General Terms and Conditions of the CRYSTAL GmbH
CRYSTAL GmBH's (CRYSTAL) offerings and contracts to supply products are subject exclusively to the following conditions.
Customers' general and other terms and conditions that may conflict with these CRYSTAL general terms and conditions, or specific terms and conditions of a CRYSTAL offering, are only valid if and to the extent that CRYSTAL expressly acknowledges them in writing. Acceptance of a delivery from CRYSTAL or passivity with respect to the following terms and conditions shall be construed as acceptance on the part of the customer.
§ 1 Offers and Acceptance
- A contract (order) with the customer is created only upon issuance by CRYSTAL of a written order confirmation. Preliminary declarations of the customer, particularly confirmation notes, are to be regarded merely as offers to conclude a contract - and do require a written order confirmation from CRYSTAL.
- Unless otherwise agreed in writing, all offerings, related samples, documentation (e.g. illustrations, drawings and weight data), price lists and other commercial documentation from CRYSTAL are subject to change and non-binding and do not constitute declarations of product quality with respect to eventual conclusion of a contract.
- Products are subject to prior sale.
- CRYSTAL reserves the right to modify its offerings - without specific notification of customers - to reflect technological improvements. CRYSTAL retains the ownership and copyrights of its price quotes, drawings and other documentation. These must not be made accessible to third parties. Drawings and other offering-related documentation must, upon request, be promptly returned if an order does not result.
§ 2 Prices
- Unless otherwise agreed in writing, all prices are net factory Berlin/Germany, exclusive of packaging, other incidental costs and sales taxes.
- Prices apply to the offering's described scope and are subject to change based on determined current costs. The customer bears increased costs of material, labor, shipping, import duties etc. Firm prices require a specific written agreement. In the event of quantity deviations, the right to adjust prices is reserved.
§ 3 Payment Conditions
- Cash payment without discount is to be rendered promptly.
- Overdue payments are subject to an arrears surcharge of 5 percentage points or of the current base lending rate in case of an overdue notice.
- Adherence to contractually agreed delivery dates is dependent on the customer's fulfillment of contractually agreed cooperative or preliminary requirements as well as other contractual duties. If the customer defaults on their contractually agreed cooperative or preliminary requirements and other contractual duties, particularly payment obligations from preceding contractual relationships, CRYSTAL may exercise its right to affect a lien, demand immediate payment of all debt of the entire customer relationship and/or demand appropriate collateral. In the event of substantial degradation of the customer's financial position, CRYSTAL may impose prepayment or appropriate collateral requirements as a precondition to supplying future products and services.
- Set-offs of claims or withholding by the customer is only permissible in the case of undisputed or legally adjudicated counterclaims.
§ 4 Delivery
- Deadlines specified by CRYSTAL, particularly delivery dates, are only binding when expressly defined in the contract concluded with the customer as per § 1. The lapse of a binding deadline entitles the customer to exercise their legal rights, but only after unproductive expiration of an appropriate customerdetermined remedial deadline.
- Contractually agreed delivery and performance deadlines are subject to appropriate extension in the event of acts of God and all other obstacles over which CRYSTAL has no control and which significantly impair CRYSTAL's performance of contractual duties. CRYSTAL cannot be held responsible for faults of its suppliers.
- If shipment of a product is delayed at the customer's request, CRYSTAL may, upon indicated ability to ship, bill the customer for incurred warehousing costs.
- CRYSTAL is entitled to execute partial deliveries.
§ 5 Transfer of Risk
- At the latest, risk is transferred to the customer upon dispatch of the products via CRYSTAL. This also includes partial deliveries, undertaking of additional services (e.g. consignment, delivery or assembly) as well as the case of supplementary fulfillment by CRYSTAL - regardless of whether consignment is performed by CRYSTAL itself or outsourced to or actuated via third parties.
- If dispatch is delayed due to circumstances over which CRYSTAL has no control, or at the request of the customer, transfer of risk occurs on the day of indicated ability to ship.
- Without restricting warranty rights as per § 10, delivered contractual products are to be accepted by the customer, even if they exhibit non-substantial defects.
§ 6 Customer-Commissioned Manufacturing
- For products manufactured in accordance with the customer's drawings, samples and other directives, CRYSTAL assumes no warranty obligations or liability with respect to the product's functionality or other deficiencies, insofar as they are related to the customer's directives.
- The customer releases CRYSTAL of all third-party claims related to damages caused by the product, insofar as they are related to the customer's drawings, samples and other directives. This also applies to claims arising from product liability.
- The customer assumes from CRYSTAL the risk that products manufactured and delivered in accordance with the customer's directives may infringe upon third-party intellectual property rights. In the event of enforcement of a thirdparty intellectual property claim, CRYSTAL is entitled, after the customer's hearing, to withdraw from the contract. The customer is obligated to compensate CRYSTAL for damages and costs resulting from the enforcement of such third-party intellectual property claims. In the event of withdrawal, CRYSTAL is to be compensated for its hitherto furnished product services.
§ 7 Supplies On Behalf of Customers
- If parts, materials and other items are furnished in the scope of contractual fulfillment (hereafter "supplies"), the customer shall be responsible for functionality and fitness of purpose. Unless otherwise agreed in writing, CRYSTAL will not execute warehouse receiving checks or fitness tests.
- If the customer's supplies for the product are ineffectual or inappropriate and this is not obvious to CRYSTAL, then the customer has no related warranty or liability claims against CRYSTAL.
- The customer shall compensate CRYSTAL for losses and additional costs associated with ineffectual or inappropriate supplies.
§ 8 Reservation of Ownership
- CRYSTAL reserves the right of ownership of delivered products (hereafter "provisional merchandise") until receipt of the contractually agreed payments owed to CRYSTAL resulting from the underlying contract and all preceding contractual relationships with the customer, including legal claims.
- CRYSTAL is entitled, at the customer's expense, to insure provisional merchandise against theft, breakage, fire, water and other damage, insofar as the customer has not verifiably obtained insurance and notified CRYSTAL thereof.
- The customer may not bond or collateralize provisional merchandise. The resale or linkage of provisional merchandise is only permitted in the normal course of business.
- In the case of linkage or mixing of provisional goods with movable objects in the sense of §§ 946 ff. BGB (Bürgerlicher Gesetzbuch - German code of Civil Law), CRYSTAL acquires co-ownership of the resulting overall product or item proportional to the ratio of the provisional merchandise's value to the value of the resulting overall new product or item. In the event of processing or transformation of provisional merchandise in the sense of § 950 BGB, CRYSTAL's right of ownership of the provisional merchandise does not cease - instead, the legal consequences of the abovementioned section also apply to the creation of new products or items. Standardized or new products or items for which CRYSTAL acquires coownership in accordance with this clause's above-mentioned regulations are also provisional merchandise as per the regulations of § 8.
- If the customer transfers ownership of provisional merchandise to a third party in return for payment, the customer's payment entitlements from this third party are then immediately assigned to CRYSTAL to the extent of the customer's existing debts owed to CRYSTAL on the basis of the underlying contract and all preceding contractual relationships. This assignment occurs automatically at the time at which the customer and the third party conclude the sales agreement regarding the provisional merchandise. The customer is revocably entitled to collect assigned claims on behalf of CRYSTAL and promptly transfer such collected sums to CRYSTAL. The customer is prohibited from transferring ownership of provisional merchandise free of charge.
- If the customer is in breach of contract, particularly via default of payment, then CRYSTAL is entitled - at the customer's expense - to repossess the provisional merchandise and/or to demand reassignment of the customer's potential claim of surrender against third parties and/or to demand compensation from the customer.
- To the extent entitled to CRYSTAL under clause 6, the customer grants to it and its designees the irrevocable right to enter the customer's premises, if necessary with motor vehicles, for the purpose of retrieval.
- The customer has to inform CRYSTAL immediately in writing in the event of garnishment, seizure or attachment measures via third parties. The customer shall bear the costs associated with assertion and enforcement of CRYSTAL's claims with respect to the provisional merchandise.
- Insofar as the existing collateral exceeds by 20 percent or more the claims of CRYSTAL against the customer on the basis of the underlying contract and all preceding contractual relationships between CRYSTAL and the customer, the customer is entitled to demand from CRYSTAL the release of corresponding collateral to be chosen by CRYSTAL.
§ 9 Exclusion from Assignment
Assignment to third parties of the customer's claims against CRYSTAL, including all warranty claims, is prohibited.
§ 10 Warranty
- The object of the agreement is exclusively the CRYSTAL product with the properties and characteristics and intended uses as per individual contractual agreements and the supplied product description accompanying the individual contract with the customer. Other or supplementary properties and/or characteristics and/or supplementary intended uses are considered agreed upon only if expressly confirmed in writing by CRYSTAL.
- Warranty service is performed free of charge and in a manner determined by CRYSTAL. If the warranty service is ultimately unsuccessful within an appropriate remedial deadline, the customer is then entitled to demand a proportional reduction in the purchase price (abatement) or withdrawal from the contract. In the event of warranty servicing of sold and delivered products, replaced components automatically become the property of CRYSTAL and the contractual parties already agree to such upon conclusion of the contract.
- CRYSTAL is entitled to decline all remedial measures if associated with unreasonable costs.
- The warranty period is one year and commences upon delivery to the customer or to an alternate customer-specified delivery address. This correspondingly applies in the event of a product replacement.
- The warranty does not apply to defects and damage occurring after the transfer of risk and for which CRYSTAL bears no responsibility. This also applies in the case of default of acceptance.
- The warranty does not apply if conspicuous defects are not promptly (or in the case of discernable defects no later than 14 days after delivery) claimed in writing and accompanied by the invoice number and a test or defect report.
- Deficient contractual products are to be shipped freight prepaid to CRYSTAL upon receipt of written authorization from CRYSTAL.
- Within the scope of contracts concluded between CRYSTAL and customers in which contractual products are expressly characterized as experimental or developmental, CRYSTAL shall provide no warranty of any kind.
§ 11 Limited Liability
- CRYSTAL is obligated to compensate damages, regardless of the legal reason, only when:
a) a mandatory liability exists based on product liability statutes
b) CRYSTAL has recklessly (with respect to the contract's purpose) violated a fundamental (cardinal) contractual obligation assigned to it
c) CRYSTAL is responsible for damage due to gross negligence or malice
- Damage compensation claims are limited to the amount of such damage that CRYSTAL could reasonably anticipate based on circumstances known at the time of concluding the contract and to the extent that the damage is of a contractually typical and foreseeable nature, but to the billed amount payable at most.
- The exclusion or limitation of damage claims specified in the abovementioned clauses also encompasses claims due to prohibited actions and claims against CRYSTAL's employees and contractors.
§ 12 Infringement of Intellectual Property Rights
- If, after effective conclusion of a contract between CRYSTAL and the customer, a third party enforces claims against the customer for infringement of intellectual property rights (patents, copyrights, trademarks, registered designs etc.) and if the usage of delivered or to-be-delivered products is thereby compromised or prohibited, CRYSTAL will cooperate with the customer to turn down these claims.
- If third party claims are brought against the customer for a product's alleged infringement of intellectual property rights, the customer is to assign CRYSTAL as the sole decision maker regarding handling of the resulting legal case. In particular, the customer shall not agree to a settlement or other concessions without CRYSTAL's prior written consent.
- A liability on the part of CRYSTAL can only be created if the customer promptly and in writing reports to CRYSTAL the third party's enforcement of claims of alleged infringement of intellectual property rights.
- Liability on the part of CRYSTAL for infringement of intellectual property rights is excluded if the contractual product is not used in the form authorized by CRYSTAL, or if it is used in conjunction with other products not originating from CRYSTAL or not authorized in writing by CRYSTAL, or connected, mixed or otherwise processed with these.
- Upon an initial request, the customer releases CRYSTAL from liability to third party enforcement of claims of infringement of intellectual property rights with respect to products manufactured by CRYSTAL in accordance with the customer's drawings, specifications or directives.
§ 13 Other
- Other conditions remain binding even if individual conditions prove invalid. Invalid conditions are to be replaced with regulations most closely representing the intended financial intentions.
- Modifications or supplements to these conditions and to confirmed orders must be made in writing. The requirement of the written form can only be rescinded upon written agreement between the parties.
- These General Terms and Conditions shall be governed solely by the laws of the Federal Republic of Germany. In case of legal disputes arising from these General Terms and Conditions and from individual orders resulting therefrom, it is agreed that the exclusive place of jurisdiction is Berlin/Germany. Irrespective of this, CRYSTAL is entitled to file claims against the customer in a competent court of jurisdiction.
This English translation of CRYSTAL's general terms and conditions is supplied as a convenience. The original German version of CRYSTAL's general terms and conditions is the binding version.