Terms & Conditions
GENERAL CONDITIONS OF SALE IN EUROPE
The following general conditions of sale shall govern any and all supplies of any products sold by Rockmore International GmbH in Europe starting from 1st May 2016 (hereinafter respectively the “general conditions”, the “supplies”, the “products” and “Rockmore”), in execution of any orders issued by business partners, including any orders submitted electronically (hereinafter respectively “orders”, “purchaser” and “customer”). Any and all deliveries and services are made exclusively on the basis of the terms stated below. Other terms by the customer shall not apply, even if Rockmore has knowledge of them and makes the delivery without reservations. Amendments and supplements to the general conditions need to be done in writing.
1. Order Execution and Supplies
Rockmore shall have complete discretion, which will not be exercised in a discriminatory way, to accept in whole or in part, or not to accept at all, any orders issued by customers. Any acceptance by Rockmore of any orders shall always be deemed to be made subject to Rockmore’s own affirmative specific written agreement with respect to quantities and delivery terms. Without prejudice to the foregoing, Rockmore will fill the orders as soon as possible, subject to its organizational and commercial commitments and restrictions. In no event, Rockmore shall be liable for any reductions or shortfalls in the quantities supplied, for any delay in the supplies, or for any divisions of the supplies in various deliveries, all of which customer hereby accepts.
a) Any and all offers made by Rockmore are subject to confirmation if nothing is stated to the contrary in the order confirmation or Rockmore has not explicitly declared something to the contrary in writing. A contract shall only come into force if Rockmore has confirmed an order in writing or execute the order. Customers may not cancel any orders, revise quantities, deviate from specifications or shipping schedules unless approved by Rockmore within 15 days of order date.
b) Any and all information included in the brochures and catalogs such as illustrations, drawings, weight and dimension details are approximate values typical in the industry providing they have not been explicitly described as binding.
2. Prices
The prices of the products (which Rockmore may modify at any time until acceptance of the relevant order) shall be those set forth on the price list in force at the time of receipt of the relevant order, unless any price discounts (in cash or by supplies of other products) may apply in cases where Rockmore may have so agreed from time to time.
a) Prices are valid ex works Judenburg subject to additions for packaging, freight, postage, insurance etc. and respective VAT.
b) If order-related costs change significantly after contract conclusion, the customer and Rockmore will agree on an adaptation.
3. Payment
a) The payment of invoices that Rockmore will issue with respect to the products must be made without delay by the payment date indicated on the relevant invoice or in any other commercial document issued by Rockmore.
b) The customer is only entitled to retain or set off payments due to any counter claims if undisputed or legally ascertained payment claims exist.
c) If Rockmore has delivered partially defective goods, in this case the customer is nevertheless obliged to make the payment for the undisputed defect-free goods, apart from if the partial delivery is of no interest to him.
d) In case of payment default Rockmore is entitled to stop the fulfillment of its obligations after written notification until the receipt of the payments. After an appropriate deadline has been set Rockmore is then entitled in this case to withdraw from the contract and/or from fulfillment of pending orders even if already accepted.
e) Any invoice unpaid in due term will become subject to default interest for late payment, automatically and without prior formal notice, calculated on the interest rate applied by the European Central Bank to its most recent refinancing operation plus 9 percentage points.
4. Trademark
The fact that Rockmore makes supplies to customer, even if pursuant to an ongoing or periodic contractual relationship, shall not confer upon customer any rights with respect to the use any form of the “Rockmore” trademarks, owned by Rockmore International, Inc. or Rockmore International GmbH unless Rockmore has given a specific written authorization. Rockmore retains the ownership and copyrights to illustrations, brochures, calculations and other documents; they may not be made accessible to third parties. This particularly applies to such written documents which are described as “confidential”; the customer requires Rockmore’s explicit written consent before forwarding them to third parties.
5. Delivery dates
a) Delivery dates are notified in the order confirmation and subject to the availability of external shipment companies. If nothing has been agreed to the contrary or nothing to the contrary results from the contractual relationship, the delivery dates notified by Rockmore are always nonbinding.
b) Agreed delivery deadlines and dates are extended resp. postponed regardless of Rockmore’s rights from the default of the purchaser by the period in which the customer is in arrears with his obligations. If the customer has a delay in acceptance or if he culpably breaches other obligations to cooperate, Rockmore is entitled in this case to demand compensation for the losses Rockmore suffers, including any additional expenses. In this case the risk of accidental loss or accidental deterioration of the product passes to the customer at the time in which he finds himself in a delay in acceptance.
6. Shipment
a) If nothing has been agreed in writing to the contrary, the applicable delivery clause is “ex works” (Incoterms 2010). This also applies if Rockmore has committed to assume the transport costs.
b) Rockmore will only cover delivery through transport insurance upon the explicit request of the customer; the costs incurred in this respect shall be borne by the customer.
c) Goods ready for dispatch are to be taken over immediately, otherwise Rockmore is entitled to dispatch them at its own discretion or to store them at standard shipping agent costs and at the customer’s risk; Rockmore is also entitled to perform the latter if the dispatch Rockmore has assumed cannot be performed through no fault of Rockmore. The goods are considered delivered one week after the storage period begins, at the latest.
d) For lack of any special instructions the choice of the means of transport and the transport route will be done at Rockmore’s discretion.
e) The risk passes to the purchaser upon the handover of the goods to the rail company, the shipping agent or the freight carrier, however at the latest upon leaving the works or warehouse. This also applies even if Rockmore has assumed the delivery.
f) The customer, or any person designated by the customer to receive the products, must check the products immediately after delivery and raise any claim, provided that only well-founded and detailed claims, which shall be duly reported in writing, shall be deemed acceptable. Within three (3) days following the delivery of the products, such claims must be declared by registered letter otherwise the delivery shall be deemed to be accepted without faults and waiving any claims against Rockmore.
7. Retention of title
All delivered products remain Rockmore’s property (goods subject to reservation) until the fulfillment of all demands, in particular also the respective balance claims to which we are entitled through the business relationship. If the purchaser gets into payment arrears, Rockmore is entitled to demand the return of the delivered goods. The costs for this shall be borne by the customer.
8. Liability for material defects
a) Rockmore may be liable for the perfect manufacturing of the products Rockmore delivers.
b) Rockmore may not be liable for merely insignificant deviations to the agreed features, in the case of an only insignificant impairment of use as well as for faults arising through unsuitable or improper use, faulty assembly and usual wear and tear. If changes or repair work is carried out incorrectly by the customer Rockmore shall likewise not be liable for this and the consequences resulting from this.
c) The customer must immediately after receipt of the products at the destination lodge a written complaint about hidden faults immediately after discovering the error.
d) Rockmore may be given the opportunity to determine the fault complained about. In urgent cases of a risk to operational safety or to avert disproportionately great damage to the customer, Rockmore is obliged to determine the fault complained about immediately. Products complained about are to be returned to Rockmore immediately upon request. If the customer does not meet with these obligations or performs changes to the products already complained about without our consent, he shall lose all rights in terms of material defects.
e) In the case of a justified, timely complaint, Rockmore will improve the goods complained about as Rockmore will see fit or deliver a perfect replacement (supplementary performance).
f) If Rockmore does not meet with its warranty obligations or not within an appropriate period of time or if the supplementary performance is initially not successful, in this case the customer may set a final deadline in writing within which Rockmore is obliged to meet with its obligations. A deadline does not need to be set if it would be unacceptable for the customer. After the unsuccessful expiry of this deadline, the customer may at his own discretion demand a reduction in the price, withdraw from the contract or carry out necessary subsequent performance himself or have it done by a third party at Rockmore’s expense and risk. If the subsequent performance was successfully performed by the customer or a third party, all claims by the customer are in this case settled upon the reimbursement of the necessary costs he has incurred.
g) The proof of a fault is incumbent on the customer.
9. Modifications of the General Conditions
Rockmore may, without any restriction, modify, in whole or in part, these general conditions by giving the relevant communication to the customer. The new general conditions shall enter into force fifteen (15) days after receipt by the customer of the relevant communication. In such event the customer shall have the option to cancel any pending orders by a communication that must be received by Rockmore within fifteen (15) days following the receipt by the purchaser of the new general conditions.
10. Force Majeure
Rockmore shall not be under any liability for any failure to perform any of its obligations as a result of force majeure. Following written notification by Rockmore to the customer of such case, Rockmore shall be allowed a reasonable extension of time for the performance of its obligations or withdraw fully or in part from the contract because of the part of the contract not met.
11. General liability restriction
a) If nothing is stated to the contrary in the following, other and further reaching claims by the customer against Rockmore, regardless of for which legal reason, in particular due to a breach of the obligations from the contractual obligation and unauthorized acts are excluded.
b) This liability restriction does not apply if there is a mandatory liability, e.g. according to the Product Liability Act, in the case of intent, gross negligence by the legal representatives or executives as well as in the case of a culpable breach of essential contractual obligations. Rockmore may only be liable in the case of a culpable breach of essential contractual obligations, apart from in cases of intent or gross negligence by our legal representatives or executives, for the typical contractual, reasonably foreseeable damage. It also does not apply to damages from the injury to life, body and health and in the case of a lack of guaranteed quality if and to the extent the guarantee intends in particular to insure the customer against damages which have not occurred to the delivered goods themselves.
c) If Rockmore’s liability is excluded or restricted, this also applies to the personal liability of employees, workers, staff, legal representatives and vicarious agents.
d) Damage claims and claims for defective goods to which the customer is entitled against Rockmore become statute-barred one year after delivery of the goods to the customer. In the case of damage claims according to the Product Liability Act the statutory statute of limitations regulations apply. The statutory statute of limitation regulations also apply in the case of intentional and grossly negligent breaches of duty.
12. Miscellaneous
a) Rockmore shall be entitled to assign – in whole or in part – the orders to other companies of the Rockmore Group or to third parties in connection with any merger, consolidation, or sale of substantially all of Rockmore’s assets or stock to which the orders relate. Customer shall not be entitled to assign the orders to third parties, nor to sub-lease (as a whole or in part) any rights to use the places (shops) in which customer sells tires to third parties, and their adjacent areas.
b) Should customer decide to assign its entire activity to a third party, customer shall give prior written communication to Rockmore, which reserves the right to cancel any orders still pending, without any claim or action for damages of whatsoever nature from customer’s side.
c) Any modification of the customer company structure shall be communicated to Rockmore, which shall be entitled to cancel any orders still pending, without any claim or action for damages of whatsoever nature from customer’s side.
d) If one or more of the provisions of the general conditions should be or become partially or completely invalid, the remainder of the general conditions shall remain entirely valid. The invalidated provision or provisions shall be replaced by the lawful provision which comes closest in an economic sense to the provision which was declared invalid.
e) These general conditions, as well as any supply and order relating thereto shall be governed in all respects by the Austrian law. Any disputes or controversies arising under or relating to the general conditions, their effectiveness, validity, execution, interpretation, cancellation or termination, as well as any relationship with the supplies and/or orders relating thereto, shall be resolved under the exclusive jurisdiction of the Bezirksgericht Leoben (Austria).
The application of the Vienna United Nations Convention for contracts on the International Sale of Goods (11th April 1980) is expressly excluded.