Responsibility
DST Diagnostische Systeme & Technologien GmbH is responisible for these web pages according to § 6 Abs. 2 MDStV
General Terms & Conditions of Sale of
DST Diagnostische Systeme und Technologien GmbH, Schwerin
§ 1 General, Scope
(1) These Terms & Conditions (T&C) are the legal basis for all transactions with our customers. The T&C apply only when the Buyer is a merchant (§ 14 BGB – German Civil Code), a corporate body under public law or a special fund under public law.
(2) The T&C apply especially für contracts of sale and/or delivery of goods regardless whether we manufacture the goods ourselves or source them with third parties (§§ 433, 651 BGB – German Civil Code). The T&C apply in their current version as framework agreement for future sales and/or deliveries of chattels and goods with the same Buyer, without being pointed out specifically in every single case.
(3) Our Terms & Conditions apply exclusively. Terms of the Buyer opposing or deviant from this Terms & Conditions shall only become part of the contract if we explicitely approve them in advance. This prerequisite of our approval shall be required in any case, for instance even if we to the best of the knowledge of the Buyer’s T&C have already delivered without restraints.
(4) Agreements with the Buyer on an individual basis, incl. any addendum, side notes or changes, have precedence over any T&C. These individual agreements shall be stated in written form with our written confirmation.
(5) Material notices and declarations, which are to be submitted to us after conclusion of the contract (e.g., default letter, cancellation notice) shall be made in written form only (§ 126 BGB – German Civil Code).
(6) References to existing laws have only illustrative meaning. Even with no reference being cited the current stautory provisions are the legal basis of our contracts unless specified herein or explicitely excluded in this T&C.
(7) All references to Incoterms are linked to the official revision at the time of conclusion of the contract.
§ 2 Conclusion of the contract
(1) Our offers are subject to change and not legally binding. This is also the case, when we have already submitted catalogues, technical documentations (e.g., drawings, calculations, references to DIN rules) other product documentations or papers – in physical or electronic form -, which can all be subject to copyright and ownership rights, to the Buyer.
(2) The purchase order by the Buyer is a binding contract offer. Unless otherwise specified differently in the purchase order, we are authorized to accept this contract offer within 2 weeks after reception.
(3) The acceptance can be expressed either explicitely (e.g. by order confirmation through email, letter or facsimile) or implicitely by delivery of the goods.
§ 3 Terms of delivery and default of delivery
(1) The time of delivery is individually agreed upon or will be disclosed by us upon acceptance of the purchase order. If the afore mentioned is not the case, we are entitled to determine the time of delivery on our own sole equitable discretion.
(2) In case we are not able to keep binding delivery dates due to reasons we are not responsible for (impossibility of performance), we shall inform the Buyer without delay and determine a new delivery period which appears reasonable according to the circumstances. If the performance continues to be impossible, also within the newly determined delivery period, we shall be entitled to cancel the agreement completely or partly; any consideration that may already have been provided by the Buyer will be reimbursed by us without delay. Impossibility of performance shall be in particular non-performance of our own suppliers, provided that we have entered into a congruent transaction in good time with them. Our right of withdrawal and cancellation as stipulated by law as well as the statutory provisions regarding the performance of the contract in case of an exclusion of the obligation to perform (impossibility, unacceptability of service and/or subsequent performance) shall remain unaffected. The Buyer's right of withdrawal and cancellation as stipulated by § 8 of this T&C shall not be affected.
(3) Our default of delivery is defined by the statutory provisions. A default notice by the Buyer is required in any event.
(4) We are entitled to execute the order in partial delivery.
§ 4 Delivery, passing of risk, acceptance, default of acceptance
(1) The delivery takes place ex warehouse, which is also the place of fulfillment. Upon request of the Buyer the goods will be shipped to another place of destination (sale to a destination). Unless agreed differently, the mode of shipment (including freight carrier, shipment type, packaging) can be selected by us exclusively.
(2) The risk of accidental destruction or damage to the goods shall pass to the Buyer at the time the goods are handed over to the Buyer the latest or, in the case of a sale to destination, upon acceptance of the goods by the forwarding agent, freight carrier or any other person or company commissioned with the transportation of the goods. If an acceptance procedure has been agreed, it will be decisive for the passing of the risk. Otherwise any acceptance shall be covered by the legal restrictions of the contract for work accordingly. The handing over respectively the acceptance shall be treated equally in case of any default of acceptance of the Buyer.
(3) If the Buyer shall be in default of acceptance, shall omit his required collaboration or shall the delivery be delayed by any other reason caused by the Buyer, we are eligible to request compensation from the Buyer for any damages occured including any additional extra expenditures (e.g., warehouse expenses). We will charge a lump sum compensation of 0.5% of the goods value, but at least EUR 10 per calendar day, limited to a maximum of EUR 500 per calendar day, starting with the delivery date or the time of notice of the goods being prepared for shipment. The proof of a higher damage and our statutory rights (e.g., reimbursement of extra expenditures, adequate compensation, cancellation of the contract) shall not be affected. The lump-sum compensation will be offset with any further monetary claims. The Buyer is at liberty to prove to us that the damages incurred by us do not exist or are significantly lower than the lump-sum demanded by us.
§ 5 Prices and terms of payment
(1) Unless specified individually, our standard prices at the time of conclusion of the contract are agreed upon. These prices are ex works and do not include VAT. Cash discounts are excluded.
(2) For a sale to destination according to § 4 (1) the Buyer shall bear the freight costs ex warehouse and, if ordered by the Buyer, any transport insurance. Any customs, fees, taxes and other public dues shall be paid by the Buyer. We do not accept back any transport packages and other packaging pursuant to the German packaging regulation, they will become property of the Buyer; this does not include EU palettes.
(3) The purchase price is due 10 days after invoice date and delivery / receipt of goods. For orders exceeding EUR 2000 value we are entitled to demand a downpayment of 30% of the purchase price. The downpayment is due 10 days after invoicing. In single cases and for new Buyers we have the right to demand the prepayment of the order in full.
(4) Upon exparation of the above mentioned terms the Buyer is in default of payment. For the purchase amount there will be additional interests be charged at the respectivily applicable statutory default interest rate during the default period. We reserve the right to charge a higher payment default damage. With regard to merchants our entitlement on commercial maturity interest (§ 353 HGB – German Commercial Code) will be unaffected.
(5) The Buyer shall have rights to set-off and rights to retention only to an extent that his claims are undisputed or legally established. § 7 subparagraph 6 shall remain unaffected for defects with the delivery.
(6) Shall after conclusion of the contract the performance of the Buyer deteriorate (e.g., filing for bankruptcy), we reserve the right to refuse our performance and – eventually after fixing of a deadline – to withdraw from the contract (§ 321 BGB – German Civil Code). For contracts about customized goods we can declare the rescission from the contract immediately. The statutory provisions on the negligence of fixing a deadline shall remain unaffected.
§ 6 Retention of title
(1) We reserve title to the goods until all our present and future claims from the business relationship (secured claims) have been paid in full.
(2) The goods which are subject to retention of title may not be pledged to third parties or placed in escrow before payment in full of the secured receivables. The Buyer must inform us in writing immediately if and to what extent the goods belonging to us are seized by third parties.
(3) When the behaviour of the Buyer is contrary to contract, particularly at delays of payment, the seller is authorized to take back the goods according to the legal restrictions and/or require return of the goods on the basis of the retention clause. The claim for returning of the goods does not automatically mean cancellation of the agreement; we shall rather be entitled to claim return of the goods and to reserve the right of cancellation. If the Buyer does not pay the purchase price when due, we may only enforce these rights if we have set a reasonable deadline beforehand for the Buyer to pay and he has failed to pay by the deadline or the setting of a deadline is unnecessary according to the statutory provisions.
(4) The Buyer is entitled to dispose freely of the purchased goods subject to retention of title in the ordinary course of business. In this case the following clauses shall apply in addition:
(a) The retention of title shall also apply to the products which are created by way of processing, blending or combination and we shall be considered to be the manufacturer. Should property rights of third parties exist in the case of processing, blending or combining their goods, we shall acquire joint ownership in the proportion of the invoice values of the processed goods. In all other cases the same applies to the ensuing products as applies to the goods delivered subject to retention of title.
(b) The Buyer will assign us the claims as well as all rights from the resale of the reserved goods, namely in a proportionate manner and if the goods have been processed, combined or mixed and we have acquired a co-ownership of them in the amount of our invoice value. We accept the assignment. The obligations of the Buyer, specified in (2), shall also apply in consideration of the assigned claims.
(c) Besides us, the Buyer shall remain entitled to collect the claims. However, we undertake to refrain from collecting the claim as long as our contractual partner meets the payment obligations from the collected revenues, is not in delay of payment or, in particular, has not filed an application to open insolvency proceedings, or cessation of payments is given. Should this be the case, however, we can require the Buyer to give us details of the claims assigned and the debtors, supply all the information necessary for collection, hand over the relevant documents and notify the debtors (third parties) of the assignment.
(d) If the realizable value of the securities at our disposal exceeds our secured claims by more than 10%, we shall be obliged, if so requested by the Buyer, to release any existing excess securities.
§ 7 Default claims of the Buyer
(1) Unless something else is stipulated below, the statutory provisions apply to the Buyer's rights regarding material defects and deficiency in title (including, but not limited to: mistaken and short delivery, incorrect installation or faulty assembly instructions). The statutory provisions for consumers in the meaning of §13 German Civil Code shall remain unaffected (suppliers recourse according to §§ 478, 479 German Civil Code).
(2) The sole basis for our liability of defects is the agreement about the specification of our goods. As sole agreement of the specification of the goods only the package insert of the goods shall be taken into account. Upon request of the Buyer the package insert will be provided by the Seller beforehand any conclusion of the contract.
(3) Unless the conditions and the quality of the goods have been specified, the statutory regulations regarding defaults shall determine whether any defaults are present (§ 434 subparagraph (1), sentence 2 and 3 German Civil Code). We shall not be liable for public statements of third parties (e.g. advertising statements).
(4) The warranty claims of the Buyer require that he has observed his statutory obligations to examine the goods and to give notice of defects (§§ 377, 381 German commercial code). Should a defect be detected during the initial inspection or be found at a later date, the Buyer shall advise the defect immediately. Immediately shall mean within two weeks, whereas a timely dispatch is enough for the adherence to the time limit. Independently from this obligation to inspect and notify the Buyer also has to notify the Seller of any obvious defects (including mistaken and short deliveries) within two weeks of delivery. Here the timely dispatch is enough for the adherence to the time limit, too. Our liability for the defect is excluded if the Buyer has failed to comply with his obligations to inspect and/or notify us of any defects.
(5) If the goods delivered turn out to be deficient we are entitled at our own option to demand subsequent performance by rectification of the deficiency or the delivery of faultless merchandise. Our right to refuse the type of subsequent fulfilment shall remain unaffected according to statutory regulations.
(6) We shall be entitled to settle the subsequent performance claim on the condition that payment of the amount due is made by the Buyer. However, the Buyer is entitled to retain a reasonable portion, relative to the defect, of the purchase price until the claim is settled.
(7) The Buyer has to give us the time and the opportunity required to satisfy the subsequent performance claim, and in particular deliver the faulty goods for testing purposes. In case of substitute delivery the Buyer is obliged to return the defective material according to the legal requirements.
(8) The for the purpose of testing and subsequent performance necessary expenses incurred, including costs of travel and transport, labour, and material, will be covered by us, if there actually is a deficiency in the product.
(9) However, shall a demand of subsequent performance by rectification of the deficiency be unjustified, we are entitled to demand indemnification for all expenses from the Buyer.
(10) If the subsequent performance fails or if we let pass a reasonable period being set by the Buyer for subsequent performance or supplementary delivery or if that cure period is neglectable by law, the Buyer shall be entitled to withdraw from the contract or be entitled to lower the purchase price within the scope of the statutory provisions. In case of an insignificant defect the withdrawal shall be excluded.
(11) The Buyer's claims for damages or compensation of wasted expenses shall only exist in compliance with the clause § 8, otherwise they shall be excluded.
§ 8 Other liabilities
(1) Unless stipulated by these T&C including the following clauses, the liability for breach of contractual or non-contractual obligations shall be restricted by the applicable statutory provisions.
(2) We shall only be liable - regardless of the legal basis - for damages in case of intent or gross negligence. For simple negligence we shall be liable only:
a) for damages arising from injury to life, body or health,
b) for damage on account of a breach of a material contractual duty (i.e., a duty whose performance is basis for the proper execution of the contract and on whose abidance the contractual partner has relied on regularly and may rely on); in this case our liability is limited to the compensation of the foreseeable and typically occuring damage.
(3) The limitations of liability resulting from the aforementioned paragraph shall not be valid if we have fraudulently concealed a defect or have warranted the quality of the good. The same shall apply for claims of the Buyer according to the Product Liability Act or other compelling statutory provisions.
(4) In the case of a violation of an obligation which does not consist of a defect, the Buyer shall only be entitled to withdraw from the contract if we are responsible for such violation. In particular, an unrestricted right of termination (e.g. under §§ 651, 649 German Civil Code) shall be excluded. Besides this, the statutory requirements and legal consequences shall apply.
§ 9 Limitation period
(1) Deviating from the legal regulations of § 438 (1) number 3 German Civil Code, the general statutory period of limitation for claims arising from defects of quality or legal imperfection in title shall be one year from the day of delivery. If an acceptance procedure has been agreed, the limitation period starts with the acceptance procedure, otherwise it will beginn on the date of delivery.
(2) The aforementioned limitation period of the Law on Sales shall also be applicable for contractual and non-contractual claims on damages of the Buyer, which are caused by deficiencies of the goods, unless the application of the ordinary statutory limitation (§§ 195, 199 German Civil Code) results in a shorter period of limitation in the individual case. In any case, the limitation periods stipulated in the Product Liability Act remain unaffected. Besides that all claims on damages according to § 8 shall be governed by the statutory periods of limitation exclusively.
§ 10 Jurisdiction
(1) These T&C and all business relationships between the Buyer and DST shall be governed by the law of the Federal Republic of Germany under exclusion of international and supranational laws, especially the United Nations Convention on Contracts for the International Sale of Goods (CISG). Prerequisites and effectiveness of the retention of title clauses according to § 6 are subject to the jurisdiction on the physical location of the goods, if the choice of jurisdiction in favor of the German law is ineffective or illegal.
(2) Shall the Buyer be a business according to the German Commercial Code, a corporate body under public law or a special fund under public law, the exclusive - also the international – place of jurisdiction for all disputes arising directly or indirectly from this contract will be our legal place of business Schwerin, Germany. However, we shall also be entitled to take action at the general legal venue of the Buyer.
Version 8/2010
