General Terms and Conditions for Deliveries and Services of Didek eK
The following conditions apply to all our deliveries and services. Other conditions are binding for us if we have accepted them in writing. Assembly and repair work is subject to separate service conditions. For software, insofar as it is a component of a product supplied by us, separate contractual conditions for the provision of software will additionally apply.
Our offers are subject to change without notice, cost estimates are non-binding and - unless otherwise agreed - subject to a charge. Dimensions, packing dimensions, weights, illustrations, simulation results and drawings are only binding for the execution if this is expressly confirmed in writing.
We reserve the property rights and copyrights to cost estimates, drawings and other documents. They may not be passed on or otherwise made accessible to third parties.
Unless otherwise agreed, invoicing shall be based on the prices valid at the time of delivery.
Unless otherwise stated in the offer, the prices are for deliveries “ex works”, thus excluding packaging, transport, insurance, assembly and commissioning, plus the Value Added Tax valid at the time of delivery.
Delivery periods are only binding if they have been agreed in writing. In case of doubt, the delivery periods stated in the order confirmation shall apply. The period begins with conclusion of the contract, but not before fulfilment of existing obligations to cooperate by the customer, in particular provision of the documents and supplies to be procured by the customer, permits, releases and, if applicable, after agreed down payments have been made or a line of credit has been opened. The agreed deadlines shall also be deemed to have been met upon notification of readiness for dispatch if the goods could not be delivered on time or the services could not be performed on time through no fault of ours.
If non-compliance with delivery dates is due to force majeure and other disruptions for which we are not responsible, e.g. war, terrorist attacks, import and export restrictions, or in the event of industrial disputes, including those affecting suppliers, the agreed delivery periods shall be extended accordingly. This shall also apply if the disruptions occur at a time when we are in fault.
In the event of culpable non-compliance with a binding delivery period for reasons other than those stated in Section III.2, the customer may, after expiry of a reasonable period of grace set in writing, demand a reasonable extension of the delivery period or to withdraw from the contract.
Further rights of the customer arising from default, in particular to further compensation for damages, are excluded to the extent specified in Section VII.
If dispatch is delayed at the request of the customer, we can, beginning one month after notification of readiness for dispatch, demand compensation for the actual costs of storage costs or 1% of the invoice amount for each month or part thereof (subject to proof of significantly lower costs). After the expiry of a reasonable period of time we reserve the right to withdraw from the contract. The costs incurred by us in doing so will be charged to the customer.
Partial deliveries and corresponding invoices are permissible.
Transfer of risk; shipment
Delivery is "ex works", unless expressly agreed otherwise.
If the goods are shipped to another location at the request of the customer, the mode of shipment is at our discretion, unless otherwise specified by the customer. Transport insurance will only be taken out at the instruction and expense of the customer.
Spare parts deliveries and returns of repaired goods shall be made, insofar as they are not covered by the liability for material defects, against the charging of appropriate shipping and handling fees and packaging costs in addition to the remuneration for the service we have provided. Returns to us as well as shipments for repair work must - outside the liability for material defects - always be free of charge.
If dispatch is delayed due to circumstances for which we are not responsible, the risk shall pass to the customer on the day of notification of readiness for dispatch.
Claims for defects become statute-barred after 12 months. The above provision shall not apply insofar as the law according to §§ 438 para. 1 no. 2 (buildings and items for buildings) and § 63a (construction defects) does not provide for a limitation period of 12 months. BGB prescribes longer periods.
The period of limitation for material defects shall commence with the commissioning of the item, in the case of products for vehicle and engine equipment with the point in time at which the goods are put into use, i.e. in the case of original equipment with the first registration, in other cases with the installation, in any case, however, no later than 6 months after delivery of the item (transfer of risk) or after notification of readiness for dispatch in our factory.
In the event of a material defect within the limitation period, the cause of which was already present at the time of the transfer of risk, we may, at our discretion, choose the following as subsequent performance: Eliminate the defect or deliver a defect-free item. The faulty product shall be sent to us for repair. The costs of the cheapest outward and return shipment from/to the customer's domestic delivery address agreed upon for the original delivery of the products shall be borne by us if the complaint proves to be justified. Defects shall be remedied by replacing or repairing the defective products at our premises. Defects will only be remedied at the place of installation within the framework of special agreements in accordance with our valid service conditions. .
The warranty obligation expires if the product is modified by a third party or by the installation of parts of a third party, unless the defect is not causally connected with the modifications, as well as if instructions for dispatch, packaging, installation, handling, use or maintenance are not followed, or if faulty assembly or commissioning by the customer or third parties is present.
Natural wear and tear and damage due to improper handling are excluded from the warranty; in particular, we are not liable for changes in the condition or the mode of operation of our products due to improper storage or unsuitable operating materials as well as climatic or other effects. The warranty does not extend to defects resulting from design faults or the choice of unsuitable material, if the customer has prescribed the design or material despite our prior notification. We do not assume any warranty for parts provided by the customer.
The customer must give us or a third party obliged to provide warranty the necessary time and opportunity to carry out the warranty work. This is an obligation. The customer shall only be entitled to carry out such work himself with our consent, except in the cases of § 637 BGB. We shall bear the expenses required for subsequent performance to an extent which must be in reasonable proportion to the value of the item in a defect-free condition, to the significance of the defect and/or to the possibility of obtaining subsequent performance in another way; any costs exceeding this shall be borne by the customer.
The period of limitation shall be suspended for the duration of the time necessary for subsequent performance. It does not start again.
If the subsequent performance fails, the customer may withdraw from the contract or reduce the remuneration.
Further rights due to defects - in particular contractual or non-contractual claims for damages not arising from the goods themselves - are set out in the contractually agreed terms and conditions.Section VII. is excluded.
If a notification of defects proves to be unjustified, we shall be entitled to charge the customer for all expenses incurred by us as a result of such notification.
The provisions of this clause V. shall apply accordingly to defects of title which are not based on the infringement of third party industrial property rights.
VI. Industrial property rights
We shall only be liable for claims arising from the infringement of property rights and copyrights if the property right or copyright is not owned by the customer or a directly or indirectly majority-owned company with capital or voting rights, the customer informs us immediately of infringement risks and alleged cases of infringement which become known to him and, at our request, allows us to conduct legal disputes (including out-of-court) and, in the case of property rights, at least one property right from the property right family has been published either by the European Patent Office or in one of the following states: Federal Republic of Germany, France, Great Britain, Austria or the USA.
At our discretion, we are entitled to acquire a license for the (allegedly) infringing product for the customer or to modify it in such a way that it no longer infringes the property right or copyright, or to replace it with a product that does not infringe the property right or copyright.
The liability according to VI. 1. and 2. conclusively regulates the liability for the freedom from property rights and copyrights and ends five years after delivery of the respective product. This does not apply if the products were manufactured according to the customer's specification or if the alleged infringement of the property right or copyright results from the use in combination with another object not originating from us or if the products are used in a way we could not foresee.
Unless otherwise provided in these terms of delivery, we are liable for damages and compensation for futile expenditure within the meaning of § 284 BGB (German Civil Code) (hereinafter referred to as "BGB"). "Damages" For breach of contractual or non-contractual obligations only in case of intent or gross negligence of our legal representatives or vicarious agents, in case of injury to life, body or health, due to the assumption of a guarantee or a procurement risk, the breach of essential contractual obligations, due to mandatory liability under the Product Liability Act or other mandatory liability. However, compensation for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless intent or gross negligence on the part of our legal representatives or vicarious agents exists or liability is assumed due to injury to life, body or health or due to the assumption of a guarantee or a procurement risk. A change in the burden of proof to the disadvantage of the purchaser is not associated with the above provisions.
Retention of title
The delivered goods remain our property until the purchase price claims of this contract have been fulfilled.
If the retention of title is not effective according to the law of the country in whose area the goods are located, a retention of title corresponding to the retention of title in this area shall apply backup as agreed. If the cooperation of the purchaser is necessary for the creation of such rights and/or the retention of title, he must take all measures necessary to establish and maintain such rights and/or the retention of title.
If, according to the law in whose area the goods are located, the agreement of a more extensive retention of title (e.g. the advance assignment of the claims of the buyer is entitled to a claim from a resale of the goods delivered by us), the buyer shall enter into such an agreement with us on request.
Unless otherwise agreed in writing, payment shall be made within 30 days of the invoice date, in the case of repair work and other work services within 10 days, in cash without any deduction. We may, however, also make delivery dependent on payment concurrently (e.g. by cash on delivery or bank direct debit) or on advance payment.
We are entitled to offset payments against the oldest claim due.
Payments by bill of exchange are not permitted.
If the customer is in default of payment, we are entitled to demand immediate cash payment of all due and uncontested claims from business relations. This right is not excluded by a deferment of payment or by the acceptance of cheques. Furthermore, we are then also entitled to carry out outstanding deliveries only against advance payment or against the provision of securities. If the customer's financial situation deteriorates significantly after conclusion of the contract, we may also withdraw from the contract if the customer is not prepared to make payment step by step or to provide security despite being requested to do so.
The customer may only offset against such claims that are undisputed or have been legally established.
Place of jurisdiction; applicable law
The place of jurisdiction shall be the registered office of the operating facility which executes the order if the customer is a merchant or a legal entity under public law or a special fund under public law. We are also entitled to take legal action at the court which has jurisdiction over the registered office or a branch of the customer.
All legal relations between us and the customer shall be governed by German substantive law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
As of: December 2004