General Terms and Conditions
of DEV Systemtechnik GmbH, 61169 Friedberg, Germany
1. General, scope of application
All deliveries and services of DEV Systemtechnik GmbH (DEV) are subject to these General Terms and Conditions. For deviating or supplementary agreements DEV’s express written consent shall be required. General terms and conditions of customers are hereby expressly rejected.
2. Written form
All orders and commissions, any special warranties on the part of DEV and changes to the contract shall require written confirmation by DEV. This written form requirement can only be waived by express written agreement.
3. Implementation, subcontractor
DEV may commission third parties to provide (partial) deliveries and (partial ) services which are necessary for the realization of the order. Unless otherwise agreed or prohibited in writing by the customer, DEV shall act at its own discretion when selecting subcontractors. DEV is always free to purchase production materials, semi-finished products and components.
4. Obligation to cooperate
a. To the extent necessary for the processing of the order, the customer shall support DEV free of charge to provide the service in accordance with the agreement, in particular by providing information, internal infrastructure etc. for test purposes, system access and similar prerequisites required for the proper provision of the service.
b. At DEV’s request, the customer shall nominate an employee who will be available to the customer during the usual or agreed execution period and who will be able to provide DEV with all the necessary information. This cooperation must be authorized to make declarations necessary for the continuation of the work.
c. If the customer fails to comply with or delays a required obligation to cooperate which has been reasonably requested by DEV in writing, DEV may withdraw from the contract and assert its statutory rights. If DEV nevertheless decides to render the service, this shall only be done after due adjustment of the time schedule. Any additional expenditure on the part of DEV shall be notified to the customer immediately in the course of order processing and shall be borne by the customer.
5. Terms of payment, no offsetting
a. Product prices include packaging FCA from DEV Systemtechnik GmbH Friedberg (Hessen), Germany (Incoterms 2010). At the customer’s request DEV shall select the carrier and pass on the costs to the customer, whereby the risk and costs of shipment of products ex works DEV as well as the costs for customs duties and taxes shall be borne by the customer. The costs of transport insurance up to the place of destination shall be borne by the customer.
b. All details are subject to VAT at the statutory rate. Insofar as necessary for order processing, prices for services are subject to reasonable expenses such as accommodation costs, travel costs and expenses. Travel, board and lodging costs will be invoiced according to actual expenditure.
c. If the customer is in arrears with payment obligations towards DEV, any payments made by the customer shall be set off against the claim with the longest due date.
d. Customers and suppliers may only set off claims against DEV if these are undisputed or have been legally established.
6. Delivery periods
a. All dates and deadlines for deliveries and services by DEV shall be non-binding unless they have been declared binding by DEV in writing (fixed-date transaction).
b. If non-compliance with a deadline is due to reasons for which DEV is not responsible, the deadline shall be extended accordingly.
7. Cancellations, liquidated damages
If the customer cancels an order prior to delivery without DEV having rendered or failed to render performance, DEV may, without further proof, demand 15% of the agreed price for the corresponding delivery or performance from the customer as liquidated damages. The damages shall be set higher or lower if i) DEV proves a higher damage or ii) the customer proves a lower damage or even the loss of a damage.
8. Retention of title
a. DEV retains title to the delivered products until all liabilities have been paid in full (reserved goods). In the case of a current account, the retention of title shall be deemed as security for our balance claim.
b. Processing of the reserved goods shall always be carried out on DEV’s behalf without DEV incurring any liabilities as a result. If the goods delivered by DEV are mixed or combined with other items, the customer shall assign its co-ownership of the resulting goods.
c. The customer shall only be entitled to resell the goods subject to retention of title in the ordinary course of business and subject to retention of title in DEV’s favor. Other dispositions, in particular pledging or transfer by way of security of the reserved goods are not permitted.
d. In the event of third-party access to the reserved goods (seizures etc.), the customer shall draw attention to DEV’s ownership and notify DEV immediately.
e. The customer hereby assigns to DEV by way of security all claims to which it is entitled from the resale of the goods subject to retention of title and the business relationship with its customers in connection with the resale of the goods subject to retention of title, including ancillary rights in the amount of the value of the goods subject to retention of title; DEV hereby accepts this assignment.
f. The customer is authorized and obliged to collect the assigned claims. If the customer is in default of payment, DEV shall be entitled at any time to revoke the direct debit authorization and to notify the customer’s customers of the assignment as well as to take back the reserved goods or, if applicable, to demand assignment of the customer’s claims for surrender against third parties.
g. The customer is obliged to provide DEV with the information necessary for the collection of the claims and to hand over the relevant documents. The repossession or seizure of the reserved goods by DEV shall not constitute a withdrawal from the contract.
h. DEV shall release the securities at the customer’s request to the extent that their value exceeds all claims to be secured by more than 10%.
If it has been agreed that the delivery items will be installed at the customer’s premises and put into a condition ready for operation, they shall be deemed ready for operation if no defects have been detected during a functional test and DEV notifies the customer of the readiness for operation. DEV also carries out the functional test as part of the final inspection at the DEV plant.
a. If, according to the nature of the contract, acceptance is due, acceptance shall take place at the latest when the service is handed over to the customer.
b. The performance shall be deemed to have been accepted without reservation if the customer, after written request for acceptance within 2 weeks, does not notify DEV in writing of any complaint regarding the performance and stating the defect.
c. Acceptance shall be deemed to have taken place if the customer makes use of the service rendered or pays the invoice without reservation.
d. If the customer defaults on acceptance of the service capable of acceptance, this shall not affect his obligation to pay the agreed remuneration.
11. Obligation to examine, notice of defects
a. The customer must examine the delivered goods and services immediately with the diligence of a prudent businessman and check their properties. He shall notify DEV in writing of any recognizable defects immediately, but at the latest within 2 weeks of acceptance of the goods. Hidden defects must be reported by the customer to DEV in the same manner immediately after their discovery, but no later than 2 weeks after their discovery.
b. If the customer does not comply with his obligation to give notice of defects, the delivered products shall be deemed to have been approved without reservation or any claims while the right to claim defects shall be excluded.
c. Insofar as DEV has undertaken to dispatch the delivery items in deviation from these terms and conditions, the customer must document any transport damage to DEV immediately, at the latest within one week of receipt of the products, and notify DEV in writing. The transport company must be notified in writing of any damage to the transport packaging when the delivery documents are handed over.
12. Defect rights, warranty
a. The delivery item is free from material defects if it corresponds to the product description, the agreed specification or – if this is missing – the respective state of the art.
b. Changes in the design or execution do not constitute a defect and do not entitle the customer to make a complaint, provided that these do not impair the functionality or the value of the delivery items.
c. The customer shall be solely responsible for ensuring that the delivery item ordered is suitable for the purposes for which it is intended, unless DEV has given a written assurance to this effect. The same applies to the obligation to conform to the product specification on environmental and technical requirements for the use of the respective delivery item.
d. Guarantees for the quality and durability of a delivery item shall only apply insofar as this is expressly declared as such in writing.
e. DEV shall remedy defects in the delivery items immediately at its own discretion by repair or replacement delivery. If DEV is unable to remedy the defect complained of despite repeated attempts of at least three within a reasonable period of time, the customer may withdraw from the contract with regard to the service concerned or demand a reasonable reduction in the price.
f. Defects notified by the customer must be repeatable or traceable. In the case of defects that are not obvious, DEV shall be entitled to demand a written error message and description from the customer before DEV begins to search for and remedy the defect.
g. DEV’s liability for delivery items shall not apply if a delivered product has been modified or opened by the customer without DEV’s prior written consent or if the defect is due to the fact that the customer or a third party has modified, improperly used or repaired products without DEV’s consent or products have not been installed, operated and maintained in accordance with DEV’s guidelines. Insofar as DEV’s product specification permits modification by the customer, the modification may only be carried out in accordance with the provisions of the specification so that any claims for defects by the customer remain unaffected.
h. The limitation period for warranty claims is 12 months from the date of delivery. The warranty period for spare and replacement parts for repairs is 6 months from the date of delivery.
i. In the case of goods that can be shipped, DEV may require the customer to ship the goods to DEV in order to fulfil warranty claims. In the event of returns, the customer shall bear the transport costs and risk to DEV as long as DEV has not yet acknowledged the existence of a defect. DEV shall bear the return transport costs and risk to the customer only in the event of a recognized defect. If warranty claims are established, the customer may demand reimbursement of the transport costs from DEV.
13. Claims for damages
a. DEV shall be liable for damages and compensation for futile expenses (§284 BGB) due to breach of contractual or non-contractual obligations only in cases of intent or gross negligence as well as culpable injury to life, limb or health, fraudulent concealment of a defect, assumption of a quality guarantee or in accordance with the Product Liability Act for personal injury or property damage to privately used objects.
b. DEV shall also be liable in the event of breach of material contractual obligations, even in the event of slight negligence. In this case, however, DEV’s liability shall be limited to the reasonably foreseeable damage typical of the contract at the time of conclusion of the contract.
c. DEV draws the attention of its customers to the fact that backup copies of the data of the affected systems are to be made by DEV before its products are used or before data are uploaded onto DEV products. In addition, data processing systems supplied by DEV are to be tested in test environments. In the absence of up-to-date backup copies, DEV’s liability shall in any event be limited only to the effort required to restore the backup copy data to the system concerned.
d. The above provisions shall apply to the same extent to our vicarious agents and assistants. This does not imply a change in the burden of proof to the detriment of DEV’s customers.
14. Industrial property rights and copyrights of third parties
a. In the event of an infringement of industrial property rights or copyrights due to the contractual use of a delivery item, DEV shall indemnify the customer against (damage) claims of the owner of the industrial property right during the limitation period for claims based on defects.
b. Insofar as this is possible in view of all circumstances at economically reasonable conditions, DEV shall, in the event of infringement of industrial property rights or copyrights, also procure for the customer the right to further use the delivery item. Should this not be possible under economically reasonable conditions, DEV shall, at its option, either modify or replace the delivery item in such a way that the property right is not infringed, or take back the delivery item and refund the purchase price paid to DEV less an amount taking into account the age of the product.
c. The aforementioned obligations shall only apply if the customer notifies DEV within 10 working days of first becoming aware of the relevant information or allegations, and if DEV retains the right to take all defensive measures including out-of-court settlements, and if the infringement of property rights is not caused by the fact that an item supplied by DEV is modified or used in a manner not described in the product specification or used together with products not supplied by DEV.
d. This provision conclusively contains all obligations of DEV in the event of claims in connection with the infringement of industrial property rights or copyrights; the provisions of these General Terms and Conditions on claims for damages shall apply in addition.
15. Software usage rights
a. The customer shall be granted a non-exclusive and non-transferable right to use for its own use on a computer system for software developed by DEV and the associated documentation, its supplements and other associated documents (all other rights to the software and the documentation, including copies and subsequent supplements, shall remain with DEV or the software supplier).
b. Without limiting the above rights of the customer, the customer may not reproduce, edit, translate or convert the software from the object code to the source code, either in whole or in part, without the written consent of DEV; §§69d and 69e UrhG (Urheberrechtsgesetz, German Copyright Act) shall remain unaffected.
c. The customer shall ensure that the software and its documentation are not accessible to third parties without the prior written consent of DEV. In principle, copies may only be made for archiving purposes, for data backup and for troubleshooting; the above paragraphs a. and b. apply accordingly.
d. The provision of source programs requires a special written agreement. If the originals bear a note referring to copyright protection, this note shall also be affixed by the customer to approved copies.
e. Unless otherwise agreed, the right of use shall be deemed to have been granted upon order confirmation and delivery of the software, documentation and subsequent additions.
16. Data protection
a. Company data and personal data of our customers are electronically processed and stored exclusively for business purposes. The treatment of personal data received or provided is carried out in accordance with the statutory legal provisions, in particular those of the EU General Data Protection Regulation. Insofar as personal data is not only collected for the purpose of creating and processing an order, DEV shall inform the parties concerned separately and, if necessary, obtain their consent. Please address requests for information, corrections, and requests for deletion, restrictions on processing or any other objection to the processing of personal data or complaints to the management of DEV. The responsible supervisory authority for data protection is the Hessian Data Protection Officer, Wiesbaden.
b. Within the framework of order processing, certain company data of our customers (company name, address, invoice data and, if applicable, information on non-contractual payment transactions) may be transmitted to credit agencies.
17. Applicable law and place of jurisdiction
Unless otherwise agreed in writing, DEV’s contracts with customers and suppliers, pre-contractual relationships and these General Terms and Conditions shall be governed by the law of the Federal Republic of Germany. The validity of the UN Convention on Contracts for the International Sale of Goods (CISG) of 11.04.1980 is excluded. Place of performance and jurisdiction is Friedberg, Hessen. However, DEV shall be entitled to sue the customer before the court having jurisdiction over him.
18. Salvatory clause
Should individual provisions of these General Terms and Conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.
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DEV Systemtechnik GmbH, 61169 Friedberg, Germany
Status: May 2019