Conditions
1.1. B.H. Mayer’s IdentitySign GmbH shall provide deliveries exclusively on the basis of these General Terms and Conditions of Business, Delivery and Payment.
1.2. Deviating, opposing or supplementary General Terms and Conditions of the purchaser shall only become part of the contract if and to the extent that we have expressly consented to them. This consent requirement shall apply in any case, even if we deliver a good or service to the purchaser without reservation, despite our awareness of the purchaser’s General Terms and Conditions.
1.3. Any individual agreements reached with the purchaser from case to case (including side agreements, additions and changes) shall take precedence over these GTC. Such individual agreements shall only be valid to the extent they are laid down in a written contract or a written confirmation.
1.4. Legally relevant declarations and notifications to be made to us by the purchaser following the conclusion of the contract (e.g. deadlines, notifications of defects, declarations on rescission or price reduction) must be made in writing to be effective.
1.5. These General Terms and Conditions shall apply only to entrepreneurs, legal entities under public law, or special funds under public law as defined in section 310, subsection. 1 of the German Civil Code (BGB).
2. Offer to Contract and Conclusion of Contract2.1. B.H. Mayer’s IdentitySign GmbH’s offers shall remain alterable and non-binding until acceptance by the purchaser and can therefore be cancelled by B.H. Mayer’s IdentitySign GmbH at any time until receipt of a written acceptance or until delivery of the article of sale.
2.2. Offers and purchase orders placed by the purchaser shall become legally binding upon confirmation in writing by B.H. Mayer’s IdentitySign GmbH. The purchaser shall be bound to his or her purchase order for 28 days. This period shall commence upon receipt of the purchase order by B.H. Mayer’s IdentitySign GmbH. If the goods are delivered by B.H. Mayer’s IdentitySign GmbH before the expiry of this period, the contract shall, by way of exception, become legally binding without written order confirmation.
2.3. The specifications concerning weight, measurements, price, performance etc. contained in catalogues, brochures, circulars, advertisements, illustrations, price lists and on the website are only legally binding to the extent that they are expressly included in the contract or must conform with them to serve the purpose contemplated in the contract.
3. Prices3.1. All prices shall be quoted »ex works« – unless confirmed otherwise in writing –, not including packaging, insurance, shipping, customs duties, value added tax, etc.
3.2. Should increases in the prices of materials, wage costs, shipping costs, taxes or other levies occur following the conclusion of the contract, B.H. Mayer’s IdentitySign GmbH shall be entitled to make a price adjustment corresponding to these factors, unless delivery is to be made within four months following the conclusion of the contract. Where such increase in costs occurs before purchase order acceptance, B.H. Mayer’s IdentitySign GmbH shall be entitled to adapt prices in a binding offer according to these factors, if the binding offer period and the delivery period together exceed four months.
4. Delivery and Delivery Period4.1. The scope of the delivery shall be determined by the specifications detailed by B.H. Mayer’s IdentitySign GmbH in the order confirmation, or, where no order confirmation is given, the information in B.H. Mayer’s IdentitySign GmbH‘s quotations.
4.2. B.H. Mayer’s IdentitySign GmbH shall only be entitled to partial deliveries if
- the partial delivery can be used by the purchaser to serve the purpose contemplated in the contract,
- the supply of the remaining ordered goods is guaranteed, and
- partial delivery causes no substantial additional effort or any additional costs for the purchaser, unless the purchaser agrees to bear such costs.
4.3. For the agreed delivery period to commence, the purchaser must have complied with his or her obligations in a timely and proper manner. Any delays which result from the customer’s failure to fulfil their obligation to cooperate shall extend the delivery periods accordingly. The defence of lack of performance of the contract is reserved.
4.4. B.H. Mayer’s IdentitySign GmbH shall not be liable for impossibility of delivery or for delays in delivery as far as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract which are beyond the sphere of influence of B.H. Mayer’s IdentitySign GmbH.
4.5. B H. Mayer’s IdentitySign GmbH is only obliged to take out transport insurance at the express request of the purchaser. The costs thereof shall be borne by the purchaser. Returned goods are only insured if the purchaser uses the same type of transport chosen by B.H. Mayer’s IdentitySign GmbH for shipment. Any return consignments require prior consent of B.H. Mayer’s IdentitySign GmbH.
4.6. Whether a delay in delivery has occurred or not shall be determined in accordance with statutory provisions. In any case, however, a reminder by the purchaser, setting an appropriate period of grace, shall be required. The purchaser shall be entitled to rescind the contract upon expiry of the aforesaid period of grace if they have not been notified that the goods are ready for delivery by the aforesaid date.
5. Payment5.1. The invoice shall be issued upon dispatch. In case the dispatch of goods ready for shipment cannot be effected due to reasons that fall within the purchaser’s sphere of risk, an invoice will nevertheless be issued and due for payment.
5.2. Unless agreed otherwise, the invoices shall be due for payment without deduction within 10 days following the invoice date. For purchase orders with a product value exceeding EUR 2500.00 (retail price) B.H. Mayer’s IdentitySign GmbH shall be entitled to charge an advance payment of 50 % before shipment and to proceed with the delivery subject to the condition that the purchaser effects such payment.
5.3. Where a purchase contract or contract for labour and materials provides for payment by way of the so-called »split purchase price« (i.e. B.H. Mayer’s IdentitySign GmbH permits the purchaser to pay for labour costs in cash and to cover the rest of the amount owed by supplying precious metals), the precious metals shall be supplied concurrently with the delivery of the goods. The precious metals shall be supplied at the customer’s cost and risk. The ownership of the precious metals shall be transferred to B.H. Mayer’s IdentitySign GmbH upon delivery. They shall be credited to the purchaser’s metal account.
5.4. Cash discount deductions shall only be permitted if expressly agreed.
5.5. First-time customers shall be supplied with the goods ordered against payment upon delivery or payment in advance.
5.6. B.H. Mayer’s IdentitySign GmbH accepts bills of exchange only by special agreement. Bills of exchange and cheques shall only be accepted in lieu of performance. Discount charges and other costs shall be borne by the purchaser.
5.7. The offsetting against counterclaims by the purchaser or the withholding of payments against such claims shall be permitted only insofar as the counterclaims are undisputed or have been legally upheld.
5.8. In the case of default in payment, B.H. Mayer’s IdentitySign GmbH shall be entitled to claim interest in the amount of 9 % over the relevant base interest rate, unless B.H. Mayer’s IdentitySign GmbH’s provides evidence that its bank charges higher debit interest rates than this, in which case B.H. Mayer’s IdentitySign GmbH is entitled to charge the interest rate charged.
5.9. B.H. Mayer’s IdentitySign GmbH is entitled only to make deliveries or provide services against prior payment or deposit if, following the conclusion of the contract, it becomes aware of circumstances which are of a nature to considerably reduce the client’s credit worthiness and which can compromise the payment of the vendor’s outstanding claims arising from the relevant contract by the purchaser.
6. Retention of Title6.1. The delivered goods shall remain property of B.H. Mayer’s IdentitySign GmbH pending full and complete payment of all present and future claims from the current business relationship, including all subsidiary claims and encashment of cheques and payment of bills of exchange (current account reservation). If B.H. Mayer’s IdentitySign GmbH assumes a liability in the interest of the purchaser by issuing a reversed or acceptor’s bill of exchange in a cheque/bill process, B.H. Mayer’s IdentitySign GmbH’s right to retention of title remains valid until such time as the purchaser has honoured the bill of exchange or has been released from liability arising out of the bill of exchange by B.H. Mayer’s IdentitySign GmbH.
6.2. The purchaser shall be obliged to adequately insure the goods subject to retention of title against theft, fire and other damage for the benefit of B.H. Mayer’s IdentitySign GmbH. The purchaser shall transfer all resulting insurance rights regarding goods subject to retention of title to B.H. Mayer’s IdentitySign GmbH in advance. B.H. Mayer’s IdentitySign GmbH shall accept the transfer.
6.3. Likewise, in the case of commission sales (§§ 383 ff. HGB) the commissioned goods provided to the purchaser shall remain property of B.H. Mayer’s IdentitySign GmbH until sold.
6.4. The purchaser shall be entitled to resell the goods that are subject to retention of title within the ordinary course of business; a pledge or assignment of the goods as security, however, shall only be permitted with the approval of B.H. Mayer’s IdentitySign GmbH.
6.5. The purchaser herewith surrenders his or her claims arising from the sale of the goods subject to retention of title to B.H. Mayer’s IdentitySign GmbH; B.H. Mayer’s IdentitySign GmbH accepts the assignment. Regardless of the assignation and the right of collection on the part of B.H. Mayer’s IdentitySign GmbH, the purchaser shall be entitled to collection for such time as he or she fulfils his or her obligations towards B.H. Mayer’s IdentitySign GmbH and does not suffer financial collapse.
6.6. On request, the purchaser shall provide B.H. Mayer’s IdentitySign GmbH with the information about the assigned claim necessary for collection and in particular provide B.H. Mayer’s IdentitySign GmbH with a list of debtors containing names and addresses, the amount of the claims and the date of invoicing, and inform the debtors of the assignment of claims.
6.7. Any processing and treatment of the goods subject to retention of title shall be performed by the purchaser for B.H. Mayer’s IdentitySign GmbH, without any obligations arising from this for B.H. Mayer’s IdentitySign GmbH. Should the goods be processed, blended or joined with other objects not owned by B.H. Mayer’s IdentitySign GmbH, B.H. Mayer’s IdentitySign GmbH shall be granted co-retained title to the newly created object on a pro rata basis reflecting the goods’ factor value vis-a-vis the other processed objects at the time of the processing, combination, mixing or blending. If the purchaser acquires sole ownership of the new product, the parties to the contract are in agreement that the purchaser will grant B.H. Mayer’s IdentitySign GmbH joint ownership of the new item on a pro rata basis reflecting the factor value of the processed, combined, blended or joined good subject to retention of title, and hold it in safe custody for B.H. Mayer’s IdentitySign GmbH free of charge.
6.8. If the goods subject to retention of title are resold together with other goods, whether without or after processing, combination or blending, the assignment as per above shall only apply to the extent of the factor value of the goods subject to retention of title resold alongside the other goods.
6.9. In the event of debt execution measures by third parties against the goods subject to retention of title or the claims assigned in advance, the purchaser shall inform B.H. Mayer’s IdentitySign GmbH immediately, handing over the documents required for an intervention.
6.10. The purchaser‘s authorisation to dispose of the goods subject to retention of title and for collection of assigned claims shall expire in the case of a delay in payments to be made by the purchaser, bill protests, check protests and financial collapse – especially if the purchaser files for bankruptcy. In this case, B.H. Mayer’s IdentitySign GmbH shall be entitled to take possession of the goods subject to retention of title and the purchaser shall be obliged to hand over the retained goods to B.H. Mayer’s IdentitySign GmbH without B.H. Mayer’s IdentitySign GmbH’s obligation to first declare rescission. The purchaser shall also be obliged to hand over the goods subject to retention of title, if he or she has connected them with other moveable objects and disassembling is required for delivery. The only instance this obligation does not apply occurs, if B.H. Mayer’s IdentitySign GmbH’s delivery item has become an essential part of a uniform object in terms of § 947 BGB. If the purchaser is a merchant, the repossession of the goods subject to retention of title shall only result in a rescission of contract if explicitly stated so by B.H. Mayer’s IdentitySign GmbH.
6.11. B.H. Mayer’s IdentitySign GmbH agrees to release according to its choice the securities it is entitled to according to the provisions above, which it may freely choose, on demand of the purchaser as far as their value exceeds the claim by 10 % or more.
7. Claims for Defects, Statute of Limitations7.1. For any claim for defects by the purchaser to be valid, the latter must have properly fulfilled his or her legal duty to examine the goods and to give notice of defects (§§ 377, 381 German Commercial Code (HGB)). Any defect discovered during examination or later shall be notified to B.H. Mayer’s IdentitySign GmbH in writing without delay. The notification shall be deemed to have occurred without delay if made within 3 working days; dispatch in due time shall suffice to meet the deadline. Irrespective of the abovementioned duties of examination and notification, the purchaser shall notify obvious defects (including false and shortfall in delivery) in writing no later than 3 working days from receipt of the goods; the timely dispatch of the report shall also be sufficient here in order to meet the deadline. Where the purchaser fails to examine the goods properly and/or fails to give any notification of defect, B.H. Mayer’s IdentitySign GmbH shall not be liable for any defects not notified.
7.2. In the case of colour specifications based on RAL, HKS or Pantone charts, colour deviations within the current state-of-the-art tolerance range shall not be considered material defects. In the case of colour specifications based on other systems, material defects shall not apply if the execution in the closest RAL, HKS or Pantone hue were within the established tolerance limits. Colour charts can be provided to the purchaser upon demand against payment. Measure and weight tolerances within the range of what is currently technically feasible shall not be deemed material defects.
7.3. In the event of material defects to delivered goods, the vendor shall, at its own discretion and within a reasonable period of time, be obliged and entitled to remedy the defect or replace the merchandise. In the event of failure, i.e. the impossibility, impracticality, refusal or unreasonable delay in reworking or replacement, the purchaser shall be entitled to rescind the contract or reduce the purchase price appropriately. There shall, however, be no right of rescission if the defect is negligible.
7.4. Material defect claims are subject to a limitation period of 12 months, calculated from delivery. Where dispatch is delayed without any fault of B.H. Mayer’s IdentitySign GmbH, liability shall expire no later than 18 months following readiness to deliver/dispatch. This shall not apply if longer periods are mandatory by law.
8. Other Liability8.1. Insofar as not otherwise laid down in these GTC, including the following provisions, B.H. Mayer’s IdentitySign GmbH shall be liable according to the relevant statutory regulations in case of a breach of contractual and non-contractual duties.
8.2. B.H. Mayer’s IdentitySign GmbH shall be liable to pay damages – irrespective of the legal grounds – in case of deliberate action or gross negligence within the scope of fault-based liability. In case of simple negligence, B.H. Mayer’s IdentitySign GmbH shall, subject to any lower liability standards prescribed by statutory provisions (e.g. based on due care in B.H. Mayer’s IdentitySign GmbH’s own matters), only be liable for:
- injury to life, body and health,
- any non-negligible violation of an essential contractual obligation (any obligation the compliance with which makes the performance of the contract possible in the first place and the compliance with which the contractual partner normally relies on and may normally rely on); in this event, however, B.H. Mayer’s IdentitySign GmbH’s liability shall be limited to compensation for the foreseeable typical damage.
8.3. The liability limitations set out in 8.2. shall also apply in the event of breaches of duty by or for the benefit of persons whose culpability we are required to assume responsibility for by law. They shall not apply if we conceal a defect with fraudulent intent or if we have given a guarantee for the characteristics of the item and in regard to claims of the purchaser under product liability law.
9. Protection of Copyright9.1. All drawings, drafts, samples, models, tools etc. are the intellectual property of B.H. Mayer’s IdentitySign GmbH and are protected by copyright. Imitations or replicas of any kind are thus inadmissible. Any culpable violation of copyright shall result in claims for damages by B.H. Mayer’s IdentitySign GmbH.
9.2. Tools and designs manufactured by or on behalf of B.H. Mayer’s IdentitySign GmbH shall remain property of B.H. Mayer’s IdentitySign GmbH upon completion of the order. If expenses are charged, they shall apply for the use of such tools and designs for the execution of the order. The tools and designs shall remain reserved for the purchaser.
10. Transfer of Risk10.1. Delivery shall be made »ex works« at the expense of the purchaser.
10.2. If the goods are sent to the purchaser at the latter’s request, the risk of a chance loss or a chance deterioration of the item for delivery shall pass to the customer when handed over to the forwarding agent, carrier or dispatch representative. This also applies if the delivery is not made from the place of performance and/or if B.H. Mayer’s IdentitySign GmbH carries the freight charges.
10.3. Provided that goods are ready for dispatch and the dispatch is delayed on grounds for which the purchaser is responsible, the risk shall pass to the purchaser at the point in time at which the dispatch readiness is communicated to the purchaser.
11. Advertising11.1. The respective purchaser shall permit B.H. Mayer’s IdentitySign GmbH the visual reproduction of his or her branded product for advertising purposes. This comprises both the depiction in catalogues and printed publications and presentation on the internet. B.H. Mayer’s IdentitySign GmbH shall furthermore be entitled to use specimen of the product for reference, presentation to third-parties and to provide as samples free of charge, unless otherwise contractually agreed.
12. Final Provisions12.1. These sale, payment and delivery conditions, as well as the privity of contract resulting from this contract between the purchaser and B.H. Mayer’s IdentitySign GmbH shall be governed by German law, excluding the UN Convention on the International Sale of Goods (CISG).
12.2. The place of performance for delivery and payment shall be Pforzheim.
12.3. Unless mandatory statutory provisions provide otherwise, the place of jurisdiction shall be the registered office of B.H. Mayer’s IdentitySign GmbH. B.H. Mayer’s IdentitySign GmbH shall also be entitled to bring legal action before the relevant courts for the purchaser’s registered office.
12.4. Subsidiary agreements, reservations, amendments or supplements to the concluded contract require written confirmation by B.H. Mayer’s IdentitySign GmbH in order to be effective.
