General sales and delivery conditions of flextem GmbH („flextem“)
I. Scope of validity
1. The following Terms and Conditions of business apply to all contracts concluded by flextem with consumers (§ 13 of the German Civil Code (BGB) or entrepreneurs (§ 14 BGB) (the "Customer"), provided these are sales contracts, sales contracts together with assembly obligations, or work contracts.
2. These Terms and Conditions apply exclusively. Any terms and conditions of the Customer that conflict with or deviate from these Terms and Conditions shall not apply unless flextem has expressly agreed to their being valid.
3. All agreements made between flextem and the Customer relating to the execution of a contract are laid down in the offer in writing or in text form. Subsequent amendments or amendments to the contents of the contract must be confirmed by flextem in writing or text form.
II. Prices, terms of payment
1. Unless otherwise stated in particular offers or order confirmations, flextem prices apply ex works (EXW Incoterms 2010). Packaging and shipping costs will be invoiced separately.
2. Claims of flextem resulting from deliveries and services shall be due for payment immediately after performance of the service (in the case of work contracts, after acceptance) and delivery of an invoice.
III. Retention of title
Delivered goods shall remain the property of flextem until full payment of the purchase price, including all additional claims.
In the case of contracts with entrepreneurs, the following shall also apply: until the purchase price has been paid in full, the sale is only permitted in the ordinary course of business. The Customer hereby already assigns to flextem all claims against its customers or third parties, totalling the final invoice amount, including sales tax, that arise from resales, regardless of whether or not the purchased item was resold without or after processing. Any processing or transformation of the purchased item by the Customer shall always be carried out on the behalf of flextem. If the purchased item is processed together with other items not belonging to flextem, flextem shall acquire co-ownership of the new item equal to its share in the value of the purchased item (based on the gross final invoice amount) relative to the other processed items at the time of processing. The same applies if the purchased item is inseparably mixed with other items not belonging to flextem. In order to secure its payables to flextem, the Customer shall also assign to flextem any receivables from third parties it might be due when the purchased object is combined with a piece of real estate. Flextem undertakes to release securities due to flextem at the Customer's request insofar as the realisable value of these securities exceeds the claims to be secured by more than 10%. The selection of securities to be released shall be at flextem's discretion.
IV. Liability for defects and compensation
1. The Customer, if an entrepreneur, may only make claims for defects if he has properly fulfilled his duties to inspect for and give notification of defects pursuant to § 377 of the German Commercial Code (HGB).
2. If the purchased item has a defect, flextem shall be entitled to choose whether to provide a cure by remedying the defect or to deliver a new, defect-free item. If the retrospective improvement fails, the Customer may request to rescind or reduce the contract.
3. If the Customer asserts claims for damages against flextem, flextem shall be liable in accordance with the legal provisions if it is at fault for a breach of duty caused by wilful intent or gross negligence. Insofar as the Customer does not assert any wilful breach of contract on flextem's part, flextem's liability shall be limited to damage that is foreseeable and which typically arises.
4. Flextem shall be liable without limitation under the statutory provisions for any injury to life, limb or health for which it is culpable. This also applies in the case of mandatory liability under the Product Liability Act.
5. Flextem shall assume unlimited liability under the statutory provisions if flextem culpably violates an essential contractual obligation. In the event of a negligent breach of duty, liability for damages shall be limited to damage that is foreseeable and which typically arises.
6. Unless otherwise stipulated above, any liability for claims for damages is excluded.
7. Flextem shall not be liable for damage incurred by the Customer due to natural wear and tear, not observing the care instructions or not properly handling the purchase item.
8. When it comes to information provided about dimensions, weights or other properties of the purchase item, deviations, such as are customary in the industry, are permitted. So long as these do not affect the value of flextem's services and their usual purpose, or their intended purpose as stipulated in the contract, any claims for defects shall be excluded.
V. Performance time
1. The delivery times specified in flextem's offers and order confirmations are non-binding contractual deadlines communicated to contractors that are subject to its own deliveries being on time. Flextem shall only be in default if, following a non-binding contractual deadline being exceeded, flextem has been sent a reminder to provide the service and given a reasonable grace period to do so, and the grace period has expired.
2. Compensation claims of the Customer for damages caused by delay shall be limited to damage that is foreseeable and which typically arises.
VI. Place of performance and court of jurisdiction
1. Unless otherwise specified in the order confirmation, the place of fulfilment shall be flextem's registered office.
2. If the Customer is a businessman, a legal entity under public law or a special fund under public law, then flextem's registered office shall also be the place of jurisdiction, although flextem remains entitled to sue the Customer at the court of his place of residence.
3. The law of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods.