Terms & Conditions
issued May 2015
1. Scope of validity
a. The following delivery and payment conditions apply to all business relations with our customers if they are entrepreneurs, a legal entity of public right or public special property, exclusively. The customer accepts these obligatory rules as valid for the time being and for all future business relations even if not agreed specially again. Possible deviations have to be confirmed by us in written form.
b. The customer does not claim his own conditions of purchase, since these will not have any contractual relevance in general. The customers own terms of purchase or those of a third party be they deviating, contradictory or complementary require our written and explicit confirmation to become valid, or else will be considered void. This approval requirement is considered obligatory even if e.g. we (the vendor) agree on the contractor's terms without further notice or acknowledgement of saidterms effecting the delivery unreservedly.
c. If it has been agreed on special terms (including collateral agreements, complements alterations), this agreement is considered of prime relevance. The contents of the said agreements a written contract or confirmation by the vendor is obligatory.
d. Legal-considerable declarations and announcements (e.g. term settlements, fault announcements, declarations of resignation or decrease) any customer could issue against us after the contract wassigned have to be issued in written form to be considered valid.
e. Reference to valid law is just for further explanation. Jurisdiction is valid independent of those terms of delivery and payment, if not differently agreed on by immediate alteration or explicitly excepted.
2. Making the contract
a. All of the vendor's offers are not binding and without obligation.
b. Each order by the customer is considered binding and obligatory. If not excluded by other terms, the customer is entitled to accept the contractual offer up to fourteen days after it has been received by us.
c. The offer will be accepted either in written form by the customer's confirmation or by consignment.
d. Any goods we are liable to deliver by contract and any features of that product are exclusively defined by the article sent on approval. Small differences – especially if in accordance with standard commercial practice – of color, quality, design, manufacturing or equipment – are left in the scope of the reasonable. Warranties in the legal sense will not be endorsed.
3. Prices and payment
a. All prices, even those already confirmed, are subject to changes. Goods will be delivered, if not agreed on otherwise, on payment of current price. VAT is not included, and will be added.
b. Payment is considered fulfilled the date the invoice has been paid to our bank account. Payment by cheque will not be considered fulfilled before the date the cheque has been cashed.
Invoices to domestic customers are payable within 30 days net after the issuing date of the invoice, if not agreed on otherwise. Invoices to foreign customers have to be paid in advance, or promptly after receipt of the invoice.
Independently of their designation, payments will generally be allocated to the invoice issued first. If the time for payment has been exceeded, we reserve the right to calculate default interest rates amounting to 5% p.a. of the current discount rate issued by the German Central Bank. Higher interest rates or claims of repayment of damages for overdue payment are at our discretion.
In case of new business partners or such customers the creditworthiness of which we do not know, delivery is effected against pre-payment or cash on delivery. If payment is overdue or the credit limit has been exceeded, we also reserve our right to hold back delivery (= credit hold) till all outstanding sums have been received. Goods can only be collected against cash payment, with the date having been arranged by telephone before.
Bills of acceptance and pre-dated checks will only be accepted if this had been agreed before in written form, and only for reasons of payment. Taxes as well as bank fees, discount and collection expenses have to be charged to the customer.
Should the customer not fulfil his financial obligations, or should it be the case that settlement orinsolvency proceedings about his or his legal representative’s assets are initiated, the total remaining debt including all admonition fees, default interest and legal costs will be payable immediately. In those cases we are entitled to recede from all contracts concluded so far, and to take back those goods that have already been delivered but still underlie our proprietary rights. Moreover, we have the right to charge all costs related to the recession from the contract.
c. If the customer is entitled to claim payment by DEMA Electronic AG and/or its subsidiaries, such claims will only be set off against our invoice if they are uncontested or legally ascertained.
d. In case the customer's credit credibility becomes questionable after the contract has been signed, or facts become known suitable to endanger payment of the seller's claims by the customer in respect of said contract or any other contract included in a general agreement, the seller is entitled to effect due delivery by prepayment or security payment, only.
e. Should the customer not fulfil his financial obligations, or should it be the case that settlement or insolvency proceedings about his or his legal representative’s assets are initiated, the seller is after term settlement entitled to recede or deny consignment in accordance with law (§ 321 BGB).
4. Delivery time
a. The customer is aware that DEMA Electronic AG is not the manufacturer of the offered goods. Stated delivery terms are therefore considered approximate, and without obligation, if not agreed on otherwise by settlement of an obligatory delivery date. If it has been agreed on shipment the date of shipment is considered the date of delivery to the haulier, carrier or any other person in the transport business.
b. In case of a delayed delivery for which we cannot be held responsible, i.e. due to unforeseeable events, we are entitled to demand delivery times be prolonged or defered accordingly. Any damages and liability claims we may hold against the customer are expressly excluded.
c. We can not be held liable for impossible or dilated delivery caused by unforeseeable events (i.e. all kinds of interruption of operation, impossibility of delivery, dilated delivery, difficulties in procurement of material or energy, strikes, lock outs, lack of manpower, energy or raw materials, difficulties in procurement of required official approvals, official measures by the authorities, missing, faulty or overdue delivery by contractors); such are events, we can not be held responsible for. If such events affect delivery making it much more difficult or impossible the vendor and impediments are not temporary, the vendor is entitled to recede from the contract. If an invoice already has been paid by the customer, he will be recompensed immediately. If the impediment is temporary times for delivery or service will be prolonged accordingly; a reasonable preparation time included. In case of continuing impediments the customer could not be expected to tolerate, the customer is entitled to recede in written form promptly.
d. For goods on stock we reserve the right of intermediate sale. In case of a delayed delivery forwhich we cannot be held responsible, i.e. due to unforeseeable events, delivery times will be prolonged accordingly.
e. In case of dilated or impossible delivery or service, the seller has to answer for repayment ofdamages according to no. 11 of these General Delivery Terms, only.
f. In case of Kanban contracts, for exceptional and for call orders, code “88” ( = call order) is to be entered instead of the calendar week. Should we at the time of issue of the order confirmation not be in the position to fix a delivery date yet, “Follows” is entered instead of the calendar week.
5. Delivery and Transfer of Peril
a. Delivery and shipment are executed on the account of the purchaser who will bear the risk for it. The risk will be transferred to the purchaser as soon as the goods have left our warehouse. Packing and shipment costs are calculated as they occur and are charged to the customer accordingly.
With regard to electronic as well as electromechanical components we are entitled to deliver higher or lower quantities, should - for reasons of quality or transport assurance complete packaging units are deliverable, only. Partial delivery is to be accepted, if in accordance with common practice, and is neither a defection nor an infringement of contract.
b. Perils of loss or deterioration by chance are transferred into the customer's responsibility as soon as shipment has begun (time of the hand over is of relevance here). In case of mail order purchase perils of loss/deterioration by chance or delay is transferred onto the haulier, carrier or any other person in the transport business. This is true, even if it has been agreed on partial delivery or the seller is also responsible for services like shipment or installation.
In case it has been agreed on an acceptance of delivery the said acceptance is relevant for the transfer of peril. The regulations of the law of contracts are valid accordingly. Delivery will be effected and the customer will be liable to accept even if his acceptance is delayed.
c. In case acceptance has been delayed by the customer, or the customer fails to comply, or delivery is delayed caused by any action of the customer, the seller is entitled to demand recompense for his losses and expenditures due to this failure at a rate of 0.5 percent per day of the invoice or at any rate up to a maximum of 5 %. Demands to prove a higher loss, claims in accordance with the laws (especially those affecting just compensation for expenditures and withdrawal) will not be affected in any way. The all-inclusive is, however, to be credited on other monetary claims. The seller is still entitled to prove, or loss to be much smaller as implied by the all inclusive payment, or that we did not suffer any loss or harm at all, nonetheless.
6. Call Orders
Call orders have to be effected within 12 months, if not agreed on otherwise. In case a call order is not called upon within a period of 12 months, no matter if wholly or partially, the seller is entitled to effect delivery without further notice. Should due to special agreements delivery on a call order be not effected earlier than 12 months after call order placement, we are entitled to adjust prices accordingly. Call orders are not to be impaired or cancelled, if not expressly approved by the seller in written form. If the customer's own General Conditions differ from ours, those regulations apply just, if expressly acknowledged by us.
7. Reservation of Proprietary Rights
a. DEMA acts as the proprietor of the goods until the purchase price has been entirely paid, with all admonition fees, default interest and legal costs being included (secured debts).
b. Until the time the secured debt has been completely paid, the purchaser is neither allowed to pawn the goods that still underlie proprietary rights nor is he entitled to transfer security a third party. Should the customer receive the information that delivered goods kept under proprietary rights of the customer might be pawned or confiscated, the customer has to notify us right away.
c. If the purchaser acts in contrary to the contract, especially in the case of failure of payment, theseller is entitled to recede and demand return of goods according to the reservation of proprietary rights and because of recession. If the purchaser fails to pay the invoice, the seller is entitled to assert these rights after having fixed a reasonable time limit for payment, only. A time limit has not to be fixed if this procedure is expendable according to valid laws.
d. The purchaser has got the right to sell the merchandise through normal business operations.If goods that still underlie proprietary rights, are further processed, the following corollary regulations are in force.
aa. The reservation of proprietary rights applies to all products made from goods delivered by the seller by processing, blending or combination at their full value. If goods delivered by the seller are processed, blended or combined the seller will be considered the manufacturer of these products. If in the act of further process the proprietary rights of another party continue on, DEMA Electronic acquires a co-ownership at the rate of the value of the invoice of the processed, blended or combined goods. Additionally all regulations concerning goods under reservation of proprietary rights by DEMA Electronic apply to the product in making.
bb. The purchaser will transfer all liabilities to our overall liability at the rate of the value of our coownership by now according to paragraph aa in order to secure the debts to us. DEMA Electronic will accept this transfer of liabilities. All duties of the purchaser named in paragraph b apply also to the said transfer of liabilities.
cc. The purchaser is as well entitled to invoice the debt as is the seller. The seller commits himself not to invoice debts, if the purchaser fulfills his duties, does not postpone, has not applied for insolvency and does not fail to fulfill any other commitment. In the event contrary to that case the seller is entitled to demand that the purchaser notify him of the debtor and of all liabilities transferred, give all information required for invoicing the liabilities and inform the debtor of the transfer.
dd. If the value of secured debts does surmount liabilities by more than 10% the seller will dispense with secured debts at the purchaser's disposal.
8. Warrantee and claims
a. All of the purchaser's rights concerning defects and legal faults (e.g. faulty delivery or delivery of reduced quantity, faulty installation or faulty installation manual) are regulated by valid law, if not agreed on otherwise. All special regulations by law concerning delivery and its effectment areconsidered valid nevertheless. (refer to BGB $$ 478, 479)
b. Warranty is valid for a period of twelve months after delivery has been effected, or after delivery has been accepted, if acceptance is required.
c. All goods delivered mast be scrutinized for defects thoroughly after being delivered to the customer or any other party designated. You are valid with regard to obvious defects or other defects which would have been recognizable at an immediate, careful examination when approved by the buyer if a written customer's complaint isn't sent to the seller after delivery within seven working days.
The delivering objects are regarded with regard to other defects in which the defect let itself be seen when approved by the buyer, if the customer's complaint isn't sent to the seller within seven working days after the time; if the defect was already at an earlier time recognizable for the customer at normal use, this earlier time is, however, for the beginning of the reprimand period.
Any object queried in its quality has to be returned to the seller freight paid if the seller does so desire it. At a legitimate customer's complaint the seller is to compensate for the costs of the most best way of shipping an dispatch; this is not valid as far as the costs increase because the object delivered is at another place than the place of the use as agreed.
d. At regular terms the seller is committed and entitled to doing the improvement of the object queried or deliver a substitute for such goods at his discretion. This is to be done within an adequate period if defects of the delivered objects concern the material those goods are made off. The customer can recede from the contract or decrease the selling price adequately in the case of failing, i.e. the impossibility, unreasonableness, denial or unreasonable delay of the improvement orsubstitute delivery.
e. If the seller is in any way responsible for any defect or deficiency of an object delivered, the customer is entitled to demand recompense for defects according to the regulations at No. 10.
f. At the event of defects of components of other manufacturers which the seller cannot eliminate for reasons of legal license or actual reasons, the seller will assert them on invoice of the customer or transfer such warrantee claims at his discretion against any of the manufacturers and suppliers concerned to the customer. Warrantee claims against the seller at such defects under other prerequisites and according to these general delivery terms will be accepted when the claims mentioned before could not put through by justice successfully against the manufacturer and supplier or if it is not possible, for example due to an insolvency. During the duration of the lawsuit the limitation period of any warrantee claims the customer in question could hold is impeded against the seller.
g. Warrantee is dropped, if the customer changes the delivering object without consent of the seller, or has it changed by a third party. If emendation that way is made more difficult or impossible or unreasonable the customer has to take the additional costs arising from the change by emendation.
h. If it has been agreed on a delivery of used goods, no warranty so ever will be granted in case ofdefects or deficiencies.
i. The seller doesn't take charges, particularly for transportation, shipping, work and cost of materials required for the purpose of the examination and after-fulfillment in development and costs for installation, if there actually is a defect. If a desire of elemination of a defect by the buyer proves, however, false, the seller can demand repayment of any costs arising from that demand.
a. The period of limitation arising from material defects or legal errors will not be longer than 12months after delivery has been effected (differing from § 438 No. 1 sub 3). If a take order of the goods has been agreed, the limitation period starts with the day the goods had been delivered/taken over.
b. All regulations concerning claims of the customer against the seller arising from fraud by the seller will be effect nevertheless.
c. If a customer issues a claim concerning a material defect in any object delivered all regulationsconcerning limitation periods will remain in effect, if the limitation period granted by law is not shortened by them. The limitation periods of the product liability law remain untouched in every case.
d. In any case the regulations concerning compensation for damages according to No. 10 are in effect with limitation periods set by law.
a. As far as nothing else arises from these general terms of delivery and payment including the following regulations, the seller is liable at an injury of contractual and extra-contractual duties according to the appropriate legal regulations.
b. The seller can be held liable in the case of gross negligence or intention, and is committed tocompensate for it, only – independent of any legal claims or cause. In case of simple negligence the seller is only liable
aa. if life, manpower or health is endangered
bb. for damages arising from breach of an essential contractual obligation ( obligation of fulfillment of the proper execution of the contract in the first place and on whose compliance the contractual partner regularly relies and may rely , such as the obligation to make timely delivery and its freedom from defects ) ; in this case, our liability shall be limited to compensation for the foreseeable , typically occurring damage .
c. Limitations of liability resulting from No.10.b. will not apply if the seller fraudulently concealed a defect or provided a guarantee for the quality of goods . The same applies to claims of the buyer according to the Product Liability Act .
d. Because of a breach of duty which does not consist in a defect, the buyer may only withdraw or terminate if the seller is responsible for the breach of duty. An unrestricted right of termination of the buyer ( especially section . §§ 651 , 649 German Civil Code ) is excluded . The statutory requirements and legal consequences apply .
e. All exclusions and limitations above apply to the same extent in favor of bodies, legal representatives, employees and other vicarious agents of the seller .
11. Choice of law, jurisdiction and final provisions
a. For these standard conditions of sale and all legal relationships between us and the buyer the right of the Federal Republic of Germany, excluding international uniform law , in particular the CISG applies . Conditions and effects of retention of title gem. Section . 9 subject to the law of the respective location of the matter, so far as it the choice of law in favor of German law is inadmissible or ineffective.
b. If the buyer is a businessman according to German Commercial Code , legal entity under public law or a public special fund, the exclusive - also international - place of jurisdiction for all disputes arising from the contractual relationship directly or indirectly arising disputes our registered office in Munich . However, the seller is also entitled to sue at the general jurisdiction of the purchaser .
c. If the contract or these General Terms of Delivery and Payment contain loopholes, those omissions are filled by application of legally valid provisions as agreed, which the parties would have agreed to the commercial aims of the contract and the purpose of these General Terms, as if these loopholes would have been known at the time of agreement.