I. General Provisions
- For any and all contractual relations by and between, on the one hand, the Flexim GmbH (hereinafter referred to as „Supplier“) and, on the other hand, the contractual partner and other customers (these contractual partners and other customers hereinafter individually referred to as „Customer“) solely these General Terms and Conditions for the supply of products (hereinafter referred to as „General Conditions“) and, if any, specifically concluded contractual agreements shall apply. Unless otherwise explicitly agreed upon in writing, any and all general terms and conditions of the Customer deviating from the General Conditions shall not be applicable. The General Conditions shall also apply solely where the Supplier despite its knowledge of any general terms and conditions of the Customer performs deliveries to Customer without reservation. The General Conditions, however, shall not apply if and insofar mandatory law provides deviating provisions.
- The General Conditions shall also govern likewise all contractual relations between Supplier and Customer which applies even in case that their application is not specifically agreed upon thereto.
- Any and all offers by the Supplier shall be non-binding and subject to confirmation by Supplier unless explicitly determined by Supplier as binding. The conclusion of a contract is subject to a prior offer by the Supplier followed either by the acceptance of such offer by the Customer and thereupon an order confirmation made by Supplier or a jointly between the parties agreed single contract document, such order confirmation and contract document issued by at least electronical means (“Textform” as per Sec. 126b German Civil Code (“Bürgerliches Gesetzbuch” hereinafter referred to as “BGB”)). In case that Supplier has not made a prior offer but Customer has made an offer constituting an offer for conclusion of a contract (Sec. 145 German Civil Code (“BGB”)) Supplier shall be entitled to accept such offer by Customer by, within a two weeks period, either the transmittal of an order confirmation or the execution of the delivery.
- Any estimate of costs submitted by the Supplier shall be non-binding unless otherwise agreed upon.
- The Supplier reserves any and all rights to all of his depictions, plans, drawings, sketches, calculations and other technical documentation as well as cost estimates (hereinafter jointly referred to “Supplier’s Documentation”) until the conclusion of a contract, and beyond this without any time limitations in general any and all intellectual property rights embodied in this Supplier’s Documentation. Unless otherwise agreed upon the provisions of Sec. XIV.1 shall apply correspondingly to the Supplier’s Documentation; thus, in particular, the Customer shall be obliged to keep Supplier’s Documentation confidential towards third parties and solely to make use of them for the execution of the contract with Supplier. In case that no contract is concluded between the parties Customer upon request by Supplier shall be obliged to return Supplier’s Documentation to Supplier
II. Content and scope of delivery obligations
- The scope of the delivery obligations of the Supplier shall be determined by either the order confirmation issued, or the contract document agreed upon, as per Sec. I.4. .
- In case of any modifications of the products of the Supplier due to and in the course of the steadily technical advances after conclusion of the contract Supplier, unless otherwise agreed upon in writing, shall be entitled to deliver also such technically modified product versions provided however that such modification is reasonable to the Customer taking by this the interests of both sides into account; in this respect, the Supplier shall be entitled to deviate in particular from illustrations, plans, drawings, sketches, descriptions and specifications for colour, measure, weight and quality and other specification elements.
- Any and all permissions for the performance and operation of the deliveries shall be arranged by the Customer at his risk and expenses. In case of any assistance rendered by the Supplier, Customer shall reimburse Supplier for any costs incurred by Supplier for such assistance.
- The Customer shall be obliged to examine at his responsibility the materials offered by the Supplier as basis or ingredient for the product of Supplier prior to the conclusion of the contract whether or not these materials are suitable comprising in particular but not limited to their suitability as to their chemical resistance. Such materials shall be deemed approved by Customer unless he has objected to these materials before the conclusion of the contract.
- Unless otherwise agreed upon in writing, all prices shall be net prices EXW (Incoterms 2020) at the place of business of the Supplier excluding VAT and packaging.
- The Supplier reserves the right to adjust the prices appropriately in case of any cost reductions or increases after the conclusion of the contract especially due to changes of labour costs, e.g. due to collective agreements, or changes of material prices. Upon Customer’s request Supplier will prove the requirement of such changes.
- Unless covered by warranty obligations of the Supplier, Supplier shall be entitled to charge a reasonable flat-rate fee for the dispatching and packaging for any return consignment of repaired products or delivery of spare parts in addition to the price for the delivery as such.
IV. Time of delivery / delays
- Lead times for deliveries shall be non-binding unless expressly agreed upon in writing as binding.
- Such binding lead times for deliveries must only be observed by the Supplier if any and all documentation, necessary permits and releases, especially with respect to plans, all of it owed by Customer are received by Supplier in time and if also the agreed terms of payment and all other obligations of Customer are fulfilled in time. Unless the conditions are fulfilled, any such lead times for deliveries set shall be prolonged appropriately.
- In case of deliveries, the set lead times shall be deemed as have been complied with if the products are dispatched or collected in the agreed lead time. In case of a delayed dispatch or collecting caused by the Customer, the set lead time shall be deemed to be complied with if readiness for the dispatch or the collection has been announced within the agreed lead time.
- If the non-compliance of the set lead time is due to Force Majeure including in particular but not limited to natural disasters, pandemics, mobilization, war, riots or other violent conflicts, civil commotions, operational disruptions not being caused by Supplier due to at least negligence, or strikes or lock-outs, or sovereign acts, the lead time shall be prolonged appropriately.
- In case of any delay of the Supplier with a delivery due to at least negligence of Supplier, the Customer shall at the request of Supplier declare within an appropriate period of time whether or not Customer continues to demand the performance of the delivery or wishes to cancel the respective contract.
- In case of a delay or an impossibility of the delivery due to, and caused by fault of, the Supplier for whatsoever reason, any and all claims thereof for whatsoever damages, loss and other harm by Customer shall be limited to claims and titles as stipulated in Sec. XII of these General Conditions.
- The Supplier shall be entitled to perform the deliveries as well as the corresponding invoicing in portions, unless such partial performances are unreasonable to the Customer.
V. Delivery / packaging / storage / transfer of risk upon Customer’s delay
- Unless otherwise expressly agreed upon, deliveries shall be made EXW (Incoterms 2020) at the place of business of the Supplier.
- At the Customer’s request and expenses, the Supplier will arrange insurance coverage for the deliveries against the usual risks of transport.
- The Supplier shall not to have take-back transport and other packaging material as per the statutory regulation on packaging (“Verpackungsverordnung”). Accordingly, the Customer shall arrange for the disposal of the packaging material at his own responsibility and expenses.
- In case of any delay of more than one month of the dispatch or the collection due to the Customer’s request or fault, such period starting with the announcement for readiness, Supplier provided that it has arranged for a storage of these products, shall be entitled to claim storage charges of 0.5 % of the purchase price of the delivery for every commenced month from Customer, limited, however, to a total of 5.00 % of the purchase price. However, parties by this are not bound to assert higher or lower storage charges.
Any storage as per Sec. V.4 is arranged by the Supplier at the exclusive risk of the Customer, such transfer of risk taking place already upon the announcement of readiness for the dispatch or collection as per Sec. IV.3 second phrase.
VI. Customer’s obligation to take delivery
The Customer may not refuse acceptance and receipt of deliveries on account of minor defects.
VII. Terms of payment
- Unless otherwise agreed upon, the Customer has to make the payment of the total price as contractually agreed upon in instalments as follows:
a) 50 % upon the submittal of the order confirmation by the Supplier or, if applicable, the issuance of the joint single contract document,
b) 50 % upon the performance of the delivery and handing-over respectively.
- Unless otherwise agreed upon, payment shall be made within a period of 7 days, this period starting with the date of issuance of the invoice; however, the Supplier reserves the right to perform the supplies subject to concurrent condition with respect to the payment or subject to an advance payment.
The Customer shall not be entitled to a cash discount.
- The Supplier shall be entitled to assign without any restrictions any and all claim against the Customer.
- Corresponding to this Sec. VII.3 Supplier hereby informs the Customer that the Supplier has assigned any and all existing claims against Customer by means of factoring to the A.B.S. Global Factoring AG in Wiesbaden (Germany).
With respect to this assignment Supplier hereby advises Customer that any and all payments by Customer with regard to any such claims by Supplier shall only have debt-discharging effect if made to A.B.S. Global Factoring AG in Wiesbaden (Germany). The required banking details of A.B.S. Global Factoring AG are indicated on the invoices issued by Supplier.
- The Customer shall render all payments onto the account of the Supplier free of charge for the latter.
- Unless otherwise agreed upon, all payments shall be made in € (EUR).
- The Customer is only entitled to offset or make use of his right of retention if the respective counterclaims are uncontested or legally established with final effect.
VIII. Default in payment by Customer
- In case of a default in payment by the Customer due to at least negligence with regard to a single Supplier’s claim Supplier shall be entitled to declare any and all of his further claims against Customer immediately due and payable unless anyway already fallen due and payable. Any further rights of Supplier shall remain unaffected by this.
- Notwithstanding of any further or other claims by the Supplier the Customer shall be in particular also be liable for any and all reasonable costs, fees and expenses with respect to the legal pursuance of any Supplier’s unsettled claims against Customer including but not limited to such costs, fees and expenses arisen due to such legal pursuance of claims abroad.
IX. Retention of title
- The Supplier retains ownership on any products delivered until each and every account and claim against the Customer to which Supplier is entitled under the business relationship has been duly satisfied (such product hereinafter: product subject to retention of title). Customer shall be obliged to treat the products subject to retention of title carefully and shall undertake to effect a reinstatement value insurance for the products against damages caused by fire, water or theft at his own expense.
- The Customer shall be entitled to resell and to use the products subject to retention of title within the normal course of Customer’s business, provided that Customer is not in default of payment; furthermore, Customer for the duration of the retention of title may not pledge said products or assign them as a security. The Customer hereby assigns to Supplier as security any and all claims arising from the resale of or any other legal basis connected to the products (including, but not limited to claims arising from insurance contracts or on grounds of tortuous acts); Supplier hereby accepts the assignment which shall also include any balance claims of current accounts.
The Supplier hereby revocably authorizes the Customer to collect any of such assigned claims on the Customers own behalf and for his own account; Supplier reserves the right to revoke this authorization which applies in particular if Customer does not fulfil his payment obligations.
The Customer shall not be entitled to assign such claims, including an assignment for the purpose of collecting the claims by way of factoring.
- Any processing and/or transforming of the products subject to retention of title shall take place on the sole behalf of the Supplier. If said products are processed so as to form a new product together with goods or items which do not belong to Supplier, Supplier shall acquire joint ownership in such new products in proportion of the value of the products subject to retention of title (amount of invoice including VAT) to the total value of the other items used (the point of time at which the event occurred is decisive here). The terms under this entire Sec. IX applicable to the products subject to retention of title shall apply analogously to the items arising from such processing.
- If the products subject to retention of title have been intermixed or mingled with other items which do not belong to the Supplier, Supplier shall acquire joint ownership in such new products in proportion of the value of the retained goods (amount of invoice including VAT) to the total value of the other items used at the time of intermixing or mingling. If the products subject to retention of title have been combined in such a way, that the item belonging to Customer is regarded as the main constituent it shall be agreed that Customer shall assign the proportionate ownership to Supplier.
- It shall be the Customer’s secondary contractual duty to store the products underlying the Supplier’s ownership or joint ownership free of any costs and charges for Supplier.
- Claims against third parties arising from a combination of the products subject to retention of title with a plot of land shall be also assigned to the Supplier as security for Supplier’s claims mentioned in Sec. IX.1.
- On the Supplier’s request, the Customer shall inform Supplier immediately to whom Customer sold the products underlying Supplier’s ownership or joint ownership and which claims may result from the resale, as well as provide Supplier at his own expense with an officially authenticated document stipulating the assignment of the claims.
- The Customer shall be not allowed to dispose otherwise of the products subject to retention of title or products underlying the Supplier’s joint ownership. Customer shall inform Supplier forthwith of any seizure or other act of intervention by third parties. Customer shall be obliged to reimburse Supplier for all costs related to the recovery by third parties of the products subject to retention of title and the claims.
- In the event of the Customer`s delay with payment or of a breach of essential contractual obligations both of it due to at least negligence, the Supplier reserves the right to claim restitution of the products underlying Supplier’s sole or joint ownership. The assertion of such claim shall only be considered rescission of the contract if this is expressly declared by Supplier.
- In case of a court order to institute bankruptcy proceedings, the refusal of a court to institute such proceedings due to lack of sufficient assets or a justified petition in bankruptcy, the Supplier shall be entitled to rescind the contract and to demand instant restitution of its products and deliveries.
- If the combined value of the Supplier’s security interest exceeds the value of all secured claims by more than 10 %, Supplier shall release a corresponding article or item of the security interest if so requested by the Customer.
- Any and all warranty claims as to the delivered products shall be subject to a limitation period of twelve months, this period starting with the transfer of risk. Such limitation period, however, shall not apply with respect to any claims on damages due to warranty liabilities in the case the Supplier is compulsively liable for the damage by law either without fault, or in case of intention or gross negligence, or in case of death or bodily injury or damage to health due to at least negligence; in such cases, the limitation periods pursuant to the legal provisions shall apply.
- The Customer may only claim damages if he in accordance with Sec. 377 HGB (German Commercial Code) has properly fulfilled his obligation to examine the products and notify the Supplier in writing of any damages within a period of 7 days and within this period prior to any installation or connection with another item.
- In the event of a justified warranty case the Supplier shall be entitled to remedy the defect in its sole discretion by either repair or delivery of a substitute product.
- In case that the Supplier fails to remedy the defect, the Customer shall be entitled in his choice to a reduction of the purchase price or a cancellation of the contract. Supplier shall be deemed to have failed to remedy the defect in case that two such attempts have not been successful unless with regard to the contractual object further attempts are suitable and reasonable to Customer.
- Warranty claims shall be excluded in case of only insignificant deviations from the agreed quality, only minor impairment of use, materials approved by the Customer, natural wear and tear, and in case of damages arising after the transfer of risk due to faulty or at least negligent treatment or use, or treatment or use against the rules, or excessive strain, unsuitable means of operation, improper construction works, inappropriate place of installation, or particular external influences not assumed under the contract. Furthermore, warranty claims shall be excluded also in case that the Customer or a third party has modified the products or has carried out or omitted maintenance works improperly or against the instructions of the Supplier, on in case of lack of required maintenance at all. Supplier shall also not be liable for the quality or condition of the products resulting from the design or material if such design or material has been determined by Customer.
- Notwithstanding other exclusions of warranty, Customer shall also not be entitled to warranty claims if and insofar Customer has remedied the defect by a third party not authorized by the Supplier.
- Any and all claims raised by Customer for expenses required within the process of remedying of defects, in particular costs of transport, travelling, labour and material, shall be excluded, if such costs have arisen on the ground that the products after delivery have been transferred to a place different from the place of business of the Customer or, if any, place of installation unless such transfer corresponds to the product’s intended use.
- Any and all warranty claims shall be restricted to direct damages, and, within this limitation, be limited further to an amount equal to the remuneration that is attributable to the defective delivery (or only portions thereof, if applicable). Any further warranty claims against the supplier including, in particular, claims on indirect or consequential damages, in particular again loss of profit, shall be excluded.
- The above exemptions from, and limitations of, liability do not apply where liability is compulsory by law either without fault, or in case of intention or gross negligence, or in case of death or bodily injury or damage to health or breach of essential contractual obligations due to at least negligence. Notwithstanding the aforesaid, however, the liability for breaching essential duties under a contract shall be limited to the typically foreseeable damage, unless the Supplier is compulsively liable for the damage by law either without fault, or in case of intention or gross negligence, or in case of death or bodily injury or damage to health due to at least negligence. This provision shall not imply a change in the burden of proof to the detriment of the Customer.
XI. Returning of products
In case that the Customer undertakes to return products to the Supplier for whatsoever reason, in particular thereby for the purpose of repair (within and beyond warranties), Customer shall be obliged to indicate always the process number determined by Supplier. Furthermore, the products to be returned shall be clean and free of any foreign matters in particular, but not limited to any chemicals which shall be confirmed by Customer at least by electronical means (“Textform” as per Sec. 126b German Civil Code (“BGB”)) unless returned for warranty reasons.
XII. General liability
- Unless already determined in particular in Sec. X, any and all claims for damages or expenses of the Customer against the Supplier, irrespective of their legal grounds, in particular arising from faults upon the conclusion of contracts, breach of contractual obligations or unlawful acts, shall be excluded.
- The aforesaid does not apply where liability is compulsory by law either without fault, or in case of intention or gross negligence, or in case of death or bodily injury or damage to health or breach of essential contractual obligations due to at least negligence. The liability for breach of essential contractual obligations shall be limited, however, to the compensation of the typical foreseeable damage, unless liability is compulsory by law either without fault, or in case of intention or gross negligence, or in case of death or bodily injury or damage to health due to at least negligence. This provision does not imply a change in the burden of proof to the detriment of the Customer.
XIII. Intellectual property rights and copyrights
- Unless otherwise agreed upon, the Supplier shall be obliged to perform the deliveries free of third parties’ intellectual property rights and copyrights (hereinafter referred to as Proprietary Rights) solely in the country of the place of delivery resp., if any, at the place of installation.
Even in such case, however, Supplier shall not be liable for any claims due to infringement of any third party’s Proprietary Rights if the Customer or any legal entity directly or indirectly owned or controlled by Customer through capital or voting shares, holds, or held, title to the Proprietary Rights.
- The Customer shall be obliged to immediately inform the Supplier of any (alleged) infringement of Proprietary Rights of third parties and respective risks becoming known to him and to grant Supplier, as far as possible, upon its request the right of action both for judicial and extra-judicial cases in order to refuse any and all claims.
- In case of an infringement of third party’s Proprietary Rights, the Supplier shall in its sole discretion be entitled to either obtain a right to use the products, or modify such product in such a way that they do not infringe these Proprietary Rights any more, or to replace such product by a product which do not infringe these Proprietary Rights any more. In case that Supplier cannot exercise such right at adequate conditions or within a reasonable time, the Customer provided, however, that he has enabled Supplier to remedy the infringement of the Proprietary Rights, shall be entitled to exercise the statutory rights of rescission. Correspondingly to this, and subject to the fulfilment of the above conditions, also Supplier shall be entitled to withdraw from the contract.
- In the event that the Customer ceases to use the product due to an (alleged) infringement of third party’s Proprietary Rights in order to reduce damages or for any other substantial reason, Customer shall be obliged to advise the third party asserting the infringement of the Proprietary Rights that the ceasing of the use shall not be deemed as acknowledgment of the infringement of Proprietary Rights.
- Any Customer’s claims with respect to an infringement of third parties Proprietary Rights shall be excluded insofar as the Customer himself is liable for such infringement of Proprietary Rights.
Furthermore, any Customer’s claims shall be excluded in the case that the infringement of Proprietary Rights of a third party was caused by a specific instruction by Customer or by any use which was unforeseeable for the Supplier, or due to a modification effected or joint use with other products not performed by Supplier, by Customer.
With respect to any remaining claims regarding the infringement of Proprietary Rights of third parties the stipulations as per Sec. XII shall apply.
- Any and all claims with respect to the infringement of Proprietary Rights of third parties shall be subject to as limitation period of twelve months, such period starting with the transfer of the risk of the respective accomplished delivery. Such limitation period, however, shall not apply with respect to any claims on damages due to a liability of the Supplier by compulsory law either without fault, or in case of intention or gross negligence, or in case of death or bodily injury or damage to health due to at least negligence; in such cases, the limitation periods pursuant to the legal provisions shall apply.
- Any and all further claims or other claims not stipulated in this Sec. XIII 1. to 6 with respect to the infringement of Proprietary Rights of third parties shall be excluded, unless otherwise determined by compulsory law.
XIV. Secrecy / limited use
- The Customer shall be obliged to keep all depictions, plans, drawings, sketches, calculations and other technical documentations as well as the know-how and other technical information of the Supplier strictly confidential and in particular not to disclose or otherwise make available to any third party, and only to make use of it within and for the duration of the respective contract. The obligation to secrecy and limited respective after termination or ceasing of the contract interdicted use shall continue to last and shall only cease if and insofar the technical knowledge embodied in these depictions, plans, drawings, sketches, calculations, other technical documentations and know-how have become generally known.
- The existence of the business and contractual relations with the Supplier as well as all contractual terms and conditions as well as all related commercial and technical details and also all provided deliveries and their details shall be deemed business secrets of the Supplier. The Customer shall not be entitled to disclose them or make them otherwise available to third parties without prior written approval by Supplier.
XV. Governing law / place of jurisdiction
- The law of Germany shall apply.
- Place of jurisdiction shall be Berlin-Charlottenburg (Germany). However, the Supplier at his option shall also be entitled to institute legal proceedings to any other competent court.
- Place of performance shall be the place of business of the Supplier.
- For the sake of good order the Supplier herewith points out that he is bound with respect to the export of goods to the domestic and international statutory laws and regulations. Thus all deliveries to be rendered by Supplier are therefore subject to the condition that the relevant permits and licenses have been granted and also all other export requirements have been met.
Lieferbedingungen Berlin Millhouse GmbH, Stand 10.10.2020