General Terms and Conditions (GTC)
of DIANA Electronic-Systeme GmbH

General Terms and Conditions

of DIANA Electronic-Systeme GmbH

I. General Provisions

These General Terms and Conditions shall exclusively govern the legal relations between the Supplier and the Purchaser in connection with the deliveries and/or services of the Supplier (hereinafter: Deliveries). The Purchaser’s General Terms and Conditions shall apply only insofar as the Supplier has expressly agreed to them in writing. The mutual, corresponding written declarations shall be decisive for the scope of the Deliveries.
The Supplier reserves its unrestricted proprietary rights and copyrights to cost estimates, drawings and other documents (hereinafter: Documents). The Documents may only be made accessible to third parties with the prior consent of the Supplier and shall, if the order is not placed with the Supplier, be returned to the Supplier without delay upon request. Sentences 1 and 2 shall apply mutatis mutandis to the Purchaser’s Documents; however, these may be made accessible to such third parties to whom the Supplier has permissibly transferred Deliveries.
The Purchaser shall have the non-exclusive right to use standard software and firmware with the agreed performance features in unmodified form on the agreed devices. The Purchaser may create a backup copy of the standard software without express agreement.
Partial deliveries are permissible, insofar as they are reasonable for the Purchaser.
The term "claims for damages" in these General Terms and Conditions also includes claims for reimbursement of futile expenses.

II. Prices, Payment Conditions and Set-Off

The prices are ex works, excluding packaging, plus the respective statutory value-added tax. The prices stated in offers and price lists are generally non-binding.
If the Supplier has undertaken the installation or assembly and nothing else has been agreed, the Purchaser shall bear, in addition to the agreed remuneration, all necessary ancillary costs such as travel and transport costs as well as allowances. Payments shall be made to the Supplier's paying agent free of charge.
Payments are to be made to the Supplier's paying agent free of charge. Unless otherwise stated in the order confirmation/invoice, the purchase price shall be due for payment without deduction within 30 days from the invoice date. The Supplier may demand an advance payment of a reasonable amount upon receipt of the order confirmation.
The Purchaser may only set off claims that are undisputed or have been legally established.

III. Retention of Title

The objects of the Deliveries (hereinafter: Reserved Goods) shall remain the property of the Supplier until all claims against the Purchaser arising from the business relationship have been fulfilled. Insofar as the value of all security rights to which the Supplier is entitled exceeds the amount of all secured claims by more than 10 %, the Supplier shall, at the Purchaser's request, release a corresponding part of the security rights; the Supplier shall have the choice between different security rights when releasing them.
During the existence of the retention of title, the Purchaser is prohibited from pledging or transferring ownership by way of security, and resale is only permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from his customer or makes the reservation that ownership passes to the customer only when the latter has fulfilled his payment obligations.
In the event of seizures, confiscations or other dispositions or interventions by third parties, the Purchaser shall notify the Supplier without delay.
In the event of breaches of duty by the Purchaser, in particular in the event of default in payment, the Supplier shall be entitled, after the unsuccessful expiry of a reasonable grace period granted to the Purchaser, to take back the goods and to withdraw from the contract; the statutory provisions on the dispensability of a grace period remain unaffected. The Purchaser is obliged to surrender the goods. The taking back or assertion of the retention of title or the seizure of the Reserved Goods by the Supplier does not constitute a withdrawal from the contract, unless the Supplier has expressly declared this.

IV. Deadlines for Deliveries, Delay

Compliance with deadlines for deliveries requires the timely receipt of all documents to be supplied by the Purchaser, necessary approvals and releases, in particular plans, as well as compliance with the agreed payment conditions and other obligations by the Purchaser. If these conditions are not met in good time, the deadlines shall be extended appropriately; this shall not apply if the Supplier is responsible for the delay.
If the non-observance of the deadlines is due to force majeure, e.g. mobilization, war, riot, or similar events, e.g. strike, lockout, the deadlines shall be extended appropriately. The same applies in the event of the Supplier not being supplied in good time or properly.
If the Supplier is in default, the Purchaser may – if he credibly demonstrates that he has suffered damage as a result – demand compensation for each full week of default of 0.5 %, but not more than 5 % in total of the price for the part of the Deliveries which could not be put into expedient operation due to the default.
Both claims for damages of the Purchaser due to delay in delivery and claims for damages instead of performance which exceed the limits specified in No. 3 are excluded in all cases of delayed delivery, even after the expiry of a deadline for delivery possibly set for the Supplier. This shall not apply insofar as liability is mandatory in cases of intent, gross negligence or due to injury to life, body or health. The Purchaser may withdraw from the contract within the scope of the statutory provisions only insofar as the delay in delivery is attributable to the Supplier. A change in the burden of proof to the detriment of the Purchaser is not associated with the above provisions.
The Purchaser is obliged, at the request of the Supplier, to declare within a reasonable period whether he withdraws from the contract due to the delay in delivery or insists on delivery.
If dispatch or delivery is delayed at the Purchaser's request by more than one month after notification of readiness for dispatch, the Purchaser may be charged storage fees of 0.5 % of the price of the objects of the Deliveries for each further commenced month, but not more than 5 % in total. The contracting parties reserve the right to prove higher or lower storage costs.

V. Transfer of Risk

The risk shall pass to the Purchaser, even in the case of freight-free delivery, as follows:
a) in the case of deliveries without installation or assembly, when they have been dispatched or collected. At the Purchaser's request and expense, deliveries shall be insured by the Supplier against the usual transport risks;
b) in the case of deliveries with installation or assembly on the day of acceptance into own operation or, if agreed, after faultless trial operation.
If dispatch, delivery, commencement, execution of installation or assembly, acceptance into own operation or trial operation is delayed for reasons for which the Purchaser is responsible or if the Purchaser is in default of acceptance for other reasons, the risk shall pass to the Purchaser.

VI. Installation and Assembly

Unless otherwise agreed in writing, the following provisions shall apply to installation and assembly:

The Purchaser shall, at its own expense, undertake and provide in good time:
a) all earthworks, building and other ancillary works not specific to the trade, including the necessary skilled and auxiliary personnel, building materials and tools.
b) the necessary consumable items and materials for assembly and commissioning, such as scaffolding, lifting equipment and other devices, fuels and lubricants.
c) energy and water at the place of use, including connections, heating and lighting.
d) at the assembly site, sufficiently large, suitable, dry and lockable rooms for the storage of machine parts, apparatus, materials, tools, etc., and appropriate working and lounge areas for the assembly personnel, including sanitary facilities appropriate to the circumstances; furthermore, the Purchaser shall take measures to protect the Supplier's property and the assembly personnel on the construction site which he would take to protect his own property.
e) protective clothing and protective devices that are necessary due to special circumstances at the assembly site.
Before commencing assembly work, the Purchaser shall spontaneously provide the necessary information about the location of concealed electricity, gas, water pipes or similar installations as well as the required static information.
Before the start of installation or assembly, the items and objects required for the commencement of work must be at the installation or assembly site and all preliminary work must have progressed to such an extent before the start of the assembly that the installation or assembly can be commenced and carried out without interruption as agreed. Access roads and the installation or assembly site must be leveled and cleared.
If the installation, assembly or commissioning is delayed due to circumstances for which the Supplier is not responsible, the Purchaser shall bear the costs for waiting time and additionally required travel of the Supplier or the assembly personnel to a reasonable extent.
The Purchaser shall weekly certify to the Supplier the duration of the working hours of the assembly personnel as well as the completion of the installation, assembly or commissioning without delay.
If the Supplier demands acceptance of the delivery after completion, the Purchaser shall carry out the acceptance within two weeks. If this does not happen, acceptance shall be deemed to have taken place. Acceptance shall also be deemed to have taken place if the delivery – if applicable, after conclusion of an agreed test phase – has been put into use.

VII. Acceptance

The Purchaser may not refuse to accept Deliveries due to minor defects.

VIII. Material Defects

The Supplier shall be liable for material defects as follows:

All those parts or services which show a material defect shall, at the Supplier's option, be repaired free of charge, re-delivered or re-provided, provided that the cause of the defect already existed at the time of the transfer of risk.
Claims for subsequent performance shall become statute-barred in 12 months from the statutory commencement of the limitation period; the same applies to withdrawal and reduction. This period shall not apply insofar as the law prescribes longer periods according to § 438 para. 1 no. 2 (buildings and things for buildings), § 479 para. 1 (right of recourse) and § 634a para. 1 no. 2 (construction defects) BGB in cases of intent, fraudulent concealment of the defect as well as non-compliance with a quality guarantee. The statutory provisions on suspension of expiry, suspension and recommencement of deadlines remain unaffected.
Notices of defects by the Purchaser must be made in writing without delay.
In the event of notices of defects, payments by the Purchaser may be withheld to an extent that is in reasonable proportion to the material defects that have occurred. The Purchaser can only withhold payments if a notice of defect is asserted about whose justification there can be no doubt. A right of retention by the Purchaser does not exist if his defect claims are time-barred. If the notice of defect was unjustified, the Supplier is entitled to demand reimbursement of the expenses incurred by him from the Purchaser.
The Supplier shall be given the opportunity for subsequent performance within a reasonable period.
If subsequent performance fails, the Purchaser may – without prejudice to any claims for damages in accordance with No. 10 – withdraw from the contract or reduce the remuneration.
Claims for defects do not exist in the case of only insignificant deviation from the agreed quality, only insignificant impairment of usability, natural wear and tear or damage that arises after the transfer of risk as a result of faulty or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable subsoil or that arise due to special external influences that are not assumed under the contract, as well as in the case of non-reproducible software errors. If changes or repair work are carried out improperly by the Purchaser or by third parties, no claims for defects shall exist for these and the resulting consequences.
Claims of the Purchaser for expenses required for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded insofar as the expenses increase because the object of the delivery has subsequently been moved to a location other than the Purchaser's branch, unless the relocation corresponds to its intended use.
Claims of recourse by the Purchaser against the Supplier in accordance with § 478 BGB (right of recourse of the entrepreneur) shall only exist insofar as the Purchaser has not made any agreements with his customer that go beyond the statutory claims for defects. For the scope of the Purchaser's right of recourse against the Supplier in accordance with § 478 Para. 2 BGB, No. 8 shall apply accordingly.
Claims for damages by the Purchaser due to a material defect are excluded. This does not apply in the case of fraudulent concealment of the defect, non-compliance with a quality guarantee, injury to life, body, health or freedom and in the case of an intentional or grossly negligent breach of duty by the Supplier. A change in the burden of proof to the disadvantage of the Purchaser is not associated with the above provisions. Further or other claims of the Purchaser due to a material defect than those regulated in this Article VIII are excluded.

IX. Industrial Property Rights and Copyrights, Defects in Title

Unless otherwise agreed, the Supplier is obliged to provide the delivery free of industrial property rights and copyrights of third parties (hereinafter: protective rights) only in the country of the place of delivery. If a third party asserts justified claims against the Purchaser due to the infringement of protective rights by deliveries provided by the Supplier and used in accordance with the contract, the Supplier shall be liable to the Purchaser within the period specified in Art. VIII No. 2 as follows:
a) The Supplier shall, at his option and at his expense, either obtain a right of use for the deliveries concerned, modify them so that the protective right is not infringed, or exchange them. If this is not possible for the Supplier under reasonable conditions, the Purchaser shall be entitled to the statutory rights of withdrawal or reduction.
b) The Supplier's obligation to pay damages shall be governed by Art. XI.
c) The aforementioned obligations of the Supplier shall only exist insofar as the Purchaser notifies the Supplier in writing without delay of the claims asserted by the third party, does not acknowledge an infringement and reserves all defense measures and settlement negotiations to the Supplier. If the Purchaser discontinues the use of the delivery for reasons of damage reduction or other important reasons, he is obliged to inform the third party that the discontinuation of use does not constitute an acknowledgement of a protective rights infringement.
Claims of the Purchaser are excluded insofar as he is responsible for the infringement of protective rights.
Claims of the Purchaser are further excluded insofar as the infringement of protective rights is caused by special specifications of the Purchaser, by an application not foreseeable by the Supplier or by the delivery being modified by the Purchaser or used together with products not supplied by the Supplier.
In the event of infringements of protective rights, the provisions of Art. VIII Nos. 4, 5 and 9 shall apply mutatis mutandis to the Purchaser's claims regulated in No. 1 a).
In the event of other defects in title, the provisions of Art. VIII shall apply accordingly.
Further or other claims of the Purchaser against the Supplier and his vicarious agents due to a defect in title than those regulated in this Art. IX are excluded.

X. Impossibility, Contract Adjustment

Insofar as the delivery is impossible, the Purchaser is entitled to demand damages, unless the Supplier is not responsible for the impossibility. However, the Purchaser's claim for damages shall be limited to 10% of the value of that part of the delivery which cannot be put into expedient operation due to the impossibility. This limitation shall not apply insofar as mandatory liability exists in cases of intent, gross negligence or due to injury to life, body or health; a change in the burden of proof to the detriment of the Purchaser is not associated herewith. The Purchaser's right to withdraw from the contract remains unaffected.
If unforeseeable events within the meaning of Art. IV No. 2 significantly change the economic significance or the content of the delivery or have a significant impact on the Supplier's operations, the contract shall be reasonably adjusted taking into account good faith. Insofar as this is not economically justifiable, the Supplier shall have the right to withdraw from the contract. If he wishes to exercise this right of withdrawal, he must notify the Purchaser without delay after becoming aware of the scope of the event, even if an extension of the delivery period had initially been agreed with the Purchaser.

XI. Other Claims for Damages, Limitation Period

Claims for damages by the Purchaser, regardless of the legal reason, in particular due to breach of duties arising from the obligation and from tortious acts, are excluded.
This shall not apply insofar as liability is mandatory, e.g. under the Product Liability Act, in cases of intent, gross negligence, due to injury to life, body or health or due to the breach of essential contractual obligations. However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical of the contract, unless there is intent or gross negligence or liability for injury to life, body or health. A change in the burden of proof to the detriment of the Purchaser is not associated with the above provisions.
Insofar as the Purchaser is entitled to claims for damages, these shall become statute-barred upon expiry of the limitation period applicable under Art. VIII No. 2. The same applies to the Purchaser's claims in connection with measures to prevent damage (e.g. recall actions). For claims for damages under the Product Liability Act, the statutory limitation provisions shall apply.

XII. Place of Jurisdiction and Applicable Law

If the Purchaser is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the Supplier's registered office. However, the Supplier is also entitled to sue at the Purchaser's registered office.
German substantive law shall apply to the legal relations in connection with this contract, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

XIII. Binding Nature of the Contract

The contract shall remain binding in its remaining parts even if individual provisions are legally ineffective. This shall not apply if adherence to the contract would represent an unreasonable hardship for one party.

Supplementary Clause Extended Retention of Title

Central Association of the German Electrical and Electronic Industry (ZVEI) e. V. Status: November 2005

The following simple and extended retention of title is agreed:

The objects of the Deliveries (hereinafter: Reserved Goods) shall remain the property of the Supplier until all claims against the Purchaser arising from the business relationship have been fulfilled. Insofar as the value of all security rights to which the Supplier is entitled exceeds the amount of all secured claims by more than 10 %, the Supplier shall, at the Purchaser's request, release a corresponding part of the security rights; the Supplier shall have the choice between different security rights when releasing them.
During the existence of the retention of title, the Purchaser is prohibited from pledging or transferring ownership by way of security, and resale is only permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from his customer or makes the reservation that ownership passes to the customer only when the latter has fulfilled his payment obligations.
If the Purchaser resells Reserved Goods, he hereby assigns his future claims from the resale against his customers with all ancillary rights, including any balance claims, to the Supplier as security, without the need for further special declarations. If the Reserved Goods are resold together with other objects without a separate price having been agreed for the Reserved Goods, the Purchaser assigns to the Supplier that part of the total price claim which corresponds to the price of the Reserved Goods invoiced by the Supplier.
a) The Purchaser is permitted to process the Reserved Goods or to mix or combine them with other objects. The processing shall be carried out for the Supplier. The Purchaser shall store the new item created in this way for the Supplier with the care of a prudent businessman. The new item shall be deemed to be Reserved Goods.
b) The Supplier and the Purchaser already agree that in the event of combining or mixing with other objects not belonging to the Supplier, the Supplier shall in any case acquire co-ownership of the new item in proportion to the value of the combined or mixed Reserved Goods to the value of the other goods at the time of combining or mixing. The new item shall be deemed Reserved Goods in this respect.
c) The regulation regarding the assignment of claims according to No. 3 shall also apply to the new item. However, the assignment shall only apply up to the amount corresponding to the value of the processed, combined or mixed Reserved Goods invoiced by the Supplier.
d) If the Purchaser combines the Reserved Goods with land or movable property, he hereby assigns, without the need for further special declarations, also his claim to which he is entitled as remuneration for the combination, with all ancillary rights, as security to the Supplier in the amount of the ratio of the value of the combined Reserved Goods to the other combined goods at the time of the combination.
Until revocation, the Purchaser is authorized to collect assigned claims from the resale. In the event of an important reason, in particular in the event of default in payment, cessation of payment, initiation of insolvency proceedings, bill of exchange protest or justified indications of over-indebtedness or impending insolvency of the Purchaser, the Supplier is entitled to revoke the Purchaser's collection authorization. Furthermore, the Supplier may, after prior warning and observance of a reasonable period, disclose the security assignment, realize the assigned claims, and demand the disclosure of the security assignment by the Purchaser to the customer.
In the event of seizures, confiscations or other dispositions or interventions by third parties, the Purchaser shall notify the Supplier without delay. If a legitimate interest is credibly demonstrated, the Purchaser shall provide the Supplier with the information required to assert his rights against the customer and hand over the necessary documents.
In the event of breaches of duty by the Purchaser, in particular in the event of default in payment, the Supplier shall be entitled, after the unsuccessful expiry of a reasonable grace period set for the Purchaser, to take back the goods and to withdraw from the contract; the statutory provisions on the dispensability of a grace period remain unaffected. The Purchaser is obliged to surrender the goods. The taking back or assertion of the retention of title or the seizure of the Reserved Goods by the Supplier does not constitute a withdrawal from the contract, unless the Supplier has expressly declared this.

General Terms and Conditions (GTC) of DIANA Electronic-Systeme GmbH