General Terms and Conditions of Alfred Raith GmbH, 68766 Hockenheim, Germany (“Seller”)
1. Scope of application of these Terms and Conditions
Upon placement of an order, the Buyer, even in the absence of the Buyer’s express consent to these Terms and Conditions, agrees to their application. Consequently, the same shall apply exclusively unless they have been modified as a result of an explicit agreement between the parties. Any terms or contract modifying provisions of the Buyer are hereby refuted and same shall only take effect in relations with the Seller provided that the latter has consented to such modifications in writing. These provisions shall be the basis for all future individual business transactions between the Seller and the Buyer and shall exclude any and all other agreements.
Our quotations shall be subject to change. We shall retain title and copyrights to all drawings, cost estimates and other documentation without any limitations. The same shall not be made available to any third parties and shall be returned to us upon request, and in any event if the related order is not placed. Any utilisation of the former shall be permitted only in cooperation with us. Self-utilisation by the customer shall be expressly prohibited. We reserve the right to make technical amendments, such as those that lead to improvement, at any time.
The prices quoted in the price list shall be understood in EUR. The prices quoted in the most recently updated and therefore exclusively effective price list shall apply. The price list is based on the material / raw material prices in effect at the time of its generation. The Seller reserves the right to adjust these prices in the event of changing material base rates and to charge the prices / alloy surcharges in effect on the date of delivery without prior notice.
Prices shall be understood net, plus applicable value added tax. Prices shall be quoted ex works, excluding packaging and transportation costs. Prices specified are for standard catalogue compliant specifications and dimensions. In the event that the Buyer should deviate from the former in the purchase order, this shall automatically lead to a new price basis for the Seller even if no prior express announcement to that effect is made. In the event that the Seller should offer a special promotional price for a certain product, the Seller shall be bound by same only if the offer is accepted by the Buyer within a period of 4 weeks after the offer date. Any acceptance declarations received after said deadline shall no longer establish a binding price.
If the total order value exceeds € 500.— net, delivery shall be made freight prepaid in Germany. Machines shall principally be shipped ex works, excluding cost of packaging. The minimum order value is € 50.— net. In the event that the order value should be less than € 50.— net, an all-inclusive freight charge of € 8.— shall be billed. In the event that delivery dates have been agreed upon between the parties, same shall be non-binding. Delivery times shall not begin until the agreement has been executed. The failure to meet any non-binding agreed upon delivery times shall not establish any entitlements for the Buyer or any third parties. In the event that delivery times cannot be met because of incidents of force majeure (war, strike, operational interruptions, etc.), the agreed upon delivery dates shall be completely non-binding and the Seller shall also have the right to rescind from the obligation to perform the orders or to make partial deliveries in special cases. As far as breakage and hardness sensitive tools and special custom fabrications are concerned, the Seller shall have the option to deliver up to 10% more or less of the volume ordered without having to make any separate agreements to that effect.
Payment for deliveries made shall be due at the Seller’s end within 10 days subject to a 2% cash discount or within 30 days net; in each case as of the invoice date without any deduction. After the expiration of 30 days as of the invoice date, the Buyer shall be in default of payment even if no further agreement to that effect is made. This shall exclude repair and sharpening orders. The same shall be due immediately upon receipt of invoice without any deductions. For such repair and sharpening orders, the Seller shall have the right to demand payment of standard bank interest rates from the Buyer within 3 days after receipt of invoice by the Buyer even in the absence of any payment reminder notices. In the event that the parties should have entered into an instalment plan for payments and if the Buyer should be in default of payment with more than two instalments, the entire balance amount shall be rendered due for immediate payment. The same shall apply in the event that the Seller should become aware of facts that appear to put the receivable in jeopardy. Bills of exchange and cheques shall be accepted solely as modes of payment and only subject to the reimbursement of any related costs. In the event that the Seller should become aware of circumstances that appear to put the receivable in jeopardy, the Seller shall have the right to demand instant payment of the full purchase price even prior to the maturity date of bills of exchange accepted as payment instruments.
6. Transfer of risk/Transportation
The transfer of risks shall be determined by the statutory provisions set forth in §§ 446 and 447 of the BGB (German Civil Code). Unless otherwise agreed upon, shipping shall be for the account of the Buyer. Upon the Buyer’s request, the Seller shall insure the shipment against theft, breakage, transportation, fire and water damage as well as any other insurable risk. The costs of such insurance shall be borne by the Buyer.
The cost of packaging shall be borne by the Buyer separately. Packaging shall be charged at cost.
8. Right of retention
The Seller shall retain title to the delivery objects until all pending receivables from the business relationship with the Buyer have been paid. This right of retention shall also apply to the confirmed balance, provided that the Seller charges receivables due from the Buyer to current accounts (current account retention). In the event that the Buyer’s conduct should be such that the Buyer is in breach of contract, in particular in the event of default on payments, the Seller shall have the right to seize the goods and the Buyer shall be required to release same. The exercising of the retention option by the Seller shall not constitute a rescission from the agreement, provided the statutory provisions pertaining to the granting of consumer loans do not apply or the rescission has been expressly declared by the Seller in writing. Seizure of the delivered object always comes with an inherent rescission from the agreement. The Buyer shall have the right to resell the delivered objects in conjunction with regular business transactions; however, the Buyer is herewith assigning all receivables up to the amount agreed upon as the purchase price between the Buyer and Seller (including value added tax), which the Buyer generates from such resale activities, regardless of whether the delivered objects are sold as is or after having been further processed. The Buyer shall have the right to collect said receivables after assigning them to the Seller. This shall be without prejudice to the Seller’s right to collect said receivables directly; however, the former shall undertake not to collect said receivables as long as the Buyer properly meets all payment obligations and is not in default of payment. However, if the latter should occur, the Seller shall have the right to demand that the Buyer discloses the assigned receivables and the related debtors and that the Buyer provides all information required to collect same, hands over the related documents and notifies the debtors (third parties) of the assignment. Any processing or conversion of the goods by the Buyer shall always be performed on behalf of the Seller. In the event that the delivered objects are processed along with other objects that are not the property of the Seller, the Seller shall acquire co-ownership in the new object at the ratio of the value of the delivery objects to the other processed objects at the time of processing. In the event that the delivery objects are blended with other objects that are not the property of the Seller in such a manner that they can no longer be separated, the Seller shall acquire co-ownership in the new object at the ratio of the value of the delivery objects to the other blended objects. The Buyer shall hold the co-owned property in the Buyer’s custody on the Seller’s behalf. The Buyer shall not be permitted to pledge or assign the objects as collateral. In the event of attachments, seizure or any other third party dispositions, the Buyer shall immediately notify the Seller in writing and provide the Seller with any and all information and documentation required to safeguard the Seller’s rights. Enforcement officers or third parties shall be notified of the Seller’s property. In the event that the Seller should file a complaint pursuant to § 771 of the ZPO (German Code of Civil Procedure) and if third parties are not in a position to reimburse the Seller for in- and out-of-court expenses, the Buyer shall be liable for the loss suffered. The Seller shall undertake to release the collateral that the Seller is entitled to at the request of the Buyer to the extent that they exceed the value of the receivables to be collateralised, if same have not been settled yet, by more than 20%.
In the event that the Buyer should fail to accept the delivery object, the Seller shall have the right to set a remedial period of 14 days to the Buyer along with the declaration that after said period passes to no avail, the performance of the order will be refused by the Seller. Upon fruitless expiration of the remedial deadline, the Seller shall have the right to rescind from the agreement by way of written declaration or to demand compensation for damages on grounds of failure to perform. The setting of a remedial period shall not be required if the Buyer makes a serious and final declaration of refusal.
If the Seller should demand compensation for damages, same shall total 20% of the order price. The damage amount shall be increased if the Seller proves higher actual damages or decreased if the Buyer proves lower actual damages.
If the Buyer should terminate the agreement, such termination shall be valid only subject to the written consent of the Seller. If such consent is granted, the Buyer shall be required to pay to the Seller all costs incurred up until that date. In this case, the drawings, models, etc. generated by the Seller shall remain the property of the Seller.
The Seller shall provide warranties for the purpose compliant design, proper fabrication and perfect material selection for the tools manufactured or repaired by the supplier. The Seller shall guarantee that the delivery / purchase object is not impaired by errors that eliminate or reduce the value or usefulness for common uses or those stipulated in the agreement. Any irrelevant reductions of value or usefulness shall not be considered for warranty purposes. The warranty period shall be 6 months after delivery. The Seller shall provide this warranty in such a manner that deficiencies are either eliminated free of charge or deficient parts are exchanged with the choice of remedy being made at the Seller’s discretion. If permitted by applicable law, any further entitlements of the Buyer, in particular an entitlement to compensation for damages that have not occurred on the purchased object as such, shall be excluded. The Seller shall not provide any warranties for such deficiencies that result from improper treatment, improper handling, modifications without prior approval or incorrect application. In the event that the Buyer should file claims, the parts that are subject to the claim shall be sent to the Seller free of charge for the purpose of inspection along with concise information about the conditions of use. Sample drawings and other documentation provided by the Buyer for the purpose of performing orders shall remain in the possession of the Seller. The mandatory retention period for such documents shall be 4 months. Same shall be returned to the Buyer only upon express request and subject to the Buyer absorbing any related costs.
12. Deficiency claims
The Buyer shall be required to inspect all goods immediately upon receipt. Deficiency claims must be filed in writing along with justifications within 14 days after receipt of the goods; compliance with the deadline shall be determined by the date of receipt by the Seller. In the event that a defect should be detected later, which cannot be recognised through the standard examination methods upon receipt of the goods (concealed defect), the Buyer shall be required to report the concealed defect immediately, however, no later than 5 days after learning of same.
Deficiency claims filed after said deadlines or in violation of the agreed upon form shall not establish rights of the Buyer.
13. Return shipments
The Buyer shall be permitted to return goods only upon prior written agreement with the Seller. In the absence of such a written approval from the Seller, the costs of return shipment shall be absorbed by the Buyer. The Seller shall have the right to refuse acceptance of return shipments sent to the Seller freight collect. Custom fabrications shall principally not be accepted for return.
14. Merchandise credit
In the event that merchandise credit is to be granted, the amount of the credit note can be derived from the original invoice amount minus a 15% processing fee. If the merchandise is returned on the basis of a merchandise credit agreement, the Buyer shall absorb any costs incurred as a result.
15. Place of performance and jurisdiction
The place of performance shall be the Seller’s headquarters. All litigation arising from the contractual relationship shall require filing of suit with the court competent at the Seller’s headquarters. The Seller shall have the right to file suit also at the Buyer’s headquarters. The business relationship shall be governed exclusively by German law subject to exclusion of the convention on the international purchase of mobile objects, even if the Buyer’s headquarters is abroad.
16. Technical alterations
The Seller reserves the express right to make technical modifications to tools and machines if necessary. The Buyer shall not be in any position to construe any rights from such modifications.
Reproductions of the content of the price list, even excerpts thereof, as well as figures and drawings shall be subject to express written prior consent of the Seller.
18. Data protection
Personal data will be generated, saved, processed and used within the scope of the statutory provisions for the purpose of the execution or performance of the contractual relationship. Within this scope, we reserve the right to transfer data (name and address of the customer) to pertinent companies for the performance of credit checks.
19. Setting off / Right to withhold
The Buyer shall have the option to set off payables only against legally final, undisputed or such counterclaims we have accepted and shall have the right to exercise the right to withhold only on the basis of the former.
20. Miscellaneous / Severability clause
For any assignment of rights and obligations of the Buyer arising from the agreement made with the Seller to become effective, same shall be subject to the Seller’s written consent. In the event that one of the above provisions should be or become void, this shall not affect the effectiveness of the remaining provisions. The ineffective provisions shall be substituted with a valid provision that fulfils the intended business purposes to the fullest extent possible.
As at: 09/2011