General Terms & Conditions
on Deliveries and Performances - Status: April 2022
1. Scope of Applicability
1.1. Our General Terms and Conditions shall apply to
sales contracts concluded with us pursuant to Sections 433, 650 (§§ 433, 650 BGB) of the German Civil Code. The performance of our obligations under such contracts hereinafter is referred to as “Delivery”.
contracts to produce a work (“Werkverträge”) concluded with us pursuant to Sections 631 et seq. of the German Civil Code (§§ 631 ff. BGB). The performance of our obligations under such contracts hereinafter is referred to as “Performances”,
in connection with the design, the manufacture and the delivery of memperience VideoBooks. Our General Terms and Conditions shall apply exclusively. As far as General Terms and Conditions do not apply, statutory law shall apply. We herewith object to conditions referred to by Customer that are inconsistent with or supplementary to our General Terms and Conditions. Customer’s conditions shall apply only in case and to the extent that we expressly consent thereto in writing. Our General Terms and Conditions shall apply even if we have notice of Customer’s inconsistent or supplementary conditions while we are performing our Deliveries or Performances and do not express any objection thereto.
1.2. Our General Terms and Conditions shall also apply to any future business transactions with Customer.
1.3. Our General Terms and Conditions shall only apply with respect to entrepreneurs, legal entities under public law and public utility funds as defined by Section 310 para. 1 of the German Civil Code (§ 310 Abs. 1 BGB).
2. Offers and Cost Estimates, Subsequent Changes of Contract, Reservation of Being Supplied
2.1. Our offers and cost estimates are subject to change without notice and non-binding, unless expressly declared as binding.
2.2. A contract with us comes into force only upon our order confirmation.
2.3. We reserve all rights and titles to any bidding or contractual documents (in particular any illustrations, drafts, sketches, catalogues, prospectuses etc. as well as samples and models), unless Customer is entitled to such rights according to the purpose of the contract or by explicit agreement. Bidding documents shall be handed back to us immediately upon our request, if no order is placed with us. Samples and models shall be sent back to us by Customer within 7 days after receipt at Customer´s cost without special request from our side, even in case Customer places an order. Customer shall have no right of retention insofar. Customer shall be obligated to pay liquidated damage of 500 Euro for each damaged sample or model returned to us, further claims of damage remain reserved.
2.4. Except for purposes of the contract, manufacturing documents and manufacturing material owned by us according to no. 2.3. above shall not be used, copied, divulged, sold, pledged nor disclosed to third parties; Copies, reproduction or reverse engineering shall be prohibited.
2.5. To third parties to whom we permissibly delegated Deliveries and Performances or who are obligated to perform on our behalf, we may grant access to Customer’s documents and data, especially but without limitation pictures, text and videos.
2.6. We reserve the right to amend the Deliveries and Performances in the following manner even after conclusion of contract, as far as reasonably acceptable to Customer:
changes in products in the course of permanent product development or product improvement;
minor and insignificant variations relating to colour, form, design, measures, weights or quantities (up to 10%);
deviations customary in trade.
2.7. Customer undertakes to notify us upon order placement if his specifications or requested standards may under no circumstances be deviated from.
2.8. Notwithstanding our liability for non-conformity with agreement (“Mängelhaftung”), an exchange of products specifically made for or adapted to the Customer shall be excluded.
2.9. Any liability for damages according to Section 122 of the German Civil Code (§ 122 BGB) requires fault attributable to us.
2.10. The conclusion of the contract is conditioned on the correct and timely delivery to ourselves by our suppliers. This shall apply only in case that we are not responsible for the lack of delivery.
3. Prices, Terms of Payment, Reservation of Supplementary Performance, Price for Services
3.1. We reserve the right to adequately increase our prices, if, subsequent to the conclusion of the contract, cost increases occur which are beyond our responsibility, in particular due to changes in raw material prices or due to mandatory trade union wage agreements. We shall submit evidence for such occurrences to Customer upon his request.
3.2. Unless otherwise agreed upon, our prices are quoted ex works (EXW Incoterms 2020) and do not include postage, freight, packaging, insurance, customs nor costs for setting up or assembly, they do also not include any service fee becoming due (see no. 3.4 below). The statutorily prescribed VAT shall be charged separately.
3.3. Payments shall be due immediately, without deductions. Any cash discount shall be subject to special agreement. If Customer fails to pay within 30 days from the due date, he shall be deemed to be in delay in payment without any further notices or reminders from us. As for the legal consequences of such delay in payment, the respective statutory provisions shall apply.
entitled to require reasonable upfront payments from Customer, including
statutory VAT, if based on justified reason and if no prevailing interests of
Customer are affected.
We are entitled to require reasonable down payments from Customer including statutory VAT, as far as such down payment is not considerably higher than the value increase achieved by Customer due to our performance in accordance with the agreements.
3.5. Customer may set off only such claims that are legally established, undisputed, or acknowledged. Customer may plead the right of retention regarding the fulfilment of an obligation under the contract only if his claim against us results from the same contractual relationship as his obligation.
3.6. In case of our delivery being non-conforming with the agreements, Customer may exercise a right of retention, as far as the retained amount is reasonably commensurate to the non-conformity (especially but without limitation any defects). Customer shall not be entitled to assert any claims and rights for non-conformity if Customer did not effect the payments due and if the amount due but unpaid is reasonably commensurate to the value of the — non-conforming — Deliveries or Services.
4. Package, Date of Delivery or Performance, Non-Performance beyond our Responsibility, Delay in Delivery or Performance, Delay in Taking Delivery, Obligation to Cooperate
4.1. Unless otherwise agreed, Delivery shall generally be effected “ex works” (EXW Incoterms 2020).
4.1.1. We do not take back any packing material within the meaning of the German Regulation on Packaging (Verpackungsverordnung). Customer shall be obligated to dispose the packing material at his own costs.
4.2. Dates of Delivery or Performance indicated by us are fixed dates only if they are expressly stipulated to be fixed.
4.3. Unless explicitly agreed otherwise, delivery lead times start upon Customer´s receipt of our order confirmation.
4.4. Pre-conditions of compliance with Dates of Delivery or Performance are
Customer, correctly and in due time, observing all and any of his obligations to co-operate, especially the submission of information, pictures, texts and videos to be provided by Customer;
the clarification of all technical details as well as design and commercial details with Customer, especially but without limitation release of print data version (book block with pictures and texts and cover) as well as videos;
the receipt of agreed down and/ or upfront payments;
the receipt of administrative approvals or licenses that may be necessary.
We reserve the right to plead non-performance of the contract by Customer.
4.5. For the observance of the delivery period, the point of time shall be decisive at which the Deliveries or Performances are effected “ex works” (EXW Incoterms 2020) or – if Delivery cannot be collected in time with no fault attributable to us – for which our readiness to dispatch or collect has been communicated to Customer. We shall inform Customer on the day/hour for collection sufficiently in advance, so Customer is able to take all measures usually necessary insofar.
4.6. Delays in our Delivery beyond our Responsibility:
4.6.1. We shall not be responsible for delays in Delivery of Performance due to the following impediments to Delivery and Performance – unless, exceptionally, expressly with respect to meeting the deadline or date, the risk of procurement was assumed or a guarantee was provided; the same shall apply if such impediments occur to our suppliers or their sub-suppliers:
Incidents of force majeure as well as impediments to Delivery and Performance,
which occur after conclusion of the contract and which we learn about only after conclusion of the contract for no fault attributable to us, and
with regard to which we prove that they could not have been foreseen and avoided by us even with reasonable care, and with regard to which we have no obligation to bear the risk of their occurrence or to avert or to prevent their occurrence.
Provided that the above conditions are fulfilled – i.e. occurrence or faultless learning of such circumstances only after conclusion of the contract, unforeseeable and unavoidable occurrence to be proven by us – the above exclusion of responsibility shall in particular, but without limitation, apply to the following circumstances:
Legitimate labour struggle (strikes and lock-outs); operating troubles and breakdowns; shortage in or lack of raw material; embargos, public authority regulations or prohibitions, shortage in or lack of operating supply items, epidemics, pandemics, acts of war or conflict.
4.6.2. In the event of delay in Delivery under cl. 4.6.1. above, any claims for damages of Customer are excluded.
4.6.3. In the event of a definite impediment to Delivery or Performance within the meaning of cl. 4.6.1. above, either party shall be entitled to immediately rescind the contract in accordance with the statutory provisions.
4.6.4. In the event of a temporary impediment to Delivery within the meaning of cl. 4.6.1. above, we shall be entitled to postpone Delivery for as long as the impediment may last. This period of postponement shall also include a reasonable start-up time. If we can prove an unacceptable impediment to Delivery, we shall have the right to rescind the contract. Customer, however, shall have the right to rescission only under the conditions laid down in cl. 4.7. below.
4.7. Delays in Delivery or Performance within the Scope of our Responsibility:
If a higher degree of liability (especially a liability regardless of fault) or a lower degree of liability can neither be determined nor inferred from the other content of the contract, we shall be liable for damage caused by delay due to intentional or negligent breach of obligations as follows:
4.7.1. In case of intent we shall be liable according to the statutory provisions.
4.7.2. We are liable for damage caused by delay according to the statutory provisions; our liability for such damages, however, is limited to the foreseeable, typically arising damage:
in case of gross negligence on the part of our legal representatives, executive employees and other vicarious agents;
in case of slight (i.e. non-gross) negligence on the part of our legal representatives, executive employees and / or other vicarious agents, if they breach essential contractual obligations (cf. definition in cl. 7.10.2. below). This is in particular the case if the existing contract is a transaction where time is of the essence (“Fixgeschäft”) or if Customer may assert that his interest in the performance of the contract has ceased to exist due to delay in Delivery or Performance for which we are responsible.
4.7.3. Except for the cases governed by cl. 4.7.2. above, our liability for delay in Delivery or Performance shall be limited to a compensation for delay to 0.5 percent (0.5%) of the net invoice amount of the delayed Delivery or Performance for each full week of delay in Delivery or Performance, but in no event such compensation for delay shall exceed five percent (5%) of the value of the net invoice amount of the delayed Delivery or Performance.
4.7.4. Customer’s further claims and rights remain reserved.
4.8. Customers Right to rescind the Contract in case of delay in Delivery or Performance:
If we prove that we are not liable for any delay, Customer shall be entitled to rescind the contract only
if Customer has stipulated that his continuing interest in our Delivery or Performance shall depend upon a timely Delivery or Performance by us (time is of the essence – “Fixgeschäft”) or
if Customer proves that, as a consequence of the delay, his interest in our performance of the contract has ceased to exist or that the maintenance of the contractual relationship cannot reasonably be expected from him.
Otherwise, section 323 paras. 4 to 6 of the German Civil Code (§ 323 Abs. 4 – 6 BGB) shall apply. As for the legal consequences of the rescission, the statutory provisions Sections 346 et seq. of the German Civil Code (§§ 346 ff. BGB) shall apply; Customer may reclaim performances which are not owed by him.
The statutory rights to terminate a contract to produce a work (“Werkvertrag”) shall remain unaffected.
4.9. We are entitled to partial Delivery or Performance, if and as far as Customer reasonably may be expected to accept this.
4.10. If Customer is in default in taking Deliveries or in accepting Performances at the place of performance or in collecting goods or in requesting Delivery of goods ordered – also with regard to possible partial Deliveries – or if Delivery is delayed in any other way due to circumstances for which Customer is responsible or if Customer negligently breaches any other duty to cooperate, we shall be entitled to claim compensation of any damages caused insofar including compensation of any additional expenses without prejudice to our further statutory rights. Any further claims shall remain unaffected.
5. Passing of Risk, Insurance
5.1. The risk of accidental loss, destruction or deterioration of any goods shall pass to Customer in accordance with EXW clause (Incoterms 2020).
5.2. If Customer is in default in taking Deliveries or in accepting Performances or in collecting goods or in requesting goods or if Deliveries or Performances are delayed in any other way due to circumstances for which Customer is responsible, the risk of accidental loss, destruction, or deterioration of the goods shall pass to Customer at the moment that he is in default, or at the moment when Delivery or Performances could have been effected if Customer’s conduct had been in accordance with his contractual obligations.
5.3. We shall be entitled to choose category and means of transport at our discretion and to choose the forwarder/ carrier ourselves. Additional costs incurred due to different instructions from Customer shall be borne by Customer. Such instructions shall be communicated sufficiently in advance of transport.
In case of damage or loss of the Delivery during transport, Customer shall appraise the Delivery immediately and inform us in writing about the result.
5.4. As far as we are obligated to organise transport or insurance, we shall be liable only in as far as the forwarder/carrier or insurer is liable to us.
6. Retention of Ownership
We retain ownership of all goods delivered by us until we receive full payment of any outstanding amounts originating from the business relation with Customer.
7. Specifications, Warranty
7.1. The requirements contained in offers and product samples define the subjective and objective requirements of our Deliveries or characteristics of our Performances exhaustively and conclusively. Other descriptions of our products, public statements, advertising and PR statements do not constitute contractually binding characterization of our products.
7.2. Unless otherwise provided for, these specifications shall only constitute agreements on quality and not guarantees or comparable covenants. Statements from our part in the context of the contract do not constitute guarantees or comparable covenants in terms of an aggravation of our liability or the assumption of a special liability. For the avoidance of doubt, only explicit written statements to that respect may constitute a guarantee or comparable covenant.
7.3. We assume no liability for any damages due to the following reasons: inappropriate storage, transport or use, faulty assembly by Customer or third parties, common wear and tear, faulty or negligent handling, chemical influences or humidity (unless we are responsible for those), inappropriate alterations or repair works carried out by Customer or third parties without our prior consent.
7.4. Customer shall not have any warranty claims in case of only insignificant deviations from the quality relevant or in case of only insignificant impediments to the use of the Delivery or of the Performance. Minor deviations in colour or light sensitivity (fading/ yellowing) do not constitute a defect.
7.5. Customer may only assert warranty claims if he has duly observed his duties to examine the Deliveries and to give notice of any defects in accordance with Section 377 of the German Commercial Code (§ 377 HGB).
We shall then notify Customer whether the Delivery which is subject to a complaint or parts hereof shall be returned to us or whether Customer shall wait until the Delivery is either collected by us at his site or is inspected by us on site.
7.6. In case of a defect of the product, we shall be entitled to supplementary performance (“Nacherfüllung”), at our option, either by remedying the defect or by delivering a substitute product without defects. Should one or both of these two types of supplementary performance be impossible or unreasonable, we shall be entitled to refuse it or them, respectively.
We may also refuse supplementary performance, as long as Customer fails to fulfil his payment obligations vis-à-vis us to an extent commensurate with the non-defective portion of our Delivery.
We shall bear all expenses necessary for the purpose of supplementary performance, especially costs for transportation of man and material, working and material costs. This obligation shall not apply as far as those expenses are increased due to the fact that the defective product was moved to different place than the place of performance, unless such moving to a different place was necessary for the presupposed use of the product.
We shall be entitled to remedy defects by third parties on our behalf. Replaced parts shall become our property.
Customer shall be obligated to collaborate to a reasonable extend in the substitute performance (“Nacherfüllung”), against reimbursement of costs and in accordance with our instructions.
Only in urgent cases, e.g. if there is a risk of excessive damage or danger to operation safety, shall Customer be entitled to perform substitute performance (“Nacherfüllung”) himself or through third parties. Customer shall inform us immediately and ask for our consent to that. Such consent may be dispensable only, if we cannot be reached in time.
7.7. In case of impossibility of failure of supplementary performance, of delay by our fault, unreasonable delay or our serious and definite refusal of supplementary performance, or unreasonableness of supplementary performance for Customer, the latter shall be entitled, at his option, to either commensurately reduce the purchase price (“Minderung”) or to rescind the contract (“Rücktritt”).
7.8. As far as, with regard to the preconditions and consequences of supplementary performance, price reduction, and rescission, the contractual provisions do not contain any provisions at all or do not contain provisions deviating from statutory law, the provisions of statutory law shall apply with respect thereto.
Regarding the Customer´s recourse against us due to expenses made in connection with defective new products, the statutory provisions shall apply.
7.9. Customer’s claims for damages and reimbursement of expenses in connection with defects shall be governed – regardless of the legal nature of the claim – by the following provisions of cls. 7.10.1. to 7.10.4 inclusively; the aforementioned provisions shall apply especially also with respect to warranty claims, claims for breach of obligations, and claims in tort.
7.10.1. We shall be unlimitedly liable – pursuant to the applicable provisions of statutory law – for damage in case of:
culpable infringement of life, body or health;
defects and other facts that have been fraudulently concealed; or
defects whose absence has been guaranteed, or insofar as the quality of goods has been guaranteed.
7.10.2. Moreover, we are liable for damages pursuant to the provisions of statutory law. With the exception of cases stipulated in cl. 7.10.1. above, our liability for damages on the basis of statutory law is, however, limited to the foreseeable, typically arising damage in the following cases:
gross negligence on the part of our legal representatives, executive employees, and other vicarious agents; and
slight (i.e. non-gross) negligence on the part of our legal representatives, executive employees, and other vicarious agents – provided that any of the latter commit a breach of essential contractual obligations (i.e. obligations whose performance makes the proper implementation of the contract only possible at all and in whose observance the Customer may regularly trust).
7.10.3. The liability according to the German Products Liability Act (“Produkthaftungsgesetz”) or other mandatory statutory law remains unaffected.
7.10.4. Any further claims are excluded unless otherwise provided for in this cl. 7.10.
8. Commissioned Data Processing
8.1. We draw the Customer’s attention to the fact that we collect, process and use personal inventory and usage data as described in more detail in our data protection declaration, which can be viewed at www.memperience.com/privacypolicy_en.
8.2. Customer is responsible for data protection and we are the data processor pursuant to Art. 28 GDPR, provided that at least one of the following groups of persons is affected:
a. Customers, employees or business partners of Customer or other third parties in relation to whom Customer wishes to create a VideoBook and whose personal data are transferred to us as part of the order placed with us;
b. employees, agents and other vicarious agents in the customer’s organisation whose personal data we process in the performance or administration of the order placed with us.
8.3. We are only entitled to process those personal data which are necessary for the fulfilment of our contractual obligations (cf. 8.2.a. and b. above) or the administration of the contracts concluded with Customer (cf. 8.2b. above). Processing of personal data for other purposes is excluded.
8.4. We guarantee that all persons involved in the processing of personal data on our side have undertaken to maintain confidentiality and data protection.
8.5. Customer, for his part, is obliged to treat the personal data from our area or our organisation which he becomes aware of in the course of the execution of the contract as confidential and to observe the data protection regulations in this respect.
8.6. Upon request, we shall provide the Customer with evidence of the measures to be taken by us in accordance with Art. 32 GDPR to ensure the security of the processing and to achieve a level of data protection appropriate to the risk. We shall support the Customer at its first request in the fulfilment of the rights of the data subjects pursuant to Art. 12 to 23 GDPR as well as the obligations incumbent upon it pursuant to Art. 32-36 GDPR.
8.7. After fulfilment of the contracts concluded with the Customer, we shall, subject to any statutory obligations to the contrary, either delete all personal data at the Customer’s discretion or hand it over to the Customer in full.
8.8. By placing the order with us, Customer grants us general written permission to involve further order processors.
8.9. Upon request, we shall provide the Customer with all information necessary to prove compliance with Article 28 GDPR and shall enable the customer or an auditor commissioned by the customer to conduct audits and shall cooperate in such audits.
9. Aggregate Liability, Rescission of Contract by Customer
9.1. The following provisions apply to Customer’s claims other than warranty claims. These provisions shall neither constitute a limitation nor a waiver of our statutory or contractual rights and claims.
9.2. Any liability for damages shall be governed analogously by the provisions in cl. 7.10. above – except for the liability for damages due to delay in Delivery as provided for in cl. 4.7. above. As far as a statutory liability applies the foreseeable damage typically arising shall apply and not the damage typically arising under contract. Any further liability for damages shall be excluded – regardless of the legal nature of such liability. This shall apply in particular to claims for damages in addition to performance and claims for damages in lieu of performance for breach of obligations, as well as to claims in tort for compensation of damage to property under Section 823 of the German Civil Code (§ 823 BGB).
9.3. The limitation contained in cl. 9.2. above does also apply if Customer claims compensation of expenses incurred.
9.4. Any fault of our legal representatives and vicarious agents may be attributed to us.
9.5. The statutory rules on the burden of proof remain unaffected.
9.6. As far as our liability is excluded or limited, such exclusion or limitation does also apply to the personal liability of our staff, employees, legal representatives and vicarious agents.
9.7. Customer shall be entitled to rescind the contract, subject to the applicable statutory provisions, only in case we are responsible for the breach of obligation. In the cases provided for in cl. 7.7. above (failure of supplementary performance etc.) and in cases of impossibility, however, the statutory provisions shall apply exclusively; as for Customer’s right of rescission on grounds of delay in Delivery or Performance, the provisions contained in cls. 4.6.3., 4.6.4. and 4.8. above shall apply. Upon our request, Customer shall declare within a reasonable time limit, whether, as a result of the breach of obligation, he will rescind the contract or insist in our Delivery under the contract.
10. Our Rights to Know How and Inventions, designs and patterns
We reserve all rights entitled to any valuable, new, and confidential information (know how), that we are in possession of or gain during the performance of any contracts concluded with us, as well as to inventions regarding our VideoBooks and related industrial property rights that may exist insofar, as well as our designs, patterns and samples specifically developed for the manufacture of our products, unless otherwise agreed, and subject to the use of the products delivered to which Customer is entitled according to the spirit and purpose of the respective contract. This shall also apply, if the Customer alone fully bears the costs hereof and if the development is based on Customer´s requirements.
11. Manufacturing Material Supplied or Prescribed by Customer
11.1. We shall be entitled to possess and use in accordance with the contracts concluded with us all print data with pictures and the texts and the videos transmitted to us, that is Customer´s property according to specific agreement with us, for as long as we need these for the fulfilment of our contractual obligations. This shall apply also in case we agreed on storing these for later additional reproductions.
Customer´s withdrawal of the Manufacturing Material or of the right to use it constitutes a cease of our obligation to supplier products manufactured on the basis thereof.
Rights and Claims (including claims for compensation of damages and expenses) shall be in accordance with statutory provisions, unless explicitly agreed otherwise.
11.2. The Customer is liable to us for the production materials provided by him (in particular pictures, videos, drawings, logos, samples etc., also in the form of files) and his other production contributions, in particular specifications for the design,
for their correctness and suitability or interoperability and compatibility for the manufacture of the delivery items, including for their freedom from viruses or malware;
for the provision to us and our vicarious agents of all rights of use necessary for the performance of our delivery or service;
for compliance with the public-law provisions applicable in this respect, in particular data protection provisions and provisions against the dissemination of inadmissible or prohibited content.
The validity of clause 12.2. below remains unaffected.
11.3. Customer shall provide to us Manufacturing Material at his own risk and cost.
11.4. We shall be obligated to substitute Manufacturing Material and goods for repair supplied by Customer in case of loss, damage or destruction or in case of unauthorized use by third parties only if we are accountable for it.
11.5. We shall have a right of retention regarding manufacturing material owned by Customer and supplied to us, for as long as Customer does not fulfil his payment obligations resulting from the business relation with us.
12. Infringement of Third Parties´ Rights
12.1. We do not warrant that the use or resale of any of our VideoBooks does not infringe third parties’ industrial property rights. However, we declare that we have no knowledge of the existence of any such third parties’ rights.
12.2. Customer guarantees that no third parties rights (esp. copyrights patents, licences or other IP rights, but also data protection rights and rights of use of data) are infringed in connection with Customer´s manufacturing material supplied by Customer or procured by us upon Customers prescription.
12.3. If any claims are asserted against us by third parties in connection with an infringement by Customer´s manufacturing material supplied by Customer, Customer shall hold us free and harmless from any such claims on first written demand and shall bear any and all costs we incur insofar. In addition, we shall be entitled to cease manufacture and delivery of VideoBooks, without Customer being entitled to assert any claim against us insofar.
12.4. As the case may be, Customer shall provide judicial support to us or shall, upon our request, enter into any judicial proceedings at his own expense. Customer shall be obligated to pay an upfront compensation of costs for potential judicial procedures upon our request.
12.5. We reserve the right to claim additional damages from Customer.
12.6. The limitation period of any claims under this present no. 12 shall be ten years commencing with the conclusion of the respective contract.
13. Recourse against us regarding product related claims against us
We shall be liable for compensation of damage and expenses that Customer may have, or accepts, to bear under contract with third parties or under law in connection with the violation of product related domestic or foreign public law statutes, administrative decisions or rules – including but not limited to rules on product security, ecology or reduction of emission related to VideoBooks – only in the frame of statutory obligations applicable for us. Any greater liability for us shall only apply as far as we have explicitly accepted it. Our liability for non-conformance according to the agreements concluded with the Customer as well as our mandatory product liability shall remain unaffected.
14. Liability of Customer for Violation of Statutory Requirements
14.1. Regarding Customer´s manufacturing material supplied to us by Customer, including pictures, texts and videos, Customer shall be liable to us in accordance with the applicable statutory law, without limitation. If a claim is asserted against us based on domestic or foreign law, Customer shall in addition be obligated to release us and hold us free and harmless from these claims upon first demand as far as these claims are made in connection with Customer´s manufacturing material supplied to us by Customer.
14.2. Customer shall maintain an adequate comprehensive general liability and product liability insurance with an adequate for every single case of damage to a person or to property or to the product. Additional claims for damage remain unaffected.
14.3. The limitation period of any claims under this present no. 14. shall be five years commencing with the conclusion of the respective contract.
15. Limitation of Actions
15.1. The limitation period for rights and claims based on defects of Deliveries or Performances and other cases of non-conformity, no matter on what legal ground, shall be, notwithstanding cl. 15.3. below, one (1) year.
15.2. The limitation period laid down in cl. 15.1. above shall also apply to any and all claims for damages against us.
15.3. The limitation period according to cl. 15.1. above shall in principle not apply in case of intent. It shall neither apply in case of fraudulent concealment of a defect nor in case of guarantee for the quality of goods. The limitation period for claims for damages according to cl. 16.1. above shall not apply in the cases of cls. 7.10.1., 7.10.2. and 7.10.3. above; the statutory limitation periods shall apply insofar.
15.4. Unless otherwise expressly provided for, the statutory provisions about the commencement of the limitation period, about the suspension of expiry of the limitation period, about the suspension of the limitation period and about the re-commencement of the limitation period shall remain unaffected.
15.5. The claims for reduction of the purchase price (“Minderung”) and the right to rescind the contract (“Rücktritt”) are excluded, if the claim for supplementary performance (“Nacherfüllung”) is barred by limitation. In that case, Customer may, however, refuse payment of the purchase price insofar as he would have been entitled to on the basis of his right to reduce the purchase price or his right to rescind the contract.
16. Assignment by Customer
Customer shall assign claims against us arising from or in connection with our Deliveries or Performances to any third party only with our prior written consent.
17. Export Declaration, Compliance with Export Law
17.1. If a Customer, whose business residence is outside Germany, or his representative collects a delivery and exports it outside Germany, Customer shall submit to us the export declaration required under applicable tax law. If this declaration is not submitted, Customer shall pay the turnover tax applicable under German Law for the delivery.
17.2. Compliance and fulfilment of all relevant export law regulations, e.g. import licences, currency exchange licences and other requirements applicable in Germany, shall be the sole responsibility of Customer.
18. Place of Performance, Place of Jurisdiction, Applicable Law, Purchase within the EU, Severability Clause
18.1. Unless otherwise agreed upon, place of performance shall be our place of business exclusively.
18.2. If Customer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a public utility fund, place of jurisdiction for all disputes arising out of or in connection with the contractual relationship – herein included liabilities from checks and bills of exchange – shall either be our principal place of business or, at our sole option, the location of Customer. This provision as to the place of jurisdiction shall also apply to Customers having their location in a foreign country.
18.3. To all rights and obligations and all disputes arising out of or in connection with the contractual relationship between us and Customer, German law, excluding the UN Sales Convention (CISG: United Nations Convention on Contracts for the International Sale of Goods, of April 11, 1980), shall apply exclusively, without regard to German conflict of laws rules.
18.4. Should individual provisions of these General Terms and Conditions or individual provisions of other agreements concluded with us be or become invalid, this shall not affect the validity of the other provisions or agreements.