General Terms and Conditions (GTC)
(August 2020)
Sole Proprietorship Daksof
(hereinafter referred to as DAKSOF)
1. Applicability of Delivery and Service Conditions
1.1 The following delivery and service conditions apply to all – including future – deliveries and services of DAKSOF to companies. All current and future legal relationships between DAKSOF and the CLIENT shall be governed by the delivery, service, and payment conditions of DAKSOF in their respective valid version. Deviating provisions, in particular purchasing conditions of the CLIENT, shall only become part of the contract if expressly agreed in writing. Otherwise, they are expressly rejected in their entirety.
1.2 If framework agreements have been concluded between the parties, these shall take precedence. Where no specific provisions are made therein, they shall be supplemented by the present delivery and service conditions.
2. Conclusion of Contract / Subject of Performance / Offers
2.1 Orders and supply contracts as well as any warranty declarations require written confirmation by DAKSOF. This requirement of written form itself can only be waived by written agreement.
2.2 Minor changes to the delivery and service object in construction, form, and design as well as in the values specified in the description are permissible for technical reasons, provided that the intended use, quality, and functionality are not impaired.
2.3 Offers made by DAKSOF are non-binding.
3. Prices, Payments, Minimum Quantities
3.1 Deliveries and services shall be carried out at the prices and conditions contained in the supply contract/offer or the order confirmation issued by DAKSOF. The prices and conditions stated therein are binding.
3.2 Prices are quoted ex works and warehouse of DAKSOF. The applicable value-added tax shall be added.
3.3 Duties, taxes, or other direct and indirect charges – in particular customs duties, levies, currency equalization – shall be borne by the CLIENT.
3.4 Delivery and return shipments shall in any case be at the cost and risk of the CLIENT. This also applies if DAKSOF assumes the transport costs or the transport itself.
3.5 Invoices are due immediately and without any deduction. Unless otherwise agreed in writing, they are payable within 8 days without deduction.
3.6 If the CLIENT defaults on payment, DAKSOF shall be entitled to charge reminder fees of EUR 5 and default interest at a reasonable rate, but at least, at DAKSOF’s option, at the bank customary interest rate or the statutory interest rate (§§ 288, 247 German Civil Code – BGB). The assertion of further claims for damages remains reserved. The CLIENT retains the right to prove that DAKSOF has incurred no damage or significantly lower damage.
3.7 DAKSOF is entitled, despite differing provisions of the CLIENT, to apply payments to the CLIENT’s older liabilities.
3.8 Payments by check or bill of exchange do not constitute cash payment but are accepted by DAKSOF only on account of performance and not in place of performance. DAKSOF is entitled to revoke the deferral contained in the acceptance of a bill of exchange at any time and demand immediate payment. DAKSOF is not obliged to present checks in due time. Payments are considered made only when DAKSOF can freely dispose of the owed amount without loss. When accepting bills of exchange, bank discount and collection charges from the due date of the invoice shall be charged and must be paid immediately in cash.
3.9 In the case of invoice settlement by direct debit, the goods only become the property of the CLIENT once the amount has been fully collected without revocation of the debit.
3.10 The retention of payments or set-off with claims against DAKSOF’s claims is only permissible for the CLIENT if the claim(s) have been acknowledged by DAKSOF, legally established, or are ready for decision.
4. Delivery Period
4.1 Agreed delivery or performance dates are non-binding unless expressly stated otherwise in the written order confirmation / delivery call-off / offer / contract.
4.2 The delivery period begins with the dispatch of the order confirmation, but not before the provision of items, documents, approvals, or releases to be supplied by the CLIENT and not before receipt of an agreed down payment. If components to be supplied by the CLIENT are not delivered on time or not free of defects, the delivery period shall be extended by one month for each commenced month plus an additional month.
4.3 The delivery period is deemed met if the delivery item has left the factory or readiness for dispatch has been notified before its expiry.
4.4 If shipment is delayed at the request of the CLIENT, the CLIENT shall be charged the storage costs incurred, beginning one week after notification of readiness for dispatch, or at least 0.5% of the invoice amount for each commenced month if stored at DAKSOF’s facility. However, DAKSOF is entitled, after setting and expiration of a reasonable deadline without result, to dispose of the delivery item elsewhere and supply the CLIENT within a reasonably extended period. Further claims, in particular rights under §§ 293 ff. including § 304 BGB, remain with DAKSOF subject to offsetting the CLIENT’s services. The same applies to its rights under §§ 280 ff. BGB and to the claim for performance.
4.5 Compliance with the delivery period presupposes fulfillment of the CLIENT’s contractual obligations.
5. Transfer of Risk and Acceptance
5.1 The risk passes to the CLIENT at the latest when the delivery items are made available at DAKSOF, even if partial deliveries are made or DAKSOF has assumed other services such as shipping costs or transport and/or installation. At the CLIENT’s request and expense, the shipment will be insured by DAKSOF against theft, breakage, transport damage, fire and water damage, and other insurable risks.
5.2 If shipment is delayed due to circumstances attributable to the CLIENT, the risk passes to the CLIENT from the day of readiness for dispatch; however, DAKSOF is obliged to arrange the insurance requested by the CLIENT at the CLIENT’s expense.
5.3 Delivered items must be accepted by the CLIENT even if they show insignificant defects, without prejudice to the rights under §11.
5.4 Partial deliveries are permissible.
6. Refusal of Acceptance / Refusal to Take Delivery
6.1 If the CLIENT refuses acceptance or receipt of the contractual object, DAKSOF may set a reasonable deadline for acceptance. If the CLIENT fails to accept within this deadline, DAKSOF is entitled, without prejudice to the right to contract performance, to withdraw from the contract or claim damages for non-performance. In any case, DAKSOF may claim lump-sum damages of 25% of the agreed price for standard goods and 100% for custom-made products that cannot be otherwise utilized, without proof of actual damage and without prejudice to the possibility of claiming higher actual damages. The CLIENT remains free to prove lower damages.
6.2 If acceptance is agreed or mandatory, DAKSOF is entitled to demand acceptance once no significant defects remain and functionality and operational readiness are ensured. Significant defects are defects that call suitability into question or significantly impair it. DAKSOF must propose several possible acceptance dates. If none of these dates are accepted by the CLIENT at least two days before the proposed date and the CLIENT does not propose another date within two weeks of receiving the proposal, acceptance shall be deemed declared.
7. Non-availability of Performance
7.1 If DAKSOF cannot comply with binding delivery deadlines for reasons not attributable to DAKSOF (non-availability of performance), DAKSOF shall inform the CLIENT immediately and at the same time communicate the expected new delivery deadline. This includes impossibility of delivery or delays caused by force majeure or other unforeseeable events at the time of contract conclusion (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, official measures, or difficulties in obtaining necessary official permits).
7.2 If performance is not available within the new delivery period, DAKSOF is entitled to withdraw from the contract in whole or in part. Any consideration already provided by the CLIENT will be reimbursed. Non-availability of performance in this sense includes in particular incorrect or untimely delivery by a supplier if DAKSOF has concluded a corresponding hedging transaction and neither DAKSOF nor the supplier is at fault and DAKSOF was not expressly obliged to maintain stock.
7.3 In the event of temporary obstacles, delivery or performance dates shall generally be postponed by the duration of the impediment plus a reasonable start-up period.
7.4 Only insofar as the CLIENT cannot reasonably be expected to accept the delivery or service due to the delay may the CLIENT withdraw from the contract by immediate written declaration to DAKSOF. In this case, the CLIENT must reimburse DAKSOF for the costs and expenses incurred and to be incurred up to that point (e.g. material, processing, handling), including lost profit.
8. Retention of Title
8.1 All deliveries and services are made subject to retention of title. Delivered goods remain the property of DAKSOF until full payment of the purchase price, the fees and all other claims of DAKSOF against the CLIENT arising from the ongoing business relationship.
8.2 The CLIENT is revocably authorized, within the scope of his ordinary course of business, to resell delivered goods and to grant sublicenses within the framework of the agreement made. The CLIENT hereby assigns to DAKSOF, by way of security, all claims arising in connection with the resale and the business relationship with his customers, including ancillary rights, up to the value of the respective delivered goods. DAKSOF accepts the assignment. DAKSOF is authorized to notify the CLIENT’s customers of the assignment at any time.
8.3 DAKSOF is entitled, but not obliged, to insure the delivery item at the expense of the CLIENT against theft, breakage, fire, water and other damage, unless the CLIENT himself has demonstrably taken out the insurance. The CLIENT undertakes to provide the information required for this upon request.
8.4 The CLIENT may neither pledge the delivery item nor transfer ownership of it by way of security. In the event of attachment, seizure or other dispositions by third parties, he must inform DAKSOF immediately. Should DAKSOF suffer damage due to omitted or delayed notification (e.g. due to loss of rights), the CLIENT shall be liable for compensation.
8.5 In the event of conduct by the CLIENT contrary to the contract, in particular in the event of default in payment, DAKSOF is entitled to take back the goods after issuing a reminder and the CLIENT is obliged to surrender them.
8.6 The assertion of the retention of title as well as the seizure of the delivery item by DAKSOF shall not be deemed a withdrawal from the contract.
8.7 DAKSOF undertakes to release the securities to which it is entitled at the request of the CLIENT insofar as the realizable value of the security exceeds the claims to be secured by more than 20%. The selection of the securities to be released shall be at the discretion of DAKSOF.
9. Warranty Terms and Exclusions
9.1 All products supplied by DAKSOF are subject to a warranty of six (6) months from the date of delivery.
9.2 This warranty includes, at DAKSOF’s discretion, the repair or replacement of products that are proven to be defective due to material defects or manufacturing faults.
9.3 The warranty does not cover the following cases:
• Normal wear and tear
• Improper installation, assembly, or lubrication
• Use contrary to the instructions in the part’s manual or the instructions of the construction machinery manufacturer
• Installation by non-qualified personnel
• Unauthorized modifications or repairs
• Misuse, negligence, or improper maintenance
9.4 The purchaser must notify DAKSOF in writing: within seven (7) days after delivery in the case of visible defects and within seven (7) days after the discovery of a hidden defect.
9.5 Products for which a warranty claim is made must be returned to the DAKSOF warehouse for inspection. The return shipping costs shall be borne by the purchaser unless the defect is confirmed.
9.6 Warranty claims will only be considered if the product identification markings or security labels are intact and have neither been removed nor altered.
9.7 DAKSOF does not guarantee that the products are suitable for a specific application unless this has been expressly agreed in writing.
9.8 To the extent permitted by law, DAKSOF’s liability is limited to the repair or replacement of the defective product and does not include indirect, incidental, or consequential damages.
10. Intellectual Property Rights / Copyright / Confidentiality
10.1 All rights to patents, utility models, design rights, trademarks, equipment and other intellectual property rights as well as copyrights for the contractual object and services remain with the respective rights holders.
10.2 The contractual partners undertake to treat all non-public commercial and technical details that become known through the business relationship as trade secrets.
11. Place of Performance and Jurisdiction
11.1 The law of the Federal Republic of Germany shall apply, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). The language of the contract and its execution shall be German.
11.2 With contractual partners within the European Union in its respective extent, the following is agreed: The place of performance for deliveries and services as well as the place of jurisdiction for all obligations and disputes arising from the contractual relationship shall be the principal place of business of DAKSOF or – at its option – the location of its branch office responsible for the delivery/service. DAKSOF shall also be entitled, at its discretion, to bring an action at the principal place of business of the CLIENT or at the place of performance.
11.3 With contractual partners outside the European Union in its respective extent, the following is agreed: All disputes arising out of and in connection with the respective contractual relationship based on these terms and conditions and their conclusion shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC) by one or more arbitrators appointed in accordance with these rules.
12. Written Form
12.1 Ancillary agreements shall generally only become effective if they are made in writing. Amendments and/or additions require written form. This also applies to the waiver of the written form requirement itself.
13. Severability Clause
13.1 Should a provision of these conditions be or become invalid, or should these conditions contain a gap, the legal validity of the remaining provisions shall remain unaffected.
13.2 In place of the invalid provision, a valid provision shall be deemed agreed that comes closest to what the parties intended; the same shall apply in the case of a gap.