General Terms and Conditions for orders, delivery and services relating to business with entrepreneurs
Last revised: May 2022
1. Scope / General
- The following General Terms and Conditions (“T&Cs”), which can be viewed on the website https://www.reflex-winkelmann.com/special-pages/agb apply to the business relationship with the contractual partners (“Customer”) of Reflex Winkelmann GmbH and Sinusverteiler GmbH (jointly “Reflex”).
- These T&Cs apply exclusively to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB).
- Any different or supplementary provisions in the Customer’s Terms and Conditions will only apply if and to the extent Reflex has recognised them explicitly in writing. Otherwise they will be rejected. In particular, silence with respect to any such different provisions shall not be deemed to be recognition or agreement even for future contracts. Reflex will not accept any penalty fees, contractual penalties or indemnity obligations, in particular any in general terms and conditions of purchase or codes of conduct unless a separate explicit agreement has been made in this respect.
- If reference is made hereinafter to claims for damages, this shall also mean claims to the reimbursement of expenses within the meaning of Section 284 of the German Civil Code.
2. Contract conclusion
- Offers made by Reflex are non-binding unless they are explicitly marked as binding or contain explicitly binding commitments or their binding nature has been otherwise explicitly agreed with the Customer. They are invitations for the Customer to place purchase orders and not a binding offer by Reflex.
- The Customer is bound by their offer for 14 calendar days – 5 days in the case of an electronic offer – after its receipt.
- Cost estimates provided by Reflex are only binding if they are explicitly marked as binding.
- A contract will only come into being – even in ongoing business dealings – when the Customer’s purchase order is confirmed by Reflex. Reflex reserves the right to harmless withdrawal from the contract within 14 days of order confirmation if there are still outstanding payments owed by the Customer or a credit check which might be performed by Reflex with respect to the Customer has returned negative results. In the event of the supply of goods or services within the period during which the Customer is bound by their offer, the order confirmation may be replaced by the supply of the goods or service, whereby the despatch of the goods or rendering of the service shall be authoritative.
3. Product characteristics
- Information and explanations supplied by Reflex with regard to their products do not constitute any agreements concerning characteristics or guarantees with respect to the products whatsoever. Values given in this respect are to be regarded as average values.
- Product specifications agreed with the Customer define the owed characteristics conclusively. Further characteristics of the product such as the suitability of an intended purpose specified by the Customer or normal characteristics of such products will not be owed.
- All details given by Reflex about their products, in particular in their offers and printed material and on the internet and the illustrations, drawings, dimensional, characteristic and performance features contained therein as well as any other, especially technical, details or details concerning constituents are average values, which are to be regarded as approximate. Data concerning products, which is not provided with tolerances, such as that included on the internet or in catalogues and/or brochures, is also subject to production-related deviations and modifications which are customary in commerce or the industry, in particular with respect to related materials.
- If and to the extent instructions for use are provided, these are written with the diligence customary in the industry, but do not release customers from their obligation to carefully check the products with respect to their suitability for their desired purpose.
- A no-fault guarantee will only be valid if it has been issued expressly in writing within the meaning of Section 126 of the German Civil Code (BGB).
- Reflex will not assume any liability for the usability and/or registerability and/or marketability of the products for the intended purpose envisaged by the Customer apart from statutory liability, unless otherwise explicitly agreed. The provision in Clause 12 remains unaffected.
- The characteristics of models or advance samples will only become a constituent part of the contract if this has been explicitly agreed. The Customer is not entitled to sell or pass on samples. If the Customer is supplied on the basis of a product sample or demonstration model, deviations of the supplied products from said sample or model shall be permissible to the extent customary in the industry. They shall not entitle the Customer to make a complaint or raise claims against Reflex unless otherwise agreed if they have no lasting influence on the normal intended use of the supplied products and any explicitly agreed specifications are met by the supplied products.
4. Non-disclosure of confidential information
- Samples, illustrations, images, photos, drawings, data, cost estimates and other documents about products and services disclosed or handed over to the Customer or which concern Reflex and its affiliates and are of economic value, constitute confidential information (“confidential information”) to which Reflex reserves all rights of ownership and copyright. The Customer undertakes to not make confidential information accessible to third parties unless Reflex issues their written and signed consent beforehand. The Customer must protect the confidential information from unauthorised access, publication, modification and destruction and to return it to Reflex without delay if requested to do so, however when the contract has been fulfilled at the latest or in the event that no contract is concluded, upon discontinuation of contract negotiations / rejection of the offer / issue of a rejection of collaboration. The obligation of non-disclosure of the confidential information applies to a period of two years after the end of the collaboration with the Customer.
- The provisions set out in Clause 4 paragraph 1 apply accordingly to confidential information from the Customer subject to the following: The confidential information from the Customer may be made accessible to such third parties with whom Reflex collaborates in the performance of the contract. Samples or drawings from the Customer will only be returned at their request. If negotiations are discontinued / an offer is rejected / collaboration is rejected and a contract does not come about, then Reflex is entitled to destroy any samples and drawings from the Customer three months after the contract has not come about. The same applies accordingly if a contract has been fulfilled.
5. Scope of delivery
- In the absence of any other explicit agreement, Reflex is only obliged to supply the ordered products as marketable goods suitable for approval.
- Contrary to Section 434 of the German Civil Code, the supplied product is free from material defects if it has the characteristics agreed in the contractual specification, or in the absence of such has the characteristics shown in the general technical data sheet for that product as amended at the time of contract conclusion. Section 434 (2) no. 3, (3) first sentence, no. 2 (b), no. 4 and (3) third sentence remain unaffected. Reflex will not owe any further characteristics of the supplied item, in particular (i) standard quality which the buyer can expect from items of this nature, (ii) anticipated suitability according to the contract, (iii) suitability for normal use and (iv) quality of a test or sample in the absence of an explicit agreement to the contrary.
- Any tool costs stated in the offer or confirmation only constitute part of the material and labour cost component of the production costs actually incurred for tools. Reimbursing this share of the tool costs does not afford the Customer ownership or a right to acquire ownership of the tools. On the contrary, they remain the property of and in the possession of Reflex. If the Customer provides Reflex with tools or systems, the provisions of the tool handover agreement concluded for this purpose shall apply in this respect.
- Reflex will only be obliged to provide user information about products and a product label in their choice of German or English – unless otherwise agreed explicitly in writing or if this is stipulated by law.
- The Customer is obliged to provide all of the information and data required for supply and production to Reflex on time and in full and to carry out any actions within their responsibility in good time and free of charge in order for Reflex to be able to perform their service in accordance with the contract.
- Reflex reserves the right to modify the specification of the products to the extent made necessary by statutory requirements. However, this shall only be to the extent that the modification does not bring about a deterioration in terms of quality or usability for the normal purpose and if suitability for a specific purpose has been agreed, for said purpose and that the overall character of the performance obligation does not change. If this is not possible, the contract shall be adjusted accordingly. If this is not possible, or unreasonable for one party, then both parties shall have the right to withdraw without compensation from the part of the contract that has not yet been fulfilled.
- Reflex is entitled to supply up to 5% over or below the agreed delivery quantity as is customary in the trade or industry.
- Reflex is entitled to supply products with customary deviations in quality, dimensions, weight, colour and equipment. Such goods shall be deemed to be in accordance with the contract.
- Reflex is a only obliged to supply from their own stock (“obligation restricted to own supplies”). Furthermore, the assumption of a no-fault procurement risk equivalent to a guarantee lies not only in the obligation to supply an item defined only by its type. Reflex will only assume such a procurement risk on the basis of a separate explicit agreement using the phrase “we assume the procurement risk”.
- In the case of framework agreements or delays in call-offs caused by the Customer, Reflex will be entitled to procure the material for the entire order and manufacture the entire ordered quantity of agreed delivery items immediately or to stock up on the entire ordered quantity. Accordingly, change requests from the Customer can no longer be taken into account after the order has been placed unless this has been explicitly agreed.
- If and to the extent a framework contract has been concluded, the entire delivery quantity must be called off in full within ten months of contract conclusion at the latest and, unless otherwise agreed, the Customer’s individual purchase orders must be received by Reflex at least six weeks before the requested delivery date unless a shorter call-off or delivery period has been explicitly agreed. If no explicit agreements have been made to the contrary, the Customer will be obliged to call off all of the ordered products within one year of receipt of the order confirmation. If the call-offs are not made on time, Reflex will be entitled to remind the Customer of the call-offs and to schedule them, and set a grace period of 14 calendar days for the call-offs and schedule, which must provide for the purchase within four weeks of receipt of Reflex’s request. In the event of the grace period expiring without result, Reflex will be entitled to withdraw from the contract or to compensation for damages in lieu of demanding performance.
6. Delivery dates and periods / delays
- Binding delivery dates or periods must be agreed explicitly. Delivery dates, which are not explicitly marked as binding, will be deemed to be the minimum delivery period. Deliveries will be permissible before the delivery period has expired.
- Delivery periods begin with the receipt of the order confirmation by the Customer, in the absence of an order confirmation 3 working days after the receipt of the Customer’s purchase order by Reflex, however not before all of the conditions required of the Customer have been met, in particular any agreed down payments or securities and necessary cooperation have been made in full.
- Reflex is entitled to make partial deliveries within the delivery period if the Customer can use the partial delivery within the scope of the contractual intended purpose, the delivery of the remaining ordered products is secure and the Customer does not incur any considerable extra expenses or additional costs as a result unless Reflex declares that they are prepared to assume such costs. The expense is deemed considerable if it exceeds 5% of the net payment.
- If Reflex is late delivering, the Customer must first allow a reasonable grace period of at least 14 calendar days to perform. If this date passes without result, claims for damages on the grounds of breach of duty - irrespective of the reason - will only exist in accordance with the provision in Clause 12.
- Reflex will not be in delay while the Customer has defaulted on the fulfilment of their obligations to Reflex.
- In the event of a late delivery order or call-off on the part of the Customer, Reflex will be entitled to postpone the delivery by the same amount of time as the Customer’s delay plus a scheduling period of 4 working days.
7. Despatch / transfer of risk / acceptance
- Unless agreed otherwise in writing, the delivery will be made ex works or ex warehouse.
- If the shipment is delayed due to Reflex exercising their right of retention because the Customer is partially or wholly in default of payment, or for any other reason which is the Customer's responsibility, the risk will transfer to the Customer at the latest from the date of sending the notification to the Customer that the goods are ready for despatch.
- Reflex reserves the right to select the transport route and means of transport for an agreed shipment in the absence of any other agreement. However, Reflex will endeavour to take the Customer’s wishes into account with regard to the transport route and means of transport without the Customer having any entitlement in this respect. Any additional costs caused as a result - even in the event of an agreed carriage free delivery - will be charged to the Customer, as will the carriage and insurance costs.
- If shipment to the port of destination agreed between the Customer and Reflex is not possible for reasons that are not Reflex’s fault, then Reflex is entitled to deliver, with prior notice and at their discretion, to a port no more than 300 kilometres away from it or to deliver by road transport. Any additional costs incurred as a result will be borne by the Customer. The above provision will not apply if a procurement guarantee has been undertaken in accordance with Clause 5 (9).
- If means of transport to be provided by the Customer are not available on time, Reflex will be entitled to carry out the delivery in the case of an executable despatch or call-off order using their own or hired means of transport. In this case the products will be shipped at the Customer’s cost and risk.
- During unloading and return of the products, the Customer shall assist Reflex personnel if necessary and if it is technically and logistically reasonable to expect the Customer to do so.
- If the products are to be accepted, this shall be authoritative for the transfer of risk. The acceptance must be carried out without delay on the agreed acceptance date, alternatively following notification from Reflex of readiness for acceptance. The Customer may not refuse acceptance if there is a minor defect, i.e. such that does not have any effect on the functional capacity of the products or works.
- If the acceptance of the products is delayed for a reason that is the Customer’s fault, then Reflex will be entitled to demand an immediate compensation payment after the setting and expiry of a grace period of two weeks. The statutory rules on withdrawal and damages remain unaffected. The grace period must be set in writing. In such a case, Reflex will be entitled to a contractual penalty in the sum of 15% of the net price/payment from the Customer. Reflex is entitled to assert further claims for damages on the basis of general statutory provisions.
- If, at the time of the purchase order, no collection date is agreed, which Reflex has confirmed or must confirm in order for it to be binding, or if the acceptance is not carried out on the agreed collection date, or if the despatch is delayed at the Customer’s request or for reasons that are the Customer’s fault, then Reflex is entitled to choose to send the products with a carrier instructed by them or to place the products into a warehouse at the Customer’s cost and risk. Reflex will charge the Customer additionally for the packaging, transport and insurance costs incurred (the latter only if transport insurance has been agreed). Furthermore, Reflex is entitled to dispose of the contractual products elsewhere after a reasonable period of time has elapsed and to supply the Customer again with a reasonable delivery period. If the goods are warehoused, the Customer shall pay a flat rate warehousing fee of 0.5% of the net payment for the warehoused goods for each new week, i.e. 7 calendar days that has begun. The Customer has the right to prove that a considerably lower cost (over 10% lower) has been incurred. The warehoused product will only be insured at the Customer’s special request.
8. Force majeure / availability of materials
- If, for reasons that are not their fault, Reflex does not receive the delivery of goods or services from their sub-suppliers in order to deliver the goods owed under the contract, or does not receive such correctly or on time, despite proper and adequate cover before the conclusion of the contract with the Customer, in accordance with the quantity and quality emerging from the agreement with the Customer to supply goods or services, meaning that upon fulfilment of the sub-suppliers’ obligation to supply Reflex, Reflex can then fulfil their contract with the Customer in accordance with the type of goods, quantity of goods and delivery date and/or performance (“congruent cover”), or if force majeure events occur with a not inconsiderable duration (i.e. a duration of over 14 calendar days), then Reflex will inform the Customer in writing without delay. In this case, Reflex is entitled to delay the delivery by the duration of the hindrance or withdraw partially or wholly from the contract on the basis of the non-fulfilled part provided Reflex has fulfilled their above duty to inform and no procurement risk has been undertaken in accordance with Clause 5 (9). Strikes, lockouts, official interventions, energy and raw material shortages, epidemics and/or pandemics, transport bottlenecks or obstacles which are not the fault of Reflex, in particular general lockdowns and/or contact bans, as well as interruptions to operations which are not the fault of Reflex - caused for example by fire, water or machine damage - and all other impediments which have not been culpably brought about by Reflex when regarded objectively, shall be equivalent to force majeure. In the event of exemption from performance in accordance with the above provision, Reflex will not be liable to pay damages and/or reimburse costs due to default.
- If a binding delivery date or period has been agreed and if said agreed delivery date or period has been exceeded due to events pursuant to Clause 8 (1), then the Customer will be entitled to withdraw from the contract due to the not yet fulfilled part thereof following a grace period of at least 14 calendar days which has passed without result. Further claims by the Customer in particular those for damages will be excluded in this case.
- The above provision according to Clause 8 (2) will apply accordingly if for reasons stated in Clause 8 (1) it is no longer objectively reasonable for the Customer to adhere to the contract even without a contractually agreed fixed delivery date.
9. Notice of defects / warranty of material defects
- Obvious material defects and/or defects of title are to be notified by the Customer in writing without delay, however at the latest by 12 days after collection in the case of delivery ex works or warehouse, otherwise after delivery, latent material defects and/or defects of title are to be notified without delay after discovery, the latter however at the latest within the warranty limitation period pursuant to Clause 9 (8) within the meaning of Section 126 of the German Civil Code (BGB). A notification not made on time or in the correct form will rule out any claim by the Customer whatsoever based on breach of duty due to material defects and/or defects in title. This will not apply in the case of wilful, grossly negligent or fraudulent actions, in the event of injury to life, body or health or assumption of a guarantee of freedom from defects or of a procurement risk pursuant to Clause 5 (9) or other statutory liabilities and in the event of recourse claims in the supply chain pursuant to Section 478 of the German Civil Code.
- The Customer must undertake a plausibility check upon acceptance, i.e. check according to product type, quantity/weight and condition. Material defects, obvious type defects and/or quantity/weight defects, which are obvious upon delivery, must also be notified to the transport company undertaking the delivery and the Customer must arrange for a note of such defects to be made on the spot on the delivery paperwork/CMR in written form within the meaning of Section 126 of the German Civil Code. The failure to arrange for a record to be made of the defects on time or in the correct form with respect to the transport company undertaking the delivery will exclude any claim by the Customer based on breach of duty due to material defects. This will not apply in the case of fraudulent, wilful or grossly negligent actions on the part of Reflex, in the event of injury to life, body or health or the assumption of a procurement risk pursuant to Clause 5 (9), a guarantee of freedom from defects or liability based on a statutory liability or in the event of recourse claims in the supply chain pursuant to Section 478 of the German Civil Code.
- It is the Customer’s responsibility to clarify before the commencement of the actions described above or other use of the delivered products by means of tests which are appropriate in scope and method whether the delivered products are suitable for the purpose they have intended for them.
- Reflex is only obliged to check pressurised parts for tightness in their works if so doing has been agreed upon separately.
- The Customer must hand over the goods which they have complained about to Reflex for test purposes with respect to the actual existence of a defect.
- Complaints about other breaches of duty by Reflex are to be made without delay before the assertion of other claims by the Customer, setting a reasonable grace period in writing.This will not apply in the case of wilful, grossly negligent or fraudulent actions on the part of Reflex, in the event of injury to life, body or health or assumption of a procurement risk pursuant to Clause 5 (9) or a statutory liability.
- The delivered products will be deemed to have been approved by the Customer upon commencement of processing, machining, combining or mixing with other items.
- For claims arising from a breach of duty based on poor performance in the form of material defects, the limitation period is 12 months, unless anything to the contrary has been explicitly agreed, calculated from the date of transfer of risk (see Clause 7 (1), (2) and (7)). This does not apply to claims for damages arising from the assumption of a procurement risk pursuant to Clause 5 (9), claims based on injury to life, body or health, fraudulent, wilful or grossly negligent actions on the part of Reflex, or if a longer limitation period is stipulated in the cases of Sections 478 and 445a (recourse in the supply chain), Section 438 (1) no. 2 (construction of buildings and supply of items for buildings) and Section 634 a (1) no. 2 of the German Civil Code (building defects) or otherwise by law. A reversal of the burden of proof is not associated with the above provision.
- If the Customer or a third party incorrectly repairs products supplied by Reflex and the defect is based on this, there will be no liability for the consequences of such repairs. The same will apply to modifications to the product carried out without the prior consent of Reflex.
- Further claims by the Customer on the basis of or in connection with defects or consequential damages, irrespective of the reason, only exist in accordance with the provisions in Clause 12.
- There will be no claims for defects in the case of only minor (i.e. hardly visible or perceptible) deviation from the agreed or normal quality or usability.
10. Prices / terms of payment / defence of insecurity
- Unless otherwise explicitly agreed, all prices are quoted in euros, excluding packaging plus any applicable VAT, ex works or ex warehouse.
- Payment methods other than bank transfer will require a separate explicit agreement; this applies in particular to the negotiation of cheques or bills of exchange.
- Reflex will be entitled to issue partial bills according to the progress of the order processing and/or request down payments in accordance with the progress of the processing. The Customer will only be entitled to make partial payments with prior explicit, written approval.
- The price will be payable, unless otherwise agreed, when the products are ready in the case of an agreed obligation to collect, upon handover to the carrier in the case of an obligation to despatch or upon delivery of the products in the case of an agreed obligation to provide.
- In the absence of any agreement to the contrary, services, which are not included in the agreed scope of delivery, will be carried out on the basis of Reflex’s general product guides for such services, as amended.
- Reflex is entitled to unilaterally increase prices accordingly in the case of an increase in material production and/or material and/or product procurement costs, wages and incidental wage costs, social security contributions as well as energy costs and costs of environmental regulations, and/or currency regulations and/or changes in custom duties, and/or freight rates and/or public levies, if these directly or indirectly affect the cost of manufacturing or procuring the goods, or costs of the contractually agreed supply of goods and if more than two months have passed between contract conclusion and delivery. An increase as defined above will be ruled out if and to the extent the increase in costs in the case of individual or all of the aforementioned factors is offset by a cost reduction in the case of other factors mentioned above in relation to the overall cost burden for the delivery (set off). If the aforementioned cost factors decrease without the cost reduction being set off by an increase in other cost factors mentioned above, then the cost reduction is to be passed on to the customer within the scope of a price reduction. If the new price is 20% or more above the original price due to the aforementioned right to a price increase, then the Customer will be entitled to withdraw from not yet fully fulfilled contracts with respect to the non-fulfilled part. However, they may only exercise this right without delay, but no later than 30 days after notification of the increased price.
- Unless otherwise agreed, agreed payment terms run from the day after the goods have been made ready for collection or, in the case of agreed obligation to despatch or provide, upon delivery.
- If a bank transfer has been agreed, the date of payment will be the date the money is received in or credited to Reflex’s account.
- If the Customer defaults on a payment, this will cause all payment claims arising out of the business relationship with the Customer to become due for payment immediately. Regardless of any extended payment terms, bill of exchange or instalment agreements, all of the Customer’s liabilities with respect to Reflex will be due for payment without delay in this case. Claims to reimbursement and/or bonuses will be forfeited if the Customer is in default of payment with respect to Reflex.
- If the Customer does not adhere to payment terms or circumstances become known or apparent which give rise to justified doubts about the Customer’s creditworthiness according to sound commercial judgement, including such facts that were already in existence upon contract conclusion but Reflex was not aware of them and need not have been aware of them, then Reflex will be entitled, notwithstanding further statutory rights in such cases, to cease the fulfilment of current contracts and to demand prepayment or the provision of a bank guarantee / insurance guarantee from an institution accepted by Reflex for outstanding deliveries and following the expiry of a reasonable grace period for the provision of such securities without result – notwithstanding further statutory rights – to withdraw from the contract with regard to the not yet fulfilled part of the contract. The Customer will be obliged to reimburse all damages caused by the non-performance of the contract.The Customer will only have a right of retention or set-off with respect to counterclaims which are not disputed or have been legally established. This will apply accordingly if the counterclaim to be set off is synallagmatically linked to Reflex’s claim (meaning there is a reciprocal relationship between two claims in a contract concluded with Reflex) and it relates to a breach of Reflex’s major obligation.
- Incoming payments will first be used to repay the costs, then the interest and finally the principal claims according to their age. A Customer’s provision to the contrary relating to payments will be disregarded.
- The Customer must make payments in favour of Reflex free of postal and other charges.
11. Retention of title / letter of credit / seizures
- Reflex will retain ownership of all products supplied until full payment of the price by the Customer.
- The Customer must handle the products with care and insure them adequately, in particular against fire and theft. Insurance claims arising from a damage event relating to products are hereby assigned to Reflex in the sum of the value of the products. The Customer is obliged to inform the insurer of the assignment of the rights to Reflex.
- The Customer is entitled to resell the supplied products in the normal course of business. The Customer is not permitted to dispose of them in any other way, in particular by way of pledges or provision of collateral, assignment of claims from resale, in particular on the basis of non-recourse or recourse factoring. If products are not paid for immediately by a third party buyer in the case of a resale, then the Customer will be obliged to only resell them with reservation of title. The entitlement to resell the products will be forfeited without further ado if the Customer suspends its payment or defaults on payments to Reflex.
- The Customer hereby assigns to Reflex all claims with respect to third party buyers, including security and related rights, arising from or in connection with the resale of products. The Customer is obliged to inform the third party buyer of the assignment of the rights. The Customer may not reach any agreements with the third party buyer which would exclude or affect Reflex’s rights in any way or make the prior assignment of the claim void. In the event of the sale of products with other items, the claim against the third party buyer will be deemed to be assigned in the sum of the price agreed between Reflex and the Customer if the amounts attributable to the individual goods cannot be determined from the invoice. If the Customer includes claims from the resale of products in a current account agreement with third party buyers, then they hereby assign to Reflex the amount of an accepted resultant final balance in their favour which is equivalent to the total amount of the claim arising from the resale of the products.
- The Customer remains entitled to collect the claim assigned to Reflex until a revocation which is permissible at any time. In the event of a revocation, Reflex shall inform the third party buyer in writing of the assignment of claims and the payment to Reflex. On request, the Customer is obliged to give Reflex all of the necessary information and paperwork required for the collection of assigned claims without delay.
- In the event of Customer actions which breach the contract, in particular default on payment or a breach of provisions under Clause 10, Reflex will be entitled to take back all products after withdrawing from the contract. In this case, the Customer is obliged to hand them over without further ado. In order to establish the stock of products, Reflex is entitled to enter the Customer’s business premises at any time during normal hours of business. The Customer shall inform Reflex in writing without delay of any third party seizure of products or assigned claims.
- If the value of securities provided for Reflex in accordance with the above provisions exceeds the secured claims overall by more than 10% then Reflex will be obliged to release their choice of securities to that extent at the Customer's request.
- Any processing or machining of the products will be undertaken as a manufacturer on behalf of Reflex. If products are processed or inseparably combined with other goods that do not belong to Reflex, then Reflex will acquire the co-ownership of the new item in the ratio of the net invoice amount of the products to the net invoice amount of the other processed or combined items. If products are combined with other movable objects to form a coherent item, which is to be regarded as the primary item, then the Customer hereby assigns the co-ownership in the same ratio to Reflex. The Customer shall keep the ownership or co-ownership safe on behalf of Reflex free of charge. The co-ownership rights arising in this respect will in turn be deemed products. The Customer is obliged to provide information on request and at any time with regard to the pursuit of ownership or co-ownership rights.
- - If, in the case of deliveries abroad, certain measures and/or declarations are required on the part of the Customer in the importing country for the aforementioned retention of title or other rights described there to be effective, then the Customer shall inform Reflex in writing and carry out such measures and/or submit such declarations at their cost without delay. Reflex will cooperate in this respect to the required extent. If the law of the importing country does not allow the retention of title, but does allow Reflex to retain other rights to the products, then Reflex may exercise all rights of this kind at their discretion. If and to the extent an equivalent security for Reflex's claims with respect to the Customer is not achieved in this way, then the Customer is obliged to provide other customary securities with respect to the products at the discretion of Reflex at their cost without delay. Clause 11 (13) remains unaffected.
- In the event of seizures or other third party interventions, the Customer shall inform Reflex without delay in writing so that Reflex can take appropriate counter measures. The Customer shall bear the costs that arise in such a case and will be liable for the damages arising.
- Alternatively to the provisions in paragraphs 1 to 12, Reflex will be entitled, before undertaking the delivery, to waive their rights arising from the above retention of title and request an irrevocable guarantee issued by a financial institution accepted by Reflex in which the institution undertakes to pay unquestioningly on presentation of the delivery note.
12. Exclusion / limitation of liability
- In particular, Reflex will not be liable, notwithstanding the following exceptions, for claims by the Customer for damages - irrespective of the legal reason - in the event of breach of duty arising from the contractual obligation.
- The above exclusion of liability according to 12 (1) does not apply:
- a) to wilful or grossly negligent breach of duty and wilful breach of duty;
- b) to the breach of essential contractual obligations; essential contractual obligations are such whose fulfilment forms the nature of the contract and which the Customer may rely upon.
- c) in the event of injury to life, body or health, including by legal representatives or vicarious agents;
- d) to the extent Reflex has undertaken a procurement risk pursuant to Clause 5 (9);
- e) in the case of liability in accordance with the German Product Liability Act or other statutory liabilities.
- In the event that Reflex or a vicarious agent of Reflex is only guilty of minor negligence and there is no case in accordance with 2 (a) above, then Reflex will only be liable in the case of a breach of essential contractual obligations for foreseeable damages that are typical of this type of contract. The statutory rules regarding contributory negligence remain unaffected.
- The exclusions and limitations of liability in accordance with (1) to (3) and (5) will apply to the same extent in favour of Reflex’s executive bodies, senior and non-senior executives and other vicarious agents and sub-contractors of Reflex.
- Customer claims for damages arising from this contractual relationship may only be asserted within a limitation period of one year from the commencement of the statutory limitation period. This will not apply if Reflex is guilty of intent or gross negligence, in the event of minor negligence, if Reflex has breached an essential contractual obligation and in the event of claims based on injury to life, body or health, and in cases of a claim based on an unlawful action or undertaking of a procurement risk pursuant to Clause 5 (9), or if a longer statutory limitation period applies by law.
- A reversal of the burden of proof is not associated with the above provisions.
13. Intellectual property rights / licence
- Unless otherwise agreed, Reflex is only obliged to deliver free from industrial property rights and third party copyright within the Federal Republic of Germany.
- If a third party asserts a claim against the Customer due to infringement of intellectual property rights as a result of the use of products supplied by Reflex, then the Customer undertakes to inform Reflex without delay and give Reflex the opportunity to participate in any potential legal dispute. The Customer shall support Reflex in the conduct of such a legal dispute in every respect. The Customer shall refrain from any actions which could affect Reflex’s legal position.
- In the event of a breach of Clause 13 (1), Reflex may choose to try to either bring about a right of use at their cost for the consignments concerned or to modify the delivered item so that the intellectual property right is not infringed whilst retaining the contractually agreed characteristics, or to replace it. If it is not possible for Reflex to do so, or if Reflex refuses to, then the Customer is entitled to their statutory rights.
- The Customer shall only have rights with respect to Reflex in the event of an intellectual property rights infringement by the products if they inform Reflex of the claims asserted by third parties in accordance with Clause 13 (2), do not acknowledge an infringement and all defensive measures and settlement negotiations are reserved for Reflex. If the Customer ceases to use the products for mitigation or other major reasons then they are obliged to inform the third party that the cessation of use is not associated with an acknowledgement of an intellectual property rights infringement.
- Claims by the Customer will be excluded if they are responsible for the intellectual property rights infringement. Furthermore, claims by the Customer will be excluded if the intellectual property rights infringement is caused by special specifications from the Customer, by an application that Reflex cannot foresee or because the Customer modifies the products or uses them together with products not supplied by Reflex which do not comply with the intended use, if and to the extent the intellectual property rights infringement is based on this.
- All copyright, patent or other industrial property rights remain with Reflex unless explicitly otherwise agreed.
- If inventions that are worthy of protection come about at Reflex within the scope of performing the contract, Reflex will grant the Customer a non-exclusive and non-transferable right of use at economically preferential terms and conditions. The Customer's right to receive all rights relating to the invention in a case where the bringing about of the invention is a principal contractual obligation of Reflex remains unaffected.
- If products are to be supplied according to drawings, models or samples, using tools, calculations or illustrations the customer has provided to us, then the Customer warrants to us that the production and delivery of said products will not infringe the intellectual property rights of any third party. The Customer will indemnify Reflex without delay against any claims by third party rights holders in the event of an infringement of the above obligation and any direct and indirect damages incurred by Reflex as a result. The statutory rules of contributory negligence remain unaffected.
- If any third party prohibits Reflex – making reference to an intellectual property right held by said party – from producing or supplying products made according to drawings, models, samples, calculations, illustrations or using tools the Customer has provided, then Reflex is entitled – without any obligation to review the factual and/or legal situation – to discontinue production and supply, excluding any claims for damages on the part of the Customer, and to demand from the Customer the reimbursement of the costs incurred and compensation for loss of profit, provided the Customer does not prove that the third party claim is objectively unfounded and the right to indemnification pursuant to Clause 13, paragraph 8 is objectively recoverable.
14. Product approval / import and export regulations
- In the absence of any contractual agreements to the contrary, the product is intended for first placing on the market within the Federal Republic of Germany or, in the case of delivery outside of the Federal Republic of Germany, in the agreed country of first delivery (“first delivery country”). In the case of delivery from the first delivery country to other countries, the Customer must check for themselves whether the local requirements of the country of destination, which is not known to us at the time of providing the goods, are fulfilled (e.g. approvals for potable water, Pressure Equipment Directive, etc.).Compliance with the obligation to supply may be conditional upon approval or the issue of export licences or movement permits or other export certificates by the competent authorities.
- If Reflex is prevented from delivering on time due to the duration of the necessary and proper execution of an application, approval or test procedure under customs or export legislation without it being their fault, then the delivery period will be reasonably extended by the duration of the delay caused by such an official procedure. Reflex cannot quote a fixed duration for said procedure on the part of the authorities. The Customer will be informed without delay of any such procedures or circumstances and measures on a case by case basis. Claims for damages by the Customer for delays through no fault for this reason are excluded.
- The Customer is obliged to communicate timely and full information concerning the end use and if applicable, different end user of the products in writing without delay after contract conclusion. Any possible delivery period for goods or services will not begin to run beforehand. In particular, this includes issuing any necessary end-user certificates (EUC) and sending the original to Reflex in order to verify the end user and intended purpose of the products and provide evidence of such to the competent authorities for customs and export control purposes. If any potential violations of export bans or embargo regulations arise from the aforementioned documents, then Reflex will be entitled to withdraw from the contract without compensation within a period of one week from becoming aware of the potential violations. The same will apply if Reflex or their suppliers are not issued with the necessary export licences or movement permits or other necessary approvals, or not on time, by the competent authorities, or they are revoked, through no fault of their own.
- The Customer shall comply with all official requirements relating to the export of the product which have been notified by Reflex. The Customer shall also place their buyers under obligation accordingly.
15. Final provisions
- The place of fulfilment for all contractual obligations is Reflex’s place of business.
- The exclusive place of jurisdiction for all disputes is Reflex’s place of business. Reflex will also be entitled to proceed against the Customer at their general place of jurisdiction.
- The law of the Federal Republic of Germany applies exclusively to all legal relationships between the Customer and Reflex.
- A suspension of payment not based on rights of retention or other rights and despite a reminder will entitle us, if the Customer is in breach of duty with respect to us at the time, to withdraw from the contract within a period of two weeks of the passing of the last deadline set by Reflex, provided the Customer is in breach of a contractual obligation at the time, or to make the fulfilment of the contract conditional on the prior fulfilment of the payment obligation. In the case of continuing obligations, Reflex will be entitled to cancel without notice instead of withdrawing from the contract. The statutory provisions on cancellation in the event of continuing obligations remain unaffected. If the products have already been delivered, then the consideration in the above cases will be due immediately. Reflex will also be entitled to request that the purchased item be returned in the aforementioned cases and to retain it until full payment of the purchase price.
- All agreements, additional agreements, undertakings and amendments to the contract must be made in writing in accordance with Section 126 of the German Civil Code. This also applies to the waiver of the written form requirement.
- If a provision of this agreement is or becomes wholly or partially ineffective/void or inexecutable, the statutory regulations will apply and the validity of the remaining provisions of this agreement will not be affected.
- The parties will replace the ineffective / void / inexecutable provision or gaps requiring filling with an effective provision which is equivalent in terms of its legal and economic content to the ineffective / void / inexecutable provision and the overall purpose of the agreement.
In accordance with the provisions of the EU GDPR and the German Data Protection Act, Reflex would like to point out that contract processing is carried out using an EDP system and that Reflex also stores the data received on the basis of the business relationship with the Customer in this context.