General Terms and Conditions
Correct at: 05.July.2016
Paragraph 1 – General
- These General Terms and Conditions of Business apply to all advice, quotes, deliveries, services and contracts of HERBERT DAMMAN GmbH. Diverging agreements and conditions of business of our business partners (customers) are only valid if HERBERT DAMMAN GmbH has explicitly confirmed their validity in writing. Oral ancillary agreements will not apply unless confirmed in writing.
- The General Terms and Conditions of Business of HERBERT DAMMAN GmbH will also apply even if we do not explicitly refer to them in future agreements in an ongoing business relationship.
Paragraph 2 – Quotes and Conclusion of Contract
- Unless otherwise explicitly agreed in writing, our quotes are non-binding. Contracts will only come into force if our written confirmation has been received or the goods have been delivered.
- Our written confirmation of an order is authoritative for the contents of the contract if such confirmation has been sent.
- Our quotes include ex-works delivery excluding packaging unless otherwise explicitly agreed. Transport, packaging and installation are therefore invoiced separately.
Paragraph 3 – Performance Period
- Unless explicitly agreed as binding, delivery or other performance dates are to be regarded as non-binding.
- If a deadline period is given for the supply of goods or services, this will begin on the date of our written order-confirmation unless otherwise agreed. In the absence of such confirmation, it will begin when the order is processed by our company.
- Our delivery obligations will be suspended while the customer is in arrears with payment obligations.
- If HERBERT DAMMAN GmbH is obliged to compensate the customer for damage due to delay, this will be no more than 0.5 (one half) percent – or 5 (five) percent overall – of the order value of the entire delivery. The customer may claim greater damage only on submission of corresponding evidence and only if the actual value of the damage exceeds 25 (twenty-five) percent of the lump sum of the reimbursement.
Paragraph 4 – Acts of God
- If acts of God temporarily make the provision of services wholly or partially impossible for HERBERT DAMMAN GmbH or considerably delay them, an agreed delivery period will be extended for the duration of this impediment to performance. The same will apply if the customer sets a deadline for the supply of the service, in particular to grace periods pursuant to Section 281, Subsection 1, and Section 323, Subsection 2, of the German Civil Code (BGB).
- Before the extended delivery period or date in No. 1 above expires, the customer will be entitled neither to cancel the contract nor to damages. The ban on the right to cancellation will end when the impediment to performance lasts longer than three months. Neither will the ban apply if the customer is entitled to cancel the contract pursuant to Section 323, Subsection 2, of the German Civil Code (BGB) without a grace period being set. If the impediment to performance lasts longer than three months, we too will be entitled to cancel the contract.
- In particular, events constituting acts of God include war, similar conditions of armed conflict, mobilisation, import and export bans and blockades. The following are deemed equivalent to acts of God: transport obstructions, operational disruptions, delays in deliveries of raw materials, strikes, lockouts, other industrial action as well as unforeseeable and unusual circumstances arising through no fault of ours.
Paragraph 5 – Transfer of Risk
- The risk of accidental loss and deterioration transfers to the customer when the goods pass to the carrier. This also applies when delivery is made free to destination. Where goods are sent with our own vehicles, risk transfers to the customer when being loaded.
- 1 above will not apply if the customer is a consumer as defined by Section 13 of the German Civil Code (BGB).
- Persons signing the delivery docket for the goods on collection or at the unloading point will be deemed by us to be authorised to confirm receipt of the goods.
Paragraph 6 – Inherent Nature of the Goods
If reference is made to descriptions of goods, in particular prospectuses, information sheets or processing instructions in quotes, order-confirmations or other documentation or if these are included in a contract, this will not be connected with any guarantee of any inherent nature or durability of the goods described. This same applies to descriptions in applicable technical standards.
Paragraph 7 – Examining the Goods
- If the customer is a merchant as defined by Section 377 of the German Commercial Code (HGB), he is required to report complaints in writing no later than one week after delivery. The report is to show the type of goods, the type of deviation or defect, delivery date and docket number. Concealed defects are to be notified to us in writing promptly, i.e. no later than one week after discovery.
- The customer may not process or install disputed or recognisably defective goods. If he breaches this requirement, we will not be liable for damage due to processing or installation. In addition, the customer will be required in such cases to bear the extra costs of processing or installation that are incurred when rectifying defects and, where appropriate, to reimburse us for these.
Paragraph 8 – Rights of the Customer in Case of Defects
- The rights of the customer in the case of defects will be in line with statutory provisions. However, if the customer is not a consumer (Section 13, German Civil Code – BGB), the provisions of Nos. 2–8 below will apply restrictively.
- A defect will not be deemed to exist in the case of deviations or alterations that adhere to the relevant technical standards. The same applies to technically unavoidable differences usual in commerce if the goods‘ suitability for their contractually foreseen purpose is not impaired.
- If a certain inherent nature of the goods is agreed, a deviation therefrom will constitute a minor defect only if the suitability of the goods for their contractually foreseen use is not or only negligibly impaired. In this case, damage claims and/or cancellation due to defects will not be recognised.
- The customer’s claim to supplementary performance is limited to restoration (repair) of the goods if this is reasonable for the customer, in particular if this is suitable for remedying the defect in the same way as the supply of new goods.
- The customer may only invoke failure of supplementary performance if at least two attempts at supplementary performance have remained unsuccessful and at least three weeks have passed since the complaint was notified.
- A deadline for supplementary performance set by the customer is inappropriate if it is less than three 3 (three) weeks calculated from the date of receipt of notification of the set deadline. Supplementary deadlines must be set in writing.
- We are liable for damage caused to the customer due to defects in the goods supplied in cases of minor negligence only to the value of typically average damage caused. This does not apply to damage caused by injury to life, limb or health.
- With the exception of claims referred to in Section 478 of the German Civil Code (BGB), all rights of the customer due to defects expire within 1 (one) year from delivery. This does not apply to cases of intent, gross negligence or for damages claims for injury to life, limb or health. Neither does it apply if goods supplied or installed are used in/for a building. In the cases in Nos 2 and 3, the statutory expiry deadline period will continue to apply.
- If goods or quantities supplied are other than those owed, these will be deemed to be defective.
- Replaced parts become the property of HERBERT DAMMAN GmbH.
Paragraph 9 – Warranty Conditions for Machinery and Original Dammann Spare Parts
- At our option, all those parts that prove unusable or whose usability is significantly impaired due to circumstances existing before transfer of risk, in particular defective material or defective workmanship, are to be repaired or replaced free of charge. Determination of such defects is to be notified to us in writing immediately. Replaced parts become our property.
- Warranties end 12 (twelve) months after the risk relating to the goods supplied transfers to the customer.
- We give a 12(twelve)-month warranty on frames and booms after the risk relating to the goods supplied transfers to the customer.
- A contractual warranty on used equipment is agreed between the customer and HERBERT DAMMAN GmbH.
- No warranty is given for damage due to the following:
- unsuitable or improper use;
- improper use due to incorrect operation and care of the equipment pursuant to the instructions for use and technical briefing;
- failure to observe customer servicing deadlines on vehicles and equipment (involves charges);
- incorrect installation or commissioning by the customer or a third party;
- natural wear and tear;
- incorrect or negligent treatment;
- excessive strain;
- use of unsuitable operating equipment or replacement materials or unsuitable storage (frost-free storage) if this is not our fault.
- No warranty is given where safety instructions are not observed or where permitted load limits are exceeded.
- No warranty is given where prohibited materials or mixed forms thereof are processed.
- After consulting us, the customer is required to give us the required time and opportunity to carry out all improvements and replacement deliveries deemed necessary by us; otherwise, we will be released from liability for defects. Only in urgent cases of danger to operational safety or in order to ward off disproportionately major damage (we are to be notified immediately) will the customer be entitled to repair the defect himself or have it repaired by third parties and to require us to reimburse him for the necessary costs.
- If the customer or a third party carries out improper alterations (to construction, supply lines, electrical controls) or maintenance work on the goods supplied without our prior consent, our liability for any resulting consequences will be invalidated.
- Repair work covered by the warranty includes testing, measuring and making adjustments (according to the manufacturers‘ working hours guidelines) if they are necessary in connection with repairing warranty damage, but not maintenance, inspection, cleaning or other care recommended by the manufacturer. The warranty does not cover the costs of direct or indirect subsequent damage, such as towing costs, storage charges, freight charges, disposal costs, reimbursement for loss of use or subsequent damage to unwarranted components.
- No reimbursements for materials or labour costs will be given for:
- pump membranes;
- locking springs;
- nozzle mouthpieces;
- oils, fats and other lubricants;
- parts regularly replaced in maintenance or care work;
- tightening clamps, screws and nuts on the entire vehicle / equipment.
- During the warranty period, HERBERT DAMMAN GmbH undertakes to replace or repair these parts on return of the defective components. Only original DAMMAN parts will be used. Installation costs will be reimbursed in proportion to the labour values established by HERBERT DAMMAN GmbH. Installation may be carried out only by authorised specialists after prior arrangement with HERBERT DAMMAN GmbH. Construction defects covered by product liability will be corrected only by HERBERT DAMMAN GmbH. No payment for installation work or travel by workshops contracted to HERBERT DAMMAN GmbH is due as a workshop and customer care discount was paid when the spraying equipment was purchased.
Paragraph 10 – Servicing DAMMANN Sprayers and Vehicles
- DAMMANN Sprayers.
DAMMANN sprayers may only be serviced by qualified personnel trained by HERBERT DAMMANN GmbH. Workshops and service personnel not satisfying these requirements must contact the customer service department before servicing starts. After describing the damage (defect – cause), a decision will be made as to whether work may be carried out on the DAMMANN sprayer; the matter of costs must also be resolved in advance. We generally decline warranties for prohibited work by external parties. HERBERT DAMMANN GmbH offers its own company servicing independently. In order to offer our customers good-value servicing, this service is carried out in the form of single trips for several customers.
- DAMMANN Vehicles.
During the warranty period, servicing on the self-propelled DAMMANN-trac must be carried out by an authorised Unimog contract workshop. Should no authorised workshop be available, HERBERT DAMMANN GmbH will, if customers wish, take care of the vehicles with its own in-house company service department (involves charges).
Paragraph 11 – Liability Limitations
- HERBERT DAMMANN GmbH is liable for minor negligence in cases of breaches of essential contractual obligations only to the value of average, typically-occurring and foreseeable damage. This does not apply to damage to life, limb or health.
- HERBERT DAMMANN GmbH is liable for breaches of minor contractual obligations only if the breach is due to intent or gross negligence. This does not apply to damage to life, limb or health.
- Nos 1 and 2 above apply correspondingly to other than contractual damage claims, in particular claims for tortious acts, except to claims pursuant to Sections 1 and 4 of the German Product Liability Act (ProdHaftG). This liability limitation also applies in favour of salaried employees, wage-workers, representatives and vicarious agents of HERBERT DAMMANN GmbH.
Paragraph 12 – Prices
Prices are always plus the VAT applying when the invoice is issued unless this is shown separately.
If the costs of raw materials, energy or wages increase significantly after the contract is signed, HERBERT DAMMANN GmbH will, on submitting evidence of these increases, be entitled to adjust its prices. „Significantly“ means an increase of over 10 (ten) percent in the price index for living costs of a four-person worker household with an average income as officially determined by the German Federal Office of Statistics (Statistisches Bundesamt) (1980 = 100%).
Paragraph 13 – Delivery Conditions
- Shipping of Spare and Wear Parts.
In most cases, spare and wear parts are available from our contract dealers or – in exceptional cases – from the factory.
Shipping is usually via courier or, if desired, overnight express. Shipping costs must be paid by customers. Defective components from complaints must be returned to HERBERT DAMMANN GmbH at the customer’s expense within 14 (fourteen) days. After the components have been inspected by our supplier, the complaint will be accepted via a credit.
- Delivery of Sprayers and Vehicles.
Sprayers and vehicles are sold ex-works. The equipment or vehicle may be delivered for a surcharge. The purchaser pays the freight charges.
- The customer/purchaser pays the freight and transport charges for the consignment and return of components.
Paragraph 14 – Payment
- Invoices from HERBERT DAMMANN GmbH are to be paid without deduction within 14 (fourteen) days of issue. Discounts are granted only by special agreement. Discount deadlines will then be calculated from the invoice date. Only the value of the goods (excluding freight charges, unloading and installation costs) is subject to discount.
- Alternatively, purchasers may issue HERBERT DAMMANN GmbH with a direct debit („SEPA“) order. For these orders, the pre-notification deadline is 6 (six) days for first and once-only direct debit orders and 3 (three) days for recurring direct debit orders. In the case of company direct debit orders, the pre-notification period is reduced to 2 (two) days. The purchaser undertakes to ensure that its bank account has sufficient funds. Costs of inability to transfer the amount or of back-transfer are at the expense of the purchaser provided the inability to transfer the amount or the back-transfer was not caused by HERBERT DAMMANN GmbH.
- We accept cheques and bills of exchange only by special arrangement and only for payment purposes. All expenses and costs are at the customer’s expense.
- If the customer is in arrears of payment, HERBERT DAMMANN GmbH will, at its option, be entitled to make the supply of future goods and/or services dependent on advance payments, sureties or COD payments (including when HERBERT DAMMANN GmbH has granted a trade credit), to demand damages instead of service or to cancel the contract. If the payment deadline is exceeded, the usual bank interest rates will be charged on the invoice amount. Assertion of further claims will not be affected. The statutory provisions on payment arrears will also apply.
- If partial payments have been agreed and if the customer falls into arrears of over 14 (fourteen) days with an instalment, the entire purchase price will be due immediately.
- In cases of imminent insolvency or substantial worsening of the customer’s financial situation, HERBERT DAMMANN GmbH will be entitled to demand immediate payment of all open invoices, including those not due.
- In the case of claims arising from the sale of goods or services, the offsetting of monies received for one debt or another will be at the discretion of HERBERT DAMMANN GmbH. The customer is not entitled to refuse payments or to decide whether he will make payments if they have been asserted as a result of claims of any kind or as a result of complaints. Neither may the customer offset any counter-claims that HERBERT DAMMANN GmbH has not explicitly recognised, which have not been established by the courts or on which a court decision is imminent.
Paragraph 15 – Retention of Title
- The goods supplied remain the property of HERBERT DAMMANN GmbH as reserved goods until full payment of the purchase price and settlement of all existing claims concerning the goods arising from the business relationship. The suspension of individual claims in an ongoing invoice or after the account has been balanced and recognised will not cancel retention of title. If we establish liability under a bill of exchange in connection with payment by the customer of the purchase price, retention of title will not expire before the bill has been honoured by the customer as the drawee. If the customer is in arrears of payment, HERBERT DAMMANN GmbH will be entitled to take back the reserved goods after sending a reminder. The customer will be obliged to return the goods.
- If the customer processes reserved goods into a new, movable item, processing will be deemed to be for HERBERT DAMMANN GmbH without this imposing any obligations on us. The new item will then become the property of HERBERT DAMMANN GmbH. If the reserved goods are processed together with goods not belonging to HERBERT DAMMANN GmbH, HERBERT DAMMANN GmbH will acquire ownership of the new item to the value of the reserved goods as a percentage of the other goods at the time of processing. If reserved goods are connected to, mixed with or combined with goods not belonging to the customer pursuant to Sections 947 and 948 of the German Civil Code (BGB), the customer will become joint owner in accordance with the law. If the customer acquires ownership through connection, mixture or combination, he transfers here and now joint ownership to us to the value of the reserved goods as a percentage of the value of the other goods at the time of connection, mixture or combination. In these cases, the customer will be required to store the item owned or jointly owned by the vendor free of charge. The item will be deemed to be reserved goods as defined by the following provision.
- If the customer sells reserved goods alone or together with goods not belonging to HERBERT DAMMANN GmbH, the customer assigns here and now the claims arising from the resale in the amount of the value of the reserved goods with all ancillary rights and with priority over the rest. HERBERT DAMMANN GmbH accepts this assignment. The value of the reserved goods will be that in the invoice issued by HERBERT DAMMANN GmbH plus a 10 (ten) percent security surcharge, which will be excluded from the calculation if it conflicts with any third-party rights. If the resold reserved goods are our property in terms of joint ownership, the assignment of the claim will extend to the amount corresponding to our share of joint ownership. Paragraph 2, No. 1, Sentence 2, applies to the extended right of retention accordingly. The advance assignment according to Paragraph 2, No. 3, Sentence 1 will also extend to the balance claim.
- If the reserved goods are built into the land of a third party as an integral part, the customer assigns to us here and now his future claims for payment against the third party or the party concerned to the value of the invoice amount of our claim with all ancillary claims, including the right to grant a debt-securing mortgage. We accept the assignment. The customer is entitled to collect the claims on his own behalf. Payments received from the third party will first be offset against the claim assigned to us. If the customer’s claim has been settled, the customer will be required to forward to us directly the further payments from the third party on the claim assigned to us.
- If reserved goods are built into the land of a third party as an integral part, the customer assigns to us here and now the claims arising from the commercial sale of the land or rights connected with the land to the value of the reserved goods with all ancillary rights and with priority over the rest. We accept assignment. Paragraph 12, No. 2, Sentences 2 and 3 applies accordingly.
- The customer is entitled and authorised to resell, use or install the reserved goods only in the usual and proper course of business and only on condition that the claims defined in Paragraph 12, No. 3, 4 and 5 actually transfer to us. The customer is not entitled to dispose of the reserved goods in any other way, in particular by pledging or transferring by way of security. The customer is obliged to protect our rights on resale of the reserved goods to the value of the claim to the sale price on credit.
- Subject to revocation, we authorise the customer to collect the claims assigned in Paragraph 12, Nos 3, 4 and 5. We will not make use of our own collection authority as long as the customer fulfils his payment obligations, including to third parties. If requested, the customer will name the debtors of the assigned claims and notify them of the assignment. We are authorised to notify the debtors of the claim ourselves.
- The customer is required to inform us immediately of enforcement proceedings by third parties concerning the reserved goods and to give us the documents required for appeal. On cessation of payment, on application for the opening of insolvency proceedings or in an out-of-court settlement, the right to resell, use or install the reserved goods and the authority to collect assigned claims expires. Authority to collect in the case of protest of a cheque or bill of exchange also expires.
- In case of insolvency, the sureties provided to us also extend to those liabilities justified unilaterally by the insolvency administrator by way of choice of satisfaction.
- If the customer has already provided other sureties or if further sureties are provided later, we may demand additional security pursuant to Paragraph 12, Nos 4 and 6 only if the total realisable value of all securities does not exceed 110 (one hundred and ten) percent of the secured purchase price claim. If this amount is exceeded, the customer will be entitled to the release of securities. To assess the value of the securities, 140 (one hundred and forty) percent of the assessed value of the goods secured will be taken as the limit where a claim arises for collateral to be released. In cases of claims assigned as collateral, this will be 140 (one hundred and forty) percent of the nominal value.
Paragraph 16 – Industrial Property Rights and Tools
- We retain ownership and copyright of illustrations, drawings/plans, calculations and other documents, including in digital form. This also applies to documents designated „confidential“. Written approval is required before these are passed to third parties.
- We permit copies to be made for internal use only.
- If we supply our customer with goods made according to information, drawings/plans, models, patterns or use of parts supplied to us, the customer will be liable for ensuring that no industrial property rights of third parties are breached. Our customer is required to release us from all claims by third parties and to reimburse us for damage incurred.
- If manufacture or supply is refused to us by a third party which invokes industrial property rights belonging to it, we will be entitled to cease work and invoice the resulting costs without verifying the legal situation. The customer will bear the costs of any legal disputes.
- Tools used to produce the goods we have to make or procure remain our property, including if we invoice pro-rata costs for them.
Paragraph 17 – Purchase on Approval
- If goods are sold on approval and if the value of the goods exceeds €2,500, the customer will be required to insure the goods at its own expense. If the customer does not approve the goods, he will be obliged to pay us compensation of 0.5 (one half) percent of the value of the goods for every day of use. The customer is free to prove that lesser damage has been suffered.
- The goods may only be field-tested in our presence. Field-testing is permitted for a period of 3 (three) machine hours. If this period is exceeded by more than 10 (ten) percent, the goods will be deemed to be sold without reservation.
Paragraph 18 – FINAL PROVISIONS
- The place of fulfilment for payment is the head offices of HERBERT DAMMANN GmbH.
- If the party to the contract is a merchant, a legal entity in public law or a special public fund, it is agreed that the courts responsible for the head offices of our company will be responsible. The same will apply if the party to the contract has no general legal venue in Germany, if the party transfers its residence or usual domicile away from German jurisdiction or if its residence or usual domicile is unknown at the time suit is filed. At our option, we are entitled to sue the customer at the courts responsible for him.
- The contractual relationship is subject to German law to the exclusion of the UN Convention on the International Sale of Goods (CISG).
- Should any provision be or become invalid, the validity of the remaining provisions will not be affected. The provisions of the law will then also apply.