RACO has changed the General Terms and Conditions with effect from August 1st, 2022.

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General Terms and Conditions for Business and Delivery of RACO-ELEKTRO-MASCHINEN GmbH

1 Scope of application, information on the contractual partner

1.1 The contractual partner of the Customer is:

RACO-ELEKTRO-MASCHINEN GmbH
Jesinghauser Str. 56-64, D-58332 Schwelm

Phone: +49 2336 4009-0
Fax: +49 2336 4009-10

E-mail: raco@raco.de

VAT ID No.: DE126457583
Commercial register: District court Hagen, HRB 5584

hereinafter referred to as „RACO

1.2 The general terms and conditions used by RACO, including contractual clauses on the applicable law and on the place of jurisdiction, are contained in this document. All deliveries and performances of RACO as well as offers of RACO regarding such deliveries and performances towards the group of persons mentioned in Clause1.3 shall be made exclusively on the basis of these General Terms and Conditions for Business and Delivery (hereinafter referred to as "GTC").

1.3 The GTC shall be an integral part of all contracts regarding the deliveries and performances of RACO, which RACO concludes with its contractual partners (the latter hereinafter referred to as "Customer"), provided that the Customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (“BGB”), a legal entity under public law or a special fund under public law.

1.4 Unless RACO provides deviating terms and conditions for business and delivery to the Customer, the GTC shall apply to all contacts of the kind mentioned in Clause1.3 concluded in the future within the business relationship of the Parties, so that it is not necessary to refer to these GTC again for each subsequent individual business transaction.

1.5 General terms and conditions of the Customer or third parties shall not apply, even if RACO does not separately object to their application in each individual case. Insofar as RACO refers to letters or similar documents which contain or refer to general terms and conditions of the Customer or a third party, this shall not constitute an agreement to the validity of those general terms and conditions. General terms and conditions that contradict RACO's GTC shall apply only if RACO expressly agrees to them.

1.6 References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GTC.          

 

2 Offer, order and other declarations, written form

2.1 Offers made by RACO are subject to change and non-binding unless they are expressly marked as being binding or if they contain a specific acceptance period. RACO may accept the Customer’s orders and assignments within fourteen (14) days of their receipt.

2.2 The legal relationship between RACO and the Customer (hereinafter also referred to collectively as the "Parties") shall be governed solely by the written contract in conjunction with these GTC. The contract shall reflect in full all agreements between the Parties on the subject matter of the contract.

2.3 Oral declarations made by RACO prior to the conclusion of the contract shall not be binding and oral agreements made by the Parties shall be replaced by the written contract, unless it is expressly stated in each case that they shall remain in full force.

2.4 Subsidiary agreements, amendments and supplements to the contract must be made in writing. This shall not apply if the Parties agree otherwise in an individual agreement. Transmission by telecommunication, e.g. by e-mail, shall be sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.

2.5 The Parties undertake to immediately document verbally concluded agreements in the aforementioned form for evidentiary purposes. No verbal collateral agreements exist at the time of the conclusion of the contract.

2.6 With the exception of managing directors or authorised signatories, the employees of RACO are not authorised or otherwise entitled to make verbal agreements deviating from the written agreement.

 

3 Scope and content of performances, risk of use

3.1 RACO's description of services shall be decisive for the content, type and scope of the services. Individual agreements and specifications in the offer or in the order confirmation of RACO shall have priority over the GTC.

3.2 To the extent agreed between the Parties in each individual case, RACO shall provide services such as installation, assembly, inspection, calibration, consulting or other services (such services hereinafter referred to as "Services").

3.3 The risk of use and application in regard to the performances owed by RACO shall be borne by the Customer, unless RACO has expressly guaranteed (“garantiert”) a specific usability or applicability. Insofar as RACO does not expressly issue a guarantee (“Garantie”) designated as such, information on products or performances shall be deemed to be descriptions.

3.4 Information provided by RACO on the subject matter of the performance or delivery (in particular technical data, dimensions, weights, colour shades, loadbearing capacity, tolerances, etc.), including drawings and illustrations, are approximate values unless the usability for the contractually implied purpose requires exact conformity. They are not guaranteed features (“keine garantierten Beschaffenheitsmerkmale”), but descriptions or identifications of the performance or delivery item. Deviations customary in trade or deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components by equivalent parts are permissible insofar as they are reasonable for the Customer and do not impair the usability for the contractually implied purpose or – in the absence of a contractually implied purpose – for the usual purpose.       

3.5 RACO without restrictions reserves its ownership and copyright exploitation rights regarding plans, drawings and other documents made available to the Customer by RACO. Such content may only be made accessible to third parties with RACO's prior written consent.

 

4 Prices, terms of delivery and payment, transfer of risk

4.1 RACO's prices are quoted in EURO plus the value added tax valid on the day of invoicing.

4.2 Unless expressly agreed otherwise, RACO's prices for the delivery of products are to be understood as ex works (EXW according to Incoterms ICC 2020) excluding packaging, freight, postage and insurance.

4.3 If export to third countries/EFTA countries has been agreed between the Parties, RACO's prices shall be understood in EURO depending on the transport route that has been agreed or determined in accordance with Clause 8.3 as follows:

Air cargo: CIP airport of entry, ICC 2020
Sea freight: CIP seaport of entry, ICC 2020
Truck transport: CIP border crossing point, ICC 2020.

If courier exports are agreed, CIP place of receipt, ICC 2020 shall apply. Unless otherwise expressly agreed, the place of delivery shall always be the registered office of RACO (Schwelm).

4.4 In the case of Services which are provided on a time and material basis, the working and travelling times incurred as well as any waiting times which may arise (Clause 7.3) shall be charged at the hourly and calculated rates applicable at the time of performance and the material used shall be charged at the prices applicable at the time of performance. Other expenses, including any accommodation and travel costs, shall be charged separately.

4.5 The risk shall pass to the Customer at the latest when the delivery item is handed over (the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply insofar partial deliveries are made or if RACO has also assumed other services (e.g. shipping or installation). Insofar as an acceptance has to take place, such acceptance shall be decisive for the transfer of risk. Reference is made to the provisions on acceptance in Clause 9.

4.6 If dispatch or handover or acceptance is not carried out or is delayed as a result of circumstances for which RACO is not liable, the risk shall pass to the Customer from the day on which the delivery item is ready for dispatch or – in the case of work performances (“Werkleistungen”) – the work is ready for acceptance and RACO has notified the Customer thereof.

4.7 The prices confirmed by RACO shall apply. If the Parties have agreed that the performance is to take place more than six (6) months after the conclusion of the contract, a price adjustment shall be deemed to have been agreed insofar as the manufacturing costs at RACO (material, wage and energy costs) have changed by more than two (2) % in the period between the conclusion of the contract and the performance. The price adjustment pursuant to this Clause 4.7 shall apply mutatis mutandis in the event that performance was agreed within six (6) months after conclusion of the contract, but performance can only take place after this period due to circumstances for which the Customer is liable.

4.8 Unless otherwise agreed by the Parties, an agreed purchase price respectively the agreed renumeration (without deduction) shall be due for payment within thirty (30) days from the date of invoice. Upon expiry of the aforementioned term for payment, the Customer shall be in default. Service performances, in particular labour and repair work outside the warranty, are due for payment immediately net cash.

4.9 In the event of default, RACO may demand interest on arrears in an amount charged by RACO's bank for an overdraft facility, but at least in the amount of the statutory interest on arrears. RACO reserves the right to prove higher damage caused by default and the Customer reserves the right to prove that RACO has incurred no or only minor damage.

4.10 If, after conclusion of the contract, RACO's claims for payment are significantly jeopardised due to a substantial deterioration in the financial circumstances of the Customer, RACO may demand advance payment or the provision of security within a reasonable period of time and refuse performance until such demand is met. In the event of refusal by the Customer or fruitless expiry of the deadline, RACO shall be entitled to withdraw from the contract and to demand damages in lieu of performance.

4.11 Bills of exchange and cheques are accepted on account of performance (“erfüllungshalber”). The Customer shall bear the costs of discounting. Liability for the timely presentation of the bill of exchange or cheque and for lodging of a bill protest is excluded.

4.12 Only undisputed or legally established claims and claims arising from the same legal relationship as the counterclaim that is to be offset shall entitle the Customer to declare offset or exercise a right to retention.

 

5 Performance times and dates, partial delivery, call orders

5.1 Periods for the performance including delivery times ("Performance Periods") and dates for the performance including delivery dates ("Performance Dates") are approximate and are therefore only approximately relevant, unless they have been expressly agreed as fixed Performance Periods respectively fixed Performance Dates.

5.2 Performance Periods and Performance Dates are always subject to timely, complete and correct delivery to RACO itself. In the event of non-delivery by RACO's supplier for which RACO is not liable, both Parties shall be entitled to withdraw from the contract. RACO undertakes to inform the Customer immediately of any non-delivery and to return any consideration already received from the Customer without delay.     

5.3 Decisive for compliance with agreed Performance Periods and Performance Dates shall be the notification by RACO of readiness for dispatch or collection or – if acceptance is required – readiness for acceptance (such notification hereinafter referred to as "Completion Notification").

5.4 Insofar as a calendar week (CW, “KW”) is agreed as the Performance Date, the Performance Date is met if the Completion Notification is made until the last working day of that week.

5.5 Performance Times and Performance Dates shall be extended appropriately in the event of

a) delays due to the fact that the Customer does not fulfil a duty to cooperate owed by him, does not fulfil it completely or does not fulfil it in time.

b) a delayed receipt of owed down payments or other advance performances (“Vorleistungen”) by the Customer (in particular in accordance with Clause 4.10).

c) unforeseen events for which RACO is not liable, which make delivery or performance substantially more difficult or impossible, in particular epidemics, pandemics (including "Covid-19"), officially ordered plant closures, "lockdowns" and other operational disruptions, official measures, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official permits or in the event of non-delivery, incorrect delivery or late delivery by suppliers and similar events.

d) any amendments to the contract requested by the Customer and accepted by RACO after conclusion of the contract.

In case the hinderances mentioned in (a) to (c) last longer than twelve (12) weeks, RACO shall be entitled to withdraw from the contract, provided that RACO in the above cases (a) and (b) had previously set a reasonable deadline for the fulfilment of the obligation to cooperate or the down payment or other advance performance (“Vorleistung”) by the Customer to no avail.

Insofar as in the above-mentioned case (c) the Customer as a result of the delay cannot reasonably be expected to adhere to the contract, the Customer may withdraw from the contract by immediately notifying RACO in writing. Clause5.6 sentences 2 and 3 shall apply accordingly in this case.

5.6 The occurrence of default with respect to the performances owed by RACO shall be determined in accordance with the statutory provisions. If RACO does not perform or does not perform in a timely manner, the Customer shall, in writing, set RACO a grace period, unless such a period is dispensable under the statutory provisions. The period shall be reasonable, taking into account the content of the contract, but may not be less than two (2) weeks.

5.7 The Customer’s rights pursuant to Clause 12 and the statutory rights of RACO, in particular in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the performance and/or subsequent performance), shall remain unaffected.

5.8 Partial deliveries are permissible to a reasonable extent. If a partial delivery is made at the request of the Customer, the Customer shall be invoiced separately for the costs of the partial delivery.

 

6 Obligations of the Customer to cooperate, responsibility for the Customer's installations

6.1 The Customer shall provide any agreed supplies and shall also cooperate in such a way that RACO is enabled to provide the contractually owed performances without disruption.

6.2 The Customer shall particularly create free of charge all conditions in his sphere of operation which are necessary for the provision of the performances by RACO. In addition to any prerequisites stated in the performance description, these shall include, in particular:

(a)the timely and correct provision of the information required for the performance by RACO, such as information on the power of the RACO product that is required for the operation of the system, on the place of use of the system and the conditions prevailing there, in particular temperatures or humidity. RACO may rely on the correctness of the information provided by the Customer, unless the Customer has expressly stated reservations regarding the correctness of the information. Upon request, the Customer shall confirm in writing the accuracy and completeness of the documents, information and oral statements provided by him;

(b)the granting at all times of the access to the installations which is necessary for the performance by RACO – in particular for the performance of the Services – whereby the Customer shall inform RACO and its vicarious agents in good time of any dangers;

(c)the provision of sufficiently qualified and adequately trained employees of the Customer, insofar as this is necessary – e.g. contact persons from the Customer's specialist departments to answer RACO's questions that arise during the contractual performance with regard to the equipment concerned, specialists to carry out or assist with calibration etc.;

(d)to the agreed extent, the provision of materials as well as measurement technology for a test within the scope of an acceptance (if any), whereby a return of the materials shall only take place upon express request by the Customer.

6.3 Irrespective of any agreed Services, the Customer shall always remain the operator of all his installations. The legal obligations incumbent on the Customer as operator shall not be affected by the contract between RACO and the Customer.

6.4 Maintenance, repair or calibration of RACO products that are subject to warranty or of installations in respect of which RACO is providing Services may only be carried out in compliance with the maintenance instructions provided to the Customer by RACO or in the presence of a RACO employee.

 

7 Provision of performances, waiting times

7.1 RACO shall be entitled to use professionally suitable third parties as vicarious agents in the performance of the contract.

7.2 Unless otherwise agreed, RACO shall provide agreed Services on working days from Monday to Friday between 8:00 a.m. and 6:00 p.m.

7.3 When providing Services, waiting times of the personnel deployed by RACO which are caused by circumstances for which the Customer is responsible shall be remunerated separately in accordance with the hourly rates of RACO applicable at the time.

 

8 Acceptance, Default of acceptance, dispatch and storage as well as unsolicited goods sent to RACO

8.1 Goods ready for collection or shipment shall be collected or accepted by the Customer without delay and remaining payments shall be made. RACO shall notify the Customer in a suitable manner that the goods are ready for collection or shipment.

8.2 Unless otherwise agreed, goods ordered on demand shall be accepted by the Customer within six (6) months after conclusion of the contract. If the contract is concluded by RACO’s (acceptance-)declaration, the period shall not commence before receipt of such (acceptance-)declaration by the Customer.

8.3 Insofar as the Parties have not reached an agreement regarding the method and route of shipment, RACO shall select the method and route of shipment at its reasonable discretion (Section 315 German Civil Code).

8.4 If the Customer does not accept the goods immediately after notification that they are ready for shipment (Clause 8.1) or, in the case of goods ordered on deman within the period specified in Clause 8.2, RACO may set a reasonable deadline for acceptance (“Acceptance Period”). After expiry of such Acceptance Period, RACO shall be entitled, at its option, to ship the goods to the Customer or to store them at the risk of the Customer and to claim compensation for the damage arising therefrom.

8.5 RACO may, as a general compensation charge the Customer a storage charge of 0.5% of the invoice amount for each month started during which the Customer is in default of acceptance. The storage charge shall be limited to a total of 5% of the invoice amount, whereby the Customer reserves the right to prove lower damages. If there is no invoice amount, the market value of the goods shall take its place. The proof of higher damages and the assertion of RACO’s statutory rights (in particular compensation for additional expenses, termination or withdrawal from the contract), if the applicable statutory requirements are met, shall remain unaffected. The storage charge shall be credited against any further claims for damages of RACO.

8.6 If RACO receives unsolicited goods from the Customer, the Customer shall bear the risk of accidental deterioration or accidental loss in the event of storage by RACO. If RACO does not receive a notice of defect from the Customer within fourteen (14) days after the arrival of the unsolicited goods at RACO, RACO may, at its option, return the goods to the Customer at the Customer's expense or store them at the Customer's expense and risk. Clause8.5 shall apply accordingly in the event of storage.

 

9 Acceptance, factory acceptance

9.1 Insofar as an acceptance has to take place, it shall be carried out in writing and on the agreed acceptance date or, if no such date has been agreed, immediately after notification of readiness for acceptance. Any complaints shall be recorded in the acceptance report. Insignificant defects do not entitle the Customer to refuse acceptance.

9.2 Deemed acceptance shall have taken place at the latest when

(a)the delivery and – if RACO also owes the installation – the installation have been completed; in the case of contracts for work (“Werkverträgen”), the delivery and installation shall be replaced by the completion of the work (the completion of the delivery and, if applicable, installation respectively the completion of work in the case of contracts for work hereinafter referred to as "Completion");

(b)RACO has notified the Customer of Completion, referencing to the fiction of acceptance pursuant to this Clause9.2 and has requested the Customer to declare acceptance;

(c)twelve (12) business days have elapsed since completion or the Customer has commenced use of the item respectively the work result (e.g. by putting it into operation) and six (6) business days have elapsed since completion; and

(d)the Customer has failed to take delivery within this period for a reason other than a defect notified to RACO.

9.3 If a factory acceptance test ("FAT") has been agreed, an examination shall be carried out at the place of manufacture during the working hours there (working days from Mon. to Fri. between 8:00 a.m. and 6:00 p.m.) prior to dispatch of the contractual object. RACO shall notify the Customer in writing of the FAT date in good time, i.e. at least seven (7) days in advance, so that the Customer can attend the FAT himself or by means of a representative.

9.4 The Customer shall receive a test report from the FAT containing the tested properties of the subject matter of the contract and the result of the test. The FAT shall serve as partial acceptance of the contractual object to the extent of the inspection carried out. The notification of the FAT date in accordance with Clause 9.3 shall be deemed as notification of partial acceptance readiness. The relevant partial acceptance shall be declared by the Customer if no defects preventing acceptance were found with regard to the scope covered by the test. Clause9.1 shall apply accordingly.

9.5 If the Customer or his representative is not present at the inspection despite having been notified in good time, he shall be excluded from raising objections to the correctness of the relevant inspection report and the partial acceptance to the extent specified in Clause 9.4 shall be deemed to have taken place, provided that the inspection according to the inspection report has not revealed any defects. Sentence 1 shall not apply insofar as the Customer proves that he is not responsible for his non-presence at the inspection.

9.6 If the subject matter of the contract proves to be in breach of contract according to the inspection carried out under the FAT, RACO shall restore the subject matter of the contract to a condition in accordance with the contract before delivery. The Customer may demand a repetition of the FAT only in the event of material defects.

9.7 RACO shall bear all costs for the tests carried out at the place of manufacture. However, the Customer shall bear all costs incurred in connection with the tests, in particular travel and living expenses, for its representatives.

 

10 Retention of title

10.1 The retention of title according to this Clause10 shall serve to secure all current and future claims of RACO against the Customer arising from the contractual relationship between the Parties concerning the delivery of electric cylinders and any related Services, including any balance claims arising from a current account relationship limited to this contractual relationship.           

The goods delivered by RACO to the Customer shall remain the property of RACO until full payment of all secured claims. The goods as well as the goods covered by the retention of title taking their place in accordance with the following provisions shall hereinafter be referred to as "Reserved Goods".

10.2 The Customer shall store the Reserved Goods free of charge for RACO. The Customer shall be entitled to process and sell the Reserved Goods in the ordinary course of business until the Realisation Event (Clause 10.7), as long as he fulfils his obligations arising from the business relationship with RACO in due time. However, he may neither pledge the Reserved Goods nor assign them as security. He shall be obliged to secure RACO's rights in the credited resale of the Reserved Goods.

10.3 The Customer shall be obliged to store the Reserved Goods carefully and to insure them adequately against loss and damage (theft, fire, etc.). He hereby assigns the claim against the insurance company in the event of damage to RACO, which hereby accepts this assignment. Furthermore, the Customer shall be obligated to inform RACO without delay of any compulsory enforcement measures of third parties with respect to the Reserved Goods, the claims assigned to RACO or other securities, and to hand over the documents necessary for an intervention. This shall also apply to impairments of any other kind. In the aforementioned cases, the Customer shall also immediately inform the third parties of RACO's ownership and existing rights to the Reserved Goods.

10.4 Any processing, treatment or transformation as well as any installation of the Reserved Goods shall always be carried out by the Customer on behalf and for the account of RACO as the manufacturer. In the event that the Reserved Goods are processed, it is agreed that RACO shall acquire direct ownership or – if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the Reserved Goods – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the Reserved Goods to the value of the newly created item. In the event that no such acquisition of ownership should occur at RACO, the Customer shall already now transfer his future ownership or – in the above-mentioned proportion – co-ownership of the newly created item to RACO as security. If RACO’s goods are combined with other items to form a uniform item or are inseparably mixed and if one of the other items is to be regarded as the main item, the Customer shall transfer to RACO co-ownership of the uniform item on a pro rata basis in accordance with the ratio specified in sentence 2, insofar as the main item belongs to him.

10.5 In the event of resale of the Reserved Goods, the Customer hereby assigns by way of security the resulting claim against the purchaser – in the event of co-ownership of RACO in the Reserved Goods, in proportion to the co-ownership share – to RACO, which accepts this assignment. The same shall apply to other claims which take the place of the Reserved Goods or otherwise arise with respect to the Reserved Goods, such as insurance claims or claims in tort for loss or destruction. RACO revocably authorises the Customer to collect the claims assigned to RACO in his own name. RACO may revoke this collection authorisation only in case of occurance of the Realisation Event.

10.6 RACO shall release the Reserved Goods and the items or claims replacing them insofar as their value exceeds the amount of the secured claims by more than 50%. The selection of the items to be released thereafter shall be at RACO's discretion.

10.7 If RACO withdraws from the contract in the event of a breach of contract by the Customer, in particular due to default in payment (Realisation Event), RACO shall be entitled to demand the return of the Reserved Goods.

 

11 Warrany, duty to examine, Customer’s rights and obligations

11.1 The statutory provisions shall apply to the Customer’s rights in the event of defects of material (“Sachmängel”) and defects of title (“Rechtsmängel”), unless otherwise stipulated in this Clause 11. The special statutory provisions on the reimbursement of expenses in the case of final delivery of the newly manufactured goods to a consumer (supplier's recourse pursuant to Sections 478, 445a, 445b or Sections 445c, 327 paragraph 5, 327u German Civil Code) shall always remain unaffected, unless an equivalent compensation has been agreed.

11.2 The Customer shall inspect the delivered items immediately after delivery to him or to the third party designated by him. In the case of items intended for installation or other further processing, an inspection must in any case be carried out before installation or further processing. Obvious defects shall be notified to RACO in writing or in text form within seven (7) working days from delivery and defects not recognisable during the inspection within the same period from discovery.If the Customer fails to properly inspect the goods and/or give notice of defects, RACO's liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions.        

11.3 If an initial sample inspection (“Erstmusterprüfung”) has been agreed or if an acceptance has to take place, the notification of defects (“Mängelrüge”) shall be excluded in regard to such defects which the Customer should have detected in the course of a careful acceptance or initial sample inspection.

11.4 Insofar as a defect is caused by the Customer having the goods improperly handled, maintained, stored, processed or used, the warranty shall be void. The same shall apply if the Customer without RACO's consent makes changes to such items that are already subject to a notification of defects.

11.5 RACO shall be given the opportunity to ascertain reported defects. In the case of bulk deliveries, RACO shall be given the opportunity to sort out the defective goods. At the request of RACO, a rejected contractual item shall be returned to RACO carriage paid; however, the Customer shall not have a claim to return the goods (“Rückgabeanspruch”). In the event of a justified complaint, RACO shall reimburse the costs of the most favourable shipping route; this shall not apply if the costs increase because the subject matter of the contract is located at a place other than the place of intended use. Section 439 (4) German Civil Code shall remain unaffected.

11.6 In the event of defects, RACO shall first be obliged and entitled to rectify the defect or make a replacement delivery at its discretion within a reasonable period of time. If the type of subsequent performance chosen by RACO is unreasonable for the Customer in the individual case, the Customer may reject it. RACO's right to refuse subsequent performance under the statutory conditions shall remain unaffected.

11.7 In the event of defects in components of other manufacturers which RACO cannot remedy for licensing or factual reasons, RACO shall, at its option, assert its warranty claims against the manufacturers and suppliers for the account of the Customer or assign them to the Customer. Warranty claims against RACO shall exist in the case of such defects under the other conditions and in accordance with these GTC only if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or – e.g. due to insolvency – is futile. For the duration of the legal dispute, the limitation period for the relevant warranty claims of the Customer against RACO shall be suspended.           

11.8 In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the Customer may, if the statutory legal requirements are met, withdraw from the contract or reasonably reduce the purchase price respectively the remuneration. In this context, a rectification shall be deemed to have failed after the unsuccessful second (2) attempt, unless the nature of the goods or the defect or other circumstances indicate otherwise.

11.9 The above provisions in Clauses 11.1 to11.9 shall not apply with respect to any services provided by RACO within the meaning of Section 611 of the German Civil Code.

11.10 Claims of the Customer for damages or reimbursement of futile expenses shall also in the case of defects only exist in accordance with Clause 12 and shall otherwise be excluded.

11.11 The Customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if RACO is responsible for such breach of duty. In case of a contract for supply of movable things to be produced/manufactured pursuant to Section 650 German Civil Code, the Customer shall have no right of termination for convenience. In all other respects, the statutory requirements and legal consequences shall apply.

 

12 Liability

12.1 Unless otherwise provided for in these GTC, including the following provisions, RACO shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions.

12.2 RACO's liability for damages, irrespective of the legal grounds, in particular for impossibility, delay, defective or incorrect delivery or performance, breach of contract, breach of obligations during contractual negotiations and tort, shall be limited in accordance with the provisions of this Clause 12 insofar as fault (“Verschulden”) is relevant in each case.

12.3 RACO shall not be liable in the event of simple negligence (“einfacher Fahrlässigkeit”) on the part of its organs, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations (“Verletzung vertragswesentlicher Pflichten”, i.e. those obligation whose fulfillment makes the proper execution of the contract possible in the first place and on compliance with which the contractual partner regularly relies on and may rely on). Material contractual particularly include the obligation to timely performance or delivery and, if applicable, installation of the delivery item (if owed), its freedom from defects of title and such material defects that impair its functionality or usability more than insignificantly, as well as consulting, protection and care obligations that are intended to enable the Customer to use the contractual item in accordance with the contract or are intended to protect the life and limb of the Customer's personnel or to protect the Customer's property from significant damage.

12.4 Insofar as RACO is liable on the merits for damages pursuant to Clause 12.3 this liability shall be limited to such damages which RACO foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which RACO should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the contractual object shall also only be compensable insofar as such damage is typically to be expected when the contractual object is used as intended.

12.5 The above exclusions and limitations of liability shall apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of RACO.

12.6 Insofar as RACO provides technical information or acts in an advisory capacity and such information or advice is not part of the contractually agreed scope of performances owed by RACO, this shall be done free of charge and to the exclusion of any liability.

12.7 The limitations of this Clause12 shall not apply to RACO's liability for fraudulent intent (“Arglist), wilful or gross negligent misconduct (“vorsätzlichen oder grob fahrlässigen Handelns”), for guaranteed characteristics (“garantierte Beschaffenheitsmerkmale”), for injury to life, limb or health or under the Product Liability Act (“Produkthaftungsgesetz”).

 

13 Statute of limitations

13.1 The general limitation period for claims arising from material defects and defects of title is one (1) year from delivery (“Ablieferung”). Insofar as acceptance is required, the limitation period shall commence upon acceptance.

13.2 If the subject matter of the contract is a building (“Bauwerk”) or an object which has been used for a building in accordance with its customary use and has caused its defectiveness (building material, “Baustoff”), the limitation period shall be five (5) years from delivery in accordance with the statutory provision (Section 438 paragraph1 no. 2 German Civil Code). Other special statutory provisions on the limitation period (in particular Section438 paragraph 1 no. 1, paragraph 3, Sections 444, 445b German Civil Code) shall remain unaffected.

13.3 The above limitation periods shall also apply to contractual and non-contractual claims for damages of the Customer based on a defect of the subject matter of the contract, unless the application of the regular statutory limitation period (Sections 195, 199 German Civil Code) provides for a shorter limitation period in individual cases.

13.4 Notwithstanding the above, claims of the Customer as a result of a withdrawal or reduction declared by the Customer with respect to a defect previously duly notified by the Customer shall not become time-barred before the expiry of three (3) months from the submission of an effective declaration of rescission or reduction in this respect.

13.5 Claims for damages by the Customer arising from injury to life, limb or health or from intentional (“vorsätzlicher”) or grossly negligent (“grob fahrlässiger”) breaches of duty by RACO or RACO's vicarious agents as well as claims under the German Product Liability Act (“Produkthaftungsgesetz”) shall, notwithstanding the foregoing, be time-barred in each case in accordance with the statutory provisions.

 

14 Confidentiality, data processing and data protection

14.1 The Parties are obliged to treat information about business and trade secrets confidentially and not to pass on to third parties or otherwise use other knowledge and information unless it is publicly known (“offenkundig”). This duty of confidentiality shall continue to exist after termination of the contract. The Parties undertake to oblige all persons employed by them for the performance of the contract to observe such confidentiality.  

14.2 RACO is authorised to process the data entrusted to it in connection with this contract itself or through third parties commissioned by RACO using data processing equipment. Insofar as personal data are concerned, the data controller within the meaning of the EU General Data Protection Regulation (GDPR) is RACO-ELEKTRO-MASCHINEN GmbH. For further information on RACO, particularly contact details, see Clause1.1.

14.3 The data processing is carried out on the one hand within the framework of the fulfilment of RACO’s contractual obligations on the basis of Art. 6 (1) sentence 1 lit. b) GDPR and is insofar necessary for the proper fulfilment of the contract. A transfer to third parties takes place insofar as this is expedient or necessary for the proper fulfilment of the contractual obligations.

14.4 In addition, data processing and disclosure is carried out in order to comply with RACO's legal obligations (in particular with regard to the obligation to keep records for tax purposes pursuant to Section 147 German Tax Code, “AO”) on the basis of Art. 6 (1) sentence 1 lit. c) GDPR as well as in the context of RACO's legitimate interests in pursuing and defending any (compensation) claims on the basis of Art. 6 (1) sentence 1 lit. f) GDPR.

14.5 The data shall be stored at least for the duration of the contractual relationship until the complete fulfilment of all mutual claims and if applicable – beyond that until the expiry of the statutory retention periods.

14.6 With regard to the processing of personal data, reference is made to the rights of access (Art. 15 GDPR), rectification or erasure (Art. 16, 17 GDPR), restriction of processing (Art. 19 GDPR), the right to object (Art. 21 GDPR) as well as the right to data portability (Art.20GDPR) and to lodge a complaint with a supervisory authority (Art. 77 of the GDPR).

14.7 For further information on data processing and data protection, please refer to RACO's data protection information available on the Internet at the following address: https://www.raco.de/en/datenschutzerklaerung/

 

15 Place of performance, place of jurisdiction, choice of law, miscellaneous and final provisions

15.1 The place of performance for all obligations arising from this contractual relationship, including any obligations under the warranty, shall be the registered office of RACO (Schwelm), unless otherwise agreed.

15.2 The law applicable to the contract is exclusively the substantive law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG) is excluded.  

15.3 The place of jurisdiction for all disputes between the Customer and RACO arising from or in connection with this contract shall be Schwelm, provided the Customer is a merchant, a legal entity under public law or a special fund under public law. RACO shall also be entitled to assert claims against the Customer at any other place of jurisdiction.         

15.4 Subject to any express agreement to the contrary, RACO may name the Customer as a reference customer in brochures and publications (such as company presentations or application reports) in an appropriate form.

15.5 If these GTC, the contract, an offer or other documents have been provided to the Customer in German as well as in other languages, only the German version shall take precedence and be decisive for the contractual relationship. To that extent, the versions in other languages are intended for information purposes only.    For the avoidance of doubt, if the Parties make use of the term warranty or similar terms and translations (for example such as “warrants”, “guarantees”), reference is being made to the statutory warranty (“gesetzlicheGewährleistung”) as amended or changed by the provisions of the contract. A guarantee within the legal meaning of a separate guarantee promise (cf. Sec. 443 German Civil Code) shall not be constituted unless the Parties explicitly refer to it as such a separate guarantee promise (“selbstständigesGarantieversprechen”).

15.6 Should individual provisions of this contract be invalid, this shall not affect the validity of the remaining provisions. The same shall apply if the contract contains a loophole which the Parties did not consider when concluding the contract. Insofar as the contract or these GTC contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the Parties would have agreed in accordance with the economic objectives of the contract and the purpose of these GTC if they had known about the loophole.

as of: August 2022 AGB 08/22