General terms and conditions of sale, delivery and payment (GTC) of Kumovis GmbH
§ 1 Application of GTC; Defence Clause
(1) These General Terms and Conditions of Sale (GTC) apply to all our business relations with our customers provided that our customer is an entrepreneur within the meaning of § 14 German Civil Code (BGB), a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law (öffentlich-rechtliches Sondervermögen).
(2) Our GTC shall apply exclusively. Any terms and conditions of the customer that conflict with, differ from or supplement these GTC are hereby rejected and shall not apply unless we expressly agree to their application in writing.
(3) Our GTC shall also apply in the version current at the time of the customer’s purchase order as a framework agreement (§ 305 (3) BGB) to future offers and contracts of similar type (in particular, for the sale and/or supply of moveable goods), without us having to refer the customer to their application.
§ 2 Offer; Conclusion of Contract; Representation
(1) Our offers as well as all our product and service presentations, including information on the type of execution, price, delivery period and delivery possibility, no matter in which form, e.g. in online sales, in catalogues, price lists or on flyers, are subject to change and non-binding.
(2) The customer’s order shall be considered a legally binding offer to conclude a contract. Unless otherwise stated therein, we may accept the offer within 10 working days (Monday to Friday, disregarding any public holidays) from receipt. We reserve the right to refuse to accept the customer’s order, in particular for reasons of the customer’s creditworthiness.
(3) We will accept the customer’s offer either by written declaration (e.g. by our order confirmation or our dispatch/collection readiness notice), by delivery of the goods to the customer or by invoicing. The content of the contract is determined by the content of that statement. After expiry of the acceptance period without our acceptance, the customer’s offer shall be deemed rejected.
(4) Confirmations of receipt of the customer’s order sent by us and any subsequent status reports solely serve to inform the customer and do not constitute acceptance of the customer’s offer.
(5) With the exception of our managing directors and authorized signatories, our employees are not authorized to assume guarantees or make offers, conclude contracts, make written or verbal agreements or give promises that deviate from these GTC; such agreements require written confirmation by our managing directors.
(6) With the exception of guarantees expressly agreed as such in the contract, we assume no guarantees of any kind.
§ 3 Change Request; Right of Withdrawal
(1) All dimensions, weights, data and illustrations given by us in the product and service descriptions are non-binding and only approximate values. Deviations are permitted within the scope of what is reasonable. In particular, color tones may deviate from the actual color tone due to screen and printing technology.
(2) We also reserve the right to make changes to models, designs or equipment, provided that the subject matter of the contract is not changed in a way that is essential or unreasonable for the customer. We are unable to prevent the respective manufacturers from making such changes.
(3) If the customer refuses to accept the ordered goods after expiry of a reasonable period of time set by us or expressly declares not to accept the goods (refusal of acceptance), we shall be entitled to withdraw from the contract and/or to claim damages instead of performance. We are entitled to demand a lump sum of 10% of the contract value from the customer to compensate for the damage resulting from the refusal to accept the goods. The assertion of further claims for damages, against which the lump sum is to be credited, remains unaffected. The above rights do not apply if the refusal of acceptance is justified.
§ 4 Reservation of Copyrights and Industrial Property Rights
(1) Ownership, copyright and industrial property rights to all documents, materials and other documents, including cost estimates, illustrations, drawings, provided to the customer shall remain reserved. It is only permitted with our written consent to pass on such documents and materials etc. to third parties.
(2) Reverse engineering is prohibited.
§ 5 Delivery; Transfer of Risk; Partial Performance; Default of Acceptance; Cooperation Duties; Acceptance
(1) Unless otherwise agreed, for each 3D printer ordered, initial commissioning shall be carried out by us on our premises in the presence of the customer. The parties shall prepare a report on the initial commissioning in which the customer confirms that the 3D printer is in compliance with the contractual arrangements. In all other respects, any construction or installation work that may be required in connection with the delivery of goods shall, unless otherwise agreed, not be included in the scope of services owed by us.
(2) Unless otherwise agreed, EXW Incoterms (2020) shall apply to all our deliveries (based on store from which we ship).
(3) In deviation of paragraph (2) above and only if agreed with the customer, we will ship the goods to the destination specified by the customer at – also with regard to packaging – the customer’s expense. We are entitled to determine the type of shipment (in particular the transport company and the shipping route) and the packaging at our reasonable discretion. In the cases as set out in s. 1 of this paragraph, the risk passes to the customer when customer receives our notice that the order is ready for shipment, or – if such notice is not provided for by contract – no later than handover of the goods to the carrier, freighter or other transport person. This shall also apply to partial deliveries or where we have agreed to provide other services (e.g. such as said shipment, transport or assembly). In all other respects, paragraph (2) and the provisions regarding the place of performance (§ 16) shall remain unaffected.
(4) The goods will be insured by us at the customer’s expense for the entire value of the goods, unless the customer objects to the transport insurance in good time before the goods are handed over to the transport company.
(5) In order to safeguard any claims against the transport company and the transport insurer, damage and loss must be reported to us by the customer immediately after delivery of the goods, enclosing a damage report.
(6) We shall be entitled to partial deliveries/services if (a) the partial delivery/service can be used by the customer for the contractual purpose, (b) the provision of the remaining delivery/services is ensured, and (c) the partial delivery/service does not cause the customer any considerable additional expenditure or we declare to bear any such additional expenditure. With regards to incurred shipping costs, § 7 (4) s. 1 shall apply.
(7) If the customer is in default of acceptance, or fails to perform a necessary participatory action, or if our performance is delayed for other reasons for which the customer is responsible, we shall be entitled to invoice compensation for the incurred damage including our additional expenses (e.g. storage costs, increased transport charges).
(8) Insofar as an acceptance testing has been expressly agreed, § 640 (1), (2) s. 1 and (3) BGB shall apply accordingly. However, the goods shall be deemed accepted at the latest when
(a) the delivery – and, if and insofar as we also owe the assembly or a similar service (e.g. assembly, installation, commissioning, set-up, adjustment), also this service – is completed,
(b) we have notified the customer of the completion and requested the customer to conduct an acceptance testing,
(i) 10 working days have elapsed since this request, or
(ii) the customer has started to use the goods and 5 working days have elapsed since the request, and
(d) the customer has not declared acceptance (express or implied) within the relevant period of time mentioned above, unless this is due to a defect notified to us which makes the use of the goods impossible or significantly impairs such use.
§ 6 Delivery Times; Force Majeure; Self-Supply Reservation
(1) Delivery times/dates for deliveries and services (delivery periods) envisaged by us are always approximate, unless a fixed delivery period is expressly confirmed or agreed.
(2) A delivery period for a delivery of goods shall be deemed to have been met if the customer has received our notice of readiness for collection by the end of the delivery period or – if dispatch has been agreed – we have handed over the goods to the transport person or, in the event of the latter’s failure to appear on time, could have handed them over.
(3) If it becomes foreseeable to us that a delivery period cannot be met, we will notify the customer without undue delay and inform the customer of the expected new delivery period.
(4) We shall not be liable for a delay or our impossibility to deliver or perform if such is, in each case, due to force majeure or any other event that was not foreseeable at the time of conclusion of the contract and for which we are not responsible (e.g. operational disruptions of all kinds, fire, natural disasters, epidemics, pandemics, weather, floods, war, insurrection, terrorism, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, delays in any necessary official permits, official/sovereign measures).
(5) Also our incorrect or late delivery by one of our suppliers shall constitute an event of force majeure if we are not responsible for this in each case and had concluded a congruent covering transaction with the respective supplier at the time of conclusion of the contract with the customer. This shall also apply if we conclude the covering transaction without undue delay after the conclusion of the contract with the customer. Should we not be able to perform the contract with the customer due to incorrect or late delivery by our suppliers, both parties have the right to withdraw from the contract.
(6) In case of an event in terms of paragraph (4) or (5), the delivery periods shall be automatically extended by the duration of the event, plus a reasonable ramp-up time. If such events make it considerably more difficult or impossible for us to deliver the goods or perform the service and are not only of a temporary nature, we shall be entitled to withdraw from the contract.
(7) Delivery periods shall be further automatically extended to a reasonable extent if the customer fails to meet its contractual obligations or other duties or obligations to cooperate. In particular, the customer is responsible for providing us with all necessary documents, information, samples, specimens and other information and objects in good time and in the correct format and, if necessary, for creating the technical, structural, personnel and organizational prerequisites for the assembly of products or similar services (e.g. assembly, installation, start-up, setting-up/adjustment).
(8) Our statutory rights, in particular with regard to the exclusion of our obligation to perform (e.g. due to final or temporary impossibility or unreasonableness of performance and/or subsequent performance) and in the event of default of acceptance or performance by the customer, shall remain unaffected.
(9) If we are in default with a delivery or a service or if it becomes impossible for us, for whatever reason, our liability for damages shall be limited in accordance with § 11.
§ 7 Prices
(1) Unless otherwise agreed, our net prices valid at the time of the conclusion of the respective contract plus statutory value added tax (if any) shall apply. The prices are EXW Incoterms (2020) according to § 5 (2). Any insurance, transport and packaging costs (see § 5 (3)) as well as any other taxes and duties shall be added, unless otherwise agreed.
(2) If the agreed prices are our list prices, if a fixed (i.e. not subject to change) price was not expressly agreed upon and if the good/service is not to be supplied until at least four (4) months after the contract has been concluded, the list prices at the time of supply shall apply automatically.
(3) We reserve the right to adjust the prices appropriately if unforeseeable changes in costs occur, in particular due to currency fluctuations, changes in delivery or material prices.
(4) In the case of partial deliveries which are arranged or offered by us, subsequent deliveries shall be free of shipping costs. In the event of special customer requests for the splitting of the delivery, the additional shipping costs incurred due to such partial deliveries will be charged to the customer.
(5) Insofar as the customer wishes a VAT-exempt intra-Community delivery or a VAT-exempt export delivery, the delivery is dependent on the provision of the legally required evidence and information. If these proofs and details are missing, we reserve the right not to deliver or to assert claims for damages. If the customer does not provide the evidence and information after the expiry of a reasonable period of time being set to the customer, we are entitled to withdraw from the contract and/or assert claims for damages. The damages shall amount to the amount of the legally owed value added tax. We reserve the right to claim further damages, in particular interest or damages resulting from legal action against the tax authorities.
§ 8 Terms of Payment; Due Date; Default in Payment; Rights of Retention and Set-Off
(1) Unless otherwise agreed, our invoices shall be paid within 30 days after delivery of the goods and receipt of the invoice (and only if expressly agreed, after acceptance) without any deduction and in Euro. Delivery of the goods shall be deemed to occur with receipt of our notice by the customer that the goods are ready for collection (which we can combine with the invoice) or – if dispatch has been agreed – handover of the goods to the transporting person. The date on which we receive payment on our account shall determine whether payment is timely.
(2) We shall be entitled to make the delivery of goods and the performance of services in whole or in part subject to concurrent payment or advance payment without giving reasons. We will exercise this right at the latest in our order confirmation (§ 2 (3)).
(3) If the customer makes payments without stating the relevant invoice and customer number on the remittance slip and, if several invoices are paid, also without stating the amount of the individual invoices, we are entitled to set off the amount received against the customer’s outstanding liabilities in accordance with §§ 366 (2), 367 (1) BGB.
(4) If the method of payment chosen by the customer is rejected by the bank or by the provider of the respective method of payment for reasons for which we are not responsible, delivery shall only be made against payment in advance or cash on delivery. The customer shall be charged for any costs arising from the rejection of a payment transaction for lack of funds or due to incorrect data transmitted by the customer. Cheques are only accepted on account of performance and can be returned at any time.
(5) Upon expiry of the payment period pursuant to paragraph (1), the customer shall automatically be in default. The purchase price shall be subject to interest at the statutory default interest rate during the period of default, in addition to the statutory default flat-rate. We reserve the right to claim further damages based on the customer’s default and – if the customer is a merchant – statutory maturity interest (§§ 352, 353 HGB).
(6) The customer is only entitled (a) to offset if its counterclaim is either (i) undisputed or (ii) has been ruled final and absolute by court of law or (iii) or acknowledged by us; (b) to assert a right of retention if its counterclaim is either (i) undisputed or (ii) has been ruled final and absolute by court of law or (iii) if such claim is based on the same contractual relationship as our claim against which the customer asserts its right.
(7) We are entitled to refuse to perform our outstanding obligations under the contract if, after the contract has been concluded, it becomes apparent (e.g. by an application for insolvency being made) that our claim for payment under the respective contractual relationship is at risk owing to the customer’s inability to pay. Our right to refuse performance lapses if payment is rendered or security has been provided for it. We are entitled to set the customer a reasonable deadline by which it must choose either to pay or to provide security concurrently against our performance. We may withdraw from the contract if this deadline expires and neither payment nor security has been rendered.
§ 9 Retention of Title
(1) The retention of title in this Section serves as security for our receivables against the customer under the respective contractual relationship and additionally for all of our other trade receivables against the customer existing at the time the respective contract is concluded, including outstanding balance receivables from current account (referred to collectively as “Secured Receivables”).
(2) Any goods which we have supplied to the customer remain our property until all Secured Receivables have been paid in full.
(3) The customer may not pledge the Secured Receivables or transfer title in the Secured Receivables as security or use them for sale and lease back transactions. If an application for commencement of insolvency proceedings is filed and/or if the reserved goods are seized by third parties (e.g. an attempted seizure) the customer must immediately notify the third party of our position as owners.
(4) The customer shall store the Secured Receivables for us free of charge. The customer shall treat the Secured Receivables with care and insure them adequately and at its own expense against fire, water and theft damage and at their replacement value. If servicing, maintenance or inspection work becomes necessary (this does not include any (subsequent) fulfilment work to be carried out by us), the customer must perform such work in good time at its own expense.
(5) The customer must notify us immediately of any attempts of third parties to seize the Secured Receivables. If the third party does not refund any court or out-of-court costs which we incur in this connection, the customer will be liable to us for such costs.
(6) If the customer so requests, we shall release Secured Receivables if their estimated value exceeds the value of the secured claims by more than 20%. The selection of the Secured Receivables to be released is at our discretion.
(7) If we withdraw from the contract in accordance with the statutory provisions due to a breach of contract by the customer – in particular due to default of payment – we shall be entitled to demand the return of the Secured Receivables from the customer. Our request for return of the Secured Receivables shall, at the latest, automatically be deemed as our declaration of withdrawal; the same shall apply if we seize Secured Receivables. The customer shall bear the transport costs incurred by us for our taking back the Secured Receivables. We shall be entitled to make use of any Secured Receivables taken back by us. The proceeds of the sale less a reasonable amount for the costs of the sale shall be offset against the amounts owed to us by the customer.
§ 10 Warranty for Defects etc.
(1) The warranty begins with the transfer of risk and is based on the statutory provisions, unless otherwise stated below.
(2) We do not assume any warranty for used goods. An insignificant defect also does not justify any warranty claims. Furthermore, we have no warranty obligation if the customer modifies the goods or has them modified without our consent and the repair therefore becomes impossible or unreasonably difficult; in any case, the customer must bear the additional costs of the repair based on such modification. We also do not accept any warranty for normal wear and tear of the goods or for defects and damage resulting from unsuitable or improper use, failure to observe instructions for use or incorrect or negligent treatment or from improper attempts of repair by the customer.
(3) We warrant that the goods delivered by us comply with the contractual specifications and fulfil the legal requirements applicable in Germany. In the case of any customer-specific adaptations, modifications or other customer-specific services provided by us, in particular contract manufacturing services, solely the customer is responsible for the suitability of the goods for the customer’s technical, structural and organizational conditions and purposes.
(4) We shall not assume any warranty for defects which are due to the customer disregarding instructions for use / installation / assembly / mounting / maintenance or other instructions from us or the original manufacturer of parts of the goods, for using parts which do not comply with the specifications of the original manufacturer, or for replacing parts or making other changes to the goods.
(5) Unless an acceptance testing has been expressly agreed, the customer shall be obliged to inspect the delivered goods immediately after delivery to the customer or to a third party designated by the customer in accordance with §§ 377, 381 HGB and to immediately notify us of any identified defects.
(6) If the delivered goods are defective, we shall be entitled and obliged, at our option to be taken within a reasonable period of time, first to provide subsequent performance in the form of rectification of the defect (repair) or delivery of a defect-free item (replacement delivery). In the case of a replacement delivery, the customer must return the item to be replaced to us in accordance with the statutory provisions. The same applies in the case of rectification of defects for replaced spare parts.
(7) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs, if a defect actually exists. However, testing and/or subsequent performance shall not include the removal of the defective item or the installation of the defect-free item if we were not originally obliged to install it; this shall not affect the possible reimburse ability of removal and installation costs as part of a damages claim of the customer. If the customer’s warranty complaint turns out to be unjustified, we can demand that the customer reimburse us for our costs arising from the unjustified customer complaint.
(8) Handling of manufacturer’s warranties: Manufacturer’s warranties are performance promises made by the manufacturer to the customer. They therefore do not constitute any obligations on our part. The customer itself is obliged to establish the conditions for the exercise of claims under such guarantee at its own expense. In particular, the customer shall bear the costs of transport to and collection from the manufacturer, assembly and disassembly as well as the costs of a replacement device, if applicable. We are expressly prepared to carry out the above-mentioned work on behalf of the customer; this requires a separate service order from the customer, which is subject to a charge.
(9) A right of termination for convenience (in particular resulting from §§ 650, 648 BGB) is excluded. Claims for damages shall only exist in accordance with § 11.
§ 11 Liability
(1) Unless otherwise provided for in these GTC (including this § 11), we shall be liable for any breach of contractual and non-contractual obligations in accordance with statutory provisions.
(2) We shall have unlimited liability – for whatever legal reason – for compensation for damages resulting from an intentional (vorsätzlich) or grossly negligent (grob fahrlässig) breach of duty by us or by our legal representatives or vicarious agents.
(3) In the event of a merely slightly or ordinarily negligent (einfach oder leicht fahrlässig) breach of duty by us or by our legal representatives or vicarious agents, we shall (subject to a milder standard of liability in accordance with statutory provisions, e.g. for care in our own affairs or for minor breaches of duty) be liable only
(a) – without limitation – for damages resulting from injury to life, body or health;
(b) or damages resulting from the violation of material contractual obligations. Material contractual obligations are those obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the customer regularly relies and may rely. In these cases, however, our liability is limited to losses which are typical for this type of contract and foreseeable at the time of conclusion of the contract.
(4) The limitations of liability in paragraph (3) shall not apply where we have maliciously failed to disclose a defect or where we have assumed a warranty in respect of the attributes of the goods or a procurement risk. This shall have no effect on any mandatory statutory liability, in particular under the German Product Liability Act (Produkthaftungsgesetz).
(5) If claims are asserted against the customer due to the infringement of intellectual property rights by the goods delivered by us, the customer is obliged to inform us immediately in writing.
(6) Contractual penalties or lump-sum damages which the customer owes to third parties in connection with goods delivered by us may – subject to all other preconditions – only be claimed as damages if this has been expressly agreed with us or if the customer has informed us of this risk in writing prior to the conclusion of our contract with the customer.
§ 12 Confidentiality
(1) Insofar as no explicit non-disclosure agreement has been concluded with the customer, the following general regulations on the non-disclosure of confidential information by the customer shall apply. Existing non-disclosure agreements with the customer, however, always take precedence over § 12.
(2) The customer undertakes to keep secret all documents, e.g. cost estimates, illustrations, drawings and calculations, which we send to the customer for the initiation and execution of the contractual relationship, as well as all business matters of a confidential nature, in particular business and trade secrets, which come to the customer’s knowledge in the course of or on account of the contractual relationship with us (collectively referred to as “Confidential Information”), both during the term of this contract and after its termination (duty of confidentiality).
(3) The customer shall protect the Confidential Information with the same care with which the customer protects its own business and trade secrets, but at least with the care of a prudent businessman.
(4) The customer shall pass on Confidential Information only to the extent necessary and only to such employees or entrepreneurs who are legitimately entrusted with the purchase, assembly or operation of the goods for the customer (“Authorized Persons”). The customer shall also obligate all Authorized Persons to confidentiality in accordance with this § 12 in writing. At our request, the customer shall submit the relevant confidentiality agreements. Confidential Information may not be made accessible to persons other than the Authorized Persons without our express written consent.
(5) The duty of confidentiality shall not apply to such information which the customer has received in a legally permissible manner from third parties, which is publicly known or generally accessible or for which statutory disclosure obligations exist. If the customer considers itself to be under such an obligation, the customer shall notify us in writing in good time before disclosure, insofar as legally permissible, so that we can prevent disclosure by legal means. In this notification, the customer will inform us in a suitable form, for example in accordance with the written opinion of a legal advisor, which confidential information must be forwarded. The customer will disclose only that part of the confidential information which must be disclosed. The customer bears the burden of proof for the existence of an exception to the confidentiality obligation.
§ 13 Assignment of Claims
The customer is not entitled to assign claims arising from the contract.
§ 14 Limitation Period
(1) The limitation period for all claims – including non-contractual claims – for material defects and defects of title shall be one (1) year from delivery/performance. Delivery in this respect shall also mean the receipt of our notice of readiness for collection by the customer or – if dispatch has been agreed – the handing over of the goods to the transport person.
(2) If the parties have agreed that the goods have to undergo acceptance testing, the limitation period begins on acceptance.
(3) Paragraphs (1) and (2) shall not apply in the event of wilful or grossly negligent breach of duty, for damages resulting from injury to life, body or health, in the event of fraudulent concealment of a defect and/or mandatory statutory liability. In these aforementioned cases, the statutory limitation period shall apply exclusively.
§ 15 Product Safety Measures
In the event that product safety measures are taken at or against the customer in connection with our goods (e.g. official market surveillance measures, such as the ordering of a withdrawal or recall) or the customer intends to take such measures itself (e.g. reports to market surveillance authorities), the customer shall inform us immediately in writing.
§ 16 Place of Performance
The place of performance for our obligations is our registered office.
§ 17 Choice of Law and Venue
(1) These GTC and the contractual relationship between us and the customer shall exclusively be governed by substantive German law. The UN Sales Convention (CISG) and other international uniform laws shall not apply.
(2) Place of jurisdiction for all disputes arising from or in connection with these GTC or the contractual relationship between us and the customer is Munich. Notwithstanding s. 1, we shall also be entitled to commence legal action at the customer’s general place of jurisdiction or at the place of performance. Mandatory statutory provisions, in particular those concerning exclusive places of jurisdiction, shall remain unaffected.
§ 18 Final Provisions
(1) Where these GTC contain a German term as a translation for an English term, the German term shall be binding for the interpretation of these GTC. These GTC, its words and phrases are to be construed under German law paying regard to the use of English as language of convenience. Terms in brackets shall have their meaning under German law without recourse to English or any other law.
(2) Should individual provisions of these GTC be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, the validity of the rest of the contract shall not be affected. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects come as close as possible to the economic objective which the parties pursued with the invalid or unenforceable provision. The above provisions shall apply accordingly in the event that the contract proves to be incomplete. § 139 BGB shall not apply.
Version of November 2020
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