Terms and Conditions of Sale and Delivery

Terms and Conditions for the Sale of Goods

 

§ 1 General Provisions

  1. The following general terms and conditions (“Terms of Sale”) shall exclusively apply to all contracts for the sale and supply of goods and utilisation of services (“Goods”) by DDL Fasteners GmbH (“DDL”) to a Customer. Differing or contrary terms of the Customer shall not apply except if expressly agreed upon in writing.
  2. These Terms of Sale shall also govern all future transactions between the parties and shall also apply if DDL performs deliveries or services despite DDL’s knowledge of differing or contrary terms.
  3. These terms of Sale shall only apply vis-à-vis entrepreneurs, governmental entities, or special governmental estates in meaning of sec. 310 paragraph (1) of the German Civil Code (“BGB”).

 

§ 2 Acceptance of a Purchase Order and Conclusion of a Supply Contract

  1. A Supply Contract is concluded between the Parties upon the acceptance of a Purchase Order from DDL for the delivery of goods issued by the Customer.
  2. The Customer is bound to the Purchase Order for a period of two (2) weeks after the date of its Purchase Order. DDL shall be obliged to confirm any Purchase Order of a Customer within a reasonable time not exceeding five (5) days.
  3. Contracts concluded between DDL and its Customers are subject to the resolutory condition (meaning: “auflösende Bedingung” according to sec. 158 paragraph (2) of the German Civil Code (“BGB”)) that the contractual goods are solely used for civilian purposes only. Any use for military purposes is explicitly prohibited. If DDL subsequently becomes aware that the contractual good are or could be being used for military purposes, the contract shall be deemed invalid. In this case, the Customer is obligated to return the goods at its own risk and expenses immediately and DDL will refund any price already paid by the Customers with the exclusion of any additional fees, customs charges etc.

 

§ 3 Prices and Terms of Payment

  1. The price specified in DDL’s price list, in the respective valid version, shall be binding.
  2. The price stated in the pricelist do not include taxes such as VAT and any further costs and expenses relating to packaging, marking, handling, freight, insurance, and delivery and other applicable costs and expenses unless agreed otherwise between the parties at least in Textform (an e-mail will suffice).
  3. DDL shall provide the Customer with a correctly rendered invoice which (i) is in accordance with the price set forth in the Confirmation of the Purchase Order, (ii) is delivered to the proper invoice address specified by Customer on the Purchase Order, (iii) is in accordance with legal requirements, such as separately stated VAT and (iv), provides sufficient details, such as the order number, the article number, the delivery quantity.
  4. Unless otherwise agreed between the Parties at least in Textform (an e-mail will suffice) purchase prices are due within thirty (30) calendar days from the delivery of goods and the receipt of a proper invoice of DDL without any cash discount unless otherwise agreed between the parties.
  5. If the Customer fails to make a payment in accordance with these Terms, he shall be in default immediately. The due interest rate for default payment is 9 percent points above the applicable base rate of the European Central Bank according to paragraph 288 (2) of the German Civil Code (“BGB”).

 

§ 4 Delivery

  1. Any delivery period and any date stated in the Purchase Order, even if confirmed in or by an Order Confirmation of DDL, states only estimations. The delivery period and date shall not be of essence of the Supply Contract and in no event DDL shall be liable for any losses, costs, damages, charges, or expenses caused directly or indirectly by any delay in delivery. Notwithstanding the foregoing, delivery periods and dates shall be binding solely if the Parties have explicitly agreed on a specific delivery date and if DDL has issued a written confirmation (an e-mail will suffice) of the delivery period and / or the delivery date, provided that Customer has forwarded all necessary documents and information for the placed order and for the delivery of the ordered goods within a reasonable time after the order has been placed. In the event these requirements of timely delivery of all necessary documents and information is not met, the Customer shall be responsible for any delay due to its failure to co-operate.
  2. In the event the Customer has placed an order and the Parties have already agreed on a binding delivery date, nonetheless, the Customer shall have the right to amend or extend the order already placed but solely if the extension or amendment is done immediately after the first order has been placed. In this case, however, the delivery period and the delivery date are estimates only, unless the Parties again agree on a binding delivery period and / or on a binding delivery date, which must be confirmed by DDL in writing in order to be valid (an E-Mail will suffice).
  3. DDL shall deliver the goods EXW (Ex Works; Incoterms® 2020) unless otherwise agreed from DDL’s facility point of shipment at the delivery date indicated in the Purchase Order if Customer’s Purchase Order will be placed so as timely as to give DDL at least ten (10) calendar days for the delivery.
  4. If a shipment of the goods is delayed for any reason (excluding Force Majeure Delays) for more than thirty (30) calendar days after the binding delivery date, the delay shall be considered an irreparable delay and a default of DDL under the Supply Contract. In that event the Customer is entitled to rescind the individual purchase order by written notice (an E-Mail will suffice), if the Customer has set a reasonable period of grace for delivery which has expired without results. DDL shall only be liable to the Customer for such damages, and only within the scope of the limitation of liability set out below, if the Customer proves that this possible damage is the sole consequence of the delay for which DDL is liable. In case of delays due to Force Majeure conditions delivery periods shall be deemed to be extended by the duration of the hinderance and by a reasonable acceleration time after the end of the hinderance (“downtime”) and DDL shall not be in breach of any obligations until the end such downtime. DDL shall notify the Customer of such a hindrance and the probable duration in advance in via E-Mail immediately after becoming aware of any such hinderance. If the circumstance beyond DDL’s control continuously persist for more than six (6) months and no change in these circumstances is foreseeable in the near future, the Parties may effectively withdraw from the contract. The withdrawal must be in writing to be valid (an E-Mail will suffice).
  5. If the Customer rejects the acceptance of delivered goods without entitlement and without any legal ground or if the Customer fails its obligations to cooperate, DDL shall store the ordered goods at the Customer’s expenses and risk. DDL reserves the right to charge the Customer a lumped sum of 0,25 % of the net price of the ordered goods per each full week of storage and / or 0,036 % of the net price of the ordered goods per each calendar day of storage up to a maximum amount of 1% per each full month of storage and up to a maximum amount of 5% of the net price of the ordered goods. In any case, DDL reserves the right to prove that the actual storage costs were higher. The Customers reserves the right to prove that the actual storage cots were lower.
  6. If, despite DDL’s formal notice to accept the goods, the Customer still refuses to accept the goods after a reasonable period of at least two (2) weeks, without prejudice to any other right or remedy provided by these Terms or the applicable law, the Customer shall pay to DDL as liquidated damages and not as a penalty a maximum amount of 3,5 % of the net contract price. Furthermore, DDL is entitled to withdraw from the contract.
  7. In any case the total amount of liquidated damages due is limited to a maximum amount of 5% of the net contract price.

 

§ 5 Title and Risk of Loss

The risk of loss shall pass to Customer with the delivery of the goods (according to the agreed INCOTERM®)

 

§ 6 REACH, RoHS, Conflict Material

  1. DDL hereby represents and warrants that the goods (including their components, parts and materials) are fully compliant with any applicable rules and regulations on the restriction of hazardous substances, including, without limitation, Directive 2002/95/EC, as such may be amended from time to time, and any regulations, rules, releases or orders relating thereto adopted by any applicable government agency (RoHS Directive). In particular, DDL shall, at the Customer’s request, furnish to the Customer a declaration of RoHS compliance for any supplied goods. DDL hereby represents, warrants and certifies that the goods (including their components, parts and materials) are fully compliant with the requirements of Regulation (EC) No. 1907/2006 (Registration Evaluation and Authorisation of Chemicals), as such may be amended from time to time, and any regulations, rules, releases, decisions or orders relating thereto adopted by any applicable government agency (REACH Regulation). In particular, DDL will meet its disclosure obligations under Art. 33 of the REACH Regulation by informing the Customer of any good containing a substance of Very High Concern (SVHC) over 0,1 % by weight and shall provide the Customer with sufficient information to allow safe use of any such good, including, without limitation, the provision of a comprehensive material safety data sheet.
  2. DDL represents and warrants that none of the materials it supplies or will supply to the Customer pursuant to these Terms of Sale will contain any columbite-tantalite (coltan), cassiterite, gold, wolframite, or their derivatives, which originate in the Democratic Republic of the Congo (Conflict Materials); and that no Conflict Materials are manufactured, to be manufactured, or contracted to be manufactured by DDL pursuant to these Terms of Sale.

 

§ 7 Export Control Laws

  1. DDL warrants and certifies to the Customer that it complies with all applicable export or import laws, legislations, regulations and restrictions, including, without limitation all Export Administration Regulations of the United Department of Commerce, such as U. S. Export Administration Regulation, the Office of Foreign Assets Control Regulations, the European Union Dual Use Export Control Regime among other applicable national legislation relating to trade controls.
  2. In the absence of available license exemptions or exemptions, DDL must obtain the appropriate licenses or other approvals, if required, for export of hardware, technical data, and software, or for the provision of technical assistance.

 

§ 8 Warranties and Indemnifications

  1. DDL warrants that the goods will perform in accordance with the performance requirements in accordance with sec. 434 paragraph (1), (2) sentence 1 and sentence 2 of the German Civil Code (“BGB”). DDL further warrants that the goods will be merchantable, of good material and workmanship, free from defects.
  2. Customer shall examine the goods immediately upon delivery in accordance with sec. 377 of the German Commercial Code (“HGB”) prior to acceptance and in accordance with the following provisions:
    • Customer’s inspection duties shall be limited to defects that become apparent during Customer’s initial product control immediately after receipt of the goods by external examination of the goods, the packaging, including the delivery documents, such as but without limitation transport damages, incorrect or lower delivery quantity, or which become recognisable during Customer’s quality control by random sampling.
    • In the event of acceptance has been granted by Customer, there is no obligation to examine the goods.
    • In all other cases, the feasibility of an inspection will be determined on a case-by-case basis, considering the circumstances of the individual case.
    • Customer shall give notice of very obvious non-conformities, discovered during the initial entrance examination upon delivery, immediately and timely within two (2) business days after the discovery.
    • Notice of non-conformities which could not have been discovery during the initial entrance examination shall be given within five (5) days after the non-conformity is determined.
  3. Without prejudice to any other right or remedy provided by the Supply Contract or the applicable law, in the event of a breach of either or the warranties outlined herein during the Warranty Period of one (1) year after receipt and inspection of the goods, DDL shall without undue delay repair, replace or modify the defective goods at its own costs at Customer’s election as soon as possible and in any event within fourteen (14) days after receipt of Customer’s notification.
  4. In the event of failure of the DDL to repair or replace the goods as required herein, Customer is entitled to engage a third party to rectify or replace the defective good in which case Supplier shall reimburse DDL in full on an indemnity basis for any losses incurred by Supplier in obtaining substitute goods and / or services from a third party. Customer also is entitled to treat the Supply Contract as discharged by the DDL’s breach and require the repayment of any part of the price which has been paid or that proportion of the amount paid which relates to such goods.
  5. Liability for damages and reimbursement of expenses shall be governed by the statutory provisions. However, DDL shall be liable for damages and reimbursement of expenses for every kind of breach of duty (pre-contractual, contractual and non-contractual duty) solely in accordance with the following limitations:
    • in the event of wilful misconduct to the full amount;
    • in the event of gross negligence, only to the amount of the foreseeable damage which the breached obligation was intended to prevent;
    • in other cases: only in the event of a breach of an essential contractual obligation, if the breached obligation endangers the purpose of the contract, but always only to the amount of the foreseeable damage.
    • The limitation of liability shall not apply to liability for personal injury, death and for the liability under the Product Liability Act.
  6. DDL is not liable if the contractual product is incorporated into another instrument or device by the Customer (Final Product). Thus, DDL does not represents or warrants for safety, efficacy, reliability and fitness for the purpose of the final product, in which the contractual product has been incorporated, provided that any deficiency of the final product is demonstrably not caused by the contractual good supplied by DDL.
  7. Customer shall defend, indemnify and hold DDL harmless from all liabilities, costs, expenses, damages and losses (including without limitation any direct or indirect or consequential losses, loss of profit, loss or reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by DDL arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of any intellectual property rights arising out of or in connection with the final product or any additional designs or modifications by the Customer after receipt of the contractual goods outside the area of risk of DDL.

 

§ 9 Confidential Information

  1. The Receiving Party, meaning the Party which receives Confidential Information (any information relating to a Party or its business that is of confidential or proprietary nature) from the other Party, acknowledges and agrees that
      • the Disclosing Party, meaning the Party which discloses Confidential Information to the other Party, is exclusively owner of all rights, titles and interests in and to the Disclosing Party’s Confidential Information,

        • and

      • the Receiving Party has no right, title, interest, or licence in or to the Disclosing Party’s Confidential Information.
    • The Receiving Party agrees and covenants that it shall use such Confidential Information solely for the purpose of the Supply Agreement, and the Confidential Information will for all purposes, be held by the Receiving Party in strict confidence, and the Receiving Party will not, and will not allow any of its Representatives to disclose, divulge or communicate orally, in writing or otherwise to any Person any part of the Confidential Information.
    • The Receiving Party takes appropriate measures to protect the Confidential Information of the same nature it protects its own proprietary and Confidential Information and will keep a record of the Confidential Information and all Representatives to whom it is provided.
    • The Receiving Party will notify the Disclosing Party immediately upon discovery of any breach of this Section or any unauthorised or unlawful disclosure, divulgence, communication, or use of the Disclosing Party’s Confidential Information.
    • Upon written request by the Disclosing Party the Receiving Party will promptly return or destroy the Confidential Information and provide a written certification of the destruction of all documents, physical or tangible manifestations and electronic forms of the Confidential Information, including all copies, reproduction and application of the Confidential Information, without retaining any copies or records. Notwithstanding the aforementioned the Receiving Party may retain copies of Confidential Information that are stored on Receiving Party’s IT backup and disaster recovery system until the ordinary course of deletion thereof or as required by applicable law or regulatory requirements. The Receiving Party shall continue to be bound by the terms and conditions of these Terms Sale with respect to such retained Confidential Information.
    • If the Receiving Party or any Representative of the Receiving Party is required by applicable law or requested by a governmental authority or a subpoena to disclose any Confidential Information, the Receiving Party will, prior to making the disclosure and to the extent not prohibited by law, provide the Disclosing Party with prompt written notice (an e-mail will suffice) of that requirement or request so that the Disclosing Party may contest the disclosure of the Confidential Information and seek an appropriate remedy, such as injunction relief. Due to such a request or requirement the Disclosing Party shall only disclose that portion of Confidential Information, which is legally required, provided that any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
    • The covenants and obligations contained in this section will survive the expiration of any (Supply) Agreement between the Parties for a period of five (5) years.

 

§ 10 Security Declaration for Authorised Economic Operator (AEO)

DDL hereby declares that:

  1. goods, which are produced, stored, forwarded or carried by order of Authorised Economic Operators (AEO), which are delivered to AEO or which are taken for delivery from AEO
    • are produced, stored, prepared and loaded in secure business premises and secure loading and shipping areas
    • are protected against unauthorized interference during production, storage, preparation, loading and transport
  2. reliable staff is employed for the production, storage, preparation, loading and transport of these goods
  3. business partners who are acting on my behalf are informed that they also need to ensure the supply chain security as mentioned above.

 

§ 11 Amendments and Notifications

  1. No amendments to these Terms of Sale shall be effective unless made in writing and signed by duly authorised representatives of both Parties.
  2. All notifications must be made in writing (e-mail is not sufficient), unless otherwise stipulated in these Terms of Sale.

§ 12 Prevailing Language

These Terms of Sale shall be governed, interpreted, and construed in the English language only. All other translations are intended to simplify readability for the Supplier. In the event of misunderstandings or difficulties of interpretation, the English version shall be consulted as an aid to interpretation.

 

§ 13 Assignment

Each Party shall not assign the Supply Contract or its obligations, in full or parts of it, hereunder to a third party (except affiliates or subsidiaries) without written consent of the other Party.

 

§ 14 Waiver

The failure of DDL to insists upon the performance of any of these Terms of Sale or to exercise a right hereunder, shall not be construed as a waiver of the future performance of any such term or condition of the future exercise of such right, but the obligation of DDL with respect to such future performance shall continue in full force. Without limitation the foregoing, any waiver by DDL muss be in writing and signed by an authorised representative to be effective and enforceable.

 

§ 15 Applicable Law

The Contract (including non-contractual disputes or claims arising out of or in connection with it) is governed by and construed in accordance with the law of the Federal Republic of Germany, and expressly exclude the United Nations Convention on Contracts for the International Sale of Goods (CISG).

 

§16 Arbitration

  1. All disputes arising out of or in connection with this contract or its validity shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law.
  2. The arbitral tribunal shall be compromised of three (3) members.
  3. The seat of the arbitration shall be Frankfurt, Germany.
  4. The language of Arbitration shall be German.
  5. In case the amount in dispute is lower than 50.000,00 EUR net (in words: fifty thousand Euro net) the arbitral tribunal shall be compromised of one (1) member and the arbitration shall be conducted according to the Expedited proceedings and Annex 4 of the DIS Arbitration Rules shall apply.

    Revised August 2024