Conditions of Sale (24.06.2015)
- Our deliveries, services and quotations shall be carried out expressly on the basis of the following conditions. These shall also apply to all future business relations even if agreement to such is not expressly repeated. These conditions shall be deemed to have been accepted at the latest upon taking delivery of the goods or services. Counter-confirmations on the part of the Buyer referring to his terms of business and the Buyer’s own terms of business are hereby contradicted. Any deviations from these conditions shall only be effective if such are confirmed by us in written form.
- We point out that any data concerning the Buyer and business transacted with him shall be processed by us within the meaning of the German Data Protection Act.
II. Quotations and Conclusion of Contract
- Unless otherwise expressly stated, our quotations shall be without obligation. Samples and specimens shall be for guidance only and be without any commitment. Sales contracts and agreements shall only become binding on the basis of our written order confirmation or through our delivery, with our invoice in the latter case substituting the order confirmation.
- In placing orders the often used expression "as previously supplied" shall in all cases refer to design only and not to price. The only acceptable product description shall be the RAUMEDIC article name. Additional references to the Buyer’s article names shall not be binding.
- Any technical advice, verbal or written, provided by us in respect of application shall not be binding – even in relation to any property rights of third parties – and shall not release the Buyer from examining our products with regard to their suitability for the processes and purposes for which he intends to use them.
- Unless otherwise agreed, our prices shall be understood to mean ex works or warehouse and shall not include packaging, carriage or value added tax at the rate applicable on the day of delivery.
- Unless otherwise expressly stated, prices shall be given without obligation and based on current cost factors. Should there be any changes in these cost factors before the date of delivery, e.g. due to price increases for raw materials, wage increases or energy price rises, we shall reserve the right to increase or reduce prices according to such changes in cost factors on giving notice to the Buyer. We shall give the Buyer notice of such a price change in text form at least four weeks in advance. In the event of a price increase the Buyer shall have a right of termination on the date on which the price increase comes into effect.
- Orders for which no prices have been agreed shall be invoiced at the prices that are valid on the day of delivery.
- Goods which are produced on Buyer’s demand are subject to a minimum order value of EUR 1,000 net.
- Unless otherwise expressly agreed, the selling prices as well as all quotations and calculations shall be in EUR.
IV. Terms of Payment
- Unless different terms of payment have been agreed upon by separate contract, the following shall apply; 2 % discount on the value of goods (excluding the costs of packaging, carriage and similar costs) for payments within 10 days after invoice date; payment without deduction within 30 days after invoice date, unless different terms of payment are indicated in price lists for special product ranges. The afore-mentioned discount will only be granted on the condition that all payments in respect of earlier shipments have been discharged in full. In contrast to the general stipulation above, capital goods and tools are due without deduction immediately after invoice date. Moreover, no discount shall be granted on orders for goods with a net value below EUR 500. Payment must be rendered irrespective of any notification of defects. The place of performance in respect of payment shall be Münchberg.
- Unless otherwise agreed in writing, it shall be admissible to retain or set off payments only if the Buyer's counter claim is undisputed or found to be legally valid.
- The agreed periods allowed for payment are binding on the Buyer. Default shall occur without prior request for payment if the period allowed for payment is exceeded. Default shall also occur if the Buyer does not pay after having received a reminder following the due date of the purchase price.
- Bills and cheques will only be accepted for collection with a view to payment, whereby we shall not be liable for due presentation and protest. In cases where bills are accepted, discount and any charges incurred shall be invoiced; acceptance shall be subject to the right at any time to demand cash payment against return of the documents. If payment is made by cheque, it shall only be possible to deduct cash discount if the cheque reaches us within the specified time. In the event of bills being accepted no cash discount will be granted.
- In the event of default of payment, all current accounts and the sums of all bills shall immediately become due and enforceable. It the terms of payment are not observed or in the event of circumstances occurring that are capable of impairing the credit worthiness of the Buyer, we shall be entitled to render immediately payable our entire receivables, regardless of the term of any bill discounted and not yet payable. Furthermore, we shall be entitled to effect any outstanding shipments only against advance payment or the provision of security. If advance payments are not made or security not provided even after setting an appropriate period, we shall be entitled to withdraw from the contract in respect of any services or deliveries still outstanding, with the result that all claims shall expire on the part of Buyer in relation to those shipments not yet effected.
- We shall be entitled to set off all of our receivables from the Buyer against all claims against us by the Buyer on the grounds of delivery or other causes in law. This shall also apply to receivables that are not yet due to us.
V. Retention of Title and Other Securities
- We shall retain the right of title to any goods until such time as full payment is received for all accounts receivable from the Buyer from the business relationship.
- Goods under retention of title and supplied by us shall always be processed and converted to the exclusion of any acquisition of title under Section 950 of the German Civil Code on our behalf but without incurring any commitment on our part. The goods processed shall serve as our security only in the amount of the value of the goods under retention of title. In the event of any processing by the Buyer with goods not belonging to us, we shall have the right of co-title to the new product in the ratio of the value of goods supplied by us (invoiced value) with the result that this new product is then subject to retention of title within the meaning of these conditions.
- The Buyer shall be entitled to process and to sell the goods under retention of title in the normal course of business.
- The Buyer shall hereby assign to us by way of security all receivables due to him, including balances receivable from current account agreements, any treatment, processing or incorporation of those goods supplied by us; this shall apply equally to claims of the Buyer arising from any other cause in law (insurance, tort etc.) in respect of the goods under retention of title. Assignment shall in each case be restricted to the value, as indicated in our invoices, of the goods delivered. Should the Buyer's customer have effectively excluded the assignment of receivables, the Buyer and ourselves shall, within our internal relationship, act as if the afore-mentioned receivables of any type assigned to us in advance have been effectively assigned to us. We shall be authorized by the Buyer to assert the amount receivable in his name for our account as soon as the Buyer is no longer entitled, in accordance with the arrangement set out below, to collect the amount receivable in his own name.
- We revocably authorize the Buyer to collect the receivables assigned to us for own account and in his name. As soon as the Buyer fails to meet any obligation to us or any circumstance specified in Section IV paragraph 6 arises, the Buyer shall, at our request, disclose the assignment and furnish us with the necessary information and documents. We shall also be entitled to notify the Buyer's debtors of the assignment directly and to demand payment from them.
- Once delivered, the goods must neither be pledged nor assigned by way of security without our consent. In the event of third parties' acts aimed at obtaining the goods under retention of title, the Buyer shall draw attention to our title, inform us without delay and provide us with any assistance that is necessary to safeguard our rights.
- In the event of the Buyer acting in breach of contract - in particular default in payment - we shall be entitled to assert our retention of title and to demand the immediate surrender of the goods under retention of title and, by ourselves or through agents, obtain their direct possession or, if necessary, to demand assignment of the Buyer's claims for the return of the goods from third parties. Asserting the retention of title shall not involve withdrawing from the contract.
- If the value of securities existing in our favour exceeds our receivables by a total of more than 10 %, we shall, at the Buyer's request, be obliged to release securities of our choice to that extent.
- The Buyer shall treat with care and adequately insure all goods under retention of title at replacement value against fire, water and theft, in particular. Any claims for damages against the insurers shall hereby be assigned to us in the amount of the value of goods under retention of title.
VI. Periods of Delivery and Performance
- The place of performance in respect of deliveries shall be Münchberg or the seat of the plant or warehouse instructed to make the delivery. The periods of delivery and performance shall be met if, until such time as they expire, the item of delivery has left the plant or notice has been given that it is ready for dispatch or the service has been performed.
- The period of delivery and performance shall be extended by a reasonable amount of time in the event of force majeure, particularly measures being taken as the result of industrial action, in particular strikes and lock-outs, as well as the occurrence of unforeseen obstacles beyond our control insofar as such obstacles verifiably yield a significant influence on the production or delivery of the item of sale or on the performance of the service requested. This shall also apply if such circumstances occur at our supplier or if we ourselves are inadequately supplied with primary material through no fault of our own or if such circumstances arise while we are in default. In the event of the time limit being exceeded for a prolonged period, we and - after first granting a period of grace - the Buyer shall be entitled to withdraw from the contract. In important cases, we shall notify the Buyer at the earliest possible moment of the time at which such obstacles commence and terminate.
- The Buyer can annul the contract without giving notice if it finally proves impossible for us to perform all contractual services before passage of risk. Furthermore, the Buyer can annul the contract if it proves impossible for us to fulfil part of an order and he has a justified interest in refusing partial delivery. If this is not the case, the Buyer must pay that share of the contract price which covers the partial delivery. The same applies to inability on our part. Section IX applies to other eventualities. If the impossibility or inability occurs during an acceptance delay, or if the Buyer bears the sole responsibility or a decidedly preponderant share of it, he remains obliged to render payment.
- If we fail to deliver on time and such results in the Buyer suffering damage, the Buyer is entitled to demand compensation for default in the form of a lump sum. For each full week of delay, this sum will amount to 0.5%, however in total no more than 5% of the value of that part of the overall consignment which, as a result of the delay, cannot be used punctually or in conformity with the contract. If, after the due date and in consideration of the exceptions given in law, the Buyer sets us a reasonable deadline for delivery and this deadline is not met, the Buyer is entitled to withdraw from the contract within the terms provided for in law. Further claims arising from delayed delivery are governed exclusively in accordance with SecGoods notified as being ready for shipment shall be called off by the Buyer immediately after expiry of delivery time; otherwise we shall have the option to either forward the goods or store the goods at our discretion on the Buyer's account and the Buyer's risk. The same shall apply if dispatch cannot be effected by us for reasons beyond our control. Upon notification that goods are ready for shipment, the goods shall be deemed to have been supplied and can be invoiced.
- The mode of forwarding, means of shipment, transport route as well as the nature and scope of necessary protective media, the choice of forwarder or carrier as well as packaging shall be left to our preference. This will be done at our discretion and with due care and attention. In this eventuality our liability shall be determined exclusively in accordance with Section IX of these Conditions. The goods shall only be insured at the express request of the Buyer and at his expense.
- Partial deliveries shall be admissible provided that this is not unreasonable for the Buyer in normal circumstances – especially if the Buyer is not interested in part-performance or if only a minor degree of performance has not (yet) been rendered. This shall not affect the Buyer’s contractual or statutory rights.
VII. Passing of Risk
Unless anything to the contrary is agreed in writing the risk shall at all events pass to the Buyer when the goods are transferred to the forwarder or carrier, however at the latest when they leave the plant or warehouse.
VIII. Specifications and Claims Based on Defects
The quality of goods to be supplied shall be governed exclusively by the performance features expressly agreed in writing (e.g. specifications, technical conditions of delivery, graphics, labeling and other details). We do not give any guarantee for a particular intended purpose or suitability, for duration of use or durability after the passage of risk that extends beyond this agreed quality unless this has also been expressly agreed in writing; the Buyer alone shall otherwise be responsible for the risk of suitability and usage. Data concerning goods (e.g. product information, electronic media or details on labels) is based on our general knowledge and experience and is given only as guidance or identification. Neither product details nor expressly agreed performance features / intended purposes shall release the Buyer from his duty to test the suitability of goods for their proposed purpose.
We reserve the right to make normal commercial or technically unavoidable deviations from physical and chemical quantities, including turning out, colour, formulae, processes and the use of raw materials, as well as reasonable quantitative changes to quantities ordered.
Claims based on defects must be promptly investigated and immediately notified to us in writing no later than 10 days after the arrival of the goods. In the event of concealed defects written notice must be given no later than 10 days after defects are discovered. Otherwise deliveries shall be deemed approved in that respect. The date of receipt of such notice shall be the decisive date for the purpose of compliance with the deadline. In the event of materially and legally defective goods being delivered, we give the following guarantees, while reserving Section IX and barring any further claims:
- Cost-free repairs or, at our option, substitute deliveries of all parts or services which prove materially defective within the expiry period, insofar as the cause pre-existed the passage of risk.
- If a defect gives rise to a complaint, the Buyer may withhold a share of payment equivalent to the material defect. The Buyer can only withhold payment if notice of the defect is given on time and there is no doubt as to the veracity of the notice of defect. If the complaint is not notified on time or proves baseless, we are entitled to reclaim our ensuing costs from the Buyer.
- At the outset, we are given an opportunity to order a substitute delivery within a reasonable period. If the substitute delivery fails, the Buyer – irrespective of any damage claims under the provisions of Section IX – can cancel the contract or reduce his payment.
- Claims for defectiveness are not admissible if the goods vary only inconsiderably from their agreed characteristics, if their usefulness is only inconsiderably impaired, or if they have suffered natural wear or damage after passage of risk due to faulty or negligent treatment, the imposition of excessive strain or the use of unsuitable operating aids.
- Claims by the Buyer to recover expenses necessitated by substitute delivery, especially transport, travel, labour and material costs, are inadmissible to the extent that the expenses have been increased by a subsequent agreed transferal of delivered goods from the Buyer's business establishment to another place, unless the transferal is connected to the intended use of the goods.
- Claims of recourse made against us by the Buyer under section 478 et seq. German Civil Code (entrepreneur's recourse), are recognized only insofar as no agreement exceeding the statutory provisions for claims concerning defects exists between the Buyer and his customer. Paragraph 5 likewise applies correspondingly to the extent of claims of recourse against us under section 478, paragraph 2, German Civil Code.
- We are not, in principle, aware of the actual place of installation or use of our goods. It is therefore for the Buyer himself to check whether the delivery or use of goods might constitute a breach of intellectual property rights or other infringements of the law at the place of delivery or use. We shall inform the Buyer of any rights of which we are aware.
- Subject to Section IX, we do not recognize claims for breach of intellectual property rights or other infringements of the law as a result of manufacture or the sale of our goods unless, on using the goods as per the contract, intellectual property rights applicable in the Federal Republic of Germany and published on the date of our delivery have been infringed. Subject to Section IX, however, no such claims shall be recognized where we have manufactured goods based on drawings, models or other specifications or details supplied by the Buyer. In that eventuality our Buyer shall be liable for infringements of the law that have already taken place or that take place in the future. He shall be obliged to immediately inform us of any conceivable or asserted infringements of the law of which he becomes aware and to indemnify us from third-party claims and all losses and expenses incurred.
- If a third party restrains us from manufacturing or delivering goods due to protective rights claimed by him, we are entitled – without checking the legal position – to interrupt the work pending legal clarification by the Buyer and the third party. If the delay is such that we cannot reasonably be expected to keep honouring the contract, we shall be entitled to annul it.
- If the use of the delivered object causes industrial property rights or copyrights to be violated, we will in principle and at our expense – where there is a legal defect under paragraphs 7-9 – procure for the Buyer the right to continue using it, or ensure that the delivered object no longer violates the rights concerned by modifying it in a manner which the Buyer can reasonably be expected to accept.
- If this cannot be done on commercially reasonable terms or within a reasonable period, the Buyer will be entitled to annul the contract. Under the above-mentioned conditions, we too are entitled to annul the contract.
- We will furthermore indemnify the Buyer from uncontested or legally confirmed claims by the relevant holder of protective rights.
- The obligations mentioned above are – subject to Section IX, - absolute in the event of industrial property or copyright violations. They also exist only – again subject to Section IX – if
- the Buyer has informed us without delay of registered claims concerning industrial property or copyright violations,
- the Buyer gives us reasonable support in countering the submitted claims or enables us to carry out the modifications as outlined in paragraph 10,
- all legal countermeasures, including out-of-court settlements, remain reserved to us,
- the legal defect does not arise from an instruction or special provision by the Buyer and
- the Buyer himself did not cause the violation of protective rights by wilfully altering the delivered object, using it in a contractually unforeseen manner or otherwise incurring responsibility for the violation.
IX. Liability in Damages
- Damage and cost recovery claims on the part of the Buyer, for whatever cause, especially for violations of contractual duties concerning obligations and in tort, are inadmissible unless liability is incurred under paragraph 2 or paragraph 3.
- We are liable for damage – on whatever legal grounds – not, in particular, for breach of ancillary obligations, lack of commercial success, loss of profits, indirect loss, consequential loss following from defects and losses from claims brought against the Buyer by third parties but only in the case of
a) wilful or grossly negligent breach of duty by ourselves, our corporate units, executive employees, staff and other agents; in the case of gross negligence only, provided that no other mandatory liability is incurred under this paragraph 2, liability in damages shall be limited to reasonably foreseeable loss typical under the contract.
b) culpable injury to life, body, health; this also applies to mandatory liability under the Product Liability Act,
c) defects that we have maliciously concealed or guaranteed to be non-existent, or
d) If key contractual obligations are culpably violated; in this case, provided that no other mandatory liability is incurred under this paragraph 2, our liability is limited to damage typical under the contract and reasonably foreseeable. A key contractual obligation for this purpose means one the fulfilment of which is essential to the proper performance of the contract and on compliance with which the Buyer is generally entitled to rely.
- Statutory rules on the onus of proof remain unaffected by the above rules.
All rights of the Buyer to submit claims – for whatever cause in law – expire after 12 months. The statutorily prescribed expiry periods apply to damage compensation claims under Section IX, paragraph 2 and to all cases under Section 478 et seq. of the German Civil Code. They also apply to defective buildings or delivered items which, having been put to their customary use in construction, are the cause of the building's defectiveness.
XI. Copyright and Industrial Property Rights, Molds and Tools
- We reserve all rights of ownership and copyrights to drawing, samples and similar information. They may not be made available to third parties without our prior consent.
- We shall, under all circumstances, claim the exclusive right of manufacture for those articles relating to designs, drawings and tools produced by us. Unless expressly permitted, it shall neither be possible to pass on or duplicate these documents and tools nor shall it be permitted to utilize or disclose the contents of such documents. Contravention hereof shall give rise to a claim for damages. We reserve all rights in the event of a patent being granted and for registrations of design. The Buyer shall guarantee that the manufacture and supply of articles made to data provided by the Buyer do not violate the property rights of any third party. Molds, templates and other devices shall remain our sole property, even in cases where the Buyer is invoiced with costs or expenses in respect thereof.
- Insofar as we manufacture or procure any models, molds, forms, tooling or any forming devices on behalf of the Buyer, we shall separately invoice part of the expense involved. As these partial costs do not cover the expenses accruing to us from design, construction, running-in, know-how and maintenance work, such molds, forms as well as tooling and other auxiliary devices shall remain our sole property. The same shall apply to modifications or replacement models and tooling as also to subsequent molds. The costs of tooling, molds etc. shall be payable, plus statutory value added tax, upon receipt of invoice. We shall only be obliged to retain such articles for a period of 3 years following the date of the last shipment.
XII. Jurisdiction and Other Matters
- The agreed place of jurisdiction for all mutual claims and obligations, including disputes arising from bills and cheques receivable (irrespective of place of payment), provided that the Buyer is a trader, legal entity governed by public law or a special fund under public law, shall be Frankfurt am Main.
- If the contracting party suspends payment or if a petition is filed for insolvency proceedings against his assets or for out-of-court composition proceedings, then RAUMEDIC shall be entitled to withdraw from the contract for the part not fulfilled.
- German law shall be exclusively applicable. Application of the United Nations Convention of 11.4.1980 regarding contracts on the international purchase of goods shall be excluded.