Terms and Conditons
Terms and Conditions General terms of sales and delivery of W. Dimer GmbH , Luttinger Str. 68, 79725 Laufenburg/Germany
1.1 Our terms of delivery shall apply exclusively for all deliveries and services. We shall not acknowledge any general terms and conditions of the buyer even if we have not again expressively contradicted the conditions.
1.2 The conditions shall apply to
a) corporations (§ 14 BGB (German Civil Code)
b) legal entities under public law and separate funds under public law.
2. Offer and conclusion of contract
2.1 Any offer is subject to change and shall be valid for 1 month upon submission of the offer.
2.2 Any documents included in the offer (e. g. printings, pictures, drawings, information on weight and measurements etc.) shall only be approximate unless explicitly designated as binding.
2.3 Any orders shall be regarded as accepted only upon our written acknowledgment.
2.4 The scope of delivery shall be defined by our written acknowledgment. Any ancillary agreements and alterations shall require our written consent.
2.5 We reserve unlimited proprietary rights and copyrights to all quotations, drawings and further documents; these shall not be made accessible to third parties. Any drawings and further documents related to quotations shall be returned immediately upon our request if we are not awarded the contract.
2.6 The buyer shall take the sole responsibility for any documents to be provided by him, such as drawings, templates, samples or similar. The buyer shall guarantee that any working drawings presented to us will not interfere with property rights of third parties. We are not obliged to inspect, whether the submission of an offer, due to the working drawings of the buyer may violate the protection rights of third parties in case of the execution of the order. If we are nevertheless made liable, the buyer shall indemnify us.
2.7 The buyer shall bear the production cost for samples (single-unit production) unless otherwise agreed upon in writing. The buyer shall only be entitled to remuneration or relief of this cost in case of committing himself to order larger quantities within the scope of capabilities. This shall not apply to the production release samples.
2.8 The tolerances permitted for our products shall be in compliance with DIN 7715P3.
3.1 In the absence of a particular agreement, the prices as stated shall be valid ex works (EXW, Incoterms 2010) including packaging.
3.2 The price calculation is based on our general price list as valid on the delivery date unless fixed prices are stated in the order confirmation. If the prices as agreed are based on our general price list and the delivery shall not be made before at least four months upon contract conclusion, the prices as stated in the price list valid on the date of delivery shall apply (less a percentage discount as agreed or a fixed discount). We shall reserve the right to adapt our price lists upon equitable estimation at any time.
3.3 The minimum order value shall be € 35.--. Any order values below € 35,-- shall be generally calculated with € 35.--.
3.4 All our prices quoted do not include the statutory value-added tax which shall be added, if applicable, and which is owed by the buyer.
3.5 In case that prices for raw commodities and energy or staff cost increase by more than 5% between the conclusion of the contract and the delivery, we shall be entitled to adapt the prices accordingly and we will prove the corresponding higher cost upon request of the buyer. Conversely, we shall be obliged to reduce our prices accordingly in case of a cost reduction for raw commodities, staff or energy by more than 5% in total from the date of contract conclusion. Section 3.2 shall remain unaffected.
3.6 All our prices are excluding disposal cost and/or DSD charges which shall be borne by the buyer.
4.1 Unless otherwise agreed, payments shall be made immediately net with receipt of invoice without discount free paying agent as stated.
4.2 In the event of delayed payment, the statutory default interest shall be charged. The right to claim further damages caused by delayed payment shall remain unaffected thereby. In case of a payment default with one invoice, any further liabilities for services rendered by us shall be due immediately. In this case we shall be entitled to request prepayment or securities for future services. § 321 BGB (German Civil Code) shall remain otherwise unaffected.
4.3 Settlement of invoice by cheque and/or draft shall only be effected on account of payment and, in the case of drafts, shall require our prior written consent. The buyer shall bear all cost accruing from the payment with drafts and cheques.
4.4 The buyer shall not be entitled to withhold payments or to set them off against any counterclaims that have been disputed by Dimer GmbH and not legally ascertained. This shall not be valid for counterclaims which entail mutuality of obligation with contractual claims.
4.5 Unless authorized in writing, our representatives shall not be entitled to collect payment.
4.6 We shall reserve the right to execute orders only against immediate payment (cash on delivery).
5. Delivery time
5.1 Any periods for deliveries and services shall only be legally binding upon our explicit prior written consent. The delivery period begins with the dispatch of the confirmation of order, however not before the customer has provided the required documentation.
5.2 The delivery period shall be considered fulfilled when the ordered goods are dispatched prior to the expiration or the notice of readiness for shipment has been sent.
5.3 The delivery period shall be extended reasonably in case of measures related to labor disputes, in particular strikes and lockouts, as well as the occurrence of unforeseeable events (force majeure).
6. Transfer of risk and dispatch
6.1 The risk shall be transferred to the buyer with the dispatch of the goods at the latest. This also applies to partial deliveries and for further services rendered by us such as transport cost or customs proceedings.
6.2 In case of a delay of dispatch for reasons caused by the buyer, the risk shall be transferred to the buyer from the day on which the supplier has notified the purchaser of the readiness to dispatch.
6.3 Insurance for the consignment shall be taken out by us upon request and provision of details from the buyer.
6.4 In case of an individual dispatch a tour risk, the buyer shall record the transport damages upon receipt and support us with the preservation of evidence to the forwarding company.
6.5 Partial deliveries shall only be permitted if these are deemed reasonably acceptable for the buyer, in particular if these are usable within the scope of the contractual purpose, the delivery of the remaining ordered goods is guaranteed and no significant additional work or cost will accrue from the partial delivery.
6.6 Excess or short deliveries of the total as agreed shall be permissible provided these are in line with the usual practice in the trade.
6.7 The shipping method shall be made to our best judgment unless agreed otherwise.
6.8 We will not take back any transport packaging. The appropriate disposal of the same shall be within the buyer’s responsibility at his own expense in compliance with the German packaging legislation. Any cost coverage from our part shall require the written consent prior to the dispatch of the goods. Retrospective claims of disposal cost by the buyer upon the dispatch of the goods shall be excluded. This shall also apply to the sales packaging collected from private final consumers.
7.1 The period of limitation for warranty claims is 12 months beginning with the dispatch or – if required - the acceptance of goods. This regulation shall not be valid for any cases of fraudulent intent and for cases according to point 10.4.
7.2 In case of justified and timely complaints we shall reserve the right to either rectification or replacement within a reasonable deadline. In case of failure to render rectification or replacement, the buyer shall be entitled to claim a decrease of remuneration (abatement) or to withdraw from the contract. The buyer shall not have the right to cancel the contract in case of minor defects. Furthermore, the buyer may claim compensation in accordance with point 10. Any further claims for defects shall be excluded.
7.3 We shall be entitled to make the owed subsequent performance conditional to the buyer paying the purchase price due. The buyer, however, shall have the right to retain a part of the purchase price appropriate in relation to the defect.
7.4 If the buyer alters the item delivered or has the same altered by third parties without our consent, he shall bear the additional cost for the correction of defects accruing from the alteration. Our warranty is not applicable if the buyer or any third party modifies the item delivered without our consent and the correction of the defects is made impossible or unreasonably difficult.
7.5 The warranty for defects shall not apply to natural wear, also not for damages from improper or negligent handling, excessive use or incorrect installation upon the transfer of risk.
7.6 Our products shall only be appropriate for the relevant field of application as indicated by us (e. g. pharmacy, food products, medical technology) unless explicitly agreed otherwise. We shall therefore not be liable if the use of our products deviates from the intended purpose of use.
7.7 We shall not be liable for impossibility of delivery or for delays of delivery caused by force majeure (e. g. nature catastrophes, war, uproars) or other events not foreseeable at the time of the contract conclusion (e. g. breakdowns in business operations of any kind, delays in transport, strikes, legitimate lock-outs, shortage of labor, energy or raw commodities, problems with obtaining official authorizations, official provisions or the absence, not orderly or not timely delivery by suppliers) and for which we are not responsible. We shall immediately notify the buyer of such events. If such incidents cause the delivery or service to be considerably delayed or impossible to provide and the situation is not only temporary, we shall be entitled to cancel the contract. In case of temporary impediments the delivery or service periods extend or are shifted according to the length of the delay occurred in addition to an appropriate lead time. If the delay makes the acceptance of the goods or services unreasonable for the buyer, he shall be entitled to withdraw from the contract by immediate written notification to us.
8. Information and recommendation
Any information and recommendation from our part shall not be legally binding and shall be excluded from any warranty unless we have explicitly committed ourselves to ender information and recommendations. The suitability of our product for the buyer’s individual fields of application shall be tested by the same in his own laboratories. Any information and recommendations provided by us shall not constitute a guarantee of specifications and nature of our products.
9. Reservation of title
9.1 We reserve the ownership to the item delivered until all our invoices from the contract have been paid in full. In the event of attachments or interventions by third parties, the buyer shall inform us without delay and in writing.
9.2 The buyer is entitled to re-sell the delivered item in the ordinary course of business, provided he is not in default of payment. Any pledges or transfers of ownership shall not be permitted. For our own security, however, the buyer assigns to us all accounts up to the value of the invoice (incl. VAT) which accrue to it from a resale or any other legal ground (particularly transfer of ownership to the final customer, insurance claim, unauthorized action) against its customers or third parties and this is regardless of whether the item delivered has been resold without or after processing. The buyer shall also retain the right to collect the claim even after the assignment has been made. Our authority to collect the claims ourselves shall remain unaffected hereby. However we shall be obliged not to collect the claims as long as the buyer duly fulfils his payment obligations. In case of an infringement of the contract by the buyer, in particular if he is in default with payment of a claim, we can require the buyer to disclose the assignments and its creditors and to provide the information and documents necessary to collect the account receivable and to notify the creditors of the assignment. In case of a re-sale of the item delivered together with further goods not belonging to us, the buyer’s claim against his customer shall be deemed to have assigned to us in the amount of the delivery price as agreed between us and the buyer.
9.3 If the buyer is in default of payment, point 8.2 shall apply with the proviso that we shall reserve the right to withdraw from the contract even without setting a period of grace.
9.4 Any processing or modification of the goods under retention of title shall always be carried out by the buyer on behalf of us. If the goods subject to the retention of title are processed with other goods which do not belong to us, we shall acquire the co-ownership in the new item in the ratio of the value of the goods subject to the retention of title to the other processed goods at the time of the processing. The objects created by processing shall be subject to the same provisions as the object delivered under retention of title.
9.5 The buyer shall be obliged to take out insurance for the delivered item against theft, breakage, fire, water and other damage during the period of retention and to notify us hereof. If this is not done, the buyer shall be entitled to take out the insurance at the expense of the customer.
9.6 The retention of title and the securities to which we are entitled shall be effective until the complete exemption from contingent liabilities (e. g. in the case of extended payment by cheque or draft) which we have entered into in the customer’s interest.
9.7 We shall be obliged to release the securities to which we are entitled insofar as the value exceeds the accounts receivable to be protected – provided that these have not yet been settled – by more than 20%.
9.8 If the law of the country to which the delivery item has been shipped does not permit a full or a restricted retention of title, we shall reserve similar rights. The buyer shall be obliged to render support with all measures required (e. g. registrations) for the fulfillment of the retention of title or similar rights in lieu of this as well as to contribute to the protection of these rights.
10.1 We shall be and remain the owners of any tools which are particularly required for the execution of the order if these tools have been produced by ourselves or by third parties ordered by us. This shall also apply if part of the tool cost is paid by the buyer, unless agreed otherwise. We shall commit ourselves, however, not to manufacture products for third parties by means of these tools if the tool costs are fully or partially paid. In the event of termination of the collaboration with the buyer, we shall be entitled to scrap these tools without prior notice upon the end of the expected seven-year maximum lifespan of our products.
10.2 The proportional tool costs shall be stated separately in the quotation and order confirmation and shall be due for payment without deduction immediately upon contract conclusion.
11.1 We shall not be liable for the ordinary negligent violation of obligations other than the essential ones specified in the contract. Essential contract obligations are those whose performance shape the contract and whose fulfillment in the first place permits the proper performance of the contract.
11.2 Our liability shall be limited to the predictable and typically occurring damage provided that we are not guilty of having acted intentionally.
11.3 The liability according to the product liability law shall remain unaffected hereupon; This shall also apply to the liability for culpable injury to life, body or health.
11.4 Any damage claims according to the aforementioned points 10.1 – 10.3 shall become time-barred within the statutory periods.
12. Governing law and place of jurisdiction
12.1 The conditions above shall be subject to the German Law; the UN Sales Convention shall not apply.
12.2 For any disputes resulting from the contract, the place of jurisdiction shall be the court responsible for our headquarters. We shall furthermore be entitled to sue at the buyer’s registered office or have all disputes arising from the contract finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC) by one or more arbitrators appointed in accordance with the said rules. Upon request by the buyer, we shall be obliged to exercise this right relating to a particular legal dispute within a period of one week upon receipt of the request by giving notice to the buyer, if the buyer intends to initiate legal proceedings against us.