General Terms and Conditions of Sale of Dittel Messtechnik GmbH
1. Scope of Application
1.1.The provision of all goods and services is based on these Terms and Conditions and on any separate contractual arrangements. However, they apply only to business operators (Unternehmer) within the meaning of Paragraph 310(1) in conjunction with Paragraph 14 German Civil Code (Bürgerliches Gesetzbuch).
1.2.These Terms and Conditions of Sale apply exclusively. Any deviating or conflicting terms and conditions of purchase of the Customer shall not become part of the Agreement even if the order placed is accepted. These Terms and Conditions of Sale shall also apply if the Supplier carries out delivery of the goods despite being aware of deviating or conflicting terms and conditions.
1.3.These Terms and Conditions of Sale shall also apply for the parties' future terms and conditions of business.
2. Offer, Acceptance
2.1.In the absence of any special agreement, the contract shall come about upon written confirmation of the order by the Supplier.
2.2.Insofar as the order constitutes a binding offer within the meaning of Paragraph 145 German Civil Code (Bürgerliches Gesetzbuch) the Supplier shall be entitled to accept the offer within a period of 10 days.
2.3.The information, drawings, pictures, technical data, descriptions of weights, dimensions and services contained in prospectuses, catalogues, circular letters, advertisements, price lists or in the documents belonging to the offer are not binding unless they have been expressly designated as binding in the confirmation of the order, inspection certificate or in technical manuals.
2.4.Side agreements shall only apply if they have been confirmed in writing by the Supplier.
3. Export Licence, Import Licence
3.1. The Supplier undertakes to deliver only subject to any export licence that may be necessary. The Supplier shall use all reasonable efforts to obtain any such export licence that may be necessary. The Supplier does not give any guarantee that the export licence will be granted.
3.2. The procurement of any import licence that may be necessary shall be incumbent upon the Customer.
4. Samples, Documents
4.1. The Supplier reserves title to and copyrights in samples, cost estimates, drawings and similar information of a tangible or intangible nature - also in electronic form; they may not be made accessible to third parties.
4.2. The Supplier undertakes to make information and documents, which the Customer has designated as confidential, accessible to third parties only with the Customer's consent.
5. Prices, Payment
5.1.The prices apply ex works, excluding packaging, dispatch and transportation charges. The packaging shall be charged at cost price and shall only be taken back if the Supplier is obliged to take it back by virtue of mandatory statutory provisions. The prices do not include the statutory value added tax as applicable from time to time.
5.2.If the Supplier takes into account changes requested by the Customer, the extra costs thereby incurred shall be charged to the Customer.
5.3.Unless otherwise agreed in writing, all payments for the delivery of equipment shall be due within 30 days following the date of the invoice. If payment is made within 10 days following the date of the invoice the Supplier shall grant a 2% cash discount.
5.4.Repairs and other services shall be payable without deduction within 10 days following the date of the invoice.
5.5.If the period allowed for payment is exceeded intentionally or negligently interest at a rate of 8 % above the base interest rate as applicable from time to time shall be demanded without prejudice to the right to assert more far-reaching claims.
5.6.If the Customer fails to meet his payment obligations or if the Supplier becomes aware of circumstances which, according to the best judgement of a businessman, are likely to call the creditworthiness of the Customer into question, then all of the Supplier's claims against the Customer shall become due immediately. In that case the Supplier shall be under a duty to make further deliveries only if the Customer pays in advance.
6. Set-Off, Retention
The Customer shall have a right of set-off and to claim rights of retention only insofar as the Customer's counterclaims are undisputed or have become final and absolute. Furthermore, the Customer may only claim a right of retention on the basis of counterclaims which arise out of the same contractual relationship.
7.1.The delivery time shall ensue from the agreements between the contract parties. Compliance therewith by the Supplier shall be subject to the condition that all commercial and technical questions between the contract parties have been resolved and the Customer has fulfilled all of the obligations incumbent on him. If this is not the case, the delivery time shall automatically be reasonably extended. This shall not apply if the Supplier is responsible for the delay.
7.2.Compliance with the delivery period is subject to the Supplier receiving correct and timely supplies itself. The Supplier shall advise of any delays that are looming as soon possible.
7.3.The delivery deadline shall be deemed to have been met if the goods/services to be delivered have left the Supplier's works, or notification of their readiness for dispatch has been given, by the time the delivery deadline expires.
7.4.If dispatch of the good/services to be delivered is delayed for reasons, for which the Customer is responsible, the Customer shall be charged the costs incurred due to the delay beginning one month after notification of the readiness for dispatch or readiness to take delivery has been given.
7.5.If the failure to meet the delivery date is due to force majeure, industrial disputes or other events, which are not within the Supplier's sphere of influence, the delivery time shall be reasonably extended. The Supplier shall notify the Customer of the commencement and the end of any such circumstances as soon as possible. Claims for damages shall be excluded provided that the circumstances were not caused by the Supplier intentionally or grossly negligently.
7.6.If the Supplier is late with performance ("in Verzug") and the Customer thereby demonstrably incurs loss, the Customer shall be entitled to demand lump-sum damages due to delay in performance. For each full week of delay said lump-sum damages shall be 0.5%, but in aggregate a maximum of 5%, of the value of that part of the total delivery, which cannot be used in due time or cannot be used as per the agreement as a consequence of the delay. Beyond the damages due to delay in performance stipulated above, the Supplier shall have no obligation to pay any compensation for damage suffered by the Customer due to a delay in delivery by the Supplier irrespective of the cause in law.
If after the due date and taking into account the statutory exceptions the Customer sets the Supplier a reasonable deadline for performance and the deadline is not complied with, the Customer shall have a right of rescission in accordance with the statutory provisions.
Any further claims arising out of any delay in delivery shall be governed exclusively by Clause 12.2 of these Terms and Conditions.
7.7.Part deliveries shall be permitted to the extent they are reasonable for the Customer.
8. The Passing of Risk
8.1.The risk shall pass to the Customer when the goods/services to be delivered have left the works, more particularly also in the event that part deliveries are made or the Supplier has also assumed other services, e.g. the delivery charges or delivery and installation.
8.2.If dispatch is delayed or no dispatch is undertaken as a consequences of circumstances, which are not attributable to the Supplier, the risk shall pass to the Customer as of the day upon which notice of the readiness for dispatch was given. The Supplier undertakes to conclude the insurances, which the Customer asks for, at the Customer's cost.
9. Reservation of Title
9.1.Title to goods delivered (reserved goods) shall remain with the Supplier until all of the claims which the Supplier has against the Customer arising out of the business relationship have been satisfied.
9.2.The Customer shall be entitled to dispose of said goods in the ordinary course of business provided that he complies with his obligations arising out of the business relationship with the Supplier in a timely manner.
9.3.The Customer may neither pledge the reserved goods nor transfer ownership thereof by way of security. He is under a duty to secure the Supplier's rights in the case of a credited re-sale of the reserved goods.
9.4.The Customer hereby already assigns all claims and rights arising out of the sale, or any hiring-out, of goods, in which the Supplier has reserved title, to the Supplier as security. The Supplier hereby accepts said assignment.
9.5.The Customer shall always undertake any treatment or processing of the reserved goods on behalf of the Supplier. If the reserved goods are processed or inseparably mixed with property not belonging to the Supplier, the Supplier shall acquire joint title to the new article in the proportion which the invoice value of the reserved goods has to the other processed or mixed articles at the time of processing or mixing. If goods of the Supplier are combined or inseparably mixed with other moveable things to become a uniform thing and if the other thing is to be considered the main thing, the Customer shall assign to the Supplier joint title proportionately insofar as the main thing belongs to the Customer. The Customer shall hold the title or joint title in safe custody on behalf of the Supplier. Moreover, the same shall apply to the thing created by means of the processing or combining or mixing as applies to the reserved goods.
9.6.The Customer must notify the Supplier without undue delay of any execution measures levied by third parties on the reserved goods, on the claims assigned to the Supplier or on other security, handing over all of the documents required for a third-party intervention. This shall also apply in the case of interferences of any other kind.
9.7.If the value of all security interests, to which the Supplier is entitled, exceeds the amount of all secured claims by more than 20 %, the Supplier shall, upon request by the Customer, release a corresponding portion of the security interests.
10. Right of Rescission
10.1. In the event of any breach of duty by the Customer, in particular in the event of any default of payment, the Supplier shall - after the Customer has been set a reasonable deadline to perform and said deadline has expired to no avail - have a right of rescission and retraction; the statutory provisions governing the dispensability of setting a deadline shall remain unaffected. The Customer shall be obliged to surrender.
10.2. The Supplier is further entitled to rescind the Agreement if a petition has been filed for the opening of insolvency proceedings over the Customer's assets.
11. Warranty Claims
The Supplier gives a warranty for defects in quality (Sachmängel) and defects in title (Rechtsmängel) in the delivery - to the exclusion of any further claims and subject to Clause 12 - as follows:
Defects in Quality (Sachmängel)
11.1. The Customer must inspect the goods delivered within 4 working days following receipt and must report any defects discovered to the Supplier in writing without undue delay. Otherwise, the goods shall be deemed to have been approved and therefore free from defects. In the event of hidden defects the period for reporting defects shall not commence until the Customer discovers the defect.
11.2. All parts which turn out to be defective as a consequence of a circumstance that was before the passing of risk must be rectified or, at the Supplier's option, replaced such that they are free of defects, free of charge. If any such defects are established, they must be reported to the Supplier in writing and without undue delay. Parts replaced shall become the Supplier's property.
11.3. The Customer must, after agreement with the Supplier, give the necessary time and opportunity to carry out all rectifications and substitute deliveries that appear necessary to the Supplier; otherwise the Supplier is released from the liability for the consequences that arise as a result. Only in impending cases of danger to industrial safety or to avert disproportionately great losses, whereby the Supplier must be informed immediately, shall the Customer have the right to eliminate the defect itself or to have it eliminated by third parties and to demand reimbursement of the necessary expenses from the Supplier.
11.4. Of the direct costs incurred due to the rectification or substitute delivery, the Supplier shall - provided the complaint turns out to be justified - bear the costs of the substitute item including the cost of delivery. The Supplier shall furthermore bear the costs of the removal and fitting as well as the costs of providing any necessary mechanics and assistants, including travel costs, provided that this does not cause the Supplier to incur any excessive burden.
11.5. Under the statutory provisions the Customer has a right to rescind the Agreement if the Supplier - taking into account the statutory exceptions - allows a reasonable deadline, which it has been set for making rectifications or a substitute delivery because of a defect in quality (Sachmangel), to expire in vain. If the defect is only minor the Customer only has a right to reduce the contractual price. Otherwise the right to reduce the contractual price is excluded.
Any further claims are governed exclusively by Clause 12.2 of these Terms and Conditions.
11.6. No warranty is given for, in particular, the following cases: Inappropriate or improper use, faulty installation or putting into operation by the Customer or third parties, natural wear and tear, faulty or negligent treatment, improper service, unsuitable operating materials, chemical, electro-chemical or electrical influences, provided that the Supplier is not responsible for them.
11.7. If the Customer or a third party rectifies defects improperly, the Supplier shall not be liable for the consequences resulting therefrom. The same shall apply for any modifications made to the delivery item without the Supplier's prior consent. Defects in Title (Rechtsmängel)
11.8. If use of the delivery item leads to an infringement of intellectual property rights or copyrights in Germany the Supplier shall, at its cost, in principle procure the right for the Customer to continue to use the delivery item or shall modify the delivery item in a manner that is reasonable for the Customer such that the infringement no longer exists.
If this is not possible under economically reasonable conditions or within a reasonable period, the Customer shall be entitled to rescind the Agreement. The Supplier shall also be entitled to rescind the Agreement under said conditions.
Furthermore, the Supplier shall indemnify the Customer against undisputed claims by the proprietors of the intellectual property rights, or their claims which have been established and become final and unappealable.
11.9. Except as otherwise provided in Clause 12.2, the Supplier's obligations set out in Clause 11.8 are exhaustive in the event of an infringement of intellectual property rights or copyrights.
11.10.The Supplier's obligations set out in Clause 11.8 shall only exist if
- a)the Customer notifies the Supplier without undue delay of any infringements of intellectual property rights asserted or copyright infringements asserted,
- b)the Customer provides the Supplier with reasonable support in taking defensive action against claims asserted or allows the Supplier to implement the modification measures pursuant to Clause 11.8;
- c)the Supplier retains the right to take all defensive action including out-of-court arrangements,
- d)the defect in title (Rechtsmangel) is not due to an instruction given by the Customer and
- e)the infringement was not caused by the fact that the Customer altered the delivery item of his own accord without authority or used them in a manner that is not in conformity with the contract.
12.1. If the Customer cannot use the delivery item in conformity with the Agreement due to fault on the part of the Supplier as a consequence of a failure to execute, or faulty execution of, proposals made and advice given before or after conclusion of the Agreement or due to the breach of other contractual secondary obligations - in particular instructions for operating and servicing the delivery item - the provisions of Clauses 11 and 12.2 shall apply mutatis mutandis and to the exclusion of any further claims by the Customer.
12.2. The Supplier shall be liable for damage incurred not in or on the delivery item itself - irrespective of the legal basis - only
- a)in the event of intent,
- b)in the event of gross negligence of the owner/organs or senior employees,
- c)in the event of a negligent or intentional injury to life, body or health,
- d)in the event of defects which it fraudulently concealed or the absence of which it guaranteed,
- e)in the event of defects in the delivery item if liability is incurred under the German Product Liability Act (Produkthaftungsgesetz) for personal injury or damage to property caused to property used privately.
In the case of any intentional or negligent breach of a material contractual obligation the Supplier shall also be liable in the case of gross negligence on the part of non-senior employees and in the case of carelessness (leichte Fahrlässigkeit); in the latter case its liability shall be limited to the damage that is typical for the contract and reasonably foreseeable. Any further claims are excluded.
13. Limitation of Actions
All claims of the Customer - on no matter what legal basis - shall be time-barred in 12 months. The statutory periods shall apply to claims for damages under Clause 12.2 a) to e).
14. Use of Software
To the extent that the scope of delivery includes software, the Customer is granted a non-exclusive right to use the software supplied including its documentation. It is licensed to be used on the delivery item intended for it. The software may not be used on more than one system.
The Customer may copy, revise, translate or convert the object code into the source code only to the extent permitted by statute (Paragraphs 69a et seq. German Copyright Act (Urheberrechtsgesetz)). The Customer undertakes not to remove or to alter any manufacturer's details - in particular copyright notices - without the express, prior consent of the Supplier.
All other rights in the software and in the documentation including the copies shall remain with the Supplier or the supplier of the software. The grant of sub-licences is not permitted.
15. Written Form
Any amendments and additions to, and the cancellation of, this Agreement are required to be in writing in order to be effective. The requirement of writing can only be waived in writing.
16.1. In the event that provisions of this Agreement are or become void or invalid, the validity of the remaining provisions shall remain unaffected thereby. This shall also apply if the provisions of this Agreement breach applicable mandatory national legal provisions in the contract territory.
16.2. The void or invalid provision of this Agreement shall then be replaced by a valid provision which comes closest to the economic purpose of the invalid provision. The same shall apply mutatis mutandis in the event that the Agreement has any lacunae.
17.Place of Performance, Governing Law, Place of Jurisdiction
17.1. The place of performance for deliveries and services shall be Landsberg am Lech.
17.2. The legal relationship between the Supplier and the Customer shall be governed exclusively by the United Nations Convention on Contracts for the International Sale of Goods ("CISG"). Insofar as the above Convention does not contain a regulation, the law of the Federal Republic of Germany shall apply exclusively.
17.3. The place of jurisdiction shall be the court that has jurisdiction for the Supplier's registered office (seat). This shall be without prejudice to any other exclusive place of jurisdiction. The Supplier shall however be entitled to sue at the place where the Customer has his headquarters.