1. Scope of Application, General
1.1 The following General Terms and Conditions of Business and Delivery (hereinafter referred to as GTC) shall apply to all deliveries and services of Derksen Lichttechnik GmbH (hereinafter referred to as Derksen) and to all business relations between Derksen and the contractual partner (hereinafter referred to as customer). The General Terms and Conditions apply exclusively to all contracts with merchants within the meaning of § 14 BGB (German Civil Code), legal entities under public law or special funds under public law ordering goods from Derksen. Unless otherwise expressly agreed, Derksen therefore assumes that transactions concluded with Derksen are for the respective business activity of the customer and not for private use.
1.2 Derksen's GTC shall apply exclusively. Any terms and conditions of business or purchase of the customer which deviate from or conflict with these Terms and Conditions shall not form part of the contract unless Derksen expressly consents to the validity of these Terms and Conditions in writing; a non-explicit objection by Derksen shall not be inconsistent therewith. These General Terms and Conditions shall also apply if Derksen performs delivery to the customer without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from these General Terms and Conditions.
2. Conclusion of Contract, Prices, Terms of Payment
2.1 The conditions for Derksen goods are subject to change and non-binding. We reserve the right to make technical design or production changes and other changes in form, colour or weight as well as deviations from samples, insofar as this is reasonable for the customer.
2.2 The conclusion of the contract is subject to the proviso that in the event of incorrect or improper self-supply, the contract shall not be concluded or shall only be concluded in part. In the event of non-availability or only partial availability of the goods, the customer will be informed immediately and, if applicable, any payment already made will be refunded.
2.3 Unless otherwise expressly agreed or stated, all prices are ex works, 45889 Gelsenkirchen, Germany. The costs for packaging, freight, postage and shipping costs are not included in the prices, but will be invoiced separately.
2.4 The prices of the price list valid at the time the contract is concluded shall apply, unless otherwise agreed in writing. The prices quoted are net prices and do not include the applicable statutory value-added tax and are quoted in euros unless otherwise stated. In the event of changes in wage and material costs between submission of the offer and placing of the order or after conclusion of the contract, Derksen may demand a corresponding adjustment of the price by way of negotiation.
2.5 The purchase price is due for payment within 10 days of the invoice date with 2% discount or within 30 days of the invoice date without deduction, unless otherwise stated in the order confirmation. In the case of new customers – unless expressly agreed otherwise – only payment in advance is possible.
2.6 Repair invoices are due for payment immediately.
2.7 For payment periods, the receipt of payment on Derksen's account is decisive.
2.8 If the customer is in default of payment, Derksen shall be entitled, on the basis of the statutory provisions, to demand interest at a current rate of 9 percentage points above the respective base interest rate, without any further damage caused by default being excluded.
2.9 In the event of the customer's default in payment, Derksen shall be entitled to demand immediate payment of all outstanding claims and to perform continued delivery and other services only against advance payment.
2.10 The customer shall not be entitled to set off Derksen's claims against each other, unless its counterclaims have been legally established, are undisputed or have been acknowledged by Derksen. The customer shall only be entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
3. Delivery Time
3.1 Unless otherwise stated, delivery shall be ex works, 45889 Gelsenkirchen, Germany.
3.2 Delivery dates or periods are non-binding unless their binding nature has been expressly agreed in writing. This shall also apply if transport has been agreed.
3.3 Derksen shall be entitled to make partial deliveries if these are reasonable for the customer.
3.4 Delivery periods shall commence only upon complete technical clarification and, if applicable, upon receipt of any agreed down payment. The complete technical clarification shall include in particular the provision of the documents, official permissions and approvals to be procured by the customer.
3.5 If Derksen cannot culpably comply with an expressly agreed deadline or is in default for other reasons, the customer shall grant Derksen a reasonable grace period of two weeks, beginning on the day Derksen receives the written notice of default or in the case of the deadline specified in the calendar. If the grace period expires without result, the customer shall be entitled to withdraw from the contract. Derksen shall be liable subject to clause 7. in accordance with the statutory provisions insofar as the underlying purchase contract is a firm deal within the meaning of § 286 BGB (German Civil Code) or § 376 HGB (German Commercial Code).
3.6 Events of force majeure and other events for which Derksen is not responsible, such as import and export bans, strikes, lockouts and transport disruptions as well as delayed deliveries by upstream suppliers for which Derksen is not responsible shall entitle Derksen to extend the delivery period by the duration of the hindrance which has occurred. If the hindrance lasts for more than six weeks, the customer shall be entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. Derksen may only invoke the aforementioned circumstances if Derksen immediately notifies the customer of the delay in delivery or performance.
4. Dispatch and Passing of Risk
4.1 The risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon handover or, in the case of sale by delivery to a place other than the place of performance, upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, the transfer of risk shall take place with this. The Handover or acceptance shall be deemed to have taken place if the customer is in default of acceptance.
4.2 If the customer wishes transport insurance, a written order by the customer to Derksen is required. The costs of the transport insurance shall be borne by the customer.
4.3 If dispatch is delayed at the request or through the fault of the customer, Derksen shall store the goods at the expense and risk of the customer. The transfer of risk then corresponds to the notification of readiness for dispatch.
5. Retention of Title
5.1 The delivery item shall remain the property of Derksen until the purchase price and all other claims arising from the business relationship have been paid in full.
5.3 The customer shall neither be entitled to pledge the goods nor to assign them by way of security.
5.4 The customer shall be obliged to treat the object of sale with care during the existence of the retention of title; in particular he shall be obliged to insure it adequately at his own expense against damage caused by fire, water and theft at replacement value. If maintenance and inspection work is necessary, the customer must carry this out in good time at his own expense.
5.5 The customer shall immediately inform Derksen in writing of all access by third parties to the goods, in particular of enforcement measures, as well as of any damage to or destruction of the goods. Insofar as the third party is unable to reimburse Derksen for court or out-of-court costs incurred in this connection, the customer shall be liable for such costs. The customer shall notify Derksen immediately of any change of ownership of the goods and of his own change of address.
5.6 In the event of breach of contract by the customer, in particular default in payment, Derksen shall be entitled to withdraw from the contract and demand the return of the purchased item after Derksen has set a reasonable deadline for performance. In this case, Derksen shall be entitled to sell the object of sale after it has been handed over; the proceeds of such sale shall be set off against the customer's liabilities – less reasonable selling costs.
5.7 The customer is entitled to resell the goods in the ordinary course of business. He hereby assigns to Derksen all claims in the amount of the invoice amount accruing to him from the resale to a third party. Derksen accepts the assignment. After the assignment, the customer is authorised to collect the claim.
5.8 Editing or processing of the goods by the customer shall always take place in the name and on behalf of Derksen. If the goods are processed, Derksen shall acquire co-ownership of the new item in proportion to the value of the goods delivered by Derksen. The same shall apply if the goods are processed or mixed with other objects not belonging to Derksen.
6.1 Derksen shall initially provide warranty for defects in the goods at Derksen's option by repair or replacement.
6.2 If the subsequent performance fails, the customer may, at his discretion, demand a reduction in payment (reduction) or rescission of the contract (withdrawal) or compensation for damages. In the case of insignificant defects, the customer shall not be entitled to withdraw from the contract. If the customer chooses compensation for damages, the limitations of liability pursuant to Section 7 of these Terms and Conditions shall apply.
6.3 The customer must inspect the received goods immediately after receipt for deviations in quality and quantity and report any visible defects in writing within a period of one week from receipt of the goods; otherwise the goods shall be deemed to have been approved, unless the defect was not recognizable during the inspection. Hidden defects must be reported to Derksen in writing within a period of one week from discovery; otherwise the goods shall be deemed to have been approved even with regard to this defect. Timely dispatch shall suffice to meet the deadline.
6.4 Any warranty claims on the part of the customer shall expire one year after delivery of the goods or acceptance of the ordered work, if acceptance is required. In the case of used goods, warranty claims shall also expire within one year of delivery of the goods. The one-year warranty period shall not apply if Derksen is guilty of gross negligence or in the case of injury to life, limb or health attributable to Derksen. In this respect, the statutory limitation periods shall apply. Liability under the Product Liability Act shall remain unaffected by this.
6.5 The customer shall not receive any guarantees beyond the statutory warranty claims. Manufacturer guarantees from third parties remain unaffected by this.
6.6 Derksen is registered according to Directive 2012/19/EU of the European Parliament and of the Council of 4 July 2012 on waste electrical and electronic equipment (WEEE) under No. DE 98055625.
7.1 In the case of slightly negligent breaches of duty, the liability of Derksen as well as that of its legal representatives and vicarious agents shall be limited to the foreseeable, contractually typical, direct average damage. Derksen and its vicarious agents shall not be liable for slightly negligent breaches of obligations which are not essential to the contract and the breach of which does not endanger the performance of the contract.
7.2 The above limitations of liability shall not apply to claims of the customer arising from product liability. Furthermore, the limitations of liability shall not apply to damages to life, limb and health resulting from a culpable breach of duty by Derksen, its legal representatives or its vicarious agents.
8. Intellectual Property, Right of Use
8.1 The results of Derksen's work are, to Derksen's knowledge and understanding, an independent creation. No assurance can be given beyond this declaration for the novelty or individual character, e.g. of a design draft, for the legal validity or legal validity of industrial property rights or for the freedom from collision risks with regard to older industrial property rights of third parties for the subject matter of the contract.
8.2 Any imitation or other use of designs or elements, variants or studies supplied by Derksen is strictly prohibited and only permitted with Derksen's express permission. Editable files shall only be handed over upon express additional agreement in the case of special reasons in individual cases and shall be remunerated separately.
8.3 The use of trademarks and type and/or business designations (hereinafter referred to as "Marks") which differ from those used by Derksen is prohibited. This shall apply to any advertising, marketing, resale or other communication relating to goods and services developed or offered by Derksen, ordered from Derksen or supplied by Derksen. This follows from Derksen's statutory trademark rights and shall be deemed agreed alternatively.
8.4 Photographs and other product images taken by Derksen may only be used by the customer to the extent that this has been expressly made available to him as advertising material for the sale of Derksen products.
8.5 The customer assures Derksen that no third party rights exist to the submitted materials. Derksen shall be released from any claims by third parties.
9. Other, Final Provisions, Place of Jurisdiction
9.1 If a cost estimate is requested before repairs are carried out by Derksen, the customer must expressly state this. Whether a repair is carried out in Derksen's own workshop or in another workshop is at Derksen's discretion. Costs for dispatch and packaging shall be borne by the customer.
9.3 The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply, even if the customer is domiciled abroad.
9.4 If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract shall be Derksen's place of business. The same shall apply if the customer does not have a general place of jurisdiction in Germany or if his place of residence or habitual abode is unknown at the time the action is brought. However, Derksen is also entitled to sue the customer at his place of business.
9.5 If any provision of these General Terms and Conditions is not effective or enforceable, the remaining provisions shall remain unaffected thereby. The invalid provision shall be replaced by the statutory provisions. In the event of a loophole, the principles of supplementary contract interpretation shall apply.
9.6. This English version of these GTC merely has explanatory character. In case of doubt on the interpretation of contractual regulations the German language version always prevails.
Last updated: November 2019