General Terms and Conditions of Sale and Delivery of DiaCCon GmbH

§ 1 General scope of application

  1. All our deliveries and services, including consulting services, are provided exclusively on the basis of these General Terms and Conditions of Sale and Delivery. They apply to all business relationships between us and our customers. Our Terms and Conditions of Sale apply only to entrepreneurs in the sense of section 14 of the German Civil Code. This means that “customers” in the sense of our Terms and Conditions of Sale are exclusively natural persons or legal persons or partnerships with legal capacity acting in the exercise of a commercial or independent professional activity.
  2. Our Term and Conditions of Sale apply exclusively. They also apply to future orders of the customer. The valid version of our Terms and Conditions of Sale on conclusion of the contract is relevant (also available online at diaccon.de/dortwww. AGB). Conflicting or deviating terms and conditions of the customer are not recognised, unless we expressly agree to their validity. Our Terms and Conditions of Sale apply even if we perform our services to the customer without reservation in the knowledge of conflicting or deviating terms and conditions of the customer.

§ 2. Offer/order documentation

All offers are subject to alteration and non-binding. . The customer order/the order is, however, binding. We are entitled to accept the customer’s contract offer in the binding order up to two weeks after receipt. Acceptance can be declared in writing or by delivery to the customer. Verbal agreements or changes to the order require written confirmation; see section 3, Delivery time.

  1. For the delivery time specified by us to begin, all technical issues must be clarified. The delivery time is based on our order confirmation. If DiaCCon cannot provide the contractual service on time, DiaCCon will notify the customer as soon as possible, stating the reasons for the delay and the expected length of the delay. Compliance with our delivery obligation also requires the customer to meet his obligation in a timely and proper manner. The right to object to an unfulfilled contract remains.
  2. If the customer fails to accept delivery, or is guilty of violating other obligations to cooperate, we are entitled to claim compensation for the damage incurred in this respect, including any additional expenses. Further claims are reserved.
  3. Events of force majeure which considerably complicate or prevent the fulfilment of a service or obligation, entitle the affected party to postpone the fulfilment of this service or obligation by the duration of the hindrance and a reasonable start-up time. Labour disputes in the businesses of the parties or labour disputes in third-party businesses are considered to be a force majeure. If, due to the nature of the hindrance, the service is not expected to be provided within a reasonable time, each party is entitled to withdraw from this contract in whole or in part because of the part of the service not yet fulfilled.
  4. The occurrence of a default of delivery on our part is determined in accordance with the statutory provisions. In any case, however, a reminder from the customer is required. If we default on delivery, then the customer can request lump-sum compensation for his losses caused by default. The lump-sum compensation for each completed calendar week of default amounts to 0.5% of the net price (delivery value), but in total not more than 5% of the delivery value of the delayed delivered goods. We reserve the right to demand proof that the buyer has incurred no damage at all or only much lower damage than the above flat rate.
  5. Payment default, an application to open insolvency proceedings, the acceptance of asset-related information in accordance with section 807 of the Code of Civil Procedure (Zivilprozessordnung - ZPO), payment difficulties or the announcement of a significant deterioration in the customer’s financial circumstances entitle us to stop deliveries and services immediately and to refuse to fulfil current orders. At the same time, we are entitled to demand not yet due receivables from the customer immediately.
  6. If the customer withdraws from an order confirmed by us in writing with our consent before delivery of the goods, we are entitled to claim lost revenue in the amount of 30% of the order value. The customer is allowed to prove that damage has not occurred or has occurred to a lesser extent.

§ 4. Order documentation, intellectual property

  1. Drawings, images, measurements, weights or other performance-related data are binding only if we have expressly approved this in writing. Public statements, promotion or advertising are also not a binding quality of the goods.
  2. We reserve property rights and intellectual property rights over our images, drawings, calculations and other documents that are made known to the customer. These may be used only as specified by us and may not be made accessible to third parties without our express consent.
  3. The customer must ensure that the performance of the order does not violate the rights of third parties, in particular their intellectual property and intellectual property rights. The customer shall fully exempt us from all third-party claims which third parties make against us in this connection due to the execution of a customer’s order. The provision of section 280 (1), sentence 2 of the German Civil Code remains unaffected.

§ 5. Prices/payment

  1. The purchase price offer in the customer’s binding order/in the order is binding. Unless otherwise agreed, our prices apply net “ex works”/“EXW” Dr.-Mack-Str. 81, 90762 Fürth Incoterms® 2010, excluding packaging and transport and customs costs.
  2. If the customer wishes, we will protect the delivery with suitable transport insurance. The costs incurred in this respect shall be borne by the customer.
  3. We reserve the right to change our prices appropriately in the event of cost reductions or cost increases for which we are not responsible, in particular due to wage or material price changes, on conclusion of the contract. We will prove these to the costumer on request. If there is an ongoing obligation and the parties cannot reach an agreement, the customer can cancel the contract within one month of our notifying the price increase.
  4. Our prices do not include statutory value added tax. It is indicated separately on the invoice at the statutory rate.
  5. Discount deductions require special agreement.
  6. Insofar as no other term of payment has been agreed, our payment without deduction is due for payment immediately on receipt of our invoice. If the term of payment is exceeded, we are entitled to claim interest on arrears from merchants (section 353 of the German Commercial Code). The legal rules apply in case of late payment. If the customer is in default, we also charge the statutory lump sum in the amount of €40.00.
  7. The customer is entitled to offset rights only if his counterclaims are legally established, undisputed or acknowledged by us. He is then entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
  8. We are entitled to assign our payment claims (for example, to a factor).
  9. Wechsel werden ausschließlich nach gesonderter schriftlicher Vereinbarung erfüllungshalber akzeptiert. Sämtliche Spesen und mit der Einrichtung der Wechsel anfallende Kosten trägt der Kunde.

§ 6. Other conditions for coatings and delivery obligations

  1. All parts handed over for coating must be accompanied by an order or a delivery note which must contain the following information:
    1. Names of the parts, with measurements
    2. If necessary drawing
    3. Number of pieces
    4. Material specifications
  2. The parts are handled with the required care. We undertake to manufacture or process and deliver the products ordered from us using the latest technology. We reserve the right to make technical changes within reasonable limits.
  3. If the coating work is unsuccessful because the customer provided incomplete or incorrect information, the contractor was unaware of or could not detect hidden defects in the part before the coating work was carried out, or because the properties of the material, the shape or condition of the parts delivered prevented successful coating work, but the customer did not know or could know this, the coating fee is still payable. Required re-coatings are invoiced separately.
  4. Partial deliveries are permitted, provided they are reasonable for the customer.
  5. In the event of contracts whose fulfilment consists of multiple deliveries/services, non-fulfilment or defective or delayed fulfilment of individual deliveries shall not affect any other services from the contract.

§ 7. Risk transfer

  1. Unless otherwise agreed, delivery “ex works”/“EXW” Dr.-Mack-Str. 81, D-90762 Fürth, Incoterms® 2010 applies, i.e. the customer collects the products/work pieces from us. The risk of accidental loss and accidental deterioration of the product/work piece is transferred to the customer on delivery to the customer.
  2. When agreeing to the rules on sales shipment, the risk of accidental loss and accidental deterioration of the product/work piece is transferred to the customer on delivery to forwarder, carrier, or person otherwise appointed to carry out the shipment.
  3. The transfer is the same if the customer is in default of acceptance.
  4. If the shipment is delayed at the customer’s request, we charge the customer from the time of the originally agreed delivery time a storage fee in the amount of 1% of the invoice amount for each commenced month. The customer is allowed to prove that the damage was not incurred at all or was substantially lower than the lump sum. In this case, the customer is in default of acceptance.

§ 8. Guarantee claims

  1. The customer’s defect rights are enforceable only if the customer has affixed with us the notice of defects required to safeguard claims for defects within one week and otherwise in accordance with section 377 of the German Commercial Code. The customer shall bear the full burden of proof for all claims, in particular for the defect itself, the time of discovery of the defect and the timeliness of the notice of defects.
  2. Insofar as there is a defect in the product/work piece, we are in the first instance entitled, at our discretion, to subsequent performance in the form of remedying the defect (rectification) or manufacturing and delivering a new defect-free item (replacement). We must bear all expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, insofar as these are not increased because the product/work piece was moved somewhere other than the place of performance.
  3. If the subsequent performance fails, the customer can, at his discretion, demand a reduction in payment (reduction) or cancellation of the contract (withdrawal) as well as damages. In the event of only a minor breach of contract, especially in the case of only minor defects, the customer has, however, no right of withdrawal. If the customer chooses to claim damages, the liability limitations of section 9 apply.
  4. The period of limitation for defect claims is one year from the risk transfer according to section 5; this does not apply to compensation claims for damage to life, limb or health due to a defect for which we are responsible or due to intent or gross negligence on our part or by our vicarious agents. In this regard, the statutory limitation period still applies. The limitation period in the event of delivery recourse under sections 478 and 479 of the German Civil Code remains unaffected.
  5. The customer shall not receive guarantees from us in the legal sense. Any manufacturer warranties remain unaffected.
  6. Claims against us may neither be assigned nor pledged by the customer. Section 354a of the German Commercial Code remains unaffected.

§ 9. Limitations of liability

  1. We are liable to our customers for grossly negligent and intentional breaches of duty by us, our legal representatives and vicarious agents. In the event of slight negligence, we shall be liable – limited to foreseeable damage typical for the contract – only if we, our legal representatives or vicarious agents violate a major contractual obligation (“cardinal obligation”). If a minor contractual obligation is breached, we are not liable in the event of slight negligence. The above limitations of liability do not apply to claims under the Product Liability Act (Produkthaftungsgesetz - ProdHaftG). Furthermore, they do not apply to harm to life, limb or health attributable to us.
  2. Insofar liability on our part is excluded or limited, this also applies with regard to the personal liability of our employees, legal representatives and vicarious agents.

§ 10. Guarantee of retention of title

  1. We shall reserve title to products/work pieces until receipt of all payments under the respective order. If the customer breaches the contract, in particular in the event of late payment, we are entitled to withdraw the products/work pieces after a reasonable deadline. The withdrawal constitutes a withdrawal from the contract. We are entitled to use the purchased item after withdrawal, whereby the realisation proceeds against the liabilities of the customer, less reasonable realisation costs, must be taken into account.
  2. The customer must handle products/work pieces with care. Insofar as maintenance and inspection work is required, the customer must carry it out on time at his own expense.

    In the event of seizures or other interventions by third parties, the customer must notify us immediately so that we can bring an action in accordance with section 771 of ZPO. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of a claim in accordance with section 771 of ZPO, the customer is liable for the loss incurred by us.
  3. The customer is entitled to resell the products/work pieces in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the invoiced final amount (including statutory value added tax) of our claims arising from the resale against his customers or third parties, irrespective of whether the products/work pieces were resold with or without processing. We accept the assignment. The customer is still authorised to collect this claim even after assignment. Our authority to collect the claim ourselves remains unaffected. We reserve the right to collect the claim ourselves as soon as the entrepreneur fails to properly meet his payment obligations and defaults on payment. In this case, we can demand that the customer notify us of the assigned claims and their debtors, provide all information necessary for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.
  4. The processing or reworking of the products/work pieces by the customer is always done for us. If the product/work piece is processed with other objects not belonging to us, we acquire co-ownership of the new object in proportion to the value of the product/work piece (invoiced final amount incl. statutory VAT) to the other objects processed at the time of processing. Incidentally, the same applies to the processed object as to the product/work piece delivered under reserve.
  5. If the product/work piece is inseparably mixed with other objects not belonging to us, we shall acquire ownership of the new object in proportion to the value of the object of purchased item/work (invoiced final amount incl. statutory VAT) to the other mixed items at the time of mixing. If the mixing takes place such that the customer’s item is to be regarded as the main item, it shall be deemed agreed that the customer assigns proportional co-ownership to us. The customer retains the resulting sole ownership or co-ownership for us.
  6. The customer also assigns to us the claims for securing our claim against him, which accrue to a third party as a result of the product/work piece being linked to a property.
  7. We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%; we are entitled to select the securities for release.

§ 11. Applicable law – Place of jurisdiction – Place of performance

  1. The law of the Federal Republic of Germany applies with the exception of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
  2. The contract language is German. This also applies if the contracting parties exchange contract documents that are written in a foreign language. In the event of disputes concerning the content and interpretation of contracts concluded between the contracting parties, the agreements must be interpreted in accordance with standard German.
  3. If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special asset under public law, it is agreed in accordance with section 38 of ZPO that the place of jurisdiction for all disputes between the customer and us is our registered office in Fürth. The same applies if the customer does not have a general place of jurisdiction in Germany. We also have the right to bring an action against the customer in the court having jurisdiction over his place of business or the place of business of the contracting branch.
  4. Unless otherwise stated, our registered office is Fürth.

§ 12. Final provision

Should individual parts of these Terms and Conditions of Sale and Delivery be legally ineffective, the effectiveness of the remaining provisions will not be affected.