I. General, Scope of Application
1.1 Our Terms and Conditions (T&Cs) shall apply exclusively. Any deviating or conflicting terms and conditions of the customer, in particular purchasing conditions, are hereby expressly rejected. Our T&Cs shall also apply if we execute the contract without reservation while being aware of deviating or conflicting conditions of the customer.
1.2 Our T&Cs shall only apply to entrepreneurs within the meaning of Section 310 (1) BGB (German Civil Code).
1.3 Within the framework of an ongoing business relationship, these T&Cs shall also apply to all future, similar contractual relationships, even if they are not expressly agreed upon again.
II. Offer, Offer Documents, Order
2.1 Our offers are subject to change and non-binding, unless an express intent to be legally bound results from our written declarations. We reserve the right of prior sale/disposition.
2.2 We reserve title and copyrights to illustrations, brochures, plans, drawings, calculations, designs, and other documents – including in electronic form. These – as well as information and documents designated by us as confidential – may only be made accessible to third parties with our consent.
2.3 The customer is bound to their orders – regardless of whether they are placed in oral or written form – for 2 weeks from receipt by us. Orders placed based on plans must contain the exact quantity, size, technical description, etc., of the desired service. Otherwise, no liability is assumed for the correct implementation of the plans.
III. Order Confirmation
3.1 The contract shall be deemed concluded upon issuance of our order confirmation. The delivery time in days/weeks is calculated from the receipt of the final drawings (2D and 3D), full payment of the down payment, and approval of the tool design by the client.
3.2 If our order confirmation deviates only insignificantly in content from the order of a customer acting in a commercial capacity, the contract shall be deemed to have come into effect in accordance with the confirmation, provided the customer does not object within a period of 1 week, calculated from the date of the order confirmation.
IV. Prices, Payment Terms, Right of Withdrawal, Offsetting, Right of Retention, Partial Payments
4.1 Unless otherwise stated in the order confirmation, our prices are in Euro (€ or EUR) “ex works”. The prices are – unless already shown separately – plus the statutory value-added tax applicable on the day of invoicing. Delivery and collection costs etc., as well as packaging and pallets, will be invoiced separately, unless we have expressly confirmed a deviating arrangement in writing for the individual case.
4.2 Insofar as a price increase occurs until the performance is rendered for reasons for which we are not responsible, in particular regarding customs duties, material market prices, auxiliary materials, taxes, etc., we reserve the right to adjust the prices accordingly. If the higher price is 20% or more above the agreed price, the customer has the right to withdraw from the contract. This right must be asserted immediately after notification of the increased price.
4.3 The respective invoice amounts are due for payment immediately and free of charges. For receipt of payment within 2 weeks from the invoice date, we grant a 2% discount (Skonto) on the invoice amount. The granting of further discounts requires the express written agreement of the parties for each individual case. Bills of exchange and checks are only accepted for the sake of fulfillment, without assuming any liability for timely presentation and protesting.
4.4 If the invoice amount is not received by us within 3 weeks after the provision of our main service, in particular delivery, the customer shall be in default of payment after the expiry of this period without the need for a prior reminder. This does not involve a deferment of payment or an extension, nor a waiver of the right to demand installment payments. However, we remain entitled to bring about the customer’s default in payment before the expiry of the aforementioned period by means of a separate reminder.
4.5 If the customer is in default of payment in accordance with Section 4.4, we are entitled – without prejudice to further rights – at our discretion to make all outstanding services dependent on the prior payment of the open invoice amounts or the provision of security corresponding to the value of the subject of performance. We may then charge default interest on payment claims as a minimum damage in the amount of 8 percentage points per annum above the respective base interest rate according to Section 247 BGB.
4.6 In the event of the customer’s insolvency or over-indebtedness, cessation of payments by the customer, or the filing of an application for insolvency proceedings against the customer’s assets, we are entitled to withdraw from the contract or parts of the contract by written declaration or to make all outstanding services dependent on the prior payment of the open invoice amounts or the provision of security corresponding to the value of the subject of performance. The customer must inform us immediately of the occurrence of the aforementioned circumstances. In the event of an insolvency petition by a creditor of the customer, this must be conclusively justified.
4.7 The customer may only offset our claims arising from the contractual relationship with counterclaims that have been recognized by us in writing or have been legally established. The customer may only withhold payments for reasons based on the same contractual relationship. Section 4.8 remains unaffected.
4.8 A right of retention or right to refuse performance is only available to the customer in the event of an obviously defective service and, in this case, only to the extent that the retained amount is reasonable in relation to the anticipated costs of rectification. Furthermore, the customer is not entitled to assert claims and rights due to defects if they have not made due payments and the due amount is in reasonable proportion to the value of the – defective – service.
4.9 We reserve the right to demand partial payments in accordance with a payment plan to be agreed upon in writing. Partial payments will not be accepted without our express written consent. The above provisions shall apply mutatis mutandis to the maturity and the consequences of non-timely payment of the partial claims.
V. Performance Time, Transport Insurance, Partial Performance
5.1 We perform as soon as possible according to specified dates or periods. These are only binding if they are separately confirmed by us in writing after conclusion of the contract. Fixed dates require, in addition to written confirmation by us, the express designation as such.
5.2 Events of force majeure – including those affecting sub-suppliers –, such as labor disputes, plant closures, business interruptions, transport obstacles, shortage of raw materials, official measures, and other unavoidable circumstances shall extend performance dates or periods appropriately. In this case, we will inform the customer immediately of the unavailability of the service. Our performance dates or periods shall also be extended appropriately if the customer delays or omits required or agreed cooperation acts or causes changes regarding the performance after conclusion of the contract. We reserve the defense of unperformed contract in this respect.
5.3 Performance dates or periods are met if the subject of performance is stored in our plant ready for shipment and handover by their expiry. Insofar as an acceptance must take place, the acceptance date shall be decisive – except in the case of justified refusal of acceptance –, alternatively the notification of readiness for acceptance to the customer.
5.4 Transport is uninsured, at the expense and risk of the customer, without any liability on our part for destruction, damage, theft, etc. This also applies to carriage-paid (franko) deliveries. Transport insurance can be concluded by us at the request and expense of the customer. If damage or loss of the shipment is determined upon arrival, the extent of the damage must be logged immediately. This log must be signed by the recipient and the deliverer. The conditions of the insurer are decisive for any compensation. The customer is obliged to ensure that the subject of performance can be properly unloaded at the agreed location without being damaged themselves or causing damage to third parties. The customer must ensure at their own expense that the transport and unloading aids customary or necessary for the transport of the subject of performance can reach the unloading location without difficulty. If delivery is made with one of our own vehicles and a waiting time of more than 1 hour occurs through no fault of our own, we are entitled to charge € 50.00 per started hour. Section 6.3 sentences 2 and 3 of these T&Cs apply accordingly.
5.5 Reasonable partial performances are permissible and may not be rejected by the customer.
VI. Transfer of Risk, Acceptance, Breach of Duty by the Customer
6.1 Unless otherwise stipulated in the order confirmation, performance “ex works” is agreed. The risk of accidental loss and accidental deterioration of the subject of performance shall pass to the customer as soon as it is stored in our plant ready for shipment or handover. This also applies if delivery by us has been agreed, in the case of sale by delivery to a place other than the place of performance, or in the case of carriage-paid (franko) deliveries.
6.2 Insofar as an acceptance must take place, this shall be decisive for the transfer of risk. It must be carried out immediately on the acceptance date, or alternatively immediately after our notification of readiness for acceptance. The customer may not refuse acceptance in the event of a non-substantial defect.
6.3 In the event of breaches of duty by the customer, such as cancellation of already confirmed orders, default in acceptance, etc., we are entitled to demand flat-rate compensation in the amount of up to 15% of the order value. In this case, the customer bears the burden of proving that no damage occurred at all or that it is significantly lower than the flat-rate amount. We reserve the right to assert further legal rights.
VII. Liability for Defects, Limitation Period
7.1 All limitations of liability contained in these T&Cs shall not apply in the event of injury to life, limb, or health attributable to us. Likewise, these limitations of liability do not affect any claims of the customer arising from product liability or exclude the right to dissolve the contract in compliance with statutory provisions outside of liability for defects. Any liability on our part for intent, gross negligence, fraudulent concealment of a defect known to us, or in the event of a breach of a cardinal obligation (Kardinalpflicht) attributable at least to moderate negligence remains unaffected.
7.2 Claims for defects shall not exist in the case of only insignificant deviation of the subject of performance from the agreed quality or only insignificant impairment of usability. We reserve the right – even in the case of delivery based on an average sample – to make insignificant deviations from illustrations, drawings, brochures, etc., as well as the data contained therein regarding dimensions, weight, etc. The same applies to insignificant changes in shape, design, and color. Otherwise, the relevant DIN regulations shall be deemed agreed.
7.3 Defects already present at the time of the transfer of risk and recognizable upon careful inspection can no longer be complained of by the customer if they are not reported to us in writing after immediate investigation without culpable delay, but at the latest by the end of 8 working days after takeover of the subject of performance. The investigation must in any case take place before the installation or further processing of the subject of performance. No liability for defects is assumed for subjects of performance installed or further processed despite recognizable defects. Other defects already present at the transfer of risk must be reported to us in writing by the customer immediately after discovery. Notices of defects not raised in time by the customer lead to the exclusion of liability for defects. Further obligations arising from Section 377 HGB (German Commercial Code) and Section 381 (2) HGB remain unaffected. Furthermore, we point out in particular that liability is limited only to the refining/finishing value (Veredelungswert).
7.4 If the customer does not give us the opportunity to convince ourselves of the actual existence of a defect immediately after timely notification, or if they do not immediately provide the complained subject of performance or sufficiently meaningful samples thereof upon request – even after an appropriate deadline has been set –, this leads to the exclusion of liability for defects.
7.5 Justified and timely reported claims for defects are limited, at our discretion, to rectification of defects or new delivery/production. For this purpose, the customer must give us the necessary time and opportunity after the time of our written notification; otherwise, we are released from liability for the resulting consequences. New delivery or production will be carried out against return of the unprocessed, defective subject of performance. Replaced subjects of performance become our property.
7.6 If subsequent performance (Nacherfüllung) finally fails, the customer may, at their discretion, demand a reduction in payment (Minderung) or withdrawal from the contract. In the case of only a minor breach of contract, the customer has no right of withdrawal. If the customer chooses to withdraw from the contract due to a material or legal defect after subsequent performance has failed, they shall not be entitled to any additional claim for damages due to the defect. Otherwise, Sections 8.2 and 8.3 of these T&Cs shall apply.
7.7 The limitation period for claims for defects concerning new subjects of performance is one year from delivery or acceptance. Used goods are sold under comprehensive exclusion of liability for defects. The customer does not receive any independent guarantees in the legal sense from us.
7.8 Recourse claims of the customer according to Sections 478, 479 BGB shall only exist insofar as the customer has not made any agreements with their customer that go beyond the statutory claims for defects.
VIII. Liability for Damages
8.1 Liability for the breach of obligations outside of the liability for defects regulated under Section 7 of these T&Cs is governed by the following provisions. These extend in particular to contractual or tortious breaches of duty. They also apply to the claim for reimbursement of futile expenses. Section 7.1 remains unaffected.
8.2 Any contractual or statutory liability on our part, that of our legal representatives or vicarious agents – including their personal liability – is excluded in the event of slightly negligent breach of insignificant contractual obligations. In the case of slightly negligent breach of essential contractual obligations (cardinal obligations), liability is limited to the contract-typical, reasonably foreseeable average damage according to the type of performance. This, in turn, is limited to a maximum of 10% of the value of the service.
8.3 Damage claims that are not restricted or excluded and claims for futile expenses of the customer shall expire in one year beginning with the accrual of the claim or, in the case of damage claims due to a defect, from handover or, if applicable, acceptance of the subject of performance.
IX. Retention of Title and Security Rights
9.1 The subject of performance remains our property until all claims to which we are entitled from the business relationship have been fulfilled. This also applies to items provided by the customer or third parties and refined by us. Independently of this, the customer grants us a contractual lien on the items handed over for the purpose of refining, which serves to secure all claims to which we are entitled from the business relationship with the customer. A statutory contractor’s lien arising from the items processed by us remains unaffected by this. If the refined items are delivered to the customer before full payment, it is already agreed with the customer that ownership of these parts in the value of our claim is then transferred to us to secure our claims. In this case, the transfer of possession is replaced by the customer keeping the parts for us in accordance with Section 9.2 of these T&Cs. The same applies with regard to the customer’s expectant right (Anwartschaftsrecht) to items handed over to us for the purpose of refining which have been delivered to the customer by a third party under retention of title. In this respect, we reserve the right to bring about the lapse of the retention of title. The customer already today assigns to us claims for re-transfer against a third party to whom they had previously transferred the items handed over to us for the purpose of refining as security.
9.2 As long as our claims according to Section 9.1 have not been fully settled, the customer is obliged to hold the subject of performance in trust for us and to keep it separate from their property and that of third parties. They must properly store, secure, and mark the subject of performance as our property or security goods and otherwise treat it with care. In particular, the customer is obliged to insure it at their own expense against fire, water, and theft damage at replacement value and to assign the claims against the insurer and the tortfeasor to us upon request.
9.3 In the event of breach of contract by the customer – in particular default of payment or violation of their obligations under Section 9.2 or Section 9.4 et seq. – we may withdraw from the contract and demand the return of the subject of performance, sell it elsewhere, or otherwise dispose of it. Any proceeds from a sale – minus reasonable selling costs – will be offset against the customer’s liabilities. The assertion of further rights to which we are entitled shall not be affected by this.
9.4 If the customer is in default with the payment of at least two agreed installments, we are entitled to take possession of the subject of performance again without previously withdrawing from the contract. The customer already now permits us, if the aforementioned requirements are met, to enter their business premises during usual business hours in order to be able to take possession of the subject of performance again. Section 9.3 sentences 3 f. apply accordingly.
9.5 As long as the customer does not behave in breach of contract, they are entitled to resell or process the subject of performance in the ordinary course of business, unless they have already effectively assigned the claim against their contractual partner to a third party in advance. The customer already now assigns to us all claims, in particular purchase price and work wage claims, in the amount of the final invoice amount agreed with us (including VAT) with all ancillary rights, which accrue to them from the resale – without or after combination, mixing or processing – or the use of the subject of performance for the fulfillment of a contract for work and labor or a contract for work and materials etc., against third parties. Until revoked by us, the customer is entitled to collect claims against third parties that go back to the subject of performance. Our authority to collect the claim ourselves remains unaffected. We will only exercise the right of revocation in the event that the customer violates the obligations incumbent upon them under this contract, in particular fails to meet their payment obligations to us from the proceeds received, falls into default of payment, an application for the opening of insolvency proceedings against the customer’s assets is filed, or there is a cessation of payments.
9.6 The customer must notify us immediately in writing of any enforcement measures, damage, loss of the subject of performance, or other interventions by third parties. Independently of this, the customer must inform third parties in advance of the rights existing in the subject of performance. Insofar as the third party is not in a position to reimburse us for the costs of defending against an impairment of the subject of performance, the customer shall be liable for the resulting loss.
9.7 The customer is obliged to provide us upon request with all information and documents required to safeguard our rights, in particular to defend against claims of third parties that oppose the agreed retention of title or security rights. In this respect, the customer shall compensate us for the intervention costs incurred by us. In particular, they must communicate the names and addresses of the debtors against whom assigned claims exist and, at our request, notify them of the assignment. The customer is obliged to issue us with a document on the declared assignments upon request.
9.8 Processing or transformation of the subject of performance by the customer is always carried out for us without any claim against us arising from this. If the subject of performance is processed or inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the objective value of our goods (final invoice amount including VAT) to the other processed or mixed items at the time of processing or mixing. For the item created by processing or mixing, the same shall otherwise apply as for the subject of performance delivered under retention.
9.9 Retention of title or security rights according to the above provisions shall also remain in effect if our claims are included in a current account; the retention refers to the recognized balance.
9.10 We will release the resulting securities at the request of the customer to the extent that the realizable value of our securities exceeds the claims to be secured by more than 20%; we reserve the right to select the securities to be released.
X. Place of Performance, Jurisdiction
10.1 Unless otherwise agreed, our place of business in 85072 Eichstätt is the place of performance and payment.
10.2 The place of jurisdiction for all disputes arising from this contractual relationship between us and merchants, legal entities under public law, or special funds under public law is Ingolstadt/Danube. However, we remain entitled to sue at any court competent for the customer.
XI. Choice of Law, Final Provisions
11.1 The law of the Federal Republic of Germany shall apply to this contractual relationship. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. The German version of a contract text shall be authoritative.
11.2 All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
Semet Prototypen- und Industrielackierungen GmbH · Sollnau 27 · 85072 Eichstätt
As of: December 2020