(1) The following General Terms and Conditions of Sale and Delivery (“GCSD”) apply to all business relations between the customer (hereinafter referred to as “Customer”) and DELVIS. The GCSD apply only to companies in the exercise of their commercial or self-employed professional activity (§ 14 BGB).
(2) The GCSD apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as “Goods”), regardless of whether DELVIS manufactures the Goods itself or purchases them from suppliers. Insofar as no specific regulations are contained, the GCSD apply accordingly to works and services (“Services”). Acceptance of the delivered Goods shall be replaced by acceptance in the case of delivery of works and by receipt of the service in the case of the provision of services.
(3) With the receipt of our confirmation and/or acceptance of the ordered Goods, the Customer accepts our GCSD. We hereby expressly object to any deviating or additional general terms and conditions of the Customer. They shall not become part of the agreement either by our acceptance of the order or by any other implied action.
(4) Individual agreements made in individual cases with the Customer (including collateral agreements, supplements and amendments) shall in any case take precedence over these GCSD.
II. Contract formation and alteration of contract
(1) Offers from DELVIS are binding and are valid for 14 days, unless otherwise stated in the offer.
(2) DELVIS reserves all proprietary rights, copyrights and other industrial property rights to technical documentation (e.g. drawings, plans, calculations), catalogues, other product descriptions and other documents. The Customer shall require the express prior written consent of DELVIS to pass them on to third parties, irrespective of whether the documents have been expressly designated as “confidential”. Upon DELVIS’ request, the Customer shall return all documents to DELVIS immediately if they are no longer required in the ordinary course of business.
(3) A supply contract is only concluded by written confirmation of the order by DELVIS, at the latest however with the delivery of the Goods to the Customer. If DELVIS can prove by presenting a sent-report that it has sent a declaration by fax or email, it is assumed that the Customer has received the declaration.
(4) Additions and amendments to the contractual agreements including these GCSD must be made in writing. In this case DELVIS may demand a corresponding adjustment of the agreed prices and remuneration. If DELVIS has pointed this out to the Customer in writing in advance, DELVIS is entitled to temporarily suspend the execution of the order until an agreement on a corresponding adjustment of the prices and remunerations has been reached.
III. Services, Delivery Periods and Delay in Delivery
(1) Unless a success has been agreed separately, our Services will generally considered as provision of services. Unless expressly agreed, we do not assume any responsibility for a specific result or a specific success in connection with the provision of services. We are entitled to provide the Services through sub-contractors (subcontractors, suppliers), to the extent not expressly agreed otherwise.
(2) The scope of our contractual obligations exclusively comprises the Goods and Services listed in our written offer or otherwise confirmed by us in writing.
(3) The delivery period shall be agreed individually.
(4) The commencement of and compliance with agreed delivery periods and delivery dates presupposes that all technical questions have been clarified and any obligations to cooperate (in particular the timely receipt of all materials, documents, permits, tests, releases) have been fulfilled and the agreed terms of payment have been complied with by the Customer. If these prerequisites are not met properly, in particular not in time, the delivery periods shall be extended accordingly. This shall not apply to the extent DELVIS is responsible for the delay.
(5) If the non-compliance with the delivery periods or delivery dates is due to force majeure and other disturbances for which DELVIS is not responsible, e.g. war, terrorist attacks, strike, pandemic – also affecting the suppliers of DELVIS – the agreed delivery periods shall be extended accordingly including an appropriate restart phase.
(6) If DELVIS cannot meet binding delivery periods and dates for reasons beyond its control (non-availability of performance) DELVIS shall inform the Customer immediately and at the same time inform the Customer of the expected new delivery period. If performance is not possible even within the new delivery period, DELVIS is entitled to withdraw from the contract completely or partly; DELVIS will immediately refund any consideration already paid by the Customer. The case of non-availability of performance in this sense is in particular the improper, especially the untimely, delivery by one of DELVIS’ sub-suppliers, as far as a congruent covering transaction was concluded with this sub-supplier. Such a transaction shall be deemed to exist if on the day of the conclusion of the contract with the Customer DELVIS has a supply contract with the sub-supplier which, from an objective point of view, is such that DELVIS can supply the Customer as contractually agreed with the latter, provided that everything runs smoothly. Further claims of the parties remain unaffected.
(7) The delivery in parts is permitted, unless the delivery in parts is not reasonably acceptable for the Customer under consideration of the interests of DELVIS.
(8) DELVIS reserves the right to make excess and short deliveries of up to 15%.
(9) If the Customer breaches obligations to cooperate, DELVIS is entitled to give priority to other orders of third parties and to extend the delivery period appropriately or to postpone a delivery date appropriately. Notwithstanding further claims, DELVIS is entitled to demand compensation for the damage incurred including possible additional expenses, unless the Customer is not responsible for the breach of the obligations to cooperate.
(10) The occurrence of DELVIS’ delay in delivery shall be determined in accordance with the statutory provisions but shall always be subject to a reminder by the Customer.
IV. Delivery, transfer of risk, default of acceptance
(1) Unless otherwise stated in the order confirmation, delivery ex works/warehouse (EXW according to Incoterms 2020) from a place specified in the offer or in the order confirmation is agreed. At the request and expense of the Customer, the Goods shall be shipped to another destination after appropriate agreement (sale by delivery to a place other than the place of destination). Unless otherwise agreed, DELVIS shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging).
(2) The risk of accidental loss and accidental deterioration of the Goods shall pass to the Customer at the latest as soon as the Goods are handed over to the person carrying out the transport or leave the factory/warehouse of DELVIS for the purpose of shipment. As far as an acceptance is agreed, this is decisive for the transfer of risk. The legal regulations of the law on contracts for work and services shall also apply accordingly to an agreed acceptance. If the Customer is in default of the acceptance the handover or acceptance shall be deemed to have occurred.
(3) If the Customer is in default of acceptance, if he fails to cooperate or if DELVIS’ delivery is delayed for other reasons, the Goods will be stored at DELVIS’ premises at the Customer’s risk and expense. In case of default of acceptance DELVIS is entitled to claim compensation for the resulting damage, unless the Customer is not responsible for the default of acceptance, as well as compensation for additional expenses (e.g. storage costs). The storage costs shall be a lump-sum of 0.5 % of the net price of the items to be delivered (delivery value) per calendar week or part thereof. The proof of higher storage costs by DELVIS and the statutory claims and rights (in particular for compensation of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be set off against further monetary claims. The Customer is entitled to prove that DELVIS has not incurred any damage at all or that the damage incurred is considerably lower than the above mentioned lump sum. The obligation to reimburse additional expenses and the lump sum storage costs shall also apply if the Customer breaches his obligation to cooperate or if the delivery is delayed for other reasons, unless the Customer is not responsible for the breach of his obligation to cooperate or for the other reasons. Further claims shall also remain unaffected in the event of a breach of duties to cooperate and delays for other reasons.
V. Prices, shipping, terms of payment
(1) The prices valid at the time of delivery shall apply, plus the respective legally owed value added tax.
(2) In the case of contracts with a term of more than four weeks, DELVIS shall be entitled to increase the prices accordingly in the event of cost increases due to verifiable external factors (e.g. due to collective bargaining agreements or material price changes) by more than 10 %. In case of corresponding cost reductions DELVIS is obliged to reduce the prices accordingly. If the price increase is unacceptable for the Customer, taking into account the reasonable interests of DELVIS, the Customer shall be entitled to terminate the contract.
(3) If and to the extent our procurement prices deteriorate due to delays in performance for which the Customer is responsible, DELVIS is entitled to pass on the corresponding price increases to the Customer.
(4) In the case of sale to destination, the Customer shall bear the transport costs ex works/warehouse and the costs of any transport insurance requested by the Customer. Any customs duties, fees, taxes and other public charges shall be borne by the Customer.
(5) Payments shall be due and payable (without deductions) as follows: Within 30 days from the date of invoice. However, for contracts with a net delivery value of more than 100,000 EUR DELVIS is entitled to demand a down payment of 1/3 of the net purchase price. The down payment is due and payable within 14 days from the date of invoice. Payments shall be made by bank transfer. Receipt by DELVIS is decisive for the timeliness of the payment.
(6) Upon expiry of the aforementioned payment period, the Customer shall be in default. In case of late payment DELVIS is entitled to charge bank interest, at least however interest in the amount of 9 percentage points above the base interest rate in accordance with § 247 BGB. DELVIS reserves the right to claim further damages caused by delay. § 355 HGB shall remain unaffected vis-à-vis merchants.
(7) If the Customer is in default of payment, DELVIS shall be entitled, without waiving its claims, to take possession of the Goods until full payment has been made or to withdraw from the contract. DELVIS is also entitled to withhold all deliveries or services until full payment has been made. Further claims remain unaffected.
(8) The Customer can only offset with undisputed counterclaims that are acknowledged by DELVIS or have been legally established. The Customer is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
(1) The choice of the packaging material as well as the type of packaging is left to DELVIS.
(2) Transport packaging and all other disposable packaging in accordance with the Packaging Ordinance shall be invoiced, become the property of the customer and shall not be taken back.
(3) Reusable packaging must be returned to DELVIS by the Customer immediately cleaned and free of charge.
VII. Retention of Title
(1) DELVIS reserves the right of ownership of all delivered Goods and other results of its performance (inclusive of Property Rights) until complete payment of the purchase price and all claims from the business relationship with the Customer (“Reserved Goods”). In case of a current account the reserved property is also considered as security for the claim on the balance. The Customer is obliged to treat the Goods subject to retention of title with care for the duration of the retention of title. In particular, he is obliged to insure the Reserved Goods at his own expense against fire, water and theft damage sufficiently at replacement value. The Customer has to prove the conclusion of the insurance immediately on demand of DELVIS. The Customer assigns to DELVIS already now all claims for compensation from this insurance. DELVIS hereby accepts the assignment. If the assignment is not permitted, the Customer hereby instructs the insurer to make any payments only to DELVIS. Further claims of DELVIS remain unaffected.
(2) The processing or transformation of the Reserved Goods by the Customer is always carried out for DELVIS. The expectant right of the Customer to the Reserved Goods continues in the processed or transformed item. If the Reserved Goods are processed or transformed together with other goods not belonging to DELVIS, DELVIS shall acquire co-ownership of the new goods in proportion of the value of the delivered Goods to the other processed goods at the time of processing or transformation. The same applies if the Goods are combined or mixed with other goods not belonging to DELVIS in such a way that DELVIS loses its full ownership. The Customer keeps the new goods for DELVIS. The same provisions as for the Reserved Goods shall apply to the items resulting from processing or alteration as well as connection or mixing.
(3) The Customer is entitled to resell the Reserved Goods in the ordinary course of business. Otherwise, the Customer is not entitled to pledge the Reserved Goods, to assign them as security or to make any other dispositions that endanger the property of DELVIS. The Customer hereby assigns to DELVIS all claims with all ancillary rights arising from the resale of the Reserved Goods to his Customers, irrespective of whether the Reserved Goods are resold without or after processing. If the Reserved Goods are resold together with other goods that do not belong to DELVIS, the Customer assigns to DELVIS that part of the claim arising from the resale that corresponds to the invoice amount of the Reserved Goods. If Reserved Goods are resold which belong to DELVIS only in part, the part of the claim arising from the resale which is assigned to DELVIS shall be measured according to the share of DELVIS’ ownership. DELVIS accepts the assignments already now. If an assignment is not permitted, the Customer hereby instructs the third-party debtor to make payments to DELVIS only.
(4) The Customer remains revocably authorized to collect the claims assigned to DELVIS from the resale in trust for DELVIS in his own name. The collected amounts are to be transferred to DELVIS immediately. DELVIS may revoke the Customer’s collection authorization as well as the Customer’s authorization to resell the Goods for good cause, in particular if the Customer does not properly fulfil his payment obligations towards DELVIS, if he is in default of payment, if he stops payments or if the Customer files for insolvency or comparable proceedings for the settlement of debts concerning the Customer’s assets or if the justified application of a third party for the opening of insolvency or comparable proceedings for the settlement of debts concerning the Customer’s assets is rejected due to lack of assets. In case of a global assignment by the Customer the claims assigned to DELVIS are to be explicitly excluded.
(5) At DELVIS’ request, the Customer shall immediately notify his customers of the assignment and provide DELVIS with all information and documents required by DELVIS for collection.
(6) DELVIS undertakes to release the securities to which DELVIS is entitled at the request of the Customer to the extent that their realizable value exceeds the claims to be secured by more than 10 %, taking into account customary bank valuation discounts. The valuation shall be based on the invoice value of the Reserved Goods and on the nominal value in the case of claims. DELVIS shall be responsible for selecting the items to be released.
(7) If the Reserved Goods subject to retention of title are seized or if the rights of DELVIS are affected in any other way by third parties, the Customer shall immediately notify DELVIS in writing and provide all necessary information, immediately inform the seizing party or third party about the retention of title and cooperate in the measures taken by DELVIS to protect the Reserved Goods. If the seizing party or the third party is not able to reimburse the judicial and extrajudicial costs for the enforcement of DELVIS’ property rights to DELVIS, the Customer shall be obliged to compensate DELVIS for the resulting loss unless the Customer is not responsible for the breach of obligation.
(8) In case of behaviour contrary to the contract, especially in case of payment default of the Customer, DELVIS is entitled to withdraw from the contract after the expiration of a reasonable grace period set by DELVIS, without prejudice to its other rights. The Customer has to grant DELVIS or its representatives’ immediate access to the Reserved Goods and to hand them over. After an appropriate announcement in due time DELVIS is entitled to otherwise realize the Reserved Goods to satisfy his due claims against the Customer.
(9) If, in the case of deliveries to other legal systems, mandatory legal provisions of the respective country do not provide for a reservation of title within the meaning of this Clause VII. 1-8. or if this reservation of title does not have the same security effect as in the Federal Republic of Germany, the Customer, to the extent legally permissible, hereby grants DELVIS a corresponding security right. The Customer is obliged to cooperate in all measures which are necessary to grant DELVIS such a security right without delay. The Customer will cooperate in all measures which are necessary and beneficial for the effectiveness and enforceability of such security rights.
VIII. Customer Claims for Defects
(1) The statutory provisions shall apply to the rights of the Customer in the event of defects, unless otherwise specified below.
(2) The Customer’s claims for defects require that the delivered Goods are examined by the Customer upon delivery, if reasonable also by a trial processing or trial use, notifies DELVIS in writing of any obvious defects immediately after delivery of the Goods. Hidden defects must be reported to DELVIS in writing immediately after their discovery. The Customer shall describe the defects in writing when notifying DELVIS.
(3) In the case of deliveries of defective Goods or provision of defective works, DELVIS is entitled at its own discretion to supplementary performance by remedying the defect or delivering Goods / works free of defects. DELVIS is to be provided with the rejected parts by the Customer for inspection purposes immediately. DELVIS shall bear the necessary expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs. In case of a replacement delivery the Customer shall return the defective Goods / works to DELVIS according to the legal regulations. They become property of DELVIS.
(4) If the supplementary performance has failed or if a reasonable deadline to be set by the Customer for the supplementary performance has expired without success or is dispensable according to the statutory provisions, the Customer may, without prejudice to any claims for damages or reimbursement of expenses, choose to withdraw from the contract or reduce the purchase price. The same applies if the supplementary performance is unreasonable for the Customer or is delayed beyond reasonable time limits for reasons DELVIS is responsible for. A right of rescission does not exist, however, in particular in case of an insignificant defect.
(5) Warranty claims do not exist if the defect is due to a violation of operating, maintenance and installation instructions, unsuitable, improper use or use beyond the requested and tested use, insufficient validation by the Customer, storage or negligent handling and natural wear and tear, as well as interference with the Goods by the Customer or third parties.
(6) Claims of the Customer for reimbursement of expenses instead of damages instead of performance are excluded, unless the expenses would also have been incurred by a reasonable third party.
(7) DELVIS assumes no guarantees, in particular no quality or durability guarantees, unless otherwise agreed in writing in the individual case.
VIV. Property rights – Defects of title
(1) Insofar as industrial property rights or copyrights (“Property Rights”) are created in the course of our performance, the customer shall receive the simple, irrevocable, transferable, unlimited (as to time, scope and territory) right to use and exploit the result – either himself or through third parties – in unchanged or modified form for all types of use, unless expressly agreed otherwise, upon payment of the agreed remuneration. This right of use and exploitation includes, in particular, the right to reproduce the result itself or by third parties, to distribute it in physical or non-physical form by means of any medium, to make it accessible, to reproduce it publicly, to publish it, to process and/or redesign it, to distribute it, also by means of leasing and renting, and to grant third parties any rights of use for all types of use – alone and at its discretion. This also includes, among other things, the right of online use in all communication networks (Internet etc.) as well as for use in fixed and mobile data networks and on end devices. If the result is a software program, we transfer the aforementioned rights of use to the Customer both with regard to the object code and the source code of the software.
(2) Unless expressly agreed otherwise, the Customer shall receive a simple right of use to the existing rights or know-how which we have acquired before or outside the respective order by the Customer (so-called background), insofar as this is strictly necessary for the use of the results in accordance with paragraph 1 above.
(3) To the extent not provided for otherwise herein, Clause VIII of these GCSD shall apply accordingly if the use of the Goods leads to an infringement of Property Rights.
(4) DELVIS endeavours to deliver Goods and / or provide Services free of third-party Property Rights as far as possible. To this end, DELVIS shall inform itself to the extent customary in the industry about any third-party Property Rights. DELVIS has no further duties of care in respect of third-party Property Rights. Each party shall inform the other party without delay if it becomes aware of conflicting third-party Property Rights and the parties shall jointly determine how to proceed in such cases. Our liability for the infringement of Property Rights is limited to such rights which are known to us or which have remained unknown to us because no examination of the industrial property rights situation has been carried out to the extent customary in the industry. If a third-party assert justified claims in connection with the Goods delivered / Services rendered by us due to the infringement of property rights, subsequent performance shall be effected at our discretion by setting up an equivalent workaround solution (“Work Around”), by acquiring a license for the Goods / Services concerned or by redesigning the Goods / Services with an equivalent Work Around.
(5) Claims of the Customer due to the infringement of Property Rights are excluded if (i) the Customer is responsible for the infringement of Property Rights, (ii) DELVIS has manufactured the Goods / provided the Services according to the Customer’s specifications or instructions or according to drawings, models or other equivalent descriptions or information provided by the Customer and did not know or could not have known at the time of manufacture that Property Rights are infringed thereby, (iii) the (alleged) infringement of the Property Right results from the use in combination with another object not originating from DELVIS or (iv) the Goods / Services are used in a way that DELVIS neither knew nor could have foreseen.
X. Limitation Period
(1) The claims of the contracting parties shall become statute-barred in accordance with the statutory provisions, unless otherwise stipulated below.
(2) The limitation period for claims due to defects is one year from delivery of the Goods, unless a sale of consumer goods takes place at the end of the supply chain. The limitation period of one year shall also apply to claims in tort based on a defect in the Goods. The limitation period of one year shall not apply to the unlimited liability of DELVIS as per Clause XI. A statement by DELVIS regarding a claim for defects asserted by the Customer is not to be regarded as entry into negotiations on the claim or the circumstances justifying the claim, provided that the claim for defects is fully rejected by DELVIS.
(1) DELVIS shall have unlimited liability for damages resulting from the breach of a guarantee or from injury to life, body or health. The same applies to intent and gross negligence or if DELVIS has assumed a procurement risk. DELVIS shall only be liable for slight negligence if essential obligations are violated which result from the nature of the contract and which are of particular importance for the achievement of the purpose of the contract. In case of breach of such obligations DELVIS’ liability is limited to such damages which are typically to be expected within the scope of this contract. The mandatory legal liability as per the Product Liability Act remains unaffected.
(2) Insofar as the liability of DELVIS is excluded or limited, this shall also apply to the personal liability of DELVIS’ employees, representatives and vicarious agents.
(1) Only data, plans and other documents and information expressly designated in writing by the Customer as requiring secrecy shall be subject to an obligation of secrecy. Orally disclosed information must be marked in writing as requiring secrecy within ten (10) days from disclosure. The obligation of secrecy shall not apply if the information is generally known or becomes generally known through no fault of ours, if we have acquired the information requiring secrecy independently and without using information from the Customer or if the law or an authority demands disclosure due to mandatory legal requirements. Our obligation to secrecy is binding for a period of five (5) years from the time of disclosure
(2) The passing on of information requiring secrecy to employees of companies which are associated with us or our parent company in accordance with §§ 15 ff of the German Stock Corporation Act (AktG) is permitted, provided that these employees require the information for the performance of our services and were previously obliged to maintain secrecy.
XIII. Data Protection
(1) The parties are obliged to observe the statutory provisions on data protection, in particular the EU General Data Protection Regulation (“GDPR”) in the execution of the contract and to impose compliance with these provisions on their employees.
(2) The parties shall process the personal data received (in particular the names and contact details of the respective contact persons) exclusively for the purpose of fulfilling the respective contract and shall protect them by means of technical and organisational security measures which are adapted to the current state of the art (Art. 32 GDPR). The parties undertake to delete the personal data as soon as their processing is no longer necessary. Any statutory storage obligations remain unaffected by this.
(3) Should DELVIS process personal data on behalf of the Customer within the scope of the execution of the contract, the parties shall conclude an agreement on the data processing within the meaning of Art. 28 GDPR.
(4) Regarding our information obligations under the GDPR, we refer to our data protection declaration, which can be reviewed under https://www.delvis.de/kontakt/datenschutzerklaerung.
XIV. Export Control
(1) Deliveries and performance (i.e. the fulfilment of contracts) are subject to the condition that fulfilment is not restricted by national or international regulations, in particular export control regulations and embargos or other restrictions.
(2) The parties are obliged to provide all information and documents required for export/domestic transport/import correctly, completely, on time and free of charge.
(3) Delays caused by export controls or licensing procedures shall have priority over the specified periods and deadlines, provided that these are not attributable to a fault of DELVIS.
(4) If it is not possible to obtain the licences required for certain items, the contract shall be deemed not to have been concluded for the specific items in question. This shall not depend on the validity or res judicata of the judgment refusing export or transfer. In this case, failure to obtain licences or to comply with the time limits shall not give rise to any claim for damages, unless this failure is due to the fault of one of the parties.
(5) The Customer undertakes towards DELVIS not to trade the Goods delivered to him by DELVIS, if and in as far this violates the applicable export control regulations. In the event of any violation of the provisions of the export control law, DELVIS shall have the right to terminate or withdraw from the contract. Furthermore, the Customer shall be obliged to indemnify DELVIS from all claims for damages of third parties due to the violation of the provisions of the export control law and to compensate DELVIS for the intangible and material expenses and losses, in particular fines and punitive damages.
(1) These GCSD and the contractual relationship between DELVIS and the Customer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) The place of performance for deliveries is the place from which DELVIS delivers, unless otherwise agreed.
(3) If the Customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising from the contractual relationship shall be Munich. If the Customer is an entrepreneur within the meaning of § 14 BGB, the same shall apply. In all cases, however, we shall also be entitled to take legal action at the place of performance of the delivery obligation in accordance with these GCSD or a prior individual agreement or at the Customer’s general place of jurisdiction. Prior statutory provisions, in particular regarding exclusive competence, shall remain unaffected.
(4) Should a provision be or become ineffective, this shall not affect the validity of the remaining provisions. The parties are bound, in the context of reasonableness, in good faith, to replace ineffective provisions with effective regulations that are economically equivalent.
(5) The German version of these GCSD shall be binding.