Terms & Conditions
General Terms and Conditions (GTC) of DAMASKO GmbH for Contract Manufacturing / Contract Manufacturing Area
I. Contractual partner – scope of application
1. These General Terms and Conditions (GTC) apply to all work, services and contract manufacturing between DAMASKO GmbH, Unterheising 17c, 93092 Barbing, Germany, e-mail: sales@damasko-watches.com (hereinafter referred to as “we”, “us” or “DAMASKO”) and clients who are entrepreneurs (hereinafter referred to collectively as “Clients”).
2. An entrepreneur is any natural person, legal entity or partnership with legal capacity who, when concluding the contract, acts in the course of exercising their commercial or independent professional activity.
3. Our GTC apply exclusively. Any deviating, conflicting, or supplementary general terms and conditions of the Client only become part of the contract if and to the extent that we have expressly agreed thereto. This requirement of consent applies in all cases, even if we carry out the work without reservation with knowledge of the Client’s GTC.
4. The GTC as amended also apply as a framework agreement for future contracts of a similar nature with the same Client without us having to refer to them again in each individual case.
5. Any additions, deviations, and other side agreements must be made in writing. Any individual agreements made with the Client in individual cases always take precedence over these GTC.
II. Conclusion of contract – scope of services
1. Our offers are non-binding. This also applies if we have provided the Client with catalogues, technical documentation or other performance descriptions or documents. Any information provided is based on the characteristics of the German market.
2. The Client’s order is deemed to be a binding contract offer.
3. We are entitled to accept a contract offer from the Client within three weeks by sending out our order confirmation or by performing the contract.
4. Any information regarding dimensions and weights, performances, illustrations and drawings as well as any information in catalogues, brochures, circulars, advertisements, are only informative in nature unless they are expressly marked as binding.
5. Our written confirmation of an order is authoritative for the scope of services.
III. Delivery period – late acceptance
1. The delivery times and periods stated by us are not drop dead dates within the meaning of section 286 II no. 4 of the German Civil Code (BGB), section 376 of the German Commercial Code (HGB), unless expressly agreed otherwise. Delivery dates which are not confirmed by us in writing within the framework of what is expressly designated as a fixed-date transaction are always non-binding and approximate.
2. A date for delivery and/or completion can only be set after all the specific details required for the order have been established. If the scope of the order changes or expands compared with the original order, we must provide the Client with a new completion date, stating the reasons therefor.
3. Compliance with these deadlines is subject to the timely and proper fulfilment of the Client’s obligation. The defence of non-performance of the contract remains reserved.
4. An agreed delivery deadline is deemed to have been complied with if the delivery item has left the factory or notification of readiness for dispatch has been given by the time of its expiry.
5. If we specified delivery deadlines and these were made the basis for placing the order, these deadlines will be extended by the duration of the hindrance if we are prevented from fulfilling this obligation as a result of unforeseen events which we were unable to avert even with reasonable care according to the circumstances of the case (force majeure, e.g. war, force majeure and labour disputes, in particular strikes and lockouts, natural disasters, epidemics, pandemics, shortages of raw materials, worldwide disruptions of supply chains, political unrest, acts of terrorism, sovereign acts, or actions taken by the authorities). If such unforeseen events lead to a delay in performance of more than four months, either party may withdraw from the contract in each case. This also applies if the circumstances occur at suppliers. Other rights of withdrawal remain unaffected.
6. If we are unable to meet binding delivery deadlines for reasons not attributable to us (non-availability of the service), we will inform the Client thereof without undue delay and at the same time inform them of the expected new delivery date. If it continues to be impossible to render the work or service by the newly stipulate deadline, we are entitled to withdraw from the contract in whole or in part. In this case, we will refund any consideration already paid by the Client without undue delay. A case of impossibility to render the work or service in this sense is deemed to be in particular the non-timely self-delivery by our supplier if we have concluded a congruent covering transaction. Our statutory rights of rescission and termination as well as the statutory provisions on the execution of the contract in the event of the obligation to perform being excluded remain unaffected.
7. If shipment is delayed at the request of the Client, they will be charged for the costs incurred by the storage, starting one week after notification of readiness for shipment, but at least 0.5% of the invoice amount for each month where the shipment is stored with us. We are entitled to dispose otherwise of the delivery item after first setting a deadline of 14 days, and to deliver to the Client within a reasonable period.
IV. Prices, payment, late payment
1. Unless otherwise stated in the order confirmation, our prices are to be understood as being in euros, without any discounts, in particular without cash discount, “ex works” plus packaging, freight and insurance, which will be charged separately.
2. Our prices are net prices ex works. Value added tax will be shown and charged separately at the statutory rate on the day of invoicing.
3. Customs duties, taxes, packaging, shipping costs, and insurance are to be paid separately by the Client.
4. Price changes are only permissible if delivery is due to take place more than four months after conclusion of the contract. Our prices are calculated on the basis of the raw material and labour costs and/or manufacturer/importer selling prices applicable at the time the offer was made. If a delivery is made later than four months after the conclusion of the contract and if, after the conclusion of the contract until the day of delivery, changes occur in the manufacturer/importer selling prices, in the material prices and/or collectively agreed wages or changes in business taxes, or in energy such as electricity or gas, or changes in the material prices e.g. for aluminium, steel, rubber, PVC, wood, either contracting party may request that the agreed price be adjusted in accordance with the resepctive increase or decrease in costs. The price amended by the amount of this change will then apply. We will provide evidence of any increase or decrease in costs to the Client upon request.
5. Payments are due immediately upon notification of completion and/or readiness for collection and sending of the invoice, and are payable to us without deduction, unless otherwise agreed.
6. In the event of partial deliveries, we are entitled to issue partial invoices in respect of the proportion of the goods delivered. Additional shipping costs will be borne by us in this case.
7. In the event of a delay in payment or a risk to our claims due to a deterioration in the Client’s credit rating, we are entitled to demand collateral or to perform outstanding deliveries and services only against payment in advance or the provision of collateral.
V. Delivery, late acceptance, acceptance, transfer of risk
1. Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.
2. We fulfil our obligation to deliver or perform by notifying the Client of the readiness or completion of the goods at our place of business.
3. The Client is obliged to collect and accept the goods within one week of receipt of the notice of completion.
4. If shipment or handover is delayed as a result of a circumstance not attributable to us, the risk will pass to the Client from the day on which we are ready for shipment to be madeand have notified the Client thereof.
5. If the Client is in default of acceptance, fails to cooperate or delays our delivery for other reasons attributable to the Client, we are entitled to demand compensation for the resulting damage including additional expenses.
6. In the event of default in acceptance, we may charge a storage fee at the usual local rate. The goods may also be stored elsewhere at our discretion. The costs and risks of storage will be borne entirely by the Client.
7. The acceptance of the goods by the Client takes place at our premises, unless otherwise agreed.
8. If acceptance is delayed for reasons for which we are not responsible, acceptance will be deemed to have taken place 10 working days after notification of completion to the Client if the Client has not refused acceptance within this period stating at least one defect.
9. If the goods are sent to a place other than our place of business at the request of the Client, acceptance will be deemed to have taken place 10 working days after notification of completion to the Client if the Client has not refused acceptance within this period stating at least one defect.
10. The risk of accidental loss and accidental deterioration of the goods passes to the Client upon handover at the latest.
11. In the case of sale by delivery 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 passes to the Client at the latest upon delivery of thegoods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment.
12. Insurance against breakage, transport and fire damage will only be taken out at the order and expense of the Client.
VI. Retention of title
1. We retain ownership of the delivered item until full payment of all claims arising from the contract. This also applies to all future deliveries, even if we do not always expressly refer thereto.
2. The Client is required to treat the goods with care as long as ownership has not yet passed to them. In particular, they are required to insure them adequately at their own expense against theft, fire, and water damage at reinstatement value. If maintenance and inspection work has to be carried out, the Client must carry this out in good time at their own expense. As long as ownership has not yet been transferred, the Client must inform us in writing without undue delay if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action in accordance with section 771 of the Code of Civil Procedure (ZPO), the Client shall be liable for the loss incurred by us.
3. The Client is entitled to resell the reserved goods in the normal course of business. The Client hereby assigns to us the claims of the purchaser from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with us (including VAT). Said assignment applies regardless of whether the goods have been resold without having been processed or after processing. The Client remains authorised to collect the claim even after assignment thereof. Our authority to collect the claim ourselves remains unaffected thereby. We will not, however, collect the claim as long as the Client meets their payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or there is no cessation of payments.
4. As long as such a reservation of title exists, the Client may not modify, rework or pledge the delivery item or assign it as collateral or contractually grant third parties use without our consent in writing. In the event of an infringement hereof, the Client’s expectant right to the object of sale remains in the transformed object. If the delivery item is processed with other items not belonging to us, we acquire co-ownership of the new item to the extent of the objective value of our goods compared with the other processed items at the time of processing. The same applies in the event of mixing. If mixing takes place in such a way that the Client’s item is to be regarded as the main item, it is deemed agreed that the Client transfers co-ownership to us on a pro rata basis and safekeeps the sole ownership or co-ownership thus created for us.
5. We undertake to release the collateral to which we are entitled at the request of the Client insofar as their value exceeds the claims to be secured by more than 20%.
6. In the event of attachment or seizure of the delivery item or other disposition by third parties, the client must notify us thereof without delay in writing and bear the costs of measures to remedy the intervention, in particular intervention proceedings, if they cannot be recovered from the other party. The Client is further obliged to inform the pledgee of our ownership rights in the event of attachment or seizure.
VII. Warranty
1. The warranty period is one year after acceptance.
2. In the event of a defect, we are entitled to choose between repairing the delivery item or making a new delivery.
3. In the event of failure of subsequent performance, the Client is entitled to choose between reducing the price or withdrawing from the contract. Subsequent performance is deemed to have failed after the second unsuccessful attempt at subsequent performance.
4. The assertion of warranty claims due to defects in our deliveries presupposes that the Client has duly fulfilled their commercial duty of examination and complaint, insofar as this is feasible in the normal course of business. The statutory provisions (sections 377, 381 of the German Commercial Code [HGB]) apply to the commercial duty of examination and complaint, subject to the following condition: The Client’s duty of examination is limited to defects which become apparent during the inspection of the goods under an external examination including the delivery documents (e.g. transport damage, deliveries that are wrong or incomplete) or which are recognisable during the quality inspection. Insofar as acceptance has been agreed, there is no duty to inspect. Moreover, it depends on the extent to which an examination is feasible in the normal course of business, taking into account the circumstances of the individual case. The duty of complaint for defects discovered later remains unaffected hereby. Notwithstanding the duty of examination, the complaint (notice of defect) is deemed to have been made withoutdelay and in good time if it is sent within 5 working days of discovery or, in the case of obvious defects, of delivery.
5. If the Client determines the design or stipulates that a certain material should be used despite our notified concerns, our warranty obligation does not extend to any defects arising therefrom.
6. In the event of rectification of defects, we are obliged to bear any and all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labour, and material costs, insofar as these are not increased by the fact that the delivery was taken to another location outside the Client’s country. We will bear the aforementioned costs only up to the proportionality limit of those costs that would have been incurred in the event of a repair in the Client’s country; the Client must bear any costs exceeding this amount themselves.
7. The abovementioned restriction and shortening of time limits do not apply in the event of damage arising from injury to life, limb, or health and for other damage based on an intentional or grossly negligent breach of duty or fraudulent intent on our part, as well as for damage covered by liability under applicable statutory provisions, such as the German Product Liability Act (Produkthaftungsgesetz), as well as in the event of the assumption of guarantees or in the event of claims under a right of recourse pursuant to sections 478, 479 of the German Civil Code (BGB).
VIII. Liability, exclusion of liability
1. For claims based on damage caused by us, our legal representatives or vicarious agents, we will always be liable without limitation in the event of injury to life, limb, or health, in the event of intentional or grossly negligent breach of duty, in the event of warranty promises, insofar as agreed, or insofar as the scope of application of the Product Liability Act is opened.
2. In the event of a breach of material contractual obligations, the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner may normally rely (essential obligations), due to slight negligence on our part, on the part of our legal representatives or vicarious agents, the amount of liability will be limited to the damage foreseeable at the time of the conclusion of the contract, the occurrence of which must typically be expected.
3. All other claims for damages are hereby excluded.
IX. Duty to maintain confidentiality
1. The contracting parties undertake to treat as business secrets any and all commercial and technical information which is not in the public domain and which becomes known to them as a result of the business relationship, irrespective of their respective form. In particular, drawings, sketches, technical data, business procedures, processes and working methods, illustrations, plans, calculations, models, product descriptions and any other information and documents (hereinafter collectively referred to as documents) which have been provided to the parties for the purposes of the contract or have otherwise become known to it must be treated as strictly confidential and kept secret from third parties and may not be disclosed to or used for third parties by them without the prior written consent of the other party, unless such disclosure is required for the proper performance of the contract or on the basis of final court rulings or official orders.
2. Insofar as information must be disclosed to third parties, such disclosure is limited to the extent necessary for the proper performance of the contract or to the extent required in accordance with the final court ruling or official order. Third parties are in turn obliged to guard the confidentiality of the information received in accordance with the above requirements.
3. The duty to maintain confidentiality ends if and to the extent that the knowledge contained in the information has become generally known (public domain). The aforementioned obligations continue to exist even after the contractual relationship will have come to an end.
X. Rights to exploit services pertaining to documents, drawings, plans, etc.
1. We reserve the ownership of as well as all rights to exploit services pertaining to all calculations, drawings, plans and other technical documents, as well as substances and materials (e.g. software, finished and semi-finished products), tools, templates, and samples which we have handed over to the Client before and after concluding the contract.
2. Such documents are to be used exclusively for the contractual performance and returned to us once the contract has been completed.
3. The Client may not use, copy, duplicate or hand over or disclose these documents to third parties without written consent. The documents must be kept secret from third parties, even after the contract will have come to an end. The duty to maintain confidentiality only ends if and to the extent that the knowledge contained in the documents provided has become generally known (public domain).
4. If we use signs or numbers to designate the order or the ordered item, no rights can be derived from this alone.
XI. Choice of law – Contract language – Storage of the contract - Jurisdiction for entrepreneurs
1. The laws of the Federal Republic of Germany apply at the exclusion of the UN Convention on Contracts for the International Sale of Goods.
2. The language of the contract is German.
3. The sole place of jurisdiction for any and all disputes arising from the contract between the Client and us is Regensburg (Federal Republic of Germany), insofar as the Client is a businessman, a legal entity under public law or a special fund under public law. We are furthermore entitled to sue the Client at their general place of jurisdiction.
Last updated: 10 March 2023