General Terms and Conditions
General - scope of application
The following General Terms and Conditions of Business (AGB) apply only to entrepreneur, legal persons under public law or entities of the Federal Special Funds within the meaning of section 310 in combination with section 14, German Civil Code (BGB) (hereinafter „customers”)
Contracts for deliveries are based exclusively on the following General Terms and Conditions. REFLECTS® does not acknowledge any customer terms and conditions which contradict or deviate from the present AGB, unless REFLECTS® explicitly agrees to these in writing. The present AGB apply even if REFLECTS® performs the delivery or services to the customer without objection in the knowledge of customer terms or conditions which are in contradiction or deviation.
Ancillary and deviating agreements require written confirmation by REFLECTS® to be valid. Our General Terms and Conditions also apply to all future transactions with the customer.
Description of services, offer and order
Electronic, written or oral offers by REFLECTS® do not represent an offer in the legal sense and are merely a solicitation of an order from the customer. A contract only arises on written acknowledgment of the order by REFLECTS®, or at the latest on acceptance of the delivery by the customer. REFLECTS®’s offers and order acknowledgments are always subject to a positive credit report on the customer.
Collaboration obligations
The customer is obliged to collaborate under the contract or in good faith, specifically in obtaining necessary permits and approvals. With regard to releases, see art. 8 below.
REFLECTS® is entitled to set a reasonable period for the customer to collaborate. After fruitless expiration, REFLECTS® is entitled to withdraw from the contract. If the necessary licences or permits are not available by the latest after 3 months after entry into the contract, REFLECTS® is entitled to withdraw from the contract.
Delivery, delivery period
Delivery is ex warehouse Germany, unless otherwise agreed. For delivery from an external warehouse, freight ex factory is billed.
Shipping is at the customer’s cost and risk. Risk passes to the customer at the latest on delivery ex works or shipment warehouse. This also applies if REFLECTS® agreed shipment free of freight.
The goods are shipped uninsured unless otherwise agreed.
The start of the delivery period specified by REFLECTS® is subject to clarification of all questions based on the customer’s collaboration obligations listed under (3) above.
Stated delivery dates are nonbinding, unless REFLECTS® explicitly confirms in writing the binding nature of the stated delivery time. Time of delivery is shipment ex works or warehouse. If the goods are not shipped for reasons beyond REFLECTS®’s control, notification of readiness for shipment is decisive.
The delivery period is interrupted for the time needed for the customer to check drawings, spec. samples, blueprints etc, from the date of shipment to the customer until the arrival of the customer’s statement.
REFLECTS®’s compliance with its delivery obligation is subject to prompt and proper delivery by its own suppliers and further to the prompt and proper performance of the customer’s obligations. Defence of non-performance is reserved. REFLECTS® is entitled to make reasonable part delivery and invoicing. If the customer is in default on acceptance or culpably violates other collaboration obligations, REFLECTS® is entitled to demand damages for any loss suffered including any additional expense. REFLECTS® reserves all further rights.
If the provisions of paragraph (3) are satisfied, the risk of accidental loss or deterioration of the object of purchase passes to the customer at the time when it fell into default or fault.
REFLECTS® is further liable under statutory provisions if the default on delivery is due to a deliberate or grossly negligent contractual violation for which REFLECTS® is responsible; REFLECTS® is responsible for the fault of its agents or servants. If the default on delivery is not due to a contractual violation for which REFLECTS® is responsible, REFLECTS®’s liability for damages is limited to the foreseeable and typical loss.
REFLECTS® is further liable under statutory provisions if it is responsible for the default on delivery as a result of culpable violation of a material contractual obligation; in such event liability for damages is limited to the foreseeable and typical loss.
Prices
Unless otherwise stated in the order acknowledgment, REFLECTS® prices are ex warehouse in Germany and exclude packaging, shipment costs as well customs duties. Any bank charges for foreign transfers are borne by the customer.
REFLECTS® prices do not include VAT, which is shown separately in the invoice at the rate prevailing on the invoice date..
Payment terms, offset, retention
Unless otherwise stated in the order acknowledgment, the purchase price is due net (without discount) within 10 days of the invoice date. The statutory regulations apply to the consequences of default on payment.
Retention or offsetting due to any counterclaims of the customer is only permitted if the counterclaims are legally enforceable or uncontested by REFLECTS®.
Retention of title
REFLECTS® retains title in the object of purchase pending receipt of all payments under the delivery contract. In the event of contractual violation by the customer, and specifically default on payment, REFLECTS® is entitled to demand the return of the object of purchase. Repossession by REFLECTS® of the object of purchase constitutes withdrawal from the contract. After repossession of the object of purchase REFLECTS® is entitled to dispose of its otherwise; the proceeds must be offset against the customer’s liabilities, less reasonable costs of disposal.
The customer is obliged to treat the object of purchase with care, and specifically to insure it adequately at its own cost against fire, water damage and theft.
In the event of distraint or other intervention by third parties, the customer must notify REFLECTS® in writing without delay so that REFLECTS® can file a claim under section 771 Code of Civil Procedure (ZPO). If the third party is not able to reimburse REFLECTS® for the court and other costs of a claim under section 771 Code of Civil Procedure (ZPO), the customer is liable for the resulting loss to REFLECTS®.
The customer is entitled to sell the object of purchase in the course of normal business; however, the customer herewith assigns to REFLECTS® all claims in the amount of the final invoice amount (including VAT) against the customer’s customer or third parties arising to the customer out of the resale, regardless of whether the object of purchase is sole without or after processing. The customer is entitled to collect this claim even after assignment. This does not affect REFLECTS®’s authority to collect the claim itself. However, REFLECTS® undertakes not to collect the claim if the customer meets its payment obligations from the proceeds received, does not fall into default on payment, and specifically if no application for the opening of composition or insolvency proceedings is opened or the customer ceases payments. In such event, however, REFLECTS® can demand that the customer notify REFLECTS® of the assigned claims and the debtors, provides all information necessary for collection, supplies the associated documents, and notifies the debtors (third parties) of the assignment.
Processing or transformation of the object of sale by the customer is always done on behalf of REFLECTS®. If the object of purchase is processed together with other objects not the property of REFLECTS®, REFLECTS® acquires joint title in the new object in the ratio of the value of the object of purchase (final invoice amount including VAT) to the other processed objects at the time of processing. The same provisions apply to the object resulting from the processing as to the object of sale delivered subject to retention.
If the object of purchase is inseparably mingled with other objects not the property of REFLECTS®, REFLECTS® acquires joint title in the new object in the ratio of the value of the object of purchase (final invoice amount including VAT) to the other mingled objects at the time of processing. If the mingling is such that the customer’s object qualifies as the primary object, it is agreed that the customer transfers prorated joint title to REFLECTS®. The customer maintains the resulting sole or joint title for REFLECTS®.
The customer further by way of security for REFLECTS®’s claims against the customer assigns to REFLECTS® its own claims against third parties arising out of the connection of the object of purchase with a piece of real property.
REFLECTS® undertakes to release the security due to REFLECTS® at the customer’s request to the extent that the achievable value of REFLECTS®‘s security exceeds the claims to be secured by more than 10%; REFLECTS® has the right to select the security to be released.
Custom designs
For orders for custom designs all information on finish, dimensions etc must be confirmed in writing. Unless otherwise agreed, REFLECTS® retains the right to draw up internal development contracts based on documentation of any kind. Minor differences in subsequent contracts may be required by production considerations and are accepted by the customer.
Duplication, copying or transmission of drawings, samples or documentation created by REFLECTS® are only permissible with REFLECTS®’s explicit agreement,
In the case of production to sample, drawing or data provided by the ordering party, the latter is liable for violation of third party copyright and statutes which REFLECTS® cannot be aware of. Samples, photos, assemblies or drafts required by the ordering party are at the latter’s expense. Production release must be given without delay. Otherwise the agreed delivery time is extended accordingly. Production of the article in question cannot proceed without written release. The customer agrees to the release of digital images. On release for production the risk for any defects passes to the ordering party, unless major defects are involved which REFLECTS® was able to identify or which only emerged in subsequent production at the plant. REFLECTS® reserves the right to make and invoice over or under deliveries for production reasons on the usual scale for the industry of up to 10%.
The customer has no rights and claims in tools or development models, even if it contributes to the costs.
REFLECTS® is entitled to demand the return of these within 14 days. In the event of failure to return development models, the parts provided will be invoiced at cost to REFLECTS®.
Agreement to show images of custom designs is a prerequisite and does not require additional approval. No liability is assumed for the loss of films or other documentation.
Returns
Returns are only accepted subject to testing and approval by REFLECTS®. Acceptance of a return shipment does not under any circumstances constitute acknowledgment of a defect or other complaint by the customer. Return and any accidental loss are always at the customer’s risk. For returns for which the customer is responsible, and specifically (but not exclusively) in the event of refusal to accept deliveries, REFLECTS® will charge a fee for return to inventory. Goods delivered by REFLECTS® are not taken back for credit unless REFLECTS®’s written agreement has been obtained in advance, the goods delivered are standardised warehouse stock and can be used elsewhere. The amount to be credited is calculated based on valuation of the goods returned less the cost of handling the order and the return and any costs incurred in repairing same. Calculation of the amount of the credit is based on valuation of the items taken back, less the costs resulting from the the order and processing the return shipment and any expense on repairs. A credit cannot exceed the price at the time of the return. If the invoiced price is lower, this is taken as the maximum amount. In the event of accepted returns the customer must pay 30% of the price at the time of return for return to inventory. This is also deducted from the credit.
Assignment
Assignment of any claims by the customer against REFLECTS® from the relationship requires written approval by REFLECTS® to be valid; REFLECTS® may not unreasonably refuse such approval if the customer’s interest is justified.
Liability for defects
Obvious defects must be notified to REFLECTS® in writing within two weeks of delivery of the goods.
Claims by the customer for defects require that the customer has properly discharged its obligations to examine and report defects under section 377 German Commercial Code (HGB).
If there is a defect in the object of purchase REFLECTS® may opt between subsequent performance by correcting the defect or supplying a new item free from defect. If REFLECTS® opts to correct the defect, REFLECTS® bears the costs only up to half the purchase price.
If subsequent performance is without effect the customer has the option of withdrawing from the contract or requiring a reduction. Correction of the defect is only held to have failed after an unsuccessful second attempt.
If the review of a defect report shows that no defect is present, REFLECTS® is entitled to bill the customer a flat rate charge for processing. This does not affect the customer’s right to prove that REFLECTS® incurred less expense than billed.
Rights arising out of defects lapse in 12 months from the date of transfer of risk. Processing a defect report by REFLECTS® does not constitute acknowledgment of defect. Processing a defect report only delays the lapse if the statutory provisions for this are satisfied. It does not reset the period for notification. This also applies if REFLECTS® responds to a customer defect report by subsequent performance (attempt to correct the defect or replacement). An attempt to correct the defect can only affect the reporting period for the defect leading to the attempt and any new defects arising out of the attempt. If the goods are consumables this does not affect the rights of the customer under section 478, 479 BGB, provided that the customer has met the examination and complaint obligations under section 377 HGB.
General liability
REFLECTS® is liable under statutory provisions if the customer claims for damages based on intent or gross negligence, including intent or gross negligence on the part of REFLECTS®’s agents or servants. If REFLECTS® is not held liable for deliberate breach of contract, damages are limited to the foreseeable and typical loss.
REFLECTS® is liable under statutory provisions if REFLECTS® culpably violates a material contractual obligation, in which case liability for damages is limited to the foreseeable and typical loss.
If the customer has a claim to damages instead of performance, REFLECTS®’s liability is limited to compensation for the foreseeable and typical loss, including under art. 11 paragraph (3).
This does not affect liability for culpable injury to life, limb or health, or to strict liability under the Product Liability Act.
Unless otherwise provided above, liability is excluded.
If delivery is impossible the customer is entitled to demand damages under the statutory provisions. However, the customer’s claim is limited for damages together with or instead of performance and to reimbursement of fruitless expenditure to 10% of the value of that part of the delivery which cannot be used because of impossibility. Further claims by the customer for impossibility of the delivery are excluded. This restriction does not apply to cases of intent, gross negligence or injury to life, limb or health. This does not affect the customer’s right to withdraw from the contract. The above provisions do not involve any change in the burden of proof to the customer’s disadvantage.
Force majeure
If failure to meet deadlines is due to force majeure, e.g. mobilisation, war, civil unrest or similar events, e.g. strikes or lockouts, the deadlines are extended appropriately.
Date protection
In accordance with section 28 of the German Data Protection Act (BDSG) REFLECTS® notes that the data required to process the contract are stored.
Final provisions, venue and place of performance, applicable law
The place of performance for all obligations under the contract is Cologne. Venue for all disputes with merchants arising out of the contract, its existence and its validity is Cologne, but REFLECTS® is entitled to file claim against the customer at the latter’s seat.
The contract is governed exclusively by the right of the Federal Republic of Germany with the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
Amendments and additions to the contract and ancillary agreements must be in writing. This applies also and specifically to the waiver or amendment of this written form clause. If written form is required, fax transmission is also sufficient.
Severability Clause
Should any provision herein be or become invalid or unenforceable for any reason whatsoever this will not affect the remaining provisions.
Last update: January 2017