Terms and Conditions

General Standard Business Terms and Conditions
Version: 10/2015
I. General Information
  1. The contractual relations between defacto realations GmbH (hereinafter referred to as “defacto realations”) and customers who are entrepreneurs within the meaning Section 14 of the German Civil Code [BGB] shall be based exclusively on the following General Standard Business Terms and Conditions. Business terms or conditions on the part of the customer, even in the knowledge thereof, that deviate from our General Standard Terms and Conditions of Business shall not be a component of the agreement.
  2. The offers of defacto realations are always nonbinding.
  3. The present General Standard Terms and Conditions of Business shall be considered as accepted with placement of the order, however also upon acceptance of the merchandise, use of the service or commencement of use of a rented product at the latest. These General Standard Terms and Conditions of Business shall apply to any future business in the case of regular business relations.
II. Conclusion of Contract
  1. By placing a purchase order for merchandise or a service, the customer makes a binding commitment to purchase the merchandise ordered, to use the service and/or to want to rent the respective product. The customer shall be bound to this declaration for a period of two weeks. defacto realations is entitled to accept the contract offer in the purchase order within a period of two weeks following receipt. Acceptance may be declared in writing, electronically, through delivery of the merchandise or provision of the service to the customer.
  2. Conclusion of contract shall take place under the reservation of proper and timely self-delivery by the suppliers of defacto realations. This shall only apply if defacto realations may not be held responsible for non-delivery and/or improper delivery, in particular in the case of conclusion of a matching hedging transaction with the suppliers of defacto realations. The customer shall be immediately notified with regard to the unavailability of the service and the consideration, insofar as already provided, shall be immediately returned.
  3. As a rule, only the product description used by defacto realations shall be considered to be the agreed merchandise quality. Public statements, promotion or advertising by defacto realations shall not represent a contractually stipulated indication of the quality of the merchandise. Specimens and samples are considered as approximate illustrative pieces for quality, dimensions and color. No legal claims may be derived hereof. Within reason, defacto realations shall reserve the right to technical changes as well as changes in form, color and/or weight.
  4. The customer shall not be provided with any warranties within the meaning of the law from defacto realations; manufacturer’s warranties shall remain unaffected.
III. Delivery Period and Delivery Obligation
  1. Our written or electronic order confirmation shall be determining for the scope, type and time of delivery. Partial services and deliveries by defacto realations shall be permissible.
  2. Events involving force majeure that make performance of a service or an obligation substantially more difficult or impossible shall entitle the party concerned to postpone the performance of this service or obligation for the duration of the hindrance with an appropriate period for response. Labor disputes at the companies of the contracting parties or labor disputes at third-party companies shall be equivalent to force majeure. If, due to the type of hindrance, it may not be expected that the service will be provided within a reasonable period of time, then each contracting party shall be entitled to withdraw from the present agreement either in part or as a whole due to the part of the service that has yet to be performed.
  3. Unless otherwise agreed, defacto realations is entitled to perform already prior to a specified date of delivery. Likewise, unless otherwise agreed, a service that is provided by defacto realations one or two weeks maximum beyond a delivery date shall not be considered as late.
  4. Delivery periods shall be considered as observed if the merchandise has left the factory or distribution center, defacto realations has begun with the service or has made the respective product available or the customer has received a notification of readiness to perform. Subsequent changes to the agreement correspondingly extend the delivery period.
  5. In the case of agreement where performance consists of several deliveries/services nonperformance or defective or late provision of individual deliveries or services shall not have an influence on other services/deliveries arising out of the agreement.
  6. Delay in payment, a petition to institute insolvency proceedings, statutory declaration of disclosure in lieu of an oath in accordance with Section 807 of the German Code of Civil Procedure [ZPO], emergent financial difficulties or knowledge of substantial degradation of the customer’s financial circumstances shall entitle defacto realations to immediately discontinue deliveries and services and to refuse fulfillment of current agreements. At the same time, defacto realations shall be entitled to make any claims not yet due against the customer immediately due and payable.
IV. Shipment, Passage of the Risk
  1. The choice of packaging, transport route and the means of transport shall be left up to defacto realations unless otherwise agreed between the contracting parties.
  2. The risk of accidental perishing and degradation of the merchandise shall pass to the customer with handover and/or delivery of the item to the carrier, the freight forwarder or the person or establishment determined to carry out shipment. Delivery shall be the same if the customer is in delay of acceptance.
  3. If defacto realations owes a certain outcome, i.e., customizable work (e.g., draft), then acceptance shall be deemed as having taken place if it is not declared or refused within a period of seven days after delivery if the work result essentially corresponds to the agreements. If there are substantial deviations, then defacto realations shall eliminate these deviations within an appropriate period and resubmit the work result for acceptance. Acceptance shall be considered as effected with payment or use of the work at the latest.
  4. Insurance against theft, breakage, transport, fire and water damage caused or other insurable transport risks shall only be taken over at a charge for the costs on special request.
V. Prices, Payment, Terms of Payment
  1. Any contractual payment obligations shall be satisfied exclusively in EUROS.
  2. The prices are net prices and do not include the legally valid value added tax ex factory and/or distribution center. The customer shall be responsible for freight, packaging, import costs, customs and other supplementary charges.
  3. Invoices shall be payable within 14 days as of the date of invoice.
  4. Interest on arrears in the amount of 9% above the respective base interest rate in accordance with Section 247 of the German Civil Code [BGB] shall be due if the period for payment has been exceeded. Assertion of further damage caused by delayed performance or other rights shall remain reserved.
  5. No interest shall be paid on advance payments and installments.
  6. The customer shall only be entitled to setoff by or retention of payments if the customer’s counterclaim is the subject of declaratory judgment. The customer may exercise a right of retention only if the customer’s counterclaim is based on the same contractual relationship.
  7. When settling invoices the customer shall be required to indicate the customer number and number of the invoice. The customer shall be responsible for any delays or accounting errors that occur due to failure to comply with these obligations.
VI. Expenditures
  1. Each contracting party shall bear the postage, telephone and fax costs that it incurs in the course of business with the respective other contracting party.
  2. Travel expenses shall be charged to the customer as follows:
    – cost of outside services: based on receipts;
    – hourly expenditure: see current standard price list;
    – travel expenses in one’s own passenger car: EUR 0.51/km.
  3. All other costs such as courier costs, transport costs for preparation and supervision of advertising productions as well as color copies and color printouts that are ordered by the customer shall be charged to the customer based on receipts.
VII. Claims Based on Defect
  1. defacto realations shall provide the services in a proper and professional manner and in accordance with the individual orders.
  2. defacto realations shall provide warranties for the quality of the services only insofar as expressly agreed.
  3. If defacto realations provides services in accordance with the provisions of the purchase agreement and the delivered item is defective, then defacto realations shall eliminate the defect within an appropriate period or subsequently deliver items free of defect. If the subsequent performance fails, then the customer shall be entitled to the statutory rights subject to the limitation of liability under Clause VIII. However, the right to rescission shall be limited to the delivered item.
  4. If defacto realations provides services in accordance with the provisions of a contract for work, then acceptance shall be required. If these services are defective, then defacto realations shall eliminate the defect within an appropriate period or provide new work. If the subsequent performance fails, then the customer shall be entitled to the statutory rights subject to the limitation of liability under Clause VIII. However, the right to rescission shall be limited to the respective individual services.
  5. If defacto realations provides services in accordance with the provisions of a tenancy agreement, then liability without default for defects in the rented items that already existed upon conclusion of the agreement shall be excluded.
  6. If defacto realations provides services in accordance with the provisions of a service agreement, then defacto realations shall not own a certain outcome. However, defacto realations shall perform such services with the care of a diligent businessman and strive to achieve the pursued objectives.
VIII. Liability
  1. defacto realations shall be liable – on any legal grounds whatsoever – only in the case of
    a) intent;
    b) gross negligence on the part of defacto realations, its legal representatives or its vicarious agents;
    c) culpable injury to life, limb and health;
    d) defects that defacto realations intentionally concealed or the absence of which defacto realations guaranteed;
    e) defects in the delivery item if liability is provided for in accordance with product liability law for personal injury and property damage to privately used items.
  2. In the case of culpable violation of substantial contractual obligations defacto realations shall also be liable for gross and ordinary negligence. Liability for ordinary negligence shall be limited to damage reasonably foreseeable upon conclusion of contract, however no more than the amount of the order value.
  3. The customer may not assert claims for payment of damages due to blameless mistakes and printing or transmission errors that entitle defacto realations to contestation as a consequence of such contestation.
  4. Other claims shall be excluded.
IX. Statute of Limitations

All of the customer’s claims shall fall under the statute of limitations within a period of twelve months. However, statutory periods shall apply for claims for damages in accordance with Clause VIII No. 1.

X. Rights to Material and Immaterial Work Results
  1. defacto realations shall be initially entitled to and own the work results obtained in performance of the order. This also includes the object and source codes as well as any pertinent documents in their respective stage of development. The customer shall not have a claim vis-à-vis defacto realations to disclosure of the procedures and methods underlying the calculation results (claim for information). If an industrial property right accrues to the customer, then the customer shall be obliged to grant defacto realations a free and unrestricted right of use for all known and inchoate types of use in terms of space, time and location.
  2. defacto realations shall grant the customer the rights of use required for performance of the agreement for the term of the corresponding agreement. Any transfer of the granted rights of use shall be possible only with the consent of defacto realations.
XI. Industrial Property Rights
  1. In the case of customized items made to order the customer shall be liable to defacto realations for the absence of industrial property rights on the part of third parties for the commissioned deliveries, indemnify defacto realations against any claims asserted by third parties and replace any damage incurred by defacto realations as a result of violation of this obligation.
  2. Any drafts and design proposals on the part of defacto realations shall be treated in a confidential manner and may not be disclosed to third parties.
  3. Any and all drawings, design plans and samples to which the customer has access shall remain the intellectual property of defacto realations.
XII. Form

Any amendments and modifications of the agreements reached, including these General Standard Business Terms and Conditions, shall be made in writing in order to become effective. With the exception of managing directors or holders of general power of attorney, the staff of defacto realations are not entitled without special power of attorney to reach any deviating verbal agreements. Transmission by fax – in all other respects telecommunications transmission, in particular via e-mail – shall not suffice in order to satisfy the requirement for written form.

XIII. Place of Performance, Place of Jurisdiction, Other Agreements
  1. The place of performance shall be Erlangen.
  2. The exclusive place of jurisdiction for any disputes arising out of the present agreement shall be Erlangen.
  3. The law obtaining in the Federal Republic of Germany shall apply. The United Nations (Vienna) Convention on Contracts for the International Sale of Goods (CISG) shall not apply. The special terms and conditions of our products indicated with respective price lists shall apply by way of supplement.
  4. The customer alone shall be responsible for determining the suitability of merchandise and services for the purpose intended.
  5. Information in accordance with the German Federal Data Protection Law: Any customer data required for order processing shall be stored. 6. If individual provisions should be or become invalid in part or as a whole, then the validity of the remaining provisions shall remain unaffected.

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Please feel free to contact us. Send us an e-mail or give us a call:
Am Pestalozziring 1-2
91058 Erlangen
T: +49 9131-9712-0
Leopoldstraße 53
80802 München
T: +49 89-2154 7093-0
Schanzenstraße 6-20
51063 Köln
T: +49 22 1-4744 105-0