GENERAL TERMS AND CONDITIONS OF DELIVERY OF DEMMLER GMBH
§ 1 General information, scope of application
(1) All services offered by Demmler GmbH, Kaiser-Wilhelm-Str. 7, 12247 Berlin (hereinafter referred to as Seller) are exclusively intended for natural or legal persons or partnerships with legal capacity who act in the exercise of their commercial or independent professional activity when ordering Goods/services, and are subject to these General Terms and Conditions (hereinafter T&C).
(2) All deliveries, services and offers of the Seller are made exclusively on the basis of these T&C. These are a component part of all contracts that the Seller and its contractual partners (hereinafter: "Buyers") conclude in respect of the supplies or services it offers. The T&C particularly apply to contracts for the sale and/or supply of moveable goods (hereinafter also: Goods). These T&C shall also apply as a framework agreement for future contracts for the sale and/or supply of moveables with the same Buyer, without the Seller having to refer to these again in each individual case. Individual agreements shall, however, have precedence over these T&C.
(3) Business terms and conditions of the Buyer or a third party shall not apply, even if the Seller does not expressly object to their application in any particular case. Even if the Seller refers to a letter that contains or refers to the terms and conditions of the Buyer or a third party, or the Seller carries out the delivery to the Buyer unconditionally in knowledge of the Buyer's terms and conditions, this does not constitute acceptance of the validity of those terms and conditions.
(4) References to the application of statutory provisions are for clarification purposes only. Even without such clarification, statutory provisions shall therefore apply, insofar as they are not directly altered or expressly excluded in these T&C.
§ 2 Offer and conclusion of contracts
(1) The representations of Goods of the Seller in the online shop (www.demmler.de) or catalogues do not constitute binding contractual offers. All offers of the Seller are non-binding and subject to change, unless they are specifically marked as binding or contain a defined acceptance period. Orders or contracts of the Buyer are binding. The Seller reserves the free choice of whether to accept the offer. Unless otherwise stated in the order or the contract, these can be accepted by the Seller within two weeks of receipt.
(2) The acceptance can be effected either in writing (e-mail is sufficient), e.g. by order confirmation, or by delivery of the Goods. An automatically generated order confirmation does not constitute an acceptance of the contract by the Seller.
(3) With the exception of directors and authorised representatives, the employees of the Seller are not entitled to make oral agreements deviating from the written agreement, including these T&C.
(4) Information from the Seller on the subject of the delivery or service (e.g. weights, measurements, practical values, capacity, tolerances, and technical data), as well as the Seller's depictions of these (e.g. drawings and illustrations) are only approximately applicable, unless strict compliance with these is necessary to use it for the intended contractual purpose. These are not guaranteed characteristics, but rather descriptions or indications of the deliveries or services. Deviations which are typical for the industry, and those take place on the basis of legal provisions or which represent technical improvements, as well as the replacement of components with equivalent parts are permitted provided this does not impede usability for the intended contractual purpose.
§ 3 Prices and payment, right of retention/withdrawal
(1) The offered prices are, insofar as corresponding explicit information is missing, exclusive of the respectively valid statutory value added tax, excluding packaging; this will be charged separately.
(2) The purchase price shall be due and payable in principle within 14 days from the date of invoicing with a discount of 2%. The Buyer shall automatically be in default 30 days after receipt of invoice and shall then be liable for statutory default interest. The Seller shall charge fixed-rate reminder fees: For the first reminder, €5.00 and for the second reminder, €8.00; further claims of the Seller remain unaffected.
(3) The buyer owes the purchase price in euros. For payments in foreign currency, the daily exchange rate applies on the day of the value date at the seller; the buyer has to bear all costs of payment transactions.
(4) It is only permissible for the Buyer to set-off counter-claims or to withhold payments on the basis of such claims if the counter-claims are undisputed or established by law.
(5) If, after the conclusion of the contract, it becomes apparent that the fulfilment of outstanding claims under the respective contractual relationship (including from other individual orders from the current business relationship, which because of their temporal or material connection appear to be a natural entity and for which the same framework contract applies), is jeopardised due to the Buyer's deficient capacity of performance, the Seller is entitled to
(a) execute or render any outstanding deliveries or services only against corresponding advance payment or security deposit,
(b) withdraw from the contract if the Buyer fails to provide payment or security concurrently against the service according to its discretion within a reasonable time,
(c) to withdraw from the contract in the case of contracts for the production of non-fungible goods (custom-made products) if the Buyer fails to provide payment or security within a reasonable time limit according to its discretion, without having to offer the consideration concurrently.
§ 4 Delivery, place of performance, shipping/packaging, partial deliveries, transfer of risk
(1) Delivery takes place from the warehouse; this is also the place of performance. Upon request from, and at the expense of, the Buyer, the Goods may be despatched to another place of destination (sales shipment).
(2) Insofar as no other agreement has been reached, the Seller is entitled to determine the nature of despatch itself (in particular the transport company, route of despatch, packaging).
(3) The shipment shall be insured against theft, breakage, transport or other insurable risks by the Seller only at the express request of the Buyer and at the latter's expense.
(4) The Seller is only entitled to effect partial deliveries if
- the partial delivery is suitable for the Buyer within the scope of the intended contractual purpose,
- the delivery of the remaining Goods orders is guaranteed, and
- the Buyer does not hereby incur considerable additional expense or additional costs (unless the Seller agrees to accept these costs).
(5) The Buyer assumes the risk of accidental loss or accidental deterioration in the condition of the Goods no later than upon transfer to the Buyer. For sales shipments, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the forwarder, the carrier or the person or institution otherwise responsible for carrying out the consignment upon delivery of the Goods. The same shall apply to the handover if the Buyer is in default of acceptance.
§ 5 Lead time, default in delivery, delay in acceptance
(1) Deadlines and lead times for deliveries and services set by the Seller are only approximate, with the proviso that a delivery is made no later than four weeks after the provisional date set, unless a fixed deadline or a fixed lead time has been expressly promised or agreed. If shipment of the products was agreed, the delivery deadlines and dates refer to the moment of transfer to the forwarder, carrier or to any other third party commissioned with the shipment.
(2) The Seller may - without prejudice to its rights arising from default by the Buyer - require the Buyer to extend delivery and performance deadlines or postpone delivery and performance deadlines for the period in which the Buyer fails to meet its contractual obligations to the Seller, in particular the Buyer does not provide the documentation required for delivery (design plans, specifications, etc.), samples, etc.
(3) Insofar as the Seller cannot adhere to the binding delivery dates for reasons for which it is not responsible (non-availability of service), then the Buyer shall immediately inform the Buyer thereof and simultaneously communicate the new expected delivery time. Should the service also not be available within the new delivery time, the Seller shall be entitled to withdraw in part or in full from the contract; any remuneration already provided by the Buyer shall be immediately reimbursed. Deemed a case of unavailability of the service in this sense, in particular is the non-timely self-delivery by the suppliers of the Seller, if a congruent covering transaction already existed upon conclusion of the contract. The Seller’s statutory withdrawal and termination rights, along with any statutory provisions on ending a contract if a service obligation is excluded (e.g. impossibility or unreasonable nature of the service and/or supplementary performance) shall remain unaffected. If the Buyer cannot be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract through an immediate written declaration to us.
(4) The occurrence of a delivery delay on the part of the Seller shall be determined according to the statutory provisions. In every case, however, a written reminder by the Buyer is required.
(5) The Seller is not liable for the impossibility of delivery or delays in delivery, insofar as this is due to force majeure or other events unforeseeable at the time of conclusion of contract (e.g. natural disasters, strikes, lawful lockouts, lack of manpower, energy or raw materials, difficulties in obtaining official permits, official measures that were caused by improper or untimely delivery by suppliers insofar as a congruent covering contract was already in place at the time of conclusion of the contract), for which the Seller was not responsible.
(6) If the Seller defaults on delivery due to slight negligence, the Buyer may demand lump sum compensation for the damage caused by the delay. The lump sum compensation shall amount to 3 % of the net price (delivery value) for each completed calendar week, yet totalling no more than 10 % of the delivery value of the Goods delivered late. The Seller reserves the right to furnish proof that the Buyer incurred no damage at all or only substantially lower damages than the aforementioned lump sum. The limitation of liability does not apply if the delay is based on a wilful or grossly negligent breach of obligations by the Seller or a wilful or grossly negligent breach of obligations by one of the legal representatives or vicarious agents of the Seller.
(7) If the Buyer is in default of acceptance or fails to provide a necessary act of cooperation (§ 642 BGB [German Civil Code]) when delivering a non-fungible item (one-off production), the Seller is entitled to demand compensation for additional expenses (e.g. storage costs) or reasonable compensation. For this, the Seller shall charge lump-sum compensation in the amount of 0.25% of the invoice amount per expired week up to a maximum of 5%, starting with the end of the delivery deadline or - in the absence of delivery deadline - with the notification of readiness for dispatch, or in case of failure to cooperate by the Buyer, after the unsuccessful request take the necessary action. The proof of higher damages as well as legal claims, in particular the right of termination, remains unaffected; the lump sum shall be credited against further monetary claims. The Buyer shall bear the burden of proof for demonstrating that the Seller has incurred no damage at all or substantially less damage than the above lump sum.
§ 6 Warranty
(1) The limitation period for warranty claims due to material defects and defects of title is one year from delivery. This does not apply to in rem claims of third parties for the restitution of property (§ 438 para.1 No. 1 BGB) as well as to the claims for damages mentioned in § 8 paras. 2 and 7; in respect of this statutory limitation provisions apply.
(2) Unless otherwise stipulated in the following clauses, the statutory provisions shall apply for the rights of the Buyer in the event of material and title defects (including incorrect or incomplete delivery and inappropriate assembly or defective assembly instructions).
(3) The Seller does not accept any liability for public statements by suppliers or other third parties (e.g. advertising campaigns).
(4) Any claims for defects by the Buyer presuppose that the statutory obligations to inspect and provide notice of defects (§§ 377, 381 HGB [German Commercial Code]) have been fulfilled. Should a defect become evident during or after the inspection, the Seller must be immediately informed thereof in writing. This notification shall be considered immediate if it is provided within two weeks, whereby the date on which it is sent shall be decisive for meeting this deadline. The notification must be effected in writing. Irrespective of these obligations to inspect and provide notice of defects, the Buyer must declare any obvious defects (including incorrect or incomplete delivery) within a period of two weeks from delivery, whereby the date on which it is sent shall also be decisive for meeting this deadline. The notification must be effected in writing. If the Buyer fails to provide the above-mentioned notification of defects, the liability of the Seller for the non-indicated defect is excluded.
(5) In the event that the delivered Goods are defective, the Seller may initially opt whether to provide subsequent performance by removing the defect (re working) or by delivering a defect-free item (replacement delivery). The Seller's right to refuse the type of subsequent performance as laid down in the statutory provisions shall remain unaffected.
(6) The Seller is entitled to make provision of the owed subsequent performance contingent on whether the Buyer has paid the purchase price due. The Buyer shall however be entitled to withhold an appropriate portion of the purchase price in proportion to the defect.
(7)The warranty does not apply if the Buyer changes the delivery item without the consent of the Seller or has it modified by third parties, thus making the elimination of the defect impossible or unreasonably difficult. In any case, the Buyer has to bear the additional costs incurred by the change to remedy the defect.
(8) In urgent cases, e.g. putting at risk the security of the company or to protect against disproportionate damages, the Buyer has the right to remove the defect itself and demand compensation from the Seller based on the objectively necessary expenses. The Seller must be immediately informed of such self-action, if possible in advance. The right to self-action shall not exist if the Seller would have been entitled to refuse subsequent performance according to the statutory provisions.
(9) If the subsequent performance is unsuccessful, or a time period to be set by the Buyer for the subsequent performance has passed without success or is dispensable according to the statutory provisions, then the Buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there shall be no right to withdraw.
(10) In case of defects of components of other manufacturers, which the Seller cannot eliminate for licensing or factual reasons, the Seller will assert its warranty claims against the manufacturers and suppliers for the account of the Buyer or assign these to the Buyer. Warranty claims against the Seller shall exist in the case of such defects in accordance with the other conditions and these T&C only if the judicial enforcement of the above claims against the manufacturer and supplier was unsuccessful or, for example, due to insolvency, is futile. During the period of the dispute, the limitation period of the respective warranty claims of the Buyer against the Seller shall be suspended.
(11) Any claims by the Buyer to compensation and/or replacement of futile expenses shall also exist only in accordance with the measures in § 8, and are otherwise excluded.
(12) A delivery of used Goods which is agreed with the Buyer in individual cases shall take place to the exclusion of any warranty for material defects.
§ 7 Property rights
(1) In the event that the delivery object violates a commercial property right or copyright of a third party, the Seller will modify or exchange the delivery item at its own discretion and expense so that the delivery item no longer violates third party rights, but still continues to perform the contractually agreed functions, or provide the Buyer with the right of use by concluding a licence agreement. If the Seller does not succeed in this despite a reasonable deadline set by the Buyer, it is entitled to withdraw from the contract or to reduce the purchase price. Any compensation claims of the Buyer are subject to the restrictions of § 8 of these T&C.
(2) In case of defects of products of other manufacturers or pre-suppliers that are delivered by the Seller, the Seller shall, at its discretion, assert its claims against the manufacturers and/or suppliers for the account of the Buyer or assign these to the Buyer. Claims against the Seller shall exist in such cases in accordance with this § 7 only if the judicial enforcement of the above claims against the manufacturers and/or suppliers was unsuccessful or, for example, due to insolvency, is futile. During the period of the dispute, the limitation period of the respective claims of the Buyer against the Seller shall be suspended.
§ 8 Other liability
(1) Unless otherwise stipulated in these T&C, including in the following provisions, the Seller shall be liable in cases of violation of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) The Seller shall be liable for damage - regardless of its legal basis - in the event of intent and gross negligence. In the case of simple negligence, the Seller shall be liable only
a) for damage arising from injury to life, limb or health,
b) for damage from the culpable breach of an essential contractual obligation. Essential contractual obligations are those obligations to provide timely, fault-free delivery and installation, as well as consulting, protection and duty of care obligations, which are designed to enable the Buyer to use the delivery item in accordance with the contract or which aim to protect the life or limb of staff of the Buyer or third parties or the property of the Buyer from significant damage.
(3) Insofar as the Seller is fundamentally liable for damages in accordance with § 8 (2), this liability shall be limited to damages which the Seller foresaw as a possible consequence of a breach of contract upon conclusion of the contract or should have foreseen through the application of due diligence in consideration of the circumstances, which were known to it or which it should have recognised. Indirect damage and consequential damage, which are the result of defects in the delivery item, are also only compensable insofar as such damage is typically to be expected in the case of the intended use of the delivery item.
(4) The above disclaimers and limitations of liability also apply to the same extent in relation to the management 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 part of the contractually agreed scope of services due, this is done free of charge and to the exclusion of any liability.
(6) Limitations of liability arising from this § 8 shall not apply if the Seller fraudulently conceals a defect or has assumed a guarantee for the quality of the Goods. The same shall apply for claims of the Buyer under the Produkthaftungsgesetz (German Product Liability Act).
(7) On the grounds of a violation of duty that does not arise from a defect, the Buyer may only rescind or terminate the contract if the Seller is responsible for the breach of duty.
§ 9 Retention of ownership
(1) Until the complete payment of all current and future receivables of the Seller arising from the sales contract and the ongoing business relationship (assured receivables) has been made, the Seller shall retain ownership of the sold Goods.
(2) Until complete payment of the assured receivables has been made, the Goods subject to retention of ownership may not be pledged to third parties or assigned as surety. The Buyer must immediately inform the Seller in writing if and to the extent to which third parties seize the Goods belonging to the Seller.
(3) In the event that the Buyer contravenes the contract, in particular by failing to pay the due purchase price, the Seller shall be entitled to withdraw from the contract in accordance with statutory provisions and to reclaim the Goods on the grounds of ownership retention and/or withdrawal from the contract. The request for return of the Goods does not simultaneously include the declaration of withdrawal; the Seller is entitled rather to demand only the Goods back and to reserve the right of withdrawal. Should the Buyer fail to pay the due purchase price, the Seller may only assert these rights if it has previously set an appropriate time period for the Buyer to complete the payment, without success, or if such a period is dispensable according to the statutory provisions.
(4) The Buyer is authorised to use the Goods subject to retention of ownership (Reserved Goods) in the ordinary course of business and to resell them. In such cases, the following provisions shall also apply by way of supplementation:
(a) If the delivery item has been further processed or remodelled, the retention of title shall extend to the newly manufactured item, excluding § 950 BGB. If the further processing or remodelling also takes place with parts to which the Seller of the Reserved Goods has no ownership, the latter shall acquire corresponding partial ownership in proportion to the invoice value of the processed Goods. The same shall apply in the case of mixing or combining the delivery item with Goods of others.
(b) The Buyer hereby already assigns as surety the receivables against third parties arising from the resale of the Goods or of the product in full and/or in the amount of any proportion of joint ownership, in accordance with the above clause. The Seller hereby accepts this assignment. The obligations of the Buyer specified in para. 2 shall also apply in regard to the assigned receivables.
(c) The Buyer shall also be authorised along with the Seller to redeem these receivables. However, the Seller undertakes not to collect the debt for as long as the Buyer meets its payment obligations to the Seller, does not enter into default of payment, and there is, in particular, no application for insolvency proceedings or any other deficiency in the Buyer's performance capacity. However, if this is the case, the Seller may request that the Buyer disclose the claims assigned and the debtors in question, provide all information required for collection, surrender the relevant documents, and notify the debtors (third parties) of such assignment of claims.
(d) If the realisable value of the existing collateral exceeds the claims of the Seller by more than 10%, the Seller shall be obliged, if requested by the Buyer, to release collateral of its choice to this extent.
§ 10 Data protection & advertising block, credit check
(1) It should be noted that the data of the Buyer is stored separately as inventory and as settlement data within the framework of the valid data protection regulations.
(2) The Buyer is aware that when placing an order it has the option to declare its consent to advertising mail or to reject this. In addition, there is always the option for the Buyer to refuse this consent at any time by phone call, letter, fax or e-mail. In the case of refusal, the Buyer's data will be blocked for advertising material and it will no longer receive advertising.
(3) By placing an order, the Buyer agrees to the Seller using its data for a credit check (e.g. Schufa).
§ 11 Final provisions(1) The place of jurisdiction for all disputes arising from the business relationship between the Seller and the Buyer is the Seller's registered office. Mandatory legal provisions on exclusive jurisdiction are not affected by this provision.
(2) The relationship between the Seller and the Buyer shall be exclusively subject to the law of the Federal Republic of Germany. The Treaty of the United Nations on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply.
(3) Insofar as the contract or these General Terms and Conditions of Delivery contain omissions, then to fill these, those legally valid provisions are deemed to be agreed which the parties would have agreed according to the commercial objectives of the contract and the purpose of these General Terms and Conditions of Delivery, had they known of the omission.
Last updated August 2018