- General terms of contract
|General Terms and Conditions of Supply|
General Terms and Conditions of Supply
The following General Terms and Conditions of Supply shall be incorporated into all contracts for the sale of goods or for the supply of services entered into with DH electronics GmbH (hereinafter referred to as DH).
1. Formation of contract
a) If the party dealing with DH also uses general terms and conditions of business, a contract shall come into existence even in the absence of express agreement on the incorporation of general terms and conditions of business. In place of any conflicting terms of the parties the dispositive provisions of the law shall apply. If DHs general terms and conditions of supply contain terms which are not contained in the customers general terms and conditions, DHs general terms and conditions shall apply. If the customers general terms and conditions contain terms which are not contained in DHs general terms and conditions, the provisions of the general law shall apply.
b) All agreements entered into, representations made, and additional terms or amendments agreed at the time of contract formation must be reduced to writing.
2. Shipping and delivery
a) Goods are shipped at the customers risk. The mode of shipment shall be at the discretion of DH. The costs of shipment shall be borne by the customer. DH accepts no liability for damage to goods in transit. The cost of transport insurance shall be borne by the customer.
b) The agreed period for delivery shall begin on the day the order is confirmed, but not before the customer has supplied the particulars required to execute the order.
c) Delivery dates are conditional on DH receiving supplies from its own suppliers and on delivery capability. In the event of unforeseeable obstacles to delivery, such as, for example, force majeure, strike, war, rebellion, whether affecting DH or its suppliers, DH shall be entitled to avoid the contract.
d) In the event of overdue delivery, the customer shall be entitled to avoid the contract after first giving written notice to DH allowing an extension of time for performance of not less than 3 weeks.
e) Where necessary, the customer shall dispose of the supplied goods at their own expense in accordance with the provisions of law (ElektroG (Electrical and Electronic Equipment Act)).
3. Reservation of title
a) DH shall retain title to all goods supplied until full satisfaction of all claims, including credit balance claims, arising on any legal basis whatsoever against the customer.
b) The customer shall be entitled to utilise the reserved goods in the ordinary course of business and to sell them. The customer hereby assigns to DH to the extent of its liabilities to DH its claims against its own customers arising out of the on-sale of the reserved goods or on any other legal basis.
c) The customer is given authority, which is subject to revocation, to collect the assigned claims in its own name. If DH so requests, the customer shall disclose the fact of the assignment of its claims, give DH the name of the debtor and require the debtor to make payment exclusively to DH.
d) In the event of breach of contract by the customer (e.g. account overdue), DH shall be entitled to recover possession of the reserved goods and, after giving formal notice to the customer, to dispose of same at the best available price. The proceeds of such sale shall be set off against the purchase price. Repossession or seizure of the reserved goods by DH shall not have the effect of avoiding the contract save where so prescribed by mandatory provision of the law.
e) The customer shall be bound to notify DH immediately in writing of any action taken by a third party in relation to the reserved goods.
4. Prices and payment
a) All prices quoted by DH are inclusive of the costs of packaging, shipping and transport insurance ex Bergen and of value added tax at the prevailing rate. The list price current on the day of delivery shall apply.
b) Settlement is due at the latest 30 days from invoice date net cash.
The provisions of § 284 III BGB (German Civil Code) shall not apply.
c) Payments received will be applied by priority to the longest standing liability, unless the customer specifically stipulates otherwise. This practice will also apply if current account liabilities are offset. Bills of exchange and cheques are accepted by DH only on condition of their being honoured. Discounting expenses shall be borne by the customer.
d) The transaction costs shall be borne by the customer.
e) In the event of the customers account being overdue, the outstanding liability shall
attract interest at a rate of 5% above the base rate of the ECB (European Central Bank).
f) The customer shall be entitled to set off its liabilities against claims of its own against DH only if the claims in question are undisputed or have been upheld with finality by a court of law. The customer shall have no right of lien, whether pursuant to § 369 HGB (German Commercial Code) or otherwise.
5. Obligation to examine goods and to give notice of defects
a) Within 10 working days after delivery, the customer shall examine the goods supplied together with any accompanying documentation, in particular to check that they are complete and in good working order.
Obvious defects must be notified in writing to DH before the end of the aforesaid 10 day period. The defects are to be described in the greatest possible detail. Where a defect report form is used, the relevant instructions shall be followed. In any event, the defective goods shall be precisely identified by specifying the relevant identification codes.
b) Defects which are not capable of detection by means of an examination duly conducted in accordance with paragraph a) above shall be reported within 8 working days after the discovery thereof and in accordance with the reporting procedures referred to in paragraph a) above.
c) In the event of breach by the customer of its obligation to examine the goods and give notice of any defects, as provided for above, the goods shall be deemed to have been accepted in the knowledge of any defect present.
a) For the duration of the warranty period comprising 6 months from date of delivery DH will remedy any defects in the goods supplied including the accompanying documentation and other materials upon written notification of such defects by the customer. The goods will be either repaired or replaced at the customers election.
b) Where goods are returned to DH for purposes of repair or replacement, the customer shall bear the shipping costs incurred.
c) If after repair or replacement the delivery is still defective the customer may exercise the right to avoid the contract or to require an abatement of the purchase price.
7. Decompilation and program modifications
a) The retranslation of program codes supplied into other code forms (decompilation) or other methods or retracing the various stages of production of the software (reverse-engineering) including modifications thereto shall be permissible only to the extent provided for under § 69 e UrhG (German Copyright Act).
b) Copyright marks, serial numbers and other features serving to identify the software may under no circumstances be removed or altered.
a) DH shall be liable without limitation for defects of title and the absence of guaranteed properties. Its liability for initial impossibility shall be limited to a maximum of five times the supply price and to such kinds of loss or damage as typically occur in connection with the supply of software.
b) Save as provided for in the preceding paragraph a), DH shall have unlimited liability only in the event of wilful misconduct or gross negligence on the part of DH or its officers, directors and senior employees. DH shall be liable for the acts or omissions of its other agents only to the extent described in paragraph a) above.
c) DH shall bear liability in respect of minor negligence only if an obligation is broken the observance of which is of key importance to the achievement of the purpose of the contract (key obligation). In the event of the breach of a key obligation the limitation of liability in respect of initial impossibility set out in paragraph a) above shall apply as the context requires or permits.
d) Liability for data loss shall be limited to the typical data recovery cost which would have been incurred had the data been regularly backed up having due regard to the level of risk involved.
e) The preceding provisions shall also apply in favour of DHs employees.
f) Nothing in this Clause shall affect liability under the Produkthaftungsgesetz (German Product Liability Act).
9. Choice of law
The legal relations between DH and its customer arising out of this contractual relationship shall be governed by the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
10. Place of performance and jurisdiction
a) The place of performance of all obligations of the parties to each other arising out of this contractual relationship shall be DHs registered office in Bergen.
b) The courts of Traunstein shall have jurisdiction over disputes arising out of this contractual relationship.
11. Severability clause
The effectiveness of any contract or of these General Terms and
Conditions of Supply shall not be affected by the invalidity of individual
provisions contained therein.
A N N E X
Article 284 BGB (German Civil Code) Default of the Obligor
If the obligor fails to perform his obligations upon being issued with a default notice by the obligee after performance of his obligations have fallen due, he is deemed to be in default by virtue of the default notice. The issuing of a default notice is equivalent to the institution of proceedings to compel performance followed by the service of a court order to perform.
If performance is to take place at a time determined by reference to the calendar, the obligor shall be deemed to be in default if he fails to perform by the specified time and a default notice shall not be necessary. The same shall apply where notice is required to be given prior to performance and the time for performance is determined by calculation from the time of notice by reference to the calendar.
Notwithstanding paragraphs I and II above the obligor of a money claim shall be deemed in default 30 days after the claim has fallen due and after receipt of an invoice or some other equivalent notice to pay. In the case of obligations consisting of recurring money payments, paragraph II shall apply without qualification.
Article 369 HGB (German Commercial Code) Commercial lien
A merchant (Kaufmann) shall have a right of lien, in respect of claims against another merchant due and owing to him arising out of their mutual commercial dealings, over moveable property and securities belonging to the debtor which have come into his possession with the debtors consent in connection with commercial transactions, insofar as they are still in his possession, in particular by virtue of a right of disposal under a bill of lading or warehouse receipt. Such a right of lien shall also subsist where title to the article in question has passed from the debtor to the creditor or has been transferred to the creditor by a third party on the debtors behalf but subject to an obligation to transfer title back to the debtor.
The right of lien shall be effective as against a third party insofar as the grounds upon which the debtors claim to recover possession of the article is denied can also be relied upon as against that third party.
No right of lien shall subsist if retention of possession of the article is contrary to an instruction given by the debtor before or upon transferring possession or an obligation entered into by the creditor to deal with the article in a particular manner.
The debtor can avoid the exercise of the right of lien by giving security for his debt. Security for this purpose shall not include a third party guarantee.
Article 69e UrhG (German Copyright Act) Decompilation
The authorisation of the right holder shall not be required where reproduction of the code and translation of its form within the meaning of subparagraphs 1 and 2 of Article 69c are indispensable to obtain the information necessary to achieve the interoperability of an independently created computer program with other programs, provided that the following conditions are met:
1. these acts are performed by the licensee or by another person having a right to use a copy of a program, or on their behalf by a person authorised to do so;
2. the information necessary to achieve interoperability has not previously been readily available to the persons referred to in subparagraph 1;
3. these acts are confined to the parts of the original program which are necessary to achieve interoperability.
Information obtained by means of acts under paragraph I may not
1. be used for purposes other than to achieve the interoperability of the independently created computer program,
2. be given to others, except when necessary for the interoperability of the independently created computer program,
3. be used for the development, production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright.
Paragraphs I and II shall be interpreted in such a way that their application neither impairs the normal exploitation of the work nor unreasonably prejudices the right holder's legitimate interests.
|Copyright © 2022 DH electronics GmbH. XLON ® is a registered trademark of DH electronics GmbH. Echelon, LON, LonWorks, LonManager, LonMark, LonPoint, LonTalk, LonUsers, Neuron, 3120, 3150 are registered trademarks of Echelon Corporation. Windows is a registered trademark of Microsoft Corporation. Other products and/or companies referred to herein are trademarks or registered trademarks of their respective companies or mark holders. Subject to changes. In all cases the General Business Conditions of DH electronics GmbH apply.|