Contract clause of Daetwyler Ibo Tec GmbH
I. Scope of application
These General Terms and Conditions of Business of Daetwyler IBO Tec GmbH, Loog 21, D – 23611 Bad Schwartau, Germany, apply to entrepreneurs, legal entities under public law and special funds under public law.
2 All our offers, deliveries and services are based on our General Terms and Conditions. We accept orders exclusively on the basis of these terms and conditions. General terms and conditions of the customer or regulations of the customer deviating from our general terms and conditions or agreements are only binding for us if we expressly acknowledge them in writing.
3 These conditions apply to all types of contracts which Daetwyler IBO Tec concludes with its customers. Subsequently, there are special regulations about contracts concerning consulting and service contracts. Should general and special regulations contradict each other, then the special regulations apply in this respect. (if still desired)
1 The offers and individual offers contained in our brochures, price lists and advertising material are subject to change without notice.
2 A contract is only concluded with the acceptance of the order by us. This is done by a written order confirmation.
3. Subsidiary agreements to our offers and order confirmations as well as agreements with our field staff require our written confirmation in order to be valid.
1 Declarations of the customer are to be addressed exclusively to us. Declarations to third parties or sales representatives require our confirmation in order to be effective.
2 Insofar as the law or these General Terms and Conditions require the written form, this form shall also be deemed to have been complied with in the event of transmission by fax or e-mail with electronic signature. The requirement of an electronic signature may be waived in all cases.
IV. Terms of payment
1. Our prices are quoted in Euro plus statutory value added tax. The prices of the goods shall also be subject to advance freight, customs clearance, handling and packaging (TVA) as well as freight costs. An emergency service flat rate shall be charged for deliveries of goods or execution of orders outside normal business hours. For maintenance and service work, the respectively valid cost rates according to our separate price list shall apply. In any case, we shall charge the statutory value-added tax at the rate applicable on the day of performance.
2. Unless otherwise agreed, all invoices are due for payment without deduction no later than 14 days from the invoice date. The invoice amount shall be payable to the account stated in our invoice. Sales representatives are not entitled to accept payments. Any discount agreements are hereby excluded, unless otherwise stipulated in an individual contract. Otherwise, the terms of payment stated in the offer or order confirmation shall apply.
3. If, after conclusion of the contract, we become aware of circumstances which cast doubt on the creditworthiness of the customer, we may, at our discretion, demand payment in advance, performance step by step or provision of security. We are entitled to set the customer a reasonable deadline to comply with the performance provision and to refuse our performance for as long as necessary. If the customer refuses or if the deadline expires without success, we shall be entitled to withdraw from the contract and claim damages. The same shall apply if the customer fails to meet his payment obligations towards us on the due date.
4. If the customer defaults on payment or his creditworthiness deteriorates, all our claims against the customer, including those arising from other transactions, shall become due immediately. In this case, we shall also be entitled to return bills of exchange accepted which are not yet due against immediate payment. Following written notification to the customer, we may suspend performance of our obligations, including those arising from other transactions, until payment has been received.
5.The customer shall be in default at the latest 40 days after the invoice date. From this date we shall be entitled to charge default interest at the rate charged to us by the bank for overdrafts, but at least 8 percentage points above the base rate pursuant to § 247 of the German Civil Code (BGB). We reserve the right to assert further claims for damages caused by default. In particular, the customer is obliged to bear collection costs and all necessary legal costs. Unless otherwise agreed, any deferment of payment granted by us subsequently shall not affect the obligation to pay interest.
6. The customer is only entitled to set off undisputed or legally established claims. The exercise of a right of retention on due amounts is only possible until the fulfilment of the consideration from the same contract or until the fulfilment of an undisputed or legally established claim of the purchaser.
7. As far as we work on behalf of a company of the MDC Daetwyler Group to execute, this is done in the name and for the account of that company. A set-off of claims of the customer against another company of the MDC Daetwyler Group with our claims is excluded.
V. Performance periods
1. Deadlines and dates agreed for our services are only approximate, unless they are designated as binding by ausdrü̧cklich.
2. A period of performance determined only according to its duration begins with the expiry of the day on which full agreement is reached on all details of the contents of the order, at the earliest with the acceptance of the order by us, but not before the provision of the documents, approvals, releases to be procured by the customer and not before receipt of any down payment to be made by the customer.
3. If we are in default with a performance, the customer may withdraw from the contract in accordance with the statutory provisions if he has set us a grace period in writing which is reasonable for the object of the order and this grace period has elapsed unsuccessfully. Claims for damages are excluded in the aforementioned cases, unless the damage is due to intent or gross negligence on the part of one of our legal representatives or one of our vicarious agents.
4. Force majeure and all circumstances beyond the personal control of the contracting parties, such as war, mobilization, fire, flooding, strike, lockout, confiscation, embargo, import or export restrictions, prohibition of currency transfer, insurrection, lack of means of transport, general shortage of supplies, restriction of energy consumption, operational disruptions, official measures shall release the contracting parties from their performance obligations for the duration of the disruption and to the extent of its effect. If such circumstances occur after default has occurred, the consequences of default shall be excluded for the duration of their effectiveness. The time of performance shall be postponed by the duration of the hindrance.
5. If, after conclusion of a purchase contract, it turns out that a pre-supplier does not deliver at all or delivers with considerable delay or import restrictions prevent the purchase of the goods for an unforeseeable period of time, both parties to the contract are entitled to withdraw from the contract. The occurrence of this circumstance must be notified immediately to the other contracting party and any services already received must be returned. Insofar as one party to this contract is responsible for the impediment to performance, the statutory provisions shall apply.
6. If the delivery of the goods is delayed at the request of the customer, we may charge storage costs of 0.7 % of the invoice amount for each month of delay commenced after one month has elapsed since the notification of our readiness to deliver was sent.
7. If the customer is in default of acceptance or violates other obligations to cooperate, we may demand compensation for the resulting damage and withdraw from the contract after setting a grace period of at least one month.
8 Unless otherwise agreed, we shall be entitled to make partial deliveries and to invoice each partial delivery separately.
Special contract types, such as maintenance or service
VI. Dispatch provisions
1 We dispatch the goods at the request and expense of the customer. If we do not receive any special shipping instructions from the customer, we shall ship the goods by the most favourable shipping route at our discretion. The transport risk shall be borne by the customer. We insure consignments of goods against the usual transport risks by forwarding agents or our own vehicles at the customer’s expense and only on separate request.
2. The risk of loss or deterioration of the goods for which we are not responsible or for which we are not responsible shall pass to the customer when the goods are handed over to the forwarding agent or, if the goods cannot or should not be dispatched, when the notification of our readiness to deliver is sent.
3. If we are obliged under the Packaging Ordinance to take back packaging, the customer shall bear the costs for the return transport of the packaging used.
VII Retention of title
1. We reserve the right of ownership of all goods delivered by us until all our claims arising from the business relationship with the customer have been satisfied in full.
2. In the event of conduct on the part of the customer contrary to contract, in particular default in payment, we shall be entitled to take back and dispose of the goods. The proceeds from the sale shall be offset against the customer’s liability after deduction of reasonable selling costs. Otherwise, the statutory provisions shall apply.
3. The customer is entitled to sell reserved goods in the ordinary course of business. The purchaser hereby assigns to us all claims of the purchaser arising from the resale of goods to which we have title or co-title and these shall pass to us upon conclusion of the resale transaction. This shall also apply if the goods are sold to several customers. In the event that the goods sold are not wholly owned by us or are sold together with goods not owned by us, the assignment only covers the counterclaim to the amount of the invoice value of our goods. Upon request, the customer is obliged to inform us immediately of the names and addresses of his customers as well as the dates and amounts of each individual invoice for the resale of reserved goods. The customer may collect the assigned claims. We may revoke these powers if the customer does not fulfil an obligation incumbent on him towards us punctually or if circumstances become known to us which make our rights appear endangered.
4. The customer is not entitled to pledge or transfer by way of security goods to which we have ownership or co-ownership. Furthermore, he is not entitled to sell reserved goods to customers if he has already assigned the claim arising from the resale of the goods to a third party elsewhere or if the customer would be entitled to offset the claim arising from the resale or if a third party has notified the customer of the attachment of the customer’s claims against the customer.
5. The customer hereby assigns to us all claims against the buyer or third parties due to the loss of or damage to the reserved goods, in particular claims arising from insurance benefits and tort.
6. The customer must inform us immediately if goods in which our ownership or co-ownership exists are seized or if execution is levied against them.
7. The treatment or processing of our goods takes place for us as manufacturer. If our goods are inseparably combined or mixed with other goods or objects of the customer or third parties, our ownership of the new object shall continue in the ratio of the invoice value to the value of the other mixed or blended objects.
8. If we do not acquire co-ownership of our goods in the case of an inseparable combination or mixing, the customer, if he has become the owner, shall transfer co-ownership of the new object to us in the ratio of the invoice value to the value of the other mixed or blended objects as security. It is hereby agreed that the customer shall own the object for us as a custodian and bear the costs and encumbrances alone.
9. If we have neither acquired co-ownership nor the customer has become the owner, the customer hereby assigns to us all expectant rights which may lead to his acquisition of ownership or co-ownership. Otherwise he is obliged to provide another security.
10. If our retention of title loses its validity for deliveries abroad or for other reasons, the customer is obliged to immediately provide us with security for the delivered items or other security for our claims, which is effective under the law applicable to the customer’s registered office and comes as close as possible to the retention of title under German law.
11. If the nominal value of the existing securities exceeds the nominal value of our secured claims by more than 20%, the security in this amount shall pass to the customer, who already accepts it now. Of several due securities against foreign and domestic debtors, those against foreign debtors are transferred first. Of several equivalent claims the older before the younger one. Upon request, the customer shall receive a list of securities and secured claims.
12. The customer is liable for all damages to the reserved goods and their destruction for damages from the transfer of risk. The claim shall expire upon payment of the full purchase price.
1. It is a prerequisite for our warranty obligation that the customer notifies us in writing of the defect after discovery at unverzü̧glich and that this is done within eight days of receipt of the goods at the latest, insofar as the defect could be discovered immediately after receipt of the goods during the inspection to be carried out in the ordinary course of business. Obvious packaging damage must also be reported to the carrier. Liability for non-obvious defects remains unaffected.
2. We only provide warranty for defects in goods which were already present at the time of transfer of risk. Quality or durability guarantees shall not be assumed. This also applies to article and quality specifications as well as technical and commercial descriptions.
3. In the case of the delivery of new parts, the warranty period shall be 12 months from delivery. In the case of the delivery of factory overhauled spare parts, the warranty is valid for six months from delivery. The same periods shall apply if the installation of the part to be delivered by our service technicians is the subject of the sales contract or, in the case of a service contract, a defective part is exchanged for a spare part by one of our sales representatives. The warranty period for our factory services is 12 months from acceptance.
4. The customer may choose between replacement delivery or rectification of defects. Rectification of defects is excluded if the costs exceed the invoice value by more than 30%. If the defect cannot be remedied by replacement delivery or repair, the customer is entitled to reduce the invoice amount or withdraw from the contract.
5. We shall not be liable for damage caused by unsuitable or improper use, faulty assembly or commissioning by the customer or a third party, normal wear and tear, faulty or negligent handling.
6. Our warranty obligation expires if the goods are modified without our consent or if the customer does not follow the instructions for use.
1. We shall only be liable for damages which are not damages to life, body or health if they are due to intent or gross negligence on the part of one of our legal representatives or vicarious agents.
2. This also applies in particular to damage to items of the customer or third parties and to financial losses arising as a result of defects in the goods delivered by us. Furthermore, for the consequences of errors which occur during the contract negotiations, in particular for the consequences of inadequate or incorrect advice given to the customer or operating instructions as well as for disadvantages which the customer suffers as a result of our breaching secondary contractual obligations, e.g. an obligation to advise or protect.
3. To the extent that liability is excluded, this shall also apply to the personal liability of our employees, workers, co-workers, legal representatives and vicarious agents.
4. Liability based on other regulations shall remain unaffected.
X. Reservation of Rescission
We have the right to withdraw from the contract if its fulfilment encounters technical difficulties which are insurmountable or the overcoming of which would require a disproportionately high effort compared to the value of the service to be rendered by us. In this case, the customer will be informed immediately and his advance performance will be returned.
XI. Place of performance
Place of performance for all obligations arising from the contractual relationship, in particular performance, subsequent performance, return of packaging and payment, shall be our place of business.
The exclusive place of jurisdiction for all disputes concerning and arising from the contract as well as for documentary proceedings, in particular bill of exchange and cheque proceedings, shall be our place of business. However, we shall also have the right to sue the customer at the court having jurisdiction for his place of business.
XIII. choice of law
In the case of foreign business transactions, the entire contractual relationship shall be subject to the law of the Federal Republic of Germany, unless another legal system is mandatorily applicable. If the law of the Federal Republic of Germany is not mandatory and if the contractual partner is domiciled in a country in which the uniform UN Convention on Contracts for the International Sale of Goods applies, the UN Convention on Contracts for the International Sale of Goods is to be applied under Consideration of the agreements in the contract and these General Terms and Conditions. For other contracting parties, the law of the court seised shall apply in addition to the agreements of the contract and these General Terms and Conditions.
XIV. partial invalidity
Should individual provisions of these General Terms and Conditions, for whatever reason, be or become invalid, this shall not affect the validity of the remaining provisions.