I. Scope of application and conditions
These General Terms and Conditions of Business (GTC) apply exclusively to companies, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). The following GTC apply to all deliveries and other services to be provided by us. In the event of permanent business relations or framework agreements, our GTC shall also apply to all future delivery relations, even if they have not been expressly referred to again.
Deviations from these GTC shall only become part of the contract if this deviation has become the content of an express written individual agreement between us and the customer.
Counter-confirmations by the purchaser with reference to his terms and conditions of business or purchase are hereby rejected. They shall only be deemed to be agreed if we have expressly agreed to them in writing.
II. Offer, offer documents, acceptance of order
Our offers are subject to change unless otherwise stated in the written confirmation. We reserve the right of prior sale. We reserve the right to make technical changes as well as changes in shape, colour and/or weight within the scope of what is reasonable.
Technical specifications in brochures, catalogues, printed matter, price lists etc. correspond to the status at the time of printing and are only approximate unless they are expressly designated as binding.
We can accept orders within 2 weeks. They shall be deemed accepted either by our written order confirmation or by delivery of the goods.
If, after conclusion of the contract or after delivery of the goods, it is established that the customer is not or no longer creditworthy, we shall be entitled to withdraw from the contract and/or to demand immediate payment for goods already delivered.
Lack of creditworthiness or no longer creditworthy shall be assumed in particular if insolvency proceedings have been applied for in respect of the assets of the customer, in the event of default in payment, the suspension of payments, the issue of bounced cheques or the initiation of compulsory enforcement measures.
III. Order, Delivery, Delivery Periods
Orders should always be placed in writing; orders placed by telephone will be executed at the risk of the customer.
Compliance with delivery deadlines is subject to the timely receipt of all documents, releases and approvals to be provided by the Purchaser as well as compliance with the agreed terms of payment and other obligations by the Purchaser. If these prerequisites are not fulfilled in time, the deadlines shall be extended accordingly.
The delivery periods stated by us are approximate periods. Applying due diligence to conclude congruent hedging transactions, the delivery period shall be determined subject to correct and timely self-supply. The delivery period shall be deemed to have been met if the consignment has been dispatched within the delivery period or notification has been given that the consignment is ready for delivery. If delivery is delayed for reasons for which the customer is responsible, the deadline shall generally be deemed to have been met upon notification of readiness for dispatch within the agreed period. The delivery period shall be extended appropriately if, at the request of the customer, orders already confirmed are modified with our consent.
If non-compliance with the deadlines is due to force majeure, e.g. mobilisation, war, riot or similar events, e.g. strike, the deadlines shall be extended accordingly.
IV. Terms of delivery, property rights, data protection
Our order confirmation is decisive for the content and scope of the contract. Partial deliveries to a reasonable extent are permissible. They shall be deemed to be the fulfilment of independent contracts and shall be paid for separately.
Technical changes which prove necessary for manufacturing reasons, product maintenance, requirements of the legislator or for other reasons are permissible. If the purchaser becomes aware of changes, he must inform us immediately if he considers them to be inadmissible.
We reserve the property rights and copyrights to all documents provided by us. Any disclosure or transfer to third parties requires our written consent. Documents of the customer may be made accessible to third parties to whom we intend to transfer deliveries and services.
Orders based on drawings, sketches or other information provided to us shall be executed at the risk of the customer. If, as a result of the execution of such orders, we interfere with third party property rights, the customer shall indemnify us against claims of third party right holders. Any further damages shall be borne by the customer.
We are entitled to process data within the meaning of the Federal Data Protection Act.
V. Transfer of risk, transport and acceptance
Even in the case of carriage paid delivery, the risk shall pass to the customer when the delivery has been dispatched or collected. This applies irrespective of whether the goods are dispatched or collected from the place of performance. At the request and expense of the customer, we will insure deliveries against the usual transport risks.
If none of the authorised persons named by the customer is present at the agreed place of delivery on the agreed delivery date or ready to accept the goods, the customer shall be in default of acceptance with the consequence that the risk shall pass to him. Furthermore, he shall bear the additional costs arising from the fact that a new delivery has to be made.
In the event of damage to or loss of goods in transit, a damage or inventory report must be arranged immediately. The record should, if possible, be listed on the consignment note and signed by the carrier. We must be notified immediately.
The customer may not refuse to accept goods because of insignificant defects.
VI. Prices and Terms of Payment
The prices quoted by us are always exclusive of value added tax at the respective statutory rate. Unless expressly agreed otherwise, the prices are ex works Kassel excluding freight, postage, insurance and packaging unless the latter is included in the purchase price as is customary in the trade.
Within the framework of a long-term business relationship with our authorised dealers, the basis for the price calculation may be the authorised dealer net price lists valid at the time of the conclusion of the contract (order). Otherwise, the individual customer- or object-specific offer prices shall apply. Unless otherwise agreed, these prices apply to the individual order, not retroactively or for future orders. Repeat orders are new orders.
Unless otherwise stated in our order confirmation or invoice, our invoices are payable in EURO within 14 days of the invoice date without deduction. Invoices are eligible for discount only in the sequence of the invoice date. The bringing forward of more recent invoices for the purpose of discount deduction shall not be recognised. Invoices for customer services and deliveries of goods up to a net value of 50 euros are payable immediately after invoicing and without deduction. We expressly reserve the right to accept bills of exchange or cheques. Bills of exchange or cheques shall only be accepted on account of payment and shall only be deemed to be payment after they have been honoured. No discount shall be granted for payment by bill of exchange. All discount charges and any other costs shall be borne by the customer. Payments shall first be set off against costs, then against interest and then against the oldest principal claim.
For all means of payment, receipt of payment shall be deemed to be the day on which we can dispose of the amount. In the event of default in payment, we shall be entitled to demand interest on arrears at a rate of 8% p.a. above the respective base rate in accordance with § 247 of the German Civil Code (BGB).
The customer shall only have the right to offset if his counterclaims have been legally established or are undisputed.
Within the scope of the warranty for defects, the customer may only withhold payments after a notice of defect has been made in due time to an extent that is in reasonable proportion to the material defect that has occurred.
VII. Retention of title
Objects of the deliveries (reserved goods) shall remain our property until fulfilment of all claims to which we are entitled against the customer from the business relationship.
We undertake to release the securities to which we are entitled at the request of the customer insofar as their value exceeds the claims to be secured by more than 20%.
The purchaser is entitled to resell the goods subject to retention of title in the ordinary course of business, provided he receives the agreed remuneration or no prohibition of assignment is agreed. The customer hereby assigns to us by way of security the claim to the purchase price arising from the sale. However, he shall remain authorised to collect the claims assigned by way of security as long as this authorisation is not revoked. The authorisation may be revoked if the customer culpably fails to fulfil or no longer fulfils his contractual obligations. In the event of a revocation of the direct debit authorisation, we shall be entitled to notify the customer of the assignment. The customer shall immediately provide the documents necessary for notification of the assignment and for collection.
During the existence of the reservation of title, the customer is prohibited from pledging or transferring the goods by way of security. In the event of seizure, confiscation or other dispositions or interventions by third parties, the customer must notify us immediately.
In the event of damage to or other impairment of the reserved goods, the customer must notify us immediately. If the purchaser incurs claims against third parties as a result of the damage or impairment, he hereby assigns these claims to us by way of security.
VIII. Delay in Delivery, Default in Acceptance, Breach of Obligations by the Purchaser
If we fail to meet the delivery date or the delivery deadline, the customer shall be obliged to set us a reasonable grace period in writing. If we culpably fail to deliver within the grace period set, the customer shall be entitled to withdraw from the contract.
If we are responsible for the non-observance of bindingly agreed deadlines, the customer may - provided that he can credibly prove that he has suffered damage as a result - demand compensation of 1% for each full week of the delay, but not more than a total of 10% of the price for the delivery or service affected by the delay. If we can be accused of intent or gross negligence, our liability shall be limited to the foreseeable damage typical for the contract.
Further legal claims and rights of the purchaser due to a delay in delivery remain unaffected.
At our request, the customer is obliged to declare within a reasonable period of time whether he will withdraw from the contract due to the delay in delivery and/or demand damages instead of performance and/or insist on delivery.
If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses.
In the event of breaches of duty by the customer, in particular in the event of default in payment, we shall be entitled to withdraw from the contract and take back the goods after the unsuccessful expiry of a reasonable deadline set for the customer to perform. The statutory provisions on the dispensability of setting a deadline shall remain unaffected. The customer shall be obliged to surrender the goods.
IX. Warranty, material defects
The customer shall immediately inspect the goods sent to him for their proper condition. A notice of defect pursuant to § 377 of the German Commercial Code (HGB) shall only be deemed to be in time if it is received by us in writing within a period of 14 days, calculated from receipt of the delivery. In the case of hidden defects, this period shall apply from the discovery of the defect.
The purchaser must inform us immediately of any warranty case occurring with the consumer.
Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear as well as in the case of damage which occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress or due to special external influences which are not assumed under the contract. If improper assembly, commissioning, repair work or modifications are carried out by the purchaser or third parties, there shall also be no claims for defects for these and the resulting consequences.
The purchaser's right of recourse against us shall only exist insofar as the purchaser has not entered into any agreements with his customer which go beyond the legally mandatory claims for defects.
In the event of justified claims for defects, we shall be liable within the scope of the statutory provisions.
X. Damages, Guarantees
Our liability in cases of intent or gross negligence by us, a representative or vicarious agent shall be governed by the statutory provisions. Apart from that, we shall only be liable in accordance with the Product Liability Act, for injury to life, body or health of a person or for culpable breach of essential contractual obligations. Compensation for culpable breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract, even in cases of gross negligence, provided that none of the exceptional cases listed in sentence 2 of this paragraph 1 applies.
However, liability for damage caused by the delivery item to legal assets of the customer, e.g. damage to other property, is excluded altogether. This shall not apply in the event of intent or gross negligence or in the event of liability for injury to life, limb or health of a person.
The provisions of the above paragraphs 1 and 2 extend to damages in addition to performance and damages in lieu of performance, irrespective of the legal grounds, in particular due to defects, the breach of duties arising from the contractual obligation or from tort. They also apply to the claim for compensation for futile expenses.
The purchaser does not receive any guarantees in the legal sense from us. Any manufacturer's guarantees remain unaffected by this.
XI. Inadmissible onward delivery
The export of items delivered by us in unchanged condition by the purchaser or his customers is not permitted if we have not expressly agreed to the export and entitles the purchaser to claim damages. Objects which were ordered for export may not be forwarded to a domestic customer either in unaltered or altered condition, nor to a foreign customer other than the country of destination specified in the order.
XII. Return of goods
The return of defect-free goods requires our prior written consent. Otherwise, we shall be entitled to refuse acceptance of the goods.
For the return of the goods, we shall charge a flat-rate handling fee of 20% of the value of the goods. Furthermore, the customer shall bear all transport costs, as well as the costs of packaging, repackaging and any repairs.
XIII. Maintenance of fire extinguishers
In order to ensure the proper maintenance of the extinguishers delivered by us, the customer has to inform the purchaser of the extinguishers that he should make use of the DÖKA customer service in order to ensure the proper maintenance of the extinguishers. In case of placing an order, the DÖKA customer service will check the readiness for use and the functionality of the extinguishers.
XIV. Jurisdiction, Applicable Law, Final Provisions
This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
The place of performance and exclusive place of jurisdiction for all disputes arising from this contract is our registered office, unless otherwise stated in the order confirmation.
Amendments and supplements to this contract must be made in writing. This also applies to amendments to this written form clause. No verbal collateral agreements have been made.
Should individual provisions of this contract be or become invalid or contain a loophole, the remaining provisions shall remain unaffected. The parties undertake to replace the invalid provision with a legally permissible provision that comes as close as possible to the economic purpose of the invalid provision or fills this gap.
Kassel, 01 June 2016