General Delivery and Payment Terms and Conditions of DST – Diagnostische Systeme & Technologien GmbH
Section 1 – General
(1) All deliveries and services of DST GmbH (hereinafter referred to as “DST”) shall be subject to the following delivery and payment terms and conditions. These regulations shall also apply to the provision of software.
(2) Conflicting terms and conditions of the Buyer are hereby explicitly excluded. Such terms and conditions shall only bind DST if DST has accepted them in writing. This consent requirement shall apply in all cases, for example, also when DST executes delivery to the Buyer unconditionally having regard to the General Terms and Conditions of the Buyer.
(3) By placing an order and accepting of goods delivered by DST, the Buyer agrees to the Terms and Conditions of DST.
(4) To be valid, legally relevant declarations and notifications submitted to DST by the Buyer after conclusion of the contract (e.g. setting of deadlines, notification of defects, declaration of withdrawal or reduction), require the written form.
Section 2 – Quotation and delivery
(1) All quotations provided by DST shall always be subject to change and non-binding, unless they are expressly identified as binding or contain a specific term of acceptance; the written order conformations from DST shall be the basis for the contract and the definitive element in the scope of delivery. This also applies if the Buyer has requested submission of a definitive quotation.
(2) Orders placed by the Buyer shall be binding on the Buyer. Acceptance can be confirmed either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.
(3) Obvious mistakes, printing, computational, spelling and calculation errors are shall not be binding on DST and shall not entitle the Buyer to damages.
(4) Deliveries shall be carried out by EX Works Güterbahnhofstraße 16, 19059 Schwerin (Deutschland) Incoterms 2010. In the event of a chain transaction (Section 3(6)(5) UStG [German Turnover Tax Act]), FCA Güterbahnhofstraße 16, 19059 Schwerin (Deutschland) Incoterms 2010 shall apply.
Section 3 – Prices and Payment
(1) Unless otherwise agreed, all prices shall be quoted in EURO, ex works plus packaging, statutory sales tax at the time of delivery, in the case of export deliveries, customs duties and fees and other official taxes.
(2) In the event of sale involving the carriage of goods (Section 5(1)), the Buyer shall bear the transport costs from the warehouse and, where appropriate, the costs of transport insurance requested by the Buyer. DST shall not redeem transport packaging and all other packaging in accordance with the packaging regulation; with the exception of pallets; they become the property of the Buyer.
(3) Unless otherwise agreed, the purchase price shall become due and payable within 14 days from the invoice date and delivery or acceptance of the goods.
Section 4 – Delivery time, late delivery
(1) The delivery time shall be agreed individually or specified by DST during order acceptance.
(2) Insofar as DST is unable to comply with binding delivery times for reasons for which DST is not responsible (non-availability of the service), DST shall immediately inform the Buyer and, at the same time, notify the Buyer of the expected new delivery time. If the service is also unavailable within the new delivery time, DST shall be entitled to completely or partially withdraw from the Contract; DST shall immediately reimburse the Buyer for any return service already provided. In this context, a case of non-availability of service shall particularly include non-timely self-delivery by suppliers of DST, if DST has concluded a congruent covering transaction, neither DST nor its suppliers shall be at fault and DST shall not be responsible for procurement in individual cases.
(3) The occurrence of a delay in delivery by DST shall be determined in accordance with Section 286 BGB. However, a reminder letter from the purchaser shall be required in all cases. Should DST default in delivery, the Buyer may demand a lump-sum compensation for any damage caused by the delay. The lump sum damage compensation for each completed calendar week of delay shall amount to 0.5% of the net price (delivery value), up to a maximum, however, of 5% of the delivery value of the goods delivered late. DST reserves the right to provide evidence that the Buyer has suffered no damages or only significantly lower damages than the aforementioned lump sum.
(4) The rights of the Buyer in accordance with Section 9 and the statutory rights of DST, particularly in the case of an exclusion of the service obligation (e.g. due to the impossibility or unreasonableness of the service and/or the subsequent performance), shall remain unaffected.
Section 5 – Delivery, transfer of risk
(1) Delivery is ex works, which is also the place of performance. At the request and expense of the Buyer, the goods shall be shipped to a different destination (mail order purchase). In this case, DST shall itself determine the type of shipment (in particular, transport companies, dispatch route, packaging).
(2) The risk of accidental loss and accidental deterioration of the goods shall transfer to the Buyer at the latest at the time of handover. However, in the case of sales, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay in delivery of the goods, shall transfers to the shipper or to the person otherwise responsible for performing dispatch. This shall also apply if DST, in an individual case, assumes the shipping costs. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. The legal provisions laid down in Section 640 BGB shall also otherwise apply to an agreed acceptance, Handover or acceptance shall amount to the same thing, if the Buyer is in default of acceptance.
Section 6 – Retention of title
(1) DST shall retain the title to the sold goods until the payment in full of all present and future claims of DST in respect of the purchase agreement and any ongoing business relationship (secured receivables).
(2) The goods subject to retention of title may not be used against payment in full of the secured receivables and shall be neither pledged to third parties nor assigned by way of security. The Buyer shall notify DST immediately in writing, if and to what extent the third party has access to goods belonging to DST.
(3) In the case of breach of contract by the Buyer, in particular in the event of non-payment of the purchase price due, pursuant to section 323 BGB, DST shall be entitled to withdraw from the contract and reclaim the goods on the basis of retention of title. If the Buyer does not pay the purchase price, DST may only enforce these rights if DST has previously unsuccessfully set the Buyer a reasonable deadline for payment or if such a deadline is unnecessary according to the applicable legal provisions.
(4) The Buyer shall be entitled to resell and/or reprocess, in the ordinary course of business, the goods subject to retention of title. In this case, the following provisions shall additionally apply.
(a) The retention of title shall extend to the full value of any products that arise from the processing, mixing or combining the goods by DST, where DST is the manufacturer. If title is retained in the event of processing, mixing or combining with goods of third parties, DST shall then acquire co-ownership in proportion to the invoice value of the processed, mixed or combined goods. Moreover, the same shall apply to the resulting product as to the goods delivered under the retention of title.
(b) The Buyer shall assign to DST as security, claims arising in respect of third parties from resale of the goods or the product, in full or in the amount of any co-ownership share of DST, in accordance with the paragraph above. DST shall accept the assignment. The obligations of the Buyer specified in paragraph 2 shall also apply in respect of the assigned claims.
(c) The Buyer shall remain authorised to collect the claim alongside DST. DST shall undertake not to collect the claim as long as the Buyer fulfils its payment obligations vis-à-vis DST, is not in default of payment, no application for the opening of insolvency proceedings has been made and there are no other shortcomings in its performance. If this is the case, DST may demand that the Buyer discloses the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(d) If the realisable value of the securities exceeds the claims of DST by more than 10%, DST shall, at the request of the Buyer, release securities at the discretion of DST.
Section 7 – Software use
For a fee, the Buyer shall receive a non-exclusive, non-transferable and not time-limited right of use to software of any kind to which DST retains title and or other rights, or to a specific hardware product to be determined on a case-by-case basis. The right of use shall also extend to the documentation accompanying the Software. DST shall remain owner of the copyright and all other intellectual property rights. The right to make reproductions shall only be extended for the purpose of data protection. Copyright notices must not be removed.
Section 8 – Claims for defects
(1) The Buyer’s rights regarding material defects and defects of title (including incorrect and incomplete delivery as well as improper assembly or defective assembly instructions) shall be governed by Sections 434 et seq. BGB, unless otherwise specified below. In all cases, the special legal provisions for the end delivery of goods to a consumer shall remain unchanged (supplier regress pursuant to Sections 478, 479 BGB).
(2) The basis for the liability of DST for defects shall be, above all, the stipulated condition of the goods. Any agreement on the condition of goods shall be based on product descriptions described as such (including those of the manufacturer), which are conveyed to the Buyer prior to its order or which were included in the Contract in the same way as these terms and conditions. Commercial deviations and deviations resulting from legal provisions or technical improvements and the replacement of components with equivalent parts, shall be permitted insofar as they do not impair usability for the contractually intended purpose.
(3) The analysis systems manufactured by AESKU are only designed for use with analysis products of DST – Diagnostische Systeme & Technologien GmbH and Aesku.Diagnostics GmbH & Co. KG. No warranty shall be provided in respect of compatibility with analysis products manufactured by third parties.
(4) Insofar as the condition has not been agreed, above and beyond the regulation laid down in Section 8(3), an evaluation must be carried out to determine whether, according to the applicable legal regulation, a defect is present or not (Section 434(1)(2) and (3) BGB). However, DST shall assume no liability for public statements of the manufacturer or other third parties (e.g. advertising statements).
(5) The claims of the Buyer for defects shall require that it has fulfilled its statutory examination and notification obligations (Section 377 HGB). If a defect is identified during the examination or at a later time, DST must be immediately notified thereof in writing. The notification shall be deemed to have been given immediately if it is provided within two weeks and the timely dispatch of the notification is sufficient to observe the deadline. Regardless of this investigation and notification obligation, the Buyer must provide notification of obvious defects (including incorrect or incomplete delivery) within two weeks of delivery, in writing, and the timely dispatch of the notification shall also be sufficient to observe the deadline in this case. If the Buyer failed to properly investigate and/or identify defects, liability of DST for the non-identified defects shall be excluded.
(6) If the delivered goods are defective, the Buyer may, as retrospective performance and at its own discretion, first rectify the defect (improvement) or deliver defect-free goods (replacement). If the Buyer does not clarify which of the above rights it is selecting, DST may establish a reasonable deadline. If the Buyer does not choose within the deadline, the right to choose shall transfer to DST on expiry of the deadline.
(7) DST shall be entitled to make retrospective remedial performance conditional on the Buyer paying the due purchase price. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.
(8) The Buyer must give DST the necessary time and opportunity for retrospective remedial performance, in particular for the handover of the rejected goods for testing purposes. In the case of a replacement delivery, the Buyer must return to DST the defective goods pursuant to Sections 439(5), 346 – 348 BGB. Retrospective performance shall not include either removal of the defective item (single product components) or replacement, if DST was not originally obliged to do so.
(9) DST shall bear the expenses necessary for the purpose of testing and retrospective performance, in particular transport, travel, labour and material costs (not: collection and usage costs), if, in fact, a defect exists. However, if a defect rectification request from the Buyer is unjustified, DST may request that the costs arising are borne by the Buyer.
(10) In urgent cases, e.g. in the event of danger to operational safety or to prevent disproportionate damage, the Buyer shall have the right to rectify the defect itself and demand compensation for objectively necessary expenses from DST. DST must be notified, immediately or if possible in advance, of such self-rectification. The self-rectification right shall not exist if DST would be entitled to refuse appropriate retrospective performance in accordance with applicable legal provisions.
(11) If retrospective performance fails or a reasonable deadline set by the Buyer for retrospective performance has expired without success, or if, in accordance with the applicable legal provisions, it is deemed unnecessary, the Buyer may withdraw from the purchase contract or reduce the purchase price. However, in the case of an insignificant defect, there shall be no right of withdrawal.
(12) Claims of the Buyer for damages or reimbursement of expenses incurred unnecessarily shall only exist in accordance with section 9 and shall otherwise be excluded.
Section 9 – Liability
(1) DST shall liable for damages – irrespective of the legal grounds – in the case of wilful intent and gross negligence. In the case of simple negligence, DST shall only be liable
(a) for damages arising from injury to life, limb or health,
(b) for damages from the breach of an essential contractual obligation (obligation whose fulfilment enables the proper implementation of the contract in the first place and on whose compliance the contracting party relies and may rely on a regular basis); however, in this case, the liability of DST for the rectification of foreseeable, typically occurring damage, shall be limited.
(2) The liability restrictions set out in Section 1 shall not apply, insofar as DST maliciously concealed a defect or has assumed a warranty for the quality of the goods. The same shall apply to claims of the Buyer according to the German Product Liability Act.
(3) In the event of breach of obligation unrelated to a defect, the Buyer may only withdraw from or terminate the contract, if DST is responsible for the breach of obligation. A free right of termination of the Buyer shall be excluded. The statutory requirements and legal consequences shall also apply.
Section 10 – Limitation
(1) By way of derogation from Section 438(1)(3) BGB, the general period of limitation for claims arising from material and legal defects shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall start with the acceptance.
(2) The above-mentioned limitation period shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect in the goods, unless the application of the regular statutory limitation period pursuant to Sections 195, 199 BGB would, in individual cases. result in a shorter limitation period. The limitation periods laid down in the German Product Liability Act shall remain, in any case, unaffected. Otherwise, the limitation periods in accordance with Sections 195 et seq. BGB shall exclusively apply to claims for damages of the Buyer in accordance with Section 9.
Section 11 – Place of Jurisdiction
If the Buyer is a merchant, a legal person under public law or a special asset under public law, with its residence or business head office outside the Federal Republic of Germany, the place of jurisdiction for all disputes arising from the contractual relationship shall be Schwerin. DST shall also be entitled to bring an action at the Buyer’s business head office.
Section 12 – Applicable Law
The relationship between DST and the Buyer shall be subject exclusively to the law of the Federal Republic of Germany.
Section 13 – Export restrictions, sanctions
(1) Deliveries and services shall be under the condition that fulfilment is not restricted by any national or international regulation, particularly export control regulations and embargoes or any other sanction. The buyer is required to provide all information and documentation needed for export. Delays caused by export licensing procedures shall suspend any deadline or delivery time and shall not result in any default.
(2) If any required license will not be granted, the contract shall be considered void with respect to the relevant items. Claims for damages including consequential damages and loss of profit resulting therefrom and/or due to delays or the exceeding of deadlines in connection with licence procedures are excluded, except in case of gross negligence and/or wilful misconduct.