General Terms and Conditions

§1 General information

1.      The following terms and conditions of sale and delivery of Delta Dore Spega GmbH apply to all current - and towards merchants independent of a separate reference in individual cases also to all future - legal transactions, unless Delta Dore Spega GmbH has expressly acknowledged deviations in writing. Subsidiary agreements and subsequent changes are only binding for Delta Dore Spega GmbH after written confirmation by Delta Dore Spega GmbH. The employees of Delta Dore Spega GmbH are not entitled to make verbal agreements that deviate from these terms and conditions. It always applies that changes and/or additions to a legal transaction must be made in writing in order to be legally effective. The requirement of written form can only be waived by a written agreement of the parties.  

2.      Delta Dore Spega GmbH does not recognise any terms and conditions of purchase or business of the customer that contradict or deviate from our terms and conditions, unless Delta Dore Spega GmbH has expressly agreed in writing to the validity of the customer's terms and conditions in individual cases.

3.      In the case of a permanent business relationship, the General Terms and Conditions of Delta Dore Spega GmbH in their current version shall become an integral part of the contract even if no more explicit reference is made to them, and if they were handed over for information purposes in their current version within the framework of permanent business relations.

§2 Offers and scope of delivery as well as acceptance of transport packaging

1.      The offers of Delta Dore Spega GmbH are always subject to change and non-binding. The contract is only concluded upon a written order confirmation from Delta Dore Spega GmbH. Delta Dore Spega GmbH is entitled to accept an offer from the customer within a period of three weeks.

2.      The documents belonging to the offers of Delta Dore Spega GmbH such as illustrations, drawings, weights and dimensions merely identify the subject matter of the contract and do not represent any warranty of characteristics. They only contain approximate information within the framework of customary commercial tolerances.

3.      Ownership and copyright to drawings and other documents remain with Delta Dore Spega GmbH. These drawings and documents may not be made accessible to third parties and are to be returned to Delta Dore Spega GmbH free of postage immediately upon request of Delta Dore Spega GmbH or if the order is not placed.

4.      The written order confirmation of Delta Dore Spega GmbH is decisive for the scope of delivery. Protective devices are supplied if and insofar as this has been agreed in writing.

5.      Delta Dore Spega GmbH reserves the right to make changes to the delivery item, provided that the usability of the items for the agreed purpose is not impaired and the agreed relationship between price and performance is not modified to the disadvantage of the customer. Technical improvements are always permissible.

6.      The place of performance for the return of any transport packaging is the plant (the point of sale) of Delta Dore Spega GmbH. The customer bears the costs of the packaging material as well as the costs for the return of the transport packaging to the Delta Dore Spega GmbH plant. The customer is also obliged to return the transport packaging during the usual operating hours of Delta Dore Spega GmbH in clean condition and not mixed with other components.

§3 Prices and Payments

1.      All prices are net prices. Unless otherwise agreed, no discount will be granted. The prices are "ex works" (the point of sale of Delta Dore Spega GmbH) and exclude packaging and insurance. Bank, discount and collection charges will not be borne by Delta Dore Spega GmbH.

2.      Prices are calculated on the basis of material prices and wages valid at the time of contract conclusion. Should these increase until delivery, Delta Dore Spega GmbH is entitled to charge higher prices in appropriate relation. This is not affected by down payments and advance payments by the customer.

3.      Unless otherwise agreed, payment shall be made in cash free of deduction and transaction charges to Delta Dore Spega GmbH at the time of invoicing, irrespective of the time of delivery of the goods ("cash on account").

4.      In the event of late payment, Delta Dore Spega GmbH is entitled

a) to demand annual interest to the amount of 5% above the base interest rate in accordance with §1 of the Discount Transition Act of 9.6.1998 (BGBl. I S1242), 

b) to assert all claims from this or other transactions against the customer immediately, even if individual instalments are not yet due,

c) to retain deliveries or other services from this or other transactions until the complete fulfilment of all claims to which Delta Dore Spega GmbH is entitled from this or other orders by the customer,

d) to demand adequate security.
We reserve the right to claim further damages.

5.      The claims of Delta Dore Spega GmbH against the assertion of rights of retention or offsetting as well as the plea of non-performance or defective performance of the contract is excluded, unless the counter-claims are legally established, undisputed or acknowledged by Delta Dore Spega GmbH.

6.      If orders are cancelled, the agreed price is due and payable immediately. However, the costs that Delta Dore Spega GmbH has saved for the partial work to be carried out until the ordered parts are fully completed will be deducted. Remuneration amounts to 30% of the order volume, unless the contractual partner proves a lower damage. Delta Dore Spega GmbH reserves the right to prove higher damages.

§4 Delivery time and delay in acceptance

1.      Delta Dore Spega GmbH endeavours to adhere to the stated delivery periods and deadlines; however, the delivery dates stated by Delta Dore Spega GmbH can only provide an indication in the absence of express assurance, whereby delivery is made no later than within 3 weeks of the stated date.

2.      Periods begin with the dispatch of the order confirmation, but not before the provision of the final documents, approvals to be procured by the customer, the clarification of all technical questions and before receipt of an agreed down payment. Delivery periods shall be deemed to have been met if the delivery item has left the place of dispatch at Delta Dore Spega GmbH or if readiness for dispatch has been notified before expiry of the delivery period.

3.      Delivery and execution periods shall be appropriately extended in the event of industrial action, in particular strikes and lock-outs, as well as the occurrence of unforeseen obstacles, if these lead to delays in performance at Delta Dore Spega GmbH or its suppliers or subcontractors through no fault of their own.

4.      If Delta Dore Spega GmbH is in default, its liability for damages in case of slight negligence is limited to the foreseeable damage. Further claims for damages only exist if the delay is based on intent or gross negligence.

5.      If the customer is in default with the acceptance of the service, Delta Dore Spega GmbH is entitled, without prejudice to further legal claims, to charge ½% of the invoice value monthly, but no more than 5% for storage costs, unless the customer proves a lower damage. Delta Dore Spega GmbH reserves the right to claim higher damages.

§5 Transfer of risks

The risk shall pass to the customer when the delivery leaves the dispatch point at Delta Dore Spega GmbH or is made available to the customer by notification of readiness for dispatch. Dispatch is carried out for the account and at the risk of the customer.

§6 Partial deliveries

Delta Dore Spega GmbH is entitled to partial deliveries and - in accordance with prior information - also to premature deliveries.

§7 Reservation of proprietary rights

1.      The items delivered by Delta Dore Spega GmbH remain the property of Delta Dore Spega GmbH until full payment of the purchase price including all ancillary claims. Delta Dore Spega GmbH also retains ownership of these items until full payment of all existing and future claims arising from the business relationship already existing or initiated by the contract.

2.      Processing or transformation of the delivered goods is always carried out for Delta Dore Spega GmbH. If the item is processed with other items not belonging to Delta Dore Spega GmbH, with the consequence that the item loses its legal independence, Delta Dore Spega GmbH acquires co-ownership of the new item in the ratio of the value of the goods delivered by Delta Dore Spega GmbH to the other processed items at the time of processing.

3.      If the item is mixed with other items not belonging to Delta Dore Spega GmbH, Delta Dore Spega GmbH acquires co-ownership of the new item in the ratio of the value of the item delivered by Delta Dore Spega GmbH to the other mixed item at the time of mixing. If the customer's item is to be regarded as the main item, the customer shall transfer pro rata ownership to Delta Dore Spega GmbH.

4.      In the event of seizures or other third-party interventions, the customer must inform Delta Dore Spega GmbH immediately in writing. Intervention and replacement costs shall always be borne by the customer.

5.      Delta Dore Spega GmbH is entitled to demand or take back the purchased goods in the event of culpable breach of contract on the part of the customer or in the event of justified doubts as to the customer's creditworthiness, default in payment, cessation of payments or filing for insolvency. This and the seizure of the reserved goods shall not constitute a withdrawal from the contract unless expressly declared by Delta Dore Spega GmbH to be so. Returned goods can be freely used by Delta Dore Spega GmbH. Any redemption proceeds will be credited against the remuneration. The customer is liable for the default claim.

6.      The delivery items are to be handled with care by the customer and are to be kept at the customer's expense by him under full insurance against fire, water, explosion and other damage. Delta Dore Spega GmbH must be informed immediately of any damage that occurs.

7.      The customer is authorised to resell the goods in the ordinary course of business. If the customer sells the item subject to retention of ownership, he is, however, also obliged to retain ownership vis-à-vis the third party purchaser. For the duration of the retention of ownership, the customer hereby assigns to Delta Dore Spega GmbH all claims against its customers arising from the sale with all ancillary rights until all claims of Delta Dore Spega GmbH have been paid in full, irrespective of whether the purchased item has been resold without or after processing. The customer is entitled to collect the assigned claim himself, but must immediately pass it on to Delta Dore Spega GmbH. Delta Dore Spega GmbH can notify the third party purchaser of the assignment at any time.
Delta Dore Spega GmbH has the right to revoke the resale and collection authorisation with immediate effect if the customer does not fulfil his obligations towards Delta Dore Spega GmbH.

8.      If the value of the security rights granted to Delta Dore Spega GmbH by the retention of ownership exceeds the delivery claims of Delta Dore Spega GmbH including ancillary claims by more than 20%, Delta Dore Spega GmbH is obliged to release the corresponding amount of security at the request of the customer.

§8 Copyrights, software licenses, industrial property rights

The copyrights to the software remain with Delta Dore Spega GmbH. After complete payment, the customer is granted the non-exclusive right to use the delivered software. The separate license conditions for the respective software apply.

§9 Warranty for defects, claims for damages and reimbursement of expenses

1.      If the customer is an entrepreneur, he must properly fulfil his obligations to inspect and give notice of defects in accordance with §377 HGB (German Commercial Code). Defects must be reported in writing within 8 working days after receipt of the delivery item at the place of destination or, if these could not be detected during a proper inspection, within 8 working days after commissioning of the delivery item in accordance with the contract. If the customer is a consumer, obvious defects must be notified within 2 weeks after delivery of the goods, non-obvious defects within 2 months after discovery. Timely dispatch of the relevant notification by the person giving notice shall suffice to comply with the deadline.
If a product is delivered to a client of the customer, the customer has the obligation to immediately forward the client's complaint to Delta Dore Spega GmbH in order to protect his rights under §478 BGB. The notification shall be deemed to have been made without delay and in due form if it is made in writing within eight working days. The timely dispatch of the relevant notification is sufficient to meet the deadline. If the customer fails to notify Delta Dore Spega GmbH of a defect in due time, Delta Dore Spega GmbH shall not be liable for the defect not notified in due time.

2.      Insofar as the performance of Delta Dore Spega GmbH shows a defect, the cause of which already existed at the time of the transfer of risk, the customer is entitled to subsequent performance by rectification or subsequent delivery. Delta Dore Spega GmbH shall only bear the associated expenses insofar as they are not increased by the fact that a delivery item was subsequently moved to a location other than the registered office of Delta Dore Spega GmbH, unless this transfer corresponds to the intended use. Replaced goods become the property of Delta Dore Spega GmbH and must be returned to Delta Dore Spega GmbH.
If the customer has installed the defective item in another item in accordance with its type and intended use, Delta Dore Spega GmbH is obliged, within the scope of subsequent performance, either to remove the defective item itself as required and to install the repaired or delivered defect-free item or to reimburse the customer for the related expenses at its discretion. If the customer has changed the defective item in accordance with its use as stipulated in the contract, Delta Dore Spega GmbH is obliged within the scope of subsequent performance either to restore the changed condition itself or to reimburse the customer for the related expenses at its discretion.    

3.      If the subsequent performance fails, the customer is entitled - irrespective of any claims for damages and reimbursement of expenses according to these terms and conditions - to reduce the remuneration or - if the breach of duty by Delta Dore Spega GmbH is considerable - to withdraw from the contract.

4.      Defects in part of the delivered goods do not entitle the customer to contest the entire delivery, unless the partial delivery is of no interest to the customer.

5.      Claims for defects are subject to a limitation period of 24 months. The period begins with the transfer of risk of the delivery item. For warranty claims based on intentional or grossly negligent conduct attributable to Delta Dore Spega GmbH, the statutory limitation periods according to § 438 BGB apply. For buildings and newly manufactured items which have been used for a building in accordance with their normal use and have caused its defectiveness, the statutory limitation period according to § 438 Paragraph 1 No. 2 BGB applies.<s> </s><s></s>

6.      In the case of notices of defects, payments of the customer may only be withheld to an extent that is in a reasonable relationship to the defects that have occurred if the customer's claims are undisputed or have been finally and conclusively established. If the complaint is unjustified, Delta Dore Spega GmbH is entitled to demand compensation from the customer for the expenses it has incurred.

7.      In accordance with legal regulations, Delta Dore Spega GmbH is liable if the customer asserts claims for damages or reimbursement of expenses (hereinafter: claims for damages) which are based on intent or gross negligence. In accordance with legal regulations, Delta Dore Spega GmbH is further liable if Delta Dore Spega GmbH culpably violated an essential contractual obligation, as well as in cases of injury to life, body or health and insofar as guarantees have been assumed.

8.      Compensation for the breach of an essential contractual obligation (i.e. an obligation the fulfilment of which renders the proper performance of the contract possible in the first place and on whose compliance the contractual partner regularly relies and may rely) is limited to the foreseeable, typically occurring damage, unless there is intent or gross negligence and unless liability is assumed for injury to life, body or health or from warranties assumed. In this respect, these claims for damages become statute-barred after 12 months, in business transactions with a consumer after 24 months.

9.      Otherwise, liability for damages - irrespective of the legal nature of the asserted claim - is excluded. Delta Dore Spega GmbH is in particular not liable for damages that have not occurred to the delivery item itself, such as loss of profit, loss of production, business interruption, loss of information and data as well as other financial losses of the customer.<s>  </s><s></s>

10.    If the customer has asserted a claim against Delta Dore Spega GmbH due to warranty claims and it subsequently turns out that either there is no defect or that the asserted defect is based on a circumstance which does not oblige Delta Dore Spega GmbH to warranty, the customer must reimburse Delta Dore Spega GmbH for all costs incurred thereby, provided that he is responsible for the claim against Delta Dore Spega GmbH.

11.    The customer must grant Delta Dore Spega GmbH the time and opportunity required for the subsequent performance owed, and in particular to hand over the rejected goods for inspection purposes and to grant Delta Dore Spega GmbH access to the goods.

12.    The mandatory provisions of the Product Liability Act remain unaffected.

13.    The customer's claims for reimbursement of expenses are limited to the amount of interest which the customer has in the performance of the contract.

14.    Insofar as the liability of Delta Dore Spega GmbH is excluded or limited, this also applies to the personal liability of the employees, workers, staff, representatives and vicarious agents.

§10 Impracticality

If Delta Dore Spega GmbH is unable to perform its obligations for a reason for which it is responsible, the customer is entitled to withdraw from the contract. Claims for damages do not exist, unless the impracticality is based on intent or gross negligence of Delta Dore Spega GmbH, its representatives or vicarious agents. In the event of slight negligence, liability is limited to typical foreseeable damage to the exclusion of indirect damage. The compensation amounts to 10% of the value of the goods the performance of which is impossible, whereby the customer reserves the right to prove a higher damage and Delta Dore Spega GmbH the right to prove a lower damage.

§11 Industrial property rights and copyrights

1.      Delta Dore Spega GmbH shall be liable to the customer as follows if a third party asserts justified claims against the customer due to the infringement of an industrial property right or copyright (hereinafter: property rights) by products delivered by Delta Dore Spega GmbH and used in accordance with the contract:

a) Delta Dore Spega GmbH will, at its own expense, either obtain a right of use for the product, modify the product in such a way that the property right is not infringed, or replace the product. If this is not possible on reasonable terms, Delta Dore Spega GmbH shall take back the product against refund of the purchase price.

b) The aforementioned obligations of Delta Dore Spega GmbH only exist if the customer immediately informs Delta Dore Spega GmbH in writing about the claims asserted by the third party, does not acknowledge an infringement and Delta Dore Spega GmbH reserves all defensive measures and settlement negotiations. If the customer ceases to use the product for damage mitigation or other important reasons, he is obliged to point out to the third party that the cessation of use does not constitute an acknowledgement of the infringement of property rights.

2.      Claims of the customer are excluded if he is responsible for the infringement of industrial property rights.

3.      Claims of the customer are also excluded if the infringement of property rights is caused by special specifications of the customer, by an application not foreseeable by Delta Dore Spega GmbH or by the product being modified by the customer or being used together with products not supplied by Delta Dore Spega GmbH.

4.      Further claims against Delta Dore Spega GmbH are excluded. §12 remains just as unaffected as the right of the customer to withdraw from the contract.

§12 Liability

1.      In all cases of breach of contractual or pre-contractual as well as legal breaches of duty, Delta Dore Spega GmbH is only liable in cases of intent or gross negligence. Product liability shall apply insofar as this is provided for by mandatory statutory provisions. Liability for personal injury remains unaffected.

2.      If Delta Dore Spega GmbH negligently violates a main obligation or an essential contractual obligation, Delta Dore Spega GmbH's obligation to pay compensation is limited to the foreseeable damage typical for the contract.

§13 Concluding provisions

1.      Place of performance is Moers; exclusive place of jurisdiction for all legal disputes arising from this legal relationship is Moers. Delta Dore Spega GmbH is however entitled to sue the contractual partner at his general place of jurisdiction.

2.      The contractual relationship including the terms of delivery shall be assessed exclusively in accordance with German law - with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG) - even if the customer is domiciled abroad or if the transaction is an export transaction.

3.      Should individual parts of the above terms and conditions be invalid, this shall not affect the validity of the remaining terms and conditions of delivery. The parties to the contract are obliged to give an invalid provision a valid version corresponding to its economic purpose if possible.