Terms and conditions for business customers
General Terms and Conditions of NICI GmbH
- for business customers only -
(valid as of September 2013)
1 General Definitions
1.1 In the following General Terms and Conditions ("GTC"), NICI GmbH, Langheimer Straße 94, 96264 Altenkunstadt, is referred to by the term "Supplier". The contractual partner of the supplier is the "customer", the contractual relationship to be concluded is the "contract".
1.2 The subject of the contractual obligations of the supplier, also insofar as this is directed towards the sale and delivery of items, is the "performance".
2 Validity of the Terms and Conditions
2.1 The Supplier's services and offers are provided exclusively on the basis of these GTC. They shall therefore also apply to all future business relations, even if they are not expressly agreed again. These terms and conditions shall be deemed accepted at the latest upon acceptance of the service. Counter-confirmations of the customer with reference to his terms and conditions of business or purchase are hereby rejected.
2.2 These GTC do not apply to consumers.
3 Orders and acceptance of orders
3.1 Offers of the supplier are subject to change and non-binding. The supplier is entitled to resell the service to a third party between offer and acceptance. Orders placed by the customer shall only be binding on the supplier if they have been expressly confirmed in writing by the supplier or if the supplier has performed the service.
3.2 The performance must only have the quality specified in writing in the contract. The performance is conclusively described by these quality features. The supplier is entitled to unilaterally change the quality if this is done on the basis of statutory regulations or represents a technical improvement and the use assumed under the contract is not impaired as a result. The customer itself is responsible for satisfying itself as to the suitability and fitness of the ordered performance for its purposes of use; this also applies if the supplier advises the customer on the development in any way or supports it in any other way.
3.3 If the supplier provides the customer with a sample or a specimen before or after the conclusion of the contract, then these do not have to have the quality as in the contract. Sentence 1 shall apply mutatis mutandis to drawings, illustrations, dimensions, weights and other data which the supplier makes available to the customer before or after conclusion of the contract (e.g. in the form of sales documents, catalogues and brochures).
3.4 The Supplier reserves all rights without restriction to all cost estimates, drawings, samples, specimens, illustrations or other documents ("Documents") which it makes available to the Customer. Without the prior written consent of the supplier, the customer is not entitled to make the documents themselves or their contents accessible to third parties. At the request of the supplier, the customer is obliged to return all documents to the supplier immediately and in full if they are no longer required by the customer in the ordinary course of business or if an order is finally not placed by the customer. The supplier shall only return samples or drawings provided by the customer to the supplier at the customer's request. If an order is not placed, the Supplier shall be entitled to destroy the samples and drawings provided after the expiry of three months after submission of the offer.
3.5 If the customer is a new customer, the minimum order value for the first order shall be EUR 500.00.
4 Advertising, labelling
4.1 In the case of public statements by the manufacturer, the supplier, an employee or other vicarious agents regarding the quality of the service or the object of purchase (e.g. weights, dimensions, colour, material, quality and technical data), in particular in advertising but also in sales documents, catalogues and brochures or in labelling, it shall be assumed that these statements were not causal for the conclusion of the contract by the customer.
5 Prices
5.1 The Supplier's prices are net prices. Unless otherwise provided for in paragraph 5.2 below, transport/delivery costs (in particular express, courier, express parcel, etc.), VAT and other costs associated with the performance of the contract ("additional costs") are not included. Unless and insofar as otherwise stipulated in the contract, all prices quoted by the Supplier are in euros. Fixed prices require express written agreement between the Supplier and the Customer.
5.2 Deliveries with an order value of EUR 300.00 or more shall be made free domicile. For deliveries with an order value of less than EUR 300.00, the Supplier shall charge a flat-rate shipping fee. For orders with an order value of less than EUR 100.00, a minimum quantity surcharge of EUR 10.00 shall be charged. A cash-on-delivery fee shall be charged for cash-on-delivery shipments.
5.3 If the Supplier has borne additional costs, it may demand reimbursement from the Customer. This only applies to transport/shipping costs if the supplier is responsible for the transport in deviation from paragraph 5.1.
5.4 The price shall be the price quoted by the supplier or, where this has not been done in detail, the price set out in the supplier's current price lists at the time of the order. The Supplier shall be entitled, after timely notification to the Customer and prior to the performance of the service, to increase the agreed price as may be necessary due to general price developments outside the Supplier's control (such as exchange rate fluctuations, currency regulations, changes in customs duties, increases in material or manufacturing costs) or due to changes in suppliers.
5.5 If the supplier takes back a service provided as a gesture of goodwill without acknowledging a legal obligation, the supplier shall be entitled to compensation for expenses in the amount of 20% of the invoice value of the respective service. The amount shall be reduced if the customer proves that the actual expense is lower than the lump sum according to sentence 1.
6 Performance/Delay in Performance, Provided Parts
6.1 Performance dates or deadlines may be agreed as binding or non-binding.
6.2 An agreement on performance dates is only binding if the supplier expressly declares in writing that it is liable for exceeding the agreed date/period.
6.3 The supplier is not responsible for delays in performance due to force majeure or due to events that make it significantly more difficult or impossible for the supplier to perform not only temporarily - this includes in particular strikes, lockouts and official orders, even if they occur at the supplier's suppliers or their sub-suppliers - even in the case of bindingly agreed deadlines and dates. They entitle the supplier to postpone the performance for the duration of the impediment plus a reasonable start-up time or to withdraw from the contract in whole or in part due to the part not yet fulfilled. Sentences 1 and 2 shall apply mutatis mutandis in the event of delays in performance due to the customer's failure to provide the supplier in good time with documents, information and parts provided by the customer prior to the performance of the service which, in the supplier's view, are necessary for the performance of the service. If and to the extent that the customer provides the supplier with additional parts, these shall be delivered "free domicile" to the supplier. The customer shall provide the supplier with an excess quantity of - depending on the agreement - 5 to 10 %, but at least 5 %, for any rejects in good time and in the agreed quality, so that the supplier is able to process them without interruption.
6.4 If the delay in performance lasts longer than one month, the customer is entitled, after setting a reasonable deadline, to withdraw from the contract with regard to the part not yet fulfilled.
6.5 If the supplier is responsible for non-compliance with bindingly agreed deadlines and dates and is in default, the customer shall be entitled to compensation for default amounting to 0.5% of the invoice value of the performance affected by the default for each full week of the default, but in total not more than 5% of the invoice value of the performance affected by the default. The amount is to be reduced if the supplier proves that the actual damage is lower than the lump sum according to sentence 1. Further claims are excluded unless the delay is due to intent or gross negligence on the part of the supplier.
6.6 The supplier is entitled to partial performance at any time, unless the partial performance is not of interest to the customer. The supplier is also entitled to deviate by up to +/- 10 % from the respective agreed order quantity when ordering special models. The supplier is entitled to transfer the rights and obligations arising from the contract, including the performance of the service, to a third party.
6.7 If a service is provided on call by the customer, the customer is obliged to notify the supplier in writing of the call, with a concrete description of the service and naming the date of performance, at least four weeks before the service is provided. Change requests of the customer after call-off will only be taken into account by the supplier if this has been expressly agreed.
6.8 Deliveries are always made ex works (EXW - Incoterms 2010) at the supplier's registered office. In this case, the risk of loss shall pass to the customer at the time when the supplier informs the customer that the service is ready for collection.
6.9 If the Customer is in default of acceptance, the Supplier shall be entitled to a lump-sum expense allowance of 0.5% of the invoice value of the respective performance for each completed week of default of acceptance. The amount is to be reduced if the customer proves that the actual damage is lower than the lump sum according to sentence 1. Further claims of the supplier remain unaffected.
6.10 If the supplier ships the goods at the request of the customer, the risks of transport shall be borne by the customer, irrespective of who bears the transport/shipping costs. This applies in particular to dispatch or transport by the supplier, without a debt to be discharged at the customer's place of business being deemed to have been agreed as a result. If dispatch is delayed due to a circumstance for which the customer is responsible, the risk of loss shall pass to the customer from the day on which the goods are made available for dispatch. If the customer is in default of acceptance, the risk of loss shall pass to the customer at the time the supplier offers to hand over the goods.
6.11 Insofar as the supplier bears the transport/shipping costs in whole or in part, the supplier is entitled to determine both the shipping route and the shipping method. If the customer requests a different shipping route and/or a different shipping method, and if the supplier complies with this request, the customer shall bear the difference in costs between the shipping method and/or shipping route requested by the customer and the shipping method and/or shipping route determined by the supplier.
6.12 In the cases referred to in paragraph 6.10, the supplier shall store the goods at the customer's risk and expense.
7 Retention of title
7.1 Until the fulfilment of all claims (including all current account balance claims) to which the supplier is entitled against the customer for any legal reason now or in the future, the supplier shall be granted the securities listed in the following paragraphs, which the supplier shall release on request at its discretion, insofar as their value exceeds the total and the value of all claims by more than 20 % on a sustained basis.
7.2 The supplier remains the owner of delivered goods. Processing or transformation shall always be carried out for the supplier as manufacturer, but without any obligation for him. If the supplier's ownership lapses as a result of combination, it is hereby agreed that the customer's ownership of the unified item shall pass to the supplier on a pro rata basis (invoice value). The customer shall keep the supplier's property free of charge. Goods to which the supplier is entitled to ownership are hereinafter referred to as "goods subject to retention of title".
7.3 The customer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default vis-à-vis the supplier. Pledges or transfers by way of security are not permitted. The customer hereby assigns to the supplier by way of security all claims arising from the resale or any other legal reason (insurance, tort) in respect of the goods subject to retention of title (including all current account balance claims). The supplier revocably authorises the customer to collect the claims assigned to the supplier for the supplier's account in its own name. This collection authorisation can only be revoked if the customer does not properly fulfil his payment obligations. After a corresponding request by the supplier, the customer shall disclose the assignment and provide the supplier with the necessary information and details.
7.4 In the event of access by third parties to the goods subject to retention of title, the customer shall draw attention to the supplier's ownership and notify the supplier without delay. Costs and damages shall be borne by the customer.
7.5 In the event of conduct by the customer in breach of duty - in particular default in payment - the supplier shall be entitled to take back the reserved goods or, if necessary, to demand assignment of the customer's claims for return against third parties. The taking back or seizure of the reserved goods by the supplier does not constitute a withdrawal from the contract, unless §§ 488-507 BGB apply.
7.6 Cash payments, bank transfers or cheque payments made against a bill of exchange issued by the supplier and accepted by the customer shall only be deemed to be fulfilment in accordance with sentence 1 when the bill of exchange has been honoured by the drawee and the supplier is thus released from liability for the bill of exchange. The agreed retention of title (notwithstanding any further agreements) shall therefore remain in force in favour of the supplier until the bill of exchange has been honoured.
8 Terms of payment
8.1 The customer shall pay for the supplier's services after they have been performed within 30 days of the invoice date without deduction or within 14 days of the invoice date with a 2% discount. The timeliness of payment shall be determined by the date on which the money is received or unconditionally credited to the Supplier's account.
8.2 Payment shall be made by bank transfer to the supplier. The supplier is not obliged to accept payment by cheque or bill of exchange; in any case, the presentation of a cheque or bill of exchange is only on account of performance. The handing over of a cheque or bill of exchange does not lead to a deferment of the claim. The costs associated with the realisation of a cheque or bill of exchange shall be borne by the customer. If payments are made by the customer with means of payment which the customer has procured by discounting an acceptor's bill of exchange, the claim to payment shall not expire until the bill of exchange has been honoured by the customer.
8.3 As an alternative to bank transfer, the customer may grant the supplier a SEPA Core Mandate / SEPA Corporate Mandate. The direct debit will then be collected 5 days after the invoice date with a discount of 4% on all discountable amounts. The period for advance notice (pre-notification) is reduced to one day. The customer guarantees to ensure that the account is covered. Costs incurred due to non-payment or chargeback of the direct debit shall be borne by the customer as long as the non-payment or chargeback was not caused by the supplier.
8.4 If the customer does not fulfil his payment obligation within the period stipulated in para. 8.1, the supplier may demand interest on arrears in the amount of 8% above the respective applicable base rate of the European Central Bank from the expiry of the period.
8.5 In the event of late payment, the supplier may demand a one-off payment of 5 % of the invoice amount as compensation for the administrative expenses incurred. The amount shall be reduced if the customer proves that the actual expense is lower than the lump sum according to sentence 1.
8.6 If the customer defaults on any payment obligation or if circumstances arise as a result of which the customer's financial situation deteriorates or its creditworthiness is impaired, all other claims of the supplier against the customer shall become due at the same time. In this case, the supplier is entitled to withdraw from the contract or to demand the provision of a security or to demand concurrent payment against performance of the service or, after prior written notice to the customer, to withhold the provision of further services until full payment has been made or until the circumstances according to sentence 1 have changed. The presumption of a deterioration of the customer's assets is given in particular if bills of exchange or cheques of the customer are not honoured due to circumstances for which the customer is responsible.
8.7 Insofar as there are no statutory provisions to the contrary, the customer may only offset claims of the supplier against counterclaims that are undisputed, legally established or ready for decision. The same applies to the exercise of the right of retention, including the rights under § 369 HGB.
8.8 Notwithstanding para. 8.1, the supplier may also demand payment prior to performance of the service. In this case, para. 8.3 and para. 8.4 shall not apply.
9 Invoicing
The customer declares to the supplier his consent that the supplier or a service provider authorised by the supplier may also send invoices electronically - e.g. as an email attachment - with or without a qualified electronic signature.
10 Liability for material defects and acceptance
10.1 The liability for material defects for services of the Supplier shall be governed by the statutory provisions, unless otherwise agreed below.
10.2 The customer's claims for material defects shall become statute-barred 12 months after performance. Irrespective of the customer's knowledge of a defect in the performance, the period shall commence from the time of handover to the customer.
10.3 The customer is obliged to inspect the performance immediately after handover. The customer shall notify the supplier in writing without delay of any defects recognisable during the inspection of the performance after handover, and of any other defects without delay after their discovery, in each case giving a descriptive description of the defect and the time of discovery. If the customer fails to comply with this duty of notification properly and in good time, the performance shall be deemed to have been approved by the customer. The customer may initially only demand subsequent performance from the supplier. The supplier may choose to remedy the defect or to deliver a defect-free item as supplementary performance. If the supplementary performance by the supplier fails, the statutory provisions shall apply. In the event of an insignificant defect, the right to subsequent performance shall be excluded.
10.4 In the event of a breach of a performance obligation by the supplier which does not consist of a defect in the performance itself, the customer shall only be entitled to withdraw from the contract if the supplier is responsible for the breach of the performance obligation. The supplier does not vouch for the fact that the performance works faultlessly in connection with other products.
10.5 Unless otherwise provided by law, claims for material defects by the Supplier shall be excluded in particular in the following cases:
(a) The Customer has had modifications made to the Performance by a third party or has processed the Performance.
(b) The customer disregards certain instructions for use of the supplier associated with the performance, in particular the enclosed or affixed processing and/or usage instructions, or he uses non-supplier accessories in connection with the supplier's performance.
(c) The customer does not use the performance for the contractually presumed use or for the usual use or does not install it properly.
(d) In the case of a custom-made product manufactured by the Supplier according to the specifications or design documents of the Customer, insofar as the defect is based on these specifications or design documents of the Customer.
10.6 If the performance is defective, the Customer may, unless otherwise provided by law, only assert a claim for damages against the Supplier under the following additional conditions:
(a) If and to the extent that the Supplier does not perform a due service or does not perform it as contractually owed, the Customer must set the Supplier a reasonable deadline for performance in writing. The setting of a deadline must include a statement that the customer will refuse to accept the performance after the deadline has expired. Upon fruitless expiry of the deadline set by the customer, the claim to performance is excluded.
(b) If the customer withdraws from the contract with the supplier due to a defect in the performance, the supplier may require the customer to declare to the supplier in writing within a period of 2 weeks from the assertion of the withdrawal whether it intends to adhere to the withdrawal from the contract or to claim damages instead. If the customer does not exercise its right of choice vis-à-vis the supplier in due time, the customer's claim for damages shall be excluded.
10.7 Insofar as acceptance has been agreed for a service and/or partial service, the customer is obliged to carry this out within one week after notification of completion by the supplier. The customer shall also be obliged to accept the performance if there are insignificant defects which do not particularly impede use.
10.8 In the event that the customer does not accept the service for reasons for which it is responsible or accepts the service and does not give notice of any material defects within ten days after use, the service shall be deemed to have been accepted.
11 Amount of damage
11.1 Irrespective of the legal grounds, the Supplier shall only be liable for damage attributable to a defect in the performance itself or to an act or omission to the extent of the damage typical for the contract and foreseeable and only within the following limits:
(a) in the event of intent or gross negligence on the part of legal representatives, an employee or other vicarious agents of the Supplier, without limitation;
(b) in the event of culpable breach of material contractual obligations (cardinal obligations) by the Supplier, its legal representative or other vicarious agents without intent or gross negligence limited to the invoice value of the performance. Cardinal obligations are obligations the fulfilment of which is essential for the proper performance of the contract and compliance with which the contractual partner may regularly rely on.
11.2 The supplier shall only be liable for damage attributable to the conduct of an employee or vicarious agent if these persons have acted in the exercise of their duties. The supplier is also exempt from this liability insofar as the damage is due to circumstances which it could not avoid even with the greatest care and the consequences of which it was unable to avert (e.g. strike, force majeure).
11.3 Furthermore, liability on the part of the supplier is excluded, unless mandatory legal provisions to the contrary apply. In particular, the supplier shall not be liable for breaches of ancillary obligations, lack of economic success, loss of profit, indirect damage, consequential damage caused by a defect and damage arising from third-party claims against the customer.
11.4 The limitation of liability according to paragraph 10.1 to paragraph 10.4 does not apply to damages to body, life and health.
12 Moulds
12.1 Moulds for special models made by the supplier or by third parties on the supplier's behalf are and remain the property of the supplier. If the customer has assumed the costs for the production of such moulds, they shall, unless otherwise agreed, be used exclusively for the customer's orders as long as the customer meets its payment and acceptance obligations. The supplier's obligation to store the moulds and to use them exclusively for the customer shall expire if no further orders of a reasonable size for deliveries from the mould have been placed within 2 years of the last delivery of goods from the mould.
12.2 If, as agreed, the customer is to become the owner of the moulds, ownership shall pass to the customer after payment of the full purchase price for the moulds. The transfer is replaced by the fact that a legal relationship is deemed to have been established at this point in time, on the basis of which the supplier is obliged to store the moulds for the customer free of charge and the customer can demand the return of the moulds. However, despite this claim for return by the customer and irrespective of the life of the moulds, the supplier shall be entitled to exclusive possession of the moulds as an agent for possession until two years have elapsed within which no further delivery of goods has taken place since the last delivery of goods.
12.3 In the aforementioned cases of paragraphs 12.1 and 12.2 and if the customer has provided moulds on loan, the supplier's liability with regard to storage and maintenance of the moulds is limited to the care that the supplier applies in its own affairs. Costs for maintenance and insurance of the moulds shall be borne by the customer.
12.4 The supplier's obligations with regard to customer-owned moulds and moulds provided on loan expire if the customer does not collect the moulds after completion of the order and a corresponding request. As long as the customer has not fulfilled its contractual obligations in full, the supplier has a right of retention to the customer's own moulds and the moulds made available on loan.
13 Industrial property rights and copyrights
13.1 If and to the extent that a third party asserts justified claims against the Customer due to the infringement of an industrial property right or copyright (hereinafter "Property Rights") by a Service developed and/or provided by the Supplier, the Supplier shall be liable as follows, unless otherwise provided by law:
(a) The Supplier shall, at its option and at its expense, either obtain a right of use for the developed and/or provided service, modify the service in such a way that the Property Right is no longer infringed, replace the service if the use of the service as provided for in the contract is not impaired thereby or take back the service and reimburse the Customer for the price paid for it less any loss in value of the service incurred. If and to the extent that the Supplier cannot finally grant the Customer the contractually owed right of use by means of the measures referred to in sentence 1, the Customer shall be entitled to withdraw from the contract after setting a reasonable deadline;
(b) The Supplier shall only be obliged to take the measures referred to in a) sentence 1 if the Customer immediately notifies the Supplier in writing of the claims asserted by the third party, describing the infringement, does not acknowledge an infringement and the Customer grants the Supplier all decision-making powers regarding the legal defence and the conduct of settlement negotiations without restriction. If the customer discontinues the use of the service for reasons of mitigation of damages or other important reasons, he shall be obliged to point out to the third party that the discontinuation of use does not imply any acknowledgement of an infringement of property rights.
13.2 Claims of the customer according to paragraph 12.1 are excluded if and to the extent that the customer is responsible for the infringement of the property right. Claims of the customer shall also be excluded if and to the extent that the infringement of the IPR is caused by special specifications of the customer, by an application not foreseeable by the supplier or by the fact that the performance is modified by the customer or used together with performances not provided by the supplier.
13.3 The customer is obliged to support the supplier to the best of its ability in the defence against the infringement of the property right.
13.4 Conversely, the Customer shall indemnify the Supplier against all claims asserted by third parties against the Supplier due to an infringement of an industrial property right or copyright if the infringement results from an explicit instruction given by the Customer to the Supplier or if the Customer modifies the performance or integrates it into a system of a third party.
14 Export Control
14.1 In recognition of U.S. and other applicable (including without limitation European and German) export control regulations, Customer agrees to obtain, at its expense, Supplier's written consent and all necessary export licenses and/or other documents prior to exporting any Products received from Supplier. In this respect, the Customer undertakes to the Supplier to comply with all applicable export control regulations.
14.2 The Customer undertakes not to sell, export, re-export, supply or otherwise pass on such products, either directly or indirectly, to any person, company or country, if this violates American or other (in particular European and German) laws or regulations. The customer undertakes to inform all recipients of these products of the need to comply with these laws and regulations. The refusal of an export licence does not entitle the customer to withdraw from the contract or to claim damages.
15 Place of jurisdiction, applicable law, severability clause
15.1 Without the prior written consent of the supplier, the customer may not transfer the rights and obligations arising from the contract existing with the supplier to third parties.
15.2 The place of jurisdiction for all disputes between the Supplier and the Customer shall be the Supplier's registered office, provided that the Customer is a registered trader, a legal entity under public law or a special fund under public law. However, the supplier is also entitled to sue the customer at the customer's registered office. Unless otherwise agreed between the supplier and the customer, the place of performance shall be the supplier's registered office in Altenkunstadt.
15.3 The law of the Federal Republic of Germany shall apply exclusively to all legal relationships between the customer and the supplier. The application of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 is excluded.
15.4 Should any provision of these GTC be or become invalid, unenforceable or incomplete, this shall not affect the validity of the remaining provisions. In place of the invalid, unenforceable or missing provision, that provision shall be deemed agreed which the parties would reasonably have agreed if they had been aware of the invalidity, unenforceability or incompleteness.