Terms and Conditions
1. General Terms and Conditions (Terms of Delivery) (as of February 2019)
- General Provisions
1.1. These general terms and conditions apply to all contracts concluded between Kreatize GmbH, Heinrich-Roller-Straße 15, 10405 Berlin, registered in the commercial register of the district court of Charlottenburg under HRB 195200 B (hereinafter referred to as “provider”), and customers of the provider (hereinafter referred to as “customer”), who place orders on the website www.kreatize.com.
1.2 All deliveries and services of the provider are exclusively carried out based on these general terms and conditions. These general terms and conditions also apply to all future business relationships between the provider and the customer, even if they are not expressly agreed again. Unless otherwise explicitly agreed in writing, the inclusion of the customer’s terms and conditions and/or other provisions will be objected to.
1.3. The provision of the offers and services are exclusively for customers who are regarded as entrepreneurs according to § 14 (1) BGB (German Civil Code). An entrepreneur is any natural or legal person, or a legal partnership, that acts in exercising its independent professional or commercial activity when concluding a legal transaction. The customer hereby guarantees the provider, through an independent warranty promise pursuant to § 311 (1) BGB, that he concludes the contract with the provider in his capacity as an entrepreneur and that the production of the contractual goods does not violate any statutory prohibitions. In particular, that the products are not intended for use in weapons and that they are not safety-related components or components intended for medical use.
- Contractual Object
2.1. The contractual object is the production of goods by the provider. The details, particularly the principal characteristics of the goods, ensue from the customer’s request for proposal, which he makes on the provider’s website, as well as the binding order the customer places with the provider.
2.2. The provider is entitled to commission third parties with the production and delivery of the goods. The provider is not obligated to inform the customer thereof.
- Conclusion of the Contract
3.1. The showcasing of production processes by the provider on its website www.kreatize.com does not constitute a binding offer to conclude an agreement with the customer. Moreover, a tender for the services of production of the customer-specified components by means of a specific production process, which the provider sends to the customer based on a customer inquiry (hereinafter referred to as “quote”), does not constitute a binding offer to conclude a contract with the customer; it is non-binding and subject to alteration. The quote is a non-binding invitation to the customer to commission the production of the specified goods using the specified production process.
3.2. Only once the order has been placed for the production of the specified goods by means of the specified production process, it is considered a binding contractual offer of the customer. Unless otherwise agreed between the parties in the order, the provider is entitled to accept the customer’s offer within 14 days of the provider receiving it. The order is only deemed concluded between the customer and the provider through the explicit acceptance of the offer by the provider (order confirmation). The provider is also entitled to accept the customer’s offer without prior explicit acceptance by sending the goods.
3.3. After the provider receives the customer’s order, the customer will get an automatically generated email, with which the provider confirms to have received the order. This confirmation of receipt does not constitute the acceptance of the contractual offer of the customer. A contract does not materialise between the provider and the customer through the confirmation of receipt.
3.4. The order, the order processing, and the transmission of all information required in connection with the conclusion of the contract takes place via the provider’s website and/or partly automated by email. The customer should, therefore, ensure that the specified email address provided to the provider is correct, that the receipt of the emails is assured by technical means, and that SPAM filters will not intercept emails.
3.5. The delivery date communicated to the customer with the express acceptance of the offer (order confirmation) is a non-binding specification. The communicated delivery date is not deemed to be a fixed date. With the notification of the prospective delivery date, the provider accepts no responsibility or guarantee for the compliance with the indicated date. Delay in delivery by the provider is determined by the statutory provisions with the stipulation that the customer must give a reminder and grace period, whereby the grace period must be at least ten working days.
3.6. The provider is always entitled to partial deliveries and partial services.
- Prices, Shipping Costs
4.1. The prices communicated to the customer as well as the shipping costs constitute final prices. The prices include all price components and incurring taxes.
4.2. The incurring shipping costs are not included in the purchase price. They must be paid additionally by the customer.
4.3 The customer receives a full VAT invoice.
- Terms of Payment
5.1. Payment can be made via:
- Invoice/advance payment
- Direct debit
- Wirecard payment method (§ 6)
5.2. Unless otherwise stipulated in the individual payment methods, the pecuniary claims per the contract are due for payment immediately. If the parties agree that the customer can pay on account, the pecuniary claims per the contract are due ten days after the invoice date.
5.3. If the customer defaults on payment, the customer is obligated to pay default interest of 9 percentage points above the base rate. The provider expressly reserves the right to assert claims for further damages.
- Additional GTC of the Payment Service Provider
6.1. To be able to offer customers attractive payment methods, the provider collaborates with Wirecard UK & Ireland Ltd. (hereinafter referred to as “Wirecard”). If an operative purchasing contract is concluded between you and us when using a Wirecard payment method, we relinquish our payment claim to Wirecard or its partner bank.
6.2. If the customer makes use of one of the Wirecard payment methods offered by the provider, he agrees to the disclosure of his personal data and of his order to Wirecard to verify the identity and credit rating, as well as the execution of the contract. Further details can be found in the additional GTC and data protection notice for Wirecard payment methods, which are an integral part of these terms and conditions. The information can be found under https://www.wirecardbank.de/agb/ and always applies when the customer decides to use a Wirecard payment method.
- Force Majeure, Right to Withdraw
7.1. For all delivery and service delays that are due to force majeure and events that make the delivery considerably more difficult or impossible for the provider (especially war or emergency conditions, riots, fights, lockouts, official directive, shortage of raw materials, and illnesses; all these also apply to the provider’s suppliers), the provider is not liable even if deadlines and dates have been bindingly agreed.
7.3. The cases specified in Clauses 7.1 and 7.2 entitle the provider to postpone the delivery for the duration of the hindrance plus a reasonable start-up period or to wholly or partly withdraw from the contract. This also applies to cases where the delivery delay is attributable to the provider’s suppliers, insofar as the provider makes reasonable efforts to deliver immediately.
7.4. In circumstances in which the provider exercises its right to withdraw due to the reasons mentioned above, the provider is only obligated, excluding any other claims of the customer, to repay any payments that have already been made by the customer.
- Delivery Time, Delivery, and Dispatch
8.1. Delivery time depends on the goods that are to be produced and is subject to the separate agreement made in individual cases. The production and, if applicable, the agreed delivery time generally commence after full receipt of payment.
8.2. Delivery is ex-works (Incoterms®2010 EXW), i.e., the provider fulfils its obligation by making the goods available at its plant, factory, warehouse, or place of business or, if a third party is commissioned to manufacture the goods, at the third party’s plant, factory, warehouse, or place of business. The provider does not consign the goods or clear them for export.
- Right of Retention/Offset
9.1. A customer can only exercise his right of retention insofar as it concerns counterclaims from the same contractual relationship.
9.2 The customer shall only be entitled to offset if the counterclaim of the customer has been legally determined or is not disputed by the provider.
- Retention of title
10.1. The goods remain the property of the provider until the purchase price has been paid in full.
10.2. The provider retains ownership of the goods until all claims arising from the current business relationship have been ultimately settled. Before the transfer of ownership of the reserved goods, a hypothecation or security transfer by the customer is not allowed.
10.3. The customer is permitted to resell the goods in the proper course of business. In this case, he hereby transfers all claims in the amount of the invoice sum, which arise from the resale, to the provider accepting the transfer. The customer is also authorised to collect the amounts receivable. If the customer does not duly fulfil his payment obligations, the provider reserves the right to collect the amounts receivable itself.
10.4. In the case of combination and mixing of the reserved goods, the provider acquires co-ownership of the new item concerning the invoice value of the reserved goods to the other processed items at the time of processing.
10.5. The provider is obliged to release the securities at the customer’s request to the extent that the realisable value of the securities of the provider exceeds the value of the secured receivables by more than 10%. The selection of securities to be released is incumbent upon the provider.
- Property Rights
11.1. It is the customer’s responsibility to ensure that the provider, or contractors of the provider, does not violate any property rights of third parties, in particular no trademark, company, name, patent, utility model, design, equipment, industrial design or copyrights of third parties (including the corresponding patent applications) (“property rights”) through the manufacture, possession, provision, processing, or sale of the goods to be manufactured. If the customer culpably violates this obligation, he must, on the very first request, release the provider and the provider’s contractors from any claims of third parties from such actual or alleged infringements of intellectual property rights and bears all costs and expenses incurred by the provider in connection with this infringement, in particular legal costs and defence costs, on the one hand, and any costs resulting from the compliance with a possible duty of omission, on the other hand.
11.2. The parties must inform each other immediately if any risk of injury and alleged infringement become known to them and will collaborate to amicably counteract possible infringement claims within the limits of what is reasonable.
- Warranty Rights of the Customer, Notice of Defects
12.1. Warranty rights and third-party warranty rights of the customer assume that he has duly fulfilled his duties of inspection and notification pursuant to § 377 HGB (German Commercial Code). For this purpose, the customer must inspect the goods immediately and with the requisite care, for quality and quantity deviations and obvious defects and must notify the provider thereof in writing within seven days from receipt of the goods. Timely dispatch is sufficient to observe the deadline. This also applies to hidden defects discovered later, from the time of discovery.
12.2. Unless expressly agreed otherwise, the warranty claims are governed by the statutory provisions with the following deviations: If any defects are discovered, the provider shall, at its own option, repair or replace the goods. If the attempted repair fails twice, the customer is permitted to request a reduction in price or to withdraw from the contract.
12.3. The warranty period is one year from the date of delivery. This restriction does not apply to claims based on damages from injury to life, limb, or health or from the violation of a substantial contractual obligation, the fulfilment of which enables the proper execution of the contract in the first place, and on whose compliance the customer can steadily rely (cardinal obligation), as well as for claims due to other damages caused by an intentional or grossly negligent breach of duty by the provider or its vicarious agents.
12.4. The provider generally does not assume any guarantee for the composition of the contractual goods, unless such a guarantee has been agreed in individual cases. The provider assumes no liability for the usability, functionality, operability, resilience, durability desired by the customer and other suitability of the goods to be manufactured and the materials used for the operational purposes intended or objectively expected by the customer (“construction risk”). The customer alone bears the construction risk. This also applies if the provider or the provider’s subcontracted manufacturers make suggestions for the modification of the construction and these are accepted by the customer or if certain operational purposes are objectively foreseeable for the provider or arise from the consideration of the purchase order. The customer is solely responsible for ensuring that the construction meets all regulatory requirements. The customer, on the very first request, indemnifies the provider from any claims and damages of third parties arising from or being asserted against the provider, if the contractual goods, in breach of these general terms and conditions, are used as or in weapons, medical equipment, or safety-related components.
12.5. Insofar as the provider commissions third parties to manufacture the contractual goods and the provider is entitled to warranty claims against the third party, the provider hereby transfers these warranty claims to the customer in full (“third-party warranty rights”).
12.6. The customer has the right to demand that the provider asserts the third-party warranty rights on behalf of the customer vis-à-vis the third-party manufacturer.
12.7. The provider and the customer must closely cooperate when exercising the third-party warranty rights. The provider is not obligated to bear any costs incurred for the exercising of these rights.
12.8. There are no claims for defects in case of insignificant deviation from the agreed composition, insignificant impairment of the usability, natural wear and tear, as well as damages that arise after the transfer of risk as a result of faulty or negligent handling, excessive use, unsuitable operational equipment, or due to special external influences that are not foreseen as per the contract.
12.9. The customer’s claims for required expenditure for the purpose of supplementary performance, in particular transport, road, labour, and material costs, are excluded insofar as expenses increase because the goods delivered by the provider have subsequently been transferred to a location other than the customer’s establishment, unless the transfer corresponds to the intended use.
- Liability of the Provider
13.1. The provider is unrestrictedly liable for damages resulting from injury to life, limb, or health, in all cases of intent and gross negligence, malicious concealment of a defect, assumption of the warranty for the quality of the purchase item, and for damages under the German Product Liability Act.
13.2. Besides that, the following limited liability applies: For slight negligence, the provider is liable if substantial contractual obligations are involved, the fulfilment of which enables the proper execution of the contract in the first place, and on whose compliance the customer can steadily rely (cardinal obligation). Liability for slight negligence is limited in amount to damages foreseeable at the time of contract conclusion, the occurrence of which can typically be expected. This limitation of liability also applies in favour of vicarious agents of the provider.
13.3. Liability for slight negligence concerning inessential contractual obligations is excluded.
13.4. Data communication via the Internet cannot be guaranteed error-free and/or be available at all times according to the current state of technology. The provider is not liable for the continuous or uninterrupted availability of the website and the services offered thereon.
- Damages in Transit
If goods are delivered with obvious damages caused in transit, the customer must make a complaint about such defects to the delivery agent and contact the provider immediately. The complaint and the establishment of contact facilitate the provider in asserting its own claims against the freight carrier and/or the transport insurance.
- Confidentiality Obligation
15.1. For purposes of this agreement, “confidential information” refers to all non-public, confidential and/or proprietary information of the customer, including information related to technology, products, intellectual property, finance, activities and business, including technical drawings, information about components or business information in relation to such technical drawings and components, which the customer discloses to the provider, whether in written, electronic, or verbal form, in particular technical data, scientific information, research objectives, inventions, strategic plans, development plans and official plans, project records, guidelines and procedures, information about procedures or technologies, and the fact that the customer commissioned the provider.
15.2. The provider is obligated to keep all confidential information secret. The provider undertakes to only use the confidential information for the purpose of evaluating the requirements disclosed by the customer, for creating the offer for the customer, and for the production of the ordered goods or components.
15.3. Irrespective of the other provisions of this Clause 15, the provider has the right to disclose the confidential information to the commissioned (sub) contractors or manufacturers if this is deemed appropriate for the fulfilment of the contract. The provider will ensure that all (sub) contractors or manufacturers who have access to the confidential information, will adhere to the confidentiality obligation to the same degree as the provider in this agreement.
15.4. The confidentiality obligations of the provider under this Clause 15 shall not apply to confidential information
15.4.1. which is already available to the public, or
15.4.2. which was made available to the public after disclosure, without this being due to an unlawful act on the part of the provider, or
15.4.3. where the provider can verify that it legitimately obtained the information from a third party and that said third party was entitled to disclosure and did not breach any confidentiality obligation upon disclosure, or
15.4.4. where the provider can verify that this information was independently developed with no connection to confidential information or use of confidential information by the provider, or was developed for the provider, which can be proved by the provider with written records, or
15.4.5. which the provider must disclose due to applicable law.
15.5. If the provider is obligated to disclose confidential information on account of an administrative or court order, the provider will inform the customer immediately to enable him to participate in such a process and to take appropriate measures to prevent disclosure.
- Choice of Law, Place of Fulfilment, Place of Jurisdiction
16.1. German law applies to the exclusion of the conflict of law provisions. The UN Sales Convention shall not apply.
16.2. The place of fulfilment for all services arising from the existing business relationship with the provider and the place of jurisdiction is the headquarter of the provider. The right to invoke the court at a different statutory place of jurisdiction remains unaffected hereby.
2. General terms and conditions (Conditions of purchase) (as of February 2019)
- General Provisions
1.1. These general terms and conditions apply to all contracts concluded between Kreatize GmbH, Heinrich-Roller-Straße 15, 10405 Berlin, registered in the commercial register of the district court of Charlottenburg under HRB 195200 B (hereinafter referred to as “Kreatize”) and the manufacturer (hereinafter referred to as “manufacturer”).
1.2 All deliveries and services of Kreatize are exclusively carried out based on these general terms and conditions. These general terms and conditions also apply to all future business relationships between Kreatize and the manufacturer, even if they are not expressly agreed again. Unless otherwise explicitly agreed in writing, the inclusion of the manufacturer’s terms and conditions is objected to.
1.3. A binding contract between the manufacturer and Kreatize materialises under these conditions of purchase, by Kreatize sending the manufacturer a written (e.g., by email) order and the manufacturer expressly accepts this order.
- Contractual object
2.1. Kreatize concludes contracts with its customers for the manufacture and shipping of goods. Kreatize commissions the manufacturer to produce these goods. The contractual object is thus the production of goods by the manufacturer for Kreatize’s customers.
2.2. The specifications of the goods to be manufactured are based on the request for proposal agreed with the customer, which Kreatize sends to the manufacturer separately. When manufacturing the goods, the manufacturer must comply with the accepted rules of technology and the applicable safety regulations and standards. If the manufacturer has received drawings, samples, or other instructions or documents, it will comply with them as far as the workmanship and characteristics of the delivery item are concerned. Changes to the delivery item, to an already authorised production process, or to its relocation require a timely written notification by the manufacturer and the prior express consent of Kreatize in writing.
2.3. The manufacturer is not entitled to commission third parties with the production of the goods unless Kreatize expressly agrees to this in writing beforehand.
- Prices, Shipping Costs
3.1. The prices and shipping costs agreed between the manufacturer and Kreatize constitute final prices. The prices include all price components and incurring taxes.
3.2. The incurred shipping costs are not included in the purchase price. Kreatize must bear the shipping costs.
3.3. Payment is made based on proper invoicing, including a full VAT invoice after 45 days unless another term of payment has been agreed.
- Delivery Time, Contractual Penalty, and Delivery
4.1. Delivery time depends on the goods to be produced and is subject to the separate agreement made in individual cases. The individually agreed delivery time or delivery date is binding (relatively fixed date transaction). If the manufacturer does not comply with the agreed delivery time or delivery date, Kreatize can claim for payment of a contractual penalty of 0.5% per started week, but no more than 5% of the total order value (net) from the time of the delivery delay. Any further rights that Kreatize has, in particular the right to claim damages for service delay or to withdraw from the contract with the manufacturer, remain unaffected in case of forfeiture of the contractual penalty.
4.2. Delivery is ex-works (EXW (Incoterms®2010 EXW)), i.e., the manufacturer fulfils its obligation by making the goods available at its plant, factory, warehouse, or place of business. The manufacturer does not consign the goods or clear them for export.
4.3. Kreatize is entitled to have the respective goods taken over directly by the customer.
- Right of Retention, Reservation of Ownership
5.1. A manufacturer can only exercise its right of retention insofar as it concerns claims from the same contractual relationship.
5.2. Once the purchase price for the goods to be manufactured has been paid in full, and the handover of the manufactured goods to the transport carrier has been completed, the goods become the property of Kreatize. Any prolonged or extended reservation of ownership by the manufacturer is excluded.
- Warranty and Liability
6.1. Unless otherwise governed below, the statutory warranty and liability regulations apply.
6.2. If any defects are discovered, the manufacturer shall, at the option of Kreatize, repair or replace the goods. If the attempted repair fails twice, Kreatize may, at its option, demand a reduction in price or withdraw from the contract. In the case of repair, the manufacturer does not have to bear the increased costs of transferring the goods to a place other than the place of fulfilment, unless the transfer corresponds to the intended use. Furthermore, the manufacturer must be given a reasonable grace period in case of repair. In both cases (repair or replacement), the manufacturer bears all costs incurred by it or Kreatize, e.g., transport, road, labour, and material costs or costs incurred due to a receiving inspection at the customer that exceeds the usual scope. The same applies to any resulting installation and expansion costs. In the case of subsequent delivery, the manufacturer must take back the defective goods at its expense.
6.3. If the supplementary performance fails, if it is unacceptable to Kreatize, or if the manufacturer does not begin immediately, Kreatize is permitted to withdraw from the contract/order without giving notice and to return the products at the risk and expense of the manufacturer. In these and other urgent cases, particularly to intercept acute danger or to avoid major damage when it is not possible to inform the manufacturer of the defect and give it notice, albeit short-term, Kreatize may rectify the defects itself or have the defect rectified by a third party at the expense of the manufacturer.
6.4. Kreatize is entitled to assign its warranty rights to the customer and/or to assert them on behalf of the customer vis-à-vis the manufacturer.
6.5. Any further claims by Kreatize, in particular for damages or manufacturer guarantees, remain unaffected.
- Product Liability
7.1. If the manufacturer causes a product defect and/or (depending on the underlying basis for the claim) must represent it, the manufacturer is obligated, on the very first request, to pay damages or indemnify Kreatize against all claims of third parties, provided that the cause of the claim lies within the control and organisation of the manufacturer, and the manufacturer itself would be liable to third parties. If there is contributory causation or contributory negligence on the part of Kreatize, the manufacturer may claim such contributory causation or contributory negligence against Kreatize. In the relationship between Kreatize and the manufacturer, the respective proportion of compensation for damages is based on the corresponding proportion of contributory negligence (§ 254 BGB (German Civil Code)) and/or contributory causation.
7.2. The manufacturer’s obligations under Clause 7.1 also include the costs that Kreatize incurs for the utilisation of legal assistance or otherwise in connection with the defence against product liability claims. If Kreatize is subject to a special burden of proof vis-à-vis the aggrieved party, this burden of proof also applies in the relationship between Kreatize and the manufacturer, insofar as the circumstances to be proved do not fall within Kreatize’s area of responsibility.
7.3. For product liability cases under Clause 7.1, the manufacturer will, as far as reasonable, provide Kreatize with all the necessary information and support in order to defend the claims.
7.4. If a recall action or owner notification programme is required to comply with any law, provision, regulation, or other government requirement, or as a security measure to prevent personal injury or death, or in the event of any other field activity or service action, the costs, including but not limited to labour, transport, and traceability costs, are assigned based on the proportion attributable to Kreatize or the manufacturer with regard to contributory negligence (§ 254 BGB)/contributory causation. Kreatize will inform the manufacturer – as far as possible and appropriate – of the content and scope of the recall actions or other field activities or service actions to be undertaken and will allow the manufacturer to issue a position statement. All other legal claims remain unaffected.
7.5. The manufacturer is obligated to take out and maintain sufficient product liability insurance to cover the risks of product liability, including the recall risk. At the request of Kreatize, the manufacturer must immediately verify the conclusion of said insurance. If the manufacturer is unable to verify its insurance policies within two weeks, Kreatize has the right to take out such insurance at the expense of the manufacturer.
- Property Rights
8.1. The manufacturer warrants and ensures that Kreatize or its customers do not infringe any intellectual property rights, in particular no trademark, company, name, patent, utility model, design, equipment, industrial design or copyrights of third parties (including the corresponding patent applications) (“property rights”) through the manufacture, possession, provision, processing, use, or sale of the goods to be manufactured. If the manufacturer culpably violates this obligation, it must, on the very first request, release the Kreatize and its customers from any claims of third parties from such actual or alleged infringements of intellectual property rights and bears all costs and expenses incurred by Kreatize in connection with this infringement, in particular legal costs and defence costs, on the one hand, and any costs resulting from the compliance with a possible duty of omission, on the other hand.
8.2. Clause 8.1 shall not apply if the delivery item was manufactured according to drawings, models, or other detailed information provided by Kreatize and/or its customers and the supplier was neither aware nor ought to have been aware that this infringes the intellectual property rights of third parties.
8.3. The parties must inform each other immediately if any risk of injury and alleged infringement become known to them and will collaborate to counteract possible infringement claims amicably.
- Confidentiality Obligation
9.1. For purposes of this agreement, “confidential information” refers to all non-public, confidential and/or proprietary information of the customer and of Kreatize, including information related to technology, products, intellectual property, finance, activities and business, including technical drawings, information about components or business information in relation to such technical drawings and components, which the client discloses to the provider, whether in written, electronic, or verbal form, in particular technical data, scientific information, research objectives, inventions, strategic plans, development plans and government plans, project records, guidelines and procedures, information about procedures or technologies, and the fact that Kreatize commissioned the manufacturer.
9.2. The manufacturer is obligated to keep all confidential information secret. The manufacturer undertakes to only use the confidential information for the purpose of fulfilling the contract (production and shipment of goods or components).
9.3. The confidentiality obligations of the manufacturer under this Clause 9 shall not apply to confidential information
9.3.1. which is already available to the public, or
9.3.2. which was made available to the public after disclosure, without this being due to an unlawful act on the part of the manufacturer, or
9.3.3. where the manufacturer can verify that it legitimately obtained the information from a third party and that said third party was entitled to disclosure and did not breach any confidentiality obligation upon disclosure, or
9.3.4. where the manufacturer can verify that this information was independently developed with no connection to confidential information or through the use of confidential information by the manufacturer, or was developed for the manufacturer which can be proved with written records, or
9.3.5. which the manufacturer must disclose due to applicable law.
9.4. If the manufacturer is obligated to disclose confidential information on account of an administrative or court order, the manufacturer will inform Kreatize immediately to enable Kreatize to participate in such a process and to take appropriate measures to prevent disclosure.
- Choice of Law, Place of Jurisdiction
10.1. German law applies to the exclusion of the conflict of law provisions. The UN Sales Convention shall not apply.
10.2. The place of fulfilment for all services arising from the existing business relationship with the provider and the place of jurisdiction is the headquarter of the provider. The right to invoke the court at a different statutory place of jurisdiction remains unaffected hereby.