1.1 Unless otherwise expressly agreed upon in writing, our supplies and services are exclusively subject to the following General Terms and Conditions of Sale. On acceptance of the order by us these conditions shall also apply as agreed to all later business, even if by further contracts – particularly telephone orders – we do not expressly refer to them. The acceptance of goods delivered by us, or services performed by us indicates, in any case, the acceptance of these general terms and conditions of sale.
1.2 Any conditions of the Customer shall apply only if and to the extent to which we have expressly consented thereto in writing.
2.1 Any advice and information given on our products is based on our experience to date. The data, in particular concerning the possibilities of use of our products, are average data only and do not represent quality description of the products. We are unable to assume any liability as to the exact correctness of the data and the possibilities of use. As far as the Customer is entitled to damages notwithstanding this provision, clause 9 shall apply.
2.2 Any document and object, such as drawings, samples or models, made available to the Customer in connection with our offers, remain our property. We are the holder of copyrights and related protective rights within the meaning of the German Copyright Act (Urheberrechtsgesetz) regarding these documents and objects. The Customer is not entitled to disclose to third parties the documents made available without our prior written consent.
3.1 Our offers are not binding. A contract for delivery shall be concluded only upon either our written confirmation of the Customer’s order or, where no such confirmation is given, the delivery of the goods. The contents of the contract shall be determined by our written confirmation, in case of delivery without prior confirmation, our delivery note shall be deemed as being such written confirmation. Oral statements and explications of our commercial representatives/travelling salesmen (“Handelsvertreter”/“Reisende”) are in any case not binding.
3.2 Any information given on our products, in particular, pictures or drawings or information concerning quality, quantity, weight, colour, measure and performance enclosed in our offers are approximate data only and no quality descriptions. As far as permissible deviations are not stipulated in the order confirmation and none are given in the Customer’s specification expressly accepted, deviations customary in the industry are admissible in any case. The composition, suitability, qualification, function and purpose of our products are exclusively determined by our specifications and technical qualifications. Public statements, laudations or advertising by third parties do not represent a quality description of the product.
3.3 Guarantees regarding qualities or shelf life of our products must be expressly declared as such in the order confirmation. If models and samples are delivered, their qualities are not warranted unless expressly stated otherwise in the order confirmation. However, we endeavour to deliver products which properties comply with the properties of the models or samples or the result of analyses, respectively.
4.1 Deliveries are effected ex work. Goods shall be packed by us at the expense of the Customer.
4.2 Where delivery dates or times are not expressly declared as fixed in our written order confirmation but are to be regarded as estimates, the Customer may set a reasonable time limit for delivery two weeks after expiry of the delivery dates or times. We are only in default after expiration of such final time limit.
4.3 In case of default or impossibility of performance we are liable for claims for damages exclusively pursuant to the provisions in clause 9 below. Our liability for damages caused by default is limited to 0.5 % per completed week of the value of the delivery or partial delivery that is in default. Our maximum liability for damages caused by default is limited to 5 % of the value of the (partial) delivery in default.
4.4 In cases of force majeure, for example operational disturbances, delay in transportation, measures taken in the course of industrial action, in particular strike and lockout, and in cases of nondelivery, incorrect or delayed delivery by our own suppliers, irrespective of its cause (reservation of selfsupply), and in any other case of insufficient performances for which we are not responsible, we shall be entitled to extend the delivery period for the duration of the obstruction and for a reasonable period thereafter to reinstate works. If it is foreseeable that the inability to perform will be of permanent nature, we are entitled to refuse the delivery completely or in part. In that case the Customer is not entitled to any damage claims. He is no longer obliged to fulfill his contractually agreed counterperformance
and any advance payments will be returned.
4.5 We are entitled to make partial deliveries. Place of performance is always our company seat, unless otherwise agreed upon in writing.
4.6 The risk shall pass at the time the goods leave our work, at the latest, however, upon delivery to the forwarding agent. If dispatch is delayed for reasons for which we are not responsible, the risk shall pass from the day of the notification that the goods are ready for dispatch.
4.7 If delivery upon request is agreed upon, the respective requests must be placed within three months after availability of the products, unless other wise agreed upon in writing. In case the Customer does not request delivery within the specified time, clause 4.9 shall apply accordingly.
4.8 Freight is charged as a percentage of the net value of goods, this lump sum shall include insurance against transport damages occurring from common risks of transportation. If shipment is exercised by package service, we shall be entitled to invoice the actually incurring expenses.
4.9 If the Customer refuses acceptance of the goods or if shipment is delayed for reasons which the Customer is responsible, the risk shall pass when his default in acceptance commences. Any storage costs incurred after the risk has passed shall be payable by the Customer. We are entitled to charge either a lump sum of 0.5 % of the invoice amount per month as storage costs or the damage actually suffered, unless the Customer proves lesser damage. In addition, we are entitled to set the Customer a final period of fourteen (14) days and to rescind the contract or claim damages for nonfulfillment if this period lapses without acceptance of the goods by the Customer.
4.10 Unless the Customer has stipulated otherwise we generally charge an extra amount of 2 % of the value of goods (net invoice amount) for insurance against breakage.
5.1 The customer is permitted to sell the delivered goods only in individual Export businesses that he or she operates and that have been reported to us in writing and authorized by us. The customer is permitted to sell the delivered goods only to end customers or to other dealers that we have authorized.
5.2 For reselling our products the customer may not use an online platform hosted by a third party, if by using the platform the internet user visits the customer’s website through a site that carries the name or logo of the third party platform.
6. Trademarks, photographs and websites
6.1 The client acknowledges, that we are the sole owner of the company
name „DIBBERN“ as well as of the DIBBERN logo
(in the following “trademarks”). Any use of the trademarks in the course of business is only allowed with our explicit consent or according to the doctrine of exhaustion of trademark rights and its limited scope of use. The client is not allowed to make any changes to the trademarks.
6.2 When using the trademarks in connection with an internet presence or an onlineshop, the following rules apply:
– The use of “DIBBERN” within a domain name is only permitted, if it is preceded by the name of the client or the name of his business. The domain may not give the impression that the domain refers to our official DIBBERN homepage or to our official DIBBERN online shop (see www. dibbern.de, www.dibbernhamburg.de, www.dibbernonlineshop.de).
– The use of the DIBBERN logo or parts thereof as a so called “Favicon” (if figurative sign in the browseraddress and/or the browsertab) is not permitted.
– The internet presence or the online shop may not give rise to the impression that it is the official DIBBERN homepage or the official DIBBERN online shop. The trademarks therefore have to be used discretely and in a restrained manner. And the design of the internet presence or the online shop must always show a sufficient distance to the official DIBBERN homepage or the official DIBBERN online shop (see www. dibbern.de, www.dibbernhamburg.de, www.dibbernonlineshop.de).
In particular it is not permitted
– to prominently use the DIBBERN logo on the start page of the internet presence or the online shop
– to prominently use the DIBBERN logo in the upper third part of the website
– to alter the DIBBERN logo, to cut it or to use it in a new combination.
– Furthermore, on websites on which our trademark is used the customer’s name and/or his logo must always be applied in a clearly visible way. The use of the DIBBERN logo must not be on a bigger scale than the company name and/or the logo of the client. It always must be clearly identifiable that the customer and not DIBBERN is responsible for the internet presence and/or the online shop.
6.3 As far as we provide our customers with product photographs free of charge for the use in advertising our products, the right to use the photographs can be revoked within a reasonable timeframe. You have to respect the given restrictions of use with regard to time and territory. The photographs may not be modified, cut and/or altered without our explicit consent.
7.1 Our prices do not include the lawful value added tax that applies at the
time. Packaging costs will be billed separately.
7.2 A “small volume” surcharge in the amount of 30.00 Euros plus the lawful value added tax that applies at the time will be levied on individual orders up to a net invoice amount of 300.00 Euros.
7.3 The Customer is not entitled to make any deductions from amounts due to us due to any counterclaims or to exercise a right of retention, unless otherwise agreed upon in writing or the counterclaims or the right of retention have been acknowledged by us in writing or declared valid with final effect in a judicial proceeding.
7.4 Payment of our invoices is due within thirty (30) days from the invoice date, unless otherwise agreed upon in writing. The Customer is in default, if this period lapses without payment. For payment within fourteen (14) days from the date of invoice a discount of 2 % of the invoiced amount is granted. Any further discounts or deductions are not granted. We do not accept bills of exchange.
7.5 If the Customer is in default with any payments due, we are entitled to claim interest at 8 % p.a. above the baselending rate of the Deutsche Bundesbank, unless a higher or lower damage is proven.
7.6 The Customer is not entitled to assign any claims to third parties following from this contract without our prior written consent.
8.1 All goods delivered shall remain our sole property (“Vorbehaltsware” – separate goods) until the Customer has fully satisfied all existing claims and those arising after conclusion of contract.
8.2 Processing and transformation of the separate goods is made for us as manufacturer (“Hersteller”) in the sense of sec. 950 German Civil Code (BGB), without obligation to us. Processed and transformed goods are deemed to be separate goods within the meaning of clause 8.1 above. In case of processing and transformation, combining and intermixture of the separate goods by the Customer with goods of other origin to a new product or to an intermixed stock, respectively, we become coowner of it, namely in the ratio of the invoiced amount of the separate goods at the time of delivery to the value of the other processed or the intermixed goods, respectively. The coownership share is held as separate goods within the meaning of clause 8.1 above.
8.3 If separate goods are connected with other goods and if goods belonging to the Customer are to be regarded as the principal good within the meaning of sec. 947 German Civil Code (BGB), it is hereby agreed that the coownership share is transferred to us in the ratio of the invoiced amount of the separate goods to the value of the principal good and that the Customer holds the goods in safe custody for us free of charge. The coownership share is held as separate goods within the meaning of clause 8.1 above.
8.4 The Customer shall hold the separate goods in safe custody and provide for insurance against the risk of fire and theft during this time and give proof upon our request. At any time and upon our request the opportunity of stocktaking and stock marking at the warehouse must be given. The Customer shall notify us immediately of any seizure or other interference of third parties in respect to our property rights and will provide us with all documents and information necessary to oppose such interference with all legal means.
8.5 The Customer is entitled to resell the separate goods exclusively within the ordinary course of business according to his usual conditions provided that he also ensures retention of title as stipulated above and if it is ensured that his claims arising from the resale pursuant to clauses 8.6 through 8.8 below are transferred to us.
8.6 The Customer hereby assigns to us all claims he acquires against his buyers through the resale of separate goods, also within the scope of contracts for work and contracts for delivery of work, with all subsidiary rights. The assigned claims shall function as security for our claims to the same extent as the separate goods. The Customer is only authorised to assign claims to third parties with our prior written consent.
8.7 If the Customer sells the separate goods together with other goods not supplied by us, the claim following from such sale shall only be assigned to us up to the amount invoiced by us for the respective separate goods at the time of delivery. For the resale of goods, for which we become coowners pursuant to clause 8.2 or clause 8.3, respectively, the assignment of claims is valid up to the amount of the coownership share.
8.8 If the assigned claim is taken into a current account, the Customer hereby assigns to us a corresponding part of the balance of such account, including a deficit balance.
8.9 The Customer is authorised to collect the claims assigned to us pursuant to clauses 8.5 through 8.7 above on our behalf until revocation of this right by us.
8.10 If the Customer does not fulfill his obligations under this or any other contract entered into with us or if circumstances making the creditworthiness of the Customer doubtful become known to us,
– we are entitled to prohibit the resale, the processing and transformation of the separate goods as well as the combination and intermixture with other goods;
– we are entitled to rescind of the contract; in this event, the Customer’s right of possession of the separate goods terminates and we are entitled to demand surrender of the separate goods; the claim for surrender is deemed as rescission only if the rescission is expressly declared by us; we are then entitled to enter the Customer’s business premises and take possession of the separate goods at the expense of the Customer and to sell it by private sale or public auction at the highest price possible, notwithstanding the Customer’s financial obligations and other duties; after deduction of the costs of such sale the proceeds thereof shall be used to reduce the Customer’s debt; any remaining surplus shall be made available to the Customer;
– upon our request the Customer shall provide us with the names of the debtors of all claims assigned to us to enable us to disclose the assignments and collect these claims; the Customer shall forward to us any payments he receives on claims assigned to us immediately upon receipt if and as soon as our claims against the Customer become due;
– we are entitled to revoke the Customer’s right to collect the claims assigned to us on our behalf.
8.11 If the value of the security provided to us exceeds the aggregate of our secured claims by more than 20 %, we are under an obligation to release security of our choice to this extent at the request of the Customer.
9.1 The Customer shall diligently examine the goods immediately upon receipt at the place of destination, also if models or samples were delivered in advance. The goods are to be particularly examined with respect to their external quality. If boxes, cartons or other containers are delivered, samples have to be taken at random. The goods shall be deemed to have been accepted without any defects, unless the Customer notifies us of any defect within ten (10) days after receipt of the goods at the place of destination or, in case of hidden defects, within ten (10) days after the defect was discovered. The notification must be made in writing or by telefax and has to specify the defect. All such notifications of defects of goods must be addressed to us directly.
9.2 Any damages to goods in transit and incomplete delivery have to be notified immediately to the forwarding agent; the notification obligations pursuant to the German General Conditions for Forwarders (Allgemeine Deutschen Speditionsbedingungen) shall apply.
9.3 If a notification of defects is justified and has been made in due time we shall subsequent perform through remedying the defect or replacing the delivered goods according to our choice.
9.4 Provided that after two attempts of subsequent performance delay, impossibility or failure in remedying the defect or replacement of the goods is established, the Customer may demand a reduction in the purchase price, rescission of contract or damage compensation instead of performance. If the Customer chooses rescission of contract after such unsuccessful subsequent performance, he is not entitled to any additional damage compensation regarding the defect.
9.5 The provisions above contain the final and complete warranty for our goods. For any further claims for damages caused by the delivery of defective goods, we can only be held liable pursuant to clauses 9.6 and 9.7 below, irrespective of their legal basis.
9.6 For any claims based on misconduct, irrespective of their legal basis, e.g. default, delivery of defective goods, violation of contractual duties, violation of duties during contractual negotiations, torts, product liability (with the exception of the liability under the German Product Liability Act, “Produkthaftungsgesetz”), we can be held liable for damages in case of a willful act or gross negligence only. We are not liable for negligent conduct of a minor degree, unless the contractual purpose is thereby substantially endangered. In any event, our liability shall be limited to foreseeable and typical damages. This restriction does not apply to injuries suffered by the Customer to his life, body or health. Personal liability on the part of our statutory representatives, persons engaged in performance of our contrac tual obligations or employees for damage caused by them by negligent conduct of a minor degree is excluded.
9.7 Warranty claims of a Customer shall become timebarred one year after delivery of the goods. The Customer’s rights to replacement shall become timebarred one year after delivery of the goods. This shall not apply where we can be accused of fraudulent intent.
9.8 Agreements between the Customer and his Customers beyond the statutory warranty claims shall have no affect to our disadvantage.
10.1 The relations between us and the Customer are governed by the laws of the Federal Republic of Germany. Neither the UNtreaty (CISG) nor any other existing or future bilateral or international treaties, even if implemented into German law, shall be applicable.
10.2 Place of jurisdiction for all disputes arising from or in connection with the contract shall be at our choice either Ahrensburg or the company seat of the Customer; for lawsuits filed by the Customer, exclusively Ahrensburg. Any statutory provisions regarding exclusive jurisdiction remain unaffected.
11.1 Any alterations and amendments to the contract, including this clause, must be made in writing and signed in order to be valid. This shall also apply to any supplementary and additional agreements.
11.2 Contracts with legal persons constituted under public law and public separate estates shall be treated as contracts with commercial businessmen.
11.3If a provision herein is or becomes partly or completely invalid, the invalidity of this provision shall not affect the validity of the remaining provisions of this contract. The invalid provision shall be replaced by a valid provision reflecting in an economic respect as closely as legally possible the objectives of the invalid provision. This applies also to issues the parties intended but failed to address.
DIBBERN GmbH
HeinrichHertzStraße 1
22941 Bargteheide
Germany
Tel.: +49 (0)45 32 28 510
Fax: +49 (0)45 32 28 5150 / 55 info@dibbern.de https://dibbern-porzellanurnen.de/