Terms and Conditions
General Terms and Conditions for Deliveries, Works and Services of Eugen Arnold GmbH
§ 1 Scope of application
- These General Terms and Conditions shall only apply to entrepreneurs in the exercise of their commercial or independent professional activity and to legal entities under public law. They also apply to all future deliveries, work and services that we perform for the customer, even if they are not separately agreed again in subsequent contracts.
- All our deliveries, work and services (hereinafter also referred to jointly as “service(s)”) shall be performed exclusively on the basis of these General Terms and Conditions. These are an indispensable part of all contracts that we conclude with our contractual partners (above and hereinafter also referred to as “Customer”) for the services to be provided by us. We do not recognise any terms and conditions of the Customer that are contrary to, additional to or deviate from these General Terms and Conditions unless we have expressly agreed to their validity in writing. These General Terms and Conditions shall also apply if we perform a service for the customer without reservation in the knowledge of the customer’s conflicting, additional or deviating terms and conditions.
- All conflicting, additional or deviating agreements to these General Terms and Conditions made between us and the customer for the purpose of executing a contract shall be set out in writing in the contract. This shall also apply to the cancellation of this written requirement. Transmission by fax or by e-mail, including the transmission of electronic documents (e.g., scans) by e-mail, shall be sufficient to comply with the requirement of writing.
- Rights to which we are entitled under statutory provisions or under other agreements beyond these General Terms and Conditions shall remain unaffected.
§ 2 Offer and conclusion of contract
- Our offers are subject to change and non-binding, unless we notify otherwise.
- By placing an order, the customer bindingly declares that he wishes to purchase the ordered goods or to receive our work or service. A contract is concluded when we confirm the order in writing or when we execute the order, in particular by sending the goods or by providing the work or service. An order confirmation produced with the aid of automatic equipment in which the signature and name are missing shall be deemed to be in writing.
- Our information on the object of the delivery or work or service (e.g., weights, dimensions, colour, utility values, load capacity, tolerances and technical data) as well as our representations of the same (e.g., drawings and illustrations) are only approximately authoritative unless they are expressly designated as binding in writing. They do not constitute an agreement or guarantee of a corresponding quality or durability of the goods or work or service unless they have been expressly agreed as such.
- Insofar as the customer and we have agreed on a condition (in particular type, quality, functionality, compatibility, interoperability), a specific intended use, specific accessories or specific instructions, only this condition, the suitability for this intended use, these accessories and these instructions are owed. In this respect, in particular, the usual use of the goods or the condition of the goods, the accessories or the instructions which the customer may expect without any further agreement shall not be relevant. This does not apply insofar as a consumer goods purchase (end customer is a consumer) takes place at the end of the supply chain.
- If we manufacture goods according to the customer’s drawings or otherwise according to the customer’s specifications, we are only obliged to ensure that the goods correspond to the customer’s drawings or comply with the customer’s specifications. On the other hand, we do not owe (unless otherwise agreed in writing) that the goods fit into any overall system of the customer. Furthermore, the customer acknowledges and agrees that (also subject to any written agreement to the contrary) we do not warrant that our deliveries and services will achieve any particular results or objectives. Furthermore, the customer is aware that results, if they are based on small-scale technical testing and/or theoretical studies, require an individual, very careful evaluation in order to be extrapolated to the production stage or series production, which is also not owed by us (subject to a written agreement to the contrary).
- The customer shall be responsible for testing and assessing whether the goods, the material or the work is suitable for the use intended by the customer. Unless otherwise agreed in writing, we are not obliged to test the suitability of the goods, the material or the work for the intended use. Any agreed suitability test by us shall not release the customer from its obligation to check the suitability of the goods or the work for the intended use.
- We reserve the ownership and all copyrights and other industrial property rights to all offers and cost estimates submitted by us as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the customer (hereinafter jointly referred to as “items”). The customer may not make these items accessible to third parties, disclose them, use them himself or through third parties or reproduce them without our prior written consent, either as such or in terms of content. At our request, he must return these items to us immediately and in full and destroy any copies made if they are no longer required by him in the ordinary course of business.
- The customer warrants that the drawings and other information provided by him are suitable and accurate to size, correspond to the actual conditions and do not infringe the property rights of third parties. If there are extraordinary climatic or other extraordinary conditions at the place of installation, the customer must inform us of this in writing when placing the order. If the customer violates sentence 1 or sentence 2 of this paragraph, the customer shall reimburse us for the additional expenses caused thereby, unless he is not responsible for the violation of duty. Our further claims remain unaffected. We shall not assume any liability for damage and defects based on incorrect or incomplete information provided by the customer.
- If the justified application for the opening of insolvency or comparable proceedings against the customer’s assets is rejected for lack of assets, we shall be entitled to withdraw from the contract in whole or in part.
§ 3 Scope of performance, changes to the performance
- Our written order confirmation shall be decisive for the scope of performance. Changes to the scope of performance by the customer require our written confirmation to become effective.
- We reserve the right to make changes to the goods in terms of construction, form and/or design that do not affect the functionality or value of the goods and do not constitute a defect. Deviations that are customary in the trade or industry, deviations that occur due to legal regulations or represent technical improvements, deviations that are within the DIN tolerances and deviations that are not significant and are reasonable for the customer are also reserved.
- We are entitled to have the services performed in whole or in part by a third party.
- Tools, moulds and similar items which we use for the performance of services shall remain our property unless the tools, moulds or similar items are sold to the customer or unless we have agreed otherwise in writing with the customer.
§ 4 Delivery, dispatch, packaging, place of performance
- Unless otherwise agreed in writing, all deliveries shall be ex works. The delivery shall be uninsured unless the customer requests in writing that the delivery be insured against theft, breakage, transport, fire and water damage or other insurable risks. The associated costs shall be borne by the customer.
- Delivery in parts is permissible unless delivery in parts is unreasonable for the customer taking into account our interests.
- We are entitled to make excess or short deliveries of up to 5% of the agreed delivery quantity. This applies both if the delivery is made as a whole and if the delivery is made in parts. In this respect, claims for defects are excluded. The delivery price remains unaffected by this.
- The method of dispatch and the packaging are subject to our dutiful discretion.
- The place of performance for all services shall be our registered office, unless it is a question of any subsequent performance obligations, we owe services at a location outside our registered office (e.g., installation at the customer’s premises) or otherwise nothing else has been stipulated in writing.
§ 5 Materials provided
- f the customer has to provide its own materials (referred to above and hereinafter as “materials provided”), the customer shall deliver them at its own expense and risk in good time and in perfect condition to the delivery address specified by us. If a delivery date or a delivery period has been agreed, the delivery shall be on time if it is made properly by the delivery date or within the delivery period.
- We shall be entitled to charge the customer several times for processing if we have had to process the materials provided several times as a result of faulty materials provided. Furthermore, the customer shall be obliged to reimburse us for any damage incurred by us as a result of improper, in particular untimely, delivery of the materials provided or defective materials provided. This applies in particular to any machine downtime, insofar as we have justifiably kept the machines required for the processing or machining of the materials provided free for the customer and insofar as we are unable to use the machines for other orders during this time. The obligation to pay damages shall not apply if the customer is not responsible for the improper delivery of the materials provided. Our further claims remain unaffected.
- We do not carry out any incoming goods inspection with regard to the provision of goods.
§ 6 Performance of the Services and Preparation of the Work Objects
- If, in the course of a delivery, we incorporate our goods into an overall system of the customer, e.g. by assembling or installing our goods in an existing system of the customer, or if we perform work or services on a system of the customer (referred to above and hereinafter as “work object”) or similar, the customer must prepare the work object completely and properly for the execution of the order, in particular in accordance with all safety requirements, so that proper performance of the service is possible for us at the agreed place, at the agreed time and in the agreed manner. The client remains responsible for the care and supervision of the work object. Should the customer fail to provide us with the object of the work properly, in particular not in good time, we shall be entitled to refuse to provide the service to that extent and/or to charge the customer for all associated costs. Our further claims remain unaffected.
- The customer shall inform us in good time and in full in writing if work has been or will be carried out on the work object by its own employees or third parties and this work is or may be connected with the services owed by us or may otherwise have an effect on our services owed. Such work shall be carried out exclusively at the risk of the customer. In addition, the customer shall inform us in good time before the start of performance of any special features or occurrences at the object of the work which are or may be connected with the services owed by us or which may otherwise have an effect on our services owed.
- Furthermore, the customer is obliged to sufficiently protect the work object as well as all work areas and work pieces that are or may be affected by our performance of services from risks and other dangers in good time at its own expense; in particular, the customer shall sufficiently protect outdoor work objects from wetness or other weather influences in good time. The customer is aware that a breach of this obligation may have an impact on our performance, in particular that the goods delivered by us may no longer be fully functional if, for example, they are exposed to wetness or other weather influences.
- The customer shall ensure in good time and at its own expense that we are not exposed to any toxic substances, hazardous goods, harmful waste or similar when performing the services owed on the work object. If the customer does not properly comply with this obligation, we are entitled to refuse to provide the service to this extent and/or to charge the customer for all costs associated with this breach of obligation.
- The employees and all persons provided by the Client for the performance of the service or otherwise present during the performance of the service shall observe all statutory provisions as well as our instructions and conditions with regard to the performance of the contract and shall legitimise themselves vis-à-vis us.
§ 7 Time of performance
- Deadlines and dates for deliveries, work or services promised by us (above and hereinafter uniformly referred to as “performance times”) shall always apply only approximately, unless a fixed deadline or a fixed date has been expressly agreed in writing.
- Delivery and/or performance deadlines shall commence upon receipt of our order confirmation by the customer, but not before all details of the execution of the order have been clarified and all other prerequisites to be fulfilled and necessary cooperation to be provided by the customer are available or have been provided, in particular the customer has properly delivered agreed provisions or has made an agreed down payment or, in the case of a foreign transaction, a full payment. In the event of a delivery and/or service date, the delivery and/or service date shall be postponed appropriately if not all details of the execution of the order have been clarified or not all other prerequisites to be fulfilled by the customer or necessary cooperation services have been provided or rendered, in particular if the customer has properly delivered agreed provisions or has made an agreed down payment or, in the case of a foreign transaction, has made a full payment. If the customer has requested changes after the order has been placed and we have agreed to the change in writing, the delivery and/or performance period shall be extended or the delivery and/or performance date shall be postponed in a reasonable manner. Compliance with the delivery period is subject to the timely and proper fulfilment of the customer’s other obligations.
- The time of performance shall be deemed to have been complied with if, in the case of deliveries, the goods have left the factory by the time of expiry of the time of performance or if we have given notice of readiness for collection or dispatch or, in the case of works or services, we have commenced performance by the time of expiry of the time of performance. Compliance with the performance time is subject to our proper, in particular timely, self-delivery, unless we are responsible for the reason for the improper self-delivery. We are entitled to withdraw from the contract in the event of improper self-delivery. We shall inform the customer without delay if we exercise our right to withdraw from the contract and return any advance payments made by the customer.
- The customer may only withdraw from the contract due to exceeding a performance period if he has set us a reasonable grace period after expiry of the original performance period and we have not performed the service within the grace period.
§ 8 Prices and payment, set-off and right of retention, plea of uncertainty
- The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be charged separately. Unless otherwise agreed in writing, the prices shall apply in EURO, ex works and do not include packaging, freight, postage, insurance, customs, other expenses or duties and statutory taxes. The costs incurred in this respect, in particular the costs for packaging, freight, postage, insurance, customs, other expenses and duties, shall be invoiced separately. The statutory value added tax shall be shown separately in the invoice at the statutory rate applicable on the date of invoicing.
- Insofar as production-related or other price increases (e.g. due to increases in wage costs, ancillary wage costs, social security contributions or material and energy costs or product procurement costs due to environmental regulations or the introduction or significant increase of taxes or customs duties) occur by the date of delivery or provision of the work or service, we shall be entitled to adjust the prices within the scope of the changed circumstances and without calculating any additional profit.
- Unless fixed prices have been expressly agreed, the agreed prices are based on our list prices and the delivery or performance of the work or service is to take place more than four months after conclusion of the contract, our list prices valid at the time of delivery or performance of the work or service shall apply (in each case less any agreed percentage or fixed discount). The entry of the list price applicable on the date of the order in an order form or an order confirmation shall not be deemed to be an agreement on a fixed price. In the event of price increases of more than 5%, the customer shall be entitled to withdraw from the contract to this extent. At our request, the customer shall declare without delay whether it will exercise its right of withdrawal.
- Invoice amounts are to be paid within thirty days of the invoice date without any deductions, unless otherwise agreed in writing. The date of receipt by us shall be decisive for the date of payment. In the event of default in payment, the customer shall pay interest on arrears at a rate of 9 percentage points above the base rate per annum. The assertion of higher interest and further damages in the event of default shall remain unaffected.
- In the case of foreign transactions, payment shall be made in deviation from the above paragraph (4) before delivery, unless otherwise agreed in writing in advance.
- Cheques are only accepted on account of performance. The fulfilment effect shall only occur when the respective amount has been irrevocably credited to us. The customer shall bear the costs incurred as a result of payment by cheque, in particular cheque charges.
- The customer may only offset a counterclaim that is undisputed or legally established. The customer is only permitted to assert a right of retention if it is based on the same contractual relationship.
- We are entitled to refuse outstanding deliveries or work or services until receipt of an advance payment or security deposit if it becomes apparent after conclusion of the contract that our claim to payment for our delivery or work or service is jeopardised by the customer’s lack of ability to pay. This is particularly the case if we become aware of circumstances which are likely to significantly reduce the creditworthiness of the customer. Our further rights and claims remain unaffected.
- Despite provisions to the contrary, we shall be entitled to set off payments made by the customer first against the customer’s older debts. If costs and interest have already been incurred, we shall be entitled to set off the payment against the costs, then against the interest and finally against the principal claim.
§ 9 Transfer of risk
- The risk of accidental loss and accidental deterioration shall pass to the customer at the latest when the goods are handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. In the event of collection by the customer, the risk shall pass to the customer upon notification of readiness for collection. This shall also apply if the delivery is made in parts or if we have assumed other services (e.g., shipping). If we have agreed acceptance with the customer in writing upon delivery or if our performance is a work performance, the risk shall pass to the customer upon acceptance in deviation from the above provisions.
- If the customer is in default of acceptance, we may demand compensation for the damage incurred, unless the customer is not responsible for the non-acceptance, as well as compensation for any additional expenses. In particular, we are entitled to store the goods or the work at the customer’s expense during the delay in acceptance. The costs for the storage of the goods or the work shall be set at a flat rate of 0.5% of the net invoice value per calendar week or part thereof. Our further claims remain unaffected. The customer is entitled to prove that we have incurred no costs or significantly lower costs. The same applies if the customer violates other obligations to cooperate, unless the customer is not responsible for the violation of other obligations to cooperate. The risk of accidental loss or accidental deterioration of the goods or the work shall pass to the customer at the latest at the point in time at which the customer is in default of acceptance. We are entitled to dispose otherwise of the goods or the work after the fruitless expiry of a reasonable deadline set by us and to supply the customer with a reasonably extended deadline.
- If dispatch or acceptance is delayed due to circumstances for which we are not responsible, the risk shall pass to the customer upon notification of readiness for dispatch or acceptance.
§ 10 Acceptance for deliveries and work performances
- In the case of work services, the customer is obliged to accept our contractual services within a reasonable period of time. This applies accordingly if we have agreed acceptance in the case of a delivery. Acceptance shall take place formally by signing the final documentation or an acceptance certificate or other acceptance protocol.
- If a test run or trial operation is carried out as part of the acceptance, the customer shall provide suitable employees as well as the necessary consumables, materials and all other equipment required for carrying out the test run or trial operation at its expense. The customer’s employees shall act strictly in accordance with our instructions during the test run or trial operation. The customer shall bear the risk of any operating errors by its employees during the test run and trial operation. This shall not apply insofar as the customer’s employees act exclusively in accordance with our instructions.
- Both parties may demand a formal partial acceptance from the other party. A partial acceptance can be made in particular for definable (physical) parts of the respective performance. However, partial acceptance may also take place in particular in cases where the test run or trial operation includes a thermal test. In these cases, partial acceptance shall take place as soon as the test run or trial operation, with the exception of the thermal test, has been completed. The regulations on acceptance shall apply accordingly to the partial acceptance.
- The customer may only put the goods or the work into operation after successful and complete (final) acceptance. Partial acceptances do not entitle the customer to commissioning.
- Formal acceptance shall be deemed equivalent in particular if we have set the customer a reasonable deadline for acceptance after completion of the services and the customer has not refused acceptance within this deadline, stating at least one defect. Furthermore, it shall be deemed equivalent to written acceptance in particular if the customer puts the goods (in the case of delivery) or the work (in the case of work performances) into use or resells them contrary to paragraph 4 above or if the customer waives acceptance with our written consent.
- Acceptance may not be refused due to insignificant defects. In particular, the customer may not refuse acceptance if any agreed acceptance criteria have been met.
§ 11 Claims for Defects in Deliveries and Services
- In the case of deliveries, the customer’s rights in respect of defects presuppose that he has inspected the delivered goods on delivery (or in the case of an agreed acceptance on acceptance), also by trial use if reasonable, and has notified us in writing of any obvious defects without delay, at the latest two weeks after delivery of the goods (or in the case of an agreed acceptance on acceptance). Hidden defects must be notified to us in writing immediately after their discovery. The customer must describe the defects in writing when notifying us. In addition, the customer must comply with the specifications, notes, guidelines and conditions in the technical notes, assembly, operating and operating instructions and other documents for the individual goods during the planning, construction, assembly, connection, installation, commissioning, operation and maintenance of the goods, and in particular must properly carry out and provide evidence of maintenance and use recommended components. Claims for defects arising as a result of a breach of this obligation are excluded.
- In the event of defects in the goods, we shall be entitled, at our discretion, to subsequent performance by remedying the defect (in the case of deliveries and work performances) or by delivering goods free of defects (in the case of deliveries) or by remanufacturing the work (in the case of work performances). Replaced parts become our property and are to be returned to us.
- If we refuse subsequent performance, if it has failed, if it is delayed beyond a reasonable period for reasons for which we are responsible or if it is unreasonable for the customer, the customer may, without prejudice to any claims for damages or reimbursement of expenses, at its option and in accordance with the law, withdraw from the contract or reasonably reduce the purchase price.
- No claims for defects shall arise for defects due to natural wear and tear, in particular in the case of wearing parts, faulty or negligent handling, faulty assembly, faulty storage or faulty use by the customer or third parties, and for defects due to unsuitable operating materials, replacement materials, faulty construction work or unsuitable building ground. The same applies to defects due to weathering, thermal, chemical, electrochemical or electrical influences and to defects otherwise attributable to the customer or due to a technical cause other than the original defect.
- We do not assume any guarantees, in particular no quality or durability guarantees, unless otherwise agreed in writing in individual cases.
- The limitation period for the customer’s claims for defects is one year, unless a consumer goods purchase (end customer is a consumer) takes place at the end of the supply chain. If the defective goods have been used for a building in accordance with their customary use and have caused its defectiveness (in the case of deliveries) or if it is a defect in a building (in the case of deliveries and work performances) or if it is a defect in a work the success of which consists in the provision of planning and monitoring services for a building (in the case of work performances), the limitation period shall be five years. The limitation period of one year shall also apply to claims in tort based on a defect in the goods or the work. The limitation period begins with the delivery of the goods in the case of deliveries and with the acceptance in the case of works. The limitation period of one year does not apply to our unlimited liability for damages arising from the breach of a guarantee or from injury to life, body or health, for intent and gross negligence and for product defects or insofar as we have assumed a procurement risk.
- Claims for defects for used goods are excluded. Used goods are goods that have already been put into operation. Our liability according to § 13 of these General Terms and Conditions remains unaffected.
§ 12 Third-party property rights
- The customer warrants that the manufacture, delivery and use of the goods or works do not infringe any domestic or foreign patents, utility models, licences or other industrial property rights and copyrights of third parties, insofar as the goods or works are manufactured according to the drawings or other specifications of the customer. If a claim is made against us by a third party on account of an infringement of such rights due to the manufacture, delivery or use of such goods or works, the customer shall be obliged to indemnify us against such claims. Sentences 1 and 2 do not apply if the customer is not responsible for the infringement of such rights. Our further claims shall remain unaffected.
§ 13 Liability
- We shall be liable without limitation for damages arising from the breach of a guarantee or from injury to life, limb or health. The same applies to intent and gross negligence or insofar as we have assumed a procurement risk. We shall only be liable for slight negligence if essential obligations are breached which arise from the nature of the contract and which are of particular importance for achieving the purpose of the contract. In the event of a breach of such obligations, default and impossibility, our liability shall be limited to such damages as may typically be expected to occur within the scope of this contract. Mandatory statutory liability for product defects remains unaffected.
- 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.
§ 14 Product liability
- The customer shall not modify the goods, in particular he shall not modify or remove existing warnings about dangers in case of improper use of the goods. In the event of a breach of this obligation, the customer shall indemnify us internally against product liability claims by third parties, unless the customer is not responsible for the modification of the goods.
- If we are prompted to issue a product recall or warning due to a product defect in the goods, the customer shall cooperate to the best of its ability in the measures that we deem necessary and expedient and support us in this, in particular in determining the necessary customer-customer data. The customer is obliged to bear the costs of the product recall or warning, unless he is not responsible for the product defect according to product liability law principles. Our further claims remain unaffected.
- The customer shall inform us in writing without delay of any risks in the use of the goods and possible product defects of which he becomes aware.
§ 15 Force majeure
- If we are prevented from performing our obligations due to force majeure, we shall be released from our obligation to perform for the duration of the impediment and a reasonable start-up period, without being obliged to compensate the customer for damages. The same shall apply if we are prevented from fulfilling our obligations due to unforeseeable events for which we are not responsible (e.g. a pandemic, pandemic measures, significant operational disruptions, extraordinary difficulties in the procurement of materials or energy, transport delays, strikes, lockouts and other labour disputes, shortages of labour, energy or raw materials, operational disruptions of telecommunications systems or the Internet, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver, to deliver correctly or to deliver on time) make it unreasonably difficult or temporarily impossible for us to fulfil our obligations. This also applies if the events occur at a sub-supplier. Insofar as we are released from the obligation to perform, we shall refund any advance payments made by the customer.
- We are entitled to withdraw from the contract after the expiry of a reasonable period if such an obstacle lasts for more than three months and we are no longer interested in the performance of the contract as a result of the obstacle. At the customer’s request, we shall declare after the expiry of the period whether we will exercise our right of withdrawal or provide the services within a reasonable period.
§ 16 Retention of title
- The delivered goods remain our property until full payment of the delivery price and all claims to which we are entitled against the customer from the business relationship. The customer is obliged to treat the goods subject to retention of title with care for the duration of the retention of title. In particular, he is obliged to sufficiently insure the goods at his own expense against fire, water and theft damage at replacement value. At our request, the customer shall provide evidence that the insurance policy has been taken out. The customer hereby assigns to us all claims for compensation arising from this insurance. We hereby accept the assignment. If the assignment should not be permissible, the customer hereby instructs the insurer to make any payments only to us. Any further claims on our part shall remain unaffected.
- The customer is only permitted to sell the goods subject to retention of title in the ordinary course of business. Otherwise, the customer is not entitled to pledge the goods subject to retention of title, to assign them by way of security or to make other dispositions that endanger our ownership. In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing and provide all necessary information, inform the third party of our ownership rights and cooperate in our measures to protect the goods subject to retention of title. Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs incurred in enforcing our property rights, the customer shall be obliged to compensate us for the resulting loss, unless the customer is not responsible for the breach of duty.
- The customer hereby assigns to us the claims from the resale of the goods with all ancillary rights, irrespective of whether the goods subject to retention of title are resold without or after processing. We accept this assignment already now. If an assignment should not be permissible, the customer hereby instructs the third-party debtor to make any payments only to us. The customer is revocably authorised to collect the claims assigned to us in trust for us in his own name. The collected amounts are to be paid to us immediately. We may revoke the customer’s authorisation to collect as well as the customer’s authorisation to resell for good cause, in particular if the customer does not properly fulfil its payment obligations towards us, defaults in payment, stops its payments or if the customer files for the opening of insolvency proceedings or comparable proceedings for the settlement of debts in respect of the customer’s assets or if the substantiated application of a third party for the opening of insolvency proceedings or comparable proceedings for the settlement of debts in respect of the customer’s assets is rejected for lack of assets. In the event of a blanket assignment by the customer, the claims assigned to us shall be expressly excluded.
- At our request, the customer is obliged to inform the third-party debtor immediately of the assignment and to provide us with the information and documents required for collection.
- In the event of conduct in breach of contract, in particular in the event of default in payment by the customer, we shall be entitled, without prejudice to the customer’s other rights, to withdraw from the contract after the expiry of a reasonable grace period set by us. The customer shall immediately grant us or its agents access to the goods subject to retention of title and surrender them. After giving due notice, we may otherwise realise the goods subject to retention of title in order to satisfy its due claims against the customer.
- The processing or transformation of the goods subject to retention of title by the customer shall always be carried out for us. The customer’s expectant right to the goods subject to retention of title shall continue to apply to the processed or transformed item. If the goods are processed or transformed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivered goods to the other processed items at the time of processing or transformation. The same shall apply if the goods are combined or mixed with other items not belonging to us in such a way that we lose our full ownership. The customer shall keep the new items for us. For the rest, the same provisions shall apply to the item created by processing or transformation as well as combination or mixing as to the goods subject to retention of title.
- At the customer’s request, we shall be obliged to release the securities to which the customer is entitled to the extent that the realisable value of the securities exceeds our claims from the business relationship with the customer by more than 10%, taking into account customary bank valuation discounts. The valuation shall be based on the invoice value of the goods subject to retention of title and on the nominal value in the case of receivables. The selection of the items to be released is incumbent on us in detail.
- In the case of deliveries to other legal systems in which this retention of title provision does not have the same security effect as in the Federal Republic of Germany, the customer hereby grants us a corresponding security interest. If further measures are required for this purpose, the customer shall do everything to grant us such a security interest without delay. The customer shall cooperate in all measures which are necessary and conducive to the effectiveness and enforceability of such security interests.
§ 17 Secrecy
- All business secrets made accessible to the other party or otherwise becoming accessible shall be kept secret for a period of five years from the conclusion of the contract, shall be protected by suitable and appropriate measures and, unless required for the business relationship, may neither be recorded nor disclosed to third parties, used or utilised. In particular, the parties shall ensure that the business secrets of the other party are only made accessible to such employees and other staff and only to the extent that this is required for the business relationship. Objects embodying business secrets are also subject to the duty of confidentiality. In particular, the receiving party is prohibited from obtaining the trade secrets embodied therein by reverse engineering a product or item. Trade secrets within the meaning of this agreement are all data, plans, programmes, knowledge, experience, know-how, irrespective of the type of recording, storage or transmission and also irrespective of whether this information is expressly or implicitly designated as secret or confidential.
- The obligation to maintain secrecy shall not apply insofar as the business secrets of the receiving party are demonstrably already known or were generally known or generally accessible prior to the commencement of the contractual relationship or become generally known or accessible through no fault of the receiving party. The burden of proof shall be borne by the receiving party.
- The parties shall ensure by means of suitable contractual agreements with the employees, other staff and third parties working for them to whom the trade secrets of the other party become accessible in accordance with the above paragraph 1, that these are also obliged to maintain corresponding confidentiality for a period of five years from the conclusion of the contract.
- Upon request, the receiving party shall immediately and completely return all trade secrets and items to the disclosing party as well as destroy copies thereof and irretrievably delete digital data. The receiving party shall have no right of retention to the trade secrets, items or data, etc. The receiving party shall immediately confirm the destruction and irretrievable deletion to the disclosing party in writing. The obligation to surrender, destroy or irretrievably delete does not exist insofar as statutory retention obligations exist.
§ 18 Final provisions
- The legal relations between us and the customer shall be governed exclusively by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
- If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for any disputes arising from the business relationship between us and the customer shall be our registered office. However, we are also entitled to sue the customer at his general place of jurisdiction or before any other court which has jurisdiction under national or international law. Arbitration clauses are objected to.
- If a provision of this contract proves to be invalid, the contracting parties shall replace it with a valid provision that comes as close as possible to the economic purpose pursued by the invalid provision. The validity of the remaining provisions shall not be affected by the invalidity of individual provisions.
- Insofar as the contract or these General Terms and Conditions contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions if they had known about the loophole.