DaVent Europe GmbH - General delivery and sales conditions
§ 1 Area of application
§ 2 Contract conclusion
§ 3 Payment and prices
§ 4 Customer default
§ 5 Delivery and service terms
§ 6 Risk transfer
§ 7 Guarantee
§ 8 Transfer of title
§ 9 Liability
§ 10 Miscellaneous
1. The following conditions apply to all our sales transactions with any of our customers. They also apply to future contracts, even if the latter do not include an express reference to the General Terms and Conditions. We do not accept conditions of our customer that conflict with or deviate from our terms and conditions. This applies especially to order notifications and general correspondence, even if not objected expressly.
2. No other agreements are made. Any other oral agreements are subject to a written confirmation for evidence purpose.
§ 2 Contract conclusion
1. Our catalogues and other product descriptions are provided for convenience only and do not include a legally valid offer. Our offers are subject to change without notice.
2. The customer must submit the contract application. We are entitled to accept a customer’s offer within two weeks. The conclusion of a contract is subject to a written order confirmation or the transfer and/or delivery of the purchase subject.
§ 3 Payment and prices
1. All prices are “ex works” and incl. normal packaging plus legal VAT.
2. Prices are payable net without discount. Discount is not granted unless expressly agreed otherwise. The acceptance of cheques and bills of exchange is subject to a special agreement and is only granted on account of performance. We do not bear bank, discount and draft expenses.
3. In case of a period of more than four months between the conclusion of the contract and the delivery date, we are entitled do reasonably adjust the agreed prices according to the percentaged variation of the costs incurred by us with regards to material, transport, staff, customs or duties.
4. Our claims cannot be offset or subjected to a retention of title unless such counter claims are legally valid, ascertained, undisputed and accepted by us.
§ 4 Customer default
1. The customer is deemed to be in default when due payments are not settled within a period of 30 days from the receipt of the invoice or a similar request for payment. We reserve the right to give notice at an earlier time by sending a reminder to be served when payments fall due. Notwithstanding the sentences 1 and 2 the customer is deemed to be in default when a payment is agreed for a specified calendar date and the customer has not performed the payment up to this date at the latest.
2. In case of a customer default, we are entitled
a) without prejudice to a higher damage to be evidenced, to claim an annual interest of 8 percent above the base rate;
b) to immediately lodge all claims arising from this or other transactions; even in case of individual instalments that are still against the customer;
c) to retain deliveries and other services relating to this or other transactions up to the complete settlement of all of our claims from this or other orders by the orderer.
§ 5 Delivery and service terms
1. Delivery dates and delivery terms can be agreed binding and non-binding and must always be noted in writing. Deliveries are subject to a correct and punctual supply to ourselves.
2. Delivery and performance terms shall be extended reasonably in case of actions resulting from labour disputes and in particular strikes and lockouts as well as in cases of unforeseeable events, if such events lead to temporary delivery delays and if such events are not caused by our suppliers or sub-contractors.
§ 6 Risk transfer
1. Delivered upon a special agreement and the sole risk of the customer only.
§ 7 Guarantee
1. The purchased item with all of its specifications and characteristics as well as the intended purpose is the sole contract subject. The customer can view the respective product description prior to the conclusion of the purchase agreement. Other and additional specifications and/or characteristics or an additional intended purpose are only deemed as agreed if expressly confirmed by us in writing. References to the general usability of the purchased item do not exempt the customer from his obligation to verify the suitability of the purchased item for the intended purpose.
2. Identified defects must be notified to us in writing immediately. This also applies to defects identified subsequently to an attempted rectification. Defects that are not considered as latent defects, must be notified to us within 5 days from the date of receipt. If no notification is sent to us within this period, the goods are deemed as accepted free of defects.
3. If the customer requests supplementary performance under any legal provision, we are entitled to fulfil this request on our sole discretion by eliminating the defect without delivering a product free from defects. The customer is only entitled to reduce the purchase price or to withdraw from the contract after the supplementary performance has failed.
4. The warranty period is 1 year from the date of receipt of the goods.
5. In any case, eventual claims of the customer concerning personal damages or in case of an fraudulent concealment of a defect or in case of an assumed liability for the appearance and workmanship or a procurement risk remain unaffected.
§ 8 Retention of title
1. Delivered goods remain our property to the complete fulfilment of any and all existing and future claims from the business relationship, including incidental and damage claims as well as encashment and discharge of cheques and/or bills of exchange. For current invoices the retained property of the delivered goods (conditional goods) serves as guarantee for the customer’s liabilities.
2. The customer is entitled to process the conditional goods in the course of his normal business activities and to sell such goods under retention of title unless he has failed to fulfill his obligations. Pledgings and a transfer by way of security are not allowed.
3. If the delivery item is connected to other objects, the customer agrees to assign his property rights with regards to the newly produced items to us and to keep these items for us with the diligence of a reasonable merchant; to the extent to which we are not co-owners in proportion to our share in the conditional goods by law. The property of such item shall serve as our guarantee up to the value of the conditional goods only.
4. The customer generally assigns any claims resulting from a resale of the goods and the items produced with the latter to us; eventually proportionally to our co-ownership to the property rights of third parties. Upon request, the customer agrees to notify to us the debtors of the assigned claims and the amount of such claims and to notify the assignment to such debtors. Subject to our revocation, the customer is entitled to collect the assigned claims. The collected amounts must be forwarded to us up to the amount of our share and the amount of our purchase price claim, if applicable.
5. If the customer installs the conditional goods in real property, he generally agrees to assign the corresponding claims equalling to the invoice value of the conditional goods with all ancillary rights including the right of granting a security mortgage of superordinated ranking. If the customer has sold the claims in the context of a real factoring, our claim shall fall due immediately and the customer assigns his claims towards the factor to us, forwarding the sales proceeds to us immediately. We accept such assignment.
6. If the lien exceeds our claims by more than 50%, we are obligated upon the customer’s request, to release securities up to a reasonable coverage limit. In case of multiple securities, the selection of the securities to be released is upon our discretion.
7. In case of a default of payment by the customer, we are entitled, upon expiry of a reasonable period of grace, to withdraw from the contract and demand the return of the goods.
§ 9 Liability
1. In any cases of a breach of contractual, pre-contractual or legal obligations we are only liable in case of a deliberate act or gross negligence.
2. In case of a negligent breach of obligations by us or our vicarious agents we are only liable in case of a breach or non-observance of essential contractual obligations and only with regards to the contract-typical foreseeable damage.
3. Our liability in case of a fraudulent concealment of a defect, from the assumption of a guarantee or the procurement risk, according the Product Liability Act or for personal damages remains unaffected.
4. The liability for late deliveries is regulated finally in §5.
5. A personal liability of our legal representatives, vicarious agents and employees for damages caused by them through slight negligence is excluded.
§ 10 Miscellaneous
1. The contract relationship including the General Terms and Conditions are subject to the German law only, even if the customer resides in a foreign country or the contract relates to an export transaction.
2. If any of the provisions above should be or become invalid, all other terms and conditions remain in full effect. The contract parties agree to change the invalid provision into a valid provision with a similar economic effect as far as possible.
3. Hagen (Germany) is the competent court of jurisdiction. However, we are also entitled to file a claim against the customer at his general court of jurisdiction.