General Terms and Conditions
§ 1 Scope of Application
(1) Our General Terms and Conditions (hereinafter referred to as ‘T&Cs’) 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 T&Cs shall apply exclusively to customers who are entrepreneurs pursuant to § 14 BGB (German Civil Code). We do not conclude contracts with consumers.
(3) The legal relationship between us and the customer is governed exclusively by these T&Cs. Deviating regulations or provisions of the customer are hereby expressly rejected. Deviating regulations or provisions of the customer shall not apply even if we do not expressly object to them in the specific case.
§ 2 Contractual Object
(1) This contract governs the customer-specific manufacture and delivery of precision parts using a wide range of manufacturing processes (including, but not limited to, CNC, laser cutting, plasma cutting, forging, 3D printing, welding, surface treatment, etc.). For details of the respective offer, please refer to the product description in the respective contract or order confirmation.
(2) These T&Cs can be viewed at any time on the website of the supplier and downloaded in a standard format or can be requested in text form from the supplier.
§ 3 Contractual Conclusion
(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 sent to the supplier via the corresponding contact form or by email.
(2) After the customer inquiry has been processed, a cost estimate / offer will be sent to the customer. The supplier is bound to the cost estimate / offer for a period of 14 days.
(3) The contract is concluded when the customer places an order based on the cost estimate / offer and the supplier accepts this contractual offer by sending an order confirmation by email to the address specified by the customer or by otherwise accepting such.
§ 4 Prices and Payment Conditions
(1) Prices result from the supplier’s specific offer.
(2) The level of the remuneration is a net amount, excluding any value-added tax (VAT) or local equivalent (e.g., turnover tax, consumption tax, goods and services tax, and always including customs, dues, or similar official indirect tax assessments, referred to jointly as ‘indirect taxes’). Indirect taxes are borne by the customer. Therefore, the supplier charges to the customer the indirect taxes plus the net amount owed by the customer and to the extent required by valid tax law.
(3) The customer must report its VAT ID(s) to the supplier on the order form for (i) the country in which the customer has the headquarters of its business activity, and/or (ii) each other country in which the customer has a permanent branch. The supplier is not liable for indirect taxes resulting from the customer quoting an incorrect VAT ID. The customer will use the ordered goods of the supplier for the customer’s business use at the stated location(s) consistent with the stated VAT ID(s).
(4) The customer can pay by invoice only. The invoice is due 14 days after receipt of the goods. In the event of several individual deliveries, the respective enclosed invoice shall become due for payment 14 days after receipt of the respective individual delivery.
(5) Further methods of payment are not offered and will be rejected.
(6) 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.
(7) Notice: If a customer continues to not pay an outstanding invoice, we intend to engage a collection service or a lawyer. In that case, the customer shall also reimburse the resulting collection costs (in particular court costs, collection fees, investigation fees, etc.).
(8) The customer shall only be entitled to set-off rights if its counterclaims are legally established, undisputed, recognized by the supplier or synallagmatically linked to the supplier's main claim. If the customer is an entrepreneur, it is entitled to exercise a right of retention only if its counterclaim is based on the same contractual relationship.
§ 5 Customer Obligations – Consent to Data Transmission
(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, if applicable - drawings). No assessment is made as to whether parts produced based on 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 is obliged to 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) Consistent with the customs provisions and in the context of export controls and international sanctions, the customer undertakes to submit the declaration about the free export of the goods included in the order stating whether the goods: i) come under Annex I and Annex IV of the EU Regulation 2021/821 (EU Dual Use Regulation) and therefore require approval in the event of export / transfer pursuant to the provisions of Annex I of the EU Dual Use Regulation; ii) are subject to other measures in terms of export restrictions or prohibitions based on the valid EU Regulations, including Regulation 1236/2005, § 8 (1) no. 2 German Foreign Trade Ordinance (AWV) and international sanctions regulations; iii) are subject to restrictions pursuant to the U.S. Export Administration Regulations (EAR).
(4) Provided that the supplier has concluded effective confidentiality agreements with its partners and, if applicable, order processing contracts under data protection law, the customer revocably consents to the supplier anonymously sending to its partners the documents necessary for the preparation of offers and the manufacturing data required to implement this contract. The sending can take place by mail in tear-proof packaging, electronically or in written form. The supplier will treat the data confidentially. For the purpose of preparing and fulfilling the contract, the customer grants to 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, it 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 its customers arising for the customer from the aforementioned transactions until all claims of the supplier against it 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 it 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 manufacturing to such a manufacturing partner.
(2) The delivery times shall be communicated and agreed upon in the specific case based on 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 purchaser.
(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 plus a re-start period of a further two (2) weeks. The same shall apply if the customer fails to fulfill any obligations to cooperate. After the quality check, the supplier will dispatch the order from its own warehouse as soon as the entire order is in stock there. If the supplier is not culpable for a permanent obstacle to delivery, in particular force majeure or non-delivery by its 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, if shipment takes place, upon handover of the goods to the selected shipping service provider.
§ 8 Product Quality – Warranty – Statute of Limitations
(1) If the customer is an entrepreneur, the supplier reserves the right to choose the type of subsequent service in the event of a defect. If the subsequent service fails, rights are unaffected by this.
(2) If the customer is an entrepreneur, the warranty period for all goods is restricted to one year. This does not apply to fault claims resulting from the injury to life, body or health and claims for damages due to grossly negligent or intentionally caused damage. The statutory limitation periods apply here. The limitation period in the event of delivery recourse according to §§ 478, 479 German Civil Code (BGB) remains unaffected.
(3) If the transaction is a bilateral commercial transaction, liability for defects shall be excluded unless the customer fulfills its obligation to examine and give notice of defects according to § 377 German Commercial Code (HGB).
(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 fulfillment of the purpose of the goods are hereby 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 acting in the exercise of its commercial or independent professional activity when concluding a legal transaction.
§ 10 Intellectual Property of Texts, Illustrations and Files
(1) All rights regarding the intellectual property of texts, illustrations and files 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 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, alteration and use of these texts, illustrations, files and models.
§ 11 Confidentiality Obligation
(1) Both parties undertake to maintain confidentiality 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.
(2) The customer undertakes to maintain silence particularly about prices and any discounts, reductions, special conditions and payment conditions which may have been granted to it by the supplier.
§ 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 event 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 to achieve the contractual objective. In this respect, the supplier is liable for every degree of culpability. Apart from this, there is no liability.
(2) If material contractual obligations are breached, the liability’s amount shall be limited to foreseeable and contractually typical damage.
(3) In cases of slight negligence, the supplier’s overall liability is restricted to the amount paid by the customer for the service underlying the claim.
(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 T&Cs or regarding their validity shall be settled in accordance with the arbitration regulations of the Frankfurt am Main Chamber of Industry and Commerce.
(2) Determination of the arbitrator: The parties shall jointly determine an arbitrator. If no agreement can be reached on the identity of the arbitrator, the arbitration body shall appoint him or her. The parties shall be bound to the appointment.
(3) Costs of the arbitration: The parties shall each bear half (or pro rata) of the costs of arbitration unless otherwise agreed.
(4) Opening of the ordinary legal process 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 place of jurisdiction for all disputes from this agreement is Berlin if no exclusive statutory place of jurisdiction is relevant.
(2) If the customer does not have a general place of jurisdiction in Germany or in a different EU Member State, the sole place of jurisdiction for all disputes from this contract is our business headquarters.
(3) This contract is governed by the law of the Federal Republic of Germany excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISB) and the conflict-of-law rules of the Introductory Act of the German Civil Code.
§ 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 violate any rights to intellectual property and not breach any laws or guidelines preventing product piracy.
(4) We expect likewise that our customers adhere to lawful conduct.
§ 16 Data Protection
§ 17 Deliveries to Russia, Belarus & the Donbass Region; Affirmations by the Customer
(1) The customer provides assurance to the supplier that its order does not include any goods/items/objects with an unlawful use, including particularly military goods, goods with a double use and other objects on applicable control lists, as well as goods and services determined for rejected parties, specific recipient groups, end consumers and industries defined by applicable sanctions, particularly – but not restricted to – military and specific public end users, specific parts of the energy industry, including prospecting, exploration, refining and production of oil, gas and minerals, aviation, aeronautical and maritime industry, telecommunication industry, technology industry, transport and tourism industry, iron and steel industry, specific sections of the consumer goods industry related to luxury goods.
(2) to the extent the order contains restricted items, the customer warrants that all licenses, license exemptions, permits and authorizations that may be required under applicable sanctions have been obtained from the relevant authorities after February 21, 2022. The customer shall submit such licenses, license exceptions, permits or authorizations to the supplier at the time of the order without being requested to do so.
(3) The customer warrants that its order is for civilian use only and is therefore not intended for government-related entities, with the exception of hospitals, medical facilities, and medical units providing support to civilians, individuals, or third parties or agents acting for or on behalf of such entities.
(4) The customer guarantees that the customer is not domiciled, resident or established in the Russian Federation, Belarus or the Donetsk, Luhansk or Crimean territories.
The customer further guarantees that the customer is not a barred or sanctioned party or in any way, either expressly or by reference, on any applicable sanctions list issued pursuant to one or more sanctions imposed by a sanctioning authority. The customer is neither in the possession nor under the control of a blocked or sanctioned party.
(5) The supplier may, at its own discretion, demand evidence of compliance with the above provisions from the customer and make the acceptance of offers dependent on the submission of suitable evidence. In the event of a suspected breach of the above provisions, the supplier may withhold delivery of the order until appropriate evidence of compliance with the above provisions is provided, without this constituting a default.
(6) The customer irrevocably and unconditionally indemnifies the supplier in full upon first request against all losses, damages, fines and costs of any kind incurred by the supplier as a result of a culpable violation of the above provisions by the customer.
§ 18 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 loophole.
§ 19 Other Languages
(1) If there are different versions of these T&Cs in other languages, the current version of the German version shall apply in the event of doubt.
End of the T&Cs