1. Validity of conditions
1.1 Our deliveries, services and offers are exclusively subject to these conditions of sale. As a consequence, these conditions are also valid for all future business dealings, even if this had not been agreed once again.
1.2 These conditions are regarded as accepted on receipt of the consignment or service at the latest. This is to confirm that any variation of these conditions made by the buyer in orders or counter-confirmations is ineffective, unless accepted in writing by DGA.
2. Offer and completion of contract
2.1 Our offers are subject to alteration and not binding. Basically, contracts (orders and acceptances), as well as modifications and amendments must be drawn up in writing. Further, oral agreements and oral promises, which go beyond the contract, are ineffective. This is also valid for the change of this necessary written form itself.
2.2 Further agreements must be confirmed in writing in any case.
3.1 Our prices are always subject to our current price lists plus the current, statutory value added tax (VAT). For the written acknowledgements, the prices of our confirmations plus VAT are valid. Orders without fixed prices are subject to the current list prices of the day of delivery or service. After completion of contract, increases of prices for deliveries and services are allowed, if they are subject to modifications of pricing factors which have unexpectedly arisen, from one months after completion of the contract on. The price increase must be justified according to the modification of the pricing factors and must be indicated to the buyer within a reasonable period.
If firm prices had been agreed this is just valid if the change arose unexpectedly after the completion of the contract.
3.2 Our prices for deliveries and services are quoted ex works, if not agreed otherwise. Additional deliveries and services are charged separately. The freight charge is based on the current freight rate.
4. Determination of weight
4.1 Weights and measures are subject to the usual deviation. For the invoicing, the weight, which has been established with an officially examined scale, is valid.
4.2 For the determination of weight for deliveries in drums, small tins or other packaging, the weight, established by weighing or counting, is important; in this case gross for net applies.
4.3 At any time, the buyer is authorized to control the determination of weight at his charge. It can only be complained about the weight and the amount immediately on receipt of the goods at the place of destination (gussasphalt before unloading).
5.1 If delivery is agreed free building site, the vehicle must be able to reach the unloading site without any problems. Is it not possible to reach the unloading site because of any reasons or unreasonable the loading takes place at that place which the vehicle can reach without any problems.
At train or ship transport the buyer is responsible for the unloading himself. At lorry transport the buyer is responsible for the unloading if a draining of the delivered goods is not possible. Costs resulting from the unloading have to be paid by the buyer (i. e. placing of a crane).
5.2 The buyer has immediately to place labourers, if necessary, for the unloading.
6.1 If not agreed otherwise, payment must be effected within 30 days from date of invoice without any deduction. If settlement has not been effected within these 30 days, DGA is authorized to charge the buyer with interests, which are 8 % higher than the base interest rate in the sense of the federal law. If we take up an open account credit to an interest rate, which is higher, we are authorized to charge an interest concerning this interest rate.
6.2 DGA is authorized, despite other regulations by the buyer, to take payments firstly into account for “old“ debts made by the buyer. In case of already existing costs and interests, DGA reserves the right to count first the costs, then the interests and at last the main amount. Postal orders paid by the postman to the payee in person, cheques and bills of exchange are only accepted in case of special agreements and only for settlement with charges for withdrawals and discount expenses.
6.3 A payment is regarded as settled, as soon as the amount of money is at DGA’s disposal. The payment by cheque or bill of exchange is considered as done at the time of cash in and no recharge of the cash in bank took place.
6.4 If the buyer fails to pay, especially fails to cash in cheques or bills of exchange, stops paying or if DGA gets to know other circumstances which cast doubts on the buyer’s credit-worthiness, then the total amount remaining is payable, even if cheques or bills of exchange have been accepted. In this case, DGA is additionally authorized to withdraw from delivery and service obligations and to demand advance payments or safety measures.
6.5 The customer is only allowed to charge, retain or reduce, if the counter-claims come into force or if they are indisputable, even if the buyer asserts complaints or counter-claims.
7. Delivery and service time
7.1 The dates and periods of time given by DGA are not binding, if not agreed otherwise in writing
7.2 24 hours after passing a date or period of delivery/service which is not binding, the customer can call upon DGA in writing to supply/render service within a reasonable period of time. This reminder delays DGA.
7.3 The customer is only allowed to claim for compensation in case of intention or gross negligence by DGA; liability is limited to foreseeable damages.
7.4 In case of a delay in delivery/service, the customer can give DGA an additional time for performance of the contract in writing, indicating that he would refuse acceptance of the contract at the end of this period of time. If DGA does not react during this additional time, the customer is authorized to withdraw from the contract by a written statement.
7.5 The customer is only allowed to claim for compensation due to non-fulfilment in case of intention or gross negligence by DGA, liability is limited to foreseeable damages.
7.6 If delivery/service is considerably hindered or made impossible by coincidence while DGA is in delay of performance of the contract, DGA will be liable according to clauses 7.3. to 7.5. DGA could not be made liable if the damage occurred anyway in case of punctual delivery/service.
7.7 If a binding date or period of delivery/service is exceeded, DGA will already be in delay of performance of the contract at the time of exceeding. The customer’s rights are then defined in clause 7.3. to 7.5.
7.8 DGA is relieved of all liability concerning delays in delivery/service caused by acts of God and by circumstances hindering delivery/service considerably – such as subsequent difficulties in obtaining material, malfunctions, strikes, lock-outs, staff shortage, lack of means of transport, orders from the authorities etc., even if our subcontractors or their contractors are affected by them – even if arrangements of dates or periods of time are binding. DGA is authorized to postpone the delivery/service for the time of delay plus a reasonable amount of time or to withdraw completely or partly from the contract for the obligations, which have not yet been fulfilled.
7.9 If the delay takes more than 10 days, the customer is authorized – after setting a reasonable additional period of time – to withdraw from the part of the contract, which has not yet been fulfilled according to clause 7.4. The customer’s rights are then defined in clause 7.5.
7.10 At any time we are authorized for partial deliveries/services.
8. Risk of loss
8.1 The customer must bear the risks from the time when the consignment is passed on to the person executing transport or as soon as it leaves our delivery premises for dispatch. If the dispatch is made impossible through no fault of DGA, the customer must bear the risks from the time when the readiness for dispatch is announced.
9.1 The composition of the contract is subject to the General Technical Regulations and to the Additional Technical Regulations as far as existing. Information given in DGA’s current descriptions (for example test reports, formulas available at the delivery premises) about the composition of the contract are contents of the contract as far as they are planned to be part of the contract within the Additional Technical Regulations. Information given is to be considered as approximate and always as a scale to establish if the contract is without faults, differing of limits may in any case be within tolerances.
9.2 For the duration of the statutory guarantee period DGA ensures that the object of the contract is without faults and possesses the qualities, which might have been guaranteed, at the most, however, for a period of 1 year. The guarantee period starts with the respective date of delivery/service.
9.3 The customer has to indicate faults in writing immediately after detection. This indication requires a taking of samples according to the German Industrial Standard (for example DIN 1996). A taking of samples on site has to be effected in the presence of DGA’s representative.
9.4 If the object of the contract is faulty or if qualities ensured are lacking, DGA will supply/render service in place of it with the guarantee claims excluded. If the customer is not interested in a replacement or if the expenditure of it is too high compared with the advantage for the customer, the customer is only authorized to demand reduction of the compensation or to cancel the contract as desired. A cancellation of the contract is impossible if the nature of the contract service takes away from a guarantee.
9.5 The above clauses finally contain the guarantee for the objects of the contract and exclude other guarantee claims of any kind. Did we include a quality assurance the customer has got all legal rights resulting from a lack.
10.1 According to the following regulations DGA will be liable for the damage – no matter which cause in law is subject to it – if DGA, DGA’s legal representatives, DGA’s agents of vicarious liability or DGA’s employees are culpably responsible for the damage.
10.2 Liability to DGA’s customer is excluded except for damage out of the injury of life, of the body or of the health and for cases of intention or gross negligence. This is not valid provided that we took over a guaranty for the nature of an object.
10.3 DGA’s liability is limited to the damage consequently foreseeable. Liability for an after-effect damaging which is not subject to a quality assurance is excluded in accordance with clause 10.2.
11. Extensive reservation of proprietary rights
11.1 Until performance of all claims to which DGA is now or in future entitled by any cause in law, the following securities are granted to DGA. We will decontrol these securities to our choice, as far as their value exceeds the claim persistently by more than 20 %.
11.2 The goods delivered by DGA are subject to reservation of proprietary rights. The customer is authorized to process and to sell the products with reserved proprietary rights in accordance with the regulations of business dealings. If the customer sells the product or if he makes other orders or actions in favour of a third person and if in these cases the possibility of transferring the claims to a third person is excluded, the conditions in accordance with the regulations of business dealings are not valid.
11.3 The right of ownership for the customer concerning the products with reserved proprietary rights in case of processing and selling is excluded. Processing or reconstructing only takes place for DGA as manufacturer, but without obligation for DGA.
11.4 In case of linking or mixing of the products with other mobile goods, in the form of becoming a considerable part of a unit, DGA becomes the joint owner. DGA’s share is determined by the value of the good at the time of linking and mixing. But if the product delivered by DGA is the essential element, DGA has the sole ownership. In case of linking the product with a building, a demand of the customer concerning a mortgage of the site from the building contractor has to be transferred to DGA according to the value of the delivered product.
11.5 The claims arising from the processing or from another cause in law that concern the reserved goods are just now transferred to DGA for safety’s sake at the purchase price of the reserved goods. The customer is authorized to withdraw the demands on behalf of DGA. The authorization for withdrawal is not given if the customer does not meet his commitments for payment. In this case, DGA is authorized to reveal the transfers to the garnishees.
11.6 At building site deliveries where a partial transfer between customer and client is just possible after an advanced approval of the contractor, but the approval is not given or a partial transfer is generally excluded, apart from clause 11.5 the following is valid:
The transfer refers without taking into consideration of the height of the purchase price of the reserved goods to the whole demands of the customer out of the building site, for which fulfilling the customer disposed of the reserved goods. Payments of the garnishee to DGA will be immediately transferred to the customer, as soon as DGA’s demand of the payment of the purchase price as well as possible supplementary demands had been settled. The customer can transfer this demand against us. If the garnishee makes interim payments to us and if this amount exceeds the transferred demand to us or the demand to pay the purchase price by more than 20 %, we are obliged to transfer the received amounts immediately to our customer as far as they exceed the height of the demand plus 20 %.
11.7 The customer is obliged to give us prompt information, which are necessary to assert DGA’s claims and further demands at his charge and to pass the certificates of evidence on to DGA, as far as they are at his disposal. This obligation respectively exists with an compulsory execution for objects, claims and other capital rights owned by DGA. The customer has to inform DGA immediately about the compulsory execution. Furthermore, he has to indicate DGA’s rights to the attachment creditor in writing. Apart from the above-mentioned obligations to give information and to present certificates of evidence, the customer is obliged to indicate the transfer in writing together with DGA.
12. Group settlement clause
12.1 DGA is authorized to set all kinds of claims off against customers’ claims which are existing against DGA and DGA’ s subsidiaries, even if the claims have different dates of maturity, as far as the customer knows that the concerning firm is a subsidiary.
13. Further regulations
13.1 All data resulting from the contract will be saved and used in accordance with § 28 BDSG.
13.2 So far as permissible by law, our head office is the exclusive place of jurisdiction concerning all disputes, which result indirectly or directly from the contract.
13.3 These conditions of sale and any contract arising there from shall be governed and construed in accordance with German law.
13.4 If any regulation of these terms of sale or any regulation in the course of other agreements are or will be ineffective, the effectiveness of all the other regulations or agreements is not affected.