General Terms and Conditions of Delivery of DLS Schmiersysteme GmbH

 

§ 1 Validity

 

(1) All deliveries, services, and offers of DLS Schmiersysteme GmbH (hereinafter referred to as "Seller") are subject exclusively to these General Terms and Conditions of Delivery. These terms and conditions form an integral part of all contracts that the Seller concludes with its contractual partners, who are entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) (hereinafter also referred to as "Customer"), regarding 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 upon again.

 

(2) Terms and conditions of the Customer or third parties do not apply, even if the Seller does not expressly object to their validity in individual cases. Even if the Seller refers to a letter that contains or refers to terms and conditions of the Customer or a third party, this does not constitute acceptance of the validity of those terms and conditions.

 

§ 2 Offer and conclusion of contract

 

(1) All offers made by the seller are subject to change and non-binding unless they are expressly designated as binding or include a specific acceptance period. The seller may accept orders within 3 days of receipt.

 

(2) The written purchase agreement, including these General Terms and Conditions of Delivery, is the sole basis for the legal relationship between the seller and the customer. It fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Oral promises made by the seller prior to the conclusion of this agreement are legally non-binding, and oral agreements between the contracting parties are superseded by the written agreement unless it is expressly stated therein that they remain binding.

 

(3) Amendments and modifications to the agreements made, including these General Terms and Conditions of Delivery, must be in writing to be effective. With the exception of managing directors or authorized signatories, the seller's employees are not authorized to make oral agreements that deviate from the written agreement. To comply with the written form requirement, electronic transmission, in particular by fax or email, is sufficient, provided that a copy of the signed declaration is transmitted.

 

(4) Information provided by the seller regarding the subject matter of the delivery or service (e.g., weights, dimensions, performance characteristics, load-bearing capacity, tolerances, and technical data), as well as our representations thereof (e.g., drawings and illustrations), are only approximate unless exact conformity is required for the intended contractual purpose. They are not guaranteed characteristics but rather descriptions or specifications of the delivery or service. Commercially customary deviations and deviations resulting from legal regulations or representing technical improvements, as well as the replacement of components with equivalent parts, are permissible, provided they do not impair the suitability for the intended contractual purpose.

 

(4) The seller's specifications regarding the subject matter of the delivery or service (e.g., weights, dimensions, performance characteristics, load-bearing capacity, tolerances, and technical data) are only approximate unless exact conformity is required for the intended contractual purpose. (5) The seller retains ownership and copyright to all offers and cost estimates submitted by the seller, as well as to all drawings, illustrations, calculations, brochures, catalogs, models, tools, and other documents and aids provided to the customer. The customer may not, without the seller's express consent, make these items or their content accessible to third parties, disclose them, use them, or reproduce them, either directly or indirectly. At the seller's request, the customer must return these items in full and destroy any copies made if they are no longer needed in the ordinary course of business or if negotiations do not result in a contract. This excludes the storage of electronically provided data for standard data backup purposes.

 

(6) For custom-made products, over- or under-deliveries of up to 10% of the ordered quantity are considered contractual fulfillment.

 

(7) If a call-off order is placed, the seller is entitled to procure the material for the entire order and to produce the entire order quantity immediately. Any change requests are no longer permitted by the customer unless expressly agreed upon in writing. Call-off orders must be placed within one year of the order date.

 

(8) A delivery note must be included with any parts submitted by the customer for processing. The customer must inform us of the material of the submitted parts, ensuring the best possible processing. Pre-machined parts must be delivered dimensionally accurate, within the required tolerances, and without runout. Parts to be machined must not be fully finished and must include an allowance for machining. Otherwise, the seller is entitled to rework or return defective or improperly pre-machined parts at the customer's expense and to withdraw from the contract. In this case, the customer must pay the seller the corresponding portion of the agreed price for the services rendered. In the case of supplied parts, individual pieces are regularly required. Therefore, a shortage of one piece up to 10% cannot be considered a defect.

 

(9) The seller is entitled to make design changes at any time.

 

§ 3 Prices and Payment

 

(1) The prices apply to the scope of services and delivery specified in the order confirmations. Additional or special services will be invoiced separately. Prices are quoted in EUR ex works, excluding packaging, statutory value-added tax, and, for export deliveries, customs duties, fees, and other public charges.

 

(2) If the agreed prices are based on the seller's list prices and delivery is to take place more than four months after the conclusion of the contract, the seller's list prices valid at the time of delivery shall apply (in each case less any agreed percentage or fixed discount).

 

(3) Invoices are payable within fourteen days without any deductions, unless otherwise agreed in writing. The date of receipt by the seller is decisive for the date of payment. Payment by check is excluded unless specifically agreed upon in individual cases. If the customer fails to pay on the due date, the outstanding amounts shall accrue interest at 9% per annum from the due date; the right to claim higher interest and further damages in the event of default remains unaffected.

 

(4) Offsetting against counterclaims of the customer or withholding payments due to such claims is only permissible to the extent that the counterclaims are undisputed or have been legally established, or arise from the same order under which the relevant delivery was made.

 

(5) The seller is entitled to execute or perform any outstanding deliveries or services only against prepayment or provision of security if, after conclusion of the contract, circumstances become known to the seller that are likely to significantly impair the customer's creditworthiness and that jeopardize the payment of the seller's outstanding claims by the customer arising from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).

 

§ 4 Delivery and delivery time

 

(1) Deliveries are ex works.

 

(2) Delivery and performance deadlines and dates indicated by the seller are always approximate unless a fixed deadline or date has been expressly promised or agreed upon. If shipment has been agreed upon, delivery deadlines and dates refer to the time of handover to the freight forwarder, carrier, or other third party commissioned with the transport.

 

(3) Without prejudice to its rights in the event of the customer's default, the seller may demand from the customer an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period during which the customer fails to fulfill its contractual obligations to the seller.

 

 

(2) Delivery and performance deadlines are always approximate unless a fixed deadline or date has been expressly promised or agreed upon. (4) The seller shall not be liable for impossibility of delivery or for delivery delays insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g., operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy, or raw materials, difficulties in obtaining necessary official permits, official actions, or the failure, incorrectness, or lateness of deliveries by suppliers) for which the seller is not responsible.

 

(3 If such events significantly impede or render impossible the seller's delivery or performance, and the impediment is not merely temporary, the seller shall be entitled to withdraw from the contract. In the case of temporary impediments, the delivery or performance deadlines shall be extended or the delivery or performance dates postponed by the duration of the impediment plus a reasonable start-up period. If, as a result of the delay, acceptance of the delivery or performance is unreasonable for the customer, the customer may withdraw from the contract by giving immediate written notice to the seller.

 

 

(4) If such events significantly impede or render impossible the seller's delivery or performance, and the impediment is not merely temporary, the seller shall be entitled to withdraw from the contract.

 

(5) The seller is only entitled to make partial deliveries if:

• the partial delivery is usable by the customer within the scope of the contractual purpose,

• the delivery of the remaining ordered goods is ensured, and

• the customer does not incur any significant additional effort or costs as a result (unless the seller agrees to bear these costs).

 

(6) If the seller defaults on a delivery or service, or if a delivery or service becomes impossible for any reason whatsoever, the seller's liability for damages is limited in accordance with Section 8 of these General Terms and Conditions of Delivery.

 

§ 5 Place of performance, shipping, packaging, transfer of risk, acceptance

 

(1) The place of performance for all obligations arising from the contractual relationship is 82140 Olching, unless otherwise agreed. If the seller is also responsible for installation, the place of performance is the location where the installation is to take place.

 

(2) The method of shipment and packaging are at the seller's discretion.

 

(3) The risk passes to the customer no later than upon handover of the delivery item (whereby the commencement of the loading process is decisive) to the freight forwarder, carrier, or other third party designated to carry out the shipment. This also applies if partial deliveries are made or if the seller has assumed other obligations (e.g., shipping or installation). If shipment or handover is delayed due to a circumstance attributable to the customer, the risk passes to the customer from the day on which the delivery item is ready for shipment and the seller has notified the customer accordingly.

 

(4) Storage costs after the transfer of risk shall be borne by the customer. If the goods are stored by the seller, storage costs amount to 0.25% of the invoice amount of the goods to be stored per week commenced. The seller reserves the right to claim and prove higher or lower storage costs.

 

(5) The shipment will only be insured by the seller against theft, breakage, transport damage, fire, water damage, or other insurable risks at the express request and expense of the customer.

 

(6) Where acceptance is required, the goods shall be deemed accepted if:

• delivery and, if the seller is also responsible for installation, the installation has been completed;

• the seller has notified the customer of this, referring to the deemed acceptance under this Section 5 (6), and has requested acceptance;

• twelve working days have passed since delivery or installation, or the customer has begun using the goods (e.g., has put the delivered system into operation), in which case six working days have passed since delivery or installation; and

• the customer has failed to accept the goods within this period for any reason other than a defect reported to the seller that renders the use of the goods impossible or significantly impairs it.

 

§ 6 Warranty, defects

 

(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance. This period does not apply to claims for damages by the customer arising from injury to life, body, or health, or from intentional or grossly negligent breaches of duty by the seller or its agents, which are subject to the statutory limitation periods.

 

(2) The delivered goods must be carefully inspected immediately upon delivery to the customer or to a third party designated by the customer. With regard to obvious defects or other defects that would have been apparent upon immediate, careful inspection, the goods are deemed accepted by the buyer unless the seller receives a written notice of defects within ten working days of delivery. With regard to other defects, the delivered goods are deemed accepted by the buyer unless the seller receives a notice of defects within ten working days of the date on which the defect became apparent; however, if the defect was already apparent at an earlier date during normal use, this earlier date is decisive for the commencement of the notification period. At the seller's request, a defective item must be returned to the seller freight prepaid. In the case of a justified complaint, the seller will reimburse the costs of the least expensive shipping method; this does not apply if the costs increase because the item is located at a place other than its intended place of use.

 

(3) In the event of defects in the delivered goods, the seller is initially obligated and entitled, at its discretion, to either repair or replace the goods within a reasonable period. If this fails, i.e., if repair or replacement is impossible, unreasonable, refused, or unreasonably delayed, the buyer may withdraw from the contract or reduce the purchase price accordingly.

 

(4) If a defect is due to the seller's fault, the buyer may claim damages under the conditions specified in Section 8.

 

 

(5) In the event of defects in components from other manufacturers that the seller cannot remedy for licensing or practical reasons, the seller will, at its discretion, either assert its warranty claims against the manufacturers and suppliers on behalf of the customer or assign these claims to the customer. Warranty claims against the seller for such defects exist, subject to the other conditions and provisions of these General Terms and Conditions of Delivery, only if the legal enforcement of the aforementioned claims against the manufacturer and supplier has been unsuccessful or is futile, for example, due to insolvency. The statute of limitations for the customer's relevant warranty claims against the seller is suspended for the duration of the legal proceedings.

 

(6) The warranty is void if the customer modifies the delivered item or has it modified by a third party without the seller's consent, and this renders the rectification of defects impossible or unreasonably difficult. In any case, the customer shall bear the additional costs of rectifying defects resulting from the modification.

 

(7) Any delivery of used items agreed upon with the customer in a specific case is made excluding any warranty for defects.

 

§ 7 Intellectual property rights/copyrights

 

(1) The Seller warrants, in accordance with this Section 7, that the delivered goods are free from third-party industrial property rights or copyrights. Each party shall immediately notify the other party in writing if claims are asserted against it for infringement of such rights.

 

(2) In the event that the delivered goods infringe a third party's industrial property right or copyright, the Seller shall, at its own discretion and expense, either modify or replace the delivered goods in such a way that no third-party rights are infringed, while the delivered goods continue to fulfill the contractually agreed functions, or procure the right of use for the Customer by concluding a license agreement with the third party. If the Seller fails to do so within a reasonable period, the Customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the Customer shall be subject to the limitations of Section 8 of these General Terms and Conditions of Delivery.

 

(3) In the event of infringements of rights by products of other manufacturers supplied by the Seller, the Seller shall, at its own discretion, assert its claims against the manufacturers and upstream suppliers on behalf of the Customer or assign these claims to the Customer. Claims against the seller in these cases exist in accordance with this Section 7 only if the legal enforcement of the aforementioned claims against the manufacturers and upstream suppliers has been unsuccessful or is futile, for example, due to insolvency.

 

(4) The design documents, planning, drawing, manufacturing, and assembly documents, as well as the design and concept description, remain our intellectual property. The client is not entitled to reproduce, use, or pass on to third parties the resulting documents without our prior consent. The client is also not entitled to create replicas from them.

 

We are entitled to publish images of the delivered services free of charge and without separate consent from the client, or to use them for advertising purposes. Should either party object to this, they may do so by submitting a written declaration. Upon receipt of such a written declaration, the relevant images will be removed from the contractor's advertising portfolio.

 

§ 8 Liability for damages due to negligence

 

(1) The Seller's liability for damages, regardless of the legal basis, in particular for impossibility of performance, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations, and tort, is limited in accordance with this Section 8, insofar as fault is a prerequisite for liability.

 

(2) The Seller shall not be liable in cases of simple negligence on the part of its officers, legal representatives, employees, or other agents, unless such negligence constitutes a breach of a fundamental contractual obligation. Fundamental contractual obligations include the obligation to deliver and install the goods on time, to ensure that the goods are free from defects of title and from defects that more than insignificantly impair their functionality or usability, as well as advisory, protective, and custodial duties intended to enable the Customer to use the goods in accordance with the contract or to protect the life or health of the Customer's personnel or the Customer's property from significant damage.

 

 

(2) The Seller shall not be liable in cases of simple negligence on the part of its officers, legal representatives, employees, or other agents, unless such negligence constitutes a breach of a fundamental contractual obligation. (3) To the extent that the Seller is liable for damages pursuant to Section 8 (2), such liability is limited to damages that the Seller foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or that the Seller should have foreseen by exercising due diligence. Indirect and consequential damages resulting from defects in the delivered goods are only recoverable to the extent that such damages are typically to be expected when the delivered goods are used as intended.

 

(4) In the case of liability for ordinary negligence, the Seller's liability for property damage and resulting further financial losses is limited to EUR 500,000 per claim, even if the breach involves a fundamental contractual obligation.

 

(5) The foregoing exclusions and limitations of liability apply equally to the benefit of the Seller's officers, legal representatives, employees, and other agents.

 

(6) To the extent that the seller provides technical information or advice, and such information or advice is not part of the contractually agreed scope of services owed by the seller, this is done free of charge and without any liability.

 

(7) The limitations of this Section 8 do not apply to the seller's liability for intentional misconduct, for guaranteed characteristics, for injury to life, body, or health, or under the Product Liability Act.

 

§ 9 Retention of title

 

(1) The retention of title agreed below serves to secure all current and future claims of the seller against the customer arising from the business relationship between the contracting parties.

 

(2) The goods delivered by the seller to the customer remain the property of the seller until full payment of all secured claims. The goods, as well as any goods that replace them under the following provisions and are subject to the retention of title, are hereinafter referred to as "reserved goods."

 

(3) The customer shall hold the reserved goods in safe custody for the seller free of charge.

 

(4) The customer is entitled to process and sell the reserved goods in the ordinary course of business until the occurrence of an event of default (paragraph 9). Pledging or assigning the reserved goods as security is prohibited.

 

(5) If the goods subject to retention of title are processed by the customer, it is agreed that the processing is carried out in the name and for the account of the seller as manufacturer, and the seller directly acquires ownership or – if the processing involves materials belonging to several owners or the value of the processed item is higher than the value of the goods subject to retention of title – co-ownership (fractional ownership) of the newly created item in proportion to the value of the goods subject to retention of title relative to the value of the newly created item. In the event that such acquisition of ownership by the seller should not occur, the customer hereby assigns its future ownership or – in the aforementioned proportion – co-ownership of the newly created item to the seller as security. If the goods subject to retention of title are combined or inseparably mixed with other items to form a single item, and one of the other items is to be regarded as the principal item, the seller, to the extent that the principal item belongs to it, assigns to the customer proportionate co-ownership of the single item in the ratio specified in sentence 1.

 

(6) In the event of resale of the goods subject to retention of title, the customer hereby assigns to the seller, as security, the resulting claim against the purchaser – in the case of co-ownership by the seller of the goods subject to retention of title, proportionally according to the seller's share of co-ownership. The same applies to other claims that replace the goods subject to retention of title or otherwise arise with respect to them, such as insurance claims or claims arising from tort in the event of loss or destruction. The seller revocably authorizes the customer to collect the claims assigned to the seller in the customer's own name. The seller may revoke this authorization to collect only in the event of enforcement.

 

(7) If third parties seize the goods subject to retention of title, in particular by way of attachment, the customer shall immediately inform them of the seller's ownership and notify the seller accordingly to enable the seller to enforce its ownership rights. If the third party is unable to reimburse the seller for the legal or extrajudicial costs incurred in this connection, the customer shall be liable to the seller for these costs.

 

(8) The seller shall release the goods subject to retention of title, as well as any items or claims that replace them, to the extent that their value exceeds the amount of the secured claims by more than 50%. The seller shall have the right to select the items to be released.

 

(9) If the seller withdraws from the contract due to the customer's breach of contract – in particular, default of payment – ​​(event of realization), the seller shall be entitled to demand the return of the goods subject to retention of title.

 

§ 10 Final Provisions

 

(1) If the customer is a merchant, a legal entity under public law, or a special fund under public law, or if the customer has no 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 shall be, at the seller's option, either 82140 Olching or the customer's place of business. However, for actions against the seller, Olching shall be the exclusive place of jurisdiction in these cases. Mandatory statutory provisions regarding exclusive places of jurisdiction remain unaffected by this provision.

 

(2) The relationship between the seller and the customer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) shall not apply.

 

(3) Insofar as the contract or these General Terms and Conditions of Delivery contain gaps, those legally effective provisions shall be deemed agreed upon which the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the gap.

 

May 2019