General Terms and Conditions of Sale and Delivery of DVA Holland-Merten GmbH, Bocholt, for its commercial business
I. Scope of application
The following General Terms and Conditions of Sale apply exclusively to all our quotations, deliveries and services, and also to future business with customers, unless expressly agreed otherwise. Provisions of the customer that deviate from these Terms and Conditions apply only if we have expressly agreed to their validity in writing.
II. Quotations and orders, withdrawal
1. Our quotations are subject to change and, in common with catalogue details, illustrations, drawings and descriptions, they are non-binding. In particular, they do not constitute a guarantee of quality or durability.
2. Telephone, telegraph, telex or verbal orders, amendments, changes or additional agreements to the order require our written confirmation to become effective, if we do not perform the service directly.
3. If after the conclusion of the contract circumstances concerning the client that are likely to endanger our claims become known to us, we are entitled to withdraw from the contract if an appropriate deadline that we have set has expired unsuccessfully.
4. Apart from the statutory provisions, the customer is not entitled to withdraw from the contract and shall bear in full our costs for any unauthorised returns.
III. Prices, payment terms, retention, offsetting
1. The agreed prices are net prices “ex works” plus the cost of packing, carriage, shipping, installation and pre-assembly and VAT at the current rate. If a preliminary inspection has been agreed, a partial sum of 50% of the total price shall be settled after the preliminary inspection.
2. In the case of lead times of more than six weeks or long-term obligations in the form of future or on-call supply contracts, we reserve the right to adjust prices for unanticipated increases in incurred costs (wages, raw materials or supplies, etc.).
3. The packaging is billed at cost price and must be disposed of at the customer’s expense. Any return that proves necessary shall be made at the customer’s expense.
4. Unless the order confirmation states otherwise, our invoices are due on receipt of invoice with no deductions. Deduction of discount requires a separate written agreement.
5. Bills of exchange and cheques are accepted only on account of performance. The costs of discounting and collection shall be borne by the customer.
6. The customer is entitled to offset or retention only if the counterclaims are undisputed or legally established. To exercise the right of retention, the customer’s claim must be based on the same contractual relationship.
IV. Delivery period
1. A delivery period promised in writing shall begin once the customer receives our order confirmation, but not before all the details of execution are clarified. The period is deemed to have been met if readiness for shipment has been communicated or if the goods have left the dispatch point before the period expires.
2. Compliance with our delivery obligation requires the timely and proper fulfillment of the obligations of the customer, in particular the partial advance payment that is due before delivery. We reserve the right to object to unfulfilled contracts.
3. In the event of events related to labour disputes, in particular strikes and lockouts, as well as unforeseen hindrances that are beyond our control, such as operational breakdowns, delays in the delivery of essential materials and impediments to the delivery of goods that have a significant impact, the delivery deadline shall be extended according to the duration of such events and obstacles. This shall also apply if such circumstances affect subcontractors and other agents. We are not responsible for the circumstances described above if they occur during an already existing delay. The beginning and end of such hindrances shall be communicated to the customer as soon as possible.
4. Partial deliveries are permitted within the delivery period that we have specified, insofar as no disadvantages to using the product arise as a result.
5. At the request and expense of the customer, we shall arrange transport insurance to insure the delivery.
6. We reserve the right to make changes in design, form, colour, weight or other changes during the delivery period, insofar as objective grounds for such changes exist, as long as the goods are not substantially changed and the changes are not unreasonable for the customer.
7. The choice of shipment method is at our discretion.
V. Preliminary inspection and acceptance
1. If a preliminary inspection and acceptance of delivered goods has been agreed, it shall be carried out in compliance with the rules specified in the following paragraphs.
2. The preliminary inspection shall take place at our factory following notice of readiness. Acceptance shall follow delivery, installation and commissioning on site.
3. A protocol of the preliminary examination and acceptance shall be drawn up and signed by both parties.
4. The customer shall inspect the delivered item within ten days of receiving notice of readiness to ship, or shall accept it within eight days of receiving notice of operational readiness, unless he is prevented through no fault of his own from carrying out the preliminary inspection and acceptance. The preliminary inspection and approval shall become effective even if the customer fails to inspect or accept our delivery item within the above periods, despite being obliged to do so.
5. If the customer is delayed in carrying out the preliminary inspection or acceptance, we are entitled to withdraw from the contract and claim damages after setting a grace period of a further ten days. A grace period need not be set if the customer earnestly or categorically refuses to carry out the preliminary inspection, or is clearly not capable of paying the agreed purchase price within the agreed period.
VI. Transfer of risk
1. The risk shall be transferred to the customer at the latest on dispatch of the delivery item, even if partial deliveries are made or we have taken on other services, such as installation, handling of shipping costs, or carriage.
2. If shipment is delayed due to circumstances for which the customer is responsible, such as undue delay in carrying out the agreed preliminary examination, then the risk is transferred to the customer from the date of readiness for dispatch.
1. If the installation of the delivery item has been agreed, the customer shall reimburse us for the expenses for each fitter according to our fitting rates.
2. Before commencement of the installation the customer must have carried out all necessary construction work such that the installation can begin immediately after delivery and be continued without interruption. Any substructure that may have been erected must be completely dry and set. The area in which the assembly is to be carried out must be sufficiently protected against external influences, well lit and adequately heated.
3. For the storage of machine parts, materials, tools, etc. the customer shall make available a dry, illuminated and lockable space, which is monitored and guarded.
4. The customer shall, at his own expense and at the proper time:
– provide auxiliary support teams and specialists in the number we consider necessary.
– provide the equipment and materials required for installation and commissioning.
– provide for the unloading of the transport vehicles and the transport of the delivered goods to the assembly site.
5. The transport risk for the tools and items necessary for assembly that are brought by us shall be borne by the customer, provided that there is no fault on our part or on the part of our agents.
VIII. Retention of title
1. We reserve ownership of the delivered goods until payment.
2. In the event of breach of contract by the customer, and particularly in the event of default, we are entitled to recover the goods after issuing a warning, and the customer is obliged to surrender them.
3. Our assertion of retention of title and the attachment of the delivery item shall not be deemed to be withdrawal from the contract, unless we expressly state that this is the case in writing.
4. The customer shall treat the delivered item during the period of retention of title with due care. In particular, he shall insure it adequately for its replacement value at his own expense against fire, flood, theft, damage, from the time of readiness for dispatch. If maintenance and inspection work is required, the customer must perform this at his own expense.
5. The customer is entitled to resell the goods in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the purchase price agreed between us and the customer (including VAT) that accrue to the customer from the resale, and regardless of whether the object of delivery is resold with or without processing. The customer is entitled to collect these receivables after their assignment, as long as he is not insolvent or in arrears with payment, or the satisfaction of our claims is not otherwise at risk. Without prejudice to our right to collect the claims ourselves, we undertake not to collect the receivables during that time. Otherwise we may also require that the customer disclose the assigned claims and their debtors, provide all information necessary for collection, surrender the relevant documents and inform the debtors (third parties) of the assignment. In this case, goods not yet delivered shall be surrendered to us on request, with freight prepaid and free of all charges. Based on the consent hereby granted to us by the customer, we are authorised to remove or dispose of the goods, by auction or by private sale through a specific person determined by the Chamber of Commerce, and to take settlement of the net price from the proceeds.
6. Any processing or transformation of the delivery item by the customer is always carried out on our behalf. If the delivered goods are processed with other goods not belonging to us, we shall acquire joint ownership of the new item in the proportion of the value of our delivered goods to the other processed items at the time of processing.
7. If the delivered goods are mixed with other goods not belonging to us, we shall acquire joint ownership of the new item in the proportion of the value of the delivered goods to the other mixed items. If the mixing is such that the customer’s item is regarded as the main item, it is agreed that the customer shall transfer co-ownership to us pro rata.
8. The customer shall keep for us free of charge the item to which we have sole or joint ownership that has been created by processing, transformation or mixing.
9. To secure our claims, the customer shall also assign to us the claims that accrue to him against a third party from the combination of the delivery items with a plot of land.
10. The customer shall neither assign nor pledge the delivery item as security. In the event of garnishment, seizure or other dispositions by third parties, the customer must immediately inform us and provide us with all available information and documents necessary to protect our rights. Enforcement officers or third parties must be informed of our property rights.
11. We shall release the securities, including the assignment, at the request of the customer, if their value exceeds the value of the secured claims by more than 20 percent, provided that such claims have not been settled.
IX. Industrial property rights / confidentiality
1. Usage rights for the inventions and improvements made in connection with carrying out the order, industrial property rights and similar rights in law to contractual services and work results created within the framework of the contract belong to us or shall be transferred to us. They belong exclusively to us and can be used by us in any way without the consent of the client. Any patent rights acquired shall be transferred to us.
2. We reserve the factual and intellectual property rights to illustrations, drawings, sketches and other documents; the aforementioned documentation, including the technical or financial data contained or embodied in them, must be treated confidentially and may not be made accessible to third parties, even after the contract expires.
3. The customer must also treat as confidential circumstances that are not public knowledge that become known to him as a result of the business relationship.
4. All documents – insofar as they do not belong to the delivery item – shall be returned at our request or at the latest on contract termination at the expense and risk of the customer; if stored on disk, it must be ensured that all data is erased irreversibly. A right of retention for these documents is excluded in all circumstances.
5. For each instance of infringement of the obligations set out above in Section IX (1) to (4) the customer shall pay a lump-sum compensation of € 10,000; we reserve the right to prove that greater damages have been incurred, while the customer is entitled to prove that no damages or only minor damages have arisen.
X. Liability for defects
1. The warranty period for warranty claims is 12 months from the transfer of risk.
2. Industrial property rights of third parties may be grounds for a defect of title only if they exist in the Federal Republic of Germany and are registered there, subject to any other express agreements.
3. When performing an inspection, the delivered goods are deemed to have been approved despite existing defects if the defects were recognisable and the customer has not reserved any rights related to the defect in the acceptance protocol. In other respects, the obligation to give notice of defects as set out in § 377 (2) of the HGB (German Commercial Code) applies, the notice period being 14 days; to comply with the deadline, we require receipt of the written complaint.
4. If acceptance is not agreed, the customer is obliged to examine and report the defect as set out in § 377 of the HGB, the notice period being 14 days from receipt of the delivered goods. To comply with the notice period, receipt of the written complaint is necessary.
5. The warranty is excluded for used goods.
6. In the case of complaints, the customer must give us an opportunity to verify the existence of the defect.
7. The question of whether our item is free from defects will be settled by its adherence or non-adherence to the appearance and workmanship described in our technical standards and to the specifications applicable to delivery items of the same kind, unless different appearance and workmanship has been expressly agreed. If individual design tasks are assigned to us, liability for any deficiency can be asserted only if the customer proves that our delivery item culpably fails to correspond to the general state of technology. Warranty claims do not arise in the event that
– operating or maintenance instructions have been disregarded
– use or treatment has been inappropriate, incorrect or improper, or
– the wear on the item is natural, or
– repairs or other interventions have been carried out by the customer or a third party
or if the customer, taking into account the impairment of value caused by the defect, fails to meet his payment obligations proportionately. Public statements by the manufacturer or its agents as defined by § 4 of the Product Liability Act, in particular in the advertising or labelling of certain properties, shall not constitute an intended characteristic of the appearance and workmanship of the delivered goods. The same applies to public or other statements by our suppliers regarding the properties and qualities of their items that are to be incorporated into our delivery item.
8. In the event of a justified complaint within the deadline, the customer initially, as a reasonable safeguard of his interests, has a claim only to supplementary performance. If further attempts at supplementary performance are unacceptable to the customer, he may instead request cancellation of the contract or reduction of the price. Our warranty does not cover claims for compensation.
9. The customer may withdraw from the contract – if a withdrawal is not excluded under law – or have the price reduced after unsuccessful expiry of a reasonable time limit set by him for supplementary performance, unless the deadline set fails to comply with the statutory provisions (§ 323 Section 2 of the BGB (German Civil Code), § 440 BGB, § 441 (1) BGB). In the event of withdrawal, the customer is liable for any deterioration, destruction, and loss of benefits that may result not only from his own typical diligence, but as a result of any negligent and wilful culpability.
10. To carry out any changes we deem necessary and to deliver spare parts or replacement equipment, the customer shall provide us with the necessary time, facilities and, at our request, support staff, free of charge.
11. We may require that the customer himself carries out the work that is covered by our warranty under our instruction, provided that this is not unreasonable for him. The resulting costs will be borne by us if the complaint proves justified; otherwise, the customer shall pay.
12. The elimination of one of the defects by way of supplementary performance, involving rectification of the defect or delivery of a defect-free item, does not constitute a (legal) acknowledgment. If the delivered item is partially refurbished during the supplementary performance, the limitation period begins again only in relation to defective and refurbished parts.
13. In the event of fraudulent concealment of a defect or in the event of acceptance of a guarantee of appearance and workmanship of the delivered goods at the time of transfer of risk as defined by § 444 BGB, the statutory provisions apply. For any damage and compensation claims by the customer, the provisions in Section XI apply.
XI. Compensation for damages and reimbursement of expenses
1. Our liability is excluded, except
a) for damages resulting from death, physical injury or impaired health due to a wilful or negligent breach of duty by us, by one of our legal representatives or agents;
b) for any damage caused by an intentional or grossly negligent breach of duty or caused by a slightly negligent breach of a contractual obligation by us or by one of our legal representatives or agents.
2. In case b), our liability for negligent injury is limited to the damages typical under this kind of contract and foreseeable at the time of signing, plus necessary expenses; for default damages caused by slight negligence, it is limited to five percent (5%) of the agreed remuneration.
3. The exclusions from liability and limitations contained in Section XI (1-2) do not apply in the event of the assumption of a guarantee for the quality of the delivered goods as defined by § 444 of the BGB, in the event of fraudulent concealment of a defect or in the event of statutory liability under the Product Liability Act. In this respect, the statutory provisions apply.
4. All claims for damages against us, for whatever legal reason, shall be barred by statute no later than one year after delivery of the goods to the customer; in the case of tortious liability, one year from the time of knowledge, or grossly negligent ignorance, of the circumstances giving rise to the claim and of the identity of the person liable to pay damages. In the case of liability for intent and in the cases cited in Section XI (3) above, the statutory provisions, and not the provisions of this paragraph, shall apply. Any shorter statutory periods of limitation shall take precedence.
XII. Duration of contract and termination
Long-term contracts begin on the date of signature and shall be valid for one year, unless otherwise agreed. If one of the parties does not declare cancellation in writing to the other party at least two months before the expiry of the contract, the contract shall be extended for another year, without requiring a special declaration. In such cases we shall also be entitled to ordinary termination with a notice period of three months.
The right to extraordinary termination without notice for good cause remains unaffected. Good cause is constituted by, among other things, a declaration of insolvency proceedings relating to the assets of the customer and by a payment default by the customer of more than one month.
XIII. Place of performance, jurisdiction, applicable law
1. Place of performance is the place from which the goods are first shipped. Place of performance for customer payments is our office in Bocholt.
2. The jurisdiction for all disputes arising from the contract, including legal suits, is the competent court of Bocholt. We are also entitled to take legal action in the place of the main office of the customer.
3. Only German law applies, with the exclusion of the laws governing the international sale of goods, even if the customer has his main office abroad.
1. The transfer of rights and obligations of the customer arising from the contract concluded with us require our written consent to enter into force.
2. Should a provision be or become invalid, the validity of other provisions shall remain unaffected.
Date: 13 May, 2011