Terms & Conditions, Status: January 2012
II. General Statements, Area of Application
1. The following terms and conditions of R.T.M. Rainer Trapp Medizintechnik GmbH (hereafter R.T.M.) shall apply exclusively to deliveries and services by R.T.M.. R.T.M. does not recognize contrary or deviating delivery terms and conditions of buyer, unless R.T.M. has agreed to them in writing. The following terms and conditions of delivery shall also apply if R.T.M. delivers to buyer without reservation knowing of the contrary or deviating terms and conditions of buyer.
2. All agreements between R.T.M. and buyer regarding the implementation of this agreement are included in writing in this agreement.
3. The present terms and conditions of delivery shall apply only to companies, public law companies, or public law special funds pursuant to § 310 par. 1 BGB (German Civil Code).
4. These terms and conditions of R.T.M. shall also apply to all future transactions with buyer.
II. Offer, Offer Documents
1. If an order has to be qualified as an offer pursuant to § 145 BGB, R.T.M. may accept it within two weeks. Unless otherwise provided for in an offer, offers by R.T.M. are not binding. The content and extent of the contractual obligations is determined exclusively by the order confirmation of R.T.M..
2. R.T.M. reserves all ownership and copyrights rights to copies, drawings, calculations, and other records. This also applies to written records that have been marked “confidential.” To make them available to third parties buyer requires the express written consent of R.T.M..
IIII. Pricing, Payment Terms, Security
1. Payments need to be settled in EURO as stated in the invoice.
2. Unless otherwise provided for in the order confirmation, the prices of R.T.M. shall apply “ex works” excluding packaging. The latter is invoiced separately.
3. The prices of R.T.M. do not include the statutory value added tax. It is generally stated in the offer and order confirmation of R.T.M. and is shown separately in the invoice in the statutory amount at the date of the invoice.
4. The deduction of a discount requires a separate written agreement.
5. Unless otherwise provided for in the order confirmation, the invoice amount is payable net (without deduction) within three weeks after date of invoice. The statutory default payment provisions shall apply.
6. Buyer shall only be entitled to an offset if his counterclaims have been finally adjudicated, are uncontested, or have been recognized by R.T.M.. Commercial customers are not entitled to offset.
7. If buyer is in default or if there are clear indications of his impending inability to pay R.T.M. may terminate the processing on orders that have been started and R.T.M. may hold back undelivered partial deliveries until customer has paid the open accounts receivable or has provided corresponding security, including an irrevocable bank guarantee of a European Currency Area domestic credit institution that is admitted as domestic custom and tax entity. If no payment is made and no security is provided within an appropriate time not to exceed two weeks, R.T.M. is entitled to cancel all existing agreements and to invoice the customer for all costs incurred, including lost profit. It is assumed that the lost profit equals at least the agreed price less expenses not incurred.
IV. Delivery Times, Delivery Terms
1. If a delivery time is agreed on or stated by us, it constitutes an approximate time unless the delivery time is stated as “fixed,” “firm,” or “binding” or something similar.
2. If a delivery time is agreed on, it begins with the date of mailing of the order confirmation and is complied with if the merchandise is shipped on or prior to the expiration of the delivery time or if customer was notified that it is ready for delivery. In case of early delivery, this time is determinative. Proper and timely self-delivery is reserved.
3. The delivery time shall be extended by a reasonable period of time – even in case of a possible default – if unforeseeable and in spite of due care by R.T.M. unavoidable interruptions occur, in particular in case of unforeseen inability of our suppliers or subsuppliers to deliver, in case of operating interruptions, official interferences, strikes, lockouts, or energy interruptions.
4. The beginning of the delivery time stated by R.T.M. assumes that all technical questions have been clarified.
5. Compliance with delivery obligations by R.T.M. requires the timely and proper performance of buyer’s obligations. The objection of lack of performance is reserved.
6. If buyer fails to accept delivery or if he fails to satisfy other obligations, R.T.M. may demand compensation for the damages R.T.M. has incurred, including additional expenses. Additional claims are reserved.
7. If the requirements of item 6 exist, the risk of accidental loss or accidental deterioration of the delivery item is transferred to buyer at the time at which buyer is in default with the acceptance or payment.
8. If R.T.M. does not deliver within a reasonable grace period, which is generally two weeks minimum, buyer may cancel the agreement.
9. To the extent R.T.M. is responsible for a delivery default, buyer may rescind the agreement by written declaration in accordance with the statutory provisions and in case of intentional wrongdoing or gross negligence on the part of R.T.M. request damages instead of delivery. Damage claims in particular pursuant to §§ 280, 286 BGB are excluded in case of simple negligence. If the default in delivery is not due to an intentional violation of the agreement by R.T.M., our liability for damages is limited to the foreseeable, typically occurring damages. The above exclusions do not apply if and in as far as the fault of R.T.M. has caused injury to the life, body, or health of a person.
10. In case of defective delivery, the provisions under VI of these terms and conditions shall apply exclusively.
V. Risk of Loss
1. Unless otherwise provided for in the order confirmation delivery is “ex works”.
2. Upon buyer’s requests R.T.M. shall cover the delivery by transportation insurance. The costs shall be paid by buyer.
VI. Warranties, Liability for Defects
1. The prerequisite for valid buyer claims is that buyer has complied with his duties to examine and notify pursuant to § 377 HGB (German Commercial Code).
2. If the delivered item is defective, R.T.M. may at his option remove the defect or deliver a new item without defect. In case of the removal of the defect R.T.M. shall be responsible for all expenses incurred in connection with the removal of the defect, in particular transportation, travel, labor and material costs to the extent that these are not increased by moving the item to a location other than the place of performance.
3. If an attempt to cure fails, buyer may at his option cancel or demand a reduction of the purchase price.
4. R.T.M. is liable in accordance with the statutory provisions if buyer asserts damages based on intentional wrongdoing or gross negligence, including intentional wrongdoing or gross negligence of the representatives or agents and servants of R.T.M.. If no intentional violation of the agreement is alleged against R.T.M., damage claims are limited to foreseeable, typically occurring damages.
5. R.T.M. will be liable according to the statutory provisions if R.T.M. intentionally or negligently violates a major contractual obligation. In this case liability for damages will be limited to foreseeable, normally occurring damages.
6. The statute of limitations for defects is 12 months starting from the date of transfer of risk. The statute of limitations in case of default in delivery pursuant to §§ 478, 479 BGB shall remain unaffected; it is five years from the date of delivery of the defective merchandise.
7. Liability for negligent or intentional violation of life, body or health shall remain unaffected; this applies even in case of strict liability pursuant to the Total Product Liability Act.
8. Unless otherwise provided for above, liability is excluded.
VII. Joint and Severable Liability
1. Any liability for damages exceeding the liability provided for in VI. is – irrespective of the legal nature of the claim – excluded. This applies in particular to damage claims for culpa in contrahendo, for other violations of obligations or to tort claims for property damages pursuant to § 823 BGB.
2. To the extent damage claims against R.T.M. are excluded or restricted, this shall also apply to personal liability of employees, representatives, servants, and agents of R.T.M..
VIII. Retention of Title
1. R.T.M. retains ownership of the merchandise delivered until receipt of all payments under the delivery agreement. In case of contractual violations of the buyer, in particular default in payment, R.T.M. is entitled to take back the merchandise delivered. R.T.M.’s taking back the merchandise does not constitute a cancellation of the agreement, unless R.T.M. expressly stated this in writing. The pledge of the merchandise by R.T.M. always constitutes a cancellation from the contract. After taking back the merchandise, R.T.M. is entitled to dispose of it. The proceeds from the disposal shall be applied to the obligations of the buyer – minus reasonable costs of disposal.
2. Buyer shall treat the merchandise with due care, buyer is in particular obligated to insure it at his expenses against damages caused by fire, water, and theft at its cost of acquisition. If maintenance or inspection work is required, buyer shall perform these at his expense.
3. In case of attachments or other third party actions buyer shall immediately inform R.T.M. in writing so that R.T.M. may file a claim pursuant to § 771 ZPO (German Code of Civil Procedure). To the extent third parties are unable to reimburse R.T.M. for its court and out-of-court expenses of a complaint pursuant to § 771 ZPO, buyer shall be responsible for this loss.
4. Buyer is authorized to resell the merchandise in the ordinary course of business, but he herewith assigns all accounts receivable that accrue to him through the resale against his customers or third parties irrespective of whether the item was resold with or without processing in the invoice amount (including value added tax) to R.T.M.. Even after the assignment buyer shall be authorized to collect this account receivable. The authorization of R.T.M. to collect this account receivable shall remain unaffected. However, R.T.M. agrees not to collect the account receivable as long as buyer pays his obligations from the income received, is not in default and no application for bankruptcy or a composition or insolvency proceeding has been filed and payment has not been stopped. If the latter is the case, R.T.M. may demand that buyer reveals the assigned accounts receivable and their payors, provides all information required for collection, turns over the necessary records and informs the third parties of the assignment.
5. On request of buyer, R.T.M. agrees to release the securities to which R.T.M. is entitled to the extent that the realizable value of the securities exceeds the accounts receivable to be secured by more than 10%. R.T.M. shall select the securities to be released.
IX. Venue, Place of Performance, Invalidity
1. All claims under this agreement or in connection with this agreement shall be subject to the jurisdiction of the local courts of our place of business. However, R.T.M. may also sue the purchaser at his place of business.
2. The parties agree that the laws of the Federal Republic of Germany shall control. The application of the Law of Sales of the United Nations is excluded.
3. Unless otherwise provided for in the order confirmation, place of performance is the place of business of R.T.M. (Graben-Neudorf).
4. The invalidity of one of these clauses or of an individually agreed clause in the agreement shall not affect the validity of the remaining agreement.