General Terms and Conditions

I.                          General

1.          The following General Terms and Conditions of Sale, Delivery and Payment (General Terms and Conditions, hereinafter referred to as GtC) apply exclusively to the entire business relationship (contracts, deliveries and other services).

2.          Our General Terms and Conditions also apply to all future business relationships, even if they are not expressly agreed upon again. Our customer's terms and conditions do not apply, even if we do not object to their validity separately in individual cases.

3.          We reserve ownership and copyright information on prototypes, samples, drawings, etc., including in electronic form; they may only be made available to third parties by agreement.

II.                        OFFER, ORDER CONFIRMATION AND CONCLUSION OF CONTRACT

1.          Our offers are subject to change until written order confirmation. For individual pieces, used and demonstration machines, the intermediate sale is reserved.

2.          Unless otherwise agreed, our written order confirmation is decisive for the scope of the delivery. Ancillary agreements and amendments require our written confirmation in order to be effective. The order confirmation can be replaced by invoice or delivery note.

3.          For orders from customers processed through local dealers, our contractual partner is the participating dealer. We note this on the customer's order and issue a corresponding order to the intermediary involved.

4.          We reserve the right to change the design and shape of the delivery item, provided that the delivery item is not fundamentally changed, its function is completely preserved and the change is reasonable for the customer. Performance data and operating cost values are average data, so only approximate and no guaranteed characteristics.

5.          Our products are supplied exclusively according to the technical specification as listed in our user manuals.

6.          The product must not be modified and must be used in accordance with the user manual. This is the only way to ensure correct functioning.

III.                      PRICES AND PAYMENT TERMS

1.          The prices stated in our order confirmation or price list apply, unless separate agreements have been made in writing, the prices are valid ex warehouse or ex works plus the statutory value added tax. The costs of packaging and shipping and freight insurance concluded at the request of our customer are borne by our customer. Additional deliveries and services will be charged separately.

2.          Unless otherwise agreed, a down payment equal to half the contract value is due 14 calendar days after receipt of the order confirmation. The corresponding invoice will be sent with the order confirmation. The remaining amount is due 21 calendar days after delivery. For quickly available spare parts, the delivery will result in an invoice that has 14 calendar days for the payment target.

3.          Payments shall only be deemed to have been made to the extent that DULKS is free to dispose of them. Cheque payments shall not be deemed to have been made until the amount has been irrevocably credited.

4.          Agreed discounts may only be deducted if all previous invoices have been paid.

5.          Discount is granted if payment has been received by DULKS on time. Receipt of payment is the day on which the amount is credited to the account of DULKS. In the case of cash payment, the corresponding amount must be available. .

6.          In the event of payment, interest of 9% points above the respective base interest rate will be charged and a default lump sum of 40 euros in accordance with BGB Section 288. The interest is calculated on the day exactly with the German interest method (30/360).

7.          The set-off with any counterclaims of our customer, which are disputed by DULKS or not legally established, is not valid. The assertion of a right of retention on the basis of unrecognized or not legally established counterclaims is excluded, provided that these claims are not based on the same contractual relationship.

8.          If a significant deterioration of our customer's creditworthiness occurs, or if we become aware of such circumstances, we may make all claims against our customer that are not objectionable immediately due and assert a right of retention against all claims of our customer, even if they are based on other contracts, or demand train-to-train services or the provision of collateral.

IV. DELIVERY PERIODS, DELAY, IMPOSSIBILITY

1.          The delivery dates in price lists mentioned by us are indicative data; these are approximate and non-binding. The delivery time shall apply in the case of timely provision from stock or ex works, unless other agreements have been made in writing.

2.          Compliance with the delivery period is subject to correct and timely self-delivery and presupposes the fulfilment of the customer's contractual obligations. We shall inform the customer of any impending delays as soon as possible. We undertake to assign any claims for compensation against our supplier to our customer.

3.          Unless other agreements have been made, the delivery time will be calculated from the date of the order confirmation. If the customer is in arrears with the down payment, the delivery time is automatically extended by the same number of calendar days.

4.          Should further information, documents and approvals to be procured by the customer be necessary and the customer is in arrears with them, the delivery time shall be extended appropriately. This does not apply to the extent that we are responsible for the delay.

5.          Substantial, unforeseeable and non-indebted operational disruptions, delivery deadlines or delivery failures as well as business interruptions due to energy, raw material or labour shortages, strikes, lockouts, difficulties in obtaining means of transport, traffic disruptions, high-handed orders and cases of force majeure that occur with us or our suppliers, extend the service period of us by the duration of the aforementioned performance obstacles. This also applies if we were already in arrears with the provision of the service when these circumstances occurred. We shall notify our customer of the commencement and expected end of such obstacles without delay, at the latest within a week's notice.

6.          If the delivery or service is delayed by more than sixteen weeks, both our customer and we are entitled to withdraw from the contract with regard to the scope of services concerned. This withdrawal must be notified in writing. DULKS undertakes to refund all payments already made within 7 calendar days.

7.          Partial services and partial deliveries are permitted insofar as the partial delivery is usable for DULKS customers within the scope of the contractual purpose of destination.

8.          If our customer is a dealer, he informs us at the latest when making an offer about any contractual penalties that apply to his customer.

V. SHIPPING AND SHIPPING

1.          Transfer of risk is ex works or ex warehouse, unless otherwise agreed.

2.          If the customer wishes a delivery: Shipping route and means are left to DULKS choice due to a special agreement. Special requests of the customer due to the shipping route are taken into account.

3.          If DULKS delivers by night express at the customer's request, the written confirmation/receipt of the delivery employee of the commissioned express service to the customer that the goods was delivered to our customer on site is sufficient for proof of access to the customer.

4.          The risk of performance degradation and remuneration shall pass to the customer at the time when the goods are handed over to the freight forwarder or carrier of DULKS, but at the latest after leaving the warehouse. If the goods are ready for dispatch and the dispatch or acceptance is delayed for reasons for which the customer is responsible, the risk shall already pass to the customer upon receipt of the notification of readiness for dispatch.

5.          If the customer is in default of acceptance, DULKS is entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). In this case, DULKS may demand flat-rate storage costs equal to 0.25% of the invoice amount of the delivery items affected by the delay in acceptance per past week. The flat-rate compensation is limited to the damage to be expected after the normal course of events, but not more than 5% of the delivery value.

VI. STRASSENVERKEHR

1.          Only our customer, as a driver or vehicle owner, is responsible for compliance with the maximum permissible dimensions in road traffic as well as for the proper lighting of the vehicles and the affixing of appropriate warning signs to the vehicle.

2.          This also applies and especially in the event that we supply attachments on behalf of and at the request of our customer, which should exceed the maximum width of 3.00 m.

3.          Our customer is obliged to check even the maximum width of the vehicle/vehicle attachment permitted by StVZO before driving in the public transport area.

VII. RESERVATION OF OWNERSHIP

1.          We reserve the ownership of the delivery item until the customer has settled all claims that have arisen in the context of the mutual business relations. As long as the property has not been properly transferred to the customer, the customer may neither pledge the delivery item to third parties nor transfer it for security. In the event of a breach of contract by the customer, in particular in the event of a delay in payment, we shall be entitled to take back the delivery item after a reminder and the customer shall be obliged to surrender it. In the request for return as well as in the attachment of the delivery item by us lies a declaration of withdrawal from the contract. In the event of attachments or other interventions by third parties, the customer must notify us immediately in writing.

2.          The request for the opening of insolvency proceedings with the customer entitles us to withdraw from the contract and to demand the immediate return of the delivery item.

VIII. Machine sample and exhibits

1.          Insofar as we provide a customer, dealer or multiplier with machines for exhibition, testing or demonstration purposes, the customer is obliged to secure our goods against theft, damage or vandalism by securing the premises. At night times, our goods must be accommodated in an area specially secured against theft (secured enclosure, hall).

2.          The customer, dealer or multiplier must apply the necessary care in traffic.

3.          At our request, the issuing trader is obliged to insure our goods at their own expense against theft and vandalism as well as elemental damage sufficiently at the new value, which can also be done by including them in an existing insurance company. The insurance policy must be presented to us on request, as well as proof of payment of the premiums. Claims arising from the insurance relationship are already assigned to us.

4.          The packaging, delivery, insurance and freight as well as the possible return and necessary overhaul costs shall be borne by the customer. The same must store the goods free of charge, only in covered rooms, protected from damage and weather conditions. They must be insured against fire and theft at the expense of the customer. We are entitled to dispose of the goods at any time in the case of trial and exhibition goods.

IX.LIABILITY FOR DEFECTS, LIMITATION

1.          Our customer must immediately inspect the goods for defects, incorrect deliveries and missing quantities. Defects must be notified to us in writing no later than five working days after receipt of the goods, hidden defects immediately after discovery. If this period is exceeded, all claims for liability for defects expire.

2.          In the event of justified complaints, we will, at our option, also several times, as far as this is reasonable for our customer, deliver a replacement or repair our delivery or service.

3.          If the use of the delivery item leads to a violation of industrial property rights or copyrights, we will in principle give the customer the right to further use at our expense or modify the delivery item in a manner that is reasonable for the customer in such a way that the infringement of intellectual property no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, the customer is entitled to withdraw from the contract. Under these conditions, we also have the right to withdraw from the contract. Should the customer become aware of infringements of intellectual property rights of our product, the customer is obliged to inform us immediately.

4.          Our customer must give us appropriate time and opportunity for the necessary repair or replacement delivery, and the customer is required to keep the effort of repairs and replacement deliveries as low as possible by means of assembly work instructed by us; otherwise, we shall be exempt from liability for the resulting consequences.

5.          If the rectification fails or if it is unreasonable for us, our customer has the right to withdraw from the contract or to reduce the contract price. In the event of withdrawal, the received services must be reciprocalandly granted and the benefits of use and use drawn to us shall be replaced.

6.          No liability is assumed for the natural wear and tear or damage caused after the transfer of risk as a result of incorrect or negligent handling, excessive stress, etc. If our customer or a third party improperly improves, we shall not be liable for the resulting consequences. The same applies to changes to the delivery item made without our prior consent.

7.          At our request, the object of delivery complained of must be returned to us freight-free. In the event of a justified notification of defects, we shall reimburse the costs of the cheapest shipping route to the place of the transfer of risk.

8.          We are entitled to limit our liability to the assignment of the claims for liability for defects that we are entitled to against the supplier of the delivery, unless the satisfaction of the assigned right fails or the assigned claim cannot be enforced for other reasons. In this case, our customer is entitled to the rights under Nos. 2 and 4 and Section X.

9.          In the case of the delivery of used machines and prototypes, our liability for material defects is excluded, unless otherwise agreed.

10.       Unless otherwise stated in Section X. of these General Terms and Conditions, further claims of the Buyer are excluded regardless of the legal grounds (in particular claims arising from violation of principal and ancillary obligations, tort, culpability at the conclusion of the contract and other tortliability); this also applies to damages outside the purchased item as well as to claims for compensation for the loss of profit.

11.       Claims of our customer due to or in connection with defects, insofar as delivery items are not affected, which have caused the defectiveness of the delivery item according to their usual use, shall become statute-barred within 12 months from delivery. The respective legal deadlines apply to claims for damages due to damage to life, limb or health, for claims arising from manufacturer's recourse pursuant to Sections 478, 479 of the German Civil Code (BGB) and for fraudulent or intentional conduct.

 

X. COMPENSATION

1.          Claims for damages by our customer are excluded regardless of the nature of the breach of duty, including tort, unless there is intentional or grossly negligent action or one of the articles in point. 2 to 4 regulated cases.

2.          In the event of a breach of essential contractual obligations, we shall be liable for any negligence, but only up to the amount of foreseeable, contractually typical damage. Essential contractual obligations are those on which our customer may necessarily rely on the fulfilment of which due to the nature of the legal transaction. Liability, even in the case of gross negligence, is limited to twice the amount of the contract sum.

3.          The aforementioned limitations of liability and exclusions do not apply in the case of liability for guaranteed characteristics, in the case of impossibility for which they are responsible, as well as in the case of culpable injury to life, body or health. Claims under the Product Liability Act or other legally binding liability provisions shall also remain unaffected.

4.          Claims for lost profit, as well as indirect and consequential damages will not be compensated in the case of simple negligence.

5.          Insofar as our liability is excluded or limited, this also applies to our employees, employees, representatives or other vicarious agents and subcontractors.

6.          In the case of the claim for reimbursement of expenses, the preceding paragraphs shall apply accordingly.

XI.           PLACE OF PERFORMANCE, PLACE OF JURISDICTION, APPLICABLE LAW

1.          German law applies to these GtC and the entire legal relationship between us and our customer. THE UN Convention on Contracts for the International Sale of Goods (Vienna UN Convention of 11 April 1980) does not apply. The German language is the language of negotiation and contract.

2.          Place of performance and place of jurisdiction for all claims and litigation arising from the contractual relationship is our registered office.

3.          Should individual provisions of these General Terms and Conditions or parts of the contract be or become ineffective in whole or in part, this shall not affect the validity of the further provisions of the GTC or the validity of the contract.