Terms and Conditions


General Terms and Conditions for Sales Transactions of Dr. Mach GmbH &Co.KG

 

§ 1 General – Scope of application

 

(1) All deliveries, services and offers shall be made exclusively on the basis of these General Terms and Conditions for Sales Transactions. These shall be part of all contracts that we conclude with our contractual partners (hereinafter also referred to as “Customers”) for the deliveries or services offered by us. These shall also apply to all future deliveries, services or offers to the Customer, even if these are not separately agreed upon once again.

 

(2) Our General Terms and Conditions for Sales Transactions shall apply exclusively; any contradictory or differing terms and conditions of our Customer or third parties shall not be applicable, even if we do not object to the applicability thereof in an individual case. Even if we make reference to a Customer’s letter that contains or makes reference to such terms and conditions of the Customer, this shall not constitute an agreement to the applicability of such terms and conditions.

 

§ 2 Offer and conclusion of contract

 

(1) Our offers shall always be subject to confirmation and non-binding, unless these are expressly labelled as binding or state a certain time period for acceptance. We may accept orders of Customers within a period of fourteen days.

 

(2) Only the written purchase contract shall be authoritative for the legal relationship between us and the Customer, inclusive of these General Terms and Conditions for Sales Transactions. Such contract shall reflect all agreements between the parties to the contract in their entirety regarding the subject matter. Any oral commitments on our part prior to conclusion of the contract shall not be legally binding and any oral agreements between the parties shall be superseded by the written contract, unless it is expressly stated therein that these shall continue to apply in a binding manner.

 

(3) Any amendments to and alterations of the agreements made, including these General Terms and Conditions for Sales Transactions, shall be made in writing to become effective. With the exception of our managing directors (“Geschäftsführer”) and authorised signatories (“Prokuristen”), our employees may not enter into any differing oral agreements. Transmission by fax shall suffice to meet the written form requirement; in all other respects, communication via telecommunication means, including but not limited to e-mail, shall not suffice.

 

(4) Any information provided by us regarding the subject matter of the delivery or service (e.g. weight, measurement, utility values, capacities, tolerance and technical data) as well as our illustrations thereof (e.g. drawings and figures) shall only be approximations, unless the suitability for the intended use demands a more detailed conformity. These shall not constitute guaranteed properties, but descriptions or identifications of the deliveries or services. Any customary deviations and deviations due to legal provisions or constituting technical improvements as well as the substitution of components with equivalent components shall be admissible insofar as such does not negatively affect the suitability for the contractually intended purpose.

 

(5) We shall reserve the title to or copyright in all offers and cost estimates issued by us as well as any drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids provided to the Customer. The Customer may not make such objects in themselves or their content available or disclose such to any third parties without our express consent or use or copy these itself or via third parties. The Customer shall return such objects at our request and destroy any copies made thereof, if the Customer no longer requires these in its ordinary course of business or if negotiations do not result in the conclusion of a contract.

 

(6) Unless expressly otherwise stipulated in the order confirmation, we shall only be obligated to supply the goods. Installation and assembly services shall only be the subject matter of the contract if expressly and separately agreed.

 

§ 3 Prices – Terms of payment

 

(1) Our prices shall apply to the deliveries and services listed in the order confirmations. Any additional or special services shall be invoiced separately. These prices shall be in EURO and “ex works“ exclusive of packaging; the latter shall be invoiced separately. Statutorily applicable value-added tax is not included in our prices; it shall be itemised separately as applicable at the invoice date. Any customs duties as well as fees and other public charges shall not be included in our prices.

 

(2) Cash discounts need to be agreed upon separately in writing.

 

(3) Unless otherwise provided in the order confirmation, the net purchase price (without any deductions) shall be payable within 30 days from the invoice date. The statutory provisions regarding the consequences of a default of payment shall apply.

 

(4) The Customer shall only have a right to set-off, if its counter-claims have been determined based on a final and unappealable judgement, are undisputed or recognised by us. Moreover, the Customer may exercise its right of retention insofar as his counter-claim is based on the same contract.

 

(5) We shall be entitled to carry out or render any outstanding deliveries or services only against advance payment or provision of security, if such has been agreed or if we gain knowledge of any circumstances after conclusion of the contract, which are suitable to substantially decrease the Customer’s creditworthiness and which jeopardise payment of the outstanding accounts receivable by the Customer based on the respective contract (including any other individual orders subject to the same framework agreement).

 

 

§ 4 If installation and/or assembly of our goods is agreed, the following provisions shall apply:

 

(1) Installation and assembly of our devices shall be carried out at the Customer’s expense. The Customer shall bear the cost of, including without limitation, the work performed in connection with the installation and assembly, any travel expenses as well as expenses inclusive of any hotel costs of our employees as well as any other additional costs such as surcharges for work performed outside the regular working hours and overtime pay. The customary remuneration pursuant to Sec. 632 Para. 2 German Civil Code (BGB) shall be agreed, unless an express written agreement labelled as “Fixed-price agreement“ is concluded.

 

(2) The Customer shall be obligated to meet the requirements for a proper installation and assembly at its own cost, including without limitation, for the provisions of suitable means of transport, for the installation of suitable power and water supply and waste water facilities as well as for the proper recycling of any residual materials or chemicals. The Customer shall be obligated to name a competent contact person on site, who is available on-call on the day of installation and who is authorised to provide reliable information on the condition of the premises required for the installation and assembly as well as the properties and load-bearing capacity of the roof construction in particular. In case of non-compliance with the above obligations, the Customer shall pay damages, including but not limited to the reimbursement of any additional costs.

 

(3) In case that the installation and assembly fails on the agreed date for reasons for which the Customer is responsible, we shall be entitled to set a reasonable time period for subsequent performance and declare that, notwithstanding the continued effectiveness of the purchase agreement regarding the device, the installation and/or assembly agreement will be terminated if the measures to be carried out by the Customer within the framework of its contribution obligations are not carried out within such time period.

 

(4) If installation and assembly are agreed upon, the risk regarding the purchased object shall pass to the Customer pursuant to Sec. 447 Para. 1 BGB, i.e upon the handing over of the object to the shipping person. This also applies if shipment itself is executed by employees of our company. 

 

(5) In case of a return of the device due to the Customer’s default of payment, the Customer shall bear the cost for the return transport of the device in addition to any claims for damages, including but not limited to the cost for disassembly, return transport, cleaning and overhauling of the device.

 

(6) Any repair or maintenance services beyond the rectification of defects as well as the preparation of cost estimates shall be remunerated. The customary remuneration pursuant to Sec. 632 Para. 2 German Civil Code (BGB) shall be agreed, unless an express written agreement labelled as “Fixed-price agreement“ is concluded.

 

(7) Cost estimates shall always be non-binding, unless an express written “Fixed-price agreement“ is concluded. This shall not apply if the cost estimate is exceeded by more than 20%.

 

(8) Unless expressly otherwise provided for in this § 4, all remaining provisions of these General Terms and Conditions for Sales Transactions shall also apply to installation and assembly services.

 

§ 5 Reservation of title

 

(1) We reserve title in the purchased goods until receipt of all payments out of the contract for delivery. In case of a violation of the contract by the Customer, in particular in case of default of payment, we shall be entitled to repossess the purchased goods. The repossession of the purchased goods by us shall constitute a rescission of the contract. After repossession of the purchased goods we may dispose of such, the proceeds from such disposal shall be offset against the accounts payable of the Customer – minus reasonable disposal costs.

 

(2) The Customer shall handle the purchased goods carefully; the Customer shall be obligated to insure the goods at their original value sufficiently against damage caused by fire, water and theft, at the purchaser's own cost. Insofar as any maintenance and inspection work is required, the Customer is to have such work carried out at its own cost in due time.

 

(3) In case of attachment or any other third party intervention, the Customer shall notify us immediately in writing so that we can file action pursuant to Sec. 771 German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse the court fees and out-of-court costs of an action pursuant to Sec. 771 ZPO, the Customer shall be liable to reimburse this loss to us

 

(4) The Customer shall be entitled to sell the purchased goods in the ordinary course of business; the Customer shall assign to us all accounts receivable in the final invoice amount (inclusive of VAT), which the Customer accrues out of sale to its customers or third parties, already at this stage, irrespective of whether the purchased goods are sold without or after processing of the goods. The Customer shall continue to be authorised to collect these accounts receivable even after the assignment. Our right to collect such accounts receivable ourselves shall remain unaffected thereof. However, we commit not to collect such account receivable for as long as the Customer meets its payment obligations out of its own proceeds, is not in default of payment and, including without limitation, no request for the opening of composition or insolvency proceedings is filed and payment has not been discontinued. If such is the case, we may request that the Customer informs us about any assigned accounts receivable and the respective debtors, provides us with all information necessary for collection, hands over the related documentation and notifies the debtor (third party) about the assignment.

 

(5) The processing or conversion of the purchased goods by the Customer shall be carried out on our behalf. If the purchased goods are processed together with other objects not owned by us, we shall become joint owners of the new object on a pro rata basis in relation to the value of the purchased goods (final invoice amount inclusive of VAT) to the value of the other processed objects at the time of processing. The same shall apply to the objects created by means of processing as applies to the purchased goods delivered subject to reservation of title.

 

(6) If the purchased goods are inseparably combined with other objects not owned by us, we shall become joint owners of the new object on a pro rata basis in relation to the value of the purchased goods (final invoice amount inclusive of VAT) to the value of the other combined objects at the time of processing. If the objects are combined in such a way that the goods belonging to the Customer are to be regarded as the main component, it shall be agreed that the Customer shall transfer co-ownership to us on a pro rata basis. The Customer shall store the thus created owned or co-owned goods on our behalf.

 

(7) The Customer shall also assign any receivables for securing our receivables against the Customer, which arise against a third party out of the combination of the purchased goods with real estate property.

 

(8) We shall be obligated to release any security due to us upon the Customer’s request insofar as the realisable value of our security exceeds the receivables to be secured by more than 10%; we shall select the security to be released.

 

§ 6 Terms of delivery

 

(1) Delivery shall be ex works.

 

(2) Any periods and dates for delivery and services indicated by us shall only be approximations, unless a fixed period or fixed date of delivery is expressly agreed. If dispatch is agreed, any delivery periods or dates shall refer to the time of handing over of the goods to the shipping company, freight carrier or any other party hired to effect transport.

 

(3) The time of delivery indicated by us shall be subject to clarification of all technical issues.

 

(4) We may – without prejudice to our rights arising out of the Customer’s default – request an extension of the delivery period or period for rendering services or a delay of delivery and performance dates by the period, for the duration of which the Customer did not meet its contractual obligations.

 

(5) We shall not be liable for impossibility of delivery or delays in delivery insofar as these are due to force majeure or other events that could not be foreseen at the time of conclusion of the contract (e.g. any kind of interruption of operation, material and energy procurement difficulties, transport delays, strikes, lawful lock-out, lack of manpower, energy or materials, difficulties in obtaining permits from public authorities, measures imposed by public authorities or no, incorrect or late supply by our suppliers) and for which we are not responsible. Insofar as such events make delivery or performance considerably more difficult or impossible and if the impediment is not merely temporary, we may rescind the contract. In case of temporary impediments our delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the duration of the impediment plus a reasonable additional period for resuming operation. Insofar as acceptance of the delivery or performance of service is unreasonable for the Customer due to the delay, the Customer may rescind the contract by means of immediate written declaration vis-à-vis the seller.

 

(6) In case that our delivery or performance is delayed or if it is impossible for us to deliver or render a service for whatever reason, our liability for damages shall be limited pursuant to § 9 of these General Terms and Conditions for Sales Transactions.

 

§ 7 Place of performance, shipping, packaging, passing of risk, acceptance

 

(1) The place of performance for all obligations arising out of the contract shall be Ebersberg, unless otherwise provided. In case of our obligation to install and/or assemble the goods, the place of performance shall be the place at which the installation and/or assembly will take place.

 

(2) We shall decide on the mode of shipment and packaging freely after a due assessment of the circumstances. 

 

(3) The risk shall pass to the Customer at the latest upon handing over of the goods to be shipped (whereas the start of the loading process shall be decisive) to the shipping company, freight carrier or any other party hired to effect transport. This shall also apply if partial deliveries are made or if we render other additional services (e.g. shipping or installation and/or assembly). If shipment or handing over of the goods is delayed due to a circumstance caused by the Customer, the risk shall pass to the Customer on the day on which the goods are ready for delivery and on which we notified the Customer thereof.

 

(4) Any storage costs incurred after the passing of risk shall be borne by the Customer. In case of storage by us, the storage cost shall amount to 0.25% of the invoice amount of the stored goods to be delivered per whole week. The right to assert and provide proof of additional or lower storage costs shall be reserved.

 

(5) The shipment shall be insured by us, at the express request of the Customer and at the Customer’s cost, against theft, breakage, fire and water damage or any other insurable risks.

 

(6) Insofar as the goods need to be accepted, the purchased goods shall be deemed accepted 

-as soon as shipment and, in case we render installation and/or assembly services, installation and/or assembly is completed,

-as soon as we have notified the Customer thereof with reference to acceptance pursuant to this § 7 para. (6) and have requested acceptance,

-as soon as ten working days have passed since delivery or installation or assembly or as soon as the Customer started using the purchased goods (e.g. started operation of the delivered lamp) and, in such case, as soon as five working days have passed since delivery or installation or assembly, and

-if the Customer does not accept the purchased goods within such period of time for any reason other than a defect of which we are notified and which renders the use of the purchased goods impossible or considerably affects such use.

 

§ 8 Warranty, material defects

 

(1) The warranty period shall be two years from delivery or, if acceptance is required, from acceptance.

 

(2) The delivered goods shall be carefully inspected immediately after delivery to the Customer or to a third party designated by the Customer. They shall be deemed approved if we do not receive a written notification of defect with regard to obvious defects or other defects that could be detected during an immediate and careful inspection within a period of seven working days from delivery of the delivered goods or otherwise within seven working days from detection of the defect or any earlier point in time at which the defect is identifiable to the Customer during normal use of the delivered goods without any closer inspection. The goods objected to shall be returned to us freight paid at our request. In case of a justified notification of defect, we shall reimburse the cost of the cheapest mode of shipment; this shall not apply if such cost is increased, as the delivered goods are located in place other than the place of intended use.

 

(3) In case of material defects of the delivered goods, we shall initially be obligated and entitled to subsequent improvement or substitute delivery at our choice within a reasonable period. In case of a failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the subsequent improvement or substitute delivery, the Customer may rescind the contract or reduce the purchase price reasonably.

 

(4) If a defect is due to any fault on our part, the Customer may claim damages if the requirements of § 10 hereof are met.

 

(5) In case of defects of components of other manufacturers, which we cannot rectify due to licence or factual reasons, we shall assert our warranty claims against the manufacturer and suppliers for the Customer’s account or assign these to the Customer. Any warranty claims against us for such defects shall only exist subject to other requirements and pursuant to these General Terms and Conditions for Sales Transactions if an assertion of such claims against the manufacturer and suppliers in court was unsuccessful or unpromising, e.g. due to insolvency. The statute of limitations regarding such warranty claims against us shall be suspended for the duration of such litigation.

 

(6) Any warranty shall lapse if the Customer modifies the supplied goods or has them modified without our consent and if such modification renders a rectification of defects impossible or unreasonably difficult. In any case, the Customer shall bear the additional cost of rectification of defects caused by such modification.

 

§ 9 Intellectual property

 

(1) Pursuant to this § 9 we assume responsibility that the delivered goods are not subject to any third party industrial property rights or copyrights. Each contractual partner shall notify the respective other party immediately in writing if any claims for infringement of such rights are raised against them.

 

(2) In case that the delivered goods infringe a third party industrial property right or copyright, we shall modify or replace the delivered goods at our choice and at our cost in such a manner that they no longer infringe any third party rights and that the delivered goods function as contractually agreed or we shall obtain a right of use for the Customer by means of conclusion of a licence agreement. In case that we fail to do so within a reasonable period of time, the Customer may rescind the contract or reduce the purchase price adequately. Any claims for damages of the Customer shall be subject to the limitations pursuant to § 10 of these General Terms and Conditions for Sales Transactions.

 

(3) In case of any violation of rights based on the goods of other manufacturers delivered by us, we shall assert our claims against the manufacturers and their suppliers at our choice and for the Customer’s account or assign these claims to the Customer. Any claims against us shall only exist pursuant to this § 9 if an assertion of such claims against the manufacturer and suppliers in court was unsuccessful or unpromising, e.g. due to insolvency.

 

§ 10 Liability for damages for fault, liability for breach of warranty

 

(1) Our liability for damages, irrespective of the legal grounds, including but not limited to impossibility, default, faulty or wrong delivery, breach of contract, violation of duties during contract negotiations and tort, shall be limited pursuant to this § 10 to the extent that fault is a prerequisite in this context.

 

(2) We shall not be liable in case of simple negligence of our organs, legal representatives, employees and other agents insofar as it is not a case of breach of essential contractual obligations. Essential contractual obligations shall include on-time delivery and installation and/or assembly of the delivered goods which are free from any essential defects as well as duties to consult, protect and exercise proper care, which are to allow the Customer to use the delivered goods for the contractually intended purpose or which are aimed at the protection of body or life of the Customer’s employees or protection of the Customer’s property from considerable damage.

 

(3) Insofar as we are liable for damages in principle pursuant to this § 10 para. (2), such liability shall be limited to damage that we have foreseen as a possible consequence of a breach of contract at the time of conclusion of the contract or that we should have foreseen when exercising ordinary care. Any indirect and consequential damage that is due to defects of the delivered goods shall only be compensated for insofar as such damage typically occurred when using the delivered goods for the intended purpose.

 

(4) In case of liability for simple negligence our liability to compensate for property damage and any further pecuniary damage resulting therefrom shall be limited as follows according to the current insurance cover of our manufacturer’s and product liability insurance: 

 

•EUR 5,000,000 for property damage (“Sachschäden”);

•EUR 100,000 for pecuniary damage (“Vermögensschäden”).

 

This limitation of liability shall also apply in case of a breach of essential contractual obligations.

 

(5) In case of delays in delivery we shall only be liable for any damage resulting from the delay in the maximum amount of 5% of the value of the delivery.

 

(6) The afore exclusions and limitations of liability shall apply to the same extent to the benefit of our organs, legal representatives, employees and other agents.

 

(7) Insofar as we provide technical information or render consultancy services and such information or consultancy services are not part of the contractually agreed scope of services owed by us, such information and services shall be provided free of charge and to the exclusion of any liability.

 

(8) The limitations of § 10 hereof shall not apply to our liability for intentional conduct, guaranteed properties, injury to life, body or health or liability under product liability laws.

 

(9) Any liability for a guarantee pursuant to Sec. 443 BGB shall only exist, if such guarantee was given by us in writing and by at least one person named in § 2 para. (3) subpara. 2, i.e. at least one managing director (“Geschäftsführer”) or authorised signatory (“Prokurist”).

 

§ 11 Return of goods

 

(1) Any goods objected to may only be returned upon our express consent. In case of unsolicited return or return without properly completed return delivery form or without return delivery number, we shall be entitled to refuse acceptance or return the goods at the sender’s cost.

 

(2) In case of a return of goods, for which we are not at fault, a processing fee of 20% of the net value of the goods shall apply, at least however EUR 50.00 to cover any internally incurred expenses and any shipping costs.

 

(3) In case of repair work that is requested after expiry of the time period pursuant to § 8 para. (1) and that is not carried out based on a separately agreed warranty, the Customer shall bear the cost of shipping, freight and the repair work.

 

§ 12 Final provisions

 

(1) Any supplements hereto shall be made in writing.

 

(2) If a provision of these Terms and Conditions is invalid, this shall not affect the validity of the remaining provisions hereof. Any invalid provision shall be replaced by a provision that is to have effect as from the conclusion hereof, that is in line with the purpose and intentions of all parties and that can be performed in terms of its content.

 

(3) Place of jurisdiction shall be Munich (Regional Court Munich I (“Landgericht München I”). 

 

(4) Place of performance shall be Ebersberg, Upper Bavaria, Germany.

 

(5) These Terms and Conditions shall be governed by the laws of the Federal Republic of Germany; the applicability of the UN Sales Convention shall be excluded.

 

(6) The text of these General Terms and Conditions for Sales Transactions shall be construed in accordance with the laws of Germany. The text is provided in both the German and the English language. In the event of any inconsistency between the German and the English version the German version shall prevail.

 

Please note:

 

The Customer shall take notice of the fact that we store data based on this contractual relationship pursuant to Sec. 28 Federal Data Protection Act (BDSG) for data processing purposes and that we reserve the right to transmit such data, insofar as necessary for performance of the contract, to third parties (e.g. insurance companies).