§ 1 General
(1) Terms and conditions set below are part of any contract concluded with us.
(2) Our General Terms and Conditions of Sale also apply in their always latest version to all subequent transactions without being stated or agreed explicitly.
(3) We hereby object to any conflicting confirmations, counter offers or other quotations of the customer with reference to his general terms and conditions; dissenting terms of the customer only apply, if we have confirmed the same in writing.
§ 2 Offers; Orders
(1) Our offers are always nonbinding particularly with reference to quantities, price and delivery time.
(2) Orders placed by the customer are only considered accepted, if these have been confirmed by us in writing. If we fail to confirm an order placed by phone or verbally, our invoice is to be regarded as confirmation.
§ 3 Prices, Weights, Travelling
(1) All prices are understood to be exclusive of the statutory value-added tax payable at the date of delivery.
(2) If, due to a change in law, additional or increased charges such as duties, levies, currency compensations incur between the contract date and the date of delivery, we reserve the right to increase the agreed sales price accordingly. The same applies to any examination fees.
(3) Our sales prices are based on the price lists valid on the date of ordering. In case of a delivery date more than 4 months after ordering we reserve the right to adjust prices at the time of delivery, if our cost has increased e.g. due to increased supplier cost. If the price increase exceeds 40%, customer has the right to withdraw from the contract within two weeks.
(4) In case of travelling incurring travel expenses, travelling hours, accommodation, subsistence costs and additional expenditures will be invoiced separately. Travelling time will be charged according to our hourly rates. Travelling expenses for repair orders outside warranty have to be absorbed by the customer even if no defects could be found.
§ 4 Condition
Function and condition of the goods are according to the manufacturer’s specification. Modifications or special agreements have to be fixed in writing (specification sheet). Other documents or statements are irrelevant.
§ 5 Shipment and Delivery
(1) Goods are shipped without insurance coverage and at customer’s risk. This also applies in case of carriage paid delivery and independant of the means of transportation. Transportation insurance is only concluded upon specific customer request and at customer’s expense.
(2) In the absence of any dissenting written agreement selection of place of despatch and means and route of transport are made by us according to our best discretion without assuming any liability for cheapest and quickest transport.
(3) If customer provides the means of transportation, he is responsible for punctual availability. We have to be informed about possible delays in due course. Additional costs involved are at customer’s expense.
(4) We are allowed to conduct reasonable partial shipments.
(5) Our delivery commitment is always subject to in-time and correct delivery of our suppliers.
(6) Unless otherwise expressly agreed all indicated delivery and unloading times are nonbinding.
(7) Delivery constraints due to force majeure or unforeseeable events such as disruptions of operations, strike, lockout, official directives, subsequent loss of export and import possibilities as well as delivery reservation as stated under paragraph 5) release us for the duration and extent of their impact from the obligation to observe agreed delivery and unloading dates.
(8) If an agreed delivery or unloading date is exceeded without any delivery constraint as described under paragraph 7), customer has to grant us an appropriate extension of time of minimum 4 weeks. This has to be done in writing. If this extension of time is not observed by us culpably, customer has the right to withdraw from the contract, but not to claim compensation for any loss suffered from this default unless in case of intention or gross negligence from our side.
§ 6 Payment
(1) Our sales prices are payable net cash without any deductions immediatly upon receipt of invoice, unless other payment terms have been agreed in writing.
(2) Bills and cheques are only accepted upon special agreement and on account of payment only. All discount and note charges are on customer’s account and become due immediately.
(3) If invoice amount is not settled within 10 calender days after invoice date or at the agreed due date, we have the right to charge late interest in a proved amount but minimum in the amount of 5% above the base interest rate of the EZB without a special reminder in advance.
(4) We have the right to immediately set due all debts resulting from our business relationship, even if we have accepted bills or cheques, if normal course of business operations at the customer stops because of garnishment, cheque or bill protest or payment hold-up or even payment stoppage and if customer applies for judicial or extra-judicial composition or insolvency proceedings or proceedings according to insolvency regulations are filed against him. This also applies in case of customer’s payment default or if we get to know circumstances which indicate a doubtful credit worthiness of the customer. In this case we have the right to demand prepayments or securities or to withdraw from the contract.
(5) Customer only has the right of set-off, withholding or reduction, if his counterclaims have been established as final and absolute or have been expressively recognized by us.
§ 7 Retention of Title
(1) Property in all goods delivered remains with us until complete settlement of all debts resulting from business relationship with the customer – including balance claims resulting from open account and from reverse bills of exchange.
(2) Customer has the right to dispose of the goods delivered by us under normal course of business. This allowance terminates in any of the cases listed under §6 (4). Furthermore we have the right to withdraw customer’s entitlement to disposal by written statement, if he does not meet agreed obligations, especially in case of payment default or the emerging of circumstances which indicate a doubtful credit worthiness.
(3) Customer’s right to process the purchased goods is restricted according tor §7 (2). Customer does not gain ownership of the partly or completely manufactured goods; processing is done free of charge only for us as manufacturer and according to §950 BGB. If our reservation of title should extinguish for whatever reason, customer and we already now agree that we have and hold title of the processed objects. We accept the transfer of ownership and customer acts as non-paid custodian of the objects.
(4) If our goods under retention of title are processed and inseparably mixed with goods which are under third party property, we gain joint ownership on the new items or the mixed assets. Amount of joint ownership is determined by the proportion of the invoice value of the rest of the goods.
(5) All items for which we acquire ownership or joint ownership according to section (3) and (4) as well as the goods delivered to us under reservation of ownership according to section (1) are to be seen as goods subject to retention of title according to the following provisions.
(6) The customer already right now assigns all claims to us resulting from a resale. This also includes claims against a bank that, within a resale business, opened or confirmed a letter of credit in favour of the customer (= reseller). We herewith accept this assignment. If the goods subject to retention of title are processed products or mixed assets which besides our goods only include such items that belong to the customer or which have been supplied to him under the so-called ordinary reservation of title, customer assigns the complete claim to us resulting from the resale of the product.In other cases where advance assignments to us and to other suppliers coincide, we are entitled to a percentage of the sales proceeds calculated according to the invoice amount of our goods proportionately to the invoice value of the other processed or mixed assets.
(7) Once our claims are absolutely collateralized by 125% by the assignments and reservations described above, the surplus of outstandings and goods subject to retention of title will be released on customer’s request.
(8) Customer is allowed to collect outstandings resulting from resale of the products. This authorization is void, if normal course of business operations at the customer according to §6 (4) is no longer existing. We can also withdraw the authorization, if customer failes to carry out his duties against us or if circumstances are emerging that indicate a doubtful credit worthiness. If the authorization to collect outstandings is not applicable or has been withdrawn by us, customer has to, upon our request, immediately notify us of the debtor of the assigned claims and to provide necessary information and documents for collection.
(9) In case of access of third parties to our goods under reservation of ownership or to assigned outstanding debts, customer is obliged to reference our property/right and to immediately inform us. Costs arising from this intervention are at customer’s account.
(10) In case of behaviour contrary to contract, especially delay in payment, customer is obliged to surrender on first demand the goods under reservation of ownership and to assign to us existing claims for restitution of any third party. Redemption and garnishment of goods subject to retention of title do not mean a rescission of contract.
(11) In all cases according to §6 (4) we can require the customer to give notice of all claims arising by resale and assigned to us according to §7 (6) and to reveal the debtor. We are then entitled to disclose the assignment at our own option.
§ 8 Empties
Customer is obliged to return empties (Euro boxes, Euro pallets, Euro hooks) in the same kind, quantity and value as received with the delivery of the goods. Empties have to be returned in cleaned condition according to existing sanitary regulations. If customer is not in a position to return empties upon delivery, he has to balance his empties’ account without delay and at own expense (obligation to act). In case of delayed return of empties we can deny acceptance after an appropriate period of grace and demand compensation in monetary form.
§ 9 Duty of Inspection and Objection
(1) Customer has to check contractual conformity of delivered products immediately after receipt. Defects and shortages have to be noted on the delivery note respectively consignment note or the bill of receipt and have to be reported to the supplier immediately. Deficiencies discovered later also have to be reported immediately.
(2) In case of claims customer has to comply with the following procedures and deadlines:
a. Claim shall be submitted not later than one week following delivery and takeover of the goods at the agreed destination. In case of a hidden deficiency which has not been discovered during first inspection according to section (1) a different deadline applies and the claim has to be submitted within one week after discovery of the hidden defect.
b. Detailed notification of defects has to reach us within the stipulated deadlines in writing, by e-mail, by telex, by telefax or by wire. Any claim by phone will not be sufficient. Notifications to sales representatives, brokers and agents will not be valid.
c. The claim must clearly specify kind and amount of asserted deficiency.
d. Customer is obliged to keep available the claimed goods at the place of inspection. Inspection may be done by us, by our supplier or by an authorized expert.
(3) Claims with reference to quantity, weights and packaging of the goods are excluded, if not having been stated on the delivery note, consignment note or bill of receipt according to section (1). Furthermore no more claims are possible as soon as customer has compounded, used or resold delivered goods or started their processing.
(4) All goods not claimed faulty in due form and time are regarded as approved.
§ 10 Acceptance
(1) In case of work performance manufactured products will be presented to customer for approval. Customer obligates to check presented products within one week to make sure that they comply with contractual specification. Upon our request this inspection has to be executed in the presence of one of our employees.
(2) Immediately after approval check has been successfully completed customer attests us the approval in writing. Approval check is deemed as successfully done, if no major deviations of work performance from the contractual specification according to §4 above are ascertained.
(3) If customer discovers deviations from contracutal specification during approval check, he has to immediately inform us in writing according to §9 (2).
(4) We will correct major deviations within a reasonable period of time and products will again be presented to customer for approval. This re-approval is limited to validation of the rectification of all asserted deviations. Non-essential deviations will be stated by the customer in writing in the declaration of acceptance and will be settled by us under warranty terms.
(5) If acceptance is not declared for any other reason than for the defaults under §10 (2), work performance in question is deemed accepted after the expiry of the periond mentioned under §10 (1). Furthermore acceptance is always presumed to be given as soon as the customer starts using work performance in operational business.
§ 11 Warranty
(1) If customer purchases used goods, warranty is excluded. If applicable, we only transfer our rights against a pre-supplier to the customer. For reconditioned goods warranty is limited to the measures we took and which are stipulated in a document handed over to the customer upon purchase. For work performance (e.g. maintenance, inspection) warranty is also limited to the measures we took. Any other warranty for a product where we carry out measures (e.g. engine) can not be furnished.
(2) In case of claims being raised in accordance with procedures and deadlines, customer has the right to claim reduction of the purchasing price, however, subject to our right of own choice to rework or replace the faulty product. Customer cannot claim a defect, if quality and/or use of the product or work performance are only affected insignificantly.
(3) In case of warranty product has to be made available at our premises. Incurring disassembly and assembly costs as well as transportation cost are at customer’s expense. If it turns out that there is no defect, any incurred expenses are on customer’s account, in particular travelling, working and material costs.
(4) If customer changes the product in a way not authorized by us in writing, all warranty claims are excluded, unless customer proves that claimed defect has not been caused by the changes and that rectification of the defect is not hindered by the changes.
(5) Customer is not entitled to any further rights and claims. We are especially not liable for compensation for any loss suffered due to non- or mis-performance unless the product we delivered is lacking an expressly warrantied feature or a case of wilful intent or gross negligence from our side can be proven.
(6) Warranty claims are subject to a limitation period of one year after the delivery of the product.
§ 12 Liability Limitation
Customer claims for compensation for damages and unavailing expenditures are subject to the following limitations:
(1) We are liable for grossly negligent conduct of our legal representatives, of our executive staff or of other auxiliary persons as well as for injury to persons, for guarantee of quality, for manufacturer’s warranty and according to Product Liability Act. For damages caused by gross negligence of auxiliary persons our liability is limited to those damages of which occurence may be typically anticipated under the contract.
(2) For damages caused by simple negligence we are only liable, if an obligation has been violated which is of special importance for fulfillment of the contract (material contractual obligation).
(3) In total our liability is limited to the contractual value of the concerned subject matter of the contract, even if the contract contains several subjects matters. We are not liable for production downtimes, loss of profit and other indirect losses or damages.
(4) This limitation of liability also applies in case of personal liability of our employees directly claimed by the customer.
§ 13 Further provisions
(1) Customer may not assign rights and duties of our mutual legal transactions unless specifically authorized by us. We are entitled to cede all rights and duties which we have towards the customer.
(2) Place of delivery of goods is the place of business of DGS
(3) Any verbal agreements are invalid. Any amendments to the contract need to be done in writing as well as the renouncement of the written form requirement.
(4) Place of jurisdiction for all disputes arising from the contract is Mainz. A different place of jurisdiction may be selected by mutual agreement.
(5) This agreement is based on German legislation except for the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(6) Should any part or parts of this document be deemed invalid or unenforceable, the rest of these General Sales Terms remain valid and enforceable. Invalid terms are regarded as being replaced by terms appropriate to best possibly achieve the economical purpose of the omitted regulation.