General Terms and Conditions
§ 1 Scope of Application
(1) Our General Terms and Conditions shall apply to all goods and services offered by us, cwmk GmbH, Oudenarder Str. 16, 13347 Berlin (hereinafter referred to as ‘supplier’), in accordance with the contract concluded between us and the customer.
(2) These General Terms and Conditions shall apply exclusively to customers who are entrepreneurs pursuant to § 14 BGB (German Civil Code). We do not conclude contracts with consumers.
(3) These General Terms and Conditions shall apply exclusively to the legal relationship between us and the customer. Deviating regulations or regulations of the customer are hereby expressly rejected. Deviating provisions or regulations of the customer shall not apply even if we do not expressly object to them individually.
§ 2 Subject Matter of the Contract
(1) This contract regulates the customer-specific manufacture and delivery of precision parts using CNC machines. For details of the respective offer, reference is made to the product description in the respective contract or order confirmation.
(2) These General Terms and Conditions can be viewed at any time on the website of the supplier or can be requested in text form from the supplier.
§ 3 Conclusion of Contract
(1) The products presented on the supplier's website www.facturee.de represent a non-binding invitation to submit a customer inquiry. Customer inquiries can be addressed to the supplier via the corresponding contact form or by email.
(2) After processing the customer inquiry, a cost estimate will be sent to the customer. The supplier is bound to the cost estimate for a period of 14 days.
(3) The contract is concluded when the customer places an order on the basis of the cost estimate and the supplier accepts this contractual offer by sending an order confirmation by email to the address specified by the customer.
§ 4 Prices and Terms of Payment
(1) The prices result from the individual offer of the supplier and already include the sales tax.
(2) The customer can only pay by invoice. The invoice is due 14 days after receipt of the goods. In the case of several individual deliveries, the respective enclosed invoice shall become due for payment 14 days after receipt of the respective individual delivery.
(3) Further methods of payment are not offered and will be rejected.
(4) A delay in payment occurs no later than 30 days after receipt of the goods and receipt of an invoice or equivalent payment statement. The statutory regulations regarding the consequences of default in payment shall apply.
(5) Note: In case that customers don't pay open invoices in a continuing way, we reserve the right to engage a collection service or a lawyer. In that case the customer will also have to reimburse our necessary collection costs (in particular court costs, collection fees, fees for inquiries and similar).
(6) The customer shall only be entitled to set-off rights if his counterclaims are legally established, undisputed, recognized by the supplier or synallagmatically linked with the supplier's main claim. If the customer is an entrepreneur, he is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
§ 5 Obligations of the Customer - Consent to Data Transfer
(1) The customer is obliged to include with the order sent to the supplier the complete data required for the production of the ordered parts (in particular dimensions, quantities, material). No assessment is made as to whether parts produced on the basis of the data sent by the customer are suitable for fulfilling a specific function or whether these can be used for the purposes intended by the customer. The customer will assess this independently before sending the order. Any liability for the condition or functional capability of the parts is excluded insofar as this is based on incorrect data from the customer.
(2) The customer undertakes to order only those parts for which production and delivery do not infringe any third-party rights, in particular patent, trademark or copyright rights, and do not violate applicable law. The customer releases the supplier from all claims of third parties against the supplier due to the violation of the aforementioned obligation. The same applies to claims against the supplier which are brought to the supplier by third parties due to the concrete use of the parts by the customer or his customers.
(3) Provided that the supplier has concluded effective confidentiality agreements with his partners and, if applicable, order processing contracts under data protection law, the customer revocably consents to the anonymous sending by the supplier to his partners of the documents and production data necessary for the preparation of offers in order to implement this contract. The sending can take place by post in tear-proof packaging, electronically or in written form. The supplier will treat the data confidentially. For the purpose of preparation and fulfilling the contract, the customer grants the supplier a transferable license to use and pass on the models, technical drawings and data which the customer sends to the supplier.
§ 6 Reservation of Title and other Reservations
(1) Ownership of the goods is retained until all claims against the customer have been settled, even if the specific goods have already been paid for.
(2) The customer must inform us immediately of any enforcement measures taken by third parties against the reserved goods and hand over the documents required for an intervention; this also applies to impairments of any other kind. The customer must inform the third parties in advance of the rights to the goods. If the customer is an entrepreneur, he shall bear our costs of an intervention insofar as the third party is not in a position to reimburse these.
(3) In the event of the resale of the reserved goods, the customer hereby assigns to the supplier as security the claims against his customers arising for the customer from the aforementioned transactions until all claims of the supplier against him have been satisfied. If the reserved goods are processed, reformed or combined with another item, we shall become the direct owner of the manufactured item. This shall be regarded as goods subject to reservation of title.
(4) If the value of the security exceeds the claims of the supplier against the customer by more than 20%, the supplier must release the securities to which he is entitled to the corresponding extent at the customer's request and at the choice of the supplier.
§ 7 Production - Terms of Delivery - Performance Periods - Default in Acceptance
(1) The ordered parts shall be manufactured either by the supplier itself or by a manufacturing partner of the supplier. The supplier is entitled to outsource the production to such a manufacturing partner.
(2) The delivery times shall be individually communicated and agreed upon on the basis of the customer-specific requirements for the parts in the offer. Unless otherwise agreed, the goods shall be delivered by shipment to the delivery address specified by the buyer.
(3) If the supplier has specified delivery periods or made these the basis for placing the order, such periods shall be extended for the duration of the delay in the event of strikes and force majeure. The same shall apply if the customer fails to fulfil any obligations to cooperate. After the quality check, the supplier will dispatch the order from his own warehouse as soon as the entire order is in stock there. If the supplier is not responsible for a permanent obstacle to delivery, in particular force majeure or non-delivery by his own suppliers, although a corresponding covering transaction was made in good time, the supplier shall have the right to withdraw from a contract with the customer to this extent. The customer will be informed immediately and any services received, in particular payments, will be refunded.
(4) If the customer is an entrepreneur, the risk of accidental loss and/or accidental deterioration of the goods shall pass to the customer upon delivery or, in the case of shipment, upon delivery of the goods to the selected service supplier.
§ 8 Product Quality - Warranty - Statute of Limitations
(1) In the event of a defect, the supplier reserves the right to choose the type of subsequent service. Rights in case of failure of the supplementary service are unaffected by this.
(2) For all goods the warranty period is limited to one year. Excluded are defect claims due to injury to life, body or health and claims for damages due to gross negligence or willfully caused damage. In this respect, the statutory limitation periods shall apply. The limitation period in case of a delivery recourse according to §§ 478, 479 BGB remains unaffected.
(3) If the transaction is a bilateral commercial transaction, liability for defects shall be excluded unless the customer fulfils his obligation to examine and give notice of defects in accordance with § 377 HGB (German Commercial Code).
(4) The customer does not receive any guarantees in the legal sense from the supplier. All recommendations or design modifications, design analyses, simulations, order developments, general recommendations or other technical information of any kind made by the supplier and its personnel as well as commissioned third parties are merely non-binding assistance for the customer. No binding statements on the manufacturability or fulfilment of the purpose of the goods are made or substantiated by this.
§ 9 Right of Revocation for Entrepreneurs - Cancellations
(1) Customers who are entrepreneurs are not entitled to a right of revocation. Entrepreneurs are a natural or legal person or a partnership with legal capacity that acts in the exercise of its commercial or independent professional activity when concluding a legal transaction.
(2) The customer can cancel an order partially or completely at any time by sending a message to firstname.lastname@example.org. The cancellation becomes effective upon receipt of this message by the supplier. In the event of cancellation of an order, the supplier reserves the right to invoice the customer for all costs incurred by the supplier up to the time of cancellation within the framework of order execution.
§ 10 Intellectual Property of Texts, Illustrations and Files
(1) All rights regarding the intellectual property of texts, illustrations and files, which are made available to the customer by the supplier, remain with the supplier. The customer is not permitted to reproduce, modify, make available to third parties or otherwise use any text, illustrations and files provided by the supplier without the written consent of the supplier.
(2) All rights with regard to the intellectual property of texts, illustrations, files and models, which are made available to the supplier by the customer, remain with the customer. The supplier receives a transferable license limited for the purpose of the order execution for the duplication, change and use of these texts, illustrations, files and models.
§ 11 Confidentiality obligation
(1) Both parties undertake to maintain secrecy with regard to the details of this contract as well as with regard to all information they receive or become aware of about the respective other contractual partner within the framework of this contractual relationship, unless this information is already publicly accessible or can be regarded as known to the public. The supplier is entitled to pass on such information to third parties insofar as this is necessary for the execution of this contract.
§ 12 Disclaimer
(1) The supplier’s liability for contractual breaches of duty and tort is limited to intent and gross negligence. This does not apply in the case of injury to life, limb, health and compensation for damage caused by delay (§ 286 BGB) or breach of essential contractual obligations which must necessarily be fulfilled in order to achieve the contractual objective. In this respect, the supplier is liable for every degree of fault. Otherwise there is no liability.
(2) In the event of a breach of material contractual obligations, the liability’s amount shall be limited to foreseeable and contractually typical damage.
(3) In the event of a delay in delivery not caused intentionally or by gross negligence on the part of the supplier, the supplier is liable for each completed week of delay within the framework of a lump-sum compensation for delay amounting to 3% of the delivery value, but no more than 15% of the delivery value. Further legal claims and rights of the customer due to a delay in delivery remain unaffected.
(4) The aforementioned liability limitations also apply to slightly negligent breaches of duty by vicarious agents. As far as the liability for damages towards the supplier is excluded or limited, this also applies with regard to the personal liability for damages of the employees, workers, staff, representatives and vicarious agents of the supplier.
§ 13 Arbitration Clause
(1) Agreement: In the event of a disagreement, the parties undertake to conduct an arbitration procedure with the aim of drawing up a fair and equitable agreement by way of mediation with the support of a neutral arbitrator, taking into account economic, legal, personal and social circumstances. All disputes arising in connection with these General Terms and Conditions or regarding their validity shall be settled in accordance with the arbitration regulations of the Frankfurt Chamber of Industry and Commerce.
(2) Determination of the arbitration: The parties shall jointly determine an arbitration. If no agreement can be reached on the person of the arbitrator, the arbitration body shall appoint him or her. The parties shall be bound to the appointment.
(3) Costs of arbitration: The parties shall each bear half (or pro rata) of the costs of arbitration, unless otherwise agreed.
(4) Opening of the ordinary courts of law in the event of failure: Should the arbitration procedure not lead to a viable solution, both parties shall be free to appeal to a competent court.
(5) Exceptions: However, the parties shall not be prevented from initiating urgent judicial proceedings, in particular a central dunning procedure, seizure proceedings or interim injunction proceedings.
§ 14 Place of Jurisdiction and Applicable Law
(1) The statutory provisions on the place of jurisdiction shall remain unaffected, unless the special provision in paragraph (2) provides otherwise.
(2) If the customer has no general place of jurisdiction in Germany or another EU member state, the exclusive place of jurisdiction for all disputes arising from this contract shall be our place of business.
(3) The law of the Federal Republic of Germany shall apply to this contract.
§ 15 Ethics Clause
We voluntarily adhere to the following guidelines, that include, among others:
(1) Our products must not violate any national or international laws. This also includes laws on trade in endangered species.
(2) Our products must not be unsafe.
(3) Our products must not be prescription-only.
(4) Our products must not infringe any intellectual property rights, laws or regulations against product piracy.
(5) We also expect our customers to act in accordance with the law.
§ 16 Data Protection
(1) More detailed information on the personal data collected and how it is used can be found in our data protection declaration.
(2) The customer agrees that data relating to his person which is required within the framework of the contractual relationship may be stored in accordance with our data protection declaration; the same applies to offer data.
§ 17 Severability Clause
(1) Should individual provisions of this contract be wholly or partially invalid or void or become wholly or partially invalid or void as a result of a change in the legal situation or by supreme court jurisdiction or otherwise, or should this contract contain loopholes, the parties agree that the remaining provisions of this contract shall remain unaffected and valid.
(2) In this case, the contracting parties undertake, taking into account the principle of good faith, to replace the invalid provision with a valid provision which comes as close as possible to the meaning and purpose of the invalid provision and which can be assumed to have been agreed by the parties at the time of conclusion of the contract if they had known or foreseen the invalidity or nullity. The same shall apply if this contract should contain a gap.
§ 18 Other Languages
(1) If there are different versions of these General Terms and Conditions in other languages, the current version of the German version shall apply in case of doubt.
End of the General Terms and Conditions