general terms & conditions of thinXXS AG


 

Validity: Objection to others‘ General Terms and Conditions

We deliver and supply exclusively on the basis of these general terms and conditions. This also applies to all future business. We only agree to the inclusion of the General Terms and Conditions of our customers if we have expressly confirmed them in writing.

 

Technical Documentation: Dies and Tools

If we send the customer technical documentation on our products, such as diagrams or technical drawings, then the customer is only allowed to use these for the purpose we intended and is not permitted to give third parties access to them apart from government authorities and courts. We retain the title and copyright of such documentation. As requested by us, the customer has to return them to us immediately free of charge. Providing no alternative agreement has been reached, forms and any other tools remain our property, even if the customer bears the costs of them.

 

Material provision

If the customer has to provide materials, then these are to be supplied by him on time, at his risk and expense with an appropriate quantity surplus of at least 10 % and in perfect quality. If the customer provides too little or defective material or provides it late, then he is responsible for the additional costs resulting from this including those resulting from interruption in production, with the exception of cases of force majeure.

 

Prices

Our prices are set ex works and not including VAT. Packaging, transport and other additional services (such as customs clearance) will be charged separately.

 

Time of Performance, Place of Performance, Part-performances

Delivery times do not start until we have agreed with the customer on all details of execution and all conditions for the transaction. Delivery times do not begin until the materials and technical documentation to be provided by the customer have been received, including all authorisations, technical specifications and approval by the customer. An agreed delivery date is delayed by the period of time by which these pre-requisites are also delayed. As long as the customer does not fulfil an obligation arising from the business relations, we have the right to defer our performance. Place of fulfilment for our performance is the supplier’s plant. We have the right to partial performance.

 

Bearing the Risk, Dispatch and Receipt

All consignments are dispatched at the customers expense and risk. We select the method of transport and route. As requested by the customer, we will insure the consignment against theft, transport damage as well as other insurable risks. The risk is passed to the customer at the latest on dispatch of the goods to the customer. This also applies if we bear the transport costs or deliver. If dispatch is delayed for reasons beyond our control, then the risk is passed to the customer as soon as the goods are ready to dispatch and at the start of the delay. The customer is to take delivery of the goods supplied, even if the goods are damaged, without affecting the customers rights. Defective goods are to be returned to us should we require it.

 

Transport damage

The customer must give notification of damage caused in transport or losses immediately and must leave the consignment for inspection by the carrier or insurer to be viewed as soon as possible. This also applies if the transport damage does not become apparent until the goods are unpacked or at a later date.

 

Customer’s Complaint and Warranty

Notification of defects in our deliveries is to be given immediately, at the latest one week after receipt by the customer or, in the case of hidden defects which initially can’t be detected on reasonable inspection and in a thorough incoming quality control, one week after being discovered. Otherwise it is taken that the delivery is approved. This also applies to wrong deliveries or quantity errors providing the goods delivered do not deviate from the order so significantly that we have to assume that approval from the customer is out of the question. If planning to process the material, the inspection obligation of the customer includes a sample process. For defects in our performance which existed when the risk was passed to the customer, we can choose whether to repair or deliver a replacement. Replaced parts become our property. If repair of a new delivery fails, then the customer can demand a reduction of the reimbursement (reduction of purchase price) or rescission of the contract (cancellation of sale).

 

We do not give a warranty for material provided by the customer or for constructions determined by the customer. For material procured according to the customer’s specification, we only provide a warranty for compliance with the specification given. The customer is responsible for the specification we are provided with and the application of our performance as set down in the contract.

 

Damages and Statutory Limitation

If we should default in our performances and it can not be determined if we are liable for this and if applicable to what degree we are liable, then we will compensate the customer the damages due to ordinary occurrences up to the amount of 1 % of our remuneration for every day of default, at most however the amount of our remuneration. If we are only charged with slight negligence, then we are free of the obligation to compensate for the damage caused by default. In the case of intention or gross negligence we will compensate the damages fully; the onus of proof of this lies with the customer.

 

If our performance becomes impossible or if we otherwise have to provide compensation for non-fulfilment and it can not be determined whether we are liable for this and if so, to what degree, then we will compensate the customer the damages due to ordinary occurrences up to the amount of our remuneration. If we are only charged with slight negligence, then we are free of the obligation to compensate for the damage caused by default. In the case of intention or gross negligence we will compensate the damages fully; the onus of proof of this lies with the customer.

 

Otherwise we are only liable for gross negligence or intentional infringement of our obligations. This also applies to information provided, advice as well as to unauthorised actions during preparation, conclusion and processing the contract. Possible claims of the customer for damages based on warranted characteristics being missing according to § 463, 480 section 2, 635 German Civil Code, based on infringement of other essential obligations resulting from the nature of the contract, compliance with which is necessary to reach the purpose of the contract as well as from product liability, are excluded from this in every respect.

 

Our general partner, her managing directors and our employees are liable to the customer for unauthorised actions carried out during preparation, conclusion and processing the contract only in the case of intention or gross negligence. As far as the law doesn’t determine a shorter period of statutory limitation, claims for damages for reasons of default, impossibility and infringement of other preliminary and contractual obligations are subject to a limitation period of 2 years since the end of the year they were incurred in.

 

Industrial Property Rights

If we have to supply according to drawings, models, samples or using parts provided by the customer, then the customer guarantees that industrial property rights of third parties are thereby not infringed upon. The customer indemnifies us from possible claims by third parties and will compensate us for the damages incurred. If we are prohibited from manufacturing or supplying by a third party with reference to an industrial property right, then without examining the legal situation, we have the right to suspend work.

 

Choice of Law and Jurisdiction

German law applies. Zweibrücken is the place of jurisdiction for all disputes arising out of this contract.