General Terms and Conditions
TERMS OF SALE AND PAYMENT
I. Scope of Application, Contractual Basis
1. These terms of sale and payment apply to business customers (entrepreneurs).
In dealings with consumers, these General Terms of Delivery and Payment apply subject to the limitations set out below and only insofar as they do not conflict with mandatory provisions of Sections 305 et seq. of the German Civil Code (BGB).
2. Purchasing terms of the customer that deviate from the terms of LayerByLayer are excluded; they shall not be binding on LayerByLayer—even if referenced in the order—unless expressly confirmed in writing by LayerByLayer. Where the application of the customer's purchasing terms has been agreed upon in an individual case, the terms of LayerByLayer shall nevertheless apply to matters not addressed in the customer's terms.
3. All deliveries and services are provided on the basis of LayerByLayer’s offer and/or LayerByLayer’s written order confirmation, which references said offer or confirms the customer's order.
4. All agreements made at the time of contract conclusion or during the course of the contract require written confirmation by LayerByLayer to be effective.
5. Unless expressly stated otherwise, all offers made by LayerByLayer are non-binding.
II. Dimensions and Properties
Unless expressly marked to the contrary, all delivery and/or service specifications accompanying an offer from LayerByLayer—including descriptions of nature and quality as well as dimensions and weights—are approximate only and are valid only within the scope of customary industry tolerances.
III. Prices and Terms of Payment
1. The agreed prices are exclusive of applicable VAT and are ex-works (LayerByLayer’s dispatch warehouse); they exclude handling and storage fees, transport insurance, and other shipping costs unless expressly agreed otherwise. Goods are insured against transport risks only upon separate agreement and at the customer's expense.
All payment and transfer costs shall be borne exclusively by the customer.
2. Bills of exchange and checks are accepted by LayerByLayer only by special agreement, free of charges, and on account of performance (subject to discountability); the value date shall be the day on which LayerByLayer gains access to the equivalent value.
3. In the event of payment default by the customer, LayerByLayer shall charge interest—without prejudice to the right to claim further damages—at the rate applicable to its own bank liabilities, but at a minimum of 8 percentage points above the European Central Bank’s base interest rate; for consumers, the default interest rate is 5 percentage points above the European Central Bank’s base interest rate. The customer reserves the right to prove that LayerByLayer incurred no damage or significantly less damage due to the default.
If the customer defaults on payment for a delivery, in whole or in part, all claims held by LayerByLayer against the customer shall become immediately due; further goods will then be delivered only against prepayment or cash on delivery.
4. Regarding LayerByLayer’s payment claims, the customer’s rights of retention or refusal of performance—unless based on intentional or grossly negligent breaches of contract by LayerByLayer or its agents or vicarious agents—are excluded insofar as the counterclaims underlying such rights are neither undisputed nor legally established. 5. The customer is entitled to offset claims against payment demands made by LayerByLayer only if the counterclaims are acknowledged by LayerByLayer or have been established by a final, non-appealable court judgment.
6. If, after the conclusion of the contract, LayerByLayer receives information indicating that the customer might not be able to obtain credit for an amount commensurate with the order volume, LayerByLayer is entitled to withhold the goods and, at its discretion, demand prepayment or the provision of security in advance; claims for damages due to non-performance remain reserved.
If, based on reliable information, a circumstance becomes known that precludes the customer's absolute creditworthiness, all outstanding claims against the customer at the time such information is obtained shall become due immediately; in such a case, any agreements regarding deferral of payment or similar arrangements shall become void.
IV. Transfer of Risk
1. Risk passes to the customer upon handover of the goods to the carrier; this applies even in cases where LayerByLayer has exceptionally agreed to carriage-paid delivery. If the customer collects the goods from LayerByLayer, risk passes upon receipt of the notification that the goods are ready for shipment passes to the customer.
2. LayerByLayer selects the carrier, the means of transport, and the transport route with its customary level of care, unless the customer specifies otherwise in good time before the delivery deadline expires. The shipping method is selected at LayerByLayer’s reasonable discretion, without any obligation to choose the fastest or cheapest shipping method or route.
V. Delivery deadlines, call-off orders, default
1. Expressly agreed delivery deadlines commence upon the customer’s receipt of LayerByLayer’s order confirmation. Otherwise, delivery time indications are merely approximate and non-binding. In the latter case, the customer may call upon LayerByLayer to deliver six weeks after a non-binding delivery date or deadline has been exceeded. LayerByLayer enters into default upon receipt of this request, unless a case of suspension of contractual obligations pursuant to Section IX. 1. of these General Terms and Conditions applies. If the customer intends to withdraw from the contract and/or claim damages in lieu of performance, they must grant LayerByLayer a reasonable grace period for delivery after the expiry of the six-week period mentioned above.
2. Partial deliveries and/or partial performance are permissible; these will be invoiced separately in accordance with the scope of delivery.
3. Delays in scheduling caused by circumstances for which LayerByLayer is not responsible result in a reasonable extension of delivery and performance deadlines; this also applies if such delays occur while LayerByLayer is already in default. LayerByLayer shall notify the customer of such circumstances without undue delay.
4. In the event of delivery and performance delays for which LayerByLayer is responsible, the customer must grant LayerByLayer a reasonable grace period. If LayerByLayer fails to notify the customer of its readiness to ship or perform even after this additional grace period has expired, the customer is entitled to withdraw from the contract regarding the unfulfilled portion of the delivery or—in the event that the delay is attributable to willful misconduct or gross negligence on the part of LayerByLayer’s legal representatives or agents—to claim damages in lieu of performance for that portion; if, in the event of partial delay, the customer demonstrates that partial performance is of no interest to them, they are entitled to exercise the aforementioned rights with respect to the entire contract.
5. Delays in delivery or performance attributable to the customer do not affect agreed payment obligations or payment deadlines. If the customer defaults on acceptance or culpably breaches other duties to cooperate, LayerByLayer is entitled to claim compensation for the resulting damage, including any additional expenses incurred. If the customer definitively refuses to accept the goods for reasons not attributable to LayerByLayer, LayerByLayer’s claim for damages shall amount to at least 15% of the net contract price, without LayerByLayer being required to prove the actual damage; the customer reserves the right to prove that LayerByLayer incurred no damage or only lesser damage.
VI. Retention of Title to Goods and Tools
1. LayerByLayer retains ownership of the delivered goods—including partial deliveries—until the total delivery has been paid for in full.
2. Subject to revocation for reasons attributable to the customer, the customer is entitled to sell goods owned or co-owned by LayerByLayer for consideration in the ordinary course of business. In such an event, the Customer hereby assigns to LayerByLayer its claim for the purchase price against the purchaser—including all associated security and ancillary rights—up to the amount of any outstanding balances owed to LayerByLayer arising from existing business relationships; however, in the event of the sale of goods co-owned by LayerByLayer, this assignment applies only to the pro-rata portion of the purchase price claim corresponding to the invoice value of the goods subject to retention of title. Any agreement prohibiting the assignment of the purchase price claim against the purchaser is inadmissible.
3. The assignment pursuant to Clause 2 is made by way of security, subject to the proviso that the Customer remains entitled to collect the purchase price claim against the purchaser provided and for as long as it duly meets its payment obligations to LayerByLayer and no deterioration in its financial circumstances occurs (of which the Customer must immediately notify LayerByLayer, if applicable). Upon LayerByLayer’s request, the Customer shall provide all documents and information necessary to enforce the purchase price claim; upon the occurrence of the events specified in Sentence 1 circumstances, LayerByLayer is entitled to notify the purchaser of the assignment.
4. LayerByLayer undertakes to release the security interests to which it is entitled at the customer's request, insofar as the realizable value of such security interests exceeds the secured claims by more than 10%; the selection of the security interests to be released shall be at the discretion of LayerByLayer.
5. The customer is not entitled to pledge goods owned by LayerByLayer or to transfer ownership thereof by way of security; in the event of attachment or seizure by third parties, the customer shall disclose the ownership status to such parties and immediately notify LayerByLayer to enable it to safeguard its rights, providing all documents essential for intervention.
VII. Customer Rights in the Event of Defects
1. Purchase of brand-new goods
1.1 Subject to the exclusion of further claims, the customer is entitled—in the event of wholly or partially defective deliveries or services and to the extent of such defect—to demand subsequent performance in the form of rectification or, at LayerByLayer’s discretion, a replacement delivery or service; however, a replacement delivery shall only be made concurrently with the return of the defective goods. The customer’s right to demand a price reduction or to withdraw from the contract in the event that subsequent performance ultimately fails remains unaffected.
1.2 LayerByLayer must be granted a reasonable period of time to carry out the rectification or replacement delivery or service; otherwise, it shall be released from its obligations regarding subsequent performance.
1.3 Claims based on defects, including any claims for damages arising from defects, shall become time-barred one year after the transfer of risk to the customer. In dealings with consumers, the limitation periods shall be governed by statutory provisions. 1.4 At its discretion, in the event of the delivery of third-party products, LayerByLayer is also entitled—instead of making a replacement delivery itself pursuant to Section 1, first half-sentence—to assign to the customer any claims for defects (including any further claims) that it holds against the manufacturer or upstream supplier; LayerByLayer will assist the customer in enforcing such claims. The provision in Section 1, second half-sentence, applies accordingly to LayerByLayer.
1.5 The customer’s statutory obligations to inspect the goods and give notice of defects pursuant to Section 377 of the German Commercial Code (HGB) remain unaffected.
2. Purchase of used goods
In the event of the purchase of used goods, the warranty for any defects in the item is excluded, unless the defect consists of the absence of a warranted characteristic or was fraudulently concealed. This exclusion does not apply in dealings with consumers; the provisions of Sections 1.1 to 1.4 above apply accordingly to their rights regarding any defects in the purchased item; however, by way of derogation from Section 1.3, sentence 2, the limitation period is only one year.
VIII. Liability
1. The liability of LayerByLayer and that of its agents for the performance of obligations or vicarious agents for damages arising from fault at the time of contract conclusion, other breaches of duty, or tort is excluded insofar as such damages do not
· result from injury to life, body, or health based on a negligent breach of duty by LayerByLayer or an intentional or negligent breach of duty by its legal representatives or agents for the performance of obligations,
· result from a grossly negligent breach of duty by LayerByLayer or an intentional or grossly negligent breach of duty by its legal representatives or agents for the performance of obligations. The foregoing limitation also applies where the customer claims reimbursement of wasted expenditure instead of compensation for damages in lieu of performance.
Otherwise, liability is limited in nature and scope to the foreseeable damage typically arising in transactions of this kind.
2. With the exception of claims not already subject to the statute of limitations applicable to defects in the goods (VII. Item 3), all claims for damages by the customer against LayerByLayer and its agents or vicarious agents—provided they are not excluded under Item 1 above—shall become time-barred within two years of the customer becoming aware of the occurrence of the damage and the party causing it, or, in the case of services, following their acceptance.
3. The limitation period applicable to supplier recourse claims pursuant to Sections 478 and 479 of the German Civil Code (BGB) remains unaffected.
IX. Suspension of Contractual Obligations
1. Events and circumstances the occurrence or prevention of which lie beyond the control of the contracting parties (this includes, in addition to natural events, acts of public authority, strikes, and lockouts, all impediments to performance for which the contracting parties are not responsible, particularly disruptions to transport, traffic, and operations—including and, in general, performance impediments affecting the customer itself, suppliers, and subcontractors—as well as bottlenecks, shortages, and other delays in the procurement of raw materials or the like—shall release the contracting parties from their contractual obligations to the extent and for the duration of such impediments.
2. If events or circumstances of the type described in Section 1 lead to a significant increase in the cost price or procurement costs for LayerByLayer, LayerByLayer may demand a reasonable price increase from the customer—even in the event of a fixed-price agreement—upon providing proof of such increase. If the customer does not agree to such a price increase within a reasonable period for response set by LayerByLayer, LayerByLayer shall be entitled to withdraw from the contract with respect to the unfulfilled portion thereof.
3. If LayerByLayer is ultimately unable to fulfill its delivery or performance obligations due to events or circumstances described in Section 1 within a reasonable period set by the customer, the customer shall be entitled to withdraw from the contract with respect to the unfulfilled portion thereof, to the exclusion of any further claims. Under otherwise identical conditions, LayerByLayer shall also have such a right of withdrawal if its efforts to restore the ability to deliver or perform—which it remains obliged to undertake—have proven unsuccessful within six months of the occurrence of the impediment.
X. Place of Performance and Place of Jurisdiction
1. The place of performance for deliveries, services, and payments shall be the registered office of LayerByLayer.
2. The place of jurisdiction shall be the registered office of LayerByLayer, provided the customer is a merchant (*Kaufmann*), a legal entity under public law, or a special fund under public law.
XI. Applicable Law
German law shall apply, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980.