ds automation gmbh
(1) All deliveries, services and offers of ds automation gmbh (hereinafter referred to as "Supplier") are made exclusively on the basis of these General Terms and Conditions of Delivery. These are an integral part of all contracts which the Supplier concludes with his contractual partners (hereinafter also referred to as "Customer") regarding the deliveries or services offered by him. They shall also apply to all future deliveries, services or offers to the Customer, even if they are not separately agreed again.
(2) Terms and Conditions of the Customer or third parties shall not apply, even if the Supplier does not separately object to their validity in individual cases and performs services without reservation. Even if the Supplier refers to a letter which contains or refers to the Terms and conditions of the Customer or of a third party, this shall not constitute any agreement with the validity of those terms and conditions.
2 Offer, Conclusion of Contract, Scope of Performance
(1) All offers of the Supplier are subject to confirmation and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The Supplier may accept orders or commissions within 14 days of receipt.
(2) The legal relationship between Supplier and Customer shall be governed solely by the contract concluded in writing, including these General Terms and Conditions of Delivery. This shall fully reflect all agreements between the contracting parties regarding the subject matter of the contract. Oral promises made by the Supplier prior to the conclusion of this Contract shall not be legally binding and oral agreements made by the contracting parties shall be replaced by the written Contract unless it is expressly stated in each case that they shall continue to be binding.
(3) If the Customer wishes to make changes after conclusion of the Contract, the Supplier shall check these changes for technical feasibility and reasonableness. If the parties agree on a change, this work shall be settled either according to the then valid prices of the Supplier or according to a special written agreement between the parties to the contract. Supplements and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be made in writing in order to be effective. With the exception of the managing director, the employees of the Supplier are not entitled to make oral agreements deviating from the written agreement. Telecommunicative transmission, in particular by fax or e-mail, shall suffice to comply with the written form.
(4) Information provided by the Supplier on the subject of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as the representations of the same (e.g. drawings and illustrations) are only approximate unless the applicability for the contractually intended purpose presupposes exact conformity. They are not guaranteed characteristics, but descriptions or markings of the delivery or service. Deviations customary in the trade and deviations which occur due to legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts, are permissible provided that they do not impair the usability for the contractually intended purpose. Technical standards only serve to describe the performance, unless the Supplier provides an express guarantee for compliance with a technical standard. Guarantees of quality or durability must be made in writing.
(5) The Supplier is entitled to use subcontractors to fulfil his obligations.
(6) The Supplier reserves the ownership or copyright to all offers and cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Customer. Without the express consent of the Supplier, the Customer may not make these items accessible to third parties, disclose them, use them himself or through third parties or reproduce them, either as such or in terms of content. At the Supplier's request, he shall return these items to the Supplier in their entirety and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically provided data for the purpose of customary data backup.
(7) All rights to know-how and results that can be protected (e.g. inventions, copyrights) shall remain with the Supplier unless otherwise agreed between the parties. The Supplier shall be entitled to use the know-how acquired in connection with the performance of the contract without restriction for its own business purposes.
3 Prices and Payment
(1) The prices shall apply to the scope of services and deliveries specified in the order confirmations. Additional or special services shall be invoiced separately. Prices are quoted in EUR ex works (EXW), not including packaging, statutory value-added tax, customs duties for export deliveries and fees and other public charges.
(2) Insofar as the agreed prices are based on the Supplier's list prices and the delivery is to take place more than four months after conclusion of the contract, the Supplier's list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).
(3) Invoiced amounts shall be paid within thirty days without any deduction, unless otherwise agreed in writing. The date of receipt by the Supplier shall be decisive for the date of payment. Payment by cheque shall be excluded unless otherwise agreed in individual cases. If the Customer fails to pay on the due date, the outstanding amounts shall bear interest at 9 percentage points above the respective base interest rate from the due date; the assertion of higher interest rates and further damages in the event of default shall remain unaffected.
(4) Offsetting against counterclaims of the Customer or the retention of payments due to such claims shall only be permissible if the counterclaims are undisputed or have been finally and conclusively established or result from the same order under which the delivery in question took place.
(5) The Supplier shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, the Supplier becomes aware of circumstances which are likely to significantly reduce the creditworthiness of the Customer and which endanger the payment of the outstanding claims of the Supplier by the Customer from the respective contractual relationship (including from other individual orders to which the same framework contract applies).
(6) If the parties have agreed on payment by instalments, the entire amount shall become due if the Customer defaults on one instalment.
4 Delivery and delivery time
(1) Deliveries shall be made ex works (EXW).
(2) Periods and dates for deliveries and services promised by the Supplier are always only approximate, unless a fixed period or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
(3) If the Supplier has to carry out work at the Customer's premises, the Customer shall be obliged to fulfil his obligations to cooperate, in particular to grant access to the premises and to provide access to facilities and information. The Customer shall be responsible for ensuring that the data provided by him is correct. He shall also ensure that the regulations of data protection are complied with.
(4) Irrespective of the Supplier's rights resulting from the Customer's default, the Supplier may demand from the Customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period in which the Customer fails to meet its contractual obligations towards the Supplier.
(5) The Supplier shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure.
This shall also apply if the impossibility or the delay in delivery is caused by other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lock-outs, shortage of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure to receive supplies from Suppliers in time, or incorrect or untimely delivery by them) for which the Supplier is not responsible. Insofar as such events make the Supplier's delivery or performance substantially more difficult or impossible and the hindrance is not only of a temporary nature, the Supplier shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates postponed by the period of the hindrance plus a reasonable start-up period. If, as a result of the delay, acceptance of the delivery or service cannot reasonably be expected of the Customer, he may withdraw from the contract by means of a written declaration made without delay to the Supplier.
(6) The Supplier shall only be entitled to make partial deliveries if
- the partial delivery can be used by the Customer within the scope of the contractual purpose,
- the delivery of the remaining ordered goods is ensured and
- the Customer does not incur any significant additional costs or expenses (unless the Supplier agrees to bear such costs).
(7) If the Supplier defaults on a delivery or service or if a delivery or service becomes impossible for him for whatever reason, the Supplier's liability shall be limited to damages in accordance with § 8 of these General Terms and Conditions of Delivery.
5 Place of performance, dispatch, packaging, passing of risk, acceptance
(1) Place of performance for all obligations arising from the contractual relationship is Schwerin, Germany, unless otherwise specified. If the Supplier also owes the installation, the place of performance shall be the place where the installation is to take place.
(2) The risk shall pass to the Customer at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the freight forwarder, carrier or other third party appointed to carry out the shipment. This shall also apply if partial deliveries are made or if the Supplier has taken over other services (e.g. dispatch or installation). If dispatch or handover is delayed due to circumstances for which the Customer is responsible, the risk shall pass to the Customer from the day on which the delivery item is ready for dispatch and the Supplier has notified the Customer accordingly.
(3) Storage costs after transfer of risk shall be borne by the Customer. In the event of storage by the Supplier, the storage costs shall amount to 0.25% of the invoice amount of the stored items per expired week. The parties reserve the right to assert and prove further or lower storage costs.
(4) The Supplier shall insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks only at the express request of the Customer and at the Customer's expense.
(5) Insofar as acceptance is to take place, the subject matter of the contract shall be deemed accepted if
- the delivery and, if the Supplier also owes the installation, the installation is completed,
- the Supplier has informed the Customer of this and requested acceptance,
- twelve working days have elapsed since delivery or installation or the Customer has started using the subject matter of the Agreement (e.g. the delivered equipment has been put into operation) and in this case six working days have elapsed since delivery or installation and
- the Customer has omitted acceptance within this period for a reason other than a defect notified to the Supplier which makes the use of the contractual product impossible or substantially impairs it.
(6) For each resale, the Customer shall be responsible for compliance with any export regulations and shall indemnify the Supplier against all obligations in this respect.
6 Warranty, Defects
(1) The warranty period shall be one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to claims for damages by the Customer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the Supplier or its vicarious agents, which shall in each case become statute-barred in accordance with the statutory provisions.
(2) The delivered items shall be carefully inspected without undue delay after delivery to the Customer or to the third party designated by the Customer. With regard to obvious defects or other defects which would have been recognisable in an immediate, careful examination, they shall be deemed to have been approved by the Customer if the Supplier does not receive a written notice of defect within seven working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the Customer if the notice of defects is not received by the Supplier within seven working days of the time at which the defect became apparent; if the defect was already apparent at an earlier point in time under normal use, this earlier point in time shall, however, be decisive for the commencement of the notice period. At the Supplier's request, a rejected item shall be returned to the Supplier carriage paid. In the event of a justified complaint, the Supplier shall reimburse the costs of the cheapest shipping route. Additional costs arising from the fact that the delivered item is located at a place other than the place of intended use shall not be reimbursed.
(3) No defect shall lie in minor colour deviations, dimensional differences, deviations from samples, specimens and models, insofar as these are reasonable for the contractual partner and the item is suitable for normal use. A material defect shall also not exist in the event of unsuitable or improper use, incorrect storage, incorrect assembly or commissioning by the Customer or third parties, natural wear and tear or incorrect or negligent handling.
(4) In the event of material defects of the delivered items, the Supplier shall be obliged and entitled to choose between repair or replacement delivery within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonability, refusal or unreasonable delay of the rectification or replacement delivery, the Customer may withdraw from the contract or reduce the purchase price accordingly.
(5) Parts replaced by the Supplier in the event of remedial measures shall become the property of the Supplier.
(6) If a defect is based on the fault of the Supplier, the Customer may claim damages under the conditions specified in § 8.
(7) The Customer shall not be entitled to assert any claims for compensation for defects if he is aware of the defect at the time of conclusion of the contract or if he does not know the defect due to gross negligence, unless the Supplier has fraudulently concealed the defect or has given a quality guarantee relating to the defect.
(8) In the event of defects in components of other manufacturers which the Supplier cannot remedy for licensing or actual reasons, the Supplier shall, at its discretion, assert its warranty claims against the manufacturers and Suppliers for the account of the Customer or assign them to the Customer. Warranty claims against the Supplier for such defects shall only exist under the other conditions and in accordance with these General Terms of Delivery if the judicial enforcement of the aforementioned claims against the manufacturer and Supplier was unsuccessful or has no prospect of success, e.g. due to insolvency. During the duration of the legal dispute, the statute of limitations of the Customer's respective warranty claims against the Supplier shall be suspended.
(9) The warranty shall lapse if the Customer changes the delivery item or has it changed by third parties without the Supplier's consent and the removal of the defect is thereby rendered impossible or unreasonably difficult. In any case, the Customer shall bear the additional costs of remedying the defect incurred as a result of the change.
(10) Any delivery of used items agreed with the Customer in individual cases shall be made to the exclusion of any warranty for material defects.
7 Property rights
(1) The Supplier warrants in accordance with this § 7 that the delivery item is free from industrial property rights or copyrights of third parties. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it due to the infringement of such rights.
(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, the Supplier shall, at its option and expense, modify or exchange the delivery item in such a way that no rights of third parties are infringed any longer, but the delivery item continues to fulfil the contractually agreed functions, or procure the right of use for the Customer by concluding a license agreement with the third party. If the Supplier fails to do so within a reasonable period of time, the Customer shall be entitled to withdraw from the contract or to reduce the purchase price accordingly. Any claims for damages by the Customer shall be subject to the restrictions of § 8 of these General Terms and Conditions of Delivery.
(3) In the event of infringement of rights by products of other manufacturers supplied by the Supplier, the Supplier shall, at its option, assert its claims against the manufacturers and sub-suppliers for the account of the Customer or assign them to the Customer. In these cases, claims against the Supplier pursuant to this § 7 shall only exist if the judicial enforcement of the aforementioned claims against the manufacturers and sub-suppliers has been unsuccessful or is futile, e.g. due to insolvency.
8 Liability for damages
(1) The Supplier's liability for damages, for whatever legal reason, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties in contract negotiations and tort, shall be limited in accordance with the provisions of this § 8, insofar as this depends on fault.
(2) The Supplier shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives or employees, unless it is a matter of a breach of material contractual obligations. Essential to the contract are the obligation to deliver and install the delivered item on time, its freedom from defects of title and material defects which more than insignificantly impair its operability or fitness for use, as well as obligations to provide advice, protection and care which are intended to protect the life and limb of the Customer's personnel or to protect the Customer's property from considerable damage.
(3) Insofar as the Supplier is liable for damages on the merits pursuant to § 8 (2), this liability shall be limited to damages which the Supplier foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which he should have foreseen if he had exercised due care. Indirect damages and consequential damages resulting from defects of the delivered item shall also only be eligible for compensation if such damages are typically to be expected when the delivery item is used as intended.
(4) In the event of liability for simple negligence, the Supplier's liability for damages to property and other financial losses resulting therefrom shall be limited to an amount of EUR 25,000 per case of damage, even if this is a breach of material contractual obligations.
(5) The above exclusions and limitations of liability shall apply to the same extent for the benefit of the Supplier's executive bodies, legal representatives and employees.
(6) Insofar as the Supplier provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by him, this shall be done free of charge and to the exclusion of any liability.
(7) In the event of loss of test data or damage to data carrier material, the Suppliers liability shall be limited to the material value of the data carrier and shall therefore not include, in particular, the cost of recovering lost data.
(8) The limitations of this § 8 do not apply to the liability of the Supplier for intentional behaviour, for guaranteed characteristics, for injury to life, body or health or in accordance with the Product Liability Act.
9 Retention of title
(1) The Supplier retains title to the contractual items until full payment of all claims of the Supplier arising from the respective contractual relationship. The Supplier shall be entitled to take back the object of the contract if the Customer does not fulfil his obligations, in particular his payment obligations.
(2) As long as ownership has not yet been transferred to the Customer, the Customer shall be obliged to treat the subject matter of the contract with care. In particular, he is obliged to insure it sufficiently at his own expense against theft, fire and water damage at replacement value.
(3) The Customer is entitled to resell the reserved goods in the normal course of business. The Customer hereby assigns the Customer's claims arising from the resale of the reserved goods to the Supplier to secure his claim and up to the amount of the invoice. The Customer remains authorised to collect the claim even after the assignment. The authority of the Supplier to collect the claim himself remains unaffected. The Customer shall provide the necessary information for this purpose. However, the Supplier shall not collect the claim as long as the Customer meets his payment obligations.
(4) The Supplier undertakes to release the securities to which he is entitled at the request of the Customer if their value exceeds the claims to be secured by more than 20%.
(5) An application to open insolvency proceedings against the Customer's assets shall entitle the Supplier to demand the immediate return of the reserved goods.
(6) The Customer shall notify the Supplier immediately of any attachments, seizures and other dispositions and interventions by third parties.
10 Safety regulations
If the Customer intends to use the contractual products outside Germany, he shall be responsible for compliance with the national laws, ordinances and safety regulations binding there, in particular with regard to approval, installation, operation, maintenance and repair of the contractual objects and shall be obliged to comply with these. The Customer is obliged to indemnify the Supplier against all claims asserted against the Supplier due to the Customer's failure to comply with such regulations.
(1) Each party shall use trade and business secrets, order offers or contracts as well as other information, documents, personal data, etc. not generally known and worthy of protection exclusively for the contractually agreed purposes, treat them with the confidentiality customary in the industry and protect them against access by third parties. This also applies to the time after termination of the contractual relationship. The transfer to third parties requires the prior written consent of the other contracting party.
(2) Both parties are free to freely use ideas, concepts, experiences and techniques already known to the industry.
(3) After termination of the contract, each party shall be obliged to surrender documents and materials handed over by the other party for the purpose of fulfilling the contract upon request. A right of retention is excluded.
12 Final provisions
(1) If the Customer is a merchant, a legal entity under public law or a special fund under public law or if he has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Supplier and the Customer shall be Schwerin, Germany, or the Customer's place of business at the discretion of the Supplier. In such cases, however, Schwerin shall be the exclusive place of jurisdiction for legal actions against the Supplier. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(2) The relations between the Supplier and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of its conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
(3) Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed to have been agreed for filling these loopholes which the contracting parties would have agreed according to the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery had they been aware of the loophole.