Terms and Conditions

1. General

1.1 These Conditions of Sale and Delivery shall apply exclusively for all quotations and contracts for delivery of goods and services of the Vendor, including current and future business relations. Deviations herefrom shall be binding for us only when we have agreed to them expressly in writing.
1.2 We expressly object to general terms and conditions of trade and purchase of Buyer. They shall only obligate us when we have agreed to them expressly in writing.
1.3 In as far as a written form requirement is laid down in these Conditions of Sale and Delivery, this written form requirement can only be waived expressly in writing.

2. Quotations

2.1 Our quotations are non-binding, and subject to prior sale.
2.2 Our field service is not authorized to make agreements of any kind whatsoever. They require our written confirmation to be valid.
2.3 Specimens and samples shall be deemed as approximated inspection pieces for quality, dimensions, colour, packaging and presentation. These properties will not be guaranteed.

3. Prices

3.1 The prices quoted by us are ex works, resp. delivery warehouse including packaging, but excluding the value added tax applicable for the correspondingly stated currency.
3.2 Any lattice boxes, containers or similar transport packaging (returnable container) provided on loan remain the property of the Vendor and shall be returned to Vendor  in good order and at the expense and risk of Buyer within a reasonable period of time after delivery. The Buyer shall be liable for any damage or loss of the returnable container. Failure to return any of the returnable container shall be compensated by Buyer on the basis of the current market.

4. Payment terms

4.1 The invoiced amounts will be due within 30 days, received by us, in the invoiced currency or in the equivalent EURO value in accordance with the official rate of exchange, without deductions.
4.2 Complaints about the invoice shall be conveyed immediately in writing. The invoice shall be deemed as accepted at the latest 30 days after invoice date. The Vendor will notify this to Buyer on every invoice. The agreed payment period applies from invoice date.
4.3 A right to refusal of performance by Buyer, who is an entrepreneur, is excluded. This shall not apply when the counterclaim, on which the right to refusal of performance is based, is undisputed or has been established legally.
4.4 The Buyer may offset only with such claims which are undisputed or have been established legally.
4.5 Bonuses and refunds will only be paid to Buyer if the Vendor itself has no due claims against Buyer. Such due claims will be netted by offsetting.

5. Delivery time and delivery

5.1 The delivery time shall begin with the day of our order confirmation.
5.2 The Buyer may not refuse acceptance of the delivery due to insignificant defects.
5.3 The agreed quantities are approximate quantities which entitle the Vendor  to provide services of up to 10% below and above the quantity. The weight at dispatch shall be decisive. For weight loss during transport the Vendor shall only be liable according to clause 6.9.
5.4 Events of force majeur shall release from the obligation of on time delivery. The same shall apply when our subsuppliers encounter such events. In such cases we shall have the right to rescind from the contact, to reduce the contractually agreed quantity and the quantity and/or quality selection quota or to postpone the delivery by the duration of the hindrance.
5.5 Deliveries will be made ex works or warehouse. Any risk shall be passed over to Buyer with the handover to the shipping agent or freight forwarder, at the latest when goods leave the works or warehouse.
5.6 In the case of an order value of less than EURO 75.00 a minimum value surcharge of EURO 6.95 will be invoiced.

6. Warranty, notice of defects, compensation

6.1 Statements about the conformity of the goods with provisions of whatever nature and goods recommendations given by Vendor or his vicarious agents, as well as product descriptions of the Vendor or manufacturer do not represent a warranty
6.2 Claims for defects cannot be made for insignificant deviation from the agreed quality/texture or for customary loss.
6.3 The Buyer must claim notice of defects in writing within 10 days, receipt at our premises, after receipt of goods at the destination. Hidden defects can only be claimed within an appropriate period which is also dependent on the nature of the goods. They must be notified to Vendor immediately after discovery, at the latest within 7 working days. This clause 6.3 applies only vis-à-vis companies.
6.4 Faulty goods shall be repaired/touched up free of charge or redelivered at the discretion of Vendor, provided the reason of the fault was already given at the time of the passing of risk.


6.5 Instead of repair/touch up or redelivery, we shall also be at liberty to replace the reduced value.
6.6 Should supplementary performance fail, the orderer – irrespective of any compensation claims in accordance with clause 6.9 – may rescind from the contact or reduce remuneration.
6.7 Any further claims by Buyer are excluded.
6.8 Any return of delivered goods will only be accepted if such returns are based on a legitimate exercise of warranty claims which give the right to return the goods. The returned goods shall - notwithstanding the claimed defect - be without any other damage and the time period until the expiry of the “best before date” shall, in principle, not be less than four months. The foregoing clause shall not apply if such clause leads to an unlawful reduction of the limitation period.
6.9 Damage claims of the Buyer, irrespective of which legal reason, shall be excluded. This shall not apply in as far as there is compulsory liability, e.g. in accordance with the product liability law, in cases of premeditation, gross negligence, as a result of injury to life, body or health or due to violation of such duties, whose fulfilment enables execution of the contract in the first place and on the meeting of which the contractual partner may depend regularly (major contractual duties). The damage claim for violation of major contractual obligations is, however, limited to the contractually typical, foreseeable damages, provided it is not a case of premeditation or gross negligence, or there is liability for injury to life, body or health. A change of the onus of proof to the disadvantage of the orderer is not linked with the above regulation.

6.10 Claims for defect guarantee and damage claims for other legal reasons are statute limited after 12 months after the legal start of the statute of limitations. This period does not apply where the law prescribes other periods, e.g. in the case of damage claims according to the product liability law and the cases of compulsory liability as stated in clause 6.9.

7. Retention of title

7.1 Until full payment of the purchase price and when accounts are outstanding from other deliveries, until their payment, the goods shall remain our property (goods under reserve).
7.2 If goods under reserve are processed by Buyer to a new, moveable item the new item will become property of the Vendor. In the case of processing together with goods which are not the property of Vendor, the Vendor shall acquire co-ownership in the new item in accordance with the ratio of the goods under reserve to the other goods at the point of time of processing.
7.3 Buyer shall be entitled to sell the goods by way of regular course of business. He shall here and now pass on to us all claims arising for him from the sale of the goods vis-à-vis his buyer, in the amount of the still existent purchase price debt. He must disclose the name of this buyer upon our demand.
7.4 The Buyer is obliged to notify any third party access to the goods under reserve immediately.

8. Place of fulfilment and jurisdiction

8.1 The place of fulfilment for the contractual obligations of both parties and exclusive place of jurisdiction for all disputes arising from and in connection with the contractual relations, are the headquarters of the Vendor.
8.2 The Vendor may also sue the Buyer at his registered offices.

9. Final provisions

9.1 The contractual relations between Buyer and Vendor are subject to German law with exclusion of the convention on contracts for the international sale of goods (CISG).
9.2 When Vendor’s buyers export Vendor’s goods into regions outside of the Federal Republic of Germany, the Vendor shall not accept any liability, should the Vendor’s products violate third party protective rights. The Buyer shall be liable to indemnify that damage, which is caused by Vendor through export of goods which the Vendor did not expressly deliver for the purpose of export.
9.3 Should these provisions be invalid in part or contain loopholes, the validity of the remaining provisions shall not be affected by this.

Last updated: March 2015

RAPS GmbH & Co. KG

 

General Purchase and Payment Terms of RAPS GmbH & Co. KG (GTC-Purchase Department)

Preface

We purchase goods and other items worldwide, order plant sections, hire or rent rooms or objects, book journeys, place agency orders and use services of all types. To this effect, we enter into miscellaneous agreements (e.g. purchase agreements, contracts to manufacture, service or agency agreements, storage agreements as well as different hybrids of the above-mentioned agreement types.

Our contractual partners (e.g suppliers, sellers, work contractors, service providers, brokers, forwarders) are hereinafter called supplier.

Independently of the type of agreement, an agreement concluded with a supplier is hereinafter called Agreement.

 

1. Scope

Unless otherwise provided in writing, the GTC Purchase shall exclusively apply to all our current and future orders. Other supplier's contractual or business terms shall not apply unless we agreed to them in writing. This also shall apply if they are not explicitly rejected in individual cases or we accept services even though we know of terms and conditions contradicting to or deviating from our GTC Purchase.

 

2. Subject matter

The subject matter of the agreement results from the understandings between us and the supplier and these GTC Purchase.

 

3. Offer documents

All property rights, copyrights and other rights to figures, drawings, data, calculations and other documents are reserved by us.

 

4. Service term, delivery and customs documents

4.1 The service time as specified in the order or agreement shall be binding. Premature services shall require our previous consent.

4.2 Supplier shall inform us immediately in writing if events occur or can be expected such that the agreed service term cannot be complied with.

4.3 In case of a service default we may assert the legal claims. In particular, we may elect to withdraw from the agreement and claim damages instead of the service after the fruitless expiration of a time limit.

4.4 If a penalty has been stipulated with supplier for a late service, we first may accept the service without any reservation and declare until complete payment of the service that we reserve the right to claim the penalty.

4.5 Faulty or incomplete delivery or customer documents shall entitle us to a refusal of acceptance.

 

5. Place of performance, shipping costs and risk transfer

5.1 Unless otherwise expressly agreed, the place specified in the agreement or order shall be the place of performance for all supplier services.

5.2 The place of our headquarters shall be the place of performance for payments.

5.3 Unless otherwise expressly agreed in writing, supplier shall provide carriage-paid deliveries according to Incoterms ® 2010 / ICC (DDP - Delivered Duty Paid).

5.4 Supplier shall in any case bear the risk of an accidental loss or accidental deterioration of the service item until transfer in the place of performance no matter whether or not a carriage-paid service had been agreed.

 

6. Inspection of the service, liability for defects

6.1 Supplier shall undertake that the service complies with the quality requirements in every aspect, in particular with the contents of an agreed function specification or our specification questionnaire. Food or other items designated for eating, raw products or packagings, if delivered, shall comply with the legal regulations of the version valid at the time of delivery. Transport shall only be by vehicles suitable and approved for food.

6.2 If the agreement concluded with supplier is a commercial transaction pursuant to §§ 343, 344 HGB (German commercial code), we are obliged to inspect the goods and/or service for possible quality and quantity differences within a reasonable time. A complaint shall be deemed to have been made in time if it is received by supplier within 5 workdays from the time of reception or identification in case of hidden defects.

6.3 We shall be entitled to the full claims arising from a defect. In particular, we may elect to request the elimination of defects or the delivery of a proper service from supplier. We expressly reserve the right to withdraw and damages instead of the service.

6.4 Unless longer legal terms are provided or a different agreement has been made, the limitations perios for our sales law-based claims from defects shall be 36 months from the transfer or risk.

 

7. Indemnity

Supplier shall indemnify and hold us harmless against all claims based on the proper or predictable use of our product and ascribed to a defect or another non-agreed condition of the service or a culpable breach of obligations by supplier.

 

8. Protective rights

8.1 Supplier shall make sure that the rights of third parties are not violated within the Federal Republic of German by his/her service or in connection with that.

8.2 If a third party adresses us because of obligations violated by supplier pursuant to subsection 8.1, supplier shall indemnify us against the claims on a first wirtten notification (including possible costs for legal defense) unless he/she can prove that he/she is not responsible for the violation of protective rights. We are not entitled to come to an agreement and in particular to reach a settlement with a third party without supplier's consent.

8.3 The limitation period for our claims from this subsection 8 shall be 3 years from the start of the commencement of legal limitation.

 

9. Invoicing, payment and contractual exclusion

9.1 The invoice shall contain all compulsory information pursuant to the legal provisions as well as the order number and shall be sent to us in duplicate separate from the delivery of goods or the service.

9.2 Unless otherwise agreed in writing, the payment terms shall start after complete service and reception of the invoice. We may make payments within 14 days at a discount of 3% or net within 45 days. Unless otherwise agreed in writing, payment will be made by payment means or foreign currencies at our discretion.

9.3 Supplier may make set-offs with undisputed claims, claims which are disputed but ripe of decision or claims by a non-appealable declaratory judgment.

 

10. Assignment, reservation of ownership and right to withhold

10.1 Supplier's claim shall not be assigned to third parties without our previous consent. We may make the consent conditional on a confirmation of the third party that a payment to the supplier has a debt-discharging effect. Beyond that, we will refuse consent for a compelling reason only. § 354a HGB (German commercial code) shall not be accepted by that.

10.2 We will not accept a simple reservation of ownership.

10.3 We will not accept an extended reservation of ownership.

10.4 Supplier shall claim a right to withhold only in case of a counter-claim from this agreement.

 

11. Force Majeure

In case of Force Majeure (e.g. natural disasters, war, turmoil) we may withdraw from this agreement for supplier's services not rendered yet if the acceptance of the service is impossible or more difficult for us. If we do not withdraw, the service shall be extended by during of the impairment.

 

12. Secrecy

12.1 Supplier shall not disclose data, calculations or other documents handed over to or made by supplier according to our specifications to third parties. These items shall be returned to us on request. Supplier shall confidentially treat all information about us and all business information received within the scope of the order including the award of the other. This shall not apply if and to the extent the information has already been known to the third party and the public or supplier is legally obliged to disclose the information.

12.2 This confidentiality clause shall survice a termination of this agreement.

 

13. Other provisions

13.1 Kulmbach shall be the exclusive place of jurisdiction.

13.2 In each case the law ot the Federal Republic of Germany shall be applicable. An application of the rules of the United Nations Convention on Contracts for the International Sale of Goods (CISG) as of April 11, 1980, shall be excluded expressly.

 

Date of issue: V-1 06/2011 E

 

RAPS GmbH & Co. KG
Adalbert-Raps-Straße 1
95326 Kulmbach
Germany