Conditions
General Conditions of Sale
1. Scope of Application
All supplies and the services associated with them shall be provided exclusively on the basis of these General Conditions of Sale. References made by Buyer to his general terms and conditions are hereby rejected. These General Conditions of Sale shall also apply to all future business. Deviation from these General Conditions of Sale require the explicit written approval of Mass Additive Manufacturing GmbH (hereinafter “Mass AM”).
2. Offer and Acceptance
Mass AM’s quotations are not binding offers but must be seen as invitations to Buyer to submit a binding offer. The contract is concluded by Buyer’s order (offer) and by Mass AM’s acceptance. In case the acceptance differs from the offer, such acceptance constitutes a new non-binding offer of Mass AM.
3. Product quality, specimens and samples; guarantees
3.1
Unless otherwise agreed, the quality of the goods and services is exclusively determined by Mass AM’s specifications. Identified uses under the European Chemicals Regulation REACH relevant for the goods shall neither represent an agreement on the corresponding contractual quality of the goods nor the designated use under this contract. Changes and/or additions to the quality or scope of the service after conclusion of the contract must be agreed in writing.
3.2
The properties of specimens and samples are binding only insofar as they have been explicitly agreed to define the quality of the goods and services.
3.3
Quality and shelf-life data as well as other data constitute a guarantee only if they have been agreed and designated as such.
3.4
Mass AM is entitled to use subcontractors for the performance of the services.
4. Advice
Any advice rendered by Mass AM is given to the best of its knowledge. Any advice and information with respect to suitability and application of the goods and services shall not relieve Buyer from undertaking his own investigations and tests.
5. Prices
5.1
If Mass AM’s prices or Mass AM’s terms of payment are generally altered between the date of contract and dispatch, Mass AM may apply the price or the terms of payment in effect on the date of dispatch. The prices for services refer to the provision of services at the designated location and do not include any applicable taxes and/or duties. In the event of a price increase, Buyer is entitled to withdraw from the contract by giving notice to Mass AM within 14 days after notification of the price increase.
5.2
If travel and accommodation costs are incurred in connection with the provision of services, Mass AM will invoice the Buyer for these costs unless otherwise agreed.
6. Delivery
Delivery shall be effected as agreed in the contract. General Commercial Terms shall be interpreted in accordance with the INCOTERMS in force on the date the contract is concluded.
7. Damage in Transit
Notice of claims arising out of damage in transit must be lodged by Buyer directly with the carrier within the period specified in the contract of carriage and Mass AM shall be provided with a copy thereof.
8. Compliance with legal requirements
Unless specifically agreed otherwise, Buyer is responsible for compliance with all laws and regulations regarding import, transport, storage and use of the goods. If the Buyer’s place of execution of services is abroad, the customer must inform Mass AM of the legal and regulatory provisions applicable there when concluding the contract.
9. Delay in Payment
9.1
Failure to pay the purchase price by the due date constitutes a fundamental breach of contractual obligations.
9.2
In the event of a default in payment by Buyer, Mass AM is entitled to charge interest on the amount outstanding at the rate of 9 percentage points above the base interest rate announced by the German Federal Bank at the time payment is due if the amount is invoiced in euros, or, if invoiced in any other currency, at the rate of 9 percentage points above the discount rate of the main banking institution of the country of the invoiced currency at the time the payment is due.
10. Buyer’s rights regarding defective goods and services
10.1
Mass AM must be notified of any defects that can be discovered during routine inspection within four weeks of receipt of the goods and services; other defects must be notified within four weeks after they are discovered. Notification must be in writing and must precisely describe the nature and extent of the defects.
10.2
If the goods are defective and Buyer has duly notified Mass AM in accordance with item 10.1, Buyer has its statutory rights, provided that:
a) Mass AM has the right to choose whether to remedy the defect or supply Buyer with non defective replacement goods.
b) Mass AM may make two attempts according to lit. a) above. Should these fail or cause unreasonable inconvenience to Buyer, Buyer may either withdraw from the contract or demand a reduction in the purchase price.
c) With regard to claims for compensation and reimbursement of expenses on a defect, item 11 applies.
10.3
If performance-related services are defective and the Buyer has duly notified Mass AM of this in accordance with Section 10.1, Buyer has its statutory rights, if the Buyer was not aware of the defect at the time of acceptance of the service provided that:
a) Mass AM has the right to remedy the defect or may carry out new services at its own discretion (subsequent performance).
b) Mass AM may make two attempts according to lit. a) above. Should these fail or cause unreasonable inconvenience to Buyer, Buyer may either withdraw from the contract or demand a reduction in the purchase price.
c) With regard to claims for compensation and reimbursement of expenses on a defect, item 11 applies.
10.4
Buyer’s claims for defective goods and services are subject to a period of limitation of one year from receipt of the goods or from the acceptance of performance-related services. In the following cases the legal periods of limitation apply instead of the one-year period:
a) liability for willful misconduct,
b) fraudulent concealment of a defect,
c) claims relating to defective goods used in buildings,
d) claims for bodily harm caused by Mass AM’s negligence or that of its representatives,
e) claims for other damage caused by gross negligence of Mass AM,
f) Buyer’s recourse claims under consumer goods law.
11. Liability
11.1
Mass AM shall be generally liable for damages in accordance with the law. In the event of simple negligent violation of fundamental obligations, Mass AM’s liability is limited to foreseeable losses. No liability applies for simple negligent breaches of non-fundamental duties, except for damage to life, body, or health.
11.2
Mass AM is not liable for performance failures caused by compliance with REACH regulations triggered by Buyer.
11.3
The liability limitations in 11.1 and 11.2 also apply to representatives and agents of Mass AM.
12. Set off
Buyer may only set off claims from Mass AM against an undisputed or adjudicated counterclaim.
13. Security
If there are doubts about Buyer’s ability to pay, Mass AM may revoke credit terms and request sufficient security for future deliveries.
14. Retention of Title
14.1
Simple Retention of Title
Title to the goods delivered and the rights to Mass AM’s services shall not pass to Buyer before the purchase price has been paid in full. Mass AM reserves copyright and other intellectual property rights to plans, drawings and other documents that Mass AM makes available to the Buyer as part of the performance of the contract. Unless otherwise agreed, the Buyer receives a non-exclusive right of use. They may only be used and/or exploited by the Buyer for the contractual purposes. If they are made available to the Buyer at the time of submission of the offer, they must be returned to Mass AM upon request if the contract is not concluded.
14.2
Expanded Retention of Title
In case Buyer has paid the purchase price for the goods delivered or services performed but not yet completely fulfilled other debts arising out of his business relationship with Mass AM, Mass AM retains, in addition, title to the goods and title to the services performed and delivered until all such outstanding debts have been completely paid.
14.3
Retention of Title with processing clause
In the event Buyer processes the goods delivered by Mass AM, Mass AM shall be considered manufacturer and shall directly acquire sole title to the newly produced goods. If the processing involves other materials, Mass AM shall directly acquire joint title to the newly produced goods in the proportion of the invoice value of the goods delivered by Mass AM to the invoice value of the other materials.
14.4
Retention of Title with combination and blending clause
If the goods delivered by Mass AM are combined or blended with material owned by Buyer, which has to be considered the main material, it is deemed to be agreed that Buyer transfers to Mass AM the joint title to such main material in the proportion of the invoice value of the goods delivered by Mass AM to the invoice value (or, if the invoice value cannot be determined, to the market value) of the main material. Buyer holds in custody for Mass AM any sole or joint ownership originating therefrom at no expense for Mass AM.
14.5
Extended Retention of Title with blanket assignment
Buyer shall have in the ordinary course of business free disposal of the goods owned by Mass AM, provided that Buyer meets its obligations under the business relationship with Mass AM in due time. Buyer already assigns to Mass AM all claims in connection with the sale of goods to which Mass AM reserves the right of retention of title when concluding the sales agreement with Mass AM; should Mass AM have acquired joint title in case of processing, combination or blending, such assignment to Mass AM takes place in the proportion of the value of the goods delivered by Mass AM with retention of title to the value of the goods of third parties with retention of title. Buyer already assigns to Mass AM any future confirmed balance claims under current account agreements in the amount of the outstanding claims of Mass AM when concluding the sales agreement with Mass AM.
14.6
IP – Disclaimer for services
Buyer acknowledges that intellectual property of any nature might be generated or conceived by Mass AM in the performance of services and the creation of service results and agrees that all intellectual property, which is conceived or generated during the process of performance of services, and all rights thereto are the sole property of Mass AM or its affiliates. Original part material, geometries and requirements provided by Buyer shall remain the property of the Buyer.
14.7
Right of Access/Disclosure
At the request of Mass AM, Buyer shall provide all necessary information on the inventory of goods owned by Mass AM and on the claims assigned to Mass AM. Furthermore, at the request of Mass AM, Buyer shall identify on the packaging Mass AM’s title to the goods and shall notify its customers of the assignment of the claims to Mass AM.
14.8
Late Payment
In the event of late payment by Buyer, Mass AM is entitled, without rescinding the sales and/or services agreement and without granting a period of grace, to demand the temporary surrender of the goods owned by Mass AM at Buyer’s expense.
14.9
Partial Waiver clause
Should the value of the securities exceed Mass AM’s claims by more than 15%, Mass AM waives securities to this extent.
15. Force Majeure
To the extent any incident or circumstance beyond Mass AM’s control (including natural occurrences, war, strikes, lock-outs, shortages of raw materials and energy, obstruction of transportation, breakdown of manufacturing equipment, fire, explosion, acts of government), reduces the availability of services or goods from the plant from which Mass AM receives the goods such that Mass AM cannot fulfill its obligations under this contract (taking into account on a pro rata basis other supply obligations), Mass AM shall (i) be relieved from its obligations under this contract to the extent it is prevented from performing such obligations and (ii) have no obligation to procure goods or services or personnel for such services from other sources. The first sentence also applies if such incident or circumstance renders the contractual performance commercially useless for Mass AM over a long period or occurs with suppliers of Mass AM. If the aforementioned occurrences last for a period of more than 3 months, Mass AM is entitled to withdraw from the contract without the Buyer having any right to compensation.
16. Place of payment
Regardless of the place of delivery of goods or documents or services, the place of payment shall be Mass AM’s place of business.
17. Communication
Any notice or other communication required to be received by a party is only effective at the moment it reaches this party. If a time limit has to be observed, the notice or other communication has to reach the recipient party within such time limit.
18. Jurisdiction
Any dispute arising out of or in connection with this contract shall be heard, at Mass AM’s option, at the court having jurisdiction over Mass AM’s principal place of business or Buyer’s principal place of business.
19. Applicable law
The contractual relationship shall be governed by the law applicable at the place of Mass AM’s head office, including the provisions of the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG), irrespective of whether Buyer’s place of business is in a CISG state or not.
20. Contract Language
If these General Conditions of Sale are made known to Buyer in another language, in addition to the language in which the sales contract has been concluded, this is merely done for Buyer’s convenience. In case of differences of interpretation, the version in the Contract Language shall be binding.