Section A. I.: General section
1. Nature of contract; applicability
1.1 Döhler GmbH (for Provider data see legal information: www.doehler.com/en/imprint.html) and its associated companies are the Provider (hereinafter the Provider) of various business-to-business services which can be accessed within the Doehler Platform (hereinafter the Doehler Platform) and offers companies (hereinafter Corporate Users) and the internal and external employees acting on their behalf, plus third parties (Single Users) access to and use of the Doehler Platform.
1.3 Counter-confirmations from Corporate Users and Single Users referring to their own terms and conditions of business and/or purchasing are hereby rejected. This shall not affect individual agreements.
1.4 Corporate Users and Single Users are entitled to use the services and information provided on the Doehler Platform in line with the following terms and conditions.
2 Services; costs, prices
2.1 Following a self-registration process and, where applicable, further activation by the Provider, the Doehler Platform enables Corporate Users and Single Users to access the secure area of the Doehler Platform, exchange information, messages, comments and documents and purchase items. The Doehler Platform has a number of sub-platforms.
2.2 The services offered on the platform include, among other things:
- Access to exclusive content (e.g. white papers, market insights, videos and webinars) in the secure Doehler Plus area of the Doehler Platform after self-registration.
- Access and ordering opportunities on the Doehler B2B webshop, following activation and acceptance of the terms of special section B: Doehler B2B webshop.
- Access, including communication and exchange opportunities on the Doehler Collaboration Platform following activation and acceptance of the terms of special section C: Collaboration Platform.
2.3 If the digital services are not offered free of charge by the Provider, the costs and arrangements for individual payments can be found on the current price list on the platform. The price of the individual service is determined based on the latest price list valid at the point of conclusion of the contract with the Provider (purchase order). If the contract is renewed, the price list valid as at the point of contract renewal is valid, providing the Provider has notified the Corporate User specifically of the changes in price at least 14 days prior to the relevant contract renewal and the Corporate User continues to use the services without objecting. If the prices are changed, the Corporate User shall be separately notified of their right to object and the legal consequences of saying nothing.
2.4 Purchase prices and all other costs for deliveries of goods from the Doehler B2B Webshop can be found in the relevant product description.
3 Preconditions for use; self-registration; activation
3.3 A usage contract must be concluded in order to use the platform. The Corporate User and/or Single User must accept a contract offer from the Provider by completing a self-registration process online, sending the minimum information required to the Provider and acknowledging the applicability of the General Section A of these GT&Cs and their appendices with a click of the mouse. Companies and businesspeople can self-register as Corporate Users. These are exclusively natural or legal persons or legal partnerships that use the internet services offered on the platform for the execution of their commercial or freelance professional activity. Internal and external employees of Corporate Users and third-parties who use the digital services on the platform exclusively in a professional or service capacity in line with their working relationship can register as Single Users.
3.2 For Single Users acting on behalf of Corporate Users, self-registration allows access to exclusive content (e.g. white papers, market insights, videos and webinars) within the secure area of the Doehler Platform. Access to all further sub-platforms is dependent on acceptance of the relevant special sections of the GT&C by the Corporate Users and Single Users and approval by the Provider (activation). In all cases, we reserve the right to check the plausibility of the company data provided by the Corporate User.
3.3 There is no entitlement to use the Doehler Platform or to activation of the option of using sub-platforms. The right to use and/or the activation of individual sub-platforms shall lapse in the event that the required preconditions cease to be met. Based on normal considerations, the Provider can cease or restrict usage at any time without citing a reason.
4 Rights and obligations of Corporate Users and Single Users
4.1 Corporate Users and Single Users have the right to proper use of the services on the Doehler Platform in line with the access permissions granted to them by the Provider. They are obliged to refrain from illegal action and misuse of the access permissions to the internet services provided on the Doehler Platform.
4.2 Corporate Users and Single Users are obliged to check their company data or Single User data for correctness on a regular basis and update it where necessary. Information, content, news, messages and files uploaded must not contain content which (or its intended purpose) is in infringement of statutory or official regulations and/or the rights of third parties and/or immoral. Any files uploaded to the Doehler Platform by Corporate Users and Single Users must be free of viruses.
4.3 Corporate Users and Single Users have the right - and the obligation prior to initiating legal proceedings - to request that the Provider block or remove information, content, news, messages and files uploaded which are of dubious factual correctness, which infringe statutory or official regulations or are immoral or which infringe the rights of the Corporate User or its Single Users or third parties (notice and take down procedure).
4.4 If a claim is made against the Provider by third parties or a Corporate User or Single User as a result of infringements as set out in terms 4.1 to 4.2, the Corporate User and Single Users responsible for the infringement shall undertake to indemnify the Provider from all claims. This indemnification obligation shall relate to all expenses the Provider may necessarily incur as a result of the right asserted by the third party. The Provider explicitly reserves the right to advance additional claims for damages.
4.5 Corporate Users must ensure that their Single Users acting on the platform - irrespective of whether the Single Users have a separate usage agreement - comply with their obligations arising from these GT&C.
5 Rights and obligations of the Provider
5.1 The Provider shall undertake to check its own editorial contributions and other services as best possible in terms of how up-to-date, factually correct, complete and secure they are.
5.2 If requested and at its own discretion, the Provider shall check whether Corporate Users and their Single Users are complying with the general legislation and the contracts and rules in their use of the services provided on the Doehler Platform and its sub-platforms. The Provider shall investigate reasonable complaints from Corporate Users and Single Users about infringements of the rules and messages above any illegal content on the platform and decide what measures should be taken in the event of legal infringements.
5.3 The Provider reserves the right to block or take down information, content, news, messages and files uploaded which are of dubious factual correctness, which infringe legal or official regulations or third party rights, which are immoral or which are infected with viruses once it becomes aware of them without prior consultation or notice, depending on the severity of the infringement in question (Notice and take down procedure). Any claims arising from the removal of such information or files cannot be asserted against the Provider.
5.4 If the Corporate User or its Single Users fails to comply with an obligation as set out in terms 4 and 5, the Provider shall be entitled to delete the relevant data and to restrict or withdraw access to the Doehler Platform and sub-platforms. The same shall apply both for other serious breaches of the contract by the Corporate User or Single User and for justified complaints by Corporate Users and Single Users following the notice and take down procedure.
5.5 The content and technical design, especially the format and content of the platform, are exclusively at the discretion of the Provider. In this respect, the Provider reserves the right to discontinue, restrict, extend, add to or improve all services offered free of charge at any time.
6 System downtime: Availability of services and reimbursement of payment
The Doehler Platform and the services offered through this platform and sub-platforms are provided with no assurance with respect to availability. For chargeable services, the payment shall be returned on a pro rata basis in the event that the service is unavailable to a significant extent (>2% unavailability). Availability is calculated on the basis of the time in the calendar month in question within the contract term, minus scheduled maintenance and downtime which is beyond the control of the Provider (acts of god, third-party culpability, etc.). During maintenance work, it can happen that the above services are unavailable for a short period. Scheduled maintenance work is preferably carried out outside normal working hours (Monday to Friday, 08:00 to 18:00 CET).
7 Contract term; termination
7.1 The usage contract based on these GT&C is concluded for the period of one year. It begins on self-registration by the Corporate User or Single User and activation in accordance with term 3 and is renewed automatically by another year unless it is terminated by one contracting party by giving notice one month before it is due to expire.
7.2 This shall not affect the Provider’s right to restrict or withdraw the Corporate User’s access to the platform in accordance with term 5.4
7.3 The contract term of any chargeable services and, where applicable, the right to ordinary termination of chargeable services are set out in the Provider’s price list.
7.4 Both parties have the right to terminate this contract for a good reason without complying with the notice period. For the Provider, good reasons shall include, in particular:
- a severe infringement by a Corporate User or Single User against the terms of these GT&C;
- actual or attempted tortious activity by a Corporate User and/or Single User;
- opening of insolvency proceedings on the assets of a Corporate User or the rejection of an
insolvency application for lack of assets.
7.5 All notice to terminate must be either in writing (letter, fax) or in electronic form (e-mail to the Provider: email@example.com).
8 Liability; exclusions of liability; limitation of liability
8.1 The Provider accepts no liability for damage to the Corporate Users and Single Users arising from the use of information available on the Doehler Platform or accessing or downloading data or the installation or use of downloaded software.
8.2 Where the platform has links to access other websites, the Provider is not responsible for the external content contained therein. The Provider does not appropriate external content. Liability for external content is excluded. If the Provider becomes aware of illegal content on external websites, it shall remove the link to these immediately.
8.3 The Provider accepts no liability for the factual correctness of data or the virus-free status of files uploaded to the platform by Corporate Users and Single Users. The option of initiating a notice and take down procedure (terms 4.3 and 5.4) is pointed out.
8.4 The Provider accepts no liability for damages caused to the Corporate User or Single Users as a result of following or failing to follow recommendations, tips or best practice guidelines or of using templates.
8.5 The above restrictions and exclusions of liability do not apply to claims from Corporate Users and Single Users relating to injury to life, body of health and claims relating to the negligent infringement of significant contractual obligations. Significant contractual obligations are those whose fulfilment is necessary in order to achieve the objective of the contract. The exemption from liability also does not cover product liability and damage caused by wilful or grossly negligent infringement of obligations by the Provider, its statutory representatives or its vicarious agents.
8.6 Where Corporate Users provide services for other Corporate Users on behalf of the Provider, the liability of the contract partners is governed in the separate contract concluded to this effect.
8.7 If the Provider provides services for Corporate Users outside the scope of these GT&C, the liability of the contract partners is governed in the separate contract concluded to this effect.
9 Data protection
9.1 The Provider has taken comprehensive technical and organisational measures to ensure the confidential handling of data which is exclusively for the intended purpose. However, misuse resulting from illegal actions by third parties cannot be completely ruled out.
9.4 When registering companies as Corporate Users, the Provider is entitled to access credit worthiness data based on mathematical and statistical methods from credit enquiry agencies and obtain up-to-date information for the purposes of its own credit checks.
9.5 In order to guarantee proper, high-performance running of the platform, enable targeted improvement to its services (targeted marketing) and combat misuse, the Provider is entitled to monitor, record and analyse the usage patterns of Corporate Users and Single Users. Term 9.2 applies for such data accordingly.
9.6 If a Corporate User uploads personal data about a third party to the platform, it guarantees that it has the right to do so. The Corporate User is obliged to inform the third party about the transfer of their personal data.
9.7 Corporate Users and Single Users are authorised to use the personal data provided to it by the Provider or other Corporate Users exclusively for the purposes of initiating and processing contracts and for project work. The Corporate User shall oblige its Single Users acting on the platform to comply with their obligations in line with these GT&C.
10 Copyright and other protective rights
10.1 The Provider is the owner of all proprietary, protective and copyrights relating to its own contributions and other content produced by itself.
10.2 For all contributions and content uploaded to the platform by Corporate Users for the purposes of being accessed by the Provider or other Corporate Users, all proprietary, protective and copyrights remain with the uploading Corporate User. Where necessary, the uploading Corporate User shall grant the Provider a simple right of use for the relevant purpose, without the Corporate User appropriating the external content as its own.
10.3 The Corporate Users shall undertake neither to remove nor to make illegible any copyright notices on the platform or other references by the Provider or other Corporate Users to rights of such nature.
11.1 The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the reference standards under International Private Law (IPR) and the United Nations Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction is Darmstadt in the Federal Republic of Germany, providing the Corporate User is a business. The Provider is also entitled to sue at the general place of jurisdiction of the Corporate User.
11.2 In cases of doubt, the German text of these GT&C and their constituent parts shall take precedence over translations into other languages.
11.3 The invalidity of one or more terms of this contract shall not affect the validity of the remaining terms
11.4 The additional constituent parts of these GT&C can all be accessed in the public area of the platform.
11.5 These GT&C shall replace and invalidate all earlier GT&C. Further changes to these GT&C shall be notified to the Corporate User or Single User by the Provider electronically prior to further use of the services. If the Corporate User does not object to these changes within 14 days of receipt of the notification, the changes are deemed agreed if the Corporate User continues to use the services offered by the Provider at www.doehler.com. If the GT&C are changed, the Corporate User shall be separately notified of their right to object and the legal consequences of saying nothing.
Section A II: Information in electronic commerce in accordance with Section 312 I BGB (German Civil Code) in conjunction with Section 246 c EGBGB (Introductory Act to the German Civil Code)
If you visit our Doehler Platform or use other means of remote communication to order services from us, we would like to point out the following:
(1) Identity of Provider:
Tel.: +49 (0)6151/306-0
Fax: +49 (0)6151/306-278
Authorised representative and directors:
Dr. Christian Hebeler
Darmstadt Local Court [Amtsgericht]
(2) The major characteristics of the applications, services and content (services) provided by us and the validity of limited offers can be found in the individual service and/or product description in line with our Doehler Platform and sub-platforms.
(3) The contract can be concluded exclusively in German or English.
(4) With the exception of the option of self-registration and accessing exclusive content in the secure Doehler Plus area of the Doehler Platform, the presentation of all further digital services in the sub-platforms shall not represent a binding offer on our part. Your registration application - generally following a separate invitation - and acceptance of the relevant special sections of the GT&C shall constitute an offer from you in accordance with Section 145 BGB. The contract comes into force when you are activated. We will inform you about your activation by e-mail. This e-mail also contains the GT&C and this information in electronic commerce.
(5) The presentation of our products on the Doehler B2B website shall also not constitute a binding offer on our part. You have the option of registering by clicking with the mouse, selecting products and adding them to your basket. Once the products are in your basket, you have the option of adding more, changing products or removing them. By clicking on the “commit to buy” button on the last page of the order process, you are submitting a binding purchase order for the services contained in the basket in accordance with Section 145 BGB. We will confirm receipt of your order immediately by means of a printable on-screen summary. This order confirmation is not an acceptance of your offer, it merely informs you that we have received your order. A contract comes into force with our separate order confirmation by e-mail. The order confirmation also contains the GT&C, including special section B: Doehler B2B website and this information in electronic commerce.
(6) Any input errors when submitting your self-registration, registration application and purchase order can be corrected at any time before submitting your self-registration, registration application and purchase order using the deletion and amendment function.
(7) The prices quoted by us are net final prices excluding statutory taxes within the Federal Republic of Germany and, where applicable, excluding the quoted postage, packaging and freight costs. The total price for the services you have ordered, including all components, is clearly shown on the Doehler Platform before you complete the order process.
(8) Payment is due as soon as you receive the order confirmation. You can pay by PayPal, by credit card or on invoice. Your credit card account will be charged when the order is completed. We reserve the right to offer individual payment methods as a function of Corporate User status.
(9) Any complaints can be addressed to us at any time by e-mail, fax or telephone during office hours. We will get in touch with you within a reasonable time.
(10) Liability is based on the relevant terms of our GT&C and on the statutory regulations of the Federal Republic of Germany, to the exclusion of the reference standards of International Private Law (IPR) and the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(13) Please also note the information and instructions on data protection.
(14) We are not subject to specific codes of conduct not mentioned above.
Section B: Doehler B2B Webshop
1. Nature of contract; applicability
1.1 Doehler GmbH (for Provider information, see legal information) is the Provider of the Doehler B2B Webshop and offers products for companies (Corporate Users) to purchase via this sub-platform.
1.2 This special section B of the General Terms & Conditions (GT&C) adds additional detail to General Section A of the GT&C to cover purchasing products from the Doehler B2B Webshop. This special section B of the General Terms & Conditions is largely identical to the Provider’s General Terms & Conditions of Sale ((http://www.doehler.com/de/agb.html) but takes into consideration the special characteristics of online trading.
1.3 Counter-confirmations from Corporate Users referring to their own terms and conditions of business and/or purchasing are hereby rejected. We are also not bound by them in individual cases if we have not explicitly rejected them. This shall not affect individual agreements.
1.4 Corporate Users are entitled to purchase the products offered in the Doehler B2B Webshop based on the following terms and conditions.
2. Preconditions for use; registration and activation; contracts on the purchase of goods; delivery within the EU only
2.1 To purchase products from the Doehler B2B Webshop, Corporate Users must be activated by the Provider. To do this, a Single User responsible for and authorised to represent the Corporate User completes an activation form online and sends this to the Provider, acknowledging in the process the validity of this special section B of the GT&C by clicking with the mouse.
2.2 The Corporate User has no entitlement to activation on the Doehler B2B Webshop.
2.3 The presentation of the products on the Doehler B2B website shall not constitute a binding offer. The order of products by the Corporate User is a binding offer in the legal sense.
2.4 Corporate Users have the option of selecting products online and placing them in their basket. Once the products are in their basket, Corporate Users have the option of adding more, changing products or removing them. Corporate Users only submit a binding contract offer when they send off the completed order form.
2.5 After leaving the order screen, the order is still accessible to the Corporate User online. The Provider saves and uses the information transmitted to it in this way to process the desired contract.
2.6 The Provider confirms receipt of the order immediately (order confirmation). Confirmation takes the form of a printable on-screen summary. This order confirmation is not an acceptance of the Corporate User’s offer, it merely informs the Corporate User that the Provider has received their order.
2.7 A contract only comes into force as a result of a separate e-mail order confirmation or delivery of the goods by the Provider. The Provider can accept orders from the Corporate User within a period of up to 1 week.
2.8 Orders via the Doehler B2B Webshop can currently only be delivered within the European Union.
2.9 The Provider concludes the purchase contract with the Corporate User exclusively based on correct, timely delivery to itself from its suppliers. But this only applies if and providing the non-delivery is not the fault of the Provider, especially in the event of a congruent coverage agreement with the suppliers. The Provider shall inform the Corporate User about the unavailability of the service immediately. Any payments made by the Corporate User shall be reimbursed immediately by the Provider.
2.10 Normal deviations in terms of colour and composition are authorised for the product to be delivered and any raw material used by the Provider.
3 Applicability of General conditions of Sale of Döhler GmbH
The “General conditions of Sale” shall also apply accordingly, where “purchaser” represents the “Corporate User” and “we, us and our, etc.” represents the Provider:
III. Packaging, Dispatch and Transportation
1. Delivery will be made either in one-way packaging, which will not be invoiced and will be owned by the purchaser, or in hired packaging (V2A tanks, containers, boxes, pallets and the like) which must be emptied without undue delay and returned to us in perfect condition, free of charge, or held ready for collection as agreed.
2. In case of deterioration or loss of individual parts of the packaging, the purchaser shall bear an appropriate proportion or the full costs of replacement.
3. Unless otherwise agreed upon, the purchaser shall bear the costs of the consignment.
4. We may choose the method of dispatch if the purchaser has not expressly indicated anything special. The dispatch and the transport will be undertaken at the risk of the purchaser.
5. In the event of transport loss or deficiencies, the purchaser shall be obligated to immediately notify us thereof in writing and to present to us respective certificates from the railway authority, the postal authority or the forwarding agent evidencing the transport loss or the deficiency.
IV. Contract Business
1. Contract volume and contract duration are binding for seller and purchaser.
2. Unless laid down differently in writing, goods from the contract volume are, as a rule, to be called off pro rata temporis (on a monthly basis) i.e. for instance, if a contract has a term of twelve months, then one twelfth of the contract volume is to be called off each calendar month. The minimum quantity stipulated in the contract must be adhered to each time delivery is demande
3. Call-off orders should, as a rule, be put in writing.
4. Unless a different lead time for the preparation of the goods for supply has been agreed upon in writing, then a minimum lead time of 10 (ten) working days between receipt of the call-off order and the goods being made available will be deemed agreed upon; if delivery terms have been agreed upon that differ from III, number 3, then the minimum lead time will be extended depending on the determined means of transport and the usual period of time for transportation to the place of performance.
5. The seller is permitted to refuse to carry out individual call-off orders if, and for as long as, the purchaser is in arrears as regards payments to the seller or to another company belonging to the DöhlerGroup.
6. When the contract duration has ended, the seller will, nevertheless, be released from his duty to perform contractual obligations if the purchaser has failed to call off the contract volume, or has not called off the contract volume in full and/or in due time. Delivery to a third party after expiration of a contract is without obligation at all times and is not deemed a tacit extension of the contractual period. This will have no affect on the seller's right to set a reasonable period of time in which the purchaser is to accept contract volume that has not been called off, or not fully called off, on expiration of the term of contract. If the purchaser fails to call off the remaining contract volume within the additional period of time, then the seller can, in addition to his claim to performance, claim damages for non-performance.
7. The seller is obliged to ensure that the goods are manufactured or resourced and made available in due time, and in this respect the seller shall bear the supply risk. The seller's liability is, however, limited to damage caused intentionally or through negligence, and consequently this liability ceases to exist if non-performance or delayed performance arise on grounds that are not connected with the specific nature of the obligation as a generic obligation, or grounds which cannot be allocated to the seller's area of business. In addition to cases of force majeure, this can also arise if performance is hindered as a consequence of unforeseeable circumstances or circumstances beyond the control of the seller that impede resourcing to such an extent that the seller cannot reasonably be expected to obtain the goods, e.g. in the event of a blockade or the lock-out of a production and/or processing plant. In the event of a slight degree of negligence, the seller will be held liable solely for direct or foreseeable damage up to the average contract value of one monthly call-off order.
8. If, subsequent to conclusion of a contract, a statutory provision becomes effective that results in an increase in import charges and repercussions for the agreed delivery date, or a part of this time period, and if, as a consequence, the seller is faced with an increase in his provable expenses, then the purchase price will be adjusted in accordance with this increased amount. Import charges in the sense of this provision include customs duties, variable import/export levy and excise duties.
V. Notice of defects, warranty, recourse claims
1. The purchaser shall be obligated to immediately examine the supplied goods as to obvious defects and, in particular, obvious deficiencies or damage, and to notify us thereof in writing without delay but not later than within two (2) weeks from receipt of the goods. The timely mailing of the notice of defect will be decisive for establishing observance of the time limit.
2. The purchaser shall be obligated to notify us in writing of any non-obvious (hidden) defect after discovery thereof but not later than within the period of limitation pursuant to para. IX. The burden of proof regarding all conditions, in particular, the existence of the defect, the time of ascertainment of the defect and the timely notification of the defect rests with the purchaser.
3. We will not be liable for any defect if the purchaser fails to give the notices as aforesaid. Specimen of the goods subject to complaint must accompany the notice of defects.
4. In the event that goods are defective, we reserve the right, at our choice, to remove the defect through subsequent delivery or repair (subsequent performance). In case of subsequent performance, we shall be obligated to bear all expenses necessary for this purpose, in particular, costs of transport, travel, labour and materials unless the same are increased as a result of the fact that the purchased goods have been transported to a place other than the place of destination.
5. If and when the subsequent performance fails or is impossible or is rejected by us altogether, seriously and finally, or the purchaser cannot reasonably be expected to accept it or a time limit to be fixed by the purchaser for the subsequent performance has not been observed or is not required according to the statutory provisions, the purchaser will be entitled, at its choice, to reduce the purchase price (purchase price reduction) or to rescind the contract (rescission). The purchaser's claim for delivery of faultless goods ceases to exist upon declaration of rescission or assertion of the claim for purchase price reduction. Claims of the purchaser for damages or reimbursement of expenses disbursed in vain are granted only within the framework of para. VIII. hereinafter and are excluded in all other respects.
6. All claims and rights of the purchaser, for any legal ground whatsoever, will become barred by the statute of limitation one (1) year after delivery of the goods.
7. The purchaser cannot derive any rights from defects as a result of which the value or the fitness of the goods for the use discernible by us is not impaired or is impaired only insignificantly.
8. If dates relating to minimum durability are provided by us, the imminent overstepping or the over-stepping thereof after delivery will not provide grounds for giving notice of defects or asserting warranty claims because, by legislative intent, these dates are not expiry dates. This does not apply where the period between delivery and the minimum durability date is less than six (6) weeks.
9. The condition and thus the possibility of use of our products can be confirmed by us only if and when the purchaser priorily notifies in writing details of the kind of processing and use and guarantees compliance therewith. Such confirmation will be regarded as guarantee and assumption of liability only if expressly so stipulated by us in writing.
10. If and to the extent that we issue mandatory regulations regarding use and storing, all deviations therefrom that are disadvantageous to the purchaser will be the purchaser's responsibility.
VI. Liability, exclusion of subsequent performance and rescission, performance period
1. Except for the cases specified in subpara. 2. hereinafter, any liability on our part for damages or reimbursement of expenses disbursed in vain, beyond the liability for defects pursuant to the preceding para. V, will be excluded in case of breach of duty regardless of the legal nature of the asserted claim. This applies also if and to the extent that breach of duty on the part of our statutory representatives or the persons employed by us in the performance of our obligations is involved.
2. The exclusion of liability pursuant to the preceding subpara. 1. does not apply in case of (i) claims of the purchaser under the German Product Liability Act or (ii) injury to life, body or health which is attributable to us or (iii) breach of duty involving gross negligence or intent or (iv) breach of a guarantee or material contractual duty or (v) malice. In such cases, we are liable in accordance with the statutory provisions. In case of breach of a material contractual duty involving ordinary negligence, our liability will, however, be limited to compensation for the typically foreseeable damage.
3. The purchaser may rescind the contract on the ground of breach of duty which is not based on a defect of the goods only if and when the circumstance entitling to rescission is based on fault for which we are responsible. The right of rescission is excluded in case of insignificant breach of duty.
1. All claims and rights of the purchaser, for any legal ground whatsoever, will become barred by the statute of limitation one (1) year after delivery of the goods. Where the goods have not been delivered, the period of limitation will start at the end of the year during which the claim arose. Shorter statutory limitation periods will take precedence.
2. In derogation of subpara. 1., the statutory limitation period will apply to:
- claims based on a defect if we fraudulently concealed the defect or guaranteed the condition,
- recourse claims of the purchaser with-in the framework of a delivery chain (VII. subpara. 8.),
- damage claims or claims for reimbursement of expenses disbursed in vain on the ground of injury to life, body or health,
- other damage claims or claims for reimbursement of expenses disbursed in vain on the basis of breach of duty involving intent or gross negligence,
- claims under the German Product Liability Act,
- damage claims or claims for reimbursement of expenses disbursed in vain on the ground of breach of other material contractual duties.
VIII. Delivery and performance period, force majeure
1. Delivery dates and periods, which can be agreed as binding or not binding, shall be stated in writing.
2. We will be entitled to make part delivery and/or part performance.
3. We will not be responsible for delays in delivery or performance due to force majeure. Events of force majeure entitle us to postpone the delivery for the duration of the hindrance plus a reasonable period of adjustment or to rescind the contract, partially or wholly, because of the part not fulfilled. Also strike, lock-out, mobilisation, war, blockade, export and import bans and other state intervention are deemed to be force majeure regardless of whether they occur on our part or on the part of our supplier. We will immediately notify our customer of the occurrence of an event of force majeure which will obstruct a forthcoming delivery. Where the hindrance persists for more than two (2) months, the purchaser may, after a reasonable additional period having been fixed, rescind the contract with respect to the still unfulfilled part of the delivery and any respective amounts paid by the purchaser in advance will be reimbursed to the purchaser without delay.
4. Requests for delivery of goods ordered and the division into individual part deliveries shall be undertaken in such a manner that production and delivery in accordance with the contract is possible for us.
5. In case of contract manufacturing, it is a prerequisite that the necessary preliminary materials will be made available to us, free domicile, in a timely manner and in appropriate quality. If these conditions are not fulfilled, we will be entitled to extend the delivery period or to rescind the contract and/or claim damages.
IX. Retention of title
1. The goods delivered will remain our property until full payment of all claims within the framework of our business relationship with the purchaser. The insertion of individual claims in a current account and the striking of a balance and the acknowledgement thereof will not affect the retention of title. Only receipt of the equivalent value by us will constitute payment.
2. The purchaser will be entitled to sell the goods, which are subject to retention of title, in the ordinary course of business. However, the purchaser may not pledge or assign these goods by way of security. The purchaser shall be obligated to secure our rights within the framework of the resale of the reserved goods on credit.
3. The purchaser shall be obligated to handle the reserved goods with care. In particular, the purchaser shall be obligated, at the purchaser's own cost and expense, to provide sufficient replacement value insurance coverage for the reserved goods against fire, water and theft. If and to the extent that maintenance and servicing work is required, the purchaser shall perform such work in a timely manner at the purchaser's own cost and expense.
4. The purchaser, here and now, assigns to us its claims under the resale of the reserved goods, and we hereby accept such assignment. Regardless of the assignment and our right to collect, the purchaser will be entitled to collect as long as the purchaser meets its obligations to us and its financial situation does not deteriorate.
5. If and to the extent that the purchaser refinances on a factoring basis, the purchaser, here and now, assigns to us its claims against the factor thereunder, in an amount equal to the balance still owed by the purchaser within the framework of the business relationship with us.
6. If the reserved goods are resold together with other goods, irrespective of whether without or after processing, combination, mixing or blending, the advance assignment agreed above shall apply only in an amount equal to the invoiced price of the reserved goods resold together with the other goods. On request, the purchaser shall provide us with the information on the assigned claims required for collection and notify the debtors of the assignment.
7. Any preparation or processing of reserved goods will be undertaken by the purchaser on our behalf without any obligations arising for us. In case of processing, combination, mixing or blending of reserved goods with other goods not belonging to us, our co-ownership share in the new item shall accrue to us in the proportion which the invoiced price of the reserved goods bears to the other processed goods at the time of processing, combination, mixing or blending. If the purchaser acquires sole ownership of the new item, it is agreed and understood between the contract parties that the purchaser shall grant us co-ownership of the new item in the proportion of the invoiced price of the processed and/or combined, mixed or blended reserved goods and shall keep the new item for us without remuneration.
8. The purchaser shall notify us forthwith of any execution levied by third parties against the reserved goods or the claims assigned in advance, submitting to us the documents necessary for an intervention. Any intervention costs shall be borne by the purchaser.
9. In the event of conduct of the purchaser contrary to the contract or, in particular, in case of arrears of payment (Zahlungsverzug), we will be entitled to rescind the contract and to repossess the reserved goods.
10. We undertake, on the purchaser's request, to release security accruing to us under the preceding provisions, at our choice, to the extent that the value thereof exceeds the claims to be secured by twenty percent (20%) or more.
X. Terms of payment, arrears of payment (Verzug), right of retention
1. The purchaser shall be obligated to pay our invoices without deduction not later than within fourteen (14) days from receipt of the invoice and delivery. If the purchaser fails to make payment in a timely manner, we will be entitled to charge default interest in an amount equal to the rate charged by the bank for our current account credits, but not less than eight percent (8%) above the base interest rate applicable from time to time.
2. We will be entitled, despite any dis-positions of the purchaser to the contrary, to credit payments first against the purchaser's older debts. If costs and interest have been incurred, we will be entitled to credit payments initially against the costs, thereafter against the interest and finally against the principal debt.
3. Payment shall be deemed effected at the time when we can dispose of the amount. In the case of cheques, payment shall be deemed effected at the time when the cheque is honoured. In case of agreed collection on the basis of the direct debiting system, payment shall be deemed effected at the time when we can irrevocably dispose of the amount. Payment by bill of exchange will require our consent. They will be accepted only on account of payment and subject to their eligibility for discount.
4. If the purchaser does not meet its payment obligations, in particular, if the purchaser does not honour a cheque or revokes payment made on the basis of the agreed direct debiting system or ceases to make payments or if other circumstances become known to us which call the creditworthiness of the purchaser into question, we will be entitled to declare the total residual debt to be immediately due and payable even if we have accepted cheques.
5. The purchaser shall not have a right to withhold payment going beyond Section 320 German Civil Code and, in particular, no right to withhold payment towards earlier or other business transactions or business relationships.
6. Counterclaims may be set off only to the extent that the same have been acknowledged by us and are due for payment or have become res judicata.
XI. Place of Performance, Place of Jurisdiction
1. The place of performance of all liabilities under the contractual relationship is Darmstadt.
2. The place of jurisdiction for all legal disputes arising from the contractual relationship or with respect to its origin or validity is Darmstadt or, at our discretion, the place of general jurisdiction of the purchaser.
3. All disputes arising out of or in connection with the contractual relationship shall be finally settled by arbitration under the Rules of Arbitration of Warenverein der Hamburger Börse by an arbitration panel appointed and deciding in accordance with such rules.
4. The contractual relationship shall be governed by the laws of the Federal Republic of Germany with all international and supranational (conventional) legal systems, in particular, the United Nations Convention on Contracts for the International Sale of Goods being excluded.
1. As far as permissible according to valid statutory provisions, in particular according to the data protection law, we save and process data and information which we receive or obtain in the context of our cooperation. The purchaser hereby agrees with this and consents to such data and information being passed on within the DöhlerGroup.
2. These general terms and conditions of sale are supplemented by the general terms and conditions of trade of the Warenverein der Hamburger Börse e.V. as last amended, which can be accessed and downloaded in German, English and Spanish at http://www.waren-verein.de.
1. Nature of contract; applicability
1.1 Döhler GmbH (“provider”) (for Provider data see legal information) is the Provider of the Collaboration Platform and offers companies (Corporate Users) and their authorised external and internal employees (Single Users) the opportunity to exchange information, documents and messages through this sub-platform.
1.2 This special section C of the General Terms & Conditions (GT&C) adds additional detail to General Section A of the GT&C to cover the use of the Collaboration Platform.
1.3 Counter-confirmations from Corporate Users referring to their own terms and conditions of business and/or use are hereby rejected. This shall not affect individual agreements.
1.4 Corporate Users are entitled to use the Collaboration Platform based on the following terms and conditions.
2. Preconditions for use; invitation, registration and activation
2.1 The use of the Collaboration Platform requires an invitation from the Provider, a Corporate User or a third-party authorised Single User, registration and acknowledgement of this Special Section C of the GT&C by clicking with the mouse, plus subsequent activation.
2.2 The presentations on the Collaboration Platform do not constitute a binding offer from the Provider. With an invitation from the Provider, the Corporate User or a third-party authorised Single User, the potential Corporate User and/or Single User is sent an activation link by e-mail leading them to a registration form for the Collaboration Platform. By registering and acknowledging this special section C of the GT&C, the Corporate User or Single User submits an offer in the legal sense. A contract for use of the Collaboration Platform comes into force on activation and the Corporate User or Single User is informed by e-mail.
2.3 The Corporate User or Single User has no entitlement to activation on the Doehler Collaboration Platform. The Provider can make activation dependent on the conclusion of further agreements.
2.4 After activation, the authorised representative Single User of the Corporate User can invite further colleagues from their company or third parties (e.g. employees of partner companies, service-providers, agencies, etc.) as Single Users and enable use of the Collaboration Platform. This is provisional on the self-registration of the Single User in accordance with the terms of Section A of the GT&C and acknowledgement of the GT&C and this Special Section C of the GT&C by clicking with the mouse.
3. Functionalities; architecture of the Collaboration Platform, roles and permissions
3.1 The Collaboration Platform allows Corporate Users and their Single Users simple and uncomplicated cooperation and project work with the Provider and its Single Users and with third parties (e.g. employees of partner companies, service-providers, agencies, etc.) in Corporate User-dedicated Collaboration Areas and Single User-dedicated Project Spaces. The Collaboration Platform has a built-in automatic messaging system to make it simpler for Corporate Users and the Provider to communicate and extensive functionality for the management, control and monitoring of ongoing projects.
3.2 The functionality offered on the platform includes, among other things:
Corporate User-dedicated Collaboration Areas;
- Single User-dedicated Project Spaces as work and team spaces (workspaces) for an overview and exchange of team messages;
- Planning and execution of online meetings with participants;
- Files can be uploaded to the platform and made available to other Single Users;
- Simple task planning and coordination;
- Carrying out of polls and provision of poll results;
- Administration of Single User profiles;
- Issuing roles and permissions.
3.3 Corporate Users are given exclusive access to their own dedicated area of the Collaboration Platform (Corporate User-dedicated Collaboration Area).
3.4 Single Users can only see Project Spaces and are given access - following self-registration and activation - to those Project Spaces to which they have been invited (Single User-dedicated Project Spaces).
3.5 All entitled Single Users can invite further Single Users from their company or third parties (e.g. employees of partner companies, service-providers, agencies, etc.) and enable their use of the Project Space - following self-registration and activation.
3.6 The Collaboration Platform has roles of Corporate User, Provider, Admin, Employee and External.
- The Corporate User is the legal person which the Provider is primarily collaborating. Single Users are exclusively natural persons, in particular employees of the Corporate User and the Provider.
- Single Users assigned the role of Admin can open and close project spaces and remove Single Users or withdraw access to all or specific project spaces.
- Single Users assigned the role of Employee have access to their project spaces and all the information uploaded there, they have write access and can invite colleagues and third parties to use the project space.
- Single Users assigned the role of External have access to project spaces to which they have been invited and all the information uploaded there, they have read access and can suggest colleagues and third parties to invite to use the project space.
4. Handling access data and invitations, information and documents; secrecy and confidentiality
4.1 The Single User is obliged to complete the fields in the application form truthfully and accurately. If the data entered changes after registration, the Single User must change the data in their Single User account immediately.
4.2 On registration, the Single User saves a username and password to access the Collaboration Platform (hereinafter “access data”). The username should allow clear identification of the Single User's real name.
4.3 The Single User undertakes to keep their access data confidential and protect it against access by unauthorised third parties. The Single User may not allow third parties to use their access data. If the Single User has lost their access data or has reasonable cause for suspicion that their data has been or could be used by an unauthorised third party, the Single User is obliged to inform the Provider immediately. The Provider accepts no liability for damage caused to the Single User as a result of access data getting into the hands of third parties.
4.4 The Single User is obliged to invite further Single Users to project spaces exclusively and under their own responsibility on a “need to know basis”, i.e. only colleagues or third parties are invited who are involved in the project as employees, leaders, consultants or service-providers and who need access to the information uploaded to the project space.
4.5 If a Single User no longer requires access to the information in the project spaces (e.g. because they have left the Corporate User's company or the project team), they must inform the Provider of this. Single Users who are no longer entitled must no longer access the project space.
4.6 The Single User must inform the Provider if another Single User should no longer have access permission to all or specific project spaces hosted by Corporate User (e.g. because the other Single User has left the Corporate User’s company or the project team).
4.7 The Provider, the Corporate User and the Single User must treat all confidential information shared with them or made accessible to them by the Provider and the Corporate User in line with the use of the Collaboration Platform secret or confidential indefinitely beyond the end of the usage contract, providing no other agreements are reached.
4.8 All information about the project work and other business activities of the Provider and Corporate User on the Collaboration Platform shall be considered confidential, providing this information has not been published or was not already known to the Provider, Corporate User or Single User with no obligation to secrecy/confidentiality.
4.9 The uploading of information or documents to the project space is not tantamount to publication, so the Single Users in a project space form a closed, controlled circle of confidants on a need-to-know basis.
4.10 Corporate Users acknowledge and agree that their actions on the Collaboration Platform are traceable by the Provider and the Corporate User to secure confidentiality, among other things.
5 Pre-existing proprietary rights, rights to project results
5.1 Unless agreed otherwise and providing they are authorised to do so, the parties shall extend to one another an irrevocable, non-exclusive, non-transferable right to use commercial proprietary rights and copyright owned by the Corporate User, Provider and/or Single User prior to the commencement of the respective project (hereinafter “pre-existing proprietary rights”) which are required for the execution of the project work, for the duration of the current project free of charge and, following the conclusion of the project, at reasonable market-standard terms to be agreed in the event of use. .
5.2 Pre-existing proprietary rights must be notified to the Provider, Corporate User and/or Single User in text form before the beginning of the project or before they are made available.
5.3 The use of the pre-existing proprietary rights in line with the project does not affect the ownership of the proprietary rights.
5.4 Unless agreed otherwise, all rights to the project results developed which are produced during the course of the relevant project and all other development results produced in this context, including all property rights, commercial proprietary rights and copyright (new proprietary rights) shall be shared jointly by the Provider and the Corporate User.
5.5 The commercial proprietary rights and copyright in line with the paragraph above shall particularly include all rights to inventions (especially patent rights) and intellectual creations (especially copyright) and all rights to know-how (especially trade secrets) and designs.
5.6 Paragraph 4 shall also apply if a project result within the project is developed not jointly by employees of the Corporate User and the Provider, but solely by employees of the Corporate User or the Provider.
6 Use of and right to use project results
6.1 On achievement of the project goal, the Corporate User and Provider shall consult on whether and how the project results are to be used either together or separately.
6.2 If the Corporate User and Provider cannot agree on using the results together, the proprietary rights shall be used separately without any right of consultation for the other party in line with the rights of use granted subsequently. In this case, the Corporate User and Provider shall not grant each other retrospective licences to any improvements or further developments to the new proprietary rights and shared proprietary rights.
6.3 In order to allow separate use as set out in term 6.2, the Corporate User and Provider shall grant each other free, non-transferable, irrevocable and permanent rights to the new proprietary rights allowing them to manufacture and distribute the project results independently of the other party and make changes, improvements and further developments. This also includes the right to have the project results made by third parties for the respective party (or charging third parties with the distribution of the project results).
6.4 The Corporate User and Provider shall be granted the rights described in term 6.3 at the point at which they arise.
6.5 If necessary, by reaching agreements with their Single Users (employees and third parties approved as Single Users), the Corporate User and Provider must ensure that they are authorised to issue the rights set out in this clause to the other party without restriction and that issuing rights in this way does not contradict any other rights of Single Users (employees and third parties approved as Single Users) to the development results.
7.1 If there is no statutory requirement for archiving, the Provider does not archive the project spaces.
7.2 On completion of the project, project spaces are deleted by the Provider after giving four weeks notice in text form.
7.3 On expiry of the statutory archiving period (generally 10 years after closing the project space), archived project spaces are finally deleted by the Provider.
8. Additional data protection clause
8.1 In order to guarantee proper, high-performance running of the platform, enable targeted improvement to its services (targeted marketing) and combat misuse, the Provider is entitled to monitor, record and analyse the usage patterns of Single Users.
8.2 Single Users shall acknowledge this and declare their consent to their actions on the Collaboration Platform being monitored and recorded and shall thus behave responsibly and in accordance with the law on the Collaboration Platform.
8.3 The Corporate User shall guarantee that the Provider is authorised to carry out the actions described with respect to its Single Users.
8.4 The data protection policy specifies this rule on the handling of data in more detail.
9. Additional liability rules for the Collaboration Platform
9.1 Single Users are obliged not to upload information, content, news, messages and files to the Collaboration Platform which are or their intended purpose is in infringement of statutory or official regulations and/or the rights of third parties and/or immoral. All files uploaded to the platform by Single Users must be virus-free.
9.2 Corporate Users and Single Users have the right - and the obligation prior to initiating legal proceedings - to request that the Provider block or remove information, content, news, messages and files uploaded which are of dubious factual correctness, which infringe statutory or official regulations or are immoral or which infringe the rights of the Corporate User or its Single Users or third parties (notice and take down procedure).
9.3 If a claim is made against the Provider as a result of infringements of the rights of third parties or a Corporate User or Single User as set out in terms 9.1 to 9.2, the Corporate User and Single Users responsible for the infringement shall undertake to indemnify the Provider from all claims. This indemnification obligation shall relate to all expenses the Provider may necessarily incur as a result of the right asserted by the third party. The Provider explicitly reserves the right to exert a claim for damages over and above this
9.4 The Provider accepts no liability for damages suffered by the Corporate User or a Single User as a result of a Single User, in infringement of these GT&C, uploading information, content, news, messages or files which are, or their intended purpose is, against statutory or official regulations and/or infringe the rights of third parties and/or are immoral and/or contain viruses. Term 8.5 of the general liability rules in the General Section A I. of the GT&Cs applies accordingly.
9.5 The Provider accepts no liability for damages suffered by a Corporate User or Single User as a result of a Single User, in infringement of these GT&Cs, disclosing information, content, news, messages or files to unauthorised third parties. Term 8.5 of the general liability rules in the General Section A I. of the GT&Cs applies accordingly.
Stand: March 2017
I. Scope of Application, Formal Requirements
- 1. These General Terms and Conditions for the Sale of Goods and Services (hereinafter GTCS) apply to all companies of DöhlerGroup, irrespective of their legal form, with registered office in Germany. These companies are the companies under German law affiliated with Döhler Group SE with registered office in Darmstadt, Germany, registered with the Commercial Register of the Darmstadt Local Court under HRB 95005, i.e., in particular,
- Döhler GmbH, Darmstadt
- Döhler Dahlenburg GmbH, Dahlenburg
- Döhler Eisleben GmbH, Eisleben
- Döhler Neuenkirchen GmbH, Neuenkirchen
- Döhler Neuss GmbH, Neuss
- Kelterei Knill GmbH, Oberteuringen.
- In these GTCS, each individual company of DöhlerGroup is referred to as "we" or "us" or "Döhler" or the "Seller."These GTCS apply exclusively to all of our business relationships with our customers (hereinafter: the Purchaser) regarding the sale of goods or the provision of services.
- These GTCS therefore apply in particular to:
- the sale of products (e.g., ingredients for the production of foods and beverages, culture media and laboratory equipment), irrespective of whether we have manufactured these products ourselves or sell them only as an intermediary;
- the provision of services (contract manufacturing, sensory & consumer science, general consulting services)
The GTCS apply only if the Purchaser is an entrepreneur within the meaning of Sec. 14 German Civil Code or a legal entity under public law. Unless agreed otherwise, these GTCS apply in the version applicable at the time when the Purchaser places the order or, in any case, in the version last provided to the Purchaser in writing as a framework agreement for similar contracts to be entered into in the future without us having to expressly refer to them again in each individual case.
- Our GTCS apply exclusively. Any deviating, contrary or supplementary general terms and conditions of the Purchaser (hereinafter: Purchaser's GTC) form a part of these GTCS only if and to the extent that we expressly consented to their applicability. Such consent is required under any circumstances, including, for example, if we, being aware of the Purchaser's GTC, effect the delivery to such Purchaser without reservations.
- Any individual agreements made with the Purchaser in an individual case (including side letters, supplements and amendments) shall in any case prevail over these GTCS. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive regarding the contents of such agreements.
- Any legal declarations or notices issued by the Purchaser with respect to the contract (e.g., deadlines, notice of defects, notice of rescission or reduction) shall be made in writing, i.e., in written or text form (e.g., letter, e-mail, facsimile). Statutory requirements as to form and further proof, in particular in the event of doubts as to the issuer's authority, shall remain unaffected.
- References to the applicability of statutory provisions are made for the avoidance of doubt only. Accordingly, even without such reference, the statutory provisions apply unless they are directly altered or expressly excluded in these GTCS.
II. Quotations, Orders, Deviations
- Unless expressly provided for otherwise in our quotation, our quotations are generally non-binding until the order is confirmed by us. This also applies to any catalogues, technical documentation (e.g., references to DIN standards) or other product descriptions or documents (also in electronic format) provided to the Purchaser, in which we reserve any and all rights, in particular ownership and copyrights. If we do not accept the offer of the Purchaser within the period indicated in Clause II no. 2, such documents shall be returned to us promptly. Our quotations do not include VAT.
- The Purchaser's order of the goods shall be deemed a binding contractual offer. Unless provided for otherwise in the order, we are entitled to accept this contractual offer within one (1) week following receipt thereof. The contract shall only be deemed entered into once the order has been confirmed in writing (text form is sufficient) or once the goods have been delivered.
- We provide the information as regards the usability and suitability of our products to the best of our knowledge. Such provision of information constitutes neither a description of the quality of our products nor a representation or warranty. This also applies to any other public statements made by us, the manufacturers of the products delivered by us or their agents, in particular in advertising or on the product labels.
- The target quality of our products is determined solely by the agreed specifications.
- The customary deviations in quality, shape and color apply to any product to be delivered and to any raw materials used by us.
III. Delivery and Performance Period, Default of Delivery, Force Majeure
- The delivery period will be agreed on a case-by-case basis or specified by us in writing when accepting the order. Clause II no. 2 above shall apply. Unless agreed otherwise in an individual case, the delivery period shall be between four (4) and six (6) weeks following conclusion of the contract or confirmation of the order. Unless expressly agreed otherwise in an individual case, agreed delivery periods are generally non-binding.
- We are entitled to carry out partial deliveries and/or render partial performance.
- Purchase orders and other orders for individual partial deliveries shall be placed in such a way that we are able to manufacture, package and deliver the product or products as contractually agreed.
- If, in a particular case, we are unable to keep agreed delivery periods for reasons beyond our control, i.e., if we are unable to perform, we will inform the Purchaser promptly of this and indicate at the same time the expected new delivery period. If we are unable to perform also within the new delivery period, we are entitled to rescind the contract in whole or in part; any consideration already provided by the Purchaser will be reimbursed promptly. In particular, a delay in delivery to us from our suppliers shall be deemed an inability to perform for the purposes of this paragraph.
- Any default of delivery on our part shall be determined in accordance with the statutory provisions. In any case, however, the Purchaser is required to send a reminder.
- We are not liable for delays in delivery and performance due to force majeure. Events of force majeure entitle us to postpone the delivery for the duration of the impediment and a reasonable lead time or rescind the contract in whole or in part with respect to the part of the contract not performed yet. Strikes, lockouts, mobilization, war, blockades, import and export bans, epidemics/pandemics and other government intervention, whether such events affect us or our suppliers, shall be treated the same as events of force majeure. We shall inform the Purchaser promptly of any occurrence of an event of force majeure impeding any delivery to be made by us. If the impediment lasts for more than two (2) months, the Purchaser may, after having provided a reasonable grace period, rescind the contract with respect to the part of the contract not performed yet. In the case of contracts having a term of six (6) months or more, the obligations to perform shall be suspended for the duration of the impediment and extinguish if one of the contractual parties cannot be reasonably expected to perform them later. Any advance payments already made by the Purchaser in this respect will be reimbursed promptly.
- In the event of contract work to be provided by us, we require that the primary materials/components of suitable quality be delivered to us carriage free in time. If these requirements are not met, we are entitled to extend the delivery period or rescind the contract and/or to claim damages. Our inspection upon reception of primary materials/components is limited to identity and quantity checks.
- Further legal claims and remedies of the Purchaser on grounds of a default of delivery shall remain unaffected.
IV. Prices, Terms of Payment and Default of Payment
- Unless agreed otherwise in a particular case, our current prices applicable at the time the contract is entered into apply. Our prices are net prices, i.e., plus the applicable VAT and any other applicable duties, taxes, fees and public levies.
- The purchase price is due and payable within 14 days of invoice and delivery or acceptance of the goods. We are, however, entitled at any time, including under an ongoing business relationship, to make a delivery in whole or in part subject to prepayment. We will provide notice of such reservation at the latest in the order confirmation, without a special reminder being required.
- Upon expiration of the above period allowed for payment, the Purchaser will be in default. During such default, the Purchaser shall pay interest on the purchase price at the applicable statutory default interest rate of currently 9 percentage points above the base rate. We reserve the right to assert any claims on grounds of further damage caused by default. In relation to merchants, our claim to commercial default interest (Sec. 353 German Commercial Code) shall remain unaffected.
- Irrespective of any contrary terms and conditions of the Purchaser, we are entitled to set off payments first against the Purchaser's older liabilities. If costs and interest have already been incurred, we are entitled to set off payments first against the costs, then against the interest and last against the principal amount.
- We are entitled to issue invoices in electronic form (by e-mail or as an e-mail attachment). If the Purchaser requests a hardcopy invoice, we are entitled to charge EUR 10 per invoice for expenses.
- Any payment is only deemed to be made when the relevant amount is at our disposal. A payment made by check is only deemed to be made when the check has been honored. If payment by direct debiting has been agreed, any payment is only deemed to be made when the relevant amount is irrevocably at our disposal. Bills of exchange are permitted only with our consent. Bills of exchange will be accepted only on account of payment and subject to their eligibility for discounting
- If the Purchaser fails to meet its payment obligations, in particular if the Purchaser fails to honor a check, revokes a payment in an agreed direct debiting scheme or discontinues its payments, or if we learn of any other circumstances that raise doubts as to the Purchaser's credit standing, we are entitled to accelerate the maturity and demand immediate payment of the remaining debt, including if we have accepted checks.
- If the Purchaser does not meet its payment obligations or does not meet them in time, we are entitled to refuse our performance in whole or in part until the amounts due have been paid or security has been provided. If the Purchaser is in default of payment, we also have the right to accelerate the maturity and demand immediate payment of all claims against the Purchaser.
- If, after the contract has been entered into, it becomes apparent (e.g., because a petition for the opening of insolvency proceedings has been filed) that our claim to the purchase price is put at risk due to the Purchaser's inability to pay, we are entitled under the statutory provisions to refuse performance and – after having provided a grace period, where applicable – to rescind the contract (Sec. 321 German Civil Code). In the case of contracts for the production of specific items (custom-made products), we may give immediate notice of rescission; the statutory provisions as to where providing a grace period is not required shall remain unaffected.
IV. Assignment, Right of Set-off and Retention
- Our claims may be set off only against counterclaims that are undisputed or have been allowed by a final and non-appealable decision. In the event of defects in the delivery, the rights of the Purchaser as set forth in Clause VII. hereof shall remain unaffected. Any right of retention arising from previous or other transactions of the ongoing business relationships cannot be exercised.
- We are entitled to assign any and all claims against the Purchaser to a third party and in particular to any of our affiliates without requiring the Purchaser's consent.
V. Packaging, Shipping and Transport
- The goods will be shipped either in disposable packaging, which will not be invoiced and the ownership in which will pass to the Purchaser, or in returnable packaging (V2A tanks, containers, boxes, reusable pallets, etc.).
The Purchaser shall dispose of any disposable packaging properly at its own expenses and agrees to do so even if we are required by law to accept the return of disposable packaging. At our request, the Purchaser shall provide us with appropriate proof of proper disposal.
Any returnable packaging shall be returned to us free of charge promptly after having been emptied without any residue and rinsed out in good order and clean condition.
- In the event of damage, loss or destruction of individual items of returnable packaging, the Purchaser shall bear the full replacement costs.
- Unless agreed otherwise, our deliveries will be made ex works, ex production site or ex warehouse (FCA Incoterms® 2020).
- Unless a specific shipping method is expressly agreed with the Purchaser, we reserve the right to determine the shipping method. Shipping and transport will be at the Purchaser's expenses and risk.
- Promptly after having received the delivery, the Purchaser shall inspect the goods for any transport damage or missing quantities and notify the Seller promptly in writing of any deficiency detected. The Purchaser shall provide the relevant certificates issued by the forwarding agent that prove the transport damage or missing quantities.
- The contract volume and the contract duration are binding for us and the Purchaser.
- Unless agreed otherwise in writing, orders under the contract volume shall always be made on a pro rata temporis basis per month, i.e., if the contract duration is twelve months, for example, one twelfth of the contract quantity shall be ordered per calendar month, provided that the minimum quantity stipulated in the contract is adhered to.
- Orders shall always be made in writing (text form).
- Unless lead times for the delivery of the goods have been agreed in writing, the lead times shall be determined on the basis of the nature of the goods and our operational and planning requirements.
- We may refuse the execution of individual orders if and as long as the Purchaser is in default of payment to the relevant Seller or any other company of DöhlerGroup.
- Upon expiration of the contract duration, the Seller will be released from its obligation to perform even if the Purchaser has not ordered the contract volume at all, in full and/or in time. Any further delivery after expiration of the contract will be made on a non-binding basis and shall not be construed as a tacit extension of the contract duration.
- The foregoing shall not affect our right to request upon expiration of the contract from the Purchaser to purchase within a reasonable grace period any contract quantities that have not been ordered or not been ordered in full. If the Purchaser does not order the quantities remaining under the contract within the grace period provided, the Seller may claim, in addition to asserting its claim to performance, damages for non-performance. Any delay or failure in making a request for purchase by the Seller does not release the Purchaser from its contractual obligation to perform the contract by purchasing the agreed quantities or pay damages for non-performance.
- Our liability and the liability of our vicarious agents for the timely availability of the ordered contract goods shall be limited to liability for willful intent and gross negligence. We shall not be liable if the non-performance or late performance is due to grounds that are not connected to the nature of the obligation as an indeterminate obligation or cannot be attributed to the sphere of the Seller or its vicarious agents. In addition to events of force majeure, this applies also if the Seller or its vicarious agents cannot be reasonably expected to procure the goods due to impediments to performance caused by circumstances that are unforeseeable or beyond the control of the Seller or its vicarious agents, e.g., in the event of a blockade or lockout of a production and/or processing site.
- If a legal provision enters into force after the conclusion of the contract resulting in an increase in import charges applicable to the agreed delivery period or parts thereof and this results in an increase in our verifiable expenses, the purchase price shall be adjusted for the relevant increase in expenses. For the purposes of this provision, import charges shall include customs duties, levies and excise duties.
VII. Notices of Defect and Warranties
- The rights of the Purchaser in the event of defects as to quality and title shall be governed by the statutory provisions, unless provided for otherwise below.
- Any warranty rights of the Purchaser apply only if the Purchaser has properly complied with its inspection and defect notification duties owed under Sec. 377 German Commercial Code. If a defect is detected upon delivery, during the inspection or at any later time, the Purchaser shall notify us thereof promptly in writing. In any case, obvious defects shall be notified in writing within three (3) workdays following receipt of the goods. Hidden defects, i.e., defects that cannot be detected in the inspection, shall be notified within three (3) workdays following detection. If the Purchaser fails to conduct a proper inspection and/or to notify the defects, our liability for any defect not notified at all or not notified timely or properly shall be excluded pursuant to the statutory provisions.
- Any claim on grounds of defects shall become time-barred within twelve (12) months after the goods delivered by us have been delivered to the Purchaser, however, no later than upon expiration of the best-before date or period specified on the goods. Claims for damages caused by willful intent or gross negligence or for injury to life, body or health caused by an intentional or grossly negligent breach of duties committed by the Seller or its vicarious agents shall become time-barred as provided for by law. Any return of the goods shall require our prior consent.
- Any notice of defect shall be accompanied by samples of the rejected goods.
- If, despite all due care exercised, the goods delivered by us have any defect that had already been present when the risk passed, we will remedy the defect by rectification or supply of a replacement at our option, provided that a notice of defect has been provided in time. We shall always be given the opportunity to remedy the defect within a reasonable grace period. Our right to refuse to remedy the defect, where available under the applicable legal provisions, shall remain unaffected.
- We will reimburse any expenses required in connection with the inspection and remediation, in particular transport costs, travel expenses, labor costs and cost of supplies, as provided for by law if there is actually a defect. Otherwise, we may request the Purchaser to reimburse any expenses resulting from the unjustified request to remedy a defect (in particular inspection and transport costs), unless it was not possible for the Purchaser to recognize the lack of defect. Any claims of the Purchaser with respect to the expenses required in connection with the remediation, in particular transport costs, travel expenses, labor costs and cost of supplies, shall be excluded to the extent that the expenses are increased because the goods delivered by us have been transported afterwards to a location other than the Purchaser's location, unless such transportation is in line with the intended use of such product.
- If the remediation fails, is impossible or is seriously and finally refused by us, or if the Purchaser cannot be reasonably expected to accept the remediation, or if a grace period to be provided by the Purchaser for remediation expires without the defect having been remedied, or the Purchaser is not required by law to provide a grace period for remediation, the Purchaser is entitled, at its option, to reduce the purchase price (reduction) or rescind the contract (rescission). Upon the notice of rescission or the request for reduction having been made, the Purchaser's claim to delivery of a product free from defects shall extinguish.
- Any claims of the Purchaser for damages or compensation for wasted expenditure are available in the event of defects only as provided for in Clause VIII. and shall be excluded otherwise.
- The Purchaser may not derive any rights from defects that do not or only immaterially affect the value or the suitability of the goods for the intended use as recognizable by us.
- The best-before dates specified by us are not use-by dates.
- We may confirm the quality and thus the suitability of our products for the used intended by the Purchaser only if the Purchaser provides us in advance with detailed information in writing about the manner of the processing and use and guarantees that such manner will be adhered to. Such a confirmation by us constitutes a warranty and assumption of liability only if we expressly provide such warranty in writing.
- To the extent we provide mandatory instructions for use and storage, the Purchaser shall be responsible for any adverse effects resulting from non-compliance with such instructions.
VIII. Other Liability
- Unless provided for otherwise in these GTCS including the below provisions, we will be liable for any breach of contractual or non-contractual duties as provided for by law.
- We are liable for damages – on whatever legal basis – in connection with fault-based liability for willful intent and gross negligence. We are liable for ordinary negligence, subject to statutory limitations of liability (e.g., care exercised in own affairs; immaterial breach of duty), only
- for damage due to injury to life, body or health
- for damage resulting from the breach of a material contractual duty (an obligation the fulfillment of which is indispensable for proper performance of the contract and on the fulfillment of which the other party typically relies and may rely); in such cases, however, our liability shall be limited to the foreseeable damage typically sustained.
- The limitations of liability resulting from no. 2 above shall apply also to breaches of duty committed by or in favor of individuals the fault of which is attributable to us pursuant to statutory provisions. They do not apply to the extent we fraudulently conceal any defect or have provided a warranty for the quality of the goods and to claims of the Purchaser under the German Product Liability Act.
- The Purchaser may rescind or terminate the contact on grounds of a breach of duty that does not constitute a defect only if the breach of duty is attributable to us. Any right of termination for convenience of the Purchaser shall be excluded. Otherwise, the statutory requirements and legal consequences shall apply.
- If the product delivered by us is a trading good that we have purchased from an upstream supplier and resold to the Purchaser, we have the right to assign to the Purchaser any rights based on defects as to quality we may have against the upstream supplier and request from the Purchaser to have recourse against the upstream supplier. We are liable for defects of such trading goods only if claims against the upstream supplier cannot be enforced although they have been asserted in time and, where applicable, in court.
- We are not liable for any recommendation, advice or sharing of know-how, except in the event of willful intent or gross negligence.
- The Purchaser shall reimburse us for all fees, costs and expenses incurred by us in any legally successful enforcement of rights against the Purchaser.
IX. Retention of Title
- Title to the sold goods shall remain vested in us until all our current and future claims under the sale and purchase agreement and an ongoing business relationship (secured claims) have been paid in full. The inclusion of individual claims in an ongoing invoice and any set-off and recognition thereof shall not affect the retention of title. Payment shall be deemed effected upon receipt of the consideration by us.
- The Purchaser is entitled to resell the conditional goods in the ordinary course of business. The conditional goods may not be pledged or transferred for security purposes to third parties until the secured claims have been paid in full. The Purchaser shall notify us promptly in writing if a petition for the opening of insolvency proceedings is filed or third parties have recourse (e.g., attachments) to the goods belonging to us. Any costs of intervention shall be borne by the Purchaser. The Purchaser shall secure our rights when reselling conditional goods on credit.
- The Purchaser shall treat the conditional goods with care and store them properly. In particular, the Purchaser shall, at its own expense, insure the conditional goods for replacement value sufficiently against damage caused by fire and water and against theft. The Purchaser hereby assigns to us any claim it may have under the aforementioned insurance policies to the extent the conditional goods are insured; we hereby accept such assignment.
- The Purchaser hereby assigns to us any claims it may have under the resale of the conditional goods; we hereby accept such assignment. Irrespective of such assignment and our right to collection, the Purchaser is entitled to collection as long as the Purchaser meets its obligations owed to us and does not become illiquid.
- To the extent the Purchaser refinances on a factoring basis, the Purchaser hereby assigns any claims it may have against the factor under such refinancing in the amount of the Purchaser's outstanding balance under the business relationship with us; we hereby accept such assignment.
- If the conditional goods are resold together with other goods, whether without or after processing, combining, mixing or blending, the above assignment in advance applies only in the amount of the invoice value of the conditional goods that are resold together with other goods. At our request, the Purchaser shall provide us with the information about the assigned claims required for collection purposes and disclose the assignment to the debtors.
- If the Purchaser performs any processing or finishing of the conditional goods on our behalf, this shall not give rise to any obligations for us. In the event of processing, combining, mixing or blending of the conditional goods with other goods we do not own, we are entitled to the resulting co-ownership share in the new product in the proportion of the invoice value of the conditional goods to the other processed goods applicable at the time of the processing, combining, mixing or blending. If the Purchaser acquires sole ownership in the new product, the contractual parties agree that the Purchaser shall grant us co-ownership in the new product in the proportion of the invoice value of the processed, combined, mixed or blended conditional goods and shall keep the new product safe for us free of charge.
- If the Purchaser is in breach of contract, in particular in default of payment, we are entitled to rescind the contract pursuant to the statutory provisions and demand that the conditional goods be returned. Such demand for return does not constitute at the same time a notice of rescission but only a demand for the goods to be returned and a notice of reservation of our right to rescind. If the Purchaser fails to pay the purchase price when due, we may exercise these rights only after we have provided the Purchaser with a reasonable grace period for payment and such grace period has expired without the purchase price having been paid, unless it is not required by law to provide such a grace period.
- We agree to release the security to which we are entitled pursuant to the above provision at the Purchaser's request to the extent the value exceeds the claims to be secured by more than 20%.
X. Governing Law and Place of Jurisdiction
- These GTCS and all contractual relationships between us and the Purchaser shall be governed by the law of Germany, without regard to the applicable conflict of law rules and any international and supranational law (treaties), in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).
- Place of performance and exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly out of the contractual relationship is the location of the Seller's registered office. Notwithstanding the foregoing, we may sue the Purchaser also in courts normally having jurisdiction over the Purchaser.
- To the extent permitted by applicable law, in particular under data protection law, we will store and process data and information which is disclosed to us or of which we learn in connection with the cooperation. The Purchaser hereby agrees with and consents to the sharing of such data and information with our affiliates.
- To the extent the use of our products is subject to special legal requirements, the Purchaser is responsible for complying with such requirements and for verifying whether our products are suitable for the specific use intended.
- The products delivered by us may not be reverse engineered. In particular, they may not be reverse engineered with the aim of determining the chemical composition or product design. Any transfer of our products to third parties with the aim of copying our products or developing generic products that are as similar as possible to our products is strictly prohibited.
- If any provision of these GTCS is or becomes invalid, this shall not affect the validity of the remainder hereof. The invalid or unenforceable provision shall be replaced by such valid and enforceable provision which comes closest to the economic effect intended by the Parties for the invalid or unenforceable provision. The above applies accordingly to any gaps contained herein.
I. General, area of application
- Our business relations with entrepreneurs, legal persons under public law and special funds under public law will be governed exclusively by our General Purchasing Conditions. Our General Purchasing Conditions will not apply in relation to consumers, i.e. natural persons who enter into the legal transaction for purposes not covered by their commercial or self-employed professional activity. They will apply also for all future business relations with our suppliers even if not expressly stipulated again.
- Upon the placing of an order, the supplier recognizes our General Purchasing Conditions as solely binding, waivinq later revocation.
- Our General Purchasing Conditions are, however, deemed accepted upon receipt of the supplier’s deliveries and services by us at the latest.
- References of the supplier to its own terms and conditions of business, in particular, its own general delivery conditions, are hereby expressly rejected. We will not be bound thereby even if we do not expressly reject them in the individual case.
- Deviating conditions of the supplier or agreements apply only if expressly confirmed by us in writing.
- References to the application of statutory provisions only serve clarification purposes. Therefore, the statutory provisions apply even without such clarification, unless modified directly by these General Purchasing Conditions.
II. Order, order acknowledgement, items to be produced
- All orders and changes and additions to orders already placed must be acknowledged in writing without delay. The supplier shall be obligated to accept our order within ten (10) days from receipt thereof by the supplier; otherwise we will no longer be bound by such order. Where the acceptance and/or acknowledgement of an order by the supplier deviates from our order, the supplier shall be obligated to expressly draw our attention to this fact. In this case, a contract will be formed only at the time when we give our written consent.
- If and to the extent that the supplier undertakes to produce and supply movable items, title thereto shall be transferred to us regardless of the statutory ownership situation. This applies to both series manufacture by the supplier as well as individual production (non-fungible items) for us. Therefore, the law relative to contracts of purchase and sale (Sections 433 et seq. BGB [German Civil Code]) shall be applicable to the contractual relationship between the supplier and us – as the case may be, in accordance with Section 651 BGB – unless otherwise stipulated hereinafter.
III. Prices, terms of payment
- The price shown in the order is binding. In the absence of any written agreement to the contrary, the price is „delivered free" to the address specified in our order, including packaging. Value-added tax at the prevailing rate must be shown separately.
- Invoices can be processed by us only if they, in comp - liance with the requirements of our order, provide for the order number specified therein; the supplier shall be res - ponsible for all consequences of non-fulfilment of this obligation.
- Unless otherwise agreed in writing, we will pay the purchase price with 3% discount within fourteen (14) days of delivery and receipt of invoice or net within thirty (30) days of receipt of invoice.
- We will, however, not be in default of payment [Zahlungsverzug] without request for payment issued by the supplier.
V. Delivery period, default in delivery
- The delivery period stated in the order is binding. The delivery period commences on the ordering date. If the supplier does not perform within the delivery period specified in the order, the supplier shall be in default [Verzug] according to the statutory provisions without warning.
- The supplier shall be obligated to immediately notify us in writing if any circumstances occur or become obvious to the supplier which indicate that the agreed delivery period cannot be met.
- If the supplier defaults in delivery [Lieferverzug], we will be entitled to claim flat rate damages caused by default in an amount equal to 1% of the delivery value for each completed week, but not more than 10%. Further statutory claims are due to us in full and are hereby expressly re - served. The supplier is, however, entitled to prove to us that no damage or substantially smaller damage has been caused to us as a result of the supplier's default in delivery [Lieferverzug].
VI. Delivery, passing of risk, default in acceptance, documents
- Delivery shall, according to our instructions, be made „free place of destination" to such place unless otherwise agreed in writing. This place of destination is also the place of Performance.
- The risk of accidental loss and accidental deterioration of the goods will pass to us upon delivery of the goods at the place of performance. It will be deemed equal to delivery if and when we are in default in acceptance [Annahmeverzug].
- The risk will pass to us only upon delivery and/or default in acceptance even if the goods have been lost or have deteriorated or cannot be processed as a result of a defect of the material supplied by us or as a result of Instructions given by us for the processing; Section 645 (1) BGB is not applicable insofar even if the goods are no fungible goods. Our further liability based on fault remains unaffected within the meaning of Section 645 (2) BGB.
- The statutory provisions apply to default in acceptance subject to the provision that an offer of the supplier is required even where our co-operation must be preceded by a calendar-based event (for example, notification of a specific work progress by the supplier); hence, Section 296 sent. 2 BGB is not applicable insofar.
- The supplier shall be obligated to indicate our order number in all shipping documents and delivery notes. If the supplier fails to do so and this results in delay in processing, we will not be responsible therefore.
VII. Warranty for defects of quality and defects of title
- The supplier warrants that the goods delivered comply with the statutory and regulatorv provisions which apply to the use of the goods and, in particular, with the relevant food law provisions in case of food supplies, and that they are of the agreed quality. As regards the quality of the goods, at least those product specifications which are the subject of the order or which have been incorporated in the contract in the same way as these General Purchasing Conditions shall be deemed agreed upon. It makes no difference whether the product specifications originate from the supplier or from us as long as they are sufficiently designated in the order – also by way of reference.
- We shall inspect the goods in light of defects of quality within a reasonable period after receipt of the goods at the place of destination. The period for inspection and for making a complaint will be extended accordingly if we pass the goods on within the ordinary course of business and notify the supplier thereof in a timely manner.
- In case of defectiveness of the goods, we will be entitled to demand subsequent performance (repair or replacement) or reduction of the purchase price. Subsequent performance shall, at the supplier’s cost and expense, be made, at our choice, through removal of the defect or through delivery of goods which are free of defects.
- In case of failure of the supplier's attempt of subsequent performance through removal of the defect or through delivery of goods which are free of defects, or if the supplier unjustifiably refused to make subsequent performance or if the supplier did not observe a reasonable additional period fixed by us, we will be entitled ipso jure to remove the defect ourselves and/or to have it removed by third parties by our order and to claim reimbursement of the expenses accruing therefor by the supplier.
- In all other respects, our statutory rights and claims such as recission, damages, in particular, damages in lieu of performance, or reimbursement of expenses incurred in vain as well as the recourse rights pursuant to Section 478, 479 BGB remain unaffected and are expressly reserved. The statutory provisions apply also where the supplier warranted the quality of the goods or fraudulently concealed a defect.
- The supplier shall be liable for defects of title on a strict liability basis.
- The warranty period is 36 months from the passing of the risk.
- The aforesaid limitation period and the statutory limitation periods under the law relative to contracts of purchase and sale apply only as minimum periods to our non-contractual damage claims in connection with a defect of the goods; in all other respects, the regular statutory limitation periods (Sections 195. 199 BGB) will apply. The same applies if and when the supplier fraudulently concealed a defect.
The supplier undertakes, at the supplier's cost and ex - pense, to take back transport packaging at the respective place of delivery. In the event that the supplier fails to fulfil this obligation, we are entitled to have the packaging re - moved and, if necessary, disposed of at the supplier's cost and expense.
All deliveries are insured by us, at our cost and expense, as from the passing of the risk; therefore, we do not accept any amounts invoiced to us for insurance as from the passing of the risk.
X. Product liability
- If and to the extent that the supplier is responsible for loss or damage caused by the product, the supplier shall be obligated to indemnify us on first demand against damage claims of third parties as far as the cause is within the supplier's sphere of control and organisation and the supplier is liable to third parties.
- Within this scope, the supplier shall also be obligated to reimburse us any expenditure pursuant to Sections 683, 670 BGB arising from or in connection with a warning or recall campaign conducted by us. We will notify the supplier of the subject matter and the extent of the warning and/or recall campaign to be conducted, and do so before it starts as far as this is possible and can reasonably be expected, and give the supplier the opportunity to comment.
- The supplier undertakes to maintain a product liability insurance with lump sum cover of at least Euro 3 million for each instance of personal injury/damage to property. This shall be without prejudice to any further damage claims we may have against the supplier.
XI. Intellectual property rights of third parties
- The supplier warrants that no patents or other intellec - tual property rights of third parties are infrinqed by the supplier's delivery and use thereof by us which is foreseeable by the supplier.
- If a third party asserts a claim against us for such in - fringement of its rights, the supplier shall be obligated to indemnify us against such claims on first written demand. If and when a declaration of indemnification has been issued, we are not entitled to make any agreements, in particular, no settlement agreement, with the third party without the supplier's consent.
- The supplier's duty of indemnification covers also all expenses necessarily incurred by us as a result of or in connection with the claim asserted against us by a third party.
- The foregoing does not apply if and to the extent that the supplier produced the goods on the basis of documents, samples, models or the like provided by us and did not know and did not have to know that intellectual property rights of third parties are infringed thereby.
XII. Retention of title, intellectual property rights, provided items
- We recognise retention of title only until settlement of the invoice for the delivery in question. Extended or ex - panded retention of title is excluded even if we do not expressly object thereto.
- We retain title, copyright and other industrial property rights in goods, illustrations, drawings, calculations and other documents supplied for the purpose of executing the order.
- If and to the extent that we provide to the supplier or finance materials, parts or tools, we reserve title thereto. Such items must be stored and/or kept separately and may be used only for our orders. On our request, the supplier shall be obligated, at the suppliers cost and expense, to insure on a replacement value basis and to maintain and service the materials, parts or tools owned by us.
- Any processing or mixing by the supplier will always be made for us. If the goods to which we reserved title are processed or inseparably mixed with other items not owned by us, we acquire co-ownership of the new item in the proportion which the value or our items bears to the value of the other items at the time of processing or mixing.
- If mixing occurs such that the supplier's item is to be regarded as the main item, it is deemed agreed that the supplier transfers co-ownership to us on a pro rata basis; the supplier will hold the sole ownership or co-ownership for us.
The supplier shall be obligated to treat strictly confidentially any and all data as well as the conclusion and the contents of the contracts and any and all received illustrations, drawings, calculations and other documents and information. They may be disclosed to third parties only with our express consent. The duty of confidentiality shall survive the expiration or termination of the contract. It will cease to apply only if and to the extent that the know-how contained in the illustrations, drawings, calculations and other documents made available has become generally known.
XIV. Place of jurisdiction, place of performance
- The place of performance for the supplier's deliveries is the place to which the supplier is required to deliver the goods. The place of Performance for our payments is Darmstadt.
- The place of jurisdiction for all legal disputes arising from the contractual relationship or with respect to the creation or the validity thereof is Darmstadt or, at our choice, the supplier's place of general jurisdiction.
- The contractual relationship shall be governed by the laws of the Federal Republic of Germany with all inter - national and supranational legal Systems, in particular, the United Nations Convention on Contracts for the Inter - national Sale of Goods being excluded.