Clause 1 Exclusive validity of these terms and conditions of business and delivery
(1) All deliveries, services and offers by Düsen-Schlick GmbH (hereinafter referred to as the "Seller") shall be carried out exclusively on the basis of these general terms and conditions of business and delivery. They are part of all contracts concluded by the Seller with its contractual partners (hereinafter also referred to as "Customers") for the deliveries or services offered by the Seller. They also apply to all future deliveries, services or offers to the Customer, even if they are not separately agreed once again.
(2) The conditions of business of the Customer or third parties shall not apply, even if the Seller does not expressly object to these in the relevant individual case. Even if the Seller refers to correspondence that contains or refers to the conditions of business of the Customer or a third party, this does not constitute agreement to the application of those conditions of business.
Clause 2 Offer and contract conclusion
(1) All offers by the Seller are subject to alteration and non-binding, unless they are expressly specified to be binding or contain a set acceptance period. Orders will be accepted only via written or electronic order confirmation by the Seller, which may be provided at the same time as billing in the case of delivery ex stock, or by delivery. The Seller's order confirmation alone is definitive in terms of the contractual content, unless the Seller immediately receives an objection to this in writing.
(2) The purchase agreement concluded in writing or the order confirmation pursuant to sub-clause (1), including these general terms and conditions of delivery, are the sole definitive documents for the legal relationship between the Seller and the Customer. They are a full reflection of all agreements made between the contractual parties about the contractual object. Verbal commitments made by the Seller before the conclusion of this contract are not legally binding and verbal agreements between the contractual parties will be superseded by the written contract unless the respective agreements are expressly deemed to continue to apply in a binding manner.
(3) Additions and amendments to the agreements made, including these general terms and conditions of delivery, must be made in writing in order to be valid. With the exception of the managing directors or authorised signatories, the Seller's employees are not entitled to make verbal agreements that deviate from the written agreement. Transmission by telecommunication shall be sufficient for compliance with the written form requirement, particularly fax or email, as long as a copy of the signed statement is sent.
(4) Information provided by the Seller about the object of supply or service in offers, brochures, order confirmations and similar documents (e.g. weights, dimensions, values in use, capacities, tolerances, technical data, purpose of use etc.) and related images provided by the Seller (e.g. in drawings and illustrations) are only approximations, unless precise conformity is required to ensure suitability for the contractually intended purpose. They are not guaranteed characteristics, but rather descriptions or identifiers for the supply or service. Deviations that are considered normal in the trade and deviations that arise as the result of legal regulations or that are considered to be technical improvements, as well as the replacement of components with parts of the same value, are permissible as long as they do not impair suitability for the contractually intended purpose.
(5) The Seller shall retain ownership of or copyright for all offers and cost estimates it provides, as well as all drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and resources it makes available to the Customer. Without the express consent of the Seller, the Customer must not make these items or their contents accessible to third parties, disclose them or use or reproduce them itself or allow a third party to do so. Upon request by the Seller, the Customer shall return these items in their entirety to the Seller and destroy any copies made if they are no longer required in the normal course of business or if negotiations do not lead to the conclusion of a contract. This does not include saving electronically transmitted data for the purposes of standard data back-ups.
Clause 3 Prices and payment
(1) The prices apply to the scope of supply and service specified in the order confirmations. Extra or special services will be billed separately. The prices are understood to be in EUR ex works, plus packaging, express shipping, special packaging, insurance, other ancillary costs, statutory VAT, customs fees for export deliveries, fees and other public charges.
(2) Invoiced amounts are due immediately unless otherwise agreed in writing and will be subject to interest once 30 days have passed since invoice receipt. The date that is definitive for payment is receipt by the Seller. Payment by cheque is not permitted unless agreed separately in the respective individual case. If the Customer fails to make payment when due, the outstanding amounts will accrue interest at 9% above the base interest rate pursuant to section 288(2) of the German Civil Code (BGB) as of the due date; this shall not affect any rights to apply higher interest rates and assert further claims for compensation in the event of default.
(3) Where the value of goods is over EUR 10,000.00 - unless otherwise agreed in the respective individual case – invoices shall be settled with the payment agent specified by the Seller without any deductions as follows: 1/3 of the invoice amount as an advance payment upon receipt of order confirmation, a further 1/3 of the invoice amount upon notification of readiness for dispatch and the last 1/3 after delivery, whereby each partial payment shall be due immediately pursuant to section 286(3) BGB and the charging of interest pursuant to section 288(2) BGB shall apply. If they specify the partial payments, the order confirmation, notification of readiness for dispatch and delivery note shall be considered to be equivalent statements of payment within the meaning of section 286(3) BGB.
(4) The Seller reserves the right to accept bills of exchange. For payments by cheque or bill of exchange, the Customer's debt is only considered to be settled once these have been cashed irrevocably by the bank being drawn upon.
(5) Payments may only be offset against counter-claims by the Customer or withheld on the basis of such claims if the counter-claims are undisputed or have been judicially determined.
(6) The Seller is entitled to perform outstanding deliveries or services only in return for advance payment or the provision of security if it becomes aware of circumstances after the conclusion of the contract that could significantly reduce the Customer's credit rating and put the payment of outstanding receivables by the Customer to the Seller at risk in the respective contractual relationship (including other individual orders to which the same framework agreement applies).
Clause 4 Delivery and delivery times
(1) Deliveries will be made ex works. The goods travel at the Customer's risk, irrespective of the shipping method and the assumption of shipping costs.
(2) The periods and deadlines proposed by the Seller for deliveries and services are only ever intended to be approximate, unless a fixed period or deadline is expressly promised or agreed. Where shipping has been agreed, the delivery periods and deadlines relate to the date of handover to the carrier, haulier or other third party commissioned to carry out transportation.
(3) The delivery period starts when the order confirmation is sent, although not before complete technical clarification and the submission of any documents, permits and approvals to be provided by the purchaser and the receipt of any agreed advance payment. The delivery deadline is considered to have been met if the delivery item has left the factory or notification of readiness for dispatch has been sent by the time the set delivery period expires.
(4) The Seller is entitled to carry out partial deliveries if partial delivery is useful for the Customer within the framework of the contractually agreed purpose of use, delivery of the remaining goods on order is assured and this will not trigger any significant extra costs for the Customer (unless the Seller declares that it is prepared to assume these costs).
(5) Without prejudice to its rights arising from Customer default, the Seller can require the Customer to allow an extension of the delivery and performance periods or postponement of the delivery and performance deadlines corresponding to the period of time in which the Customer fails to comply with its contractual obligations to the Seller.
(6) The Seller is not liable for delivery being impossible or delayed if this is the result of force majeure or other events not foreseeable at the time the contract was concluded (e.g. all forms of disruption of operations, difficulties with material or energy procurement, transport delays, strikes, lawful lock-outs, lack of workers, energy or raw materials, difficulties obtaining the necessary official permits, government actions, suppliers' failure to deliver or incorrect or late delivery by suppliers) for which the Seller is not responsible. Where such events make delivery or performance significantly harder or impossible for the Seller and the issue is not merely temporary, the Seller is entitled to withdraw from the contract. In the event of issues of a temporary nature, the delivery or performance periods will be extended or the delivery or performance deadlines will be postponed by the length of time that the issue prevails, plus a suitable re-start period. If it is unreasonable to expect the Customer to accept the delivery or performance as the result of the delay and the delivery delay runs for more than 2 months, it may withdraw from the contract by making an immediate written declaration addressed to the Seller.
(7) Other culpable non-compliance with agreed delivery periods caused by the Seller and performance impossibility shall entitle the Customer to withdraw from the contract after a suitable period of grace of at least 4 weeks.
(8) If the Seller falls defaults on a delivery or performance or delivery or performance becomes impossible for it for any reason whatsoever, the Seller's liability to pay compensation is limited to the extent specified in clause 8 of these general terms and conditions of delivery.
(9) For special nozzle designs, it may not always be possible to fulfil the quantity ordered for production-related reasons and the associated risk of rejects. The Seller reserves the right to provide slightly increased or decreased deliveries and to bill accordingly.
(10) Packaging materials will not be taken back.
Clause 5 Place of fulfilment, shipping, packaging, transfer of risk, acceptance
(1) The place of fulfilment for all obligations arising from the contractual relationship is Untersiemau, unless otherwise specified.
(2) The shipping method and packaging shall be selected at the due discretion of the Seller.
(3) Upon handover of the delivery item (with the start of the loading process being the definitive handover time) to the carrier, haulier or other third party commissioned to carry out dispatch, risk shall pass to the Customer. This also applies if partial deliveries are being carried out or the Seller also has other services to carry out (e.g. shipping or installation). If shipping or handover is delayed by circumstances caused by the Customer, risk shall pass to the Customer on the date that the delivery item is ready for shipping and the Seller has notified the Customer of this.
(4) Storage costs after the transfer of risk shall be borne by the Customer. In the event of storage by the Seller, the storage costs shall amount to (0.25)% of the invoice amount for the delivery items to be stored per fully elapsed week. The right to assert claims for and provide proof of further or lesser storage costs remains reserved.
(5) The consignment will only be insured by the Seller against theft, breakage, transport/fire/water damage or other insurable risks upon the express request of the Customer and at the Customer's own cost.
(6) Where an acceptance process is to take place, the purchased item is considered to be accepted if
• delivery and, where the Seller is also responsible for installation, installation has been completed,
• the Seller has notified the Customer of this with reference to assumed acceptance pursuant to this clause 5(6) and requested its acceptance,
• 12 working days have passed since delivery or installation or the Customer has begun using the purchased item (e.g. started operation of the delivered system) and 6 working days have passed since delivery or installation in this instance
• the Customer has failed to state its acceptance within this period for any reason other than a defect that makes it impossible to use the purchased item or significantly impairs such use and which has been notified to the Seller.
Clause 6 Warranty, material defects
(1) The warranty period is one year as of delivery or, where acceptance is necessary, as of acceptance. This period does not apply to compensation claims by the Customer based on damage to life, limb or health or deliberate or grossly negligent breaches of obligations by the Seller or its agents, which are subject to the statutory period of limitation.
(2) The delivered items should be inspected carefully as soon as they are delivered to the Customer or such third party specified by the Customer. In terms of obvious defects or other defects that should have been noticed during an immediate careful inspection, the items are considered to be accepted by the Customer if the Seller does not receive written notification of a defect within seven working days of delivery. In terms of other defects, the delivery items are considered to be accepted by the Customer if the Seller does not receive notification of a defect within seven working days of the date on which the defect was discovered; however, if the defect was already obvious at an earlier date during normal use, this earlier date is definitive for the start of the notification period. Upon request by the Seller, a disputed delivery item is to be returned carriage paid to the Seller. If a defect complaint is justified, the Seller shall pay for the costs of the cheapest shipping method; this does not apply if the costs are increased because the delivery item is at a location other than the location for intended use.
(3) In the event of material defects in the delivered items, the Seller is obliged and entitled initially to either carry out repairs or replacement delivery, the choice being at the Seller's discretion, such discretion to be exercised within a reasonable period. The Customer shall allow the Seller the necessary time and opportunity to carry out all measures the Seller considers to be necessary to rectify the defect, otherwise the Seller shall be released from material defect liability. The Customer is only entitled to rectify the defect him/herself or commission a third party to do so and then request reimbursement of the necessary costs from the Seller in urgent cases where operational safety is at risk and to prevent disproportionately greater damage, in which case the Seller must be notified immediately, or if the Seller is more than 4 weeks late in remedying the defect. Replaced parts shall become the property of the Seller. If subsequent fulfilment fails twice, the Seller refuses to perform subsequent fulfilment or if the Seller culpably allows a suitable period of grace of at least 4 weeks for subsequent fulfilment to lapse without success, the purchaser is entitled to rescind the contract or request a reduction of the purchase price.
(4) The Seller shall not be responsible for defects in the following cases in particular: improper use of the delivery item or use differing from the contractually intended use; excessive strain (e.g. as the result of impaired operating conditions); incorrect assembly and/or commissioning by the Customer or a third party; incorrect or negligent handling, e.g. through incorrect storage or improper installation; use of unsuitable operating materials; modifications to the delivery item not approved by the Seller, particularly through the installation of third-party components; inadequate on-site conditions and preparations; wear and tear considered standard for operations or the product and any procedural, chemical, electro-chemical or electrical influences, where these are not considered to be the fault of the Seller.
(5) Minor deviations from samples or earlier deliveries or other details that do not have a significant impact on the contractually agreed functioning of the items shall not be considered grounds for warranty claims.
(6) In the event of defects in components from other manufacturers that the Seller cannot rectify for any licensing law or practical reasons, the Seller may choose to either assert its warranty claims against the manufacturer and supplier on behalf of the Customer or assign these claims to the Customer. Warranty claims against the Seller for such defects under the other prerequisites of and in line with these general terms and conditions of delivery shall only be available if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is unlikely to be successful, e.g. due to insolvency. The limitation period for the relevant warranty claims by the Customer against the Seller shall be suspended for the duration of the legal dispute.
(7) The warranty lapses if the Customer modifies the delivery item or allows a third party to do so without the Seller's consent and this makes defect rectification impossible or unreasonably difficult. In any case, the Customer shall bear any extra costs for defect rectification that arise as a result of the modification.
(8) If the delivery of second-hand items is agreed with the Customer in an individual case, this shall be carried out to the exclusion of any warranty for material defects.
Clause 7 Proprietary rights
(1) The Seller shall retain ownership of and copyright for application suggestions, drafts, drawings and other documents.
They may only be made accessible to third parties in agreement with the Seller and are to be returned upon the request of the Seller, whereby the person obliged to return them must ensure that any copies made have been destroyed.
(2) Where the products have been supplied on the basis of drawings, samples or other documents provided by the Customer, the Customer shall bear any risk relating to these violating third-party proprietary rights.
(3) The Seller gives its assurance pursuant to this clause 7 that the delivery item is free from third-party industrial property rights or copyrights. Each contractual partner shall notify the other contractual party immediately in writing if claims are made against it relating to the violation of such rights.
(4) In the event that the delivery item violates an industrial property right or copyright of a third party, the Seller shall choose between the following options at its own cost: modify or replace the delivery item in a way that means third-party rights are no longer violated but the delivery item still fulfils the contractually agreed functions, or procure a right of use for the Customer by concluding a licence agreement with the third party. If the Seller fails to achieve this within a reasonable period of time, the Customer is entitled to withdraw from the contract or request a reasonable reduction of the purchase price. Any compensation claims by the Customer are subject to the restrictions of clause 8 of these general terms and conditions of delivery.
(5) In the event of legal violations caused by products made by other manufacturers and supplied by the Seller, the Seller may choose to either assert its claims against the manufacturer and upstream supplier on behalf of the Customer or assign these claims to the Customer. Claims against the Seller in such cases shall only be available under this clause 7 if the legal enforcement of the aforementioned claims against the manufacturer and upstream supplier was unsuccessful or is unlikely to be successful, e.g. due to insolvency.
Clause 8 Liability to pay compensation due to fault
(1) The Seller's liability to pay compensation for any legal reason whatsoever, particularly impossibility of performance, default, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and unlawful acts, is limited under this clause 8 where the respective case is a matter of fault.
(2) The Seller is not liable in cases of simple negligence by its bodies, legal representatives, employees or other agents, as long as this does not involve the breach of fundamental contractual obligations. The following are considered to be fundamental contractual obligations: the obligation to deliver and install a delivery item promptly, the obligation to ensure that such items are free from legal defects and such material defects that would have a more than insignificant impact on its functioning or suitability for use and any advisory/protection obligations and duties of care that should facilitate the Customer's contractually compliant use of the delivery item or that are intended to protect the lives and limbs of the Customer's personnel or protect its property from significant damage.
(3) To the extent that the Seller is liable to pay compensation on the grounds of and in accordance with clause 8(2), this liability is limited to damages that the Seller had foreseen as a possible consequence of a contractual violation at the time that the contract was concluded or that it should have been able to foresee if it had applied the due diligence customary in the business. Indirect damages and consequential damages that are the consequence of defects in the delivery item are also only eligible for compensation if such damages are typically to be expected as the result of proper use of the delivery item.
(4) In the event of liability for simple negligence, the Seller's obligation to pay compensation for material damages and resultant further financial damages is limited to EUR 3 million per damage event, even if this involves the breach of essential contractual obligations.
(5) The above liability exclusions and limitations apply to the same extent to the Seller's bodies, legal representatives, employees and other agents.
(6) Where the Seller provides technical information or acts in an advisory capacity and this information or advice is not part of its contractually agreed due scope of services, this shall be provided free of charge and excluding any liability.
(7) Unless expressly agreed, the Seller is not liable for the suitability of the contractual object for the intended purpose by the Customer.
(8) The limitations in this clause 8 do not apply to the Seller's liability arising out of deliberate conduct, guaranteed characteristics, injury to life, limb or health or the provisions of the German Product Liability Act (Produkthaftungsgesetz).
Clause 9 Retention of title
(1) The following agreed retention of title is intended to secure all the respective current and future claims by the Seller against the Customer arising from the supply relationship existing between the contractual partners (including balance accounts receivable from a current account relationship limited to this supply relationship).
(2) The goods supplied by the Seller to the Customer shall remain the property of the Seller until the complete payment of all secured receivables. The goods and any goods replacing them and included in the retention of title pursuant to the following provisions are hereinafter referred to as "reserved goods".
(3) The Customer shall store the reserved goods free of charge for the Seller.
(4) The Customer is entitled to process and distribute the reserved goods in the normal course of business until the enforcement event (sub-clause 9). The reserved goods may not be pledged or assigned as security.
(5) If the reserved goods are to be processed by the Customer, it is agreed that processing will be carried out in the name of and on behalf of the Seller as the manufacturer and the Seller shall immediately acquire ownership of or – if processing involves materials from multiple owners or the value of the processed item is higher than the value of the reserved goods – joint ownership (fractional share) of the newly created items proportionate to the ratio of the value of the reserved goods to the value of the newly created items. In case no such acquisition of ownership by the Seller occurs, the Customer hereby transfers its future ownership or – in the aforementioned ratio – joint ownership of the newly created items to the Seller by way of security. If the reserved goods are combined or irreversibly mixed with other items to form one unit and if one of the other items is considered to be the main item, the Seller shall transfer proportional joint ownership of the unit to the Customer in the ratio specified in the foregoing sentence where the main item belongs to the Seller.
(6) In the event of the resale of the reserved goods, the Customer hereby assigns the right to the resultant receivables from the purchaser – or corresponding proportional joint ownership if the Seller is the joint owner of the reserved goods – to the Seller by way of security. The same applies to other receivables that replace the reserved goods or otherwise accrue in relation to the reserved goods, such as insurance claims or claims arising from unlawful acts in the event of loss or destruction. The Seller irrevocably authorises the Customer to collect the receivables assigned to the Seller in its own name. The Seller may only revoke this collection authorisation if an enforcement event occurs.
(7) If third parties seize the reserved goods, particularly through attachment, the Customer shall notify them immediately of the Seller's ownership and shall notify the Seller in order to allow the latter to assert its ownership rights. Insofar as the third party is unable to compensate the Seller for court or out-of-court costs arising in this context, the Customer shall be liable to the Seller in this regard.
(8) The Seller shall release the reserved goods and any items or receivables replacing them if their value exceeds the secured receivables amount by more than 50%. The selection of the resultant released items is at the discretion of the Seller.
(9) If the Seller withdraws from the contract (enforcement event) on the basis of behaviour contrary to the contract by the Customer – particularly payment default – it is entitled to demand the return of the reserved goods.
Clause 10 Final provisions
(1) Should one of the provisions herein prove to be invalid, this shall not affect the validity of the other provisions.
(2) If the Customer is a merchant, a legal entity under public law or a special fund under public law or if it does not have a general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising from the business relationship between the Seller and the Customer is either Coburg or the location of the Customer's headquarters, with the choice being the responsibility of the Seller. However, Coburg is the sole place of jurisdiction for actions brought against the Seller in these cases. Mandatory legal provisions relating to the sole place of jurisdiction remain unaffected by this provision.
(3) The relationship between the Seller and the Customer is subject solely to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods dated 11/04/1980 (CISG) does not apply.
(4) If and insofar as the contract or these general terms and conditions of delivery contain contractual gaps, these gaps are agreed to be filled by the legally effective provisions that the contractual partners would have agreed upon in line with the economic intent of the contract and the purpose of these general terms and conditions of delivery if they had realised that the contractual gaps existed beforehand.