CREAVAC-Creative
Vakuumbeschichtung GmbH
Löbtauer Straße 65-71
01159 Dresden
Telefon:
Fax:
E-Mail:
   (+49) 0351 - 21 838 - 0
(+49) 0351 - 21 838 - 19
info@creavac.de
Terms and Conditions

Terms and Conditions

General Conditions of Purchase of CREAVAC - Creative Vakuumbeschichtung GmbH
as of July 2007

 
1. General
1.1 Scope
The following conditions apply to the legal relations between us and the supplier of all recent, yet both sides fully continuously unwound and all future orders and delivery contracts.

1.2 Exclusion of foreign sales conditions
Different terms and conditions of the supplier, in particular, general sales, delivery and terms of payment conditions are hereby rejected. We also do not commit ourselves if we not expressly object after receiving it. With acceptance of our order, but not later than when submitting the supplies to us, our conditions are approved.

1.3 Effectiveness
Should individual provisions be or become ineffective, this shall not affect the validity of the remaining provisions of these Terms and Conditions of Purchase. In the case of invalidity of a provision the statutory provision comes into place.

1.4 Writing
Deviations of the following conditions, other changes or additions to the range or to our order shall be effective written confirmation. This also applies to any waiver of this written form requirement. Orders and delivery schedules can be made by data transmission, fax or e-mail.


2. Order
2.1 Written confirmation
Orders must be confirmed in writing immediately. They shall in all cases be accepted if they are not rejected within 3 days of receipt of order. If it is not confirmed in writing within 5 days, we reserve the right to cancel our order without notice.

2.2 Notes duty
The Supplier shall accept the order with us over the obligation to check our order objectively and to point out any inconsistencies, and the offer of a deviation from our order. A violation of this obligation requires the supplier to compensation for any damage incurred.

2.3 Order Change
During the pending of the confirmation of our order we are entitled to change our order. After confirmation we are entitled to change the amount of delivery items, the quantity supplied or the agreed service to the date of fulfillment of the contract. This will not entitle the supplier to claims for damages or settlement if our amendment is reasonable. Should the supplier not react to our amendment in writing within a period of 3 days, the change made ​​by us against the supplier is considered reasonable.

2.4 Amendments by the Supplier
Amendments (amendments or additions) of our order by the supplier are only permitted if they have been sent to us in writing by the supplier and we subsequently confirmed in writing.

2.5 Cost estimates
Cost estimates are not to be paid for by us. They authorize us to commission the supplier to those parts set forth in the cost estimate and oblige the supplier to accept our order based on it.

2.6 Scope of supply
For software that is part of the product supplied, including the documentation we receive in addition the right to use the agreed performance parameters and to the extent necessary for contractual or customary use of the product scope of the right of the temporally and spatially unlimited use within the extent permitted by law. This legal position entitles us to fully pass this on to our customers.

2.7 Confidentiality
The supplier shall, without our prior written consent, not either forward the fact of the existence of the supply relationship with us, as well as individual information from the supply relationship to others, particularly hereby to third parties to advertise.

2.8 Infeed
Provided infeed such as materials, parts, containers, machinery, equipment, packaging or other which are needed for the execution of the contract over any items remain our property and may be used only as intended and under this agreement. It is treated carefully by the supplier, properly stored, maintained and protected. In case of processing or connection to other items, our property is continued in the newly created item.

 

3. Delivery periods / deadlines
3.1 Mandatory times
With our order, we give the supplier delivery periods / deadlines again, unless we agreed with the supplier after the offer that the delivery periods / deadlines may differ or cannot be realized by the supplier. Our delivery times / dates as stated in the order are binding for the supplier, unless the supplier lodges an appeal to the specified delivery period / delivery dates in writing within a period of 3 days. The right to object by the supplier, however, does not apply, if the specified delivery periods / deadlines correspond to the offer of the supplier or of any other agreement between us and the supplier.

3.2 Delay in Delivery
The supplier gets the expiry of the delivery date or the delivery date without further warning or notice in default. In the event that a delay in delivery occurs for which the supplier is not responsible, the delivery time / date of delivery is extended accordingly. However, we are entitled to withdraw if a further adherence to the contract for us is not reasonable and the delivery by the supplier is not done to us within a period of 7 days from the declaration of our withdrawal. In making the delivery within that period our resignation is irrelevant.

Regardless of whether the supplier is responsible for the delay in delivery, the supplier must inform us immediately of expected delays in the execution of delivery, in particular the expected duration of the delay. A failure by the supplier to pass this information to us or not make it available in time, the supplier has to pay compensation for any damage arising therefrom us.

The supplier is obliged to reduce noticeable delays in the delivery by appropriate mitigation measures, especially an accelerated shipping, regardless of whether the supplier is responsible for the delay.

3.3 Timeliness
The timeliness of delivery depends on the defect-free receipt of our defined reception point, on the timeliness of delivery with installation or assembly and on services needed to receive an acceptance.

 

4. Transfer of Risk
4.1 Transfer of risk at delivery or acceptance
Delivery without installation or assembly, the risk is transferred to us at the specified receiving location, delivery with installation or assembly and services with their acceptance.

4.2.Shipping costs
Shipping is in all cases at the risk of the supplier, even if a cost-sharing agreement has been signed. As long as no other written agreement has been made, the shipping costs have to paid by the supplier. The supplier must guarantee that the shipment has been insured against any transport risks.

Additional costs required expedited shipment will be borne by the supplier.

For pricing freely receiver we can also determine the mode of transport free.

When prices are quoted ex works or ex warehouse of the supplier the delivery has to be dispatched at the lowest costs unless we required a specific mode of transport. Any costs incurred due to non-compliance with shipping regulations shall in any case be borne by Supplier.


5. Prices
5.1 General price provisions
Unless otherwise agreed in writing, the price of the supplier are fixed prices exclude VAT and are quoted in euros.
 

5.2 Packaging and packaging materials
Only environmentally friendly packaging materials are allowed to be used. The costs of packaging and packing material are borne by the supplier. Packaging and packaging materials will be taken back by the supplier. The costs of return transportation are borne by the supplier. At our option, we are also entitled to dispose transport packaging and other packaging materials and the costs for the disposal will be deducted from the invoice of the supplier.


6. Invoices
6.1 Invoice formalities
Invoices shall be prepared in duplicate. Copies of invoices are to be marked as duplicates. In the calculations, the order code, the articles and quantities and unit prices and total prices have to be reported separately. The invoices must comply with the relevant regulations of the Sales Tax Law, so that we are entitled to reclaim input tax according to the legal regulations. Invoices have to be sent separately and are not allowed to be attached to the delivery.

6.2 Due-date requirements
The full specification of the order code and the compliance with the accounting formalities is required for the due date of the complete invoiced amount.


7. Payment
7.1 Maturity date
The invoices are, unless otherwise agreed, payable as follows:
Within 14 days of invoice or receipt of delivery with a 2% discount.
Within 30 days of invoice or receipt of delivery without deduction.

If the invoice and the delivery do not reach our company at the same time, the payment period with start on the day on which there is also the invoice or the delivery in our possession or at the receiving address specified by us. The delivery must be accepted flawlessly. If it is a delivery with installation or assembly or a service, the payment period will depend on the capacity of acceptance.

For services the time is relevant to the performance becomes fully apparent.

7.2 Compensation or retention
Against any possible outstanding debits of the supplier, we are entitled to explain our due claims or to execute a the set-off, even if our claims  are not legally established or are disputed by the supplier.

Even at an explained compensation we are entitled to a discount. In the case of the right of retention we are still entitled to have a discount even if our right of retention has ceased to apply. This only applies if our payment has been made within the required payment period.

Our payments are no acknowledgement of the invoiced amount which is the basis of the payment or an acknowledgement of any claims hold against us.
We are not relinquish any warranty or guarantee claims regarding the contracted service or any other rights just because we did the payment.

8. Retention of title
8.1 Exclusion of retention of title
The delivered goods shall be delivered at the specified receiving location and are from there on considered our property. The agreement of retention of title is hereby expressly rejected.

8.2 Explicit agreement of retention of title
In the event that we expressly agree with the supplier on retention of title, the validity of retention of title is only a simple reservation. Any resale or processing/combining deletes the retention of title.

8.3 Obligation to restitution
In the event that we are in debt with the balance of our accounts, the supplier is entitled in the event of retention of title agreement, to reclaim the unpaid product. This requires an additional written warning with a further deadline of at least 2 weeks. The enforcement of property rights reserved by the supplier is also regarded as cancellation of the contract.

9. Warranty
9.1 Deficiency term
The supplier shall ensure that all goods and services are state of knowledge, technology and science, as well as according to the relevant statutory provisions and the rules and regulations of public authorities, trade associations and professional associations of Germany, the EU and the country of destination. The supplier further ensures that his delivered products and services have the agreed quality, are suitable for ordinary use, which is usual for products of the same type, which are the result of the public statement of the supplier, the manufacturer or his agents particularly in advertising or labeling of certain properties of the product.

9.2 No examination and reprehension right
The supplier is obliged to check the goods for any errors before sending the products to us. Therefore, contrary to § 377 paragraph 1 of the German Commercial Code, we are not obliged to inspect the goods upon delivery and do not have to reprehend defects immediately. A deemed clearance regarding deficiencies does not occur. In that regard, the supplier waives the objection of late complaint, except that the goods sent to us have an obvious defect and this defect is caused by the said checks by the supplier (transport-related defect). If the supplier wants to claim against the late notice of defect, he has to show and prove that the damage of goods has been created during transportation.

9.3 Liability for defects and damages
The supplier shall at our disposal and at his own expenses eliminate any defects or deliver new defect-free products. Does the supplier not perform the elimination of the defects or the replacement delivery or service within one of us to be set reasonable time, we are entitled to cancel the contract with the claim of all or part of the contract compensation or reduction of the agreed price or at the expense of the supplier perform self-repair or replacement or to have the make or demand damages instead of performance. The same applies if the supplier is unable to perform the repair or replacement or service within a reasonable time.
We are also entitled to claim compensation as a result of the breach of duty damage including loss of profits. We are entitled to compensation for breach of duty to be claimed by the supplier in accordance with the statutory provisions. Our claim for compensation is not limited.

Are we on our part taken by our customers or third parties for damages or product liability thereof, the supplier shall indemnify us of any such claims and any resulting costs, including reimbursing the costs of a product recall, so far as his goods or services, or other action this was the source of the damage, and he is responsible for this.

The supplier undertakes adequate product liability insurance, which also covers any product recalls and the risk of product delivery abroad, particularly in the United States. At our request the insurance policy and the relevant payment documents must be submitted to us.

9.4 Warranty period
Defects are limited to 24 months, if there is no longer limitation period stated by law. In the event that we decide for choosing the alternative of warranty replacement, the warranty period begins for the replacement of its delivery to the receiving point again.

9.5 Assignment of recourse to § 478 German Civil Code
If the supplier has recourse claims against his suppliers as entitled by § 478 German Civil Code, the supplier cedes these claims fully to us. We accept this assignment.

9.6 Return of defective products
Costs and risk of returning the defective items delivered shall be borne by the supplier.


10. Defects, trademarks, copyrights
10.1 Defective titles / Foreign trademark rights
The supplier guarantees that his delivered products are free of defect titles, in particular free of third party intellectual property rights and copyrights. In that regard, we are exempted by the supplier from any third party claims that may arise from defects in title or a violation of property rights. The limitation period for defects in titles is 3 years.

10.2 Defensive meassures
If we accounted by third parties for defects and/or violation of intellectual property rights regarding the delivered goods to us/objects, the supplier is obliged to take all of these claims required by our actions, especially to give required information. In order to execute countermeasures, the costs arising at our side, will be borne by the supplier in advance. At our request, the supplier must conduct the defensive measures for us on our behalf at its own expense. Should we in a dispute subject of alleged defects or safety violations, the result binds the supplier as well even if a third party notice is not provided, we have informed the supplier about the litigation.

The above does not apply if the supplier accepts the existence of third party claims. In this case, the supplier is committed to compensation against notwithstanding any other statutory rights.
 

10.3 Further claims
All other claims for other defects are not affected and cannot be excluded by the supplier.

 

11. Burden of proof
If it becomes apparent within six months after the passing of risk that there is a defect, it will be presumed that the product was defective already as the risk was transferred, unless this presumption is incompatible with the type of object or defect. Unless it comes to the validity of our claims for damages or any other warranty claims on negligence of the supplier, the supplier has to prove that it was not his fault. The fault of subcontractors and other parties by the supplier shall be attributed to the supplier.

12. Miscellaneous
12.1 Purchaser's right of cancellation
The assertion of our statutory right to withdraw from the contract does not require a fault of the supplier.

12.2 Own trademark rights
Licensed models, shapes, patterns, tools, gauges, patterns, drawings, standard sheets or other documents, particularly electronically stored data, and then crafted items which have been given by us to the supplier may not  be given to other parties than such as for the contractual purposes without our prior written consent. They have to be protected against unauthorized access or use. Does the supplier not meet his duty of protection, we are entitled to demand their return, without prejudice to our other rights, in particular a right to claim damages. Upon request or upon termination of the contract or business relationship, all documents including all copies or reproductions and molds, models, tools and immediately have to be returned to us. All rights to this information, documents and objects remain with us. Further claims remain unaffected.
 

12.3 Cession
The Supplier may assign its claims against us only with our prior written consent.

12.4 Subcontracting
The passing on of orders to third parties without our written permission is prohibited and entitles us to either claim damages or partly or completely terminate the contract.

 

13. Place of Fulfillment and Jurisdiction / Applicable Law
13.1 Place of Fulfillment
Place of Fulfillment for the reciprocal services arisen through this contract shall be Dresden.

13.2 Place of jurisdiction
The sole place of jurisdiction for all disputes arising directly or indirectly is Dresden. However, we are also entitled to sue at the location of the supplier.

13.3 Governing Law
The legal relations between us and the supplier is solely based on the law of the Federal Republic of Germany excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

 

General Sales and Delivery Terms of CREAVAC - Creative Vakuumbeschichtung GmbH

As of October 2007


I. Scope
The following general terms and conditions apply, unless agreed otherwise in a particular case in writing, to all current and future transactions between us and the buyer. This also applies if we do not separately point out to the application of these general terms and conditions. Deviating terms and conditions of the buyer - of whatever kind - which we explicitly reject will also not apply even if we do not disagree in written form. Special agreements require a written approval of our authorized for employees. 

 

II. Conclusion of Contract
Our offers are not binding. Also based on an offer made ​​by us in the event of an order, we are bound only if we confirm them in writing. We reserve the right to attend to offers send to us or orders placed with us only partly. Our confirmation is here decisive. This applies, if it is not contradicted within three working days.

 

III. Delivery item
Information on goods and services from us shall only be binding if they are expressly confirmed by us in writing. In case of doubt, the information given on our written consent is binding. Design and design changes which we believe necessary due to technical progress or appropriate due to our experience are not included.

We also reserve the right to deliver more or less of the ordered product due to producing circumstances of up to 10% - regardless of our written order approval. We will invoice the delivered products accordingly.

We are not entitled to do changes to design and construction as well as to supply small quantities if doing so will affect the suitability of the goods which has been communicated with us.

 

IV Delivery period
We always strive to meet all defined deadlines which are contained in an order. Information about delivery and performance periods are only approximate and therefore not binding for us. This does not apply if we have specifically confirmed these dates as binding in writing form. The buyer can contact us in writing three weeks after such an orientation appointment has been passed and give us an adequate time for delivery. Only after this period, the buyer is entitled to set us a deadline, pointing out that he rejects the acceptance of the goods after expiry of the grace period.The buyer is only entitled to claims for damages due to delay in delivery, if our legal representatives or executives have caused the delay intentionally or grossly negligent. Acts of God, labor disputes, government action or involuntary service or traffic, fire, floods, water damage, energy or deficit of raw materials will extend the delivery period or days of grace by the duration of this particular disorder.

 

V. Packaging, delivery, shipping, transfer of risk, insurance and acceptance
1. The choice of packaging material and packaging is made ​​at our discretion. Delivery is based on the Incoterms 2000 EXW of our facility in Dresden, Löbtauer Straße 67 – 69. The transfer of risk to the buyer takes place regardless of whether the cost of transportation will be charged to the purchaser by us and whether we have authorized the carrier. If we authorize the carrier, the choice of the carrier is at our discretion.

2. The delivered goods, even if they have minor defects, have to be accepted by the buyer. The acceptance of the delivered goods must immediately be made upon delivery. If not, we may, at our discretion, after a grace period of one week either demand the immediate payment of the purchase price or withdraw from the contract or demand compensation.

3. The buyer has to acknowledge receiving the goods electronically only on the delivery notes, shipping documents or on documents of parcel services or other carriers with stamp, date and signature or receipt.

 

Vl. Prices and Payment
1. All prices are exclusive of VAT, packing and transportation.

2. Our invoices have to be paid within 14 days of the invoice date (maturity) free of postage and free of charges. If the payment is made after the maturity date, we reserve the right to charge an interest rate of 8% above the base rate of the Deutsche Bundesbank. For the claim of interest or claim of delay damages, the statutory provisions are applicable. The right to claim a further default damage will not be affected by this. We reserve the right to offset any payments against the oldest debt plus any accrued interest and plus any other costs incurred.

3. If the buyer is in arrears with a payment or we have reasonable doubts about the creditworthiness of the buyer, we may for outstanding deliveries on cessation of the payment demand payment in advance. Furthermore, we can quit all existing contracts in whole or partly. The delivery period for all undelivered goods shall be extended until full payment is received. We are also entitled to claim adequate security for our demands according to our discretion. If the buyer does not agree with this, so we can put all our claims due immediately.

4. The buyer is only entitled to offset our claims for payment or to exercise rights of retention, if its claims are beyond dispute or legally proven.

 

VII. Retention of title
1. The goods will remain our property until full payment of all future claims arising from the business relationship with the buyer, or until all payments in connection with the delivery of the goods have been received. Tender are redeemed when they are irrevocably credited to our account. In current accounts, the retained goods a security for our balance claim.

2. The buyer is, as long as he is a dealer, authorized to sell our property in orderly commerce, but also with retention of title.That authorization is lost if the buyer is delayed with a payment from the existing business relationship with us or if he has agreed upon unsecured debt with its customers.The pledge or collateral assignment of our goods is excluded. The demand of the purchaser from the supply is now assigned to us with all ancillary rights, and this irrespective of whether it is delivered alone or together with other items. In the latter cases the claim is calculated to the extent of the value of our goods and transferred to us. Is there a current account agreement between the buyer and its customers, the current balance up to the amount of our outstanding invoices is hereby ceded to the benefit of the purchaser to us.In the event of resale the buyer is obligated to us to designate the name and address of the customer at any time at our request. Any receivables from the buyer of payment or in lieu of payment accepted bills of exchange are now assigned to us.The transfer of the exchange is replaced by the fact that the buyer keeps the collateral accepted change for us. The claims assigned to us are a security of all our claims including also future claims.

3. The retention of title also extends to the result of processing, mixing or combining our goods to their full value. We agree to treatment and further processing of our goods under the exclusion of acquisition of property, the working or processor according to § 950 German Civil Code, but without any obligation on us. If the goods are mixed with other objects or processed, then the buyer unless we are already partly owner of the new object in the ratio of the value of the goods (purchase prices) to the other goods at the time of mixing, compounding or processing have become, he assigns his ownership or co-ownership and property rights ownership to us and keeps it for us.

4. In the event of insolvency proceedings, the buyer is obliged to label the goods in a way so that they can be identified as our property by any other third party. Is the insolvency filled by the buyer, this labeling has to be done before filling for insolvency. If a creditor has filled the request the labeling has to be done immediately after hearing of the debtor that is the buyer. The same applies in case of seizure by third parties against the purchaser. We are informed immediately by telephone and then in writing about the occurrence of such an event. As long as there is a claim for our part, we are entitled to require the buyer at any time for information on how many goods which have been delivered under retention of title are still in his possession and where they are located. In addition, the buyer is obliged to inform us immediately of any changes in the custody situation, specifying the new storage location. We are also entitled to inspect these goods at any time to the point where it is stored. At the breach of contract by the buyer, especially in case of unpaid claims, we are entitled to rescind the contract after a reminder. The customer is then obliged to surrender the delivered goods to us. Due to the retention of title, we can require the delivered items only if we have rescinded the contract. The right to claim damages for non-performance remains unaffected by the termination. However, we will try to resell the repossessed goods as good as possible. The proceeds will be credited to our claim for damages.

5. In all cases, we are entitled to claim our costs of an overall payment of 10% of the net invoice value of the returned goods and to further claim additional 10% as liquidated damages. This can be done without our authorization to provide proof of higher costs and a higher loss. The buyer must provide proof of a lower actual impairment and lower redemption costs.

6. The buyer bears the risk for the goods delivered by us and is obliged to store them carefully and to adequately insure against loss (theft, water, fire, etc.). He steps off the claim against the insurance for the event of damages to us in advance, namely a first-tier component equal to the purchase price of the delivered under retention of title.

7. At the request of the buyer, we are obliged to transmit the requested or reserved property or other securing devices when and where our security exceeds our total debt to be secured in each case by 50%.


VIII. Reprimand, warranty claims and packaging
1. The buyer shall inspect the goods immediately upon receipt carefully and claim damage immediately. Differences in delivery have to be noted on the delivery and shipping documents (cf. v. 3).Defects in the packaging are irrelevant, as long as these do not affect the functionality of the goods. The claim of defect must be in writing and without delay. Subsequent claims of defects which could have been detected at a careful inspection after receiving the goods are insignificant and do not constitute any claims by the purchaser. Defects that could not be detected even with careful inspection have to be claimed against us in writing immediately after discovery. Here too, the failure to meet the immediate notification of the defect results in the irrelevance of the defects and the loss of all claims. Our staff is not authorized to accept verbal or telephone complaints. Warranty claims do not include only insignificant deviations from the agreed quality or minor impairment of usefulness.

2. For warranted complaints we provide the guarantee on the basis of the statutory provisions. The choice of eliminating the defect and redelivering the goods is up to us in any case. With the provision of the warranty the property of the defective article goes back to us. The recourse is excluded if the warranty obligations of the buyer are based on a guarantee of the buyer, which goes beyond the statutory warranty claims. The limitation period begins with the transfer to the purchaser. At a possible subsequent performance, the limitation period is neither suspended nor interrupted.

3. Further claims for damages due to defects are directed in Section IX. (scope of liability) of these General Terms and Conditions.

4. Warranty claims against us shall be limited to 1 year.


IX. Extent of liability
1. Claims for damages and reimbursement of expenses of the buyer against us, our bodies, legal representatives and / or agents (hereinafter "claims"), are excluded irrespective of the legal reason, including for violation of the obligation and / or tort. This does not apply to us, our institutions, our legal representatives and / or agents if the intent or gross negligence and / or the violation of essential contractual obligations and the violation of essential contractual duties can be proved.

If claims are based on the violation of essential contractual duties, the extent of liability is limited to the replacement of the foreseeable damage, if we, our bodies, legal representatives and / or our agents are imposed with only simple negligence, which for ordinary employees that restriction of scope of liability applies to any negligence.

2. The limitations of paragraph 1 shall not apply if liability is mandatory, such as under the Product Liability Act and / or the loss of life, limb and / or health.



X. Performance, jurisdiction and applicable law
1. Place of performance and jurisdiction for all present and future claims arising from the business relationship with us, including bills and check demands, is exclusively Dresden.

2. All agreements and legal actions shall be exclusively governed by German law to the exclusion of the uniform law on the international sale of goods.


XI. Additional agreements
Additional agreements are only effective if they are confirmed by us in writing. The same applies to changes to this general terms and conditions, in particular that provision.

 

XII. Rule of interpretation
In the event that one or more provisions of these General Terms and Conditions are or become invalid, the remaining provisions shall remain unaffected. The parties are obliged to replace the invalid provision by such regulation, which in its present general sales-and delivery terms comes closest to the expressed meaning.


XIII. Privacy policy
The purchaser is advised that personal data if necessary be stored and edited by us in accordance with the provisions of the Data Protection Act.


 

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