GENERAL TERMS AND CONDITIONS
[Hereinafter referred to as “Producer”]
Distribution of Beckstones™
§ 1 Scope of Application, Conclusion of Contract
(1) These general terms and conditions (hereinafter referred to as “Terms and Conditions“) set out the business relationships between Producer and its customers (here-inafter referred to as “Customer“); they take effect on January, 1st 2009. Producer manufactures and distributes illuminated paving stones branded as Beckstones™ (hereinafter referred to in total as the “products”) to Customers. All products and services provided by Producer are exclusively addressed to companies acting as businessmen (Kaufleute) within the meaning of the German Commercial Code, legal entities under public law or special funds subject to public law.
(2) The provisions of these Terms and Conditions also apply to future business relationships of this nature, even if not expressly agreed again. Terms and conditions of Customer do not form part of the contract concluded with Producer.
(3) To become binding, the conclusion of contracts and other agreements require the unconditional acceptance of Producer’s offer by Customer as well as an order con-firmation in writing from Producer.
(4) Producer can accept offers from Customers for a period of two weeks. Producer’s offers are subject to confirmation. Contractual declarations from either party must be in text form. In case of doubt, the offer or order confirmation from Producer governs the contractual contents.
§ 2 Basis of Contract, Services and Adaptation
(1) Any of Producer’s deliveries and services are rendered exclusively subject to
• the provisions of these Terms and Conditions and
• the specifics of the offer or order confirmation governing the contractual contents.
In case of contradictions between the contents of the aforementioned (contractual) documents, the following hierarchy applies: the specific offer or order confirmation prevail over the provisions of these Terms and Conditions.
(2) Producer is entitled to delegate the rendering of services in total or in part to a qualified third person.
(3) Producer is entitled to change products provided they serve the technical develop-ment or if required by unpredictable difficulties; however, this applies only if the subject-matter is not changed considerably and if this is reasonable for the custom-er.
(4) Vis major
Cases of vis major or unpredictable events (in particular operational breakdowns, traffic jams, difficulties with respect to energy supply and supply of raw products, engine defects, accidents, strikes, lock-outs, fire, seizure), which are beyond the will and/or the sphere of the contractual parties, extend the time of performance (service) according to the time lost. Such events entitle to a premature termination of this contract if waiting any further can no longer be reasonably expected; this is usually deemed four weeks as of the commencement of the unpredictable event. Neither contractual party is liable for damages resulting thereof unless it can be held responsible for the realization of vis major or the unpredictable event.
§ 3 Quality and Delivery of Products, Passing of Risk
a) The respective product description is decisive for the grade and quality of the delivered products. No higher product grade and quality (going beyond the one set out in the product description) is owed. In particular, Customer cannot invoke any higher product grade and quality even if declared in public or in advertisements of Producer; this does not apply if Producer has confirmed a higher product grade and quality in writing. Warranties on behalf of Producer require written confirmation by the management.
b) Customer confirms that he has sufficient expertise and qualifications with respect to the products to reach a well-founded assessment of the quality and characteristics of the products. In particular, Customer has taken notice of the essential characteristics of the products. In case of doubt Customer must seek advice from Producer’s employees or qualified third parties prior to the conclusion of the contract.
c) Different from the product version ordered, Producer is entitled to deliver the latest version of the respective product applicable at the date of delivery.
d) Producer is entitled to deliver in installments. In case of delivery in installments, additional supply costs will only arise for Customer if expressly agreed so.
a) Except as otherwise agreed, delivery is from Producer’s shipping point (EXW) to the shipping address provided by Customer.
b) Any delivery and service dates are subject to a correct and timely delivery of raw products to Producer.
c) For the keeping of delivery dates the point in time is decisive at which Producer provides the respective products to the shipping company for collection.
d) To be valid, requests for payment and the setting of deadlines require written form.
(3) Passing of Risk
a) The risk (of accidental loss or destruction of the products sold) passes to Customer with respect to physical dispatch – also in case of delivery free of charge or delivery in installments – as soon as the products have been handed over to the shipping company or leave the warehouse of Producer. In case of delay due to circumstances for which Producer is not responsible the risk passes to Customer at the moment of reporting that the product is ready for dispatch.
b) Producer will only take out insurance against all various damages upon express wish and at the expense of the customer. For the purposes of having transport insurance coverage Customer is obliged to inspect the delivered products immediately upon receipt for transport damages. Obvious damages to the products or packing must be confirmed by the carrier or vicarious agent on the consignment note. Concealed damages must be reported to the carrier and Producer within seven days.
c) Customer bears the risk of accidental loss. He is obliged to treat the products of Producer with care and take out insurance in the amount of the full purchase price and to prove insurance coverage by way of producing the insur-ance policy to Producer. This applies until payment of the full purchase price; in case of payment in installments there must be insurance coverage up to the amount of the open purchase price. Claims against the insurance company are deemed to be assigned to Producer until payment of the accounts receivable owed to Producer.
§ 4 Prices, Due Date, Payment, Credit Rating Investigations
The prices to be paid by Customer are set out in Producer’s offer or Producer’s order confirmation.
Prices are applicable ex works/warehouse (EXW). The do not include ancillary costs (in particular packing, freight, postage, customs, insurance and other transport and dispatch costs) unless agreed expressly and in writing otherwise.
The prices of Producer are exclusive of value added tax, which the customer is addi-tionally liable to pay to Producer (if applicable).
(2) Adaptation of Prices
In addition, Producer reserves the right to increase its prices in line with cost in-creases since its offer or acceptance of the contract (e.g., due to price increases of suppliers).
Customer must be informed immediately in writing about the price changes under this provision.
(3) Due Date, Payment, Retention, Default
a) Net Payment is due within 14 days after receipt of the respective invoice. The receipt of monies in one of the (business) accounts of Producer is decisive for determining whether the payment deadline has been observed. The invoice is issued on the day of service, delivery, delivery in installments or notification that the products are ready for delivery (obligation to be performed at the debtor’s place of business, default of acceptance).
b) A discount agreement (if any) does not include ancillary costs (in particular packing, freight, postage, customs, insurance and other transport and dis-patch costs). If Customer pays Producer’s invoice after expiry of a (potentially agreed) discount period based on asserted objections, he can only claim a dis-count if confirmed separately and in writing by Producer.
c) Except as otherwise agreed in writing, Producer is entitled to request an ap-propriate down payment for services in installments and other advance per-formances out of the ordinary (e.g., advance payments to third parties).
d) Producer may request further down payments or full advance payments pro-vided there has not been a previous business relationship with Customer, de-livery should be made into a foreign country or if the customer is domiciled abroad.
e) Customer may only set off with a non-appealable claim or exercise a retention right. A retention right of Customer only applies with respect to claims arising directly from the individual contract in question.
f) In case of payment default, Producer is entitled to claim default interests in the statutory amount. Producer is entitled to claim further default damages.
g) If the fulfillment of the payment obligations is jeopardized due to a substan-tial deterioration of Customer’s financial conditions known after the conclu-sion of the contract, Producer may request advance payments and withhold services (not rendered) as well as cease to do any further work until receipt of the advance payments. A substantial deterioration of financial conditions is deemed in particular if a credit rating institution or similar agency either warns to do business with the respective customer or recommends, depending on the order volume, to request an advance payment.
h) If Customer refuses to make an advance payment in accordance with the above provisions, Producer is entitled to rescind the contract and to claim damages under the statutory provisions.
§ 5 Retention of Title
(1) For products sold to Customer the following applies: Sold products remain in the ownership of Producer until full payment of the product price under the contract.
(2) In case of third parties’ attachments to products, which are subject to a retention title, the customer is obliged to point out Producer’s ownership and to inform the third party immediately. Transfers by way of security, transfers of user rights as securities and pledges are not permitted.
(3) If Producer invokes the retention of title, Customer’s right to sell the products (handed over to him) to third parties will expire. A potential taking back of products from Producer is undertaken for securities purposes only. This will not constitute a rescission of contract even if payment in installments has been permitted. In addi-tion, Producer is then entitled to sell the products privately or have them auctioned off. Any further claims for damages, lost profits in particular, are reserved.
(4) Producer commits itself to release securities (due to Producer) to the extent that the value of securities for unpaid claims exceeds the unpaid claims by more than 20%.
§ 6 Duty of Inspection and Objection, Warranty
For any product left to Customer the following stipulations apply:
(1) Producer warrants that the products correspond to the written product specifica-tions set out in the respective product description or user documentation applicable at the time.
(2) Upon discovery, Customer must report defects without undue delay in writing de-scribing the symptoms occurring. To preserve warranty rights, obvious defects must be reported in writing two weeks as of the delivery date at the latest.
(3) If the product has a defect, Producer will at its own discretion rectify or a replace and deliver additionally (supplementary performance). Producer may refuse the cho-sen mode of supplementary performance or supplementary performance as such if this is only possible with disproportionate costs. In case of replacement and addi-tional delivery, Producer will pay the expenses required for this purpose to the ex-tent that those expenses are not increased by a delivery to a place different from the one agreed (contractually). If Producer delivers for the purposes of supplemen-tary performance a faultless product, Customer must return the product delivered in-itially.
(4) If Producer is not prepared or unable to undertake a supplementary performance, or if there is a delay for reasons for which Producer cannot be held responsible, or if the supplementary performance fails otherwise, Customer will be entitled – within the framework of the statutory provisions – to claim his rights of rescission, reduc-tion of the product price and damages.
(5) Further claims of Customer, in particular damages including lost profits or other pecuniary losses of Customer only exist to the extent set out in the provisions on liability in this contract.
(6) The warranty period is one year calculated as of the commencement of the statutory limitation period.
(7) For the warranty period, Customer names a consistent contact person. Customer may replace the contact person but must inform Producer in writing accordingly.
(8) There will be no obligation on Producer if a defect results from an action of the customer. This includes in particular – In so far as there is a causal connection – Inappropriate storing or use, maintenance, repairs or unauthorized modifications that are not conducted by Producer.
(9) Customer must ensure that (a) warranty claims are validly made; (b) all warning labels and instructions applicable to the Product are neither tampered with nor re-moved before the product is sold on or otherwise transferred; and (c) all serial numbers of the products are recorded and that proper records are kept to enable the product to be traced to any third party and allow Producer reasonable access to those records.
§ 7 Liability
The following applies, irrespective of the legal reason, with respect to Producer’s liability as well as the liability of its employees, persons employed in the performance of Produc-er’s obligations and vicarious agents:
(1) Producer has unlimited liability only for intentional behavior or in case of gross negligence. Producer will be liable for slight negligence on the merits if an obliga-tion is violated the fulfillment of which is of special importance to achieve the con-tractual goal („cardinal obligation”). Producer’s liability for slight negligence is limited to contract-specific damages that can be anticipated.
(2) Producer will only be liable for cases of initial frustration if the performance obsta-cle is known beforehand or if the ignorance is based on gross negligence.
(3) The limitation period of claims for damages against Producer is one year calculated as of the commencement of the statutory limitation period unless damages were committed intentionally.
(4) The above liability exclusion, restrictions and limitations do neither apply to claims under the Act on Product Liability (Produkthaftungsgesetz) nor to damages based on a violation of life, body or health.
(5) Contributory fault of Customer is attributed to Customer.
(6) Customer must notify immediately damages under the above liability provisions to Producer in writing or make sure that Producer takes note of such damages; the rea-son being that Producer is informed as early as possible and may reduce potentially the damages in co-operation with client.
§ 8 Intellectual Property Rights
(1) All intellectual property rights to the products, including copyrights, trade mark rights, firm name or other designations and know-how insofar as they exist are the exclusive entitlement of the company.
(2) Customer undertakes that it will not contest the intellectual property rights of the company itself or have same contested by third parties, or support third parties in contesting same in any form. If customer is in breach of this provision, the company is entitled to terminate this agreement without notice for good cause.
(3) Customer may not in its name obtain protection for or register trademarks, trade names or other designations of Producer or such trademarks, which are identical or similar to those of the company as well as any intellectual property rights including patents, design patents or utility models insofar as these are susceptible to registra-tion. Accordingly Customer is likewise not entitled to adopt and register the afore-said intellectual property rights or designations as part of its business name or domain-name in the commercial register, any other public register or any other certifi-cation center. In particular Customer is prohibited from using the designations or the symbols, advertising slogans or other designations belonging thereto of from using the business secrets for third products or third sales systems.
§ 9 Confidentiality
(1) The contractual partners commit themselves not to disclose for an unlimited period of time any knowledge and information marked as confidential or obviously consti-tuting business secrets and gained in connection with the contract.
(2) In addition, transfer of confidential information to third parties is only permitted with prior consent in writing of the other party unless the information was (a) gen-erally known beforehand; (b) publicly available through no breach of confidentiali-ty; (c) received in good faith from a third party who has no obligations of confi-dence in respect of such information; or (d) disclosure is required by a court of law or similar body.
§ 10 Data Protection; Credit Rating Investigations
(1) The statutory provisions on data protection and data security must be observed. Customer is responsible for complying with the statutory provisions on data protec-tion and data security when passing on information to Producer.
(2) Producer saves data required for the conclusion and execution of the contract in-cluding correspondence with the client. In addition, Producer is entitled to save other data transferred by the client at his registered seat of business and to use such data if required for the execution of the contract.
(3) Upon Customer’s request, Producer will inform Customer about the data saved on Customer and correct, delete or block such information if not in compliance with the provisions on data protection, in particular in case incompleteness or incorrectness. If need be, Producer will inform the respective people (who potentially received da-ta) accordingly.
(4) Producer reserves the right to obtain information from SCHUFA and other national or/and international credit rating institutions (e.g., Creditreform, Euler/Hermes, D & B Schimmelpfennig GmbH, Bürgel Wirtschaftsinformationen GmbH & Co. KG) in or-der to check the client’s credit rating. In addition, Producer reserves the right to re-port to SCHUFA and other credit rating institutions – within the framework of an ex-isting contractual relationship for the purposes of exchanging credit rating figures – with data in case of breach of contract (e.g., if Customer’s actions gives rise to a termination without notice; or/and payment default as to an undisputed claim; and/or the existence of an enforceable title for accounts receivable under the con-tract). If these organizations, during the contractual relationship between Producer and the client, obtain data resulting from other contracts of Customer, they may forward this (additional) information to Producer. Data collection and processing is conducted in compliance with the applicable (statutory) provisions on data protection.
§ 11 Final Provisions
(1) Customer may not – subject to an assignment of pecuniary claims und section 354 a of the German Commercial Code (Handelsgesetzbuch - HGB) – transfer individual rights under this contract or assign the contract as a whole to a third party except as otherwise agreed in writing by Producer. Producer will approve a transfer if the legitimate interests of Customer with respect to a transfer of rights outweigh the interests of Producer.
(2) The waiver of exercising or omitting (the exercise of a right) under this contract by a party does not give rise to a waiver of further rights.
(3) This contract shall be governed exclusively by the laws of the Federal Republic of Germany. International Private Law and the United Nations Convention on con-tracts for the international sale of goods are excluded.
(4) Exclusive place of jurisdiction for all disputes arising out of the contractual relationship including cheque and bill of exchange proceedings as well as summary documentary evidence procedures is the registered seat of Producer (applicable at the time). Producer may also file a lawsuit at the Customer’s registered business seat.
(5) Collateral agreements have not been entered into. Changes and amendments are only valid if concluded in text form and confirmed reciprocally. This also applies to canceling the requirement of written form.
(6) If any provision of these Terms and Conditions are or will become invalid in whole or in part, the validity of the other provisions will not be affected.
(7) For advertising purposes, Producer is entitled to publish the following information: name of Customer, line of business, number of products acquired.