General Terms and Conditions of Production for Production Contracts on the virtualfab Platform
- Scope, form
1.1 These General Terms and Conditions of Production (hereinafter GTCP) apply to all Production Contracts between Customers and Producers (hereinafter also jointly referred to as Parties), which are concluded in accordance with the virtualfab Platform GTC via the virtualfab Platform of fabnamix GmbH (hereinafter fabnamix).
1.2 The GTCP apply in particular to contracts for the sale and/or delivery of movable Goods (hereinafter referred to as Goods), irrespective of whether the respective Producer manufactures the Goods himself or purchases them from suppliers (§§ 433, 650 German Civil Code – BGB). The GTCP shall apply in the version valid at the time of the conclusion of the Production Contract.
1.3 The GTCP constitute an Annex to the virtualfab Platform GTC. In the event of contradictions, the provisions of the virtualfab Platform GTC take precedence over these GTCP. In all other respects, the GTCP shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Customer or the Producer shall not become part of the Production Contract concluded via the virtualfab Platform.
1.4 Individual agreements (e.g. quality assurance agreements) take precedence over the GTCP. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the Production Contract.
1.5 Legally relevant declarations and notifications of the Parties with regard to the Production Contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) shall be processed via the virtualfab Platform. Legal formal requirements and further proof, in particular in case of doubts about the legitimacy of the declarant, remain unaffected.
- Conclusion of Production Contract
2.1 The conclusion of a Production Contract between the Customer and the Producer via the virtualfab Platform takes place in accordance with the virtualfab Platform GTC as follows:
a) The client makes the offer to conclude the Production Contract by clicking on the “Play” button within his “virtual factory” after the preceding communication has ended. If several Producers are involved in the “virtual factory”, the client makes a separate offer to each Producer. By clicking on the “Play” button, the status quo of the previous contract negotiations within this “virtual factory” is fixed on the part of fabnamix and recorded as a Quality Agreement within the meaning of clause 5.3 of the virtualfab Platform GTC.
b) The acceptance of the offer to conclude the Production Contract in the “virtual factory” shall be effected by a declaration of acceptance by the respective Producer. The Producer is required to accept or reject the offer within one week. If the Producer does not respond within this period, the offer shall be deemed rejected.
c) If several Producers are involved in the “virtual factory”, each individual Production Contract is concluded under the condition precedent that all Production Contracts are concluded within the same “virtual factory”.
- Delivery period and delay in delivery
3.1 The delivery period shall be agreed individually. The Producer is obliged to inform the Customer immediately if he is unlikely to be able to meet the agreed delivery deadline – for whatever reason – and at the same time to inform him of the expected new delivery deadline.
3.2 Is the failure to meet the deadline due to
a) Force majeure, e.g. mobilisation, war, acts of terrorism, riots or similar events (e.g. strike, lockout),
b) virus or other attacks by third Parties on the Producer’s IT system, insofar as these occurred despite compliance with the usual care in IT security measures,
c) Obstacles due to German, US-American and other applicable national, EU or international regulations of foreign trade law for which the Producer is not responsible, or
d) failure by the Customer to deliver to the Producer on time or in the proper manner
the delivery period shall be extended accordingly.
3.3 If the Producer also fails to deliver the Goods within the new or reasonably extended delivery period, he shall be in default. The rights of the Customer in the event of default – in particular to withdraw from the contract and to claim damages – shall be determined in accordance with the statutory provisions. The provisions in clause 3.4 remain unaffected by this.
3.4 If the Producer is in default, the Customer can demand lump-sum compensation for his damage caused by the delay. The lump-sum compensation amounts to 1 % of the net price per completed calendar week, but in total not more than 5 % of the net price of the Goods delivered late. The Producer reserves the right to prove that the Customer has not suffered any damage or that the damage caused by the delay is significantly less than the aforementioned lump sum. If several Producers are connected in series within a “virtual factory” of the Customer and if the delay of one Producer also causes the subsequent Producers to be in default, only the Producer shall be liable for compensation of the damage caused by the delay in accordance with this clause 3.4 who originally caused the delay.
3.5 The Customer is obliged to declare within a reasonable period of time at the Producer’s request whether he will withdraw from the contract due to the delay in delivery or insist on delivery.
3.6 If dispatch or delivery of the Goods is delayed at the request of the Customer by more than one month after notification of readiness for dispatch, the Producer may charge the Customer storage costs amounting to 0.5% of the net price of the items of the delivery for each additional month or part thereof, but not more than a total of 5% of the net price. The Parties reserve the right to prove higher or lower storage costs.
- Performance, delivery, transfer of risk, acceptance, default of acceptance
4.1 The Producer is not entitled to have the service owed by him provided by third Parties (e.g. subcontractors) without the prior written consent of the Customer. The Producer shall bear the procurement risk for its services unless otherwise agreed in individual cases (e.g. limitation to stock).
4.2 Delivery shall be made FCA free carrier to the destination specified in the Production Contract (e.g. the Customer’s registered office or the factory premises of the subsequent Producer). The respective destination is also the place of performance for the delivery and any subsequent performance. Unless otherwise agreed, the Producer is entitled to determine the type of shipment (in particular transport company, shipping route, packaging) himself.
4.3 The risk of accidental loss and accidental deterioration of the Goods shall pass to the Customer at the latest upon handover. Insofar as an acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply accordingly in the event of acceptance. The handover or acceptance shall be considered to have taken place if the Customer is in default of acceptance. However, in the case of sale by delivery (Versendungskauf) to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay shall pass to the Customer upon delivery of the Goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment.
4.4 The delivery (also called transaction) must be accompanied by a delivery note stating the date (issue and dispatch), the content of the delivery (article number and quantity) and the Customer’s order ID (date and number). If the delivery note is missing or incomplete, the Customer shall not be responsible for any resulting delays in processing and payment. Separately from the delivery note, the Customer shall be sent a corresponding transaction notification together with image documentation via the virtualfab Platform.
4.5 The statutory provisions shall apply to the occurrence of default of acceptance on the part of the Customer. However, the Producer must also expressly offer the Customer his performance if a specific or determinable calendar time has been agreed for an action or cooperation of the Customer (e.g. provision of material). If the Customer is in default of acceptance, the Producer can demand compensation for his additional expenses in accordance with the statutory provisions (§ 304 BGB). If the contract concerns a non-interchangeable item to be manufactured by the Producer (individual production), the Producer shall only be entitled to further rights if the Customer undertook the obligation to cooperate and is responsible for the failure to cooperate.
- Prices and terms of payment
5.1 The purchase price and other costs (e.g. transport and packaging costs) shall be agreed individually by the Parties in the Production Contract. All prices are net prices.
5.2 Unless otherwise agreed in the Production Contract, the Customer shall bear the transport costs FCA Free Carrier, the packaging costs and the costs of any transport insurance requested by the Customer. Any customs duties, fees, taxes and other public charges shall be borne by the Customer.
5.3 The purchase price is due and payable within 10 days of invoicing and delivery or acceptance of the Goods. The relevant invoicing to the Customer shall be carried out exclusively by fabnamix.
5.4 Upon expiry of the aforementioned payment deadline, the Customer shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. The Producer reserves the right to assert further damage caused by default.
5.5 The Parties shall only be entitled to mutual rights of set-off or retention to the extent that the claim has been legally established or is undisputed. In the event of defects in the delivery or incomplete delivery, the Customer’s counter rights shall remain unaffected.
5.6 If it becomes apparent after the conclusion of the Production Contract (e.g. by filing for insolvency proceedings) that the Producer’s claim to the purchase price is endangered by the Customer’s lack of ability to pay, the Producer is entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of Production Contracts for the manufacture of non-interchangeable items (individual production), the Producer may declare the withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.
- Secrecy and retention of title
6.1 The Customer reserves the property rights and copyrights to illustrations, plans, drawings, calculations, execution instructions, product descriptions and other documents. Such documents are to be used by the Producer exclusively for the contractual performance and are to be returned to the Customer or permanently deleted after completion of the Production Contract. As long as a download is not absolutely necessary for the completion of the Production Contract, the aforementioned documents may only be viewed online on the virtualfab Platform. The documents must be kept secret from third Parties, even after termination of the Production Contract. The confidentiality obligation shall not expire until 2 years after termination of the Production Contract. Special confidentiality agreements and statutory regulations on the protection of secrets shall remain unaffected. Clause 6.1 shall apply accordingly to cost estimates, drawings and other documents of the Producer. The Parties agree that all documents within the meaning of clause 6.1 constitute “business secrets” within the meaning of § 2 No. 1 German Business Secrets Protection Act (GeschGehG). The Parties mutually waive any defences and/or objections to the adequacy of confidentiality measures within the meaning of § 2 No. 1 lit. b) GeschGehG. This also includes a denial of the existence of appropriate confidentiality measures within the meaning of § 2 no. 1 lit. b) GeschGehG. Production-relevant process data (measurement protocols, machine parameters, etc.) shall be uploaded to the virtualfab Platform or made available via corresponding IOT interfaces. The Customer shall be entitled to all transferable rights to this process data upon its creation.
6.2 The Customer reserves all property rights to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other objects which the Customer provides to the Producer for production. Such objects shall – as long as they are not processed – be stored separately at the expense of the Producer and insured to a reasonable extent against destruction and loss. Any processing, mixing or combination (further processing) of provided items by the Producer shall be carried out for the Customer. The retention of title extends to the products resulting from the processing, mixing or combining of the provided Goods at their full value, whereby the Customer is deemed to be the manufacturer. If, in the event of processing, mixing or combining with Goods of third Parties, the latter’s right of ownership remains, the Customer shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined provided Goods.
6.3 Subject to clause 6.2 the Producer retains title to the Goods delivered until payment in full of the purchase price under the Production Contract (secured claim).
6.4 The Goods subject to the Producer’s retention of title may neither be pledged to third Parties nor assigned as security before full payment of the secured claim. The Customer must notify the Producer immediately via the virtualfab Platform if an application is made to open insolvency proceedings or insofar as third Parties have access (e.g. seizures) to the Goods affected by the Producer’s retention of title.
6.5 If the Customer acts in breach of contract, in particular if he fails to pay the purchase price due, the Producer is entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the Goods on the basis of the retention of title. If the Customer does not pay the due purchase price, the Producer may only assert these rights if he has previously set the Customer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.
6.6 Until revoked, the Customer is authorised to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:
a) The retention of title extends to the products resulting from the processing, mixing or combining of the Producer’s Goods at their full value, whereby the Producer is deemed to be the manufacturer. If, in the event of processing, mixing or combining with Goods of third Parties, the latter’s right of ownership remains, the Producer acquires co-ownership in proportion to the invoice values of the processed, mixed or combined Goods. In all other respects, the same shall apply to the resulting product as to the Goods delivered under retention of title.
b) The Customer hereby assigns to the Producer by way of security the claims against third Parties arising from the resale of the Goods or the product in total or in the amount of the Producer’s co-ownership share, if any, in accordance with the preceding paragraph. The Producer accepts the assignment. The obligations of clause 6.4 also apply with regard to the assigned claims.
c) The Customer remains authorised to collect the claim in addition to the Producer. The Producer undertakes not to collect the claim as long as the Customer meets his payment obligations towards the Producer, there is no deficiency in his ability to pay and the Producer does not assert the retention of title by exercising a right in accordance with clause 6.5. If this is the case, however, the Producer can demand that the Customer informs him of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third Parties) of the assignment. Furthermore, in this case the Producer is entitled to revoke the Customer’s authority to further sell and process the Goods subject to retention of title.
d) If the realisable value of the securities exceeds the Producer’s claims by more than 10%, the Producer shall release securities of its choice at the Customer’s request.
- Claims for defects of the Customer
7.1 The statutory provisions shall apply to the Customer’s rights in the event of material defects and defects of title (including incorrect delivery and short delivery as well as improper assembly/installation or defective instructions), unless otherwise stipulated below. In all cases, the special statutory provisions on the reimbursement of expenses in the event of final delivery of the newly manufactured Goods to a consumer (supplier’s recourse pursuant to §§ 478, 445a, 445b or §§ 445c, 327 (5), 327u BGB) shall remain unaffected, unless an equivalent compensation has been agreed, e.g. within the scope of a quality assurance agreement.
7.2 The basis of the Producer’s liability for defects is primarily the agreement between the Parties on the quality and the presumed use of the Goods (including accessories and instructions). Only the agreements of the Parties stored as Quality Agreements on the virtualfab Platform shall be deemed to be Quality Agreements in this sense. Agreements made by the Parties outside the virtualfab Platform are not part of the Quality Agreement unless they are subsequently entered on the virtualfab Platform.
7.3 In the case of Goods with digital elements or other digital contents, the Producer shall only owe the provision and, if applicable, the updating of the digital contents insofar as this expressly results from a Quality Agreement in accordance with clause 7.2.
7.4 In principle, the Producer is not liable for defects of which the Customer is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB). Furthermore, the Customer’s claims for defects presuppose that he has complied with his statutory duties of examination and notification (§§ 377, 381 German Commercial Code – HGB). If a defect becomes apparent upon delivery, inspection or at any later time, the Producer must be notified thereof in writing without delay. In any case, obvious defects must be notified in writing within 5 working days of delivery and defects not apparent on inspection within the same period of time from discovery. If the Customer fails to carry out the proper inspection and/or to give notice of defects, the Producer’s liability for the defect that was not notified or not notified in time or not notified properly is excluded in accordance with the statutory provisions. In the case of Goods intended for incorporation, attachment or installation, this shall also apply if the defect only became apparent after the corresponding processing as a result of the breach of one of these obligations; in this case, the Customer shall in particular have no claims for reimbursement of corresponding costs (“removal and incorporation costs”).
7.5 If several Producers are involved within a “virtual factory” on the virtualfab Platform, each of which delivers its Goods directly to the downstream Producer, the respective receiving Producer shall be obliged vis-à-vis the Customer to perform the latter’s statutory duties of inspection and notification (§§ 377, 381 HGB) with regard to the Goods received and on the basis of the Quality Agreement of the virtualfab Platform for the Customer and to notify the delivering Producer of any defects without delay via the virtualfab Platform.
7.6 If the delivered item is defective, the Producer shall, at the Customer’s choice, provide subsequent performance by remedying the defect (rectification) or by delivering an item free of defects (replacement).
7.7 The Customer shall give the Producer the time and opportunity required for the subsequent performance owed, in particular to hand over the Goods complained about for inspection purposes. In the event of a replacement delivery, the Customer shall return the defective item to the Producer at the Producer’s request in accordance with the statutory provisions. Subsequent performance does not include the dismantling, removal or uninstallation of the defective item or the installation, attachment or fitting of a defect-free item by the Producer if the Producer was not originally obliged to perform these services; claims by the Customer for reimbursement of corresponding costs (“dismantling and fitting costs”) remain unaffected by this.
7.8 The Producer shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions and these GTCP if there is actually a defect. Otherwise, the Producer may demand reimbursement from the Customer of the costs incurred as a result of the unjustified request to remedy the defect if the Customer knew or was negligent in not knowing that there was actually no defect.
7.9 In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the Customer has the right to remedy the defect himself and to demand reimbursement from the Producer of the expenses objectively necessary for this. The Producer must be informed immediately, if possible in advance, of such a self-remedy. The right of self-execution does not exist if the Producer would be entitled to refuse a corresponding subsequent fulfilment according to the legal regulations.
7.10 If a reasonable period of time to be set by the Customer for subsequent performance has expired unsuccessfully or is dispensable under the statutory provisions, the Customer may withdraw from the Production Contract or reduce the purchase price in accordance with the statutory provisions. In the case of an insignificant defect, however, there is no right of withdrawal.
7.11 Otherwise, in the event of material defects or defects of title, the Customer shall be entitled to claim damages and reimbursement of expenses in accordance with the statutory provisions.
- Other liability of the Producer
8.1 Insofar as nothing to the contrary arises from these GTCP including the following provisions, the Producer shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
8.2 The Producer is liable for damages – irrespective of the legal grounds – within the scope of liability based on fault in the event of intent and gross negligence. In the case of simple negligence, the Producer is only liable, subject to legal limitations of liability (e.g. care in own affairs; insignificant breach of duty), in the following cases
a) for damages resulting from injury to life, body or health,
b) for damages arising from the breach of an essential contractual obligation (obligation the fulfilment of which makes the proper performance of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, the Producer’s liability shall be limited to compensation for the foreseeable, typically occurring damage.
8.3 The limitations of liability according to clause 8.2 shall also apply to third Parties and to breaches of duty by persons (also in their favour) for whose fault the Producer is responsible according to statutory provisions. They do not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the Goods has been assumed and for claims of the Customer under the German Product Liability Act (ProdHaftG).
8.4 Due to a breach of duty that does not consist of a defect, the Customer may only withdraw or terminate if the Producer is responsible for the breach of duty. A free right of termination of the Customer (in particular according to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
- Supplier recourse
9.1 The Customer shall be entitled to the legally determined claims for expenses and recourse within a supply chain (supplier recourse pursuant to §§ 478, 445a, 445b or §§ 445c, 327 (5), 327u BGB) without restriction in addition to the claims for defects. In particular, the Customer is entitled to demand from the Producer exactly the type of subsequent performance (repair or replacement) that the Customer owes its Customer in the individual case; in the case of Goods with digital elements or other digital content, this also applies with regard to the provision of necessary updates. The statutory right of choice (§ 439 (1) BGB) shall not be restricted hereby.
9.2 Before the Customer acknowledges or fulfils a claim for defects asserted by its Purchaser (including reimbursement of expenses pursuant to §§ 445a (1), 439 (2), (3), (6 p. 2), 475 (4) BGB), the Customer shall notify the Producer and request a written statement, briefly explaining the facts. If a substantiated statement is not made within a reasonable period of time and if no amicable solution is reached, the claim for defects actually granted by the Customer shall be deemed to be owed to the Purchaser. In this case, the Producer shall be obliged to prove the contrary.
9.3 The Customer’s claims arising from supplier recourse shall also apply if the defective Goods have been combined with another product or further processed in any other way by the Customer, his Customer or a third party, e.g. by installation, attachment or installation.
- Producer liability
10.1 If the Producer is responsible for product damage, he shall indemnify the Customer against third-party claims to the extent that the cause lies within his sphere of control and organisation and he himself is liable in relation to third Parties.
10.2 Within the scope of its indemnification obligation, the Producer shall reimburse expenses pursuant to §§ 683, 670 BGB arising from or in connection with a third party claim including recall actions carried out by the Customer. The Customer shall inform the Producer about the content and scope of recall measures – as far as possible and reasonable – and give him the opportunity to comment. Further legal claims remain unaffected.
10.3 The Producer shall conclude and maintain product liability insurance with a lump sum coverage of at least EUR 10 million per personal injury/property damage. The existence of a corresponding insurance policy is to be proven by presenting the insurance policy to fabnamix via the virtualfab Platform.
- Statute of limitation
11.1 Notwithstanding § 438 (1) No. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be 18 months from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
11.2 If the Goods are a building or an object which has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory regulation (§ 438 (1) No. 2 BGB). Other special statutory provisions on the limitation period (in particular § 438 (1) No. 1, (3), §§ 444, 445b BGB) shall also remain unaffected.
11.3 The above limitation periods of the law on sales contracts also apply to contractual and non-contractual claims for damages of the Customer based on a defect of the Goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages of the Customer pursuant to clauses 8.2 and clause 8.2a) as well as under the German Product Liability Act shall become statute-barred exclusively in accordance with the statutory limitation periods.
- Fulfilment reservation
12.1 The performance of the Production Contract is subject to the provision that there are no obstacles due to German, US-American or other applicable national, EU or international regulations of foreign trade law as well as no embargos or other sanctions.
12.2 The Customer is obliged to provide all information and documents required for the export, transfer or import.
13.1 The law of the Federal Republic of Germany shall apply to these GTCP and the contractual relationship between the Parties to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
13.2 In case of different language versions of these GTCP, the German version shall prevail in questions of interpretation.