General Terms and Conditions of innoFlex FaltenbalgSysteme GmbH, Senner Str. 115, 33647 Bielefeld, Germany
A. Validity of the Terms and Conditions
These Terms and Conditions shall always and exclusively apply to the contractual relationship between our business partners and us (INNOFLEX), even if no special reference is made to them in individual transactions. The terms and conditions of INNOFLEX’s business partners do not apply and this shall hold without the need for an express objection in each individual case.
B. Terms and Conditions of Purchasing and Contract
B.1 These INNOFLEX Terms and Conditions of Purchasing and Contract are exclusively authoritative for orders placed and contracts concluded by INNOFLEX.
B.2 All orders placed and purchases made by INNOFLEX shall – to the extent that these Conditions do not regulate the relevant issue – exclusively be carried out on the basis of statutory provisions.
B.3.01 In the case of invoices received by the 10th of a month, INNOFLEX shall pay on the 20th of the month with 3% discount or net on the 10th of the month after next.
B.3.02 In the case of invoices received from the 11th to the 20th of a month, INNOFLEX shall pay on the 20th of the month with 3% discount or net on the 20th of the month after next.
B.3.03 In the case of invoices received from the 21st to the last day of the month INNOFLEX shall pay on the 10th of the next month with a 3% discount or net on the 30th of the month after next.
B.4 In the event of goods arriving prematurely, the invoice shall become due on the delivery date contractually desired by INNOFLEX. The due date shall be deemed to be the date of receipt of the invoice.
B.5 In the event of defective goods or services or non-conforming partial delivery, the invoice shall become due on the date of freedom from defects or complete delivery. The due date shall be deemed to be the date of receipt of the invoice.
B.6 The contractual partner of INNOFLEX shall be liable for warranty and damages to the extent and for the duration provided by law.
B.7 The place of jurisdiction and place of performance is Bielefeld. German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
C. General Terms and Conditions of Service
C.1. Confirmation of order and scope of services
C.1.01 These General Terms and Conditions of Service shall always and exclusively apply to all contractual relationships between – INNOFLEX and its customers, even if no special reference is made to them in individual transactions. The terms and conditions of INNOFLEX’s customers do not apply and this shall hold without the need for an express objection in each individual case.
C.1.02 The written order confirmation of INNOFLEX shall determine the content of the respective contract. Oral agreements in connection with the conclusion of contracts made with INNOFLEX employees who are not authorised to represent the company, also require written confirmation by INNOFLEX to be effective.
C.1.03 The customer shall provide INNOFLEX with all information and documents which are necessary or useful for the performance of the contractually agreed services. If a specification sheet is drawn up and submitted to the customer for review and approval, this specification sheet shall define the scope of services in a manner binding on both parties.
C.1.04 Characteristics attributable to INNOFLEX which include measurable values shall be understood with a tolerance of ± 10%.
C.1.05 INNOFLEX shall only be obliged to provide consultancy services on the basis of a special contract and in exchange for separate remuneration.
C.2. Brand names/rights of third parties
C.2.01 INNOFLEX is entitled to affix its own logo and brand names. The customer is prohibited from removing such marks affixed by INNOFLEX.
C.2.02 The customer is liable for the templates, drafts, plans, texts, brands and similar items handed over by him being able to be rightfully utilized.
C.3. Delivery C.3.01 INNOFLEX reserves the right to choose the mode of dispatch, unless a particular mode of dispatch is expressly prescribed or agreed.
C.3.02 The place of performance for deliveries shall be the premises of INNOFLEX, even if INNOFLEX carries out transportation itself. If the goods leave INNOFLEX’s factory or warehouse, the customer shall assume all risk. In the case of direct deliveries ex works or preliminary supplier, the risk shall pass to the customer upon dispatch there. The delivery will only be insured at the request of the customer and then at its expense.
C.3.03 If dispatch is delayed due to circumstances for which the customer is responsible, the risk shall be transferred to the customer on readiness for dispatch on the agreed delivery date. This shall also apply in other cases where INNOFLEX is not responsible for the delay in dispatch.
C.4. Delivery time
C.4.01 Any delivery periods agreed are ex works, unless expressly agreed otherwise. Such delivery periods shall commence on the date specified in the order, but at the earliest when the documents, approvals, call-offs and shipping addresses to be procured by the customer are available, all details of the order have been clarified and the customer has made agreed down payments or provided collateral. If a delivery period has been agreed, it shall be extended appropriately if the customer is in arrears with the provision of documents, approvals, shipping address, notifications, down payments or collateral it must procure. If a delivery date has been agreed, it shall be postponed appropriately if the customer is in arrears with the provision of documents, approvals, shipping address, notifications, down payments or collateral it must procure. Delivery dates shall be postponed or delivery times extended if the preconditions for the services to be provided by INNOFLEX, which the customer itself or a third party has to provide, are not fulfilled in time.
C.4.02 If the customer requests changes to the order after order confirmation, the delivery period shall not commence until INNOFLEX has confirmed the change. The delivery date shall be postponed accordingly.
C.4.03 The performance period shall be extended appropriately in case of unforeseen obstacles which INNOFLEX cannot avert despite reasonable care in the circumstances of the case, such as total or partial failure of subcontractors for which INNOFLEX is not responsible. In such a case INNOFLEX may withdraw from the contract.
C.4.04 A claim for damages instead of performance or for damages due to delay is excluded in the cases of Clause
C.4.03, if INNOFLEX has informed the customer immediately of the obstacles to performance that have materialised.
C.4.05 The same shall apply to transactions for delivery by a fixed date if the aforementioned delays do not cease in time. C.4.06 Any damages for delay to be paid by INNOFLEX shall be limited to the negative interest.
C.5. Partial deliveries C.5.01 INNOFLEX is entitled to make partial deliveries.
C.5.02 If INNOFLEX exercises this right, payments for goods already delivered cannot be withheld for this reason.
C.6.01 The list prices valid on the day of delivery shall apply, unless the prices have been expressly agreed between the customer and INNOFLEX.
C.6.02 Unless otherwise agreed, prices are ex works or factory or ex warehouse.
C.6.03 Insofar as packaging is needed, this will be charged at cost price and will not be taken back.
C.6.04 The prices, the same applies to costs and interest, are exclusive of the applicable value added tax.
C.6.05 If the cost factors change after order confirmation, in particular the prices for raw or auxiliary materials, as well as wages and transport costs, we can make a corresponding adjustment to the prices if there is a longer period than 4 months between order confirmation and delivery.
C.7. Terms and Conditions of Payment
C.7.01 Payments to be made to INNOFLEX are due either after – 8 days with 3% discount or after – 14 days with 2% discount or after – 30 days without discount. If this date is exceeded, the debtor shall be in default.
C.7.02 If the customer defaults, INNOFLEX is entitled to charge default interest at a rate of 10% p.a. above the base rate. This shall not affect our rights to prove and assert further damages.
C.7.03 The place of performance for payments shall be the place of business of INNOFLEX.
C.7.04 The customer may only offset against undisputed or legally established claims.
C.7.05 The customer has no right of retention. However, the rights pursuant to section 320 of the German Civil Code (BGB) shall remain unaffected as long as and to the extent that INNOFLEX has not fulfilled its warranty obligations.
C.7.06 If INNOFLEX accepts cheques for payment, this will only be done as a service on account of performance.
C.7.07 If the customer’s financial situation deteriorates considerably after conclusion of the contract – should a declaration of intent by the customer still be required for conclusion of the contract, after INNOFLEX’s last declaration of intent directed towards conclusion of the contract –, e.g. if a bill of exchange and/or cheque is protested, INNOFLEX may demand advance payment or provision of collateral for all services and deliveries still to be performed under contracts from the same legal relationship (§ 273 BGB), at INNOFLEX’s discretion. If the customer does not comply with this request, INNOFLEX may withdraw from the said contracts or, following a deadline, demand damages instead of performance, namely 25% of the non-executed order sum without special proof, unless the customer proves a lesser damage. INNOFLEX is also entitled to claim compensation for damages exceeding the lump sum.
C.8. Duty to inspect and give notice of defects
C.8.01 INNOFLEX’s deliveries, this also applies to drawings, execution plans and the like, must be inspected by the customer immediately upon delivery for usability and correctness.
C.8.02 Obvious defects must be reported to INNOFLEX in writing within 6 days of arrival at the destination, giving precise details of the specific complaints.
C.8.03 In the case of direct delivery of the goods to third parties, the period for giving notice of defects is extended by 7 days. C.8.04 The customer must also give notice of hidden defects in this form immediately after their discovery.
C.8.05 If the customer does not comply with these obligations mentioned under
C.8.01 to C.8.04, any warranty claims of the customer shall be excluded.
C.9. Warranty The following warranty limitation does not apply to damages resulting from injury to life, limb or health, which are based on a deliberate or negligent breach of duty by INNOFLEX or a legal representative or proxy of INNOFLEX. It shall also not apply if any other damage is due to intent or gross negligence.
C.9.01 The warranty period is 12 months. Any liability and warranty is excluded for minor breaches of duty and minor defects. In the event that the customer is entitled to subsequent performance, INNOFLEX shall decide whether subsequent performance shall be effected by remedying the defect or by delivering a defect-free item.
C.9.02 Work on goods delivered by INNOFLEX or other services rendered by INNOFLEX shall only be deemed to be work to remedy or repair defects – if the defectiveness has been expressly acknowledged by INNOFLEX – or if notices of defects have been proven – and if such proven notices of defects are justified. Without these prerequisites, such work is to be regarded as special performance.
C.9.03 INNOFLEX will also provide repairs of defects or replacement deliveries as special performance, if they are not expressly made in recognition of a legal obligation.
C.9.04 The customer shall give INNOFLEX the necessary time and opportunity to carry out repairs and replacement deliveries owed under warranty. Only in urgent cases, e.g. in case of endangerment of operational safety and to prevent damage which would be disproportionately great, in which case INNOFLEX shall be notified immediately, or if INNOFLEX is in default with remedying a defect, the customer shall be entitled to remedy the defect itself or have it remedied by a third party and to demand reimbursement of the necessary costs from INNOFLEX.
C.9.05 To the extent that subsequent performance to be carried out at INNOFLEX’s discretion has not led to rectification of the defect after a reasonable number of attempts, to be assessed on a case-by-case basis, the customer is entitled to withdraw from the contract. At least three attempts at subsequent performance are reasonable. The number of subsequent performance attempts, after which the customer has a right of withdrawal, must relate to a specific functional unit of the subject matter of the contract. Irrespective of whether the same functional unit of the subject matter of the contract is always affected, the customer has a right of withdrawal if the number of isolated defects makes it unreasonable for the customer to adhere to the contract.
C.9.06 If INNOFLEX has refused subsequent performance despite the customer’s right to subsequent performance, the customer is entitled to withdraw from the contract immediately.
C.9.07 The same shall apply if INNOFLEX has not carried out subsequent performance, which INNOFLEX is entitled to do, within a reasonable grace period to be set by the customer.
C.9.08 The customer is only entitled to a reduction of the price (abatement) if INNOFLEX agrees to it.
C.9.09 All further claims of the customer are excluded.
C.9.10 No warranty shall be assumed for damage for which INNOFLEX is not responsible. This includes, for example, damage that has occurred for the following reasons: Unsuitable or improper use, faulty installation or commissioning by the customer or by third parties, natural wear and tear, faulty or negligent handling, unsuitable equipment or replacement materials or chemical influences, unless they can be determined to be the fault of INNOFLEX.
C.9.11 INNOFLEX does not assume any warranty for components provided by the customer. The customer alone shall be responsible for the suitability and quality of such components, unless expressly agreed otherwise.
C.9.12 In the event that goods delivered by INNOFLEX are installed outside Germany, although the relevant contract has been concluded with a branch or head office of the customer located in Germany, the customer shall bear the additional costs arising from any warranty measures, transport costs, travel costs and other expenses to be borne by INNOFLEX which exceed the borders of Germany.
C.10.01 The limitations of liability in these terms and conditions do not apply to damages resulting from injury to life, limb or health. Otherwise, the following provisions shall apply.
C.10.02 INNOFLEX shall only be liable for intentional or grossly negligent damage caused by INNOFLEX, a legal representative or a proxy. Otherwise liability is excluded.
C.10.03 Should INNOFLEX be obliged to pay damages, INNOFLEX shall be liable in accordance with the following provisions only for direct damage, i.e. not for damage which has not occurred to the delivery item itself.
C.10.04 Any liability of INNOFLEX for consequential losses resulting from a breach of duty, also within the scope of a duty of subsequent performance, is excluded.
C.10.05 The same applies to damages arising from tort.
C.10.06 In addition to the above provisions INNOFLEX shall only be liable for damage exceeding the damage caused to the delivery item itself in cases of intent and gross negligence and within the scope of the German Product Liability Act as well as in the absence of expressly guaranteed attributes, if this guarantee was specifically intended to protect the customer against damage not caused to the delivery item itself.
C.10.07 INNOFLEX shall only be liable for reasonably foreseeable damage typical of the contract, except in cases of intent or gross negligence. C.10.08 Even in the event of liability for breach of material contractual obligations, liability shall not extend to compensation for consequential losses.
C.11. Call-off orders
C.11.01 If call-off orders are not called off within 4 weeks after expiry of the call-off period, INNOFLEX is entitled to demand payment.
C.11.02 The same shall apply to call-off orders without a specially agreed call-off period, if 4 months have elapsed without a call-off since receipt of the notification that the goods are ready for dispatch.
C.12. Storage/default of acceptance
C.12.01 Should temporary storage of finished goods at INNOFLEX be expressly agreed or should storage become necessary due to default of acceptance, INNOFLEX shall not be liable for damage occurring despite the observance of reasonable care.
C.12.02 INNOFLEX is also not obliged to insure stored goods.
C.12.03 In case of default of acceptance INNOFLEX is entitled to store the goods at a commercial warehouse at the risk and for the account of the customer.
C.12.04 In the case of storage on its own premises, INNOFLEX is entitled to charge 0.5% of the invoice amount, but at least €25, per month.
C.12.05 The two preceding paragraphs also apply in the event that dispatch is delayed at the request of the customer for at least 2 weeks beyond the date of notification of readiness for dispatch.
C.12.06 If the customer does not accept the ordered goods despite having been given a deadline, INNOFLEX is entitled to demand 20% of the agreed price as lump sum compensation, irrespective of proof of actual damage. The customer reserves the right in each case to prove a lower percentage.
C.13. Retention of title C.13.01 All deliveries are subject to retention of title.
C.13.02 This reservation together with the following extension shall apply until payment of all claims arising from the business relationship with the customer and until complete release from contingent liabilities which INNOFLEX has entered into in the interest of the customer.
C.13.03 Pledging of the delivered items is not permitted.
C.13.04 INNOFLEX is entitled to demand the return of the goods subject to retention of title for good cause, in particular in case of default, while offsetting against the proceeds of realisation, without this constituting a withdrawal from the contract. A precondition is that INNOFLEX has given the customer prior warning of the demand to return the goods with a performance deadline of 7 days. This deadline can be set at the same time as the reminder.
C.13.05 If and to the extent that the goods taken back can otherwise be sold by INNOFLEX in the normal course of business as new, the customer shall owe 10% of the invoice value of the goods as take-back costs without further proof. If it is not possible to sell the goods as new in the normal course of business, the customer shall owe a further 30% of the invoice value of the goods for loss of value without further proof. The customer reserves the right in each case to prove a lower percentage.
C.13.06 INNOFLEX reserves the right to pursue further compensation claims.
C.13.08 The customer hereby assigns in advance to INNOFLEX all claims arising from the resale and other exploitation of INNOFLEX’s goods.
C.13.09 The collection authorisation remaining to the customer in spite of the assignment expires through revocation which is permitted at any time.
C.13.10 If the value of the collateral to which INNOFLEX is entitled exceeds INNOFLEX’s claim against the customer by more than 20%, INNOFLEX shall be obliged at the customer’s request to release collateral to the corresponding extent at INNOFLEX’s discretion.
C.14. Place of performance
C.14.01 The place of performance for the services to be rendered by INNOFLEX shall always be INNOFLEX’s premises.
C.14.02 The place of performance for deliveries shall be the premises of INNOFLEX, in particular even if INNOFLEX transports the goods itself.
C.15 Place of jurisdiction and substantive law
C.15.01 Bielefeld is agreed as the place of jurisdiction for all disputes arising from transactions based on these Terms and Conditions with merchants, public-law legal entities and public-law special funds. Notwithstanding the foregoing, INNOFLEX has the right to sue the business partner at its place of business.
C.15.02 Similarly, the laws of the Federal Republic of Germany shall be exclusively applicable. The application of the UN Convention on Contracts for the International Sale of Goods and other uniform law is excluded. Bielefeld, January 2009 innoFlex FaltenbalgSysteme GmbH Senner Straße 115 33659 Bielefeld Telephone: +49 (0)5209 901353 Fax: +49 (0)5209 901358 E-mail: email@example.com www.faltenbalg.de Commercial register: Bielefeld Local Court HRB 36383 VAT ID: DE 812 626 448 Managing Director: Jürgen Gläs