General Terms and Conditions of Tool Delivery
- The original German text shall be the governing version. -
1. General, Scope
1.1 All performances relating to tool delivery shall take place according to these general conditions for tool delivery (hereinafter referred to as “conditions”). We oppose any deviating regulations, in particular contrary terms and conditions of the customer except in cases where we have expressly accepted these terms and conditions in writing. Our conditions apply even if we execute the delivery to the ordering party in the knowledge of contradicting conditions of the ordering party or conditions which differ from ours.
1.2 Our conditions apply only to companies in the context of § 310 para. 1 of the German Civil Code (BGB) and, in the case of current business relationships, for all future transactions with the ordering party.
2. Offer and Order, Reservation of Right of Modification and Copyright
2.1 Unless otherwise expressly described by us as binding, documents such as images, drawings and dimensions, particularly in print media and online on our website www.dehn.de, are binding only in approximate terms.
2.2 If our order confirmation contains reasonable additions, limitations or other changes with respect to the order, unless the ordering party objects immediately or at the latest within three working days since entry of the order confirmation, the ordering party’s consent shall be assumed.
2.3 We reserve the right to make technical changes to the performances to which we have committed, where such changes are in the interests of technical progress or are unavoidable on the basis of other circumstances and are reasonable for the ordering party.
2.4 We retain ownership and copyright rights to images, drawings, calculations and other documents, particularly tools, moulds, patterns, models, profiles, processes and programs unless otherwise agreed. Third parties may not be given access to the same without our express permission in writing and they may not be used for any other than the contractually agreed purposes.
3. Scope of Delivery
3.1 For us, the written order confirmation is binding for the scope and content of the delivery. The delivery date starts with the dispatch of the written order confirmation but not before the provision of the documents, approvals, releases or provisions (tools) to be procured by the ordering party and before the receipt of an agreed payment instalment.
3.2 Delivery dates/manufacturing deadlines are approximate and non-binding. Binding delivery dates/manufacturing deadlines are considered to have been agreed only when expressly confirmed by us in writing.
3.3 The delivery dates/manufacturing deadlines shall be extended by a reasonable proportion in the event of delayed provision of required documents on the part of the ordering party, in the context of worker’s disputes, particularly strike and lockout and in the event of unforeseen obstacles which lie outside our sphere of influence. This applies equally when our subcontractors are subject to the circumstances described above. The aforementioned circumstances cannot be held to be our fault if they arise during a pre-existing delay. We shall inform the ordering party of the start and end of these kinds of obstacles.
3.4 The delivery period shall be deemed to have been observed if the item to be delivered has been dispatched from the works or the customer has received notification of readiness for dispatch by the time the period expires. If the shipping is delayed at the request of the ordering party we are entitled to invoice 0.5 % of the invoice amount for the costs of storage, starting two weeks after the notification of readiness for dispatch. The orderer bears the burden of proof of a lesser damage.
4. Prices and Payment
4.1 All prices apply ex-works excluding packaging and dispatch plus V.A.T. at the prevailing rate.
4.2 Unless otherwise agreed, payment shall be by bank transfer and free from deduction.
- 1/3 instalment after the order confirmation
- 1/3 after the initial sample
- 1/3 after release
- Invoices for repairs and labour and substitute deliveries shall be payable within 14 days of the receipt of the invoice, without deduction.
4.3 The ordering party has no right of retention. Offsetting of payments against amounts receivable of the ordering party is not allowed unless the claims for the offsetting have been legally set and are undisputed.
4.4 Checks and bills of exchange are accepted only in the interests of settlement. All ensuing costs shall be paid by the ordering party.
5. Transfer of Risk
5.1 Shipping and carriage at the risk of the ordering party. The risk transfers at the latest with the dispatch of the delivery components to the ordering party, including in the case of part-deliveries. At the request and costs of the ordering party we shall arrange transport insurance.
5.2 If shipping is delayed as a result of circumstances for which the ordering party is responsible, the risk is transferred to the ordering party from the day of readiness for dispatch.
6. Retention of Title
6.1 We retain the title to all goods supplied (conditional goods) until settlement of all claims, particularly any outstanding balances arising in the context of the business relationship. The same applies for future claims, e.g. from changes in acceptance and also if payments are made on specially designated claims and claims which are unilaterally established by the liquidator by way of the choice of settlement.
6.2 Processing and treatment of the conditional goods for us as the manufacturer shall occur without obligation to us in accordance with § 950 of the German Civil Code (BGB). The processed and treated goods are conditional goods in terms of no. 6.1. In the event of treatment, connection and mixing of the conditional goods with other goods on the part of the purchaser, we retain co-ownership of the new item proportionally in terms of the invoice value of the conditional goods compared to the invoice value of the other goods used. If our ownership is invalidated by connection or mixing, the ordering party shall transfer the ownership it has assumed to the new status or to the item pro rata and shall keep the ownership free of charge for us. Our co-ownership right shall apply as conditional goods in terms of no. 6.1.
6.3 The ordering party may only resell the conditional goods in the normal course of business in accordance with his normal general terms and conditions and as long as it is not in default, provided that the accounts receivable from the resale are transferred to us in accordance with nos. 6.4 and. 6.5.
6.4 The claims of the ordering party from the resale of the conditional goods shall be assigned to us now, together with all securities acquired by the ordering party for the assigned claims. These serve as security in the same manner as the conditional goods. Should the conditional goods be resold together with goods not supplied by us by the ordering party, then the amounts receivable from the resale shall be assigned to us in the relationship of the invoice value of the conditional goods compared to the invoice value of the other goods with the resale of goods to which we have co-ownership rights pursuant to no. 2, a portion of the accounts receivable shall be assigned to us corresponding to our co-ownership share.
6.5 The ordering party is entitled to collect accounts receivable from the resale of the conditional goods. The ordering party is obliged to transfer to us the invoice value of the conditional goods for which payment has been collected. Such amounts are payable to us as soon as collected from the purchaser. The collection authority is invalidated in the event of our withdrawal, no later than in the event of payment default, non-redemption of a bill of exchange or application for the opening of insolvency proceedings. We shall exercise our right to withdrawal only if it becomes evident after the conclusion of the contract that our payment claim from this or other contracts with the ordering party is threatened by inability to pay on the part of the ordering party. At our request the purchaser is obliged to instruct its recipient immediately of the assignment and to give us the required information and documents to collect payment ourselves. The ordering party is permitted no further assignment of the amounts payable from the resale unless in relation to assignments typical of general factoring which have been notified to us and where the revenue out of such factoring exceeds the value of our secured claims. Our claim falls due immediately upon crediting of the factoring proceeds.
6.6 The ordering party shall notify us of an attachment or other encroachments by third parties without delay. The ordering party shall bear all costs incurred on our part for nullifying the seizure and recovering the item purchased, if payment cannot be collected from third parties.
7. Security Deposit
7.1 We are entitled to demand security from the ordering party for the performances to be provided, including associated additional claims. The security payment shall be paid via an irrevocable, time-unlimited, unconditional, directly enforceable and absolute bank guarantee from a major EU bank, building society or credit institution.
7.2 We are entitled to demand the security in such a manner that it provides the ordering party a reasonable period of grace with the explicit reminder that performance will be refused upon expiry of that period of time.
7.3 Security of up to the expected contract value can be requested, including against additional claims. This shall be set at 10 % of the remuneration entitlement. If the ordering party fails to provide the security within a set period, we reserve the right to cancel the contract on serious grounds, having notified the ordering party in advance of this right. If we claim for damages along with the expenses arising until the cancellation, the ordering party is entitled to estimate an amount of 20 % of the agreed net wage for this. The burden of proof of lesser damage lies with the ordering party. We are obliged to prove greater damage.
8. Liability for Material and Title Defects, Recourse of the Customer
8.1 We shall assume liability without restriction in compliance with the statutory regulations, provided that the customer asserts claims for damage compensation, which are attributable to wilful intent or gross negligence, including wilful intent and gross negligence on the part of our representatives or vicarious agents.
8.2 We shall assume liability without restriction in compliance with the statutory regulations, in case of culpable injury to life, limb or health; this shall also apply to the mandatory liability under the Product Liability Act.
8.3 In so far as a defect of the subject of the contract exists for which we are liable, we shall at our discretion either remedy the defect or deliver a non-defective object of the contract (subsequent performance).
8.4 If said subsequent performance should fail or if it is unreasonable for the customer, or if we refuse seriously and conclusively to do so or if we have delayed rectification unreasonably or if other circumstances prevail, which justify immediate withdrawal, taking account of the interests on both sides, then the customer shall be entitled to reduce the contract price or to withdraw from the contract and/or to demand damage compensation. In the event of only a slight infringement of contract, in particular in the event of only slight defects, the customer shall not be entitled to withdrawal.
8.5 Insofar as not otherwise specified above, liability shall be excluded.
8.6 The limitation period for claims based on defects, - subject to 8.1 and 8.2 - shall be 12 months from the transfer of risk.
8.7 Claims for recourse by the customer in accordance with section 445a BGB (German Civil Code) shall also be subject to a limitation period of 12 months from the beginning of the statutory limitation period, provided that the last contract in the supply chain is not a purchase of consumer goods.
8.8 Numbers 8.1 to 8.7 shall not affect the rights of the customer, if we have fraudulently concealed a defect or have assumed a guarantee for quality.
9. Overall Liability
9.1 Any further liability for compensation than that provided in number 8 - irrespective of the legal nature of the asserted claim - shall be excluded. This shall in particular apply to damage claims for liabilities resulting from culpa in contrahendo, for other breaches of duty or for tortious claims for damage compensation acc. to § 823 BGB (German Civil Code).
9.2 Limitation according to 9.1 shall also apply, insofar as the customer claims reimbursement for useless expenditures instead of claiming compensation for damages in place of performance.
9.3 As far as the liability for compensation against us is excluded or restricted, this shall also apply with regard to the personal liability for damages of our employees, workers, representatives and vicarious agents.
10. Use and Protection of Customer Data
We shall handle the data of the ordering party relating to the business undertaken with said ordering party in accordance with the German Federal Data Protection Act.
11. Applicable Law, Jurisdiction
11.1 German law shall apply to the mutual obligations under the contract, their conclusion, interpretation and implementation and to all contractual and business relationships resulting therefrom. Application of the UN Convention on Contracts for the International Sale of Goods (UN Sales Convention) and the associated laws of the Federal Republic of Germany shall be ruled out.
11.2 The legal venue for supply, payment and all obligations including from bills of exchange and cheques – in as much as the ordering party is a merchant, legal entity of public law or of special fund under public law – is exclusively Nuremberg.
12. V.A.T. Identification Number
VAT ID No. DE 133251475
DEHN + SÖHNE GmbH + Co.KG.
Nuremberg – Neumarkt
Status January 2018