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DEUFA GMBH GENERAL TERMS OF SALE 

Section 1 Scope of application

  • Our terms of sale apply with respect to business persons, legal persons under public law and special funds under public law within the meaning of Section 310 Par. 1 of the German Civil Code (BGB).
  • Our terms of sale apply exclusively. We only recognise conflicting terms by the customer or terms that deviate from our terms of sale if we expressly agree to them in writing.
  • Our terms of sale still apply even if we carry out delivery to the customer without qualification while having knowledge of conflicting terms by the customer or terms deviating from our terms of sale.

Section 2 Offer and conclusion of contract

  • If the order constitutes an offer in accordance with Section 145 BGB, we can accept this within two weeks.
  • All agreements that are made by our agents only become effective once we have issued a written confirmation of the acceptance.

Section 3 Provided documents

  • We retain ownership rights and copyrights on all documents provided to the customer within the context of the order placement, e.g. calculations, drawings, other documents, etc. This also applies to written documents designated “confidential”. These documents must not be made accessible to third parties unless we give the customer our express permission in writing to do so.
  • If we do not accept the customer’s order within the period noted in Section 2, these documents must be returned to us without delay.

Section 4 Prices and payment terms

  • Provided nothing to the contrary has been agreed in writing, our prices apply ex-works excluding packaging plus the statutory value added tax at the applicable rate. The packaging costs are invoiced separately.
  • Unless otherwise indicated in the order confirmation, the purchase price is due within 14 days of the invoice date with a 2% early payment discount, or is due net (without discount) within 30 days of the invoice date. The statutory regulations concerning the consequences of late payment apply.
  • The customer is only entitled to offsetting if their counterclaims have been legally established, are undisputed, are acknowledged by us or are in a close synallagmatic relationship to our claim. The customer is only authorised to exercise a right of retention insofar as their counterclaim is based on the same contractual relationship.

Section 5 Delivery time

  • The delivery time specified by us shall only commence once all technical questions have been resolved.
  • The fulfilment of our delivery obligations is further subject to the timely and proper fulfilment of the customer’s obligations. We reserve the right to suspend performance until the other party performs.
  • Should the customer default in acceptance or culpably infringes other duties of cooperation, we are entitled to claim damages we have incurred including any additional expenses. We reserve the right to make further claims.
  • Where the above conditions have been fulfilled, the risk of accidental destruction or accidental deterioration of the purchased item is transferred to the customer at the point at which the customer defaults on acceptance or payment.
  • In the case of delayed delivery not resulting from intent or gross negligence on our part, we are liable within the framework of a pre-defined delay compensation for 3% of the delivery value for every full week’s delay, but totalling no more than a maximum of 15% of the delivery value.
  • Further statutory claims and rights of the customer arising from a delivery delay remain unaffected.

Section 6 Transfer of risk

  • Further statutory claims and rights of the customer arising from a delivery delay remain unaffected.
  • In cases of carriage-free/freight-paid delivery, the risk is also transferred to the customer when the consignment is dispatched or collected. This applies regardless of whether shipment of the goods is made from the place of performance or who bears the freight costs.
  • Consignments can be insured against the usual transport risks on the customer’s request and at their cost.

Section 7 Liability for defects

  • The customer’s warranty rights require that they fulfil their duty to inspect the goods and notify us of any defects in accordance with Section 377 of the German Commercial Code (HGB).
  • Should the supplied goods exhibit a defect that already existed at the time of the transfer of risk, we will, subject to notification of the defect within the deadline, and at our choice, either repair the goods or supply replacement goods.
  • We must be given an opportunity to remedy within a reasonable period of time. The above provision does not affect rights of recourse in any way. If the rectification of defects fails or is impossible, the customer can – without prejudice to any claims for compensation – terminate the contract or reduce the payment.
  • The customer is not entitled to assert claims for the expenses arising in conjunction with the rectification of defects, in particular transport, infrastructure, work and material costs, insofar as the expenses are higher because the goods we delivered were later moved to another location other than the customer’s premises, unless this transfer is consistent with the goods’ intended use.
  • Other claims are excluded in accordance with Section 8. In particular, this applies to claims for damages that did not occur to the goods themselves (consequential damages). Our liability for the absence of guaranteed qualities is also governed by Section 8.

Section 8 Other claims for damages

  • Claims for compensation and reimbursement of expenses by the customer, regardless of the legal basis, are excluded, in particular due to infringement of obligations arising from the contract and from tort.
  • This does not apply where liability is legally mandated, e.g. in accordance with the Product Liability Law, in cases of intent or gross negligence, due to injury to life, body or health of a person, and due to infringements of essential contractual duties. However, damages claims for the infringement of essential contractual obligations is limited to the foreseeable damages typical for this type of contract, insofar as there was no intent or gross negligence or liability exists due to injury to the life, body or health of a person. The rules on the burden of proof remain unaffected.
  • The limitation period for claims for defects is 12 months from the transfer of risk. This shall not affect the limitation period for recourse against the supplier as provided under Sections 478, 479 BGB; this is 5 years from the delivery of the faulty goods.

Section 9 Retention of title

  • We retain ownership of the delivered goods until full payment has been made for all claims arising from the delivery contract. This also applies for all future deliveries, even if we do not always expressly invoke this. We are entitled to take back the purchased goods if the buyer behaves in violation of the contract. Our taking back the purchased goods does not constitute a termination of the contract unless we have expressly declared this in writing.
  • The customer is obligated to handle the goods with due care until the transfer of ownership to them. In particular, the customer is obligated to insure, at their own cost, the goods against theft, fire and water damage at the original value.
  • In cases of seizures or other interventions by third parties, the customer must inform us in writing without delay so that we can take legal action in accordance with Section 771 of the Code of Civil Procedure (ZPO). If the third party is unable to reimburse us the judicial and extra-judicial costs of a lawsuit in accordance with Section 771 ZPO, the customer is liable for the losses incurred.
  • The customer is entitled to resell the goods subject to reservation of title in the normal course of business. The customer assigns the claims from the recipient arising from the reselling of the goods subject to reservation of title to us now, in the amount of the invoiced total amount agreed with us (including VAT). This assignment applies regardless of whether the purchased goods were resold without or after processing. The customer remains entitled to collect the claim even after the assignment. Our right to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the purchaser fulfils their payment obligations from the earnings received, is not in arrears and, in particular, no application for the opening of an insolvency proceeding has been made or payments have ceased. If this is the case, we can demand that the customer informs us about the assignment of claims and the respective debtors, provides us with all the information necessary to collect, hands over the related documents and informs the debtor (third party) of the assignment.
  • The processing, reworking or transformation of the goods by the customer is always carried out in our name and on our behalf. In this case, the customer’s expectant right on the goods carries over to the remodelled item. If the purchased goods are processed with other items that do not belong to us, we acquire co-ownership of the new item in the ratio of the objective value of our purchased goods to the other processed objects at the time of processing. The same applies in the case of amalgamation/mixing. Insofar as the mixing is carried out in such a way that the customer’s item is to be regarded as the main item, it is agreed that the customer transfers proportional co-ownership and retains the resulting sole ownership or co-ownership for us. To secure our claims against the customer, the customer also assigns to us, on account of payment, those claims accruing to them as a result of combining the goods subject to the reservation of title with a real-estate property against a third-party; we accept this assignment now.
  • We undertake, on the customer’s request, to release the securities to which we are entitled if their value exceeds the realisable claims by more than 20%.

Section 10 Place of jurisdiction and place of performance

  • If the customer is a merchant/business person, our place of business is the place of jurisdiction; however, we are also entitled to file a suit against the customer at their local court. 
  • The laws of the Federal Republic of Germany apply; the applicability of the UN Convention on the Sale of Goods is excluded.
  • Unless otherwise indicated in the order confirmation, our place of business is the place of performance.

 

Neuburg am Inn, December 2016