General terms and conditions
DTS SYSTEMOBERFLÄCHEN Ltd.
TERMS OF SALE, DELIVERY, AND PAYMENT
Version form 27. July 2023
These terms are valid for the entire business connection with the customer. They are especially valid for all business trades in the future, even if they are not particularly referred to.
- These General Terms and Conditions of DTS Systemoberflächen GmbH (“Seller”) shall only apply to companies within the meaning of §14 BGB (“Buyer”) for the sale of surfaces, other products, and machines (“Products”).
- Quotations, order confirmations, deliveries and services of the Seller shall be made exclusively on the basis of these General Terms and Conditions.
- The Seller’s General Terms and Conditions shall apply to all future business relations, even if their validity is not expressly agreed again.
II. Quotation and contract conclusion
- The Seller’s quotations are subject to confirmation unless they are expressly marked as binding.
- The contract is concluded by the Buyer placing the order and our order confirmation. The Buyer is bound to the order placement for the day of the order placement for three weeks.
- The order confirmation shall be given in writing, in text form or in electronic form. This shall apply to all additions, changes, or additional agreements. The invoice shall be deemed as an order confirmation.
- Drawings, illustrations, measurements, weights, or other performance data shall only be binding if this is explicitly agreed in writing. All illustrations and additional documents shall be returned to the Seller without request in the event that the contract is not concluded.
- I fit becomes apparent after the conclusion of the contract, in particular due to open, overdue invoices, that the Seller’s claim to counter-performance is at risk due to the Buyer’s lack of ability to pay, the Seller shall be entitled to refuse performance of the contract until the Buyer has affected counter-performance or provided security for it.
III. Prices and payment terms, default of payment
- The prices in the quotation given by the Seller are non-binding unless they are marked as binding.
- Unless otherwise stated in the order confirmation, all prices are ex work, excluding packaging, postage, freight, other shipping charges, insurance, and customs.
- The Seller shall be entitled, notwithstanding any other repayment provisions of the Buyer, to set off payments first against the Buyer’s older debts. If costs and interest have already been incurred, the Seller shall be entitled to offset payments first against the costs, then against the interest and finally against the main performance.
- Should the Buyer be in default of payment, the Seller shall be entitled to withdraw from the contract and to claim damages for non-performance after the expiry of a reasonable grace period granted to the Buyer. This shall amount to 20% of the agreed purchase price. The damages shall be set higher or lower if the Seller proves higher damages, or the Buyer proves lower damages.
IV. Set-off, right of retention, prohibition of assignment
- The Buyer may only offset undisputed or legally established counterclaims. The Buyer shall not be entitled to a right of retention of the purchase price due to due claims from other contractual relationships with the Seller.
- The Buyer’s rights arising from the contract with the Seller are not transferable.
V. Delivery and performance time, delay in delivery and acceptance
- The dates and deadlines stated by the Seller are non-binding unless they have been expressly agreed as binding in text form. Call and blanket orders also require individual delivery time agreements.
- Delivery periods shall commence on the day on which the Seller’s order confirmation is sent to the Buyer unless another delivery period commencement date is stated in the order confirmation.
Compliance with the Seller’s delivery obligation
shall be subject to the timely and proper fulfilment of the Buyer’s obligation;
in particular, all documents, parts, and information
to be supplied by the Buyer must be available to the Seller
and any agreed advance payment must have been made.
- The day of delivery shall be the day on which the goods were notified to the Buyer as ready for collection. If shipment is owed, the day of delivery shall be the day on which the goods are handed over to the commissioned forwarding agent.
- The Seller shall be entitled to make partial deliveries and render partial services.
- If the Seller is in default with the delivery in the case of a delivery date agreed in writing, the Buyer may withdraw from the contract if he has granted the Seller a reasonable period of grace of at least 30 days, unless the setting of a deadline is dispensable in exceptional cases.
- If the Buyer is in default of acceptance, the Seller may charge a blanket storage fee of 0.5% of the agreed purchase price for each month (pro rata temporis, if applicable). The Buyer shall be entitled to prove that the Seller has not incurred any damage or that the damage is significantly lower. The Seller is entitled to prove that a higher damage has been incurred.
VI. Force majeure
- “Force majeure” means the occurrence of an event or circumstances that prevent a party to fulfil one or more of their contractual obligations, if and as far as the party affected by the impediment proves that (a) the impediment is beyond its reasonable control and (b) it was not reasonably foreseeable at the time, of the conclusion of the contract and (c) the effects of the impediments could not reasonably have been avoided or overcome by the affected party.
- Until proven otherwise, the following events are presumed to have occurred, affecting a party, they would meet the requirements under sub-clauses 1 (1)(a) and (b) under sub-clause (1) of this clause: (I) war (declared or undeclared), hostilities, attack, acts of foreign enemies, large-scale military mobilisation; (II) civil war, riot, rebellion and revolution, military or other seizure of power, insurrection, acts of terrorism, sabotage or piracy; (III) monetary and trade restrictions, embargo, sanctions; (IV) lawful or unlawful official acts, compliance with laws or government orders, expropriation, seizure of works, requisition, nationalisation; (V) plague, epidemic, natural disaster or extreme natural event; (VI) explosion, fire, destruction of equipment, prolonged failure of transportation, telecommunications, information systems or power; (VII) general labour disturbances such as boycotts, strikes and lockouts, slowdowns, occupation of factories and buildings.
- A party who successfully invokes this clause shall be released from its obligation to perform its contractual obligations and from any liability for damages or any other contractual remedy for breach of contract from the time when the impediment makes it impossible for it to perform if notice is given without delay. If the notice is not given without delay, the release shall take effect from the time when the notice reaches the other party. If the effect of the alleged impediment or event is temporary, the consequences outlined above shall apply only for as long as the alleged impediment prevents performance of the contract by the affected party. If the duration of the alleged impediment has the effect of substantially depriving the parties of what they had a right to expect under the contract, either party shall have the right to terminate the contract by giving notice to the other party within a reasonable time. Unless otherwise agreed, the parties expressly agree that the contract may be terminated by either party if the duration of the hindrance exceeds 120 days.
VII. Transfer of risk
The risk shall pass to the Buyer as soon as the products leave the Seller’s works,
an external warehouse, in case of a direct delivery
of goods not manufactured by the Seller, or the warehouse of a
subcontractor. If the dispatch is delayed or becomes
impossible through no fault of the Seller,
the risk shall pass to the Buyer upon notification of readiness of dispatch.
VIII. Title retention
- The delivered products shall remain the Seller’s property to the point the Buyer has redeemed all liabilities from the existing business contracts with the Seller.
- Further processing and transformation shall always be carried out for the Seller as manufacturer through without any obligation of the Seller. When the Seller’s co-ownership expires due to compound it is hereby agreed that the Buyer’s co-ownership of the combined product shall pass to the Seller in the amount of the invoice value pro rata to the value of the combined product. The buyer shall keep the property or co-property of the seller free of charge.
- The Buyer shall be obliged to protect the Seller’s ownership/co-ownership from spoilage, depreciation, or loss with the due care of a prudent businessman, also in respect of its Buyers.
- The Buyer shall be authorised to process and sell the reserved goods in the ordinary course of business. Pledging or transfer of ownership by way of security is not permitted. By way of security, the Buyer hereby assigns to the Seller in full and with all ancillary rights any claims arising from the resale or any other legal reason with regard to the reserved goods.
- In the event of access by third parties to the goods subject to retention of title, the Buyer shall point out the Seller’s ownership and notify the Seller without delay. Costs and damages shall be borne by the Buyer.
- In the event that the Buyer is in default of payment, the Seller shall be entitled to withdraw from the contract and to take back the reserved goods at the Buyer’s expense or, if applicable, to demand assignment of the Buyer’s claims for return against third parties. The Seller’s right to claim damages shall remain unaffected.
- The Seller shall be obliged to release the securities to which it is entitled at the Buyer’s request, insofar as the feasible value of its securities exceeds the claim to be secured by more than 10%. The choice of the securities to be released is incumbent upon it.
- The Seller warrants that its products are free from defects in workmanship and materials and otherwise have the characteristics specified in the Technical Data Sheet. Except as provided in these Terms and Conditions or as provided by law, the Seller makes no other warranties, express or implied, including but not limited to warranties of fitness of the products for a particular purpose. Guarantees shall only be granted by the Seller if this has been expressly designated as a guarantee in writing.
- The Buyer’s claims due to defects presuppose that he has properly fulfilled his duties of inspection and notification of defects owed under § 377 HGB of the German Commercial Law.
- If the Seller’s assembly, installation, or processing instructions are not followed, claims for defects shall only exist if the Buyer can prove that the defect was not caused by this but already existed at the time of the transfer of risk.
- If the products have not been delivered to the end consumer justified and duly notified defects shall oblige the Seller, at its discretion, to remedy the defects either by rectification or to redeliver the delivery item or parts thereof. If subsequent deliveries or improvements fail, the Buyer may only demand a reduction of the payment or, at its discretion, withdraw from the contract. The right of withdrawal and a claim for damages instead of the entire performance shall only exist insofar as the defect is not insignificant. The Buyer’s right to indemnity shall be subject to Section X. of these Terms and Conditions.
- If the goods have already been delivered to an end consumer, the Buyer shall only be entitled to claim those defects against the Seller which his customer has claimed against him.
- In the event of rectification of defects, the Seller shall be obliged to bear all expenses necessary for the purpose of rectifying defects, in particular transport, travel, labour, and material costs, if and insofar as they are not due to the fact that the products have been taken to a place other than the place where the Buyer stores the products.
- Claims due to defects shall become statute-barred within 12 months from the transfer of risk (Section VII. of these Terms and Conditions).
- Notwithstanding the above provisions and the following limitations of liability, the Seller shall be liable without limitation of damage to life, limb, and health caused by a negligent or intentional breach of duty by its legal representatives or its vicarious agents, as well as for damage covered by liability under the Product Liability Act, and for all damage caused by intentional or grossly negligent breaches of contract and fraudulent intent by its legal representatives or its vicarious agents. Insofar as the Seller has given a quality guarantee with regard to the object of purchase, the Seller shall also be liable within the scope of this guarantee. However, it shall only be liable for damage caused by the absence of the guaranteed quality but not occurring directly to the object of purchase if the risk of such damage is obviously covered by the guarantee of quality.
- The Seller shall also be liable for damage caused by simple negligence, insofar as this negligence concerns the breach of such contractual obligations, the observance of which is of particular importance for the achievement of the purpose of the contract (cardinal obligations). However, it shall only be liable insofar as the damages are typically associated with the contract and are foreseeable. In the case of simple negligent breaches of ancillary obligations that are not essential to the contract, the Seller shall not otherwise be liable. The above limitations of liability shall also apply insofar as the liability for the legal representatives, executive employees and other vicarious agents is concerned.
- Any further liability is excluded regardless of the legal nature of the asserted claim. Insofar as the Seller’s liability is excluded or limited, this shall also apply to the personal liability of its employees, workers, staff, representatives, and vicarious agents. Insofar as the Seller’s liability is excluded or limited, this shall also apply to the personal liability of its employees, workers, staff, representatives, and vicarious agents.
XI. Place of jurisdiction, place of performance
- Unless otherwise stated in the order confirmation, the Seller’s registered office (Am Schornacker 66, 46485 Wesel and Arnold-Dammers-Weg 2, 39291 Möckern) shall be the place of performance.
- The parties agree for all disputes arising from and in connection with their business relationship, to the extent permitted by law, the exclusive jurisdiction of the court at the registered office (Am Schornacker 66, 46485 Wesel) of the Seller.
DTS Systemoberflächen GmbH