1. To be applied to any agreement with:
1.1. any person acting in performance of her/his commercial or in-dependent professional business (entrepreneur) when entering into any respective agreement,
1.2. any public legal entity or any public separate estate.
2. General Remarks & Rules
2.1. These General Terms and Conditions of Sale and Delivery of Raycap GmbH, Parkring 11, 85748 Garching near Munich, Germany (“Supplier”) apply exclusively; General Terms and Condi-tions of Purchaser on the contrary to or differing from Supplier‘s General Terms and Conditions of Sale and Delivery will not be accepted by Supplier unless he agrees on their validity in writing. Supplier‘s General Terms and Conditions of Sale and Delivery also apply in case he carries out delivery without reservation while being aware of Purchaser‘s General Terms and Conditions on the contrary to or differing from his General Terms and Conditions of Sale and Delivery.
2.2. All agreements entered into between Supplier and Purchaser concerning the execution of this Agreement are made in writing and are part of this Agreement.
2.3. Supplier‘s General Terms and Conditions of Sale and Delivery apply as well to any future business transactions between Supplier and Purchaser.
3. Offer and Acceptance
3.1. Any descriptive documents pertaining to any respective offer, such as pictures, drawings, and particulars as to weight and measures, shall only be deemed to be rough standards unless explicitly identified as binding standards under any respective agreement.
3.2. Supplier hereby reserves to itself any of its property and copyright interests in any cost estimates, drawings and other descriptive documents. Such cost estimates, drawings, and other descriptive documents shall not be made accessible to any third party.
3.3 All offers of Supplier sent to Purchaser shall be binding for six weeks only; each agreement between Supplier and Purchaser requires written acknowledgment of the offer (acceptance) within this time frame.
4. Scope of Delivery
4.1. Supplier’s written acknowledgment of any respective order shall determine the content of any respective agreement and any performance due thereunder.
4.2. There are no oral ancillary agreements.
4.3. Any ancillary agreement and any modification of any agreement entered into shall be subject to Supplier’s written acknowledgment thereof. Confirmed orders cannot be cancelled and any payments made for them are not refundable.
5. Price and Payment
5.1. Unless provided otherwise in acknowledgement of order, all prices shall apply in EURO and are to be understood ex Supplier’s works inclusive of loading up at Supplier’s works but exclusive of packaging and customs clearance, and plus value added tax in the amount prescribed by any respective applicable law. Partial invoicing of partial deliveries shall be permitted.
5.2. Supplier reserves the right to increase prices correspondingly after expiration of four (4) months since conclusion of the contract if costs increase, especially due to conclusion of a collective agreement or to raw material price increases. Supplier will provide evidence to Purchaser on request.
5.3. Unless provided otherwise in acknowledgement of order, purchase price shall be due immediately without any discount, however thirty (30) days after issuing of the invoice at the latest. Deduction of cash discount requires a separate written agreement.
5.4. Unless agreed on other terms of payments, default occurs after reminder-letter to Purchaser or thirty (30) days after issuing of invoice. Default interest shall amount to eight (8) percentage points above the basic interest rate. Assertion of further damage shall not be excluded hereby.
5.5. Any right to withhold payment may only be exercised if it is based on claims of Purchaser’s arising from the same transac-tion between the parties and if it is either acknowledged by Supplier or declared to be executable by a final and unappealable judicial decision.
5.6. Purchaser shall not be entitled to set off any claims against Supplier’s claims unless such claims are either acknowledged by Supplier or declared to be executable by a final and unappealable judicial decision.
6. Time of Delivery
6.1. Time of delivery shall commence upon dispatch of the acknowledgment of any respective order, in no case, however, prior to the submission of all documents, licenses, and releases to be produced by Purchaser, nor prior to receipt of any stipulated down payment.
6.2. Delivery shall be deemed to be on time if, upon expiration of the delivery period, the respective ordered item has either left Supplier’s works or if notice of readiness for its shipment has been given, and, in case Supplier is obligated under any respective agreement to ship out any respective ordered item, provided that such shipment is effected without culpable delay after notice of readiness for its shipment has been given.
6.3. Any term of delivery shall be adequately extended in any case of industrial action, particularly strike and lock out, and as well in any case of an occurrence of important unforeseeable obstacles beyond Supplier’s reasonable control, provided that such obstacles are proven to substantially affect the completion or shipping out of any respective ordered item. The same shall apply if sub-suppliers are affected by such circumstances.
6.4. Commencing one month after notice of readiness for dispatch has been given, Purchaser shall be charged any accruing storage costs, amounting to no less than 0.5 % of the amount of the pertinent invoice if such storage is performed at Supplier’s works, provided that dispatch has been delayed at Purchaser’s request, unless Purchaser proves that no such damage has occurred at all or that any such damage is substantially less.
6.5. Following the fixing and fruitless expiration of a reasonable period of time, Supplier may, however, dispose of any respective ordered item otherwise and provide supply to Purchaser under a reasonably extended time limit.
6.6. Any term of delivery shall be suspended while Purchaser does not fully perform its contractual duties, including but not limited to the timely provision of samples (e.g. packaging and filling materials).
7. Deliveries; Passing of Risk and Acceptance of Delivery
7.1. Deliverers shall be made DAP Incoterms 2010 if not agreed otherwise. The risk shall pass to Purchaser at the latest when any respective ordered parts are made available at Purchaser’s ramp.
7.2. The passing of risk upon any respective ordered parts being made available at Purchaser’ ramp shall even then be deemed agreed upon between the parties, when partial deliveries are made, or when Purchaser has agreed to perform additional services, such as installation and commissioning.
7.4. Delivered items showing only non-material defects shall be accepted by Purchaser, without prejudice however to any of its rights under section 9 hereof or under the Law.
7.5. Partial deliveries shall be permitted.
8. Retention of Title
8.1. Supplier reserves title to the delivery item until the Purchaser has discharged all claims arising from the business relationship, including claims arising from contracts formed at the same time or later.
8.2. The Purchaser shall be entitled to dispose of the delivery item in the ordinary course of business. The Purchaser, however, here-with assigns to Supplier all claims in the amount of the commercial invoice (total amount including value added tax) of the claim which may accrue to him against his Purchasers or third parties from reselling, regardless of whether the item of sale was or was not subjected to further processing or finishing before resale. The Purchaser shall continue to be authorised to collect this claim even after such assignment. This does not af-fect Supplier’s right to collect the claim themselves. Supplier under takes, however, not to collect the claim as long as the Purchaser meets his payment obligations from the earned proceeds, does not default in payment, and, in particular, as long as no petition in bankruptcy, composition, or insolvency is filed, or as long as there is no suspension of payments. In the event that the reserved goods are combined or mixed with other items, the supplier shall in principle accrue joint title to the new item in the proportion of the value of the reserved goods in the value of the new item.
8.3. If and insofar as the reservation of title exists, the Purchaser may neither pledge the delivery item nor assign it as security. He shall notify Supplier immediately in the case of attachments and of seizure or other disposition by third parties.
8.4. Should the Purchaser act in breach of contract, particularly in the case of default in payment, we shall be entitled to recover the delivery item after due notice and the Purchaser shall be bound to surrender same.
8.5. Supplier may only demand recovery of the delivery item on account of the reservation of title if Supplier has rescinded the contract.
8.6. Petition for the institution of insolvency proceedings against the Purchaser shall entitle Supplier to rescind the contract and to demand immediate recovery of the delivery item.
8.7. If the Purchaser has resold the delivery item in the course of regular business, Supplier shall have the right to demand that the Purchaser informs Supplier about the assigned claims and the debtors, provide all and any information necessary for collection, turn over all pertinent documentation, and inform the debtors (third parties) of such assignment.
8.8. Supplier undertakes to release the securities it is entitled to upon request of the Purchaser to the extent the realisable value of the securities due to Supplier exceeds the claims to be secured by more than 10%. Supplier shall be responsible for selecting the securities to be released.
8.9. In cases where the provisions of this Section are not or not fully applicable under the respective applicable Law, the Purchaser must ensure that the Supplier is granted a right which substantially reflects the security interests of Supplier reflected in this Section 8.
9. Liability for Defects
9.1. Purchaser shall be obliged to carefully examine the completeness and accordance of the ordered item immediately after receipt. Notice of defects must be given no later than eight (8) calendar days; Supplier’s receipt of written (also by fax) notice of defect shall be decisive.
9.2. In case Purchaser intends to assert claims arising from defects of the ordered item, he shall be obliged to hand over to Supplier ordered item or parts thereof for inspection, unless this is technically not possible or impossible (e.g. fixed large systems). Provided that notice of defect is justified and declared in due time, Supplier shall at his option either remedy the defect or deliver a faultless product.
If Supplier opts for the delivery of a faultless product the claims of the Purchaser are fulfilled with the receipt of the faultless product.
If Supplier opts for a repair, costs for removal of defects includ-ing costs for transport, toll, labour and material shall be borne by Supplier. This shall also apply for delivery and shipment costs according to sentence 1 in the ordinary scope. In case costs to remedy defect increase because Purchaser placed ordered the purchased product at another place than the place of delivery, Purchaser shall bear additional costs. The cost for removal of defects dos not include the expenses for removing the defective item and incorporation or installing the repaired or newly delivered defective item if the buyer has incorporated the defective item into another item, has installed other products into the item or has attached another product to the item.
9.3. Supplier shall be entitled to refuse subsequent performance according to the statutory provisions. Purchaser shall, in case of (i) refusal of subsequent performance, (ii) its failure or (iii) impossibility be entitled to cancel the contract to or reduce the purchase price according subsequent section 9.4.
9.4. Purchaser shall only be entitled to rescind the contract – provided that such rescission is not illegal – or to reduce the purchase price after expiration of reasonable grace period for remedy of defects determined by Purchaser. In case of a rescission, Purchaser’s liability shall be unlimited.
9.5. The provisions in section 10 shall apply for any possible claims for damages and expenses of Purchaser.
9.6. Supplier’s liability for defects does not apply if Purchaser does not follow operating and service instructions, changes parts or uses consumables not complying with original specifications, unless Purchaser provides evidence that defect is not based thereon.
9.7. Liability for defects of the ordered item or parts thereof originating from the ordinary wear is excluded.
9.8. The period of limitation for all defects related claims shall be one year as of the date on which the limitation period commences to run under the Law. In any case of intentional misconduct or intentional misrepresentation the statutory periods shall apply.
10. Supplier’s Liability, Exclusion of Claims for Damages
Unless otherwise provided under these Terms and Conditions, Supplier shall only and exclusively be liable to the extent set out hereinafter:
10.1. Supplier will only be liable for damage not caused to the delivery item itself, on whatever legal grounds, in case of
a. intent;
b. gross negligence on the part of the proprietor / institutions or managerial employees;
c. culpable injury, loss of life or damage to health;
d. deficiencies which Supplier maliciously failed to disclose or whose absence we guaranteed;
e. defects in the delivery item if liability is mandatory under product liability laws for personal injury or material damage to items of private use.
In the case of a culpable breach of substantive contractual duties, Supplier shall also be liable for the gross negligence of non-managerial staff and in the case of slight negligence, limited in the latter case to the damage reasonably foreseeable for a typical contract of this kind.
10.2 Other claims are excluded.
10.3. As far as Supplier‘s liability is excluded or limited, the same ap-plies for his employees, staff, representatives and agents.
10.4. Purchaser has been informed and hereby acknowledges that by operation of mandatory law any and all of Purchaser’s warranty and/ or contractually accorded guarantee claims expire if and when Purchaser modifies and and/ or all part(s) of the items delivered under any and all sales and/ or delivery agreement(s). This expiration specifically but not exclusively applies to software components of any and all delivered machines. Besides, Supplier hereby informs Purchaser and Purchaser acknowledges its awareness that any and all of the aforementioned modifications may constitute an infringement of Supplier’s intellectual property rights.
11. Software
11.1. If use of software If software is included in delivery, the Purchaser is granted a non-exclusive right to use the supplied software, including its documentation. It is provided for use on the intended delivery item. Use of the software on more than one system is prohibited.
11.2. The Purchaser may only duplicate, revise or translate the software to the extent allowed by law. The Purchaser undertakes not to remove manufacturer’s details, in particular copyright notices, or to amend same without our prior express consent.
11.3. All other rights to the software and the documentation, including copies, remain with the Supplier or the software supplier. No sub-licences may be granted.
11.4. If the software is not produced by us, the licence conditions of the relevant software manufacturer shall apply. In the case that the software is defective, Supplier assigns to the customer all claims accruing to it against the software manufacturer. The customer must initially assert defects in the software against the software manufacturer. Supplier will only be liable in the subsidiary if claims cannot be pursued against the manufacturer. No duty to supply software updates or upgrades shall exist.
12. Place of Performance, Place of Jurisdiction, Applicable Law, Final Provisions
12.1. The place of performance of any respective delivery shall be at its respective place of dispatch, the place of performance of any respective payment shall be Munich, Germany.
12.2. The exclusive place of jurisdiction shall be the courts in Munich, Germany. Supplier shall be entitled to pursue legal proceedings at the head office of the Purchaser
12.3. The contractual relationship between Supplier and Purchaser shall exclusively be governed by the substantive laws of Germany under the exclusion of the United Nations Convention on the International Sale of Goods (CISG) and the German conflict of law provisions.
12.4. The ordered items are designed, manufactured and installed in accordance with the legal provisions applicable in the EU.
12.5. It shall be any foreign Purchaser’s duty to take any measures beyond the legal provisions in effect in the EU for the purpose of protecting the operating personnel and any other person against any chemical, biochemical, electrical, electro mechanical, electroacoustic and similar effects caused by any respective machine or by any packing materials, packaging means and filling materials.
12.6. If any particular provision of these Terms and Conditions is or becomes invalid, such invalidity shall not affect the validity of the other provisions hereof. The parties to any respective agreement shall agree upon a new provision serving the pur-pose pursued by the provision having become invalid at best.