By entering into a business relationship with our company (hereinafter: Blackwave), you (hereinafter: Buyer) have accepted the following terms and conditions for initial and subsequent deliveries as binding. Changes and additions require the written form. Other general terms and conditions do not apply, even if they have not been expressly contradicted in individual cases. The GTC apply in the current version for all future business relations between Blackwave GmbH and the buyer (together: contracting party). The current GTC can be viewed at www.blackwave.de/wp-content/uploads/AGB-Blackwave.pdf.
1. scope of application
These Terms and Conditions of Sale apply exclusively and only to entrepreneurs, legal entities under public law or special funds under public law within the meaning of § 310 paragraph 1 BGB. We shall only recognize terms and conditions of the customer that conflict with or deviate from our terms and conditions of sale if we expressly agree to their validity in writing.
2. offer and conclusion of contract
We shall be bound by our offer with regard to delivery time and prices for 14 days, provided that non-incisive changes in the fundamentals of production occur unexpectedly. For stock items, our offer is always subject to change. We reserve the right to withdraw from the delivery even after confirmation of the order if facts become known which may call into question the punctual payment.
3. documents handed over
We reserve the property rights and copyrights to all documents provided to the customer in connection with the placing of the order, such as calculations, drawings, etc. These documents may not be made accessible to third parties. These documents may not be made accessible to third parties unless we give our express written consent to do so. If we do not accept the orderer’s offer within the set period, these documents must be destroyed immediately or returned to us.
Shipment shall be ex works at cost price for freight or postage and at the risk of the purchaser, uninsured. In the event that agreed delivery periods are exceeded, the purchaser shall grant a reasonable period of grace, which must be at least 4 weeks. Partial deliveries are permissible to a reasonable extent. They will be invoiced separately.
5. delay in delivery
If we are able to foresee that the goods cannot be delivered within the delivery period, we shall inform the Buyer immediately and in writing of this, inform him of the reasons for this and, if possible, state the expected delivery date. The Buyer shall only be entitled to withdraw from the contract if we are repeatedly responsible for the non-observance of the delivery date and the Buyer has unsuccessfully granted us a reasonable period of grace.
6. notice of defects
The Buyer shall be obliged to inspect the type, quantity and condition of the contractual products delivered immediately after receipt of the goods. The parties shall agree on a specific inspection method in the contract to be concluded. Obvious defects shall be notified in writing without delay, at the latest within a period of 3 calendar days. If a defect appears later, which cannot be detected by the mentioned inspection method upon receipt of the goods (hidden defect), the Buyer must notify Blackwave of the hidden defect immediately after becoming aware of it. Decisive in all cases is the receipt of the notice of defect by Blackwave. The goods are considered free of defects with regard to contractual and legal claims and rights, if the notification is made late. This does not apply to claims for damages based on intentional conduct or under the Product Liability Act. Returns of goods require our express consent.
Invoices can be sent by email as well as in paper form. Payments by the buyer shall be made within 14 days after complete performance and receipt of a proper invoice, unless otherwise agreed in the specific contract. Payments are generally used to settle the oldest invoices due. Should the buyer be in default of payment or should his financial situation deteriorate, all invoices shall become due. Further deliveries will then only be made against advance payment.
The retention of payments or the set-off is entitled to the buyer only with legally established or recognized in writing claims against Blackwave. In the event of exceeding the payment deadline or default, we charge interest at a rate of 8% above the prime rate, unless higher interest rates are agreed. The assertion of further damage caused by delay remains unaffected. If no fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries which take place 3 months or more after conclusion of the contract.
8. means of payment
Transfers have to be made to our house bank (Kreissparkasse München Starnberg Ebersberg, Bürgerplatz 20, 85748 Garching bei München, Germany; IBAN: DE63 7025 0150 0028 4385 39; BIC: BYLADEM1KMS), discount charges are always at the expense of the buyer; deductions from the invoice amounts are inadmissible in any case.
9.Retention of title
To secure all existing and future claims of Blackwave against the Buyer from the supply relationship existing under the contract to be concluded, Blackwave retains title to the delivered products until full payment of all claims.
The buyer is obliged to handle the goods with care and to insure them at his own expense against fire, water and theft in the amount of the replacement value of the purchased goods. If the reserved goods are seized by third parties, the Buyer is obliged to point out the ownership of Blackwave and to inform Blackwave immediately in writing of the seizure. The buyer is entitled to process the goods subject to retention of title in the ordinary course of business, process and sell the goods subject to retention of title or the new item in the ordinary course of business. For the case of resale, the buyer assigns already now the resulting claims against the purchaser to Blackwave to secure the purchase price claims. Blackwave is entitled to notify the purchaser of the assignment and to demand payment to its own account, if the purchaser is in default with its payments to Blackwave. If the buyer processes the goods subject to retention of title, the processing is done in the name and for the account of Blackwave as manufacturer. Blackwave acquires ownership of the new item directly. If the processing is done from materials of several owners, Blackwave acquires a co-ownership share in the new item according to the value of the delivered reserved goods. If Blackwave acquires ownership or a co-ownership share in the new item, Blackwave transfers to the Buyer its ownership or co-ownership share in the new item under the condition precedent of full payment of the purchase price.
If the reserved goods are combined or mixed with other items of the buyer and the item of the buyer is to be regarded as the main item, the buyer transfers to Blackwave a co-ownership share in the main item corresponding to the value of the reserved goods under the condition precedent of full payment of the purchase price. If the buyer sells the new item or the item created by combining or mixing, he assigns to Blackwave already now as security for the purchase price claim the claim he is entitled to against the purchaser of this item. In the event that Blackwave has acquired a co-ownership share in this item, the buyer assigns the claim to Blackwave proportionately according to the value of the co-ownership share. In the event of suspension of payments, composition or insolvency proceedings, the Buyer is no longer authorized to process or sell goods subject to retention of title. In such cases, the Buyer is obliged to surrender the reserved goods at the first request of Blackwave. If a third party debtor for the assignment authority insists on his consent, this must be delivered to Blackwave in writing before delivery. If this consent is refused, Blackwave is authorized by the order to collect its claim in the name and for the account of the buyer. In case of proper payment processing, the Buyer is authorized to collect the assigned claims in trust for Blackwave. The proceeds are to be transferred immediately to Blackwave even if payment is received in installments. In case of discrepancies, Blackwave is authorized to collect its claim directly from the third party debtor, whereby the Buyer is obliged to provide an accurate list of debtors for Blackwave.
Claims for defects by the Buyer always require that the Buyer has given Blackwave GmbH the opportunity to convince itself of the defect. Claims for defects for delivered goods further require that the Buyer notifies Blackwave GmbH in writing of the defects immediately after delivery. Defects that can not be discovered within 7 days even with the most careful inspection, are Blackwave GmbH – under immediate cessation of any processing – immediately after discovery in writing. After the expiration of 6 months from the transfer of risk, warranty claims due to hidden defects are excluded in any case. The object of purchase shall be deemed defective if it deviates from the contractually agreed quality. If a specific quality is not expressly agreed, the purchased item is considered free of defects if it is suitable for the intended use under the contract or has a quality that is common for products of the same type or can be expected by the buyer of the item. Blackwave GmbH endeavors to ensure that its products are free of defects, however, both parties are aware that according to the current state of technology it is not possible to exclude defects of the products under all conditions of use. The following defects or damage are excluded from the warranty: damage due to operational wear and tear and normal wear and tear, improper use, operating errors and negligent behavior of the buyer, weather conditions. The warranty is also excluded after repair attempts by the buyer himself as well as if serial numbers, type designations or similar markings have been removed or made illegible. In the event of a defect, we shall be given the opportunity, at our discretion, to remedy the defect or to deliver new goods or to rebuild the work (subsequent performance). In the event of rectification of the defect, we shall be obliged to bear all expenses necessary for this purpose which are in reasonable proportion to the value of the object of purchase, in particular transport, travel, labor and material costs.
If the item is not located at the Buyer’s place of business, the Buyer shall bear the costs for the additional expenses. These are in particular travel and transport costs.
The time and opportunity necessary to remedy the defects must be made available to Blackwave GmbH at its discretion. If the buyer refuses this, Blackwave GmbH is exempt from liability for defects. During the supplementary performance, the reduction of the purchase price or the withdrawal from the contract by the buyer are excluded. If the supplementary performance has failed, the buyer may, at his option, demand a reduction of the purchase price or withdraw from the contract. If the defect only marginally restricts the operability, there is no right of rescission.
right. Blackwave GmbH is liable according to the statutory provisions if the buyer claims damages based on intent or gross negligence of our representatives or agents. The liability for damages is limited to the foreseeable, typically occurring damage; claims for damages from the title of lost profit are expressly excluded; this limitation does not apply if we have acted intentionally. The exclusion of liability shall also apply with regard to any personal liability of employees, representatives and vicarious agents. Unless otherwise provided above, any liability of Blackwave GmbH is excluded. Warranty and damage claims against Blackwave GmbH are only entitled to the direct buyer and are not assignable. If the delivered item is a used item, warranty and damage claims against Blackwave GmbH are excluded.
The parties undertake, also beyond the duration of the contract (irrespective of its outcome), to treat as confidential all information and documents, whether in written, oral or other form, which come to their knowledge in the course of the performance of the contract. Confidential information shall be kept secret and, in particular, shall not be disclosed or made accessible to third parties, nor shall it be published, made public or otherwise used or exploited beyond the contractual relationship, unless it is publicly known, it is intended for the public by the other party, the other party has developed or obtained it independently and outside the contractual relationship, or the other party must disclose it due to statutory provisions, an enforceable judgment or official orders. Each party will disclose confidential information to its employees only to the extent necessary to carry out the contractual relationship. Each party shall ensure by appropriate written agreements with all employees and agents to whom confidential information is made accessible that they are also obligated to maintain confidentiality to the extent permitted by employment law for the period after their departure. The parties shall provide each other with corresponding evidence. The same shall apply to the observance of data protection.
12. industrial property rights
We shall be liable for ensuring that no rights of third parties are infringed in the country of the place of delivery if our deliveries are used in accordance with the contract. If a claim is justifiably asserted against the Buyer by a third party in this respect, we shall indemnify the Buyer against such claims in the event that we are at fault (includes all necessary expenses incurred by the Buyer). The Buyer shall not be entitled to make any agreements with the third party without our prior consent,
z. e.g. settlements, with the third party without our prior consent. We shall have a corresponding claim for indemnification against the Buyer insofar as we have manufactured the delivered goods according to drawings, models or other requirements (incl. specifications) and did not know or did not have to know that this would infringe the property rights of third parties.
13. force majeure
Force majeure, labor disputes, riots, official measures, failure of our suppliers to deliver and other unforeseeable, unavoidable and serious events shall release the contractual partners from their performance obligations for the duration of the disruption and to the extent of its effect. This shall also apply if these events occur at a time when the affected contractual partner is in default, unless it has caused the default intentionally or through gross negligence. The contractual partners shall be obliged to provide the necessary information without delay within the bounds of what is reasonable and to adjust their obligations to the changed circumstances in good faith.
14. final provisions
Place of performance is Taufkirchen near Munich. Place of jurisdiction is Munich, Regional Court Munich. The law of the Federal Republic of Germany shall apply exclusively, unless otherwise agreed. The application of the UN Convention on Contracts for the International Sale of Goods is expressly excluded. Should individual provisions of these GTC be or become legally invalid in whole or in part or be unenforceable for legal reasons, this shall not affect the validity of the remaining provisions. The contracting parties undertake to replace the invalid or unenforceable provision in the short term by a valid provision which comes as close as possible to the meaning and purpose of the agreement in fact, law and economy. The same shall apply if there is a gap in the provisions. This clause shall also apply to all annexes, if any. Amendments and additions to these terms and conditions require our consent and must be in writing. Furthermore, we refer to the EXW Incoterms 2010, insofar as our conditions do not deviate from them.