I. Scope of Application
1. these general terms and conditions are valid for all business relations between Onskinery GmbH & Co. KG (hereinafter referred to as Onskinery) and its customers. 2.
2. The deliveries, services and offers of Onskinery are exclusively based on these general terms and conditions.
3. Onskinery does not accept any contrary, deviating or supplementary terms and conditions of business or purchase of the customer, unless onskinery has explicitly agreed to their validity in written form.
4. References to the validity of legal regulations have only a clarifying meaning. Therefore, even without such clarification the legal regulations will apply as far as they are not directly modified or explicitly excluded in these general terms and conditions.
II. Offers and conclusion of Contract
1. The offers of Onskinery are subject to change and non-binding, unless otherwise stated in writing by Onskinery.
2. Onskinery always accepts the offers/orders of the customers under the condition (condition precedent) that for all articles ordered by the customer at least a sufficient order volume for a cost-covering production is received. Whether the order volume is sufficient for this purpose will be decided by Onskinery at its reasonable discretion. Onskinery will immediately inform the customer about the non-acceptance of a customer's offer/order and will immediately refund any consideration already paid.
III. Prices and Terms of Payment, Prohibition of Set-off and Assignment
1. The current list prices of Onskinery at the time of the conclusion of the contract apply.
2. All prices are ex works plus the legal value added tax including the transport packaging of the goods. The transport packaging will not be taken back by Onskinery - pallets are excluded - and has to be disposed of by the customer at his own expense at a disposal company according to WO (Packaging Ordinance). The costs of special packaging used at the request of the customer are to be borne by the customer.
3. If the goods are shipped, the customer shall bear the transport costs ex works and the costs of any transport insurance requested by the customer.
4. The payment has to be made within the agreed date of payment. Payments are to be made exclusively to Onskinery; for payments to representatives or intermediaries the written consent of Onskinery is required. Bills of exchange or checks will be accepted only exceptionally with prior written agreement, and only on account of performance; the costs of discounting and collection will be borne by the customer.
5. The mere expiry of an agreed date of payment for which the customer is responsible will put the customer in default towards Onskinery without the need of a reminder. Onskinery will never waive its rights under this provision if it nevertheless sends a reminder to the customer.
6. If the customer is in default of payment he is obliged to pay default interest in the amount of the applicable legal default interest rate. If Onskinery can prove a higher damage caused by delay, Onskinery is entitled to claim this in addition. In this case the customer is entitled to prove that Onskinery has not suffered any damage or a significantly lower damage as a result of the delay in payment.
7. Onskinery is entitled to make deliveries dependent on advance payments or the granting of securities if the customer is based abroad, if the customer is in arrears with his payments, if there are indications that the customer will not be able to make his payments or if the financial situation of the customer deteriorates significantly (e.g. deterioration of the customer's creditworthiness). Onskinery is not obliged to accept securities or advance payments if there is reason to believe that such payments or securities of the customer can be challenged in case of his insolvency or similar proceedings.
8. The customer may set off his counterclaim against a payment claim of Onskinery or assert a right of retention only if his counterclaim is (aa) undisputed, (bb) subject to a final decision of a competent court or (cc) in case of set-off, synallagmatic (i. e. interdependence of performance and consideration in the reciprocal agreement) to the claim of Onskinery against which the customer is setting off, or (dd) in case of a right of retention, is based on the same contractual relationship as the claim of Onskinery from which the customer asserts his rights.
IV. Delivery, dispatch, transfer of risk, accetpance and default of acceptance
1. Delivery and shipment will always be carried out at the risk of the customer from the moment the goods are handed over to the forwarding agent, carrier or any other person or institution designated to carry out the shipment, even if Onskinery bears the costs of the delivery.
2. If the customer refuses to accept the goods without an objectively justified reason, the resulting costs can be charged to the customer. Furthermore, Onskinery has the right to withdraw from the contract in this case according to the legal regulations. Further claims remain reserved.
V. Delivery time and patial Delivery
1. The information given by Onskinery regarding delivery dates and deadlines are non-binding, unless expressly agreed otherwise in writing - for reasons of security of evidence.
2. The timely delivery is subject to the proviso that Onskinery receives in time, in sufficient quantity and quality the goods required for the delivery from the pre-supplier, provided that Onskinery has instructed the pre-supplier in such a timely manner that a timely delivery/service can be expected.
3. Onskinery is entitled to make partial deliveries as far as they are reasonable for the customer. Onskinery is also entitled to early delivery before the delivery date after prior notice, as far as this is reasonable for the customer.
VI. Rights of the Customer due to Defects
1. In the following cases, the special statutory provisions shall remain unaffected in the case of final delivery of the goods to a consumer (supplier's recourse pursuant to §§ 445a, 445b, 478 BGB).
2. The customer's claims for defects presuppose that the customer has properly fulfilled its obligations to inspect the goods and give notice of defects in accordance with § 377 HGB (German Commercial Code).
3. The customer must give notice of defects in writing without delay. Defects must be notified in writing without delay. The customer's notification shall be deemed to be without undue delay if it is made within 10 days of discovery of the defect at the latest. The timely dispatch of the notice of defect shall be sufficient to meet the deadline. However, if the customer fails to notify Onskinery of the defect in due time, Onskinery's liability for the defect not notified shall be excluded.
4. The deviations usual in trade or minor deviations especially in quality, color, width or weight or the design do not represent material defects as far as they are reasonable for the customer.
5. If the goods are defective, Onskinery is entitled to choose between subsequent performance in form of removal of defects or delivery of new goods free of defects. The right of Onskinery to refuse the chosen kind of supplementary performance under the legal conditions remains unaffected. If the subsequent performance fails, the customer may choose to reduce the price appropriately (reduction) or withdraw from the contract as well as claim damages, in each case according to the legal provisions. If the customer chooses compensation for damages or reimbursement of futile expenses, VIII of the General Terms and Conditions shall apply.
VII. Retention of Title
1. Onskinery reserves the ownership of the delivered goods ("reserved goods") until all claims of onskinery against the customer resulting from the business relation including future claims also resulting from contracts concluded at the same time or later have been settled. This is also valid if single or all claims of Onskinery have been included in a current invoice and the balance has been drawn and accepted.
2. The customer is only entitled to resell the goods subject to retention of title in the ordinary course of business, if he assigns to Onskinery already now all claims, which accrue to him from the resale against customers or against third parties. If goods subject to retention of title are sold unprocessed or after processing or combination with objects which are exclusively owned by the customer, the customer already now assigns the claims resulting from the resale in full amount to Onskinery. If goods subject to retention of title are sold by the customer - after processing/combination - together with goods not belonging to Onskinery, the customer already now assigns the claims resulting from the resale in the amount of the value of the goods subject to retention of title with all ancillary rights and priority over the rest. Onskinery accepts the assignment. The customer is authorized to collect these claims also after assignment. The authority of Onskinery to collect the claims itself remains unaffected; however, Onskinery commits itself not to collect the claims as long as the customer duly fulfills his payment and other obligations. Onskinery is entitled to demand that the customer informs Onskinery about the assigned claims and their debtors, provides all information necessary for the collection, hands over the corresponding documents and informs the debtors about the assignment.
3. Any processing of the goods subject to retention of title shall be carried out by the customer on behalf of Onskinery without any obligations arising for the latter. In case of processing, combining, mixing or blending of the reserved goods with other goods not belonging to Onskinery, Onskinery is entitled to the resulting co-ownership share of the new object in proportion of the value of the reserved goods to the other processed goods at the time of processing, combining, mixing or blending. If the customer acquires the sole ownership of the new item, the contractual partners agree that the customer grants Onskinery co-ownership of the new item in proportion to the value of the processed or combined, mixed or blended goods subject to retention of title and keeps it for Onskinery free of charge.
4. If Onskinery is liable for payment by bill of exchange in connection with the payment of the purchase price by the customer, the retention of title as well as the underlying claim from the delivery of goods will not expire before the bill of exchange is honored by the customer as drawee.
5. If the value of the existing securities exceeds the claims to be secured by more than 10%, Onskinery shall be obliged to release the securities to this extent upon the customer's request.
6. Onskinery is entitled to assert the rights of assignment of the claim to the counter-performance at any time, if the fulfillment of its claims by the customer is endangered, especially if insolvency proceedings are opened against the customer's assets or if the customer's financial situation deteriorates significantly.
7. In case of seizure or confiscation of the goods subject to retention of title or other dispositions or interventions of third parties in the rights of Onskinery, the customer has to inform Onskinery immediately and to do everything necessary in coordination with Onskinery to avert the endangerment. He has to inform the third party immediately about Onskinery's retention of title. The customer is obliged to provide Onskinery with a possible seizure protocol as well as an affidavit about the identity of the seized items. As far as it is indicated for the protection of the reserved goods, the customer has to assign claims to Onskinery upon Onskinery's request. The customer is obliged to compensate all damages and costs - including court and lawyer costs - incurred by Onskinery due to intervention measures against access of third parties.
8. The customer is obliged to handle the reserved goods with care and to insure them at his own expense against theft, water, fire and other damages.
9. In case of considerable behavior of the customer contrary to the contract, especially in case of default of payment, Onskinery is entitled according to the legal regulations to withdraw from the contract and to take back the reserved goods. The costs of taking back the goods will be borne by the customer. After taking back the goods subject to retention of title Onskinery is authorized to realize them; the realization proceeds minus reasonable realization costs are to be credited against the customer's liabilities.
10. In case of export transactions in countries where the aforementioned retention of title is not legally effective, Onskinery reserves the right to secure the right of ownership according to the respective legal regulations of the receiving country. The customer is obliged to support Onskinery in this process to the necessary extent.
1. Claims for damages, regardless of the legal basis, are excluded, unless the damages are based on an intentional or grossly negligent breach of duty by Onskinery or one of its vicarious agents or legal representatives or on the breach of essential contractual obligations. Essential contractual obligations are such obligations, the fulfillment of which enable the proper execution of the contract in the first place and on the compliance with which the customer regularly relies and may rely. In the event of a slightly negligent breach of material contractual obligations, the amount of liability shall be limited to the damage typical of the contract and foreseeable at the time of conclusion of the contract.
2. The liability for damages resulting from injury to life, body or health, due to the assumption of a guarantee for the quality of the goods or the procurement risk by Onskinery or insofar as Onskinery has fraudulently concealed a defect remains unaffected. Furthermore, a possible mandatory legal liability, in particular from the product liability law, remains unaffected.
3. As far as the liability of Onskinery is excluded or limited, this also applies to the personal liability of its employees, partners, representatives and vicarious agents.
IX. Force majeure
1. In the event of force majeure, industrial action for which one of the contracting parties is not responsible and other operational disruptions for which it is not responsible and which have lasted or are expected to last longer than one week, the delivery or acceptance period shall be extended without further ado by the duration of the impediment, but by no more than 5 weeks. The extension shall only take effect if the other party is immediately informed of the reason for the hindrance as soon as it can be foreseen that the delivery or acceptance deadline cannot be met. 2.
2. If the delivery or acceptance in the cases mentioned in item 1 has not been effected within the extended delivery or acceptance period, the other contracting party may withdraw from the contract after expiry of a period of grace of 12 calendar days to be set.
3. Claims for damages shall be excluded in the cases of item 1 if the respective contracting party has fulfilled its obligation pursuant to item 1. The mandatory liability according to VIII. remains unaffected.
X. Statute of Limitations
1. In all cases of VIII. the statutory limitation periods shall apply for the customer.
2. In deviation from § 438 para. 1 no. 1 BGB (German Civil Code), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery.
3. This shall not affect special statutory provisions for claims in rem for the surrender of goods by third parties (§ 438 para. 1 no. 1 BGB) and for claims in supplier recourse in the case of final delivery to the consumer (§ 445b BGB).
4. The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the customer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases.
XI. Govering Law, Place of Performance and Jurisdicaiton
1. Place of performance for all services and deliveries under these general terms and conditions is the registered office of Onskinery, unless another place of performance has been agreed upon.
2. German law is valid under exclusion of the UN-purchase right.
3. For all disputes arising from and in connection with these general terms and conditions, unless there is a mandatory exclusive place of jurisdiction, the place of jurisdiction is agreed to be the registered office of Onskinery. However, Onskinery is also entitled to sue the customer at his legal place of jurisdiction.
XII. Final provisions
1. The contractual obligations of Onskinery result from the order confirmation/order as well as these general terms and conditions. Verbally made changes or additions to their contractual agreements will be confirmed by Onskinery in writing within 14 days for the purpose of evidence.
2. Should any provision or regulation of the contract be invalid or unenforceable, the remaining provisions of the contract shall remain in full force and effect to the extent permitted by applicable law. In place of the invalid or unenforceable provision or in order to close a loophole in the contract, such valid and enforceable provision shall apply that comes closest to the economic sense and purpose of the invalid, unenforceable or missing provision according to the parties' conception.