(1) Scope of application
- Our terms and conditions of sale shall apply exclusively; we shall not recognise any terms and conditions of the customer which conflict with or deviate from our terms and conditions of sale unless we have expressly agreed to their validity in writing. Our terms and conditions of sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from our terms and conditions of sale.
- All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
- Our terms and conditions of sale shall only apply to entrepreneurs within the meaning of § 310 para. 1 BGB (German Civil Code).
(2) Offer and conclusion of contract
If an order is to be regarded as an offer in accordance with § 145 BGB, we can accept it within two weeks.
(3) Obligation of the customer to cooperate
The customer shall make available sufficiently qualified personnel who will perform the provision obligations, the responsibilities and the cooperation obligations for the customer within the framework of the individual orders.
All documents and information requested by Black & Shepard from the customer must be made available to Black & Shepard immediately. If the documents are incomplete or not provided on time, Black & Shepard reserves the right to withdraw from the order.
The customer shall grant Black & Shepard access to the customer's facilities at any time upon request during normal business hours and beyond that within the scope of what is reasonable, provided that this is conducive to the timely provision of the services specified in the respective order. In connection with each order, the Client shall, at Black & Shepard's request, make available to Black & Shepard, free of charge and to an appropriate extent, any necessary work space and office support (in particular access to telephone lines and photocopiers and similar).
(4) Documents provided
We reserve ownership rights and copyrights to all documents handed over to the customer in connection with the placing of the order, such as calculations, drawings, etc.. These documents may not be made accessible to third parties, unless we give our express written consent to the customer to do so. If we do not accept the customer's offer within the period of § 2, these documents must be returned to us immediately.
(5) Prices and payment
- Unless otherwise agreed in writing, our prices are ex works excluding packaging and plus value added tax at the applicable rate. Packaging costs will be invoiced separately.
- Before the start of the order, the parties agree on a number of daily rates (8 hours/day) for a specific order. If, during the provision of the service, the planned expenditure deviates by more than 10% per day or a total of 4 hours from the previously booked daily rates, Black & Shepard shall notify the customer of this in good time and the customer shall be obliged to reimburse the corresponding additional expenditure.
- Payment of the purchase price shall be made exclusively to the account named overleaf. The deduction of a discount is only permissible in the case of a special written agreement unless otherwise agreed, the purchase price is to be paid within 10 days of delivery. Interest on arrears shall be charged at a rate of 9% above the respective base interest rate p.a. and a flat-rate fee of € 40.00). The assertion of a higher damage caused by default remains reserved.
- Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries made 3 months or later after conclusion of the contract.
- If the buyer is in arrears with any payment obligations towards us, all existing claims shall become due immediately..
A set-off by the buyer with counterclaims is excluded, unless the counterclaims are undisputed or legally established. The assertion of a right of retention by the buyer is excluded, unless it is based on the same contractual relationship or the counterclaims are undisputed or legally established.
If changes requested by the customer should occur during the delivery/service, these must be presented to Black & Shepard in writing. The resulting additional costs shall in any case be borne by the customer.
(6) Operational readiness of systems
In the case of the services offered, downtimes are generally not to be expected. However, in isolated cases there may be equipment failures or a system interruption may be necessary. The customer is obliged to perform data backups on an ongoing basis, in particular prior to installation. In particular, the customer is responsible for initiating and carrying out all measures necessary for the conclusion of the system himself. Black & Shepard is not liable for data loss or for the consequences of a system failure in the event of a breach of the aforementioned data backup obligation.
All prices do not include any travel costs and expenses (mission preparation, travel and flight time, travel expenses, expenses). These will be charged at a flat rate.
(7) Delivery time
- The commencement of the delivery period stated by us shall be subject to the timely and proper fulfilment of the Purchaser's obligations. We reserve the right to plead non-performance of the contract.
- If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims. Insofar as the above conditions exist, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at the point in time at which he is in default of acceptance or debtor's delay.
- In the event of a delay in delivery not caused by us with intent or gross negligence, we shall be liable for each completed week of delay within the framework of a lump-sum compensation for delay amounting to 1.5% of the delivery value, but not more than 5% of the delivery value.
- Further legal claims and rights of the customer due to a delay in delivery remain unaffected.
(8) Passing of risk in case of shipment
If the goods are dispatched to the Customer at the Customer's request, the risk of accidental loss or accidental deterioration of the goods shall pass to the Customer upon dispatch to the Customer, at the latest upon leaving the factory/warehouse. This shall apply irrespective of whether the goods are dispatched from the place of performance or who bears the freight costs.
If the customer so wishes, we shall cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the customer.
(9) Property of Black & Shepard OHG Products
- We reserve title to the delivered item until full payment of all claims arising from the delivery contract. This also applies to all future deliveries, even if we do not always expressly refer to this. We are entitled to take back the object of purchase if the customer behaves contrary to the terms of the contract.
- The customer is obliged to treat the object of sale with care as long as ownership has not yet been transferred to him. In particular, he is obliged to insure the goods at his own expense against theft, fire and water damage at replacement value (note: only permissible in the case of the sale of high-quality goods). If maintenance and inspection work has to be carried out, the customer must carry this out in good time at his own expense. As long as ownership has not yet been transferred, the customer must inform us immediately in writing if the delivered item is seized or subjected to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
- The treatment and processing or transformation of the object of sale by the customer is always carried out in our name and on our behalf. In this case, the customer's expectant right to the object of sale shall continue in the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing is carried out in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis and stores the resulting sole ownership or co-ownership for us. In order to secure our claims against the customer, the customer also assigns to us such claims which accrue to him against a third party through the combination of the reserved goods with a piece of land; we hereby accept this assignment.
- The customer is entitled to resell the reserved goods in the normal course of business. The customer hereby assigns to us the claims against the customer arising from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply irrespective of whether the object of sale has been resold without or after processing. The customer remains authorised to collect the claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected thereby. However, we shall not collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, has not filed for insolvency or suspended payments.
(10) Warranty and notice of defects as well as recourse/manufacturer's recourse
- Warranty rights of the purchaser presuppose that he has duly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code).
- Warranty claims become statute-barred 12 months after delivery of the goods delivered by us to our customer. The statutory period of limitation shall apply to claims for damages in cases of intent and gross negligence as well as in cases of injury to life, limb and health which are based on an intentional or negligent breach of duty by the user. (Note: in the case of the sale of used goods, the warranty period can be completely excluded with the exception of the claims for damages mentioned in sentence 2). Our consent must be obtained before any goods are returned.
- If, despite all the care taken, the delivered goods exhibit a defect which existed at the time of the transfer of risk, we shall, at our discretion and subject to timely notification of the defect, either repair the goods or deliver replacement goods. We shall always be given the opportunity to remedy the defect within a reasonable period of time. Recourse claims remain unaffected by the above provision without restriction.
- If the supplementary performance fails, the customer may - without prejudice to any claims for damages - withdraw from the contract or reduce the remuneration.
- Warranty claims shall not exist in the event of insignificant deviations from the agreed quality, in the event of insignificant impairment of usability, in the event of natural wear and tear as well as in the event of damage arising after the transfer of risk as a result of faulty or negligent handling, excessive strain, unsuitable equipment, defective construction work, unsuitable building ground or as a result of special external influences not provided for in the contract. If improper repair work or modifications are carried out by the purchaser or third parties, no claims based on defects shall exist for these and the resulting consequences either.
- Claims of the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, shall be excluded to the extent that such expenses increase because the goods delivered by us were subsequently taken to a location other than the customer's branch office, unless such transport corresponds to their intended use.
- The purchaser's right of recourse against us shall only exist to the extent that the purchaser has not entered into any agreements with his customer that go beyond the legally mandatory claims based on defects. Paragraph 6 shall also apply mutatis mutandis to the scope of the customer's right of recourse against the supplier.
(11) Rights to performance results
Black & Shepard reserves the industrial property rights to all recommendations, ideas, techniques, know-how, design, programs, improvements, software and other technical information provided within the framework of the performance of the service and grants the customer, without payment of further fees, only a right to use it to which the services relate. However, all intellectual property rights and copyrights in confidential information contained in Black & Shepard's recommendations, ideas, techniques, know-how, designs, programs, improvements and other technical information provided to the Customer shall remain with the Customer to the extent that such confidential information is provided by the Customer.
Confidential information" means any information communicated orally, electronically, visually, in writing or otherwise by one party to the other party and which is either identified as confidential or reasonably believed to be confidential, having regard to the reasonable assessment of the interests of the disclosing party. Confidential information includes, but is not limited to, computer programs, trade secrets, software, documentation, inventions, equations, data, forecasts, customer lists, financial and employee information. In addition, confidential information relates to any past, present and future products and manufacturing or operating methods, including information about research and development.
Confidential information may only be used for the execution of the order and shall only be disclosed to third parties to the extent that this is necessary for the execution of the order and the third party is bound by equally restrictive confidentiality agreements with the foregoing. This obligation shall not apply to information which becomes or is publicly known without any fault of either party, which was in the possession of that party before the signing of the contract and which was not otherwise confidential or which was communicated by third parties entitled to disclose such information. These Conditions shall continue to apply after termination of any Contract.
(13) Force Majeure
If the occurrence of force majeure leads to an interruption of the work, the parties shall be released from their obligations under this contract for the period of the interruption of the work. If, in the event of force majeure, performance of the service is permanently prevented altogether, the parties shall be entitled to terminate the contract. Claims for damages are excluded. In particular, the following events shall be deemed force majeure: War, acts of God, sabotage, strikes and lockouts, natural disasters, geological changes and impacts.
Each contracting party is obliged to inform the other party immediately after the occurrence of a case of force majeure with all details. In addition, the parties shall discuss appropriate measures to be taken.
- This contract and all legal relations between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
- Place of performance and exclusive jurisdiction and for all disputes arising from this contract shall be our place of business, unless otherwise stated in the order confirmation (Note: The use of the clause is not permitted if at least one of the parties is a company not registered in the commercial register).
- These general terms and conditions in connection with the respective order constitute the only agreement between the parties with regard to the subject matter of the contract.
Amendments and supplements to the agreement must be made in writing. Oral amendments and supplements shall only become effective after they have been confirmed in writing. This also applies in particular to changes to the written form clause.
(15) Severability clause
Should any provision of the contract be or become invalid or unenforceable, or should the contract contain a loophole, this shall not affect the validity and enforceability of the remaining provisions. In this case, the invalid provision or loophole shall be replaced or closed by a provision that comes as close as possible to the economic purpose of the contract.