GENERAL TERMS AND CONDITIONS OF DOT GMBH & CO KG
§ 1 Scope of application, form
(1) These General Terms and Conditions apply to all our business relations with our customers insofar as they are entrepreneurs (§ 14 German Civil Code), legal entities under public law or special funds under public law.
(2) The General Terms and Conditions apply in particular to contracts for the sale and/or delivery of movable goods ("goods"), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 651 German Civil Code). Unless otherwise agreed, the General Terms and Conditions in the version valid at the time of the buyer's order or, in any case, in the version most recently provided to the buyer in text form shall also apply as a framework agreement to similar future contracts without us having to refer to them again in each case.
(3) Our General Terms and Conditions shall apply exclusively. Any deviating, contradictory or supplementary General Terms and Conditions from the customer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This approval requirement applies in any case, e.g. even if we carry out the delivery to the buyer without reservation in the knowledge of the buyer's general terms and conditions.
(4) Individual agreements made in individual cases (including collateral agreements, supplements, and amendments) shall take precedence over these General Terms and Conditions. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
(5) Legally relevant declarations and notifications on the part of the buyer in reference to the contract (e.g. deadline, notice of defects, withdrawal or reduction) must be made in text form (e.g. letter, email, fax). Statutory formal requirements and further verification, in particular in the event of doubts about the legitimacy of the person making the declaration, remain unaffected.
(6) References to the validity of statutory provisions are for the purposes of clarification only. Even without such clarification, the statutory provisions shall apply insofar as they are not directly amended or expressly excluded in these General Terms and Conditions.
§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This also applies if we have provided the buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, cost estimates), other product descriptions or documents – also in electronic form – to which we reserve property rights and copyright.
(2) The ordering of the goods by the buyer is considered to be a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 2 weeks of its receipt by us.
(3) The acceptance can be declared either in text form (e.g. by order confirmation) or by delivery of the goods to the buyer.
§ 3 Delivery period and default of delivery
(1) The delivery period shall be agreed individually or specified by us upon acceptance of the order. If this is not the case, it shall be approx. 4 weeks from the conclusion of the contract.
(2) If we are unable to comply with binding delivery periods for reasons for which we are not responsible (non-availability of the service), we shall inform the buyer of this immediately and at the same time inform him/her of the expected new delivery period. If the service is not available within the new period either, we are entitled to withdraw from the contract in whole or in part; we will reimburse any consideration already provided by the buyer immediately. A case of non-availability of a service in this sense is especially the non-timely self-delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in an individual case.
(3) The occurrence of a default of delivery on our part shall be governed by the statutory provisions. In each case, a reminder is required from the buyer. If we are in default of delivery, the buyer may demand lump-sum compensation for any damage to him/her caused by the default of delivery. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but in total no more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the buyer has not incurred any damage at all or only a significantly lower damage than the above lump sum.
(4) The rights of the buyer according to § 8 of these General Terms and Conditions and our legal rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 4 Delivery, transfer of risk, acceptance, default of acceptance
(1) The place of performance for the delivery and any subsequent performance is our registered office in Bünde (Westphalia). Delivery at the request of the buyer to a place other than the place of performance (mail order purchase) shall be made within Germany at our expense by shipping routes and transport persons selected by us.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon delivery. In the case of mail order purchases, the risk of accidental loss and accidental deterioration of the goods and the risk of delay shall pass to the buyer upon delivery of the goods to the forwarding agent, carrier or other person or institution designated to perform the shipment. Insofar as acceptance is to be carried out, this is authoritative for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly to an agreed acceptance. Handover or acceptance are equivalent if the buyer is in default of acceptance.
(3) If the buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we will charge a lump-sum compensation to the amount of 0.5% of the net price (delivery value) for each completed calendar week, but no more than 5% of the delivery value of the goods. The calculation of the compensation begins with the expiry of the delivery period or – in the absence of a delivery period – with the notification that the goods are ready for dispatch. The proof of higher damage and our statutory claims (in particular reimbursement of additional expenses, appropriate compensation, termination) remain unaffected; however, the lump sum shall be set off against further monetary claims. The buyer shall be entitled to prove that we have not incurred any damage at all or only a significantly lower damage than the above lump sum.
§ 5 Prices, terms of payment, set-off
(1) Unless otherwise agreed in individual cases, our prices valid at the time of the conclusion of the contract shall apply, including delivery within Germany plus statutory value added tax. Additional costs for transport and/or customs duties may be incurred for deliveries outside Germany.
(2) The purchase price is due and payable within 14 days from invoicing and delivery or acceptance of the goods. However, within the scope of an ongoing business relationship, we are also entitled at any time to make a delivery in whole or in part against advance payment only. We shall declare any relevant reservation at the latest upon order confirmation.
(3) If the above payment period expires without result, the buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to assert further damages caused by default. Our claim to maturity interest against merchants (§ 353 German Commercial Code) shall remain unaffected.
(4) The buyer is only entitled to set-off or retention rights to the extent that his/her claim is legally established or undisputed. The buyer's rights arising from product defects, in particular in accordance with § 7 para. 6 sentence 2 of these General Terms and Conditions, shall remain unaffected.
(5) If it becomes apparent after conclusion of the contract (e.g. through an application for the opening of insolvency proceedings) that our claim to the purchase price is endangered by the buyer's lack of ability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 German Civil Code). In the case of contracts for the manufacture of non-fungible goods (custom-made products), we can declare withdrawal immediately; the statutory regulations regarding the dispensability of setting a deadline shall remain unaffected.
§ 6 Retention of title
(1) Until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims), we reserve title to the goods sold.
(2) The goods subject to retention of title may neither be pledged to third parties nor transferred by way of security until the secured claims have been paid in full. The buyer must inform us immediately in text form if an application is made for the opening of insolvency proceedings or if third parties gain access to the goods belonging to us (e.g. seizures).
(3) If the buyer acts in breach of contract, in particular if the purchase price due is not paid, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand to return goods does not simultaneously include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the buyer does not pay the purchase price due, we may only assert these rights if we have previously set the buyer a reasonable deadline for payment without success or if such setting of a deadline is dispensable according to the statutory provisions.
(4) Until revocation in accordance with lit. c), the buyer is entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following additional provisions shall apply.
a) The retention of title extends to the full value of the products resulting from the processing, mixing or combination of our goods, whereby we shall be deemed the manufacturer. If third parties' rights of ownership remain in force in the event of the processing, mixing or combination with goods of third parties, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Furthermore, the same applies to the product as to the goods delivered under retention of title.
b) The buyer hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or product in total or to the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the buyer mentioned in paragraph 2 shall also apply with regard to the assigned claims.
c) In addition to us, the buyer shall remain entitled to collect the claim. We undertake not to collect the claim as long as the buyer fulfills his/her payment obligations to us, there is no deficiency in his/her ability to pay and we do not assert the retention of title by exercising a right according to paragraph 3. If this is the case, however, we can demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents, and informs the debtors (third parties) of the assignment. Furthermore, we shall be entitled in this case to revoke the authority to further sell and process the goods subject to retention of title.
d) If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the buyer.
§ 7 Claims for defects by the buyer
(1) Unless otherwise provided for below, the statutory provisions shall apply to the rights of the buyer in the event of material defects and defects of title (including wrong or short delivery, improper assembly, and faulty assembly instructions). The special statutory provisions shall remain unaffected in the case of final delivery of the goods to a consumer (supplier recourse according to §§ 478, 479 German Civil Code).
(2) The basis of the liability for defects is first and foremost the agreement reached on the quality of the goods. All product descriptions which are the subject of the individual contract or which have been made public by us shall be deemed to be an agreement on the quality of the goods.
(3) In the absence of any agreed specification of the quality of the goods, the statutory provisions must be applied to assess whether there is a defect or not (§ 434 para. 1, p. 2 and 3 German Civil Code). However, we assume no liability for public statements of third parties (e.g. advertising statements).
(4) The buyer's claims for defects presuppose that he/she has complied with his/her statutory duty to examine and give notice of defects (§§ 377, 381 German Commercial Code). If a defect becomes apparent upon delivery or a hidden defect after proper inspection or at any later time, we must be notified of this in text form immediately, but at the latest within 5 working days. If the buyer neglects the proper inspection and/or notice of defects, our liability for the defect not notified or not notified in time or not properly is excluded according to the statutory provisions.
(5) If the delivered item is defective, we may initially choose whether we provide subsequent performance by eliminating the defect (rectification) or by delivering a defect-free item (replacement). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
(6) We are entitled to make the subsequent performance owed dependent on whether the buyer pays the purchase price due. However, the buyer is entitled to retain a reasonable part of the purchase price relative to the defect.
(7) The buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement, the buyer must return the defective item to us in accordance with the statutory provisions. Subsequent performance does not include the dismantling of the defective item or its reinstallation if we were not originally obliged to install it.
(8) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor, and material costs (not dismantling and installation costs), if a defect actually exists. Otherwise, we can demand reimbursement from the buyer of the costs incurred as a result of the unjustified request for rectification of defects (in particular inspection and transport costs) unless the lack of defects was not recognizable to the buyer.
(9) Only in urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, shall the buyer have the right to remedy the defect him/herself and to demand compensation from us for the expenses objectively required for this purpose. We are to be informed of any such self-remedy immediately, if possible in advance. The right of self-remedy shall not exist if we would be entitled to refuse a corresponding subsequent performance.
(10) If the subsequent performance has failed or a reasonable period of time to be set by the buyer for the subsequent performance has expired without success or is dispensable according to the statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of an insignificant defect.
(11) Even in the case of defects, the buyer's claims for damages or compensation for futile expenditure shall only exist in accordance with § 8 and shall be excluded in all other respects.
§ 8 Other liability
(1) Unless otherwise stated in these General Terms and Conditions, we shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) We shall be liable for damages – irrespective of the legal basis v within the scope of liability for culpable intent and gross negligence. In the case of simple negligence, we shall be liable subject to a milder scale of liability according to statutory provisions (e.g. for care in our own affairs) only
a) for damages resulting from injury to life, body or health
b) for damages arising from the not inconsiderable breach of a material contractual obligation (obligation the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 shall also apply to breaches of duty by or in favor of persons whose fault we are responsible for according to statutory provisions. They shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the buyer under the Product Liability Act.
(4) Due to a breach of duty which does not consist of a defect, the buyer may only withdraw or terminate the contract if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 651, 649 German Civil Code) is excluded. Otherwise, the legal requirements and legal consequences apply.
§ 9 Limitation period
(1) Notwithstanding § 438 (1) no. 3 German Civil Code, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) If the goods are a building or an object that has been used for a building in accordance with its normal use and has caused its defectiveness (building material), the limitation period in accordance with the statutory regulation is 5 years from delivery (§ 438 para. 1 no. 2 German Civil Code). Other statutory special regulations on the statute of limitations (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 479 German Civil Code) shall also remain unaffected.
(3) The foregoing limitation periods of the law of sale shall also apply to contractual and non-contractual claims for damages of the buyer which are based on a defect of the goods unless the application of the regular statutory limitation period (§§ 195, 199 German Civil Code) would lead to a shorter limitation period in individual cases. However, claims for damages of the buyer according to § 8 para. 2 sentence 1 and sentence 2(a) and according to the Product Liability Act shall become statute-barred exclusively according to the statutory periods of limitation.
§ 10 Choice of law and place of jurisdiction
(1) The contractual relationship between us and the buyer shall be governed by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the buyer is a merchant as defined in the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive, including international, place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Bünde (Westphalia). The same applies if the buyer is an entrepreneur as defined in § 14 German Civil Code. Priority statutory provisions, in particular regarding exclusive responsibilities, shall remain unaffected.
DOT GmbH & Co. KG, Bünde (Westphalia)