DIRECTTECH Global GmbH – Terms and Conditions of Sale

I. Applicability/ Offers
1. All contracts of sale, delivery, services and offers including consulting, recommendations and other ancillary services are subject to these Terms and Conditions of Sale. They become part of every contract between us and our buyers for sales and other services offered by DIRECTTECH. Any terms and conditions of our contractors do not apply; even in the case that we do not refuse them separately. There is also no compliance to any other terms and conditions if we refer to a communication which contains or regards terms and conditions of a distributor or a third party.
2. These Terms and Conditions of Sale also apply to all future sales, deliveries, services and/ or offers to the same buyer, even when they are not part of a special agreement.
3. There are no ancillary oral agreements to these Terms and Conditions. Modifications to these Terms and Conditions of Purchase need to be made in writing. This includes waiving the written form.
4. Offers enclosed in brochures, adverts other print products or electronic publications are – also concerning prices – subject to change and non-committal.
5. We are bound to special-elaborated offers for 10 days.
6. If the buyer submitted an offer for the conclusion of a contract he is bound to his offer for three weeks. If DIRECTTECH does not refuse the offer within three weeks, the offer is to be considered as accepted. The buyer abstains from the delivery of the notice of acceptance. The buyer is bound to his offer for three days if it is an offer to buy stocked goods.
7. All information like measurements, weights, illustrations, descriptions, construction sketches, graphs in pattern books, price lists and other printings are non-committal. They are only proximate and non-committal, but determined to be as accurate as possible. This also applies for information given about the works. Models and graphs remain in our ownership.

II. Prices
1. All our prices are quoted ex works or storehouse plus transportation costs, customs and other applicable tariffs, VAT and other applicable taxes, insurance premiums and other external costs.
2. Deviating from II.1 we are entitled to change the price in accordance with and limited to any rise or new origination of transportation costs, customs and other applicable tariffs, VAT and other applicable taxes, insurance premiums and other external costs if such event occurs later than four weeks after conclusion of contract.
3. We are also entitled to adjust the agreed prices for products not already delivered if prices for the production and/ or the purchase of the specific product considerably increase due to a rise of the prices for raw materials and/ or the economical situation compared to the agreed upon price within four weeks after the conclusion of the contract. In this case the client is entitled to cancel the affected orders within four weeks after notice of the price increase.
4. We are also entitled to an increase of the price if the delay of the delivery time results from one of the reasons stated in IV.4 or if the production material or the production process have to be changed materially due to the fact that the documents submitted to us by the buyer and/ or directives given by the buyer did not correspond to the real conditions and/ or have been incomplete or if we did not receive information necessary for the production on time or the buyer changes its specifications ex post by consensual agreement and thereby causes the delay of the delivery.

III. Payment and Clearing
1. Without any other agreement or notice on our invoices the purchase price is payable without discount immediately with delivery. The costs of the money transactions are borne by the buyer.
2. The buyer is only entitled to exert a right of retention or set-off if his counterclaim(s) is/ are undisputed and/ or have been determined as legally binding.
3. If delivery is delayed due to reasons DIRECTTECH is not responsible for, the purchase price is payable 14 days after notice of the products being ready for transportation or after transportation ex works. In this case the buyer is obligated to accordingly change the conditions of credit if demanded by DIRECTTECH.
4. If no higher interest is agreed upon, we calculate 8% of interest in case of overdue payments or default. We reserve the right to claim further damages caused by the default. In case of contracts with merchants our claim for the payable interest amongst merchants (§ 355 German Commercial Code) remains unaffected if not barred by applicable mandatory law.
5. The buyer is in default without payment at the latest 21 days after the payment date and reception of invoice or delivery.
6. We are entitled to set off any claims of the buyer existing against DIRECTTECH irrespective of legal basis. This also applies if an agreement exists which allows one side to pay cash while the other side is obligated to pay in local bills of exchange or other services on account of performance. Those agreements only refer to the balance when indicated. If the claims have a different due date, our claims expire at the latest with the due date of our obligation and are brought into account with value date.
7. We are entitled to reject outstanding deliveries or execute deliveries only for pre-payment or against sufficient collateral if circumstances emerge that, in our discretion, are suitable to decrease the creditworthiness of the buyer. In this case, we are also entitled to render all claims due which are not time-barred resulting out of the continuous business connection between the buyer and us.
8. An agreed discount only applies to the invoice value excluding transportation costs and is subject to the full and complete settlement of all due obligations of the buyer at the moment of discounting.

IV. Execution of Deliveries, Timelines for Deliveries and Dates
1. Our obligation to deliver exists subject to the condition that we receive our deliveries which are necessary for the correct and on time fulfilment of the order. This does not apply if we are responsible for the delayed or incorrect delivery to DIRECTTECH.
2. Information concerning the time of delivery are approximate. Time limits for delivery begin to run with the date of our confirmation of the order and apply only subject to the condition that all details of the order are specified and that the buyer fulfilled all his obligations e.g. providing the necessary official certificates, presentation of credits, warranties or advance payments.
3. The moment of the dispatch of our products ex works or storehouse is decisive for the determination of compliance with the delivery time limit. The delivery time limit is deemed to be met with the notice of the products being available for dispatch if they cannot be dispatched due to reasons outside of our sphere of influence.
4. Events due to force majeure entitle us to postpone the delivery for the duration of the disturbance and an appropriate period to restart operations after the disturbance. This also applies if such event occurs during an existing default. Force majeure equals economic policy or monetary policy or other sovereign measures, strikes or lockouts, operational disturbances not caused by us (e.g. fire, machinery – or roll breakage, lack of raw material or energy), interference with transportation ways, delay through import and customs controls or any other circumstances which considerably complicate the delivery or make it impossible for which DIRECTTECH is not responsible for. If the circumstances occur at DIRECTTECH, the plants or at a pre-delivering third party is irrelevant. If, due to the named circumstances the execution of the contract becomes unreasonable, especially if the execution of the contract delays for more than 4 months in considerable parts, for one party, this party can terminate the contract.

V. Title retention
1. We reserve ownership for all delivered goods until the full and complete fulfilment of all claims (title retention products), including all current account balances due to us and arising out of the business relationship with the buyer and all claims and balances constituted unilaterally by choice of performance by an insolvency administrator. This also applies for emerging and conditioned claims e.g. from bills of exchange for acceptance and also if payments are made on especially identified claims. The condition of fulfilment of all claims and current account balances expires with settlement of claims and balances existing in the moment of the payment.
2. Our handling and processing is made as producer in accordance with § 950 of the German Civil Code without obligating us. The handled and processed goods are title retention products in terms of Nr.1. We are entitled to co-ownership according to the invoice value of the title retention products compared to the invoice value of the used goods in the case of manufacture, assembly and mixing of the title retention products by the buyer. The buyer already at this moment transfers to DIRECTTECH its ownership rights in the new products up to the extent of the invoice value of the new products and stores them gratuitously for us in the case that we lose our ownership by assembly or mixing. The co-ownership rights are deemed to be title retention products in terms of Nr. 1
3. The buyer is only allowed to sell the title retention products by normal trading following its general course of business and as long as it is not in default, provided that the claims resulting from the resale are transferred to us in terms of Nr. 4 to 6. The Buyer is not allowed to other directives concerning the title retention products.
4. The claims resulting from the resale of the title retention products, including all securities the buyer receives for the claim, are transferred to DIRECTTECH already in this moment. They serve to secure to the same extent as the title retention products do. If the title retention products are sold together with other goods not sold by DIRECTTECH, the claim, resulting from the resale is transferred to us according to the invoice value of the title retention products compared to the invoice value of the other goods. In the case of the sale of goods where we have a co-ownership in terms of Nr. 2 a part according to the extent of our co-ownership is transferred to us. If the title retention products are used by the buyer to fulfil a contract for work and services, the claim resulting from the contract for work and services is pre-transferred to us to the same extent. We hereby accept the respective transfer.
5. The buyer is entitled to collect claims resulting from the resale. The collection authorisation to collect expires with our revocation, but not later than payment default, in case of dishonour of a check or the application for insolvency proceedings. We will only exercise our right to revocation if, after conclusion of the contract, it becomes obvious, that our claim resulting from this or any other contract with the buyer in endangered due to a lack of the buyers financial capacity. On our demand the buyer is obligated to inform its customers immediately about the transfer and to hand over to us the necessary documents for the collection of the claim.
6. A transfer of claims resulting from the resale is prohibited, unless the transfer is made by way of real factoring and a notice is given to us about the factoring and which factoring revenues exceed the value of our secured claim. Our claim is due immediately at the moment of the credit entry of the factoring revenue.
7. The buyer has to inform us immediately about a seizure or any other encumbrance. The buyer bears the complete costs necessary for the removal of access of a third party or for return transport, if no third party bears these costs.
8. If the buyer falls into default or does not honour a due exchange bill, we are entitled to take back the title retention products and for this purpose enter the business premises of the buyer during normal business hours upon prior notice. The same applies if, after conclusion of the contract it becomes apparent that our claim is endangered by lack of the buyer’s financial capacity. The regulations of the German Insolvency Code remain unaffected.
9. If the invoice value of the existing securities is exceeding the total invoice value of the secured claims including ancillary claims (e.g. interests, costs or other) to more than 50 %, we are obligated to release securities of our choice by demand of the buyer.

VI. Qualities, Measurements and Weights
Qualities and Measurements apply according to the DIN-/EN-Norms applicable at the moment of contract conclusion or according to the construction material specifications or, if no DIN-/EN-Norms exist, according to commercial practice. References to norms, work norms, construction material specifications, verification certificates or information about qualities, measurements or weights are no warranties or guaranties. This also applies for declarations of conformity, declarations by producers and corresponding labels like CE and GS.

VII. Inspection and approval
1. If inspection and approval is agreed upon, it can only be carried out at the place of production plant where the product(s) will be ready for delivery or at our storehouse immediately after notice of disposition for inspection and approval. The costs of personnel for inspection and approval are borne by the buyer and the factual costs of inspection and approval are calculated for the buyer in accordance with our pricelist or the pricelist of the production plant.
2. If inspection and approval is not carried out, not carried out on time or not complete, due to reasons outside our responsibility, we are entitled to dispatch the products without inspection and approval or store the products at the cost and risk of the buyer and invoice it for the costs incurred.

VIII. Distribution, Passing of Risk, Packaging, Partial Delivery
1. We are entitled to deliver in another way or to another place, if the transport on the foreseen way becomes impossible or considerably hindered due to reasons outside our responsibility. The buyer will be heard with regards to the issue beforehand.
2. The risk, also the risk of confiscation of the products, including free deliveries, passes to the buyer with the handing over of the products to the carrier or the forwarding agency, but not later than at the moment of the products leaving the works or the storehouse. We only arrange for insurance on order and at the cost of the buyer. The obligation of and the cost for unloading are borne by the buyer.
3. Goods are delivered unpackaged and not protected against rust. We deliver packaged if this is commercial practice. In this case, we take care of packaging, protection and transportation aids according to our experience and at the cost of the buyer. The packaging and other transportation aids are redeemed at our storehouse. Costs of the buyer for return transport or own disposal of the buyer are not borne by DIRECTTECH.
4. We are entitled to partial delivery to a reasonable extent. Surplus or short delivery are valid, if this customary in a particular trade.

IX. Liability for Defects
1. Material defects have to be notified immediately, but not later than 7 days after delivery, in written form. Defects which, also by thorough examination, could not be discovered during this time limit have to be notified in written form immediately after discovery, but not later than the expiration of the period of limitation agreed upon or stipulated by the applicable law. In such case the use of the products by means of manufacture, assembly and/ or processing has to be halted immediately.
2. After accomplishment of an agreed inspection and approval of the product by the buyer the reproval of those defects, which could be discovered by the agreed way of the inspection and approval, is precluded.
3. In case of qualified reproval of defects we are entitled to decide to either remedy the defect or deliver a product free of defects (supplementary performance). The buyer is entitled to reduce the buying price or rescind the contract after the setting a reasonable time limit, if the supplementary performance fails or is refused. He is only entitled to reduce the purchase price if the defect is not material.

X. General Limitation of Liability
1. In case of the violation of contractual and non contractual duties, especially impossibility, default, default in state of contract initiation and tortious act we are only liable for cases of intent and gross negligence. This applies also for our executive staff and other auxiliary persons. The liability is limited to the damage typical for the contract and foreseeable at the moment of the conclusion of the contract. No liability is caused by defects caused by improper installation and/ or use, by unauthorised interference with the product as well as defects on parts made of easily breakable materials (e. g. glass, plastics, light bulbs, LEDs). Natural impurities and changes in natural products (e. g. marble) do not constitute a defect.
2. These limitations do not apply in cases of violation against considerable contractual duties, as far as the purpose of the contract is endangered, in cases of mandatory liability according to the German Law on Product Liability, damage of life, body and health. It also does not apply if we guaranteed the absence of the defect or maliciously concealed defects. Rules concerning the burden of proof remain unaffected.
3. Deviating from § 438 para.1 Nr. 3 German Civil Code the general period of limitation of claims resulting from defect of material or title is one year from delivery. In case of agreed inspection and approval the period of limitation runs one year after inspection and approval.
4. If the product is a construction or a product which, by normal utilisation is used for constructions (construction material) and caused the defect of the construction, the limitation period is five years from delivery according to the statutory provisions (§ 438 para. 1 Nr. 2 German Civil Code). Special statutory provisions for claims for property restitutions of third parties (§ 438 para. 1 Nr 1 German Civil Code), malice of the seller (§ 438 Abs 3 German Civil Code) and for claims concerning the subrogation against a distributor in case of final delivery to a consumer (§ 479 German Civil Code) remain unaffected.
5. The periods of limitation as stated also apply for contractual and non-contractual claims for damages of the buyer which result from a defect of the product, unless the application of the normal statutory provisions for the period of limitation (§ 195 German Civil Code) would lead to a shorter period of limitation in the particular case. The period of limitation under the German Law on Product Liability remains unaffected in every case.

XI. Place of Performance, Place of Jurisdiction and Applicable Law
Place of performance is Moers, Germany if no explicit deviating agreement exists. Place of jurisdiction for all disputes is Moers, inasfar as legally admissible. We are also entitled to sue the buyer at the courts of his general jurisdiction.
The applicable law for all relations is German law, excluding the provisions on private international law.

XII. Export to EU-Member Countries
In case of deliveries from Germany to other EU-Member countries the buyer has to communicate his VAT-Identification Number which it has been assigned for purposes of VAT taxation in the EU in advance of the delivery. Otherwise, the buyer has to pay the statutory VAT owed by DIRECTTECH in addition to the agreed buy price.
If either the buyer or we are registered for VAT in another EU-Member country, the regulations regarding VAT of the recipient member country apply in cases of invoicing of deliveries from Germany to other EU- Member countries.

XIII. Partial Invalidity
If single clauses of these Terms and Conditions of Sale are invalid of found to be invalid, the remainder of the clauses remain valid. The parties agree that the invalid clause shall be replaced with a valid clause reasonable for both parties which reaches the economic purpose of the invalid clause to the extent legally admissible.

Last updated: October 2011

 

DIRECTTECH Global GmbH – Terms and Conditions of Purchase

I. Validity
1. All deliveries, services und offers of our contractors are subject to the conditions of these terms and conditions of purchase. They become part of every contract between us and our distributors about the deliveries und services offered by our distributors. They also apply to all future deliveries, services or offers to the client, even when they are not part of a special agreement.
2. Terms and Conditions of Purchase of our contractors do not apply, even in the case that we do not refuse them separately. There is also no compliance to any other terms and conditions of purchase if we refer to a communication which contains or regards terms and conditions of purchase of a distributor or a third party.
3. Oral side-agreements do not exist. Modifications of these Terms and Conditions of Purchase need to be made in writing. This includes the waiving of the written form.

II. Purchase and Work Orders
1. As long as our offers do not contain a specific time limit, we see ourselves bound to the offer for one week after the date of the last offer. Significant for the in-time acceptance of the offer is the arrival of the declaration of acceptance at Directtech.
2. We are authorized to change time and place of the delivery as well as the type of packaging any time through written notice with a time limit of at least 10 days before the agreed date of delivery or inspection. The same applies for changes of product specifications, as long as those changes can be realised in line with the normal process of production without a considerable additional effort. In this case the time limit of written notification is 2 (two) weeks before the agreed date of delivery or inspection. We will reimburse the adequate additional costs of the distributor caused by the changes against adequate proof. The originally agreed date of delivery or inspection is adjusted accordingly in the case that the above described changes lead to a delay of delivery, which cannot be avoided with reasonable efforts in the production and business establishment of the contractor. The contractor will inform us in writing, as the result of a careful evaluation, about the expected additional costs or delays of delivery in sufficient time before the date of delivery or inspection, but at least within 5 working days after the arrival of our notice described in sentence 1.
3. We are authorized to terminate the contract at any time through written notice, including the stating of reasons for terminating, when we, due to facts occurred after the conclusion of the contract, are no longer able to use the ordered products in our business establishment.
In this case the contractor will receive compensation for the providing of a partial service.

III. Prices, Terms of Payment, Invoice Specifications
1. The price included in the order is binding.
2. The price includes delivery and transport to the address indicated in the contract, as long as no further written agreement exists.
3. As long as the agreement does not include the packaging and the compensation for the packaging, which is not by way of loan, is not specially indicated, the price for packaging is to be calculated to proven cost price. On our demand, the contractor has to take back the packaging on his own costs.
4. Aside from differing agreements, we pay within 14 days with 3% cash discount or with 30 days net after delivery or inspection of the goods and receipt of invoice. The date of arrival of our transfer order at our banking institution is sufficient for the in-time payment of our payment debts.
5. In every confirmation letter, shipping document and invoice our subscription number, the article number, the amount of delivery, place of delivery or place of inspection have to be specified. If the absence of one or more of these specifications causes a delay of processing in our normal course of business, the time limits stipulated in IV. are extended to a new time limit, consisting of the original time limit plus the delay.
6. In the case of default of payment we owe default interest to the amount of 5 % over the base lending rate according to § 247 BGB.

IV. Time of Delivery and Inspection, Delivery and Inspection, Passing of the Risk
1. The time limit for delivery or inspection specified in the order is binding. Delivery before the date in the order is not permitted.
2. The contractor is committed to inform us immediately in writing, when facts occur or are foreseen due to which the contractor cannot assure the delivery or inspection on time
3. Is the concrete date, on which at the latest the delivery or inspection has to take place, ascertainable in the contract, the contractor is in default with expiration of the concrete day, without the necessity of a demand note from our side.
4. In the case of default we are entitled to all and any legal rights without limitation, including the right to the avoidance of the contract and the claim for damages instead of performance after the setting of a reasonable time limit and the expiration of this time limit.
5. In case of the delay of delivery or impossibility of inspection, because of missing accomplishment at the agreed date we are authorized to demand a contract penalty in the amount of 0.5% up to maximum 5% of the order value for every week of delay after previous written notice. The contract penalty will be charged to the payment for the default damage owed by the contractor.
6. Without our previous written consent the contractor is not authorized to partial delivery.
7. The passing of the risk to our side takes place no earlier than in the moment of the handing over of the goods to our hands at the contracted place or the inspection of the goods took place at the agreed place. This also applies if the the parties agreed on the shipping.

V. Protection of Ownership/ Assignment of Rights
1. We reserve ownership and/ or intellectual property rights for all orders from our side and for all information, drawings, illustrations, calculations, descriptions and other documents given to the contractor in order to fulfil its work. The contractor is not allowed to give third parties access or publish the documents or use them or use them through third parties or duplicate them. On our demand the contractor has to return the complete documents when they are no longer needed for its proper business or when negotiations did not lead to the conclusion of a contract. In this case, existing copies of the documents are to be destroyed, except for cases where records need to be kept due to legal duties and for cases of data back up for security reasons in the normal course of business.
2. Tools, devices and models which are placed at the contractor’s disposal or manufactured for the purpose of the contract, stay in our ownership or pass into our ownership. They have to be identified as being in our ownership by the contractor, stored carefully, protected against any damages and to be used only for the purpose of the contract. The costs of maintenance and repair are shared between the contract parties if no other agreement exists. If the costs result from defects of objects manufactured by the contractor or from improper use by the contractor, its staff or any persons working for it, the contractor alone is responsible for the costs. The contractor will immediately communicate all not only insignificant damages. On demand it is committed to give back those objects in proper condition, if they are no longer necessary to fulfil the contract with us.
3. Title retention clauses of the contractor only apply as long as they refer to our payment duties for the goods to which the contractor extends the title retention clause.. In particular overall or extended title retention clauses are not allowed.
4. The contractor transfers – at the moment of the right coming into existence or at the latest at the time of the conclusion of the contract – all and any rights of use in all intellectual property and work results which originated, is in the process of coming into existence or was acquired by the contractor in connection with the performance of the order. The contractor will transfer the exclusive, perpetual, worldwide, transferable and irrevocable rights to us without limitation. For any use of the intellectual property and/ or work results, we are in particular allowed to reproduce, alter and modify (especially in the case of software: to combine the software with other software, to convert the software into other programming languages and for other operating systems), to transfer to other display formats, and to change/ transform/ develop in any other way, to publish in changed and unchanged form via wired or wireless communication, to grant sublicenses as well as to transfer the limited or unlimited rights in the intellectual property or work results.
5. As far as work results come into existence which are protected by intellectual property rights, the contractor is obliged to give us immediate written notice. It is our right to have these intellectual property rights registered in our name. The contractor is obliged to comprehensively support us to get the intellectual property rights registered, in particular, the contractor is obliged to furnish the necessary information to us as well as to make any necessary declarations to the relevant authorities. The contractor may not register such intellectual property right in its own name and may not support a third party in the registration of such intellectual property rights.

VI. Warranty Claims
1. In the case that defects occur we are entitled to all and any legal rights without limitation. The period of limitation for warranty claims is, in deviation from the statutory provisions, 36 months.
2. Notice of defects in quality and quantity are given in time if we communicate them to the contractor within 10 working days after the receipt of the goods. Hidden defects are given notice of in time if the communication takes place within ten working days after discovering the defect.
3. Through inspection or acception of presented prototypes or examples we are not waiving any warranty claims.
4. With arriving of our written notice letter the limitation of warranty claims is inhibited. With replacement delivery and defect rectification the period of limitation starts anew for replaced or repaired parts, except for the fact that we, concerning the behaviour of the contractor, had to assume that it did not feel committed for this action, but carried out the replacement delivery or the defect rectification only for at its expense as a gesture of goodwill.
VII. Product Liability
1. The contractor is liable for all claims concerning damages to persons or property damages of third parties resulting from a defective product delivered by the contractor and it is committed to release us from the resulting liability. In case of our commitment to make a callback for a product from third parties because of a defective product delivered by the contractor, the contractor has to indemnify us of all costs resulting from the callback.
2. The contractor is committed to take out product liability insurance covering at least € 1 million, which does not have to cover the risk of callback, punishment claims or related claims, as far as no special agreement exists. On request, the contractor will provide us with a copy of the insurance policy at any time.

VIII. Protection of Rights
1. The contractor is responsible for the fact that no protected rights of third parties are violated in relation with his delivery in countries of the European Union, North America or any other countries where its products are manufactured or where it manufactures its products.
2. The contractor will indemnify us us from all claims of third parties resulting from the violation of protected rights stipulated under VII.1 and to compensate us for all necessary expenses resulting from such claims. This right exists independent from a default of the contractor.

IX. Spare Parts
1. The contractor is obliged to keep in stock spare parts for products delivered to us for at least 5 years after delivery or inspection.
2. If the contractor plans to discontinue the production of spare parts for products delivered to us, it has to inform Directtech immediately after taking the decision to discontinue the respective line of spare parts. Subject to the provisions in IX.1, this decision has to be at least 3 months before the cessation of the production.

X. Non Disclosure
1. The contractor undertakes not to disclose any terms of the order or any information or documents placed at its disposal for this purpose (except for publicly available information) for 3 years after the conclusion of the contract and to use all information provided to it only for the execution of the order. The contractor will on demand return all information and documents immediately after the execution or winding up of orders
2. The contractor is not allowed to advertise with its business relations with us in advertisements, booklets, brochures or with sample products, deliveries or other goods manufactured for us without our previous written consent.
3. The contractor will bind all subcontractors to X.2

XI. Assignment
The contractor is not allowed to assign his claims from the contract to third parties. This does not apply as long as it concerns a monetary claim.

XII. Place of Fulfilment, Place of Jurisdiction, Applicable Law
1. Place of fulfilment for both sides and exclusive jurisdiction for all disputes resulting from the contractual relationship is Moers, Germany.
2. German substantive law applies in addition to these terms of purchase for all legal relations between us and the contractor. The United Nations Convention on Contracts for the International Sale of Goods from 11 April 1980 (CISG) does not apply.
Last updated: October 2011