Terms and conditions & withdrawal information

Withdrawal information

Terms and conditions

General terms and conditions for supplies and services of Clavis Deutschland GmbH

1. Applicability of these terms

1.1. The following general terms and conditions for supplies and services of Clavis Deutschland GmbH ("Terms") apply to all supplies and services of Clavis Deutschland GmbH (hereinafter "Clavis"), in particular the sale of items (hereinafter: "Supply"), services such as consulting, planning and installation (hereinafter: "Services"), and the production of a completed work (hereinafter: "Works"). Services and Works are hereinafter collectively referred to as "Performance". These Terms also apply to all future transactions with the customer.

1.2. Clavis's Terms apply exclusively. Clavis does not recognise differing or conflicting terms, in particular the customer's purchasing, business and payment terms, even if Clavis has not expressly objected to them. Conflicting or differing terms of the customer do not apply even if Clavis carries out supplies or other performance without reservation.

1.3. Amendments to these Terms require a written agreement.

2. Conclusion of contract

2.1. Offers by Clavis are always subject to confirmation. A contract is concluded only upon a written order confirmation by Clavis or a written agreement between the parties.

2.2. If a customer's order constitutes a binding contractual offer (section 145 of the German Civil Code (BGB)), the customer remains bound by that offer for at least 2 (two) weeks after its receipt by Clavis.

3. Provision of documents

3.1. Clavis reserves ownership and copyright in illustrations, cost estimates, calculations, drawings and other documents. They must not be made accessible to third parties without Clavis's express written consent and must be kept confidential from such parties. They may be used solely for the purposes specified in the contract; after completion of the contract they must be returned to Clavis without being requested.

3.2. The customer is liable for the accuracy of documents to be provided by the customer, in particular drawings, samples and planning specifications. If the customer fails to provide documents on time or in full, Clavis reserves the defence of non-performance of the contract and all other rights.

3.3. If supplies or performance by Clavis based on the customer's drawings, samples or other information infringe third-party intellectual property rights, the customer shall indemnify Clavis against all claims.

4. Preparatory work

4.1. If the item supplied is to be installed by Clavis at the customer's premises or at a location specified by the customer, or if the work is to be produced there, the customer shall ensure in good time that all necessary facilities are available on time and that all required preparatory work has been carried out. Unless Clavis has expressly undertaken to do so, the customer shall ensure in particular that

• preparatory work has been carried out in accordance with Clavis's specifications and drawings;
• there is adequate access to the installation site and the access routes are suitable for transport;
• the foundation at the installation site has sufficient load-bearing capacity;
• the personnel deployed by Clavis can also work outside normal working hours if Clavis gives sufficient prior notice;
• the customer informs Clavis's personnel of the safety regulations applicable at the installation site and there are no unreasonable working conditions (an unhealthy or dangerous environment);
• appropriate accommodation and access to sanitary facilities are provided;
• the item supplied, tools and other equipment can be stored appropriately, protected against theft and the weather;
• the cranes, lifting equipment, transport equipment and other devices and tools specified by Clavis are made available in good time.

4.2. If the customer fails to fulfil one or more of these obligations, or fulfils them incorrectly, Clavis is entitled to fulfil these obligations itself or through a third party and to suspend its performance in whole or in part. Additional costs resulting from failure to comply with these obligations shall be borne by the customer and charged at Clavis's usual rates for materials and personnel and at the actual costs incurred for third parties.

5. Supply / performance

5.1. The scope and execution of the supply/performance are governed by Clavis's order confirmation or the contractual agreement between the parties.

5.2. Clavis is entitled to make partial supplies or provide partial performance insofar as these are reasonable for the customer. Partial supplies or performance shall be invoiced separately and become due for payment independently of the outstanding supply/performance.

5.3. Periods or dates are binding on Clavis only if agreed in writing. Unless otherwise agreed, supply/performance periods begin when all prerequisites for Clavis to carry out the supply/performance have been fulfilled, e.g. receipt of a down payment, completion of official formalities, provision of agreed security, etc.

5.4. Delivery dates or periods are deemed to have been met if the item supplied has left the factory/warehouse at the agreed time or the customer has been notified that it is ready for dispatch.

5.5. Performance periods are deemed to have been met if Clavis has provided the performance at the agreed place of performance. In the case of Works, the performance period is deemed to have been met if the completed work has been offered to the customer for acceptance at the agreed location without material defects.

5.6. Periods shall be extended or dates postponed by the duration of the delay, in particular if

• Clavis does not receive the information required to execute the order in good time;
• the delay originates within the customer's sphere of responsibility and is not attributable to Clavis, for example if the customer fails to make down payments or fails to cooperate, or cooperates inadequately;
• subsequent changes to the order are agreed;
• Clavis is prevented from fulfilling its obligations by force majeure, strikes, war, natural disasters or similar causes, whether occurring at its own factory or at its suppliers, which Clavis could not avert despite exercising all due care, in particular official measures, operational disruptions, industrial disputes, delays in the delivery of essential raw materials and consumables, semi-finished or finished products, or energy supply difficulties.

If the above events make supply or performance impossible or unreasonable, Clavis is released from its obligation to supply. In such cases Clavis is entitled to withdraw from the contract. This also applies if the above events occur while supply/performance is already delayed. Clavis shall notify the customer without delay of the occurrence of such events.

5.7. Compliance with delivery periods is subject to Clavis itself receiving correct and timely supplies. Clavis is entitled to withdraw from the contract if its own supplies fail to arrive, are incorrect or are not received on time.

5.8. If the customer defaults on acceptance or breaches other duties to cooperate, Clavis is entitled to demand compensation for the resulting loss, including any additional expenditure. Further claims are reserved. Where the conditions of sentence 1 are met, the risk of accidental loss or accidental deterioration of the item supplied also passes to the customer at the time the customer defaults in performance or acceptance.

6. Prices

6.1. Unless otherwise agreed, all prices for supply/performance are ex works or ex warehouse, plus VAT at the rate applicable on the date of invoicing and plus other incidental costs such as packaging, transport, unloading, installation, etc.

6.2. Unless otherwise agreed, performance shall be charged at Clavis's usual rates and material costs applicable on the day the performance is provided. For overtime, night work and work on Sundays or public holidays for which the customer is responsible, and for work under objectively difficult conditions, the collectively agreed supplements shall be added to the actual wage. Unless otherwise agreed, travel costs shall be charged per kilometre travelled in accordance with the current price list.

6.3. All prices are net and valid for 2 months from the order confirmation. If a supply/performance period of more than two months is agreed, Clavis reserves the right to pass on to the customer, to the corresponding extent, any intervening cost increases, including price changes, for procurement, production, supply, installation or similar activities. Adjustments due to changes in VAT may be made at any time.

7. Payment terms

7.1. Unless otherwise agreed, one third of the agreed price is due upon conclusion of the contract and one third after Clavis has declared that the item supplied, or substantial parts of it, is ready for dispatch. The remaining payment is due upon delivery or, in the case of Works, upon acceptance. Services shall be invoiced upon completion of the work or daily.

7.2. Unless otherwise agreed, all invoices must be paid within 30 days of the invoice date without any deductions. The customer is in default if payments due are not settled within 30 days of receipt of an invoice or equivalent request for payment. If the customer defaults on payment, Clavis is entitled to demand reasonable advance payments for further supplies or performance.

7.3. Bills of exchange are accepted only by agreement and only on account of payment. All associated costs, in particular collection and discount charges, shall be borne by the customer and are payable immediately. Bills of exchange are accepted without responsibility for due presentation or protest. Clavis expressly reserves the right to refuse bills of exchange.

7.4. In the event of late payment, including where payment has been deferred, interest is payable at 8 percentage points above the applicable base interest rate, but at least 10%. This does not exclude claims for further loss caused by the delay.

7.5. The customer has a right of set-off only if its counterclaims have been established by a final court decision, are undisputed or have been recognised by Clavis. The customer has a right of retention only insofar as its counterclaim arises from the same contractual relationship and is undisputed. Clavis's rights of set-off and retention remain unaffected.

7.6. All claims of Clavis become immediately due, irrespective of the maturity of any bills of exchange accepted and credited, if the customer defaults on payment or Clavis becomes aware of circumstances liable to reduce the contracting party's creditworthiness. Clavis is then also entitled to carry out outstanding supplies or performance only against advance payment or security. If advance payments or security have not been provided by the expiry of a reasonable additional period, Clavis may withdraw from the contract. Clavis remains entitled to assert further rights.

8. Place of performance / transfer of risk

8.1. The place of performance for all supplies by Clavis is the place where the item ready for dispatch is located. The place of performance for Performance is Clavis's registered office.

8.2. Unless otherwise stated in the order confirmation, supply is agreed to be ex works.

8.3. Benefits and risk pass to the customer, irrespective of the type and form of delivery, when the item supplied leaves Clavis's factory or warehouse

8.4. or when the customer has been notified that it is ready for dispatch. This also applies if Clavis has undertaken further performance, such as transport or installation of the item supplied, and even if Clavis exceptionally bears the costs thereof. Before dispatch, the customer bears the risk of loss, loss of possession or damage to the item supplied for which neither party is responsible if, at the customer's request, delivery of the item ready for dispatch is to take place later than originally scheduled. In that case, risk passes to the customer at the end of the scheduled dispatch date.

8.5. In the case of Works, risk passes upon acceptance or at the time legally equivalent to acceptance.

9. Acceptance

If acceptance of Works by the customer is required, the following applies unless otherwise agreed with the customer: acceptance takes place where the work is produced. Clavis shall notify the customer that the work is ready for acceptance and request acceptance at an appointment during normal working hours. The customer is obliged to declare acceptance in writing if the work conforms to the agreed quality. The costs of acceptance shall be borne by the customer, except for the costs of Clavis's personnel. The customer shall ensure that any equipment and measuring instruments needed for acceptance are available. Acceptance may be refused only if the adjustments made deviate materially from the agreed quality. These deviations must be recorded. Minor deviations do not entitle the customer to refuse acceptance. If the customer fails to accept the work despite being obliged to do so, this is equivalent to acceptance. The customer is not entitled to use the work, in whole or in part, before acceptance. If the customer nevertheless does so, this is deemed to constitute acceptance.

10. Packaging and transport

10.1. The item supplied shall be dispatched by a carrier chosen by Clavis. Clavis is not obliged to take out transport insurance. If the customer wishes to have transport insurance, Clavis shall arrange such insurance for the supply. The customer shall bear the resulting costs.

10.2. Transport packaging and all other packaging within the meaning of the German Packaging Ordinance will not be taken back, with the exception of pallets. The customer is obliged to arrange disposal of the packaging at its own expense.

11. Defects and warranty

11.1. Information contained in Clavis's general product information or price lists is binding only insofar as it is expressly referred to in the order confirmation/contract.

11.2. The customer must inspect items received or works produced without delay, in particular with regard to quantity and agreed quality. Complaints about defects will be considered only if notified to Clavis in writing within 10 days of receipt of the item supplied or of the defect becoming apparent. The notice must describe the defect. The customer loses the right to rely on a defect if it is not reported within the above periods.

11.3. If a defect exists, Clavis may choose to remedy the defect or provide a replacement. As a rule, the defect shall be remedied at the place where the item supplied is intended to be located. Clavis may, however, require the defective part or the item supplied to be sent to it for repair or replacement. If removal or installation requires special knowledge, Clavis is entitled to carry out such removal or installation itself or have it carried out. Additional costs arising because the item supplied has been moved to a place other than its intended location or the delivery location shall be borne by the customer. Parts replaced in the course of remedying defects become the property of Clavis.

11.4. Clavis warrants, without assuming a guarantee, that the items supplied do not infringe patents, other industrial property rights or third-party know-how, insofar as those rights are protected in Germany or insofar as the design was not specified by the customer. If a third party asserts valid claims against the items supplied based on such patents, other industrial property rights or know-how, Clavis shall, at its option, provide subsequent performance by acquiring a licence for the items concerned or by supplying items free of such rights. In such a case Clavis is entitled to avoid the infringement through a reasonable alternative design with corresponding performance capabilities.

11.5. Merely carrying out a repair or providing a replacement does not constitute acknowledgement that a defect exists. Insofar as subsequent performance suspends the limitation period, this applies only to the defective product, not to the remainder of the installation as a whole.

11.6. If the customer reports a defect and it transpires that there is no such defect for which Clavis is liable, the customer shall reimburse Clavis for the costs of the examination.

11.7. If the defect cannot be remedied, further attempts at repair are unreasonable for the customer, or replacement fails, the customer may choose to withdraw from the contract or demand an appropriate reduction in the purchase price. Claims for damages and reimbursement of expenses remain unaffected in accordance with clause 13.

11.8. Claims for defects do not arise in cases of natural wear and tear or damage resulting from incorrect or negligent handling or installation by the customer, excessive use, unsuitable operating materials, electronic or electrical influences, or similar circumstances. Clavis is not liable for defects arising from materials provided by the customer or designs specified by the customer.

11.9. All claims for defects become time-barred one year after delivery/acceptance of the performance.

12. Infringement of third-party rights

The customer shall notify Clavis in writing without delay of claims asserted by third parties for infringement of intellectual property rights or for other defects in the items supplied for which Clavis is liable, act in agreement with Clavis in the necessary defence, and support Clavis in that defence to the best of its ability.

13. Liability

Clavis's liability, regardless of its legal basis, is excluded. This does not apply to liability in the following cases:

• intent or gross negligence on the part of Clavis, its legal representatives, employees or persons engaged in performing its obligations;
• ordinary negligence in the breach of essential contractual obligations. In this case, liability is limited to compensation for foreseeable damage typical of the contract;
• the assumption of a guarantee or fraudulent concealment of a defect;
• loss of life, bodily injury or damage to health; and
• mandatory liability under statutory provisions, in particular the German Product Liability Act.

14. Retention of title

14.1. The item supplied remains the property of Clavis until all claims due to Clavis from the business relationship with the customer have been paid in full, or, in the case of payment by cheque or bill of exchange, until they have been honoured (goods subject to retention of title).

14.2. The customer is obliged to treat the item supplied with care; in particular, it must adequately insure the item at its own expense against fire, water damage and theft at replacement value. If maintenance and inspection work is required, the customer must carry it out in good time at its own expense.

14.3. The customer is entitled to resell the item supplied in the ordinary course of business. In the event of resale, the customer hereby assigns to Clavis its claims against its customers arising from the resale, up to the value of the goods subject to retention of title (invoice amount including VAT), together with all ancillary rights.

14.4. Any treatment or processing of the goods subject to retention of title is carried out by the customer on behalf of Clavis without giving rise to obligations for Clavis. If processing takes place with other goods also subject to retention of title, Clavis acquires co-ownership of the new item in the ratio of the purchase price agreed between Clavis and the customer (invoice amount including VAT) to the corresponding purchase price of the other goods at the time of processing. In all other respects, the same provisions apply to the item resulting from processing as to the goods subject to retention of title.

14.5. If the goods subject to retention of title are inseparably mixed with other items, Clavis acquires co-ownership of the new item in the ratio of the value of the goods subject to retention of title (invoice amount including VAT) to that of the other mixed items at the time of mixing. If mixing takes place in such a way that the customer's item is regarded as the principal item, it is agreed that the customer transfers proportionate co-ownership to Clavis. The customer shall hold the resulting property on behalf of Clavis.

14.6. The customer assigns to Clavis, as security for Clavis's claims against the customer, the claims arising from the incorporation of the goods subject to retention of title into real property.

14.7. The customer is obliged to notify Clavis in writing without delay of third-party enforcement measures against the goods supplied subject to retention of title or the rights assigned to Clavis. To the extent that the third party is unable to reimburse Clavis for the judicial and extrajudicial costs of an action under section 771 of the German Code of Civil Procedure (ZPO), the customer is liable for the shortfall incurred by Clavis.

Clavis is entitled at any time to demand the return of items owned or co-owned by Clavis if Clavis considers the customer's settlement of its claims to be at risk or if the customer breaches its obligations. Repossession of the goods by Clavis does not constitute withdrawal from the contract unless Clavis has expressly declared this in writing. Attachment of the purchased item by Clavis always constitutes withdrawal from the contract. After repossession, Clavis is entitled to realise the value of the goods. The proceeds, less reasonable realisation costs, shall be credited against the customer's liabilities.

The customer is obliged to take the necessary measures and issue all legally required documents so that retention of title becomes effective or other security in favour of Clavis is established or maintained.

15. Partial invalidity

If a provision of these Terms or a provision within other agreements is or becomes invalid in whole or in part, this does not affect the validity of any other provisions of these Terms or agreements. Invalid provisions shall be replaced by agreements corresponding to the contractual intention of the parties.

16. Applicable law and jurisdiction

16.1. All legal relationships between Clavis and the customer arising in connection with this contract, whether based on contract, tort or any other statutory basis, are governed exclusively by the law of the Federal Republic of Germany.

16.2. The exclusive place of jurisdiction for all legal disputes between Clavis and the customer, including actions relating to cheques and bills of exchange, is the court having jurisdiction over Clavis's registered office. Clavis is, however, entitled to bring proceedings against the customer at the customer's registered office.

Version: 22 October 2013