D+H Mechatronic AG
Terms and conditions of sale and supply for business transactions with contractors
I. General Provisions
- A Contractor in terms of these Terms and Conditions is defined as any natural person or legal entity or private limited company having legal capacity from private or public law or a special estate under public law that has entered into a business relationship and acts in the exercise of a commercial or independent professional activity.
- The conditions below shall apply for all business relationships and shall also be used with respect to business entities (referred to hereinafter as Buyer) as the foundation for all future business. The version currently valid at the time of conclusion of the contract is authoritative. The mutual written declarations shall be authoritative for the scope of the deliveries or services (hereinafter referred to together as Deliveries). However, the Buyer's General Terms and Conditions shall apply only insofar as D+H Mechatronic AG (referred to hereinafter as D+H) has expressly approved them in writing.
II. Offer, Conclusion of Contract
- D+H shall be bound by all offers for three months. The contractual relationship shall become effective upon the receipt at D+H of the offer countersigned by the Buyer.
- Notwithstanding subsection II.1, if the contract is initiated via the e-Shop at mydh.dh-partner.com, the following applies: The order submitted by the Buyer is a binding offer. D+H can accept this offer within two weeks either by sending an order confirmation or by sending the ordered delivery within this period. D+H assumes no warranty for constant availability of the online shop at mydh.dh-partner.com. The availability may be temporarily limited, particularly due to technical faults or force majeure as well as maintenance and development work. D+H expressly reserves the right to temporarily deactivate or limit the performance of the platform for maintenance and development work.
- The transfer of the Buyer's rights and duties under the contract or the resale of Deliveries before its receipt requires written consent from D+H.
- D+H reserves the right to produce deviations from samples or earlier Deliveries due to manufacturing requirements in order to improve the product.
III. Prices and Payment Conditions
- The prices are based on Deliveries ex works plus the respective applicable statutory value-added tax.
- If D+H is responsible for installation or assembly and nothing else is agreed upon, the Buyer shall, in addition to the arranged price, bear all required ancillary costs, such as travel costs, costs for transporting necessary tools and personal luggage, and per diem allowances or similar.
- Payments shall be made to D+H within 8 days from the date of invoice, with 3% discount, or 30 days net, and free of transaction charges.
- The Buyer may only set off such counterclaims that are undisputed or which have been conclusively determined by a court; a right of retention may only be claimed if it is based on undisputed or legally determined claims from the same contractual relationship or D+H has grossly violated its obligations from the same contractual relationship.
IV. Retention of Title
- The objects of the Deliveries (Retained Goods) shall remain the property of D+H until all present and future claims from the purchase contract or the current business relationship owed by the Buyer are fulfilled. If the realizable value of all security rights to which D+H is entitled exceeds the amount of all secured claims by more than 10%, D+H shall release a corresponding part of the security rights at the request of the Buyer.
- For the duration of the retention of title, the Buyer shall be prohibited from pledging or assigning as security or the Deliveries. The Buyer must immediately notify D+H in the event of seizure, confiscation or other dispositions or interventions by third parties.
- The resale or processing of the Retained Goods by the Buyeris only permitted in the ordinary course of business and only under the following conditions and until revoked: 3.1 In the event that the Retained Goods or the products (s. Sec. 3.3)are sold, the Buyer shall assign to D+H all claims against the purchaser arising from the resale together with all ancillary rights by way of security in total or in the amount of the possible co-ownership share of D+H, without the need for any further special declarations. The assignment shall also include any claims for payment of account balance. However, the assignment applies only to the amount that corresponds to the price of the Deliveries invoiced by D+H. Priority shall be given to satisfying the share of the claim assigned to D+H.
- If the Buyer breaches its obligations, in particular in the event of default on payment, even without a set deadline, D+H shall be entitled to require the Buyer to surrender the Deliveries and/ or—after setting a deadline, if required—withdraw from the contract. The Buyer is required to surrender the Deliveries. In the event that the Buyer is required to surrender the Deliveries, D+H shall not be required to give notice of cancellation unless expressly stated.
3.2. If the Buyer links the Retained Goods to plots of land, the Buyer, without requiring additional special declarations, also assigns the claim that the Buyer is entitled to as compensation for this link in the amount that corresponds to the price of the Deliveries invoiced by D+H.
3.3. The retention of title extends to the products resulting from processing, mixing or combination of the goods of D+H at their full value, whereby D+H is considered as manufacturer. If in case of processing, mixing or combination with goods of third parties their right of ownership remains, D+H acquires co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Apart from that, the same applies to the resulting product as to the goods delivered under retention of title.
3.4. Unless cancelled, the Buyer shall be authorized to collect claims assigned to D+H in accordance with this paragraph IV. (Retention of Title). The Buyer shall immediately forward to D+H payments made on the assigned claims up to the amount of the secured claim. If there is a legitimate interest (such as in the event of any default of payment, suspension of payments, initiation of insolvency proceedings, etc.), D+H is authorized to revoke the Buyer's collection authorization. Furthermore, D+H may, following prior warning and adherence to a reasonable deadline, disclose the assignment for security, make use of the assigned claims, and require the Buyer to disclose the assignment for security to its purchasers. In this case, the Buyer must notify D+H about information required for enforcing its rights with respect to purchasers and issue the required documents.
V. Delivery; Delivery Periods; Delays
- Unless a delivery time has been expressly agreed as binding, any indicated delivery time/delivery period shall be non-binding.
- Adhering to indicated delivery times requires the timely receipt of all documents, necessary approvals and releases, particularly of plans, to be delivered by the Buyer and requires the Buyer to comply with the agreed payment terms and other obligations. If these requirements are not fulfilled in a timely manner, the delivery periods shall be extended accordingly as appropriate; this does not apply if D+H is responsible for the delay.
- If failure to comply with delivery times is due to force majeure, e.g. mobilization, war, uprisings, epidemic or pandemic, sanctions and embargoes or the like (e.g. strikes, lockouts), the delivery times and periods shall be extended accordingly as appropriate. The same applies if the beforementioned events occur at a D+H supplier.
- Six weeks after exceeding a non-binding delivery time, the Buyer can ask D+H in writing to deliver within an appropriate time period.
- Should D+H be in default of delivery, the Buyer is obligated, at the request of D+H, to explain within an appropriate time whether the Buyer wishes to withdraw from the contract due to the delivery delay, request compensation for damages instead of the service or demand the delivery.
- Any Buyer’s claims for damages in addition to as well as claims for damages in lieu of performance are excluded in all cases of delayed delivery, even after a delivery time set by Buyer has expired. This does not apply in cases of mandatory liability due to intentional acts, gross negli¬gence or injuries to life, body or health; and this does not entail any changes to the burden of proof to the disadvantage of the Buyer. Due to the delay of delivery the Buyer, within the framework of statutory conditions, may only withdraw from the contract if D+H is responsible for the delivery delay.
- If, after the notification of readiness for shipment, shipping or delivery is delayed by more than one month at the Buyer's request a storage charge in the amount of 1% of the price of the delivery objects can be charged to the Buyer for each month or partial month; however, this shall not exceed a total of 10%. The contracting parties have the right to provide evidence of higher or lower storage costs.
- Partial Deliveries are permitted if reasonable for the Buyer.
- D+H's obligation to deliver in time shall at all times be subject to timely and orderly receipt of the goods from D+H’s suppliers. D+H shall inform the Buyer if the delivery is not available and, in the case of cancellation, in case of withdrawal to reimburse the respective consideration to the Buyer without undue delay.
VI. Transfer of Risk
- The risk, even in the case of a delivery free of charge, shall be borne by the Buyer as follows: a) For Deliveries without instal¬lation or assembly: Once they have been shipped or picked up, but upon leaving the plant/ warehouse at the latest. This applies regardless of whether the goods are shipped from the place of performance or who bears the freight costs. At the request and cost of the Buyer, Deliveries from D+H can be insured against common transportation risks. b) For Deliveries with installation or assembly: On the day of acceptance at the Buyer's facility or, if so agreed, after a test run free of problems.
- The risk shall be borne by the Buyer if the shipment, delivery, start or execution of the assembly or installation, acceptance into the Buyer's facility, or test run is delayed for reasons the Buyer is responsible for or if the Buyer is in default of acceptance for any other reason.
VII. Assembly and Installation
The following conditions shall apply for assembly and installation if nothing else has been agreed in writing:
- The Buyer shall bear the costs for and provide the following in a timely manner: a) All earthworks, construction works or other extra work by others, including the necessary specialists and auxiliary personnel, construction materials and tools, b) The commodity goods and materials required for installation and commissioning (such as scaffolding, hoists, and other equipment), energy and water to the place of use, including connections, heat and lighting c) sufficiently sized, suitable, dry and lockable spaces at the installation location for storing the machine parts, equipment, materials, tools, etc., and appropriate work and break rooms for installation personnel, including sui¬table sanitary facilities. Apart from this, the Buyer must comply with the measures for protecting property of D+H and installation personnel at the construction site that would be taken if the Buyer were protecting its own property, d) Protective clothing and equipment that is required due to special circumstances at the installation site.
- Before beginning installation work and without being promp¬ted, the Buyer must provide D+H and its installation personnel with the necessary information on the location of concealed power, gas and water lines/pipes and any similar installations, and the required structural data.
- Before beginning assembly or installation, the provisions and objects required for commencing the work must be located at the assembly and installation site, and, prior to beginning of construction, all preliminary work must be sufficiently advanced for the assembly or installation to be started as agreed and carried out without interruption. The access roads and assembly or installation area must be levelled and clear.
- If assembly, installation or commissioning is delayed for reasons D+H is not responsible for, the Buyer, in an appropriate amount, shall bear the cost for the waiting period and any additional travel required for D+H or installation personnel.
- The Buyer must issue a receipt to D+H of the duration of the installation personnel's work time each week and immediately notify D+H upon completion of assembly, installation or com¬missioning.
- After completion, if D+H requests the acceptance of delivery, the Buyer must provide this within two weeks. If the Buyer fails to do so, the acceptance shall be deemed to have been granted. Acceptance shall also be deemed to have been granted if the delivery has been put into use (if applicable, after completing an agreed test phase).
VIII. Material Defects
- If the information contained in brochures, advertisements, Internet sites and other quotation documents have not been expressly designated by D+H as binding, the figures or drawings contained therein are only approximate and non-binding.
- The Buyer's rights regarding liability for defects require that the Buyer properly complies with its duty of inspection and duty to give notice of defects in accordance with para. 377 of the German Commercial Code (HGB). The Buyer must immediately notify D+H of material defects in text form.
- Rights regarding liability for defects shall not apply in the case of natural wear and tear or damage resulting after the transfer of risk due to faulty or negligent treatment or storage, excessive handling, unsuitable production equipment and facilities, faulty construction work, unsuitable substructure (e.g. windows or walls), or such warranty claims that arise as a result of particular external influences which are not stipulated under the contract, and also in the case of software errors that cannot be reproduced. In the case of an insignificant defect, however, there is no right of withdrawal.
- Likewise, if the Buyer or third parties improperly make chan¬ges to, or perform repair work on the shipments, no defect claims may be asserted for these and the resulting consequences.
- In the event of a material defect, D+H must always first be granted the opportunity to rectify the problem within a reasonable period. The Buyer must make the request for rectification in writing. D+H retains the right to choose between rectification of deficiencies or replacement.
- If the Buyer fitted the deficient item into another thing or fixed it to another thing in accordance with its nature and use, D+H has the right and freedom to decide to carry out the removal of the deficient item and the fitting or fixing of the improved or replaced item by itself, or to have this done by other persons including the Buyer. In the notice of deficiency of the delivered item, D+H’s attention is to be drawn to the fact that the delivered item has already been fitted or fixed.
- The Buyer shall bear the expenses required for the purposes of rectification, insofar as they increase because the shipments were taken to a location other than the Buyer's branch office, unless this relocation corresponds to their proper use. Notwith¬standing further claims from D+H, in the event of an unjustified defect complaint the Buyer must compensate D+H for the expenses for examining and—to the extent requested—eliminating the deficiency.
- The Buyer shall have right of recourse against D+H only insofar as the Buyer has not reached agreements with his or her customer that go beyond the legally mandatory defect claims. Moreover, the Buyer's right of recourse against D+H is subject to the conditions set out in subsection 6.
- The Buyer’s claims to recourse due to reimbursement of mounting and dismounting expenses, which he has to bear in relation to his customer, shall only apply if the deficiency was in existence during the transfer of risk to the Buyer, if the Buyer complied with his obligation to inspect, notify and reject defects in accordance with section 377 of the German Commercial Ordinance (HGB), and if the Buyer has not made any agreements with his customer extending beyond the mandatory statutory claims relating to defects. The amount of recourse is limited to the total price of the deficient item charged by D+H.
- If D+H rectifies the shipment, the rectification may be regarded as failed only after an unsuccessful second attempt.
- If the rectification fails, the Buyer has the right to choose to reduce the purchase price or—if construction work is not the object of the defect liability—cancel the contract. This does not affect the statutory cases for the dispensability of setting a time limit. Also unaffected is the right of the Buyer to demand damage compensation in accordance with the provisions set out here in paragraph XIII.
- Return shipments of goods shall be accepted only after prior agreement.
IX. Limitation Period
- The limitation period for claims and rights due to defects in the shipments—regardless of the legal basis—shall be one year. However, this does not apply in the cases described by the German Civil Code (BGB) para. 438 sec. 1 no. 1 (rights in rem and defects in title in the case of immovable objects), para. 438 sec. 1 no. 2 (buildings, items for buildings), or para. 634a sec. 1 no. 2 (buildings or works whose outcome in this connection consists in the provision of planning and supervisory services). The contractor's right of recourse in accordance with para. 445a of the German Civil Code is also limited to one year, insofar as the end user is not a consumer. Paragraph 445 b section 2 of the German Civil Code shall also apply accordingly with the provision that the suspension of expiry shall end latest in three years’ time after delivery or acceptance of the goods respectively, insofar as the end user is not a consumer.
- The limitation periods according to subsection IX.1 also apply to all claims for damages against D+H that have a direct connection to the defect—regardless of the legal basis of the claim. The limitation periods for claims for damages also apply to compensation for wasted expenditure.
- The limitation periods according to subsection IX.1 and sub¬section IX.2 apply, however, subject to the following conditions: a) The limitation periods generally do not apply in the event of intent, or if a defect is fraudulently concealed, or insofar as D+H has provided a guarantee for the quality of the delivery item. b) In addition, the limitation periods do not apply to claims for damages for a grossly negligent breach of duty, in the event of a culpable violation of significant contractual duties—that does not consist of the shipment of a defective object or the provision of a deficient service, in events of loss of life, bodily injury or damage to health or to claims in accordance with the Product Liability Act.
- The limitation period for all claims begins with the delivery of goods or, in case of services to be delivered, with the acceptance of services.
- Unless otherwise expressly stipulated, the statutory provisions governing the beginning of the limitation period, the expiry suspension, the suspension and the restart of periods remain unaffected.
- The preceding provisions apply accordingly to claims for damages that are not associated with a defect; subsection IX.1 sentence 1 and 3 applies to the limitation period.
- The preceding provisions do not entail any changes to the burden of proof to the disadvantage of the Buyer.
X. Software, Industrial Property Rights and Copyrights; Legal Defects
- The Buyer has the simple, non-transferable right to use the standard software with the agreed performance features on the agreed devices in unmodified form. The Buyer is permitted to create a backup copy without an express agreement. The Buyer is not granted any further rights (e.g. editing or decompiling).
- Without qualification D+H reserves its proprietary rights and copyright exploitation rights to cost estimates, drawings and other documents (hereinafter: Documents). The Documents may only be made accessible to third parties after prior approval by D+H and, if D+H is not awarded the order, are to be returned to D+H immediately upon request. Sentences 1 and 2 apply accordingly to Buyer's Documents; however, these are allowed to be made accessible to third parties to whom D+H has transferred shipments with permission.
- Unless agreement is made otherwise, D+H shall be obligated to make the delivery only in the country of the delivery location, without industrial property rights and copyrights of a third party (hereinafter: Property Rights). Insofar as a third party makes warranted claims against the Buyer because shipments made by D+H and used in accordance with the contract violate property rights, D+H shall be liable to the Buyer within the period stipulated in paragraph IX as follows: a) D+H shall, at its discretion and at its cost, either obtain usage rights for the shipments in question, modify the shipments so that the property rights are not violated, or exchange the shipments. If D+H is unable to do this with reasonable conditions, the Buyer shall be entitled to the statutory warranty rights. b) The duty of D+H to provide damage compensation is governed by paragraph XIII. c) The obligations of D+H specified above exist only insofar as the Buyer immediately informs D+H in writing about the claims made by the third party, Buyer does not acknowledge a violation, and D+H reserves the right to all counteractions against third party claims and settlement negotiations. If the Buyer stops using the shipment to reduce damage or for other important reasons, Buyer is obligated to notify the third party that such cessation of use does not represent an acknowledgement of any infringement of property rights.
- Any claims from the Buyer shall be excluded if Buyer is solely or predominantly responsible for the infringement of property rights.
- Buyer claims are further excluded if the infringement of property rights is caused by the Buyer's special specifications, by an application that D+H could not foresee, or by the shipment being modified by the Buyer, or used in conjunction with products not delivered by D+H.
- In the event of an infringement of property rights other than these, the provisions of paragraph VIII no. 5 to 9 shall apply accordingly for the Buyer's claims regulated in no. X.3 a).
- If other legal defects exist, the provisions of paragraph VIII shall apply accordingly.
- The parties agree that they and the respective associated companies shall treat the knowledge they have gained about each other in connection with negotiations and closing contracts with strict confidentiality. This obligation also extends beyond the term of the contract.
- The parties are not permitted to make business and trade secrets or confidential information accessible to third parties.
- If the Buyer violates this non-disclosure agreement and continues this violation despite a prior notice from D+H, the Buyer must pay D+H a contractual penalty in the amount of 10,000.00 euros. If the act of infringement continues, the Buyer must pay an additional contractual penalty in the amount of 5,000.00 euros for each additional month of violation. The right of D+H to assert claims for any further damages and to demand cessation of the prohibited behavior shall remain unaffected.
XII. Impossibility; Contract Adaptation
- D+H shall be liable if shipment is impossible only in cases of willful acting or gross negligence by D+H or a representative or persons employed to perform the contract as well as in events of negligently caused loss of life, body injury or damage to health according to statutory provisions. Notwithstanding, the liability of D+H in cases of gross negligence shall be limited to the foreseeable damage specified in the contract, if none of the other exceptions listed in sentence 1 exist at the same time. Beyond the cases mentioned in sentence 1 and 2, the liability of D+H for damage compensation and compensation for wasted expenditure due to impossibility shall be limited to a total of 10% of the value of the shipment. Any further Buyer claims due to impossibility of shipment are excluded—even after expiration of a time set for D+H for the delivery. The right of the Buyer to withdraw from the contract in accordance with paragraph VIII., no. 11 remains unaffected. The preceding provisions do not entail any changes to the burden of proof to the disadvantage of the Buyer.
- Insofar as unforeseeable events in the sense of paragraph V, no. 3 substantially change the economic importance or the content of the shipment or have a substantial impact on the operations of D+H, the contract shall be adapted taking into account the principles of reasonableness and good faith. Insofar as this is economically untenable, D+H has the right to withdraw from the contract. If D+H desires to make use of this right to withdraw from the contract, D+H must, after recognizing the repercussions of the event, immediately inform the Buyer, even if an extension of the delivery time was initially agreed with the Buyer.
- D+H shall be liable in cases of willful acting or gross ne¬gligence by D+H or a representative or persons employed to perform the contract as well as in events of culpably caused loss of life, bodily injury or damage to health according to statutory provisions. Notwithstanding, the liability of D+H in cases of gross negligence shall be limited to the foreseeable damage specified in the contract, insofar as no other exceptions than those listed in sentences 1 or 3 of this no. XIII exist at the same time. Apart from that, D+H is liable only in accordance with the Product Liability Act (Produkthaftungsgesetz), due to the culpable violation of fundamental contractual obligations or insofar as D+H has fraudulently concealed a defect or provided a guarantee for the quality of the delivery item. However, the claim for damages for violation of material contractual obligations shall be limited to the foreseeable damages specified in the contract, if no other exceptions than those listed in sentences 1 or 3 of this no. XIII.1 exist at the same time.
- The provisions from the preceding no. XIII.1 apply to all claims for damages (particularly for damage compensation in addition to the service and damage compensation instead of the service), regardless of the legal basis, particularly due to defects, violation of obligations of the contract or from unlawful acts. They also apply to the claim for compensation of wasted expenditure. Ho¬wever, liability for delay is determined by paragraph V. numbers 4 to 7 and liability for impossibility by paragraph XII., no. 1.
XIV. Place of Performance, Jurisdiction and Applicable Law
- The place of performance for shipments and payments is the registered office of D+H.
- If the Buyer is a merchant, the sole place of jurisdiction for all disputes indirectly or directly proceeding from the contractual relationship is the registered office of D+H. However, D+H is also authorized to sue at the registered office of the Buyer.
- The legal relationships in connection with this contract are governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XV. Final Provisions
- Modifications to this contract must be in writing to be effective. This also applies to modification of this requirement of written form.
- The ineffectiveness of individual provisions in this contract shall not affect the effectiveness of the remaining provisions. In this case, the parties undertake to agree upon effective provisions that come closest to the intended purpose of the ineffective provisions in economic terms. This applies accordingly to the closing of any gaps in this contract. Only the German version of this General Terms and Conditions are legally binding while the English version only serves for the purpose of translation. In case of discrepancies of the contents the German version