General Terms and Conditions of Sale and Delivery of Dreh-und Verzahnungswerk GmbH
Status 01.01.2022
1.
Our deliveries and services are provided exclusively on the basis of these terms and conditions. The customer's terms and conditions of business and purchase shall only be effective if we recognise them in writing. Our offers are non-binding, they are merely invitations to submit offers. All contracts and agreements, including those with our employees and representatives, shall only be binding on us once we have confirmed them in writing or issued an invoice. This also applies to amendments to the agreed formal requirement.
2.
Insofar as we manufacture according to customer drawings, samples and other information and instructions of the customer, we assume no warranty and no liability for the functionality of the product and for other defects, insofar as these circumstances are based on customer information and instructions. The customer shall indemnify us against any claims by third parties, including product liability claims against us for damage caused by the goods, unless we have caused the damage wilfully or through gross negligence. The customer warrants to us that the manufacture and delivery of the goods produced according to his specifications and instructions does not infringe any third-party property rights. In the event that industrial property rights are asserted against us, we shall be entitled to withdraw from the contract after hearing the customer without legal examination of any third-party claims, unless the third party withdraws the assertion of the industrial property rights within eight days by written declaration to us. The customer shall compensate us for any damages incurred as a result of the assertion of the industrial property rights. In the event of withdrawal, the work performed by us to date shall be remunerated. Further rights under the statutory provisions shall remain unaffected.
The moulds, tools and design documents manufactured by us for the execution of the order are our exclusive property. The customer shall not be entitled to any claims in this respect, even if he has contributed to the costs of the production of moulds, tools and design documents, unless expressly agreed otherwise.
3.
Unless otherwise agreed, our prices are ex works Markranstädt and do not include any packaging. The value added tax applicable on the day of delivery shall be added to our prices.
The customer must collect the ordered goods from our factory in Markranstädt immediately upon receipt of a corresponding notification of availability (obligation to collect). The risk shall pass to the customer upon receipt of the notification of readiness for collection.
4.
Provision periods and deadlines are only approximate unless we have expressly designated them as binding in writing. Provision periods shall commence upon receipt of our order confirmation, but not before clarification of all execution details, and shall be understood to be ex works in Markranstädt. Cancellation by the customer is only possible after setting a reasonable grace period. Claims for damages and reimbursement of expenses - for whatever reason - shall only exist in accordance with the provisions in Clause 9.
Events for which we are not responsible within the scope of a normal operational risk and which make it significantly more difficult or impossible for us to provide the goods shall entitle us to postpone the provision of the goods for the duration of the hindrance and a reasonable start-up period or to withdraw from the contract due to the part not yet fulfilled.
The buyer/client may demand a declaration from us as to whether we intend to provide the goods within a reasonable period of time or whether we intend to withdraw from the contract. If we do not make a declaration, the buyer/client may withdraw from the contract. The declaration made by us to the buyer/client shall be deemed sufficient proof that we are prevented from providing the goods.
In the event of industrial disputes, strikes and lockouts, official orders, difficulties in procuring materials, rejects or reworking, operational disruptions, machine breakdowns and staff shortages, as well as the occurrence of unforeseen events over which we have no control, the delivery period shall be extended in accordance with the duration of these events. This shall apply accordingly should one of the aforementioned circumstances occur at one of our suppliers.
5.
Unless otherwise agreed, payments are to be made within 10 days of receipt of the invoice without discount. In the case of non-cash payments, the date of the credit note shall be deemed to be the date of receipt of payment. Incoming payments shall always be credited first to costs, then to interest and then to the oldest debt.
Cheques and bills of exchange are only accepted on account of payment. Payment by bill of exchange is subject to prior separate and written agreement, whereby all bill of exchange costs shall be borne by the customer and no discount can be granted. The customer shall not be entitled to a right to refuse performance or a right of retention - irrespective of the legal grounds - unless we have previously recognised his claim in writing or this claim has been legally established.
Offsetting on the part of the customer is only possible if his claim has been legally established or is undisputed or if it has been recognised by us in writing.
6.
The goods shall remain our property until all our claims from all transactions with the customer have been satisfied - current account clause - and bills of exchange or cheques given in payment have been honoured by the customer.
The handling and processing of the reserved goods shall be carried out for us as the manufacturer within the meaning of § 950 BGB, without any obligation on our part. If our reserved goods are to be regarded as the main item or the main item is the property of the customer, ownership of the new item shall pass to us in full when it is created. In other cases, we shall acquire co-ownership of the new item in the ratio of the sales value of our reserved goods to the other goods used for the new item at the time of processing, mixing, combining or blending. The customer shall hold our property or co-property in safekeeping for us free of charge; it shall be treated as goods subject to retention of title.
Our goods may not be pledged or assigned as security without our prior consent before the transfer of ownership. Furthermore, the assertion of third-party rights to the goods or seizures must be notified to us immediately and we must be provided with all information and documents necessary for an intervention, otherwise the customer must bear our loss. In the latter case, all our claims against the customer shall also become due immediately.
The customer is authorised to sell or use our reserved goods in the ordinary course of business, provided that a subrogation in accordance with Clause 7 actually takes place. This entitlement shall lapse if the customer fails to meet his payment obligations to us punctually or if cheques or bills of exchange are protested or if he suspends his payments. In this case, we shall be entitled to temporarily take back the goods at the customer's expense and, after issuing a reminder, to realise the goods at our discretion. We shall then issue the customer with a corresponding credit note.
7.
If our goods are sold prior to payment of our claim, the customer shall be obliged to reserve our rights of ownership vis-à-vis his customer until the goods have been paid for in full by his customer. The claim against the customer arising from the resale is hereby assigned to us, as are any other ancillary or security rights of the customer arising from the sale and any claims for compensation in the event of damage to or destruction of our reserved property, including the sum insured in its place. We hereby accept this assignment. Insofar as our co-ownership is sold, the assignment of the claims shall extend to the amount corresponding to our share value.
Upon request, the customer must inform us of his customers and notify them of the assignment and hand over to us all documents required to assert the rights.
As long as the customer fulfils his contractual obligations to us punctually, he is authorised to collect the assigned claims. He must keep the amounts collected for us separately and transfer them to us immediately as soon as and insofar as our claims become due. The authorisation shall expire in the event of a cheque or bill protest by the customer or final suspension of payment by the customer. The customer shall bear the costs of any intervention against third parties and advance them on request.
If our security through the retention of title and the advance assignment exceeds the claims to be secured by more than 20 %, we are obliged to release paid deliveries at our discretion at the customer's request. Upon settlement of all our claims against the customer, assigned claims shall be transferred to the customer.
8.
Complaints relating to obvious defects in the scope or quality of our goods that are recognisable on careful inspection must be received by us in writing without delay, at the latest within a preclusive period of eight days after collection/delivery of the goods by the customer. Minor deviations in the dimensions and designs within the technically specified tolerances do not justify complaints.
In the event of a justified and timely notification of defects, we shall remedy the defect by way of subsequent fulfilment at our discretion by eliminating the defect, delivering a defect-free item or granting a credit note for the calculated reduced value.
We are entitled to refuse subsequent fulfilment in accordance with the statutory provisions. In the event of refusal of subsequent fulfilment, failure or its unreasonableness for the customer, the customer shall be entitled to withdraw from the contract in accordance with the provisions of the following sentences. The customer is only entitled to withdraw from the contract - insofar as withdrawal is not excluded by law - after the unsuccessful expiry of a reasonable deadline set by him for subsequent fulfilment, unless the deadline would be dispensable according to the statutory provisions (§§ 281 Para. 2, 323 Para. 2, 440, 441 Para. 1 BGB).
In the event of cancellation, the customer shall be liable for deterioration, loss and unused benefits for any negligent and intentional fault. The provisions in Clause 9 shall apply to any claims for damages and reimbursement of expenses by the customer.
In the case of fraudulent concealment of a defect or in the case of the assumption of a guarantee of quality of the item at the time of the transfer of risk within the meaning of § 444 BGB (declaration by the seller that the object of purchase has a certain quality at the time of the transfer of risk and that the seller is responsible for all consequences of its absence regardless of fault), the rights of the customer are based exclusively on the statutory provisions.
We are not obliged to provide subsequent fulfilment if interventions or changes have been made to the goods without our consent, unless the customer can prove that the defect was not caused by these interventions or changes.
The limitation period for claims for defects for an item that has been used for a building in accordance with its normal use and has caused its defectiveness is two years, otherwise it is one year.
9.
In the event of a pre-contractual, contractual or non-contractual breach of duty, including in the event of defective delivery, tort and producer's liability, we shall only be liable for damages and reimbursement of expenses - subject to further contractual or statutory liability requirements - in the event of intent, gross negligence and in the event of a slightly negligent breach of a material contractual obligation (contractual obligation, the breach of which jeopardises the achievement of the purpose of the contract). However, our liability - except in the case of wilful intent - shall be limited to the typical damage foreseeable at the time of conclusion of the contract. The assertion of useless expenses by the purchaser is not permitted.
Apart from the breach of essential obligations, our liability for slight negligence is excluded, but in any case limited to the amount of the purchase price or order volume.
A claim by the customer or a third party for payment of a contractual penalty is excluded.
In the event of slight negligence, we shall only be liable for damages caused by delay in the amount of up to 5 % of the purchase price or order volume agreed with us.
The aforementioned exclusions and limitations of liability shall not apply in the event of the assumption of a guarantee for the quality of the item within the meaning of § 444 BGB in the event of fraudulent concealment of the defect, in the event of damage due to injury to life, limb or health and in the event of mandatory liability under the Product Liability Act.
All claims for damages against us, irrespective of the legal grounds, shall expire at the latest one year after collection of the item by the customer or delivery to the customer, in the case of tortious liability from knowledge or grossly negligent ignorance of the circumstances giving rise to the claim and the person liable to pay compensation. This provision shall not apply in the case of liability for intent or in the case of the assumption of a guarantee for the quality of an item, in the case of fraudulent concealment of a defect and in the case of damage to life, limb or health and in the case of mandatory liability under the Product Liability Act. Any shorter limitation periods shall take precedence.
10.
We are authorised to process and store the data about the buyer/client received with regard to the business relationship or in connection with it, regardless of whether these originate from the buyer/client itself or from third parties, in accordance with the Federal Data Protection Act.
11.
The place of fulfilment is Leipzig. The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Leipzig. However, we are also entitled to sue the customer at his place of business.
German law shall apply exclusively. The application of international sales laws is excluded.
Should individual provisions of our terms and conditions be invalid for any reason, this shall not affect the validity and binding nature of the other provisions. Rather, the customer agrees that the invalid provision shall be replaced by a valid provision that comes as close as possible to the economic purpose of the invalid provision.
