General Terms and Conditions of Techno-Composites Domine GmbH – Date 12/11/2019
Section 1 – General information
- The supplier’s terms of delivery and payment, which the buyer accepts when placing the order, apply exclusively; this is true also for future transactions, even if they are not expressly referenced, but the buyer received them for an order confirmed by the supplier. If the order is placed in deviation from the supplier’s terms of delivery and payment, only the supplier’s terms of delivery and payment apply in this case too, even if the supplier does not contradict them [sic]. Therefore, deviations apply only if they have been expressly acknowledged by the supplier in writing.
- The supplier has the right to assign claims from business relationships.
- If the buyer is in arrears on any payment obligations to the supplier, all existing receivables shall be due immediately.
- All payments are to be made with discharging effect exclusively to VR FACTOREM GmbH, Hauptstraße 131-137, 65760 Eschborn, a company to which the supplier assigned its present and future claims from business relationships. The supplier’s property subject to reservation of ownership has also been transferred to VR FACTOREM GmbH.
- These terms of delivery and payment apply only to entrepreneurs as defined in Section 310 (1) BGB [German Civil Code].
To fulfil the supplier's factoring agreement (assignment of supplier’s claims and transfer of debtor management), the supplier will forward the following data to the financial services company VR FACTOREM:
- Name and address of our debtors
- information about our claims against our debtors (especially gross amounts and due date)
- Possibly, names of contract persons and contact information of our debtors (telephone number, e-mail address) in their offices for coordination of debtor bookkeeping.
- VR FACTOREM will forward the debtors’ company information to credit bureaus and trade credit insurers, as well as contract processing partners (IT data processing, printing service providers, etc.).
Section 2 Offer – Scope of delivery
(1) The contract is concluded when the supplier confirmed acceptance of the deliverables in writing or made the delivery.
(2) The supplier reserves ownership rights and copyrights to figures, drawings, samples, plans, calculations, cost estimates and other documents. This also applies to written documents marked “confidential”. Before passing them on to third parties, the buyer requires express written permission of the supplier.
Section 3 Price – Payment
(1) In the absence of a special agreement, the prices apply ex stock of the supplier or ex works in case of shipment from the manufacturer’s works excluding packaging and loading. The statutory value added tax is not included in the price. It is calculated additionally at the expense of the buyer in the respective statutory amount. If the delivery is made more than 4 months after contract conclusion, the supplier has the right to request negotiation of a new price in case of price increases of its suppliers or unexpected increases in labour and transportation costs. The supplier is bound by the agreed price only for the agreed delivery time, but at least for 4 months. The supplier can demand from the buyer reimbursement of additional expenses incurred by the supplier due to delay in acceptance by the buyer.
(2) In the absence of a special agreement, the purchasing price is payable immediately in full. The buyer’s rights of retention pursuant to Section 320 BGB are not affected by this. Promised discounts apply only if the buyer is not in arrears on payments for previous deliveries.
(3) Offset by the buyer against counterclaims is excluded, unless the counterclaims are undisputed or established by a final judgment. Assertion of a right of retention by the buyer is excluded, unless it concerns the same contractual relationship or the counterclaims are undisputed or established by a final judgment.
Section 4 Delivery time – Delayed delivery
(1) The delivery time is based on the agreements of the contracting parties. Adherence to it by the supplier requires that all commercial and technical matters between the contracting parties are clarified and the buyer fulfils all its obligations, such as provision of required official certificates or approvals or payment of an advance payment. If this is not the case, the delivery time is extended accordingly. This does not apply if the supplier is responsible for the delay.
(2) Adherence to the delivery time is subject to correct and timely supply of goods to the supplier. The supplier will notify of any potential delays as soon as possible.
(3) The delivery time is met if the deliverable has left the supplier’s facility or if the deliverable’s readiness for shipment has been notified before the delivery time expired. If acceptance is to take place, the acceptance date is relevant, except for justified refusal of acceptance, or, alternatively, notification of readiness to accept.
(4) If the shipment or acceptance of the deliverable is delayed for reasons that the buyer is responsible for, the costs incurred due to the delay will be billed to the buyer starting one month after the notification of shipment or acceptance readiness.
(5) If non-adherence to the delivery time is due to a force majeure, labour disputes or other events outside the supplier’s sphere of influence, the delivery time will be extended accordingly. The supplier will inform the buyer of the start and end of such circumstances as soon as possible.
(6) The buyer can withdraw from the contract without setting a grace period, if the supplier is definitively unable to provide the complete service before the transfer of risk. Furthermore, the buyer can withdraw from the contract if a part of the delivery in an order is impossible and the buyer has a vested interest in refusing partial delivery. If this is not the case, the buyer has to pay the contractual price corresponding to the partial delivery. The same applies to incapability of the supplier. Section 8 (2) applies for the rest. If the impossibility or incapability occurs during the delay of acceptance or the buyer is solely or largely responsible for these circumstances, counterperformance remains the buyer’s obligation.
(7) If the supplier is in arrears and this results in a loss for the buyer, it has the right to demand a lump sum compensation for the delay. It amounts to 0.5% for each full week of delay, but in total a maximum of 5% of the value of the part of the total delivery that cannot be used in a timely manner or in accordance with the contract due to the delay.
(8) If the buyer sets a reasonable grace period for performance to the seller, in consideration of statutory exceptions, and the deadline is not met, the buyer has the right to withdraw within the framework of legal regulations.
(9) Further claims due to late delivery are determined exclusively based on Section 8 (2) of these conditions.
Section 5 Transfer of risk – Acceptance
(1) The risk is transferred to the buyer when the deliverable is handed over to the transport company, carrier or shipper, or it is loaded to a vehicle of the supplier, but at the latest when the deliverable has left the works, even in cases of partial deliveries or if the supplier assumed other services, e.g. shipment costs or delivery and installation. If acceptance is to take place, it is decisive for the transfer of risk. It must be performed by the acceptance date, or, alternatively, after notification by the supplier of the readiness for acceptance. The buyer may not refuse acceptance in the presence of a non-significant defect.
(2) If shipment is delayed or does not occur due to circumstances that are the buyer’s responsibility, the risk is transferred to the buyer from the day of readiness for shipment. However, the supplier has the obligation to obtain insurance cover requested by the buyer at the buyer’s request and expense.
(3) Partial deliveries are accepted if reasonable for the buyer
Section 6 Delivery of goods / Retention of title
(1) The delivered goods remain the supplier’s property until complete payment of all outstanding claims of the supplier against the buyer. The buyer has the right to resell in the ordinary course of business, as long as the buyer’s not in arrears on payments. The buyer may not pledge or assign the reserved goods by way of security though. The buyer assigns to the seller already now, by way of security, the continued payments from the buyer’s customers and any claims of the buyer with regard to the reserved goods that arise for another legal reason (also against third parties).
(2) Processing or transformation of the reserved goods by the buyer is always done for the supplier. If the reserved goods are processed with other items that do not belong to the supplier, the supplier acquires co-ownership of the new item in proportion of the value of the reserved good (invoiced amounts incl. value-added tax). For the other connected or mixed items at the time of connection or mixing [sic]. If the buyer’s item is to be considered the main item, the buyer transfers proportionate co-ownership of this item to the supplier. The supplier accepts the transfer. The resulting sole ownership or co-ownership of the item will be kept by the buyer for the supplier.
(3) The buyer has the obligation to handle the deliverable with care; in particular, the buyer has the obligation to insure it at its own expense against fire, water, and theft based on original value. If maintenance and inspection work is necessary, the buyer must perform this work in a timely manner at its own expense.
(4) In the even of pledges or other third-party interventions, the buyer must notify the supplier immediately so that the supplier can file a lawsuit pursuant to Section 771 ZPO [Code of Civil Procedure]. If the third party is unable to reimburse the supplier’s in-court and out-of-court costs of a lawsuit pursuant to Section 771 ZPO, the buyer is liable for the loss incurred by the supplier.
(5) Withdraw from the contract is not required to assert retention of title rights, unless the debtor is the consumer.
Section 7 Defect claims
The supplier provides the following guarantees for the material defects and defects of title of the delivery, excluding further claims, subject to the provision in Section 8:
Material defects: (1) All parts that appear to be defective in consequence of a circumstance that occurred before the transfer of risk are to be rectified or replaced by a non-defective part at the supplier's discretion. The supplier must be notified immediately in writing of the discovery of such defects. Replaced parts will be the property of the supplier.
(2) The buyer must provide the necessary time and opportunity by agreement with the supplier to carry out all improvements and replacements that seem necessary to the supplier; otherwise, the supplier is released from liability for the resulting consequences. Only in urgent cases of danger to operational safety or prevention of excessive damage, where the supplier must be notified immediately, the buyer has the right to rectify the defect itself or to have it rectified by third parties and to demand compensation for the necessary expenses from the supplier.
(3) The supplier bears the direct costs resulting from rectification or replacement if the complaint turns out to be justified, i.e. the costs of the replacement part including shipment. In addition, the supplier bears the costs of deinstallation and installation and the costs of any required provision of technical and support staff, including travel costs, provided they are not increased because the deliverable was brought to a site other than the place of performance.
(4) The buyer has a right to withdraw from the contract within the scope of legal regulations if the supplier, in consideration of legal exceptions, allows a reasonable grace period set to the supplier for rectification or replacement expire fruitlessly. If the defect is not significant, the buyer only has the right to a reduced contractual price. Otherwise, the right to a reduced contractual price remains excluded. Further claims are determined based on Section 8 (2) of these conditions.
(5) No guarantee is assumed in particular in the following cases: Unsuitable or improper use, faulty assembly or start-up by the buyer or third parties, natural wear and tear, incorrect or negligent handling, improper maintenance, unsuitable operating materials, chemical, electrochemical or electrical influences, unless they are within the supplier’s sphere of responsibility.
(6) If rectifications of the buyer or a third party are improper, the supplier is not liable for the resulting consequences. The same applies to changes to the deliverable made without prior consent of the supplier.*
Defects of title:
(7) If use of the deliverable results in infringement of industrial property rights or copyrights within Germany, the supplier will essentially acquire the right to further use for the buyer at the supplier’s expense or modify the deliverable in a reasonable way for the buyer so that the industrial property right infringement no longer exists. If this is not possible on commercially reasonable terms or within a reasonable period of time, the buyer has the right to withdraw from the contract. Under the aforementioned conditions, the supplier also has a right to withdraw from the contract. Furthermore, the supplier will release the buyer from claims of the holder of the industrial property right concerned, which are undisputed or established by a final judgment.
(8) The supplier's obligations mentioned in paragraph (7) above are definitive in the case of a industrial property right or copyright infringement, subject to the provision of Section 8 (2) of these conditions. They exist only if
* the buyer informed the supplier immediately of the asserted industrial property right or copyright infringements, * the buyer supported the supplier to a reasonable extent in defending itself from the asserted claims and/or enabled the supplier to implement the modification measures in accordance with paragraph (7) above, * all measures of defence including out-of-court settlements remain reserved for the supplier, * the defect of title does not concern an instruction from the buyer, and * the infringement of rights was not caused by the buyer’s own modification of the deliverable or its use by the buyer in a non-contractual manner.
Section 8 General limitation of liability
(1) If the deliverable cannot be used by the buyer in a contractual manner due to the supplier’s fault as a result of omitted or faulty execution of suggestions and advice provided before the contract conclusion or as a result of the violation of other secondary contractual obligations, in particular, instructions on operation and maintenance of the deliverable, the provisions of Sections 7 and 8 (2) of these conditions apply to the exclusion of other claims of the buyer.
(2) For damages not resulting to the deliverable itself, the supplier is liable, for whichever reasons, only in case of:
* a) intent, * b) gross negligence of bodies or managing employees, * c) culpable harm to life, body, health, * d) defects that the supplier conceals maliciously or the absence of which the supplier guaranteed, * e) defects of the deliverable, if there is liability for personal injury or damage to property for items in private use in accordance with the Product Liability Act.
In the event of culpable violation of significant contractual obligations, the supplier is liable in case of gross negligence of non-managing employees and in case of slight negligence, but always limited to reasonably foreseeable damages typical of the contract. Other claims are excluded.
Section 9 Limitation period
(1) The limitation period for defect claims is 12 months from the transfer of risk. The limitation period remains unaffected in case of recourse by the supplier pursuant to Sections 478, 479 BGB; it amounts to 5 years from delivery of the defective item.
(2) Statutory periods apply to claims for damages in accordance with Section 8 (2) a) to e) of these conditions.
Section 10 Software use
If software is included in the scope of delivery, the buyer will be granted a non-exclusive right to use the delivered software and associated documentation. It is granted for the use on the deliverable intended for this purpose. Use of the software on more than one system is prohibited.
The buyer may only duplicate, edit, translate the software or convert the object code to the source code in the scope permitted by law (Sections 69 a ff. UrgG [Copyright Law]). The buyer undertakes the obligation not to remove manufacturer’s information, especially copyright notices, and not to modify them without the express prior consent of the supplier.
All other rights to the software and documentation, including copies, remain with the supplier or software supplier. Sublicensing is not permitted.
Section 11 Applicable law – Place of jurisdiction – Place of performance
- The contractual relationship is subject exclusively to German law, in particular to the Civil Code. The provisions of the UN Convention on Contracts for the International Sale of Goods do not apply.
- At the supplier’s discretion, the place of jurisdiction is the location of the company headquarters or Frankfurt am Main.
- The place of performance is 49716 Meppen, unless stated otherwise in the contract.