1.1 All offers, deliveries and other services of Display Solution GmbH, including future ones, shall be based exclusively on these General Terms and Conditions of Delivery and Payment. Counter-confirmations by the customer with reference to its own terms and conditions of business or purchase are hereby rejected. Conflicting terms and conditions of the customer or terms and conditions of the customer not contained in these General Terms and Conditions of Delivery and Payment can only become part of the contract if they have been expressly recognized by us in writing.
1.2 Our General Terms and Conditions of Delivery and Payment shall only apply to persons who, when concluding the contract, are acting in the exercise of their commercial or independent professional activity (entrepreneurs) and to legal entities under public law or a special fund under public law.
2.1 Orders shall become legally binding upon our written confirmation, the content of which alone shall be decisive for the contractual relationship and for the scope of delivery and performance. Collateral agreements, verbal declarations by employees or representatives and changes to confirmed orders (including changes to delivery items) require our written confirmation to be effective.
2.2 Our delivery obligation is subject to timely and proper delivery to us.
2.3 All products delivered by us are intended to remain in the country of delivery agreed with the customer. The re-export of products is generally subject to the foreign trade regulations of the Federal Republic of Germany or the country of origin and may be subject to authorization by the customer. The customer must inform himself about these regulations.
3.1 Unless otherwise agreed, prices are ex works or ex warehouse plus packaging, shipping and insurance as well as VAT at the applicable statutory rate.
3.2 Prices always apply only to the specific order, i.e. neither to past nor future orders.
3.3 In the case of contracts with an agreed delivery period of more than five weeks, both contracting parties may demand a change in the agreed price to the extent that changes in price-determining factors occur after conclusion of the contract that cannot be avoided by the contracting parties, such as cost reductions or increases due to collective wage agreements or changes in the price of materials. The price change must be limited to the extent necessary to compensate for the cost reduction or increase that has occurred. A contracting party shall also be entitled to a corresponding price adjustment if an actual delivery time of more than five weeks results due to delays for which the other party is responsible.
4.1 Within the limit granted to the customer by our credit insurer, payments shall be made net cash without deduction within 30 days of the invoice date, unless expressly agreed otherwise. Payment shall only be deemed to have been made when we can dispose of the amount (receipt of payment). In the event of a limit being canceled or removed by the credit insurer, delivery shall only be made against advance payment.
4.2 Bills of exchange and checks shall only be accepted after prior agreement and only on account of performance and shall only be deemed payment after unconditional crediting. Bank, discount, bill of exchange and other charges plus value added tax shall be borne by the customer in accordance with the private bank rates.
4.3 If the customer defaults on payment, we shall be entitled to demand default interest of 9% above the base interest rate from the time of default. The contracting parties are at liberty to prove that the actual loss is higher or significantly lower. Our rights under Clause 5 (4) and the right to demand interest on arrears of 3% p.a. above the prime rate, but at least 5% p.a., from the due date for a mutual commercial transaction shall remain unaffected.
4.4 Offsetting or the exercise of a right of retention is only permissible on the basis of legal claims of the customer that are recognized by us, undisputed, ready for decision or legally established.
5.1 If a delivery period has been agreed, this shall commence on the date of our order confirmation, but not before the documents, approvals and releases to be provided by the customer have been provided and the technical questions to be answered by the customer and the details of the desired design to be specified by the customer have been fully clarified.
5.2 The delivery deadline shall be deemed to have been met if the circumstances giving rise to the transfer of risk in accordance with Clause 6 have occurred prior to its expiry.
5.3 The delivery period shall be extended appropriately – even within a delay – in the event of force majeure and all unforeseeable obstacles occurring after conclusion of the contract for which we are not responsible, insofar as such obstacles can be proven to have an influence on the provision of the service owed. This shall also apply if these circumstances occur at upstream suppliers. We shall inform the customer of the beginning and end of such hindrances as soon as possible. If the hindrance lasts longer than three months or it is clear that it will last longer than three months, both the customer and we may withdraw from the contract.
5.4 If the customer is in arrears with the acceptance of the delivery items or payment, we may withdraw from the contract and/or demand compensation instead of performance after the fruitless expiry of a reasonable grace period set by us and required by law. When asserting a claim for damages instead of performance, we may demand compensation without proof
– in the amount of 20% of the purchase price to compensate for the loss of profit if the delivery item is a series or standard product or
– in the amount of 100% of the purchase price if the delivery item is a custom-made product according to specific customer requirements and we have incurred the expenses necessary to make it ready for delivery.
The contractual partners are at liberty to prove that the actual damage is higher or significantly lower. The rules for the determination of damages arising from the law shall also remain unaffected if the contract has already been completely fulfilled on our part. In addition, we are entitled to charge the additional expenses incurred, in particular storage costs, if the customer is in default of acceptance.
6.1 All shipments are at the expense and risk of the customer.
6.2 Insofar as no special agreements on the mode of shipment have been made, we may determine the appropriate mode of shipment at our own discretion (without guaranteeing the safest, fastest and cheapest transportation).
6.3 Partial deliveries and services are permitted to a reasonable extent.
6.4 If the delivery item is delivered to another member state of the European Community, the customer shall be obliged to inform us of its VAT identification number, via which the delivery is to be processed, and its line of business prior to dispatch. This shall apply accordingly if other countries are included in the provisions applicable to this regulation.
6.5 In the case of deliveries, the risk shall pass to the customer at the point in time at which a delivery leaves our factory or warehouse. This shall also apply if partial deliveries are made. If dispatch is delayed due to circumstances for which we are not responsible, the risk shall pass to the customer upon notification of readiness for dispatch.
6.6 If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.
7.1 We reserve title to the delivery items until all our claims against the customer arising from the business relationship have been satisfied in full.
7.2 The customer is obliged to insure the delivery items at his own expense against fire, water, burglary and other damage. The customer hereby assigns to us its corresponding insurance claims in the amount of the value of the delivery items subject to retention of title.
7.3 The customer may only dispose of the delivery items subject to retention of title in the ordinary course of business; in particular, he may neither pledge them nor assign them as security. The customer is obliged to secure our rights when reselling delivery items subject to retention of title on credit. The customer hereby assigns to us by way of security any claims arising from the resale in the amount of the total claims to which we are entitled against the customer.
7.4 Any handling and processing of the delivered goods subject to retention of title by the customer shall be carried out on our behalf without any obligations arising for us. If the delivered goods are mixed or combined with other items, the customer shall assign to us in advance co-ownership of the mixed stock or the new item. The co-ownership share is determined according to the ratio of the value of the reserved goods at the time of mixing or combining.
7.5 The customer must notify us immediately of any access by third parties to the delivery items subject to retention of title and the claims assigned to us in advance, handing over the documents required for the objection. The customer shall bear the costs of any intervention.
7.6 If the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the delivery items subject to retention of title without setting a prior deadline. The customer shall be obliged to surrender them. Taking back the delivery items shall constitute a withdrawal from the contract. We shall be entitled to sell the delivery items by private contract after taking them back and to satisfy our claims from the proceeds of the sale by offsetting them against the outstanding purchase price. Utilization costs shall be borne by the customer.
8.1 We provide a warranty for the contractual quality of the delivery items, but not for their suitability for a specific purpose of the customer.
8.2 The customer must inspect the delivery items immediately after delivery. Obvious defects that are recognizable during an immediate inspection must be reported to us in writing immediately, but no later than 10 days after delivery. The customer must have transport damage confirmed by the carrier upon delivery.
8.3 In the event of justified complaints, we shall, at our discretion, repair or replace the goods free of charge. Replaced parts shall become our property and must be returned to us.
8.4 If the rectification or replacement delivery fails, the customer may demand a reduction in payment or rescission of the contract. Further claims by the customer are excluded, unless otherwise stipulated in Section 9 below.
8.5 The warranty period is 12 months from the transfer of risk.
8.6 Unless otherwise stipulated in this Clause 8, further warranty and other claims of the customer are excluded. This applies in particular to claims for compensation for damage that has not occurred to the delivery item itself and to claims for compensation for loss of profit.
8.7 Replaced parts shall become our property and must be returned to us.
9.1 Unless otherwise stated below, any further claims by the customer, regardless of the legal grounds, are excluded. We are therefore not liable for damage that has not occurred to the delivery item itself. In particular, we are not liable for loss of profit or other financial losses of the customer.
9.2 The above exemption from liability shall not apply if the cause of the damage is based on intent or gross negligence or if the damage was caused by the absence of a quality guaranteed by us.
9.3 If we negligently breach a material contractual obligation, the obligation to pay compensation for material damage shall be limited to the typically occurring damage.
9.4 The warranty period is 12 months from the transfer of risk.
9.5 Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents.
9.6 Liability under the Product Liability Act remains unaffected.
10.1 The customer’s rights to withdraw from the contract as set out below shall also apply if there are no defects in the goods but other breaches of duty on our part. The right of withdrawal can only be exercised if the breach of duty is significant.
10.2 The customer may withdraw from the contract if the entire performance becomes definitively impossible before the transfer of risk. The same applies in the event of incapacity. The customer may also withdraw from the contract if, in the case of an order for similar items, the performance of part of the delivery becomes impossible in terms of quantity and the customer has a legitimate interest in rejecting the partial delivery. If this is not the case, the customer may reduce the consideration accordingly.
10.3 If the impossibility occurs during the customer’s default of acceptance or through the customer’s fault, the customer shall remain obliged to provide consideration.
10.4 The customer shall also have a right of withdrawal if we allow a reasonable period of grace granted to us for the rectification or replacement delivery of a defect for which we are responsible within the meaning of the terms of delivery to expire fruitlessly through our fault. The customer shall also have the right to withdraw from the contract in other cases where we fail to rectify or replace the goods.
10.5 All further claims of the customer are excluded, in particular claims for rescission and reduction, as well as for compensation for damages of any kind, including damages that have not occurred to the delivery item itself. This shall not apply if liability is mandatory in cases of intent or gross negligence or the absence of a warranted characteristic.
11.1 All legal relationships between us and the customer shall be governed exclusively by the law of the Federal Republic of Germany applicable to legal relationships between domestic parties.
11.2 The place of performance for all obligations arising from the contractual relationship is Gilching.
11.3 The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the court responsible for our registered office. However, we are also entitled to bring an action at the customer’s place of business.
