GENERAL TERMS AND CONDITIONS
General terms and conditions of 3D Service GmbH
Art. 1 Scope of application, protective clause
- The following terms and conditions shall apply for the entire present and future business relations with Customers of 3D Service GmbH (in the following referred to as “3D SERVICE”), even if no specific reference to them is being made. Contracts are concluded only with entrepreneurs in the sense of section 14 of the German Civil Code [BGB].
- Any differing or additional general terms and conditions of the Customer’s shall not be incorporated in the contract even if they have not been explicitly objected to and even if a delivery has been made unconditionally. By placing the order, the Customer declares his binding consent to these General Terms and Conditions.
- Any amendments, additions or any other subsidiary agreements must always be confirmed in writing by 3D SERVICE. For any changes performed without complying to the written form requirement, the Customer shall bear the burden of proof concerning the effectiveness and contents.
Art. 2 Conclusion of the contract, offers, prices, and rework
- The indicated prices and offers shall always represent a request to submit an offer. Only when 3D SERVICE confirm the offer is the contract effectively concluded.
- All the indicated prices are always excluding the applicable legal VAT.
- 3D SERVICE reserve the right to carry out changes in the construction, selection of materials, specification, and design. This shall also apply after the conclusion of the contract if these changes do neither contradict the order confirmation nor the Customer’s specification, if the Customer can be expected to tolerate them, and if the intended use specified in the contract is still possible.
- If the Customer requests changes after the contract has been concluded, any additional costs caused by this will be invoiced to him. If no prices have been agreed in that case, the 3D SERVICE prices shall be considered agreed, even if no specific reference to them is made.
- In case of essential, unpredictable changes of the material costs that cannot be influenced by 3D SERVICE, 3D SERVICE reserve the right to charge prices to the Customer that are proportionally adapted to those changes. If the Customer cannot be expected to accept the changes, he has the right to withdraw from the contract. Any services already rendered by 3D SERVICE in performance of the contract must be paid for by the Customer.
- All prices are ex works. They include packaging, freight, postage, insurance, and any other dispatch costs. If there is no specific agreement, 3D SERVICE shall have the right to choose packaging and dispatch and charge the Customer accordingly. 3D SERVICE must only take the packaging material back if they are obligated to do so on the basis of mandatory legal regulations. If the Customer wishes a special insurance for the transport, he must agree that before signing the contract with 3D SERVICE and must refund the costs.
- If the Customer commissions 3D Service in the context of a contractual relationship or in a temporal context after the termination of such a contractual relationship to do re-adjustments, in particular for achieving higher degrees of accuracy, the prices according to 3D SERVICE’s price list shall be considered agreed, even if no specific reference to it is made. Rework in the context of a mandatory warranty claim remains unaffected by these regulations.
Art. 3 Payment, delay, set-off, damage compensation
- Notwithstanding any separate agreements, invoices from 3D SERVICE must be paid within 15 calendar days after the invoice date without any deduction.
- If the Customer is in delay of payment, at least the legal default interests will be charged. It is up to 3D SERVICE to prove higher damages caused by the delay and to ask for compensation. The Customer has the right to prove that 3D SERVICE has not suffered any damage at all or that the damage was much less. For every reminder 3D SERVICE can ask for a lump sum reminder and processing fee of EUR 5.00 without having to prove the details; sentence 2 above shall be applicable analogously.
- Bills of exchange, cheques, and money orders will always only be accepted for the sake of performance and shall only be considered payment when the correct amount has been unconditionally credited to 3D SERVICE’s business account. Banking, discounting, and other fees shall be borne by the Customer.
- 3D SERVICE shall always be entitled to ask for an adequate advance payment, in particular if and in so far as high order values have been agreed and also if and in so far as 3D SERVICE must make considerable payments to third parties in order to execute the orders. Before they receive advance payment, 3D SERVICE shall not be obligated to order goods or services and to pay for or carry out these thrid party services from their own funds.
- The Customer can only set off their debts from such counterclaims that have been effectively legally ascertained or recognised by 3D SERVICE; in case of necessary late deliveries, he can only deduct an amount corresponding to the price for the goods still to be delivered or the service still to be rendered. The Customer can only claim a right of retention on the basis of counterclaims from the same contractual relationship; otherwise sentence 1 above shall be applicable accordingly, unless legal regulations stand in the way.
- Any discounts granted shall be cancelled if the Customer has applied for insolvency or if the Customer defaults or 15 calendar days after the date of issue of the invoice. The same shall apply if receivables debts must be collected by means of a court settlement. In these cases, 3D SERVICE shall be entitled to invoice the Customer for the discounts they had granted for partial delivery/performance subsequently and shall also be entitled to only carry out any further deliveries or performances against advance payment. Moreover, in the above cases all other unsettled invoices - also those for which the Customer was granted more time to pay - become due and owing immediately.
- In case the Customer fails to accept the ordered goods or services, 3D SERVICE shall be entitled to request a lump-sum damage compensation of 15 % of the gross sum of the respective order instead of the concrete damage. However, the Customer has the right to prove that 3D SERVICE has not suffered any damage at all or that the damage was much less.
Art. 4 Delivery and service, passing of risks
- All deliveries and services shall be performed subject to 3D SERVICE being correctly supplied themselves and subject to the Customer’s cooperation obligations. If the date of performance gets delayed for any such reason, the deadlines for 3D SERVICE shall be extended accordingly, no explicit agreement being required. 3D SERVICE will inform the Customer about the reasons for the delay and also about a new date of performance.
- The extension shall also be granted in case of industrial disputes, including but not limited to strikes and lockouts and in case of unpredictable obstacles outside 3D SERVICE’s intentions, for example delayed deliveries from a supplier, traffic or operational disruptions, lack of material or energy etc., and which provably have considerable effects on the production, performance or delivery of the goods to be delivered or the service to be performed. 3D SERVICE cannot even be held liable for any of the above situations if they occur during a period of delayed delivery or performance. In the same way will changes to the delivered or ordered goods and services that are initiated by the Customer result in an adequate extension of the performance or delivery period.
- The performance/delivery time is considered complied with if the readiness for dispatch of the goods or performance of the service is reported on or before the expiry date.
- Partial deliveries or performances, in particular of major orders, are only admissible in a scope the Customer can be expected to tolerate.
- If no fixed delays of acceptance have been agreed, the Customer shall be obliged to accept the delivery object/service within eight (8) days after the notice of completion. In particular, the Customer is obliged to inspect the contractual qualities of the performed service or delivered objects and to declare his acceptance in writing in case of conformance.
- After expiry of the inspection period as under number 5., the service shall be considered accepted if its usability has not been considerably restricted for a period of two (2) weeks due to the defects that have been reported.
- If it had been agreed to ship the delivery object to the Customer or to third parties, the risk shall pass to the Customer upon handover of the delivery object to the carrier. If the Customer picks up the goods, the risk shall pass as soon as the goods are provided for pick-up at the 3D SERVICE works and upon notification of readiness. In case 3D SERVICE takes back goods for any reason they are not responsible for, in particular without any justified warranty claims, the Customer shall bear the risk until the goods have reached 3D SERVICE.
Art. 5 Reservation of ownership
- The ownership in the goods delivered by 3D SERVICE shall be reserved until full payment. This reservation of ownership shall also apply until all amounts from the business relationship between 3D SERVICE and the Customer that are due - also future and conditional ones - will have been settled.
- The Customer does not have the right to assign the goods as a security or to pledge them, but he shall be entitled to sell the reserved goods in the context of his regular business. The Customer hereby cedes the respective amounts receivable from his business partners to 3D SERVICE; and 3D SERVICE accept the cession already now. In any case the Customer must inform 3D SERVICE immediately in case of a pledge or confiscation or any other disposition by third parties.
- If the value of all the securities existing for 3D SERVICE permanently exceeds the sum of the receivables by more than 20 %, 3D SERVICE shall release securities at the Customer’s choice upon the Customer’s request.
- Any costs for claiming security rights 3D SERVICE might have towards the Customer or third parties shall be borne by the Customer.
- In case of a delayed payment and an unsuccessful reminder, 3D SERVICE has the right to take the reserved goods back. Taking back reserved goods does not represent a withdrawal from the contract. In case reserved goods are taken back, 3D SERVICE shall be entitled to invoice 10 % of the value of the goods as return fees. Their right to claim higher damages remains unaffected. The Customer is entitled to prove that 3D SERVICE have not suffered any damages at all or that the damage was much less.
- Goods taken back can be sold by 3D SERVICE at the best possible price - setting the proceeds off from the purchasing price -, if 3D SERVICE have announced to do so with a reasonable notice period.
Art. 6 Warranty, transport damages, liability
- Claims for defects shall become statute-barred within one year after handover of the goods, unless the law stipulates a longer period of time. Warranty claims for second-hand goods are excluded, as far as this is legally admissible.
- If, upon delivery, the Customer notices any damages to the packaging, he shall have to get a detailled written confirmation of the damage when he accepts the goods from the carrier. Perceptible transport damages must be reported immediately. The Customer shall bear the burden of proof for the type of damage and for the timely reporting. Any obvious defects must also be immediately reported. Should such defects not be reported in due time, the goods shall be considered accepted in that nature, type, and quality.
- The warranty expires as soon as the products are changed by any third party or are processed with parts from a third-party, unless the Customer refutes a respective substantiated allegation that it was in fact one of these circumstances that caused the defect.
- The warranty does not cover any defects caused by construction faults or the choice of faulty material, if the Customer stipulated the material. The same shall apply if the goods are processed by third parties upon the Customer’s request.
- Only the immediate Customer shall be entitled to claims for defects against 3D SERVICE; these claims cannot be ceded to anyone else.
- In case justified warranty claims are filed, 3D SERVICE generally has the right to choose the type of rectification/subsequent performance. In case of a justified complaint, the statutory limitation shall be suspended for the duration of subsequent performance. The statutory period shall, however, not start anew - even if the subsequent performance is unconditional. If the rectification fails within a reasonable period of time, the Customer can, at his own discretion, either request a reduction of the price or withdraw from the contract if the other legal requirements are fulfilled.
- If the Customer initiates an inspection of delivered goods or adaptations or workmanship and reports defects for which 3D SERVICE would have to grant warranty, had these defects really been proved, the Customer must bear the costs for the inspection, transport, repair, etc. if it turns out that there is no defect in the sense of the legal or contractual requirements.
- Any further warranty claims from the Customer, including but not limited to consequential damage - in so far as it does not result from missing explicit descriptions of quality - shall be excluded, as far as legally admissible.
- Subject to the following regulations, damage compensation claims from the Customer - for whatever legal reason - for mildly negligent violation of duties by 3D SERVICE, their legal representatives or vicarious agents shall be excluded. In case of mildly negligent violation of “cardinal obligations”, the liability shall be restricted to an amount equivalent to the order sum for the individual claim, but no more than the typical predictable damage.
- The above exclusions and limitations of liability shall not apply in cases of liability that is independent from fault, in particular under the German Product Liability Act [Produkthaftungsgesetz], in case of damage to life or limb or in case of intention or gross negligence.
- In case 3D SERVICE perform services that do not consist in delivering goods, the investigation into the reasons for repairs and readjustments will only be carried out free of charge if the necessity for this was caused by 3D SERVICE and 3D SERVICE is therefore obliged to carry out repairs. In all other cases, 3D SERVICE will charge the prices according o tthe valid price lists to the Customer.
Art. Final provisions, jurisdiction, governing law
- The place of performance for all obligations resulting directly or indirectly from the contractual relationship, including the payment obligation, is Partenstein.
- The place of jurisdiction for all claims arising from the contractual relationship or in connection with it is Partenstein. 3D SERVICE is also entitled to press charges before another court of law defined by legal regulations.
- The invalidity of individual provisions of these General Terms and Conditions, the delivery and payment conditions or their components shall not affect the validity of the remaining provisions. Ineffective agreements shall be replaced by legal regulations.
- The integration and interpretation of these General Terms and Conditions, and the delivery and payment conditions shall be exclusively according to the laws of the Federal Republic of Germany, just as the conclusion and interpretation of the legal transactions with the Customer himself. The application of the rules of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
- The Customer authorises 3D SERVICE, waiving a notification, to process personal data within the scope of the permissibility of the German Data Protection Act [BDSG] and to the extent necessary for the performance of the contractual relationship and to transmit such data to the bodies concerned with the performance of the contractual relationship with 3D SERVICE. This includes, but is not limited to, the disclosure of data that might be required due to a credit insurance (for goods) that might have been concluded in the individual case.
- The General Terms and Conditions and the entire legal relationship between 3D SERVICE and the Customer shall be governed by the laws of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) shall not be applied.