General Terms and Conditions
1.Validity
1.1 The present Terms and Conditions
shall apply only to supplies of machines and machine spare parts
("Deliveries") which are made on the basis of a contract
concluded between us and a Business Customer ("Customer").
1.2 Any diverging terms and conditions
shall not apply unless we have expressly agreed to them in
writing.
2. Offers
2.1 The description of the quality of our
Deliveries is exclusively and conclusively defined in the
respective Technical Specification ("TS").
2.2 We reserve all ownership and
intellectual property rights in illustrations, drawings, plans
and construction or engineering documents, etc. relating to the
offer.
2.3 Any pre-contractual services during
the offer stage such as tools, working equipment etc. shall be
billed for, even where no contract is subsequently entered into.
2.4 Our offers shall be binding and firm
for 90 calendar days from the date of the offer, in case no
offer validity is indicated in the offer.
3. Terms of Delivery / Transfer of
Risk
3.1 Prices shall be Ex Works
Rednitzhembach according to Incoterms 2000 ("Place of
Delivery"), plus packaging.
3.2 Prices are net prices in EUR, plus
the current sales tax in force at the time of Delivery without
further deductions.
3.3 For Deliveries less than EUR 35.00
net, we charge a flat rate of EUR 35.00 net.
3.4 Partial Deliveries shall be
permissible where they can reasonably be expected of the
Customer. 3.5 The risk shall transfer to the
Customer at the Place of Delivery. This shall apply to free
Deliveries as well as if a Delivery is dispatched or collected.
4. SMB-Dahms's Right to make its own
Deliveries
In the event that the contractually
agreed Delivery is not available because we have not received
deliveries from our own suppliers or our delivery stock is
depleted, we shall be entitled to make a Delivery which is
equivalent in quality and price to the contractually agreed
Delivery. If this is not possible, we may withdraw from the
Contract.
5. Terms of Payment
5.1 Invoices shall be payable immediately
and without any deduction, subject to the terms and conditions
of payment contained in the respective offer. Where the offer
does not contain any terms of payment, the following shall
apply: 40% down payment upon receipt of the order confirmation
60% once the Customer has been notified that the Deliveries are
ready for dispatch.
5.2 Invoices for spare parts shall be
payable in full upon receipt.
5.3 The Customer may only set off those
claims which are undisputed or have been finally determined in a
legally binding manner.
6. Delivery Dates
6.1 Observance of the stipulated time for
Delivery is conditional on the timely receipt of all documents,
necessary permits and approvals, especially of plans to be
provided by the Customer as well as fulfillment of the agreed
terms of payment and other obligations by the Customer. Unless
these conditions are fulfilled on time, the time for Delivery
shall be extended accordingly; this shall not apply if we are
responsible for the delay.
6.2 If non-observance of the time for
Delivery is due to force majeure such as mobilization, war, riot
or similar events e. g. strike or lock-out, the time limits
shall be extended appropriately.
6.3 The Seller assumes no liability for
delivery delays arising from export restrictions or if delivery
is not at all possible due to said export restrictions. If, at
the conclusion of contract, delivery cannot be carried out as
specified in the contract, the Seller can withdraw at any point
from the contract. The Seller is not obliged to pay compensation
or damages in this case.
6.4 In the event that we are responsible
for a delay of the Deliveries, and provided that the Customer
can establish credibly that he has suffered a loss for such
delay, the Customer may claim agreed damages of 0.5% for every
completed calendar week of delay but in no event shall the
aggregate of such damages exceed a total of 5% of the net price
for that part of the Deliveries which because of the delay could
not be put to the intended use in terms of time or contract by
the Customer.
6.5 Claims by the Customer for damages
due to a delay of Delivery as well as claims for damages for
non-performance which exceed the limits specified in 6.3 shall
be excluded in all cases of delayed Delivery even after expiry
of the time limit for Delivery fixed by the Customer. This
exclusion shall not apply in cases of willful misconduct or
gross negligence or bodily injury where liability is mandatory.
6.6 The Customer shall only be entitled to withdraw from
the Contract to the extent that we are solely liable for the
delay in Delivery and the Customer has set us a time limit
within which to perform the Delivery and states that it will
cease to accept the Delivery after expiry of the time limit and
such time limit has expired. This shall not imply a change in
the burden of proof to the detriment of the Customer.
6.7 The Customer shall upon request
within a reasonable time limit state whether it shall withdraw
from the Contract due to the Delivery being delayed or insist on
a Delivery.
7. Retention of Title
7.1 The items delivered ("Secured Goods")
shall remain our property until each and every claim against the
Customer to which we are entitled under this business
relationship has been duly satisfied. If the value of all our
security interests against the Customer exceeds the value of all
our secured claims by more than 20%, we shall release a
corresponding part of the security rights at the Customer's
request.
7.2 For the duration of the retention of
title, the Customer is prohibited from giving the Secured Goods
in pledge or as security. In case of a seizure of the Secured
Goods or other acts or interventions by third parties relating
to the Secured Goods, we shall be immediately informed thereof
in writing by the Customer.
7.3 The re-sale of the Secured Goods by
the Customer in the ordinary course of business shall only be
permissible to clients on condition that the Customer receives
payment from his client or retains title so that the property in
the Secured Goods is transferred to his client only after
fulfillment of the client's obligation to pay.
7.4 Our ownership in the Secured Goods
shall not be revoked during the processing and production of the
product at the Customer's premises for which the Secured Goods
are being used ("End Product"). Our ownership in the Secured
Goods shall continue in the End Product; we shall acquire joint
ownership in the End Product in the same share as the value of
the Secured Goods in proportion to the value of the End Product.
7.5 Upon conclusion of the Contract, the
Customer shall assign the claims owed to him from the resale or
processing of the Secured Goods against his clients in the same
amount as our claim against the Customer for the Delivery. Our
duty to release under 7.1 shall remain unaffected.
7.6 In the event that the Customer is in
breach of an obligation, in particular, a default of payment,
the following shall apply:
7.6.1 Following the expiry of a
reasonable time limit within which the Customer must rectify the
breach, we are entitled to withdraw from the Contract and to
take back the Secured Goods; the Customer is obliged to return
the Secured Goods to us. The legal rules which dispense of the
requirement to set a deadline shall remain unaffected.
7.6.2 The enforcement of a retention of
title and the taking back of the Secured Goods associated
therewith does not necessitate a withdrawal from this Contract
by us; the afore-mentioned actions or seizure of the Secured
Goods shall not constitute a withdrawal from the Contract by us,
unless expressly stated by us.
8. Material Defects
Our liability for material defects is
conclusively defined in the following provisions:
8.1 The quality of the Deliveries is
defined conclusively in the respective TS for the individual
delivery. We shall not be liable for material defects relating
to qualities not specifically mentioned in the TS.
8.2 In case of Deliveries which do not contain the
quality listed in the respective TS ("Material Defect") at the
time of transfer of risk, we shall, at our option, either repair
or re-deliver at no charge ("Subsequent Performance").
8.3 No new limitation period (8.4) shall
commence as a result of Subsequent Performance.
8.4 Claims for material defects shall
expire in twelve months. This shall not apply to the extent that
§§ 438 Para. 1 No. 2, 479 Para. 1 and 634a Para 1 No. 2 of the
German Civil Code prescribe longer time periods or in case of
bodily injury, willful misconduct, a grossly negligent breach of
duty by us or fraudulent concealment of a defect. The legal
rules relating to suspension of expiration of prescription,
suspension or re-commencement of the time limits shall remain
unaffected.
8.5 The Customer shall give us notice of
a defect in writing without undue delay.
8.6 If we shall not be given adequate
time and opportunity to carry out Subsequent Performance, we
shall have no liability for the material defect.
8.7 In the event that Subsequent
Performance fails, the Customer can – without prejudice to other
claims for damages (12.) – withdraw from the Contract or reduce
the remuneration.
8.8 Claims for defects shall not exist in
the event of an insignificant deviation from the agreed quality,
insignificant interference with use, natural wear and tear or
damages which arose after transfer of risk as a result of faulty
or negligent handling, excessive strain, unsuitable production
facilities or operating resources, or particular external
influences which are not assumed under the Contract.
8.9 Claims made by the Customer for
necessary costs such as transport, route, labour and material
costs incurred for the purposes of Subsequent Performance, shall
be excluded to the extent that the expenditure has increased due
to the Delivery being subsequently made to a place other than
the Place of Delivery.
8.10 The Customer shall only have a right
of recourse against us if the Customer has not entered into a
contract with its client which extends beyond the legal claims
for defects. For the scope of a claim for recourse by the
Customer against us pursuant to § 478 para. 2 of the German
Civil Code, 8.8 shall apply accordingly.
8.11 Claims by the Customer against us
for a material defect which are more extensive or different to
those claims set out in 8. are excluded. 12 shall apply to all
other claims for damages.
9. Intellectual Property Rights, Other
Defects of Title
9.1 Unless otherwise agreed, Deliveries
made by us in the Federal Republic of Germany shall be free from
intellectual property rights and copyright of third parties
("Intellectual Property Rights"). If a third party asserts
legitimate claims against the Customer due to an infringement of
an Intellectual Property Right by the Deliveries furnished by us
and used in conformity with the Contract, we shall be liable to
the Customer within the stipulated time limit in 8.4 as follows:
9.1.1 At our own option and expense, we
shall either obtain a right to use the Deliveries, modify the
Deliveries so as not to infringe Intellectual Property Rights or
replace the Deliveries. If this is not possible for us on
acceptable terms, the Customer shall have a right to withdraw
from the Contract or reduce the price. The provisions in 8.6 and
8.10 shall apply accordingly.
9.1.2 The fulfillment of the aforesaid
obligations shall be subject to the condition that the Customer
immediately notifies us in writing of the claims asserted by the
third party, that he does not acknowledge an infringement and
that all countermeasures and settlement negotiations are
reserved to us. If the Customer stops using the Deliveries to
reduce the damage or for other important reasons, he shall make
it clear to the third party that the suspended use does not mean
acknowledgement of an infringement of Intellectual Property
Rights.
9.2 Claims of the Customer shall be
excluded if he is liable for the breach of the Intellectual
Property Rights.
9.3 Claims of the Customer shall also be
excluded if the infringement of Intellectual Property Rights was
caused by specific demands of the Customer, by a use of the
Deliveries not foreseeable by us or by the Deliveries being
altered by the Customer or being used together with products not
provided by us.
9.4 The provision in 8. shall apply to
any other defects of title.
9.5 Claims by the Customer against us; in
particular for damages, due to a defect of title which is more
extensive or different to those set out in 9. shall be excluded.
12. shall apply accordingly to claims for damages.
10. Obligations of the Customer
The Customer shall incur liability that
his supplies to and their use by us – irrespective of the data
medium – do not infringe the Intellectual Property Rights of
third parties. The Customer shall hold us harmless from all
corresponding claims of third parties.
11. Impossibility, Adjustment of the
Contract
11.1 Where unforeseeable events of force
majeure (6.2) substantially change the economic importance or
the content of the Deliveries or have a considerable effect on
SMB-Dahms's business, the Contract shall be adapted accordingly
with due regard to the principle of good faith. Where this is
not economically reasonable, we have the right to withdraw from
the Contract. If we make use of this right of termination we
shall notify the Customer in writing immediately after becoming
aware of the significance of the event even where at first an
extension of the Delivery time had been agreed with the
Customer.
12. Other Claims for Damages
12.1.1 Unless otherwise expressly agreed,
any claims for damages of the Customer shall be excluded
regardless of whether they are based on duties arising under the
obligatory relationship or tort. 12.1.2 We
provide application guidelines and advice in good faith and
without any liability to Customer. The Customer shall not be
released from his obligation to examine the intended use of the
Deliveries at his sole responsibility. This shall apply even if
we are aware of the Customer's application of use.
12.1.3 This exclusion shall not apply
where e. g. under the Product Liability Act or in cases of
willful misconduct, gross negligence, bodily injury or a breach
of substantial contractual obligations, there is a legally
binding liability.
12.1.4 Our liability for damages arising
from the fundamental non-performance of contractual obligations
of the Contract shall be limited to foreseeable damages normally
covered by the Contract except in cases of willful misconduct,
gross negligence or bodily injury.
12.1.5 The purchasers Liability to pay
compensation of 100% of the sales object has to be paid under
the following conditions. These include products that are
manufactured to customer specifications and are fully or
partially required no longer by the customer. Should drawings
from the customer have to be corrected with reworking after
production or not be usable because of wrong written information
as well as drawings, the customer has to pay for the additional
expenditure or the new production.
12.2 Insofar as our liability according
to 12. is excluded or restricted, this shall also apply to the
personal liability of our employees, personnel, staff and
vicarious agents, not, however, to our legally authorized
representatives and senior management.
12.3 To the extent that the customer is
entitled to claim for damages according to 12. these shall
elapse with expiry of the applicable time limit pursuant to 8.4
for material defects. In the event of claims for willful
misconduct and damages under the Product Liability Act, the
legal time limits shall apply.
12.4 The burden of proof shall remain
unaffected by the provisions in 12.
13. Resales
The Seller draws attention to the fact
that export conditions regarding use and application can be
applicable in the event of a resale. Furthermore, US components
(product, software, technology) may be contained in the products
supplied by the Seller, which may subsequently demand compliance
with US American regulations. The Purchaser has an obligation to
the Seller to ensure compliance with pertinent export
regulations in the event of re-exporting.
14. Software Usage
14.1 Insofar as the Deliveries comprise
software, the Customer shall be granted a non-exclusive right to
use the respective software including its documentation for the
use of the Deliveries.
14.2 The Customer may only copy, edit or
translate the software or convert its object code to source code
to the extent as stipulated in §§ 69(a) et seqq. of the German
Copyright Act. The Customer shall neither remove our
manufacturer's details, in particular, our copyright note, nor
shall it change them without our explicit prior written
approval.
14.3 All other rights concerning the
software and its documentation including copies thereof shall
remain with us. Sublicensing by the Customer shall not be
permissible.
15. Confidentiality
15.1 The parties shall not without the
written consent of the other party pass documents, knowledge and
information, tools, molds, samples, models, profiles, drawings,
data standard sheets, manuscripts and other technical
documentation – irrespective of the data medium –
("Information") to third parties or use such Information for
purposes other than for the purposes of the Contract. This shall
not apply to Information which at the time of receipt is
generally known or was already known by the receiving party
without being obliged to maintain the duty of confidentiality,
was transferred by a third party or was developed by the
receiving party.
15.2 Information shall be returned to us
without delay if a Contract is not awarded. A right of retention
by the Customer shall be excluded.
16. Jurisdiction
The exclusive place of jurisdiction –
also for cheques and bills receivable – is Nuernberg, Germany.
17. Applicable Law
German substantive law shall apply
exclusively. The United Nations Convention on Contracts for the
International Sale of Goods of 11 April 1980 shall be excluded.