Terms and Conditions of Business of docking Solution und Service GmbH
1. General stipulations
1) These Terms and Conditions of Business apply to all business dealings with companies, bodies corporate organised under public law, and separate assets regulated by public law. We provide deliveries and services solely based on the following terms. The terms and conditions of the customer are invalid Insofar as not expressly acknowledged by us. The following terms also apply to future deliveries and services. 2) Our offers are without obligation. All orders and related changes, agreements and collateral agreements, or amendments and additions to our terms and conditions only become binding through our written confirmation. The same applies to any telephone or verbal agreements. In the case of products that were especially made to order, the contract shall be deemed concluded following our written confirmation even if the execution still requires clarification which may influence delivery and price. 3) The information and pictures contained in brochures and catalogues are approximate values customary in the trade, unless expressly designated as binding by us. The cost estimates, drawings, and descriptions appertaining to the offer are subject to proprietary rights and copyrights. Any communication to third parties – even in extracts – is only permitted with our prior written permission. DIN standards and known tolerances or usual specifications apply to raw materials, electrotechnical and mechanical accessories, and in-house production.
2. Prices
1) Our prices are specified in euros ex works or ex warehouse, exclusive of packaging, and exclusive of applicable VAT. 2 ) Any major salary, material, or energy cost changes shall entitle the parties to demand adequate price adjustment taking these factors into account. 3) In case of deliveries to the German North Sea Islands, the shipping costs from the nearest mainland station shall be added. Shipping costs ex German border station, border tax, customs duties, and other duties.
3. Terms of payment
1) All invoices are payable within 30 days of invoice date. 2) If we indisputably supplied partly defective goods, the customer shall still have to pay for the defective part, unless the partial delivery is of no interest to him. In other respects, the customer may only offset payment against final or undisputed counterclaims. 3) In the event of exceeding time for payment, we are entitled to charge default interest in the amount of the rate charged to us by the bank for current accounts, however, at least in the amount of 8 per cent above the base rate of the European Central Bank. This shall not affect our right to assert further claims for damage due to default. 4) In case of delay of payment, we can stop fulfilling our obligations until receipt of payment after notifying the customer in writing. The granting of an agreed cash discount rate is subject to punctual fulfilment of all customer obligations, including obligations out of former transactions. 5) Bills of exchange and cheques are only accepted upon agreement, only on account of performance, and provided they can be discounted or cashed. They are only credited unconditionally upon receipt of the net proceeds and only in the amount thereof. Discount charges are calculated from the day of maturity of the invoice amount. 6) In case of failure to comply with the payment terms, or if circumstances adversely affecting the creditworthiness of the customer become known after the conclusion of the contract, all claims shall become due upon receipt of the invoice regardless of any set time for payment. Furthermore, such circumstances shall entitle us to execute still outstanding deliveries and performance only upon advance payment or the provision of adequate surety bonding. In case of a refusal by the customer or fruitless expiry of the set time limit, we are entitled to withdraw from the contract and to claim for damages. 7) Furthermore, we may prohibit further sale and processing of the goods supplied by us on the same conditions and demand that the goods be returned to us at the expense of the customer, or take possession of the goods, without the customer being entitled to a right of retention or similar right. 8) If we can assert damages, our damage claim shall be at least 20% of the value of the goods, yet at least EUR 50 in case of free return delivery.
4. Securities
1) We reserve the right to retain ownership on the goods (goods subject to retention of title) until fulfilment of all claims from the business relationship with the customer. 2) The customer may only sell the goods subject to retention of title as long as he meets his obligations out of the business relationship with us in due time. However, he may neither pledge nor transfer the goods under retention of title as surety. In case of resale of the products subject to retention of title supported by a loan, he is obliged to secure our rights. 3) In case of a breach of obligation on the part of the customer, especially in case of default, we are entitled to withdraw from the contract or to take back the goods upon fruitless expiry of a reasonable time limit for payment set to the customer. This shall not affect the statutory provisions about the dispensability of setting a time limit. The customer must return the goods. We are entitled to withdraw from the contract if a petition to open insolvency proceedings regarding the assets of the customer is filed. 4) The customer already assigns to us all claims and rights from the resale of goods subject to retention of title, also within the frame of a contract for work and labour or a contract for purchasing work and materials by way of security. We hereby confirm acceptance of the assignment. On our demand, the customer is obliged to notify his clients of the assignment to us immediately, and to provide us with all information and documents necessary for debt collection. 5) The customer may still undertake to process the goods subject to retention of title, yet without obligation towards us. If the goods subject to retention of title are processed or inextricably mixed with other items that were not supplied by us, we shall acquire joint ownership of the new item in proportion of the invoice amount of the goods subject to retention of title to the other processed or mixed items. If our goods are connected to or inextricably mixed with other mobile items to form one single object, the object is to be viewed as the main object. Insofar as he owns the object, the customer shall thus transfer to us the pro rata joint ownership of the main object. The purchaser shall retain (joint) ownership for us at no cost. In other respects, the same applies to the object created as a result of processing, connecting, or mixing, as to the goods subject to retention of title. 6) We shall only release the foregoing sureties by request insofar as their value substantially exceeds our secured claims by more than 20%.
5. Delivery dates and delay in delivery
1) Our observance of agreed delivery terms is subject to clarification of all commercial and technical issues between the parties, timely receipt of all documents to be provided by the customer as well as compliance with agreed payment terms and other customer obligations. If fulfilment of the aforementioned requirements is delayed, terms shall be extended by a reasonable period of time, unless we are responsible for the delay. 2) Compliance with the delivery date shall be subject to correct and timely self-supply. We shall inform the customer of any expected delays as soon as possible. 3) The delivery period shall be deemed kept if the item supplied has left our works until expiry thereof or readiness to deliver was notified. Insofar as acceptance must occur, except in the case of justified refusal of acceptance, the day of acceptance shall be final, alternatively, notification of the readiness to accept the goods. 4) If the dispatch or acceptance of the delivered items is delayed on grounds for which the customer is responsible, he shall bear the costs incurred as a result of the delay, beginning with a month following notification of dispatch or readiness to accept the goods. 5) If the non-observance of the deadlines can be ascribed to force majeure, industrial action, or other events that lie outside our sphere of influence, the deadlines shall be reasonably extended. 6) If customer incurs damage as a result of our delay, he shall be entitled to demand a flat compensation for delay, amounting to 0.5% for each full week of delay, however, in total, at most 5% of the value of the part of total delivery which cannot be used on time or not according to contract as a result of the delay. If, taking into account any exceptional cases as stipulated by law, the customer sets us a reasonable time limit for performance after due date, and we fail to observe the time limit, the customer is entitled to withdraw from contract within the frame of the statutory provisions. 7) The customer is only entitled to withdraw from the contract if we are responsible for failing to observe the delivery date, and he set us a reasonable additional period of time for performance.
6. Dispatch and passing of the risk
1) The risk shall pass to the customer upon surrender of the goods to the freight forwarder or haulier, at the latest as soon as the consignment leaves the works, also in case of dispatch with our own lorries. 2) Goods timely notified as ready for dispatch must be retrieved immediately, failing which we are entitled to, at our option, either dispatch them or store them at the expense and risk of the customer, and to charge them as delivered. 3) In case of free delivery, the customer must unload the means of transportation immediately. Any waiting times are at the expense of the customer. 4) The agreed price is delivery ex construction site, always ex lorry on drivable road, accessed at ground level. Unloading including transport to site of use and storage is incumbent upon the customer, which in case of delay must bear all costs and risk of unloading or stacking and storage. 5) The recipient appearing at the site of delivery on behalf of the customer shall be deemed authorised to bindingly accept the delivery. In the case of deliveries with glass components, glass breakage shall only be acknowledged if we are liable to pay damages, and if the customer or the person appearing to receive the goods on his behalf notifies us of the broken glass on the delivery note. (6) Partial deliveries are permissible insofar as they can be reasonably used by the customer.
7. Installation
1) All installations performed by us are subject to our special Terms of Installation in the respective valid version. The current version can be ordered from us at any time. 2) Unless otherwise agreed, we are entitled to assign installations to an external company or individual person. These can then carry out the installation and delivery in their own name and for their own account. 3) Condition for the agreed installation price is that all preparations for the performance of a trouble-free installation were made. Auxiliary forces and materials like lifts, electricity, water, etc. must be provided by the customer. Hole cutting and masonry work, installation and dismantling of scaffoldings, and installation work must be ensured by the customer. For his own participation in installation work, the customer can neither demand remuneration nor deduction from the agreed installation price without our express written permission.
8. Acceptance
1) The customer may not refuse acceptance of deliveries due to insignificant defects. 2) In the event that the customer delays acceptance of the goods, we are entitled, upon vainly setting a period of 14 days, to either demand acceptance of the order, in whole or in part, or to withdraw from the contract and to claim for damages in lieu of performance. 3) Any damages to be paid make at least 20% of the order value. The customer reserves the right to prove that no damage occurred or that the occurred damage was only negligible.
9. Material damage
1) The nature of the goods is exclusively based on the agreed technical delivery specifications. The customer shall assume the risk of fitness for intended purpose in the event of supply according to drawings, specifications, samples, etc. of the customer. The time of passing of the risk under number 6.2) is decisive for the contractual condition of the goods. We do not accept liability for any material defects arising through improper or incorrect use, faulty installation work by third parties, faulty commissioning, usual wear, faulty or negligent handling, due to wrong or untimely protective coating, as a result of external influences (e.g. magnetic fields) as well as non-compliance with the operating instructions. Neither do we accept liability for the consequences of improper changes or repairs undertaken by the customer or third parties without our permission. The same applies to defects concerning the light-fastness of plastic coatings, related to delivery parts that are subject to increased natural wear as a result of their material nature or their type of use (e.g. seals, plastic bearings), and such defects that negligibly reduce the value or suitability of the goods. 3) Claims for material defects become statute-barred within 24 months; insofar as they concern fitting parts and electro technical accessories, within 12 months, respectively calculated from the time of passing of the risk. This does not apply insofar as the law prescribes longer periods, especially for building defects or in products that were used for a building according to their ordinary type of use and that caused its defectiveness. 4) If inspection of the goods was agreed, any notification of defects is excluded, which the customer should have noticed upon careful inspection. 5) We must give the opportunity to detect notified defects. Contested goods must be returned to us immediately. We take over the shipping costs insofar as the complaint about defects is justified. If the customer does not meet his obligations or makes changes to already contested goods without our consent, he loses any claims for material defects. 6) In the event of a justified, timely notification of defects, we, at our option, improve the contested goods or supply perfect replacement. 7) If we do not meet these obligations at all, or not according to contract, within a reasonable period of time, the customer can set us an ultimate time limit in writing, within which we must meet our obligations. After fruitless expiry of this time limit, the customer may demand a price reduction, withdraw from the contract, or carry out any necessary repairs himself, or have them carried out by a third party at our expense and risk. Any reimbursement of expenses is excluded insofar as the goods were carried to another location after delivery, unless this matches the intended use of the goods. 8) Any customer statutory claims against us under a right of recourse shall only exist insofar as the customer did not reach any agreements with his customer that go beyond the statutory claims for defects. The scope of the claims under a right of recourse is further subject accordingly to number 9 Para. 7 last clause.
10. Other claims, liability
1) Insofar as nothing to the contrary was agreed in the following, any further claims of the customer against us are excluded. This especially applies to damage claims due to infringement of obligations out of contractual obligations and out of tortuous acts. Hence we are not liable for damage that did not occurred to the delivered goods per se. We especially do no accept liability for loss of profits or other customer pecuniary loss. 2) Foregoing limitations of liability shall not apply in case of intent, gross negligence of our legal representatives or senior staff and in case of culpable infringement of cardinal contractual obligations. In the event of culpable infringement of cardinal contractual obligations, we shall only be liable for contract- typical and reasonably foreseeable damage with the exception of intent or gross negligence on the part of our legal representatives or senior staff. 3) Furthermore, the limit of liability shall not apply in cases in which liability for defects of the supplied goods for personal or material damage to privately used objects applies under the Product Liability Act. It also does not apply in case of injury to life, body, or health, and in the absence of assured characteristics, if and insofar as the purpose of the assurance was to protect the customer from damage that did not occur to the delivered goods per se. 4) Insofar as our liability is excluded or limited, this shall also apply to personal liability of our staff, employees, workers, legal representatives and vicarious agents. 5) This shall not affect the statutory regulations concerning the burden of proof.
11. Acts of God
Acts of God, industrial action, civil turmoil, official measures, failure of our suppliers to provide subcontracted supplies, and other unforeseeable, inevitable and serious events, shall relieve the parties of their obligations to perform for the duration of the disruption to the extent they may affect delivery. This also applies if those events occur at a time when the concerned party is in default, unless default is due to intent or gross negligence on his part. The parties agree to provide the necessary information immediately within the frame of what can be reasonably expected and to adapt their obligations to the changed circumstances in good faith.
12. Place of performance
1) Insofar as nothing to the contrary is stipulated in the order confirmation, the place of performance shall be our registered office. 2) The legal venue for all legal disputes, also within the frame of summary bill enforcement proceedings, is the competent court in Bocholt. We are also entitled to take legal action at the place of business of the customer. 3) This contractual relationship shall be exclusively subject to the law of the Federal Republic of Germany to the exclusion of the United Nations Convention for Contracts on the International Sale of Goods (CISG – Vienna Sales Law) of 11th April 1980.