Dexima GmbH – General Conditions of Sale and Delivery
§ 1 Scope of application
(1) We supply businessmen within the scope of § 14 BGB (paragraph 14 of German Civil Code), legal entities and special funds under public law exclusively in accordance with the following conditions of sale and delivery. The exceptional application of other conditions – particularly the purchase conditions of the buyer – requires our express written confirmation.
(2) These sales conditions also apply to all future business transactions with the purchaser, provided that these are legal transactions of a similar type.
§ 2 Quotation and conclusion of contract
Our quotations are always without obligation. Orders from the purchaser only become binding for us when they are confirmed in writing or executed by us. Changes and extensions must be confirmed in writing.
§ 3 Purchase price and payment
(1) The agreed purchase price is the net price excluding the added value tax in force at the time and is calculated taking into account the freight costs, exchange rates, taxes, customs duties and other public charges related to the contract at the time of conclusion of the contract. Documented increases to these calculation items occurring after conclusion of the contract entitle us to amend the price accordingly.
(2) Payment of the purchase price shall be made to one of our given accounts without deduction.
(3) Unless otherwise agreed, the purchase price must be paid within 30 days of delivery. Interest for late payment will be charged at the rate of 8% above the applicable base interest rate p.a.
(4) If no fixed price has been agreed, we reserve the right to make reasonable price changes for deliveries in accordance with changes in labour, material and sales costs.
§ 4 Counterclaims and right of retention
The purchaser only has a right to counterclaim if this is legally upheld or undisputed. The purchaser is only entitled to exercise his right of retention if his counterclaim is based on the same contractual rights listed above.
§ 5 Dispatch and delivery
(1) Agreed delivery periods are always considered approximate unless a fixed date has been expressly agreed. The delivery period commences as soon as all commercial and technical questions have been clarified and the buyer has given us notification of his readiness to receive in these cases.
(2) Force majeure and unusual, unexpected occurrences beyond our control such as war, strikes, energy and raw material shortages and lockouts (in our own company and at our suppliers) increase the delivery time appropriately. Claims for damages on account of such delivery time extensions are precluded.
(3) Further legal claims and rights of the buyer on account of late delivery remain unaffected.
(4) For the interpretation of terms according to normal business practice, Incoterms 2000 applies.
§ 6 Transfer of risk at dispatch
If the goods are dispatched to the purchaser at his request, the risk of accidental loss or accidental deterioration passes to the purchaser at dispatch, at the latest when the goods leave the works/warehouse. This applies independently of whether dispatch of the goods is from the place of performance and irrespective of who carries the freight costs.
§ 7 Reservation of title
(1) Title to the goods is transferred to the purchaser only after the purchase price and all other accounts receivable, including future receivables, arising from the business relations with us have been completely paid. This also applies when payment has been made against specially designated receivables. In the case of running accounts, reservation of title serves to safeguard our balance receivables. Title is transferred to the purchaser at latest when we have undisputedly no further claims against him.
(2) As long as the purchaser fulfills his obligations to us in due course he is entitled to further use the reserved goods in the normal course of business, provided that his accounts receivable arising from resale in accordance with (5) devolve to us.
(3) If the purchaser fails to meet his payment obligations even after being given a final deadline, we are entitled to claim possession of the reserved goods without recourse to further deadlines and without notice of repudiation of contract.
(4) Working on and processing the reserved goods takes place through us, without obligation on our part. We are deemed to be manufacturers within the meaning of § 950 BGB and acquire ownership of the intermediate and end products in proportion to the invoice value of our reserved goods to the invoice value of third party goods; the purchaser holds the goods in safe custody for us, on trust and free of charge. This also applies to the combination or mixing of reserved goods with third party goods within the meaning of §§ 947, 948 BGB.
(5) To protect all our accounts receivable, the purchaser hereby assigns the claims against third parties arising from resale of the reserved goods to us. If the purchaser sells goods to which we only have as per (4) a pro rata title, he transfers the corresponding proportional part of the claims against third parties to us. If the purchaser uses the reserved goods within the framework of a contract for services or similar contract, he assigns the (labor) receivables in the amount of the invoice value of our goods used to us.
(6) In the normal course of business the purchaser is authorized to collect the debts receivable arising from resale of the reserved goods. If we become aware of facts that point to a significant deterioration of his financial position, the purchaser is obliged on our demand to notify his sub-purchasers of the assignment, to refrain from exercising any decision on the receivables and to provide us with all necessary information about the inventory of the goods owned by us and the outstanding accounts assigned to us and to hand over to us the documents pertaining to the enforcement of the assigned outstanding accounts. Seizure of the reserved goods and the assigned outstanding accounts by third parties must be notified to us without delay.
(7) If the value of the security to which we are entitled exceeds the total debt outstanding against the purchaser by more than 10%, on demand of the purchaser we are obligated in this respect to release security of our choice.
§ 8 Warranty rights, inspection obligation and requirement of purchaser to give notice of defects
(1) In case of quality defects we are liable under the legal provisions to provide at our choice subsequent fulfillment (remedying the defect or replacement delivery) or a reduction of the purchase price, provided that in addition to the legal preconditions the following preconditions are fulfilled:
(a) The purchaser must inspect the goods and the packing on delivery in accordance with trade practice without delay. If the goods are delivered in separate delivery packages, the purchaser is obliged to check the labeling of each individual delivery package against the purchase order. In addition, the purchaser is required to verify that the condition of the goods is in accordance with the contract by taking samples in accordance with trade practice before taking in liquid supplies.
(b) The purchaser shall notify detected defects in writing without delay.
(c) If the purchaser does not carry out the inspection in each case or if he does not notify a detected or detectable defect without delay, the goods are considered to be approved. The same applies in the case of an inadvertent delivery of the wrong goods even in case of a deviation of such magnitude that approval of the goods by the purchaser would be considered as out of the question.
(d) In case of a hidden fault the purchaser shall notify the defect without delay after discovering the defect. Otherwise the goods are considered to be approved.
(2) The right of the purchaser to withdraw from the contract in case of a defect of quality under the preconditions of §437 No. 2 BGB remains unaffected.
(3) In the case of defects of quality we are liable to provide compensation for damage or indemnification for fruitless expenditure in accordance with §9 below.
§ 9 Liability for losses
(1) The provisions of the product liability law are not affected by the following conditions. This applies also in cases of damage to life, injuries and health in which we remain liable in cases of negligent breach of contract.
(2) In the case of damage to objects of legal protection of the purchaser, including his assets arising through defects in the purchased item, inadvertent delivery of the wrong goods or defective packing, we are liable as follows:
(a) If damage could have been avoided through the purchaser complying with his inspection obligations, all types of liability on our part are excluded, unless the damage can be ascribed to the willful and knowing conduct of our statutory agent. A shift of the burden of proof to the disadvantage of the purchaser is not associated with the above regulation.
(b) If damage occurs although the purchaser has carried out his inspection obligations, we are only liable for willful and knowing or grossly negligent breaches of contract.
(3) Independently of the grounds of liability such as unauthorized actions or breach of contract obligations, we only take over responsibility for cases of damage other than the above regulated cases if they are caused by a willful and knowing or grossly negligent action on our part or on the part of one of our employees for whom the principal is vicariously liable.
(4) Claims arising from defects of the products supplied become barred by the Statute of Limitations after one year.
§ 10 Condition of the goods, technical advice, use and processing
(1) The condition of the goods as described in the product descriptions, specifications and characteristics of the seller or our suppliers applies exclusively.
(2) Our advice on technical applications is without obligation; this also applies to any proprietary rights of third parties and does not release the purchaser from his obligation to check the products delivered for their suitability for the intended purpose and process himself.
§ 11 Applicable law, place of jurisdiction, saving clause
(1) This contract and the entire legal relationship of the parties are governed by the laws of the Federal Republic of Germany excluding the UN Law on Sales (CISG).
(2) Unless otherwise provided for in the confirmation of order, the place of execution and exclusive place of jurisdiction for all disputes arising from this contract is our place of business.
(3) All agreements made between the parties for the purpose of executing this contract are laid down in written form in this contract.
(4) If individual provisions of this contract are or become inoperative or contain an omission, the remaining provisions remain unaffected. The parties undertake to replace the inoperative regulation with a legally admissible regulation which is as close as possible to the inoperative regulation or which rectifies the omission.