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RTW GmbH & Co. KG
General Terms and Conditions of Delivery and Service to Companies (Customers) within the meaning of § 14 BGB [German Civil Code]
1.
Scope
1.1.
These General Terms and Conditions shall apply only to our relations with companies (customers) within the meaning of § 14 BGB. The terms and conditions set forth below shall apply exclusively to our business relations with our customers, also with respect to information and consultancy.
1.2.
Where our General Terms and Conditions are implemented in our business with a customer, they shall also apply to all further business relations between the customer and ourselves unless otherwise agreed in writing. The customer’s terms and conditions shall only apply if expressly acknowledged by us in writing. Our silence regarding such differing terms and conditions shall not be deemed in particular to be acknowledgement or consent, and this shall also apply to future contracts.
1.3.
Our terms and conditions shall apply in place of any conditions of purchase of the customer, also where such conditions of purchase stipulate that acceptance of an order is deemed to be the unconditional recognition of these conditions of purchase. By accepting our order confirmation, the customer expressly acknowledges that it waives any objection derived from the conditions of purchase.
2.
Information, advice, properties of the goods
2.1.
Information and advice regarding our products shall be provided solely on the basis of our experience to date. Values specified in this context shall be deemed average values. Any information about our products, especially illustrations, drawings, contents and performance as well as other information in our quotations and brochures must be regarded as approximate average values.
2.2.
Reference to standards, similar technical regulations and technical information, descriptions and illustrations of a delivery item in quotations and brochures and our advertising shall only represent a characteristic of our goods when we have expressly declared the condition to be a „property of the goods“; these are otherwise non-binding general descriptions of performance.
2.3.
We shall only be deemed to have given a warranty if we have indicated a property as warranted in writing.
2.4.
All our products are updated on a regular basis and adapted to state of the art progress. We reserve the right therefore to modify our products at our equitable discretion (§ 315 BGB), also after orders are placed.
We shall assume no liability for the usability of our products for the customer’s intended purpose other than liability prescribed by law unless we have agreed otherwise in writing with the customer.
2.5.
We shall retain the title and copyright to all illustrations, drawings, indications of weight and dimension, performance and other property specifications, estimates of cost and other documents about our products and services. The customer undertakes not to disclose the above documents to third parties unless we give our express written consent.
3.
Specimens
Properties of specimens of our products shall only become an integral part of the contract if expressly agreed in writing. Specimens of our products are basically intended for our customer to present our products to its customers for the purpose of resale.
4.
Conclusion of a contract, scope of delivery, acceptance
4.1.
Our quotations are subject to change and not binding. They are merely requests to customers for orders. A contract is created - also in day-to-day business - only when we confirm the customer’s order in writing (also by telefax or email). Our order confirmation shall prevail over the content of the supply contract. Where delivery is made immediately, our confirmation can be replaced by our invoice.
4.2.
All agreements, collateral agreements, assurances and contract amendments shall only be valid when given in writing. This shall also apply to cancellation of the written form requirement. Verbal collateral agreements or amendments/modifications shall be void.
4.3.
Assumption of a procurement risk does not lie solely in our obligation to deliver an object which is only defined by its type.
4.4.
In the event of call orders or acceptance delays caused by the customer, we shall be authorised to procure material for the complete order and manufacture the total quantity ordered immediately. After the order is placed, no modification request from the customer can therefore be considered unless this was expressly agreed.
4.5.
The customer must advise us in writing in due time prior to conclusion of the contract of any special requirements of our goods.
4.6.
If acceptance or shipment of the goods is delayed for a reason for which the customer is responsible, the customer fails to provide a shipping order by the end of the delivery period, or the customer fails to fulfil its contractual obligation to call up orders, we shall be authorised, after setting an extension of time of 7 days which has expired, at our option to request immediate payment of the purchase price or to rescind the contract or refuse performance and request damages instead of full payment. The time limit must be given in writing but we shall not be required to refer again to our rights under this clause. In the event of our claiming payment of damages, this shall amount to at least 10% of the net delivery price. This shall not affect any right to prove a different amount of damages or that damages are not incurred.
4.7.
If shipment is delayed at the customer’s request or, for reasons for which the customer is responsible, we shall be authorised to store the goods, beginning on expiry of the time limit set in the written notice that the goods are ready for shipment, and to invoice at least 0.5% of the net invoice amount per month or part thereof for costs incurred thereby. This shall not affect the assertion of any further rights. The customer shall have the right to prove that lower costs were incurred.
Furthermore, we shall be authorised, after the time limit expires, to dispose of the contractual goods otherwise, and to deliver to the customer again after a reasonable time limit.
4.8.
If the order for delivery or call for delivery is delayed by the customer, we shall be authorised to postpone delivery by the same period of time as the customer is behind schedule plus a reasonable scheduling period.
5.
Delivery, delivery period, default in delivery
5.1.
Binding delivery dates and time limits must be agreed expressly and in writing as binding. We shall make every endeavour to meet delivery dates and time limits that are not binding or approximate (approx., about etc.).
5.2.
Delivery time limits begin with the customer’s receipt of our order confirmation but not before all details about the performance of the order are clarified and all other requirements to be fulfilled by the customer are met. This shall also apply to delivery dates. If the customer requests modifications after placing the order, a new delivery period shall begin when we confirm the modification.
5.3.
Deliveries may be made prior to expiry of the delivery period. The date of delivery shall be deemed the date on which the goods are reported ready for shipment, otherwise the day on which the goods are sent. We are authorised to make partial deliveries. Interest in our performance shall lapse for lack of any other written agreement only if we fail to deliver material parts or deliver with delay.
5.4.
Goods shall be delivered - unless otherwise agreed - at our option in the case of long-term contracts when called and in the case of single contracts within the agreed deli-very period. We can deliver the goods on the 1st working day after conclusion of the contract and at any time within the delivery period during normal business hours.
5.5.
If we default in delivery, the customer must first set us a reasonable extension of time to perform the contract. If this elapses in vain, the customer can assert the rights stipulated in §§ 280, 281, 284, 286, 323 BGB on the respective conditions stated therein. Damage claims for breach of duty - for whatever reason - shall only exist as stipulated in paragraph 12. If we fail to provide a service on the date or within a period determined in the contract, the customer can only rescind the contract if it has bound its interest in the performance to the timeliness of performance.
5.6.
Damage claims for default in delivery shall be limited to a maximum of 3 % of the net delivery price of the delayed goods per full week of delay but in all to a maximum of 10 % of the specified net delivery price. If default is due to intent or gross negligence or a material breach of duty, statutory liability shall apply, which is limited, however, in the event of a negligent breach of duty only to the foreseeable damage in each case.
5.7.
If the customer sets us a reasonable period of grace when default in delivery has occurred, the customer shall be authorised, after expiry of this period of grace without result, to rescind the contract. The customer shall only be entitled to damage claims for non-performance in the amount of the foreseeable damage, if the default was due to intent or gross negligence or a material breach of duty. Furthermore, liability for damages is limited to 50 % of the damage incurred.
5.8.
The limitations of liability in para. 5.6 and 5.7 shall not apply if a commercial transaction was concluded for delivery by a fixed date. This shall also apply if the customer can assert that, due to the default for which we are responsible, the immediate assertion of its claim for damages is taken into account instead of performance.
5.9.
We shall not be in default as long as the customer is in default in fulfilling its obligations towards us; this shall also include obligations under other contracts.
5.10.
We shall not be obliged to deliver for as long as the means of transport to be provided by the customer is not available. However, we shall be authorised, where the shipping order or call order can be carried out, to arrange delivery with our own transport or hire transport. In this case too, the goods shall be transported at the customer’s risk.
6.
Reservation of own delivery, force majeure and other obstructions
6.1.
If, despite proper stocking, we do not receive a delivery or service from our sub-contractors for reasons for which we are not responsible, or it is incorrect or not in due time, or cases of force majeure occur, we shall notify our customer in writing or text form in due time. In such case, we are authorised to postpone the delivery for the duration of the obstruction, or to withdraw in whole or in part from that part of the contract not yet fulfilled if we have met our foregoing duty to provide information and have not accepted the procurement risk. Cases of force majeure are strikes, lock-outs, official intervention, power shortages and shortages of raw materials, transport bottlenecks through no fault of our own, company obstructions not due to us e.g. fire, water and damage to machinery and any other obstructions that considered objectively were not caused by our negligence.
6.2.
If a delivery date or delivery period is agreed with binding force and the agreed delivery date or the agreed delivery period is exceeded due to events in 6.1., the customer shall be authorised after a reasonable extension of time has elapsed in vain to withdraw from that part of the contract not yet fulfilled, if the customer cannot be objectively expected to adhere further to the contract. The customer has no further claims in this case.
7.
Shipment and passing of risk, insurance, packaging
7.1.
Unless otherwise agreed in writing, we shall ship goods ex works uninsured at the customer’s risk and expense.
7.2.
We shall endeavour to take the customer’s wishes into account with respect to the route and type of shipment. Any additional expenses as a result - also where delivery freight paid is agreed - shall be borne by the customer. If shipment is delayed at the customer’s request or through the customer’s fault, we shall store the goods at the customer’s expense and risk. In this case, notice that the goods are ready for shipment shall be deemed equivalent to shipment. We reserve the right to choose the route and means of transport.
7.3.
The risk of accidental loss or accidental deterioration shall pass to the customer when the goods to be delivered are handed over to the customer, forwarder, freight carrier or other firms entrusted with shipping the goods but at the latest when the goods leave our works, warehouse or branch.
7.4.
If the delivery is delayed because we assert our right of retention due to the customer’s default in payment in whole or in part or due to another reason for which the customer is responsible, the risk shall pass to the customer at the latest as of the date the goods are notified as ready for delivery.
8.
Notice of defects, warranty, breach of duty
8.1.
The customer must give us written notice of recognisable defects immediately upon receipt of the goods but at the latest 14 days after performance. Written notice of defects must include a detailed description of the defect. A defect that fails to comply with requirements of time and form shall exclude any claim by the customer for breach of duty due to poor performance.
If the goods are not delivered by us but by a transport operator instructed by us, the transport operator must also be notified of any defects recognisable on delivery and recording of the defects must be arranged by the transport operator as well. The above-mentioned obligations shall also continue to apply. A notice of defect that fails to comply with requirements of time shall also exclude any claim by the customer for breach of warranty.
8.2.
Notice of hidden defects must be given in writing immediately after they are recognised but at the latest within the limitation period specified in para. 8.9. Written notices of defects must here too include a detailed description of the defect. A defect that fails to comply with requirements of time and form shall exclude any claim by the customer for breach of duty due to poor performance.
8.3.
When handling, processing, combining or mixing with other goods begins, the goods delivered shall be deemed approved by the customer according to the contract. This shall also apply if the goods are reshipped from their original destination.
8.4.
Defective goods must be left in their delivery container so that we can check the validity of the complaint properly unless we expressly waive this by written declaration - this can also be sent by telefax - and the customer ensures that the defective goods are kept separate.
8.5.
The customer must give notice in writing of any other breach of duty, setting a reasonable time limit for remedy, before the customer asserts any other rights.
8.6.
If a defect exists, this shall be eliminated at our option - except in the case of recourse due to delivery acc. to §§ 478, 479 BGB - by rectification or replacement free of charge, whereby we are on principle entitled to two attempts. We shall eliminate any defects where the customer itself is responsible, and incorrect complaints on behalf of and at the expense of the customer.
8.7.
In the case of defects, the customer‘s payments may only be withheld to an extent which is proportionate to the material defects which have occurred. If the notice of material defect is incorrect, we shall be entitled to request compensation from the customer for the expenses we incurred as a result.
8.8.
If the breach of duty does not by way of exception refer to our work performance, the contract cannot be rescinded if our breach of duty is immaterial. Except in the case of liability for defects, the contract also cannot be rescinded if we are not responsible for the breach of duty.
8.9.
We shall provide a warranty for verifiable material, production or construction defects - unless otherwise expressly agreed, unless there is a case of malice or intent or damage claim for injury to life, limb and health is in question or a case of § 478 BGB (right of regress) exists - for a period of 24 months, calculated from the date statutory limitation begins.
8.10.
The foregoing limitation period shall also apply to competing claims in tort and for any claims from consequential damage caused by the defect.
8.11.
Further claims by the customer for or in connection with defects or consequential damage caused by the defect, for whatever reason, shall exist only subject to the provisions of paragraph 12 unless these are damage claims resulting from a warranted characteristic or warranty which is intended to cover the customer against the risk of consequential damage caused by the defect. In this case too, however, we shall be liable only for typical and foreseeable damage.
8.12.
Our warranty and liability resulting therefrom shall be excluded if defects and damages connected therewith cannot be proven to be due to faulty material, faulty construction or defective design or faulty assembly instructions. Warranty and liability shall be excluded in particular for the consequences of incorrect use (especially where use is not state-of-the art and in disregard of the directions for use), where damage is caused by third parties (e.g. the transport operator), where the customer makes modifications or carries out repair work incorrectly or there is wear and tear of the goods, excessive use or inappropriate equipment and the consequences of chemical or electrolytic influences that do not correspond with expected average standard influences. Claims based on defects do not exist in the case of a minor deviation from the agreed or customary condition or usefulness.
This shall not affect our liability under para. 12.
8.13.
Claims by the customer for expenses required to remedy defects, especially transport, route, work and material costs, shall be excluded if expenses increase because the delivery item is subsequently taken to a place other than the place of delivery, or to the customer’s branch. This shall not apply in the case of recourse due to delivery according to §§ 478, 479 BGB.
Any right of recourse the customer may have against us when the goods are resold shall only exist if the customer has not reached any agreements with its buyer which exceed statutory claims based on defects.
8.14.
Material defects and other breach of duty shall only be accepted when given in writing.
9.
Prices, payment terms, objection of uncertainty
9.1.
All prices are on principle quoted in euros and exclude packaging, freight, are ex delivery works or warehouse, plus value added tax at the legally valid rate to be borne by the customer.
9.2.
Services that are not part of the scope of our quotation shall be charged, unless otherwise agreed, on the basis of our respectively valid general price lists.
9.3.
We are authorised to increase prices unilaterally and reasonably (§ 315 BGB) where material procurement costs or productions costs, taxes, wage and ancillary wage costs as well as energy costs and costs due to environmental charges are increased, if more than two months elapses between conclusion of the contract and delivery. An increase for the above purpose shall be excluded if the cost increase for the factors mentioned is cancelled out by a cost reduction for other factors mentioned with respect to the total cost charged for the delivery.
9.4.
If, according to the contract, we bear the freight charges by way of exception, the customer shall bear any additional costs arising from increases in freight rates after the contract was concluded.
9.5.
Our invoices are payable within 10 days of the invoice date with a deduction of 2 % cash discount or within 30 days of the invoice date (without cash discount deduction). We are however entitled to request payment against delivery of the goods. Cash discount is calculated from the net amount and shall only be admissible if the customer has met all other liabilities older than 30 days arising from the business relationship with us.
9.6.
We are entitled, despite the customer’s other terms, first to offset payments against the customer’s earlier debts. We shall inform the customer on how they are offset. If costs and interest have already been incurred, we shall be authorised to offset payment first against costs, then interest and finally against the principal payment.
9.7.
The customer shall default in payment, even without a reminder, within 31 days of delivery where we have an obligation to deliver or within 31 days after we have issued a notice that the goods are ready for delivery in the case of delivery ex works. If a binding payment date was agreed, the customer shall be in default if it fails to meet the payment date.
9.8.
Once in default, maturity interest of 8 % above the respective base rate shall be calculated. This interest shall be lowered if the customer proves that charges are lower; we are permitted to prove that damage is higher.
9.9.
Furthermore, if the customer is in default, we shall be entitled to retain deliveries or services based on all contracts with the customer until the customer meets all obligations in full. The customer can avoid this right of retention by providing a directly enforceable guarantee from a major German bank unlimited in time or from a public-sector financial institution linked to a deposit insurance fund for the amount of all our due claims.
9.10.
The date payment is received by us or credited to our account shall be deemed the payment date. We reserve the right to assert damage in excess of this. Furthermore, default in the fulfilment of one claim shall cause all our other claims from the business relationship to become due immediately.
9.11.
If payment terms are not met or circumstances known or recognisable that in our proper commercial judgement give rise to justified doubt about the customer’s creditworthiness, also including such facts that existed when the contract was concluded but which were unknown to us or should have been known to us, we shall be authorised, notwithstanding further statutory rights in such cases, to cease further work on current orders or delivery and to request advance payments or the provision of objectively appropriate securities for deliveries still outstanding and - after expiry of a reasonable extension of time to provide such securities in vain - to rescind the contract - irrespective of other statutory rights. The customer shall be obliged to reimburse us for all damages incurred by the non-performance of the contract.
9.12.
If payments are allowed to be deferred and then paid at a later date than agreed, interest of 8 % above the base rate applied when the deferment agreement was concluded shall be owed for the period of deferment without requiring a notice of default.
9.13.
The customer shall only have a right of retention or right of set off regarding those counter-claims that are not disputed or have been recognised by declaratory judgment unless the counter-claim relates to a breach of material contractual obligations by us. A “material” contractual obligation within the meaning of these General Terms and Conditions is always given when we intentionally fail to perform such duties – the due performance of which the ordering party relies on and may rely on – because they determine the contract. The customer can only exercise a right of retention if its counter-claim relates to the same contractual relationship.
9.14.
Our price lists and other general prices are without obligation.
10.
Institution of insolvency proceedings, suspension of payments
10.1.
An application to institute insolvency or composition proceedings by the customer or the customer’s suspension of payments due to rights of retention or other rights shall entitle us to rescind the contract at any time or make delivery of the goods dependent on the prior fulfilment of the payment obligation. If the goods were already delivered, the purchase price shall be due immediately in such cases. We shall also be entitled to reclaim the goods in the above-mentioned cases and to retain them until the purchase price is paid in full.
10.2.
The regulations of para. 10.1 shall also apply if we have accepted cheques by way of payment and the drawee or issuer has applied for the institution of insolvency or composition proceedings or has suspended its payments.
10.3.
If the customer ceases to make payments, or files an insolvency petition, the customer shall no longer be authorised to sell, process, combine or mix goods subject to retentiof title (see para. 12.1). In such case, the customer must immediately store and label the goods subject to retention of
title separately, and amounts, to which we are entitled from assigned claims for goods delivered and which the customer receives, must be held in trust for us.
11.
Retention of title
11.1.
We retain title to all equipment and goods we deliver (hereinafter referred to as a whole as “goods subject to retention of title”) until all claims under the business relationship with the customer, including claims arising in the future from contracts concluded at a later date, are paid. This shall also apply to any balance in our favour when any or all claims by us are incorporated in a current invoice (current account) and the balance has been established.
11.2.
The customer must insure the goods subject to retention of title adequately, in particular against fire and theft. Claims against the insurance arising from a case of damage relating to the goods subject to retention of title are herewith assigned to us in the value of the goods subject to retention of title.
11.3.
The customer is authorised to resell the delivered goods in the normal course of business. The customer is not permitted to make other disposals, especially pledging or granting of equitable lien. If the goods subject to retention of title are not paid for immediately by third party buyers when resold, the customer shall be obliged to resell under retention of title only. Authorisation to resell the goods subject to retention of title shall not apply a priori if the customer suspends payment or defaults in payment to us. This shall also apply if the customer is bound by a group of companies and/or if one of the circumstances stated in the above sentence occurs at the parent or ultimate holding company.
11.4.
The customer herewith assigns to us all claims including securities and ancillary rights that accrue to it against the end user or third parties with or in connection with the resale of goods subject to retention of title. The customer may not reach an agreement with its buyers that excludes or impairs our rights in any way or nullifies the claim’s assignment in advance. When the goods subject to retention of title are sold with other items, the claim against third party buyers amounting to the purchase price agreed between us and the customer shall be deemed assigned unless the amounts applicable to the individual goods can be determined from the invoice.
11.5.
The customer shall be entitled to collect a claim assigned to us until revoked by us, this revocation being admissible at any time. At our request, the customer is obliged to forward information and documents required to collect assigned claims, and unless we do so ourselves, notify its buyers immediately of the assignment.
11.6.
If the customer incorporates claims from the resale of goods subject to retention of title in a current account relationship with its buyers, the customer shall herewith assign to us any recognised closing balance in its favour in the amount which corresponds to the total amount of the claim from the resale of our goods subject to retention of title, such claim being transferred to the current account relationship.
11.7.
The customer must notify us immediately if the customer has already assigned claims from the resale of goods delivered or to be delivered by us to third parties, especially due to real or unreal factoring, or made other agreements which can impair our current or future security interests according to paragraph 11. In the case of unreal factoring, we shall be authorised to rescind the contract and request the goods already delivered to be handed over; this shall also apply to real factoring if, according to the contract with the factor, the customer is not free to dispose of the purchase price of the claim.
11.8.
In the event of conduct in breach of the contract, especially in the case of default in payment, we shall be authorised - without first having to rescind the contract - to take back all goods subject to retention of title. The customer shall be obliged in this case to hand over the goods subject to retention of title immediately unless it is responsible for a minor breach of duty only. We may at any time during normal business hours enter the customer’s business premises to determine the stock of the goods we delivered. Taking back the goods subject to retention of title shall only involve rescinding the contract if we expressly state this in writing or this is expressly prescribed by obligatory statutory provisions. The customer must notify us immediately in writing of any third-party access to goods subject to retention of title or any claim assigned to us.
11.9.
If the value of securities existing for us according to the foregoing provisions exceeds the secured claims as a whole by more than 10%, we shall be obliged at the customer’s request to release securities at our option.
11.10.
We handle and process the goods subject to retention of title as manufacturers within the meaning of § 950 BGB without any obligation. If the goods subject to retention of title are processed or connected inseparably with other items that do not belong to us, we shall acquire co-ownership in the new article in the ratio of the invoice value for our goods to the invoice values for the other processed or connected items. If our goods are connected with other movable items into a uniform article that is deemed the principal article, the customer shall herewith already assign co-ownership thereof to us in the same ratio. The customer shall maintain ownership or co-ownership free of charge on our behalf. Rights of co-ownership accordingly arising shall be deemed goods subject to retention of title. The customer shall be obliged at any time at our request to provide us with the information required to follow up our ownership or co-ownership rights.
12.
Exclusion and limitation of liability
12.1.
We shall not be liable - save as provided in the terms set forth below - for claims by the customer for damages, for whatever legal reason. We shall not be liable in particular for breach of duty from obligation and tort. This above-mentioned exclusion of liability shall not apply in the case of obligatory liability. In particular we shall be liable
–
for our own intentional or grossly negligent breach of duty and intentional or grossly negligent breach of duty by legal representatives or vicarious agents;
–
for material breach of contractual obligations and in the event of justified impossibility and material breach of duty;
–
if, in the event of breach of other obligations within the meaning of § 241 para. 2 BGB, it is no longer reasonable for the customer to expect us to perform;
–
in the event of injury to life, limb and health also by legal representatives or vicarious agents;
–
where we have assumed a warranty for the workmanship of our goods or the existence of successful performance, or a procurement risk;
–
for claims under the Produkthaftungsgesetz [German Product Liability Act].
“Material contractual obligations“ are obligations that protect the legal positions of the customer which are material to the contract and which have to be granted to the customer under the contract in terms of subject matter and purpose; material contractual obligations are also obligations whose fulfilment makes the due performance of the contract possible in the first place, where the customer regularly relies on and may rely on compliance with such obligations.
12.2.
In other cases, we shall be liable for all damage claims asserted against us or refunds under this contractual relationship for culpable breach of duty, for whatever legal reason, but not in the case of minor negligence.br />
12.3.
In the event of liability under para. 12.2. above and liability without negligence, especially given initial impossibility and defects of title, we shall be liable only for typical and foreseeable damage.
12.4.
Liability from the assumption of a procurement risk shall only apply to us if we have expressly assumed the procurement risk by virtue of a written agreement.
12.5.
Liability for indirect damages and consequential damage caused by a defect shall be excluded unless we have infringed a material contractual obligation or we, our managers or vicarious agents are reproached for intentional or grossly negligent breach of duty. “Material contractual obligations“ are obligations that protect the legal positions of the customer which are material to the contract and which have to be granted to the customer under the contract in terms of subject matter and purpose; material contractual obligations are also obligations whose fulfilment makes the due performance of the contract possible in the first place, where the customer regularly relies on and may rely on the compliance with such obligations.
12.6.
Our liability, save for intent, malice and injury to life, limb and health and any other differing indemnity limits prescribed by law, is limited in amount altogether to the scope of cover provided by our employers’ liability insurance. At the customer’s request, we shall provide at any time to the customer a copy of our relevant insurance policy free of charge. We undertake, in the event of the insurer being released from the obligation to perform (e.g. by our breach of warranty, yearly limit etc.) to be answerable to the customer with our own services except however in the case of a negligent act, malice and injury to life, limb and health, and differing indemnity limits prescribed by law only up to a maximum amount of € 100,000.00 (in words: one hundred thousand euros) for each claim.
Any further liability shall be excluded.
12.7.
Exclusion resp. limitation of liability according to the foregoing para. 12.2. to 12.6. shall apply to the same extent for the benefit of executive and non-executive employees and other vicarious agents as well as our sub-contractors.
12.8.
Claims by the customer for damage from the contractual relationship may only be asserted within a preclusion period of 12 months as of commencement of the statutory limitation period. This shall not apply if we are culpable of malice or gross negligence.
12.9.
There is no connection between the reversal of the burden of proof and the foregoing stipulations.
13.
Property rights
13.1.
Unless otherwise agreed, we shall be obliged only to deliver goods in the Federal Republic of Germany that are exempt from third-party industrial property rights and copyrights. If a third party raises justified claims on account of infringement of property rights by products delivered by us to a customer, we shall be liable to the customer within the time limit specified in para. 8.9 as follows:
a.
We shall first at our option try to obtain a right of use at our expense for the deliveries in question or modify the products so that the property right is not infringed, or exchange the products. If we cannot do so on reasonable conditions, the customer shall be entitled to its legal rights which shall, however, comply with these General Terms and Conditions.
b.
The customer shall only be entitled to rights if it gives us written notification immediately about the claims asserted by a third party, does not admit any infringement and all defensive measures and settlement negotiations to avert the claims are left to us. If the customer stops using the products for reasons of loss minimisation or other good cause, the customer shall be obliged to advise the third party that cessation of use is not deemed to be an acknowledgement of a property right infringement. If an appeal is filed by third parties against the customer resulting from the use of products we supply for infringement of property rights, the customer undertakes to notify us immediately and gives us the opportunity to participate in any legal dispute. The customer must support us in every way in conducting such a legal dispute. The customer must not take any action which could impair our legal position.
13.2.
The customer shall have no claims if it is responsible for infringement of a property right. The customer shall also have no claims if the infringement of the property right was due to the customer’s special instructions, an application which we could not foresee or the fact that the products were modified by the customer or used with products we did not supply.
14.
Place of performance, legal venue, applicable law
14.1.
Place of performance for all contractual obligations is our company’s registered office.
14.2.
Sole legal venue for any disputes is - as far as legally admissible - the court responsible for our company‘s registered office.
14.3.
The Law of the Federal Republic of Germany shall exclusively apply to all legal relations between the customer and ourselves. The UN Sales Convention (CISG) is expressly excluded. The above stipulations shall also apply if the customer is a foreigner or its registered office is located abroad.
15.
Final provisions, amendments to the terms and conditions
15.1.
If our order confirmation includes a clause stipulated in the INCOTERMS (e.g. freight paid ex works etc.), the INCOTERMS as last amended shall apply to the respective clause unless otherwise stated in our order confirmation.
15.2.
The customer shall be notified in writing of any amendments to these terms and conditions. They shall be deemed approved by the customer unless the customer objects to them in writing in due time. We must make special reference to this legal consequence in our amendment notification. The customer must send its objection to us within four weeks of receipt of the amendment notification.
16.
Severability clause
If individual provisions of these terms and conditions are invalid for reasons other than §§ 305 - 310 BGB, this shall not affect the remaining provisions which shall retain their full validity. Instead of the invalid provisions, a stipulation shall automatically apply which most closely corresponds to the legally admissible economic intent.
Note
According to the provisions of the Federal Data Protection Act, we draw attention to the fact that our accounting is maintained on EDP equipment, and that we also in this respect store data received as a result of the business relationship with the customer.
Cologne, December 2012
RTW US Corp.
GENERAL TERMS AND CONDITIONS FOR THE SALE OF GOODS
These General Terms and Conditions for the sale of goods (herein, “Terms and Conditions”) are applicable to all customers (collectively, the “Customers” and each, individually, a “Customer”) of RTW US Corp. (the “Company”).
1.
Terms and Conditions of Sale
1.1.
Company shall sell and deliver to Customer, and Customer shall purchase and accept from Company, Company’s products (the “Products”), and if applicable mechanical/technical installation and Customer staff training in the proper use and operation of the Products, described on or in any order, agreement or quotation, or any combination thereof that has been confirmed by Company (the “Order”), pursuant to the terms and conditions of the Order and those specified below, which taken together shall constitute the entire agreement between Company and Customer regarding the Products (this “Agreement”).
1.2.
No other terms or conditions shall be of any effect unless otherwise specifically agreed to by Company in a separate written agreement duly signed by an officer of Company. In the event of any discrepancy or contradiction between these Terms and Conditions and the individually negotiated agreement between Company and Customer, the terms and conditions of the individually negotiated agreement shall prevail. Customer will be deemed to have assented to these Terms and Conditions if any part of the Products is accepted by Customer. If Customer finds any part of these Terms and Conditions not acceptable, Customer must so notify Company at once and must reject the Products delivered under this Agreement. Any additional or different terms or conditions contained in Customer’s Order or in any other form issued by Customer shall be deemed objected to by Company and shall be of no effect. No general terms and conditions of a Customer shall at any time form a part of the content of any contract or agreement between Customer and Company, even if they are not further expressly rejected by Company.
1.3.
Unless otherwise agreed in writing or otherwise stated on the quotations, all quotations for Products are valid for a period of thirty (30) days from the date of issue. Subsequent modifications in quantity, quality or in design, if such are requested by Customer, generally will cause a modification of the quoted price and Company reserves the right to reject any modifications in its sole discretion. Drawings and samples enclosed with any quotation remain the property of Company. All drawings and samples shall be treated confidentially by Customer. Company reserves the right to request drawings, samples and other documents to be returned to Company after usage.
1.4.
No Order is binding upon Company until the earlier of acceptance of the Order via written order confirmation (the “Order Confirmation”), delivery of the Products to Customer unless otherwise agreed to in writing by the parties. Writing shall include transmission by telefax or electronic means. Notwithstanding any prior acceptance of an Order by Company, Company shall have no obligation to deliver any Products if Customer is in breach of any of its obligations under this Agreement or any other agreement between Customer and Company at the time Company’s performance was due.
1.5.
All verbal agreements concerning the terms of any Order, including agreements made by telephone, shall have no force and effect unless and until acknowledged by Company in writing.
1.6.
Customer shall bear all costs associated with the cancellation or modification of an Order.
1.7.
Orders placed with and accepted by Company may not be canceled except upon Company’s written consent prior to shipment and Customer’s acceptance of Company’s cancellation charges which shall protect Company against all costs and losses. Company reserves the right to cancel any Order hereunder in Company’s sole discretion without liability to Company (except for refund of monies already paid).
1.8.
With respect to repair services after the Warranty Period as described in Section 6.1, which will be confirmed and charged separately (the “Repair Services”), Customer shall (i) respond promptly to any Company request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Company to perform Repair Services; (ii) provide such customer materials or information as Company may request to carry out the Repair Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iii) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Repair Services before the date on which the Repair Services are to start. Company will charge a surcharge for Repair Services as set forth on a separate invoice.
1.9.
Customer shall undertake any and all preparatory work as stated in the Order and Order Confirmation to ensure that conditions necessary for the installation or set up of the Products and for the correct use are completed prior to arrival of the Products to Customer. In the event that the installations or correct operation are hindered due to delays caused by Customer or its employees, Customer shall bear all costs or expenses of Company.
2.
Prices
Unless otherwise stated in Company’s Order Confirmation, all price quotations, are EX WORKS (per Incoterms 2020) from Company’s specified location, and do not include costs for shipping, packaging, postage or other freight charges, customs duties, insurance or taxes, if any.
2.1.
The price of the Products shall be Company’s current prices in effect from time to time or by special price quotes made to Customer in writing.
2.2.
Prices in catalogues and brochures are not binding unless confirmed in writing by the Company in the Order Confirmation.
2.3.
Company may, without notice to Customer, increase the purchase price of the Products by the amount of any new or increased tax or duty (excluding franchise, net income and excess profits taxes) which Company may be required to pay on the manufacture, sale, transportation, delivery, export, import or use of the Products or the materials required for their manufacture, or which affects the costs of such materials. Company may further, without notice to Customer, increase the purchase price of the Products due to technical improvements.
3.
Terms of Payment
3.1.
Unless otherwise agreed to in writing by Company or in the Order Confirmation, invoices issued by Company are due and payable by Customer upon receipt of the invoices. Notwithstanding the above, invoices issued by the Company regarding the purchase of spare parts are due and payable within thirty (30) days from the date of delivery. Customer shall make payments by ACH or wire transfer to the account indicated on the invoice without a cash discount or offset, and Company shall not be required to incur any expense to receive timely payment in full as required by this Agreement. Any objection to an invoice should be communicated by Customer via registered mail within seven (7) calendar days following receipt of the invoice. Upon expiration of this period, the relevant invoice shall be considered accepted by Customer and no further complaints shall be accepted by Company.
3.2.
Company may, without notice, change or withdraw extensions of credit at any time. If Company ceases to extend credit terms before shipment, Customer's sole remedy shall be cancellation of its Order. If Customer does not receive notice before shipment, its sole remedy shall be rejection of the Products immediately upon delivery.
3.3.
If Customer fails to make payment on or before the date required, Customer shall be liable to pay, without further notice, interest on the amount outstanding with effect from the date on which the payment was due, at the rate of one-point five percent (1.5%) per month or such lesser amount permitted by law. The specification or charging of interest shall not be deemed an agreement to extend credit.
3.4.
Payment of interest shall be without prejudice to Company’s right to claim a higher compensation in case the incurred damages exceed the interest amount. All extrajudicial and legal costs incurred by Company in the process of compelling the Customer to fulfil its obligations are payable by Customer.
3.5.
If Customer fails to observe these Terms and Conditions or the terms of any other agreements between Company and Customer, or if Customer becomes insolvent, all balances then due and owing to Company shall become due immediately, notwithstanding any agreed upon payment periods. Any Orders that have been confirmed by Company, but not yet filled, shall in such cases become cancelable at the sole discretion of Company, without further notice or payment of compensation to Customer.
3.6.
Customer does not enjoy a right of set-off under any circumstances.
4.
Transfer of Title and Risk and Delivery Terms
4.1.
Unless otherwise provided on the face hereof, all Products furnished hereunder will be shipped EXW (per Incoterms 2020) and title in, risk of loss, and the right of possession to such Products shall pass to the Customer upon Company’s delivery to a delivery location designated by Company, and Company is not responsible for damage or loss in transit, regardless of whether or not Customer may have the right to reject or revoke acceptance of said Products. Company can arrange for in-transit insurance at Customer’s expense but will not do so without Customer’s written instructions. Unless otherwise stated in the Agreement documents, all Products will be shipped freight prepaid and billed. Charges for shipping may not reflect net transportation cost paid by Company. Company shall be responsible for all import requirements of any country into which it seeks to import the Products. Company shall be entitled to make partial deliveries or deliveries prior to the agreed-upon delivery date, provided that Company notifies Customer of the same.
4.2.
Notwithstanding Section 4.1, regarding Products that need to be installed by Company, title shall pass to Buyer upon installation of the Products.
4.3.
Customer shall pay all freight, transportation, shipping, insurance and handling charges, duties, and taxes, including any applicable GST, HST, VAT, sales, personal property, ad valorem, and other taxes, duties, levies or charges imposed by any governmental authority, irrespective of whether applicable law makes such items the responsibility of Customer or Company, but excluding any taxes payable by Company with respect to its net income.
4.4.
The Products shall be packaged as stated in Company’s Order Confirmation. Customer shall be exclusively responsible for, and shall provide Company with, any information necessary to comply with special labeling requirements applicable at Customer’s place of business. Customer shall be responsible to ensure that the Products comply with all applicable laws in Customer’s jurisdiction. Company is not bound to organize export clearance.
4.5.
Customer, shall, subject to Company’s available facilities at the shipping point, determine the type of transportation and shall notify Company thereof at the time Customer places each Order. If Customer shall fail to so notify Company, Company or its agent may select, at Customer’s expense, any commercial air, ship, motor or rail carrier or any combination thereof for the transportation of the Products. Company will make deliveries of the Products in the quantities ordered as near as reasonably possible to the Customer’s requested delivery dates.
4.6.
Company shall use its commercially reasonable efforts to deliver the Products to Customer by the agreed upon date, subject to Section 4.1, and any such dates shall be estimates only. However, time shall not be of the essence. In the event of a threatened delay in delivery, Company shall in any event inform Customer thereof and Company and Customer shall consult on the most practical manner to remedy any adverse consequences of such delay. Except in cases of Company's willful misconduct or gross negligence, Company shall not be liable to Customer for delays in delivery or damage to the Products while in transit, irrespective of whether Company or Customer determined the mode of transportation.
4.7.
In cases of deliveries of Products manufactured to Customer’s specification (“Special Orders”) and unless otherwise agreed to in writing, all tools, cutting patterns, designs, drawings, samples, models, plans, blueprints or other devices and/or documents used and/or developed by Company (the “Tools”) in order to fulfill any Order or Special Order are the property of Company, even if the cost of development and/or manufacturing of such tools, models, plans, blueprints or other devices and/or documents was wholly or partially borne by Customer.
4.8.
Customer is obliged to take possession of the ordered Products on the confirmed delivery dates. Should Customer for any reason, except for delivery of defective Products, not take possession of the Products at the time of delivery:
(i)
the Products shall be deemed to have been delivered and
(ii)
Company is entitled to store the Products at the sole expense and risk of Customer.
Such protective measure does not suspend Customer’s payment obligation.
5.
Security Interest
5.1.
As security for the timely payment and performance of all Customer’s indebtedness to Company, Customer hereby grants to the Company a lien and security interest in the Products following delivery thereof to Customer (“Security Interest”). The Security Interest granted under this provision constitutes a purchase money security interest under the applicable Uniform Commercial Code. Such Security Interest shall remain in force until payment in full of the entire purchase price for the Products and any other amounts due to Company have been received by Company.
5.2.
Customer hereby expressly authorizes Company to file a UCC Financing Statement or comparable financing statement to reflect Company’s security interest in the Products. Customer shall cooperate in the respective filings and registrations which are required according to applicable local laws for an effective protection of Company’s claim for payment of the Products, including, without limitation, any required documentation duly filed under the UCC or similar statute in all jurisdictions as may be necessary to perfect Company’s security interest and lien in the Products.
6.
Warranty and Disclaimers for Products/Representations for Repair Services
6.1.
Company warrants to Customer that for a period of 24 months from the date of shipment of the Goods ("Warranty Period"), that such Goods will materially conform to the specifications set forth in Seller's published specifications in effect as of the date of shipment and will be free from material defects in material and workmanship, provided the Products are used for the purpose intended and are maintained, handled, serviced and operated in accordance with the written instructions and manuals supplied by Company or the manufacturer of the Products (or developer of the software).
6.2.
Company represents and warrants to Customer that it shall perform the Repair Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
6.3.
Company shall not be liable for a breach of the warranty set forth in Section 6.2 unless Customer gives written notice of the defective Repair Services, reasonably described, to Company within seven (7) days of the time when Customer discovers or ought to have discovered that the Repair Services were defective.
6.4.
Subject to Section 6.3, Company shall, in its sole discretion, either:
–
repair or re-perform such Repair Services (or the defective part); or
–
credit or refund the price of such Repair Services at the pro rata contract rate.
6.5.
EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 6.1 ABOVE, COMPANY MAKES NO WARRANTY WITH RESPECT TO THE PRODUCTS OR REPAIR SERVICES INCLUDING, WITHOUT LIMITATION, ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. COMPANY EXPRESSLY EXCLUDES ANY WARRANTY AND ALL LIABILITY FOR ANY DAMAGES OR COSTS RESULTING FROM OR IN CONNECTION WITH INCORRECT OR EXCESSIVE USE OF THE PRODUCTS OR INADEQUATE STORAGE CONDITIONS, INCLUDING BUT NOT LIMITED TO IN CONNECTION WITH CHEMCIAL, ELECTROMAGNETIC, MECHANICAL, OR ELECTROLYTIC EFFECTS THAT DO NOT MEET THE REUIQRED AND RECOMMENDED ENVIRONMENT.
6.6.
SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY.
7.
Limitation of Liability
7.1.
IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, SAVINGS, REVENUE, GOODWILL OR USE, INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR IMPOSED BY STATUTE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2.
NOTWITHSTANDING THE TERMS AND CONDITIONS SET FORTH IN SECTIONS 6.1, COMPANY'S LIABILITY- WHETHER BASED UPON CONTRACT, TORT, EQUITY, NEGLIGENCE OR ANY OTHER LEGAL CONCEPT- SHALL IN NO EVENT EXCEED 10% OF THE TOTAL OF THE AMOUNTS PAID BY CUSTOMER TO COMPANY UNDER THE RESPECTIVE PURCHASE ORDER. IT IS AGREED AND ACKNOWLEDGED THAT THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN COMPANY AND CUSTOMER, THAT COMPANY’S PRICING REFLECTS THIS ALLOCATION OF RISK, AND BUT FOR THIS ALLOCATION AND LIMITATION OF LIABILITY, COMPANY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.
7.3.
IN JURISDICTIONS THAT LIMIT THE SCOPE OR PRECLUDE LIMITATIONS OR EXCLUSION OF REMEDIES OR DAMAGES, OR OF LIABILITY, SUCH AS LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR THAT DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED, THE LIMITATION OR EXCLUSION OF WARRANTIES, REMEDIES, DAMAGES OR LIABILITY SET FORTH ABOVE ARE INTENDED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT VARY BY STATE, PROVINCE, COUNTRY OR OTHER JURISDICTION.
8.
Indemnity
8.1.
Customer agrees to defend, indemnify and hold Company (and its agents, representatives, employees, officers, related companies, successors and assigns, and customers) harmless from all claims, demands, actions, damages, and liabilities (including attorney’s fees and consequential and incidental damages) arising out of any injury (including death) to any person or damage to any property in any way connected with any unlawful or negligent act or omission or breach of a duty of Customer, its agents, employees, or subcontractors hereunder.
9.
Insurance
9.1.
During the term of this Agreement and for a period of one year thereafter, Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $5 Million with financially sound and reputable insurers. Upon Company's request, Customer shall provide Company with a certificate of insurance from Customer's insurer evidencing the insurance coverage specified herein.
9.2.
In the event the Products are damaged or destructed by fire, other perils or causes of loss prior to full payment of the purchase price by Customer, and if the repair of the damage or the value of the destructed Products will be paid by an insurance company, then Customer, upon receipt of the insurance proceeds, waives any and all rights it has to the insurance proceeds in the amount of the outstanding purchase price at the time the insurance proceeds are paid out to Customer (the “Insurance Proceeds”). Furthermore, Customer represents and warrants that it will assign to Company all right, title and interest to and in the Insurance Proceeds.
10.
Confidentiality
10.1.
Customer shall not use or communicate to third parties any trade secrets or know-how or any proprietary information relating in any way to the internal affairs of Company, in particular, confidential matters of which it becomes aware or receives access to as a result of placing its order with Company. Notwithstanding the foregoing, excluded from the above restrictions is any disclosure of confidential matters
(i)
that can be demonstrated to have been in the public domain prior to any disclosure of such information by the disclosing party, whether directly or indirectly;
(ii)
that becomes part of the public domain by publication or otherwise through no fault or negligence on the part of the disclosing party; or
(iii)
that is disclosed pursuant to a requirement of a governmental agency or as is required by operation of law.
The terms “trade secrets”, “know-how” or “proprietary information”, as used in this section, shall include, but not be limited to, designs and plans regarding product development, materials, components, production plans, computer programs, data bases, technical data, documentation, as well as other information relating to the Products (collectively, the “Confidential Information”). Customer shall not copy such Confidential Information, unless approved in writing by Company. Customer shall instruct its employees and its independent subcontractors to adhere to the terms and conditions of this provision. The obligations under this provision shall survive the termination of the Agreement and/or the delivery of Products for an indefinite period of time.
11.
Intellectual Property
11.1.
All inventions (whether patented or not), methods, processes, formulas, know-how, layouts, models, designs, sketches, drawings, blueprints, patterns, trade secrets, copyrights, mask works, trade names, registered and unregistered trademarks and service marks, proprietary materials or other intellectual property and all improvements or modifications relating to any of the foregoing, incorporated into or in any manner associated with or attached to the Products or otherwise provided to Customer (the “Company Intellectual Property”) are and shall at all times remain the sole property of Company or its Licensors. Customer agrees not to (a) modify, decompile, reverse engineer, copy or duplicate the Company Intellectual Property, nor to reformulate, remanufacture or have remanufactured any products which incorporate the Company Intellectual Property, (b) to use any of Company’s trademarks, service marks or trade names in any manner without the prior written permission of Company, or (c) to infringe, or permit a third party to infringe, any such Company Intellectual Property or to adapt the Products in any way or to create a derivative work of any of the Company Intellectual Property, except as may be authorized in writing by Company. Any act or omission of Customer contrary to the provisions of this Section 11 shall be a material breach of this Agreement.
12.
Force Majeure
12.1.
Company shall not be liable to Customer or any other person for any failure or delay in the performance of any obligation under this Agreement due to events beyond its reasonable control, including, but not limited to, fire, storm, flood, earthquake, explosion, accident, pandemics, epidemics, acts of the public enemy, wars, riots and public disorder, sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdown, stoppages or delays, shortages or failures or delays of energy, materials, supplies or equipment, transportation embargoes or delays, acts of God, breakdown in machinery or equipment, and, except as otherwise set forth in this Agreement, acts or regulations or priorities of the federal, state or local governments.
13.
Export Control
13.1.
This Agreement is made subject to any restrictions concerning the export of products or technical information from the United States or other countries that may be imposed on the parties from time to time. Each party agrees that it will not export, directly or indirectly, any technical information acquired from the other party under this Agreement or any products using such technical information to a location or in a manner that at the time of export requires an export license or other governmental approval, without first obtaining the written consent to do so from the appropriate agency or other governmental entity in accordance with applicable law.
14.
Miscellaneous Terms
14.1.
This Agreement and all claims arising out of or related to this Agreement, including tort claims, shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than New York. The application of the Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded.
14.2.
Except where prohibited by law, any controversy or claim arising out of or relating to this Agreement, or the negotiation or breach thereof, shall be exclusively settled by arbitration in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration shall be held in New York City, New York, shall be conducted in the English language, and shall be conducted (i) if the amount in dispute is less than two hundred fifty thousand dollars ($250,000), before a single arbitrator mutually agreeable to Company and Customer, or if no agreement can be reached, then selected by the AAA, or (ii) if the amount in dispute is two hundred fifty thousand dollars ($250,000) or more, before three (3) arbitrators. The arbitrator(s) shall make detailed findings of fact and law in writing in support of his, her or their decision, and shall award reimbursement of attorney’s fees and other costs of arbitration to the prevailing party, in such manner as the arbitrator shall deem appropriate. Either party may initiate arbitration by notifying the other in writing. The ruling and award from such arbitration shall be final and binding. The parties consent to judgment on the award and the judgment and award may be entered in any court of competent jurisdiction.
14.3.
If arbitration pursuant to section 14.2 is prohibited by law, then any dispute or claim arising out of or relating to this Agreement or the negotiation or breach thereof may be brought before the State or federal courts located in the State of New York. Customer, acting for itself and its successors and assigns, hereby waives all rights to trial by jury in any litigation arising from or related to this Agreement. Subject to section 14.2, Customer expressly and irrevocably consents to the jurisdiction of the state and federal courts located in the State of New York, and waives the right to assert that any action in any such court is in the improper venue or should be transferred to a more convenient forum.
14.4.
If any provision contained in this Agreement is held to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in this Agreement, such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable. Notwithstanding the foregoing, however, if the severed or modified provision concerns all or a portion of the essential consideration to be delivered under this Agreement by one party to the other, the remaining provisions of this Agreement shall also be modified to the extent necessary to equitably adjust the parties’ respective rights and obligations hereunder.
14.5.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms and Conditions.
14.6.
Notwithstanding section 14.2, in the event of a violation or threatened violation of Company’s proprietary rights, Company shall have the right, in addition to such other remedies as may be available pursuant to law or this Agreement, to immediately commence an action or proceeding in a court of competent jurisdiction, subject to the terms of this Agreement, to seek temporary or permanent injunctive relief enjoining such act or threatened act. The parties acknowledge and agree that legal remedies for such violations or threatened violations are inadequate and that Company would suffer irreparable harm.
14.7.
The parties hereto are independent contractors and nothing in this Agreement will be construed as creating a joint venture, employment or agency relationship between the parties. Customer shall not be entitled to assign the rights and delegate the obligations of Customer set forth in this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
14.8.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
14.9.
This Agreement, including any Order Confirmation and Schedules attached hereto, contains the entire agreement of the parties with respect to the subject matter of this Agreement, and supersedes all prior agreements between them, whether oral or written, of any nature whatsoever with respect to the subject matter hereof. This Agreement is binding upon the parties hereto, their successors and permitted assigns. It can only be amended in writing which
(i)
specifically refers to the provision of this Agreement to be amended and
(ii)
is signed by both parties.
14.10.
Each party will comply with all applicable laws, regulations, and ordinances, and Customer will comply with the export and import laws and regulations in effect as of the date of shipment of the Products of any country involved in the transactions contemplated by the Agreement.
14.11.
Company has the right to terminate the Agreement with Customer at any time, with immediate effect, without prior notice and without compensation
(i)
in case the Products are seized by a third party;
(ii)
in case of breach by Customer of one or more of the obligations arising from this Agreement where the breach has not been remedied within seven (7) calendar days following a written notice by Company;
(iii)
if Customer becomes insolvent or enters into any composition or similar general arrangement (formal or informal) with its creditors or is or threatens to be unable to pay its debts, is subject to a procedure of judicial reorganisation or bankruptcy, has a receiver or administrator appointed in respect of its undertaking, assets or income or any part thereof, has passed a resolution for its liquidation, or a request is filed or an order is made by any court for its liquidation or for its administration; or
(iv)
if Customer ceases to trade. In case of termination, Company reserves the right to claim compensation for all costs, interests and damages incurred by Company.
14.12.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Order to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only
(a)
upon receipt of the receiving party, and
(b)
if the party giving the Notice has complied with the requirements of this Section.
14.13.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: 5, 6, 7, 8, 9, 10, 11, 12, 13, 14.2, 14.4, 14.11, 14.12.
Additional
Returns
Obsolete, closeout, B-stock, discontinued, and modified products are not returnable. All returns for credit and exchange require a Return Merchandise Authorization (RMA) and are subject to a 15% restocking fee, unless a new order for double the value of the return is placed at the time of the RMA request and the returned product is in resalable condition. To obtain an RMA, please contact us via email ussales@rtw.com. RMAs are valid for 30 days from the date of issue for the return of merchandise purchased within the prior 30 day period. Merchandise and its packaging must be in factory fresh, unused, resalable condition. Products and packaging must be free of dealer identification and unopened.
