§ 1 General
(1) The following terms and conditions are an integral part of the contract concluded with us.
(2) Our General Terms and Conditions of Sale shall apply in their respective current version as a framework agreement also to future offers and contracts with the same customer, without this having to be mentioned or agreed again in each individual case.
(3) Our General Terms and Conditions of Sale shall apply exclusively. This shall also apply if we unconditionally accept orders, render services or directly or indirectly refer to letters or the like containing the terms and conditions of the customer or third parties in the knowledge of the customer’s terms and conditions. We shall only recognize conflicting, deviating or supplementary terms and conditions of the customer if we expressly agree to their validity in writing.
§ 2 Offers; Orders
(1) Our offers are always subject to change – in particular with regard to quantity, price and delivery time.
(2) The Customer’s order shall be deemed a legally binding offer to conclude a contract. Acceptance shall be effected by receipt of our written confirmation by the customer. If no separate written confirmation is issued in the case of verbal or telephone contract discussions, the invoice issued by us shall be deemed to be the confirmation. The confirmation text shall be decisive for the content of the contract.
(3) The written contract, including these General Terms and Conditions of Sale, which are also part of the contract, fully reflects all agreements made between us and the customer with respect to the subject matter of the contract. Oral agreements made prior to the conclusion of the contract shall not be legally binding and shall be replaced in full by the written contract, unless their binding continuation has been expressly agreed.
(4) Individual – including any oral – contractual agreements shall take precedence over these General Terms and Conditions of Sale. A written contract or our written confirmation shall be decisive for the proof of the content.
(5) The written form within the meaning of these General Terms and Conditions of Sale may be replaced by electronic form (§ 126a BGB). Furthermore, the written form within the meaning of these General Terms and Conditions of Sale shall also be complied with by transmitting a signed document by e-mail or fax.
(6) The Customer shall comply with the applicable export control and sanctions regulations and laws of the Federal Republic of Germany, the European Union, the United States of America and other jurisdictions.
(7) The fulfillment of our contractual obligations shall be subject to the proviso that the applicable export control regulations do not conflict and that the customer submits to us any current export licenses that may be required. The customer shall be solely responsible for obtaining such licenses. Delays due to export inspections or licensing procedures shall invalidate any agreed delivery deadlines. If export regulations are opposed or if the customer has not submitted an export license, the contract shall be deemed not to have been concluded with respect to the parts concerned.
(8) To the extent necessary to comply with national or international export control or sanction regulations, we shall be entitled to terminate the contract without notice. In this case, the customer shall have neither claims for damages nor any other claims or rights against us.
§ 3 Prices, Travel
(1) Unless otherwise agreed, our net list prices valid at the time of the order plus the respective statutory value added tax shall be decisive for the calculation of the purchase price.
(2) Unless otherwise agreed, the customer shall bear any insurance, transport, packaging and express goods additional costs as well as any other taxes and duties.
(3) If no deviating or fixed (unchangeable) price has been agreed and the delivery is to take place more than four months after conclusion of the contract, we reserve the right to adjust the price up to the amount of the net list price current at the time of delivery. In the event of a price increase of more than 40%, the customer shall be entitled to withdraw from the contract. The withdrawal must be declared to us in writing within two weeks of notification of the price increase.
§ 4 Quality
The function and condition of the goods shall be in accordance with the specifications published by the manufacturer. Modifications or separate agreements must be made in writing (e.g. specifications). Other documents and statements are irrelevant.
§ 5 Shipping; Delivery
(1) The goods always travel uninsured and in any case at the risk of the customer. This shall also apply in the case of carriage-paid delivery and irrespective of the means of transport used. Transport insurance will only be taken out at the express request of the customer. Any costs arising therefrom shall be borne by the customer.
(2) We shall be entitled to determine the place of dispatch, the type of dispatch (in particular the transport company and means of transport as well as the dispatch route) and the packaging (type and material) at our due discretion. Agreements deviating from this must be made in writing.
(3) If the customer provides the means of transport, he shall be responsible for its punctual provision. We must be notified of any delays in good time. Any costs arising therefrom shall be borne by the customer.
(4) We shall be entitled to make reasonable partial deliveries.
(5) Our delivery obligation shall always be subject to timely and proper delivery by our own suppliers.
6) Delivery and unloading times/dates (delivery periods) promised by us are always non-binding. This shall not apply if a fixed delivery period has been promised or agreed in writing. Promised or agreed delivery periods shall be calculated from the date of order confirmation, in the case of delivery against advance payment from the date of receipt of payment.
(7) Insofar as a fixed delivery period has been promised or agreed, we shall not be liable for impediments to delivery caused by force majeure or other events unforeseeable at the time of conclusion of the contract for which we are not responsible (e.g. operational disruptions of any kind, fire, natural disasters, weather, floods, war, insurrection, terrorism, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, delays in obtaining any necessary official permits, official/sovereign measures, subsequent elimination of export or import possibilities). Such an event shall also be deemed to be the failure of our own suppliers to deliver on time or in due form within the meaning of para. 5, provided that we are not responsible for this in each case and the transaction with the upstream supplier is a congruent hedging transaction. If one of the aforementioned events occurs, the delivery period shall be automatically extended by the duration of the event plus a reasonable start-up period. If an impediment to delivery for which we are not responsible lasts longer than four weeks, we shall be entitled to withdraw from the contract. We shall immediately refund any counter-performance already rendered by the customer. Any further claims of the customer – in particular for damages – shall be excluded.
(8) If an agreed delivery period or unloading time is exceeded without there being an impediment to delivery in accordance with the above paragraph 7, the customer shall grant us a reasonable grace period of at least four weeks. If we also culpably fail to meet this deadline, the customer shall be entitled to withdraw from the contract. Beyond this, we shall be liable to the customer only in accordance with § 12.
(9) In the case of deliveries to EU Member States (“intra-Community deliveries of goods”), the Customer shall immediately cooperate in a suitable manner in providing evidence of the intra-Community delivery of goods. In particular, we shall be entitled to a dated and signed confirmation of the intra-Community delivery of goods with at least the following content: name and address of the recipient of the goods, quantity and customary description of the goods as well as place and date of receipt of the goods. If the customer culpably fails to comply with this obligation to cooperate, he shall be liable for the resulting damage, in particular for the value added tax incurred by us.
§ 6 Payment
(1) Our purchase price claims are in principle “net cash” and due for payment without any deduction immediately after receipt of the invoice, unless a different payment term has been agreed in writing. We shall be entitled at any time, also within the scope of current business relations, to render services only against advance payment. We shall declare a corresponding reservation at the latest within the scope of our order confirmation.
(2) We shall only accept bills of exchange or checks on the basis of special agreements and always only on account of payment. Discount and bill charges shall be borne by the customer and shall be due immediately.
(3) If the customer does not pay the purchase price within 10 calendar days of the due date, he shall be in default without the need for a reminder, unless performance is not effected as a result of circumstances for which he is not responsible. During the period of default, interest shall be charged on the purchase price in accordance with the applicable statutory provisions. In addition, in the event of default, we shall be entitled to claim the statutory flat-rate default fee pursuant to Section 288 (5) of the German Civil Code (BGB). We expressly reserve the right to assert further damage caused by default.
(4) If the customer’s business is no longer conducted in an orderly manner, in particular if the customer is subject to seizure, a protest of a check or bill of exchange is made, or if payments are delayed or even stopped, and if the customer files for judicial or out-of-court composition proceedings or bankruptcy proceedings affecting him, or if proceedings under the Insolvency Ordinance are filed, we shall be entitled to declare all our claims arising from the business relationship immediately due and payable, even if we have accepted bills of exchange or checks. The same shall apply if the customer defaults on his payments to us or if other circumstances become known which make his creditworthiness appear doubtful. Furthermore, in such a case we shall be entitled to demand advance payments or securities or to withdraw from the contract.
(5) The customer shall only be entitled to offset or assert a right of retention if the counterclaims asserted by it in this regard are undisputed by us or have been finally determined by a court of law.
§ 7 Retention of title
(1) The goods delivered by us shall remain our property until the customer has settled all claims arising from the business relationship – including balance claims from current account as well as from refinancing or reverse bills of exchange.
(2) The customer shall only be entitled to sell the goods delivered by us in the ordinary course of business insofar as the purchaser has not excluded the assignment of the claim from the resale (cf. para. 6). The customer shall be obliged to ensure that the purchaser grants any consent reserved for the assignment of the claim from the resale in the required form. The customer’s right to resell the goods shall lapse in particular in the cases referred to in § 6 (4). In addition, we shall be entitled to revoke the customer’s right of resale by written declaration if the customer is in default with the performance of its obligations towards us, in particular with its payments, or if other circumstances become known which make its creditworthiness appear doubtful.
(3) The restrictions of the preceding paragraph (2) shall apply accordingly to the customer’s right to process the goods delivered by us. By processing, the customer does not acquire ownership of the whole or partially produced goods; the processing is carried out free of charge exclusively for us as manufacturer in the sense of § 950 BGB (German Civil Code). Should our retention of title nevertheless lapse due to any circumstances, the customer and we agree already now that ownership of the items shall pass to us upon processing, we shall accept the transfer of ownership and the customer shall remain the custodian of the items free of charge.
(4) If our reserved goods are processed and inseparably mixed with goods still owned by third parties, we shall acquire co-ownership of the new goods or mixed stock. The extent of the co-ownership shall be determined by the ratio of the invoice value of the remaining goods.
(5) Goods in which we acquire ownership or co-ownership in accordance with the above paragraphs (3) and (4) shall be deemed to be reserved goods within the meaning of the following provisions, as shall the goods delivered to us under reservation of title in accordance with the above paragraph (1).
(6) The customer already now assigns to us the claims from a resale. The claims from a resale shall also include the claim against the bank which has opened or confirmed a letter of credit in favor of the customer (= reseller) within the scope of the resale. We hereby accept this assignment. If the goods subject to retention of title are a processed product or a mixed stock, whereby, in addition to goods delivered by us, only such items are included that either belonged to the customer or were delivered to him by third parties only under the so-called simple retention of title, the customer shall assign to us the entire claim from the resale of the goods. In the other case, i.e. in the event of a concurrence of advance assignments to us and other suppliers, we shall be entitled to a fraction of the proceeds from the sale in proportion to the invoice value of our goods to the invoice value of the other processed or mixed goods.
(7) Insofar as our claims as a whole are secured beyond doubt by more than 125% by the assignments or reservations declared above, the surplus of the outstanding accounts or of the goods subject to retention of title shall be released at the customer’s request at our discretion.
(8) The customer is authorized to collect the outstanding accounts from resale of the goods. This authorization to collect shall cease to apply if the customer is no longer in the proper course of business within the meaning of the provision in § 6 (4). In addition, we may revoke the customer’s authorization to collect if the customer defaults on its obligations to us, in particular on its payments, or if other circumstances become known which make its creditworthiness appear doubtful. If the collection authorization lapses or is revoked by us, the customer shall, at our request, immediately notify us of the debtors of the assigned claims and provide us with the information and documents required for collection.
(9) In the event of access by third parties to our reserved goods or the outstanding debts assigned by us, the customer shall be obliged to point out our ownership/our right and to notify us immediately. The costs of the intervention shall be borne by the customer.
(10) In the event of conduct in breach of contract, in particular default in payment, the customer shall be obliged to surrender to us, at our first request, the reserved goods still in its possession and to assign to us any claims for surrender against third parties in respect of the reserved goods. Our taking back or seizure of the goods subject to retention of title shall not constitute a rescission of the contract.
(11) In the cases of § 6 (4), we may demand that the customer inform us of the claims arising from resale and assigned to us pursuant to § 7 (6) and their debtors. We shall then be entitled to disclose the assignment at our discretion.
§ 8 Empties
The customer is obliged to return to us empties (Euro crates, pallets, Euro hooks, etc.) of the same type, quantity and value as he received them for the purpose of delivery. The empties must be returned in a cleaned condition in accordance with the hygienic regulations. If it is not possible for the customer to return the empties to us upon delivery of our goods, he shall immediately and at his own expense ensure that the empties account is balanced (obligation to bring). If the customer is in default with the return of the empties, we may refuse to take back the empties after a reasonable period of grace and demand monetary compensation from the purchaser.
§ 9 Obligation to examine and give notice of defects
(1) The customer shall inspect the contractual conformity of the delivered products immediately upon receipt and shall note any defects discovered on the delivery bill or consignment note or receipt and notify us thereof without delay. Defects discovered later shall also be notified to us without delay.
(2) The customer shall observe the following forms and deadlines when giving notice of any defects:
The notice of defect shall be given within one week at the latest following the delivery of the goods at the agreed place of destination or their acceptance. In the case of notification of a hidden defect which initially remained undiscovered despite proper initial inspection in accordance with the above paragraph (1), a different time limit shall apply, according to which the notification of defect must be made within one week of discovery of the hidden defect.
The detailed notice of defect must be received by us within the aforementioned time limits in writing, by telegraph, telex or fax. A notice of defect by telephone shall not be sufficient. Notices of defects to commercial representatives, brokers and agents shall be irrelevant.
The type and scope of the alleged defect must be clearly stated in the notice of defect.
The customer shall be obliged to keep the goods complained about available at the place of inspection for inspection by us, our supplier or experts commissioned by us.
(3) Complaints with regard to the number of pieces, weights and packaging of the goods shall be excluded if the bill on the delivery bill or consignment note or receipt of delivery required in accordance with subsection (1) above is missing. Furthermore, any claim shall be excluded as soon as the customer has mixed, reused or resold the delivered goods or has started to treat or process them.
(4) Goods not complained about in due form and time shall be deemed approved and accepted.
§ 10 Acceptance / Returns
(1) In the case of work and services, we shall submit products created to the customer for acceptance. The customer undertakes to inspect the submitted product for its conformity with the contract within one week at the latest. At our request, the acceptance test shall be carried out in the presence of one of our employees.
(2) After the acceptance test has been carried out successfully, the customer shall declare acceptance to us in writing without delay. The acceptance test shall be deemed to have been successfully carried out if no significant deviations of the work performance from the performance description pursuant to § 4 above are detected.
(3) If, during the acceptance test, the Customer detects deviations from the performance description, it shall notify us thereof in writing without delay in accordance with § 9 (2).
(4) Material deviations shall be eliminated by us within a reasonable period of time and the performance shall then be presented to the customer for renewed acceptance; the renewed acceptance test shall be limited to ascertaining the elimination of the deviations. Non-substantial deviations shall be recorded by the customer in writing in the acceptance declaration as a defect and shall be remedied by us within the scope of the warranty.
(5) If acceptance is not declared for a reason other than the existence of a defect within the meaning of para. 2, the work performances concerned shall be deemed to have been accepted upon expiry of the period specified in para. 1. In addition, acceptance shall always be deemed to have taken place as soon as the customer starts using the work performance in operational business.
(6) If the goods are returned for a reason for which the customer is responsible (e.g. incorrect order), a maximum of 70% of the original purchase price might be reimbursed after the goods have been returned in perfect condition and in their original packaging from a goods value of € 50. If the value of the goods is less than € 50, no refund will be made. Also no Refund can be given in cases in which the goods cannot be used for other purposes within DGS or for other customers.
§ 11 Rights in case of defects
(1) In the case of the purchase of used goods, the warranty shall be excluded; in this respect, we shall assign our rights against the upstream supplier to the customer, if applicable. In the case of refurbished goods, the warranty is limited to the measures taken by us, which are documented in a protocol that is handed over to the customer at the time of purchase. In the case of work services (e.g. maintenance, inspection), the warranty is limited to the measures carried out by us. Any other warranty for the object on which we perform measures (e.g. engine) shall not be assumed.
(2) In the event of a defect, we shall, at our option, either deliver new goods or remedy the defect or remanufacture the work or remedy the defect (together hereinafter referred to as “subsequent performance”). The customer shall grant us a reasonable period of time to effect subsequent performance. Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
(3) If the subsequent performance has failed or if a reasonable period to be set by the customer for the subsequent performance has expired unsuccessfully or is dispensable under the statutory provisions, the customer may withdraw from the contract or reduce the price. In the case of an insignificant defect, however, there shall be no right of withdrawal.
(4) The customer shall not be entitled to any further rights and claims due to the existence of a defect. In particular, we shall not be liable to the customer for damages unless the goods delivered by us lack a characteristic expressly warranted by us or there is intent or gross negligence on our part.
(5) In the event of warranty claims, the product must be made available at our premises. Any dismantling and installation costs as well as transport costs shall be borne by the customer. If it turns out that there is no defect, the customer shall bear all costs incurred, in particular travel, labor and material costs. § Section 478 BGB shall remain unaffected.
(6) Claims for defects shall become statute-barred, unless a case of § 438 para. 1 no. 2 BGB or § 634a para. 1 no. 2 BGB applies, within one year, beginning with delivery or acceptance. In case of injury to life, body or health as well as in case of intentional or grossly negligent breaches of duty, the statutory limitation provisions shall apply.
§ 12 Limitation of liability
The customer’s claims for damages or reimbursement of futile expenses shall be governed by the following provisions:
(1) We shall be liable for damages arising from injury to life, body or health that are based on an intentional or negligent breach of duty by our legal representatives or vicarious agents.
(2) We shall also be liable for other damages based on an intentional or grossly negligent breach of duty by our legal representatives or vicarious agents.
(3) For other damages based on a simple or slightly negligent breach of duty by our legal representatives or vicarious agents, we shall only be liable if contractual obligations are involved, the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the customer regularly relies and may rely (cardinal obligations). In this case, however, our liability shall be limited to the amount of the damage typical for the contract and foreseeable at the time of conclusion of the contract.
(4) Any limitations or exclusions of liability shall not apply if we have fraudulently concealed a defect or in the event of the existence of a quality or manufacturer’s warranty. Any liability under the Product Liability Act shall also remain unaffected.
(5) The foregoing provisions shall apply to the same extent to our corporate bodies, employees and staff.
§ 13 Further Provisions
(1) Insofar as software is created or parameterized for the customer as part of the performance of the contract the customer receives a simple, temporally and spatially unlimited right to use the software or parameterization unlimited in time and space for use on or in connection with the product distributed by DGS distributed by DGS, as well as the right to utilize it as part of/together with the product distributed by DGS (and in this respect also to transfer it to third parties). No source code is transferred. The processing and other distribution/transfer of the software by the customer is by the customer is excluded; the mandatory rights of the customer pursuant to Art. 5 para. 1 and 6 of the EU Directive of 23.4.2009 on the legal protection of computer programs.
(2) The customer may assign rights and obligations arising from legal transactions concluded with us only with our express consent. We shall be entitled to assign our rights and obligations vis-à-vis the customer.
(3) Place of performance for the delivery of the goods is the registered office of DGS.
(4) Verbal collateral agreements are not valid. Any amendment to an agreement must be in writing, as must any waiver of this written form requirement.
(5) The exclusive – including international – place of jurisdiction for all disputes arising from or in connection with the business relationship between us and the customer is Mainz. However, we shall also be entitled to sue the customer at the customer’s place of business. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected.
(6) The contractual relationship shall be governed by the laws of the Federal Republic of Germany. The applicability of the UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
(7) The invalidity of individual provisions of these General Terms and Conditions of Sale shall not affect the validity of the remaining provisions. Ineffective provisions shall be deemed to be replaced by such effective provisions which are suitable to realize the economic purpose of the omitted provision as far as possible.
DGS GTC – Sale 2018/03