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Dastex Group GmbHDastex Group GmbH

General terms and conditions

Dastex Group GmbH 
 

1. SCOPE

  1. All deliveries, services and offers of Dastex Group GmbH (Dastex) are made exclusively on the basis of these General Terms and Conditions. The General Terms and Conditions shall only apply if the other party to the contract (hereinafter referred to as Purchaser) is a trader (Unternehmer, sec. 14 German Civil Code (Bürgerliches Gesetzbuch – BGB)), a legal entity under public law or a special fund under public law.
  2. The General Terms and Conditions are an integral part of all contracts concluded by Dastex with its Purchasers for the deliveries or services offered by Dastex. They shall also apply to all future deliveries, services or offers to the Purchaser, even if they are not separately agreed again.
  3. These terms and conditions apply exclusively. We do not recognize any deviating, conflicting or supplementary general terms and conditions of the Purchaser. Even if Dastex refers to a document containing, referring to or not objecting to terms and conditions of the Purchaser or a third party, this shall not constitute an agreement to the application of those terms and conditions. This shall also apply if Dastex carries out the delivery to the Purchaser without reservation in the knowledge of terms and conditions of the Purchaser which are contrary to or deviate from these terms and conditions.
  4. Legally relevant declarations and notifications by the Purchaser in relation to the contract (e.g. setting of deadlines, notification of defects, withdrawal or abatement) must be made in writing (sec. 126 BGB) or in text form (sec. 126b BGB). Statutory formal requirements and further evidence remain unaffected.
     

2. CONCLUSION OF CONTRACT

  1. All offers by Dastex are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Dastex may accept orders or contracts within 14 days of receipt. 
  2. The contract concluded in writing (sec. 126 BGB) or in text form (sec. 126b BGB), including the General Terms and Conditions, shall solely be decisive for the legal relationship between Dastex and the Purchaser. Verbal commitments made by Dastex prior to the conclusion of the contract are not legally binding and verbal agreements between the parties shall be replaced by the written contract unless otherwise expressly agreed between the contracting parties in each case in text form (sec. 126b BGB).
  3. Additions and amendments to the agreements made, including these General Terms and Conditions of Delivery, shall be made in writing (sec. 126 BGB) or text form (sec. 126b BGB). This also applies to this section 2.3.
     

3. CONFIDENTIALITY

  1. Dastex reserves ownership or copyright of all offers and cost estimates submitted by it as well as drawings, illustrations, calculations, catalogues, tools and other documents and resources made available to the Purchaser. This also applies to such written documents which are marked as confidential. The Purchaser may not make these items available to third parties, either as such or with regard to content, disclose them, use them himself or through third parties or reproduce them without the express consent of Dastex. At the request of Dastex, the Purchaser shall return these items in full to Dastex and destroy any copies made if they are no longer required in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. This does not apply to the storage of electronically provided data for the purpose of normal data backup.
  2. In the event of a breach of the duty of confidentiality, Dastex reserves the right to claim damages and to initiate criminal proceedings.
     

PRICES AND PAYMENT

  1. The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be charged separately. Unless otherwise agreed in individual cases, the current prices of Dastex at the time of conclusion of the contract shall apply. The prices are in Euro ex works in Muggensturm plus packaging, the statutory value added tax, customs duties for export deliveries as well as fees and other public charges.
  2. Any deduction of a discount must be agreed separately and in writing (sec. 126 BGB) or in text form (sec. 126b BGB).
  3. The purchase price shall be paid within 30 days unless otherwise agreed in writing (sec. 126 BGB) or in text form (sec. 126b BGB) or unless otherwise stated in the order confirmation. The date of receipt by Dastex shall be decisive for the date of payment. If the Purchaser fails to make payment when due, interest shall be charged on the outstanding amounts from the due date at the statutory default interest rate applicable at the time; this shall not affect the right to claim higher interest and damages for default. With respect to merchants, the claim to the commercial due date interest rate (sec. 353 German Commercial Code (Handelsgesetzbuch – HGB)) shall remain unaffected.
  4. Offsetting against counterclaims of the Purchaser or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established. In the event of defects in the delivery, the rights of the Purchaser shall remain unaffected.
  5. Dastex shall be entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, it becomes aware of circumstances which are likely to substantially reduce the creditworthiness of the Purchaser and which pose a risk to the payment of Dastex' outstanding claims by the Purchaser from the respective contractual relationship.
     

5. DELIVERY

  1. Only at the Purchaser's request, Dastex shall ship the purchased goods to the place designated by the Purchaser. Unless otherwise agreed, Dastex shall be entitled to determine the mode of shipment.
  2. The start of the delivery period stated by Dastex presupposes the clarification of all technical issues and the receipt of all information required for the fulfilment of the contract. Compliance with the delivery obligation further presupposes the timely and proper fulfilment of the Purchaser's obligation. Dastex reserves the defense of non-performance of contract.
  3. Deadlines and dates for deliveries and services indicated by Dastex are approximations, unless a firm deadline or date has been expressly promised or agreed on. If shipment has been agreed on, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport, unless expressly stated otherwise.
  4. Unless otherwise agreed or unless otherwise stated in the order confirmation, delivery shall be ex works from the Dastex warehouse.
  5. Packaging materials, in particular for transport, are not taken back, with the exception of EU pallets. The Purchaser must dispose of packaging materials at his own expense.
  6. The consignment will only be insured by Dastex against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Purchaser and at his expense.
     

6. TRANSFER OF RISK, PLACE OF PERFORMANCE

  1. Unless otherwise stipulated, the place of performance for all obligations arising from the contractual relationship is the place of the registered office of Dastex.
  2. The risk of accidental loss and accidental deterioration of the goods shall pass to the Purchaser upon handover at the latest. However, in the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the Purchaser upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment.
  3. If the Purchaser is in default of acceptance, fails to cooperate or if the delivery is delayed for other reasons for which the Purchaser is responsible, Dastex shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, a lump-sum compensation of 0.5% of the net purchase price of the goods per calendar week shall be charged, starting with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for dispatch. The maximum lump-sum compensation is 5% of the net purchase price of the goods. The Purchaser is entitled to prove that no damage or reduction in value has occurred or that the damage or reduction in value is lower.
  4. The proof of higher damages and legal claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The Purchaser shall be entitled to prove that Dastex has not incurred any damages or only significantly lower damages than the lump sum stipulated in section 6.3.
     

7. WARRANTY FOR DEFECTS

  1. The statutory provisions shall apply to the rights of the Purchaser in the event of material defects and defects of title, unless otherwise stipulated below. In all cases, the statutory provisions on the sale of consumer goods (secs. 474 et seqq. BGB) and the rights of the Purchaser arising from separately issued guarantees shall remain unaffected.
  2. Liability for defects of which the Purchaser is aware at the time of conclusion of the contract or is not aware due to gross negligence (sec. 442 BGB) is excluded, unless Dastex has fraudulently concealed the defect or has given a guarantee for the quality of the goods.
  3. The delivered goods shall be inspected carefully immediately after delivery to the Purchaser or to the third party designated by the Purchaser (secs. 377, 381 HGB). With regard to obvious defects or other defects which would have been recognizable in the course of an immediate, careful inspection, they shall be deemed to have been approved by the Purchaser if Dastex does not receive a notice of defect in writing or in text form (sec. 126b BGB) within five (5) working days after delivery. With regard to other defects, the delivered items shall be deemed to have been approved by the Purchaser if Dastex does not receive the notice of defect within five (5) working days after the time the defect became apparent; if the defect was already apparent at an earlier point in time during normal use, this earlier point in time shall, however, be decisive for the commencement of the notice period.
  4. Insofar as there is a defect in the purchased goods, Dastex shall be entitled to subsequent performance in the form of rectification of the defect or delivery of a new item free of defects, at its own discretion. The Purchaser shall give Dastex the time and opportunity required for subsequent performance, in particular to hand over the objected goods for inspection purposes. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the remedy or replacement delivery, the Purchaser may withdraw from the contract or abate the purchase price appropriately.
  5. Dastex may make subsequent performance dependent on the Purchaser paying the outstanding purchase price. However, the Purchaser shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
     

8. LIABILITY

  1. Insofar as nothing to the contrary is stipulated in these General Terms and Conditions including the following provisions, Dastex shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
  2. Dastex shall be liable for damages within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, Dastex shall only be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), for
    (a) damages resulting from injury to life, body or health,
    (b) for damages arising from the breach of a material contractual obligation (obligation which must be fulfilled in order to enable the proper performance of the contract and on the fulfilment of which the contractual partner regularly relies and may rely); in this case, however, liability shall be limited to compensation of foreseeable, typically occurring damages.
  3. The limitations of liability resulting from section 8.2 shall also apply to third parties as well as to breaches of duty by persons (also in their favour) whose fault Dastex is responsible for according to statutory provisions. 
  4. The limitations of liability resulting from section 8.2 do not apply insofar as a defect was fraudulently concealed or a guarantee for the quality of the goods was assumed and for claims of the Purchaser under the Act on Liability for Defective Products (Produkthaftungsgesetz).
  5. In the event of liability for simple negligence, Dastex' liability to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to the foreseeable, typically occurring damage even if this involves a breach of essential contractual obligations.
     

9. RETENTION OF TITLE 

  1. The goods delivered by Dastex to the Purchaser shall remain the property of Dastex until full payment of all present and future secured claims arising from the contract and the existing delivery relationship. The goods as well as the goods covered by the retention of title taking their place according to the following provisions shall hereinafter be referred to as "goods subject to retention of title".
  2. The Purchaser is entitled to process and sell the goods subject to retention of title in the ordinary course of business until the event of realization (section 9.6). Pledges and transfers by way of security are not permitted. 
  3. If the reserved goods are processed by the Purchaser, it is agreed that the processing shall be carried out in the name and for the account of Dastex as manufacturer and that Dastex shall acquire direct ownership or - if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods - co-ownership (Bruchteilseigentum) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership occurs for Dastex, the Purchaser shall already now transfer his future ownership or - in the above-mentioned ratio - co-ownership of the newly created item to Dastex as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the items is to be regarded as the main item, so that Dastex or the Purchaser acquires sole ownership, the party to whom the main item belongs shall transfer to the other party pro rata co-ownership of the uniform item in the ratio stated in sentence 1.
  4. In the event of resale of the goods subject to retention of title, the Purchaser hereby assigns to Dastex by way of security the resulting claim against the Purchaser - in the event of co-ownership of Dastex in the goods subject to retention of title, in proportion to the co-ownership share. The same applies to other claims which take the place of the goods subject to retention of title or otherwise arise with regard to the reserved goods. Dastex revocably authorizes the Purchaser to collect the claims assigned to Dastex in his own name. Dastex may only revoke this collection authorization in the event of realization (section 9.6).
  5. If a third party seizes the goods subject to retention of title, in particular by way of seizure, the Purchaser shall immediately inform them of Dastex' ownership and notify Dastex thereof in order to enable Dastex to enforce its ownership rights. If the third party is not able to reimburse Dastex for the judicial or extrajudicial costs incurred in this connection, the Purchaser shall be liable to Dastex.
  6. If Dastex withdraws from the contract in case of breach of contract by the Purchaser - in particular due to default of payment - (case of realization), Dastex shall be entitled to demand the return of the reserved goods. The demand for return does not entail the declaration of withdrawal, unless this is expressly declared.
  7. The Purchaser is obligated to treat the object of sale with care; in particular, he is obligated to insure it adequately at replacement value against fire, water and theft damage at his own expense. If maintenance and inspection work become necessary, the Purchaser must carry it out in good time at his own expense.
  8. Dastex shall release the goods subject to retention of title as well as the items or claims replacing them insofar as their value exceeds the amount of the secured claims by more than 50%. The selection of the items to be released thereafter is incumbent on Dastex.
     

10. LIMITATION PERIOD

  1. Notwithstanding sec. 438 para. 1 no. 3 BGB, the general limitation period for claims for defects, except in the case of liability due to intent, shall be one year from the transfer of risk. Otherwise, the statutory limitation period shall remain unaffected.
  2. The limitation periods of the law on sales also apply to contractual and non-contractual claims for damages of the Purchaser based on a defect of the goods, unless the application of the regular statutory limitation period (secs. 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages by the Purchaser pursuant tosection 8.2 sentence 1 and 8.2(a) as well as pursuant to the Liability for Defective Products (Produkthaftungsgesetz) shall become time-barred exclusively in accordance with the statutory limitation periods.
     

11. PLACE OF JURISDICTION AND CHOICE OF LAW 

  1. The place of jurisdiction for any disputes arising from the business relationship between Dastex and the Purchaser shall be the place of the registered office of Dastex. Dastex shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation or at the general place of jurisdiction of the Purchaser. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
  2. The relationship between Dastex and the Purchaser shall be governed by the law of the Federal Republic of Germany with the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
     

12. SEVERABILITY

Should individual provisions of the contract be invalid or unenforceable, prove to be incomplete or become invalid or unenforceable after conclusion of the contract, the validity of the rest of the contract shall remain unaffected. Insofar as the contract or these General Terms and Conditions contain gaps or individual provisions are ineffective or unenforceable, those legally effective provisions shall be deemed agreed to fill these gaps which the parties would have agreed on in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions if they had been aware of the gap.