Conditions
General Terms and Conditions of Sale (GTC)
1. General
Upon placing an order with Ätzkunst GmbH & Co. EMKA KG (hereinafter referred to as the “Seller”), the Buyer agrees to these General Terms and Conditions of Sale as the sole contractual basis.
Any conflicting or deviating terms and conditions of the Buyer shall not become part of the contract unless expressly agreed in writing by the Seller.
If any provision of these Terms and Conditions is or becomes invalid, the validity of the remaining provisions shall remain unaffected.
These Terms and Conditions apply exclusively to entrepreneurs, legal entities under public law, or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).
2. Offers
Our offers are subject to change and non-binding unless expressly designated as binding.
If an offer is expressly designated as binding, we shall be bound by it for a maximum period of six months. We reserve the right to make technical modifications, design adjustments, and customary commercial deviations insofar as they are reasonable for the Buyer.
3. Conclusion of Contract
A contract shall only come into effect upon our written order confirmation or upon delivery of the goods. Verbal side agreements require written confirmation.
4. Delivery Dates and Delivery Periods
Delivery periods shall commence only after full technical clarification, submission of all documents to be provided by the Buyer, written production or print approval, and receipt of agreed advance payments. Delivery times are approximate and non-binding unless expressly confirmed in writing as a fixed date. Change requests by the Buyer after order placement shall result in a reasonable extension of the delivery period.
Partial deliveries are permissible insofar as reasonable for the Buyer.
In the event of delayed delivery, the Buyer must grant us a reasonable grace period. Claims for damages due to delay shall exist only within the scope of the liability provisions of these GTC.
Force majeure events and other unforeseeable circumstances beyond our control (in particular delays by suppliers, shortages of materials or raw materials, transport disruptions, governmental measures, or energy supply interruptions) shall entitle us to extend the delivery period for the duration of the hindrance plus a reasonable restart period.
If the Buyer is in default of acceptance or culpably breaches duties of cooperation, the risk of accidental loss or deterioration of the goods shall pass to the Buyer. In such cases, we are entitled to store the goods at the Buyer’s expense and risk, charge a reasonable storage fee, and claim further damages. Contractual penalties for delay require an express written agreement.
5. Copyright and Industrial Property Rights / Reproduction Rights
Templates, drawings, or data supplied by the Buyer remain the property of the Buyer and will not be used otherwise.
Tools, printing plates, clichés, films, and other production equipment remain our property.
We retain all proprietary rights and copyrights in cost estimates, drafts, and drawings. They may not be made accessible to third parties without our prior written consent.
The Buyer warrants that it is entitled to use all submitted templates, logos, trademarks, designs, or other intellectual property rights.
The Buyer shall indemnify and hold us harmless against all third-party claims arising from infringement of copyrights, trademark rights, design rights, or other industrial property rights based on templates, data, or instructions supplied by the Buyer. The indemnification includes the costs of reasonable legal defense.
6. Proofs and Approvals
By approving proofs, production samples, or digital releases, the Buyer assumes responsibility for the correctness of the approved content.
We shall not be liable for errors resulting from unclear, incomplete, or incorrect information provided by the Buyer unless caused by intent or gross negligence.
7. Reference Use
We are entitled to use products manufactured within the scope of an order for reference purposes and to make them publicly accessible.
This right includes, in particular, presentation in print media, catalogs, trade fairs, exhibitions, on our company website, on social media, and in other digital or analog advertising media.
Reference use expressly includes the display of inscriptions, engravings, personalizations, logos, trademarks, company names, or other identifiers of the Buyer, even if shown as examples on other products or in a different context.
Such use shall be solely for the purpose of presenting our own performance. Independent distribution using the Buyer’s identifiers or any further trademark use is excluded. No affiliation or endorsement by the respective trademark owners is implied.
This shall not apply where statutory or expressly agreed written confidentiality obligations exist.
8. Excess or Short Deliveries
In the case of technically unavoidable production fluctuations, excess or short deliveries of up to 10% are permissible for custom-made products.
9. Minimum Order Value
The minimum order value is €100.00 net. For lower order values, a small-quantity surcharge will be charged.
10. Packaging and Shipping
Delivery shall be FCA our factory, Zimmern ob Rottweil, Germany (Incoterms® 2020), unless otherwise agreed in writing. The risk of accidental loss or deterioration of the goods shall pass to the Buyer upon handover to the first carrier.
We are entitled to choose an economically reasonable method of shipment unless specific shipping instructions are provided by the Buyer. Additional costs resulting from special shipping requests shall be borne by the Buyer. Packaging shall be customary in the trade and will be charged separately unless otherwise agreed.
11. Payment Terms
The payment terms stated in the order confirmation shall apply.
Unless otherwise agreed, invoices are payable within 14 days with a 2% cash discount or within 30 days net without deduction. The cash discount is permissible only if all due claims arising from the business relationship have been fully settled.
The invoice amount becomes due upon expiry of the payment term.
In the event of default, we shall charge default interest at the statutory rate pursuant to Section 288 BGB. Further claims for damages due to delay remain reserved. The statutory lump-sum compensation pursuant to Section 288 (5) BGB shall remain unaffected.
In the event of payment default or apparent deterioration of the Buyer’s financial situation, we are entitled to execute outstanding deliveries only against advance payment or security.
12. Retention of Title
The delivered goods remain our property until full payment of all claims arising from the ongoing business relationship (extended retention of title).
The Buyer is entitled to resell the goods subject to retention of title in the ordinary course of business. The Buyer hereby assigns to us all claims in the amount of the invoice value (including VAT) arising from resale against its customers or third parties, irrespective of whether the goods have been resold without or after processing.
We accept the assignment. The Buyer remains authorized to collect the claims as long as it properly fulfills its payment obligations. Our authority to collect the claim ourselves remains unaffected. However, we undertake not to collect the claim as long as the Buyer meets its payment obligations and no insolvency proceedings have been initiated.
If the goods subject to retention of title are processed or combined with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the retained goods to the value of the other processed items at the time of processing.
The Buyer must immediately notify us of any third-party access to the goods subject to retention of title or the assigned claims. In the event of breach of contract, particularly payment default, we are entitled to repossess the goods.
13. Warranty
The limitation period for material defects is 12 months from transfer of risk.
The Buyer must inspect the goods immediately upon delivery and notify us of any recognizable defects without undue delay in accordance with Section 377 of the German Commercial Code (HGB). Minor, customary, or production-related deviations in dimensions, color, surface, transparency, material structure, or design — particularly with natural materials or refined surfaces — shall not constitute a defect provided they do not significantly impair usability.
The decisive criterion shall be an industry-standard visual inspection under normal daylight conditions from an observation distance of approximately arm’s length and the overall impression to be expected during customary presentation and use.
14. Cancellation
In the case of customer-specific custom-made products, cancellation shall require reimbursement of material, production, and design costs incurred up to that point as well as reasonable lost profit.
15. Liability
Our liability for damages — regardless of the legal grounds — is limited, where fault is required, to the typical and foreseeable damage at the time of contract conclusion. Liability is further limited to €1,000,000 per claim.
In cases of ordinary negligence, we shall only be liable for breach of essential contractual obligations (cardinal duties). Liability for lost profit, production downtime, loss of use, or other indirect financial or consequential damages is excluded. The limitations of liability shall not apply in cases of intent, injury to life, body, or health, or under the German Product Liability Act.
16. Data Privacy
If and to the extent that we process personal data on behalf of the Buyer, this shall be based on a separate data processing agreement pursuant to Article 28 GDPR.
17. Place of Performance and Jurisdiction
Place of performance and payment is Zimmern ob Rottweil, Germany.
The place of jurisdiction for all disputes arising out of or in connection with this contract, provided the Buyer is a merchant, shall be the competent local or regional court at our registered office. We are also entitled to bring proceedings at the Buyer’s place of business.
18. Applicable Law
This contract shall be governed exclusively by German law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
19. Language
These Terms were originally drafted in the German language. The English version is provided for convenience only. In the event of discrepancies between the German and English texts, the German version shall prevail.