GENERAL TERMS AND CONDITIONS OF INNOVATEK OS GMBH FOR INDUSTRIAL CUSTOMERS
(hereinafter referred to as “Purchaser”)
§ 1 General
(1) Our terms and conditions of business shall apply exclusively. Conflicting or deviating terms and conditions of the customer shall not become part of the contract unless we have expressly agreed to their validity in writing. Our terms and conditions shall also apply if we carry out the delivery to the customer without reservation in the knowledge of conflicting or deviating terms and conditions of the customer.
(2) All agreements made between us and the customer for the purpose of concluding the contract must be set down in writing.
(3) The terms and conditions of business apply to all services offered by us, both CAD design and other technical development services, as well as the construction and sale of prototype parts.
§ 2 Contract offer
(1) If the order is to be qualified as an offer in accordance with § 145 BGB (German Civil Code), we can accept this within four weeks.
(2) We reserve the property rights, copyrights and other industrial property rights to illustrations, drawings, calculations and other documents. They may not be made accessible to third parties without our express written consent.
§ 3 Prices
(1) Unless otherwise stated in the order confirmation, our prices are net prices in euros ex works excluding packaging. This will be invoiced separately.
(2) The statutory value added tax is not included in our prices. It will be shown separately in the invoice at the statutory rate on the day of invoicing.
(3) The agreed prices shall only apply to the order concluded in each case and shall not be binding, even for repeat orders.
(4) The deduction of a discount requires a special written agreement
§ 4 Terms of payment
(1) Unless otherwise stated in the order confirmation, the net purchase price (without deductions) is due for payment within 14 days of the invoice date.
(2) If the customer is in default of payment, we shall be entitled to demand interest on arrears in the amount of 4% above the respective discount rate of the European Central Bank per annum. We reserve the right to claim higher damages for default.
(3) The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognised by us. Furthermore, he shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 5 Delivery time
(1) performance or delivery dates are only binding for us if we have confirmed them as such in writing. They shall be deemed to have been met if we report readiness for dispatch on the agreed date. The start of the delivery period stated by us presupposes the clarification of all open technical questions.
(2) We shall only be liable for damages caused by delay and non-performance up to the amount of the order value, unless the damage is due to intent or gross negligence on our part or on the part of our vicarious agents.
(3) If the delivery is delayed due to events that are unavoidable for us and unforeseeable at the time of conclusion of the contract (e.g. operational disruptions, failure of IT systems, etc.), the delivery period shall be extended appropriately, but by a maximum of two months. If delivery becomes impossible due to these events through no fault of our own, we shall be released from our obligation to perform.
(4) If, after we have already fallen into arrears, the customer sets us a reasonable period of grace with the threat of refusal, he shall be entitled to withdraw from the contract after the fruitless expiry of this period of grace. The customer shall only be entitled to claims for damages due to non-performance in the amount of the foreseeable damage if the delay is due to intent or gross negligence.
(5) If a commercial fixed-date transaction has been agreed, the customer may withdraw from the contract without granting a grace period if the delivery date is not met. Likewise, in the event of a delay for which we are responsible, he may assert the cessation of the basis of the business (of his interest in the performance of the contract).
(6) Compliance with our delivery obligation presupposes the timely and proper fulfilment of the purchaser’s obligations. If the customer is in default of acceptance or violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the object of sale shall also pass to the customer at the point in time at which the customer defaults on acceptance.
§ 6 Transfer of risk
(1) Unless otherwise stated in the order confirmation, delivery ex works is agreed. The risk of accidental deterioration or accidental loss shall pass to the customer when the goods leave the factory. If the shipment is delayed for reasons for which we are not responsible, the transfer of risk shall take place upon notification of readiness for shipment.
(2) transport insurance can be taken out at the request of the purchaser. The costs incurred in this respect shall be borne by the customer.
§ 7 Warranty for defects
(1) The purchaser’s warranty rights presuppose that the purchaser has duly fulfilled its obligations to inspect and give notice of defects in accordance with § 377 of the German Commercial Code (HGB). This applies not only to the prototype parts, but also to data sets and other services and purchased goods offered by us.
(2) For technical reasons, prototypes made of plastic are not dimensionally stable over a longer period of time. The prototype parts can change their dimensional accuracy, shape and strength within 12 weeks after manufacture, depending on the material used. If stored under unfavourable conditions, this can also occur earlier. We cannot assume any warranty for the behaviour of the prototype parts under chemical or physical influence outside the normal range. Prototype parts supplied by us are intended and suitable exclusively for trial and testing purposes. The purchaser/user must take this test part character into account when using them as intended in order to avoid accidental and consequential damage.
(3) The customer is obliged to notify us of any defects within five working days of handover.
(4) If there is a defect in the object of sale for which we are responsible, we shall be obliged to remedy the defect or to make a replacement delivery at our discretion. In the event of rectification of the defect, we shall be obliged to bear all expenses necessary for the rectification of the defect, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the purchased item was taken to a place other than the place of performance.
(5) if subsequent performance fails, the customer shall be entitled, at its option, to withdraw from the contract or to demand a corresponding reduction in the purchase price.
(6) Unless otherwise stated below, any further claims of the customer, irrespective of the legal grounds, are excluded. We are therefore not liable for damage that has not occurred to the delivery item. In particular, we shall not be liable for loss of profit or other financial losses of the customer.
(7) The above exemption from liability shall not apply if the cause of the damage is based on intent or gross negligence. Furthermore, it shall not apply if the customer asserts claims for damages on account of non-performance due to the absence of a warranted characteristic.
(8) If we negligently breach a material contractual obligation, our liability shall be limited to the foreseeable damage. Insofar as claims are based on the Product Liability Act, our liability to pay compensation shall be limited to the benefit of our business liability insurance.
(9) All warranty claims shall expire as soon as the customer has used an item improperly or has attempted to repair a defect himself without our written consent, unless the improper use or the unauthorised repair has no influence on the claimed defect and does not make it more difficult to remedy the defect.
(10) The warranty period is 6 months, calculated from the transfer of risk. This period is a limitation period and shall also apply to claims for compensation for consequential harm caused by a defect, insofar as no claims in tort are asserted.
(11) The customer is solely responsible for the correctness of specifications and data on the basis of which we execute the order and which the customer makes available to us for this purpose. We shall not be liable for damages resulting from errors caused by the incorrectness of the specifications and data. We are not obliged to check these specifications.
(12) Services rendered and goods delivered shall also be accepted if they have insignificant defects for the use; insignificant changes to the goods or the service with regard to construction, form and design shall be accepted by the customer, provided they do not exceed the range of what is reasonable or they are customary quantity or quality tolerances. Reasonable partial deliveries or partial performances as well as customary or reasonable deviations from the order shall be accepted.
§ 8 Liability
(1) Any further liability for damages other than that set out in § 7 of these GTC shall be excluded regardless of the legal nature of the claim asserted.
(2) The provision pursuant to § 8 para. 1 shall not apply to claims arising from §§ 1, 4 of the Product Liability Act. The same shall apply in the event of initial inability or impossibility for which we are responsible.
(3) Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents.
(4) The statute of limitations for claims arising from the producer’s liability pursuant to § 823 of the German Civil Code (BGB) shall be governed by § 7 para. 9 of the General Terms and Conditions.
§ 9 Retention of title
(1) We retain title to all goods delivered by us until receipt of all payments arising from the business relationship with the customer. In the event of breach of contract by the customer, in particular in the event of default in payment, we shall be entitled to take back the goods. The taking back of the goods by us does not constitute a withdrawal from the contract unless we have expressly declared this in writing. The seizure of the purchased goods by us shall always constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to realise it; the proceeds of realisation shall be set off against the customer’s liabilities less reasonable realisation costs. The customer is obliged to insure our property against fire, water and theft. The claims against the insurance company are assigned to us.
(2) In the event of seizures or other interventions by third parties, the customer shall notify us immediately so that we can file a lawsuit in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of such an action, the customer shall be liable for the loss incurred.
(3) The customer shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount including value added tax which accrue to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer shall remain authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this.
(4) However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no petition in bankruptcy or composition proceedings has been filed or payments have not been suspended. 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 and hands over the relevant documents.
(5) The processing or transformation of the object of sale by the customer shall always be carried out on our behalf. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale to the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the object of sale delivered under reservation.
§ 10 Jurisdiction and place of performance
(1) German law shall apply to all orders placed with us. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
(2) The exclusive place of jurisdiction is Ingolstadt. However, we are also entitled to sue the customer at his place of residence.
(3) Unless otherwise stated in the order confirmation, the place of performance shall be Stammham near Ingolstadt.