Last updated February, 2024.
This website is operated by Holy Technologies GmbH.
Holy Technologies GmbH
Luruper Hauptstraße 1
22547 Hamburg, Germany
Email: info@holy-technologies.com
Commercial register: Amtsgericht Hamburg, HRB 176890
1. Scope
1.1. These standard terms and conditions (“STC”) for the sale of goods and products ("Prod-ucts") and for the provision of works/services (“Services”) by Holy Technologies GmbH ("Seller") shall exclusively apply to any agreement on the sales of Products and/or the pro-vision of Services to the respective customer (each a "Buyer") (Buyer and Seller each indi-vidually and together the “Contractual Partner(s)”).
1.2. Any terms and conditions of the Buyer shall not apply. They shall not become part of the contract between the Contractual Partners even if the Seller has not expressly objected to the use of the Buyer's terms and conditions. Deviations from these STC in an order shall on-ly apply if the Seller has expressly acknowledged them in writing.
1.3. The present STC shall govern any future sales contract or service contract (“Sales/Service Contract”) between the Seller and the Buyer.
1.4. These STC, the individual Sales/Service Contract and any other document attached to the Sales/Service Contract shall collectively constitute a legally binding relationship between the Contractual Partners (“Agreement”). In case of a conflict between these STC and the Sales/Service Contract, the Sales/Service Contract shall prevail, unless agreed otherwise.
1.5. The Seller is entitled to amend the STC at any time. The Buyer will be informed of this in writing or by email and has the right to object to the amended STC within one month of noti-fication with regard to ongoing continuing obligations. If the Buyer does not object within this period, ongoing continuing obligations shall continue to exist under the amended STC. If the Buyer objects in due time, such continuing obligations shall continue to exist under the original STC; however, the Seller shall be entitled to terminate the contractual relation-ship ordinarily.
2. Conclusion of Contract
2.1. An Agreement shall become effective if the Buyer accepts the Seller's offer. Each offer shall be submitted by the Seller to the Buyer in written form (i.e., letter, fax, or email) and is deemed a legally binding offer for the conclusion of an individual Sales/Service Contract, provided, that the offer clearly states the date of order, the Product(s), the quantity of the Products and/or Services and the requested delivery date.
2.2. The Buyer shall accept or reject an offer without undue delay. The Buyer is deemed to have accepted the offer by any of the following:
a. Signing and returning a copy of the Sales/Service Contract to the Seller;
b. Sending the Seller a written acknowledgment of the Sales/Services Contract;
c. Giving instructions to the Seller respecting manufacture, assortment, or delivery of the Products (including instructions to bill and hold) following receipt of the Sales/Services Contract;
d. Accepting delivery of all or any part of the Products and/or Services;
e. Paying for all or any part of the Products and/or Services;
f. Indicating the acceptance of the Agreement in any other manner.
2.3. The Buyer is responsible to the Seller for ensuring the accuracy of the terms of any order submitted by the Buyer, and for giving the Seller any necessary information relating to the Products or Services within a sufficient time to enable the Seller to perform the Agreement in accordance with its terms.
2.4. If Products are to be manufactured or any process is to be applied to the Products and/or any Services are to be provided by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and ex-penses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, de-sign, trade mark or other industrial or intellectual rights of any other person which results from the Seller's use of the Buyer's specification.
2.5. Where the Products are to be supplied or the Services are to be provided to the Seller's specification the Seller reserves the right to make any changes in the specification of the Products or Services which are required to conform with any applicable statutory require-ments or where such changes do not materially affect the quality of the Products or Ser-vices. The provisions of Section 12 shall remain unaffected.
3. Prices
3.1. The price of the Product is subject to the Sales/Service Contract. For the price of the Ser-vices, Section 7.4 applies.
3.2. The Seller reserves the right, by notification to the Buyer at any time before delivery, to in-crease the price of the Products to reflect an increase in the costs of the Seller which is due to any factor beyond the control of the Seller (such as foreign exchange fluctuation, curren-cy regulation, alteration of duties, significant increase in the costs of materials or labour or other costs of manufacture) or any change in delivery dates.
3.3. Except as otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on an EXW (ex works) (Incoterms 2020) basis, and where the Seller agrees in the Sales/Service Contract to deliver the Products to another location than the Seller's premises, the Buyer shall be liable to pay the Seller's charges for transport, packaging and insurance.
4. Terms of Payment
4.1. The Buyer shall pay in accordance with the payment terms as set forth in the Sales/Service Contract. Otherwise, the following provisions shall apply.
4.2. All invoices shall be due within 30 days of the invoice date.
4.3. Payment shall be effected by wire transfer to the bank account of Seller (or any named third party) indicated in the Sale/Service Contract; no cheque or bill of exchange will be consid-ered as fulfilment of the payment obligation.
4.4. Payment is deemed to be made on the date when it is credited to the bank account of the Seller in the amount received.
4.5. If the Buyer fails to make any payment by the due date, then, without prejudice to any other right or remedy available to the Seller, the Seller shall at his discretion be entitled to:
● rescind (zurücktreten) the Agreement or suspend any further deliveries to the Buyer;
and/or
● charge the Buyer interest on the outstanding amount at the rate of nine (9) percent-age points above the valid base interest rate of the Deutsche Bundesbank per an-num, until payment in full is made. The right of the Seller to claim further damage re-mains unaffected.
4.6. Any l certification costs related to end products, if any, shall be borne by the Buyer.
5. Delivery, Delivery Periods and Transfer of Risk
5.1. Unless otherwise agreed in the Sales/Service Contract, "Delivery" of the Products shall be deemed to be the time when the Seller notifies the Buyer that the Products are available for collection ("ex works", Incoterms 2020). At this time, also the risk of damage or loss of the Products shall pass on to the Buyer.
5.2. Delivery times can only be complied with if all documents to be supplied by the Buyer, nec-essary permits and releases, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Buyer are fulfilled. Where these conditions are not fulfilled or not fulfilled in time, delivery times shall be deemed extended appropriate-ly; this shall not apply where the Seller is responsible for the delay.
5.3. If non-observance of delivery times is attributable to force majeure (Section 9.4), such deliv-ery times shall be deemed extended accordingly.
5.4. At the Seller's request the Buyer shall declare within a reasonable period of time whether the Buyer rescinds the contract due to the delayed delivery or insists the delivery to be car-ried out.
5.5. If a dispatch or shipment is delayed at the Buyer's request by more than one month after notice of the readiness for dispatch was given by the Seller, the Buyer may be charged storage costs of 0.5 per cent of the price of the items of the delivery for every month com-menced, but in no event more than a total of five per cent. The Contractual Partners may prove that higher or, as the case may be, lower storage costs have been incurred. Section 4.5 of this STC shall remain unaffected.
6. Retention of Title
6.1. Notwithstanding delivery and the passing of risk in the Products, or any other provision of these STC, the property in the Products shall not pass to the Buyer until the Seller has re-ceived payment in full of the price of the Products and all other products agreed to be sold by the Seller to the Buyer for which payment is then due.
6.2. If the Buyer fails to comply with terms and conditions of the Agreement - in particular in the case of default in payment (Zahlungsverzug) - the Seller shall be entitled, after the expiry of a reasonable period of time for payment without result, to retake, sell, further exploit (ver-werten) or seize (pfänden) the Products which are still the property of the Seller in whole or in part ("Reserved Products").
6.3. To the extent the Seller retakes, or sells, exploits or seizes the Reserved Products, the Sell-er shall be deemed to have rescinded the contract. The Buyer shall bear the transportation costs of retaken, sold, exploited, or seized Reserved Products. The proceeds from any sale, exploitation, or seizure of the Reserved Products shall reduce the amount owed by the Buyer to the Seller, provided that the Seller shall be entitled to reduce the proceeds by rea-sonable costs of the sale, exploitation, or seizure.
6.4. Until such time as the property in the Reserved Products passes to the Buyer, the Buyer shall hold the Reserved Products as the Seller's fiduciary agent, and shall keep the Re-served Products properly stored, protected and insured.
6.5. Until the title to the Reserved Products passes to the Buyer, the Buyer shall be entitled to resell or use the Reserved Products in the ordinary course of its business provided, howev-er, that it shall be accountable to the Seller for the proceeds of the sale or other disposal of the Retained Goods, including insurance proceeds, and shall keep such proceeds separate from its funds or assets or from funds and assets of third parties.
6.6. If third parties seize or otherwise enforce rights into (vollstrecken in) the Reserved Products, the Buyer shall immediately notify the Seller in order to enable the Seller to seek a court in-junction in accordance with § 771 of the German Code of Civil Procedure (Zi-vilprozessordnung – ZPO). If the Buyer fails to do so in due time, he will be held liable for any damages caused.
6.7. The Seller shall on demand of the Buyer release any part of the collateral if the value of the collateral held in favour of the Seller exceeds the value of the claims being secured.
7. Specific Terms and Conditions for the Provision of Services
7.1. If and to the extent that is agreed between the Contractual Partners, the Seller shall provide certain Services to the Buyer. The scope of the Services will be set out in the Sales/Service Contract. Unless specifically set out otherwise, Services are always provided as time-based services. Insofar as Services are concerned in the legal sense, no particular success is owed.
7.2. Subject to the Buyer’s policies and required approvals, the Seller may be granted physical access to all necessary facilities at the Buyer’s premises (e.g. production plants, develop-ment laboratories, etc.). Any such access may only be used to perform services pertaining to the Contractual Partners’ Agreement. Any information provided to or otherwise obtained by the Seller regarding the facilities of the Buyer is subject to strict confidentiality as defined in Section 11 of these STC.
7.3. The Seller will be granted access to the Buyer’s facilities during the hours defined in the Sales/Service Contract, or during usual business hours of the Buyer. If Seller’s employees are required to perform Services under the Agreement on-site, Buyer shall, at the Seller’s request, arrange for a designated contact person to provide reasonable support to the Sell-er’s employees in their performance of the Services.
7.4. Unless agreed otherwise, fees for Services payable by the Buyer shall be subject to the Sales/Service Contract. The Seller is entitled to modify the list prices within the framework of its general pricing policy; it shall provide the Buyer with an amended price list no later than 2 weeks before said prices take effect. Sections 3.2, 4 and 5.2 to 5.5 apply accordingly.
7.5. Any claims based on malperformance, or poor performance of Services are subject to a limi-tation period of twelve months.
7.6. Unless agreed otherwise, a Service Contract between the Contractual Partners shall be deemed concluded between the Contractual Partners upon acceptance of the order or of-fer. The service contract has no fixed term and ends with the performance of all agreed ser-vice time units by the Seller. Each contracting party may terminate the service contract in writing for good cause. Good cause is deemed to be in particular:
● circumstances in which the terminating Contractual Partner, taking into account all cir-cumstances of the individual case and weighing the interests of the other Contractual Partners, cannot reasonably be expected to continue the Agreement. This shall in particular be the case if the other Contractual Partners intentionally violates a material contractual obligation and does not immediately - at the latest within 45 (forty-five) days after receipt of the warning - completely remedy this violation, and/or
● if a substantial deterioration of the financial situation (wesentliche Verschlechterung der Vermögensverhältnisse) of the other Contractual Partner is threatened or has arisen, and thereby the performance of any of the other Contractual Partner's obliga-tions is jeopardised, or if within 14 days after written request of one Contractual Part-ner, the other Contractual Partner fails to provide details with respect to its financial situation that would allow the requesting Contractual Partner to assess whether the performance of any of the other Contractual Partner 's obligations is jeopardised, and/ or
● if major changes occur in the legal status or in the ownership or there are changes in the composition of management of a Contractual Partner, making it unreasonable for the other Contractual Partner to adhere to the Services related Agreement.
8. Claims based on Defects of the Products
8.1. Defects as to quality
8.1.1. All Products delivered by the Seller shall be free from defects as to quality. Defects as to quality (Sachmängel; hereinafter "Defects") are given if the Products do not feature the contractually agreed characteristics (Beschaffenheitsangaben) or if the Products are not suitable for the contractually agreed use. Defects of minor rele-vance remain unconsidered. If certain specifications have been agreed for the de-livery of Products, the Products shall be deemed to be free of material defects if they comply with the specifications, unless otherwise agreed.
8.1.2. The Buyer shall examine the Products and notify in writing without undue delay any Defects as required by German Law (§§ 377 ff. of the German Commercial Code). If the Buyer fails to give notification, the Products shall be deemed to be accepted unless the Defect was not apparent on inspection. If a Defect is discov-ered later, the notification must be made immediately after discovery; otherwise, the Products shall also be deemed approved in view of this Defect.
8.1.3. Notwithstanding the provisions under Section 9 of these STC, the Seller's respon-sibility for Defects shall be restricted as follows:
● the Seller shall not be liable in respect of any Defects arising from any design or spec-ification supplied by the Buyer;
● the Seller's liability does not extend to parts, materials or equipment manufactured by or on behalf of the Buyer unless such liability is covered by a guaranty given by the manufacturer of those parts to the Seller; specifications made in documents, however, do not describe any guaranty by the Seller; guaranties have to be in writing and have to be indicated expressly.
8.1.4. The Seller's liability does not cover Defects in or damage to the Products which are due to improper installation or maintenance, misuse, neglect or any cause other than ordinary commercial application.
8.2. Claims based on Defect
8.2.1. Where any valid claim in respect of any Products, which is based on any Defects of the Products, is notified by the Buyer to the Seller in accordance with the condi-tions of this Section 8, the Seller shall first be given the opportunity to supplement its performance (Nacherfüllung) within a reasonable period of time. For supple-menting its performance, the Seller at the Seller's sole discretion shall be entitled to either replace the Products free of charge (Nachlieferung) or rework the Prod-ucts (Nachbesserung). If the Seller is neither ready nor able to either rework or re-place the Products within a reasonable period of time, the Buyer shall be entitled at the Buyer's sole discretion to claim for a reduction of price (Minderung) or cancel the contract (Rücktritt).
8.2.2. Besides the remedies set out above, the Buyer shall be entitled to ask for com-pensation in lieu of performance, or reimbursement of its expenditure in accord-ance with the provisions of Section 9 below ("Limitation of Liability") in the event that fault can be attributed to the Seller.
8.2.3. If the supplementary performance of the Seller is carried out by replacement of Product, the Buyer shall return the Products first delivered within 30 days. Other-wise, the Seller is entitled to invoice the purchase price for the Products delivered later.
8.2.4. Any claims based on Defects are subject to a limitation period of twelve months, which runs from the date of delivery.
9. Limitation of Liability
9.1. The Seller shall only be liable for damages claims, irrespective of their legal nature, includ-ing, in particular, breach of contractual duty or tort, in the following cases:
a. wilful misconduct;
b. culpable injury to life, body or health;
c. to the extent the Seller (i) is subject to a guaranty obligation, and/or (ii) has expressly assumed the risk of the non-availability of certain Products by written agreement and/or (ii) is subject to any product liability claims according to the German Product Liability Act (Produkthaftungsgesetz);
d. gross negligence; and/or
e. in other cases of breach of a material contractual obligation (wesentliche Vertrag-spflicht), i.e. an obligation the fulfilment of which is a prerequisite for the proper perfor-mance of the contract and on the fulfilment of which the Buyer regularly relies and may rely and/or the breach of which jeopardises the purpose of the contract.
9.2. Apart from that, the liability of the Seller is excluded.
9.3. The exclusions or limitations of liability, pursuant to Sections 9.1 to 9.2, shall also apply to the same degree in relation to any acts of the Seller’s legal representatives, and vicarious agents Beyond this, the Seller shall not be liable for the grossly negligent breach of non-essential contractual obligations by simple, non-managing vicarious agents.
9.4. The Seller shall not be liable for the non-fulfilment of its obligations if the non-fulfilment is due to force majeure. Force majeure shall be deemed to exist if there is an external influ-ence that is extraordinary and unavoidable, such as in cases of operational disruptions, ri-ots, war, natural disasters, political unrest, pandemics, official orders and other unavoidable events. As long as force majeure exists, the obligation of the Seller to fulfil his obligations is suspended. If the Seller does not perform its obligations due to force majeure for a period of more than thirty days, either Contractual Partner may withdraw from the contract without ju-dicial intervention and without any obligation to pay compensation.
10. Data Protection
10.1. The Contractual Partners undertake to comply with the provisions of the relevant laws as amended from time to time with regard to the protection of personal data.
10.2. The Contractual Partners shall inform each other about mandatory requirements of the ap-plicable data protection laws and, if necessary, provide the other Contractual Partner with appropriate instructions so that it complies with the requirements of the applicable data pro-tection laws. The Contractual Partners declare their willingness to conclude additional agreements, if necessary, which ensure compliance with the relevant data protection regulations.
11. Confidentiality
11.1. "Confidential Information" embodies all information declared as confidential under the Contractual Partners’ Agreement, under these STC, or by a Contractual Partner, as well as generally all hard copy, verbal or electronic information and data, such as technical or busi-ness data, documents or knowledge as well as even prototypes, exchanged by the Contrac-tual Partners in connection with their Agreement.
11.2. For the term of the Contractual Partners’ Agreement, subject to the provisions of Section 7.6 and Section 11.3, and a period of ten (10) years thereafter, each Contractual Partner com-mits to use any Confidential Information only for the purpose of fulfilling the Contractual Partners’ Agreement or to exercise any rights granted herein. It will not be made accessible to third parties or rather it will only be made available to those of the Contractual Partner’s employees or employees of its affiliated companies or anyone acting on behalf of the Con-tractual Partner and/or its affiliated consultants who need it in connection with the Contrac-tual Partners’ Agreement and who are required to adhere to a confidentiality agreement cor-responding to this Section 11, as far as they are not governed by an employment or con-sultancy agreement with a general confidentiality agreement. Prior to a Contractual Partner providing Confidential Information to an affiliated company or consultant company, he has to ensure that an applicable agreement with the affiliated company or consultant company exists, which obliges that company to treat Confidential Information in a manner correspond-ing to this Section 11.
It is agreed by the Contractual Partners that any violation of the stated agreement by a consultant or employee of either Contractual Partner or their affiliates is equal to an in-fringement by that Contractual Partner.
This confidentiality obligation does not apply to Confidential Information that
● was at the time of its disclosure published to the receiving Contractual Partner or oth-erwise generally available to the public; or
● has after disclosure to the receiving Contractual Partner been published or become generally available to the public other than by breach of the Contractual Partners’ Agreement or the present STC by the receiving Contractual Partner; or
● was already known to the receiving Contractual Partner at the time of its disclosure by the disclosing Contractual Partner and was not otherwise acquired by the receiving Contractual Partner from the disclosing Contractual Partner under any obligations of confidence; or
● has at any time after the date of the conclusion of the Contractual Partner s’ Agree-ment been acquired by the receiving Contractual Partner from a third party having the right to disclose the same to the receiving Contractual Partner without breach of obli-gation owed by that third party to the disclosing Contractual Partner; or
● was developed independently of the work performed under the Agreement by the receiving Contractual Partner.
11.3. Three (3) months after the end of the term of the Contractual Partners’ Agreement, subject to the provisions of Section 12.3, the entrusted Contractual Partner may demand from the receiving Contractual Partner in writing the immediate destruction or return of any Confiden-tial Information in hard copy and/or electronic form and all copies thereof, and, if applicable, prototypes, which have been exchanged, as far as compliant with legal obligations. The re-ceiving Contractual Partner will confirm in writing to the entrusted Contractual Partner the re-turn or destruction within fourteen (14) days after receipt of the request.
11.4. Media press releases by the Contractual Partners will only be allowed with prior written con-sent of the other Contractual Partner.
11.5. A process comparable to reverse engineering or back engineering or any other process of the Seller's Products by the Buyer to analyse and disclose composition or to obtain other knowledge is not permitted.
12. Intellectual Property Rights
12.1. The Buyer shall recognise and respect all intellectual property rights, in particular industrial property rights, copyrights and know-how of the Seller ("IPR") and shall not procure, distrib-ute, market or sell any Products which are counterfeits of the Products or otherwise infringe the Seller's IPR in the Products.
12.2. Any IPR in the Products and any Services of the Seller, in particular all rights regarding any fiber layups and manufacturing processes, supplied and/or otherwise made available to the Buyer shall at all times remain the sole property of the Seller. The Buyer may use or exploit the IPR solely in accordance with the purpose of the Sales/Service Contract.
12.3. To the extent that product specifications are developed for the Buyer all IPR in respect thereof shall belong to the Buyer (“Buyer IPR”). The Seller shall not be entitled to use the Buyer IPR for other customer orders without the prior written approval by the Buyer. The Seller shall, however, be entitled to use the Buyer IPR for further own product developments (e.g., training the models and coming up with new geometries). The Buyer hereby grants the Seller a free of charge, exclusive, worldwide, transferable and sub-licensable license to use the Buyer IPR for the purpose of own product developments, which the Seller hereby ac-cepts.
12.4. In all other respects, the Buyer shall refrain from passing on or disposing of the IPR.
13. Infringement of Third-Party Property Rights
Should the Buyer learn from a third-party claim that the use of the Products is claimed to in-fringe the intellectual property rights of a third party, it shall inform the Seller thereof without undue delay. To the extent possible, the Seller and the Manufacturer of the Products may, at their expense, assume the defense against claims asserted on the basis of the alleged intellectual property right infringement and may conduct any negotiations relating to resolv-ing the legal dispute. The Buyer shall support the Seller and the Manufacturer in such pro-ceedings, to the extent it is reasonable and appropriate to facilitate the defense and settle-ment discussions. This shall not affect the Seller’s liability for defects in title.
14. Prohibition of Enticement
14.1. The Contractual Partners undertake not to actively entice away personnel of the other Con-tractual Partner for the duration of their contractual relationship and until the expiry of one (1) year after the end of the Agreement.
14.2. In the event of any infringement, a contractual penalty of EUR 100,000 shall be forfeited and due immediately. The assertion of further damages is not excluded.
15. Final Provisions
15.1. These STC, all orders placed on the basis of these STC and all contracts subject to these STC shall be governed by the laws of the Federal Republic of Germany (excluding the Con-vention on Contracts for the International Sale of Products – CISG).
15.2. The exclusive place of jurisdiction for all disputes arising out of or in connection with these STC and/or any contract subject to these STC shall be the Regional Court (Landgericht) of Hamburg, Germany. However, the Seller shall also be free to bring an action before the court having jurisdiction for the Buyer's place of business instead.
15.3. Amendments and supplements to the contractual Agreements shall only be legally effective if they have been agreed in writing. This also applies to amendments of the written form re-quirement itself.
15.4. Verbal agreements or ancillary agreements do not exist.
15.5. If any provision of these STC is or becomes invalid, the validity of the remaining provisions shall not be affected. In this case, the Contractual Partners shall replace the invalid clause with a valid one that comes as close as possible to the economic purpose and intention of the invalid clause.
Content Accountability
The contents of our pages have been created with the utmost care. However, we cannot guarantee the contents’ accuracy, completeness or topicality. According to statutory provisions, we are furthermore responsible for our own content on these web pages. In this context, please note that we are accordingly not obliged to monitor merely the transmitted or saved information of third parties, or investigate circumstances pointing to illegal activity. Our obligations to remove or block the use of information under generally applicable laws remain unaffected by this as per §§ 8 to 10 of the Telemedia Act (TMG).
Link Accountability
Responsibility for the content of external links (to web pages of third parties) lies solely with the operators of the linked pages. No violations were evident to us at the time of linking. Should any legal infringement become known to us, we will remove the respective link immediately.
Copyright
Our web pages and their contents are subject to German copyright law. Unless expressly permitted by law (§ 44a et seq. of the copyright law), every form of utilizing, reproducing or processing works subject to copyright protection on our web pages requires the prior consent of the respective owner of the rights. Individual reproductions of a work are allowed only for private use, so must not serve either directly or indirectly for earnings. Unauthorized utilization of copyrighted works is punishable (§ 106 of the copyright law).