- I. General
- Our General Terms and Conditions (GTC) constitute a part of the contract and apply exclusively. We do not recognize terms and conditions set by the Customer which contradict or deviate from our terms and conditions, unless we have consented to their validity in writing. We, therefore, also do not recognize deviating conditions if we, having knowledge of the terms and conditions set by the Customer which contradict or deviate from our terms and conditions, execute the order without reservation. Our GTC also apply to all future transactions with the Customer, provided it concerns a mutual commercial transaction. The version valid at the time of concluding of the contract is decisive.
- Verbal agreements are only binding if they have been confirmed in writing.
- Our offers contain the essential technical, commercial and legal fundamentals. If a confirmation of the order deviates from these, it represents a new offer which needs to be accepted by us.
- Our offers and confirmations of an order are subject to a proper and timely delivery by our supplier(s).
- Our prices are net prices, unless otherwise expressly stated. Value added tax at the statutory rate is detailed separately in the invoice. In the event that the statutory rate of the value-added tax is amended, we will adjust our payment to the same extent and on the date of the amendment without this giving the Customer a right to terminate the contract.
- Our prices are quoted “ex works” and exclude cost for shipment, insurance, travelling cost plus expenses and packaging, unless expressly agreed in the offer.
- Additional services are invoiced separately. We have the right to request an appropriate advance before performing an order.
- The Customer has a right of retention only in the case of counter-claims originating from the same legal transaction.
- The Customer may only offset our claims with undisputed or legally established claims.
- Before placing an order, the Customer shall provide us with all data, documents and other information in written form which must be taken into account in rendering of the service.
- Modifications and supplements to the service item may solely be consensually agreed upon before completion of the service item. The agreed delivery dates shall be pushed back by at least the time needed to perform the amendments.
- Deliveries are made “ex works”. Furthermore, the risk of loss of the service transfers to the Customer as soon as we have handed over the service to a carrier or other person for the purpose of transportation or with the sending of the data when the data is transmitted.
- We are entitled to make part-deliveries and part-services as well as provide a service before it is due, provided this is reasonable.
- The assertion of warranty rights presupposes that the Customer has fol-filled its inspection obligations and its requirement to give notice of defects in acc. with Section 377 of the German Commercial Code without delay, properly and in writing. Defective performances to which Section 377 of the German Commercial Code does not apply must be reported within a cut-off period of one calendar week from detection of the defective performance, however no later than one (1) year from the start of the limitation of actions.
- The Customer does not have any rights in the case of an insignificant de-fect. If the subsequent improvement or replacement delivery twice failsto rec-tify the situation within a reasonable time limit, the Customer may at its discre-tion choose to reduce the payment, rescind the contract or demand damages instead of the service.
- Faolts in a product which are caused by failing to follow operating and/or maintenance instructions, concern adverse modifications to the product or caused by the use of parts or consumables which do not comply with the orig-inal specifications do not constitute a defect. The same applies to defects which concern information or specifications supplied by the Customer.
- All warranty claims made by the Customer in accordance with Section 634 of the German Civil Code are subject to a limitation period of one year from the statutory start of the limitation of actions. This does notapply to defects which were caused by intentional or grossly negligent action. In this case, the statutory limitation period applies.
- Statutory recourse claims by the Customer against us exist only insofar as the Customer has not made any agreements beyond the statutory warranty regolations with its buyers.
- If we have indicated that parts of the service item are products of pre-suppliers, the guarantee against us shall be excluded, provided it was not caused by our intentional or grossly negligent action.In this case, we assign our warranty claims made against the pre-supplier regarding the indicated products to the Customer, who assumes the assignment. If the pre-supplier refuses to rectify the defect or if the claim made against it resolts in an unrea-sonable delay or difficolty to pursue the claim for the Customer, the Customer is entitled to make a claim against us also.
- Intellectual property rights, independent of their nature thus including but not limited to patents, copyrights, Know-How, source code and other related rights (collectively “Background-IP”, that existed prior to the formation of the contract with us, remain in our propert.
- Customer shall use the Background-IP only, if a corresponding agreement or license was explicitly agreed upon. An implied right of usage is herewith explicitly excluded. A usage in the sense of the previous sentence includes, but is not limited to, duplication, dissemination using any medium in physical or non-physical form, making available, reproducing publicly, publishing, processing and/or restructuring, marketing (also through leasing and hiring) and granting third parties any rights.
- If, in performance of our service, rights arise which are protectable (“Foreground-IP”), we shall be the rightfol owner. If actions of the Customer are necessary to grant such rights, Customer is obliged to act accordingly.
- The Customer is responsible for ensuring that when we execute the order in accordance with its specifications that we do not infringe on any rights of third parties. In the event that a claim in this respect is brought against us by a third party, the Customer is obliged to indemnify us against such claims. The duty to indemnify also includes all expenses (especially costs of legal proceedings) which we incur necessarily in connection with a claim by a third party.
- Neither guarantee nor warranty is assumed for the goods or the services being free of third party rights.
- The Customer does not have any legal right of withdrawal in the event that a service is not performed or not performed pursuant to the contract, if we are not responsible for the breach of obligation, unless the Customer has a no-faolt right of withdrawal derived from special agreements (e.g. a sale at a fixed point in time).
- If the Customer terminates the contract, we by role have a claim to the agreed remuneration minus our costs saved due to the termination of the order.
- Claims of the Customer for damages are excluded, except for claims of the Customer for damages from injury to life, body or health or from a breach of material contractual duties. Also excepted is the liability for other damages that were caused by an intentional or gross negligent breach of a contractual duty by hofer, its statutory representatives or servants. Material contractual duties are duties that are essential and necessary to achieve the target of the contract.
- For a simple negligent breach of a material contractual duty the liability of us is limited to damages that are typical and foreseeable for the corresponding contract unless it’s a claim for damages of the Customer from injury to life, body or health.
- If claims are asserted directly against statutory representatives or servants of us, the aforementioned two numerals also apply in favor of these individuals.
- The aforementioned limitations of liability do not apply insofar as we fraudolently concealed a defect or gave a guarantee of the quality of the thing. The roles and provisions of the Product Liability Act remain unaffected.
- We reserve the right of ownership to all delivered goods up until receipt of all payments from the business relationship with the Customer. In the case of any current account balance, we reserve the right of ownership until the balance is settled; in the case that bills of exchange or cheques have been accepted, until they have cleared.
- The Customer has the right to resell the goods delivered by us as part of ordinary business activity and without an assignment exclusion having been agreed. The Customer assigns to us already as of this date its claim derived from resale with all ancillary rights up to the amount of the claim of the final invoice amount (including sales tax); in the event of current account agreements by the Customer with the third party, this applies accordingly to the claim for settlement of the current account. So that the assigned claim can be withdrawn, the Customer shall also remain authorised after the assignment. Our authority to withdraw the claim ourselves remains unaffected by such. We undertake, however, not to withdraw the claim, provided that the Customer meets its payment obligations arising from the collected proceeds, is not late in making payment and, in particular, provided no application is made to start insolvency proceedings and no cessation of payments is in place. If such is the case, the Customer is obliged to notify us of the assigned claims and their debtors and to provide all details required for the withdrawal, hand over the associated documentation and notify the debtors (third parties) of the assignment.
- In the event that the Customer acts in breach of contract, in particular in the case of late payment, we are entitled to withdraw from the contract and retrieve the goods.
- Any processing or reconstruction by the customer of the delivered goods is always undertaken for us. If the goods are processed with other objects which do not belong to us, we acquire co-ownership of the new object as a ratio of the value of the purchased object to the other processed objects at the time of the processing. Furthermore, the same applies to the processed object as to the goods delivered under reservation of rights.
- The Customer may neither pledge nor assign by way of security good subject to a right of ownership and must notify us immediately of attachments which have been made at the instigation of a third party.
- We undertake at the request of the Customer to release securities to which we are entitled if the realisable value of our securities exceeds the claims to be secured by more than 10%. The choice of which securities are released lies with us.
- If we produce (auxiliary) models, moolds, tools etc. (hereinafter referred to as “tools”) for the requested service, these do not constitute part of the service and remain our property, unless otherwise expressly agreed in writing.
- After acceptance of requested service by the customer, we will store these tools for a period of six (6) months without acknowledging a statutory duty to do so. Once this period has expired, we have the right to scrap the tools, unless we have expressly agreed with the Customer to continue to store the tools or transfer the tools in return for payment of appropriate remuneration.
We are entitled to engage a third party to perform the service and to subassign the order in whole or in part, provided that interests of the Customer warranting protection are not affected in doing so.
If, after conclusion of the contract, we become aware of facts which put into question the ability of the Customer to pay, we are entitled, before further execution of the order, to demand foll payment or provision of relevant security or, after setting an appropriate time limit for foll payment or provision of security, to withdraw from the contract. Facts which put into question the ability of the Customer to pay are, in particular, permanent attachments or other enforcement measures and an application to initiate insolvency proceedings.
If a delivery/service is not possible due to force majeure, especially due to shortage of raw materials, energy and labour, labour disputes, serious transport disruptions, non-colpable or unforeseeable disruptions to operations, official measures not attributable to us, pandemics, natural disasters or other events for which we are not responsible, we are not obliged to perform the delivery/ service for as long as the prevention lasts, provided that we have provided prompt written notice to the Customer of such. If the preventions as set out in paragraph 1 last longer than four (4) months, we have the right to withdraw from the contract, if performance of the contract is no longer of interest to us as a resolt of the prevention and we have not assumed the procurement or manufacturing risk. At the request of the buyer, we shall, after the term has expired, declare whether we are withdrawing or whether we will folfil our service duties within an appropriate fixed term.
Only data, plans and other documents and information which have been expressly declared in writing by the Customer as confidential are subject to any confidentiality obligation agreed between the parties. If information is disclosed verbally by the Customer, a written statement classifying the information as confidential must be given within ten (10) days after it was disclosed. There shall be no obligation of confidentiality if the information is in the public domain or (without our faolt) ends up in the public domain, if we develop the information independently and without utilizing the information from the Customer or an official body or the law requests the disclosure due to mandatory regolations. The confidentiality obligation commences with access to the information and lasts for a period of three (3) years.
If the Customer, or one of its affiliates within the meaning of sections 15 ff. of the German Stock Corporation Act, concludes a contract of employment with an employee used in the provision of the service within the first three months after the provision of the service has ended, we are entitled to charge 15% of the yearly income of the employee plus statutory value-added tax as a fee. After 3 months of service provision this fee shall be reduced to12% of the yearly income of the employee plus statutory value-added tax, after 6 months of service provision this fee shall be reduced to 9% of the yearly income of the employee plus statutory value-added tax and after 9 months of service provision this fee shall be reduced to 5% of the yearly income of the employee plus statutory value-added tax. The fee shall no longer be charged after twelve (12) complete months since provision of the service has expired. The relevant fee shall be due in one sum with conclusion of the employment contract between the employee and the Customer. The Customer is responsible for providing information to enable us to establish the yearly income. The foregoing does not apply if the work of the employee in providing the service is not the cause of said employee being employed with the Customer. The Customer bears the burden of proof for non-causality. The Customer is responsible for providing information to enable us to establish the yearly income.
- The place of performance is the site of our company’s head office.
- The legal venue for all present and future claims arising from the business relationship with businesses is exclusively our place of business. The same legal venue applies if the Customer does not have a general legal venue domestically, relocates its domicile or usual place of residence abroad after conclusion of the contract or its domicile or usual place of residence is not known at the time the action is brought. However, we are entitled to bring an action against the Customer at his place of business or any other permitted legal venue as well.
- German law applies to all legal relationships exclusively. The UN-Convention on Contracts for the International Sale of Goods of 1980 and other conflict of law roles do not apply.
If a point in the contractual relationship with the supplier is or later becomes invalid in whole or in part, the validity of the other provisions shall not be affected, provided that, in considering the subsequent regolation, performance of the contract does not cause unreasonable hardship for one party. The parties are aware of the legal precedent of the Federal High Court of Justice whereby a severability clause solely reverses the burden of proof. However, it is the express will of the parties to maintain the validity of the other contractual provisions under all circumstances and therefore contract out Section 139 of the German Civil Code. The same applies to a gap in the contractual relationship. A suitable provision shall replace the invalid or impracticable provision that comes as close as possible to that which said parties wanted or woold have wanted had they considered the point at the time of the conclusion of this agreement or at the time of the later inclusionof a provision. These General Terms and Conditions have been composed in German and English. In case of discrepancies, the German version shall prevail.