(Per: October 2008)
1. Scope of application
These Standard Terms and Conditions apply for all sales and deliveries by DDL Fasteners GmbH (hereinafter referred to as "DDL"). They shall also apply, as amended, as a master agreement for future contracts on the sale and/or delivery of moveable property with the same customer without the need for any express reference to these Standard Terms and Conditions in each specific case.
Quotes, offers and any and all agreements concluded by DDL shall be governed exclusively by these Standard Terms and Conditions. Any conflicting or differing terms and conditions of the customer are hereby contested. These shall be incorporated into the relevant agreement only if DDL expressly consents thereto in a specific case. These Standard Terms and Conditions shall also apply if DDL performs services for the customer without reservation in knowledge of conflicting terms and conditions or terms and conditions that differ from those set forth herein. Individual agreements reached in a specific case with the customer shall always have priority over these Standard Terms and Conditions. The contents of such agreements shall be governed by a written agreement or written confirmation by DDL.
2. Orders, offer, conclusion of agreements
DDL's offers are non-binding. Any and all offers by DDL relate only to sales and deliveries to customers for civil use. The customer shall notify DDL separately if and to the extent that its enquiries concern sales and deliveries for the military sector. DDL's offers shall be binding as an exception and in a specific case only if they are rendered in writing and are expressly designated by DDL as binding. DDL shall be bound by binding offers only until the date specified in the offer and no longer, however, than until the expiry of four weeks following sending of the offer. greements shall be formed only by way of written agreement, confirmation of a contract or commencement of performance of the order by DDL. DDL shall deem the customer bound by an application for a period of two weeks following receipt of an order by DDL.
DDL's price list (offer and enquiry), as amended, shall apply for all orders. DDL reserves the right to reasonably modify the prices if cost increases or decreases occur following conclusion of the agreement, particularly due to wage settlements or changes in materials prices. DDL shall, upon request, provide the customer with proof thereof. All prices agreed do not include the respective statutory value added tax and other taxes and duties. Any deduction of cash discounts shall require a separate written agreement.
4. Delivery and passing of risk
Delivery shall be rendered ex works DDL (Incoterms 2000). The customer shall arrange loading, freight and insurance of the products from DDL's warehouse to the customer. At the customer's request, the goods shall be shipped to another destination against an additional fee (sale to destination at purchaser’s instructions). Unless agreed otherwise, DDL may in this case itself determine the nature of shipment (in particular, transport company, shipping route, packaging). Delivery dates and delivery deadlines shall be binding only if confirmed by DDL in writing and if the customer has notified or provided DDL in good time with all information and documentation necessary for performance and delivery and has paid any advance payments agreed in accordance with the relevant agreement. Any agreed deadlines shall commence upon the date on which the order is confirmed. Such deadlines shall be extended accordingly should additional or supplementary orders be issued. In the event of force majeure or stoppages suffered by DDL or its suppliers that provisionally prevent DDL from delivering the purchased goods on the agreed date or by the agreed deadline without any fault on the part of DDL, the delivery dates and delivery deadlines shall be reasonably extended for the duration of the hindrance plus a reasonable new start-up period, up to a maximum, however, total of four months. Should the hindrance last more than four months, both contracting parties may rescind the agreement, although the customer may rescind the agreement only after a reasonable grace period for delivery has been set. Other rights of rescission shall remain unaffected thereby. The foregoing provisions shall apply mutatis mutandis in the event of late delivery to DDL by its suppliers, provided there has been matching hedging (kongruentes Deckungsgeschäft) by DDL. Should the customer default in taking acceptance or breach other duties of co-operation, DDL may – notwithstanding its other rights – appropriately store the products at the risk and expense of the customer. If DDL stores the products, the storage costs shall be 0.25% of the net purchase price of the goods to be stored for each full week. The right to assert and prove additional or lower storage costs is reserved. Moreover, DDL may set the customer a reasonable grace period to take acceptance. "Reasonable" shall mean a grace period of one week. Following fruitless expiry of the grace period, DDL may rescind the agreement and/or demand compensatory damages from the customer. The flat compensatory damages shall be 15% of the agreed net purchase price, unless the customer proves that lesser or no damage was incurred. Notwithstanding the flat compensatory damages, DDL may claim compensation of the actual damage incurred. DDL may render partial deliveries for legitimate cause and to a reasonable extent.
5. Payment terms
The purchase price shall be due and payable within 30 days of invoicing and delivery of the goods. Should the customer default in payment and should there be legitimate doubts about its solvency, DDL may immediately call in all receivables from the customer under the business relationship, withhold outstanding goods/services, in whole or in part, or rescind the current agreements, in whole or in part. DDL reserves the right to use payments to settle the oldest due and payable debt plus the default interest and costs accrued thereon in the following sequence: costs, interest, debt. The customer shall have rights of set-off, retention and refusal of performance only if its counterclaims have been upheld in a final and binding judgment, are undisputed or acknowledged. Moreover, the customer may assert rights of retention only to the extent that its counterclaim is based on the same contractual relationship.
6. Liability for defects
Claims by the customer for defects in the purchased goods and other compensatory damages claims shall be based on the relevant statutory provisions unless provided otherwise below. The special statutory provisions for final delivery of goods to a consumer (recourse to the supplier (Lieferantenregress) §§ 478, 479 of the German Civil Code (BGB)) shall apply in all cases. Defect-related claims by the customer shall require that it has duly met its responsibilities under § 377 of the German Commercial Code (HGB) to inspect the goods and lodge complaints. Notice shall be deemed filed without undue delay within the meaning of § 377 HGB if filed within one week. Any notice under § 377 HGB must be in writing. Should the purchased goods have defects, the customer shall be entitled, at its choice, to subsequent performance in the form of rectification of the defects or to delivery of a new, defect-free item. In the event of defect rectification or substitute delivery, DDL shall bear any and all expenses necessary for purposes of such performance, in particular, transport costs, labour costs and materials costs, provided that these are not increased due to the fact that the purchased goods were transported to a location other than the place of performance. Should the subsequent performance fail, the customer may, at its choice, demand rescission or reduction of the purchase price. Any claims by the customer based on a defect in the purchased goods shall become time-barred after one year following transfer of possession or delivery of the purchased goods.
The foregoing warranty limitations shall not apply to damage resulting from injury to life, limb or health due to wilful or grossly negligent breach of duty by DDL or its statutory representatives or vicarious agents. The foregoing warranty limitations shall also apply to other damage attributable to a wilful or grossly negligent breach of duty by DDL, one of its statutory representatives or vicarious agents or if the other damage was caused by the absence of an assured quality or due to malicious concealment of a defect.
7. Other liability
Any compensatory damages claims on the part of the customer that arise, irrespective of the legal basis therefore, directly or indirectly in conjunction with the purchased goods and delivery thereof shall be excluded unless provided otherwise below. DDL shall not be liable, in particular, for consequences of any improper modification, use or handling of the purchased goods. Liability shall in any event be limited to compensation for the foreseeable damage typical of the agreement. Compensatory damages claims of the customer attributable to claims to contractual penalties on the part of contracting partners of the customer shall in no event be deemed foreseeable and typical of the agreement within the foregoing meaning. Should the damage be covered by an insurance policy taken out by the customer for the relevant situation underlying the damage, DDL shall only be liable for associated adverse effects on the customer, e.g. higher insurance premiums or interest burdens until the damage is settled under the insurance policy. The foregoing exclusions and limitations of liability shall not apply in the event of a breach of a material contractual duty (cardinal duty) by DDL. Cardinal duties mean obligations whose fulfilment make due and proper performance of the agreement possible at all and upon compliance with which the other contracting party normally relies and may rely, i.e. rights and duties that the contract must specifically grant given its contents and purpose. Nor shall the foregoing exclusions and limitations of liability apply in the event of liability for damage resulting from injury to life, limb or health and based on wilful or negligent breach of duty by DDL or one of its statutory representatives or vicarious agents. Nor shall the foregoing exclusions and limitations of liability apply for other damage attributable to wilful or grossly negligent breach of duty by DDL or one of its statutory representatives or vicarious agents or if the other damage was caused by the absence of an assured quality or due to malicious concealment of a defect.
The customer shall indemnify DDL against any liability, damage, claims, proceedings and costs arising under or in conjunction with the sub-contractors, product designs, packaging design provided by the customer or the container selected or stipulated by the customer in which the products are shipped. Should the customer sell the product, it shall indemnify DDL inter se against third party product liability claims, provided the customer is responsible for the faults triggering the liability.
9. Retention of title
DDL shall retain title in the delivered products until full payment of all receivables of DDL under the business relationship with the customer. In the event of ongoing accounts, the retained title shall serve to secure DDL's balance claim. The customer may sell the products subject to the retention of title ("Retained Products") only during the ordinary course of business. The customer may not pledge the Retained Products, transfer them by way of security or otherwise dispose over them in a manner that puts DDL's title at risk. The customer hereby assigns the receivables from any resale to DDL; DDL hereby accepts such assignment. Should the customer sell the Retained Products following processing or conversion or following combination with other goods or together with other goods, the assignment of receivables shall be deemed agreed only in the amount of the portion equivalent to the price agreed between DDL and the customer plus a safety margin of 10% of such. The customer is revocably authorised to collect the receivables assigned to DDL in its own name in trust for DDL. DDL may revoke this authorisation and the right of resale if the customer defaults with regard to material obligations such as payment to DDL; in the event of revocation, DDL may collect the receivables itself. Processing or conversion of the Retained Products by the customer shall always be performed for DDL. Should the Retained Products be processed together with other items, DDL shall acquire joint title in the new item based on the proportion of the value of the Retained Products to the other processed items at the time of processing. Otherwise the same rules that apply for the products delivered subject to the retention of title shall apply for the new item created from the processing. Should the Retained Products be combined with other items, DDL shall acquire joint title in the new item based on the proportion of the value of the Retained Products to other items at the time of the combination. Should the combination take place such that the customer's item must be considered the principal item, it shall be deemed agreed that the customer assigns pro rata joint title to DDL. The customer shall hold the joint title thus created in custody for DDL. The customer shall provide DDL at any time with any and all desired information concerning the Retained Products or claims assigned to DDL on this basis. The customer shall notify DDL immediately and furnish any necessary documents upon third party interventions or claims with regard to the Retained Products. The customer shall at the same time notify the relevant third party of DDL's retention of title. The customer shall bear the costs in mounting a defence against any such interventions and claims. The customer shall handle the Retained Product with care for the term of the retention of title. If the realisable value of the security exceeds the total receivables of DDL to be secured by more than 10%, then the customer may demand release [of the goods] to this extent. Should the customer default in material duties such as payment owed to DDL and should DDL rescind the agreement, DDL may – notwithstanding other rights – demand delivery of the Retained Products and realise them in another manner for purposes of satisfying receivables due from the customer. In this event, the customer shall immediately grant DDL or DDL's appointed representative access to the Retained Products and deliver them. For deliveries to other legal systems in which the foregoing provision on retention of title does not provide security in the same manner as in Germany, the customer shall undertake everything to provide DDL without undue delay with corresponding security rights. The customer shall participate in any and all measures such as registration, publication etc. that are necessary and expedient for the validity and enforceability of such security rights. At DDL's request, the customer shall reasonably insure the Retained Products, furnish DDL with relevant proof of insurance and assign the claims under the insurance policy to DDL.
The export permit required for the respective destination country has been obtained for all goods delivered by DDL under this agreement. Changes to the destination country may be prohibited or require an export permit under the applicable export control provisions. The customer shall be liable for any change in the destination country, shall be responsible for obtaining the relevant permits and shall indemnify DDL against any and all claims in conjunction with a change in the destination country.
11. Data protection
The customer shall advise pursuant to § 33 (1) of the Federal Data Protection Act (Bundesdatenschutzgesetz, BDSG) that DDL stores the customer data in machine-readable form and processes it within the framework of the purpose of the contractual relationship with the Customer and for marketing purposes.
12. General provisions / miscellaneous
This agreement shall be governed solely by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded. Only the German version of these Standard Terms and Conditions shall be binding. To the extent permitted by law, sole forum for any and all disputes under the contractual relationship is Augsburg. However, DDL may sue the customer in any other forum prescribed by law. Legal declarations and notices to be rendered by the customer to DDL following conclusion of the agreement shall be valid only if in writing. References to statutory provisions are for clarification only. Therefore the statutory provisions shall apply even without such clarification, unless they were expressly excluded in the Standard Terms and Conditions. Should one or more of these provisions be invalid, the validity of the remaining provisions shall remain unaffected thereby. The parties hereby agree that the invalid provision shall be deemed replaced by a valid provision that most closely reflects the spirit and intent of the invalid provision.
13. Right of Access
DDLfasteners GmbH grants right of access by the organization their customer and regulatory authorities to the applicable areas of all facilities, at any level of the supply chain, involved in the order and to all applicable records.