Terms & Conditions
General Terms and Conditions for Delivery and Payment
of DMT Drehmaschinen GmbH & Co. KG
As of 31 March, 2017.
Applicable in business transactions with enterprises (§ 14 BGB, German Civil Law), legal entities under public law and special funds under public law.
The following terms and conditions exclusively apply to our deliveries. Any deviating, conflicting or supplementary terms and conditions on the part of the customer shall not apply unless we have agreed to their validity in writing on an individual basis. These conditions shall also apply to all future deliveries to the customer until our new terms of delivery come into force.
Offer, Conclusion of Contract, Scope of Delivery
The customer’s order constitutes a binding offer which we may accept by sending an order confirmation or by commencing with the execution of the order. Our previously submitted offers are subject to change and are non-binding. Cost estimates are not binding. Our written order confirmation, if available, shall be decisive for the content and scope of the contract. Unless otherwise agreed, the quality of the delivered good shall be based on the specifications in our offer. Verbal agreements made before or at the time of conclusion of the contract require our written confirmation to be effective. Dimensions, weights, consumption, performance, space specifications, illustrations, properties, type designations, years of construction and descriptions are only binding with regard to the execution insofar as this is expressly confirmed in writing. We reserve the right to make changes with regard to the design, execution and material used, provided that the usability of the delivered good as assumed or generally applicable under the contract is not significantly impaired thereby. Technical consultations are not part of the contract, unless this is expressly agreed in writing. They shall only be binding if they are made in writing and shall not relieve the customer of the obligation to use the delivered good properly and professionally. We reserve all property rights, industrial property rights and copyrights to all our illustrations, drawings, calculations, other documents, data, information, knowledge and experience made available to the customer (including quality characteristics to be taken from any objects or software). The customer shall require our express written consent before passing them on to third parties.
Supplier or Customer Protection
The customer assures us of supplier or customer protection, insofar as we provide him with evidence of an object for purchase or sale at a third party location, and undertakes to conduct price and final negotiations on all objects for sale or purchase at this location without our special written consent, neither directly nor indirectly or through third parties, but exclusively through us or our authorised dealers. Any further orders, purchase transactions and deliveries resulting from such business relations shall also be deemed to have been arranged by us and shall be subject to these conditions. Our information on machine locations and prospective buyers is intended only for the recipient and may not be passed on to third parties without our written consent. In the event of a breach of the above provisions, the customer shall be liable to us for damages.
The agreed remuneration shall apply. If we render services without having agreed on a remuneration in advance, the usual remuneration shall apply together with the applicable value-added tax and all ancillary costs, such as travel expenses, travel time, expenses, allowances, etc.
Prices shall apply to the scope of delivery and services specified in the order confirmation. Additional and special services will be charged separately. The prices are in euro plus the statutory value added tax at the applicable rate on the day of delivery. Any customs duties, fees, taxes and other duties shall be borne by the customer.
Execution of Deliveries, Delivery Time
We are entitled to make partial deliveries and to invoice accordingly at any time, provided that this is reasonable for the customer, i.e. if the partial delivery does not significantly impair the customer’s ability to use the goods as required or intended according to the contract, if the delivery of the remaining delivery item is ensured and if the customer does not incur any significant additional expenses or costs as a result (unless we agree to bear the costs). Complaints about partial deliveries do not release the customer from the obligation to accept the remaining delivery in accordance with the contract. Information on deadlines and dates for deliveries and services are non-binding. The commencement of and compliance with agreed time periods and deadlines shall be subject to the timely clarification of all details relating to the order and the timely fulfilment of all obligations to cooperate on the part of the customer, e.g. the timely receipt of all materials provided by the customer, preliminary services, documents, approvals, examinations, releases as well as compliance with the agreed terms of payment, in particular the making of agreed advance payments or the opening of a letter of credit by the customer. If these prerequisites are not met, the delivery periods shall be extended accordingly; this shall not apply if we are solely responsible for the delay. Delivery periods and dates shall be deemed to have been complied with if, by the time they expire, delivery has been made ex works or notification has been given that the goods are ready for dispatch. They shall also be deemed to have been met upon notification of readiness for dispatch if the delivery item cannot be dispatched on time through no fault of our own. If dispatch is delayed at the customer’s request, they shall be charged for the costs incurred by storage, starting one month after notification of readiness for dispatch, and in the case of storage in our works at least 0.5 per cent of the invoice amount for each month. After setting and the lapse of a reasonable deadline, we shall be entitled to dispose otherwise of the delivered goods and to supply the customer within a reasonably extended period. If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the goods or services), we shall inform the customer of this without delay and at the same time notify the customer of the expected new delivery deadline. If the goods or services are still not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the customer. An instance of non-availability of goods or services in this sense shall be deemed to exist in particular if our supplier fails to deliver on time, if we have concluded a concurrent covering transaction, if neither we nor our supplier are at fault or if we are not obliged to procure the goods or services provided on an individual basis.
Terms of Payment
Payments are generally to be made within 14 days of the invoice date without any deductions. This applies in particular to the delivery of spare parts and accessories. In regard to the delivery of machines, we are entitled to demand 1/3 of the purchase price as a down payment after receipt of the order and the remaining 2/3 of the purchase price after acceptance by the customer in our factory prior to delivery This applies accordingly to the value of the partial delivery in the case of partial deliveries. The customer shall bear the costs of payment transactions. The customer shall only be entitled to offset and retention rights if the counter claims are undisputed or have been legally established and, in the event that a right of retention is exercised, are based on the same contractual relationship. In the event of defects in the delivery, the customer’s counter rights under these General Terms and Conditions shall remain unaffected. In the case of payment in a foreign currency, the payment obligation shall only be deemed to have been fulfilled when we have received the full euro amount of our invoice for our free disposal. In the event of a default in payment, we shall charge the statutory default interest rate applicable at the time. We reserve the right to claim further damages caused by default. Our entitlement to commercial maturity interest (§ 353 Handelsgesetzbuch/ HGB German Commercial Code) remains unaffected vis-à-vis merchants. If the customer is in default with payments or if it becomes apparent after conclusion of the contract that our claim for payment is endangered by the customer’s lack of ability to pay, we shall be entitled to refuse the goods or services incumbent upon us until all claims have been met in full or adequate security has been provided for them. We shall then also be entitled to demand immediate payment of all outstanding claims arising from the business relationship, irrespective of any agreed payment terms. If the customer fails to provide the requested security after the lapse of a reasonable period set by us, we may withdraw from the contract (§ 321 Bürgerliches Gesetzbuch/BGB German Civil Code) without prejudice to our rights to claim damages and/or to take back the subject matter of the contract delivered under retention of title; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. In the case of contracts for the manufacture of unreasonable items (custom-made products), we may declare withdrawal immediately. The defence of uncertainty shall furthermore extend to all further deliveries and goods or services arising from the business relationship with the customer.
Authority to Collect
Our employees and representatives do not have any authority to collect as a matter of principle.
Retention of Title
The delivered good shall remain our property until settlement of all claims arising from the delivery contract, as well as all other claims which we acquire against the customer in connection with the delivered good, e.g. on the basis of contract work, repairs, deliveries of spare parts and accessories or other goods or services. Furthermore, the retention of title shall remain in force for all claims – including future and conditional claims – to which we are entitled against the customer within the scope of the business relationship and for claims which are unilaterally established by a liquidator by way of choice of satisfaction. This shall also apply if individual or all claims have been included in a current invoice and the balance has been struck and accepted. In the case of delivery on target, the following shall apply additionally for the duration of the retention of title: The customer is authorised to operate and use the delivered good in the ordinary course of business. Any other disposal or transfer or modification of the delivered good impairing our security (such as resale, further processing, pledging, transfer by way of security, leasing, etc.) shall only be permitted with our express prior consent. At the customer’s request, we shall waive the reservation of title if the customer has satisfied all claims in connection with the delivered good and has provided adequate security for the remaining claims arising from the business relationship. In the event that the customer nevertheless combines the delivered good with other movable items to form essential components of a uniform item or processes it to form a newly manufactured item, the customer hereby assigns to us pro rata co-ownership of the new item in the ratio of the invoice amount of the delivered good to the invoice value of the other items used. For the duration of the retention of title, the customer shall store the delivered good for us free of charge with commercial and technical care. In particular, they shall keep the delivered good in proper condition, have any necessary repairs carried out and insure it against fire, water, theft and burglary with the proviso that we are entitled to the rights arising from the insurance. If insurance is not proven at our request, we shall be entitled to insure the delivered good at the customer’s expense. In the event that the customer resells the delivered good nonetheless, he hereby assigns to us his claims from the resale of the delivered good together with all ancillary rights with priority over the remaining part of his claims as security for all claims covered by the retention of title. In the event that the customer sells new items manufactured from the delivered good or combines it with third-party property or third-party movable property and acquires claims for this, he also hereby assigns these claims to us together with all ancillary rights with priority over the remaining part of his claim. We hereby accept the customer’s declarations of assignment. In addition to us, the customer shall be entitled to collect the claims arising from the resale. The authorisation to collect shall expire in the event of our revocation, at the latest in the event of default in payment, non-redemption of a bill of exchange or check, or application for the opening of insolvency proceedings. We shall only exercise our right of revocation if, after conclusion of the contract, it becomes apparent that our claim for payment under this or other contracts with the customer is jeopardized by the customer’s lack of ability to pay. Upon request, the customer shall be obligated, upon expiration of the authority to collect, to provide us with detailed evidence of the claims arising from the resale, to immediately notify its customers of the assignment to us and to provide us with the documents required for collection. Pledging or assignment of claims from the resale to third parties is not permitted. The customer shall notify us immediately of any pledging or other impairment by third parties, sending us the necessary documents (e.g. pledging protocol), and shall confirm our right of ownership to both the third party and us in writing. The customer shall be liable for any damage incurred by us in the event of failure to notify or to confirm in due time. The customer shall bear all costs that have to be incurred in order to revoke the access or to return the delivered good unless they are reimbursed by third parties. In the event that the customer acts in breach of contract, in particular in the event of default in payment or failure to honour a bill of exchange or check when due, we shall be entitled to take back the delivered good and, if necessary, to enter the customer’s premises for this purpose, and the customer shall be obligated to surrender the delivered good. The same shall apply if, after the conclusion of the contract, it becomes apparent that our claim for payment under this or other contracts with the customer is jeopardised by the customer’s inability to pay. Notwithstanding the customer’s payment obligation, we shall be entitled to realise the repossessed delivered good together with accessories by private sale at the best possible price. The proceeds shall be credited to the customer after deduction of the costs and all our due claims arising from the business relationship; any excess proceeds shall be paid to the customer. At our discretion, we may also acquire the delivered good at the estimated price and offset this amount against the customer’s liabilities. The assertion of the reservation of title as well as the repossession of the delivered good by us shall not be deemed a withdrawal from the contract. If the value of the existing securities exceeds the secured claims, insofar as these have not yet been settled, including ancillary claims (interest, costs, etc.) by more than 10% in total, we shall release securities of our choice to this extent at the customer’s request.
Acceptance, Transfer of Risk, Fulfilment
Unless expressly agreed otherwise, delivery shall be made carriage paid (“FCA INCOTERMS 2010”), even if we have accepted carriage paid delivery or have taken out insurance for the benefit of the customer against the risk of loss of or damage to the delivered goods during transport. The place of handover is the registered office of our company. If acceptance has been contractually agreed (e.g. in the case of contract work), this shall be decisive for the transfer of risk. It can only take place at our works immediately after notification of readiness for dispatch. The personal acceptance costs (travel expenses, etc.) shall be borne by the customer, the material acceptance costs (samples, testing machines, experts, etc.) shall be charged separately by us. If the acceptance is not carried out, not carried out in time or not carried out completely through no fault of our own, we shall be entitled to dispatch or store the delivered goods without acceptance at the expense and risk of the customer and to charge the customer for this.
Liability for Material Defects
The liability for material defects shall be 12 months from the date of commissioning, but no longer than 14 months from the date of preliminary acceptance at DMT. The liability for material defects shall expire if the machine is not commissioned by the fitters commissioned by us or by our authorised contractual partners.
Claims for Defects
The statutory provisions shall apply to the rights of the customer in the event of material defects and defects of title, unless otherwise agreed below. In all cases, the statutory provisions shall remain unaffected in the case of final delivery to a consumer (supplier recourse pursuant to § 478 Bürgerliches Gesetzbuch/BGB German Civil Code). The customer shall notify us in writing of any obvious defects within 14 days of receipt of the delivery at the latest, whereby timely dispatch of the notification is sufficient to meet the deadline. If acceptance of the delivered goods by the customer has been contractually agreed, obvious defects must be notified immediately. Defects which cannot be discovered within this period even with the most careful inspection must be notified in writing immediately after discovery, at the latest before the expiry of the limitation periods below. If the customer is a merchant, § 377 Handelsgesetzbuch/ HGB German Commercial Code shall apply to material defects. In the event of a justified notification of defects in due time, we may, at our discretion, remedy the defect or deliver a defect-free item (subsequent fulfilment). The customer shall grant us a reasonable period of time for subsequent fulfilment for each individual defect. The customer may only reduce the purchase price or withdraw from the contract if the subsequent fulfilment has failed or is unreasonable or if we refuse both types of subsequent fulfilment. We shall not be liable for defects which only insignificantly impair the usability of the delivered goods, for only insignificant deviations of the delivered goods from the agreed quality, for natural wear and tear, for the quality of the delivered goods or damage which occurs after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials or lubricants, defective assembly or installation not carried out by us, unsuitable foundation ground or due to other particular influences on the delivery which are not provided in the contract. If our operating or maintenance instructions are not followed, if modifications are made to the products, if parts are replaced or if consumables are used which do not comply with the original specifications, any warranty or liability for material defects shall lapse if the purchaser does not refute a correspondingly substantiated assertion that only one of these circumstances caused the defect. We are entitled to make any subsequent fulfilment owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a part of the purchase price that is reasonable in relation to the defect. In the case of used equipment and materials, the customer shall be entitled to inspect and test them at his own expense before delivery. Upon delivery of the used delivery item, our obligations shall be deemed to have been completely and properly fulfilled. Later complaints are excluded, unless expressly agreed otherwise. Claims for defects shall become statute-barred within one year of delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance. This shall not apply, however, insofar as longer periods are prescribed in § 438 paragraph 1 No. 2 (buildings/materials), § 479 paragraph 1 (right of recourse) or § 634a paragraph 1 No. 2 Bürgerliches Gesetzbuch/BGB, German Civil Code (construction defects). In cases of fraudulent intent, for the claims for damages regulated in the following section and for claims under the Product Liability Act, the longer statutory periods shall also apply.
We shall be liable for breach of contractual and non-contractual obligations in accordance with the statutory provisions, unless otherwise provided for in these General Terms & Conditions, in particular the following provisions. We shall be liable for damages, irrespective of the legal grounds, in the event of intent and gross negligence. In the case of simple negligence, we shall only be liable for damages arising from injury to life, limb or health for damages arising from the breach of a material contractual obligation; in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage. The exclusions and limitations of liability resulting from the above paragraph shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods or services. The same applies to claims of the customer under the Product Liability Act. The customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A unrestricted right of termination on the part of the customer (in particular in accordance with §§ 651, 649 Bürgerliches Gesetzbuch/BGB, German Civil Code) is excluded.