general terms and conditions

General provisions

1. The GTC at hand shall form part of all offers and contracts governing deliveries and services provided by us including current and future business relations as well as offers and contracts initiated through our sales platform www.drivedevilbiss.com (hereinafter referred to as “webshop”).
2. The GTC shall apply vis-à-vis companies, legal persons under public law and special funds under public law exclusively. 
3. Herewith we expressly object to any inclusion of external GTC. 
4. The inclusion of other GTC or the exclusion of our GTC in individual cases must be in writing to be effective.
5. Should any GTC other than our GTC become part of the contract and should a material provision of said other GTC place us in a significantly less favorable position than the following terms, we will be entitled to withdraw from the contract within a reasonable period of time.
6. In case of the use of Incoterms, the Incoterms version of 2020 shall apply.
7. The following shall apply to all service relations between the customer and us in the given order: (i) agreements reached as part of the individual order, (ii) framework agreements including their amendments, (iii) a quality-assurance agreement, (iv) a confidentiality agreement, (v) a logistics agreement, (vi) other standardized agreements, (vii) the GTC at hand, (viii) statutory provisions.

Offer and contract conclusion

1. Offers that are not limited in time are always subject to confirmation. They represent a notice requesting the customer to submit an offer to conclude a contract.
2. Contracts are concluded by our order confirmation or by our execution of the order.
3. Oral and telephone agreements that are not made with one of our managing directors or authorized holders of procuration will only be considered binding by us if they are confirmed in writing. To this extent, the powers of attorney of our employees are limited. 
4. Webshop orders:
   4.1. The customer can place orders at the webshop by selecting products from the product range presented in our webshop and collecting them in the cart using the button [“add to cart”]. Using the button [“place order”], the customer submits a binding request to buy the products in the cart. Before submitting the order, the customer can change and access the data at any time. The request can only be submitted if the customer accepts the contractual terms at hand by confirming the checkbox [„Herewith I accept the GTC and I have taken note of them.”], thereby including them in its request. 
   4.2. Upon receipt of the order, we immediately send the customer an automatic confirmation of receipt of the order by e-mail, including a list of the order, which may be printed using the “print” function (“confirmation of receipt”). The confirmation of receipt only documents the receipt of the customer’s order; a binding contract is not concluded before acceptance, which we send in a separate e-mail (“order confirmation”).
   4.3. In the order confirmation (or in a separate e-mail), at the latest upon delivery of the goods, the the contract (consisting of the order, GTC and order confirmation) will be sent to the customer on a durable data medium (“contract confirmation”). 

Prices

Our conditions and price lists (plus statutory value added tax) valid at the time of the order shall be applicable. 

Dispatch costs, passing of risk and delivery

1. Delivery is free ex works (EXW). The risk of accidental loss/deterioration passes upon provision of the goods.
2. Dispatch within Germany: For deliveries with a net value of goods in the amount of €150.00 or more, delivery within Germany is carriage paid. If the net value of the goods per order is less than €150.00, dispatch costs in the amount of €1.90 will be charged.
3. Dispatch outside Germany: Upon receipt of the order, the parties shall reach a mutual agreement on the dispatch costs, which we will include in the order confirmation.
4. Delivery dates are to be scheduled on an individual basis. To the extent that delivery dates or deadlines are stated in the order confirmation, these shall not be deemed absolute transactions for delivery by a fixed date. 
5. We are entitled to partial delivery or performance for operational reasons unless this places an unreasonable burden on the customer. Rights arising from default or warranty for defects are limited to the respective partial deliveries.
6. Upon expiry of the type series, the provision of spare parts will be ensured for a period of 3 years. Upon request and after a feasibility test, spare parts may be provided beyond this period of time.
7. If the goods are not accepted or approved even though a reasonable period of time has previously been set, we shall be entitled to withdraw from the contract. This does not exclude the assertion of more extensive damages or the evidence of less extensive damages.
8. In case of a significant, verifiable deterioration in assets, we shall be entitled to make further deliveries against advance payment only, to request the immediate payment of any outstanding invoice amounts and to demand payment in cash or the provision of security against the return of any bills of exchange accepted on account of payment.

Force majeure

1. Cases of force majeure, in particular strikes, lockouts, wars, pandemics, raw-material and energy shortages, operation and traffic disruptions beyond our control as well as obstructive sovereign decrees will suspend the parties’ contractual obligations for the duration of the disruption and within the scope of its effect, even to the extent that these render the execution of the affected business uneconomical for the foreseeable future. This shall also apply if one of our suppliers experiences any of the cases of force majeure mentioned above and if another delivery option is not available or only available under unreasonable conditions. 
2. If the resulting delays exceed a period of six weeks, both contractual parties will be entitled to withdraw from the contract with regard to the affected scope of performance.
3. Damage claims by the customer are excluded in cases of force majeure.

Payment

1. Invoices are due immediately upon receipt. The customer will be in default 14 calendar days upon receipt of the invoice, at the latest, pursuant to section 286 para. 2 German Civil Code (BGB).
2. If the payment term is exceeded, we will charge default interest in the amount of 9 percentage points above the base interest rate. Documents in documentary transactions must be issued in euros or in the equivalent amount of the contract currency. Payments must be made in euros or in the equivalent amount of the contract currency. 
3. Offsetting against any counterclaims or rights of retention arising from the specific contractual relationship will be allowable only if the counterclaims are undisputed by us or have been recognized by declaratory judgment. The customer’s right to set off costs shall be unrestricted to the extent that its set-off claim is synallagmatically linked to the principal claim.

Quality, warranty

1. The agreement reached on the quality and the intended use of the goods (including accessories and instructions) forms the basis of our liability for defects first and foremost. In this sense, all product product descriptions and manufacturer information that are the subject matter of the individual contract or that we had made publicly available (in particular in catalogues or on our website) at the time the individual contract was concluded shall be deemed quality agreements. In the absence of an agreement on quality, the existence or non-existence of a defect shall be evaluated on the basis of statutory provisions (section 434 para. 3 German Civil Code (BGB)). Customary deviations and minor deviations that are unavoidable for technical reasons as well as wear and tear due to the very nature of the goods’ quality do not represent any defects.
2. The basis for claims based on defects is the customer’s immediate inspection of the goods upon receipt and its notice of obvious defects without delay no later than 8 days upon receipt of the goods. In case of complaints, all required information concerning the use of the goods must be submitted and the goods may have to be handed over. In case of goods intended for assembly, mounting or installation, this shall also apply if the defect resulting from the violation of any of these obligations has become apparent only after the respective processing; in this case, the buyer shall, in particular, not be entitled to compensation of the respective costs ("disassembly and assembly costs"). We are generally not liable for any defects that the customer is aware of at the time the contract is concluded or that the customer is not aware of due to gross negligence (section 442 German Civil Code (BGB)).
3. If the goods are defective at the time the risk passes, we will rectify the defects, in our discretion, within 14 days upon receipt of the returned goods or we will deliver replacement goods free of defects. In case of failed rectification or subsequent delivery, the statutory provisions shall apply. Alternative performance will neither include disassembly, removal or deinstallation of the defective item nor assembly, mounting or installation of an item free of defects if we were not obligated to perform such services originally.
4. Our recommendation for use must be made available to the user/end customer. The customer shall indemnify us against any damages claimed by third parties due to culpable non-compliance with this obligation.
5. In case of an actual defect, we will bear or reimburse expenses required for assessment and alternative performance, in particular costs for transport, travel, labor and materials as well as disassembly and assembly if required, according to the statutory provisions and the GTC at hand. Otherwise, we may demand reimbursement from the customer for the costs incurred by the unjustified request to remedy the defect if the customer knew or could have known that in fact there was no defect.
6. Warranty claims are subject to a 1-year limitation period upon delivery unless we have fraudulently concealed the defect. To the extent acceptance has been agreed on, the limitation period begins upon acceptance.
7. Claims to reimbursement of the buyer’s expenses according to section 445a para. 1 German Civil Code (BGB) shall be excluded unless the last contract in the supply chain governs the sale of consumer goods (sections 478, 474 German Civil Code (BGB)).

Liability

1. In the event of a violation of contractual and non-contractual obligations, we shall be liable according to statutory provisions unless otherwise stipulated by the GTC at hand including the following provisions.
2. We shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the case of intent and gross negligence. Subject to statutory limitations on liability (the diligence one usually employs in one’s own affairs or insignificant breach of duty, for example), in cases of simple negligence we shall be liable only
   a) for damages resulting from injury to life, body or health,
   b) for damages resulting from the violation of a material contractual obligation (an obligation that needs to be fulfilled in order to enable correct execution of the contract and in whose compliance the contractual partner regularly trusts and may trust); however, in this case our liability is limited to the replacement of the foreseeable, typically occurring damage.
3. The limitations on liability arising from para. 2 shall also apply vis-à-vis third parties as well as in cases of breaches of duty by individuals (also in their favor), whose fault we are responsible for according to statutory provisions. They shall not apply in cases of fraudulent concealment of a defect or in case the quality of the goods had been warranted, and they shall not apply to claims of the buyer under the German Product Liability Act (Produkthaftungsgesetz).
4. The buyer may only withdraw from or terminate the contract on the grounds of a breach of duty that does not constitute a defect if we are responsible for the breach of duty. A free right of termination by the buyer (in particular pursuant to sections 650, 648 German Civil Code (BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.

Retention of title

1. Until full payment of all receivables due from the customer we shall retain title to the delivered goods.
2. In the event of default in payment, we shall be entitled to take back the goods subject to retention of title at the customer's expense after declaring our withdrawal from the contract following a reasonable grace period. If the goods subject to retention of title have come into the possession of a third party, we may demand that the customer assigns the claim for return vis-à-vis said third party. If the customer is in default in payment, we may demand that the customer marks the goods subject to retention of title as our property in a clearly visibly manner. In order to exercise this right, we shall be allowed to enter the customer’s premises during ordinary business hours. 
3. The customer is prohibited from pledging the goods subject to retention of title or assigning them as collateral. The customer will notify us without delay in the event of access by third parties to the goods subject to retention of title, in particular in the event of seizure measures, and will inform the third party of our privilege. The customer shall bear any costs and potential damage to the goods subject to retention of title.
4. The right to resell, use or assemble the goods subject to retention of title and the authorization to collect the assigned receivables shall expire upon suspension of payment, application for or opening of insolvency proceedings or other proceedings according to the German Insolvency Code (InsO). 
5. If the value of the collaterals exceeds the receivables to be settled by the customer by more than 20%, we shall release further collaterals on request.

Return

1. Goods can only be returned with our consent, indicating the reason for return. Returned goods that are not accompanied by a copy of the delivery note or invoice will not be accepted. 
2. Returns (in their original packaging and in absolutely new condition) will be credited in the amount of 90% of the value of the goods.
3. Items whose delivery dates back 3 months or more, items that are based on a special order and items that have been damaged or modified by the buyer are excluded from return.
4. The transport shall be carried out at the expense and risk of the sender.

Disposal
The disposal and use of packaging and old appliances must comply with the respective applicable statutory provisions. Appliances covered by the German law governing the sale and disposal of electric appliances (ElektroG) and the German law governing the sale and disposal of batteries (BattG) will be labeled accordingly. Our WEEE registration number is: DE33275322.

Legislation governing medical devices

1. The customer must comply with the provisions of the legislation governing medical devices that are applicable in its case and must fulfill the resulting obligations that are applicable in its case; since May 26, 2021, this has also included the obligations arising from art. 14 para. 1 to 6 of Regulation 2017/745 and Regulation 2017/746, respectively, to the extent they are applicable in its case. 
2. Irrespective of sub-para. 1 of the legislation governing medical devices, the following duties shall apply to the customer:
   • the customer must ensure the products’ traceability, for example by way of adequate documentation in cases of resale, transfer or use of the products including appropriate storage of the documents;
   • the customer must notify us without delay if it considers or has reason to consider a product to be improper, or if it possesses or has received complaints or reports about presumed incidents in connection with a product; 
   • the customer must cooperate with us and the relevant authorities to ensure that corrective measures that might be required can be carried out or supported.
3. Irrespective of the liability governed by this contract, the customer shall indemnify us against third-party claims to the extent that they are based on the fact that the customer has culpably failed to comply with the provisions of the legislation governing medical devices applicable to the customer.
4. Use of personal data
5. Customer data are processed only within the company and in compliance with the applicable data-protection laws. Information on scope, purposes and other conditions of our processing of personal data are available on our website (www.drivedevilbiss.com).

Place of performance, jurisdiction, applicable law 

1. The place of performance is the headquarters of our company in Isny, Germany.
2. Place of jurisdiction for all legal disputes arising directly or indirectly from contractual relationships based on the GTC at hand is Ravensburg, Germany. We are entitled, at our option, to make use of the general place of jurisdiction, as well.
3. Any business relation is governed by the German civil and commercial law, excluding the United Nation Convention on Contracts for the International Sale of Goods (CISG).

Validity of the provisions

1. If individual provisions of the GTC at hand are invalid, this shall not affect the validity of the remaining provisions. In case of an invalid provision of the GTC at hand, the contractual parties undertake to negotiate a replacement provision that accomplishes as best as possible the economic purpose intended by the contractual parties as they agreed on the invalid provision and whose content is legally permissible. 
2. To fill any omission in the contract, an appropriate provision shall apply which the parties would have put in place if they had considered the point when concluding the contract.

The contract language is German. If the GTC at hand and other documents also exist in English, the German version shall be authoritative in case of a court dispute. 

Status: June 24, 2024