General Terms and Conditions
General Terms and Conditions of Contract, Sale and Delivery of myStandards GmbH
in the version of September 1, 2019
Article 1 Validity
(1.1) These General Terms and Conditions of Contract, Delivery and Service (AGB) shall exclusively apply to entrepreneurs in accordance with Article 14 of the German Civil Code (BGB), i.e. natural or legal persons that acquire the goods or services for commercial or professional use.
(1.2) The following terms and conditions (AGB) shall exclusively apply to the business relationship with our customers, also to inquiries and advisory services. Deviating terms and conditions of the purchaser, orderer and/or a third party – referred to hereinafter as „customer/s“ – shall apply only, if and to the extent acknowledged by us explicitly in writing. Our nonresponse to such deviating terms and conditions shall not be construed as recognition or approval of such terms, not in the case future contracts, either. Our AGB shall apply instead of possible purchase conditions of the customer, even if the acceptance of an order stipulates, according to such purchase conditions, their unconditional acceptance or if we make deliveries, after the customer has pointed out the validity of his General Purchase Conditions, unless we have explicitly waived the validity of our own AGB. This exclusion of the customer’s General Terms and Conditions shall apply, even if these General Terms and Conditions do not set forth specific regulations concerning individual items to be regulated. The customer explicitly acknowledges, when accepting our order confirmation, that he is waiving any demurrer derived from his purchase conditions.
(1.3) If claims for damages are quoted below, they also refer to the reimbursement of futile expenses pursuant to Article 284 BGB accordingly.
Article 2 Inquiries, advice, properties of the products and services
(2.1) Information and explanations about our products and services shall exclusively be provided by us (such as in product information sheets etc.) or by our sales agents on the basis of the experience gained so far. They do not constitute a warranty for properties of our products. The values stated herein are deemed to be average values of our products.
In the absence of any other explicit agreement, we cannot be held liable if our products and/or services are not suitable for the purpose intended by the customer. Details given about the products’ properties shall not be binding. (2.2) We shall only assume and accept a duty to provide advice on the basis of an explicit, separate and written consulting contract.
(2.3) Any warranty is deemed to have only been granted on our part, if we have made reference to a property and/or a service success in writing as „legally guaranteed“.
Article 3 Specimen copies, documents provided and data/samples
(3.1) The properties of samples or specimen copies, respectively, shall only become an integral part of the contract, if explicitly agreed so. The customer shall not be entitled to utilize and pass on samples.
If we, on our part, effect a purchase transaction on the basis of a trade sample, deviations therefrom shall be admissible when the goods are delivered. Such deviations shall not give rise to complaints and claims against us, if they are customary in the trade and as long as the delivered goods meet possibly agreed specifications, unless something else has been agreed.
(3.2) We shall retain all rights of a proprietary and copyright nature in the samples, images and illustrations, drawings, data and other documents about our products and services which we have made known or provided to our customers. The customer shall not make the samples, data and/or documents referred to in the foregoing sentence available to any third parties, unless we have given our explicit written consent. These materials shall be returned to us upon request, if an order based on them is not placed with us.
Article 4 Conclusion of contract, scope of supply and services, procurement risk and warranty
(4.1) Our offers are subject to change and non-binding, unless they are explicitly marked as binding or contain explicitly binding commitments, or their binding character has explicitly been agreed otherwise. Our offers are invitations to treat.
The customer shall be bound to his order, this being a contract request, for 14 calendar days – 5 working days in the case of electronic orders (submitted at our registered office in each case) –, after we have received the order, unless the customer must expect a later acceptance on our part under ordinary circumstances (Article 147 BGB). This shall also apply to repeat and follow-up orders of the customer.
(4.2) A contract shall only become effective – also in ongoing business transactions –, after we have confirmed the customer’s order in writing or in text form (i.e. also by fax or e-mail).
In the event of making a delivery or rendering a service within the customer’s commitment period that is subject of the offer, our order confirmation can also be replaced by the delivery itself, in which case the dispatch of the delivery shall be decisive.
(4.3) The customer shall notify us, well in time and in writing before the contract is concluded, of any specific requirements he may have concerning our products. However, such notices shall not extend our contractual obligations and liability.
In the absence of any other explicit agreement, we shall only be obligated to deliver the ordered products in the form of goods that are marketable and approvable in the Federal Republic of Germany.
(4.4) We shall only be obligated to make deliveries from our own stock of goods (obligation in kind).
(4.5) The assumption of a procurement risk or of a procurement guarantee shall not be based alone on our obligation to deliver an object defined solely by its class.
(4.6) We shall only assume a procurement risk in accordance with Article 276 BGB by virtue of a written separate agreement, with the explicit wording „übernehmen wir das Beschaffungsrisiko…” (= we shall assume the procurement risk...“) being stated.
(4.7) If the acceptance of the products or their dispatch is delayed for reasons for which the customer is responsible, we shall be entitled to demand, at our own discretion, immediate payment, or withdrawal from contract, or refusal of performance and damages instead of the entire service, after grace period of 14 days has been set and expired. This deadline must be set in writing or in text form and we are not required the make reference to our rights arising from this clause. In the event of claiming damages as stipulated above, the damages payable shall amount to 20 % of the net delivery price. The right of both contracting parties to prove a higher or lesser damage, or that no damage has been incurred at all, remains reserved. This provision does not imply a reversal of the burden of proof.
(4.8) We shall be entitled to make excess or short deliveries amounting to up to 5 % of the agreed delivery quantity. We shall also be entitled to supply products with deviations in quality, dimension, weight, color and equipment that are customary in the trade. Such goods are deemed to be in line with the contract.
Article 5 Delivery, place of performance, delivery period, delayed delivery and packaging
(5.1) Binding delivery periods and deadlines shall be agreed explicitly and in writing. If non-binding or approximate delivery periods and deadlines are stated (as indicated by words like approximately, about etc.), we shall do our best to meet these delivery periods and deadlines.
(5.2) Delivery and/or service deadlines shall begin, when the customer has received our order confirmation, in the absence of such order confirmation within 5 calendar days after we have received the customer’s order, however not before all details concerning the execution of the order have been clarified and all other prerequisites to be satisfied by the customer have been met in full, which concerns especially agreed down-payments or securities and necessary acts of participation. The same shall apply to delivery periods and service deadlines. If the customer requests changes after the order has been placed, a new reasonable delivery and/or service period shall commence, when we have confirmed the changes.
(5.3) If we are in default of delivery, the customer shall first of all set us a reasonable grace period of at least 14 days – if not unreasonable – to perform the service. If this period expires unsuccessfully, the customer shall be entitled to claims for damages resulting from a breach of duty – for whatever reason – only in accordance with the provisions set forth in Article 11 hereof.
(5.4) If the customer suffers any damage due to our delayed delivery, he shall be entitled to demand compensation for delay, with all other claims being excluded. This compensation for delay shall amount to 0.5 % of the net price of the delayed delivery and/or service as a whole for each commenced week of delay, not exceeding, however, 5 % of the net price for the entire delivery and/or the entire service that has not been made or performed in time or in line with the contract as a consequence of the delay. Any further compensation for the damage suffered as a result of the delay shall be excluded, which does not apply in cases of willful, grossly negligent or fraudulent acts on our part, to claims due to injury to life, limb and health, in the event of a fixed delivery date agreed in a legal sense and of an assumption of a service guarantee or of a procurement risk pursuant to Article 276 BGB as well as in the case of a mandatory liability.
Article 6 Force Majeure
(6.1) We shall inform our customer well in time in writing or in text form, if - for reasons beyond our control - we do not receive goods or services in time, correctly as specified or not at all from our sub-suppliers which are required to make our deliveries or perform our services in line with the contract, although we placed proper purchase orders sufficient in quality and quantity according to our delivery or service agreement with the customer (congruent coverage transactions) before concluding the contract with the customer, or if events of Force Majeure with a considerable duration occur (i.e. lasting longer than 14 calendar days). In such case we shall be entitled to postpone the delivery as long as the impediment lasts or to cancel, wholly or partly, the non-executed part of the contract, provided we have complied with the above duty to inform and have not assumed the procurement risk or a delivery guarantee. Events of Force Majeure are strikes, lockouts, official interventions, shortages of energy and raw materials, transportation bottlenecks or impediments and operational hindrances through no fault on our part – such as caused by fire, water and machinery damage – as well as all and any impediments beyond our control when being looked at objectively.
(6.2) If a delivery period or deadline has been agreed with binding effect and is exceeded due to events referred to in subsection 6.1 hereof, the customer shall be entitled to withdraw from the contract part that has not been executed as yet, after a reasonable grace period has unsuccessfully expired. Any further claims of the customer, especially those for damages, shall be excluded in this case.
(6.3) The above provision set forth in subsection 6.2 shall apply accordingly, if the customer cannot objectively and reasonably be expected to continue the contract for the reasons referred to in subsection 6.1 hereof, even if no fixed delivery deadline has been contractually agreed.
Article 7 Dispatch and transfer of risk, acceptance
(7.1) Unless something else has been agreed in writing, the delivery shall be based on the Incoterms 2010. In the event of an obligation to collect and of Carriage Paid To (CPT), the goods shall be shipped at the customer’s risk and expense.
(7.2) In the absence of any other agreement, we can choose the shipping route and the means of transports, if the dispatch of the goods has been agreed. We shall, however, make every effort to give due consideration to the customer’s requests as regards the mode of shipment and the shipping route, although the customer cannot assert a claim in this respect. Any extra costs incurred in this respect – also in the event of freight-free delivery being agreed – the shipping and insurance costs shall be borne by the customer. If the shipment is delayed beyond the agreed deadline at the customer’s request or due to his fault, we shall store the goods at the customer’s risk and expense. When storing the goods in this way, the customer shall pay a flat charge of 1 % of the goods’ net price for each week of storage. The right of both contracting parties to prove higher or lesser costs, or the right of the customer that no costs have been incurred at all, remains reserved. In such case, the notice of the goods’ readiness for dispatch is tantamount to the dispatch itself.
(7.3) The risk of accidental loss or deterioration of the goods shall pass to the customer, if an obligation to collect has been agreed, when the products to be supplied are handed over to the customer and when the goods are handed over to the carrier, the forwarding agent or any other shipping company commissioned with the transport of the goods, if an obligation to dispatch the goods has been agreed. However, the risk shall pass to the customer in any case once the goods have left our factory, our warehouse or our branch, or the manufacturer’s plant, at the latest, unless an obligation to deliver to the customer’s place has been agreed. The foregoing shall also apply to partial deliveries.
(7.4) If the delivery is delayed as a result of a total or partial default in payment on the part of the customer, so that we exercise our right of retention, or if the delivery is delayed for any other reason due to the customer’s fault, the risk shall pass to the customer on the date, when he has been notified of the goods’ readiness for dispatch and/or of the readiness to render the service, at the latest.
Article 8 Notice of defects, breach of duty due to quality defects, warranty
(8.1) Visible quality defects shall be reported by the customer without any delay, but not later than 12 days after the collection of the goods ex works or ex warehouse, or otherwise after receipt of the delivery, while hidden quality defects shall be reported immediately after their identification, but within the warranty limitation period pursuant to subsection 8.2 hereof, at the latest. A complaint not submitted on time shall exclude any claim of the customer on the ground of a breach of duty due to quality defects. This shall not apply in cases of willful, grossly negligent or fraudulent acts on our part, to claims due to injury to life, limb and health, if freedom from defects has been warranted, if a procurement risk pursuant to Article 276 BGB has been assumed or if any general mandatory liability exists. This shall not affect the special statutory provisions concerning the delivery of the goods to a consumer (supplier’s recourse claims - Articles 478 & 479 BGB). (8.2) We shall grant a warranty for quality defects – unless something else has explicitly been agreed in writing or in text form – for a period of 12 months, beginning on the day of the risk transfer (see subsection 7.3 hereof), in the event of the customer refusing acceptance from the date of the notice that the goods can be accepted. This shall not apply to claims for damages arising from a warranty, to an assumption of a procurement risk in accordance with Article 276 BGB, to claims for injury to life, limb and health, in cases of willful, grossly negligent or fraudulent acts on our part, or if a longer limitation period is stipulated as in Articles 478 & 479 BGB (recourse claims in the supply chain) or otherwise by law. This shall neither affect Article 305b BGB (priority of individual terms agreed verbally, in text form or in writing) nor imply a reversal of the burden of proof.
(8.3) Our warranty (claims arising from a breach of duty due to poor workmanship in the event of quality defects) and the liability arising therefrom shall be excluded, if defects and damage associated with them are not verifiably based on defective material, imperfect design, poor workmanship or faulty base materials or, where applicable, inadequate usage instructions. The warranty and the liability arising therefrom due to breach of duty because of poor workmanship shall be excluded for the consequences of improper use, of unsuitable storage conditions and of chemical, electro-magnetic, mechanical or electrolytic impacts that do not conform to the average standard effects specified by us or by the manufacturer, as set forth in our product description, or in another product specification deviating therefrom as agreed, or in the relevant product-specific data sheet. The foregoing shall not apply in cases of willful, grossly negligent or fraudulent acts on our part, to claims due to injury to life, limb and health, if a warranty has been granted, if a procurement risk has been assumed pursuant to Article 276 BGB or if a mandatory liability exists.
(8.4) We shall not grant any warranty pursuant to Articles 478 & 479 BGB (recourse claims in the supply chain – supplier’s recourse claims), if the customer has processed or modified the products supplied by us in line with the contract in such a way that does not conform to the products’ intended use as contractually agreed.
(8.5) The recognition of a breach of duty in the form of quality defects shall always require the written form.
Article 9 Prices, terms of payment, pleas of uncertainty
(9.1) All prices are quoted ex works or ex warehouse and always in EURO net, excluding sea or air transport packaging, freight, postal charges and insurance costs, provided a transport insurance has been agreed, with the sales tax (VAT) at the currently valid rate to be borne by the customer (if statutorily owed), with possible country-specific charges due on deliveries to other countries but the Federal Republic of Germany as well as customs duties, other fees and public dues for the delivery/service being added.
(9.2) Other payment methods, except cash payments or bank transfers, require a separate agreement between us and the customer; this shall especially apply to the issue of checks and bills of exchange.
(9.3) If bank transfers have been agreed as method of payment, the date when we received the money or when it has been credited to our bank account, or to an account of a bank specified by us, is deemed to be the payment date.
(9.4) The purchase price shall become due, either when the goods have been delivered to the customer’s place as agreed, when the notice of the goods’ readiness for dispatch has been issued, if an obligation to collect has been agreed, or when the goods have been handed over to the forwarding agent, if an obligation to dispatch the goods has been agreed.
(9.5) If, in exceptional cases, we assume the freight costs as contractually agreed, the customer shall bear any extra costs arising from an increase in freight rates that become effective after the contract has been concluded.
(9.6) Default interest amounting to 9 percent points above the base rate of the European Central Bank charged on the due date of the payment claim shall be due with the beginning of the delay. The right to claim damages in excess of it remains reserved.
(9.7) There shall be a right of retention or a setoff right on the part of the customer only with regard to counter claims that are undisputed or established in law.
(9.8) The customer can only exercise a right of retention, if his counter claim is based on the contractual relationship.
(9.9) Incoming payments shall be used, first of all, to settle costs, then for the interest due and finally for settling the principal claims according to their age.
Article 10 Retention of title, garnishments
(10.1) We shall retain the title of ownership to all goods supplied by us (referred to hereinafter in total as „goods subject to reservation of title“), until all our claims arising from the business relationship with the customer have been settled, including any claims created in the future from contracts concluded at a later time. This shall also apply to a balance in our favor, if individual or all claims are merged in one running account (current account) and the account is balanced.
(10.2) The customer shall sufficiently insure the goods that are subject to reservation of title, especially against fire and theft. Claims against the insurer arising from damage to goods that are subject to reservation of title are hereby assigned to us in the amount of the value of the goods concerned.
(10.3) The customer shall be entitled to re-sell the products delivered to him in the normal course of business, while any other forms of disposal, especially pledging or transferring the title as security, are not permitted. If the goods that are subject to reservation of title are not immediately paid for by the acquirer, when being sold to a third party, the customer shall sell them with the retention of title only. The right to re-sell goods that are subject to reservation of title shall be forfeited immediately, if the customer suspends his payments or he is in default of payment with us.
(10.4) The customer shall hereby assign to us all and any claims, including securities and ancillary rights, arising to him from, or in connection with, the sale of goods that are subject to reservation of title against the end user or any such third party. He must not conclude any agreement with his purchasers that would exclude or affect our rights in any way or that would nullify the assignment of future claims. If goods that are subject to reservation of title are sold together with other items, the claim against the third party concerned is deemed to have been assigned in an amount equal to the delivery price agreed between us and the customer, unless amounts referring to individual goods can be taken from the invoice.
(10.5) The customer shall be entitled to collect receivables and claims assigned to us, until this permission is revoked, which may be admissible at any time. However, we shall revoke this collection authorization in the event of a legitimate interest only, which exists, as an example, if the customer does not meet his payment obligations properly or if he is in default of payment. He shall, at our request, provide full information and make available all documents that are required to collect the claims and receivables assigned to us and inform his purchasers immediately about the assignment, unless we do this ourselves.
(10.6) If the customer includes claims and receivables arising from the re-sale of goods that are subject to reservation of title in a current account relationship with his purchasers, he already assigns hereby to us an amount of the audited final balance in his favor that corresponds to the total amount arising from the re-sale of our goods which are subject to reservation of title and that has been allocated to the current account relationship.
(10.7) If the customer has already assigned claims and receivables arising from the re-sale of products supplied, or to be supplied, by us to a third party, especially due to genuine or non-genuine factoring, or if he has concluded other agreements which may affect our current or future security rights pursuant to this Article 10, he shall notify us immediately. In the event of non-genuine factoring, we shall be entitled to withdraw from the contract and to demand the return of products already delivered. The same shall apply in the event of genuine factoring, if the customer cannot freely dispose of the purchase price of the claim as set forth in the contract with the factor.
(10.8) If the customer acts contrary to the contract, especially when being in default of payment, we shall be entitled to claim back all goods that are subject to reservation of title after our withdrawal from contract. In such case, the customer shall immediately return the goods and assume the relevant shipping costs. Claiming back the goods that are subject to reservation of title is tantamount to a withdrawal from contract. In the event of a withdrawal from contract, we shall be entitled to dispose of the goods that are subject to reservation of title. The proceeds thereof shall be set off against the value of the claims arising from the business relationship and owed by the customer, with a reasonable amount being deducted for the costs incurred. We shall have the right to access the customer’s business premises at any time during normal business hours, in order to ascertain the stock of goods delivered by us. The customer shall immediately notify us in writing about all attempts of third parties to gain access to the goods that are subject to reservation of title or to claims assigned to us.
(10.9) If the value of the securities existing in our favor according to the foregoing provisions exceeds the secured claims in their entirety by more than 10 %, we shall, at the customer’s request, release securities at our own discretion.
(10.10) Goods subject to reservation of title shall be processed on our behalf as manufacturer, although without any obligation on our part. If the goods which are subject to reservation of title are processed together, or inseparably combined, with other items that do not belong to us, we shall acquire the co-ownership in the new product in the ratio of the net amount invoiced for our goods to the net amounts invoiced for the other processed or combined items. If our goods are combined or blended with other movable items into a single entity which must be considered as the main product, the customer hereby assigns to us already the co-ownership in the product in the same ratio. The customer shall safekeep the property or the co-ownership for us free of charge. The ownership rights arising therefrom are deemed to be goods subject to reservation of title. The customer shall, at our request and at any time, provide information required to pursue our ownership or co-ownerships rights.
(10.11) In the event of garnishments or other third-party interventions, the customer shall immediately inform us in writing, so as to enable us to institute proceedings pursuant to Article 771 of the [German] Code of Civil Procedure (ZPO). If the third party is not in a position to refund the court fees and the out-of-court costs of a lawsuit pursuant to Article 771 ZPO to us, the customer shall be liable for the expense incurred to us.
Article 11 Exclusion and limitation of liability
(11.1) Subject to the exceptions below, we shall not be liable for any breach of duty arising from the debtor relationship, especially not for any claims of the customer for damages or for the reimbursement of expenses for whatever legal reason.
(11.2) The exclusion of liability pursuant to subsection 11.1 hereof shall neither apply, if there is a mandatory liability, nor to
- any willful or grossly negligent breach of duty on one’s own part and on the part of legal representatives or vicarious agents;
- any breach of essential contractual duties; „essential contractual duties“ being such obligations which protect the customer’s major legal positions arising from the contract that the contract is expected to grant him in accordance with its content and purpose; essential are also those contractual duties, the proper performance of which will make it possible to execute the contract in the first place and on their compliance the customer has always relied and can also rely so in the future;
- claims due to injury to life, limb and health, also against legal representatives or vicarious agents;
- cases of default, if a fixed delivery and/or service deadline has been agreed;
- cases, where we have warranted the quality of our goods or the success of a service or when we have assumed a procurement risk in accordance with Article 276 BGB;
- the liability according to Product Liability Act or any other cases of mandatory liability.
(11.3) If we or our vicarious agents are liable for minor negligence only and no case exists as referred to in the fourth, fifth and sixth indent of subsection 11.2 above, our liability shall be restricted to the contract-typical and predictable damage, even if essential contractual duties have been violated.
(11.4) Our liability shall be limited to 3.000.000 € for each individual case of damage. This shall not apply, if we are found to have acted willfully, fraudulently or with gross negligence, to claims for injury to life, limb and health as well as to claims based on a tortious act or an explicitly granted warranty or the assumption of a procurement risk pursuant to Article 276 BGB, or to cases of mandatory liability involving higher sums. Any further liability shall be excluded.
(11.5) The exclusion or limitation of liability in accordance with subsections 11.1 - 11.4 and 11.6 shall be applicable to the same extent in favor of our corporate bodies, of our managing and other staff and of other vicarious agents as well as in favor of our subcontractors.
(11.6) Claims of the customer for damages arising from this contractual relationship can only be asserted within a limitation period of one year from the beginning of the statutory limitation period. This shall not apply, if we are found to have acted willfully, fraudulently or with gross negligence, to claims for injury to life, limb and health as well as to claims based on a tortious act or an explicitly granted warranty or the assumption of a procurement risk pursuant to Article 276 BGB, or to cases stipulating a longer limitation period by law.
Article 12 Place of performance, place of jurisdiction, governing law
(12.1) The place of performance for all contractual obligations shall be the registered office of our company, except in cases, when the obligation to deliver to the customer’s place or another arrangement has been agreed.
(12.2) The exclusive place of jurisdiction for all disputes shall be that of our company’s registered office, provided the customer is a merchant in accordance with the [German] Commercial Code. For the sake of clarity, this rule of jurisdiction shall also apply to all matters between us and the customer that may result in extra-contractual claims in accordance with Regulation (EC) 864/2007. However, we shall also be entitled to sue the customer at his general place of jurisdiction.
(12.3) The law of the Federal Republic of Germany shall exclusively apply to all legal relationships between the customer and us, with the United Nations Convention on Contracts for the International Sale of Goods (CISG) being excluded. For the sake of clarity, this choice of law is also intended to be in compliance with Article 14, subsection 1b, of Regulation (EC) 864/2007 and shall thus apply also to extra-contractual claims in accordance with this regulation. If it proves to be unavoidable, in individual cases, to apply foreign law, our AGB shall be construed and interpreted in such a way that the commercial purpose intended with our General Terms and Conditions can be maintained to the largest possible extent.
Article 13 Controls, inspections, product approval, import regulations
(13.1) In the absence of deviating contractual agreements with the customer, the goods delivered are meant to be initially marketed in the Federal Republic of Germany; if delivered to a place outside the Federal Republic of Germany, they are supposed to be shipped to the country that has been agreed as first country of delivery.
(13.2) The export of certain goods by (a foreign) customer may be subject to a permit, because of their type, intended use or final destination, to name but a few examples. The customer shall check these regulations himself and strictly comply with the relevant export and embargo regulations for these goods, especially those applying in the European Union (EU), in Germany or in other EU member states as well as, where applicable, in the US, in Asian or Arab countries and in all other third countries concerned, if he exports the products supplied by us or has them exported by a third party.
Besides, the customer shall also ensure that he obtains the required national product approvals or product registrations, before goods are shipped to another country but the one agreed with us as the first country of delivery. Moreover, he shall also ensure that the import regulations are complied with and that the conditions imposed by the national law of the country concerned as regards the provision of user information in the country’s native language are satisfied.
(13.3) The customer shall especially examine, ensure and prove at our request that
- the products delivered to him are not intended be used for a purpose relevant to defense, nuclear technology or military armament;
- no companies and persons are supplied that are named in relevant negative lists for export controls;
- no products delivered by us are supplied to military recipients;
- no recipients are supplied which are known to have infringed other export control regulations;
- all early warnings of the competent German and national authorities of the delivery’s country of origin have been observed.
(13.4) Goods delivered by us must only be accessed and used, if the customer has carried out the above mentioned checks, controls and security measures, as otherwise the customer must refrain from exporting the goods and we shall be exempt from the duty to perform.
(13.5) The customer shall, when passing on goods delivered by us to a third party, commit this recipient of the goods in the same way as stipulated in subsections 13.1 - 13.4 hereof and instruct this third party about the necessity to comply with such legal regulations. (13.6) The customer shall ensure, at his own expense, that all national import regulations of the first country of delivery with regard to the goods to be supplied by us are complied with, if the delivery has been agreed to be made outside the Federal Republic of Germany.
(13.7) The customer shall indemnify us for all and any damage and expenses arising from a culpable infringement of the duties pursuant to subsections 13.1 - 13.6 hereof.
Article 14 Incoterms, written form, separability
(14.1) As long as trade clauses according to the International Commercial Terms (Incoterms) have been agreed, the Incoterms 2010 shall apply.
(14.2) All collateral and other agreements, assurances as well as contract modifications and amendments require the written form. This shall also apply to a waiver of this written form requirement. This shall not affect the priority of individually agreed terms in written, text or verbal form (Article 305b BGB).
(14.3) Should any provision of this contract be or become, wholly or partly, ineffective, void or unenforceable due to the provisions on General Terms and Conditions set forth in Articles 305 - 310 BGB, the statutory regulations shall apply. Should a current or future provision of the contract be or become, wholly or partly, ineffective, void or unenforceable not because of the provisions on General Terms and Conditions pursuant to Articles 305 - 310 BGB, the validity of the remaining provisions hereof shall in no way be affected, unless the execution of the contract would constitute unreasonable hardship for one of the contracting parties, also by taking into account the following regulations. This shall apply accordingly, if a loophole is identified after the contract has been concluded. Contrary to a possible principle, according to which a separability clause is to merely reverse the burden of proof, the effectiveness of the remaining contractual provisions shall be maintained under any circumstances and Article 139 BGB shall thus be waived in its entirety. The contracting parties shall replace the provision that is ineffective, void or unenforceable for other reasons but the provisions on General Terms and Conditions pursuant to Articles 305 - 310 BGB and amend the loophole identified by an effective provision that conforms in its legal and commercial content to the void or unenforceable one as well as to the overall purpose of the contract. Article 139 BGB (partial invalidity) shall explicitly be excluded. If a provision’s invalidity is based on a measure of performance or time (deadline) determined therein, this provision shall be agreed with a legally admissible measure that comes closest to the original one.