General Conditions of Business of DOGAWIST – Investment GmbH
Am Landbach 2b
District court: Darmstadt HRB 85129
Phone: +49 (0) 6257 / 99 84 968
Fax: +49 (0) 6151 / 27918-59
HRB 9183/Darmstadt, VAT-ID-No.: DE 202220078 (Status: 7 May 2008)
1.1 These General Conditions of Business apply to all purchase agreements and to the entire business relationship between PEAK and the Buyer. Conditions other than these, in particular the general purchase conditions of the buyer, shall not apply, even if they are not explicitly rejected by PEAK.
1.2 The Buyer shall accept these General Conditions of Business upon acceptance of the goods at the latest.
2. Offers and orders
2.1 All contract negotiations between the parties, agreements made over the telephone, or other arrangements, in particular changes to orders, shall be made in writing by both parties and, if they deviate from the originally agreed purchase agreement, shall require a written confirmation of change.
2.2 Orders that the Buyer places with PEAK will only become legally binding upon written confirmation by PEAK.
2.3 The written order confirmation will be replaced by the invoice if the order is carried out immediately.
2.4 PEAK is not obligated to accept a purchase agreement if orders are received on the basis of circulars and price lists.
2.5 Offers made by PEAK are without obligation as long as their relationship to the offer is not recorded in writing.
2.6 The present offer and contractual conditions form part of each offer made by PEAK.
2.7 Assurances of product quality will only become part of the contract if they are explicitly confirmed in writing. Information contained in brochures will only be deemed explicitly guaranteed properties under commercial law if it is explicitly agreed in writing on a case by case basis.
3.1 Prices are in euros exclusive of packaging for delivery from Darmstadt plus statutory VAT on the day of invoicing as well as any other statutory delivery charges.
3.2 The latest version of the PEAK price list applies.
4. Shipping and transfer of risk
4.1 Shipping is at the expense of the customer. Transport insurance to the place of delivery specified by the customer will be taken out and calculated by PEAK in an amount that covers the purchase price, unless this is excluded by the customer in writing.
4.2 Partial deliveries by PEAK are permitted.
5. Payment terms
5.1 Payment shall be made without any deductions within 20 days of the date of invoice and delivery. Thereafter, a fee of EUR 3.00 will be charged for the second reminder and a fee of EUR 6.00 for the third and subsequent reminders.
5.2 Payments will be used to settle the oldest outstanding amount due plus accrued late payment interest and legal costs and finally as payment against the purchase price.
5.3 Bills of exchange and pre-dated cheques will only be accepted following special prior written agreement and only on account of payment. Encashment charges as well as bank, discount and collection expenses shall be at the expense of the Buyer.
5.4 If several bills of exchange are offered in payment, all bills of exchange shall become due if the next due bill of exchange is not encashed on time.
5.5 If the Buyer does not comply with its payment obligations and/or other obligations arising from the General Conditions of Business of PEAK, ceases payment, or if an application is filed to initiate bankruptcy proceedings over its assets or the assets of its legal representatives, then the entire legal debt shall become due for immediate payment. In this case, PEAK shall be entitled to withdraw from all contracts and to recover previously delivered goods under retention of title, as well as to demand reimbursement of all costs with a causal connection to the withdrawal (e.g. return transport, reduction in value, etc.).
5.6 A right of retention in respect of the claim to payment due to claims that do not refer directly to the delivery object itself is excluded; the purchase price claim can only be offset with undisputed or legally established claims.
6. Retention of title, pledging, assignment
6.1 PEAK retains ownership of the delivered goods until full payment of the purchase price has been made, including reminder fees and legal costs.
6.2 Until ownership of the goods delivered from PEAK to the Buyer is transferred, the Buyer is not permitted to pledge these goods or assign them to third parties by way of security. If the goods are pledged or confiscated, the Buyer is required to notify PEAK without delay and shall bear all costs that arise in connection with the release of the goods. The Buyer may sell the goods in the ordinary course of business as long as it is not in default with the fulfilment of its obligations towards PEAK. The Buyer shall bear the risk of loss, damage or wear during the period of the retention of title. As soon as the Buyer combines the goods with other products, PEAK shall acquire co-ownership of the combined products in the ratio of the value of the combined products to the value of the goods of PEAK. The customer hereby assigns its claims arising from the forwarding of the goods subject to the retention of title to PEAK in the respective net invoice value of the goods subject to the retention of title by way of security; PEAK hereby accepts this assignment. The right of the Buyer to sell goods delivered by PEAK shall end when the Buyer is in payment arrears or is unable to make payment. In this case, the Buyer may have disposal over the goods subject to the retention of title only with the written permission of PEAK.
7. Delivery dates
7.1 As PEAK is not itself the manufacturer of the components that it processes, delivery dates can only be specified for goods held in stock. Furthermore, the deadlines are only expected delivery dates and are not binding in the sense of a fixed date. PEAK undertakes to inform the Buyer in writing without delay of any likely delays to the delivery date.
7.2 If a proposed expected delivery date is delayed to such an extent that it is unreasonable for the Buyer, the Buyer shall be entitled to grant PEAK an appropriate grace period of at least 4 weeks and to withdraw fully or partially from the purchase agreement following the unsuccessful expiry of this grace period. Further claims are excluded, including claims to compensation for non-performance, unless a legal representative or agent of PEAK is shown to have acted intentionally or with gross negligence.
7.3 The lead time originally proposed in the written purchase agreement shall be extended appropriately in the event of operational disturbances, strikes, lockouts, non-delivery by upstream suppliers and other circumstances outside the control of PEAK.
8. Delivery cancellation
8.1 If the customer cancels orders in full or in part and does not comply with his purchase obligation, PEAK shall be entitled to enforce lump-sum compensation.
8.2 The products for delivery already produced at the time of withdrawal from the purchase agreement shall be paid for at the full purchase price.
8.3 Flat-rate compensation of 60% shall be paid for products not yet produced if the cancellation is made not earlier than 30 days before the scheduled delivery date.
8.4 In all other instances, a flat-rate compensation of 40% of the net delivery value shall be paid.
8.5 If the customer can provide proof of a lower level of loss, only this loss shall be compensated. Conversely, PEAK can charge the actually incurred loss caused by the withdrawal from the purchase agreement instead of the flat-rate compensation.
8.6 The right to demand compensation for non-performance is not affected by this, unless the customer does not pay for partial deliveries in accordance with the agreement and remaining deliveries are therefore rejected by PEAK.
9. Warranty (hardware)
9.1 PEAK warrants that the supplied hardware is free from material and processing errors that reduce its value or prevent its suitability for normal use or as specified in the contract.
9.2 The warranty also applies to the absence of properties explicitly guaranteed in the order confirmation.
9.3 The warranty period is 24 months from the date of receipt of the goods by the Buyer.
9.4 Transport damage and shortfalls in the quantities delivered shall be reported by the customer in writing within 8 days of receipt of the delivery from PEAK. The Buyer is required to inspect the goods immediately after delivery by PEAK. Any defects found are to be reported to PEAK in writing without delay and the faulty goods returned free of charge together with a precise description of the defects found. If the Buyer fails to make such notification, the goods shall be deemed accepted, unless the defect could not be identified upon close inspection. Such a defect must be reported immediately upon being discovered, otherwise the goods shall be deemed accepted in consideration of this defect.
9.5 In the event of justified complaints, PEAK guarantees to make good material and processing errors by repairing the goods at its repair centre or by replacing the affected parts.
9.6 If the buyer does not agree to the fulfilment by PEAK of any of these claims under warranty, any of its claims to cancellation, reduction or compensation, including any reimbursement of installation and removal costs and consequential damage, shall lapse.
9.7 The warranty provided by PEAK does not cover any defects in the purchased goods that are caused by accident, improper use, negligence, modification, improper installation, repair or improper test measure on the part of the Buyer or its appointed agents.
9.8 The removal or disposal of the original product label shall render the warranty void.
9.9 In the event of the failure to rectify the defect or to deliver a functioning replacement, the Buyer shall be entitled to reduction (lowering of the purchase price) or to cancellation (rescission) of the agreement.
9.10 PEAK may preclude any warranty in the event of the sale of used hardware.
9.11 The personal liability of PEAK employees who have become active as agents of PEAK is excluded.
10. Warranty (software)
10.1 Service agreement law applies to the delivery of software to the exclusion of contract law for work and labour as well as contracts for the international sale of goods.
10.2 If software developed by PEAK does not correspond to the contractually specified use and complaints about discrepancies are made in writing, PEAK shall undertake to make improvements free of charge within the statutory period of limitation of 24 months.
10.3 No warranty shall be provided for software that has not been manufactured by PEAK. The rights stipulated in the respective licence conditions shall apply.
10.4 However, product differences in the sense of market innovations shall not be deemed errors. The customer shall only have claims to software maintenance and modifications upon conclusion of an additional consultancy agreement.
10.5 Liability for compensation for direct and indirect damage is excluded unless it can be shown that a legal representative or agent of PEAK has acted intentionally or with gross negligence.
11. Producer liability
11.1 In accordance with the EU Directive Concerning Liability for Defective Products, the customer is exempt from liability in the event of damage caused by the defectiveness of a product that was manufactured by PEAK.
11.2 There shall be no exemption from liability if the defectiveness of a product of the customer is caused through the use of a product of PEAK, if the product of PEAK should not have been used in the chosen fashion. There shall also be no exemption from liability if PEAK manufactures a product at the instruction of the customer without knowledge of the end product and/or without the possibility to verify its use.
11.3 There shall be no exemption from liability towards the customer if PEAK has a basis for exemption from liability in accordance with Article 7 of the EU Directive.
12. Export and Re-export
12.1 All deliveries by PEAK shall be made subject to export authorisation pursuant to German international trade law; it is the responsibility of the customer to ensure knowledge of the relevant law.
12.2 Products and technical expertise delivered and supplied by PEAK are intended for sale in the Federal Republic of Germany on the basis of the existing licences and copyrights. The customer is required to obtain approval for the re-export of products either individually or integrated into a system.
13. Place of jurisdiction
13.1 The place of jurisdiction for all disputes arising from or concerning this agreement is Darmstadt/Germany.
13.2 The legal relationships between the parties are subject exclusively to law of the Federal Republic of Germany.
14.1 If the Buyer does not meet its obligations under the purchase agreement, PEAK may refuse further deliveries without prejudice to the enforcement of its other rights.
14.2 If a condition of these General Conditions of Business is legally declared invalid, replacement by a regulation that comes as close as possible to the meaning of the now invalid provision in its economic effect and consideration of the interests of both parties shall be assumed.
14.3 The Buyer may not assign its rights to third parties without the prior written permission of PEAK.
14.4 Where a customer falls under the personal protection sphere of protection of the Data Protection Act, it shall give its agreement to the processing of its data insofar as it is required for the purpose of the contract.
14.5 The copyrights as well as the rights of use and exploitation of the product sold remain with PEAK, regardless of the contractually regulated delivery to the customer. The reproduction of individual delivery parts or systems of PEAK is only allowed with the written permission of PEAK.
14.6 The duplication of PEAK software is only permitted for in-house use or to create backups.
14.7 Products of PEAK or parts thereof may not be used in life-sustaining, medical or military systems without prior consultation with PEAK-System Technik GmbH. The respective copyright regulations apply to software which is not manufactured by PEAK.