GTC

Terms and Conditions of Sale and Delivery

I. Scope of Application

1. The following terms and conditions apply to all deliverables of DYNAJET GmbH (hereinafter referred to as the "Supplier"), regardless of whether the respective contract is a sales contract, a contract for work and services or another contractual relationship.

2. By placing an order, the buyer, principal or customer (hereinafter referred to as the "Customer") agrees to the terms and conditions of sale and delivery below. If Customer confirms the order as being subject to its own purchasing terms and conditions only, such terms and conditions are hereby objected to.
With acceptance of our goods or approval for dispatch at the latest, our terms and conditions are deemed accepted.

3. The Suppliers product offering is intended for entrepreneurs exclusively. Entrepreneur means a person or legal entity or a non-incorporated firm having legal capacity who acts in a commercial or self-employed capacity when entering into the contract (§ 14 Sec. 1 BGB [German civil Code]).

II. Conclusion of Contract, Modifications, Assignment

1. The documents which are a part of the offer (e.g., images, drawings) as well as information about the scope of delivery, appearance, performance, dimensions, weight, consumption of operating materials, operating costs, etc., are approximate values only, unless it has expressly been designated as binding. The Supplier retains rights of ownership and copyrights to any cost estimates, drawings and other documents. They must not be made available to third parties and shall be returned upon request.

2. The goods offered in the Supplier's webshop are non-binding. By placing an order in the webshop, Customer make a binding offer for concluding a contract of purchase for the respective product. Customer is bound by its offer until the lapse of the fifth day from the working day following the day of the offer.

3. The contract shall be deemed concluded when the Supplier has confirmed acceptance of the order in writing (by letter, facsimile, E-mail, etc.) or has commenced delivery or performance If the Supplier has submitted an offer which is subject to a time limit, the contract shall be deemed concluded when the Customer has submitted written acceptance of the offer in due time

4. Oral secondary agreements at conclusion of the contract and amendments to the contract shall not become effective until the Supplier has confirmed them in writing. Obvious spelling or calculation errors may be corrected retroactively.

5. Customer must not assign its rights from this contract. However, § 354a HGB [German commercial code] shall remain unaffected.

III. Prices

1. Prices are stated ex works, including loading in the works, but excluding packaging, plus statutory value-added tax in conformity with the applicable provisions of the country of delivery or performance. If the Supplier's compensation has not been agreed bindingly, the Supplier’s prices in effect on the day of delivery shall apply.

2. Engineering work, installation and commissioning will be billed separately. Such billing may be calculated at either a flat rate or according to actual expenditure, plus travel costs, subsistence allowance and overnight expenses, overtime, surcharges for Sundays and public holidays.

3. If at the request of the Customer the Supplier is willing to make an exchange, the Supplier is entitled to bill the incurred costs, no less, however, than the amount of the loss in value resulting from aging and use, plus 10.0% of the agreed price of the originally agreed object of the delivery, as compensation for the expenditures incurred by the Supplier due to the exchange. The Supplier may not demand the flat-rate cost compensation described in the above provision if the Customer proves that no or only minor damage or expenditure has been incurred by the Supplier.

IV. Payment, Default in Payment, Set-Off, Retention

1. In the absence of deviating agreements, payment for the delivery of machines shall become due within 7 days from delivery, for spare parts within 30 days and for services within 14 days from date of invoice without any deductions. Orders from our webshop (www.dynajet.de) will be executed against prepayment only (in the way stated in the order form) or by cash on delivery (COD), in each case against invoice (which is sent by E-mail and which may be included in our order acknowledgement). At Customer's request, which must be stated in the order form, we also deliver the goods against payment in cash at our premises in Aichtal, Max-Eyth-Str. 10.

2. Any and all outstanding receivables shall become due and payable immediately – even if an extension or other deferral of payment has been granted – if the Customer is in default of payment for more than 5 workdays, in whole or in part, as regards its payment obligations towards the Supplier or if circumstances arise which substantially reduce the creditworthiness of the Customer (e.g., deterioration of assets, delay or cessation of payments, excess debt, downgrading of creditworthiness by commercial credit insurers, protesting of bills of exchange and cheques, filing of a petition for institution of insolvency proceedings or the institution or dismissal thereof). In this case, the Supplier may refuse further deliveries or performance and request the provision of reasonable security for its claims.
3. Payment by bill of exchange is subject to special agreement. Bills of exchange and cheques will only be accepted subject to redemption. The Customer shall bear any collection and discount charges. No cash discount will be granted for payment by bill of exchange or in the event of overdue payments, even if such a discount has otherwise been agreed.
4. The Customer may offset Supplier’s claims solely against undisputed or non-appealable claims. The Customer has a right of retention only if its counterclaim is based on the same contractual relationship and is undisputed or non-appealable, or if the Supplier has grossly violated its obligations under the same contractual relationship. However, this provision applies without prejudice to the right of the Customer to retain a reasonable part of the purchase price for defects in the Supplier’s performance.

5. If the Customer suffers deterioration in assets in the meaning of No. IV. 2., the Supplier may withdraw from the contract if an appropriate period granted for providing security through the Customer has lapsed unsuccessfully. This provision applies without prejudice to further statutory claims of the Supplier, e.g., damages. Damage claims of the Customer are excluded in such case.

V. Delivery Time, Partial Delivery or Performance, Default in Acceptance, Withdrawal of Supplier,
Supplier's Damage Claims

1. Delivery and installation periods do not commence until the Supplier and the Customer have reached an agreement on all details of the performance and all terms and conditions of the transaction and the Supplier has confirmed the order. Said periods shall be suspended as long as the Customer is in arrears with its duties to cooperate under the contract (e.g., provision of documents, supply of materials, permits, releases) or an agreed advance payment.

2. The delivery time shall be deemed met if the object of the delivery has left the works or if notification of readiness for shipping has been made before the lapse of such period.

3. The delivery time shall be extended reasonably in the event of force majeure, strike, lock-out and other extraordinary circumstances that are beyond the Supplier's control; this provision shall also apply if a supplier of the Supplier is affected, to the extent that these circumstances can be proven to have an influence on the delivery time.

4. If the Supplier’s performance is delayed, it shall not be in default of performance if such delay is caused by circumstances which could reasonably not be foreseen, prevented or overcome by taking reasonable measures.

5. The Supplier is entitled to withhold its performance until the Customer fulfils its obligations towards the Supplier under this or another contract or for another legal ground.

6. Partial performance is admissible to the extent that it is reasonable for the Customer. Such partial performance shall each be deemed an independent legal transaction which may be bill separately.

7. If the terms of payment are not observed, delivery not accepted in due time or acceptance thereof is refused or if security which has been agreed or is due in accordance with No. IV.2. has not been provided, the Supplier shall be entitled to withdraw from the contract and to claim damages after a reasonable period of extension has lapsed fruitlessly.

8. If at the request of the Customer the dispatch is delayed, the Supplier may bill either the storage and maintenance costs actually incurred or a flat rate in the amount of 1/2 % of the invoice amount per month; the latter, however, is not permitted if the Customer proves that the Supplier incurred no or only minor damage or expenditure. This does not affect the Customer’s payment obligations.

VI. Transfer of Risk, Shipping and Acceptance

1. The risk shall pass to the Customer no later than at the time of dispatch of the object of delivery. This provision shall also apply to partial performance or if the Supplier bears the costs of shipping or installation or undertakes delivery itself. No liability is accepted for the most favourable freight charges or transport time.

2. If delivery, shipping or acceptance of the object of delivery is delayed by the Customer due to no fault of the Supplier, all risks – including the risk of deterioration or loss of the object of delivery, as well as all risks resulting from the object itself – shall pass to the Customer with notification of readiness for shipping or completion.

3. Upon written request, the shipment will be insured at the Customer’s expense, with the coverage requested by it.

4. The Customer is liable for any and all damage caused by it through negligence during or prior to acceptance of the object of delivery (e.g., sampling, any acceptance procedure to be performed, etc.).

5. Delivered objects shall be accepted by the Customer, even if they are defective, without prejudice to its rights.

VII. Complaint of Defects, Warranty, Warranty Period

1. The Customer shall examine the object of the delivery immediately after receipt and lodge written complaint about any defects without delay. The Customer shall also examine the object of delivery for defects each time before use, in particular regarding safety and suitability for use During its use, the object of delivery shall be monitored constantly with regard to safety and defects. If there are even slight concerns regarding its suitability for use or safety, the object must not be used or its operation must be stopped immediately.
The Supplier shall be notified in writing immediately, specifying the concerns or defects by way of a complaint about defects. The Customer shall allow the Supplier the time and opportunity required to perform any and all repairs or replacement deliveries which the Supplier deems necessary.

2. If the Supplier’s performance is poor at the time of the transfer of risk, the Supplier shall remedy the faults, in its own discretion by remedying the defects or delivering a fault-free object in exchange for the defective one. Replaced parts become the property of the Supplier. If remedying a defect for which the Supplier is responsible is not possible, has finally failed, is unreasonable for the purchaser, or if the Supplier has refused both remedy options, or if a reasonable extension of the period granted for remedying has lapsed fruitlessly, the Customer, in its own discretion, may reduce the remuneration for the Supplier or withdraw from the contract. If the defect is of a minor nature only, however, the Customer's only right is the reduction of remuneration. Any damage claims of Customer are subject to items VIII.5, VIII.6 and VIII.7.

3. If the Supplier has fraudulently concealed a defect or has given a guarantee for the quality of the object, the statutory regulations shall apply.

4. Unauthorized remedying of defects through the Customer or third parties shall result in the loss of all claims for defects towards the Supplier. The Supplier will not bear the costs for any remedy of defects by the Customer or third parties, unless the express prior consent of the Supplier has been obtained. This provision does not apply in urgent cases – including but not limited to circumstances where a delay is impossible – where the operating safety is at risk or to prevent unreasonably great damage. In such cases, the Supplier shall be notified immediately and shall be obligated to reimburse the necessary costs only.

5. The Supplier does not accept any warranty or liability for damage that is caused by the following: Unsuitable or improper use, defective installation or commissioning by the Customer or third parties, natural wear and tear, including but not limited to wear and tear of parts that are in contact with water, defective or negligent handling, improper maintenance, excessive use, unsuitable operating materials, including but not limited to poor water quality and replacement materials, poor work, unsuitable foundation, chemical, electro-technical/electronic or electric influences. This exclusion does not apply if the Supplier is responsible for the damage in conformity with the more specific provisions in VIII. No. 5. The Supplier also accepts no liability or responsibility for, including but not limited to, the following measures and actions taken by the Customer or third parties and the consequences thereof: Improper remedy of defects, modification of the object of delivery without the prior consent of the Supplier, addition and insertion of parts, including but not limited to spare parts which have not been supplied by Supplier or which the Supplier has not expressly approved, and failure to adhere to the operating instructions and manual.

6. The Supplier does not accept any warranty for material provided by the Customer or procured in accordance with the Customer's specifications or for designs specified by the Customer.

7. Customer’s right to subsequent performance as well as possible damage claims or claims for reimbursement of expenditures due to defects shall become time-barred after one year from delivery of the goods or after one year from acceptance of installations - or from completion of installations if such do not require acceptance. If the Supplier has fraudulently concealed the defect or has given a guarantee for the quality of the object, the statutory regulations shall apply to the limitation periods of any claims of the Customer in this regard. The statutory regulations shall also apply for the limitation periods of any damage claims of the Customer for defects if the Supplier is guilty of intention or gross negligence or if the damage claim is based on an injury to life, body or health.

8. Any and all further claims of the Customer shall be excluded, including but not limited to damage claims, and this includes damage that has not occurred at the object of delivery itself, if not provided otherwise under No. VIII.5., VIII.6 and VIII.7.

VIII. Withdrawal and Damage Claims on Part of Customer, Limitation of Action

1. Customer may withdraw from the contract if it becomes finally impossible for the Supplier to perform the contract before the transfer of risk. Any claim of the Customer for damages because of the final impossibility of performance shall be excluded, unless the Supplier is guilty of gross negligence in this regard. Any claim for damages shall be limited to the damage foreseeable at the time of conclusion of the contract and resulting from the ordinary course of events and shall be limited to a maximum amount of 15% of the contract total. Customer may also withdraw from the contract if, for an order of identical items, the delivery of part of the ordered items becomes impossible in terms of quantity and the Customer has a justified interest in refusing partial delivery. If this is not the case, the Customer may reduce the consideration accordingly.

2. If the impossibility occurs during a default in acceptance of the Customer or is the fault of the Customer, with no gross negligence on the part of the Supplier, the Customer's obligation for consideration is maintained and Customer is not entitled to withdraw from contract as provided under No. 1 above.

3. The Customer may withdraw from the contract if the Supplier is in default with its performance, if said performance is due, if the Customer has already granted a reasonable extension without success, and if the Supplier is responsible for its non-performance. Any damage claims of the Customer for arrears in delivery on the part of Supplier shall be excluded. Any damage claim is limited to the damage foreseeable at the time of conclusion of the contract and resulting from the ordinary course of events and is limited to an amount of 1/2 % for each full week of delay, in total to a maximum of 5% of the value of such part of the total delivery which cannot be used in due time because of the delay.

4. The Customer’s right to withdraw from the contract – beyond the cases regulated by above numbers 1 and 3 – in accordance with the statutory regulations, in the event of a violation of obligations for which the Supplier is responsible and which does not result from a defect, remains unaffected.

5. Any and all further claims of the Customer from violation of contractual obligations or tort in performing the contract shall be excluded, including but not limited to termination or damages, including claims for damages in lieu of performance and claims for compensation of expenses and compensation of damage of any type, including such damage that has not occurred at the object of delivery itself. Excluded shall also be all further claims of Customer for other legal grounds, including Customer's claims from violation of pre-contract obligations or in tort for activities during negotiations or conclusion of the contract.

6. The disclaimers under these terms and conditions (including but not limited to items VIII.3 and VIII.5) do not apply
• If the Supplier is responsible for gross negligence.
• If the Supplier negligently violates material contract obligations (that means obligations of the Supplier that are material for the subject matter and object of the contract and whose violation would compromise such object; and further, obligations whose fulfilment is a prerequisite for the proper performance of the contract, and therefore, the Customer regularly relies on and may rely on their fulfilment). If the Supplier negligently violates a material contract obligation, its liability to pay damages shall be limited to damage that is typical for the contract and foreseeable, to the extent there exists no wilful intent or gross negligence or if the Supplier is liable for damage to life, body or health.
• for any damage claim of Customer based on an intentional or grossly negligent damage to life, body or health.
• in such cases in which liability is statutory under the product liability act, for personal injury or damage to privately used property.

7. Damage claims of the Customer against the Supplier from violation of contractual obligations and from tort in connection with performance of the contract will become time-barred no later than one year from the end of the year in which the claim has arisen and the Customer has gained knowledge of the circumstances on which the claim is based and of the person of the debtor or had to have gained lacking gross negligence. This also applies to damage claims of the Customer against the Supplier for other legal grounds, including damage claims from violation of pre-contract obligations or in tort for activities during negotiations or conclusion of the contract. If the debtor is guilty of intent or gross negligence the statutory regulations apply. The statutory regulations further apply for any damage claims based on an intentional or grossly negligent damage to life, body or health.

8. To the extent that the Supplier's liability is excluded or limited, this applies too for any personal liability of its legal representatives and employees. For the limitation periods of claims of the Customer against the legal representatives of the Supplier and its employees, above number VIII.7 applies accordingly.

IX. Security

1. The object of the delivery remains the property of the Supplier until full payment of the agreed price and of all other receivables, including future claims from the business relationship with the Customer, has been received. This also applies, if individual receivables of the Supplier have been included in a current account; in such case the retention of title applies to the relevant balance. If in the context of the payment of the purchase price Supplier becomes liable on the basis of bills of exchange, the retention of title will not lapse before all bills of exchange have been honoured in full by the Customer.

2. The Customer hereby assigns to the Supplier all claims arising from the further sale of the objects of delivery, in the amount of the value of the objects of delivery, including all secondary rights. The Customer is authorized to collect the receivables. The Supplier's authority to collect the receivables itself remains unaffected.

3. The Supplier undertakes, in its own discretion, to release security at the request of the Customer, if the realizable value of its security exceeds the total of its receivables from the business relationship by more than 10%.

4. As long as the Customer fulfils its obligations towards the Supplier, it is entitled to dispose of the object of delivery in the course of ordinary business and subject to the retention of title, if the claims are effectively transferred to the Supplier in accordance with No. IX.2. Extraordinary disposals such as pledging, transfer by way of security and any and all assignments are not allowed. The Supplier must be notified in writing immediately of any attachment by third parties with respect to the object of delivery or assigned claims, including but not limited to pledges.

5. During the period of retention of title, the Customer is generally entitled to possess and make use as intended of the object of the delivery. In the event of actions in breach of contract by the Customer – including but not limited to arrears in payment by the Customer – and in the cases under No. IV.2., however, the Supplier may take possession of the object of delivery and revoke the authorization to collect the claims from further sale. The Customer – under exclusion of rights of retention – is obligated to surrender the object. The Customer shall bear any and all costs of repossession and exploitation. The Supplier is entitled to private sale. The Customer, at the request of the Supplier, shall immediately submit to the Supplier a list of all claims assigned in conformity with No. IX.2 as well as all additional information and documents necessary for exercising the claims to which the Supplier is entitled, and inform the debtors of the assignment.

6. The Customer shall maintain the object of delivery in a proper condition during the period of retention of title and allow the Supplier or a workshop authorized by the Supplier – except for emergencies – to perform immediately all maintenance and repair work prescribed by the Supplier.

7. In the case of trailers, the Supplier shall have the right to hold the certificate of title for the duration of the retention of title.

8. If the retention of title or the assignment is not effective under the law of the country in which the goods are located, the security closest in nature to the retention of title or assignment in this country shall be deemed agreed. If the cooperation of the Customer is required for this purpose, the Customer shall perform all legal acts necessary to establish and preserve such rights.

X. Industrial Property Rights

If the Supplier is to perform according to drawings or models, samples, or using parts supplied by the Customer, the Customer shall warrant that industrial property rights of third parties are not infringed hereby. The Customer shall indemnify the Supplier from any and all third party claims for infringement of industrial property rights and shall compensate the Supplier for any resulting damage and for its costs and expenditure. If the Customer is prohibited from manufacture or delivery by a third party on grounds of industrial property rights, the Supplier is entitled to stop work. In this case, the Supplier may withdraw from the contract and demand compensation for its damage, costs and expenditure. An obligation on the part of the Customer for indemnification, damages and compensation of costs and expenses as provided under sentences 1 to 4 above does not exist, if the Customer is not responsible for the infringement of rights. However, any statutory rights and claims of the Supplier remain unaffected in any case.

XI. Use of Software

To the extent that software is included in the scope of delivery, the Customer is granted a non-exclusive right to use the supplied software, including its documentation. It is licensed for use on the object of delivery intended for this purpose. The use of the software on more than one system is prohibited. The Customer may copy, rework or translate the software or convert the object code into the source code only to the extent permitted by the law (Sec. 69 a et. seq. UrhG, [German Copyright Act]). The Customer undertakes not to remove manufacturer information – including but not limited to copyright notices – or to change them without the prior express consent of the Supplier.
All other rights to the software and the documentation, including copies, remain with the Supplier or the software supplier. The granting of sub-licenses is not permissible.

XII. Governing Law, Place of Performance, Jurisdiction, Severability

1. The laws of the Federal Republic of Germany shall apply exclusively. In case of doubt, the German language version of all contractual provisions shall be decisive. The Convention on the International Sale of Goods (CISG) do not apply.

2. Place of performance is 72622 Nürtingen.

3. If the Customer is a merchant, a legal person under public law or a special fund under public law, the courts of Stuttgart shall have jurisdiction for any and all disputes arising under this contractual relationship, including disputes regarding its creation and its effectiveness as well as for bill of exchange and cheque litigation. The Supplier may apply to any other court which has jurisdiction according to statutory provisions.

4. If one of the provisions of these terms and conditions of sale and delivery is invalid, in whole or in part, the validity of the remaining provisions shall not be affected.

DYNAJET GmbH
Wilhelm-Maybach-Straße 2, 72622 Nürtingen
Telephone: +49-(0)7022-304-1130 | Fax: +49-(0)7022-304-1150
Website: www.Dynajet.de | E-mail: sales@dynajet.de