GENERAL TERMS AND CONDITIONS FOR THE DELIVERY OF SPARE PARTS, SERVICES AND REPAIRS, AS WELL AS TRAINING SERVICES FROM THE DMG MORI ONLINE SHOP
1.1 The following terms and conditions shall apply to all present and future spare part deliveries, services/repairs and training services (courses, seminars and provision of course materials) provided by our company (‘supplier’) to the buyer. A buyer is any person engaged in professional or independent activities at the time of conclusion of contract (contractor), as well as any legal persons governed by public law or special assets as defined by public law.
1.2 Any different, contradictory or deviating terms and conditions of the buyer shall be deemed invalid. The supplier is also not subject to the aforementioned terms and conditions, even in cases where the latter does not expressly repudiate them upon receipt of order.
2. CONCLUSION OF CONTRACT
2.1 The presentation and promotion of goods, services/repairs, as well as training services in the supplier’s online shop does not constitute a binding offer for the conclusion of a sale contract.
2.2 The buyer may select spare parts, services/repairs and training services for machine tools from the ‘DMG MORI’ brand from the supplier’s product range and accumulate these items in a virtual shopping basket using the ‘Add to basket’ button. If the ‘Buy Now’ button is used, the buyer submits a binding request to purchase the goods and services in the shopping basket. Prior to sending the order, the buyer may view and change data at any time. However, the request may only be submitted and transferred, if the buyer accepts the terms and conditions of this contract by clicking on the ‘Accept General Terms and Conditions’ button, thereby including them in his request.
2.3 The supplier shall automatically send the buyer a confirmation of order receipt via email, which contains a copy of the buyer’s order and can be printed out using the ‘Print’ function. An automatic confirmation of receipt simply documents receipt of the buyer’s order by the supplier and does not constitute an acceptance of the order. The contract does not exist until the supplier has sent a notification of acceptance in a separate e-mail (order confirmation).
2.4 The buyer may view previous orders in his or her customer account.
2.5 The language of the contract is German.
2.6 If specific deliveries and services are shown as ‘available on request’ in the online shop, the buyer may contact the supplier using the ‘Request product’ button. The supplier shall forward the buyer’s request to one of his affiliates for further processing. In this case, the contract is concluded between the buyer and the supplier‘s respective affiliate.
3. PRICES, PAYMENT TERMS AND SPARE PART SHIPMENT
3.1 All prices quoted on the supplier’s website are subject to VAT at the current rate. The supplier shall deliver free of charge within the European Union. For all other countries outside the European Union, shipping costs and customs charges may be incurred. The buyer shall assume these costs.
3.2 The buyer shall be in default of payment, without a reminder, within 10 days of delivery. In the event of default, interest shall be charged at a rate of 9% above the respective base rate. We reserve the right to claim further damages in the event of payment arrears.
3.3 The spare part purchased shall be dispatched via parcel shipment. The risk of accidental loss or accidental impairment shall pass to the buyer upon transfer of the spare part for delivery to the carrier, at the latest, however, upon leaving the plant, warehouse or branch. The same consequences arise if the buyer is in default of acceptance.
3.4 The buyer shall only be entitled to offset claims and/or assert a right to retention, if his counter-claim is undisputed or legally established.
4. PERFORMANCE PERIOD AND DELAY IN PERFORMANCE
4.1 The buyer shall be responsible for the correct specification and technical description of spare parts, as well as for the suitability of services/repairs. Any instructions or advice from the supplier regarding the suitability of spare parts or services/repairs selected by the buyer are non-binding, as the supplier receives the order without prior inspection of the machine where the spare part is meant to be installed or the service/repair carried out.
4.2 Delivery periods are defined in agreements between the contractual parties. Delivery periods shall only be adhered to by the supplier, if all commercial and technical issues have been clarified by the contractual parties and the buyer has complied with all the obligations incumbent upon him. If this is not the case, the delivery period shall be extended accordingly. This does not apply if the supplier is responsible for the delay.
4.3 If failure to meet the delivery date is due to force majeure, strikes or other events beyond the control of the supplier, the delivery period shall be extended accordingly. The supplier shall immediately notify the buyer of the beginning and end of such circumstances.
5. LIABILITY FOR MATERIAL DEFECTS
5.1 The supplier’s liability for any material defects and defects of title with regard to spare parts and services/repairs shall be governed by statutory provisions, subject to the following regulations, whereby the supplier may be entitled, at his discretion, to supplementary performance by rectifying the defect or delivering spare parts free from defects/performing services/repairs free from defects.
5.2 The buyer shall provide the supplier with the time and opportunity required for the supplier to undertake all actions he deems necessary for supplementary performance. Otherwise, the supplier shall not be liable for any consequences resulting thereof. Supplementary performance does not include either removal of the defective spare part or its refitting, if the supplier was originally under no obligation to fit the part.
5.3 If the buyer’s request for rectification of defects proves unjustified, the supplier may claim compensation from the buyer for any costs incurred.
5.4 The supplier shall not be liable in the following cases: Improper or incorrect use, incorrect assembly or fitting or commissioning by the buyer or third parties, normal wear and tear, incorrect or negligent handling, improper maintenance, unsuitable operating equipment, defective construction work, unsuitable support medium, chemical, electro-chemical or electrical influences, unless these are the fault of the supplier. In each case, the buyer shall assume any additional costs thus incurred for the correction of defects.
5.5 If the buyer or a third party carries out repairs incorrectly, the supplier shall not be liable for any consequences thereof. The same applies to any modifications made to spare parts delivered without the consent of the supplier. In each case, the customer shall assume any additional costs thus incurred for the correction of defects caused by modifications or improper repairs.
6. SUPPLEMENTARY PROVISIONS FOR SPARE PARTS (RETENTION OF TITLE)
The supplier shall retain ownership to all spare parts used or delivered until all payments have been received from the respective sales contract. In the event of a breach of contract by the buyer, in particular for payment delay, the supplier shall be entitled to rescind the contract in accordance with legal requirements and request the return of the spare part on account of the retention of title and to withdraw from the contract. An application to open insolvency proceedings shall entitle the supplier to withdraw from the contract and request the immediate return of the spare part. However, the assertion of the retention of title or the seizure of the spare part by the supplier shall not constitute withdrawal from the contract.
7. SUPPLEMENTARY PROVISIONS FOR SERVICES/REPAIRS
7.1 The buyer shall assume any costs incurred by the supplier, if the repair/service cannot be carried out by himself for reasons beyond his control, in particular if
- the alleged defect did not occur during inspection,
- the buyer was culpable for missing the service/repair deadline agreed,
- the order was cancelled by the buyer during performance of the work,
- the spare parts required cannot be procured within a reasonable period of time
The item for repair/service shall only be restored to its original condition at the buyer‘s express wish and against reimbursement of costs, unless the work performed was unnecessary.
7.2. The buyer shall undertake to carry out a final inspection of services/repairs upon notification of their completion or in particular cases, upon completion of a test run that has been contractually agreed. If the final inspection is delayed due to no fault of the supplier, it shall be deemed as completed 2 weeks from notification of the completion of the repair/service, but no later than the commissioning of the machine. The supplier shall not be liable for visible defects following final inspection of the repair/service, unless the buyer has reserved the right to claim damages for a specific defect.
7.3 For repair requests, which require the item for repair to be transferred to the supplier’s factory site or a site belonging to a third party appointed by him, the delivery and collection of the item for repair shall be carried out at the buyer’s own cost and risk. If acceptance of the item for repair is delayed by the buyer, the supplier may charge storage fees for storing it at his own site or at the site of a third party appointed by him. The item for repair may also be stored at other premises, at the supplier’s own discretion. Any costs and risks incurred for storage shall be charged to the buyer.
8. SUPPLEMENTARY PROVISIONS FOR TRAINING
8.1 Training courses are services. Statutory provisions on contracts for work and services, particularly on claims for liability of defects, do not apply.
8.2 The supplier shall reserve the right to cancel courses and seminars for good cause (e.g. trainer illness). The supplier shall immediately notify the customer about the cancellation of the course for good reason. Any payments made for an attendance fee shall be reimbursed to the customer. Any claims for damages and reimbursement of expenses by the buyer shall only apply in accordance with the provisions in clause 9.
8.3 Any copyrights for course materials, in any form whatsoever, are the exclusive property of the supplier. Any reproduction in any form shall only be permitted with the prior written consent of the supplier.
8.4 The buyer shall undertake to observe the applicable health and safety and accident prevention regulations on the supplier’s premises and to follow the trainer’s instructions at all times.
9. LIABILITY OF SUPPLIER, DISCLAIMER
9.1 Any claims for damages by the buyer are hereby excluded. Exceptions are claims for damages from the buyer for culpable injury to life, body or health or a material breach of contract (cardinal duties), as well as liability for other damages, which arise from a willful or grossly negligent breach of duty by the supplier, his legal representatives or sub-contractors. Material contractual obligations are duties whose fulfilment is necessary for achieving the purpose of the contract.
9.2 In the event of material breach of contract, the supplier shall only be liable for foreseeable damages typical to the contract, if they were caused by ordinary negligence, unless the claims for damages from the buyer are due to culpable injury to life, body or health.
9.3 The restrictions in clauses 9.1 and 9.2 shall also apply to the supplier’s legal representatives and sub-contractors, if claims are made directly against them.
9.4 The provisions of the Product Liability Act remain unaffected.
10. LIMITATION PERIOD
Any claims from the buyer are subject to a limitation period of 12 months, irrespective of the legal grounds. The limitation period for claims for material defects and defects of title commences from the delivery date. If a final inspection has been agreed, the limitation period commences from this date. For claims for damages in accordance with clause 9.1, statutory periods shall apply.
11. APPLICABLE LAW AND PLACE OF JURISDICTION
11.1 All legal relations between the supplier and buyer shall be governed by the laws of the Federal Republic of Germany. The application of international uniform law and in particular, CISG is hereby excluded.
11.2 The place of jurisdiction is the registered office of the supplier. However, the supplier is also entitled to pursue legal proceedings at the registered office of the buyer.