TERMS AND CONDITIONS OF SALE AND DELIVERY
1. SUBJECT MATTER AND CONCLUSION OF THE CONTRACT
Delivery, performances of contract and quotations are made exclusively upon the terms and conditions
set out hereinafter. These terms and conditions shall also apply to all future business with the
Purchaser, even if they have not been expressly agreed upon again by the parties. The Purchaser's
stipulations of terms and conditions contrary to the provisions hereof are hereby agreed to be
inapplicable to this agreement. This shall also apply if such stipulations are not contrary to these terms
and conditions of sale and delivery, but only complement such terms and conditions. Alterations of and
modifications to the provisions contained herein shall not be binding unless confirmed in writing by
DunaTec. The Purchaser shall be bound to his order for a period of 4 (four) weeks. For a Purchaser's
order to be legally binding for DunaTec, such order must be confirmed in writing by DunaTec unless
DunaTec delivers within the aforementioned period. Additional or collateral agreements, modifications
and amendments shall only be binding if confirmed in writing by DunaTec.
2. COPYRIGHT
We reserve the copyright to any drawings we may have to create in performing the contract. Such
drawings shall at all times remain the property of DunaTec, with all rights reserved, and shall not be
provided, submitted or disclosed to third parties unless such is necessary to perform the contract.
3. INCOMPLETE DELIVERIES
The Purchaser shall be entitled to complaints concerning an incomplete delivery only for a period of 8
(eight) days commencing the day the Purchaser receives the delivery.
4. PRICES
Prices are net price ex works, not including value-added tax, sales tax or other taxes and charges
applying in the country of the Purchaser. The price agreed upon shall be increased on the basis of the
list prices of DunaTec if delivery is made in accordance with the contract after a period of more than 4
(four) months after the date of the contract and if such increases in the list prices are the result of cost
increases of materials, wages, VAT or increases in applicable federal, state and local rates, tariffs or
taxes. Orders amounting to less than EUR 50.00 or the equivalent in any foreign currency shall be
subject to a handling charge of EUR 10.00 plus shipping and freight charges.
5. PAYMENT TERMS
The price shall become due and payable in full immediately after the delivery of the goods or services,
as the case may be, and at the invoice date. The following shall be deemed to be agreed upon:
payment shall be made according to the agreement. No discounts shall be deducted from the cost of
wages, packaging, freight or shipping. If payment is made by means of a Bill of Exchange or other
non-cash payment (which shall be accepted in fulfillment), all costs incurred in connection with such
payment shall be borne by the Purchaser. If a bill of exchange is not cashed, the entire invoice
amount shall become due for payment immediately.
In the event the Purchaser defaults in payment, the overdue amount shall be subject to interest at a
rate of the base rate plus 5 (five) percent or the base rate plus 8 (eight) percent in the case of
business which does not involve a consumer.
6. COUNTER CLAIMS
The Purchaser shall only have the right to set off counter claims which are either legal or accepted by
DunaTec.
7. DELIVERY PERIODS
Delivery dates or periods agreed upon shall be extended by a fair and reasonable period if
unforeseeable events prevent DunaTec from delivering promptly and if the consequences of such
events could only be remedied at unreasonable costs.
8. ADDITIONAL PERIOD
If DunaTec does not deliver the goods or services within contract time, the Purchaser shall have the
right to hold us in delay. A period of 4 (four) weeks shall be deemed to be a reasonable additional
period.
9. SHIPPING
The Purchaser shall bear all risks of transportation from the moment the goods leave DunaTec's
plant. DunaTec is exempted from the mandatory freight forwarders' insurance (SLVS waiver
customer).
10. ADDITIONAL TERMS
DunaTec's special conditions, made available to the Purchaser, shall apply if the Purchaser orders
mounting, starting-up or maintenance work for facilities. The delivery of whirlpools and diving basins
shall additionally be subject to the special terms and conditions for whirlpools and diving basins. If the
provisions hereto and the provisions set forth in the special terms and conditions for whirlpools and
diving basins are conflicting, the provisions set forth in the special terms and conditions for whirlpools
and diving basins shall apply.
11. WARRANTY
a) If goods and services are supplied which are obviously defective, the Customer must report such
defects within 8 (eight) days after receipt of such goods and services in order to maintain the
liability claims.
b) If the defect is of such a nature that only a spare part needs to be replaced, DunaTec shall have
the right to request the Purchaser to replace the new part delivered by us if the costs for sending a
technician to the Purchaser's site are unreasonably high.
c) The warranty periods are:
- two years: for devices for private use (natural persons)
- one year: for devices for industrial or commercial use (companies)
- two years: for all DVGW-tested devices, also for industrial or commercial use within the
framework of the liability agreement with the ZVSHK
after delivery/acceptance. This excludes electrical parts and parts which are subject to wear and
tear. The warranty period shall only apply if the operating instructions are observed meticulously, if
the device is mounted, commissioned, operated and maintained properly, and/or if a maintenance
contract is made within six months. If these requirements are not met, the warranty shall be void.
The warranty shall be void if the purchaser uses dosing agents or chemicals supplied by other
manufacturers and if the quality and composition of such dosing agents or chemicals is beyond
DunaTec's control. DunaTec shall not be liable for defects or damages resulting from inept
handling or operation.
d) DunaTec shall only be liable if the Customer performs the maintenance work as stated in the
operating instructions or has the maintenance work performed in such a way and if the Customer
uses spare parts supplied or recommended by DunaTec.
e) DunaTec shall not be liable for damages resulting from frost, water or electrical over-voltage or
from parts which are subject to wear and tear. This applies in particular to electrical parts.
f) The claims of the Purchaser are limited to repair or replacement, as the case may be, at the
discretion of DunaTec. DunaTec shall have the right to several attempts to repair. If DunaTec
fails to repair or replace the defective delivery within a reasonable time, the customer shall have
the right to either cancel the contract or demand an appropriate reduction of the purchase price.
g) In case of complaints with regard to systems that are not installed in Germany, the warranty claim
will be settled by the local technical customer service authorized by DunaTec. If no technical
customer service is designated in the specific country, the assignment of DunaTec’s technical
customer service shall end at the German border. All additional cost, apart from the material
required, shall be borne by the customer.
12. LIMITED LIABILITY
a) Damages resulting from death or injuries to the body or the health shall not be subject to a
limitation of liability.
b) Liability claims against DunaTec or DunaTec's vicarious agents and officers shall be excluded,
unless such liability claims are the result of at least gross negligence on the part of DunaTec or of
a malicious act or at least gross negligence on the part of a legal representative or a vicarious
agent or officer of DunaTec. The liability of DunaTec shall be limited to a maximum of EUR
5,000.00 in all cases to which this limitation of liability does not apply. DunaTec shall not be liable
for untypical, unforeseeable damages.
13. TERMINATION OF THE CONTRACT
If the Customer terminates the contract for reasons beyond the control of DunaTec, the Customer
shall have the obligation to pay compensation amounting to 40 (forty) percent of the net price of the
order. The Customer shall have to pay this compensation without DunaTec having to provide
evidence of the amount of the damage. The provision set forth above shall not apply if DunaTec can
provide evidence of a greater damage. The Customer shall have the right to provide evidence that no
damage at all has been incurred or that a lesser damage has been incurred.
14. RETENTION OF OWNERSHIP
a) All goods shall remain the exclusive property of DunaTec until payment in full of all current and
future claims (including all open accounts) against the Customer has been made by the Customer.
Further processing or refinement of the delivered goods shall always be made on behalf of
DunaTec as the manufacturer, but without obligation to DunaTec. If the delivery item is
permanently integrated into another product not belonging to DunaTec, DunaTec shall acquire co-ownership of the new item proportional to the invoice value. The Customer shall hold in custody for
DunaTec the resulting sole ownership or co-ownership free of charge. Goods to which DunaTec
has the right of sole ownership or co-ownership shall be referred to as reserved goods hereinafter.
b) The Customer shall have the right to process and resell such reserved goods within the framework
of normal business activities as long as the Customer is not defaulting in payment. The goods shall
not be pledged or encumbered. As a security, the Customer shall assign all claims (including all
open accounts) resulting from the resale or any other reason (affidavit, tortious act) in connection
with reserved goods to DunaTec at the contract date. DunaTec entitles the Customer to collect
such assigned receivables on account of and on behalf of DunaTec. This right to collect such
receivables shall only be revoked if the Customer fails to meet his payment obligations as per
contract.
c) In the event of seizure by third parties, the Customer shall forthwith disclose DunaTec's
reservation of title, right and property to such goods and shall forthwith notify DunaTec of such
seizure.
d) In the event of breach of contract by the Customer of the terms and conditions hereto and, in
particular, default in payment as herein before provided, DunaTec shall be entitled to take back the
reserved goods or demand the assignment of the claims of the Customer against the third party, as
the case may be. The seizure or the pledge of such reserved goods by DunaTec shall not
constitute a termination of the contract unless the German Consumer Credit Act is applicable.
15. RETURN OF GOODS
Goods shall only be returned with the express consent of DunaTec. If returns are authorized by
DunaTec, the customer shall pay a charge of 20 (twenty) percent of the net value of the goods, or at
least an amount of EUR 20.00. DunaTec shall not credit returned goods with a value of less than EUR
20.00. All refurbishing costs shall be charged separately. Freight for returned goods must be prepaid
(to DunaTec or delivering plant).
16. GERMAN/INTERNATIONAL LAW, PLACE OF JURISDICTION, PLACE OF PERFORMANCE
AND CONTRACT INTERPRETATION
The contract shall be governed by German law to the exclusion of the UN Convention on Contracts for
the International Sale of Goods. For Non-EU countries the UN Convention on Contracts for the
International Sale of Goods is applicable, unless special export terms and conditions are stipulated in
the contract.
Place of jurisdiction for any kind of disputes arising from or relating to the terms of the contract is
Hechingen (Germany).
Place of performance is Hechingen (Germany).
In the event that any one of the contractual provisions is invalid, the remaining provisions of the
contract shall not in any way be affected by such invalidity.