These general terms and conditions of DREGER Group GmbH (hereafter referred to as DGG) apply to all contracts for work and services and service contracts – also in the future in the course of ongoing business relationships that DGG performs for its customers. As far as no additional contractual terms of DGG take effect, the conclusion of the contract accomplishes on the basis of the following terms. The terms and conditions take effect with the conclusion of the contract between DGG and the customer. In so far the customer is being advised of these general terms and conditions explicitly by delivery or by indication of a chance on information. Thus the conditions are considered being accepted. Secondary clauses respectively individual conditions are generally ineffective without ratification in writing.
§2 Offer, Conclusion and Termination of Contract
Offers made by DGG are subject to change and without obligation. By ordering services and/or products, the customer declares bindingly to acquire the ordered service and product. Acceptance is being effected by written confirmation, normally electronic confirmation (e-mail), or actual accomplishment by DGG, with stating the non-binding dates of performance. DGG reserves the modality of accomplishment, as long as this does not diverge considerably from the content of the service agreement.
The service contract expires on the planned end date or by cancellation in writing with a period of one month’s notice. Furthermore, a service contract can only be resigned for cause.
§3 Obligation to Cooperation for customers
The customer commits oneself to support the service contractual tasks of the contractor DGG for a proper accomplishment. Amongst other things this includes: providing of data required for the activity in time, organizational involvement, enabling of an unhindered work flow, providing an individual contact person, with the objective of obtaining the aimed-at results respectively the appointed time schedule. If the deadline cannot be met, an adequate period of grace is to be granted.
§4 Business Discretion, Protection of Privacy
The customer and DGG bind themselves to secrecy about any information that are associated with the activity or which otherwise result from the business relation. DGG reserves that a corresponding letter of intend has to be signed. The customer agrees that DGG may save and use contact information, including name, telephone numbers and e-mail addresses. Such Information can be processed and used in context of existing business relationships and can be passed on to DGG’s representatives and its associated corporations for the purpose of collaborative business activities.
§5 Storage and Return of Documents
The customer commits himself to store all provided business and operational documents orderly, particularly in such a way that third parties cannot inspect them. These provided documents are to be treated as confidential for the duration of the contract and are to be returned after completion if necessary.
§6 Patent Rights and Copyrights
DGG reserves the intellectual property right and copyright for descriptions, concepts, ideas, conceptual designs and similar documents created by DGG. These documents must not be customized for third party use without approval in writing. This includes all forms of duplication. In case of violation, DGG is entitled to claim compensation for damages. DGG is not liable for offenses of patent or other industrial property rights by the customer.
Dates and periods of delivery or service which are agreed upon either bindingly or nonbindingly are required in writing. Every delivery is being made at the customer’s risk and expense, even when made with explicit conceded acceptance of transportation costs.
If delivery times prolong or if DGG is released from delivery obligations, the customer cannot derive any compensation claims from this.
Claims regarding delay are excluded, unless the delay is based on intent or gross negligence. DGG is entitled to render partial deliveries or services at any time.
§8 Passing of Risk
With delivery the risk of accidental loss or incidental deterioration of goods passes over to the customer and with a contract of sale involving the carriage of goods to the transporting person.
No warranty is taken for defects the customer is already aware of at conclusion of the contract. For services there is no claim on success, but only on duly performance of contract. A finished work is not owed, unless separately agreed upon.
Entrepreneurs have to notify DGG of apparent defects and malfunctions immediately in writing, though not later than one week after receipt of delivery item respectively provision of services. Otherwise assertion of warranty claims is excluded. A punctual dispatch of a notice of defects suffices to comply with the time limit. DGG shall opt at its own choice for either remedy or replacement.
Is the purchaser, asserting a warranty claim, also customer, then he first has the choice, whether the supplementary performance shall be made as rectification of defects or as replacement. DGG, however, shall be entitled to decline the chosen type of supplementary performance, if it is only performable with disproportional expenses and if at the same time the other type of supplementary performance is without considerable disadvantages for the user. If even repeated remedies or replacements do not bring any rectification of defects, then the customer may demand either reduction of payment (abatement) or cancellation of the contract (rescission) at his own choice. For minor deficiencies the customer has not the right to cancellation of the contract. Alongside the customer is not entitled to assert claim for damages due to the deficiency.
If the customer receives an insufficient mounting instruction, DGG is merely liable for delivery of an instruction free of defects and only, if the insufficiency of the mounting instruction conflicts with a proper installation. The customer does not receive any warranties according to the law by DGG. Manufacturer warranties shall remain unaffected.
DGG does not owe any success with supplying services. DGG is merely obliged to impart the services according to latest technological and/or scientific knowledge to the customer.
§10 Limitation of Liability
DGG’s liability shall confine itself to the average damage that is foreseeable, direct and typical for this type of agreement when a slight negligent breach of duty befalls the customer. This also applies to slight negligent breach of duty made by legal representatives or vicarious agents of DGG. DGG is liable to companies for gross negligence and intent only.
The foregoing liability limitations do not apply, unless liability is compulsory by law.
§11 Retention of Title
Within customer contracts goods remain property of DGG unless total payment has been effected. Within company contracts goods remain property of DGG unless total payment of all claims from current business connections has been effected, including all debit balance claims from current account. DGG is entitled to withdraw from the contract and demand the return of contract goods, if the customer acts contrary to contract, particularly with delayed payment or neglect of foregoing duties.
The customer obligates oneself to provide any information that is required to assert DGG’s rights and to deliver required documents for this.
Adaptation and processing of goods by the entrepreneur is always been carried out by order and on behalf of DGG, without accruing any liabilities for DGG through this.
If a processing occurs with articles not owned by DGG, then DGG acquires co-ownership of the new object proportionally to the value of the products delivered by DGG and the other processed objects. The same applies, if the product is mixed with other products not belonging to DGG. The Customer stores the co-ownership of DGG free of charge.
The agreed prices/payment are quoted exclusive of VAT, which is shown separately on the calculation. Payment is on receipt of invoice due net and at once. DGG is allowed to put customers in default by demand note already before expiration of 30 days after issuing an invoice or by calendar like regulation in the invoice. At the latest, 30 days after receipt of an invoice delay of payment occurs. DGG shall reserve the right to raise claims for overdue payment.
DGG is granted a “Tilgungsbestimmungsrecht” as per § 366 of German Civil Code, so that contrary terms by debtors are not effective. Payment is considered as received, when DGG has access to the amount. In case of a check, the payment is considered as received when paying the check.
§13 Severability Clause
If an actual or future term of this agreement should become totally or partly not legally effective, not practicable or should lose legal effect or practicability later on, the validity of remaining terms in this agreement is not affected. The same applies, if it becomes evident that there is a loophole in the agreement.
As far as it is legally possible, a reasonable settlement, which comes closest to the arrangement the contracting parties intended or may have intended, shall apply instead of ineffective or impracticable terms or in order to fill in the blank, provided that the parties had thought of this issue at signing the contract.
§14 Applicable Law and Place of Jurisdiction
For these General Terms and Conditions and entire legal ties between DGG and a customer, the Law of the Federal Republic of Germany shall apply. The terms of the UN-CISG do not apply.
Exclusive jurisdiction for all direct and indirect disputes due to this agreement is Frankfurt am Main, if the customer is a merchant, legal person of public body or special property under public law. The same applies to customers who do not have a place of general jurisdiction within the Federal Republic of Germany or whose residence or sojourn at the time of institution of legal proceedings is unknown.
This English version is a translation from the German original. In case of contradictions the German version shall obtain exclusively.