xxxxxxxxxxxDYNAT Verschlußtechnik GmbH
Terms and Conditions 1/05
I. Acceptance of the Terms and Conditions of Sale and Delivery
1. The following Terms and Conditions of Sale and Delivery exclusively apply in the sense of § 14 BGB (German civil code).
2. All orders which we accept are exclusively executed in accordance with the Terms and Conditions of Sale and Delivery which apply for future deliveries also without being repeated. Deviating, conflicting or supplement General Business Terms and Conditions shall not become part of the contract, even if they are known unless express written agreement is given for their validity.
3. If single provisions are ineffective, the validity of the remaining conditions is not affected.
1. Delivery and invoicing are carried out at the prices valid at the date of order placement.
2. The risk of an accidental loss or of an accidental deterioration of the goods is passed on to the customer with transfer and/or on dispatch to another place with the delivery of the item to the forwarding agent, the freight carrier or another person or institution designated for the execution of the dispatch.
3. Any agreed delivery dates are only binding, a trouble-free process of operation and sale provided. Special events, namely cases of force majeure or other distributing events occurring to us, our suppliers or the forwarding agencies, for example interruptions of operation or traffic blocks, fire, inundations, lack of labour force, energy or raw materials, strikes, lock-outs, regulatory measures, release us from the obligation of a delivery in time and furthermore give us the right to suspend delivery without any duty of additional delivery.
4. In case of later amendments of the contract which may influence the delivery date, the latter shall be changed appropriately.
5. Claims for indemnity on the basis of delays in delivery are excluded, as far as legally permitted. The customer has the statutory right of withdrawal.
6. If the opening of insolvency proceedings regarding the assets of the customer are applied for, if an affidavit is declared for the assets of the customer, if difficulties in payment occur, if a significant deterioration of the assets of the customer become known, we are entitled to stop delivery immediately and to require the provision of a corresponding security for the further performance of current contracts.
III. Reservation of Ownership
1. We reserve the right of ownership for all products which we delivered (goods subject to retention of title) until all claims, even conditional and future claims, including incidental claims which we have against the customer on the basis of the respective business relation are paid and the bills of exchange and cheques given for this purpose are honoured. Cash payments, payments by cheque and bank transfers carried out against transmission of a bill of acceptance of the customer which we have issued are only deemed to be fulfilled, if the bill of exchange has been honoured by the drawee and we are thus released from liability within the scope of the bill of exchange.
2. The customer has to take out sufficient insurance for the goods subject to retention of title, namely against fire and theft. The customer assigns to us already now any claims against the insurer to the value of the goods subject to retention of title. The value of the goods subject to retention of title is the value which the goods subject to retention of title have in accordance with the prices we issued on the day of occurrence of the loss, including VAT. The customer has to inform the insurer about the assignment of claim.
3. The customer has to inform us immediately about a pledge or any other limitation of our ownership rights through third parties and has to confirm in writing our ownership rights to third parties and to us.
4. In case of a behaviour contrary to contract on part of the customer, namely in case of a delayed payment, we are entitled to take back the purchased item after granting a reasonable time. If we take back the purchase item this is deemed to be a cancellation of contract.
5. The customer is entitled to resell the goods in the proper course of business. In case of resale, the customer assigns to us already now all claims to the invoice amount to which he is entitled against third parties due to the resale. We accept the assignment. The customer has the right to collect this claim even after assignment. We reserve the right to collect the receivables ourselves, if the customer does not meet his payment obligations properly and if payment is delayed. The customer has to communicate the details about the assigned claims necessary for collection, to transfer the corresponding documents and to inform the debtor about assignment.
IV. Prices and Payment Conditions
1. As far as nothing else results from our acknowledgement of order our prices are valid "ex works".
2. We are entitled to demand a security sufficient at our discretion for any existing claim. If it is not given immediately on our request, the debt falls due immediately. We reserve the right to demand an advance payment, charge forward or cash payment for our deliveries case by case.
3. The customer is only entitled to set off or withhold payments, if his counterclaim is undisputed or legally determined. Any deductions which are not expressly agreed, are not accepted. Discounts (rebates, bonuses, etc.) which are not expressly granted are also not accepted. Reductions can only be set off by the customer, if we have given a corresponding credit note for the reduction. A title to payment of a possibly agreed bonus only exists, if the customer has paid to us all claims and if all bills of exchange and cheques given have been honoured.
1. For warranty claims of the customer it is required that the latter has properly met his obligations regarding investigation and complaint according to § 377 HGB (Commercial Code). Differences in the quantity have to be communicated 7 working days after receipt of the goods with presentation of the delivery note.
2. Warranty for deficiencies at the goods we delivered is first assumed by rectification of the defects or replacement delivery (supplementary performance) at our discretion.
3. If the supplementary performance fails, the customer can either demand the reduction of payment (reduction) or the cancellation of the contract (rescission) at his choice. However, in case of an insignificant infringement of contract only, namely in case of only insignificant defects, the customer is not entitled to a right of withdrawal.
4. The customer fully bears the burden of proof for all requirements for claims, especially for the deficiency itself, for the moment of determination of the deficiency and for the timeliness of the letter of complaint.
5. If the customer wishes to cancel the contract due to a defect of title or a material defect after failed supplementary performance, he is not entitled to any compensation claims due to the defect in addition.
6. If the customer claims compensation after a failed supplementary performance, the goods remain with the purchaser provided this is acceptable for him. The compensation is limited to the difference between purchase price and value of the defective item. This rule does not apply, if we have caused the violation of the contract intentionally or grossly negligent or if a case in the sense of clause VI 2 is given.
7. The period of limitation for warranty claims amounts to 12 months calculated from the transfer of risk.
8. Only our product description is principally deemed as agreed for the property and condition of the goods, in which we reserve the right for deviations from physical and chemical values which are usual in trade or technically unavoidable. Public statements, promotion and advertisements for the goods are not considered as information about properties and condition of the goods according to contract.
9. Our liability
is excluded, if
a deficiency for which we are not responsible occurred, if
11. Products for which warranty claims are asserted have to be sent to DYNAT Verschlußtechnik GmbH in Harsum. The return of the products takes place at the risk of the sender.
12. The customer does not receive any guarantees in the legal sense from us. Guarantees from our own subcontractors will remain unaffected.
VI. Limitations of liability
1. In case of slightly negligent breaches of duty our liability is limited to the foreseeable, direct average damage typical for the contract according to the type of good. This applies also in case of slight negligent breaches of duty of our legal representatives or vicarious agents. We do not assume any liability for slightly negligent violations of insignificant contract obligations.
2. The liability due to negligent injury of life, body or health remains unaffected. This applies also for forced liability according to the Product Liability Act.
3. Compensation claims of the customer due to a defect become time-barred after one year from delivery of the goods. This rule does not apply, if we can be accused of fraudulent intent.
VII. Place of fulfilment, place of jurisdiction, other agreements, data protection
1. Place of fulfilment and place of jurisdiction for all claims arising from the business relation, especially from our deliveries, is Hildesheim, even if the sales or deliveries were carried out by a sales office or a representation. This place of jurisdiction applies also for disputes about the contract relations. However, we are entitled to bring an action against the customer to a court at his domicile.
2. The law of the Federal Republic of Germany applies; the validity of the UN sales law is excluded.
3. Agreements made by telephone or verbal agreements require a written confirmation for their legal effectiveness.
4. It is communicated that we will save data in the sense of data protection.
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