Purchase, Delivery and Payment Terms of
TO DO Design GmbH & Co. KG, Buschhöhe 8, 28357 Bremen, Germany (hereinafter “TO DO”)
1. Applicability of these terms:
(1). These purchase and delivery terms shall be applicable exclusively to business operators (within the meaning of Sec. 14 of the German Civil Code or “BGB”), incorporated entities and (special) estates, also in case the customer wishes to apply other terms and conditions. They shall apply to all subsequent transactions and business relationships at present or in the future regarding deliveries or services by TO DO.
(2). All offers, agreements, deliveries and services shall be carried out on the basis of and in accordance with the following terms. Contradictory or conflicting general terms, especially purchase terms, shall not be binding upon TO DO, unless TO DO MDI Schott has expressly declared its approval. In case two letters of confirmation are crossing, which contain conflicting terms, the letter of TO DO is binding.
(3). All Agreements and orders require the written form in order to be legally valid. Oral side agreements do not exist. Proof to the contrary is not excluded.
2. Prices and payment:
Prices are binding and EXW registered office of To Do (Incoterms 2010). They are quoted in EURO and exclude the respective VAT, as well as the expenses for customs, packaging, freight, transportation, transport insurance, duties and dispatch. In case of delivery to a foreign country, TO DO shall not be liable for the taxes and charges thereby incurred. If no fixed prices have been agreed, the respectively current list prices are applied.
(2) The Customer may only withhold payments due to counterclaims or offset claims which are uncontested or which have become res judicata. The Customer may not assign any claims arising from transactions with To Do without To DO’s prior written approval
(3) Invoices shall be paid within 10 days from date of invoice. Bank charges are assumed by the customer. TO DO reserves the right to deliver only against prepayment, cash or cash on delivery, especially in the case of first orders or in case of default of payment.
3. Delivery conditions:
(1) Delivery or completion dates are non-binding, unless expressly confirmed by To Do as “binding”. Binding delivery periods shall be fixed separately and individually. These provisions are always under condition of correct and complete delivery to TO DO. The transfer of risk shall take place with the provision of the services. If, the goods being ready for take-over or acceptance, the acceptance or the take-over is delayed due to reasons for which TO DO is not responsible, the risk is transferred to the customer when he is notified of the completion.
(2) Software is handed over in object code format. The source code is not put into escrow. The transport of goods shall only be insured by TO DO if explicitly wished by the customer. The eventual expenses shall be assumed by the customer. By expressing his wish to have the transport insured, the customer entitles TO DO to execute the necessary declarations.
(3). Partial deliveries are admissible. The delivery period is prolonged adequately in case of unpredictable, extraordinary events, which in spite of the necessary and reasonable care applied according to the circumstances of the case, could not be prevented. Such events are, eg., business disruption, strike or lockouts, a ban on imports or exports, a refusal to issue or the revocation of authorizations or permissions or other administrative measures; this does also apply, should such an event strike a supplier or other producer.
(4) To Do reserves all its proprietary rights and all rights under any applicable copyright law in and to documents for a bid or offer, cost estimate, drawings, manuals, technical documentation and other proprietary information and documents, regardless of whether in electronic, optical or hardcopy form of storage, which have been submitted by To Do to the Customer (hereinafter the “Documents”). No Documents shall be made accessible to third parties except with the prior written consent of To Do.
4. Retention of title:
(1) The delivered goods remains property of TO DO until the complete payment of all claims from the business operation, including a possible current account balance (so far as it has been accepted by the customer). In case of default or other breaches of duty, TO DO is entitled to rescind the contract and to take back any the goods subject to the retention of title, provided a suitable grace period has elapsed.
(2) The customer is not entitled to resell the goods subject to retention of title, unless the transfer of title is effected by implantation into the human body. The customer is not permitted to encumber let encumber the goods subject to retention of title with a pledge or a chattel mortgage.
(3) Any possible processing or treatment of the goods subjected to retention of title will be undertaken by the customer for TO DO. In the case of the treatment, combination and amalgamation or mixing of the goods subjected to retention of title with other objects not belonging to TO DO, TO DO is entitled to the co-ownership share of the new object resulting from the action proportionally, on the basis of the proportion of the value of the goods subject to retention of title to the rest of the treated goods at the time of treatment, combination and amalgamation or mixing.
(4) The customer is obliged to inform TO DO without delay of any seizures, confiscations or other enforcement measures or of provisions of third parties as to the goods subjected to retention of title or the claims ceded in advance, and to hand over the documents necessary for an intervention.
To Do delivers services by trained and experienced personnel. Training and experience do not necessarily cover the actual application within the scope of the agreement with the customer. Should the service or performance provided by TO DO be deficient, which includes the lack of the specification contractually agreed upon, TO DO may, at its own discretion, either deliver a substitute or repair the defect; at least tthree attempts of repair or of substitute deliveries must be permitted.
(2) Perceptible deficiencies of the goods and/or service have to be communicated in written form immediately after receipt.
(3) TO DO is not liable for damages due to improper use or treatment, deficient setting up and combination with other objects by the customer or by a third party, for natural abrasion, inappropriate equipment as well as chemical, electric or electrochemical influences originating from beyond the range of performance and sphere of influence of TO DO. If the customer receives a faulty instruction, TO DO is only obliged to deliver a correct instruction and this only if the deficiency of the instruction is opposed to a state of the art implantation
(4) TO DO is not liable for the compliance with foreign packaging and duty provisions. TO DO reserves the right to undertake technical improvements even without notification of or coordination with the customer.
(5) The limitation period for any claims in case of defects is one year. It begins with the handover of the goods to the customer.
(6) Warranty („Gewährleistung“) shall be granted for all services of TO DO in the amount und under the prerequisites of the following provisions. TO DO is liable without limitation according to legal provisions, as far as TO DO or one if its representatives are responsible for a deliberate or grossly negligent breach of contract, or as far as an injury to life, body or health has ensued or if TO DO has assumed a guarantee. The liability for a slight negligence is excluded, unless an essential contractual obligation (cardinal obligation) has been violated. In this case, the liability is financially restricted to the predictable damage typical of the contract. These limitations of liability do likewise not apply, should TO DO as a supplier be sued for contribution claims according to § 478 BGB or for claims according to §§ 1,4 Produkthaftungsgesetz.
6. Compensation in case of cancellation of order:
Should an order be cancelled for reasons for which the customer is responsible, he will pay TO DO – without prejudice to the possible assertion of a greater actual damage – a compensation of 15 % of the net contract value, or, at his discretion, fulfil the contract. The customer is entitled to prove, that no or less damage has been caused to TO DO.
7. Redemption of deficient goods:
In case the customer declares rescission of the contract and a hand back of services is impossible, the customer shall compensate the value of the service in the amount of the current price list of To Do in the moment of the performance of the service. Goods are returned to To Do, indicating the reason for the return and at the expense of the customer Should it turn out, that a return was unjustified, TO DO can charge the customer the goods in question.
9. Severability Clause:
Should any provision of this agreement be or become entirely or partly invalid, the validity of the contract and of the other terms of purchase, delivery and payment shall not be affected thereby. The parties are obliged to replace invalid or impracticable conditions or contractual terms by valid provisions, which, to the extent possible, implement the intent pursued by the invalid provision.
10. General provisions:
(1) As far as the customer is a business operator, an incorporated entity of public law or a (special) estate of public law, Bremen, Germany is the sole court of jurisdiction for all legal disputes arising directly or indirectly from the contract. However, TO DO is also entitled to sue at the customer’s registered office. The same rule applies to customers without a general court of jurisdiction in Germany or whose permanent or usual residence at the time the suit is filed is unknown. The place of fulfilment is the registered office of TO DO Design GmbH & Co. KG.
(2) The contractual relationship is governed exclusively by German law (especially BGB and HGB) under the explicit exclusion of its collision rules and the UN Convention on the Sale of Goods (CISG).