1. Validity of the conditions
(1) Our offers are directed exclusively to entrepreneurs (Section 14 BGB [German Civil Code]). The sale of our goods to consumers (Section 13 BGB) is excluded. These terms and conditions apply to entrepreneurs only (Section 14 BGB). They shall also apply to all future transactions with the customer.
(2) Our terms and conditions of sale shall apply exclusively. We do not recognise any terms and conditions of the customer that conflict with or deviate from these terms and conditions, even through unconditional execution of the contract.
(3) All agreements made between us and the customer for the purpose of executing this contract shall be set down in writing in this contract or in an amendment contract. A cancellation or amendment shall only apply to the respective conclusion of the contract.
(4) In case of doubt, trade terms shall be interpreted based on the INCOTERMS in their latest version.
2. Conclusion of contract
(1) Our offers are subject to change. Likewise, technical descriptions and other details in offers, brochures and other information are initially non-binding.
(2) We reserve the property rights and copyrights to illustrations, drawings, calculations, specifications and other documents. Third-party access to such documents is not permitted.
(3) The order placed by the customer by signing shall be deemed to have been accepted by us if it is confirmed in writing, verbally or by phone, or if we do not reject the acceptance within two weeks. The deadline shall be deemed to have been met if the rejection letter's dispatch date — according to the postmark — falls within this period.
(4) Information within the meaning of para. 1 as well as in public statements on our part, by other manufacturers and their assistants (Section 434 I 3 BGB) shall only become part of the performance description if it is expressly referred to in this contract or in the order confirmation.
(5) Verbal agreements, promises, assurances and guarantees in connection with the conclusion of the contract shall only become binding upon our written confirmation.
3. Prices and payment terms
(1) Unless otherwise agreed, our prices are net "ex delivery warehouse" and include standard packaging. Additional expenses, such as for the conclusion of insurance policies, shall be borne by the customer. If we have undertaken the installation, assembly or commissioning and unless otherwise agreed in writing, the customer shall bear all necessary ancillary costs such as travel expenses etc. in addition to the agreed remuneration.
(2) In the event that a change to the costs incurred by us for the delivery occurs within four months after submission of the offer or order confirmation, e.g. due to subsequent introduction or increase of levies, taxes or other charges on the goods, in particular EU levies and anti-dumping or countervailing duties as well as changes in currency parities, we shall be entitled to adjust the offered or agreed price accordingly.
(3) Purchase price payments shall be made immediately upon receipt of the goods, at the latest within 30 days of the invoice date in cash or by bank transfer. They shall be deemed to have been made effective from the date on which the amount is freely available to us. We grant a 2% discount for payment within 14 days. Any taxes or customs duties etc. levied in the recipient country for the transaction shall be borne by the customer.
(4) Other forms of payment require special written agreement. Any costs incurred on both sides as a result shall be borne by the customer.
(5) The customer shall only have a right to offset or a right of retention in respect of undisputed or legally established claims or entitlements.
4. Delivery and duties to cooperate
(1) The scope of our delivery obligation results exclusively from this contract. We reserve the right to make changes to the design, shape and colour based on an improvement in technology or on the requirements of the legislator, insofar as the changes are not substantial or otherwise unreasonable for the customer. The customer assumes full responsibility for the documents to be supplied by him, such as drawings, models and samples.
(2) Provided they are reasonable for the customer, partial deliveries may be made and invoiced.
(3) The delivery period shall commence on the date of our written order confirmation. If all implementation details have not been clarified by then, it shall be postponed until they have been finally clarified. Delivery deadlines are always stated subject to the customer's cooperation in accordance with the contract. The timely and proper fulfilment of the customer's obligations is a pre-requisite for compliance with our delivery obligation. Subsequent changes requested by the customer and failure to provide documents to be supplied by the customer (e.g. required permits and releases) in a timely manner shall result in a corresponding extension of the delivery period. The delivery period shall be deemed to have been met if the delivery item is ready for dispatch within the agreed period and we have notified the customer accordingly.
(4) If we ourselves do not receive deliveries despite having placed corresponding orders with reliable suppliers, we shall be released from our obligation to perform and may withdraw from the contract.
(5) If the customer is in default with the call-off, acceptance or collection or if he is responsible for a delay in dispatch or delivery, without prejudice to any further claims, we shall be entitled to demand a flat-rate fee in the amount of the usual local storage costs, irrespective of whether the goods are stored on our premises or at a third-party site. The customer shall be entitled to prove that no damage or a lower damage has been incurred.
(6) In the event that the contract is unjustifiably cancelled by the customer, we shall be entitled to demand 20% of the gross order value as a lump sum for damages (compensation in lieu of performance). The same shall apply if the contract is not performed for reasons for which we are not responsible. The customer shall be entitled to prove that no damage or a lower damage has been incurred.
(7) Goods or services that were manufactured or provided in accordance with the customers' specific wishes shall be excluded from the regulation in accordance with paragraph 6 above. In this case, we reserve the right to assert further claims for damages.
(8) If we have also undertaken to install and commission equipment, the customer shall make all necessary preparations for this. In particular, he shall provide us with a suitable installation site in good time. Any expenses or additional costs arising from non-compliance with this obligation shall be borne by the customer.
5. Delays in delivery
(1) If the agreed deadline cannot be met as a result of circumstances beyond our control impacting us or our suppliers (e.g. natural disasters, war, riots, intervention by public authorities, energy shortages, industrial disputes, etc.), the deadline shall be extended accordingly. In such cases, we shall inform the customer without delay. If the impeding circumstances still persist one month after expiry of the agreed delivery period, either party may withdraw from the contract. Further claims due to the delivery period being exceeded through no fault of our own are excluded.
(2) If the customer incurs damage in the event of a delay in delivery, he shall be entitled to demand a lump-sum compensation for delay amounting to 3% of the delivery value for each full week, up to a maximum of 10% of the delivery value. The customer may also set us a reasonable grace period, which must be at least 15 working days, and must do so in writing. If this period expires to no avail, he shall be entitled to withdraw from the contract or to demand compensation for damages instead of performance. The liability for damages shall be limited to 50% of the damage incurred.
(3) Paragraph 2 shall not apply if the delay is due to intent, gross negligence or a material breach of duty. Nor shall it apply if a commercial fixed-date transaction has been agreed.
6. Place of performance and transfer of risk
The place of performance is our registered office. Unless otherwise stated in the order confirmation, delivery is agreed "ex delivery warehouse". This applies irrespective of who bears the freight costs, even if the delivery is made in individual parts. If the delivery is delayed due to circumstances for which the customer is responsible, the risk shall be transferred to the customer upon notification of readiness for dispatch.
7. Defects
(1) With regard to defects, the customer shall initially be subject to the statutory obligation to inspect and give notice of defects pursuant to Section 377 HGB [German Commercial Code]. Notice of recognisable defects must be given in writing within 7 days. Otherwise, the entire delivery shall be deemed to have been approved. The obligation to inspect also includes the documentation supplied.
(2) The customer may not derive any further rights from material defects which do not impair the value and suitability of the goods for the use recognisable to us, or only do so to an insignificant extent.
(3) If the goods are found to be defective at the time of transfer of risk, we shall be entitled and obliged to subsequent performance. Subsequent performance shall be effected at our discretion by repair or replacement delivery, insofar as this is reasonable for the customer. The costs of subsequent performance, in particular transport, travel, labour and material costs, shall be borne by us. Section 439 para. 3 BGB continues to apply. We are entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
(4) If subsequent performance fails, is unreasonable for the customer, does not take place within a reasonable period set by the customer or is refused, the customer shall be entitled, at its option, to withdraw from the contract, to demand a decrease of the purchase price corresponding to the value of the defect (reduction) or – within the limits of the following Clause 8 – to demand compensation for damages in lieu of performance.
8. Compensation for damages
(1) Unless anything the contrary arises from these terms and conditions including the following provisions, in the event of a breach of contractual and non-contractual obligations, we shall be liable in accordance with the relevant statutory provisions.
(2) We shall be liable for damages – irrespective of the legal grounds – in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable
a) for damages resulting from injury to life, body or health,
b) for damages arising from the breach of an essential contractual obligation. In this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage. An essential contractual obligation in this sense is any obligation that makes the proper fulfilment of the contract possible in the first place and on whose compliance the other party relies and may rely.
(3) Further contractual and tortious claims of the customer are excluded. We shall therefore not be liable particularly for damage that has not occurred to the delivery item itself, nor for loss of profit or other financial losses of the customer.
(4) The limitations of liability resulting from the above paragraphs 2 to 4 shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same shall apply to claims of the customer under the Product Liability Act [Produkthaftungsgesetz]. In case of doubt, declarations regarding the quality of our products shall only constitute a guarantee if we have expressly designated them as such.
(5) Insofar as our liability is excluded or limited, this shall also apply to the personal liability of my employees, workers, staff, representatives and vicarious agents.
9. Statute of limitation
(1) Subject to Sections 438 No. 2, 479 BGB, the customer's claim for subsequent performance shall become statute-barred one year after delivery of the goods. Accordingly, the right of withdrawal and reduction in accordance with the statutory provisions is excluded.
(2) Subject to Sections 438 No. 2, 479 BGB, the limitation period for claims for damages shall be one year.
(3) For claims under the Product Liability Act and in cases of intent and gross negligence, the statutory limitation period shall apply.
10. Property rights, confidentiality
(1) The customer is obliged to pro-actively check any infringement of industrial property rights which appears possible at the time of order placement based on the specifications provided by him and, if necessary, to draw our attention to the fact that the order involves parts which are effectively protected by industrial property rights. He shall assume all liability for claims asserted against us by an entitled party for this reason in execution of his order.
(2) Our trade secrets as well as all confidential information about us shall be treated as strictly confidential and may not be made accessible to third parties without our express consent, unless the customer proves that he is entitled to use trade secrets and confidential information.
11. Retention of title
(1) The ownership of the delivered goods shall remain reserved until all our claims against the customer arising from the business relationship, including future claims arising from contracts concluded at the same time or later, have been settled. This shall also apply if claims have been included in a current invoice and the balance has been struck and recognised.
(2) The customer is entitled to sell or process the goods in the ordinary course of business. He is only obliged to resell the goods subject to retention of title in the event that they are not paid for immediately by the third-party purchaser. He shall carry out any processing on our behalf without any obligation on our part arising from this. In the event of processing, combination or mixing of the reserved goods with other goods, a co-ownership share in the new item shall generally arise for us, namely in the event of processing in the ratio of the value (= gross invoice value including ancillary costs and taxes) of the reserved goods to the value of the new item, in the event of combination or mixing in the ratio of the value of the reserved goods to the value of the other goods.
(3) The customer hereby assigns to us all claims accruing to him from the resale against a purchaser or against third parties. He shall remain authorised to collect these claims even after the assignment. This shall not affect our right to collect the claims ourselves. However, we shall not exercise this right as long as the customer duly fulfils his payment and other obligations. Upon request, the customer shall inform us of the assigned claims and their debtors, provide all information necessary for collection, furnish the associated documents and inform the debtors of the assignment.
(4) In the event of breach of contract by the customer, particularly default in payment, we shall be entitled to withdraw from the contract and to take the goods back. The customer hereby irrevocably allows us to enter his business and storage premises without hindrance and to take the goods with us for the purpose of taking the goods back.
(5) Insofar as and as long as the reservation of title exists, the customer may neither assign as security nor pledge goods or items manufactured from them without our consent. Conclusions of financing contracts (e.g. leasing), including the transfer of our rights of retention, require our prior written consent, unless the financing institution is contractually obligated to pay to us directly the purchase price share to which we are entitled.
(6) In the event of garnishments and other third-party interventions, the customer must notify us immediately in writing. He is prohibited from entering into agreements with his customers which could impair our rights. He is obliged to insure the reserved goods against theft, machine, fire and water damage without delay.
(7) We undertake to release the securities to which we are entitled at the customer's request and at our discretion to the extent that the realisable value of the securities exceeds the claims to be secured by over 20% or their nominal amount by over 50%.
12. General
(1) The customers' rights under this contract are non-transferable.
(2) Should any individual provisions be invalid, this shall not affect the validity of the remaining provisions.
(3) If the customer is a merchant, the place of jurisdiction for all disputes with him shall be our registered office. This place of jurisdiction is not exclusive for Offset-Service Hubert Bollmann GmbH.
(4) German law shall exclusively apply with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
13. Other information
We are not willing or obliged to participate in dispute resolution proceedings before a consumer arbitration board.
Version date: 01/2023
