RAUMEDIC Inc. – Conditions of Sale

Conditions of Sale (24.06.2015)

I. General

  1. 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. Counterconfirmations on the part of the Buyer referring to his terms of business is hereby rejected. Any deviation from these conditions shall only be effective if such are confirmed by us in writing.

II. Quotations and Conclusion of Contract

  1. 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.
  2. 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 customer article names shall not be binding.
  3. Any technical advice, verbal or written, provided by us in respect of application shall not be binding - also 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.

III. Prices

  1. 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.
  2. Unless otherwise expressly stated, the 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 or wage increases, we shall reserve the right to adjust our prices accordingly.
  3. Orders for which no prices have been agreed shall be invoiced at the prices that are valid on the day of delivery.
  4. Goods which are produced on customers demand are subject to a minimum order value of 1.000 EUR net.
  5. Unless otherwise expressly agreed, the selling prices as well as all quotations and calculations shall be in EUR.

IV. Terms of Payment

  1. Unless different terms of payment have been agreed upon by separate contract, payment terms shall be net 30 from date of invoice. In contrast to the general stipulation above, capital goods and tools are due immediately after date of invoice. Payment must be rendered irrespective of any notification of defects.The place of performance in respect of payment shall be Leesburg, VA.
  2. 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.
  3. 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.
  4. 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.
  5. In the event of default of payment, all current accounts and the sums of all bills shall become due immediately and enforceable. If 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 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.
  6. We shall be entitled to set off all receivables that are due to us from the Buyer against all receivables demanded from us by the Buyer on the grounds delivery or other causes in law.

V. Retention of Title and Other Securities

  1. 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, including any receivables which may arise in future from the business relationship.
  2. The Seller 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.
  3. We irrevocably 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, 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.
  4. 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.

VI. Periods of Delivery and Performance

  1. The place of performance in respect of deliveries shall be Leesburg, VA 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.
  2. The period of delivery and performance shall be extended by a reasonable amount of time in the event of 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.
  3. 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. If the impossibility or inability occurs during the acceptance delay, or if the Buyer bears the sole responsibility or a decidedly preponderant share of it, he remains obliged to render payment.
  4. 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.
  5. Goods notified as being ready for shipment shall be called off by the Buyer immediately after expiry of delivery time; otherwise we shall have the right to forward the goods at our option or to 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.
  6. 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 to the exclusion of any liability whatsoever. The goods shall only be insured at the express request of the Buyer and at his expense.
  7. Partial deliveries shall be admissible. The Seller shall be entitled to deliver 10% more or less than the quantity ordered, or 20% in the case of products manufactured to specification, such quantities being invoiced accordingly.

VII. Passing of Risk

  1. Unless nothing to the contrary is agreed, 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
  2. All complaints in respect of incomplete delivery, defective or incorrect goods must be reported to the Seller in writing without delay and at the latest within 10 days of receiving the goods. Deliveries shall otherwise be deemed as having been approved.

VIII. Claims Based on Defects

In the event of materially and legally defective goods being delivered, we perform the following guarantees, while reserving Section IX and barring any further claims:

 

Material defects

  1. 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.
  2. 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 it is impossible to doubt the veracity of the notice of defect. If the complaint proves baseless, we are entitled to reclaim our ensuing costs from the Buyer.
  3. 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.
  4. 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. We shall be entitled to reject complaints if the Buyer fails to submit the defective part to us within 4 weeks of being requested to do so; this shall not apply if submission is prevented by the nature of the part or by the manner in which it is installed etc.
  5. Claims by Buyers 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 transferral of delivered goods from the Buyer’s business establishment to another place.


    Legal defects 
  6. If we are required to deliver goods based on drawings, models, samples or exemplary parts supplied by the Buyer, he bears the onus of avoiding any violation of third-party protective rights in the country for which the goods are destined. We will inform the customer of whatever rights we know of. The Buyer must release us from third-party claims and pay any ensuing damage. 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.

  7. Barring any agreements to the contrary, we are obliged to deliver only within the country containing the delivery destination, unencumbered by industrial patent rights and copyrights held by third parties. If the use of the delivered object causes industrial patent rights or copyrights to be violated, we will in principle and at our expense procure for the Buyer the right to continue using it, once we are sure 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.
  8. 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.
  9. We will furthermore release the Buyer from uncontested or legally confirmed claims by the relevant holder of protective rights.
  10. The obligations on our part mentioned in No. 9 are – in reservation of Section IX, – final in the event of patent or copyright violations. They exist only if the Buyer has informed us without delay of registered claims concerning patent 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 No. 7, 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

  1. Damage and cost recovery claims on the part of the Buyer, for whatever cause, especially for violations of contractual duties concerning obligations and impermissible actions, are not admissible unless liability is incurred in terms of No. 2 and No 3 below. We are liable for damage other than to delivered goods – on whatever legal grounds – only in the case of:

    a)   intent,

    b)   gross negligence,

    c)   culpable injury to life, body, health,

    d)   defects that we have maliciously concealed or guaranteed to be non-existent,

    e)   defects in the delivered goods insofar liability is incurred under product liability law for personal injury or material damage caused by privately used goods.
  2. If key contractual obligations are culpably violated, we are also liable in the event of gross negligence. In all events our liability shall be based upon the contract only to the extent reasonably foreseeable. In no event whether at law, tort, or contract shall our liability per case of damage amounts exceed EUR 250,000.
  3. Statutory rules on the onus of proof remain unaffected by the above rules.

X. Expiry

All rights of Buyers 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, No. 2 a) to e).

XI. Tolerances

  1. Unless otherwise stated in agreed DIN standards, production specifications or other standards (e.g. in Technical Delivery Specifications or RAUMEDIC drawings), tubing and profiles shall, with the exception of products made from foamed materials, be subject to the following tolerances:

    • for profiles if measurable: width, height and diameter, DIN 16941-3A, very rough;
    • for insulating tubing/special dimensions:
      generally in accordance with DIN 40621 „Insulating tubing B (without textile insert)“: internal diameter: 5% wall thickness: 10%
    • for other tubing: internal diameter: up to 5mm +0.1/-0.2 mm above 5 to 8 mm +0.2/-0.3 mm above 8 mm +2.5%/-3% wall thickness: up to 0,7 mm +0.1/-0.1 mm above 0,7 to 1,5 mm +0.15/-0.15 mm above 1,5 mm 10%
    • Production lengths (including silicone) will be subject to linear tolerances, measured at room temperature immediately after production.Profiles and tubing: in accordance with DIN 16941-3A, Coils and rolls: 2%
    • for tubing and profiles made from silicone, shape tolerances according to DIN 7715 E3 shall apply.

  2. Shore A hardness data shall be subject to a tolerance range of ±3 for thermoplastics and ±5 for elastomers. Normal commercial variations in quality, weight and colour shall in no way whatsoever constitute a reason to reject delivery. Illustrations, dimensions and weights indicated in our lists, Technical Delivery Specifications, production specifications, quotations and order confirmations shall be approximate data only. Variations in dimensions, weight, number of units and quality shall be permissible within the scope of normal commercial tolerances or in accordance with relevant standards. No guarantee shall be assumed for compliance.

XII. Copyright and Industrial Property Rights, Molds and Tools

  1. 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.
  2. 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, also in cases where the Buyer is invoiced with costs or expenses in respect thereof.
  3. 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.

XIII. Jurisdiction and Other Matters

  1. Agreed jurisdiction for all mutual claims and obligations, including disputes arising from bills and cheques receivable, irrespective of place of payment, shall be the Local Courts in Leesburg, VA, irrespective of the amount in dispute.
  2. 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.
  3. Virginia law shall be applicable. Application of the United Nations Convention of 11.4.1980 regarding contracts on the international purchase of goods shall be excluded