General Terms and Conditions of Sale (valid as of January 2020)
I. Scope of application
1. The following Terms and Conditions of Sale apply exclusively to all contracts of German companies within the Livekindly Germany GmbH group; varying terms and conditions of contractual partners shall not be recognised as valid unless we have expressly agreed to the applicability of such terms and conditions in writing. Our Terms and Conditions of Sale shall also apply even when we make unconditional delivery in full cognisance of the varying conditions of contractual partners.
2. All agreements of the parties, which they have made in the context of contract negotiations with a view to the execution of the contract, shall be set out in writing.
3. Our Terms and Conditions of Sale shall only apply to companies within the meaning of sec. 310 para. 1 of the BGB (German Civil Code).
4. The most recently amended version of our Terms and Conditions shall serve as a framework agreement for future contracts with the same contractual partners without us having to refer to them again in individual cases. We shall inform our contractual partners immediately should there be any changes to our Terms and Conditions of Sale.
II. Conclusion of contract / Prices
1. Should an order qualify as an offer in terms of sec. 145 of the BGB, we may accept it within 2 weeks.
2. Unless otherwise agreed, our prices are “ex works” excluding packaging.
3. VAT applicable is not included in our prices, but the amount as specified by law is shown separately on the invoice when the invoice is issued.
4. The determining factor in the calculation of prices is the weight of the goods when dispatched. The price shall not be affected by any natural loss in weight occurring during transportation or interim storage.
5. To the extent that, in a contractual relationship which has as its object the regular delivery of goods by us, a specific price has already been agreed upon at the time of contract signature, we reserve the right to increase prices due to subsequent changes in market prices or costs, such as an increase in taxes, duties, other levies, procurement or inspection costs, freight, handling or storage costs or exchange rate movements. A price increase will be considered only if, after taking all these cost factors into account, an effective increase in cost results. Likewise, we undertake to apply any effective market price decreases or cost reductions to the agreed price. We shall provide evidence to the contractual partner upon request of any cost reductions or increases.
6. Paragraph 5 shall apply to a contractual relationship which has as its object the regular delivery of goods by us in which the goods are only to be delivered four months after conclusion of the contract, or later.
7. If, in terms of the stipulations contained in paragraphs 5 and 6 above, the agreed price increases by more than 5%, our contractual partner is entitled to withdraw from the contract, or in terms of the stipulations under paragraph 5 and in the case of long-term transactions, to terminate the contract on the effective date of the price change.
III. Quality of the goods
1. Samples shall always be considered as average samples. Product-specific quality variations and variations of less than 11% in terms of indications of size and/or volume per unit weight are agreed as an acceptable tolerance.
2. In a contractual relationship which has as its object the regular delivery of goods by us, we reserve the right to make changes to the agreed products, in so far as it concerns changes in production procedures, changes in packaging, changes in the state of technology, or changes in the requirements of the law or the authorities or in recommendations by professional associations or experts, and changes or variations which are considered reasonable when taking into account the mutual interests of our contractual partners.
3. Paragraph 2 shall apply accordingly to a contractual relationship which has as its object the regular delivery of goods by us in which the goods are only to be delivered four months after conclusion of the contract, or later.
1. The purchase price and amounts for additional services are due and payable to our company immediately, net free of postage and expenses, upon delivery of the goods and receipt of the invoice or an equivalent request for payment. In the case of partial deliveries, this applies to the amount owing in respect of the goods delivered.
2. The deduction of an early payment discount requires a special agreement in writing.
3. Our contractual partner may offset the amount of counterclaims which form part of this synallagmatic contract (i.e. the mutual agreement which constitutes the contract of sale) against outstanding amounts due to us, especially where claims for compensation exist owing to lack of performance on our part. The contractual party is entitled to offset the amounts of such claims against amounts payable as have been legally established, undisputed or acknowledged by us. The contractual party may exercise its right of retention, insofar as the counterclaim relates to the same contractual relationship.
4. Our contractual partner shall be deemed to be in default if it does not pay within 14 days of due date, which is the date of receipt of invoice or equivalent request for payment. Should the date of receipt of invoice or equivalent request for payment be uncertain, the contractual partner shall be deemed to be in default 14 days after the due date stipulated and date of receipt of the goods. The date of payment shall be the date on which the money is received in our account.
5. In the event of a serious breach of contract, such as being in default on partial payments in respect of two consecutive payment dates, we are entitled – even if in receipt of cheques and bills of exchange – to make all amounts outstanding together with interest at the agreed rate accrued to date immediately due and payable, irrespective of the period of payment originally agreed. The above shall not apply if our contractual partner is not responsible for the arrears or serious breach of contract.
6. If it becomes apparent after conclusion of the contract that the settlement of our payment claims is at serious risk due to lack of performance on the part of our contractual partner, we are entitled to make any outstanding amounts immediately due and payable, unless the contractual partner provides adequate collateral security within a reasonable period determined by us.
7. In terms of the provisions of paragraph 6, we may also refuse delivery of the goods until the contractual party has either provided collateral security or settled the amounts outstanding.
8. Should our contractual partner not make any arrangements for the payment of amounts outstanding, we may, at our sole discretion, offset incoming payments against existing claims and secondary claims against it.
1. The shipment of goods and all associated activities, even if we do assume the shipping costs, shall always be carried out in the name of and at the risk of our contractual partner. The contractual partner is to arrange its own insurance cover.
2.We are entitled, within reason, to effect partial deliveries to our contractual partner, which shall be regarded as partial fulfilment of our obligations.
3. In the event that we are not able to meet contractually binding delivery deadlines for reasons which we are not responsible for (non-availability of goods or services), we shall immediately inform the contractual partner and simultaneously inform them of the anticipated revised delivery date. If the goods are not available within the revised delivery period, we are entitled to withdraw in whole or in part from the contract, and shall immediately refund any payment in respect of such delivery which our contractual partner may already have made. Non-delivery by reason of nonavailability of goods or services in this sense includes, in particular, the delayed delivery by our suppliers, if neither we nor our suppliers are at fault, or, in isolated cases, we have not made firm undertakings as regards procurement. Legal claims and rights of our contractual partner shall remain unaffected in this regard.
4. Delays which occur due to the fact that the contractual partner has not supplied us with all the technical or other information required for the delivery shall likewise have the effect of postponing the agreed delivery date or extending the agreed delivery period accordingly.
5.We are liable according to the statutory provisions if the underlying contract is a fixed transaction within the meaning of sec. 376 of the HGB (German Commercial Code), or to the extent that a cessation of interest on the part of our contractual partner in the further fulfilment of the contract by reason of our delay has occurred. In either case, our liability shall be limited to claims for compensation in respect of contractually typical, foreseeable damage.
6.We are also liable according to the statutory provisions should the delay in delivery constitute a wilful or grossly negligent breach of contract on our part, negligence of our representatives or agents of vicarious liability. Should the delay in delivery constitute a grossly negligent breach of contract on our part, liability shall be limited to claims for compensation in respect of contractually typical, foreseeable damage.
7.We are also liable according to the statutory provisions to the extent that the delay in delivery constitutes a culpable breach of material contractual obligations, notwithstanding that in this case too, liability shall be limited to claims for compensation in respect of contractually typical, foreseeable damage.
8. In addition, we shall be liable in the event of a delay in delivery to furnish a lumpsum penalty in the amount of 3% of the delivery value of the goods in default in respect of each complete week of delay, with the total amount of the penalty not exceeding 15% of the delivery value of the goods in default. We retain the right to prove lesser damages.
VI. Default of acceptance
1. Should our contractual partner be in default of acceptance, culpably breach other obligations or delay acceptance of our delivery for reasons of its own, we shall be entitled to demand compensation for the damage incurred by us as a result, including any additional expenses. We retain the right to further claims in this regard.
2. Provided that the requirements of paragraph 1 are fulfilled, the risk of accidental loss or accidental deterioration of the goods passes to our contractual partner, from the point in time at which the partner is advised of such default of acceptance or default of payment.
3. Should deliveries or partial deliveries upon request but without specific delivery dates be agreed upon, and our contractual partner does not retrieve the agreed deliveries or partial deliveries within a customary, reasonable period of time, we may request it to do so. If our contractual partner fails to do so within the reasonable period of time determined by us, we shall be entitled to withdraw from the contract and to claim damages.
VII. Treatment of the goods, advertising and product labelling
1. Upon delivery, our contractual partner shall be responsible for compliance with all relevant legal, public authority and public health regulations, guidelines and recommendations on the treatment of the goods – with particular regard to cooling and refrigeration – during loading and unloading, transportation, storage, sorting and packaging as well as during exportation and importation.
2.When taking samples for the purposes of official food inspections, the contractual partner shall, to its own cost, arrange for officially-drawn and sealed crosscheck samples to the required extent, but at minimum, to the required extent deemed appropriate by the inspection authority, such samples to be properly stored and ready for our collection.
3. Unless it has purchased them, the contractual partner is obliged to return to us the empties and reusable packaging and transport material (including Euro boxes, pallets, etc.) received with the goods in a hygienic, properly cleaned condition, or to replace them with corresponding empties of the same type, quality and quantity.
4. Our contractual partner may make public statements about our products and their properties or qualities, especially in the context of advertising or labelling the products, but only in accordance with product information published by us and only as deemed appropriate.
5. The proper statutory foodstuff designation when selling the goods in locations where different trade practices and regulations apply is the responsibility of the contractual partner.
VIII. Retention of ownership
1.We reserve title to the goods until receipt of all payments relating to the business relationship with the contractual partner. Should breach of contract by the contracting party, in particular, default in payment occur, we shall be entitled to take back the purchased goods. The taking back of the purchased goods constitutes a withdrawal from the contract. We shall be entitled to sell the goods, the proceeds of which – minus reasonable costs – will be deducted from the liabilities of the contractual partner.
2. The contractual partner is obliged to treat the purchased goods with the care of a prudent businessman; in particular, it undertakes to insure the goods at replacement value at its own expense against fire, water and theft. The contractual partner is to carry out any maintenance and inspection work required at its own expense and in a timely manner.
3. Should seizure by third parties or other interventions occur, the contractual partner shall immediately notify us in writing so that we can institute legal proceedings pursuant to sec. 771 of the ZPO (German Code of Civil Procedure). If the third party is unable to reimburse us for the judicial and extrajudicial costs of legal proceedings pursuant to sec. 771 of the ZPO, the contractual partner shall be liable for any loss incurred by us.
4. The contractual partner shall be entitled to resell purchased goods in the ordinary course of business; however, it must already have assigned to us all amounts equivalent to the amount of the final invoice (including VAT) of the payment due to us which shall accrue to the partner from the resale to its customers or third-party purchasers, regardless of whether the goods have been resold without or after further processing. If there is a current account relationship in terms of sec. 355 of the HGB between our contractual partner and its customer, the contractual partner shall assign to us in advance any payment due to us from the recognised balance in that account, or the existing causal account balance in the case of its customer’s insolvency. Our contractual partner shall be authorised to collect the abovementioned amounts due, even after their assignment. Our authority to collect a debt ourselves remains unaffected. We undertake, however, not to collect the amount receivable as long as our contractual partner is able to meet its payment obligations from the collected proceeds, is not in default of payment and in particular, has no judicial settlement or insolvency proceedings filed against it. Should this be the case, however, we may require that the contractual partner notifies us of the assigned amounts and the debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
5. We shall retain the right to processed or converted purchased goods. If the goods are processed together with material not belonging to us, we shall acquire coownership of the new item in proportion to the value of the goods purchased from us (final amount of the invoice, including VAT), measured at the time of processing. The same retention of title shall apply in respect of processed products as applies to purchased goods delivered by us.
6. If the goods are inseparably processed and mixed together with material not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the goods purchased from us (final amount of the invoice, including VAT), measured at the time of mixing. If the mixing is such that the product of our contractual partner is regarded as the primary product, it shall be deemed as agreed that the contractual partner shall transfer proportional joint ownership to us. The contractual partner shall hold the new product in safe custody on our behalf.
7. We undertake to release the securities due to us at the request of our contractual partner to the extent that the realizable value of our securities exceeds the secured claims by more than 10%, the choice of the securities to be released being at our sole discretion.
1. Claims for defects made by our contractual partner assume that it has fulfilled its inspection and complaint obligations in accordance with sec. 377 of the HGB. Complaints must be made in writing. The contractual partner shall notify us of an apparent or visible defect within 24 hours of delivery in respect of perishable goods, failing which the goods shall be deemed to be approved. If the defect is not immediately apparent, and only becomes apparent later, the contractual partner shall notify us of such defect within 24 hours of discovery in respect of perishable goods, failing which the goods shall be deemed to be approved.
2. Together with the claim for defects, our contractual partner shall inform us where the goods have been since effective transfer of risk to it, so that we can investigate the matter. Upon our request, the partner shall furnish at its own cost all appropriate evidence.
3. Should there be a defect in the purchased goods, we shall be entitled at our discretion to remedy the defect or delivery by supplying a defect-free replacement. We shall bear the costs entailed in replacing defective goods, in particular, transport, travel, labour and material costs, to the extent that these costs do not increase because the goods have been transported to a place other than the original place of delivery.
4. Our contractual partner shall provide at its own cost proper interim storage of any faulty goods, subject to an emergency sale pursuant to sec. 379 paragraph 1 of the HGB. The return requires our prior written consent.
5. If subsequent performance fails, our contractual partner is entitled, at its sole discretion, to withdraw from the contract or demand a discount. If only part of a consignment is defective, the contractual partner shall be entitled to withdraw from the entire contract only if its interest in the rest of the delivery has ceased. The contractual partner shall bear the burden of proof of the cessation of interest in respect of the remaining part of the delivery.
6. Claims of our contractual partner for defects in goods not recently manufactured are excluded, unless we have provided a guarantee for the condition thereof.
7. The limitation period for warranty claims is 12 months from transfer of risk. This does not apply in case of a sale of an item which is usually used in construction and which has caused the defect in question.
8. The limitation period in case of a delivery recourse pursuant to sections 478, 479 of the BGB remains unaffected.
1. Our liability for culpable injury to life, limb, body and health as well as our strict liability resulting from hazardous circumstances (in particular in accordance with the German Product Liability Act) shall remain unaffected by these Terms and Conditions of Sale. Nor does it affect our liability in respect of warranties and guarantees, if a defect covered by these specifically triggers our liability. Otherwise, the following applies:
2.We shall be fully liable for gross negligence and wilful breach of contractual obligations (including gross negligence and wilful breach of contractual obligations by our legal representatives and agents of vicarious liability). If we are not in intentional breach of contract, our liability shall be limited to contractually-typical, foreseeable damage.
3.We also adhere to the statutory provisions, insofar as we are in culpable breach of any material contractual obligation; in this case, however, liability is limited to contractually-typical, foreseeable damage. A material contractual obligation shall be deemed to be an obligation which gives character to the contract and on whose fulfilment one of the parties relies, and considers the purpose of the contract. This includes for example our commitment to deliver goods ordered or provide goods for collection at the agreed time.
4. Any further liability is excluded – irrespective of the legal nature of the asserted claim. This applies in particular to claims for damages from negligence in the conclusion of the contract, other breaches of duty and tort claims for property damage pursuant to sec. 823 of the BGB. This limitation also applies if the contractual partner requires compensation for unnecessary expenses instead of compensation by way of replacement of goods.
5. To the extent that the liability for damages against us is excluded or limited, the same shall apply to the personal liability of our employees, workers, staff, representatives and agents of vicarious liability.
6. None of the above clauses under paragraphs 1-5 intentionally contradict the statutory or case law in respect of burden of proof.
1. All images, drawings, calculations and other documents and information obtained from us shall be kept strictly confidential. We reserve all rights of ownership, trademarks and copyrights on all documents submitted. Our contractual partner may only use these for the purpose of executing the contract and shall not disclose them to third parties without our written consent; after execution of the contract they are to be returned to us, unless we have expressly waived this condition.
2. The undertaking of confidentiality shall also apply after completion of the contract; it shall expire if and when the knowledge contained in the illustrations, drawings, calculations and other documents has become generally known.
XII. Place of jurisdiction / Place of performance
Place of performance for all obligations under the contract is our registered office, unless stated otherwise in our order confirmation. Whether our contractual partner is a merchant, legal person or legal entity under public law or has no general place of jurisdiction within the Federal Republic of Germany, all legal proceedings or disputes arising from the business relationship, including those concerning exchange rates or cheques, shall be dealt with exclusively by the court of local jurisdiction or court of international jurisdiction competent to handle such matters falling within the jurisdiction of the registered offices of our company. We may, however, institute legal proceedings at the court of local jurisdiction applicable to the registered offices of our contractual partner, or to the registered offices of any one of its subsidiaries or branches.
XIII. Language / Applicable law
1. The language of the contract is German. If contract documents are available in other languages, the German version of the contract shall exclusively govern the legal relationship between the parties.
2. Unless our Terms and Conditions of Sale contain special provisions, the law governing the relationships between domestic parties applicable to the jurisdiction of our registered office (German law) shall apply to the exclusion of any foreign law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
XIV. Final clauses / Severability clauses
1. If the contract does not contain agreement on a particular point upon which both parties considered agreement had already been concluded, we shall be entitled to close the loophole in the contract, in accordance with reasonably exercised discretion.
2. Should any individual provision of the contract be or become void, this shall not affect the validity of the contract as a whole. Should any individual provision of the contract for reasons other than those specified in sections 305 – 310 of the BGB be or become void, the parties shall replace the provision deemed void with a valid provision which is closest in meaning for business purposes to the one deemed void. The same applies should any provision of the contract for reasons of sections 305 – 310 of the BGB be found to be or become void, and no appropriate alternative regulation can be found within the German Civil Code.
General Conditions of Purchase
(valid as of January 2020)
1. The following Conditions of Purchase apply to contracts concluded between any German company within the Livekindly Germany GmbH-Group and other companies, in accordance with article 310 par. 1 of the German Civil Code (BGB).
2. Our Conditions of Purchase shall apply exclusively. Unless otherwise agreed in writing beforehand, no differing conditions stipulated by any other contractual partner shall be valid. Our Conditions of Purchase shall also apply, if we carry out any transaction in the knowledge of differing conditions of the other contractual party.
3. They shall also apply to all future business relations.
4. In order to gain validity, any agreements deviating from these Conditions of Purchase and/ or any additional agreements shall be included in the Contract in writing.
1. Our orders shall only be binding, if made in writing or confirmed in writing after ordering verbally in person or by telephone.
2. We shall no longer be bound by an offer submitted by us, if the supplier has not accepted it within two weeks.
3. The prices stated in our orders are binding. Prices given exclude the applicable value added tax. Unless otherwise agreed in writing, they include delivery, carriage paid, as well as packaging costs and, if importing, customs duties and other import charges.
4. When agreeing to “prices subject to change”, the price that is valid on the day of delivery shall be deemed agreed.
5. In a contractual relationship that governs regular purchases of goods by us, the contractual partner shall allow for price changes in our favour, even if binding prices have been agreed, especially if he lowers the relevant prices in general or for a number of his customers. This also applies to contractual relationships that govern the delivery of goods which we only want to purchase after four months after conclusion of the contract.
6. We only grant remuneration or compensation for visits, preparation of offers, brochures, quotes, etc, if expressly agreed in writing.
III. Our Contractual Partner’s Service
1. If we refer to predefined drawings, images, calculations, plans and/ or specifications of tolerances in our order, the contractual partner agrees that the characteristics resulting therefrom will be the contracted quality of the goods to be delivered. This also applies to packaging and labelling according to our instructions.
2. Our submission of drawings, images, calculations, plans and/ or specification of tolerances does not release the contractual partner from his obligation to check these documents as to their accuracy and suitability for producing and delivering the products ordered.
3. If our orders are based on samples and proofs, the quality of these samples and proofs shall be deemed guaranteed by the contractual partner.
4. If we repeatedly order the same type of products on the basis of previous orders or in the framework of a long-term supply agreement, the contractual partner shall inform us about changes to specifications, production and production processes, composition and ingredients as well as changes in any supplier to the contractual partner, before delivery to us.
5. Agreements on changes to our order with regards to product quantity or quality shall be made in writing.
6. The contractual partner may only set off against any claims that are undisputed or have become res judicata. He may only exercise his right of retention based on claims arising from the same contract.
IV. Our Service/Terms of Payment
1. In order for us to be able to process invoices properly and quickly, the contractual partner shall state our order number, the gross, net and, if applicable, calculation weight, the article description with article number and, in case of partial deliveries, the remaining quantity on all invoices. We shall not be held responsible for delays in the processing and payment of the invoice, if any of this information is missing.
2. A cash discount has been agreed. Unless otherwise agreed, this discount is of 3%, if payment is made within 30 days of full delivery of fault-free goods and receipt of invoice. Time delays caused by incorrect or incomplete billing extend the cash discount period.
3. Our contractual partner’s right to compensation for damages caused by delays is limited to typically foreseeable damages or the specific damage announced before the beginning of the delay, unless the delay results from gross negligence or intent on our part. In case of a delay in payment on our part, our contractual partner’s right to compensation instead of delivery is limited to the value of the order, unless the delay results from gross negligence or intent on our part.
4. We are entitled to offset and retention rights to the extent permitted by law. In case a monetary claim is assigned to a third party, we remain entitled to make payment to our contractual partner.
1. Any return of packaging material shall be subject to a separate agreement. If the return of packaging material has been agreed, it shall be carried out at the risk and cost of the contractual partner.
2. Upon our request, the contractual partner shall take back and/ or dispose of any non-recyclable packaging material at his cost. If the contractual partner fails to perform this duty within the deadline, he shall compensate us for the expenses and damages incurred therefrom.
VI. Delivery and Delayed Delivery
1. The delivery time stated in our order is binding. The delivery time commences on the day of the order (order date). The delivery time shall be deemed to be met, if the goods have been received by us or at the reception point specified by us within the stated time frame.
2. The contractual partner shall inform us immediately of any expected delays.
3. For cargo shipments, a separate shipping note shall be transmitted to us on the day of shipment.
4. Our order number, the quantity and quantity unit, the gross, net and, if applicable, calculation weight, the article description, article number and, in case of partial deliveries, the remaining quantity shall be stated on delivery notes and packing slips.
5. In case of delayed delivery, we are entitled to claim a flat compensation for damages caused by the delay; this compensation shall be 1.5% of the agreed purchase price for each completed calendar week, but no more than a total of 10% of the agreed purchase price. We reserve the right to submit evidence of greater damages as well as any further statutory rights. The contractual partner shall be entitled to prove that no damages or significantly lower damages were incurred due to the delay.
VII. Warranty Rights
1. The contractual partner commits to a thorough inspection of outgoing goods and shall inform us about existing concerns with regards to possible faults.
2. We will inspect the goods with regards to possible deviations in quality and quantity within a reasonable time frame. Any notification of fault shall be deemed in time, if the supplier receives it within five working days from receipt of goods. However, in case of hidden faults, this period only begins with the detection of these faults.
3. In case of faulty goods, we are entitled to request either the correction of the fault or delivery of a new item within the scope of subsequent performance. If we are entitled to withdraw from the contract, we may choose to either limit the withdrawal to the faulty part of the delivery or to apply it to the delivery as a whole. We are entitled to all statutory claims and rights without restriction.
4. The period of limitation ends 36 months after transfer of risk, unless the mandatory provisions of the articles 478, 479 of the German Civil Code (BGB) apply.
5. Insofar as we may have recourse against the contractual partner in accordance with art. 478 of the German Civil Code (BGB), our claims, defined in articles 437 and 478 par. 2 of the German Civil Code (BGB), with regards to faults in newly produced goods sold to any of our customers shall expire at the earliest six months after we have fulfilled our customer’s claims.
6. By way of security, the contractual partner hereby assigns to us any and all statutory and/ or contractual warranty rights for faulty goods against his primary suppliers and subcontractors he may be entitled to. We accept this assignment. This assignment for security purposes is subject to the condition subsequent that the contractual partner completely satisfies our warranty claims. Insofar as he does not fulfil this obligation, we shall not disclose the assignment.
7. If the contractual partner has improved, exchanged or repaired the delivered goods or parts thereof, a new warranty period of 36 months applies to the subsequently delivered, exchanged or repaired item, starting from the date of subsequent delivery, exchange or receipt of repaired item.
8. Longer statutory periods of limitation and the legal regulations regarding suspensions and recommencements of limitation periods shall not be limited by the provisions in this section.
VIII. Our Contractual Partner’s Liability
1. Should we receive a claim for product liability or any other liability case and our contractual partner is responsible for the product faults or damages or the cause lies in his area of control and organisation, he shall indemnify us against the resulting liability upon first request, insofar as he is liable to third parties himself.
2. Within the limitations of his liability for damages in the sense of section 1, the contractual partner shall also be obliged to reimburse any and all expenditures arising from or connected with a product recall made by our company. As far as possible and reasonable, we shall notify the contractual partner of the content and extent of the recall action to be taken and give him the opportunity to comment.
3. The contractual partner undertakes to maintain relevant product liability insurance providing a minimum cover of EUR 5 million per personal injury/property damage claim as a lump sum, and to provide us with evidence of this.
4. Our other statutory claims and rights shall remain unaffected by the aforementioned regulations.
5. Any assignment of contractual rights and obligations to third parties requires our written approval and shall not affect the contractual partner’s liability.
IX. Trade Mark Rights and Third Party Rights
1. The contractual partner guarantees that no third party rights are infringed by or in connection with his delivery and our contractual use of the same.
2. Should we receive a claim on those grounds, the contractual partner shall indemnify us against any such claims upon our first written request. Before reaching a settlement or any other agreement on this matter with the third party, we shall seek the contractual partner’s written consent.
3. Unless the contractual partner proves that he is not responsible for the breach of duty upon which the infringement of the trade mark right is based, the indemnity obligation relates to all expenses necessarily incurred by us arising from or in connection with the claim asserted by a third party, or which we deem necessary for proper handling, from a reasonable point of view.
4. The period of limitation for these claims begins with the transfer of risk and ends after three years.
5. If there are special trade mark rights for the goods and services owed by the contractual partner under this contract, the contractual partner shall be obliged to inform us accordingly.
X. Title and Ownership
1. When ordering goods or parts from our contractual partner, we reserve the ownership rights thereto. Any processing or reshaping by our contractual partner is carried out on our behalf. In case of combination or mixing with other movable goods, we are entitled to co-ownership of the new item at a ratio of the value of the item supplied by us (purchase price plus VAT) versus the other items at the time of combination or mixing.
2. The contractual partner shall insure any tools, machines, machine parts and/ or any other facilities provided by us against fire, water and theft damages at his cost; if requested, he shall show us evidence thereof within a reasonable time period. The contractual partner hereby assigns all claims for compensation under these insurances to us. We accept this assignment. After expiry of the insurance period without claims, we are entitled to buy the relevant insurance protection at his cost.
3. Unless otherwise agreed, the contractual partner may only use the provided items for providing the services stipulated in the contract. The necessary maintenance and repair works shall be carried out in time and at his cost. We shall be informed immediately of any breakdowns or faults.
1. All images, drawings, calculations and other documents and pieces of information obtained from us shall be kept strictly confidential. We reserve the ownership and trademark rights as well as copyrights to any and all documents submitted with an offer or after conclusion of contract. Unless otherwise agreed in writing, the receiving party shall not make them available to third parties and use them solely for the purpose of executing our order. Unless we have expressly agreed that you may keep them, they must be returned to us immediately and without prior request upon completion of the order.
2. The secrecy obligation shall continue to apply after the execution of the contract; it becomes invalid when and insofar as the production know-how contained in any images, drawings, calculations and other documents provided has become common knowledge.
XII. Our Liability
1. If we have to compensate for a damage on the basis of legal provisions in accordance with these conditions, our liability is limited in cases of slight negligence: we shall only be liable in the event of breach of material contractual duties and cardinal obligations and this liability is limited to typical damages foreseeable at the time of conclusion of the contract. This limitation does not apply to death, physical injury and harm to health. Insofar as the damage is covered by insurance that the contractual partner has taken out for the damage case in question (excluding stated benefit insurance), we shall only be liable for any related disadvantages, such as higher insurance premiums or interest penalties until the damage has been regulated by the insurance company.
2. Our liability due to delay is definitely regulated in section IV.
3. The personal liability of our legal representatives, assistants and employees shall be excluded for damages caused by them due to slight negligence.
XIII. Application of the BSCI Code of Conduct
The contractual partner undertakes to apply the BSCI Code of Conduct (www.bsci-intl.org) and to ensure that his primary suppliers and service providers also comply with it. Upon request, the contractual partner will provide us with evidence of this.
XIV. Place of Jurisdiction/Place of Performance
The place of performance for all obligations arising from the order shall be our place of business. Our place of business shall be the place of jurisdiction for any and all disputes arising from the business relation. We shall also be entitled to sue the contractual partner at the court which has jurisdiction over his place of business or the place of business of one of his subsidiaries.
XV. Language/Applicable Law
1. The contract language is German. If contract documents are available in a language other than German, legal relations between the parties, if applicable, shall solely be governed by the German version of the contract.
2. Unless our general terms and conditions contain any special regulations, only the law applicable to the legal relations of domestic parties at our place of business (German law) applies, to the exclusion of foreign law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
XVI. Final Provisions/Severability Clause
1. If, in a contract that both parties consider as concluded, the parties have not actually agreed on an item they should have agreed upon, we shall be authorised to rectify the contractual gaps as amendments to the contract, taking into account the mutual interests as judged reasonable.
2. Should any individual provisions of the contract in question be or become invalid, the validity of the contract as a whole shall not be affected. Should any individual provisions of the contract in question be or become invalid for reasons other than those stated in articles 305 – 310 of the German Civil Code (BGB), the parties will replace the invalid provision by such a provision that corresponds most closely to the contractual partners’ intentions in economic terms. The same applies if any individual provisions of the contract in question be or become invalid for reasons stated in articles 305 – 310 of the German Civil Code (BGB), but the law has made no provision in that respect.