General Terms and Conditions
General Terms and Conditions of Dr. Demuth GmbH & Co. KG
Section 1 Conclusion of the agreement/Scope
Our General Terms and Conditions of Business (hereinafter referred to as 'Terms and Conditions') shall apply to all present and future business relations between Dr. Demuth GmbH & Co. KG (hereinafter referred to as 'Dr. Demuth') and our future customers, who are entrepreneurs in the meaning of Section 14 BGB [German Civil Code], legal entities under public law or a separate estate under public law. Deviating, contradicting or supplementary terms and conditions of business of the customer shall not be deemed an integral part of the contract unless we expressly approve the application of these terms and conditions in writing.
The updated version of our Terms and Conditions is available to our customers for printout on our website »www.katlenburger.de«.
Section 2 Conclusion of the agreementOffers made by Dr. Demuth are non-binding. Technical changes as well as changes to form, colour and/or weight remain reserved unless they constitute a substantial deviation from the contractual or normal quality. A contract is concluded under the provison that Dr. Demuth is correctly and timely supplied by their suppliers. The customer shall be immediately informed about the non-availability of a service; any consideration already provided shall be immediately reimbursed by Dr. Demuth. This shall apply mutatis mutandis in the event of considerable, unforeseeable disruptions or interruptions in Dr. Demuth's operations through no fault of Dr. Demuth.
Section 3 Delivery
Delivery is effected ex works.
Delivery deadlines are only binding if they have been expressly agreed with the customer. Dr. Demuth is entitled to a reasonable postponement of the relevant delivery and service obligations in case of strike, lockout, other disruptions of operation of any type and subsequently occurring difficulties with the procurement of any raw materials and/or utilities or with the shipment or transport of the goods, unless Dr. Demuth, their organs or those persons engaged with the performance of Dr. Demuth's obligations to whom special managerial tasks have been delegated caused the delay in an intentional or grossly negligent manner. This shall apply mutatis mutandis in the event of improper and/or late delivery by Dr. Demuth's suppliers or if other hindering circumstances beyond the control of Dr. Demuth occur. In cases, in which a delay of the service is foreseeable, Dr. Demuth shall immediately inform the customer that the service cannot be rendered in due time, indicating the reasons and the estimated time of provision of services.
Even in cases in which a fixed delivery time or a fixed delivery period has been agreed, Dr. Demuth shall be granted an appropriate grace period for being deemed in default. Upon fruitless expiry thereof, the customer may withdraw from the service or partial service for which no readiness for shipment has been notified upon expiry of the grace period.
If a deposit or another advance or cooperation duty of the customer has been agreed on and the rendering of the service depends on the timely deposit or service of the customer, and the rendering of the service is delayed for reasons for which the customer is responsible, Dr. Demuth may charge the customer for the costs Dr. Demuth has incurred in this respect.
Partial delivery is allowed to the extent to which it is reasonable for the customer.
The risk of accidental loss and accidental deterioration of the goods pass to the customer upon notification of readiness if collection by the customer has been agreed on. In case of purchase to destination, the risk passes to the person entrusted with the shipment upon handover of the goods.
The dimensions, weights and quantities stated in the shipping/accompanying documents shall be relevant for invoicing. Complaints regarding dimensions, weight and quantity of the goods delivered shall be made in writing immediately upon receipt of the goods at their place of destination.
Section 4 Prices/Conditions of payment/Offsetting/Creditworthiness
Agreed prices are generally stated as net prices, plus the respective statutory value-added tax and not including the costs of packaging, shipment, insurance and any possible customs duties.
The customer shall not be entitled to withhold or offset payments on grounds of any counterclaims including claims for defects unless such counterclaims are uncontested, recognised by a final court order or ready for decision by a court.
Unless agreed to the contrary, the claims of Dr. Demuth for the rendered deliveries and services shall be due for payment within 14 calendar days of the date of invoice without any deduction. Any cash discount regulation is not valid unless agreed in writing.
In the event of non-compliance with the term of payment, Dr. Demuth shall be entitled to charge interest as of the date of maturity according to Section 353 HGB [Handelsgesetzbuch = German Commercial Code]. Moreover, in case of default, Dr. Demuth shall be entitled to charge default interest in the amount of 8 percentage points above the relevant base rate of the European Central Bank. The assertion of further default damage is reserved. In addition, in the event of default of payment, Dr. Demuth may, upon written notification of the customer, suspend the performance of their obligation until receipt of the remuneration.
In case of circumstances which may lower the creditworthiness of the customer (e. g. dishonouring of a cheque), Dr. Demuth may declare any and all claims from the business relation due independent from the stipulated terms of payment and demand immediate payment. Deliveries may be made conditional on a step by step payment.
Section 5 Retention of title
The goods shall remain our property until all mutual and future claims from the business relationship with the customer are complied with. This shall also apply if the individual claim is included in the current invoice and the cash discount is recognised.
The customer is obliged to store the goods subject to retention of title safely and insure them against loss and damages at their own expense. The customer herewith assigns all of their claims from insurance contracts to Dr. Demuth in advance. Dr. Demuth accepts the assignment. The customer is obliged to store and mark our goods separately.
Any processing or conversion of the goods subject to retention of title is made by the customer on our behalf without any obligations incurring in this respect. If the customer combines, mixes, blends or processes the goods subject to retention of title with other goods or restructures them, we will acquire co-ownership in the new goods resulting thereof in the relation of the invoice value of the goods subject to retention of title to the value of the other goods. In this respect, the new goods are deemed goods subject to retention of title in the meaning of these terms.
Any sale of the goods subject to retention of title is only possible in the ordinary course of business. Other dispositions like pledging or assignment by way of security of the goods subject to retention of title are not permitted. Any and all claims of the customer in view of the goods subject to retention of title from resale or on other legal grounds are herewith assigned in full to Dr. Demuth in advance by the customer. In the event of co-ownership, the assignment shall only relate to the proportion of the claim corresponding to the share of our co-ownership. Dr. Demuth herewith accepts the assignment. Any resale is only permitted if this assignment is ensured.
The customer shall be revocably authorised to collect the assigned claims in the ordinary course of business. Upon request of Dr. Demuth, the customer shall inform their customers about the assignment. Dr. Demuth shall have the right to anticipate this notification of the assignment at any time if the customer is in default of their payment obligations.
The authorisation of the customer to dispose of the goods subject to retention of title and for collection of the assigned claims shall expire in the event of non-compliance with the payment conditions, unauthorised disposals, bill of exchange and cheque protests and when an insolvency proceeding against the customer has been requested or Dr. Demuth gains knowledge of a considerable deterioration of the customer's financial situation.
In the cases of no. 6, Dr. Demuth shall be entitled to immediately repossess the goods subject to retention of title, to access the premises of the customer in this respect, to demand relevant information about the goods subject to retention of title and any claims from their resale and to inspect the books of the customer to the extent to which this serves for securing the rights of Dr. Demuth. The repossession only constitutes a withdrawal from the agreement if Dr. Demuth explicitly declares so in writing.
Should the value of the securities provided to Dr. Demuth exceed the total claims of Dr. Demuth by more than 10%, Dr. Demuth shall be obliged to release the excess securities at their own discretion and at their own election.
Section 6 Defects
Any quality and durability warranty shall only be deemed given by Dr. Demuth if Dr. Demuth explicitly declares so in writing. Should any object of the contract not comprise any stipulated quality, the customer shall have the statutory rights for defects. Any special guarantee giving rise to additional rights shall not be assumed. Any agreement about the quality of any goods does not give rise to any stricter liability than envisaged by law. Public statements, recommendations or advertising messages of Dr. Demuth do not constitute any contractual indication of quality.
The customer shall be obliged to send a written notice of defects in view of any claims immediately, but no later than 7 calendar days upon receipt of the goods at the point of destination. Defects which cannot be detected within this period in spite of careful inspection shall be communicated in writing immediately upon detection but no later than within 7 calendar days upon detection. In the event of non-compliance with the complaint period, the goods are deemed approved. If Dr. Demuth is not given the opportunity to inspect the notified defect or if the customer amends the goods subject to the complaint without the consent of Dr. Demuth, the customer loses the claims for damages.
In case of proven defects, Dr. Demuth shall – at their own discretion – remedy the defect free of charge or deliver a replacement free of charge against return of the goods subject to complaint. Should Dr. Demuth fail to meet these obligations or fail to do so within a reasonable time in accordance with the terms of the contract, the customer shall set a reasonable grace period for Dr. Demuth to comply with their obligations. After unsuccessful expiry of this period, the customer may claim a reduction of the price or withdraw from the contract. Defects only slightly reducing the value or fitness of the goods are not subject to claims for defects except for claims for reduction.
Claims for defects shall become time-barred twelve months upon handover of the goods at the relevant point of destination. This shall not apply to the extent to which longer periods are mandatory by law.
Section 7 Limitations of liability
Dr. Demuth shall be liable, in accordance with both the preceding and the following limitations of liability, for any injury of life, body and health subject to any intentional or grossly negligent violation of obligations by Dr. Demuth, their legal representatives or performing agents as well as for damage covered by the liability according to the German Product Liability Act and for damage based on intentional or grossly negligent violations of obligations and on bad faith or any assumed guarantee.
Dr. Demuth shall also be liable for damage caused by simple negligence to the extent to which such negligence relates to the violation of such contractual obligations, the fulfilment of which make the proper execution of the contract possible in the first place and in compliance of which the contractual partner trusts and may trust on a regular basis (so-called cardinal duties such as the service or delivery of the goods free of defects). However, Dr. Demuth shall only be liable to the extent to which the damage is typically related to the contract and foreseeable and the liability is limited to the maximum amount of € 1.0 million per event of damage or a maximum amount of 1.5 million per year.
The limitations of liability contained in the above sentences shall also apply to the extent to which the liability relates to the legal representatives, executives and any other performing agents of Dr. Demuth. Any further liability shall be excluded irrespective of the legal nature of the claim made. To the extent to which the liability of Dr. Demuth is explicitly excluded or limited, this shall also apply to the personal liability of their employees, staff members, workers, representatives and any other vicarious agents.
Claims for damages become time-barred one calendar year upon delivery of the goods or rendering of the services independent from any knowledge of the customer of the cause of the damage and/or who caused it. The short statute of limitations shall not apply in cases of gross negligence or intentional acts on the part of Dr. Demuth or in case of any injury or death of persons for which Dr. Demuth is responsible or in any other cases in which longer periods are mandatory by law.
Unless expressly agreed to the contrary, Dr. Demuth shall not be obliged to pay any contractual penalty or pay lump-sum damages or reimburse expenses.
Section 8 Third-party rights/copyrights
If deliveries are made according to plans, drawings, models, analytical specifications, or other customer requirements that infringe third-party rights, including but not limited to, industrial property rights, the customer shall be obliged to exempt Dr. Demuth from these claims under the code of obligations upon first request and undertakes to provide Dr. Demuth a liquid security in the form of a directly enforceable and unlimited bank guarantee.
Dr. Demuth shall reserve any title and copyrights in samples and drafts. These objects and/or information may solely be used in connection with the goods delivered by Dr. Demuth and may not be made accessible to third parties without the explicit written consent of Dr. Demuth.
Section 9 Place of performance/Place of jurisdiction/Applicable law
Katlenburg-Lindau is the place of performance unless any other place of performance is mandatory by law. The place of jurisdiction for all litigations arising out of or in connection with the contractual relationship is the court competent for Katlenburg-Lindau unless any exclusive place of jurisdiction is mandatory by law. This shall also apply to actions related to bills of exchange and cheques. Dr. Demuth, however, shall be entitled to file an action at the customer's place of business.
All legal relations between Dr. Demuth and the customer are exclusively governed by the law of the Federal Republic of Germany as applicable under exclusion of conflict of law provisions of International Private Law and the United Nations Convention on the International Sale of Goods.
Section 10 MiscellaneousThere are no ancillary agreements to the written contract and these General Terms and Conditions of Business. Changes and amendments shall be made in writing. Should any provision of this contract or these General Terms and Conditions of Business be or become invalid, this shall not affect the validity of the remaining contract or General Terms and Conditions of Business. The parties shall be obliged to replace any invalid regulation by a provision by means of which the intended, legal and/or economic purpose can be reached as far as possible. Should all of this not be possible, any invalid regulations shall be reduced to a degree at which they are legally valid (reduction of invalid provisions to preserve validity).
As of: 01/10/2013