General business terms

Below you will find the general business terms of DSM Messtechnik GmbH as PDF and text.

§ 1. Scope of application

(1) The follo­wing general terms and condi­tions apply only to legal entities, corpo­ra­tions under public law and public legal property acc. to § 310 par. 1 German Civil Code (BGB).

(2) Conflic­ting or devia­ting terms of the customer are only accepted with our express written approval.

(3) Our general terms apply for all poten­tial future transac­tions unless these are not legally similar transactions.

(4) Object of purchase are standard products and custom-made products.

§ 2. Proposal and conclu­sion of contract

(1) We can accept orders, as a proposal of contract conclu­sion, within two weeks after receipt unless the written purchase order states another deadline or date.

(2) Contract is concluded by our written accep­tance of order unless other­wise agreed in written form. Our written accep­tance of proposal and poten­tial amend­ments and side agree­ments deter­mine the substance and scope of supply to be provided by us.

(3) Amend­ments and side agree­ments require our written approval for validity.

§ 3. Documents related to placing of order

(1) Documents especi­ally descrip­tions, graphs, data storage media and samples provided by the customer in course of the purchase order are meant to be within the tolerances of the appli­cable standards and other regula­tions and alter­na­tively the general accepted norms of techno­logy unless the customer requires smaller tolerances and we accept this in written form.

(2) We keep title and copyright of all our descrip­tions, graphs, data storage media, samples and cost estimates provided to the customer.

(3) This also applies for documents in written form and data files trans­mitted. None of our documents shall be provided to third parties unless we have previously agreed in written form.

(4) Written documents and data storage media provided by us shall be returned on our request. Written documents and data storage media provided to us shall be returned on custo­mers request as well. We use documents provided by the customer exclu­si­vely for order processing.

(5) All infor­ma­tion obtained or created, records and their sources are subject to confi­den­tia­lity and will only be used for the proces­sing of orders. These will not be disclosed to third parties (uninvolved in the process) without prior infor­ma­tion of the customer and only with the customer’s consent. The customer shall be informed in advance of the infor­ma­tion that we intend to make freely acces­sible. All other infor­ma­tion is considered proprie­tary infor­ma­tion and shall be regarded as confi­den­tial, unless the infor­ma­tion is made publicly available by the customer itself or unless other­wise agreed with the customer in advance (e.g. for the purpose of respon­ding to complaints). If we are required by law or autho­rised by contrac­tual agree­ments to release confi­den­tial infor­ma­tion, the customer or indivi­dual concerned shall, unless prohi­bited by law, be notified in advance of the infor­ma­tion provided. Infor­ma­tion about the customer obtained from sources other than the customer (e.g. complainant, regula­tors) as well as the sources of infor­ma­tion themselves, will also be regarded as confi­den­tial between the customer and us. The infor­ma­tion and the source of the infor­ma­tion shall not be shared with the customer without their consent.

§ 4. Technical changes

(1) We reserve the right to imple­ment technical changes and impro­ve­ments to the object of purchase in course of technical impro­ve­ments or due to legal requirements.

(2) Special notice to the customer is not required unless the technical changes result in changed prices or functions.

§ 5. Prices and payment terms

(1) Our prices apply ex works inclu­ding on-site loading exclu­ding packa­ging and unloa­ding unless other­wise agreed in written form. Our prices apply for the object of purchase with regard to substance and scope of supply and delivery terms agreed in our accep­tance of order or a written side agree­ment. Additional or special services are charged to the customer accor­ding to usual domestic market prices unless other­wise agreed.

(2) All of our proposal prices are net prices. The appli­cable value added tax is included in the invoice.

(3) Payment is due within 30 calendar days after delivery and receipt of invoice unless other­wise agreed in writing.

(4) Discounts are not allowed unless other­wise agreed in written form.

(5) We are autho­rised to include a down payment of 50% in our accep­tance of order if the orderer is our customer for the first time. In case the down payment is not executed with 10 working days, we are autho­rised to withdraw from the contract.

(6) We reserve our right to adequa­tely change the proposal prices due to changes in cost of labour, materials and distri­bu­tion costs, if delivery is requested later than three months after contract conclu­sion unless other­wise agreed in writing.

§ 6. Right of retention

Orderer is only entitled to the right of reten­tion if his counter­claim is based on the same contrac­tual relationship.

§ 7. Time of performance

(1) Times of perfor­mance (deadlines and dates) are only binding if agreed in writing. Agreed times of perfor­mance are considered to be met by us if the object of purchase has left our works before this time elapses or – in case of delivery on call – readi­ness for shipment is declared expli­citly to the orderer.

(2) We are autho­rised to extend times of performance

1. if the orderer fails to meet agreed terms of payment especi­ally if agreed down payments are late

2. if the orderer fails to provide documents, graphs, data storage media and samples neces­sary for our services and delivery terms or poten­ti­ally compon­ents of the purchase object to be provided by the orderer immedia­tely and comple­tely after our request

3. in case of subse­quent changes of the order unless the change is to immate­rial to justify an exten­sion to the time of performance

4. in case of force majeure, unfore­seeable inter­rup­tions to opera­tions in the course
of labour disputes, problems in material procu­re­ment, delay in delivery of our suppliers and other unpre­dic­table obsta­cles not controll­able by us, if these demons­trably and materi­ally affected our business perfor­mance or delivery terms.

(3) We are not liable for obsta­cles accor­ding to paragraph 2 No. 4, even though if we were already in delay by occur­rence. We will inform the customer about the begin­ning and ending of such obstacles.

(4) If we do not meet the times of perfor­mance due to one of the reasons acc. to paragraph 2 No. 1 – 4 or another reason we are not liable for, orderer is not entitled to claim for a contrac­tual penalty or a compen­sa­tion for damages, neither to termi­nate nor withdraw from the contract or revoke it in any other possible way.

§ 8. Transfer of risk during shipment and collection

(1) Risk of accidental loss or impair­ment passes to the orderer as the shipment commences or at the latest when leaving our factory if the object of purchase is shipped to the orderer or a third party on request of orderer, irrespec­tive of shipment from place of fullfill­ment or another place or who is bearing trans­por­ta­tion costs.

(2) Risk of accidental loss or impair­ment passes to the orderer with handover of the object of purchase if the orderer or an autho­rised repre­sen­ta­tive picks it up from our factory even though the object of purchase is still in our factory at this point in time.

§ 9. Title retention

(1) We reserve our right of title of the purchase object until complete payment of all claims resul­ting from the respec­tive contract.

(2) This condi­tional sale applies to all future orders even so if not expli­citly invoked by us. We are autho­rised to claim for return of the object of purchase if the buyer’s payments are delayed.

(3) As long as the title has not been trans­ferred, the buyer is obliged to handle the object of purchase carefully. In parti­cular, he is obliged to set up an insurance policy against thievery, fire and water damage for the net purchase price at his own cost. Poten­tial inevi­table mainten­ance and inspec­tions are to be performed by the orderer in time and at his own cost.

(4) As long as the title has not been trans­ferred, the buyer is obliged to inform us immedia­tely when the object of purchase is seized or exposed to other measures of a third party. If the third party is unable to reimburse our cost in course of an lawsuit accor­ding to § 771 ZPO, the orderer is liable for this cost.

(5) Despite the title reten­tion, the orderer is autho­rised to resell the object of purchase in his ordinary course of business. Receiv­a­bles from third parties resul­ting from this sale are conveyed to us with the amount of the agreed gross purchase price by now. This convey­ance applies regard­less of whether the object of purchase was sold to the third party unchanged or after handling, proces­sing or other transformation.

(6) Orderer is entitled to collect his receivable despite of the convey­ance. Our right to collect the receivable by ourselves remains unaffected. We will not collect the receivable as long as the orderer is not in payment delay and bankruptcy is not filed.

(7) As long as title has not been trans­ferred all handling, proces­sing or other trans­for­ma­tion is performed on our behalf. The expec­tant right of the orderer for the original object of purchase persists in the treated, processed or other­wise trans­formed object.

(8) If the object of purchase is processed together with other external objects, we acquire the joint owner­ship of the new object propor­tio­nally to the market value of our object of purchase in relation to the market value of the external objects at the date of processing.

(9) This applies also for amalga­ma­tion. If our object of purchase is to be seen as main part of the amalga­ma­tion, it is agreed that the orderer trans­fers propor­tional joint owner­ship and keeps it safe on our behalf as long as our title reten­tion persists.

§ 10. Warranty

(1) The obliga­tions accor­ding to § 377 HGB apply for the orderer’s poten­tial claim for warranty.

(2) All warranty rights expire within 24 months after delivery of the object of purchase. We assume that the object of purchase has not passed through more than one million produc­tion cycles within this period unless other­wise agreed on with the orderer or the end customer. If a third party is entitled to warranty claims, his claims are not affected by these terms and condi­tions. Legal limita­tion of time applies to all claims for damage compen­sa­tion resul­ting from inten­tion or gross negli­gence as well as for all viola­tion of life, body and health resul­ting from an inten­tional or gross careless viola­tion of duty.

(3) If the object of purchase is defec­tive despite all our exercised care, we will provide supple­men­tary perfor­mance of our own choice by way of correc­tion of the defect or repeated delivery of the object of purchase without defects, unless the orderer failed to comply with his obliga­tions acc. to § 377 HGB at all or in time. Orderer is obliged to set an adequate time limit for supple­men­tary performance.

(4) Warranty claims are not valid in case of

1. immate­rial devia­tions from the agreed quality,

2. immate­rial inter­fe­rence of usability,

3. natural erosion or deterio­ra­tion assuming that the object of purchase is not involved in more than one million produc­tion cycles within 24 months

4. damages after transfer of risk due to gross negli­gence, exces­sive load, use of inappro­priate lubri­cants or other opera­ting resources or other external impacts not contrac­tually agreed on.

5. repairs or other inter­ven­tions by the orderer or third parties.

(5) Claims of the orderer resul­ting from cost in course of the supple­men­tary perfor­mance in parti­cular material, labour and trans­por­ta­tion costs are not autho­rised. Aalen is place of supple­men­tary performance.

(6) If a claim is made to the orderer by a third party, he is only entitled to claim against us in line with these general term and condi­tions, regard­less of his own obligation.

(7) We do not accept warranty claims if the object of purchase cannot be resold to specific buyers or to specific count­ries, due to political requi­re­ments or legal regulations.

§ 13. Miscellaneous

(1) All contracts concluded accor­ding to these general terms and condi­tions, as well as in case of a business title resul­ting from this, the complete privity of contract are exclu­si­vely under German law exclu­ding the United Nations Conven­tion on Contracts for the Inter­na­tional Sale of Goods (CISG).

(2) Place of fulfilment and exclu­sive juris­dic­tion for all lawsuits resul­ting from this contract is the regis­tered office of the DSM-Messtechnik GmbH, unless other­wise expli­citly agreed in our accep­tance of order.

(3) All agree­ments concluded between the contract parties are codified by these general terms and condi­tions, our proposal and our accep­tance of order. Verbal side agree­ments are only valid with our written approval.