General terms and conditions
DTS SYSTEMOBERFLÄCHEN Ltd.
TERMS OF SALE, DELIVERY, AND PAYMENT
Version from 2002-02-07
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.
Our offers are without any obligation. Orders as well as verbal agreements will only be binding to us if we more or less confirm them in writing or in a form, or if we conform to them by the shipping of the merchandise and the invoice. Deviations of our terms of sale, and particularly, the terms of the purchaser, will only be valid if they are confirmed by us in writing.
The separation weight and quantity, and the effective prices on the day of dispatching have to be accepted as authoritative for calculation. If they increase with regard to the time on the agreement conclusion, the purchaser will be entitled to withdraw from the order within 14 days after the notice of the price mark-up; the cancellation right is not valid for price mark-ups, which are based on an increase of the freight tariff as well as an increase of the sales tax.
The payment is due within 30 days of the date of issue on the invoice. For payments within 10 days we offer a 2 % cash discount on the invoice end amount ,but we offer no cash discount for bill payments. Here the date on the incoming payment is authoritative. A cash deduction on new invoices is inadmissible as far as older due invoices are still outstanding. First of all, payments are used for settling the costs and interests, and finally, the oldest debt items are compensated by the surplus.
If we accept bills of exchange, the purchaser will be charged with discount fees and bank fees. We do not assume any guarantee for submittance and inquiry of protest, which are not on time.
With regards to our claims, the right of retention can only be pursued if we have accepted the counter claim, or if a final judicial decision is available.
If there are any doubts about the solvency of the client or if the deferment is exceeded, we will be authorised to demand advanced payments, and to revoke the allowed deferments. On exceeding the deferment, we are entitled to charge interests up to the usual bank debit interests, at least an amount of 5 % over the basic interest rate on the invoice amount according to section 1 of the DÜG.
4. Delivery and Acceptance
The purchaser will have to set a reasonable extension of the time limit, if the period of delivery is exceeded. For a non performance or a delay of delivery, our liability is confined to the invoice value of the merchandise amount, which we have not delivered or fallen behind with the delivery. If the merchandise is purchased on and on within a certain period of time, so the merchandise acceptance will have to be spread over the total period of time in case nothing else was particularly agreed on.
Our delivery commitment is suspended as long as the purchaser is in arrears with due payments. If the purchaser is in arrears with the call-off or acceptance of quantities longer than 14 days, he will have no claim to their forwarding. Similar conditions are valid for those quantities, which we have not delivered due to overdue payments of the purchaser. Our other rights are, thereby, not affected.
If the delivery deadline is exceeded by our supplier or in any cases of delivery breakdowns, general breakdowns, raw material shortage, energy shortage, labour shortage, strikes, lockouts, difficulties with obtaining means of transportation, traffic breakdowns, dispositions from superior hand or cases of an act of God, the affected party will be exempted from the obligation of delivery and/or acceptance for the duration of the disruption and on the scale of its effect. If delivery is delayed by more than 1 month as a result of this, the purchaser shall be entitled, and if acceptance is delayed by more than 1 month, we shall be entitled, to withdraw from the contract with regard to the quantity affected by the disruption in delivery or acceptance. Other entitlements do not exist.
Packaging, which is marked as loan packaging on the invoice or on the delivery note/freight note has to be sent back immediately in an usable state to our production place within a period of 3 months of the date on the invoice at the latest. The carriage is paid and free of charge.
The purchaser will only receive a credit note for the charged loan packaging if it is returned in an adequate state.
All consignments are sent at the purchaser’s risk. We will decide on the way and on how all consignments are shipped. We will, thereby, take into consideration all requests made by the purchaser in this regard. The purchaser will have to pay the overcharge.
7. Transportation Insurance
Transportation insurances of all kinds, which go beyond the common insurance coverage of transportation companies, are only taken out if they are particularly requested by the purchaser who will be charged with the insurance premiums.
8. Warranty and Liability
The purchaser has to test – when necessary through probation processing – if the delivered merchandise is perfect and suitable for the planned purpose. If he does not carry out this testing, we cannot be held responsible. We do not assume any guarantee – as far as it is legally valid – for the produced coating of the delivered materials since we do not have any influence on the proper use and on the coating process.
Possible complaints about the composition or the quantity have to be raised with details of all order information, the invoice number and the dispatch number. Open defects have to be reported within 14 days on receipt of the merchandise. Hidden defects have to be reported as soon as they are discovered, and 6 month after the merchandise has been delivered by the dispatch office at the latest.
If the notices of defect are raised and justified according to the rules, the customer can demand a repeat fulfilment on statutory regulations. We are not committed to bear any expenses, which might come up for the repeat fulfilment as far as they increase due to a change of place or other changes of the merchandise, which were made after the notice of defect was forwarded.
If the repeat fulfilment finally fails or is not made within a reasonable period of time, the customer will be entitled to either withdraw from the contract within an exclusion deadline of 4 weeks after the time limit expired or to reduce the purchaser price according to statutory regulations. Merchandise, which has been complained about, is only allowed to be sent back on our consent. Damage claims on part of the purchaser, which are either based on defects of the delivered merchandise or on violations of side obligations, are – as far as legally valid – impossible.
9. Information and Advice
Information on processing and application possibilities of our products, technical recommendations or consultations and other details are made to the best knowledge but they are made without any obligation and excluded from any liability.
10. Reservation of Ownership
The ownership on delivered merchandise remains reserved to safeguard all claims, to which we are entitled due to present and future business connection until the purchaser has compensated all balances. Our ownership covers all new products, which come into being through a processing of reserve merchandise. If objects, which do not belong to us, are processed, combined or mixed, we will acquire a joint ownership according to sections 947, 948 of the civil code. No claims accrue to the purchaser from the processing and reserving of reserve merchandise.
Already now the purchaser cedes all those claims to us, which he holds after selling reserve merchandise of our present and future deliveries, including promissory note and cheque, in order to safeguard prevailing claims according to paragraph 1. If merchandise, on which we have a joint ownership according to paragraph 2 sentence 2, is sold, the assignment will be confined to the claim share, which meets the value of our joint ownership value. If reserve merchandise is sold together with other objects at an all-inclusive price, the assignment for the reserve merchandise sold will be confined to the proportional amount on our invoice (including the sales tax). In the event of processing within the scope of a contract for work and services, the claim for remuneration for work and services shall be assigned to us here and now in the amount of the pro rata amount of our invoice (including VAT) for the co-processed goods subject to retention of title.
As long as the purchaser is willing and able to fulfil his obligations according to the rules, he will be allowed to be in charge of the merchandise in full business, which is in our ownership, and he will be allowed to personally collect all those claims, which have been ceded to us. He will only be allowed to carry out security assignments, pawns and assignations of claim, also in the way of factoring, if we have previously approved of it in writing, and as far as these regard our reserve merchandise; this will also be valid for the export trade. If we see the fulfilment of our claims endangered, the purchaser will have to inform us about the stocks on reserve merchandise by our request and he will have to facilitate their return; furthermore, he will have to inform his customers about the assignation and give us all necessary information and hand over all documents. A withdrawal from the contract will lie in the return of reserve merchandise, only if we, particularly, declare this in writing.
Our reservation of ownership is not affected by the return of bills, which were sent in for the purpose of self discount.
If the value of the securities exceeds the claims, which are to be secured, over more than 20 %, we will, in this respect, release the securities according to our choice by request of the purchaser or we will bring about their release.
Many of the products supplied are marked with a trademark. If such products are processed, the trademarks will only be allowed to be used for marking, describing or others connected to the manufactured products with a special written agreement of the trademark holder. This is valid for all processing stages, which a product undergoes. The delivery under a trademark cannot be regarded as an agreement to use the trademark for all manufactured products.
If the use of trademarks is agreed to, the conditions stipulated by the trademark holder, and especially his quality regulations, will have to be kept.
12. Place of Fulfilment and Place of Jurisdiction
The place of fulfilment for deliveries is our prevailing distribution depot; the place of fulfilment for payments is Oberhausen. If the purchaser is a full merchant, the place of jurisdiction will be Oberhausen; the common place of jurisdiction of the purchaser is also possible for any lawsuits of the salesperson.
DTS Systemoberflächen Ltd.