General Terms and Conditions of Delivery of VDM GmbH, Otto-Hahn-Str. 8, D- 48599 Gronau
§ 1 VALIDITY
(1) All deliveries, services and offers by VDM GmbH, hereinafter referred to as the seller, are made exclusively on the basis of these General Terms of Delivery. These are part of all contracts that the seller concludes with his contractual partners (hereinafter also referred to as “client”) for the deliveries or services offered by him. They also apply to all future deliveries, services or offers to the client, even if they are not separately agreed on further.
(2) Terms and conditions of the client or third parties do not apply, even if the seller does not object to their validity in individual cases. Even if the seller refers to a letter or to terms and conditions of the client or a third party, this does not constitute consent to the validity of those terms and conditions.
§ 2 OFFER AND CONCLUSION OF CONTRACT
(1) All offers of the seller are subject to change and non-binding, unless they are expressly marked as binding or contain a specific period of acceptance. The seller can accept orders or commissions within fourteen days of receipt.
(2) The written sales contract, including these general terms and conditions of delivery, is solely decisive for the legal relationship between the seller and the client. It fully reflects all agreements between the contracting parties on the subject matter of the contract. Verbal promises made by the seller prior to the conclusion of this contract are not legally binding and any verbal agreements between the contracting parties will be replaced by the written contract, unless it is expressly stated in each case that they will continue to apply.
(3) Supplements and changes to the agreements made, including these General Terms of Delivery, must be made in writing to be effective. With the exception of managing directors or authorized signatories, the seller’s employees are not entitled to make oral agreements that deviate from this. Transmission by fax is sufficient to fulfill the written form requirement; electronic communication, in particular by e-mail, is not sufficient.
(4) Information provided by the seller on the subject of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and images) are only approximately relevant, unless the usability for the contractually agreed intended purpose requires an exact match. They are not guaranteed characteristics, but rather descriptions or identifications of the delivery or service. Customary deviations and inconsistencies that occur due to legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts are permissible, provided they do not impair the usability for the contractually intended purpose.
(5) The seller reserves the right of ownership or copyright to all offers and cost estimates made by him as well as drawings, images, calculations, brochures, catalogs, models, tools and other documents and aids made available to the client. Without the express consent of the seller, the client may not make these items available to third parties, either as such or in terms of their content, or disclose them, use them himself or through third parties or reproduce them. At the request of the seller, he must return these items to the seller in full and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
§ 3 PRICES AND PAYMENT
(1) The prices apply to the scope of services and delivery listed in the order confirmations. Additional or special services will be charged separately. The prices are quoted in EURO plus packaging, statutory value added tax, customs duties for export deliveries and fees and other public charges.
(2) Insofar as the agreed prices are based on the seller’s list prices and the delivery is only to take place more than four months after the conclusion of the contract, the seller’s list prices valid at the time of delivery apply (each less an agreed percentage or fixed discount).
(3) Invoices are to be paid within thirty days without any deduction, unless otherwise agreed in writing. The date of receipt by the seller is decisive for the date of payment. Checks are only considered payment after they have been cashed. If the client does not pay by the due date, the outstanding amounts are to be paid at 5% interest p.a. from the due date; the assertion of higher interest and further damage in the event of default remains unaffected.
(4) Offsetting against counterclaims by the client or withholding payments due to such claims is only permitted if the counterclaims are undisputed or have been legally established.
(5) The seller is entitled to perform or provide outstanding deliveries or services only against prepayment or security if, after the conclusion of the contract, he becomes aware of circumstances that are likely to significantly reduce the creditworthiness of the client and through which the payment of the outstanding claims to the seller by the client from the respective contractual relationship (including from other individual orders for which the same framework agreement applies) is at risk.
§ 4 DELIVERY AND DELIVERY TIME
(1) Deliveries are made from the factory.
(2) Deadlines and dates for deliveries and services promised by the seller are always only approximate, unless a fixed deadline or date has been expressly notified or agreed. If shipping has been agreed, delivery periods and delivery dates refer to the time of handover to the freight forwarder, carrier or other third party commissioned with the transport.
(3) The seller can – without prejudice to his rights from default of the client – request an extension of delivery and service deadlines or a postponement of delivery and service dates by the period in which the client does not meet his contractual obligations towards the seller.
(4) The seller is not liable for impossibility of delivery or for delays in delivery, insofar as these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of all kinds, difficulties in material or energy supply, transport delays, strikes, lawful lockdowns, shortages of labor, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or lack thereof, improper or late delivery by suppliers), for which the seller is not responsible. If such events make the delivery or service significantly more difficult or impossible for the seller to provide / ensure and the hindrance is not temporary, the seller is entitled to withdraw from the contract. In the case of temporary obstacles, the delivery or service deadlines are extended or the delivery or service dates are postponed by the period of the hindrance plus a reasonable start-up period. If the client cannot be expected to accept the delivery or service as a result of the delay, he can withdraw from the contract by means of an immediate written declaration to the seller.
(5) The seller is only entitled to make partial deliveries if
– the partial delivery can be used by the client within the scope of the contractual intended purpose,
– the delivery of the remaining goods ordered is ensured and
– The client does not incur any significant additional work or additional costs as a result (unless the seller agrees to assume these costs).
(6) If the seller defaults on a delivery or service or if a delivery or service becomes impossible for him, for whatever reason, the seller’s liability is limited to compensation in accordance with
Section 8 of these General Terms of Delivery.
§ 5 PLACE OF FULFILLMENT, SHIPPING, PACKAGING, TRANSFER OF RISK, ACCEPTANCE
(1) The place of performance and fulfillment of all obligations arising from the contractual relationship is the registered office of the seller, unless otherwise specified. If the seller also owes the facility, the place of fulfillment is the place where the installation has to take place.
(2) The type of shipping and the packaging are subject to the dutiful discretion of the seller.
(3) The risk is transferred to the client at the latest with the handover of the delivery item (whereby the beginning of the loading process is decisive) to the forwarding agent, carrier or other third party appointed to ship it. This also applies if partial deliveries are made or the seller has taken on other services (e.g. shipping or installation). If the dispatch or handover is delayed due to a circumstance, for which the client is to blame, the risk passes to the client on the day on which the delivery item is ready for shipment and the seller has notified the client of this.
(4) Storage costs after the transfer of risk are borne by the client. In the case of storage by the seller, the storage costs amount to 0.25% of the invoice amount of the delivery items to be stored per week. The right to assert and provide evidence of additional or lower storage costs is reserved.
(5) The consignment will only be insured by the seller against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the client and at his own expense.
(6) If acceptance has to take place, the purchased item is deemed to have been accepted if – the delivery and, if the seller owns the facility, the installation has/have been completed,
– the seller has communicated this to the client with reference to the acceptance terms according to this § 5 (6) and has asked him to accept,
– eight working days have passed since the delivery or installation or the client has started to use the purchased item (e.g. has commissioned the system delivered) and in this case six working days have passed since delivery or installation, and
– the client has failed to accept the goods within this period for a reason other than a defect reported to the seller that makes the use of the purchased item impossible or significantly impairs it.
§ 6 WARRANTY, DEFECTS
(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance.
(2) The delivered items must be carefully examined immediately after delivery to the client or to the third party appointed by him. They are considered approved if the seller has not received a written notice of defects with regard to obvious defects or other defects that were recognizable during an immediate, careful inspection within seven working days of delivery or otherwise within seven working days of the defect’s being discovered or at any earlier point in time, in which the defect became known to the client upon standard use of the delivery item without closer examination. At the request of the seller, the delivery item subject to complaint must be returned to the seller shipping paid. If the complaint is justified, the seller will reimburse the cost of the cheapest shipping route; this does not apply if the costs increase because the delivery item is at a location other than the location of its intended use.
(3) In the event of material defects of the items delivered, the seller is initially obliged and entitled to either repair or replacement delivery, as he chooses within a reasonable period. In
case of failure, i.e. the impossibility, unreasonableness, refusal or unreasonable delay in repair or replacement, the client can withdraw from the contract or reduce the purchase price appropriately.
(4) If a defect is due to the fault of the seller, the client can demand compensation under the conditions specified in § 8.
(5) In the event of defects in components from other manufacturers that the seller cannot eliminate for licensing or factual reasons, the seller will, at his option, assert his warranty claims against the manufacturer and supplier for the account of the client or assign them to the client. In the case of such defects, warranty claims against the seller only exist under the other conditions and in accordance with these general delivery conditions if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile due to insolvency or another such reason. During the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the client against the seller is suspended.
(6) The warranty does not apply if the client changes the delivery item or has it changed by a third party without the consent of the seller and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the client has to bear the additional costs of remedying the defect resulting from the change.
(7) A delivery of used items agreed with the client in individual cases takes place under exclusion of any warranty for material defects.
§ 7 PROPERTY RIGHTS
(1) In accordance with this Section 7, the seller guarantees that the delivery item is free from industrial property rights or third-party copyrights. Each contractual partner will immediately notify the other contractual partner in writing if claims are asserted against him due to the violation of such rights.
(2) In the event that the delivery item violates an industrial property right or copyright of a third party, the seller will, at his option and at his own expense, modify or replace the delivery item in such a way that no third party rights are violated, but the delivery item continues to fulfill the contractually agreed functions, or grant the client the right of use by concluding a license agreement. If he does not succeed in this within a reasonable period of time, the client is entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the client are subject to the restrictions of Section 8 of these General Terms of Delivery.
(3) In the event of legal violations due to products from other manufacturers delivered by the seller, the seller will, at his option, assert his claims against the manufacturer and sub-suppliers for the account of the client or assign them to the client. Claims against the seller in these cases in accordance with this § 7 only exist if the judicial enforcement of the aforementioned claims against the manufacturer and sub-suppliers was unsuccessful or futile due to bankruptcy or another such reason.
§ 8 LIABILITY FOR DAMAGES DUE TO FAULT
(1) The seller’s liability for damages, regardless of the legal reason, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations and tort is limited in accordance with this Section 8 if he is at fault.
(2) The seller is not liable in the case of simple negligence on the part of his bodies, legal representatives, employees or other vicarious agents, unless a breach of essential contractual obligations has occurred. The obligation for timely delivery and installation of the delivery item free of significant defects as well as advisory, protection and custody obligations which are intended to enable the client to use the delivery item in accordance with the contract or to protect the life and limb of the client’s staff or his property from significant damage are essential
to the contract.
(3) Insofar as the seller is fundamentally liable for damages in accordance with § 8 (2), this liability is limited to damages that the seller foresaw as a possible consequence of a breach of contract when the contract was concluded or that he should have foreseen if he had exercised due care. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation if such damage can typically be expected if the delivery item is used as intended.
(4) The above exclusions and limitations of liability apply to the same extent in favor of the bodies, legal representatives, employees, and other vicarious agents of the seller.
(5) Insofar as the seller provides technical information or acts in an advisory capacity and this information or advice is not within the contractually agreed scope of services owed by him, this is done free of charge and with the exclusion of any liability.
(6) The restrictions of this § 8 do not apply to the liability of the seller due to willful behavior, for guaranteed properties, due to injury to life, body or health or according to product liability law.
§ 9 RETENTION OF TITLE
(1) The seller retains ownership of the delivered goods until the purchase price of the goods in question has been paid in full (including any applicable sales tax and shipping costs).
(2) Without the prior written consent of the seller, the client is not entitled to resell the goods delivered by the seller that are subject to retention of title. In the event of a possible resale, the client assigns the claims from the resale up to the amount of the purchase price to be paid to the seller plus a surcharge of 20% to the seller. The seller hereby authorizes the client to collect the claims assigned in this way in the normal course of business, whereby the seller can revoke this authorization at any time in the event of default in payment by the client.
§ 10 FINAL PROVISIONS
(1) The place of jurisdiction for any disputes arising from the business relationship of the seller and the client is, at the seller’s option, the registered office of the seller or the registered office of the client. The registered office of the seller is the exclusive place of jurisdiction for lawsuits against the seller. Mandatory legal provisions on exclusive places of jurisdiction remain unaffected by this regulation.
(2) The relationships between the seller and the client are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) does not apply.
(3) Insofar as the contract or these General Terms and Conditions of Delivery contain gaps, the legally effective provisions, which the contractual partners would have agreed on if they had been aware of the gaps according to the economic objectives of the contract and the purpose of these General Terms of Delivery, shall be deemed agreed on to fill these gaps.
The client acknowledges that the seller saves data from the contractual relationship as per § 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transfer the data to third parties (e.g. insurance companies) as far as necessary for the fulfillment of the contract.