§ 1 Scope
(1) All deliveries, services and offers of DYNOS GmbH and its affiliated companies (hereinafter referred to as “Seller“) shall be made exclusively on the basis of these General Terms and Conditions of Sale. These are an integral part of all contracts concluded by the Seller with its contractual partners (hereinafter referred to as “Customer“) for deliveries and services by the Seller. They shall also apply to all future deliveries, services or offers to the Customer, even if they are not separately agreed again.
(2) Terms and conditions of the Customer or third parties shall not apply, even if the Seller does not separately object to their validity in the individual instance. Even if the Seller refers to a letter that contains or refers to the Customer’s or a third party’s terms and conditions, this shall not constitute an agreement to the validity of those terms and conditions.
§ 2 Offer and Formation of Contract
(1) All offers of the Seller are subject to change and are non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The Seller may accept orders from the Customer within 14 days of receipt.
(2) The legal relationship between the Seller and the Customer shall be governed solely by the written purchase contract, including these General Terms and Conditions of Sale. Such contract fully reflects all agreements between the contracting parties on the subject matter of the contract. Oral commitments made by the Seller prior to the conclusion of the contract are not legally binding and any oral agreements between the contracting parties are replaced by the written contract, unless expressly agreed otherwise between the contracting parties in each case.
(3) Changes and amendments to the contract, including to these General Terms and Conditions of Sale, must be in writing to be effective. With the exception of managing directors or commercial proxy holders, the Seller’s employees are not entitled to make verbal agreements that deviate from the written agreement. Transmission by telecommunication, in particular by fax or e-mail, shall be sufficient to comply with the written form requirement.
(4) Information provided by the Seller on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as descriptions of the same (e.g. drawings and illustrations) shall be deemed approximate only unless usability for the contractually intended purpose requires exact conformity. Any such information does not constitute guaranteed quality features, but merely serves to describe or identify the delivery or service. Deviations that are customary in the trade and deviations that are made for compliance with legal regulations or that represent technical improvements as well as the replacement of components with equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.
(5) The Seller retains ownership or copyright with respect to all offers and cost estimates submitted by it as well as all drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and resources made available to the Customer. The Customer may not make these items or their contents available to third parties, disclose them, use them itself or through third parties or reproduce them without the express consent of the Seller. At the Seller’s request, the Customer shall return these items in full to the Seller and destroy any copies made if they are no longer required by it 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.
§ 3 Prices and Payment
(1) The prices apply to the scope of services and deliveries listed in the Seller’s order confirmation. Additional or special services shall be charged separately. The prices are quoted in EUR ex works and are exclusive of packaging, value added tax (which will be added at the statutory rate) and, in the case of export deliveries, customs duty, fees and other public levies.
(2) Insofar as the agreed prices are based on the Seller’s list prices and the delivery is to take place more than four months after conclusion of the contract, the Seller’s list prices valid at the time of delivery shall apply (less any percentage-based or fixed discount that may have been agreed).
(3) Invoice amounts shall be paid within 30 days without any deduction, unless otherwise agreed in writing. The date of receipt by the Seller shall be decisive for the date of payment. Payment by cheque is excluded unless it is agreed separately in the individual instance. If the Customer fails to make payment when due, interest of 10% p.a. shall be payable on the outstanding amounts from the due date; the right to claim higher interest and further damages in the event of default shall remain unaffected.
(4) Any offsetting by the Customer with counterclaims or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed by the Seller or have been legally established or arise from the same contract under which the delivery in question was made.
(5) The Seller 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 Customer and as a result of which the payment of the Seller’s outstanding claims by the Customer under the respective contractual relationship (including under other individual orders to which the same framework agreement applies) is jeopardised.
§ 4 Delivery and Delivery Time
(1) Deliveries shall be made ex works.
(2) Deadlines and dates for deliveries and services communicated by the Seller are always approximate only, unless a fixed deadline or date has been expressly promised or agreed. If it has been agreed that the Seller will arrange for shipment of the goods, delivery periods and delivery dates refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport, unless expressly stated otherwise by the Seller.
(3) The Seller may – without prejudice to its rights arising from default on the part of the Customer – demand from the Customer an extension of delivery and performance deadlines or a postponement of delivery and performance dates by any period during which the Customer fails to meet its contractual obligations towards the Seller.
(4) The Seller shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. business breakdowns 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 the necessary official permits, pandemics or epidemics, measures by a public authority or the non-delivery, incorrect delivery or late delivery by the Seller’s suppliers despite the Seller having entered into a corresponding cover transaction) for which the Seller is not responsible. Insofar as such events make it significantly more difficult or impossible for the Seller to deliver or perform and the hindrance is not only temporary, the Seller shall be entitled to withdraw from the contract. In the event of temporary hindrances, the delivery or service deadlines shall be extended and delivery or service deadlines shall be postponed by the duration of the hindrance plus a reasonable ramp-up period. Insofar as the Customer cannot reasonably be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by means of a written declaration to the Seller which must be made promptly.
(5) The Seller shall only be entitled to make partial deliveries if
- the partial delivery is usable for the Customer within the scope of the contractual intended purpose,
- the delivery of the remaining ordered goods is ensured and
- the Customer does not incur any significant additional work or expenses as a result (unless the Seller agrees to bear the resulting expenses).
(6) If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for the Seller, for whatever reason, the Seller’s liability for damages shall be limited in accordance with § 8 of these General Terms and Conditions of Sale.
§ 5 Place of Performance, Dispatch, Packaging, Transfer of Risk, Acceptance
(1) The place of performance for all obligations arising from the contractual relationship is Troisdorf, Germany, unless otherwise agreed. If the Seller is also responsible for installation, the place of performance shall be the place where the installation is to take place.
(2) The method of dispatch and the packaging are subject to due discretion of the Seller.
(3) If it has been agreed that the Seller is to arrange for shipment of the goods and the Seller does not itself carry out the transportation or installation, risk shall pass to the Customer at the latest when the goods are handed over (the start of the loading process being decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. If the dispatch or the handover is delayed due to a circumstance the cause of which lies with the Customer, the risk shall pass to the Customer from the day on which the goods are ready for dispatch and the Seller has notified the Customer of this fact.
(4) Storage costs after the transfer of risk shall be borne by the Customer. In the event of storage by the Seller, the storage costs shall amount to 0.25% of the invoice amount of the goods to be stored per week completed. The assertion and proof of greater or lower storage costs shall remain reserved.
(5) The consignment shall be insured by the Seller against theft, breakage, transport, fire and water damage or other insurable risks only at the express request of the Customer and at the Customer’s expense.
(6) Insofar as acceptance of the goods has to take place, the goods shall be deemed to have been accepted if
- the delivery and, if the Seller also owes the installation, the installation has been completed,
- the Seller has notified the Customer of completion, drawing attention to the deemed acceptance mechanism in this § 5 (6), and has requested the Customer to accept the goods,
- twelve working days have passed since delivery or installation or the Customer has started to use the goods (e.g. has put the delivered system into operation) and in this case six working days have passed since delivery or installation, and
- the Customer has failed to declare acceptance within this period for a reason other than a defect notified to the Seller which makes the use of the goods impossible or significantly impairs it.
§ 6 Warranty, Defects
(1) The warranty period shall be one year from delivery or, where acceptance is required, from acceptance. This period shall not apply to claims for damages by the Customer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the Seller or its vicarious agents; any such claims shall become time-barred in accordance with the statutory provisions.
(2) The delivered goods shall be carefully inspected promptly after delivery to the Customer or to its designee. With regard to obvious defects or other defects which would have been recognisable in the course of prompt and careful inspection, they shall be deemed to have been approved by the Customer if the Seller does not receive a written notification of defects within seven working days of delivery. With regard to other defects, the goods shall be deemed to have been approved by the Customer if the notice of defect is not received by the Seller within seven working days after the defect became apparent; however, if during normal use the defect would have been obvious at an earlier time, such earlier time shall be decisive for the commencement of the period for giving notice of the defect. At the Seller’s request, rejected goods shall be returned to the Seller, carriage paid. In the event the rejection is justified, the Seller shall reimburse the costs of the most favourable shipping route; this shall not apply if the costs increase because the goods are located at a place other than the place of intended use.
(3) In the event of a defect in material or workmanship of the goods, the Seller shall first be obliged and entitled to rectify the defect or to make a replacement delivery. The choice between rectification and replacement shall be the Seller’s, 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 Customer may withdraw from the contract or reduce the purchase price appropriately.
(4) If a defect in the goods is due to the fault of the Seller, the Customer may claim damages under the conditions set out in § 8.
(5) In the event of defects in components made by manufacturers other than the Seller which the Seller cannot remedy for licensing or factual reasons, the Seller shall, at its option, assert its warranty claims against the manufacturer and supplier for the account of the Customer or assign these claims to the Customer. In the event of such defects, warranty claims against the Seller shall only exist (subject to the further conditions set out in these General Terms and Conditions of Sale) if the legal enforcement of the aforementioned claims against the manufacturer and supplier has been unsuccessful or would be futile, e.g. due to insolvency. For the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the Customer against the Seller shall be suspended.
(6) The warranty shall not apply if the Customer modifies the goods or has them modified by a third party without the Seller’s 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.
(7) If it has been agreed that the Seller is to deliver used goods, any warranty for defects in material and workmanship of such used goods shall be excluded.
§ 7 Property Rights
(1) The Seller warrants in accordance with this § 7 that the goods are 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.
(2) In the event that the goods infringe an industrial property right or copyright of a third party, the Seller shall, at its option and at its expense, modify or replace the goods in such a way that third party rights are no longer infringed (but that the goods still fulfil the contractually agreed functions) or procure a right of use for the Customer by concluding a licence agreement with the third party. If the Seller does 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. Any claims for damages by the Customer shall be subject to the limitations of § 8 of these General Terms and Conditions of Sale.
(3) In the event of infringements of rights by goods supplied by the Seller but made by other manufacturers, the Seller shall, at its option, assert its claims against the manufacturer and supplier for the account of the Customer or assign such claims to the Customer. In such cases, claims against the Seller shall only exist (subject to the further conditions of this § 7) if the legal enforcement of the aforementioned claims against the manufacturer and supplier has been unsuccessful or would be futile, e.g. due to insolvency.
§ 8 Liability for Damages due to Fault
(1) The Seller’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 contract negotiations and tort, shall, insofar as it is fault-based liability, be limited in accordance with the provisions of this § 8.
(2) The Seller shall not be liable in the event of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents, except where a material contractual obligation has been breached. Material contractual obligations are the obligation to deliver and install the goods in good time, to ensure that they are free from defects in title and defects in material or workmanship that would impair their functionality or usability to a more than insignificant extent, as well as obligations to provide advice, protection and care that are intended to enable the Customer to use the goods in accordance with the contract or to protect the life and limb of the Customer’s personnel or to protect the Customer’s property from significant damage.
(3) Insofar as the Seller is liable on the merits for damages in accordance with § 8 (2), such liability shall be limited to damages which the Seller 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. Any indirect damage or consequential damage resulting from defects in the goods is also only eligible for compensation insofar as such damage is typically to be expected when the goods are used for their intended purpose. The above provisions of this paragraph 3 shall not apply in the event of intentional or grossly negligent conduct on the part of members of the Seller’s executive bodies or senior employees.
(4) Insofar as the Seller provides technical information or acts in an advisory capacity and such information or advice is not part of the contractually agreed scope of services owed by the Seller, this shall be done free of charge and to the exclusion of any liability.
(5) The limitations of this § 8 do not apply to the Seller’s liability for intentional conduct, for guaranteed characteristics, for injury to life, limb or health or under the German Product Liability Act (Produkthaftungsgesetz).
§ 9 Retention of Title
(1) The goods shall remain the property of the Seller (goods subject to retention of title) until full and final payment of all claims arising and accruing on the basis of the business relationship. In the case of several claims or a current account, the retention of title shall be deemed security for the balance claim, even if individual deliveries of goods have already been paid.
(2) In the event of a breach of contract on the part of the Customer, e.g. default in payment, the Seller shall be entitled to take back the goods subject to retention of title after setting a reasonable deadline. If the Seller takes back the goods subject to retention of title, this shall constitute withdrawal from the contract. The Seller shall be entitled to realise the value of the goods subject to retention of title after taking them back. After deduction of a reasonable amount for the costs of realisation, the proceeds of realisation shall be set off against the amounts owed to the Seller by the Customer.
(3) In the event that third parties attempt to access the goods subject to retention of title, in particular seizures, the Customer shall draw attention to the Seller’s ownership and notify the Seller without delay so that the Seller can enforce its ownership rights.
(4) The Customer is entitled to process and sell the goods subject to retention of title in the ordinary course of business as long as the Customer is not in default. Pledges or transfers by way of security are not permitted. Any claims arising from the resale or any other legal reason (insurance, tort) with regard to the goods subject to retention of title shall herewith be deemed assigned by the Customer to the Seller in full by way of security. The Seller revocably authorises the Customer to collect the assigned claims for the Customer’s own account and in its own name. The authorisation to collect shall expire if the Customer does not properly fulfil its payment obligations, gets into payment difficulties, compulsory enforcement measures are taken against it or judicial insolvency proceedings are opened against its assets or the opening of such proceedings is rejected for lack of assets.
(5) Any processing or transformation of the goods shall always be carried out for the Seller as manufacturer, but without any obligation for the Seller. If the goods are processed with other items not belonging to the Seller, the Seller shall acquire co-ownership of the new item in the ratio of the value of the goods to the other processed items at the time of processing. If the goods are combined or inseparably mixed with other items not belonging to the Seller, the Seller shall acquire co-ownership of the new item in the ratio of the value of the goods to the other combined or mixed items. If, in the case of combination or mixing, the Customer’s item is to be regarded as the main item, it shall be deemed agreed that the Customer transfers to the Seller pro rata co-ownership of the new item. The Customer shall maintain the co-ownership thus created for and on behalf of the Seller.
(6) The Seller shall be obliged to release the securities to which it is entitled insofar as the realisable value of its securities exceeds the claims to be secured by more than 10%; in this respect, the Seller shall be the one to select which securities are to be released.
§ 10 Final Provisions
(1) If the Customer 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 Germany, the exclusive place of jurisdiction for any disputes arising from the business relationship between the Seller and the Customer shall be Siegburg, Germany; provided, however, that the Seller shall always also have the option of filing suit against the Customer at the Customer’s registered seat. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(2) The contractual relationship between the Seller and the Customer shall be governed exclusively by German law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
(3) Insofar as the contract or these General Terms and Conditions of Sale contain gaps, those legally effective provisions shall be deemed agreed to fill these gaps 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 Sale if they had been aware of the loophole.