General terms and conditions (hereinafter referred to as “T&Cs”) of the Bavarian Central Mint (hereinafter referred to as “Contractor”) for the use of customers (hereinafter referred to as “Client”) – as of July 2012
1. GENERAL, SCOPE OF APPLICATION
1.1 These Contractor T&Cs shall apply exclusively. Terms and conditions of the Client which deviate from or conflict with these T&Cs shall not be recognized by the Contractor unless the Contractor has expressly consented to their validity in writing.
1.2 By placing an order, the Client declares that it agrees to the exclusive validity of these T&Cs.
1.3 No verbal subsidiary agreements have been made. All agreements made between the Contractor and the Client must be made in writing. The content and interpretation of contracts, amendments or supplements to contracts as well as individual agreements shall be governed by a written agreement or written confirmation from the Contractor.
1.4 These T&Cs shall also apply to all future contracts with the Client, even if the Contractor no longer refers to them.
2. OFFER, CONTRACTOR PERFORMANCE, CHANGES
2.1 Contractor offers are subject to change without notice.
2.2 The Contractor may accept offers within two weeks of receipt. Orders placed by the Client constitute binding orders. Acceptance takes place through declaration, delivery of the product or performance of the service.
2.3 Execution of the order, with particular reference to the quality of the items to be manufactured, delivered or assembled by the Contractor (delivery items), shall be based exclusively on the contractually agreed specifications. The Contractor may make changes to the execution of the order or the delivery items at any time, insofar as these:
2.3.1 are required in order to comply with legal or regulatory requirements; and
2.3.2 do not significantly impair the properties and functions of the delivery items and are reasonable for the Client.
2.4 The Contractor is entitled to use subcontractors.
3. PRICES, TERMS OF PAYMENT
3.1 Unless otherwise agreed, the Contractors prices shall be exclusive of any applicable value added tax.
3.2 Invoices are due for payment within 10 days of receipt.
3.3 Discounts and price reductions require special written agreement.
4. PARTIAL PERFORMANCE, DELIVERY AND PERFORMANCE TIME AND DELAYS
4.1 The Contractor shall be entitled to perform partial services, insofar as this is reasonable for the Client. In the case of partial performance, the Contractor may request payments proportionate to the proportion of the order value accounted for by partial performance. The Contractor may demand that the Client accepts self-contained partial performance within the meaning of sentence 1.
4.2 A delivery period shall only commence once the Client and the Contractor have clarified all technical issues necessary for performance, with particular reference to the Client providing the Contractor with an individual sample, if this is feasible.
4.3 The Contractor shall be entitled to withhold performance if the Client fails to fulfill its contractual obligations in a timely and proper manner, particularly if it fails to make the advance payments agreed with the Contractor in a timely manner or if it fails to cooperate as required for the complete and timely performance of the Contractors services.
4.4 Force majeure shall entitle the Contractor to
– to postpone performance for the duration of the hindrance, including within the delay period. All circumstances for which the Contractor is not responsible and which make it temporarily impossible or unreasonably difficult to perform the service shall be considered to be force majeure, with particular reference to lawful strikes or lockouts, untimely self-delivery for which the Contractor is not responsible, official measures, import and export bans, energy and raw material shortages and war. The Contractor shall inform the Client of this without undue delay.
4.5 If the hindrance lasts for more than one month, the Client shall be entitled to withdraw from the contract after setting a reasonable grace period if it proves that partial performance of the contract still outstanding is no longer of interest to it due to the delay. A period to be set by the Client for supplementary performance must total at least four weeks and notice must be given in writing.
4.6 The scope of the Clients claims for damages due to delay shall be determined in accordance with clause 8.
5.1 The Contractor shall only guarantee compliance with the specifications set out in clause 2.3, however this does not constitute a guarantee for specific properties unless the Parties have agreed upon a guarantee in writing.
5.2 The Client shall support the Contractor in identifying defects and in supplementary performance. The Client shall also grant immediate access to documents that provide the more information on circumstances causing the defect to arise. The Contractor may refuse supplementary performance if this is only possible at a disproportionate cost.
5.3 If supplementary performance fails, the Client is entitled to withdraw from the contract or to demand a reduction. Withdrawal is excluded if the agreed condition only deviates from the actual condition agreed to an insignificant extent or if contractual or normal use is only impaired to an insignificant extent. The scope of the Clients claims for damages shall be determined in accordance with clause 8.
5.5 The Contractor shall make it clear that material changes that occur due to age or environmental conditions do not constitute a defect.
6. TRANSFER OF RISK, DELIVERY
6.1 The risk of material damage shall transfer to the Client from the Contractors works in Munich. Any shipment shall be at the expense and risk of the Client.
6.2 If dispatch is delayed for reasons for which the Client is responsible, the risk shall transfer to the Client on receipt of notification of readiness for dispatch.
6.3 Otherwise, risk shall transfer to the Client on handover. If the Client is in default of acceptance, handover shall still be deemed to have taken place.
7. RETENTION OF TITLE
7.1 The Contractor shall retain title to the delivery items until receipt of all payments under the respective contract.
7.2 The Client is obliged to treat delivery items subject to retention of title with care. It is further obliged to insure such delivery items against loss, fire and water damage, theft and natural hazards in the amount of their purchase price and at its own expense.
7.3 If a third party has delivery items subject to retention of title seized, or otherwise impairs the Contractors property, the Client shall notify the Contractor without delay so that the Contractor can take legal action to protect its property, with particular reference to taking legal action pursuant to Section 771 of the German Code of Civil Procedure (ZPO, Zivilprozessordnung). In addition, the Client is obliged to inform the third party and any bailiffs that the respective product is the property of the Contractor. If the third party is unable to reimburse the Contractor for court fees and out-of-court fees for these protective measures, the Client shall be liable to the Contractor for costs not paid by the third party.
7.4 The Client is obliged to immediately inform the Contractor of any damage to the products subject to retention of title and of any change of residence on the part of the Client.
7.5 In the event of withdrawal from the contract, the Contractor shall be entitled to demand that products subject to retention of title are returned.
8. LIMITATION OF LIABILITY, INDEMNITY
8.1 The Contractor shall be liable without limitation for intent and gross negligence.
8.2 The Contractor shall only be liable for slight negligence if a duty is breached where the fulfillment of such a duty is essential for the proper execution of the order or contract (contract) and where the Client may regularly rely on compliance with such a duty. In such cases, the Contractors liability shall be limited to foreseeable damage typical for such a contract.
8.3 Limitations and exclusions of liability pursuant to this clause 8 shall not apply to claims arising from the Product Liability Act (Produkthaftungsgesetz) and in the case of damage caused by injury to life, limb or health.
8.4 Insofar as the Contractors liability is excluded or limited, this shall apply mutatis mutandis to the personal liability of the bodies, employees, representatives and vicarious agents of the Contractor.
8.5 The limitation period for warranty claims (clause
5) of the Client shall be one year from the date on which risk is transferred (clause 6). Other claims for damages shall become time-barred one year after knowledge of the event giving rise to the damage. . This does not apply to claims based on intent or gross negligence, for damages caused by injury to life, limb or health or for claims under the Product Liability Act (Produkthaftungsgesetz).
8.6 On first request, the Client shall indemnify the Contractor, its bodies, employees, representatives and vicarious agents against any claims of third parties which may be asserted against
the Contractor and/or named persons as a result of a culpable breach of duty by the Client. The Client shall reimburse the Contractor and the named persons for all reasonable expenses required for legal defense.
9. ASSIGNMENT, RIGHTS OF RETENTION, OFFSETTING
9.1 The Client is not entitled to assign its claims against the Contractor under this contract.
9.2 The Client shall only be entitled to offset if its counterclaims are undisputed or established by law.
9.3 The above-mentioned clause 9.2 shall apply mutatis mutandis to rights of retention and rights to refuse performance according to
Sections 320 and 273 of the German Civil Code (Bundesgesetzbuch, BGB). The Client may only exercise such rights if they come from the same contractual relationship. In an ongoing business relationship, each individual order shall be regarded as a separate contract.
10. SEVER-ABILITY, CORRESPONDENCE LANGUAGE, APPLICABLE LAW
10.1 Should individual provisions or parts of these T&Cs be or become invalid, the validity of all other provisions shall remain unaffected. The invalid provision shall be replaced by an agreement that comes as close as possible to the purpose of the contract and the intention of the Parties.
10.2 The contractual language is German. All correspondence must be conducted in German.