General Terms and Conditions (GTC)
General Conditions for Deliveries and Services of DCA Deckert Anlagenbau GmbH, Lüneburg
Status: April 2024
1. Scope
1.1 These General Terms and Conditions of Sale (GTC) apply to all our business relationships with our customers (“buyers”). The General Terms and Conditions of Sale apply only if the buyer is an entrepreneur (§ 14 BGB), a legal entity under public law, or a special fund under public law as per § 310 paragraph 1 BGB.
1.2 Our General Terms and Conditions of Sale apply exclusively. Deviating, conflicting, or supplementary General Terms and Conditions of the buyer only become part of the contract if we have expressly agreed to their applicability. This requirement for consent also applies if the buyer refers to their GTC when placing an order and we do not explicitly object to them.
1.3 These General Terms and Conditions of Sale apply to contracts for the sale and/or delivery of movable items (“goods”). It is irrelevant whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the General Terms and Conditions of Sale in the version valid at the time of the buyer’s order or as last notified to him in text form shall also apply as a framework agreement for similar future contracts without requiring us to reference them again in each individual case (Note: as a precaution, the General Terms and Conditions of Sale should be attached to the order confirmation in any case).
1.4 Individually made agreements with the buyer (including side agreements, additions, and amendments) and specifications in our order confirmation take precedence over these General Terms and Conditions of Sale. Subject to evidence to the contrary, a written contract or our written confirmation is decisive for the content of such agreements.
1.5 Legally significant declarations and notifications by the buyer regarding the contract (e.g., notices of defects, setting of deadlines, withdrawal or reduction) must be made in writing, i.e., in written and text form (e.g., letter, email, fax). Further statutory formal requirements and additional proof (if necessary, in case of doubt about the legitimacy of the person making the declaration) remain unaffected.
1.6 If references to the validity of statutory provisions are made, it should be noted that these are merely of clarifying nature. The statutory provisions apply even without such clarification, insofar as they are not modified or excluded by these General Terms and Conditions of Sale.
2. Offer and Contract Conclusion
2.1 Our offers are non-binding and without obligation. This also applies if we have provided the buyer with catalogs, technical documentation (e.g., drawings, plans, calculations, references to DIN standards), and other product descriptions or documents (even in electronic form). We retain ownership and copyright rights to all documents provided to the buyer in connection with the order. These documents must not be made accessible to third parties unless we give our express written consent to the buyer for such action.
2.2 When ordering goods, the buyer makes a non-binding contractual offer per § 145 BGB. Unless otherwise stated in the order, we are entitled to accept this contractual offer within two weeks of its receipt by us.
2.3 Acceptance of the buyer’s contractual offer can be declared either in writing (e.g., by order confirmation) or by delivery of the goods to the buyer. If we, as the seller, do not accept the buyer’s offer within the period specified in clause 2.2, documents provided to the buyer must be returned to us promptly.
3. Prices and Payment Terms
3.1 Unless otherwise agreed in writing in individual cases, our prices valid at the time of contract conclusion apply ex warehouse, plus statutory value-added tax. Packaging costs will be billed separately. If no fixed price agreement was made, reasonable price changes due to changes in labor, material, and distribution costs are reserved for deliveries 3 months or later after contract conclusion.
3.2 In the case of a sale involving the carriage of goods, the buyer must bear the transport costs from the warehouse and the costs of any transport insurance desired by the buyer. The buyer must bear any customs duties, fees, taxes, and other public charges.
3.3 Payment of the purchase price must be made exclusively to one of the accounts specified on the invoice. The deduction of discounts is only permissible by special written agreement.
3.4 Unless otherwise agreed, the purchase price is due and payable within fourteen days from invoicing and delivery or acceptance of the goods. However, we are entitled at any time, even within an ongoing business relationship, to make a delivery in whole or in part only against prepayment. We declare such a reservation at the latest with the order confirmation.
3.5 The buyer is in default if the above payment period expires. During the default, the purchase price is to be charged interest at the applicable statutory default interest rate according to § 288 paragraph 2 BGB, amounting to eight percentage points above the applicable base rate. We reserve the right to claim further default damages. Our claim to commercial maturity interest according to § 353 HGB remains unaffected for merchants.
3.6 If, after conclusion of the contract, it becomes apparent that our claim to payment of the purchase price is jeopardized due to the buyer’s lack of performance capability (e.g., by filing for insolvency), we are entitled to refuse performance according to statutory regulations and, if necessary, after setting a deadline, to withdraw from the contract (§ 321 BGB). For contracts in which the manufacture of non-standard items (customized production) is owed, we can immediately declare withdrawal. The statutory provisions regarding the dispensability of setting a deadline remain unaffected in this respect.
4. Retention of Rights
The buyer is entitled to rights of set-off or retention only if his claim has been legally determined or is undisputed, and his counterclaim is based on the same contractual relationship. If defects occur in the delivery, the buyer’s counter-rights, particularly according to clause 8.6 sentence 2 of these General Terms and Conditions of Sale, remain unaffected.
5. Delivery Period and Delay in Delivery
5.1 The delivery period is individually agreed or stated by us upon acceptance of the order.
5.2 If we cannot meet binding delivery periods for reasons beyond our control, we must inform the buyer of this situation immediately and simultaneously communicate the likely new delivery period. If the delayed delivery is due to unavailability of service and cannot be completed within the new delivery period, we are entitled to withdraw from the contract wholly or partially; any consideration already provided by the buyer (in the form of payment) will be returned without delay. Unavailability of service may occur, for example, if timely self-supply by our supplier did not occur, if a congruent hedging transaction was concluded, in the case of other disruptions in the supply chain (e.g., due to force majeure), or if we are not obligated to procure in the individual case.
5.3 Whether there is a delay in delivery by us as the seller is determined by the statutory provisions. However, the prerequisite for our delivery delay as a seller is a reminder from the buyer. If there is a delay in delivery, the buyer can claim compensation for his delay damage. The compensation amounts to 0.5% of the net price per completed calendar week of delay (value of delivery) but not more than 5% of the delivery value of the delayed goods. We reserve the right to prove that the buyer has suffered no damage or only lesser damage than the aforementioned lump sum.
5.4 The buyer’s rights according to clause 9 of these General Terms and Conditions of Sale and our legally standardized rights, particularly in the event of an exclusion of the obligation to perform (e.g., due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.
6. Delivery, Transfer of Risk, Acceptance, Default of Acceptance
6.1 Delivery is ex warehouse. The warehouse is also the place of fulfillment for delivery and any subsequent performance. If the buyer requests the goods to be shipped to another destination (sale involving the carriage of goods), he must bear the costs for dispatch. If no contractual agreement is made, we can determine the mode of dispatch (packaging, shipping route, transport company).
6.2 With the handover of the goods to the buyer, the risk of accidental loss and accidental deterioration of the goods transfers to the buyer. In the case of a sale involving the carriage of goods, the risk of accidental loss, accidental deterioration of the goods, and the risk of delay already pass on to the transport company or the carrier upon dispatch of the goods. In cases involving contractual agreement of acceptance of the goods, this acceptance is decisive for the transfer of risk. Further statutory provisions of the law on contracts for works and services remain unaffected. Handover or acceptance of the goods is equated if the buyer is in default of acceptance.
6.3 If the buyer is in default of acceptance or if our delivery is delayed for other reasons for which the buyer is responsible, we are entitled to compensation for the resulting damages, including additional expenses (e.g., storage costs).
7. Retention of Title
7.1 We retain ownership of the delivered goods until all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been fully settled.
7.2 Until full payment of the secured claims has been received, goods subject to retention of title may neither be pledged to third parties nor assigned as security. The buyer must notify us immediately in writing if an application to open insolvency proceedings is filed or if third parties (e.g., attachments) access the goods owned by us. If the third party cannot reimburse us for the court and out-of-court costs of a lawsuit according to § 771 ZPO, the buyer is liable for the loss we incurred.
7.3 In the event of contractual breaches by the buyer, particularly in the case of non-payment of the due purchase price, we are entitled to withdraw from the contract or/and demand the goods based on the retention of title according to statutory regulations. The demand for surrender does not simultaneously constitute a declaration of withdrawal; rather, we are entitled only to demand the return of the goods and reserve the right to withdraw. If the buyer fails to pay the due purchase price, we must set an unsuccessful reasonable payment deadline before asserting these rights unless such a deadline is dispensable under statutory provisions.
7.4 Until revoked according to clause 7.4.c, the buyer is authorized to resell and/or process goods subject to retention of title in the ordinary course of business. In this case, the following provisions apply in addition:
a) The products resulting from combining, mixing, or processing our goods are subject to retention of title at their full value, with us deemed to be the manufacturer. If, when integrating, mixing or processing with third-party goods, their right to ownership continues, we acquire co-ownership in the ratio of the invoice values of the connected, mixed, or processed goods. The same applies to the resulting product as to the goods delivered under retention of title. The buyer also assigns such claims to us for security purposes arising from combining the reserved goods with a property against a third party. We accept the assignment in this respect.
b) The buyer assigns to us all claims arising from the resale of the goods or the product resulting in total or to the extent of any joint ownership share of ours according to clause 7.4.a for security already at this point in time. We accept this assignment. The obligations of the buyer listed under clause 7.2 also apply in respect of the assigned claims.
c) The buyer remains authorized to collect the claim alongside us. As long as the buyer meets their payment obligations to us, there is no deficiency in the buyer’s performance capability, and we do not assert the retention of title by exercising a right according to clause 7.3, we undertake not to collect the claim. If we assert a right according to clause 7.3, we can demand from the buyer the announcement of the assigned claims and their debtors, the provision of all necessary information for collection, the handover of the related documents, and the notification of the assignment to the debtors (third parties). We are further entitled to revoke the buyer’s authorization to resale as well as their authorization to process goods subject to retention of title.
d) If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the buyer.
7.5 The buyer is obliged to treat the purchased item carefully as long as ownership has not yet passed to him. In particular, they are obliged to insure them at their expense against theft, fire, and water damage at the new value (Note: only permissible when selling high-value goods). If maintenance and inspection work must be carried out, the buyer must carry it at his expense promptly.
8. Claims for Defects by the Buyer
8.1 For the rights of the buyer in case of defects of quality and title (including incorrect and short delivery as well as improper assembly/installation or defective instructions), the statutory provisions apply unless otherwise stipulated below. The statutory provisions on consumer goods purchases (§§ 474 ff. BGB) and buyers’ rights arising from separately granted guarantees, particularly by the manufacturer, remain unaffected.
8.2 Agreements made with the buyer regarding the nature and intended use of the goods (including accessories and instructions) generally form the basis of our liability for defects in the context of warranty. A specification agreement includes all product descriptions and manufacturer’s information that are the subject of the individual contract or were publicly announced by us (particularly in catalogs or on our internet homepage) at the time of contract conclusion. If no specification has been agreed upon, it is to be assessed under the provision of § 434 paragraph 3 BGB whether a defect exists. Public statements by the manufacturer within the scope of advertising or on the product label take precedence over statements by other third parties.
8.3 For goods with digital elements or other digital content, it should be noted that we are only obliged to provide and update the digital content to the extent that this is expressly derived from a specification agreement according to clause 8.2. We assume no liability for public statements by the manufacturer and other third parties.
8.4 We are not liable for defects that the buyer is aware of at the time of contract conclusion or is grossly negligent in not being aware of according to § 442 BGB.
8.5 The buyer’s claims for defects exist only if the buyer has fulfilled his statutory duties of inspection and notification of defects (§§ 377, 381 HGB). If the goods are building materials or other goods intended for incorporation or further processing, an inspection should be carried out immediately before processing. A written notification must be made to us without delay if a defect is discovered during delivery, inspection, or at a later time. Obvious defects must be notified in writing within
10 working days from delivery, and non-obvious defects within the same period from discovering the defects. If the buyer fails to fulfill his obligation to duly inspect and/or notify defects, our liability for the non-disclosed or not timely or improperly disclosed defect is excluded under the statutory provisions. This also applies if the goods are intended for incorporation, attachment, or installation and the defect only becomes apparent after corresponding processing due to the non-compliance or breach of this obligation. In this case, the buyer has no claims for reimbursement of “installation and removal costs.”
8.6 If the delivered goods are defective, we are entitled as seller to choose whether to provide supplementary performance by remedying the defect (rectification) or by supplying a defect-free item (replacement). If the type of supplementary performance we choose is unacceptable for the buyer in the individual case, they can refuse it. However, we remain entitled to refuse supplementary performance under the statutory requirements. Furthermore, we are entitled to make the supplementary performance we are to provide conditional upon the buyer paying the due purchase price. The buyer, however, has the right to retain a proportionate part of the purchase price related to the defect.
8.7 For the supplementary performance to be provided, the buyer must give us the necessary time and opportunity. In particular, the buyer must hand over the item for which a defect is claimed to us for inspection purposes. If we carry out a replacement delivery of a defect-free item, the buyer must return the defective item to us under statutory provisions. However, the buyer has no right of return.
8.8 The supplementary performance does not include the removal, dismantling, or deinstallation of the defective item, nor the assembly, attachment, or installation of a defect-free item, unless we are contractually obliged to do so. Buyers’ claims for reimbursement of “installation and removal costs” remain unaffected.
8.9 We reimburse the necessary expenses for the purposes of inspection and supplementary performance (transport, labor, and material costs, as well as possibly removal and installation costs) according to statutory provisions and these General Terms and Conditions of Sale if a defect is present. However, we can demand compensation from the buyer for costs incurred by an unjustified request for defect correction if the buyer knew or could recognize that there was no defect.
8.10 The buyer has the right to remedy the defect himself and claim reimbursement for the objectively necessary expenses if there is an urgent case (e.g., risk to operational safety or to prevent disproportionate damage). The buyer must inform us immediately in case of self-performance. If we would be entitled to refuse supplementary performance according to statutory provisions, the buyer does not have the right to self-performance.
8.11 The buyer can withdraw from the purchase contract or reduce the purchase price according to statutory provisions if a deadline set by the buyer for supplementary performance has expired unsuccessfully or is dispensable according to statutory provisions. In the case of an insignificant defect, however, the buyer has no right of withdrawal.
8.12 The buyer’s claims for reimbursement of expenses according to § 445a paragraph 1 BGB are excluded unless the last contract in the supply chain concerns a consumer goods purchase (§§ 478, 474 BGB) or a consumer contract for the provision of digital products (§§ 445c sentence 2, 327 paragraph 5, 327u BGB).
8.13 Claims for damages or reimbursement of futile expenses of the buyer (§ 284 BGB) exist even in the case of a defect only in accordance with clause 9 and clause 10.
9. Statute of Limitations
9.1 The general statute of limitations for claims arising from defects of quality or title, deviating from § 438 paragraph 1 no. 3 BGB, is one year from delivery. If acceptance has been contractually agreed, the limitation period begins with acceptance.
9.2 The limitation period is 5 years from delivery according to the statutory regulation (§§ 438 paragraph 1 no. 2 BGB) if the goods concern a building or an item usually used for a building that caused its defectiveness (building materials). This is subject to further statutory special regulations on the statute of limitations (particularly § 438 paragraph 1 no. 1, paragraph 3, §§ 444, 445b BGB).
9.3 The aforementioned limitation periods of sales law 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 according to §§ 195, 199 BGB leads to a shorter limitation period. Claims for damages of the buyer according to clauses 10.1 and 10.2.a) and those under the Product Liability Act are subject to the statutory limitation periods exclusively.
10. Other Liabilities
10.1 As sellers, we are liable, unless otherwise provided in these General Terms and Conditions of Sale, including the following provisions, for breaches of contractual and non-contractual obligations in accordance with statutory provisions.
10.2 Within the scope of liability for faults, we are liable, regardless of the legal grounds, for damages only in cases of intent and gross negligence. In case of simple negligence, we are liable, subject to statutory limitations on liability (e.g., diligence in one’s affairs; insignificant breach of duty), only:
a) for damages resulting from injury to life, limb, or health,
b) for damages resulting from the breach of a fundamental contractual obligation (obligations whose fulfillment makes the proper execution of the contract possible and on whose compliance the contractual partner relies and may rely). In this case, our liability is limited to compensation for the foreseeable, typically occurring damage.
10.3 The arising liability limitations according to clause 10.2 also apply to third parties and in case of breaches of duty by persons whose fault we are responsible for under statutory provisions. If a defect has been fraudulently concealed and a guarantee for the quality of the goods has been assumed, the liability limitations do not apply. This also applies to claims of the buyer under the Product Liability Act.
10.4 The buyer can only withdraw or terminate for a breach of duty not resulting from a defect if we as sellers are responsible for the breach of duty.
10.5 A termination right of the buyer (especially according to §§ 650, 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.
11. Choice of Law and Jurisdiction
11.1 German law applies to these General Terms and Conditions of Sale and the contractual relationship between us as sellers and the buyer, excluding international uniform law, particularly the UN Sales Convention.
11.2 If the buyer is a merchant as defined by the Commercial Code, a legal entity under public law, or a special fund under public law, our place of business in Lüneburg is the exclusive, also international, place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the buyer is an entrepreneur according to § 14 BGB.
11.3 We are also entitled to bring an action at the place of performance of the delivery commitment according to these General Terms and Conditions of Sale or a priority individual agreement or at the buyer’s general jurisdiction. Priority statutory provisions (exclusive jurisdictions) remain unaffected.