to call for the reimbursement of the expenses incurred by us. 5. Initially we will always be granted an opportunity to remedy a defect within an appropriate period of grace. 6. Should the remedy fail, the Purchaser – notwithstanding any claims to damages – will be able to cancel the contract or reduce remuneration. The Purchaser will only be able to call for the reimbursement of fruitless expenditure if the defect in question is attributable to our own wilful intent or gross carelessness for which we are responsible. 7. Claims to defects in quality are not given if the divergence from the agreed nature of the product is only minimal, if usability is only insignificantly impaired, in cases of natural depreciation or damages generated after passing of the risk as a result of faulty or negligent treatment, excessive exposure, unsuitable operating media or because of specific outer impact that was not to be expected given the contract, as well as in cases of non-reproducible software errors. If amendments or repair work is carried out improperly by the Purchaser or by third parties, there will be no claims to the defects resulting or the effects thereof. The same will apply to a lack of compliance with our instructions on handling and other instructions and if maintenance is not carried out properly 8. Claims of the Purchaser to a refund of the expenses incurred for the purpose of remedy, such as costs of transport, travel, labour and materials will be ruled out, when such expenses increase because the item delivered was brought to a destination other than the Purchaser’s branch premises, unless said relocation is in accordance with the intended use of the item. 9. Legal claims to recourse against us on the part of the Purchaser will only be given if the Purchaser has entered into no agreement with his customer in excess of those claims to defects regulated by the law. 10. Claims to compensation for damages will be governed by Section 9. Any fartherreaching claims to quality defects or others than those governed in this Section or in Section 9 will be ruled out. § 9 Industrial Property Rights and Copyrights, Defects of Title Unless otherwise agreed, we undertake to only effect delivery free from proprietary rights and third party copyrights (referred to in the following as industrial property rights) in the country of the delivery destination. In the event a third party files justified claims against the Purchaser for a breach of industrial property rights derived from deliveries we effected that are being used as contracted, we will be liable towards the Purchaser for the period of time specified in Section 8.2 as follows: 1. At our discretion and at our own expense, we will either procure a licence for the deliveries in question, alter them so that there is no breach of industrial property rights or we will provide a substitute. Should this not prove possible at appropriate conditions, the Purchaser will be entitled to the rights of cancellation or reduction as laid down by the law. The Purchaser will only be able to call for the reimbursement of fruitless expenditure if we are to blame for wilful intent or gross negligence. Our commitment to provide compensation for damages is governed by Section 10. 2. The above commitments will only be given if the Purchaser has given us immediate, written notification of the claims asserted by the third party, does not recognise any breach of rights and if we retain the right to initiate defence measures and negotiate a settlement. If the Purchaser ceases to use the item delivered in order to reduce damages or for other good cause, the Purchaser undertakes to inform the third party that this discontinuation of use does not embody any acknowledgement of a breach of industrial property rights. 3. Claims of the Purchaser will be ruled out if the Purchaser is responsible for the breach of industrial property rights. 4. Any claims of the Purchaser will also be ruled out if the breach of industrial property rights was derived from specific specifications of the Purchaser, from an application that we could not foresee or from the item delivered being altered by the Purchaser or used in combination with products that we have not delivered. 5. In the case of breaches of industrial property rights, the provisions of Sections 8.4, 8.5 and 8.9 will apply appropriately to the claims of the Purchaser governed by Section 13. 6. Any farther-reaching claims to defects of title of the Purchaser or claims other than those governed by the present Section 9 against us or our vicarious agents will be ruled out. § 10 Overall Liability 1. Claims of the Purchaser to compensation for damages – irrespective of the legal nature of the claim asserted – will be ruled out. 2. The exceptions are: a) Damages due to the violation of major contractual duties (cardinal duties). However, in the case of simple negligence, liability for damages will be restricted to foreseeable, typically occurring damages. b) Damages derived from injury to life and limb if we are responsibility for the breach of duty. c) Damages attributable to wilfully intentional or negligent violations, said breach of duty on the part of our legal representatives or vicarious agents being of equal status to any breaches of duty on our part. d) Claim to damages for impossibility or inability. 3. Any alteration of the onus of proof to the detriment of the Purchaser does not relate to the above provisions. 4. Liability subject to the Product Liability Act remains unaffected hereby. 5. Where liability for compensation is ruled out or restricted in our respect, this will also apply to the personal liability for damages of our employees, our trade representatives and our vicarious agents. § 11 Duties to Involvement of the Purchaser 1. The involvement of the Purchaser that has been agreed to explicitly or implicitly in the contract will be subject to no specific remuneration, unless otherwise explicitly agreed. 2. The Purchaser undertakes to inform us in good time of all facts, which indicate that stocks and products we have made available in the light of our notified production capacities cannot be used or not be used in full. Where stock remains, in the case of a premature change to his planning, the Purchaser will take over the remainder and any costs of destruction that might be incurred. This will also apply to products for which we have had to place orders for minimum quantities from our own suppliers, providing we previously advised the customer thereof. 3. The Purchaser guarantees that the products delivered by him for reworking are suitable for the purpose. We do not undertake to check the products delivered by the Purchaser for their quality and aptitude for reworking. In ongoing business relations and whenever an item for reworking has been initially checked, tested and released, the Purchaser undertakes to inform us in writing of each and every product amendment without actually being requested to do so. When items are being reworked, after every change in production conditions on his premises, in particularly when substituting tooling, machinery or introducing new production processes, the Purchaser also undertakes to examine the item to be processed by us for any divergence and alteration and to notify us in writing of any such divergence and alteration. 4. Instructions from our Purchaser, the selection of material or other specifications laid down by the Purchaser do not oblige us to check them for accuracy. 5. The Purchaser will hence check all instructions it issues as well as the quality of the material specified to us or made available to us for compliance with the law and technical regulations. 6. Should the Purchaser default in terms of its duties to provide or to become involved, we will be entitled to the rights stipulated by law. 7. In any case, goods may only be returned subject to the explicit consent of the Deliverer. Their return will be free-house and details of the order number and delivery date will be given as well as the original delivery packaging. The goods will be in their original condition, i.e. in an undamaged state. For the handling of a return, we charge 20% of the value of the goods, at least, however, 50.00 € plus value added tax. In individual circumstances, the Deliverer retains the right to charge the Orderer a higher sum based on evidence. § 12 Place of Performance and Jurisdiction/ Other 1. The place of performance and payment will be the registered office of our company in Sontheim/Brenz. 2. Exclusively the laws of the Federal Republic of Germany will govern the present contractual relations. The application of the United Nations Convention dated 11.04.80 on Contracts for the International Sale of Goods (CISG – “Wiener Kaufrecht”) is ruled out. 3. For all disputes derived from contractual relations, if the Orderer is a registered businessperson, a legal entity under public law or a separate estate under public law, legal action will be filed with the court of law with jurisdiction for our registered office. We will also be entitled to file legal action at the location of the registered seat of the Orderer. 4. Should any one condition of our General Terms of Sale and Delivery be void for any reason whatsoever, the validity of the remaining provisions will not be affected hereby. 5. We will save your data in accordance with Section 23 BDSG [Federal Data Protection Act]. RÖHM GmbH D–89565 Sontheim/Brenz Revised: September 2013
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