General Terms and Conditions of DMV GmbH & Co KG
I. Offers and Formation of Contract
All offers and orders are governed exclusively by the following terms and conditions. These General Terms and Conditions also apply to all future business relationships in commercial dealings without requiring express incorporation again. Our customers’ terms and conditions are not binding on us, even if we do not expressly object to them.
Our offers are subject to change and are non-binding. A contract is concluded only upon our order confirmation, unless a written contract has already been concluded by other means or the order has been fulfilled without confirmation.
For members of purchasing associations with which we maintain purchasing and del credere agreements, the separate agreements and terms agreed with the respective association apply.
II. Scope of Performance Obligations
1. Our written order confirmation determines the scope of our performance obligations.
2. Samples on which an order is based are non-binding unless expressly designated as binding.
3. We are entitled to make partial deliveries. Invoices issued for such deliveries fall due independently of the complete delivery. The purchaser retains the right to demonstrate that partial deliveries cannot reasonably be used by them.
III. Prices and Payment
1. Prices are quoted in euros, ex point of dispatch, plus VAT at the applicable rate. If the purchase prices or labour costs on which our calculation is based increase between order confirmation and delivery, the price applicable under our price list on the date of delivery will be charged. Fixed prices or prices differing from the applicable price lists require an express written agreement.
2. Unless otherwise agreed, our invoices are payable immediately, net and without deductions. Allowing for postal delivery, processing and bank transfer times, the invoiced amount must be credited to our account within five working days of the invoice date. Any cash discount requires an express prior agreement.
3. In the event of late payment, interest will be charged in accordance with Section 288 of the German Civil Code (BGB) from the commencement of default, but no later than 30 days after the invoice date, at a rate of eight percentage points above the base interest rate. We reserve the right to claim compensation for any greater loss resulting from the default.
4. If payment terms are not complied with, or if circumstances become known to us after the conclusion of the contract that call the purchaser’s creditworthiness into question according to banking standards, all claims will become immediately due following a payment reminder, irrespective of the maturity of any bills of exchange accepted.
In such cases, we are entitled to make outstanding deliveries and provide outstanding services only against advance payment or security, or, following the expiry of a reasonable additional period, to withdraw from the contract or claim damages for non-performance.
Information provided by a reputable credit reporting agency or bank will be deemed sufficient evidence of the circumstances relevant to creditworthiness.
5. Set-off against counterclaims that are disputed by us and have not been established by a final and binding judgment is not permitted. Any right of retention is excluded.
IV. Delivery Period
1. Deliveries to addresses within Germany are made carriage paid using our own vehicles for long-distance own-account transport or other equally suitable means of transport. For deliveries abroad, the purchaser must reimburse the actual delivery costs upon presentation of supporting evidence.
Delivery periods are always approximate, even where this is not expressly stated. If unforeseen obstacles arise that are beyond our control, or if obstacles arise for which our suppliers are responsible, the delivery period will be extended appropriately. This also applies where such obstacles arise after a delay has already occurred.
2. If we are in default of delivery, the buyer must grant us a reasonable additional period in writing, which must generally be at least three weeks. After this additional period has expired, the buyer may withdraw from the contract to the extent that the goods have not been notified as ready for dispatch by the end of that period.
The buyer is not entitled to reject partial deliveries. We do not assume procurement risk for goods that are not supplied through our own supply arrangements.
Claims for damages of any kind, particularly for non-performance or delayed performance, are excluded unless based on intent or gross negligence.
3. Unless otherwise agreed, call-off orders must be accepted no later than six months after the expiry of the contractual period. After six months have elapsed, we are entitled to invoice the goods or withdraw from the contract.
V. Transfer of Risk and Acceptance of Goods
Risk passes to the customer when the goods are handed over to a forwarding agent, carrier or collecting party, but no later than when they leave our premises. This also applies where the goods are transported using our own means of transport, including our own vehicles for long-distance own-account transport.
If dispatch is delayed due to circumstances for which the buyer is responsible, risk passes to the buyer as soon as the goods are ready for dispatch.
VI. Retention of Title
1. We retain title to the goods until all claims arising or yet to arise from our business relationship with the customer have been paid.
If the customer pays by cheque or we issue a refinancing bill of exchange for this purpose, retention of title ends only when we can no longer be held liable under the bill of exchange. Where a current account arrangement exists, the retained title serves as security for our claim to the outstanding balance.
The purchaser may sell goods owned by us only in the ordinary course of business and only while not in default of payment. Resale and installation are permitted only on the condition that claims arising from the resale or installation are assigned to us up to the amount of our invoice for the relevant item.
At our request, the customer must notify the third-party buyer of the assignment and provide us with the information and documents required to enforce our rights.
If the value of the security held by us exceeds our claims against the customer by more than 20%, we must, at the customer’s request, release security of our choice to the extent of that excess.
2. The customer may neither pledge the delivered goods nor transfer title to them by way of security. We must be notified immediately of any attachment, seizure or other disposition by third parties.
3. If the purchaser acts in breach of contract, particularly by defaulting on payment, we are entitled to repossess the goods subject to retention of title after issuing a reminder. The customer bears the costs of repossession. Our enforcement of retention of title does not constitute withdrawal from the contract.
4. The customer bears the risk for goods delivered by us subject to retention of title. The customer must store the goods carefully and insure them adequately against loss, including theft, fire, water damage, tampering and similar risks.
The customer hereby assigns to us, in the event of damage, a first-ranking portion of the insurance claim equal to the purchase price of the goods supplied by us that remain our property.
This also applies where the insurance does not cover the full amount of the loss, so that in such cases we cannot be limited to a proportionate share of the compensation.
5. Claims under bills of exchange accepted by the customer on account of payment or in lieu of payment are hereby assigned to us. Physical delivery of the bills of exchange is replaced by the buyer holding the accepted bills of exchange on our behalf.
VII. Liability for Defects and Delivery
1. The delivery must be inspected immediately upon arrival at its destination and handled with the care of a prudent businessperson. If this inspection is not carried out, all warranty obligations on our part are excluded.
2. The delivery is deemed free of defects unless we receive written notification of a defect within five working days of the delivery’s arrival at its destination, stating the delivery and invoice numbers. Notification by fax or email satisfies the deadline.
3. Hidden defects that cannot be identified during an immediate inspection may be asserted against us only if we are notified immediately upon their discovery, but no later than seven days after the date of delivery. Our receipt of the notification determines whether the deadline has been met.
4. The material must always be inspected before further processing or onward dispatch. We are not liable for defects or damage reported only after processing has begun.
5. A defect that has been established as such and reported through a valid notice of defects gives the buyer only the following rights:
a) In the event of a defect, the buyer initially has the right to demand remedial performance from the supplier. The supplier may, at its own discretion, choose whether to replace the goods or remedy the defect.
b) If an attempt at remedial performance fails, the supplier is entitled to make a further attempt, again using the method of its own choice. Only if this repeated attempt also fails may the buyer withdraw from the contract or reduce the purchase price by an appropriate amount.
6. Further claims are excluded. This applies in particular to contractual and non-contractual claims for compensation for damage that has not occurred to the delivered goods themselves, unless an assurance of specific characteristics was given in this respect.
7. The warranty period is one year from delivery unless, at the time the contract was concluded, we confirmed in writing that a longer warranty period would apply.
Irrespective of when the buyer becomes aware of the defect, the buyer bears the burden of proving that the defect already existed when risk passed.
VIII. Compliance with Industrial Property Rights; Indemnification
1. The contracting party is responsible for ensuring that the delivery and use of the goods or services do not infringe any third-party industrial property or trademark rights in Germany, in the country where the goods are distributed or in their final country of destination.
The contracting party is also responsible for ensuring that the goods comply with the applicable requirements for lawful sale in the country where they are distributed or placed on the market.
2. If a third party brings a claim against DMV in connection with a breach of paragraph 1, the contracting party must indemnify DMV against that claim upon its first written request.
The indemnification obligation covers all expenses incurred by DMV as a result of, or in connection with, the third party’s claim.
DMV may not enter into any related agreement with the third party, particularly a settlement, without the contracting party’s consent.
3. DMV’s right to indemnification under Sections VIII.1 and VIII.2 becomes time-barred ten years after delivery or handover of the goods to the contracting party or acceptance of the services by DMV.
IX. General Provisions
1. If any provision of these terms and conditions or any additional agreement is or becomes invalid, the validity of the remainder of the contract remains unaffected.
The contracting parties must replace the invalid provision with a provision that comes as close as possible to achieving the same economic outcome.
2. The company issuing these terms and conditions gives notice that it processes and stores data relating to the business relationship electronically to the extent permitted by law.
3. This contract and all legal relationships between the parties are governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
If the contracting party is a merchant within the meaning of German commercial law, a legal entity under public law or a special fund under public law, the registered place of business of the company issuing these terms and conditions is the place of performance and the exclusive place of jurisdiction for all disputes arising from this contract.
Last updated: 1 May 2013