General Terms and Conditions

of DECO GLAS GmbH as of March 1st, 2018

  1. Scope of these GTC, General
    1. These General Terms and Conditions (“GTC”) shall apply to all our business relations with our Customers. These GTC shall only apply if our Customer is an entrepreneur (as set out under Sec. 14 BGB [German Civil Code]), a legal entity under public law, or a special fund under public law.
    2. Our own GTC shall apply exclusively. Any general terms and conditions of Customers shall not apply, unless we have agreed to their validity expressly in writing. Our GTC shall also apply if we unconditionally fulfil our contractual obligations while being aware that any general terms and conditions of our Customer exist that are in conflict with or deviate from our own GTC.
    3. Any agreements with the Customer made on a case-by-case basis shall prevail over these GTC in any event. Any agreements made between us and the Customer that amend a contract or are made in fulfilment of a contract shall be made in writing to serve as evidence.
    4. Our own GTC shall also apply for any future business transacted with the Customer.
    5. The sole - and also international - place of jurisdiction for any and all disputes directly or indirectly arising from a contract shall be our registered place of business. In any event, however, we shall be entitled to file any claims against the Customer at their regular place of jurisdiction.
    6. To the extent that an order acknowledgement does not provide otherwise, our registered place of business shall be the place of fulfilment for all claims arising under the contractual relationship.
    7. The contractual relationship between us and the Customer shall be subject to the laws of the Federal Republic of Germany, and any conflict of law provisions and the UN Convention on the International Sale of Goods (CISG) shall be excluded.
  2. Contractual basis
    1. Our quotations shall be subject to change and be non-binding, unless they are expressly identified as binding quotations.
    2. A contract between us and the Customer shall be deemed concluded once we have submitted a written order acknowledgement following the receipt of their purchase order, or once we have started executing the order.
    3. The conclusion of the contract shall be subject to our own supply.
  3. Prices, payment, default in payment
    1. All our prices are stated in EUR plus statutory VAT as applicable at the date of the invoice. A cash discount must be agreed in advance in writing, on a case-by-case basis.
    2. The basis of all prices shall be “ex works” and include the agreed or customary packaging. Not included shall be the costs of freight, transport, storage, insurance, custom duties, or other export expenses, and all other ancillary transport costs.
    3. The statutory regulations with respect to the prerequisites and consequences of default in payment apply. If a Customer defaults in payment we shall be entitled to carry out any further deliveries - also partial deliveries - to such Customer against payment in advance only.
    4. In the event that the Customer experiences a lasting adverse development of their financial position or if they default in payment with respect to a significant amount of receivables from the supply relationship (amounts in excess of EUR 5,000 shall be deemed to be significant), we shall be entitled to withhold deliverables to be delivered under the contract until payment of any overdue payables was made by the Customer in full, or cancel the contract with respect to the deliverables not yet delivered.
    5. The Customer shall be entitled to any set-off or retention rights to such extent only that their claims have been ascertained finally and conclusively or are undisputed.
  4. Delivery and passing of risk
    1. Unless provided otherwise in the order acknowledgement, delivery “ex works” shall be deemed agreed. In such case, we will keep available the goods at our premises, packed and ready for collection through the Customer. The costs of transport and unloading shall be borne by the Customer.
    2. If delivery is made ex works the risk shall pass to the Customer with the handing over of the goods to the Customer or the carrier. Delivery shall be deemed made in the event that the Customer is in default of acceptance.
    3. If, at the Customer’s request, the goods are shipped to them, the risk of accidental loss or accidental deterioration shall pass to the Customer with their delivery to the forwarding agent, carrier or other person that was instructed to carry out the shipment - even if such person is our employee - or at the time they leave our site or warehouse, whichever is earlier, and irrespective of who will bear the shipping costs.
    4. Free domicile delivery is only owed by us if this was expressly agreed in writing. In that case, the risk of accidental loss or accidental deterioration shall pass to the Customer with delivery of the goods to the Customer at the specified delivery address. Delivery shall be deemed made if the Customer is in default of acceptance.
  5. Delivery time
    1. Any statement of delivery dates or periods shall generally be non-binding. A simple or absolute transaction, where time is of the essence, or a scheme of just-in-time delivery must be expressly agreed in writing; the mere agreement of a fixed delivery date shall not be sufficient in this respect.
    2. To an extent that is reasonable for the Customer, we shall be entitled to make partial deliveries within the delivery periods.
    3. Any delivery times or periods shall be extended appropriately - also within a period of default in delivery - in the event of force majeure or other unforeseen obstacles that could not be prevented by us despite our reasonable efforts under the circumstances, for example interruption of operation, fire, interventions by authorities, difficulties with energy supply, delays in the supply of critical raw materials. We shall be obligated to inform the Customer about such obstacles immediately.
  6. Acceptance obligations of the Customer
    1. In any event, the obligation to accept delivery shall be a primary obligation of the Customer.
    2. If the Customer defaults in acceptance (Sec. 293 et seq. BGB [German Civil Code] they shall be obligated to reimburse any costs incurred by us as a result. The maximum storage time of goods at our site, be it naked glass or be it decorated material, before and after production, is one month. For any exceeding amount of time, the customer shall bear the costs in the amount of EUR 8.00 per pallet and month. From the 4th month and onward the costs will be EUR 15.00 per pallet and month. The Customer is free to prove that the actual costs incurred were lower; and we shall be free to prove that the actual costs in an individual case were higher.
    3. This does not affect our right to assert any further statutory or contractual rights or claims resulting from the Customer's default in acceptance or a culpable violation of their acceptance obligation.
  7. Customer’s duty to cooperate, violation of duty to cooperate
    1. If the Customer has a contractual duty to cooperate in fulfilment of the contract, such duty to cooperate shall be a primary obligation if it is required for the fulfilment of the contract. Including but not limited to, this includes the timely presentation of all required technical documents, data, and instructions (for example, prepress or detailed colour information), the timely supply of products or materials for processing, in proper condition, and detailed information about the design, colour, or similar properties of the deliverable as provided in Sec. 375 para 1 HGB [German Commercial Code].
    2. Unless provided otherwise, on a case-by-case basis, the Customer shall fulfil their duty to cooperate at their own risk and expense.
    3. If the Customer culpably violates their duty to cooperate, we shall be entitled to all rights and claims provided under the relevant statutory provisions, including but not limited to those set out in the BGB [German Civil Code] and HGB [German Commercial Code]. In the event that the prerequisites in accordance with Sec. 642 BGB [German Civil Code] are met, the Customer shall be liable to pay compensation in the amount of EUR 250 per hour of production downtime. The Customer is free to prove that a lower amount of compensation is appropriate; and we shall be free to prove that the actual damage in an individual case is higher.
    4. The Customer warrants the quality and suitability of the materials supplied by them, of the products to be processed, and the correctness and required accuracy of the given instructions, processing instructions, templates, or other processing requirements.
    5. To the extent that the materials supplied by the Customer or the products to be processed are not suitable for processing as intended, in full or in part, we shall be entitled, in our own equitable discretion to separate the unsuitable materials/products ourselves, at the Customer’s expense, and return them to the Customer in full or in part at the Customer’s expense.
  8. Quality Assurance
    1. Notwithstanding any other express agreements, we shall have no obligation towards the Customer to carry out specific quality assurance measures.
    2. Any quality controls that we may carry out in accordance with our own quality assurance guidelines shall not release the Customer from their obligation to carry out their own quality controls.
  9. Samples, drawings, documentation, tools, preformed parts
    1. Preliminary work, for example the creation of drafts, drawings, or samples that are requested by the Customer shall be liable to compensation, unless expressly agreed otherwise in advance in writing.
    2. Any samples or images presented to the Customer by us shall be informational only. Unless expressly agreed otherwise, the properties and features of samples or images shall not be deemed agreed quality features; the applicability of Sec. 454 BGB [German Civil Code] shall be excluded.
    3. We reserve the right of ownership and copyright to the samples, images, drawings, calculations, and other technical and commercial documentation we have handed over to the Customer. Such documents/samples must not be made available to third parties if this is not in fulfilment of the contract. Above all, they must not be used in dealings with third parties that are not involved in the contract, including but not limited to competitors, for acquisition or other purposes that are not related to the contract.
    4. Unless expressly agreed otherwise, the cost of production, procurement, change, repair, or provision of production dies/moulds or tools shall be borne by the Customer if such are exclusively or predominantly used for Customer-specific processing operations. The moulds, dies, or tools produced by us shall remain our property even though that the production costs were borne by the Customer.
  10. Proprietary rights and third party claims
    1. The Customer warrants that the fulfilment of an order placed by them, based on their specifications regarding forms, colours, sizes, weights, etc., does not infringe any third party proprietary rights. The Customer shall indemnify us from any claims based on an infringement of proprietary rights asserted by third parties and compensate us for any damage incurred by us in this connection (including costs and expenses). In our relationship with the Customer, we shall be liable to such extent only that we were positively aware of the facts or in the event of grossly negligent unawareness.
    2. If a third party asserts claims against us, based on defective products or defects in supplied materials or processed products of the Customer, the Customer shall hold us harmless and indemnify us from any damage incurred thereby (including costs and expenses), to the extent that such defective products or defects cannot be proven to be attributable to a faulty processing step contributed by us. Moreover, the Customer undertakes to support us in any recourse proceedings instituted by a third party by supplying the necessary information or making available suitable pieces of proof in a way that is just and reasonable.
  11. Production and use of photographs/product samples
    1. We shall be entitled to produce or have produced photographs of the products that are produced as a result of our business relations with the Customer. The Customer grants us the royalty-free, non-transferable and unlimited - with respect to time and territory - right to use these photographs in full or in part for our own information and advertising purposes and to publish them in any medium we may choose (for example, at exhibitions, informational events, in presentations, informational correspondence, brochures, catalogues, or our own domains). Including but not limited to, this includes digital usage. This right of use shall also and particularly include photographs that show the Customer’s trademarks, commercial designations and/or company symbols. We shall ensure that the use of such photographs for information or advertising purposes does not purport any untrue connections or relations with the Customer in terms of company law.
    2. Subject to the above right of use, we shall also be entitled to use or have used product samples resulting from our business relations with the Customer in our own advertising for ourselves. The provisions that apply to photographs shall apply accordingly in this respect.
  12. Liability for defects
    1. Customer’s inspection and reporting obligations
      1. A prerequisite for warranty claims by the Customer shall be that the Customer has properly fulfilled their inspection and reporting obligations as provided under Sec. 377, 381 para 2 HGB [German Commercial Code]. Any defects must be reported in writing immediately. Notwithstanding the Customer's obligation to report defects immediately, a cut-off period of seven (7) working days applies to recognizable defects; after expiration of such period, an assertion of warranty claims based on recognizable defects shall be excluded.
      2. The period relevant for the reporting of defects shall begin with the delivery of the goods in compliance with the contract. Any interim storage of the goods by the Customer, at a third party, or, in the event of a direct delivery to a third party at the request of the Customer, shall not postpone the start of the period.
    2. Definition of defect
      1. Due to the technical circumstances with respect to the processed materials and applied procedures, there may be unavoidable minor deviations in colour, form, or similar parameters in the production step. Such deviations shall neither represent violations of obligations nor defects, to the extent that they cannot be prevented by economically reasonable measures and that they are within the usual tolerance ranges in the industry.
      2. Production-related deviations or deviations that are due to technological advances shall not be deemed defects to the extent that they do not impair the Customer’s intended use of the finished products.
      3. Warranty claims of the Customer shall be excluded to the extent that any defects result from the defectiveness or incompleteness of the parts, materials, or instructions supplied by the Customer.
    3. Customer's rights in the event of defects
      1. In the event of a defect - taking into consideration items 12 para 1 and 2 above - we shall be entitled, in our own discretion, to subsequent fulfilment, either by removing the defect or subsequent delivery.
      2. In the event that subsequent fulfilment fails, is unreasonable, or is refused by the Customer, the Customer shall be entitled - in their own discretion - to withdraw from the contract or demand a reduction of the purchase price. In the event of only minor defects, the Customer shall not be entitled to a right to withdraw from the contract.
    4. Damages The Customer's right to claim damages or to claim compensation of expenses incurred to no avail shall be subject to item 13 (limitation of liability) and shall otherwise be excluded.
    5. Right of recourse
      1. The provisions on recourse as set out under Sec. 478, 479 BGB [German Civil Code] shall not be affected by any limitations of liability - except for the provisions below - insofar as we are a supplier of a defective finished product as set out in Sec. 478, 479 BGB who is a member of a supply chain based on a sales contract.
      2. If, in the event of an event of recourse as set out in Sec. 478 BGB [German Civil Code], the Customer does not report such event immediately in accordance with Sec. 377, 381 para 2 HGB [German Commercial Code], however no later than within seven (7) working days from becoming aware of a defect, our liability subject to Sec. 478, 479 BGB shall be excluded.
      3. With respect to any compensation to be paid by us in accordance with Sec. 478 BGB [German Civil Code], such costs shall be excluded that would have not been incurred if the Customer had exercised the required care with respect to any subsequent fulfilment claims for which they were responsible.
      4. We shall be entitled to issue an appropriate product credit note instead of the compensation to be paid in accordance with Sec. 478, 479 BGB [German Civil Code].
  13. Limitation of liability
    1. Unless provided otherwise in these GTC, including the following provisions, we shall be liable for any violation of contractual or non-contractual obligations in accordance with the statutory provisions.
    2. We shall be liable for damages - irrespective of their legal basis - based on our liability for fault in the event of wilful intent or gross negligence. In the event of ordinary negligence, and subject to a milder scale of liability, we shall accept liability in accordance with the statutory provisions (for example, diligence in one’s own matters) only for:
      1. damage from injuries to life, body or health, and
      2. damage from serious violations of essential contractual obligations (obligations that are essential prerequisites for the proper execution of the contract and with respect to the fulfilment of which the other party to the contract can and must be able to rely on); in which case, however, our liability shall be limited to the compensation of any typical and foreseeable damage.
    3. The limitations of liability set out under item 13 para 2 shall also apply in the event of violations of obligations by or in the favour of persons for whose faults we are liable in accordance with the statutory provisions. They shall not apply in the event of malicious nondisclosure of any defects or to a Customer’s claims in tort or based on the provisions of the product liability law.
  14. Period of limitation
    1. The period of limitation for warranty claims shall be 12 months, beginning with the passing of the risk. In the event that we have maliciously concealed any defects or given a guarantee, any claims of the Customer on this basis shall become statute-barred in accordance with the statutory provisions.
    2. The statutory period of limitation in the event of a right of recourse as set out in Sec. 478, 479 BGB [German Civil Code] shall not be affected.
    3. The statutory period of limitation shall apply to any claims for damages based on wilful or grossly negligent actions, damage from injury to life, body, and health, claims in tort, and based on the product liability law.
  15. Severability
    Should one or more provisions of these GTC be or become invalid, this does not affect the validity of the remaining provisions. To the extent that a provision contained in the individual part of the contract is invalid, the parties to the contract shall agree to a valid provision to replace the invalid one which comes as close as possible to the intent of the cancelled provision. The same applies to any lacuna that may be contained in the individual part of the contract.
DECO GLAS GmbH
Am Alten Galgen 4 – 6
56410 Montabaur
Germany
March 1st, 2018