General Terms and Conditions of Business
of Innovatec Microfibre Technology GmbH & Co. KG for Contracts with Entrepreneurs
1. Scope of application
- We conclude contracts with entrepreneurs (§§ 310 para. 1, 14 BGB), legal entities under public law and special funds under public law for deliveries and services to be provided by us only on the basis of these General Terms and Conditions of Sale (GTCS). The GTCS do not apply to contracts with consumers.
- Our GTCS also apply to all future contracts in the ongoing business relationship with our customer. The customer can access and download our GTCS at any time on the Internet at www.innovatec.de. We will also send them to him free of charge at any time on request.
- Any terms and conditions of business or purchase of the customer are hereby rejected. Any terms and conditions of business or purchase of the customer that conflict with, deviate from, supplement or unilaterally contradict our GTCS shall not apply, even if we do not expressly object to them or provide or accept services without reservation, unless we have expressly agreed to such terms and conditions in writing in the individual case.
2. Conclusion of contract
- If the placing of the order by the customer is preceded by our offer, the contract shall be concluded upon receipt of the placing of the order. If the customer submits an offer to us or if the customer's order deviates from our offer, the contract shall only be concluded upon receipt of our order confirmation. At the customer's request, our order confirmation shall be made in writing.
- If our offer for the conclusion of the contract is made "without engagement", we may freely revoke it until receipt of the order placement.
- If we do not issue an order confirmation in response to an offer made by the customer, the contract shall be concluded upon execution of our delivery or other service or, if this is earlier, upon receipt of our invoice.
- The customer is bound to his offer for 4 weeks from receipt by us.
3. Prices, Payments
- Unless otherwise agreed in writing, our prices do not include packaging, freight, postage, value insurance or transport insurance and do not include the applicable value added tax, if any. In the case of deliveries abroad, the customer shall bear the costs of customs clearance. Discounts, rebates or bonuses shall only be granted upon separate written agreement.
- Payment and discount periods granted by us shall commence on the invoice date. The relevant credit entry on our business account shall be decisive for the timeliness of payment.
- Payments shall be made in EURO free of deductions, expenses and costs to a banking institution designated by us. Agreed cash discounts are only permissible if the customer is not in arrears with another claim arising from our business relationship.
- In commercial business transactions, we shall initially charge interest on due payments of 5 per cent p.a. from the due date; from the date of default, we shall charge interest on overdue payments of 9 percentage points p.a. above the applicable base interest rate. The assertion of further damages caused by default remains unaffected.
- Payment deadlines granted shall no longer apply if a significant deterioration of the customer's financial situation becomes apparent to us or if our customer provides incorrect, incomplete or no information about his creditworthiness despite being requested to do so. Furthermore, we may assert our security rights and make outstanding deliveries or services dependent on the provision of appropriate security or payment concurrently with delivery or performance. If the customer refuses to do so, we may revoke the contract insofar as we have not yet rendered our services, without the customer being able to claim any rights from this.
- We reserve the right to use payments to settle the oldest outstanding invoice items, including interest and costs incurred, in the following order: costs, interest, principal claim.
4. Terms of delivery, transfer of risk
- The delivery condition ex works (Incoterms 2020) from our factory in Troisdorf shall apply.
- The risk of price and performance shall pass to the customer at the latest at the end of our normal business hours on the earliest pickup day stated in our notice of readiness for delivery, in the case of an obligation in kind, however, only when we have also separated the goods.
- The goods shall only be dispatched by written agreement and at the risk of the customer.
5. Dates and deadlines, force majeure, reservation of self-delivery, difficulties
- Fixed dates for our deliveries or services require our written confirmation.
- Insofar as events that are extraordinary and unforeseeable and unavoidable for us ("force majeure"), such as natural disasters, fire, explosions, epidemics, wars, terror, traffic disruptions, embargoes or labour disputes, prevent us from fulfilling our performance obligations, we shall be released from our performance obligation for as long as they last. If such an event occurs, we will inform the customer immediately. If the disruption caused by the event is permanent, we shall be released from our obligation to perform in this respect as a whole and may revoke the contract with the customer. We shall reimburse the customer for any counter-performance already made. The customer shall not be entitled to any further claims in such a case.
- Insofar as we are unable to provide deliveries or services because we are not supplied by our own suppliers, or are not supplied in sufficient quantities or are supplied inadequately, although we have concluded congruent hedging transactions, we shall be released from our obligation to perform and may revoke the respective contract concerned, unless we have culpably caused the disruption to our supply. We shall inform the customer of this without delay. We shall reimburse the customer for any counter-performance already rendered. The customer shall not be entitled to any further claims in such a case.
- If the fulfilment of the obligations under the concluded contract becomes considerably more difficult for us as a result of events which are beyond our reasonable control and which were not to be expected at the time of the conclusion of the contract or were not to be expected in the form, such as, in particular, official orders due to the COVID 19 pandemic which affect our operations, we shall be entitled to demand an adjustment of the contractual terms and conditions which will enable us to reasonably overcome these impediments. Until an agreement on the adjustment of the contract is reached, our performance obligations under the contract shall be suspended. If such an event lasts longer than 6 weeks and if an agreement on an adjustment of the contract is not possible or if such an adjustment is unreasonable for one of the contracting parties, both contracting parties may revoke the contract. If we have effected a partial performance, the customer may revoke the entire contract only if he has no interest in the partial performance. We shall reimburse the customer for any counter-performance already rendered to the extent of the revocation. The customer shall not be entitled to any further claims in these cases.
6. Extended and prolonged retention of title
- We retain title to the components and other objects of our deliveries and services ("goods subject to retention of title") until our claims against the customer ("secured claims") have been settled in full. Secured Claims are all current and future claims arising from the business relationship with the customer, including any balance claims from current account.
- The customer processes the goods subject to retention of title for us. We shall become co-owners of the new item. The mixing or combination of the goods subject to retention of title with other movable objects shall also be carried out for us. We shall acquire co-ownership of the new item thus created in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other movable items. If the goods are combined or mixed with a movable main item not belonging to us, the customer hereby assigns to us in advance his rights to the main item by way of security. We accept the assignment. New items and main items within the meaning of this Clause 6.2 shall also be deemed to be goods subject to retention of title.
- The customer is entitled to dispose of the goods subject to retention of title in the ordinary course of business as long as he is not in default of payment. This shall not apply if and to the extent that a prohibition of assignment has been agreed between the customer and its buyers with regard to the customer's claim to the purchase price or remuneration for work. The customer is not entitled to pledge, transfer by way of security or otherwise encumber the goods subject to retention of title. The customer may also not assign his claims from the resale of the goods subject to retention of title in order to have them collected by way of factoring, unless he irrevocably obliges the factor to effect the counter-performance directly to us to the extent that secured claims exist.
- The customer is obliged to secure our rights in the amount of the secured claims when reselling the goods subject to retention of title, insofar as this is feasible in the ordinary course of business. This can be done by the customer making the transfer of ownership of the goods sold by him to his buyers dependent on their full payment.
- If the goods subject to retention of title are sold by the customer, he hereby assigns to us in advance his claims against his customers or third parties arising from the resale (including any balance claims from current account) with all security and ancillary rights, including claims from bills of exchange and cheques in the amount of the secured claims by way of security. We accept the assignment. If the goods subject to retention of title are sold together with other goods at a total price, the assignment shall be limited to the pro rata amount of the customer's invoice for the goods subject to retention of title which are also sold. If goods are sold in which we have acquired co-ownership in accordance with Clause 6.2, the assignment shall be limited to that part of the claim which corresponds to our co-ownership share.
- The customer may collect the claims assigned to us in his name for his own account, unless we revoke this authorisation. Our right to collect the assigned claims ourselves shall remain unaffected. However, we shall not collect the assigned claims ourselves and shall not revoke the customer's authorisation to collect as long as the customer is not in default with his payment obligations or his financial situation deteriorates significantly. In such a case, the customer is obliged to provide us with all information and documents necessary for the assertion of the assigned claims.
- In the event of default or a significant deterioration in the financial situation of the customer or other not insignificant breaches of duty by the customer, the customer undertakes to surrender the goods subject to retention of title, subject to section 107 (2) InsO. This obligation is independent of a withdrawal or the setting of a grace period. The customer already now allows us to enter his business premises for collection. We are entitled to resell goods taken back in the ordinary course of business and to offset the costs of realisation and our other claims against the customer against the proceeds. The taking back of the goods subject to retention of title shall only take place by way of security; this shall only constitute a withdrawal from the contract if expressly declared in writing. When assessing the remuneration for use in the event of a withdrawal, the reduction in value that has occurred in the meantime shall be taken into account.
- The customer must inform us immediately of any enforcement measures by third parties against the goods subject to retention of title or against the claims or other securities assigned to us, providing us with the information necessary for intervention; this also applies to impairments of any other kind. If the third party is not able to reimburse the judicial or extrajudicial costs incurred by us in this connection, the customer shall be liable for them.
- We undertake to release the securities to which we are entitled in accordance with the above provisions at the customer's request insofar as the value realisable from the securities exceeds 110 % or the estimated value of the goods subject to retention of title exceeds 150 % of the claims to be secured. The selection of the goods subject to retention of title to be released shall be at our discretion. The realisable value is the realisation proceeds to be achieved for the goods subject to retention of title in a (hypothetical) insolvency of the customer at the time of our decision on the request for release. The estimated value is the market price of the goods subject to retention of title at that time.
- Insofar as the retention of title should not be effective under the law of the country in which the reserved goods are located, the customer shall provide equivalent security at our request. If he does not comply with this request, we may demand immediate settlement of all outstanding invoices.
7. Delivery or performance in breach of contract
- If the delivery or service provided by us is defective, the mutual claims, rights and objections of us and the customer shall be governed by the statutory provisions with the following deviations:
- If the customer has a claim for cure, we shall have the choice between repair of the defect and a new delivery.
- We shall only bear the costs of cure (including the expenses required for the purpose of cure within the meaning of § 439 or § 635 of the German Civil Code (BGB)) to the extent that they are reasonable in the individual case, in particular in relation to the value of the order. Such costs are in any case disproportionate if they exceed one and a half times of our remuneration for the defective performance.
- Claims for damages by the customer due to defects in the delivery or service shall only exist under the conditions stated in section 8. Claims of the customer arising from guarantees assumed by us shall remain unaffected.
- The limitation period for claims for defects shall be determined in accordance with the statutory provisions. It begins upon delivery.
- The statutory obligations to inspect and give notice of defects pursuant to § 377 of the German Commercial Code (HGB) shall apply. Initial sample releases from our customer do not release the customer from its inspection and notice of defects obligations and also do not restrict these.
- If an improper use of the goods leads to an impairment of their functionality, this shall not constitute a defect and shall not trigger any claims for defects.
- Claims for damages by the customer, irrespective of the legal grounds, as well as claims for reimbursement of futile expenses are excluded, unless the cause of the damage is based either on an intentional or grossly negligent breach of duty or on an at least negligent breach of a contractual duty, the fulfilment of which characterises the contract and on which the customer may rely (material contractual duty); in the latter case, the liability is limited in amount to the damage foreseeable at the time of conclusion of the contract and typical for the contract.
- The aforementioned limitation of liability according to section 8.1 also applies to the personal liability of our employees, representatives and bodies as well as to our vicarious agents.
- The limitations of liability pursuant to Sections 8.1 and 8.2 do not apply to personal injury, i.e. to damage resulting from injury to life, limb or health, in the event of liability under the Product Liability Act and insofar as we have exceptionally assumed a guarantee.
9. Intellectual property
- By concluding the contract, the customer does not acquire any rights in illustrations, drawings, models, plans, samples and other documents (hereinafter referred to as " demonstration material ") prepared by us, unless this is absolutely necessary for the performance of the contract. These rights shall remain with us.
- Our demonstration material may not be reproduced or distributed by the customer or disclosed to third parties without our consent.
- Upon request or if the order is not placed, the demonstration material shall be returned to us without delay.
- We are entitled to demand reasonable remuneration for demonstration material produced by us if the order is not placed with us.
- "Confidential Information" within the meaning of the following confidentiality agreement shall be all information about us (e.g. data, documents, drawings, samples and know-how) which is/was made available to the customer within the scope of this agreement and/or the negotiations relating to this agreement and which is/are marked as confidential or which by its nature is recognisably confidential. Whether and on which carrier medium the Confidential Information is embodied is irrelevant; in particular, oral information is also included.
- The customer is obliged to treat the Confidential Information as strictly confidential and not to disclose or make it available to third parties without our written consent. The customer shall take suitable precautions to protect the Confidential Information, but at least those precautions with which he protects particularly sensitive information about his own company.
- The Customer shall not use any Confidential Information disclosed by us for any purpose other than the performance of the relevant Contract. Obtaining trade secrets by observing, examining, deconstructing or testing products, samples or other corresponding Confidential Information provided by us which are in the customer's legitimate possession is prohibited. This prohibition ends as soon as the relevant product, sample or other Confidential Information has been made publicly available.
- The customer's confidentiality obligations do not apply to such information for which the customer can prove that
- we have given our prior written consent to its disclosure or use by the customer in the specific individual case;
- it was in the public domain prior to the conclusion of this confidentiality agreement;
- the customer has obtained it from a third party prior to the conclusion of this confidentiality agreement or obtains it thereafter from a third party without breaching this confidentiality agreement, provided that the third party has in each case lawfully come into possession of the Confidential Information and by disclosing it does not breach a confidentiality obligation binding on it; or
- the customer is required to disclose the Confidential Information by law or by the rules and regulations of any stock exchange or by an enforceable order of a court or authority of competent jurisdiction.
- This confidentiality agreement shall come into force upon conclusion of this contract and shall end five years after termination of our business relationship.
11. Data protection
- Like the customer, we are obliged to collect and process the data collected in connection with the conclusion and performance of the contract only in accordance with the statutory provisions.
12. Prohibition of set-off / rights of retention
- The customer may only offset against our claims if his counterclaim is undisputed, has been accepted by us or has been finally determined by a court of law or is ready for a court decision or if his claim arises from the same contractual relationship from which we derive our claim.
- The same applies to the assertion of a right to refuse performance or a right of retention.
- The customer may only assert a right of retention if we have not provided adequate security despite written request by the customer.
13. Miscellaneous Provisions
- The place of performance is our registered office in Troisdorf. The place of jurisdiction for all disputes arising from commercial transactions with fully qualified merchants and legal persons under public law is Cologne (§ 38 ZPO). This also applies to bill of exchange and cheque proceedings. We may also bring an action against our customer at his general place of jurisdiction.
- German law shall apply excluding the CISG.
- Amendments or supplements to these GTCS must be made in writing. This shall also apply to any waiver of this written form requirement or any deviation therefrom.
- If any provision of these GTCS or of the Supply Agreement is or becomes invalid in whole or in part, the validity of the remaining provisions or remaining parts of such clauses shall not be affected thereby. The ineffective clause shall be replaced by a provision which corresponds as closely as possible to the objective of that clause and is effective.
Version: March 2021