§ 1 Scope
(1) The following terms and conditions of sale shall apply exclusively to enterprises, legal persons under public law or special funds constituted under public law as defined by Sect. 310 para.1 German Civil Code. Any terms and conditions of the buyer that oppose or deviate from our terms and conditions will only be recognized if the applicability of the same is expressly accepted by us in writing. Even if not expressly revoked by us it cannot be deemed an automatic recognition of such terms and conditions. With every order placed or contract concluded our General Terms and Conditions shall be recognized unreservedly. Any contradicting terms and conditions of purchase of buyer shall be inoperative.
(2) These General Terms and Conditions of Sale shall also apply to future transactions with the buyer provided it relates to legal transactions of similar kind.
§ 2 Offer, Order and Formation of Contract
(1) As far as a purchase order is to be considered an offer as defined by Sect. 145 German Civil Code, we can accept the same within a period of two weeks. Said purchase order shall describe in detail the requested article either by giving the name or a drawing and indicate the quantity required.
(2) Our offers are always non-binding. Delivery contracts and other agreements shall only be considered effective if confirmed in writing or fulfilled. Availability and price adjustment shall remain reserved unless the offer has been expressly designated as binding in written form.
(3) Should an order be cancelled, an expense allowance of 15% of the contract value shall become due. We reserve the right to charge the actual expenses incurred, however. At shall be at the buyer’s liberty to prove that no or lower costs have arisen in the case concerned than the lump sum.
§ 3 Documents
We retain ownership and copyright in all documents handed over to the buyer in connection with the order placed, e.g. calculations, drawings, samples. Such documents shall not be disclosed to any third party unless the buyer has been given our express written consent. If no contract is concluded within two weeks after submission of offer, said documents shall be returned forthwith.
§ 4 Delivery of Material by Buyer
(1) Orders where buyer’s material is used are basically filled at buyer’s risk. Any claim for damages due to damage to the material treated by us with the customary care, shall be expressly excluded.
(2) The delivery of the material shall be at the buyer’s expense.
(3) The buyer shall ask prior to order placement whether the material delivered is basically suitable for use. We reserve the right to decline orders for which unsuitable material is to be used. In such case the return of the material shall be at the buyer’s expense.
(4) We reserve the right to check the material or sample before we accept an order. The acceptance of an order shall not be deemed a warranty of the suitability of the material.
(5) We also reserve the right to refuse any material that may damage the production equipment to be used.
(6) Every order will be filled to the best of our knowledge and according to highest quality standards. Nonetheless we do not warrant a certain workmanship, colour rendering, colour retention or certain durability. Any existing, partially invisible damage or contamination of the material might become visible in the print image. Such reservations shall thus not constitute a reason for complaint, and accordingly we will accept no liability for any print and material defect and shall be under no obligation to replace.
§ 5 Samples and Product made to Buyer’s Specification
For samples or products made according to buyer’s specification the price offered shall be considered a target price. Due additional work that may become necessary for the execution of the order and is not foreseeable, a surcharge of up to 15% of the contract value may be added to the proposed price. Prices for items made to specification and small quantities may be agreed upon order placement and shall. As regards the manufacture of samples and unique items the buyer shall cooperate insofar as all necessary information on the design is made available and drawings and sketches showing clear dimensions are handed over to the contractor in time. Indicated tolerances will be maintained approximately only to the extent permitted by the properties of the material.
§ 6 Quality of Goods
Pictures in brochures and catalogues, dimensions, weights and technical data shall be considered approximate only. Samples shall be non-committal unless certain properties have been expressly warranted by us. We accept no liability for the fitness of the items for the buyer’s purpose of use. Although our recommendations and proposalsare made to the best of our belief we do not assume liability for it.
§ 7 Prices and Payment
(1) Unless agreed otherwise in writing, our prices are calculated ex works packing extra, plus the applicable rate of value added tax. Packing cost will be charged separately.
(2) Unless a fixed price has been agreed, we reserve the right to make reasonable price adjustments due to changed labour, material and sales costs for deliveries made three months or later after contract conclusion.
(3) Payment of the purchase price shall be made exclusively to one of the following bank accounts:
Deutsche Bank AG
Bank code: 820 700 00
Account No. 3 151 826
IBAN: DE77 8207 0000 0315 1826 00
Bank code: 830 500 00
Account No. 68 942
IBAN: DE17 8305 0000 0000 0689 42
Any deduction of discount shall be subject to separate written agreement.
(4) Unless agreed otherwise the purchase price shall be paid within two weeks after delivery. Performance of payment obligation shall be considered the date of receipt of money by the contractor. First buyers shall pay in advance or the goods are delivered against cash. If after contract conclusion facts become known to us that raise doubts concerning the buyer’s creditworthiness, we shall be entitled to either demand advance payment or the provision of securities, and should the buyer refuse to pay or fail to provide such securities within 10 days we may withdraw from contract and claim compensation.
(5) Default interest of eight (8) percentage points above the applicable base rate will be charged. We reserve the right to claim higher damage caused by default. Payment delay shall commence on the first day after due date of payment. No prior reminder shall be needed. An amount of 5.00 Euro will be charged for every reminder.
§ 8 Offsetting and retention rights
The buyer may only exercise a right to set off if its counterclaims are final and undisputed. The buyer may exercise a right of retention insofar only as its counterclaim arises from the same contractual relationship.
§ 9 Delivery periods
(1) Delivery times are non-binding. Partial deliveries shall be permitted unless special delivery times have been agreed.
(2) The start of the delivery indicated by us assumes the timely and proper performance of the buyer’s obligations. The objection of an unfulfilled contract shall remain reserved.
(3) If the buyer is in default of acceptance or fails wilfully to meet other duties to cooperate, we shall be entitled to demand replacement of damage caused including additional expenses if any. Further claims shall remain reserved. If the above requirements have been met, the risk of incidental loss or incidental deterioration of the object of purchase shall be transferred to buyer at the time when the buyer defaults in acceptance or payment.
(4) We shall assume liability for delays not caused by any wilful act or negligence by our side for every expired week of delay at a lump-sum compensation for default amounting to 3% of the delivery value not exceeding 15% of the delivery value, however.
(5) Other legal claims and rights of buyer due delayed delivery shall remain unaffected. § 8 also applies for the set-off of this claim against the claims of axxo Design GmbH.
(6) Deliveries for which the customer requests shorter delivery times than usual in the contractor’s production process or set forth in the offer, an express delivery charge of 10% of the contract value shall be charged.
§ 10 Transfer of Risk and Dispatch
(1) If the buyer requests the goods to be dispatched, the risk of incidental loss or incidental deterioration of the goods shall be transferred to the buyer when leaving the factory/warehouse. The latter shall apply irrespective of whether the goods are dispatched from the place of performance or which party pays the freight charges.
(2) If the goods are collected by buyer’s vehicles or contract forwarders the risk shall be passed upon issue of the goods.
(3) The goods shall remain uninsured. If an insurance is taken out on buyer’s request, the latter shall bear the cost of it.
§ 11 Reservation of title
(1) We reserve the title in the delivered goods until payment in full of all accounts receivables from the delivery contract. The same shall apply to all future deliveries even if no express reference is made to it. We shall be entitled to take back the object of purchase if the buyer is in breach of contract.
(2) As long as the object of purchase is not owned by the buyer, he shall take due care of it. In particular he shall insure the goods at his expense against theft, fire and damage by water at replacement value (Note: admissible for sale of high-value goods only). If maintenance and inspections are required, it shall be done by the buyer in due time and at his own expense. As long as the goods have not passed into the ownership of buyer, the latter shall notify us immediately in writing if the object delivered has been attached or is subject to any other intervention by third parties. Should the third party be unable to refund to us the court fees and extra-judicial costs of an action pursuant to Sect. 771 ZPO [Code of Civil Procedure], the buyer shall be liable for the losses incurred.
(3) The buyer shall be entitled to resell the goods under reservation in the ordinary course of business. The claims of the purchaser from the resale of the goods under reservation shall be assigned to us by the buyer now as security at the amount of the final invoice agreed with us (including VAT). Such assignment shall be independent of whether the object of purchase has been resold without or after processing. The buyer shall remain authorized to collect the receivables even after the assignment. Our right to collect the receivables shall remain unaffected. However, we will not collect any receivable as long as the buyer meets his payment obligations from the revenues collected, has not defaulted and no application for instituting insolvency proceedings or suspension of payment has been filed.
(4) Any processing or transformation of the object of purchase by the buyer is always done in our name and on our behalf. In such case the buyer’s expectant right in the object of purchase concerning the transformed object shall continue. Should other items not owned by us be incorporated in the object of purchase, we shall become co-owners of the resulting product in proportion to the value of the original goods and the goods used in conjunction at the time of incorporation. The same shall apply to any mixing. It such mixing takes place so that the object of the buyer is to be deemed the main object, it shall be considered agreed that the buyer assigns to us proportional co-ownership and safekeeps the sole ownership or co-ownership for us. To secure our claim against the buyer, the letter shall also assign to us amounts receivable that accrue to him from the connection of the goods subject to title with a with a real estate against a third party. We accept such assignment now.
(5) We undertake to release the securities due to us on buyer’s request to the extent the value of the accounts receivable to be secured is exceeded by more than 20%.
§ 12 Warranty and Notice of Defect and Recourse/Manufacturer’s Right of Recourse
(1) The buyer’s rights of warranty require that the buyer has met all obligations as to investigation and notification of defect as provided for by Sect. 377 Commercial Code.
(2) Defect claims shall become statute-barred after 12 months after the goods supplied by us have been handed over to the buyer. Warranty shall be excluded when used goods are supplied The above mentioned provisions shall not apply if and when longer time periods are prescribed by law, i.e. Sect. 438 para.1 No.2 German Civil Code (buildings and items for buildings), Sect. 479 para.1 German Civil Code (right of recourse) and Sect. 634 a para.1 German Civil Code (building defects). Any return of the goods shall be subject to our prior approval.
(3) Should the delivered goods be defective despite all care taken and such defect existed already at the time of risk transfer, we undertake to either repair or provide replacement subject to due and proper notice. We shall always be granted a reasonable grace period for subsequent performance. The right of recourse shall not be affected by the above provision.
(4) If subsequent performance fails, the buyer may withdraw from contract or reduce the payment irrespective of any claim for damages.
(5) No claims for defect can be asserted for minor deviations from the agreed quality, insignificant impairment of usability, natural wear and tear and damage caused after risk transfer by faulty or negligent treatment, excessive stress, unsuitable equipment, poor construction work, unsuitable subsoil or by external influences that were not specified in the contract. If repairs or modifications are made by the buyer or any third improperly, no claims for defect can be asserted for the same or any consequences thereof.
(6) Claims by buyer concerning the expenses required for the purpose of subsequent performance, in particular transport, travelling, labour and material costs, shall be excluded if and when such expenses increase due to the fact that the goods supplied by us have been taken to a location other than the buyer’s premises, except where such transfer is in line with the contractual use.
(7) The buyer shall have a right of recourse against us insofar only as he has not made an arrangement with his customer going beyond the mandatory claims for defects. As regards the scope of the buyer’s recourse claim against the supplier paragraph 6 shall apply.
§ 13 Miscellaneous
(1) This contract and the legal relationship of the parties shall be subject to German law excluding the Convention on Contracts for the International Sale of Goods (CISG).
(2) Place oif performance and sole place of jurisdiction for all disputes shall be our place of business unless the order confirmation provides otherwise.
(3) All agreements between the parties relating to the execution of this contract are laidt down in writing in this contract.
(4) Should individual provisions of this contract including the General Terms and Conditions be or become invalid or show a gap, the other provisions shall not be affected by it. The parties undertake to replace such invalid provision by a legal provision that comes closest to the commercial purpose of the invalid provision and fill the gap respectively.