Terms and Conditions
General terms of delivery of the Domine Verkehrstechnik GmbH, Haselünne
last updated 08/19/2008
1. General information
(1) These terms and conditions apply exclusively; contrary to or differing terms and conditions of the orderer will not be accepted by the supplier, unless he/she explicitly agrees in writing. The delivery terms of the supplier also apply even if the delivery to the orderer takes place unconditionally and in the knowledge of contrary or differing terms conditions of the orderer.
(2) The present terms apply only to companies according to sec. 310, paragraph 1 German Civil Code (BGB).
2. Offer - scope of deliver
(1) The contract is concluded when the supplier has confirmed the acceptance of the delivery item in writing or has carried out the delivery.
(2) The supplier reserves the copyrights and proprietary rights towards illustrations, drawings, designs, plans, calculations, cost estimates and other documents. This also applies to written documents that are marked as "confidential". Before passing on to third parties, the explicit written consent of the supplier is required.
3. Price - payment
(1) The prices apply ex store of the supplier, unless otherwise agreed upon or on dispatch from the factory ex works, excluding packaging and loading. VAT is not included in the price. It is added in the respective legal amount to the orderer's account. When delivery is to take place more than 4 months after signing the contract, the supplier is entitled to demand the adaptation of the price in case of increased prices of his/her suppliers or unexpected increases of wages and transport costs. The supplier is bound to the agreed prices within the agreed delivery term - at least for 4 months. Additional costs incurred to the supplier due to default of acceptance by the customer may be charged to the orderer's account.
(2) Unless otherwise agreed, the purchase price is due immediately without deduction. The orderer's right to lien according to sec. 320 German Civil Code remains unchallenged. Discounts pledges only apply if the orderer is not in default of payment for previous deliveries.
(3) The orderer is only entitled to off-set if his counterclaims have been legally established, undisputed or are acknowledged by the supplier. He/she is also entitled to exercise the right of retention insofar as his counterclaim is based on the same contractual relationship.
(4) Payments may be made to employees of the supplier only if they have authority to collect.
4. Delivery term - delivery delay
(1) The delivery term results from the agreements between the contractual parties. Compliance by the supplier requires all commercial and technical issues between the parties to be resolved and all obligations of the customer to be fulfilled, such as procurement of required official certifications, approvals or down payments. If this is not the case, the delivery period extends accordingly. This does not apply if the supplier is responsible for the delay.
(2) Compliance with the delivery period is subject to correct and punctual self-supply of the supplier. Foreseeable delays are to be announced by the supplier as soon as possible.
(3) The delivery term is complied with if the delivery item has been dispatched from the facilities of the supplier until the expiry of the delivery term or the readiness for dispatch has been announced. If an acceptance is to take place - except on acceptance refusal - the acceptance date prevails, the notification of acceptance, respectively.
(4) If the shipment or the acceptance of the delivery is delayed due to the orderer's fault, he/she will be charged occurring cost resulting from the acceptance delay, beginning one month after notification of readiness for dispatch or acceptance.
(5) If the non-compliance with the delivery term is due to force majeure, labour disputes or other events which are beyond the sphere of influence of the supplier, the delivery term extends accordingly. The supplier is to inform the orderer about the beginning and end of such circumstances as soon as possible.
(6) The orderer may withdraw from the contract without notice if the full performance of the supplier ultimately fails before the transfer of risk. Further, the orderer may withdraw from the contract if a partial delivery is impossible to be carried out and if he/she has a legitimate interest in refusing the partial delivery. If this is not the case, the orderer has to pay the contractual price agreed upon for the partial delivery. The same applies to the inability of the supplier. In addition, paragraph 8 (2) of this agreement applies.
If the impossibility or incapacity occurs during the default of acceptance or if the orderer is solely or predominantly responsible for these circumstances, he/she remains obligated to reciprocate.
(7) If the supplier is in default causing damage to the customer, he/she is entitled to claim a lump-sum default compensation of 0.5%, not exceeding 5% per week of delay of the value of the delayed delivery part that could not be used punctually or not as contractually agreed upon.
(8) If the orderer sets a grace period for performance after expiry of the delivery term- under consideration of statutory exceptions - which is not complied with, the orderer is entitled to withdraw from the contract according to the law.
(9) Further claims resulting from delivery delay are to be governed exclusively by paragraph 8 (2) of this agreement.
5. Transfer of risk - acceptance
(1) The risk transfers to the orderer in the moment the products are handed over to the carrier or forwarding agent or charged to a vehicle of the supplier, latest when the products have left the storehouse, even if carried out in partial deliveries or if the supplier has taken over other services, eg shipping costs, delivery or installation. If the products are to be accepted, the moment of acceptance is relevant for the transfer of risk. It is to take place immediately on the acceptance date, alternatively after the notification of readiness for acceptance by the supplier. The orderer may not refuse acceptance in case of only minor defects.
(2) If the delivery is delayed or fails due to circumstances for which the orderer is responsible, the risk transfers to the orderer at the moment of readiness for dispatch. However, the supplier is obligated to assure the delivery on request and expense of the orderer.
(3) Partial deliveries are admitted to the extent acceptable to the orderer.
6. Reservation of title
(1) Until receipt of all payments the products remains property of the supplier. In breach of contract, in particular on default in payment, the supplier is entitled to take back the delivery item. Taking back the delivered products by the supplier represents a withdrawal from the contract. After return of the products, the supplier is entitled to commercially exploit the delivered products; benefits from the exploits - minus reasonable costs - will be deducted from unsettled accounts of the orderer.
(2) The customer is obligated to handle the delivered item with care; in particular, he/she is obligated to insure those against fire, water and theft according to the value at his/her expense. Maintenance and inspection works are to be carried out by the orderer at his/her expense, if necessary.
(3) In case of seizure or other third party interventions, the orderer is to notify the supplier immediately in writing so that the supplier may assert claims according to Sec. 771 German Civil Procedure Code (ZPO). If the third party is not able to refund judicial and extrajudicial costs for a lawsuit to the supplier, the orderer is liable for the loss of the supplier incurred according to Sec. 771 German Civil Procedure Code (ZPO).
(4) The orderer is entitled to resell the delivered products in the ordinary course of business; however, he already now assigns all claims in the amount of the final invoice (including VAT) claimed by the supplier, which result from the resale to his customers or third parties, regardless of whether the delivery item has been resold without or after processing. Even after the assignment the orderer remains authorised to collect those claims. The authority of the supplier to collect the claims him/herself remains unchallenged. However, the supplier agrees not to collect the claim as long as the orderer meets his payment obligations from the collected benefits, is not in default of payment and, in particular, has not applied for opening of insolvency proceedings or if suspension of payments has been ordered. If this is the case, then the supplier may demand that the order informs the supplier about the assigned claims and the assignees, provides all information necessary for collection, hands over the relevant documents and informs the assignees (third parties) about the assignment.
(5) The processing or transformation of the delivery item by the customer is always done for the supplier. If the delivery item is merged with other items not belonging to the property of the supplier, the supplier gains co-ownership of the new item in proportion to the value of the delivered item (final invoice amount including VAT) towards the other processed objects at the time of processing. To items created by processing the same applies as for items delivered under reservation of title.
(6) If the delivery item is inseparably merged with others products not belonging to the supplier's property, the supplier gains joint ownership of the new item in proportion to the value of the delivered item (final invoice amount including VAT) towards the other processed items at the time of merging. If the merging takes place in a way that the object of the customer is to be regarded as the main item, the parties agree that the orderer transfers the proportional co-ownership to the supplier. The orderer merely is to keep the sole ownership or co-ownership for the supplier.
(7) The orderer also assigns claims to secure the claims of the supplier against him/her asserted by third parties resulting from the connection of the delivery item with a real estate.
(8) The supplier agrees to release the securities he is entitled to on request of the orderer insofar as the realisable value of the securities of the supplier exceeds the secured claims by more than 10%; the selection of the securities to be released is subject to the supplier's choice.
7. Guarantee claims
For material defects and lack of title concerning the delivery under exclusion of further claims - subject to the provisions of Sec. 8 - the supplier guarantees as follows:
(1) Subject to the suppliers choice, all those parts are to be rectified or replaced free of charge which appear to be defective due to circumstances prior to the transfer of risk. The discovery of such defects is to be reported to the supplier immediately. Replaced parts become property of the supplier.
(2) To carry out all repairs and replacements deemed necessary to the supplier, the orderer is to grant the necessary time and opportunity following a notification to the supplier; otherwise, the supplier shall be released from liability for the consequences arising there from. Only in urgent cases, such as danger to operational safety or to prevent excessive damage (immediate notification required), the orderer has the right to rectify the defect him/herself or to have it rectified by third parties and to demand compensation for the necessary expenses from the supplier.
(3) Direct costs, such as price of the replaced part including shipping costs, incurred by rectification or replacement are borne by the supplier - if the objection proves to be justified. He also bears the cost for assembly and disassembly as well as the costs for necessary provision of technicians and support staff, including travel expenses, as long as these costs do not increase due to the fact that the products have been transported to a place other than the place of performance.
(4) The orderer has the right to withdraw from the contract within the scope of legal regulations if the supplier - considering legal exceptions - let fruitlessly expire the granted reasonable grace period for repair or replacement due to a defect. In case of only minor defects, the customer only has the right to reduce the contractual price; otherwise the right to reduce the price is excluded.
Conditions for further claims are set in paragraph 8 (2) of these agreement.
(5) In particular, no liability is assumed in the following cases:
Unsuitable or improper use, faulty assembly or start-up by the customer or third parties, natural wear and tear, incorrect or negligent handling, improper maintenance, unsuitable operating materials, chemical, electrochemical or electrical influences - unless they are within the sphere of the responsibility of the supplier.
(6) If the customer or a third party improperly rectifies, liability of the supplier for any consequences resulting from that is excluded. The same applies to modifications made without the prior consent of the supplier.
Defects of title:
(7) If the use of the delivery item results in the infringement of industrial property rights or copyrights within Germany, the supplier is to principally transfer the right to further use or to modify the delivery item in a reasonable manner for the orderer in order to make the violation of property rights no longer existent. If this is not possible to commercially reasonable conditions or within a reasonable time, the orderer is entitled to withdraw from the contract. Subject to these conditions, the supplier is also entitled to withdraw from the contract.
In addition, the supplier is to indemnify the orderer against undisputed or legally established claims by the respective copyright holders.
(8) Subject to the provisions of paragraph 8 (2) of this agreement for the case of infringement of protection rights and copyrights, the obligations of the supplier mentioned above in (7) are conclusive. They exist only if
* the orderer immediately informs the supplier about asserted claims due to patent or copyright infringement,
* the orderer assists the supplier to a reasonable extent in the defence against such claims or enables the supplier to carry out modification measures according to (7), respectively,
* any protective measures are reserved to the supplier, including out-of-court settlements,
* the defect of title is not due the orderer's instruction and
* the infringement was not caused by the fact that the orderer has not arbitrarily modified the delivery item or used it in a non-contractual manner.
8. General limitation of liability
(1) If the delivery item could not be used by the orderer as contractually agreed upon due to lacking or improper execution of proposals and consultancy by the supplier or breach of other minor contractual obligations - in particular instructions for operation and maintenance of the delivered goods - the provisions of paragraphs 7 and 8 (2) of these conditions apply accordingly under exclusion of further claims of the orderer.
(2) For damages that are not caused to the item itself, the supplier is liable only in case of
* A) intent,
* B) gross negligence of organs or executives,
* C) culpable harm to life, body or health,
* D) defects, which he/she fraudulently concealed or whose absence he/she has guaranteed
* E) defects on the delivery item, as long as liability for personal and material damage on privately used products is not excluded according to the German Product Liability Act.
In case of culpable violation of essential contractual obligations, the supplier is also liable in cases of gross negligence of non-executive employees and for slight negligence; the latter is limited to the contract-typical, reasonably foreseeable damage. Further claims are excluded.
9. Period of limitation
(1) The limitation period for guarantee claims is 12 months beginning with transfer of risk. The limitation period in case of delivery recourse according to Sections 478, 479 German Civil Code remains unchallenged; it is 5 years beginning with the delivery of the defective item.
(2) To compensation claims for damages according to Sec 8 (2). a) to e) of this agreement, the statutory periods apply.
10. Use of software
If software is included in the scope of delivery, the orderer is granted a non-exclusive right to use the software and its associated documentations. It is provided for use according to the intended purpose of the delivery item. Use of the software on more than one system is prohibited.
The orderer may only use, reproduce, revise, translate the software or convert the object code into the source code to the extent permitted according to Sections 69 ff of the German Copyright Act (UrhG). The orderer agrees not to remove or modify the manufacturer's specifications - especially copyright labels- without prior permission of the supplier.
All other rights towards the software and its documentations, including copies, remain with the supplier or the software provider. The granting of sub-licenses is not permitted.
11. Applicable law - place of jurisdiction - place of performance
(1) All legal relationships between supplier and orderer are exclusively subject to the laws of the Federal Republic of Germany under exclusion of the CISG law.
(2) The place of jurisdiction is the court competent for the residence of the supplier in 49740 Haselünne. However, the supplier is entitled to take legal action at the customer's headquarters.
(3) If not otherwise contractually agreed upon, place of performance is 49740 Haselünne.