General Terms and Conditions of Sale and Delivery of Otto Dieterle
Section 1 Scope of Application
(1) These Terms and Conditions of Sale and Delivery shall exclusively apply to companies, legal persons under public law or special funds under public law pursuant to Section 310 Subsection 1 BGB [German Civil Code].
(2) All deliveries, services and offers of the seller (hereinafter referred to as “Seller“) will be made exclusively based on these General Terms and Conditions of Sale and Delivery. These constitute an integral part of all agreements concluded between Seller and his contracting parties (hereinafter referred to as “Customer“) on the offered and delivered goods and services. They shall also apply to all future deliveries, services or offers to Customer, even if they haven't been agreed upon separately.
(3) General terms and conditions of Customer or third parties shall not apply, even if Seller has not expressly objected to them in the individual case. Even if Seller refers to a letter containing the General Terms and Conditions of Customer or a third party or directly refers to them, then this shall not bedeemed to be Seller's consent to the application of these General Terms and Conditions.
Section 2 Offer and Conclusion of the Agreement
(1) All offers of Seller shall be non-binding unless they have been expressly been marked as binding or contain a particular term of acceptance. Seller may accept any orders or contracts within fourteen days after receipt.
(2) The minimum order value shall be EUR 25.00.
(3) Details given by Seller on the subject matter of delivery or service (e.g. weight, dimensions, functions, loading capacity, tolerances and technical details) and our illustrations thereof (e.g. drawings and figures) are only roughly binding, unless their use for the contractually agreed purpose requires a detailed conformity. These are no guaranteed quality features but descriptions and designations of the delivered goods or service. Deviations customary in the trade and derivations which were made due to legal regulations or technical improvements and the replacement of components by equivalent components shall be permitted unless they affect the usability for the contractually agreed purpose.
(4) Seller reserves the right to ownership or copyright to all offers and cost estimates he has given as well as all drawings, figures, calculations, brochures, catalogues, models, tools and other documents and aids provided to Customer. Without prior consent of Seller, Customer may neither make these items accessible to third parties, both with regard to their materialised form and their content, announce them publicly, use them personally or have them used by third parties, or make copies of them. Upon request of Seller, Customer shall return these items completely and eliminate any copies thereof if they are not required in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
Section 3 Prices and Payment
(1) The prices shall apply to the scope of services and deliveries listed in the confirmation of the order. Additional and special services will be accounted for separately. The prices shall be in Euro ex works plus packaging, the statutory VAT, the customs duties in the event of export deliveries as well as fees and other taxes.
(2) If no agreement has been made on a fixed price, appropriate price changes due to changed payroll expenses and material and distribution costs for deliveries which will be made 3 months after the conclusion of the contract or later shall be reserved.
(3) Invoiced amounts shall be payable within 10 days from the invoice date with a discount of 2% or net within 30 days, unless other payment terms have been agreed upon otherwise. The receipt by Seller is relevant for the date of payment. If Customer does not pay at due date, then the amounts in arrears shall bear interest from the due date with 9 percentage points above basis rate per year; the assertion of higher interest rates and further damage will remain unaffected in the event of default.
(4) The set-off with counterclaims of Customer or the retention of payments due to such claims shall only be admissible, if these counterclaims have been undisputed or legally established.
(5) Seller shall be entitled to perform outstanding deliveries or to render services only against advance payment or provision of a security if he becomes aware of circumstances after the conclusion of the contract which are capable of lowering the creditworthiness of Customer substantially and by which the payment of the outstanding claims of Seller is jeopardized by Customer under the respective contractual relationship (including other individual contracts subject to the same Master Agreement).
Section 4 Delivery and Delivery time
(1) Deliveries will be ex works.
(2) Any set periods and dates for deliveries and services shall apply only approximately, unless a set period or a fixed date have been expressly promised or agreed upon. If shipment has been agreed upon,then the delivery periods and delivery dates will refer to the time of delivery to the forwarder, carrier, or third party otherwise commissioned with the transport.
(3) Without prejudice to any of their rights due to default of Customer, Seller may request from Customer an extension of the set periods for delivery and services or a postponement of dates for deliveries and services by that period of time that Customer will require to meet his contractual obligations vis-à-vis Seller.
(4) Seller will not be liable for impossibility of delivery or for default in delivery if these defaults have been caused by force majeure or unforeseeable events (e.g. operational breakdowns of any kind, difficulties in the procurement of materials and energy, delays in transit, lack of workforce, energy or raw materials, or an outstanding, incorrect or untimely delivery by suppliers) which Seller is not responsible for. If such events make it substantially difficult or even impossible for Seller to perform the delivery or render the service and if the impediment is not merely of a temporary duration , then Seller will be entitled to withdraw from the contract. In the event of impediments of a temporary nature, the time periods of deliveries and services will be extended or postponed by the period of time of the impediment plus a reasonable initial period. If it would be unreasonable to require Customer to accept the delivery or service due to the delay, then he may withdraw from the contract by prompt written statement addressed to Seller.
(5) If Seller is in default with a delivery or service or if a delivery or service is impossible to the Seller insignificant of the reasons, then the liability of Seller for compensation for damage shall be limited pursuant to Section 7 of these General Terms and Conditions of Sale and Delivery.
Section 5 Place of performance, Shipment, Packaging, Passing of the risk
(1) Place of performance for all obligations under this contractual relationship shall be the registered office of Seller in 78628 Rottweil, Germany.
(2) The mode of shipment and packaging will be at the duly discretion of Seller.
(3) The risk will pass at the latest with the handover of the delivery item to the forwarder, carrier or any third party commissioned with the shipment to Customer (the commencement of the loading procedure being relevant). This shall also apply if partial deliveries shall be made or if Seller has assumed other services (e.g. shipment or installation). If shipment or delivery are delayed due to a circumstance whose cause lies on the side of Customer, then the risk passes to Customer on the day that the delivery item is ready for dispatch and Seller has given Customer notice thereof.
(4) The consignment will be insured by Seller against theft, the risk of breakage, transport, fire and water damage or other insurable risks only upon express request by Customer and on their account.
Section 6 Warranty, Material Defects
(1) The limitation period for buyers in actions for breach of warranty shall be one year from delivery.
(2) Warranty rights of Customer shall require that he has met all their mandatory duties to examine the goods and to give notice of a defect pursuant to Section 377 HGB [German Commercial Code]. Upon request of Seller, a rejected delivery item shall be returned freight paid to Seller. In the event of an item being rejected for justified cause, Seller will refund the costs of the most reasonable shipment type; this shall not apply if the costs increase because the delivery item is located at a different place than the place of intended use.
(3) Should the delivered items be defective, then Seller will have the right and duty to rectify the defects or to replace the defective item at his discretion within a reasonable time period set. Should Seller fail in doing so, i.e. in the event of impossibility, hardship, refusal or unreasonable delay of the rectification of defects or replacement, then Customer may withdraw from the contract or lower the purchase price to a reasonable extent.
(4) If the defect is based on the fault of Seller, then Customer may demand compensation for damagepursuant to the requirements under Section 7.
(5) The warranty rights will be forfeited if Customer changes the delivery item or has it changed by third parties without Seller's consent and if the rectification of defects will be impossible or unreasonably difficult thereby. In any case, Customer shall bear any additional costs incurred by the change for the rectification of defects.
(6) A delivery of used items agreed upon in individual cases shall be made under exclusion of any
warranty for material defects.
Section 7 Liability for compensation for damage for fault
(1) The liability of Seller for compensation for damage, irrespective of its cause, particularly impossibility, default, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and the law of torts shall be limited pursuant to this Section 7, unless liability for fault is not required.
(2) Seller shall not be liable in the event of negligence by his organs, legal representatives, employees or other vicarious agents, unless no obligations essential to the contract are violated. Essential to the contract is the obligation to deliver the delivery item on time, its lack of defects that affect its functionality and usability to a considerable extent, and consultation obligations as well as obligations of protection and due care which shall enable Customer to use the delivered item according to contract or aim the protection of life and limb of Customer's staff or the protection of Customer's property against considerable damage.
(3) If Seller is liable pursuant to Section 7 (2) for compensation for damage, then this liability shall be limited to damage that Seller has already foreseen as a possible result of a violation of a contractual obligation upon conclusion of the contract, or which Seller should have foreseen if he had applied due diligence. In addition to that, indirect damage and consequential damage that are resulting from defects of the delivery item shall be recoverable only if such damage could be typically expected with intended use of the delivery item.
(4) If Seller is liable for negligence, then his obligation to compensation for material damage shall be limited to an amount of EUR 3,000,000.00 and/or additional economic loss resulting thereof to an amount to EUR 100,000.00 per case of damage (corresponding to the current coverage of his product liability insurance or liability insurance), even if obligations essential to the contract have been violated.
(5) The exclusion and limitation of liability above shall apply to the benefit of Seller's organs, legal representatives, employees and other vicarious agents to the same extent.
(6) If Seller provides technical information or consultancy services and if this information or advice is not part of the scope of the services contractually agreed upon, then they will be provided for free and under the exclusion of liability.
(7) The restrictions of this Section 7 shall not apply to the liability of Seller due to intend, guaranteed quality features, due to injury to life, limb or health or pursuant to the Produkthaftungsgesetz [German Product Liability Act].
Section 8 Retention of Title
(1) Until full payment of all secured claims, Seller will remain the owner of the goods delivered to Customer by Seller. These goods and the goods delivered in lieu pursuant to the provisions below under the retention of title will be referred to hereinafter as "goods subject to the retention of title".
(2) On behalf of Seller, Customer shall hold the goods subject to the retention of title for free in safe custody.
(3) In the ordinary course of business, Customer will be entitled to process and sell the goods subject to the retention of title prior to lapse of the right to exploitation (Subsection 8). Pledges and transfers by way of security shall not be permitted.
(4) If the goods subject to the retention of title are processed by Customer, then it shall be agreed that this processing shall be made on behalf and on account of Seller as manufacturer and that Seller acquires indirect ownership or - if materials of several owners are processed or the value of the processed good is higher than the value of the good subject to the retention of title - co-ownership (ownership in fractional shares) of the newly created good in relation to the value of the goods subject to the retention of title. In the event that such acquisition of title will not occur for Seller, Customer will transfer his future goods or co-ownership of the newly created good - in the ratio above - by way of security to Seller. If the goods subject to the retention of title are connected to or inseparably mixed with other goods to a new good and if one of these goods may be considered as the main good, then Seller will transfer Customer co-ownership at pro rata to his own share in the new good in the relation pursuant to sentence 1 if it owns the main good.
(5) If the goods subject to the retention of title are resold, then Customer will already at this point assign the claim arising thereof via-à-vis Buyer - and in the event of co-ownership of Seller in the goods subject to the retention of title at pro rata to the co-owned share - as a precaution to Seller. The same shall apply to other claims replacing the goods subject to the retention of title or that arise otherwise in connection with these goods, such as e.g. insurance claims or claims arising from torts in the event of loss or destruction. Seller revocably authorises Customer to collect the claims assigned to Seller on his own behalf. Seller may only revoke this direct collection authorization in the event of exploitation only.
(6) If third parties access the goods subject to the retention of title, particularly by pledging, Customer will immediately notify them of the ownership of Seller and inform Seller thereof in order to enable Seller to enforce his ownership rights. If the third party is not able to refund Seller all court and out-of-court fees incurred in connection thereof, then Customer will be liable vis-à-vis Seller.
(7) Seller will release the goods subject to the retention of title and the goods in lieu of them, unless their value does not excess the secured claims by more than 50%. The selection of the goods to be released hereinafter shall be at the discretion of Seller.
(8) If Seller withdraws from the contract due to a breach of contract of Customer - particularly default in payment - (lapse of the right to exploitation), then Seller will be entitled to demand the return of the goods subject to the retention of title.
Section 9 Final Provisions
(1) If Customer is a merchant, legal person under public law or special fund under public law or if Customer does not have a general place of jurisdiction in the Federal Republic of Germany, then the place of jurisdiction for all disputes arising from the business relationship between Seller and Customer shall be the registered office of Seller in 78628 Rottweil. Imperative legal provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(2) The relationship between Seller and Customer shall exclusively be subject to the law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) dated 11 April 1980 shall not apply.
(3) If the contract or these General Terms and Conditions of Sale and Delivery contain lacunae, then the legally effective regulations shall be deemed to be agreed upon for filling these lacunae which the contractual partners would have agreed in line with the economic aims of this contract and the purpose of these General Terms and Conditions if they had known about the lacuna.
Please note: Customer is aware of the fact that Seller saves data generated from the contractual relationship pursuant to Section 28 Bundesdatenschutzgesetz [German Federal Data Protection Act] for the purpose of data processing and that Seller reserves the right to disclose this data if required for the performance of the contract to third parties (e.g. insurance companies).