GTC of Cosmacon GmbH

General Terms and Conditions of Sale and Contract for Work Cosmacon GmbH, Kiebitzweg 2, 22869 Schenefeld (“Seller”)

 

• 1 Scope, Form

(1) These General Terms and Conditions of Sale and Contract for Work and Services (“GCS”) shall apply to all of our business relationships with our customers (“Customers”), the subject matter of which is the sale of goods and/or the production/provision of works/work performances. The GCS only apply if the Customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.

(2) The GCS apply in particular to contracts for the sale and/or delivery of movable goods (“goods”), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 650 BGB), as well as for the manufacture of works and the associated deliveries and services (§§ 633 et seq. BGB). Unless otherwise expressly agreed, the GCS in the version valid at the time of the customer’s order or in any case in the version last notified to him in text form (e-mail is sufficient) shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.

(3) Our GCS shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and insofar as we have expressly consented to their validity. This requirement of consent shall apply in any case, for example even if the customer refers to its GCS within the scope of the order and we do not expressly object to this.

(4) Individual agreements (e.g. framework supply agreements, quality assurance agreements, specifications, etc.) and information in our order confirmation take precedence over the GCS. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.

(5) Legally relevant declarations and notifications by the customer with regard to the contract (e.g. setting of a deadline, reminder, withdrawal) must be made in writing, whereby written form within the meaning of these GCS includes both the statutory written form and the text form (e.g. letter, e-mail or fax are sufficient to comply with the written form). Legal formal requirements and further proof, in particular in the event of doubts about the legitimacy of the declarant, remain unaffected.

(6) References to the applicability of statutory provisions are only for clarification purposes. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GCS.

 

• 2 Conclusion of contract

(1) Our offers are subject to change without notice and are non-binding; the same applies to information provided to the customer regarding deliveries, delivery options or other references to a possible later performance. This also applies if we have provided the customer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards, specifications, etc.), other product descriptions or documents – also in electronic form – to which we reserve property rights and industrial property rights as well as intellectual property rights and copyrights (see also “Information on the right of ownership”). § 12 Para. 5 of these GCS).

(2) The order of the goods/work by the customer shall be deemed a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this offer of contract within three (3) days of its receipt by us.

(3) Acceptance can be declared either in writing (for example by our order confirmation) or by delivery of the goods to the customer.

(4) In the case of a contract for work and services, changes in construction, design and materials which are customary in the trade and which serve or do not run counter to the contractually agreed or customary use of the goods shall remain reserved to the customer for all work performances, even after the conclusion of the contract. The same applies to reasonable, insignificant technical changes which are advisable or necessary due to recent scientific findings and which a reasonable customer would approve.

(5) In addition, each order will be executed with a tolerance of ten (10) percent under- or over-delivery, which will accordingly also lead to a reduction or increase in the price. The customer tolerates this fluctuation margin.

 

• 3 Delivery period and delay in delivery

(1) The manufacturing and/or delivery period shall be agreed individually or stated by us upon acceptance of the order. If this is not the case, the delivery period shall be at least eight (8) weeks from the conclusion of the contract.

(2) In the case of a contract for work and services, performance periods shall only commence after clarification of all technical questions and details regarding the execution of the order as well as receipt of all documents possibly required for the execution of the order as well as the agreed advance payments, if any (§ 5 para. 4 of these GCS). Furthermore, the commencement of the performance period shall be conditional upon the fulfilment of the Client’s obligations to cooperate in accordance with § 6 of these GCS. We reserve the right to plead non-performance of the contract. The performance period shall be deemed to have been complied with if the delivery item has left our works by the time of its expiry or if the works have been made available for acceptance or, as a substitute, have been completed or if the customer has been notified of the readiness for performance. Our delivery in the case of a contract for work and services is also subject to correct and timely delivery to us. This shall only apply in the event that we are not responsible for the non-delivery, in particular if a congruent hedging transaction is concluded with our supplier. The customer will be informed immediately of the nonavailability of the service. In this case, we shall reimburse the consideration without delay. If, on the other hand, dispatch and/or acceptance of the delivery item or acceptance or, alternatively, completion of the work is delayed for reasons for which the customer is responsible, the customer shall be invoiced for the costs incurred as a result of the delay.

(3) Unforeseeable events, in particular cases of force majeure (§ 10 of these GCS), which are beyond our control and for which we are not responsible, shall extend the performance time appropriately and shall not lead to claims for damages by the customer. Should the resulting extension of our performance time amount to more than six (6) months, the customer shall be entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet performed. If the performance time is extended or if we are released from our obligation, the customer cannot derive any claims for damages from this. We may only invoke the aforementioned circumstances if the customer is notified by us within a reasonable period of time after the occurrence of the unforeseeable event.

(4) We are entitled to make partial deliveries and render partial services at any time if (i) the partial delivery is usable for the customer within the scope of the contractual purpose, (ii) the delivery of the remaining ordered goods is ensured and (iii) the customer does not incur significant additional expenses or costs as a result (unless we expressly agree to bear these costs).

(5) If we are unable to meet binding manufacturing and/or delivery deadlines in the case of a purchase contract for reasons for which we are not responsible (“non-availability of performance”), we shall inform the customer of this without delay and at the same time notify the customer of the expected new manufacturing and/or delivery deadline. If the service is also not available within the new production and/or delivery period, we shall be entitled to withdraw from or terminate the contract in whole or in part; we shall immediately refund any consideration already received from the customer. Non-availability of performance shall be deemed to exist, for example, in the event of late delivery by our supplier, if we have concluded a congruent hedging transaction, in the event of other disruptions in the supply chain, e.g. due to force majeure (§ 10 of these GCS) or if we are not obliged to procure in the individual case or if suppliers cannot provide us with raw materials required for the manufacture/delivery or cannot provide them in time. The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In each case, however, a reminder from the customer is required. If we are in default of delivery, the customer may demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to zero point one percent (0.1%) of the net price (“delivery value”) for each full calendar week of the delay, but in total not more than one percent (1%) of the delivery value of the goods produced/delivered late. We reserve the right to prove that the customer has not suffered any damage or only less damage than the above lump sum.

(6) The rights of the customer pursuant to § 9 of these GCS and our statutory rights, in particular in the event of an exclusion of the obligation to perform (for example due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

 

• 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

(1) Delivery shall be made from our warehouse at Kiebitzweg 2, 22869 Schenefeld (“Warehouse”) or from the warehouse of the subcontractor commissioned by us, which shall then also be the place of performance for the manufacture/delivery and any subsequent performance. At the customer’s request and expense, the goods will be shipped to another destination (“shipment purchase”). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular – without being limited to this – transport company, shipping route, packaging) ourselves.

(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the customer is in default of acceptance.

(3) If the customer is in default of acceptance, fails to cooperate or delays our delivery for other reasons for which the customer is responsible, we are entitled to demand compensation for the resulting damage including additional expenses (for example storage, handling and additional personnel costs). For this purpose, we shall charge a lump-sum compensation in the amount of zero-point-four percent (0.4%) of the delivery value per completed calendar week up to a maximum of four percent of the delivery value for the case of final non-acceptance, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification by us to the customer that the goods are ready for collection/dispatch. The proof of a higher damage and our legal claims (in particular compensation for additional expenses, reasonable compensation, cancellation) remain unaffected; however, the lump sum is to be counted towards further monetary claims. The customer shall be entitled to prove that we have incurred no damage at all or only significantly less damage than the aforementioned lump sum.

(4) If the customer commissions forwarding agents, carriers or other persons designated to carry out the shipment, including in the case of collection from the warehouse, he shall be obliged to provide an original proof of shipment without delay in the case of export to (European) foreign countries. The proof of shipment shall be submitted within seven (7) calendar days after the taking over of the goods at the latest. If the export to a (European) foreign country is carried out by the customer’s own personnel/filling agents without a proof of shipment being issued, the customer must submit a confirmation of the export of the goods signed by the customer’s legal representative together with a copy of the legal representative’s identity card with an identical signature. We issue the confirmation of arrival on a quarterly basis; the customer must check this confirmation at the latest and confirm the arrival of the goods with his signature. If, in the event of failure by the customer to provide legal proof of shipment, damage occurs to us and/or disputes arise with customs and/or tax authorities and corresponding additional expenditure for customs procedures and their legal support, this damage shall be fully reimbursed to us by the customer.

 

• 5 Prices and terms of payment

(1) Unless expressly agreed otherwise in individual cases, our prices current at the time of conclusion of the contract shall apply, ex warehouse within the meaning of § 4 para. 1 of these GCS, plus VAT owed by law.

(2) In the case of a contract for work and services, we shall be entitled to change our prices for deliveries and services accordingly if, between the conclusion of the contract and the execution of the order, our cost price increases or decreases, in particular due to tariff agreements or changes in the price of materials. We shall provide evidence of these at the customer’s request. The right to change prices does not apply to contracts according to which the services are to be rendered to the customer within four (4) months after the conclusion of the contract. Irrespective of this, we shall be entitled to change the price within the specified scope if the customer is responsible for the delay in delivery or if the delay falls solely within the customer’s sphere of risk. In addition, we reserve the right to increase or reduce the final price for work and services by up to ten percent (10%) compared to the price stated in the cost estimate. If a deviation exceeding this amount becomes apparent during the execution of the order, this shall only be deemed to be the final price if we have informed the customer thereof without undue delay and the customer has not exercised his right to terminate the contract (right of rescission or termination) within a reasonable period of time.

(3) In the case of a sale by delivery to a place other than the place of performance (§ 4 para. 1 of these GCS), the customer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the customer, which we shall only take out at the express request and expense of the customer. We shall always invoice separately the transport costs actually incurred in the individual case plus the legally owed sales tax. Any customs duties, fees, taxes and other public charges as well as ancillary import duties shall be borne by the customer.

(4) The remuneration is due and payable within 14 days from the date of the invoice and delivery or acceptance of the goods, unless our invoice expressly states a different term of payment. However, we are entitled at any time, also within the framework of an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation. We shall also be entitled to issue interim invoices at any time, the amount of which shall be reasonable with regard to the total remuneration owed by the customer and which shall reflect our performance status of the goods/work at the time of issuing the interim invoice.

(5) Upon expiry of the aforementioned payment deadline, the customer shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) remains unaffected.

(6) The customer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the customer’s counter rights shall remain unaffected, in particular in accordance with § 8 para. 6 sentence 2 of these GCS.

(7) If it becomes apparent after the conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim to remuneration is jeopardised by the customer’s inability to perform, we shall be entitled to refuse performance and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB) or to terminate the contract in accordance with the statutory provisions. In the case of contracts for the manufacture of unjustifiable items/individual productions, we may declare withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.

 

• 6 Assumption of risk and cooperation obligations of the customer in the case of a contract for work and services

(1) The risk of accidental loss and accidental deterioration shall pass to the customer – even in the case of carriage paid delivery – at the latest when the item is delivered to the person designated to carry out the shipment or when it leaves the warehouse for the purpose of shipment. This also applies to any partial performance (§ 3 para. 3 of these GCS). In the case of work The risk shall pass to the customer upon acceptance or, as the case may be, completion of the goods, without prejudice to the above provision. The risk shall also pass to the customer if he is in default of acceptance. If the dispatch/acceptance of the work performance is delayed at the request of the customer or due to the customer’s fault, the risk shall pass to the customer upon notification of readiness for dispatch/acceptance.

(2) In the case of work performances which we render outside our works at the request of the customer, we shall not bear any risk of accidental loss and accidental deterioration.

(3) If it becomes apparent before or during the repair of/the work to be carried out on parts/works delivered/prepared by the customer that these are not worthy of repair or that the work cannot be carried out or cannot be carried out as commissioned, or if it becomes apparent in the case of any work which we carry out at the customer’s request outside our works that individual work can only be carried out in our works, we shall notify the customer immediately. We shall then be entitled to interrupt or definitively terminate the work until agreement is reached on the measures to be taken if agreement cannot be reached within a reasonable period of time. In this case, we shall charge for our actual performance.

(4) Insurance against any storage, breakage, transport and fire damage and the like shall only be taken out following an express written order from the customer and at the customer’s expense.

(5) The customer is obliged to work towards the clarification of all technical questions and details required for the execution of the order and to provide us with all documents required for this purpose. In particular, he is obliged to provide a so-called safety data sheet for all parts/raw materials/products etc. to be removed by us or supplied by him, in which, among other things, information is to be provided as to the context in which the parts/raw materials/products etc. supplied by him were last used. If the customer does not comply with these obligations, we shall not be obliged to accept the parts/raw materials/products etc. supplied by the customer. In the case of work and services which we perform at the customer’s request outside our works, the customer shall be obliged to support us at his own expense; he shall bear duties of protection and care for the persons deployed by us in the customer’s sphere of power and influence and for our property located there. In particular, he has the duty to ensure appropriate working conditions for our employees.

 

• 7 Retention of title

(1) Until full payment of all our present and future claims arising from the contract and an ongoing business relationship (secured claims), we retain title to the sold or manufactured goods/works.

(2) The goods/works subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The customer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures and other compulsory enforcement measures) have access to the goods/works belonging to us.

(3) In the event of conduct by the customer in breach of contract, in particular in the event of non-payment of the remuneration due, we shall be entitled to withdraw from or terminate the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the reservation of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the customer does not pay the due remuneration, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or such a deadline is dispensable according to the statutory provisions.

(4) Until revoked, the customer is authorised in accordance with § 7 para. 4 lit. c) of these GCS to resell and/or process the goods/works subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.

(a) The retention of title extends to the full value of the products created by processing, mixing or combining our goods/works, whereby we are deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods/works of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods/works. Otherwise, the same shall apply to the resulting product as to the goods/work delivered under retention of title.

(b) The customer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods/work or product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the customer stated in § 7 Para. 2 of these GCS shall also apply with regard to the assigned claims.

(c) The customer remains authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the reservation of title by exercising a right in accordance with § 7 para. 3 of these GCS. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to revoke the customer’s authority to further sell and process the goods/works subject to retention of title.

(d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer’s request.

 

• 8 Claims for defects of the customer

(1) The statutory provisions shall apply to the rights of the customer in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions), unless otherwise stipulated below. In all cases, the special statutory provisions on reimbursement of expenses in the event of final delivery of the newly manufactured goods to a consumer (supplier’s recourse pursuant to §§ 3 and 4 of the German Civil Code) shall remain unaffected. §§ 478, 445a, 445b or §§ 445c, 327 para. 5, 327u BGB), unless an equivalent compensation has been agreed, for example within the framework of a quality assurance agreement.

(2) The basis of our liability for defects is above all the agreement reached on the quality and intended use of the goods (including accessories and instructions). All product descriptions and manufacturer’s specifications which are the subject of the individual contract or which were publicly announced by us (in particular in catalogues or on our homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on quality in this sense. Insofar as the quality has not been agreed, it is to be assessed according to the statutory regulation whether a defect exists or not (§ 434 para. 3 BGB or § 633 para. 2 BGB). Public statements made by the manufacturer or on his behalf, in particular in advertising or on the label of the goods, take precedence over statements made by other third parties.

(3) In the case of goods/works with digital elements or other digital content, we only owe provision and, if applicable, updating of the digital content insofar as this expressly results from a quality agreement in accordance with § 8 para. 2 of these GCS. In this respect, we do not assume any liability for public statements made by the manufacturer and other third parties. #

(4) In principle, we shall not be liable for defects of which the customer is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB). Furthermore, the customer’s claims for defects in the case of a purchase/works delivery contract presuppose that he has fulfilled his statutory duties of inspection and notification (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent during delivery, inspection or at any later time, we shall be notified thereof. in writing without delay. In any case, obvious defects must be reported in writing within five (5) working days of delivery and defects that are not recognisable during the inspection must be reported within the same period of time after discovery. If the customer fails to carry out the proper inspection and/or give notice of defects, our liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions. In the case of goods intended for installation, mounting or assembly, this shall also apply if the defect only became apparent after the corresponding processing as a result of a breach of one of these obligations; in this case, the customer shall in particular have no claims for reimbursement of the corresponding costs (“removal and installation costs”). The customer shall bear the full burden of proof for all claim prerequisites, in particular for the existence of the defect, for the time of discovery of the defect and the timeliness of the notice of defect.

(5) If the delivered item/work is defective, we can initially choose whether we provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement). If the type of subsequent performance chosen by us is unreasonable for the customer in the individual case, he may reject it. Our right to refuse subsequent performance under the statutory conditions remains unaffected. The customer must give us the necessary time and opportunity to carry out all repairs and replacement deliveries that we deem necessary after consultation with us; due to the typical reordering and post-production times in our industry, we usually have six (6) months to carry out all repairs and replacement deliveries that we deem necessary.

(6) We are entitled to make the subsequent performance owed dependent on the customer paying the remuneration due. However, the customer is entitled to retain a part of the remuneration that is reasonable in relation to the defect.

(7) The customer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods/work for inspection purposes. In the event of a replacement delivery, the customer shall return the defective item to us at our request in accordance with the statutory provisions; however, the customer shall not have a claim for return. Subsequent performance does not include the dismantling, removal or deinstallation of the defective item or the installation of a defect-free item if we were not originally obliged to perform these services; the customer’s statutory claims for reimbursement of the corresponding dismantling and installation costs remain unaffected.

(8) We shall bear or reimburse the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions and these GCS if there is actually a defect. Otherwise, we may demand reimbursement from the customer of the costs incurred as a result of the unjustified request to remedy the defect if the customer knew or at least negligently did not know or could not have known that there was actually no defect.

(9) In the case of a purchase/works delivery contract, the customer has the right in urgent cases, for example in the event of a risk to operational safety or to prevent disproportionate damage, to remedy the defect himself and to demand reimbursement from us of the expenses objectively necessary for this. We are to be informed immediately of such a self-remedy, if possible before the self-remedy is carried out. The right of self-execution does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.

(10) If a reasonable period to be set by the customer for subsequent performance has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price according to the statutory provisions in the case of a purchase/work delivery contract. In the case of an insignificant defect, however, there is no right of withdrawal.

(11) The customer’s warranty rights are excluded in the event of improper handling of the goods/works and inadequate care and maintenance of the goods/works, insofar as this was the cause of the defect. The same applies in the event that the customer modifies or repairs the goods/works himself or has them modified or repaired by third parties, insofar as this was the cause of the defect.

(12) Claims of the customer for damages or reimbursement of futile expenses shall also only exist in the case of defects in accordance with § 9 and are otherwise excluded.

(13) The Seller warrants in accordance with this paragraph that our goods/works are free from industrial property rights or copyrights of third parties. Each contracting party shall notify the other contracting party in writing without delay if claims are asserted against it for the infringement of such rights. In the event that our goods/works infringe an industrial property right or copyright of a third party, we shall, at our own discretion and at our own expense, modify or replace the goods/works in such a way that no third party rights are infringed any more, but the goods/works continue to fulfil the contractually agreed functions, or procure the right of use for the customer by concluding a licence agreement with the third party. If we do not succeed in doing so within a reasonable period of time, the customer shall be entitled to withdraw from the contract or to reduce the remuneration appropriately. Any claims for damages on the part of the customer are also subject to the limitations of § 9 of these GCS.

(14) In the event of infringements of rights by goods/works of other manufacturers supplied by us, we shall, at our own discretion, assert the claims against the manufacturers and upstream suppliers for the account of the customer or assign them to the customer. In such cases, claims against us shall only exist in accordance with this paragraph if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or is futile, for example due to insolvency. Any claims for damages by the customer are also subject to the restrictions of § 9 of these GCS.

(15) There is no defect if natural substances (e.g. natural oils, natural extracts, natural perfumes according to ISO 9235, natural dyes etc.) are present in the goods/works delivered by us, even if these have not been specified in the customer specifications. These natural substances occur depending on the harvest and therefore vary greatly in colour, smell and skin feel; accordingly, they may also appear in the final product in a visible, smellable or tangible way.

 

• 9 Other liability

(1) Unless otherwise stated in these GCS including the following provisions, we shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions.

(2) We shall be liable for damages – irrespective of the legal grounds – within the scope of culpability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), in the following cases

1. a) for damages arising from injury to life, limb or health,
2. b) for damages arising from the breach of an essential contractual obligation (obligation, the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the respective other contractual party regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.

(3) The limitations of liability resulting from § 9 para. 2 of these GCS also apply to third parties as well as to breaches of duty by persons (also in their favour) whose fault we are responsible for according to statutory provisions. They do not apply if a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for mandatory statutory claims of the customer, for example under the Product Liability Act.

(4) Due to a breach of duty that does not consist of a defect, the customer may only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

 

• 10 Force majeure

We shall not be liable for events of force majeure which make the contractual performance considerably more difficult for us or temporarily hinder or render impossible the proper performance of the contract and for which we are not responsible. Force majeure shall be deemed to be all circumstances independent of the will and influence of the customer and the seller (“contracting parties”) and completely unforeseeable, such as natural disasters, government measures, decisions by authorities, blockades, war and other military conflicts, mobilisation, civil unrest, terrorist attacks, strikes, lock-outs and other labour unrest, seizures, embargoes or other circumstances which are unforeseeable, serious and for which the contracting parties are not responsible and which occur after conclusion of the contract. Insofar as one of the contracting parties is prevented by force majeure from fulfilling its contractual obligations, this shall not be deemed to be a breach of contract, and the deadlines stipulated in the contract or on the basis of the contract shall be extended appropriately in accordance with the duration of the hindrance. The same shall apply insofar as we are dependent on the advance performance of third parties and this is delayed. Each party to the contract shall do everything in its power that is necessary and reasonable to reduce the extent of the consequences caused by the force majeure. The Party affected by the Force Majeure shall immediately notify the other Party in writing of the beginning and the end of the hindrance. If it is established that the force majeure lasts longer than four (4) months, either contracting party shall be entitled to terminate the contract without notice for good cause.

 

• 11 Limitation

(1) In the case of a purchase/work delivery contract, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery, notwithstanding Section 438 (1) No. 3 BGB. The same applies to contracts for work and services for the delivery of movable goods to be manufactured or produced. The limitation period for other claims for defects arising from a contract for work and services for movable goods is also one year. Insofar as acceptance has been agreed, the limitation period shall begin with acceptance.

(2) If the goods are a building or an object which has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory regulation (§ 438 para. 1 no. 2 BGB). Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) shall also remain unaffected.

(3) The above limitation periods of the law on sales shall also apply in the case of a contract of sale/delivery for contractual and non-contractual claims for damages of the customer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages by the customer pursuant to § 9 para. 2 p. 1 and p. 2 (a) of these GTC and pursuant to the Product Liability Act shall become statute-barred exclusively in accordance with the statutory limitation periods.

 

• 12 Confidentiality

(1) The contracting parties undertake to maintain secrecy with regard to details of the other contracting party’s business which have become known to them in connection with the contract, even prior to its conclusion, and to actively take the necessary measures to maintain secrecy and to comply with the requirements for the secrecy of business and trade secrets pursuant to the GeschGehG.

(2) The contracting parties shall treat as confidential and not make available to third parties all operational, technical and commercial and/or insurance-related information disclosed to them by the respective other contracting party, also about its customers and cooperation partners in its field of activity within the scope of the implementation of this contract, or which comes to their knowledge in any other way, unless the respective other contracting party consents to the disclosure or mandatory provisions prevent this or the disclosure is necessary for the judicial or official enforcement or defence of claims.

(3) Confidential information may be disclosed if this is required by mandatory statutory and/or sovereign framework conditions or judicial or regulatory orders and the respective other contracting party has been informed of this within a reasonable period of time, or made accessible to legal/tax advisors and auditors bound to professional secrecy in connection with the interpretation or execution of this contract or a dispute arising therefrom.

(4) Information of the Contracting Parties which is either expressly marked as “confidential” or whose confidentiality results from the circumstances and which is not expressly released from confidentiality shall be subject to special confidentiality.

(5) It is understood that in particular – without being limited to this – specially prepared drawings or sketches, inventions, prototypes, concepts for the sustainable use of products, calculation plans, sales prices, supplier data, market analyses, technical know-how, etc. and training and presentation documents handed over or made available on the occasion of training courses are mutually confidential and are subject to special confidentiality. This also includes technical documents and data sheets which are not publicly accessible. Such confidential information consists in particular of technical and business information, information on dangers and risks, as well as any special conditions agreed within the scope of the cooperation in accordance with the ordered volumes of the products. In this respect, the Customer acknowledges that the intellectual property rights to such information, irrespective of the type of intellectual property right and irrespective of any registration of such intellectual property right, shall remain with the Seller and that it is therefore prohibited to copy this information or parts thereof in any way whatsoever or to market it or parts thereof in any other way without the prior written consent of the Seller. Any intellectual property/property rights shall only pass to the Customer (i) if and insofar as this transfer of rights was the express subject matter of our obligation to perform under the contract and (ii) if and insofar as ownership of the goods/works sold or produced has also passed to the Customer as a result of full payment of the remuneration by the Customer pursuant to Section 8 (1) of these GCS.

(6) Confidential information shall not be deemed to be such information which was already known to the contracting parties or which became known to them on the basis of their own knowledge before they became aware of it or which they received from a third party who was not restricted with regard to the use of such information or which is generally known or becomes known without the fault or instigation of the contracting party concerned.

(7) The obligation of confidentiality does not apply to data and information that must be disclosed to third parties, in particular authorities, due to legal obligations, nor does it apply to the conclusion of a contract.

(8) The confidential information may only be passed on to such employees/cooperation partners and service providers who are entrusted with the provision of the contractual services in the required manner and it must be e n s u r e d in a suitable manner that the information is also then equally protected.

(9) Insofar as third parties are involved in the performance of the contract, the contracting parties undertake to impose these obligations of confidentiality and secrecy also on third parties for the time during and after the end of this contract or upon leaving the services in writing accordingly.

(10) The personal data of the natural persons working for the contracting parties or other third parties affected or involved in connection with the contractual relationship are specially protected within the meaning of the Data Protection Regulation (DSGVO) irrespective of the obligation to maintain secrecy and may only be stored and processed for the purpose of implementing the contract. Data may not be passed on to third parties.

(11) The obligations under this non-disclosure and confidentiality agreement and under the GDPR shall apply indefinitely even after termination of a contract, taking into account the special features for different types of data.

 

• 13 Choice of law and place of jurisdiction, final provisions

(1) These GCS and the contractual relationship between us and the customer shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

(2) If the customer is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the Regional Court of Hamburg. The same shall apply if the customer is an entrepreneur within the meaning of § 14 BGB (German Civil Code). However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with § 4 para. 1 of these GCS or a prior individual agreement or at the general place of jurisdiction of the customer. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.

(3) The customer is not entitled to assign his claims from the contractual relationship to third parties. This shall not apply insofar as monetary claims are concerned.

(4) Should one of these provisions or provisions made within the framework of other agreements be or become invalid or contestable, this shall not affect the validity of the remaining provisions. In the event of the invalidity of a clause, the contracting parties undertake to enter into negotiations with the aim of replacing the invalid provision with another provision that is as economically and legally equivalent as possible.

(5) Any translation of these GCS is for comprehension purposes only. The German version of the GCS shall be authoritative. In the event of discrepancies between the German version of these GCS and another language version, only the German version shall be authoritative

(6) In case of any disputes, the legal basis will be the German GCS.

 

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