Terms and Conditions — Dichtungstechnik GmbH
- These conditions only apply to companies according to Art. 310 of the German Civil Code (BGB).
- The offers, order confirmations, deliveries, goods and services of the seller take place exclusively on the basis of these terms and conditions.
- This shall also apply to all future business dealings, even if they have not yet been agreed upon additionally and explicitly.
- Counter provisions from the buyer indicating his terms and conditions of business or purchase are hereby considered void.
- Any exceptions to these Terms and Conditions shall only be valid if they have been confirmed in writing by the seller.
II. Offer and conclusion of the contract
- The offers provided by the seller are subject to change; in each case, order or article numbers refer to the latest version of the seller's documents, such as catalogs or pamphlets, from which additional technical information is also derived. These documents are only approximately authoritative, as long as they have not been indicated as being binding. No warranty can be given for the unit weights, which are sometimes indicated in the catalog.
- Declarations of acceptance and all orders require a confirmation by the seller either in writing or by telex (including electronic data interchanges, long-distance data transfers and machine-readable data carriers) in order to have legal standing. This also applies to amendments, modifications, or supplementary agreements. The issuing of the invoice shall also be seen as an order confirmation.
- Drawings, illustrations, dimensions, weights or any other data shall only be binding if this has been explicitly agreed upon in writing. All drawings and documents are to be returned upon the seller's requested or without being requested if the order is not placed.
- If, after the conclusion of the contract, it becomes clear that the seller's claims for consideration are endangered by the buyer's insufficient capability to provide such consideration, in particular if the customer exceeds credit limits or if there are any outstanding, overdue bills, the seller is within its rights to refuse to fulfill the contract until the buyer has provided due consideration or collateral. The seller is within its rights to withdraw from the contract if it has given the seller a reasonable deadline to provide due valuable consideration or suitable collateral, to no avail.
III. Prices and terms of payment
- The prices specified by the seller in its offers are subject to change. Unless otherwise specified in the order confirmation, the prices shall be ex-factory/warehouse of the seller, excluding packaging, postage, freight charges, any other shipping fees, insurance and customs fees. These shall be charged separately. Packaging shall be charged at cost. VAT is not included in the seller's prices. It will be charged separately at rates mandated by law.
- All of the seller's invoices are payable within 30 days of the invoice date, net and in full, or within 10 days of the invoice date minus a 2 % discount, to the seller's point of payment in euros. A discount shall not apply if outstanding purchasing price claims still exist due to older overdue invoices. All discounts are to be subtracted from the gross total of the invoice.
- Even if the buyer has other conditions, the seller is within its rights to offset payments against the buyer's older debts. If costs and interest have accrued, the seller has the right to first offset the payment against the costs, then the interest, and finally against the main consideration for goods and services.
- A payment shall only be considered as having been made when the seller has access to the sum.
- If the buyer defaults on his payments, or if the seller gains knowledge of any other circumstances that call into question the buyer's creditworthiness, the seller shall be within its rights to ask for payment of the entirety of the remaining debt or to demand other securities.
IV. Offsetting, right of retention, prohibition of assignment
- The buyer shall only have the right of offsetting or retention in cases that are beyond dispute or which have been judged legally valid. Deductions due to defects shall be subject to the same restrictions.
- The buyer agrees to the offsetting of his claims and liabilities towards the seller and members of the companies of its group. Claims and liabilities of the buyer's group and its constituent companies may also be offset in a similar manner.
- The client's contractual rights are non-transferable.
V. Delivery and performance period
- The dates and times specified by the seller are non-binding, unless otherwise specified in writing. Call and blanket orders require individual delivery time agreements.
- Delivery deadlines begin on the day the seller's order is received. In order for the seller to fulfill shipping obligations, the party placing the order will first need to lawfully and properly fulfill its duties. In particular, the seller must have received all documents, parts, information and licenses to be provided by the ordering party, and any agreed advance payment will need to have been made.
- The supply date shall be the day on which the buyer is informed that the goods are ready for pickup. If shipment is due, the supply date shall be the day the goods are handed over to transportation personnel.
- It shall be deemed acceptable to perform partial deliveries and the partial provision of services if it is reasonable so to do. Furthermore, unavoidable quantity variances up to +/- 5 to 10% shall not be considered as insufficient quantities.
- The seller shall not be liable for delays in the provision of deliveries and services due to force majeure. Force majeure and labor disputes shall free the contractual partners of all obligation to provide goods and services for the duration of the disruption and within the extent of their influence. The contractual partners are obliged to provide the required information without delay and to adapt their duties to the changed circumstances in good faith to such extent as is just and reasonable. In such cases, customers have a right of withdrawal only when the agreed-upon supply date has been exceeded by more than ten weeks. Before this period has passed, the buyer shall only have the right of withdrawal if the seller informs the customer in writing that it will not or will no longer be able to make the supply. These limitations do not apply to fixed date transactions. If it is no longer just and reasonable to expect the goods to be manufactured due to force majeure or a labor dispute, the seller is freed of its contractual obligations and has the right to withdraw from the contract.
- If, in the case of a delivery date agreed upon in writing, the seller is in default, the buyer may withdraw from the contract if it gives the seller an an additional grace period of at least 14 days, unless, in exceptional cases, such a grace period is superfluous. If the buyer does not declare in the grace period whether it is still demanding fulfillment or if it would like to exercise his right of withdrawal, and if such a declaration is not submitted to the seller within an additional period of 7 days, the seller shall be within its right to withdraw from the contract. The buyer's right to claim damages shall be regulated by the requirements in section IX.
VI. Transfer of risk
- The risk shall be transfered to the buyer as soon as the goods have left the seller's factory, an external warehouse or, in the case of direct deliveries of goods it has not manufactured itself, the sub-contractor's warehouse. If the shipping or pick-up is delayed or becomes impossible due to reasons beyond the seller's control, the risk is transfered to the buyer upon notification of readiness for shipment.
- The buyer is to take delivery of items delivered, even if they have insignificant deficits, without prejudice to its rights under section VIII.
VII. Reservation of title
- The goods supplied shall remain the property of the seller until such time as the buyer has fulfilled all obligations from the existing business relationship.
- Any processing or alterations that take place will be made on behalf of the seller as manufacturer, but without any obligation on it. If the seller's co-ownership is forfeit due to amalgamation, it shall henceforth be agreed that the co-ownership of the buyer of the unified object shall be transferred to the seller, pro rata, based on the invoice value. The buyer shall store the property or co-property of the seller at no cost.
- The buyer undertakes to store the property/co-property of the seller with the care of a prudent businessman and to protect it from deterioration, loss of value, or other loss, even against his buyers.
- The buyer has the right to process and sell the provisory goods in proper business dealings. Any pledging or transfer of ownership is not permitted. Already at this point in time, the buyer defers to the seller, for the purposes of security, any receivables resulting from the further sale or any other legal grounds with regard to the provisory goods to the full extent and with all ancillary rights.
- In the case of third-party access to the provisory goods, the buyer will indicate the seller's ownership and inform the seller without delay. The buyer shall bear all costs and damages.
- If the buyer is in default with payment, the seller has the right to withdraw from the contract and to take back the provisory goods at the buyer's cost or, in the event of transfer, to demand the assignment of the claims for return of the goods held by the buyer against third parties. The seller's right to claim damages shall not be affected by this. The same shall apply for any other behavior on the part of the buyer which is in violation of the contract.
- The seller undertakes, on request from the buyer, to release the securities to which it is entitled, only to the extent that the realizable value of these securities exceeds the secured amount receivable by more than 20 %. The seller will decide which securities to release.
VIII. Claims for defects
- Any exclusion of industry-standard deviations requires an express written agreement. The same applies for warranties. The seller's information on delivery and services in its catalogs, brochures and price lists is to be understood solely as descriptions, labels or reference values, unless otherwise specified in the order confirmation. Minor, non-significant deviations from the catalogs or previously delivered goods shall not be seen as deficiencies.
- The buyer itself is responsible for checking whether the goods ordered from the seller are suitable for the purposes he intends to use them for. Unsuitable goods shall only constitute a defect if the seller has confirmed their suitability in writing for the buyer.
- Wear and tear on wear parts as part of normal use shall not constitute a defect.
- If the seller's assembly, installation, sales or maintenance instructions are not followed, modifications are made to the products, parts replaced or consumable materials used which do not confirm to the original specifications, then claims for defects shall only be recognized if the buyer can provide evidence that the defect was not caused by the aforementioned, instead having already been present at the time of the transfer of risk. The seller shall be liable for ensuring that its products are free from manufacturing and material defects, and that they also conform to the specifications agreed upon in the order confirmation. The buyer's right to assert a claim due to defects requires that he has properly fulfilled his inspection and notification obligations in accordance with Art. 377 of the German Commercial Code (HGB).
- If the goods have not yet been delivered to an end consumer, proper and justified notifications of defects shall result in the seller being obliged, at its own discretion, to either rectify the defects or to redeliver the item or parts thereof. If follow-up deliveries or rectifications are unsuccessful, the buyer may only request that remuneration be decreased, or, at its own discretion, withdraw from the contract. However, the right of withdrawal and the right to compensation for damages instead of the goods or services shall only apply if the defects are significant. The customer's right to claim damages shall be in accordance with section IX.
- If the goods have already been delivered to an end consumer, the customer generally only has the right to claim damages for defects from the seller which its own buyer has claimed from it. This shall not apply if the goods were returned due to a gesture of goodwill that the seller did not agree to. Furthermore, the customer shall have no right of withdrawal if it had to accept a return because it did not properly fulfill its supplementary performance obligation, in particular because it knowingly allowed a grace period for providing supplementary performance to lapse without undertaking any action. The seller is only obliged to compensate expenditures in accordance with Art. 439 para. 2 of the German Civil Code (BGB) if the customer has informed it of the supplementary performance demands of its buyer in advance and without delay, of the intended method of supplementary performance and the approximate costs involved, and the seller did not object without delay. The customer is obliged to follow up on the seller's suggestions with regard to a more favorable variant of supplementary performance.
- If the seller is in breach of non-performance-related obligations in accordance with Art. 241 para. 2 of the German Civil Code (BGB), the customer shall only have a right of withdrawal and to claim damages instead of the goods or services in excess of legal requirements if it has served prior written notice to the seller and the violation of obligations is still not remedied.
- In case of a rectification of defects, the seller is obliged to bear the costs for all expenditures required for the purposes of the rectification of defects, in particular transport, travel, work and material costs, unless they are not based on the fact that the object purchased is brought to a different location other than the place of performance.
- Defect claims shall expire within 12 months of delivery of the item to the customer. This shall not apply if the violation of obligations was deliberate or due to negligence. Furthermore, Art. 444 and 479 of the BGB shall remain unaffected.
IX. Compensation for damages, limitation of liability
- Claims for damages are excluded. In particular, the seller shall not be liable for damages that occur to the objects delivered, nor for subsequent damages of any type due to defects: in particular, the seller shall not be liable for loss in earnings or any other financial damages suffered by the buyer. This indemnification shall not apply if the seller or its vicarious agents can be held responsible due to deliberate acts or gross negligence.
- If the seller has violated a significant obligation required for the fulfillment of the purpose of the contract due to negligence, liability shall be limited to damages typical for comparable transactions of this type, which were foreseeable during the conclusion of the contract, or at the very latest, during the breach of duty.
- Unchanged Art. 444 of the German Civil Code (BGB): Claims for compensation arising from death, physical injury or damage to health, or claims under product liability law remain unaffected.
X. Rights of use and exploitation, property rights
- As long as the seller manufactures goods due to an order placed by the buyer, in accordance with his instructions and guidelines, and supplies them to the buyer, the buyer shall be liable for ensuring the seller that the supplies and services ordered do not violate the property rights of any third party. The buyer indemnifies the seller from all corresponding claims and shall be obliged to compensate it for any damages incurred.
- In cases where the seller provides the buyer with tools, drafts, installation suggestions or any other drawings and documents together with the goods, the seller reserves the property rights and all trademark and usage rights. The buyer is only allowed utilization within the confines of the sales agreement; in particular, it does not have the right to reproduce such items or to make them available to third parties.
Unless agreed upon explicitly in writing, the information received in connection with the order shall be considered as non-confidential.
XII. Data privacy
The seller has the right to store and process, in compliance with the regulations of the German Federal Data Protection act, all data received via the buyer that is related to the fulfillment of the order, for the seller's own purposes..
XIII. Partial validity
In the event that a provision in these terms and conditions or a provision in the context of any other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
XIV. Court of jurisdiction — place of fulfillment
The court of jurisdiction is Bensheim. However, the seller also has the right to take legal action against the buyer at its place of business. Unless otherwise specified in the order confirmation, the place of fulfillment shall be the place of business of the branch office of the seller which carries out the supply in question.
XV. Applicable law
For the terms and conditions and the entire legal relationships between the buyer and the seller, the law of the Federal Republic of Germany shall apply. The United Nations Convention on Contracts for the International Sale of Goods, dated April 11, 1980 ("CISG") shall not apply.
Last update: December 2013