As of: 2021
General Terms and Conditions of Delivery and Payment of RAITHEL + Co. GmbH (hereinafter referred to as "Terms and Conditions of Sale")
- These terms and conditions of sale apply to every (delivery) framework agreement (hereinafter “agreement”) and all individual agreements and/or orders as part of an agreement (hereinafter “individual agreement”) with companies, public law legal entities and special funds under public law (hereinafter “partners”). We provide our deliveries and services based exclusively on the following conditions. Terms and conditions of the partner that we do not explicitly acknowledge have no validity.
- The contractual partners shall confirm verbal arrangements immediately in detail in writing.
- Orders only become binding with our order confirmation.
- The information and figures contained in brochures and catalogues are industry-standard approximations, unless we have expressly indicated their binding nature.
- We are entitled to refuse to accept an order if it becomes clear that our entitlement to payment from the individual contract would be placed at risk due to a lack of financial solvency of the partner in the event of acceptance of the order. This is particularly the case if the partner’s credit rating is classified as “High risk” (level 7) or worse by Euler Hermes Forderungsmanagement Deutschland GmbH or another reason as defined by Section 321(1) BGB (German Civil Code) exists. The same applies, irrespective of the regulation in clause 30, for the fulfilment of an order for which Section 321(1) sentence 2 and (2) BGB also applies. The right of refusal shall cease to apply retroactively if the counter-performance is effected by the customer or sufficient security is provided by the customer. In the same way, however, the right of termination without notice for good cause shall cease to apply if such reasons no longer exist.
- Our order confirmation shall be exclusively authoritative for the content of the delivery contract. In the event of delivery without a separate order confirmation, the delivery bill shall be deemed to be such.
- We are also entitled to terminate the contract without notice for good cause. Good cause particularly exists if, after concluding the contract, it becomes apparent that our payment entitlements established under the contract are at risk due to a lack of financial solvency of the partner and the partner does not provide credible assurance of their solvency within an appropriate period despite being requested to do so. The statutory rights of termination and withdrawal and the rights pursuant to clauses 30 and 46 remain unaffected.
- Should individual provisions of these terms and conditions of sale be or become invalid, this will not affect the validity of the remaining provisions.
Long-term and call-off agreements, price adjustment
- Open-ended agreements and agreements with terms longer than two years may be terminated with six months’ notice.
- If, in the case of long-term contracts (contracts with a term of more than 12 months and open-ended contracts), a material change in wage, material or energy costs occurs, each contract partner is entitled to request negotiations on an appropriate price adjustment in consideration of these factors.
- If a binding order quantity is not agreed, our calculation shall be based on the non-binding order quantity (target quantity) expected by the partner for a certain period.
- For call-off supply contracts, unless otherwise agreed, we must be informed of binding quantities at least 2 months before the delivery date via a call-off. Additional costs resulting from a delayed call-off or subsequent amendments to the call-off, with regard to time or quantity, by our partner shall be borne by the partner, unless they are not responsible for the delay or subsequent amendment; our calculation is decisive in this respect.
- The advance call-offs of a customer within the framework of an order and call-off agreement are only binding for us if the delivery call-off has not been objected to within 5 working days.
- Each contract partner shall only use all documents (including templates, models and data) and know-how, which they obtain from the business relationship, for the jointly pursued purposes and ensure access to third parties is prevented with the same level of care that is taken for internal documents and know-how, if the other contractual partner marks them as confidential or has an obvious interest in ensuring their confidentiality.
- Insofar as the contractual partner then receives and/or stores information subject to secrecy in electronic form, it must protect it like personal data against unauthorized access by third parties in accordance with the BDSG and the DSGVO.
- The obligation does not apply for documents and know-how that are public knowledge or of which the contractual partner was already aware upon receipt, without being subject to a confidentiality requirement, or which are subsequently transmitted by a third party entitled to forward this information or which are developed by the receiving contract partner without the use of the confidential documents or know-how provided by the other contract partner.
- The obligation to maintain confidentiality shall continue to exist until the expiry of 5 years after the termination of the respective contract.
Drawings and descriptions
- Should a contractual partner supply the other with drawings or technical documents on the goods to be delivered or the production thereof, these shall remain the property of the submitting contractual partner.
Sample and production equipment
- The manufacturing costs for samples and production equipment (tools, moulds, templates, etc.), shall be invoiced separately from the products to be delivered, unless otherwise agreed. This also applies for manufacturing equipment that needs to be replaced due to wear.
- We shall bear the costs for the maintenance and proper storage as well as the risk of damage or destruction of the manufacturing equipment.
- If the partner suspends or terminates the collaboration during the period of production of the models or manufacturing equipment, they shall bear all manufacturing costs that have arisen up to that point in time.
- The manufacturing equipment shall remain in our possession at least until the wind-up of the supply contract, even if the partner has paid for the equipment. Afterwards, the partner is entitled to demand the surrender of the manufacturing equipment, if an amicable arrangement has been reached on the surrender date and the partner has fully complied with their contractual obligations. Manufacturing equipment for which only part of the costs have been paid shall remain in our possession.
- We shall store the manufacturing equipment for three years after the last delivery to our partner free of charge. After this period, we shall contact our partner in writing requesting a statement on further use within 6 weeks. Our storage obligation ends if no statement has been received within this 6-week period or no new order has been submitted.
- We may only use customer-related production equipment with the prior written approval of our partner for deliveries to third parties.
- Our prices are stated in euros, exclusive of value added tax, packaging, freight, postage and insurance.
- The information in our price lists is always subject to change unless we specify a period of validity that is binding for us. Cost estimates are also non-binding unless expressly agreed otherwise.
Terms and conditions of payment
- All invoices are due for payment within 30 days from the invoice date.
- If we have indisputably delivered partially faulty products, our partner is still obliged to submit payment for the fault-free products, unless a partial delivery is of no interest to the partner. Apart from this, the partner may offset the payment with claims for the reimbursement of defect removal or manufacturing costs. Any offset with other counterclaims is only permissible if they have been established by law, are ready for decision or are undisputed. The partner’s right of retention or right to withhold payment also only exists within these limits.
- If the payment deadline is exceeded, we are entitled to charge default interest in the amount that the bank charges us for overdrafts, but at least 8 percentage points above the base rate of the European Central Bank.
- In the event of a default of payment, we may suspend the performance of our obligations until the receipt of payment after notifying the partner in writing.
- Bills of exchange and cheques shall only be accepted if agreed and only as conditional payment and only upon condition of their eligibility for discount. Discount charges shall be calculated from the due date of the invoice amount. Any guarantee for the timely presentation of the bill of exchange and cheque and for the submission of a protest of a bill of exchange is excluded.
- If errors are discovered in the billing documents after the final payment has been made, the final invoice must be corrected. Raithel and the customer are obligated to reimburse each other without interest for the amounts due to them thereafter.
- Unless otherwise agreed, we deliver “ex works”. The notification of readiness for dispatch or collection by us is decisive for compliance with the delivery period or the delivery deadline.
- The delivery period commences with the dispatch of our order confirmation and is appropriately extended if the conditions in clause 64 exist.
- Partial deliveries are permissible to a reasonable extent. They shall be invoiced separately.
- Production-related delivery surpluses or shortfalls are permissible within a tolerance of 10 percent of the total order quantity. The total price shall be amended in line with the scope of the surplus or shortfall.
- Unless otherwise clearly specified, delivery shall be deemed to have taken place as soon as the products, before being loaded, are made available in our production. Any modification of an order by the customer during its execution, if accepted by us, shall result in an extension of the agreed delivery period, the estimated duration of which we shall notify the customer in writing.
Shipping and transfer of risk
- Products for which a notification of readiness for dispatch has been sent must be collected immediately by the partner. Otherwise, we are entitled to send the products or store them at the partner’s risk and expense, at our discretion.
- We shall select the means of transport and transport route unless a specific agreement has been reached.
- The risk transfers to the partner with the handover to the railway, carrier or freight forwarders, or upon commencement of the storage, however no later than upon leaving the factory or warehouse, even if we have taken over the delivery.
- If we can foresee that the goods cannot be delivered within the delivery period, we shall immediately inform the partner of this in writing, notifying it of the reasons for this and if possible stating the probable delivery time.
- If delivery is delayed by a circumstance mentioned in clause 64 or by an action or inaction by the partner, an extension appropriate to the circumstances shall be granted for the delivery period.
- The partner shall only be entitled to rescission of an individual agreement if we are responsible for non-observance of the delivery deadline and it has set us an appropriate period of grace without success.
Retention of title
- We shall retain title to the goods delivered until fulfilment of all claims from the business relationship with the partner.
- The partner is entitled to sell these products in the ordinary course of business as long as they meets their obligations from the business relationship with us in good time. However, the partner may not pledge or transfer the reserved products as security. The partner is obliged to safeguard our rights in the event of the credited resale of the reserved products.
- If the event of a breach of duty by the partner, especially in case of default of payment, following the unsuccessful expiration of an adequate grace period for payment set for the partner, we are entitled to withdraw from the individual contract and demand the return of the products; the statutory provisions on the dispensability of setting a deadline remain unaffected. The partner is obliged to surrender the products.
- The partner hereby assigns all receivables and rights from the sale or any permitted leasing of products, to which we have ownership rights, by the partner to us as security. We accept this assignment herewith.
- Any processing of the reserved products shall always be performed by the partner on our behalf. If the reserved products are processed or inseparably mixed with items that do not belong to us, we shall acquire joint ownership of the new object in the ratio of the invoice value of the reserved product to the other processed or mixed items at the time of processing or mixing. If our products are combined or inseparably mixed with other moveable objects to form a single object and the other object is considered the main object, the partner shall transfer proportional joint ownership to us, provided that it is the owner of the main object. The partner shall preserve the sole ownership or joint ownership on our behalf. Apart from this, the same provisions apply for the object resulting from the processing, combination or mixing as apply for the reserved product.
- The partner must immediately inform us of enforcement measures by third parties relating to the reserved product, the receivables assigned to us or other securities and transfer the documents necessary for an intervention. This also applies for any other type of impairments.
- If the value of the existing securities exceeds the secured receivables by more than 20 percent in total, we are obliged to release securities in this amount at our discretion at the partner’s request.
- The quality of the goods is based entirely on the agreed technical delivery specifications. If we are required to deliver in line with drawings, specifications, samples, etc., provided by our partner, they take over the risk of fitness for the intended use. The time of transfer of risk as defined in clause 33 is decisive for the contractual condition of the products. 40.
When making deliveries, we comply with the applicable statutory regulations of the European Union and the Federal Republic of Germany, e.g. the REACH Regulation (Regulation EC no. 1907/2006), the Electrical and Electronic Equipment Act (ElektroG) as well as the Electrical and Electronic Equipment Regulation (ElektroStoffV) as the national implementations of Directive 2002/95/EC (RoHS I) and 2011/65/EU (RoHS II) and Directive 2002/96/EC (WEEE) and the End-of-Life Vehicle Regulation (AltfahrzeugV) as the national implementation of EU Directive 2000/53/EC. We shall immediately inform the partner of relevant modifications to the products, especially those caused by the REACH regulation, their delivery capability, possible use or quality and arrange appropriate measures with the partner in each specific case.
- We are not liable for material defects that arise from inappropriate or improper use, incorrect assembly or commissioning by the partner or third parties, usual wear, incorrect or negligent handling, nor are we liable for the consequences of improper modifications or maintenance work performed by the partner or third parties without our consent. The same applies for defects that only insignificantly reduce the value or the suitability of the products.
- The claims for material defects lapse as defined by law, unless otherwise agreed.
- If the acceptance of the products or a first article inspection has been agreed, complaints concerning defects, which the partner could have identified in the event of a careful acceptance or first article inspection, are ruled out.
- We must be given the opportunity to examine the reported defects. A product for which a complaint has been submitted must immediately be returned to us; we take over the transport costs if the notice of defects is justified. If the partner does not fulfil these obligations or modifies a product for which a complaint has been submitted without our consent, any claims for material defects shall lapse.
- In the event of a legitimate, timely notice of defects, we shall improve the product for which a complaint has been submitted or deliver a flawless replacement at our discretion.
- If we do not comply with these obligations or not in line with the contract within an appropriate period of time, the partner may set us a final grace period, within which we must meet our obligations, in writing. Following the unsuccessful expiration of this period, the partner may request a price reduction, withdraw from the individual purchase contract or carry out the necessary improvement work themselves or assign a third party at our risk and expense. Any reimbursement of costs is excluded to the extent that expenses increase because the product was moved to another location after delivery by us, unless this corresponds to the intended use of the product.
- The partner’s statutory rights of recourse against us only exist to the extent that the partner has not reached any agreements with their customer, which exceed the statutory claims for defects. Moreover, clause 57, last sentence, applies accordingly for the scope of the rights of recourse.
Other claims, liability
- Unless provided for below, other and additional claims of the partner against us shall be excluded. This particularly applies for claims for damages due to a breach of obligations and from liability in tort. We are not liable for damage that is not caused on the delivered product itself. In particular, we are not liable for lost profit or other financial losses by the partner.
- The aforementioned limitations of liability do not apply in the event of intent, in case of gross negligence by our legal representatives or executive officers as well as in the event of a culpable breach of material contractual obligations, that is to say, such obligations which enable the proper fulfilment of the contract in the first place and upon whose compliance the contract partner can regularly rely. In the event of a culpable breach of material contractual obligations, apart from in cases of intent or gross negligence by our legal representatives or executive officers, we are only liable for the typical damages that are reasonably foreseeable for the contract.
- Moreover, the limitation of liability does not apply in cases in which the German Product Liability Act provides for a liability for personal injury and property damage for privately used items in case of faults in the delivered product. It also does not apply in the event of death, physical injury or damage to health and in case of missing assured characteristics, if and to the extent that the specific purpose of the assurance was to protect the partner from damage that did not occur on the delivered product itself.
- If our liability is excluded or limited, this also applies for the personal liability of our employees, legal representatives and vicarious agents.
- The statutory regulations on the burden of proof remain unaffected.
- We cannot be held liable for the non-execution or delayed execution of contractual obligations based on force majeure. Force majeure” shall be understood to mean an external event that has no operational connection and cannot be averted even by exercising the utmost care that could reasonably be expected. If such an event of force majeure occurs, we shall be temporarily or even permanently released from our performance obligations without the customer being able to claim damages as a result.
- Unforeseen obstacles to performance and delivery, such as the occurrence of epidemics or other outbreaks of diseases and such, shall in principle constitute a case of “force majeure”. Strikes, delays in delivery by upstream suppliers, lockouts, effects in the sense of natural hazards (fire, lightning strikes and floods), embargoes and also short-time working as an effect of such events shall be deemed equivalent to force majeure.
- In such cases of “force majeure”, we shall initially be entitled to a reasonable extension of the delivery period. The contract shall be suspended until the “force majeure” ceases to exist. If it is objectively not possible to continue the execution of the contract within 2/3 months from the occurrence of the event, the parties to the contract shall be obliged to enter into negotiations on adjustments to the contract. If these fail, each soap has the right to withdraw from the contract within 30 days from the failure of negotiations.
Place of performance, place of jurisdiction and applicable law
- Our registered office is the place of fulfilment unless otherwise specified in the order confirmation.
- Our registered office is the legal domicile for all legal disputes from and in connection with a contract, including in the case of actions relating to bills of exchange or cheques. We are also entitled to initiate proceedings at the partner’s registered office.
- The law of the Federal Republic of Germany applies to the contractual relationship, to the exclusion of all others. The UN Convention on Contracts for the International Sale of Goods from 11 April 1980 (CISG) does not apply.
(Based on WSM-AGB-140616 revision 02/2021)