GENERAL TERMS AND CONDITIONS
In the following you find attached our general terms and conditions for deliveries and achievements. In addition, you can download our general shopping terms, general computer software terms and our technical terms and conditions as well. You can also download our general terms and conditions as PDFs.
The following Terms and Conditions shall exclusively apply to all business transactions with the Purchaser. They apply to business transactions with business entities, legal public entities and trusts governed by public law. Conflicting general terms and conditions of the Purchaser shall only apply if they are expressly confirmed in writing by DÜCKER.
These Terms and Conditions also apply, without the need for an express agreement, to all future transactions between the Parties as well as when DÜCKER, in the knowledge of the Purchaser’s opposing or different terms and conditions, carries out the delivery or service without reservation.
To the extent that the subject matter also includes software, the General Terms and Conditions for Computer Software of DÜCKER pursuant to Annex 1 shall apply in addition to these Terms and Conditions.
Documents containing trade and business secrets of DÜCKER (e.g. offers, price estimates, construction plans etc.) may not be made accessible to third parties, in particular competitors, and must be returned upon demand; where applicable, DÜCKER reserves any and all intellectual property rights and copyrights which may exist. A right of retention on the part of the Purchaser to these documents is excluded.
To the extent that these Terms and Conditions provide for the written form, this requirement shall be satisfied by transmission using fax or electronic means.
2. Offers and Prices
DÜCKER's offers are valid for six months.
All prices are understood to be the price charged for delivery ex DÜCKER’s works, without cash payment discount or any other such discounts, plus value added tax. Additional services (for example, transit costs) and any other costs (for example for transportation or packaging, loading, shipping and customs duties) shall, unless otherwise agreed, be borne by the Purchaser.
If performance is to take place more than four months after conclusion of the contract and DÜCKER’s list prices have changed in the meantime, DÜCKER may demand in place of the agreed price, a price which is subject to the percentage of change to the list price without the Purchaser having a right of withdrawal, unless otherwise agreed in advance.
3. Contract Conclusion and Subject Matter
A contract shall be concluded if DÜCKER have either confirmed their acceptance of the order in writing, or they have carried out the delivery.
DÜCKER’s written confirmation of order shall determine the nature and scope of DÜCKER's obligations, provided the Purchaser does not oppose the content of the confirmation of order in writing without delay after receipt of the confirmation of order.
To the extent that there are no limits on permissible variations stated in the confirmation of order, and that such limits do not result from expressly acknowledged Purchaser specifications, variations which are customary in trade are permitted. A guarantee (§ 443 German Civil Code) shall only be given by DÜCKER if DÜCKER expressly indicates in writing that these amount to guarantees.
3.4 Legal Provisions for Exports:
If a necessary export licence is not granted or the pre-requirements for an export licence which has already been granted subsequently fall away, without DÜCKER being responsible for this, or if the Purchaser appears on a national or international sanctions list or appears after the conclusion of the contract, DÜCKER is entitled to a right of rescission or cancellation. The Purchaser shall immediately inform DÜCKER in writing of such relevant circumstances in this connection. The scheduling shall be reasonably postponed in proportion to the period of delay resulting from the subsequent examination of the pre-requirements.
If DÜCKER exercises its right of rescission of cancellation pursuant to clause 3.4.1, the Purchaser is liable for all direct and indirect damage (including lost profits, financial penalties, legal costs etc.), which are incurred by DÜCKER as a result of the early termination of the contract. In this case, the Purchaser is not obliged to provide any consideration and shall receive back from DÜCKER any payments already made, as far as DÜCKER does not set-off such amounts with possible counterclaims; the Purchaser is not entitled to any further claims against DÜCKER, in particular claims for damages.
The goods to be delivered by DÜCKER are designed for disposition in the country for delivery agreed with the Purchaser. The Purchaser is obliged to consider whether the re-export of the goods is subject to the laws on foreign trade and payments and export control provisions of the Federal Republic of Germany, the country of delivery as well as, where applicable, other countries, and whether the Purchaser can be obliged to obtain a licence. The Purchaser is obliged to inform himself in individual cases of the decisive Law on Foreign Trade and Payments and where applicable to apply for and obtain the necessary licences.
The Purchaser is exclusively responsible for compliance with all import provisions and permits as well as for obtaining any technical permission, operational or special permissions etc. in relation to the goods required in countries outside Germany. The non-grant of permissions, approvals etc. which may be required for the use outside of Germany shall not in particular constitute a defect or grounds for rescission or avoidance of the contract by the Purchaser. Upon request however, DÜCKER will assist the Purchaser with obtaining the permissions etc. by making available documentation concerning the goods; any costs thereby arising (e.g. for translations, certifications etc.) shall be borne by the Purchaser.
4. Payment Terms
The payment terms shall be agreed individually.
If periods for payments are exceeded DÜCKER shall charge interest at 8 percentage points above the respective basic interest rate of the European Central bank per annum, unless DÜCKER can prove higher damages.
Notwithstanding any other claims, DÜCKER has the right to demand advance payment or provision of security and to delay the fulfilment of its own obligations in the event that, following contract closure, facts become known which question the Purchaser’s reliability, in particular with respect to the Purchaser’s ability to pay. DÜCKER shall be entitled to withdraw from the contract if the Purchaser has provided false information regarding its credit worthiness, or when, based upon reliable information, the Purchaser’s credit worthiness is objectively found not to exist. Any and all claims for compensation by the Purchaser arising from DÜCKER's withdrawal from the contract are excluded.
The Purchaser is not entitled to reduce DÜCKER's claims to counter claims or to exercise a right of retention unless the counter claims or right of retention have been acknowledged by DÜCKER in writing or legally ascertained.
Scheduled dates by DÜCKER are always non-binding estimates only, unless delivery periods or delivery dates are expressly marked as binding in the confirmation of order. Absolute fixed dates must be marked with a corresponding suffix. Delivery periods shall commence only after receipt of any agreed pre-payments as well as receipt of all documents pertaining to the order, and proper clarification of all technical details.
Subsequent changes to a contract will automatically result in a reasonable postponement of the scheduled dates.
Two weeks after a non-binding delivery date or delivery period has been exceeded, the Purchaser may request in writing delivery by DÜCKER within a reasonable period of time. Upon expiry of this delivery deadline DÜCKER shall be in delay, unless DÜCKER is not responsible for the non-performance.
DÜCKER shall be entitled to make partial deliveries.
DÜCKER’s duty to perform is suspended in case of force majeure (including disruptions in the ordinary course of business or of traffic, disturbances in shipment, business interruptions due to technical reasons, war, strike, lock out, insufficient delivery of operational material, administrative legal measures or other similar events) to the extent that DÜCKER is not responsible for this, as well as incorrect or late supplies being made to DÜCKER for which DÜCKER is not responsible. DÜCKER must inform the Purchaser without delay of the unavailability of the service. In these cases DÜCKER is entitled to postpone their performance, for as long as such events continue, however, up to a maximum of four months. In case of a permanent disturbance of the performance or if the disturbance lasts more than four months, DÜCKER is entitled to withdraw from the contract either in whole or in part. In the event of withdrawal from the contract, the Purchaser is not obliged to pay any consideration, and any advance payments shall be paid back to the Purchaser without delay; the Purchaser is not entitled to claim for compensatory damages.
6. Passing of Risk / Default of Acceptance
All sales are calculated ex works Langenfeld, Germany. Shipping and transport shall always be at the risk of the Purchaser. The risk shall be transferred to the Purchaser, also in the case of partial deliveries, at the latest when the shipment has been handed over to the carrier - irrespective of whether it belongs to DÜCKER or is a third party – or for the purpose of the shipment the item has already left DÜCKER's works. The passing of risk shall also take place in the case of default of acceptance on the part of the Purchaser.
In the event that the Purchaser is in default of acceptance, DÜCKER is entitled to claim compensation for additional expenditure arising as a result. Any possible claims for compensation by DÜCKER on account of culpable breaches of (secondary) obligations by the Purchaser shall remain unaffected.
Clause 6.2 shall apply correspondingly to the delayed calling of deliveries, to the extent that delivery on call is agreed, as well as to failure of the Purchaser to carry out any required cooperation or preparatory acts (e.g. groundwork).
During the default of acceptance by the Purchaser, DÜCKER shall only be liable for deliberate acts and acts of gross negligence.
If at the request of the Purchaser DÜCKER continues to store the subject matter after the acceptance date, the risk of accidental loss and accidental damage to the subject matter shall pass to the Purchaser on the originally agreed date of acceptance. During such storage period, DÜCKER shall only be liable for deliberate acts and acts of gross negligence.
7. Retention of Title
All products delivered shall remain DÜCKER's property (retained goods) until the Purchaser has completely settled all claims existing and arising after the conclusion of the business relationship with DÜCKER.
The Purchaser is obliged to use and handle the retained goods with care. During the period of the retention of title, the Purchaser shall be entitled to possession and conventional use of the retained goods.
Any treatment or processing of the retained goods shall take place for DÜCKER as manufacturer within the meaning of § 950 German Civil Code, without any obligation on DÜCKER's part. Treated and processed goods shall be deemed retained goods. If the Purchaser carries out any treatment, processing, combination or mixing of the retained goods with goods from another source to make a new item or mixed item respectively, DÜCKER is entitled to co-ownership in proportion to the invoice value of the retained goods at the time of delivery as against the value of the other processed or mixed goods. The part that is co-owned shall be deemed to be retained goods.
If the retained goods are combined with other things and one of the things which belongs to the Purchaser can be regarded as the principal thing within the meaning of § 947 BGB, it is hereby agreed that a co-owned part in proportion to the invoice value of the retained goods as against the value of the principal thing shall be assigned to DÜCKER and the Purchaser shall preserve it for DÜCKER free of charge. The part that is co-owned shall be deemed to be retained goods.
The Purchaser must preserve any retained goods for DÜCKER free of charge. Upon request at any time in the place of storage, DÜCKER shall have the possibility of carrying out stock taking and sufficient labelling. The Purchaser shall inform DÜCKER without delay of all details of any distraint or derogation of DÜCKER's rights by third parties so that DÜCKER may use all legal means to prevent this from happening.
The Purchaser may only sell the retained goods in the normal course of business under his normal conditions and under an agreement as to a retention of title, if it is guaranteed that the Purchaser’s claims under this further sale are assigned to DÜCKER in accordance with this Clause 7.4:
The Purchaser hereby assigns to DÜCKER any claims arising out of the further sale of the retained goods (as well as in the context of contracts for services or contracts for works and materials) together with all ancillary rights. These shall serve to the same extent as DÜCKER's security for the retained goods.
The Purchaser is only entitled to assign claims arising out of the further sale of the retained goods to third parties with DÜCKER's prior written consent.
If the Purchaser sells the retained goods together with other goods which were not supplied by DÜCKER, the assignment of the claims arising out of the further sale shall only be up to the value of the invoice value of DÜCKER's retained goods at the time of the delivery. In the case of the sale of goods in which DÜCKER has co-ownership rights pursuant to Clause 7.2.1 or 7.2.2 respectively, the assignment of claims shall only be up to this co-owned share.
If the assigned claim is included in an ongoing invoice, the Purchaser shall hereby transfer a portion of the balance in an amount corresponding to this claim, including the final balance, to DÜCKER's current account. 7.5 Until cancellation, the Purchaser is entitled to make any claims arising out of further sales.
Until cancellation, the Purchaser is entitled to make any claims arising out of further sales.
If the Purchaser fails to fulfil its obligations under this contract or other contracts with DÜCKER or if DÜCKER become aware of circumstances which reduce his credit worthiness, then
(a) after the expiry of a fruitless extension of time, DÜCKER can withdraw from the contract; then the Purchaser’s right of possession in the retained goods shall expire and DÜCKER can demand the retained goods;
(b) DÜCKER may prohibit the further sale, treatment, processing as well as mixing or combination of the retained goods with other goods;
(c) the Purchaser shall inform DÜCKER on demand of the name of the debtor of the claims that have been assigned to DÜCKER;
(d) Dücker is entitled to cancel the direct debit authorisation that was granted. Any further claims of DÜCKER, in particular claims for damages, shall remain unaffected. 7.6 If the value of the security provided to DÜCKER exceeds the aggregate of DÜCKER's secured claims by more than 20 %, DÜCKER is obliged to release security of DÜCKER's choice to this extent at the request of the Purchaser.
8. Obligations to inspect and identify defects
In case of systems delivered by DÜCKER normally a joint test run takes place, followed by acceptance of the system by the Purchaser or an organization appointed by him (e.g. government safety organisations).
Unless an acceptance in terms of clause 8.1 takes place, the Purchaser must carefully inspect the goods without delay after their arrival at the destination point, in particular as to condition and quantity. Obvious defects must be notified by the Purchaser to DÜCKER in writing without delay at the latest however within 14 days.
In case of clause 8.1 and 8.2, the Purchaser must notify concealed defects in writing to DÜCKER without delay, at the latest however within 14 days of discovery of the defect. Any breach of this obligation to identify defects excludes a claim for defects to that extent.
Damages occurring during transport must be immediately notified to the carrier; the notification obligations under the German General Conditions of Carriage shall apply to this extent.
9. Liability for Defects
Insofar as a defect exists which has been notified within the correct time limits prescribed in clause 8.1, DÜCKER is entitled at its option to remedy the defect within a reasonable deadline by undertaking repairs or by delivering a non-defective subject matter. In the event that the remedy is ineffective, the Purchaser is entitled at its option to require either a reduction in the purchase price or the cancellation of the contract. The Purchaser has no cancellation rights in the case of immaterial defects.
Furthermore, DÜCKER shall be liable for possible claims for compensation from the Purchaser arising from or in connection with the defects in the subject matter, exclusively in accordance with the provisions of Clause 10.
Warranty claims by the Purchaser shall be excluded, to the extent that defects are causally related to any of the following occurrences, such that
- the Purchaser failed to provide notice of the defect and an opportunity to repair said defect without delay in accordance with clause 8.1.;
- the subject matter was handled improperly or was overused;
- the Purchaser failed to follow the prescribed requirements regarding the handling, care and maintenance of the subject matter (e.g. operating instructions);
- The Purchaser made changes to the subject matter,
- Parts have been changed or consumable materials were used which do not meet the original specifications, … if the Purchaser does not prove wrong a substantiated assertion by DÜCKER that the defect was caused by one of the above stated circumstances.
The wear and tear according to regulation of so-called wearing parts is excluded from the liability for defects.
In the event that the Purchaser receives defective installation instructions, DÜCKER shall only be obliged to supply installation instructions free of defects, and this only in the event that the defect in the installation instructions is an obstacle to the proper installation.
All warranty claims by the Purchaser shall become statute-barred within one year calculated from the beginning of the limitation period prescribed by statute. This shall not apply in the case of a building or related planning or monitoring services provided by Dücker (sec. 438 para. 1 no. 2, 634a para. 1 no. 2 German Civil Code), nor when DÜCKER has fraudulently concealed the defect nor when strict liability on the part of DÜCKER to pay compensation exists pursuant to Clause 10.
The sale of used goods is subject to the exclusion of any liability for defects without prejudice to the liability of DÜCKER to pay compensation pursuant to Clause 10. Any claims of the Purchaser for fraudulent concealment of defects shall remain unaffected.
At DÜCKER's request, the Purchaser is obliged to pursue at first all claims which come into question against DÜCKER's pre-suppliers. For this purpose, DÜCKER is obliged to assign to the Purchaser any possible warranty or compensation claims that DÜCKER has against DÜCKER's pre-suppliers. If the claim made against DÜCKER's pre-supplier remains unsuccessful, the Purchaser is entitled to make a claim against DÜCKER pursuant to this Conditions to the extent that the Purchaser then assigns back to DÜCKER the claims for defects that DÜCKER assigned to him.
Purchaser claims for damages – regardless of their legal basis for example, delays, defective delivery, breaches of binding obligations or obligations arising from contract negotiations, tortious act shall be excluded, unless mandatory liability exists. For example, this is the case in the event of injury to life, body or health as well as in the event of deliberate acts, gross negligence, or breach of essential contractual obligations, the fulfilment of which first facilitates the due implementation of the contract and upon their compliance the Purchaser may regularly rely, by DÜCKER, their statutory representatives or employees, furthermore in the event of liability pursuant to the Product Liability Act or to the extent that DÜCKER has given an express guarantee (§ 443 German Civil Code) in writing as to the quality of a product or an exercise risk. An alteration of the burden of proof to the disadvantage of the Purchaser does not result from this.
The liability of DÜCKER for gross negligence as well as negligent breaches of essential contractual obligations shall be limited to the foreseeable damage which is typical for this type of contract.
In particular, DÜCKER shall not be liable for damages caused by the improper handling of the subject matter by the Purchaser.
Insofar as the liability pursuant to the preceding provisions is limited, such limitation shall also apply to the personal liability of employees, workers, co-workers, representatives and assistants of DÜCKER.
Furthermore DÜCKER shall also not be liable for the gross negligence of its ordinary employees to the extent this does not amount to a breach of essential contractual obligations within the meaning of Clause
irrespective of any possible liability of DÜCKER for default of its organisation pursuant to Clause 10.
The Purchaser shall be obliged to give notice in writing without delay of all damages and losses for which DÜCKER is to be held answerable.
11. Jurisdiction / Applicable Law / Miscellaneous
Place of performance shall be DÜCKER’s registered office. Place of jurisdiction shall be Düsseldorf, Germany. DÜCKER is entitled to claim against the Purchaser before any other competent court.
The contractual relationship as well as any other possible tortious claims arising thereunder shall be governed entirely by German law excluding the UN Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG).
Any transfers of Purchaser rights and obligations arising under the contract shall require the written consent of DÜCKER.
DÜCKER shall be entitled to use data concerning the exchange of purchased items and payments with the Purchaser in compliance with the respective data protection provisions.
All agreements are to be made in writing (cf. clause 1.4) to the extent that there is no stricter form required by statute for the validity of the provisions. Any amendments or additions to these General Terms and Conditions – including this written form requirement - shall be made in writing. The same shall apply to side letters and supplementary agreements.
Should one or more provisions of these General Terms and Conditions be, or become legally invalid or un-executable, the validity of the remaining provisions of this contract shall not be affected thereby.