General Terms and Conditions of skriptfabrik GmbH, Chemnitz
§ 1 General – Scope
- Our General Terms and Conditions below apply to all offers, deliveries and services provided to clients (hereinafter “Client”) identified as companies under Section 14 BGB [German Civil Code], legal entities under public law and special funds under public law. We do not recognise contrary or divergent Client conditions, even where we have not expressly objected to the same. Our General Terms and Conditions also apply to cases where we effect delivery to the Client without reservation in the awareness of Client conditions contrary to or divergent from our own conditions. Agreements must be in written form. The same also applies to any waiving of this written form clause itself.
- Our contractual partners shall be designated “Client” regardless of the legal designation arising from the respective contract. Our Company shall hereinafter be designated “Contractor)”.
§ 2 Offers and prices
- Our offers are subject to alteration and are non-binding.
- Our employees and commercial agents are not authorised to provide oral assurance that goes beyond the content of the written contract.
- The statutory value-added tax is not included in our prices; it will be shown separately in its legal amount based on the invoicing date.
§ 3 Delivery period, delayed delivery, delayed acceptance
- Delivery dates and deadlines are binding on us only where we have expressly confirmed them in writing as fixed delivery dates. The beginning of the delivery period provided by us presupposes clarification of all technical issues and the Client’s proper fulfilment of the duty to cooperate. We reserve the plea of contractual non-fulfilment.
- We cannot be held responsible for agreed deadlines and dates in the event of delays in delivery and performance based on force majeure or events that significantly and not merely temporarily cause our delivery and/or performance of our service, including those of our own suppliers or their sub-suppliers, to be impeded or impossible – such as strikes, lockouts, official orders, epidemics, especially pandemics, etc. To the extent that we promptly inform the Client of this situation, these conditions entitle us to extend the delivery dates and/or deadlines in a reasonable measure or to withdraw completely or partially from the contract. In the event that the delivery period is extended or that we are not subject to the delivery obligation, the Client is not entitled to derive damage claims therefrom. Should the impediment last longer than four months, the Client can withdraw from the contract following a reasonable notice period regarding the portion remaining unfulfilled. Other rights of withdrawal remain unaffected.
- Should we experience delay in effecting delivery and the Client suffer damage arising from this situation, the Client is entitled to claim compensation for the delay in the amount of 0.5% for each completed week of delay but limited to a maximum total of 5% of the invoice amount applicable to the deliveries and services affected by the delay. This limitation shall not apply, however, to cases where we have intentionally caused the delay; otherwise, Section 8 No. 4 of our General Terms and Conditions applies. In the context of legal provisions, the Client is entitled to withdraw from the contract only where the delivery delay is attributable to us.
- As a consequence of a delivery delay attributable to us, we are liable only in the case of intent or gross negligence or to the extent that the delay attributable to us is due to the culpable violation of an essential contractual obligation. Otherwise, Section 8 of our General Terms and Conditions applies.
- Should the Client experience delay in accepting delivery or culpably violate other duties to cooperate, we are entitled to demand compensation based on the extent of the damages accrued, including any additional expenditures. We reserve the right to assert further claims. The risk of accidental loss or accidental deterioration of the good is transferred to the Client.
- Partial deliveries are permitted where these are reasonable for the Client.
§ 4 Shipping and transfer of risk
- The risk is transferred to the Client once the object of delivery or performance has left our company. Loading and shipping occur uninsured at the risk of the Client.
- With respect to the mode and route of transportation, we will make an effort to take the Client’s preferences and interests into account; any additional expenses arising from this – even in cases of agreed free delivery – shall be borne by the Client.
§ 5 Payment
- Unless stated otherwise in the contract, payment is net (without discount), due and payable within 14 days of the invoicing date.
- Without additional comment from us, the Client shall fall into arrears if payment has not been made by 10 days after the due date. At that point, we are entitled to demand interest on arrears in the amount of 9 percentage points above the base interest rate. The Client is entitled to show evidence of lesser damage and we are entitled to show evidence of greater damage. In all other respects, Section 288 Para. 5 BGB applies.
- In the event of arrears on payment and justified doubt regarding the Client’s capacity to pay or creditworthiness, we are authorised – notwithstanding our other rights – to require securities or advance payments on remaining deliveries and to demand immediate payment of all claims arising from the business relationship.
- The Client’s entitlement to offsetting, retention or reduction applies solely to legally determined or uncontested counterclaims. Retention due to counterclaims from the same contractual relationship remains unrestricted.
§ 6 Retention of title
- We retain the title to the delivery or performance object until all our claims against the Client arising from the business relationship, including claims arising in the future from concurrently or subsequently concluded contracts, is settled. This shall also apply to cases where individual or all claims by the Client are included in a running account and the balance has been settled and acknowledged.
In cases where the Client acts contrary to the contract, especially with regard to arrears on payment, we are entitled to recall the delivery or performance object and the Client is obligated to surrender it.
Our recall or seizure of the object constitutes a withdrawal from the contract only if we have expressly so declared in writing. Following the recall of the delivery or performance object, we are authorised to dispose of it, with the proceeds credited against the Client’s liabilities less reasonable disposal costs.
- The processing or restructuring of reserved goods is always carried out by the Client for us as Contractor, and we are considered to be the manufacturer without any obligation on our part. Where the reserved good is processed by or inseparably mixed with other objects not belonging to us, we acquire co-ownership of the new object in proportion to the value of the sold good (final invoice amount including value-added tax) and that of the other processed or mixed objects at the time of processing or mixing. Where delivery or performance objects are combined or inseparably mixed by us with other movable objects into a unified good and the other good is regarded as the main good, it is agreed that the Client shall transfer proportional ownership to us to the extent that the main good belongs to the Client. The Client shall safeguard for us the resulting sole ownership or proportional ownership.
The same shall apply to the good that results from processing, restructuring, combining or mixing as to the delivery or performance object that has been delivered subject to retention of title.
- We are entitled to insure the delivery or performance object at the Client’s expense against theft or damage due to breakage, fire, water or other damage unless the Client can provide evidence of having already insured the object.
- The Client is entitled to resell the delivery or performance object in the ordinary course of business if retention of title has been agreed. The Client is not entitled, however, to pledge the object or transfer it as security. The Client hereby cedes to us all claims and ancillary rights arising from the sale or other assignment of the reserved goods. To the extent that an object is sold or otherwise assigned together with goods to which third parties hold claim, only the proportional amount corresponding to the gross invoice amount of the reserved good is ceded to us. The ceded claims serve as security for all claims arising from the invoice submitted to the Client.
Even after ceding the claim, the Client retains authorisation to collect it. Our authority to collect the claim ourselves remains unaffected by this. We nevertheless undertake not to collect the claim for as long as the Client fulfils its payment obligations to us arising from the proceeds received, does not fall into payment arrears, does not apply to initiate composition or insolvency proceedings, does not initiate composition or insolvency proceedings that take into account obligations accruing to the Client from its ownership, or does not suspend payment. Should any of this occur, we can demand that the Client divulge to us the ceded claims and their debtors, provide all information required for collection, turn over to us the relevant documentation and inform the debtors (third parties) regarding the assignment. Under the same requirements, we are entitled to revoke the resale and/or reprocessing of the reserved good and to collect the reserved good immediately and for this purpose to enter the Client’s business and storage facilities unimpeded and at our discretion to recover the good.
- The Client must promptly communicate to us by registered letter any access by third parties to the delivery or performance objects and claims belonging to us. The Client shall reimburse us for the costs involved in our defence against the intervention of third parties.
- Should the total realisable value of the securities we hold exceed our claims by greater than 10 per cent, we are obligated, upon the Client’s request, to release the excess securities, with the choice of securities to be released falling to us.
- Application to initiate composition or insolvency proceedings concerning the Client’s assets entitles us to withdraw from the contract and demand the immediate return of the delivery object.
§ 7 Warranty
- Any claims of defect asserted by the Client require that the Client duly comply with the inspection and reproof obligations imposed under Section 377 HGB [German Commercial Code]. No claims of defect will be considered regarding merely negligible deviation from the agreed condition or merely negligible impairment to usability.
- Claims for compensation regarding guarantee, material defect and damage are excluded to the extent that deterioration of the good is due to natural wear and tear or the Client’s improper handling of the delivery or performance object. This shall especially apply to the Client’s modification of the delivery or performance object claimed to be faulty. Liability for material defect is further excluded for defects not already affecting the delivery or performance object at the point of transfer of risk and for defects arising from improper or misapplied use by the Client or third parties.
- To the extent that a defect exists with respect to the delivery or performance object, the Contractor is entitled at its own discretion to rectify the situation either by repairing the defect or supplying a new, defect-free delivery or performance object. In the case of repair of the defect, the Contractor shall bear the required expenses, especially costs of transport, travel, labour and materials as long as these are not increased by the fact that the delivery or performance object was brought to a location other than the place of fulfilment. Should repair of the defect prove unsuccessful, the Client is entitled at its own discretion to demand withdrawal or reduction. Repair of the defect / rectification shall only be deemed to have failed if and as soon as two rectification deadlines set by the Client have expired without success.
- The expiry deadline for claims and entitlements due to defect – regardless of legal basis – amounts to 1 year following delivery of the delivery or performance object unless a longer expiry deadline is determined by law. This shall also apply to compensation for consequential damage due to defects to the extent that no claims based on improper action ex delicto are asserted. In the cause of malicious failure to point out a defect, intentional or grossly negligent violation of an obligation, assertion of claims for compensation due to personal injury, damage to health or infringement of liberty, claims under the ProdHaftG [German Product Liability Act] and in cases of delivery recourse in accordance with Sections 478, 479 BGB, the statutory regulations apply.
§ 8 Liability
- Except for warranted characteristics or to the extent that a warranty was assumed, our liability for damage compensation extends only to intentional or grossly negligent actions regardless of the nature of the breach of obligation. Should we culpably violate an essential contractual obligation, this restriction on liability will no longer apply.
- With respect to violation of essential contractual obligations, we are liable for each violation but only up to the amount of the foreseeable, typically occurring damage. Claims of lost profits, saved expenditures arising from third-party damage-compensation claims or claims of other indirect and consequential damages cannot be demanded.
- The limitations and exclusions of liability in Paragraphs 1–4 shall not apply to claims arising as a result of wilful intent or to liability for guaranteed qualities, claims under the Product Liability Act or damage caused by the culpable violation of life, limb or health.
- To the extent that our liability is excluded or limited, this shall also apply to our employees, workers, representatives and vicarious agents.
§ 9 Lump-sum compensation
Should the Client incur liability for damage compensation in lieu of performance, we can assert this claim without evidence in the amount of 25% of the contract value. The Client expressly reserves the right to show evidence of lesser damage, and we expressly reserves the right to show evidence of greater damage.
§ 10 Jurisdiction - Place of Fulfilment
- Unless otherwise determined from our order confirmation, the Contractor’s business headquarters is the place of fulfilment.
- The place of jurisdiction for all disputes arising from the business relationship is Chemnitz.
- German law shall apply to all legal relations between the parties with the exclusion of conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods (CISG). Customary commercial clauses must be interpreted in accordance with the respective Incoterms of the International Chamber of Commerce (ICC).