General Terms and Conditions of Werk5 GmbH

valid from 01. January 2009


General Terms and Conditions of Werk5 GmbH

valid from 01. January 2009

01. Scope

1. The following general terms and conditions of Werk5 GmbH (hereinafter
also referred to as Contractor) are exclusively applicable vis-à-vis companies, legal
persons and separate funds under public law (hereinafter also referred to as Prin-
cipal). They shall apply to all contracts concluded between the Principal and us on
the delivery of items and prototypes to be produced - hereinafter also referred to as
Subject Matters of Contract - and to concomitant performances/services. They are
also applicable to such services and design works as are not covered by a separate

2. They shall also apply to all future business relations even if these are not
expressly agreed again. Divergent terms of the Principal not expressly recognised by
us are not binding on us even if we do not expressly contradict them. The following
terms and conditions shall also apply if we execute an order without reservations in
the awareness of conflicting or divergent terms of the Principal.

3. All covenants made between us and the Principal for the purpose of per-
forming the contract are laid down in writing in the given contract and in these terms
and conditions.

4. The Principal shall be given directions concerning transport, assembly, op-
eration, care and proper siting. Any lighting fixtures potentially delivered with the Sub-
ject Matter of Contract are not intended for continuous operation. It is recommended
to dispatch all items and prototypes as art objects.

02. Offer, Closing

1. Our offers are subject to change and not binding unless we have expressly
declared the given offer as binding.

2. We are free to accept an order of the Principal that can be qualified as an
offer for the conclusion of a contract within two weeks by transmitting a pertinent

3. We reserve our ownership rights, copyrights and other industrial property
rights to all images, calculations, drawings, photographs and other records. The Prin-
cipal may not pass these items on to third parties except with our written consent,
regardless of whether we have labelled them confidential or not.

03. Principal’s duty to co-operate, variations of contract

1. The Principal shall assist us in the execution of its order, in particular by an-
swering questions within a reasonable time limit, making decisions on time, declaring
clearance and submitting sufficient time in advance and in the form requested by us
any required plans and records it is obliged submit, so as to enable us to observe
agreed time limits. We shall specify to the Principal the records and other information
required and the date by which all of the require records must be submitted. Delivery
dates shall be binding only to the extent that the Principal submits, within the agreed
time limit, the records it is obliged to provide and fulfils its duty to co-operate as set
forth in sentences 1 and 2 of this paragraph.

2. If the Principal submits to us changed records, such as changed sets of
plans, after the time limit agreed pursuant to para. 1 second sentence, it is obliged
to point out to us each of the changes made. The Principal is obliged to pay for any
extra work entailed by such a change. We shall announce any claim to such additional
remuneration before acting on the change.

3. The Principal shall name a person authorised to represent its company, who
shall be solely responsible for the Principal’s decisions and entitled to receive notifica-
tions and statements of the Contractor.

4. Section 7 para. 1 shall analogously apply if the Principal learns about defects
of the subject matter of contract in the course of the execution of the order.

04. Terms of payment

1. Our prices apply “ex works” without packing unless differently provided for
in the confirmation of the order. The prices quoted by us do not include the statutory
VAT. The latter shall be separately reported by us at the statutory level on the invoice
on the day of invoicing.

2. The due date of payment shall be specified in the given contract. Payment
shall be due upon delivery of the subject matter of contract, at the latest. The Principal
shall be deemed to be in default 10 days after the due date without any further dec-
laration of the Contractor being required unless payment has meanwhile been made.

3. The Principal is not entitled to claim set-off, not even if defects or counter
claims are asserted, except if such counter claims have become non-appealable,
are recognised by us and are indisputable. In case of defects, the Principal has no
right of retention unless the subject matter of contract is obviously defective, in which
case the Principal is entitled to retention only to the extent that the amount retained
is reasonably proportional to the defect and to the anticipated cost of retrospective
performance (notably by removal of the defect(s)).

4. The Principal may not assert claims or rights on account of defects if the
Principal has failed to make payments when due and if the amount claimed as being
due (including payments potentially made) is reasonably proportional to the value of
the defective subject matter of

05. Periods of delivery and performance

1. Periods of or time limits for delivery named are not binding unless expressly
agreed in writing as being binding. Adherence to agreed time limits presupposes set-
tlement of the technical issues involved and proper and timely fulfilment by the Princi-
pal of all obligations incumbent on it pursuant to section 03 para. 1. Dates of delivery
shall be deemed to be fixed dates only if expressly agreed and termed as such.

2. We are liable to the Principal pursuant to applicable statutory provisions
if our performance is delayed provided that such delay is based on a deliberate or
grossly negligent breach of contract we are answerable for with the proviso that any
fault on the part of one of our representatives or vicarious agents is attributable to us.
Our liability is limited to such damage as is typical of the given contract and foresee-
able unless the delay in delivery is based on a deliberate breach of contract for which
we are answerable.

3. In the event that a delay in delivery for which we are answerable is based on
the culpable infringement of a cardinal contractual duty and with the proviso that any
fault on the part of our representatives or vicarious agents is attributable to us, we are
liable pursuant to applicable statutory provisions on the understanding that in such a
case any liability in the form of damages shall be limited to such damage as is typical
of the given contract and foreseeable.

4. Moreover, in case of a delay in performance for which we are answerable,
the Principal may assert lump-sum compensation for each full week of such delay at
a rate of 2% of the net contract value up to a limit of 12% of that value.

5. Any more extensive liability for delays in delivery for which we are answer-
able is excluded. This is without prejudice to any more extensive statutory claims and
rights the Principal may have, apart from the claim for damages on account of a delay
in delivery for which we are answerable.

6. We are at any time entitled to make partial deliveries and render partial serv-
ices to the extent that the Principal can reasonably be expected to concur.

7. If the Principal is in default of acceptance, we may require compensation for
any resultant loss and for any potential additional expenditure. The same shall apply
if the purchaser culpably infringes its duty to co-operate. From the inception of any
default in acceptance or payment of debts, the risk of accidental deterioration and
accidental loss shall pass to the Principal.

06. Passing of the risk - shipment/packing

1. Delivery “ex works” shall be deemed to have been agreed unless differently
provided for by the confirmation of the order.

2. Loading and shipment shall be uninsured at the Principal’s risk. We shall
endeavour to take account of the Principal’s preferences and interests concerning
mode of dispatch and shipping route. Additional costs incurred thereby - also where
the parties have agreed “freight paid” - shall be borne by the Principal.

3. If dispatch is delayed at the Principal’s request or for reasons for which the
Principal is answerable beyond the agreed date of delivery or, in the absence of a
precise date of delivery, after notice was given of readiness for dispatch, we shall store
the subject matter of contract free of charge for two weeks. Thereafter, the Contractor
may for each incipient month levy a lump-sum storage charge of 0.5 per cent, not to
exceed 10%, of the purchase price of the subject matter of contract. The Principal
shall be free to prove that the Contractor has sustained a substantially smaller loss or
no loss at all. The Contractor shall be free to prove that it has sustained a greater loss.

4. At the request and expense of the Principal we shall take out a transport
insurance policy covering storage and delivery.

07. Rights in case of defects / liability / limitation of actions

1. The Principal may make claims in respect of defects only if it has properly
and promptly satisfied the requirement to investigate and to report the defect pursu-
ant to § 377 HGB (Commercial Code). Notices of defects must be given in writing.

2. If the subject matter of contract shows a defect for which we are answer-
able, we are obliged, to the exclusion of the Principal’s right, to rescind the contract
or reduce the remuneration (reduction of the purchase price), to make retrospec-
tive performance,, unless were are entitled to refuse to do so pursuant to applicable
statutory provisions. The Principal is required to grant us a reasonable time limit for
retrospective performance. We may make retrospective performance at our discretion
either by removing the defect (subsequent improvement) or delivering a new subject
matter of contract. If we opt for removal of the defect we shall bear the cost incurred
thereby, except to the extent that costs are increased on account of the fact that the
subject matter of contract is located at a place other than the place of performance.
If retrospective performance has failed, the Principal may, at its discretion, require the
purchase price to be reduced or rescind the contract. Retrospective performance
shall be deemed to have failed after the second futile attempt unless, on account
of the nature of the subject matter of contract, further attempts at improvement are
reasonable and the Principal can reasonably be expected to concur.
Claims for damages in respect of a defect may not be asserted by the Principal on
the terms set forth until retrospective performance has failed. This is without prejudice
to the Principal’s right to assert more extensive claims for damages on the terms set
forth below.

3. Defects may not be asserted if the given item deviates but insignificantly
from the agreed quality, nor if its fitness for use is but insignificantly impaired, nor in
case of such defects as arise due to incorrect or negligent handling, failure to ensure
that site conditions are suitable for the given item, excessive strain or such excep-
tional impacts from outside as are not anticipated by the contract. Nor may defects
be asserted in the context of alterations or repairs inexpertly made by the Principal or
by third parties or in respect of any consequences thereof.

4. Claims and rights of the Principal concerning defects shall become statute-
barred within one year of delivery of the subject matter of contract to the Principal
except if we have fraudulently concealed the defect or acted wilfully, in which case
the statutory provisions shall apply. Our obligations pursuant to section 07 para. 5 and
section 07 para. 6 shall not be affected thereby.

5. We shall be fully liable pursuant to applicable statutory provisions for any
loss of life, bodily harm and injury to health caused by any negligent or deliberate
breach of duty by us, our legal representatives or vicarious agents as well as for any
losses covered by liability under the product liability act. As for losses not covered
by the first sentence of this paragraph and based on deliberate or grossly negligent
breaches of contract and fraudulence by us, our legal representatives or our vicarious
agents, we shall be liable pursuant to statute. However, in this case our liability shall
be confined to the foreseeable damage typical of the given type of contract except to
the extent that we, our legal representatives or our vicarious agents have acted wil-
fully. To the extent that we have guaranteed the quality and/or durability of the subject
matter of contract or of parts thereof, we shall also be liable under such guarantee.
However, as for any damage which, while based on the absence of the guaranteed
quality or durability, does not affect the subject matter of contract proper, we shall be
liable only if the risk of such damage is obviously covered by such guarantee of quality
and durability.

6. We shall also be liable for losses caused by simple negligence to the extent
that such negligence relates to the infringement of such contractual duties whose ful-
filment is of special relevance to the achievement of the purpose of the given contract
(cardinal duties) with the proviso that our liability shall be confined to such damage as
is typical of the given contract and foreseeable.

7. Any more extensive liability is excluded irrespective of the legal nature of the
claim asserted. This shall in particular apply to claims in tort and to compensation
for futile expenditures in lieu of performance. This is without prejudice to our liability
pursuant to section 05 para. 2 to para. 5 above. To the extent that our liability is ex-
cluded or limited, this shall also apply to the personal liability of our employees, staff
members, representatives and vicarious agents.

8. Claims for damages by the Principal in respect of defects shall become
statute-barred within one year of delivery of the subject matter of contract to the
Principal. This shall not apply where losses of life, bodily harm or injuries to health
are culpably caused by us, our legal representatives or our vicarious agents or where
we or our legal representatives have acted wilfully or grossly negligently or where our
ordinary vicarious agents have acted wilfully except where claims under the product
liability act are concerned.

08. Reservation of title

1. Pending satisfaction of all claims to which we are entitled vis-à-vis the Prin-
cipal under the contract, any item delivered thereunder (reserved merchandise) shall
remain our property. If the Principal acts contrary to contract, e.g. by delay in pay-
ment, we are entitled to recover the given item after setting a reasonable time limit.
Any such recovery is tantamount to rescission of contract. So is any attachment of
the item. We are entitled to exploit such item after recovering it. After deduction of an
adequate amount by way of exploitation costs, the proceeds derived therefrom shall
be set off against any amounts owed to us by the Principal.

2. The Principal shall handle reserved merchandise with care and shall ad-
equately insure it at its own expense against damage by fire, water and burglary at re-
placement value. Any required maintenance works or inspections shall be performed
by the Principal on time at its own expense.

3. The Principal is authorised to properly sell and/or use reserved merchandise
so long as it is not in default in payment. Reserved merchandise may not be attached
or transferred by way of security. The Principal shall already now fully assign to us by
way of security any accounts receivable arising from the re-sale of reserved merchan-
dise or from any other pertinent legal ground (insurance, tort) (including all receivables
in the form of current account balances). We hereby accept such assignment while
revocably authorising the Principal to collect for its account and in its own name any
accounts receivable assigned to us. Such collecting power may be revoked at any
time if the Principal fails to properly meet its payment obligations. The Principal is not
entitled to assign these accounts receivable, not even for the purpose of the collec-
tion of receivables by way of factoring, except if the factor simultaneously undertakes
to cause the consideration received at the level of such accounts receivable to be
directly remitted to us for so long as we have outstanding claims against the Principal.

4. In case of any third-party recourse to reserved merchandise, notably in the
form of attachment, the Principal shall draw attention to our ownership rights and
shall promptly inform us of such recourse, so as to enable us to assert these rights.
To the extent that any such third party is unable to refund to us any fees arising in this
context in or out of court, the Principal shall be liable.

5. We are obligated to release any collateral security owed to us to the extent
that the realisable value of such security exceeds by more than 10 per cent the ac-
counts receivable to be secured with the proviso that the selection of the collateral
securities to be released is incumbent on us.

09. Secrecy, copyright

1. Except if expressly agreed differently in writing, the information imparted to
us in the context of an order shall not be deemed to be confidential. We are entitled
to take photographs and partial samples of the subject matter of contract and to label
and publish them as reference objects.

2. The Principal shall indemnify us in the context of the execution of an order
against any third-party claims based on the infringement of copyrights, utility models
or other industrial property rights (hereinafter: property rights) to the extent that such
infringement is a result of guidelines issued by the Principal, of a form of use of the
subject matter of contract not foreseeable by us or of an alteration of the latter by the
Principal. Claims of the Principal against us are excluded to the extent that the former
is answerable for such infringement.

10. Place of performance, venue, applicable law

1. Place of performance and venue in respect of deliveries and payments (in-
cluding complaints filed in the context of cheques and bills of exchange) and of all
disputes arising between us and the Principal from contracts concluded between us
and the latter shall be the registered seat of our company.

2. The relations between the contracting parties shall exclusively be governed
by the law of the Federal Republic of Germany. The Uniform Law on the International
Sale of Goods and the Uniform Law on the Formation of Contracts for the Interna-
tional Sale of Goods shall not be applicable.


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