General Terms and Conditions of Sales and Supply

 

1. General

 

1.1   These general conditions of sales and supply (“Conditions”) are applicable to all deliveries, services, quotations and offers of RAYTEK SDN. BHD. (“Raytek”). These Conditions (which shall only be waived in writing signed by Raytek) shall prevail over all conditions of customers’ orders to which Raytek has not given express written approval or to the extent of any inconsistency.

1.2   All agreements and legally relevant declarations of the parties to the contract (“contract”) must be in writing to be valid.

1.3   Offers which do not stipulate a validity period are not binding upon Raytek.

1.4   The Contract between the parties is deemed concluded when Raytek confirms its acceptance to an order in writing. For sake of clarity a quotation is not an obligation or offer to sell and supply, but it is an invitation to submit an order and no contractual relationship arises there-from.

1.5   The use of an electronic signature corresponding to the current level of technology and in accordance with the leally required rulings is permissible for a conclusion of Contract or an alteration to the Contract to be effective and replaces the requirement of such in writing.

1.6   Should a provision of these Conditions prove to be wholly or partly invalid or unworkable, the parties shall jointly seek an arrangement having a legal and economic effect which will be as similar as possible to the invalid provision.  For the avoidance of doubt, any provision herein which is or may be void or unenforceable shall to the extent of such invalidity or unenforceability be deemed severable and shall not affect any other provision of these Conditions.

 

2         Scope of supplies and services

2.1   The supplies and services of Raytek are exhaustively specified in the order acknowledgments issued by Raytek and in appendices thereto.  Raytek shall be entitled to make any changes which lead to improvements provided such changes do not result in a price increase.

2.2   With regard to deliveries concerning cable, Raytek reserves the right to over or under supply up to 10% or the ordered volume.  If a specific (minimum) order quantity is required additional cost and a special comment is to be made when the order is placed.

 

3         Drawings, technical documents and tools

3.1   Unless otherwise agreed upon, information provided in brochures, catalogues or the internet are not binding.  Data provided for in technical documents are only binding in so far as having been expressively stipulated as such by Raytek.

3.2   Each party to the Contract retains all rights to technical documents provided to the other.  The party receiving such documents recognizes these rights and shall not make these documents available to any third party, either in whole or in part, nor use them for purpose other than those for which they were handed over without the prior written consent of the other party.

3.3   Where any design or specification has been supplied by the customer for manufacture by or to the order of Raytek then the customer warrants that the use of those designs or specifications by Raytek do not infringe the rights of any third party and the customer will indemnify Raytek against all claims and actions arising out of the use by Raytek of those designs or specifications.

3.4   Tools and molding tools of all kinds remain in all cases the property of Raytek with exception of those provided by the customer.

3.5   Special conditions are to be agreed for tools and molding tools provided by the customer to H+S.  The cost for servicing and maintaining these tools are to be borne in all cases by the customer.  The cost for storing these tools is the responsibility of Raytek, for a maximum period of five years only after the last delivery was executed.

 

4         Regulations in force in the country of destination and safety devices

4.1   The customer shall, on or before placing the order, draw the attention of Raytek to the standards and regulations applicable to the execution of the supplies and services, to their operation as well as to the health and safety of personnel.

4.2   Unless otherwise agreed upon, the supplies and services shall comply with those standards and regulations at the place of business of the customer of which Raytek has been informed under clause 4.1.  Additional or other safety devices shall be supplied to the extent that having been expressively agreed upon.

 

5         Prices

5.1   Unless otherwise agreed upon all prices shall be net ex-works Raytek (Incoterms, latest issue), excluding packing, payable (a) in Indian Rupees for sales within India and (b) in freely available Swiss Francs or such other currency as Raytek shall notify to the customer in case of exports, without any deductions or withholdings whatsoever.

Any and all additional charges, such as, but not limited to, freight charges, insurance premiums, fees for export, transit, import and other permits, as well as for certifications,  shall be borne by the customer.

Likewise, the customer shall bear any and all taxes (including, but not limited to any value added tax (VAT)/sales tax, tax on works contracts, entry tax, octopi and service tax), fees, levies, cess, customs duties, excise duties and the like which are levied out of or inconnection with the Contract, or shall refund them to H+S against adequate evidence in case H+S is liable for them.

5.2 Raytek reserves the right to adjust the prices to reflect any increase in the cost to Raytek (including, without limitation, due to any change in law or new law, foreign exchange fluctuations, taxes and duties and the costs of labor, raw materials and other manufacturing costs) between the submission of the tender or quotation and the contractually agreed performance.  In such case the adjustment shall be made according to the applicable rate as conclusively determined by Raytek to the customer.

·         In addition, an appropriate price adjustment shall apply if

·         the delivery time has been subsequently extended due to any reason stated in Clauses 6.3, 8.1 and 8.3, or

·         the nature or the scope of the agreed supplies or services has changed, or

·         the design, the material or the execution has undergone changes because any documents furnished by the customer were not in conformity with the actual circumstances, or were incomplete, and the customer did not draw or were late in drawing the attention to standards and regulations according to Clause 4.1.

 

6         Terms of payment

6.1   Unless otherwise agreed upon, payments shall be made by the customer not later than 30 days after the date of invoice, net, without any withholding, set-off or deduction for cash discount, expenses, taxes, levies, fees, duties, and the like.

6.2   The dates of payment shall also be observed notwithstanding that transport, delivery, erection, commissioning or taking over of the supplies or services is delayed or prevented due to reasons or factors beyond Raytek‘s control, or if unimportant parts are missing, or if post-delivery work is to be carried out without the supplies or services being prevented from use.

6.3   If the advance payments, if agreed upon, are not provided in accordance with the terms of the Contract, H+S shall be entitled to, without prejudice to Raytek’s rights under the Contract or under general law, adhere to or to terminate the Contract, and shall in both cases be entitled to claim damages.

6.4   If the customer delays in the agreed terms of payment, he shall be liable, without reminder, for interest at the rate not less than 8% p.a. (or such other higher rate as Raytek shall determine to be the rate charged by leading banks in India for the relevant period) with effect from the agreed date on which the payment was due.  Payment of the interest does not release the customer from his obligation to make payments on the agreed dates or from the obligation to pay damages which might exceed the interest rate mentioned.

6.5   An offset of claims from either party arising out of these Conditions, or in conjunction with the Contract is only allowed with an accepted or legally confirmed counterclaim.

 

7         Reservation of title

7.1   Raytek shall remain the owner of all supplies until having received the full and final payments in accordance with the Contract.  The customer shall, at the request of Raytek, do or procure the doing of all such acts and will execute or procure the execution of such documents as Raytek may consider necessary or desirable, or useful for the protection of the Raytek’s title.

7.2   Until property in or title to the supplies pass to the customer in accordance with clause 7.1, the customer shall hold the supplies and each of them on a fiduciary basis as bailee for Raytek.  The customer shall store the supplies (at no cost to Raytek) separately from all other goods in its possession and marked in such a way that they are clearly identified as Raytek’s property.  The customer shall not charge or encumber such supplies in any manner whatsoever.

 

8         Delivery time

8.1   The delivery time shall start as soon as the Contract is entered into, all official formalities such as, but not limited to, import or payment permits have been completed, payments due with the order have been made, any agreed securities given and the main technical points settled.  The delivery time shall deemed to be complied if by that time Raytek has sent a notice to the customer informing that the supplies are ready for dispatch and in the case of services that H+S is ready to fulfill its obligations.

8.2   Compliance with the delivery time is conditional upon customer’s fulfilling of its contractual obligations, especially its payments and co-operation responsibilities.

8.3   The delivery time is extended to such time as Raytek deems necessary:

a)       if the information required by Raytek for performance of the Contract is not received in time, or if the customer subsequently changes the specifications of the supplies or the services thereby causing a delay in the delivery of the supplies or services;

b)      if hindrances or a force majeure occur which Raytek can not prevent despite using the required care, regardless of weather they affect the customer or a third party. Such hindrances include, but should not be limited to, epidemics, mobilization, war, revolution, serious breakdown in the works, accidents, labor conflicts, late or deficient delivery by subcontractors of raw materials, semi-finished or finished products, the need to scrap important work pieces, official actions or omissions by any state authorities or public bodies, natural catastrophes, acts of god;

c)       if the customer or a third party is behind schedule with the performance of its contractual obligations, in particular if the customer fails to observe the terms of payment for the current or for previous orders.

8.4   In case a specific date instead of a delivery period is fixed, such date shall correspond to the last day of a delivery period; Clauses 8.1 to 8.3 shall apply mutatis mutandis.

8.5   Any delay of the supplies or services does not entitle the customer to any rights to terminate the Contract or any entitlements for damages or claims. The limitation does, however, not apply to unlawful intent or gross negligence of persons employed or appointed by Raytek to perform any of its obligations.

8.6   Notwithstanding that Raytek may have delayed or failed to deliver the supplies and services (or any part of them) promptly, the customer shall be bound to accept delivery and to pay for the supplies and services in full provided that delivery shall be tendered at any time within three (3) months of the original scheduled date of delivery.

9         Passing of risk

9.1   The risk of the supplies shall pass to the customer by the date of their leaving the works of Raytek or the works of suppliers/manufacturers designated by Raytek. As regards on-site Contracts, the risk of the supplies and services shall pass to the customer, by the beginning of the use of supplies or services.

9.2   If dispatch is delayed at the request of the customer or due to reasons or factors beyond Raytek’s control, the risk of the supplies shall pass to the customer at the time originally scheduled for their leaving the works of Raytek or the works of suppliers/manufacturers designated by Raytek. From this moment on, the supplies shall be stored and insured on the account and at the risk of the customer and payment of the suppliers shall become due and payable in accordance with clause 6.1.

10     Forwarding, transport and insurance

10.1  The customer shall, before or at the time it places an order with Raytek, notify Raytek of special requirements regarding forwarding, transport and insurance. The transport shall be ex works Raytek (Incoterms, latest issue) at customer’s expanse and risk.

10.2  The customer shall responsible for taking insurance against risks of any kind.

11     Inspection and taking-over of the supplies and services

11.1  According to its own practices, Raytek shall inspect the supplies before dispatch, as regards services, after fulfilling its services. If the customer requests further testing, this has to be specially agreed upon and paid for by the customer.

11.2  The customer shall inspect the supplies and services including partial supplies and partial services within a reasonable period upon (a) arrival/receipt of the supplies; and (b) completion of the services; and shall immediately notify Raytek in writing of any deficiencies. If the customer fails to notify Raytek of any deficiencies within 7 days after the delivery of supplies to the customer and/or completion of the services, the supplies and services including partial supplies and partial services shall be deemed to have been taken over or accepted by the customer.

11.3  Having been modified of the deficiencies according to Clause 11.2, Raytek shall as soon as possible remedy them, and the customer shall provide such cooperation and assistance to enable Raytek remedy the deficiencies. After remedy of such deficiencies, a taking-over test may be carried out at the request of the customer or of Raytek.

11.4  After acceptance or deemed acceptance of the supplies and services, the customer shall not be entitled to reject the supplies and services which are not in accordance with the Contract.

11.5  Deficiencies of any kind in supplies or services including partial supplies and partial services shall not entitle the customer to any rights or claims other than those expressly stipulated in these Conditions.