GENERAL TERMS AND CONDITIONS.
I. Applicability of our General Terms and Conditions
All deliveries and services to companies, traders and public entities are governed exclusively by the General Terms and Conditions set out below. Any contrary or divergent standard terms for business dealings with us (hereinafter “RAKO”) are at all times expressly objected to unless we have consented to their applicability in writing. The same applies to special agreements on delivery or payment terms in business dealings with our field service staff not authorized to conclude such agreements. Our General Terms and Conditions also apply to all future business transactions.
II. Offers / Order Acceptance
Our offers are non-binding and become binding only by our written confirmation and to the extent confirmed. We may accept orders within four weeks of their receipt. We incur no obligations until we provide written acceptance or confirmation of the order.
III. Scope of Delivery / Description of Goods
We are entitled to produce 10% more or less of the goods ordered or confirmed if this is necessary for operational or organizational reasons. The Buyer is obligated to accept such variation in delivery and to pay the agreed remuneration if it has been notified in timely fashion of such variation. We are entitled to make partial deliveries. Subsequent modifications caused by the Buyer, including machine down time incurred thereby, must be additionally paid for. Repetitions of test print runs demanded by the Buyer due to minor divergences from the original are also considered modifications, and the above applies. Sketches, drafts, test mechanicals, test runs, correction proofs as well as modifications of data delivered or transmitted and similar preparatory work by us caused by the Buyer will be charged additionally.
Descriptions of goods are only binding where they have been expressly confirmed in writing. All warranties are excluded unless warranties are granted expressly and in writing.
We reserve the right to make creative modifications which we, at our discretion, deem to be appropriate. Minor discrepancies in quality, color, design, outfitting and processing, particularly where they are commercially conventional, do not imply impairment of/defects to the contractually agreed quality of the goods. With regard to color reproductions, regardless of the production methods, minor divergences from the original do not constitute a defect. The same also applies to a comparison between other originals and the final product.
Except where expressly agreed otherwise, all copyright and the right to reproduction of our own designs, originals and so forth remain exclusively with us. Finished artwork, films, mechanicals and stencils remain our property even if the Buyer has been invoiced for them.
The Buyer must hold us harmless against all third-party copyright claims which may result from the processing of its originals. This applies mutatis mutandis to all other third party intangible/intellectual property rights and claims.
V. Delivery Deadlines
All representations made as to delivery and service deadlines are non-binding and only indicative. After a non-binding deadline has passed, the Buyer may demand in writing delivery within an appropriate period of time specified by the Buyer. Such additional period must be at least 10 working days from the first deadline. At the end of that period the Buyer may make written demand for an additional deadline with the notice that it will not accept delivery after the expiry of that deadline. The assertion of damage compensation claims requires that they are announced when that deadline is set by the Buyer.
The Buyer is only entitled to damage compensation claims due to late delivery or the exercise of rights provided by Section 323 BGB (German Civil Code) if we have caused the delay with deliberate intent or through gross negligence, except where it was clearly recognizable to us that timely delivery is of the utmost importance for the Buyer. Any such claims are limited by the value of the delivery (equaling the remuneration payable). In case of force majeure, industrial dispute actions, regulatory measures as well as of non-culpable operational disturbances the delivery deadline is extended, without additional measures, by the length of the period the obstruction persists, up to a maximum of two months.
Shipping occurs ex Witzhave at the risk and expense of the Buyer. Risk passes regardless of the agreed place of performance at the latest when the goods are shipped to the Buyer. Where shipping is delayed due to circumstances for which the Buyer is responsible then risk passes to the Buyer as soon as the goods are ready to ship. We ship the goods uninsured unless the Buyer has specifically requested insured shipment.
VII. Prices and Payments
All prices indicated mean net plus statutory VAT. Changes in the cost structure prior to delivery entitle us to corresponding price adjustments according to our equitable discretion if more than two months have passed between conclusion of the contract and delivery. Invoices are payable within eight days of their issue date with a 2% early payment discount and within 30 days from the date of issue of the invoice net. Invoices for preliminary costs are due immediately net cash. Thereafter the Buyer is deemed to be in arrears without a separate reminder. For the duration of arrears, late payment interest in the amount of 8 per cent points above the base lending rate p.a. is charged. Setoff or the assertion of a right of retention is only allowed if the counterclaims are undisputed or have been confirmed by a final, non-appealable court judgement. In case of tangible indications of any impending lack of solvency or a deterioration of the Buyer’s creditworthiness, we may make further processing of the order and further deliveries dependent upon prepayment or collateralisation of the purchase price.
VIII. Retention of Ownership
Delivery of the goods always occurs with retained ownership title. The goods thus remain our property until complete payment of all obligations in the business relationship is effected, including of those falling due after delivery and including any current account balance. The Buyer is entitled until further notice to resell retained-title goods in the framework of its ordinary business activities. The Buyer assigns, with immediate effect, any claims resulting from such resale to RAKO as collateral. Such assignment is hereby accepted. Until further notice, the Buyer remains entitled to collect on such receivable claims. Processing or conversion of the goods is always deemed to occur on our behalf. Where the goods are processed, combined or commingled together with other objects not owned by us, we then acquire co-ownership in the new object in the ratio of the value of our goods to the other objects processed at the time of such processing. If combination or commingling occurred in such a way that the Buyer’s object must be deemed to be the main object, then the Buyer hereby transfers pro rata ownership to us. It maintains sole ownership or co-ownership on our behalf. The same applies otherwise to the object produced by processing, combination or commingling as to the retained-title goods. In particular, the Buyer hereby assigns to us pro rata its receivable claims from resale of the goods. Upon demand by the Buyer, RAKO will release collateral provided that its value exceeds the amount of the receivable claims thus collateralised by 20%. In case of justified doubts as to the Buyer’s creditworthiness, in particular in case of suspension of payments or filing for insolvency proceedings, the Buyer’s entitlement to resale of the retained-title goods and to collection of receivable claims assigned to us terminates with immediate effect, unless the Buyer makes payment in advance.
IX. Warranty and Liability Restrictions
The Buyer must examine the goods immediately after delivery and file complete notification of any recognizable defects. The notification of defects must occur in writing and immediately, and in any event no later than 8 days after delivery of the goods. In case of hidden defects, the deadline begins to run upon discovery. Samples of the goods complained of must be immediately returned for verifying the complaint. Upon receipt of samples of the goods complained of, we are at our option obligated either to subsequent rework of the goods or to replacement delivery for the defective goods within an appropriate period of time, normally within 4 weeks. Should we fail to meet this deadline, or should the subsequent rework fail, then the Buyer is at its option entitled, after setting a second deadline of at least 2 weeks in writing, to cancel the contract or to demand reduction of the purchase sum. Where we rework or make replacement delivery, then upon our demand the entire goods complained of must be returned.
We do not assume any warranty or liability for the suitability of the goods for the usage intended by the Buyer unless we have expressly given assurances of such suitability. The Buyer is obligated to investigate the suitability of the material for its particular usage himself.
Our restrictions on liability do not apply to damages stemming from injury to life, limb or health of a human being, and neither in cases of liability under the provisions of the Product Liability Act. Our liability for simple negligence is expressly excluded unless there is culpable violation of an essential contractual obligation or if we have assumed a warranty or a purchasing risk.
Our liability for damage compensation, regardless of the legal basis (including tort claims) is otherwise governed by statutory regulations if the damage has been caused by deliberate intent or gross negligence by us, our representatives or agents in fulfillment.
Damage compensation claims against us are limited to the typical foreseeable damage. This does not apply in case of claims caused by deliberately intentional or grossly negligent behavior by us, our representatives or our agents in fulfillment.
Finished artwork and correction proofs will only be provided upon express request to do so. Where corrections in the setting are necessary due to subsequent changes by the Buyer, then the Buyer will be additionally billed for such corrections. After clearance to print has been given, we are not liable for printing mistakes overlooked by the Buyer in the proofs.
Insourced components, including data media and data transmitted by the Buyer or Buyer’s agents are not subject to any obligation to examine on RAKO’s part. This does not apply to data which is patently incapable of processing. The Buyer must check data transmitted by us with an updated virus protection program. Data protection is the exclusive responsibility of the Buyer.
X. Statutes of Limitations
In case of purchase agreements, contracts for work and materials supplied, or contracts for services performed, all claims of the Buyer are time-barred after one year from delivery of the goods unless they are subject to a shorter period of limitations. This shortening of statutes of limitations does not apply to damage compensation claims stemming from injury to life, limb or health of a human being or in cases where there is deliberate intent or gross negligence on our part or that of our representatives or agents in fulfillment. Nor is it applicable in cases of violation of essential contractual obligations, aliciously concealed defects, claims under the Product Liability Act or express warranties.
XI. Ancillary Verbal Understandings and Severability
Ancillary verbal understandings are only valid where they have been confirmed by us in writing. This same applies to any change of this present clause.
If one or more provisions of these General Terms and Conditions are or become void, the remaining provisions will not be affected thereby.
The parties are instead obligated to replace the void provision by such a regulation of the matter as most closely approximates the intention expressed in these General Terms and Conditions.
XII. Place of Performance, Forum of Jurisdiction and Applicable Law
The agreed place of performance is Witzhave. As forum of jurisdiction, Hamburg, being the seat of the nearest regional court and regional appeal court, is hereby agreed as the proper forum of jurisdiction for all claims arising from the business relation with us, including in regard to bills of exchange and cheque claims. German law is applicable, with the provisions of the Convention on the International Sale of Goods being expressly excluded.