Terms

1. Offer and entering into a Contract

 
Our following terms and conditions are the only applicable terms and conditions. Our offers are subject to change and are not binding, unless we have actually designated them as binding exclusively in written form. The order will be deemed accepted after we have confirmed it in written form. Amendments and additions to the contract will require the written form. We retain the intellectual property rights and rights of title to the illustrations, drawings, sketches and other documents. Without our approval these may not be made accessible to any one and will be returned to us upon request. The Party placing the Order will vouch for the as-built drawings presented not conflicting with any third-party property rights. We are not bound to the Party placing the Order to check whether, in submitting our offers based on the as-built drawings supplied to us and in carrying out the order, any third-party rights are violated. Should it transpire that we are held liable by third parties, the Party placing the Order will hold us harmless in respect of any claims of recourse.

 

Prices are in Euro and will apply ex-works excluding packaging unless otherwise arranged. Should, for reasons for which the Purchaser is not be responsible, delivery be effected later than 4 months after the contract was entered into, the company DÜPERTHAL will be entitled to pass on increases in costs as based on evidence.

Specification of delivery dates and deadlines will not be binding unless they have been agreed upon explicitly as binding. The time of delivery relates to our completion of the goods at our works. Unforeseeable events outside the scope of our influence - e.g. operational disruptions due to mobilisation, war, blockade, unrest, ban on exports and imports, fire, lock-outs, machinery failure, energy supplies, lack of raw materials and resources as a result of a delay in delivery on the part of the sub-supplier or because products become rejects with the sub-supplier - will lengthen the delivery deadline appropriately and even if this occurs during any delivery default. These impacts of force majeure will entitle us in whole or in part to cancel the contract, if, as a result of the circumstances, we are prevented from fulfilling the contract or if contract fulfilment is rendered significantly more difficult. We are entitled to make part deliveries and provide part services where it can be reasonably expected of the Purchaser to accept them.

Despatch of the goods will be against an invoice and, if required, insured. The risk will pass to the Purchaser as soon as the consignments are handed over to the carrier and the Purchaser is not a consumer within the meaning of Section 13 BGB [German Civil Code].

5. Defects

For a businessperson, the assertion of rights on account of defects in the products will be subject to immediate prior inspection and notification to us. If we are unable to eliminate the defect or replace delivery, if such measures are delayed in excess of a reasonable space of time for reasons for which we are responsible or if the elimination/ replacement proves to be a failure even at the second attempt, the Purchaser will be entitled to choose between cancelling the contract or calling for an appropriate reduction in the purchase price. Claims to compensation will be ruled out unless the cause of damages is derived from wilful intent or gross negligence or if the Purchaser is a consumer as defined in Section 13 BGB. The period of time for asserting rights regarding defects in quality will be 12 months as from the time of passage of the risk, unless the Purchaser is a consumer as defined in Section 13 BGB. The Purchaser will only be entitled to offset claims, even if the notification of defects or counterclaims are asserted, if said claims are acknowledged by us, or have been established as undisputed or by declaratory judgment. The Purchaser will only be authorized to exercise a right of retention if the claim of the Purchaser is derived from the same contractual relations.

All deliveries will be ex-works or ex-warehouse for deliveries, subject to the retention of title to the goods until all payments from the delivery contract and any other business relations between the Purchaser and ourselves have been received. We will take out transport insurance cover for the delivery at the request and cost of the Purchaser. Retention of title will also apply in the event the Purchaser has processed or further worked the goods. Our title will then extend to the item thus created from said processing or working. This will then be kept and secured safely. In the event the goods are resold, even after processing or working, the claim of the Purchaser to the resale will be assigned to us without question. The assignment will also extend to the claim to surrender that is possibly asserted by the Purchaser in respect of a third party. We herewith accept said assignment. The Purchaser undertakes to notify us of the resale of the delivered goods and of the purchaser. From the very beginning, the Purchaser will accord us the right to notify third parties that all claims from the resale have been assigned to us. All necessary document and information will be supplied to us. Should the financial situation of the Purchaser seriously deteriorate, or if court or out-of-court proceedings are initiated in the interests of conciliation, or if insolvency on the Purchaser’s assets is initiated, the claim to the equivalent of all delivery consignments will become due for immediate payment. The Customer may call for the release of the securities it provided to DÜPERTHAL SICHERHEITSTECHNIK GMBH & CO. KG, in particular through the concession of a simple right of retention and the lengthened and extended right of retention, if the realisable value of said securities exceeds 10% of the claims to be secured. The Supplier will then be obliged to release the securities in proportion.

In derogation of No. 5, claims to compensation for damages and claims to the indemnity of disbursements of the Purchaser (referred to hereinafter as claims to compensation) will be ruled out. This will not apply in the event a guarantee has been accorded or a risk of procurement assumed. Nor will it apply if we are liable by law, i.e. subject to the Product Liability Act, in cases of wilful intent or negligence for injury to life and limb and the violation of major contractual duties. The claim to compensation for the violation of major contractual duties, however, will be restricted to foreseeable damages that are typical for the contract, providing we are not to blame for wilful intent or gross negligence or liability is not due to injury to life and limb. Any amendment of the burden of proof to the detriment of the Purchaser is not associated herewith.

Upon the present Contract coming into existence, the Contracting Parties also explicitly and at the same time agree that our respective registered company office is the place of performance. Should the Purchaser be a businessperson, the respective registered company office is also agreed to be place of jurisdiction.

Solely German law will apply without the United Nations Convention on Contracts for the International Sale of Goods (CISG). Any terms of purchase of the Party placing the Order that conflict with the present terms and conditions will not bind us, even if the Party placing the Order takes them as basis and we fail to specifically oppose or contradict them. Should any individual provisions be or become invalid, the validity of the remaining conditions will not be affected as a result. Any invalid provision will be replaced by a valid one that corresponds or comes close to the sense aimed at by the invalid provision.

 

16. August 2010