1. Application of commercial terms and conditions
Deliveries are made, irrespective of the order value, exclusively under the following delivery terms of Danly Deutschland GmbH.
Terms and conditions of purchase or other terms and conditions of the client apply only if confirmed in writing by Danly Deutschland.
Deliveries are made without obligation by arrangement with the client. Delivery dates specified by Danly Deutschland are on the condition that delivery is possible. Danly Deutschland reserves the right to make part deliveries at its reasonable discretion. The delivery deadline has been met if the delivery item has left the factory or notice has been given in writing that it is ready for dispatch.
Where a delivery deadline has been agreed, this will be extended appropriately in the event of force majeure or the occurrence of other unforeseen events for which Danly Deutschland is not culpable. The same applies to measures in the context of work disputes, in particular strikes and lock-outs.
3. Transfer of risk
The delivery risk transfers to the client when the goods have been dispatched from Danlys premises. This also applies to part deliveries.
The prices are ex Dauchingen. Value added tax, postal charges, freight charges, packaging, insurance and other incidental costs are charged separately at cost price. Packaging is not returnable.
5. Payment terms
Payments must be made in Euros within 14 days from the invoice date less a 2% early payment discount on the gross value of the goods, or within 30 days at the net price. The early payment discount is conditional upon all due invoices from the business relationship having been paid. In the event of a cessation of payments, insolvency or a court-ordered or out-of-court arrangement with creditors, the purchase price is payable immediately.
Bills of exchange are acceptable only by way of payment; the customer bears the costs of discounting. Where payments are deferred or made in arrears, then following prior warning and the setting of a deadline where this is required by law interest will be charged at 5% above the base rate. When payment by instalments has been agreed then the whole amount is due if the client is in arrears by more than two consecutive instalments. It is also due if financing has been agreed and this has not occured for reasons that are the clients responsibility. This is without prejudice to the mandatory provisions of the German Repayment Act (Abzahlungsgesetz). No repayment will be made of payments by the client. The client may only offset against counterclaims that are the subject of a final, unappealable court order or are not disputed by the supplier.
6. Guarantee and notice of defects
Danly Deutschland provides a guarantee against defects, erroneous deliveries and discrepancies as to quantity only in accordance with the following provisions. This is the sole extent of the guarantee. Danly Deutschland is liable only for defects if these are not attributable to the behaviour of the client or a third party who has not been commissioned by Danly Deutschland. This applies in particular to cases of defective handling, defective installation, etc.
The client is obliged to inspect the goods delivered by Danly Deutschland immediately after delivery to the client. Obvious defects and discrepancies in quantity must be notified in writing to Danly Deutschland within a limitation period of one week from delivery, giving the nature and scope of such defect. The same applies to hidden defects following their discovery. If, on the basis of the above, notice of defects is given late, Danly Deutschland shall be free from the obligation to provide a guarantee.
At its reasonable discretion, Danly Deutschland will replace or make good any erroneous or defective deliveries. If the replacement delivery or making good is ultimately unsuccessful, the client may, at its request, claim a price reduction or commutation.
Danly Deutschlands liability is limited to the costs of replacement delivery or of making good the defective items. Danly Deutschland is only liable to pay compensation for the consequences of defects where a defect has been fraudulently concealed or where a certain feature (the presence of which has been assured) is absent, if the purpose of the assurance is specifically to protect the client against damage that has not affected the delivery item itself.
7. Further liability
Otherwise, Danly Deutschland is liable only for intent or gross negligence on the part of the owner or employee in charge. Danly Deutschland is only liable for the behaviour of its agents in the event of gross misconduct where a breach of major obligations is concerned.
In the event of arrears Danly Deutschland is further liable, in cases of simple negligence, for late payment damage in the amount of 0.5% for each complete week of the delay caused by the arrears, to a maximum of 5% of the value of that part of the total delivery that, due to the delay, could not be used at the right time or in accordance with the contract. The client has the right, at its discretion, to rescind the contract instead of enforcing a damage claim; this does not apply to items that have been custom made. If Danly Deutschland is liable on the basis of other mandatory statutory regulations, these are not prejudiced by the above provision.
8. Retention of title
Danly Deutschland retains title to all delivered parts until all amounts receivable, including all incidental amounts receivable from the client from the commercial relationship with Danly Deutschland, including amounts receivable arising in the future, have been settled in full. The processing or reworking of the delivered items by the client is always performed on Danly Deutschlands behalf.
The client is entitled, within the proper course of business, to further dispose of the delivered items to which Danly Deutschland retains title. It hereby assigns to Danly Deutschland all amounts receivable that accrue to it from its purchaser or from third parties from the further disposal. This applies irrespective of whether the goods to which title is retained are further disposed of with or without processing or reworking. The client remains entitled to collect the amounts receivable assigned to Danly Deutschland until the latter rescinds. Danly Deutschland undertakes not to collect the amounts receivable as long as the client properly meets its payment obligations.
Otherwise the client is not entitled to pledge the items that have been delivered which are subject to retention of title, or to transfer them by way of security or otherwise to dispose of them. Danly Deutschland undertakes, at the clients request, to release the security accruing to it where the value of the same exceeds by 20% the value of Danly Deutschlands total securable claim against the client.
The taking back of goods that are subject to retention of title or a pledging of these goods by Danly Deutschland is not deemed to be a rescission of the contract.
9. Return of goods
Goods may only be returned with the agreement of Danly Deutschland. Where goods are returned carriage-paid, the calculated value less a restocking fee of 15% will be credited. Items that have been custom-made will not be taken back.
10. Amendment of contract
Additions or amendments to the contract and oral side agreements are not valid unless confirmed in writing by Danly Deutschland.
Deliveries and services by Danly Deutschland are governed exclusively by German law. The place of performance is Dauchingen and the courts there shall have jurisdiction. Should one or more of the above clauses be or become invalid, this shall not prejudice the validity of the remaining clauses. In the context of the commercial relationship, data about clients and suppliers will be stored and processed.