ds automation GmbH - Geschäftsbedingungen

General Terms and Conditions of ds automation GmbH

Validity

All deliveries, services and offers of ds automation gmbh (hereinafter referred to as "Supplier") shall be made exclusivly on the basis of these General Terms and Conditions of Delivery. These are an integral part of all contracts which the supplier concludes with his contractual partners (hereinafter also referred to as "client") for the deliveries or services offered by him. They shall also apply to all future deliveries, services or offers to the client, even if they are not separately agreed again.
Terms and conditions of the Client or third parties shall not apply, even if the Supplier does not separately object to their validity in individual cases and performs services without reservation. Even if the supplier refers to a letter that contains or refers to the terms and conditions of the client or a third party, this does not constitute an agreement with the validity of those terms and conditions.

Offer, conclusion of contract, scope of services

All offers of the supplier are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The supplier may accept orders or contracts within 14 days of receipt.
The written contract, including these General Terms and Conditions of Delivery, shall be solely authoritative for the legal relationship between the supplier and the client. This contract fully reflects all agreements between the contracting parties on the subject matter of the contract. Oral promises made by the supplier prior to the conclusion of this contract are not legally binding and oral agreements between the contracting parties shall be replaced by the written contract unless it is expressly stated in each case that they shall continue to be binding.
If the client requests changes after conclusion of the contract, the supplier shall examine these change requests for technical feasibility and reasonableness. Should the parties agree on a change, this work shall be invoiced either according to the supplier's then valid prices or according to a special written agreement made between the contracting parties. Additions and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be in writing to be effective. With the exception of the managing director, the supplier's employees are not entitled to make verbal agreements deviating from the written agreement. Transmission by telecommunication, in particular by fax or by e-mail, shall be sufficient to comply with the written form.
Information provided by the supplier on the object of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as representations of the same by the supplier (e.g. drawings and illustrations) are only approximately authoritative, unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components by equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose. Technical standards serve merely to describe performance, unless the supplier provides an express guarantee of compliance with a technical standard. Guarantees of quality or durability must be made in writing.
The supplier is entitled to use subcontractors to fulfil the obligations.
The supplier retains ownership or copyright of all offers and cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the client. Without the express consent of the supplier, the client may not make these items available to third parties, either as such or in terms of content, disclose them, use them himself or through third parties or reproduce them. At the Supplier's request, the Client shall return these items in full to the Supplier and destroy any copies made if they are no longer required by the Supplier in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. The storage of electronically provided data for the purpose of usual data backup is excluded from this.
All rights to know-how and results eligible for protection (e.g. inventions, copyrights) shall remain with the supplier, unless otherwise agreed between the parties. The supplier shall be entitled to use the know-how acquired in connection with the performance of the contract without restriction for its own business purposes.

Prices and payment

The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. The prices are quoted in EUR ex works plus the statutory value added tax. Packaging and, in the case of export deliveries, customs duties, fees and other public charges are not included.
Insofar as the agreed prices are based on the supplier's list prices and the delivery is to take place more than four months after conclusion of the contract, the supplier's list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).
Invoice amounts are to be paid within thirty days without any deduction, unless otherwise agreed in writing. The date of receipt by the supplier shall be decisive for the date of payment. Payment by cheque is excluded unless it is agreed separately in individual cases. If the Client fails to make payment when due, the outstanding amounts shall bear interest from the due date at 9 percentage points above the base rate; the right to claim higher interest and further damages in the event of default shall remain unaffected.
Offsetting against counterclaims of the Client or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established or arise from the same order under which the delivery in question was made.
The supplier shall be entitled to perform or render outstanding deliveries or services only against advance payment or the provision of security if, after the conclusion of the contract, it becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the client and as a result of which the payment of the supplier's outstanding claims by the client under the respective contractual relationship (including under other individual orders to which the same framework agreement applies) is put at risk.
If the parties have agreed on payment by instalments, the entire amount shall become due if the client defaults on an instalment.

Lieferung und Lieferzeit

Deliveries are made ex works (EXW).
Deadlines and dates for deliveries and services promised by the supplier are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport.
If work is to be carried out by the supplier at the client's premises, the client shall be obliged to fulfil its duties to cooperate, in particular to grant access to the premises and to provide access to equipment and information. The client shall be responsible for ensuring that data provided by him are correct. He shall also ensure that the data protection regulations are complied with.
The supplier may - without prejudice to its rights arising from default on the part of the client - demand from the client an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period during which the client fails to meet its contractual obligations towards the supplier.
The supplier shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure.
This shall also apply if the impossibility or the delay in delivery is caused by other events unforeseeable at the time of the conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which the supplier is not responsible. Insofar as such events make it significantly more difficult or impossible for the supplier to provide the delivery or service and the hindrance is not only of temporary duration, the supplier is entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the client cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by means of an immediate written declaration to the supplier.
The supplier is only entitled to make partial deliveries if
- if the partial delivery is usable for the Client within the scope of the contractual intended purpose,
- the delivery of the remaining ordered goods is ensured and
- the client does not incur significant additional expenses or costs as a result (unless the supplier agrees to bear these costs).
If the supplier is in default with a delivery or service or if a delivery or service becomes impossible for him, for whatever reason, the supplier's liability for damages shall be limited in accordance with § 8 of these General Terms and Conditions of Delivery.

Place of performance, dispatch, packaging, transfer of risk, acceptance

The place of performance for all obligations arising from the contractual relationship is Schwerin, unless otherwise determined. If the supplier is also responsible for the installation, the place of performance shall be the place where the installation is to take place.
The risk shall pass to the client at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or the supplier has assumed other services (e.g. shipping or installation). If the dispatch or handover is delayed due to a circumstance the cause of which lies with the client, the risk shall pass to the client from the day on which the delivery item is ready for dispatch and the supplier has notified the client of this.
Storage costs after transfer of risk shall be borne by the client. In the event of storage by the supplier, the storage costs shall amount to 0.25 % of the invoice amount of the delivery items to be stored per expired week. We reserve the right to claim and prove further or lower storage costs.
The consignment shall only be insured by the supplier against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the client and at the client's expense.
If acceptance is to take place, the subject matter of the contract shall be deemed to have been accepted if
- the delivery and, if the supplier also owes the installation, the installation has been completed,,
- the supplier has notified the client of this and requested acceptance,
- twelve working days have passed since delivery or installation or the client has started to use the subject matter of the contract (e.g. has put the delivered system into operation) and in this case six working days have passed since delivery or installation and
- the client has failed to take delivery within this period for a reason other than a defect notified to the supplier which makes the use of the contractual product impossible or significantly impairs it.
In the event of any resale, the client shall be responsible for compliance with any export regulations and shall release the supplier from all obligations in this respect.

Warranty, material defects

The warranty period shall be one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to claims for damages by the client arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the supplier or its vicarious agents, which shall each be time-barred in accordance with the statutory provisions.
The delivered items shall be inspected carefully immediately after delivery to the purchaser or to the third party designated by the purchaser. 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 purchaser if the supplier does not receive a written notice of defect within seven working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the buyer if the supplier does not receive the notification of defects within seven working days after the time at which the defect became apparent; however, if the defect was already apparent at an earlier time during normal use, this earlier time shall be decisive for the start of the period for notification of defects. At the supplier's request, a rejected delivery item shall be returned to the supplier carriage paid. In the event of a justified complaint, the supplier shall reimburse the costs of the most favourable shipping route. Additional costs arising from the fact that the delivery item is located at a place other than the place of intended use shall not be reimbursed.
No defect shall be deemed to exist in the case of minor colour deviations, dimensional differences, deviations from samples, specimens and templates, insofar as these are reasonable for the contractual partner and the item is suitable for normal use. A material defect shall also not be deemed to exist in the event of unsuitable or improper use, incorrect storage, faulty assembly or commissioning by the client or third parties, natural wear and tear and faulty or negligent handling.
In the event of material defects in the delivered items, the supplier shall first be obliged and entitled to repair or make a replacement delivery, at its discretion to be made within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the Client may withdraw from the contract or reduce the purchase price appropriately.
Parts replaced by the supplier in the course of defect rectification measures shall become the property of the supplier.
If a defect is based on the fault of the Supplier, the client may claim damages under the conditions set out in § 8.
The client may not assert claims for compensation of defects if he is aware of the defect at the time of conclusion of the contract or is grossly negligent in not being aware of it, unless the supplier has maliciously concealed the defect or has given a guarantee of quality which relates to the defect.
In the event of defects in components of other manufacturers which the supplier cannot eliminate due to licensing or factual reasons, the supplier shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the client or assign them to the client. Warranty claims against the Supplier shall only exist in the case of such defects under the other conditions and in accordance with these General Terms and Conditions of Delivery if the legal enforcement of the above-mentioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute, the limitation period for the relevant warranty claims of the Client against the Supplier shall be suspended.
The warranty shall not apply if the client modifies the delivery item or has it modified by a third party without the supplier's consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the client shall bear the additional costs of remedying the defect resulting from the modification.
Any delivery of used items agreed with the Client in individual cases shall be made to the exclusion of any warranty for material defects.

Property rights

The supplier warrants in accordance with this § 7 that the delivery item is free from industrial property rights or copyrights of 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.
In the event that the delivery item infringes an industrial property right or copyright of a third party, the supplier shall, at its discretion and at its expense, modify or replace the delivery item in such a way that the rights of third parties are no longer infringed, but the delivery item continues to fulfil the contractually agreed functions, or procure the right of use for the client by concluding a licence agreement with the third party. If the supplier does not succeed in doing so within a reasonable period of time, the client is entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages of the client are subject to the limitations of § 8 of these General Terms and Conditions of Delivery.
In the event of infringements of rights by products of other manufacturers delivered by the supplier, the supplier shall, at its discretion, assert its claims against the manufacturers and upstream suppliers for the account of the client or assign them to the client. Claims against the supplier shall only exist in these cases in accordance with this § 7 if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or is futile, for example due to insolvency.

Liability for damages due to fault

The supplier's 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 § 8, insofar as fault is relevant in each case.
The supplier shall not be liable in the event of simple negligence on the part of its organs, legal representatives or employees, insofar as this does not involve a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the delivery item in due time, its freedom from defects of title as well as such material defects that impair its functionality or usability more than insignificantly, as well as consulting, protection and care obligations that are intended to protect the life or limb of the client's personnel or to protect the client's property from significant damage.
Insofar as the supplier is liable on the merits for damages pursuant to § 8 (2), this liability shall be limited to damages which the supplier foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which it should have foreseen by exercising due care. Indirect damages and consequential damages which are the result of defects in the delivery item are also only eligible for compensation insofar as such damages are typically to be expected when the delivery item is used as intended.
In the event of liability for simple negligence, the supplier's obligation to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to an amount of EUR 25,000 per case of damage, even if this involves a breach of material contractual obligations.
The above exclusions and limitations of liability apply to the same extent in favour of the executive bodies, legal representatives and employees of the supplier.
Insofar as the supplier provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by him, this shall be done free of charge and to the exclusion of any liability.
In the event of loss of test data or damage to data carrier material, the supplier's liability is limited to the material value of the data carriers and thus does not include, in particular, the expense of replacing lost data.
The restrictions of this § 8 do not apply to the liability of the supplier for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.

Retention of title

The supplier retains ownership of the contractual objects until full payment of all claims of the supplier arising from the respective contractual relationship. The supplier is entitled to take back the subject matter of the contract if the client does not fulfil his obligations, in particular his payment obligation.
Der Auftraggeber ist verpflichtet, solange das Eigentum noch nicht auf ihn übergegangen ist, den Vertragsgegenstand pfleglich zu behandeln. Insbesondere ist er verpflichtet, diesen auf eigene Kosten gegen Diebstahl-, Feuer- und Wasserschäden ausreichend zum Neuwert zu versichern.
As long as ownership has not yet passed to the client, the client is obliged to treat the subject matter of the contract with care. In particular, he is obliged to insure it adequately at his own expense against theft, fire and water damage at replacement value.
The supplier undertakes to release the securities to which it is entitled at the request of the client insofar as their value exceeds the claims to be secured by more than 20%.
An insolvency petition filed against the assets of the customer shall entitle the supplier to demand the immediate return of the goods subject to retention of title.
The client shall inform the supplier immediately of any seizures, attachments and other dispositions and interventions by third parties.

Safety regulations

If the client intends to use the contractual products outside of Germany, it shall be responsible for and obliged to comply with the mandatory national laws, regulations and safety regulations there, in particular with regard to the approval, installation, operation, maintenance and repair of the contractual items. The client is obliged to indemnify the supplier against all claims asserted against the supplier due to the client's non-compliance with such regulations.

Secrecy

Each party shall use trade and business secrets, order offers or contracts as well as other not generally known information, documents, personal data and similar worthy of protection exclusively for the contractually agreed purposes, treat them with the confidentiality customary in the industry and protect them against access by third parties. This shall also apply for the time after termination of the contractual relationship. Disclosure to third parties requires the prior written consent of the other contracting party.
Both parties are free to use the ideas, concepts, experiences and techniques already known to the industry.
After termination of the contract, each party shall be obliged to surrender on request any documents and materials handed over by the other party for the purpose of performance of the contract. A right of retention is excluded.

Final provisions

If the client is a merchant, a legal entity under public law or a special fund under public law or if it has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the supplier and the client shall be Schwerin or the registered office of the client, at the supplier's discretion. However, Schwerin shall be the exclusive place of jurisdiction for actions against the supplier in these cases. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
The relations between the Supplier and the client shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of its conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (CISG) shall not apply.
Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed 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.