General Terms - Conditions of Sale
(as of January 12, 2023)
- Deliveries, Services and offers of RAUMEDIC shall be expressly based on the following Terms and Conditions. These shall also apply to all future business relations, even if they are not expressly agreed again. These Terms and Conditions shall be deemed accepted at the latest upon receipt of the goods or services. Counter-confirmations of the Purchaser with reference to its terms and conditions as well as the terms and conditions of the Purchaser itself shall hereby be contradicted. Deviations from these Terms and Conditions shall only be effective if these are confirmed by RAUMEDIC in writing.
- In accordance with the provisions of the European General Data Protection Regulation, the Purchaser shall be informed that RAUMEDIC processes the personal and company-related data required for the handling of the business relationship with the aid of electronic data processing.
- The Buyer recognizes the “Data Protection Guideline for Customers and Suppliers” – retrievable here – as part of this contract.
II. Offer and Conclusion of Agreement
- Any offers submitted to the Customer or published on a publicly accessible homepage by RAUMEDIC shall be subject to change and represent non-binding invitations (Invitatio ad offerendum) to the Customer to submit a binding offer to enter into a contractual relationship. Such offers shall be possible by Internet, letter, or e-mail. Contractual relationships shall only come into effect through RAUMEDIC’s written confirmation. The Customer’s acceptance of the offer by RAUMEDIC may only be made by an explicit and express subsequent declaration and sending of the invoice. This may be done in writing, by e-mail or in any other way.
- A description "as is" used by the Customer when placing the order shall in all cases only refer to the last corresponding version used, not to the price. Only the RAUMEDIC item description shall be decisive for the description of the Product. The additional presentation of Purchaser article descriptions shall be irrelevant.
- Technical application advice from RAUMEDIC in spoken and written form shall be non-binding – also with regard to any third-party property rights – and does not release the Purchaser from its own testing of the RAUMEDIC products for their suitability for the intended processes and purposes.
- Unless otherwise agreed, RAUMEDIC- prices shall be ex works or ex warehouse plus packaging and freight as well as the value added tax valid on the day of delivery.
- Unless expressly stated otherwise, prices are subject to change and based on the cost factors at the time of the price listing. If changes in the cost factors occur up to five working days before the goods are made available for shipment, in particular but not exclusively due to price increases for raw materials, labor costs, energy or logistics, RAUMEDIC reserves the right to increase or reduce the prices in accordance with the changes in the cost factors that have occurred by notifying the Purchaser. RAUMEDIC shall notify the Purchaser of any such price change in text form without undue delay; up to a deviation of <+/-15% from the original list price, the price change shall be deemed approved. In case of price change >+/-15%, the Purchaser shall be entitled to withdraw from the contract with regard to (partial) services not yet rendered.
- The RAUMEDIC- prices shall apply to orders for which no prices have been agreed upon or announced at the time of order confirmation.
- A minimum order value of 1,000 EUR net shall apply to goods which are manufactured at the Purchaser's request.
- The currency of all sales prices, as well as all offers and calculations shall be EUR, unless otherwise expressly agreed.
IV. Payment Conditions
- Unless otherwise agreed in individual contracts regarding the method of payment, the following shall apply: Within 30 days of the invoice date without deduction, unless other program-related payment conditions are available in price lists. In individual cases, a payment term of 60 days net against a surcharge of 5% may be agreed. In deviation from the above general regulation, the invoice for capital goods and tools shall be due for payment immediately after the invoice date and without deduction. Payment shall be made irrespective of any notices of defects. Place of performance for payments shall be Muenchberg.
- Unless otherwise agreed in writing, the retention of payments and offsetting shall only be possible if the Purchaser's counterclaim is undisputed or has been legally established.
- Payment terms according to IV.1 shall be binding for the Purchaser. If the payment deadline is exceeded, default shall occur without prior reminder.
- Payments shall be made on account of performance without cash payment to the account of the Company.
- In the event of late payment, all current invoices shall be due and enforceable immediately. In the event of non-compliance with the Payment Conditions or in the event of circumstances which are suitable to reduce the creditworthiness of the Purchaser, RAUMEDIC shall be entitled to demand immediate payment of all claims, irrespective of any deviating previous agreement. In addition, RAUMEDIC shall be entitled to carry out outstanding deliveries only against advance payment or provision of security. If advance payments or securities are not provided even after setting a reasonable deadline, then RAUMEDIC shall be entitled to withdraw from the contract with regard to (partial) services not yet provided, with the consequence that all claims of the Purchaser with regard to the (partial) services not yet provided expire.
- RAUMEDIC shall be entitled to set off all our claims against the Purchaser against all claims which the Purchaser may have against RAUMEDIC by delivery or on other legal grounds. This shall also apply to claims of RAUMEDIC which are not yet due.
V. Retention of Title and other Securities
- The goods shall remain RAUMEDIC’s property until all claims against the Purchaser arising from the business relationship have been paid in full.
- Processing and transformation of goods subject to reservation of title supplied by RAUMEDIC shall always be carried out on behalf of RAUMEDIC to the exclusion of the acquisition of ownership in accordance with Sec. 950 BGB (German Civil Code), but without obligation for RAUMEDIC. The processed goods shall serve as security for RAUMEDIC only to the value of the reserved goods. In the event of processing with other goods not belonging to RAUMEDIC by the Purchaser, RAUMEDIC shall be entitled to co-ownership of the new item in proportion to the value (invoice value) with the consequence that this is now reserved goods in the sense of these Conditions.
- The Purchaser shall be entitled to process and sell the reserved goods in the ordinary course of business.
- The Purchaser shall hereby assign to RAUMEDIC by way of security all claims to which it is entitled, including balance claims from current account agreements, a processing or connection of the goods supplied by RAUMEDIC; this shall equally apply to claims of the Purchaser for other legal reasons (insurance, unauthorised action, etc.) with regard to the reserved goods. The assignment shall be limited in each case to the amount of the delivery value of the goods delivered according to RAUMEDIC invoices. If the Purchaser’s customer has effectively excluded the assignment of claims against itself, then the Purchaser and RAUMEDIC place themselves in the internal relationship as if the aforementioned claims, of whatever type, assigned to RAUMEDIC in advance, had been effectively assigned to RAUMEDIC. RAUMEDIC shall be authorised by the Purchaser to assert the claim in its name for the account of RAUMEDIC, as soon as the Purchaser is no longer entitled to collect the claim in its own name in accordance with the following regulation.
- RAUMEDIC shall revocably authorise the Purchaser to collect the claims assigned to RAUMEDIC for its account in its own name. As soon as the Purchaser does not fulfil an obligation to RAUMEDIC or a circumstance mentioned in number IV.6 occurs, the Purchaser shall, on request by RAUMEDIC, disclose the assignment and provide RAUMEDIC with the necessary information and documents. RAUMEDIC shall also be entitled to notify the Purchaser’s debtors directly of the assignment and to request them to make payment to RAUMEDIC.
- The delivered goods may not be pledged or transferred by way of security without RAUMEDIC’s consent. In the event of access by third parties to the reserved goods, the Purchaser shall draw attention to our ownership, inform RAUMEDIC immediately and provide RAUMEDIC with any assistance necessary to protect its rights.
- In the event of breach of contract by the Purchaser - in particular default of payment - RAUMEDIC shall be entitled to assert the retention of title and to demand immediate surrender of the reserved goods and to obtain direct possession of them for itself or through authorised representatives or, if necessary, to demand assignment of the Purchaser's claims for surrender against third parties. The assertion of the reservation of title shall not include the withdrawal from the contract.
- If the value of the existing securities for RAUMEDIC exceeds the claims of RAUMEDIC in total by more than 10%, then RAUMEDIC shall be obliged, at the Purchaser’s request, to release securities to this extent at the discretion of RAUMEDIC.
- The Purchaser shall treat the reserved goods with care and insure them sufficiently at replacement value, in particular against fire, water and theft. Claims against the insurance company arising from a case of damage shall already now be assigned to RAUMEDIC in the amount of the value of the reserved goods.
VI. Delivery Time, Delivery Delay, Packaging
- Place of performance for services shall be Muenchberg or the registered office of the factory or warehouse commissioned with the delivery. The delivery and performance deadlines shall be deemed to have been met if, by the time they expire, the delivered item has left the factory or readiness for dispatch has been notified or the service has been performed.
- The delivery and performance period shall be extended appropriately in the event of force majeure, in particular measures within the framework of industrial disputes, in particular strikes and lockouts, as well as in the event of the occurrence of unforeseen obstacles such as a pandemic, which lie outside the sphere of influence of RAUMEDIC, insofar as such obstacles can be proven to have a considerable influence on the completion or delivery of the delivery item or the performance of the service. This shall also apply if the circumstances occur with a pre-supplier of RAUMEDIC or in the case of a lack of supply of raw materials through no fault of RAUMEDIC, as well as if they occur during the delay of RAUMEDIC.
- If the deadline is exceeded for a longer period of time, RAUMEDIC and - after previously setting an appropriate period of grace in writing - the Purchaser shall be entitled to withdraw from the contract. RAUMEDIC shall inform the Purchaser without culpable hesitation of the beginning or occurrence and end or cessation of such obstacles as defined in Clause VI.2.
- The Purchaser may withdraw from the contract if RAUMEDIC is finally unable to provide the entire service before the transfer of risk. In addition, the Purchaser may withdraw from the contract with regard to (partial) performance not yet rendered, if the execution of part of the performance becomes impossible in the case of an order and it has a justified interest in refusing the partial performance. If this is not the case, the Purchaser shall pay the contract price attributable to the partial performance. The same shall apply in the case of inability on RAUMEDIC’s part. Clause IX shall apply in all other respects. If the impossibility or inability occurs during the delay in acceptance or if the Purchaser is solely or predominantly responsible for these circumstances, it shall remain obliged to counter-performance.
- If, in the case of a delay for which RAUMEDIC is responsible, the Purchaser shall set RAUMEDIC - taking into account the legal exceptions - an appropriate deadline for performance after the due date and this deadline is not met, the Purchaser shall be entitled within the framework of the legal regulations to withdraw from the contract with regard to the (partial) performance not yet provided. Further claims from delay in delivery shall be determined exclusively according to Clause IX of these Terms and Conditions.
- Goods notified as ready for dispatch shall be called off immediately after expiry of the delivery period; if this does not occur, RAUMEDIC shall be entitled to dispatch them at its own discretion or to store them at the expense and risk of the Purchaser; the same shall apply if dispatch cannot be carried out for reasons for which RAUMEDIC is not responsible. With notification of readiness for dispatch, the contractually owed obligation shall be deemed to have been fulfilled.
- The type of transport, the means of shipment, the transport route, as well as the type and extent of the required means of protection and selection of the forwarding agent or carrier, as well as the packaging, shall be left to RAUMEDIC’s choice. This shall be done at the discretion of RAUMEDIC and with due care and attention. Our liability in this case shall be determined exclusively in accordance with Clause IX of these Terms and Conditions. The goods shall only be insured at the express request of the Purchaser, and at its expense.
- Partial deliveries shall be permissible provided that they are not unreasonable for the Purchaser under normal circumstances, in particular if the Purchaser has no interest in a partial performance or if only a minor performance has not (yet) been rendered. This shall have no influence on the contractual or legal claims of the Purchaser.
- The delivery of the contractual products to Italy shall be carried out in compliance with the Italian regulations on packaging marking. The labeling shall comply with the requirements for transport to the Customer and full consumption or further processing at the Customer.
- In the event that the contractual products are repackaged and/or resold by the Customer in Italy or for the Italian market, the Customer shall be responsible for the correct labelling of the packaging. It shall indemnify RAUMEDIC against all costs, regulatory fines, etc. due to non-compliance with the labelling obligations and shall compensate RAUMEDIC for any resulting damage.
VII. Transfer of Risk
Unless otherwise agreed in writing, the risk shall in any case pass to the Purchaser upon handover to the forwarding agent or carrier, but no later than upon leaving the factory or warehouse.
VIII. Description of Performance, Claims for Defects
- The quality of the goods owed shall be based exclusively on the performance characteristics expressly agreed in writing (e.g. specifications, technical delivery conditions, drawings, markings, other information). RAUMEDIC shall only assume a warranty for a specific purpose or a specific suitability, period of use or durability after the transfer of risk, which goes beyond this quality agreement, if this is also expressly agreed in writing; otherwise the suitability and use risk shall lie exclusively with the Purchaser. Details of the goods (e.g. product information, electronic media or on labels) shall be based on RAUMEDIC's general experience and knowledge and only represent guide values or markings. Neither these product details nor expressly agreed performance characteristics/purposes of use shall release the Purchaser from testing the suitability for the intended use of the goods.
- RAUMEDIC shall reserve the right to customary or technically unavoidable deviations in physical and chemical quantities, including failure, colors, formulations, processes and the use of raw materials, as well as reasonable quantitative deviations from ordered quantities.
- The Purchaser shall be obligated to inspect the goods comprehensively immediately upon receipt, at the latest however ten (10) working days after receipt for their quality, condition and conformity with the order. Any claims for defects shall be made to RAUMEDIC immediately in writing and substantiated, but at the latest within a further five (5) working days. In the case of hidden defects, the written complaint shall also be made at the latest within 5 working days after discovery of the defect. Otherwise, the deliveries shall be deemed approved to that extent. The receipt of the notice of defect in due form shall be decisive for compliance with the time limit. Subject to Clause IX, RAUMEDIC shall provide a warranty for material defects and defects of title in the delivery as follows and under the exclusion of further claims:
- All those parts or services, which show a material defect within the limitation period, shall be repaired or delivered again free of charge at RAUMEDIC’s discretion, insofar as the cause of this already existed at the time of the transfer of risk.
- In the event of notices of defects, payments by the Purchaser may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The Purchaser may withhold payments only if a notice of defect is asserted in due time and there is no doubt as to its justification. If the notification of defects is not made in good time or is unjustified, RAUMEDIC shall be entitled to demand the expenses it has incurred from the Purchaser itself.
- Firstly, RAUMEDIC shall be granted the opportunity for subsequent performance within a reasonable period. If the subsequent performance fails, the Purchaser may - without prejudice to any claims for damages in accordance with Clause IX - withdraw from the contract or reduce the payment.
- Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive stress or unsuitable operating resources.
- Claims of the Purchaser for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded to the extent that expenses are increased because the subject-matter of the supplies has subsequently been brought, in accordance with the contract, to another location than the Purchaser's branch office, unless doing so complies with the intended use of the supplies.
- Recourse claims of the Purchaser against RAUMEDIC in accordance with Sec. 478 f. BGB (recourse of the entrepreneur) shall only exist insofar as the Purchaser has not reached an agreement with its customer which goes beyond the statutory claims for defects. Furthermore, No. 5 shall apply accordingly to the scope of the right of recourse against RAUMEDIC in accordance with Sec. 478 Para. 2 BGB.
- The actual place of application or use of the goods shall in principle not be known to RAUMEDIC. The Purchaser shall therefore be obliged to check for itself whether any infringements of industrial property rights or other legal infringements exist at the place of delivery or use through the delivery or application of the goods. RAUMEDIC shall point out to the Purchaser any rights known to it.
- RAUMEDIC - subject to Clause IX - shall only be subject to any claims for infringements of industrial property rights or other infringements of rights through the manufacture or through the sale of goods, insofar as and to the extent that such industrial property rights are infringed through the contractual use of RAUMEDIC goods, which are valid in the Federal Republic of Germany and are published at the time of delivery. However, no claims shall exist - subject to Clause IX - insofar as RAUMEDIC has manufactured the goods according to drawings, models or other descriptions or information provided by the Purchaser. In this case the Purchaser shall be liable for infringements of rights that have already occurred or are still occurring. It shall be obliged to inform RAUMEDIC immediately of possible or alleged infringements of industrial property rights of which it becomes aware and to indemnify RAUMEDIC against claims from third parties and all damages and expenses incurred.
- If RAUMEDIC is prohibited from production or delivery by a third party with reference to an industrial property right belonging to it, RAUMEDIC shall be entitled - without checking the legal situation - to stop the work until the legal situation has been clarified by the Purchaser and the third party. If the continuation of the order is no longer reasonable for RAUMEDIC due to the delay, RAUMEDIC shall be entitled to withdraw from the contract.
- If the use of the delivery item leads to the infringement of industrial property rights or copyrights, RAUMEDIC shall - insofar as a defect of title exists in accordance with Nos. 7-9 - in principle procure the right to further use for the Purchaser at its own expense or modify the delivery item in a manner that is reasonable for the Purchaser in such a way that the infringement of property rights no longer exists.
- If this is not possible under economically reasonable conditions or within a reasonable period, the Purchaser shall be entitled to withdraw from the contract. Under the stated conditions, RAUMEDIC shall also be entitled to withdraw from the contract.
- In addition, RAUMEDIC shall indemnify the Purchaser from undisputed or legally established claims of the relevant property right holders.
- Subject to Clause IX, the above obligations shall be conclusive in the event of infringement of industrial property rights or copyrights. They shall exist - also subject to Clause IX - additionally only if
- the Purchaser informs RAUMEDIC immediately of any asserted infringements of industrial property rights or copyrights,
- the Purchaser supports RAUMEDIC to a reasonable extent in the defense of the asserted claims or enables RAUMEDIC to carry out the modification measures in accordance with No. 10,
- RAUMEDIC reserves the right to all defensive measures, including out-of-court settlements,
- the defect of title is not based on an instruction or special specification of the Purchaser and
- the infringement of rights was not caused by the fact that the Purchaser modified the delivery item without authorisation or used it in a manner not in accordance with the contract or is otherwise responsible for the infringement of property rights.
IX. Liability in Damages
- Claims for damages and reimbursement of expenses of the Purchaser, irrespective of the reason, in particular due to breach of duties arising from the contractual obligation and from tort, shall be excluded, unless liability is assumed in accordance with No. 2, No. 3 and/or No. 4.
- RAUMEDIC shall only be liable for damages - for whatever legal reasons, in particular also not for breaches of secondary obligations, lack of economic success, loss of profit, indirect damages, consequential damages and damages from claims of third parties against the Purchaser - as follows
a) in the case of intentional or grossly negligent breach of duty on the part of RAUMEDIC, its bodies, senior employees, employees as well as other vicarious agents; in the case of only gross negligence and insofar as no other mandatory liability exists in accordance with this No. 2, the liability for damages shall be limited to the contractually typical, reasonably foreseeable damage,
b) in the event of culpable injury to life, limb or health; this shall also apply to mandatory liability under the Product Liability Act,
c) in the case of defects which RAUMEDIC has fraudulently concealed or whose absence RAUMEDIC has guaranteed, or
d) in the case of culpable breach of essential contractual obligations; in this case, the liability of RAUMEDIC shall be limited to the contract-typical, reasonably foreseeable damage, insofar as no other mandatory liability exists according to this No. 2. An essential contractual obligation in this sense is one whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the Purchaser may regularly rely.
- Insofar as legally permissible, in the case of liability for simple negligence, the obligation of RAUMEDIC to pay compensation for material damage and further financial losses resulting from this per case of damage and calendar year shall be limited to the net annual turnover related to the respective product, but at most to an amount of EUR 250,000.00, even if it concerns a breach of essential contractual obligations.
All claims of the Purchaser - for whatever legal reasons – shall be subject to a limitation period of 12 (twelve) months. The statutory periods shall apply to claims for damages under Sec. IX, No. 2 and in the cases of Sec. 478 f BGB. They shall also apply to defects of a building or to delivery items which have been used for a building in accordance with their customary use and have caused its defectiveness.
XI. Copyright and Industrial Property Rights, Moulds and Tools
- RAUMEDIC shall reserve all property rights and copyrights to drawings, samples and similar information; they may only be made accessible to third parties with the prior consent of RAUMEDIC.
- RAUMEDIC shall claim the right of exclusive production for designs, drawings and tools produced by RAUMEDIC in all cases for the corresponding articles. Passing on and copying of these documents and tools, exploitation and communication of their contents shall not be permitted, unless expressly granted. Any infringement shall result in the compensation for damages. All rights shall be reserved in the event of patents being granted and for utility model registrations. The Purchaser shall guarantee that the production and delivery of items manufactured according to its specifications do not infringe the industrial property rights of third parties. Moulds, templates and other devices shall remain the sole property of RAUMEDIC, even if costs are charged to the Purchaser.
- Insofar as RAUMEDIC produces or procures models, moulds, tools and other mould equipment on behalf of the Purchaser, RAUMEDIC shall invoice a part of the costs for this separately. Since these proportionate costs do not cover RAUMEDIC's expenses for design, construction, running-in or know-how and maintenance, the models and moulds as well as tools including accessories shall remain the property of RAUMEDIC. The same shall apply to modifications, as well as replacement models and tools and subsequent moulds. Tooling, mould costs, etc. plus the statutory value added tax shall be payable with the invoice. If 3 (three) years have elapsed since the last delivery of the manufactured articles manufactured, RAUMEDIC shall not be obliged to further storage.
XII. Place of Jurisdiction and Miscellaneous
- This contract shall be subject to the law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 shall be excluded.
- If the contractual partner ceases payment or if insolvency proceedings are applied for over its assets or extrajudicial composition proceedings are applied for, RAUMEDIC shall be entitled to withdraw from the contract for the non-fulfilled part.
- The place of jurisdiction for all claims and liabilities of the parties, as far as permissible, shall be the district court of Munich I.