Terms and Conditio s of Delivery and Payment of Diba GmbH

§ 1 General Provisions

 

1.1 Our deliveries shall only be made on the basis of the following terms and conditions. The Terms and Conditions of Delivery and Payment shall only apply if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
1.2 The Terms and Conditions of Delivery and Payment shall apply, in particular, to contracts for the sale and/or delivery of movable goods ("Goods"), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the Terms and Conditions of Delivery and Payment in the version valid at the time of the order shall also apply to similar future contracts without our having to refer to them again in each individual case.

1.3 There are no verbal agreements. Sub-agreements and amendments shall be fixed in text form. We hereby explicitly contradict any deviating terms and conditions of delivery and payment of the customer; they shall only apply with our explicit consent, even if they are known to us.

1.4 Claims of the customer cannot be assigned without our consent.

§ 2 Offer and Conclusion of Contract

2.1 Our offers are non-binding and subject to change unless otherwise explicitly agreed. 
2.2 Orders are only accepted when they have been confirmed by us in writing. Amendments to the order confirmation made by us as well as other agreements and verbal arrangements shall also be confirmed by us in writing. 
2.3 The indications and descriptions depicted in our catalogues and brochures are only decisive if no deviations are explicitly indicated. Should there be modifications with regard to dimensions, weights, illustrations or drawings stated in the catalogues and brochures due to production or other reasons, the customer shall be informed of the relevant modifications in a binding offer. If he accepts this offer by written declaration, only the modified performance data shall be binding. No further written confirmation is required pursuant to § 2.2. This offer shall be deemed to have been accepted if the customer does not declare rejection within three weeks after receipt of the amended offer, provided that the customer was specifically informed of the intended significance of his conduct at the beginning of the period. Minor deviations from the performance specifications shall be accepted as being in conformity with the contract, provided that they do not impair the contractual use of the item. These deviations do not require notification. Obvious errors, misprints, miscalculations, and typographical errors shall not be binding on us and shall not give rise to any claim for performance, rescission, reduction, or damages. 
2.4 The customer assumes full liability for the binding nature of the documents to be supplied by him, such as drawings, gauges, samples or the like. Verbal information on dimensions, tolerances or the like require a confirmation in writing. 
2.5 We reserve the right of ownership and copyright to cost estimates, sketches, drawings, and other documents. They shall neither be made accessible to third parties nor used for other purposes, in particular self-production, without our consent. They must be returned to us immediately upon request. 
2.6 Samples shall only be supplied against payment. 

§ 3 Scope of Delivery

3.1 Our written confirmation of the order or the accepted binding offer pursuant to § 2.3 shall be decisive for the scope of delivery.
3.2 For electrotechnical accessories (engines etc.) the general regulations EN 292-1, EN 292-2, EN 294 and EN 811 shall apply as far as they concern design and performance.
3.3 We reserve the right to make changes to the design or form which result from improvements in technology or to legal requirements during the delivery period, provided that the delivery item is not significantly changed and the change is reasonable for the customer.

§ 4 Delivery Period and Delay in Delivery

4.1 The delivery period shall be agreed individually or stated by us upon acceptance of the order. 

4.2 The periods and dates set by us for deliveries and services are always only approximate unless a fixed period or date has been explicitly confirmed or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the freight agent, carrier or other third party commissioned with the transport. The delivery period shall not commence until all prerequisites for the execution of the order have been met, in particular all details of the execution have been clarified and both parties have agreed on all terms of the contract. The delivery date refers to completion at the factory.

4.3 If we are prevented from fulfilling a contractual obligation due to the occurrence of unforeseen incidents with a duration of more than 14 calendar days, which we or our sub-contractors or sub-suppliers were unable to avert even when exercising reasonable care, e.g. unforced disruptions in operation caused by fire, water and damage to machinery, or resulting from force majeure because of strike, lockout, shortage in energy and raw materials, unforced bottlenecks in transport etc., for which we are not responsible, as well as all other hindrances which, from an objective point of view, are not caused by us, rejection of a part in our own works or at the sub-supplier's works which cannot be replaced immediately, as well as default on the part of the sub-supplier or necessary modifications due to new findings, the delivery period shall be extended by the time during which the aforementioned incidents or its effects last, even if they occur during a delay in delivery. The same shall apply if official or other approvals or documents of third parties required for the importation or exportation of deliveries are not available in time, as well as in the event of subsequent changes to the order. The customer shall be informed of such extensions of the delivery period in writing or in text form.
If the delivery date is exceeded by more than 4 weeks and if it is objectively unreasonable for the customer to adhere to the contract, the customer shall be entitled to withdraw from the contract due to the unfulfilled part of the contract. If the customer has agreed on a binding delivery date, he shall be entitled to withdraw immediately if the timely performance is essential to him.

4.4 We shall be made liable for delay in performance in cases of intent and negligence on our part or on the part of our representative or agent as well as in cases of culpably caused injury to life, body or health in accordance with the statutory provisions. If the occurrence of the delay is based on slight negligence, we shall not be liable for the damages resulting from the delay. Sentence 2 shall not apply if a binding delivery date for the performance has been agreed; in this case we shall be made liable in accordance with the statutory provisions. 
In the case of delay, our liability shall be limited to the foreseeable damage typical for the contract and shall amount to a maximum of 5% of the net purchase price. This limitation shall not apply in the event of injury to life, body or health and not if the occurrence of the delay is due to intent or gross negligence.

4.5 The rights of the customer pursuant to § 8 of these Terms and Conditions of Delivery and Payment as well as our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

§ 5 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

5.1 Delivery shall be made ex works, which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the customer, the Goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.

5.2 The risk of accidental loss and accidental deterioration of the Goods shall be passed to the customer upon handover at the latest. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay shall be passed to the customer upon delivery of the Goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed to have taken place if the customer is in default of acceptance.

5.3 If the customer is in default of acceptance, fails to cooperate or delays our delivery for other reasons for which the customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e. g. storage costs). 

5.4 Insofar as acceptance has to take place, the object of sale shall be deemed to have been accepted when

1. the delivery and if we are also responsible for the installation, the installation has been completed,
2. we have notified the customer of this with reference to the acceptance fiction and have requested the customer to accept the Goods,
3. twelve working days have elapsed since delivery or installation or the customer has started using the object of sale and six working days have elapsed since delivery or installation, and
4. the customer has failed to accept the Goods within this period for a reason other than a defect notified to us which makes the use of the Goods impossible or substantially impairs it.

§ 6 Prices and Perms of Payment

6.1 Unless otherwise agreed in individual cases, our prices current at the time of conclusion of the contract shall apply, namely ex warehouse, plus statutory value added tax.

6.2 In the case of sale by delivery to a place other than the place of performance in accordance with clause 5.1, the customer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the customer. Any customs duties, fees, taxes and other public charges shall be borne by the customer.
 

6.3 The purchase price is due and payable within 30 days from the date of invoice and delivery or acceptance of the Goods. However, we are entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation with the order confirmation at the latest.

6.4 Upon expiry of the afore-mentioned payment deadline, the customer shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default. 

6.5 The retention of payments is only permissible in the case of undisputed or legally established claims or claims which are ready for decision as well as in the case of counterclaims resulting from the same contractual relationship due to a possible defectiveness of the object of purchase or in the case of completion costs, as is the offsetting against such. In the event of costs of remedying defects or additional costs of completion arising from the same contractual relationship, the customer shall not be entitled to a right of retention insofar as the amount retained is not in reasonable proportion to the defects and the anticipated costs of subsequent performance.

6.6 If, after the conclusion of the contract, it becomes apparent (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardised by the customer's inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (customised products), we may declare withdrawal immediately with the statutory provisions on the dispensability of setting a deadline unaffected hereof.

§ 7 Retention of Title

7.1 We reserve title to the Goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).

7.2 The Goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The customer has to inform us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the Goods owned by us.

7.3 In the event of conduct contrary to the contract by the customer, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand surrender of the Goods on the basis of the reservation of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the Goods and to reserve the right of withdrawal. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.

7.4 Until revoked in accordance with (c) below, the customer is authorised to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:

1. The retention of title extends to the full value of the products resulting from the processing, mixing or combining of our Goods, whereby we are deemed to be the manufacturer. If, in the event of processing, mixing or combining with Goods of third parties, their ownership rights remain, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined Goods. In all other respects, the same shall apply to the resulting product as to the Goods delivered under retention of title.
2. Already now, the customer hereby assigns to us by way of security the claims against third parties arising from the resale of the Goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the customer stated in 7. 2 shall also apply with regard to the assigned claims.
3. Apart from us, the customer remains entitled to collect the claim. We undertake not to collect the claim as long as the customer fulfils his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the reservation of title by exercising a right in accordance with 7.3. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to revoke the customer's authorisation to further sell and process the Goods subject to retention of title.
4. If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the request of the customer.

§ 8 Warranty, Material Defects

8.1 The warranty period shall be one year from delivery or, if acceptance is required, from acceptance, unless a longer period is stipulated by law. This period shall not apply to claims for damages by the customer arising from injury to life, body, or health or from intentional or grossly negligent breaches of duty on our part or on the part of our agents, which shall each be time-barred in accordance with the statutory provisions.

8.2 The delivered items shall be inspected carefully immediately after delivery to the customer or to the third party designated by him. With regard to obvious defects or other defects which would have been recognisable in the course of an immediate, careful inspection, they shall be deemed to have been approved by the customer if the customer does not receive a notice of defect in text form within seven working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the customer if we do not receive notification of the defect within seven working days following the date at which the defect became apparent; however, if the defect was already apparent at an earlier time during regular use, this earlier date shall be decisive for the commencement of the period for giving notice of defects. 

8.3 In the event of material defects of the delivered items, we shall first be obliged and entitled to rectify the defect or to make a replacement delivery within a reasonable period of time at our discretion. In the event of failure of the rectification or replacement delivery, the customer may withdraw from the contract or reduce the service in return appropriately. We shall bear the expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, insofar as the complaint is justified, insofar as they are increased by the fact that the item is taken to a place other than the branch of the customer and if the transfer was agreed with us.

8.4 If a defect is due to our fault, the customer may claim damages under the conditions set out in § 10.

8.5 In the event of defects of components produced by other manufacturers which we cannot remedy for licensing or factual reasons, we shall, at our discretion, assert our warranty claims against the manufacturers and suppliers for the account of the customer or assign them to the customer. In the event of such defects, warranty claims against us shall only exist within the framework of the other conditions and in accordance with these Terms and Conditions of Delivery and Payment if the legal enforcement of the afore-mentioned claims against the manufacturer and supplier was unsuccessful or is futile, e. g. due to insolvency. During the legal dispute, the statutes of limitation of the relevant warranty claims of the customer against us shall be suspended.

8.6 Wir haften nicht für Mängel in Folge von unsachgemäßer 8.6 We shall not be liable for defects resulting from improper or unsuitable use, faulty or improper assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent handling, unsuitable operating materials, ingress of foreign bodies, faulty work on deliveries by third parties or external influences. The warranty shall not apply if the customer modifies the delivery item or has it modified by a third party without our consent and the rectification of the defect becomes impossible or unreasonably difficult as a result. In any case, the customer shall bear the additional costs of remedying the defect resulting from the modification.

8.7 The warranty claim shall expire as soon as the customer or third parties commissioned by him carry out unauthorised modifications or repair work - also for commissioning - without our written consent, unless we are in default with the rectification of the defect or have unjustifiably refused to do so. 

§ 9 Industrial Property Rights

9.1 We warrant that the delivery item is free of industrial property rights or copyrights held by third parties. Each contracting party shall notify the other contracting party in writing without delay if claims are asserted against it due to the infringement of such rights.

9.2 In the event that the delivery item infringes an industrial property right or copyright held by a third party, we shall, at our discretion and at our own expense, modify or replace the delivery item in such a way that no third party rights are infringed any more, but the delivery item continues to fulfil the contractually agreed functions, or procure the right of use for the customer by concluding a licence agreement with the third party. If we do not succeed in doing so within a reasonable period of time, the customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. 

9.3 In the event of infringements of rights by products of other manufacturers supplied by us, we shall, at our discretion, assert our claims against the manufacturers and upstream suppliers for the account of the customer or assign them to the customer. In these cases, claims against us shall only exist in accordance with this § 9 if the legal enforcement of the afore-mentioned claims against the manufacturers and suppliers was unsuccessful or is futile, e. g. due to insolvency.

§ 10 Liability for Damages due to Fault

10.1 Our liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with the provisions of this § 10, insofar as this depends on a fault in each case.

10.2 We shall not be liable in the event of simple negligence on the part of our executive bodies, legal representatives, employees or other vicarious agents, unless this involves a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the delivery item in good time, to ensure that it is free from defects of title and material defects which impair its functionality or usability to a more than insignificant extent, as well as advisory, protective and custodial obligations which are intended to enable the customer to use the delivery item in accordance with the contract or which are intended to 

10.3 Insofar as we are basically liable for damages pursuant to § 10.2, this liability is limited to damages which we foresaw as a possible consequence of a breach of contract at the time the contract was concluded or which we should have foreseen if we had exercised due care. Indirect damage and consequential damage resulting from defects of the delivered item shall also only be compensable insofar as such damage is typically to be expected when the delivered item is used for its intended purpose.

10.4 The above exclusions and limitations of liability shall apply to the same extent in favour of our executive bodies, legal representatives, employees and other agents.

10.5 The limitations of this §10 do not apply to our liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.

§ 11 Place of Performance, Place of Jurisdiction, Choice of Law

11.1 The place of performance for delivery and payment is our factory in Deining.

11.2 In the event of disputes arising from the contractual relationship, legal action shall be brought before the court having jurisdiction over our principal place of business. We are also entitled to take legal action at the headquarters of the customer.

11.3 German law shall apply exclusively with laws on the international sale of movable Goods excluded, even if the customer has his registered office abroad.

§ 12 Costs for Cancellation

If the customer cancels an order without justification, we shall credit the customer with the invoice amount less 10% for inspection and handling costs and lost profit. The ordering party reserves the right to prove a lower damage.

§ 13 Miscellaneous

13.1 Any transfer of rights and obligations of the customer under the contract concluded with us shall require our written consent in order to become effective.

13.2 Insofar as the contract or these Terms and Conditions of Delivery and Payment contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.