speziell® – fleckenstein pohlmann schwer gbr („speziell®“)
1.
Generally these sales and supply terms (the "General Terms") shall be applicable exclusively to business operators (within the meaning of Sec. 14 of the German Civil Code or "BGB"). They shall apply to all transactions and business relationships at present or in the future. In the event of a conflict or contradiction between these General Terms and general terms of the the purchaser, the latter shall not be binding upon speziell®, unless speziell® has expressly declared its approval. In case two letters of confirmation are crossing, which contain conflicting terms, the letter of the speziell® is binding.
2.
Unless otherwise agreed on, speziell® does only work on the basis of contracts for services ("Dienstverträge"). Amendments, changes or sub-agreements with respect to the contract require the written (fax) confirmation of speziell® in order to be legally valid. The aforementioned terms shall not be applicable to amendments which are concluded after the commencement of the contract.
3.
Remunerations are only covering the design. Packaging, transport protection, freight, insurance and assembly, if applicable, are being charged for seperately, unless expressly otherwise mutually agreed upon in writing. Charges are based on the time and material spent on the performance of the contract. The speziell® remuneration list which is valid on the date of purchase shall be applicable. All remunerations are exclusive VAT, sales, or other taxes or duties. Puchaser shall be liable for paying all applicable taxes, customs and duties.
4.
Delivery periods or times shall be agreed on separately. The purchaser shall be entitled to request speziell® in writing four weeks after a non-binding delivery date to deliver the goods within an adequate period. Upon elapse of such period, speziell® shall be deemed defaulting ("Verzug"). Place of performance for all deliveries shall be the registered address of speziell®. With respect to payments the registered address of speziell® shall be the place of performance. In case the purchaser is in default of acceptance speziell® shall be entitled to withdraw from the contract after the elapse of an appropriate notice period, or demand compensation for breach of contract. The format in which services are delivered shall by determined by speziell® in its own discretion, as long as it is fit to achieve the purpose of the contract. Unless otherwise agreed this shall be a two-dimensional representation.
5.
All rights granted by speziell® shall be non-exclusive and prohibited from being transferred or sublincensed to any third party. The extent of rights granted is strictly limited by the intention of the contract. In doubt, a specific way of utilisation is not inteded by the contract. speziell® shall always be entitled to use the rights for own purposes, i.e. marketing, advertising, exhibitions or trade shows. In case the purchaser has delivered sketches or ideas on which speziell® has based its performance, the purchaser shall for such contributions not gain any own copyrights pertaining to the result of the contractual performance of speziell® as a co-author. Drafts, Variations and surveys in preparation of the final design are not subject to the license, as these are only done in preparation of the selection of final design during the development and decision making process.
6.
speziell® is entitled to receive free of charge 10 exemplars of any product which design is based on the design developed by speziell® for the purchaser. speziell® is entitled to be metioned in advertising material or catalogs of the purchaser as "speziell®".speziell® shall in its own discretion decide to prohibit or to withdraw the right to do so.
7.
Warranty ("Gewährleistung") shall be granted for all services and deliveries of speziell® without limitations if a contractual obligation is breached voluntarily by speziell® or its representatives, in case of personal injury to health, body or life or in case speziell® has expressly undertaken to grant a guarantee. In the event of gross negligence the liability shall be limiteded to product-specific foreseeable, typical, direct and immediate losses or damages. speziell® is not liable in case of slight negligence. This limitations shall also apply if speziell® should be liable in regress, acording to Sec. 478 German civil law code (BGB). The limitation of liability shall not apply to claims according to Sections 1 and 4 German Product Liability Code (Produkthaftungsgesetz). Due to the artisitc nature of the design services of speziell®, it is impossible to determine a specific result of the services. Individual variations in taste are no basis for claims to malperformance. speziell® ist not responsible for the economic success of the products which are based on the design. The entitlement to all remedies shall be generally time-barred after one year.
8.
Reclamations against alleged deficiencies on behalf of the purchaser shall be made in writing immediately upon receipt. For this purpose the purchaser shall inspect the result of the services and if applicable any goods immediately upon arrival. Unless deficiencies are undetectable immediately upon due and diligent inspection, the entitlement to remedies shall be time barred, unless the reclamation has been made in writing within three days after delivery and receipt.
9.
Payments shall be due within 20 days after the issuance of the invoice without any deductions. In case payment is made by check, promissory or exchange note or the like, any title to goods or right or license shall not pass to the purchaser until all open accounts of the purchaser are settled and the respective amounts have been credited to speziell®'s accounts. Set-off of claims by the purchaser shall not be admissable, unless counter-claims of the purchaser are undisputed or awarded by a competent court and thus legally binding.
10.
The delivery of goods is exclusivly done with retention of title with the following increments: the speziell® shall retain title to all goods and all rights or license until the respective remuneration as well as all and any claims resulting from the overall business relationship with the purchaser including all ancillary claims and charges have been fully paid. The value of all rights and title being retained does never exceed 110 % of the amounts due. If however this value should be exceeded, shall speziell® automatically release the respective securities in whole or in part accordingly.
11.
The courts of Frankfurt am Main/Germany shall be the exclusive place of venue for all disputes which may arise from or relate to this contract with regard to business operators (within the meaning of Sec. 14 BGB), incoporated entities and estates. At speziell®'s sole discretion speziell® shall equally have the right to bring action against the purchaser at any other court that may be competent to rule upon the concrete case matter pursuant to applicable national or foreign laws.
12.
The business relationship between the purchaser and speziell® is exclusively governed by these General Terms. by the substantive laws of the Federal Republic of Germany without regard to any conflict-of-law principles and the CISG.
