§ 1 Objective of Contract
Denex sells to the buyer the item described in ATTACHMENT 1of this contract.
§ 2 Purchase Price
The purchase price is valid ex works without packaging, unless ATTACHMENT 1 makes other provisions. The purchase price does not include the VAT required by law. DENEX will list the VAT, separately and in the amount provided for by law, on the invoice and on the day the invoice is made out.
A cash discount is admissible only if there is a separate written agreement between DENEX and the buyer. The purchase is payable net (no discount), immediately after receipt of the invoice at the buyer’s office, unless ATTACHMENT 1 provides for a different procedure of payment. A payment is valid only when DENEX has the amount at their disposal. In the case of check payments the payment is valid when the check has cleared.
The buyer is entitled to subtract certain amounts only if his counterclaims are legally final and determined and recognized by DENEX, or else uncontested, even if a notification of defects in quantity or quality or other counterclaims have been filed. The buyer is entitled to exercise his right to withhold payments only if his counterclaim is based upon the same contractual relationship.
DENEX is obligated to install the object of purchase only if this has been expressly agreed upon and is to be paid for separately. In the case of an installation by DENEX, the buyer is obligated, no later than two weeks after conclusion of this contract, to make DENEX aware of the rules and norms which apply to the execution, the performance and the operation and to the prevention of illness and accidents.
DENEX is obligated to conduct training of staff members of the buyer only if this has been expressly agreed upon and is to be separately remunerated.
DENEX is obligated to conduct the commissioning of the object of purchase only if this has been expressly agreed upon and is to be separately remunerated.
§ 4 Terms of Shipment and Performance
Shipment deadlines and deadlines which have not been expressly agreed upon as binding are given solely without guarantee. The shipment period set by DENEX does not start until the technical questions have been resolved. Likewise, the buyer has to fulfill all duties he is responsible for in an orderly and timely fashion.
If the contract of purchase in question is a transaction for delivery by a fixed date according to § 286, section 2, # 4 of the “BGB” civil code or according to § 376 of the “HGB” trade code, DENEX is liable according to the provisions of the law. The same applies if the buyer is entitled, due to a delay in delivery for which DENEX is responsible, to cancel his interest in a continued fulfillment of the contract. In that case, DENEX’s liability is limited to the foreseeable and typically occurring damage, unless the delay in delivery is due to an intentional violation of the contract for which DENEX is responsible or if the fault lies with DENEX or its representative or associate.
Likewise, DENEX is liable to the buyer in the event of a delay in delivery according to the provisions of the law if this delay is due to an intentional or grossly negligent violation of the contract for which DENEX is responsible or if the fault lies with DENEX or its representative or associate. DENEX’s liability is limited to the foreseeable, typically occurring damage, unless the delay in delivery is due to an intentional violation of the contract for which DENEX is responsible.
In the event that a delay in delivery for which DENEX is responsible is due to a liable violation of a an essential contractual obligation or if the fault lies with DENEX’s representative or associate, then DENEX is liable according to the provisions of the law with the caveat that, in this case, the damage liability is limited to the foreseeable, typically occurring damage.
In all other cases the buyer may claim a flat reimbursement in the amount of 3% of the delivery value for every week of the delay, however a maximum of no more than 15% of the delivery value, if DENEX is responsible for the delay in delivery.
Any further liability for a delay in delivery for which DENEX is responsible is excluded. Other legal claims and rights of the buyer, which are due him in addition to the damage reimbursement entitlement because of a delay in delivery for which DENEX is responsible, remain unaffected.
DENEX is entitled to conduct partial deliveries and performances at any time as long as it is reasonable.
If there is a delay in reception at the buyer’s end, DENEX is entitled to a reimbursement of the damage and any additional expenses. The same applies if the buyer’s fault violates cooperation duties. With the advent of the reception or debtor’s delay the risk of an accidental deterioration or accidental loss transfers to the buyer.
§ 5 Risk Transfer – Delivery/Packaging
Loading and shipment are conducted without insurance and at the buyer’s own risk. Regarding the shipment method and route, DENEX will try to take into account buyer requests; any additional expenses caused by this – even in the case of a CPT agreement – are the buyer’s responsibility.
DENEX does not take back any transport or other packaging according to the provisions of the packaging regulations, with the exception of palettes. The buyer must pay for the disposal of the packaging.
If the shipment is delayed by request or fault of the buyer, DENEX will store the merchandise at the buyer’s own risk and expense. In that case, the shipment is equal to the notification of the shipment readiness.
At the buyer’s request and expense DENEX will secure the delivery by means of transportation insurance.
§ 6 Warranty/Liability
Buyer’s claims due to defects in quality and quantity apply only if the buyer has fulfilled his examination and complaint duties according to § 377 of the “HGB” trade code in an orderly fashion.
If there is a defect in the merchandise which is the responsibility of DENEX, DENEX is obligated, under the exclusion of the customer right to step back from the contract or lower the purchase price (reduction), to fulfill the contract retroactively unless DENEX is entitled to refuse the retroactive fulfillment based upon the legal guidelines. The buyer must grant to DENEX an appropriate time period for the retroactive fulfillment. The retroactive fulfillment may, depending on what the customer chooses, consist in the removal of the defect (subsequent improvement) or delivery of new merchandise. In the case of the removal of the defect, DENEX carries the cost of the necessary expenses, if they are not increased because the object of the contract is located in a place other than the place of delivery.
If the retroactive fulfillment fails, the customer may, depending on his choice, demand a reduction of the purchase price or declare his cancellation of the contract. The subsequent improvement is counted as a failure with the second failed attempt, unless further attempts at subsequent improvement are reasonable and are appropriate due to the object of the contract.
Damage reimbursement claims, according to the following conditions, cannot be claimed by the customer until the retroactive fulfillment has failed. The right of the customer to file further damage reimbursement claims remains unaffected if the following conditions are observed.
The warranty claims of the buyer are subject to the statute of limitations one year after the delivery of the merchandise at the buyer’s location unless it can be shown that DENEX has maliciously hidden the defect in question; in that case the provisions of the law apply.
According to the provisions of the law, DENEX is liable without limitations for damages to DENEX’s life, limb and health if they are due to a negligent or intentional violation of duties by DENEX, its legal representatives or its associates; DENEX is also liable for damages which are covered by liability according to the product liability law. For damages not covered by section 1 and which are due to an intentional or grossly negligent contract violation or malice on the part of DENEX, DENEX is liable according to applicable provisions of the law. In that case the damage reimbursement liability is limited to the foreseeable and typically occurring damage, unless DENEX’s legal representatives or associates acted intentionally. To the extent that DENEX has given a warranty of quality or tenability, DENEX is liable within the provisi ons of that warranty. For damages which are due to a defect in the guaranteed quality or tenability but do not directly affect the merchandise, DENEX is liable only if the risk of such damage is clearly associated with the quality or tenability warranty.
DENEX is also liable for damages which are caused by negligence if the negligence is associated with the violation of such contractual obligations whose observation is of particular importance for the fulfillment of the contract purpose (cardinal duties). However, DENEX is liable only if the damages are associated with the contract and are foreseeable.
Any further liability is excluded irregardless of the legal nature of the filed claim; this applies in particular for liability claims in tort or claims to the restitution of failed efforts instead of the performance; the liability according to §§ 2 to 3 of this contract remains unaffected. In so far as the liability of DENEX is excluded or limited, this applies also for the personal liability of DENEX’s employees, staff members, representatives and associates.
Damage reimbursement claims of the buyer due to a defect are subject to the statute of limitations one year after delivery of the merchandise. This does not apply in the case of violations of life, limb and health caused by DENEX, its legal representatives or associates, or if DENEX, its legal representatives have acted intentionally or in a grossly negligent fashion or if DENEX’s associates have acted intentionally.
§ 7 Retention of Property
The merchandise delivered remains the property of DENEX (retained property) up until the fulfillment of all claims, including all balance of account claims in checking accounts which are due to DENEX from the buyer currently or in the future. In the event of any conduct on the part of the buyer which violates the contract, e.g. a delay in payment, DENEX has the right, after the prior setting of an appropriate deadline, to take back retained property. If DENEX takes back retained property, this action constitutes a cancellation of the contract. If DENEX seizes the property, this action constitutes a cancellation of the contract. DENEX is entitled to use the retained property after taking it back. After subtraction of an appropriate amount for the costs of making use, the profit from that use must be subtracted from the amounts owed to DENEX by the buyer.
The buyer must treat retained property with care and must ensure it, at the value of it being new and at his own expense, against damage by fire, water and theft. Maintenance and inspection, as they become necessary, must be conducted by the buyer at his own expense.
The buyer is entitled to sell retained property for business purposes and/or use it as long as he is not in arrears with payment. Seizures or security transfers of property are inadmissible. Claims resulting from sale or any other transfer of rights (insurance, prohibited action) regarding retained property (including all account balance claims from checking accounts) are now ceded to DENEX by the buyer in order to be on the safe side; DENEX herewith accepts the cession. Subject to cancellation, DENEX authorizes the buyer to collect the claims ceded to DENEX at their expense in his own name. The collection authorization can be recalled at any time if the buyer does not meet his payment obligations in an orderly fashion. The buyer is not authorized to cede this claim for the purpose of the claim collection in the way of factoring, unless reasons are simultaneously stated for the obligation of the factor to transfer the quid pro quo in the amount of the claims directly to DENEX while there are still claims by DENEX against the buyer.
Any processing or reworking of the merchandise by the buyer is always conducted for DENEX. If the retained property is processed together with other merchandise that does not belong to DENEX, DENEX acquires shared ownership in the new merchandise in the relationship of the value of the retained property (final amount of bill including VAT) to the other processed merchandise at the time of processing. What applies for the retained property also applies for the new merchandise produced by way of this processing. In the event of an inseparable confluence of the retained merchandise with other merchandise that does not belong to DENEX, DENEX acquires the shared ownership of the new merchandise in relationship of the value of the retained property (final amount of bill including VAT) to the other confluence merchandise at the time of the confluence. If the buyer’s merchandise, as a consequence of the confluence, must be considered the main component, DENEX and the buyer agree that the buyer transfers to DENEX a prorated shared ownership in that merchandise; DENEX herewith accepts the transfer. The sole or shared ownership thus created for DENEX in any merchandise is administrated for DENEX by the buyer.
If third parties have access to the retained property, especially in the case of pledges, the buyer will point out the property of DENEX and immediately inform DENEX so that DENEX can enforce their property rights. If the third party is not able to reimburse DENEX the legal and paralegal expenses accrued in this context, the buyer is liable for them.
DENEX is obligated to release the securities due to DENEX to the degree that the realizable value of the securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released lies with DENEX.
§ 8 Place of Delivery, Place of Jurisdiction, Applicable Law
Place of delivery and place of jurisdiction and payments (including check and draft complaints), as well as conflicts between DENEX and the buyer is Lüneburg, Germany. However, DENEX has the right to take the buyer to court in the place of his business and/or residence.
The relationship between the contract parties is regulated exclusively according to the law which is valid in the Federal Republic of Germany. The application of the unified law governing the international purchase of moveable goods as well as the law governing the conclusion of international purchase contracts of moveable goods are excluded.