General Terms of Business and Delivery Conditions of
RACO ELEKTRO-MASCHINEN GmbH
1.1 All transactions concluded by RACO with buyers are subject solely to these General Terms of Business and Delivery Conditions. Contradicting terms and conditions only apply if RACO has explicitly given written consent. Unless stated otherwise, these General Terms of Business and Delivery Conditions apply for the entire duration of the business relationship so that these General Terms of Business and Delivery Conditions do not have to be sent with every further single transaction.
1.2 The General Terms of Business and Delivery Conditions also apply correspondingly to other kinds of contracts, particularly to contracts for purchases and contracts for services.
2. Quotation, purchase order and other declarations
Quotations by RACO are without obligation. Contracts, subsidiary agreements, alterations and additions must be made in writing; verbal agreements require written confirmation. Purchase orders only become binding after RACO has issued a written order confirmation.
3. Prices and conditions of payment
3.1 RACO's prices are stated in EURO ex works; value added tax, packaging, freight, postage and insurance must be added to the prices. Value added tax is charged according to the valid rate of value added tax on the day of issuing the invoice.
3.2 The prices confirmed by RACO are valid. If delivery takes place more than three months after concluding the contract, it is agreed that the prices will be adapted insofar as the cost factors have changed for RACO.
3.3 Invoices are to be paid within 10 days from the invoice date with a 2% discount or within 30 days net. Invoices for labour and repair work are due immediately net cash. For delays in payment exceeding the payment deadline (30 days from the invoice date), RACO can demand default interest as charged to RACO by the bank on a current account overdraft, but at least amounting to the statutory default interest. RACO is entitled to provide evidence of higher default damages and the buyer is entitled to provide evidence that RACO has not suffered any or far less damage.
3.4 If after concluding the contract RACO's payment claims are seriously jeopardized because of a material deterioration in the buyer's financial situation, RACO can demand advance payment or corresponding security within an appropriate period and refuse performance until its demand has been satisfied. If the buyer refuses or the period expires in vain, RACO is entitled to withdraw from the contract or demand compensation instead of performance.
3.5 Bills and cheques are accepted on account of payment. The discounting costs are paid by the buyer. Any warranty for timely presentation of the bill or cheque and for timely submission of bill protests is ruled out.
3.6 The buyer only has the right to offset or withhold payment in the case of claims that are undisputed or res judicata.
4. Specification of Performance
4.1 The specification given by RACO (quotation, order confirmation) is authoritative for the contents, type and scope of the performance.
4.2 Customary or immaterial deviations in the quantity and quality of the supplied goods are accepted by the buyer. The buyer bears the use and application risk unless RACO has explicitly guaranteed a certain use or application. Unless RACO gives an explicit guarantee, the details given about the products are simply descriptions.
4.3 The details, drawings, dimensions, weights and colour shades contained in brochures, catalogues and quotations are standard trade approximations, unless RACO refers to them explicitly as binding values. Slight customary and standard trade deviations and technical improvements are deemed to be agreed.
4.4 RACO reserves the unrestricted property rights, copyrights and usage rights to the plans, drawings and other documents made available by RACO to the buyer. Our prior written consent must be obtained before such documents are made available to third parties.
5. Delivery dates, partial delivery, call orders
5.1 Delivery periods and deadlines are without obligation, unless they have been explicitly agreed in writing as being binding. Stated delivery periods start with RACO sending the order confirmation. The agreed delivery Deadlines are deemed to have been met when RACO reports that the goods are ready for shipment or collection. If a certain week is stated as the agreed delivery period, then the delivery deadline has been met if RACO reports that the goods are ready for shipment or collection on the last working day of the week.
5.2 The stated delivery periods and deadlines refer to a normal business transaction, and are extended accordingly in the case of delayed receipt of documents, down payments or other aspects of advance performance required from the buyer, in the case of necessary clarification of technical questions, subsequent alterations to the contract by the buyer or unforeseen circumstances affecting RACO or its suppliers (such as production stoppages, official measures, Problems with the energy supply, delays in the delivery of important materials, strikes, lock-outs and similar incidents for which RACO is not responsible).
5.3 If the period or deadline for the delivery is exceeded for reasons for which RACO is responsible, initially the buyer shall set RACO a period of grace in writing. The period of grace must be appropriate with regard to the contents of the contract, but must not be less than 4 weeks.
5.4 RACO's liability for damages in the case of delay or impossibility is stated in No. 9.
5.5 Partial deliveries are permitted in a reasonably acceptable scope; they are issued separately.
5.6 Deliveries ordered as part of a call order are to be accepted within 6 months of the order confirmation. On exceeding this period, RACO is entitled to send goods to the buyer that have not been called for, to withdraw from the contract or to enforce damages claims for non-performance, at RACO's choice.
6. Shipment, passage of risk and acceptance
6.1 Goods that are ready for shipment must be accepted by the buyer without delay. Otherwise, RACO is entitled to ship them at the buyer's costs or to take them into storage at the buyer's costs and risk, at RACO's choice. RACO can invoice the buyer with 0.5% of the invoice amount as storage charges for every started month. The storage charges are limited to 5% of the invoice amount, unless RACO provides evidence that higher costs have been incurred or the buyerprovides evidence that lower costs have been incurred.
6.2 If no special agreements have been reached, RACO chooses the type and route of shipment according to its best judgement.
6.3 The risk passes to the buyer on handing the goods over to those responsible for shipment or at the start of storage, but at the latest on leaving the factory or warehouse.
6.4 If shipment or acceptance is delayed for reasons for which RACO is not responsible, then the risk passes to the buyer on being notified that the goods are ready for shipment.
7. Reservation of title
7.1 RACO reserves the title to the delivered goods until claims resulting from the business relationship with the buyer have been fulfilled. RACO also reserves the right to withdraw from the delivery transaction in the event that insolvency proceedings have been initiated on the buyer's assets.
7.2 The buyer is entitled to sell the reserved goods in proper business transactions as long as he fulfils his obligations resulting from the business relationship with RACO in good time. However, he is not allowed to pledge nor transfer the reserved goods for the purpose of securing a debt. The buyer is obliged to safeguard RACO's rights in the event of resale of the reserved goods on the basis of credit. All claims and rights from the sale of the reserved goods to which RACO has property rights are assigned now already to RACO by the buyer as security. RACO accepts the assignment.
7.3 The buyer is obliged to keep the reserved goods carefully and to insure them adequately against loss and damage (theft, fire, etc.). He assigns his claims on his insurance company in the event of any damage already to RACO now at this point in time, and RACO accepts this assignment. The buyer is also obliged to inform RACO without delay of any third-party compulsory execution measures affecting the reserved goods, affecting the claims assigned to RACO
or affecting other securities, indicating the documents necessary for corresponding intervention. This also applies to impairments of all kinds.
7.4 Any processing, machining, alteration or installation of the reserved goods is carried out by the buyer on behalf of RACO. If the reserved goods are processed or mixed inseparably with other items not belonging to RACO, RACO acquires co-ownership of the new product in the ratio of the invoice value of the reserved goods to the other processed items at the point in time of processing or mixing. If RACO's product is processed or inseparably mixed to form a
uniform product and the other product is deemed to be the main product, then the buyer transfers proportional coownership to RACO insofar as the main product belongs to him. The buyer keeps the (co-owned) property free of charge for RACO. Otherwise the product resulting from processing, connecting or mixing is subject to the same conditions stated for the reserved goods.
8.1 With the exception of compensation claims, the buyer's warranty rights expire at the end of one year after delivery of the goods. The warranty becomes null and void if the goods are incorrectly treated, maintained, stored, processed or used by the buyer.
8.2 The buyer shall report any obvious faults immediately on receiving the goods at the destination; faults that are not obvious shall be reported immediately after discovery. The complaint shall be made in writing. If acceptance of the goods or first sample testing has been agreed, then complaints for faults are ruled out which the buyer could have ascertained during meticulous acceptance or first sample testing procedures.
8.3 RACO is to be given an opportunity to ascertain the fault featured in the complaint. Goods featured in complaints are to be sent back to RACO on request without delay. The transport costs are to be paid by the buyer. This applies in particular when after delivery, the purchased product has been brought another site than the consignee's commercial branch; RACO particularly rules out taking on the Transport costs for deliveries made abroad. If the buyer fails to fulfil these obligations or makes any changes to goods already featured in a complaint without RACO's consent, then the buyer loses any warranty claims. Where deliveries of large quantities are concerned, RACO must be given the opportunity to sort out the faulty product.
8.4 In the case of a justified complaints notice submitted on time, the buyer can initially only demand subsequent performance from RACO. Further rights to compensate the damage instead of performance, withdrawal or reduction can only be made by the buyer, without setting any deadline, if RACO finally and seriously refuses fulfilment, has refused both types of subsequent performance because of unreasonable costs or if the type of subsequent fulfilment to which the buyer is entitled has failed or cannot be reasonably expected of the buyer. Subsequent performance is considered to have failed after the second attempt in vain, unless something else arises because of the type of product or fault or for any other reasons.
8.5 RACO's liability for damages from poor performance is stated in No. 9.
9.1 RACO's liability is based on the statutory provisions, unless other provisions have been stipulated. The following provisions do not apply if RACO is liable for injury to life, limb or health; in this case, only the statutory provisions apply.
9.2 If no other provisions have been reached, any other further claims from the buyer on RACO are ruled out. This applies in particular to claims for culpa in contrahendo, violation of contractual secondary obligations and duty of care together with liability in tort. The same applies to claims from the buyer for delay and impossibility. RACO is therefore not liable for damage not caused to the actual supplied goods themselves. Above all, RACO is not liable for lost profits
and other financial damage suffered by the buyer.
9.3 The above liability disclaimer does not apply if the damage has been caused through wilful intent or gross negligence; if cardinal contractual obligations have been culpably breached or the buyer is entitled according to the statutory provisions to demand damages instead of performance or compensation for expenditure made in vain; if absence of the delivered goods has led to liability for personal injury or damage to material referring to privately used items according to the product liability law; if RACO has assumed strict liability by means of an explicit written declaration with regard to its contractual obligation; the same applies if RACO has assumed the procurement risk for the goods or a guarantee for the presence of a certain property and such assumption served the purpose of protecting the buyer from damage not caused to the delivered goods.
9.4 In the case of culpable violation of cardinal contract obligations in accordance with 9.3, RACO is only liable for reasonably foreseeable damage typical to the contract, with the exception of wilful intent and gross negligence. The same applies to the buyer's claim for damages instead of performance and to compensation for expenditure made in vain.
9.5 Insofar as RACO has to pay damages in the context of warranty, the damages claims expire within one year after delivery of the goods. Claims for culpa in contrahendo, violation of contractual secondary obligations and duty of care together with liability in tort expire at the end of one year, starting with the buyer acquiring knowledge of the cause of the damage and who was responsible for the fault.
11. Place of fulfilment, jurisdiction, governing law and other provisions
11.1 The place of fulfilment for all obligations arising from this contractual relationship is RACO's registered business address (Schwelm). The place of jurisdiction for all disputes arising from this contractual relationship, also in the context of bill and cheque transactions, is RACO's registered business address (Schwelm), insofar as the buyer is a registered trader, a legal public law entity or a special fund under public law. RACO is also entitled to take legal action at
any other place of jurisdiction.
11.2 Subject to the laws of the Federal Republic of Germany. Application of the United Nations Contact dated 11 April 1980 on the Contracts for the International Sale of Goods is ruled out.
Status: July 2018 AGB 6 - 02/02 (119-922-6)