1. Applicability
The present General Conditions of Sale and Supply (“GCS”) shall exclusively govern the sale and supply of products (“Products”) and the provision of services (“Services”) by DKSH GmbH (“DKSH”) towards entrepreneurs within the meaning of Section 14 German Civil Code (“BGB”). Deviations from these GCS or from the applicable law, in particular any application of the purchasing terms and conditions of customers of DKSH (“Customers”), shall not be binding on DKSH, unless and to the extent explicitly accepted in writing. An explicit objection to the Customer’s terms and conditions shall not be necessary. Any terms and conditions of the Customer contrary to or deviating from these GCS shall not be applicable even if DKSH has supplied the Products, rendered the Services, or accepted the payment from the Customer without reservation.
2. Offers and contracts
2.1 Unless explicitly stated in the offer or apparent from the circumstances, all offers of DKSH are non-binding and shall be merely deemed as an invitation to the Customer to submit an offer.
2.2 A contract shall only be formed upon DKSH’s acceptance of an order placed by the Customer by way of an order confirmation in writing or by delivering/providing the ordered Products/Services, whichever occurs first. No order shall be cancelled by the Customer unless DKSH consents to such cancellation in writing.
2.3 Unless otherwise agreed, the indication of quantities in the order confirmation is approximate. Discrepancies in quantities of up to 10%, calculated on the basis of the entire quantity to be delivered and not the individual partial quantities actually delivered, due to filling, safety, or other technical reasons, shall constitute due performance of the contract, provided however that such discrepancies will be entirely considered in the invoice.
2.4 Unless otherwise agreed, the maximum and minimum limits for analytical data shall also be deemed to be approximate.
3. Purchase price and payment
3.1 Unless otherwise agreed, all prices quoted by DKSH are in Euro and net ex works pursuant to the International Commercial Terms (“Incoterms”) in force at the time of conclusion of the respective. Value-added tax shall be payable separately in the statutory amount in effect on the invoice date. The prices shall not include additional charges, e.g. packing, transport, freight, or customs duties.
3.2 At the Customer’s request and expense, DKSH will cover adequate transport insurance for an insured amount of not less than the invoice value of the goods.
3.3 Unless otherwise agreed between DKSH and the Customer, the Customer shall effect payment to DKSH within fourteen (14) days upon delivery of the goods or provision of the services.
3.4 Default interest will be charged by DKSH on overdue payments at the rate of nine per cent (9%) p.a. over the base rate of the German Bundesbank (Section 247 BGB) in effect when interest is charged. DKSH reserves its right to file further claims for losses incurred through the payment default.
3.5 Set-off by the Customer shall only be permitted with claims being either undisputed or upheld by a final court ruling of the competent court.
3.6 In the event of an increase in land, air and water freight rates, customs duties, levies or officially determined raw material prices occurring between conclusion of the contract and delivery, or in the event of a change in raw material prices to the disadvantage of DKSH, DKSH shall be entitled to increase the prices stated in the order confirmation to the extent to which the aforementioned changes affect the delivery.
4. Transfer of risks and place of performance
4.1 The transfer of risk from DKSH to the Costumer shall occur according to the provisions of the respective contract and the Incoterms as specified therein. If the contract does not contain respective provisions, the transfer of risk shall occur upon delivery of the Products and the place of performance shall be DKSH’s premises in Hamburg, Germany.
4.2 At the Customer’s request and risk, DKSH will dispatch the Products, provided however that DKSH will determine the shipping methods, route of dispatch and carrier at its sole discretion and that all risks will pass to the Customer at the time of dispatch of the Products.
5. Partial deliveries
DKSH shall be entitled to partial deliveries of Products and partial provision of Services, if and to the extent these are reasonably acceptable to the Customer.
6. Delivery and delivery default
6.1 DKSH will use reasonable endeavors to deliver Products and/or perform Services by the dates set forth in the relevant order confirmation, but such dates shall be treated as approximate only unless a fixed date has expressly been agreed. DKSH shall notify the Customer as soon as practicable in case of delay.
6.2 In the event of DKSH’s failure to meet an agreed date for delivery of Products or provision of Services, the Customer is obliged to set a reasonable time period of time for DKSH’s subsequent performance and may only withdraw from the contract upon expiry of said time period. A period of 4 weeks counted from the initial delivery date shall be deemed reasonable.
6.3 If the Customer is in default of acceptance or violates other obligations to cooperate, DKSH shall be entitled to demand compensation for the damage incurred, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the purchased Products shall also pass to the Customer at the point in time at which the Customer defaults on acceptance.
7. Retention of title
7.1 Products sold by DKSH remain DKSH’s property (“Reserved Products”) until all of DKSH’s claims for payment resulting from any contract within the framework of the business relationship between DKSH and the Customer have been paid in full by the Customer.
7.2 For as long as a retention of title is in force, the Customer shall handle the Reserved Products in such a way that they remain identifiable as DKSH’s property. The Costumer shall store the Reserved Products adequately and, following delivery, insure them against all customary risks, both at its own expense.
7.3 In the event of any failure on the part of the Customer to pay DKSH on time, DKSH reserves the right of immediate repossession of all Reserved Products. The Customer hereby grants DKSH and its employees, agents, or subcontractors the irrevocable right to enter any and all premises in which the Reserved Products are located, without prior notice, for this purpose.
7.4 If the Customer processes, combines or modifies the Reserved Products, DKSH’s retention of title extends to the complete new finished product. If the Customer processes, combines or mixes the Reserved Products with other goods, DKSH acquires joint title pro rata, to that part of the goods representing the invoiced value of the Reserved Products in relation to the total value of the other goods that have been processed, combined, or mixed.
7.5 If the Reserved Products are combined or mixed with finished goods of the Customer or of any third party, the Customer hereby and forthwith assigns all its rights with regard to such finished goods. If the Customer combines or mixes the Reserved Products with finished goods of a third party in return for compensation, the Customer hereby and forthwith assigns to DKSH its right to compensation against such third party.
7.6 The Customer shall be entitled to resell the Reserved Products in the ordinary course of its business subject to DKSH’s retention of title. If, upon such resale, the Customer does not receive the full purchase price in advance or upon delivery of such goods, the Customer shall agree on retention of title with its customer in accordance with these conditions. The Customer hereby and forthwith assigns to DKSH its claims arising from such resale and its rights arising from said agreement on retention of title. Upon DKSH’s request, the Customer shall give notice of such assignment to its customers and provide DKSH with all information and documentation necessary to enforce DKSH’s rights against those customers. Notwithstanding such assignment, the Customer shall be entitled to collect the claims arising from such resale as long as it fulfils its obligations and liabilities towards DKSH.
7.7 Should the total amount of security interests granted to DKSH exceed the total amount of DKSH’s claims, DKSH shall, upon Customer’s request, release individual securities which DKSH deems appropriate. Unless expressly otherwise notified by DKSH in writing, DKSH’s assertion of the retention of title shall not imply the withdrawal of DKSH from the concerned contract.
8. Product data
Unless otherwise agreed in writing, the Products supplied by DKSH have the composition and characteristics stated in the respective product specifications applicable at the date of supply. Guarantees of specific product characteristics, stability and other data shall only apply if and to the extent that they have been expressly agreed upon in writing.
9. Complaints and notification of defects
The Customer shall notify DKSH of any complaints concerning the Products or Services in text form, in particular of any shortages or defects, promptly and in no event later than fourteen (14) days upon receipt of the Products or performance of the Services, in case of hidden or latent defects, immediately after their discovery and in no event later than 10 days after such defects have been discovered or should have been discovered by using reasonable care. In case of noncompliance with this provision by the Customer, the Products and Services are deemed to be approved and accepted by the Costumer and all rights and claims related to such Products and/or Services shall be deemed waived.
10. Rights of the Customer in case of defects
10.1 Where a valid and timely claim in respect of Products or Services is submitted to DKSH in accordance with clause 9, DKSH will replace, repair, re-perform or modify the Products or Services or any part thereof, or refund the full or partial price thereof or compensate the Customer, as prescribed by law.
10.2 Within the limits prescribed by law, the Customer is entitled to claim payment of compensation and reimbursement of out-of-pocket expenses incurred in connection with any subsequent performance. The reimbursement of expenses shall be precluded to the extent that expenses have been increased due to the transport of the Products by the Customer to places different from the seat or place of incorporation of the Customer unless such transport corresponds to the intended use of the Products.
10.3 The Customer’s rights of recourse, as provided by law, against DKSH shall not apply to the extent that the Customer has granted its customers warranties going beyond the statutory limits prescribed by law in case of defects.
11. Liability
11.1 In case of damages arising from DKSH’s willful intent or gross negligence, DKSH shall be liable to the Customer without limitation in accordance with the statutory provisions.
11.2. In case of simple negligence, DKSH shall only be liable for
a) damages resulting from injury to life, body, or health; and
b) damages resulting from breach of fundamental contractual obligations (i.e. contractual obligations which enable the fulfillment of the performance of the contract in the first place, and contractual obligations that the contracting party can and will reasonably and regularly rely on); in case of this 11.2 b), DKSH’s liability shall be limited to the foreseeable, typically occurring damage.
This limitation of liability, as set forth in this Section 11.2, shall also apply to any of DKSH’s representatives, employees, and vicarious agents for which DKSH is liable according to the statutory provisions.
11.3 The limitation of liability, as set forth in Section 11.2, shall not apply if and to the extent
a) DKSH has fraudulently concealed a defect or assumed a guarantee for the condition of the delivered Products or performed Services; or
b) DKSH bears the mandatory liability under the Product Liability Act (ProdHaftG) or any other law providing for mandatory liability.
12. Limitation
The Customer’s claims for warranty, compensation and reimbursement of expenses shall become time-barred within one year upon arising of the claim, unless DKSH has acted willfully or grossly negligently or bears the liability under the Product Liability Act (ProdHaftG) or any other mandatory law in case of death, bodily injury or health impairment or damages on privately used property.
13. Confidentiality
13.1 The Customer shall treat all Confidential Information (as defined below) strictly confidential and shall not disclose Confidential Information to any third party or use Confidential Information for any purpose other than reasonably necessary in order to fulfill its obligations under these GCS or a contract between DKSH and the Customer. The Customer shall disclose Confidential Information only to those of its officers and employees who need to know Confidential Information in connection with the fulfillment of these GCS or a contract between DKSH and the Customer and who are bound by confidentiality obligations at least as restrictive as those contained in this clause. In any event, the Customer remains liable for any breach by its officers or employees of any confidentiality obligations hereunder.
13.2 “Confidential Information” means any information contained in a contract between DKSH and the Customer and any information provided by or on behalf of DKSH to the Customer (in particular but not limited to information regarding pricing, financial information, market information, methods of distribution, customer data, data of employees, manufacturing and technical information and know-how). Notwithstanding the foregoing, Confidential Information does not include information that (i) is rightfully known to the Customer at the time of disclosure as demonstrated by the Customer’s written or electronic records, (ii) is or becomes part of the public domain through no wrongful act of the Customer, (iii) has been rightfully received by the Customer from a third party authorized to make the disclosure without restriction, (iv) has been approved in writing by the DKSH for release or (v) is independently developed without benefit of the Confidential Information.
14. Force majeure
In case of an event of force majeure events or circumstances beyond DKSH’s reasonable control (including but not limited to natural disasters, war, strike, lack of human resources, energy or raw material, traffic or business interruptions, orders, laws or regulations of any governmental body, fire or explosion, pandemics or endemics), the agreed delivery period shall be extended accordingly for the duration of the hindrance resulting from the aforementioned events and circumstances, plus a reasonable ramp-up period. If the hindrance lasts longer than two (2) months, both parties are entitled to withdraw from the respective contract with regard to the unfilled part.
15. No Assignment
The Customer shall not be entitled to assign a contract or any of its rights and obligations under these GCS or a contract between DKSH and the Costumer without DKSH’s prior written consent.
16. Compliance with legal regulations
16.1 Unless otherwise agreed in writing, the Customer shall be responsible for the compliance with statutory and regulatory requirements relating to import, transport, storage, and use of the Products.
16.2 In all instances, the Customer shall comply with (re-)export control regulations of the European Union, the United States and Germany. Furthermore, the Customer shall comply with all the applicable Export Compliance Laws and Regulations in connection with the purchase of DKSH’s Products and/or Services and in connection with the resale of such Products and/or Services to the Customer’s clients/customers. For the sake of clarity, “Export Compliance Laws and Regulations” shall mean any applicable laws and regulations regarding economic sanctions, prohibitions, import, transfer, or export restrictions imposed by the United Nations (U.N.), the United States (U.S.), the European Union (E.U.) and by any other applicable country, including but not limited to Germany. This includes, but is not limited to:
a) applicable laws and regulations regarding import, export and re-export, transfer restrictions related to military and dual-use commodities/products, software and technologies, chemical precursors (drugs and explosives), dangerous chemicals and pesticides, substances that deplete the ozone layer, etc.; and
b) applicable laws, regulations, United Nations Security Council resolutions, and other international sanctions, sanctions of Switzerland, the United Kingdom, the European Union, the U.S. Specially Designated and Blocked Persons List (SDN), the U.S. Export Administration Regulations (EAR) that impose trade restrictions and embargoes and prohibit certain dealings with the governments, legal entities, companies, and nationals of the countries named therein; and
c) applicable laws and regulations prohibiting transfers of products, services, software or technology that will directly or indirectly support nuclear explosive activities, unsafeguarded nuclear activities, nuclear fuel cycle activities, nuclear propulsion activities, or the design, development, production, stockpiling, or use of chemical weapons, biological weapons, missiles, rocket systems or unmanned aerial vehicles.
16.3 The Products and/or Services purchased by the Customer from DKSH shall be purely used by the Customer’s customer/clients for civilian end-uses by civilian end-users. Therefore, the Products and/or Services shall not be used by the Customer itself and the Customer’s customer/clients in the design, development, production, manufacturing of military applications, nuclear, space launch vehicles, satellites, armored vehicles, unmanned aerial vehicles (UAV), target drones, reconnaissance drones, or the launch or operation of any ballistic missile systems, rocket systems, sounding rockets, cruise missile systems, or any missile delivery system for weapons of mass destruction, unless where the aforementioned applications are agreed in advance by DKSH and by the competent authorities in writing. Moreover, the Products and/or Services purchased by the Customer from DKSH will not be used for and/or in connection with, internal repression, human rights violations, production of chemical or biological weapons of mass destruction, any military or paramilitary organization, armaments, nuclear technology, or weapons.
16.4 The Customer shall in no event and by no means, commercialize, export or re-export the Products and/or Services purchased from DKSH, through direct or indirect means, to:
a) any legal entities/companies and persons on the Sanctions List of Germany, Switzerland, the United Kingdom, the European Union, the United Nations or on the U.S. Specially Designated and Blocked Persons List (SDN); and
b) any legal entities/companies and persons on the U.S. Consolidated Screening List (CSL) in case the Products and/or Services are subject to the U.S. Export Administration Regulations (EAR), without having obtained the relevant license under the U.S. EAR.
16.5 Furthermore, the Customer shall always be responsible for compliance with all applicable laws and regulations related to anti-bribery, anti-corruption, conflict of interest laws, rules or regulations of similar purpose and effect, including, without limitation the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1997, Art. 322ter et seq. Swiss Criminal Code and Art. 4a Swiss Act against Unfair Competition, the US Foreign Corrupt Practices Act 1977 as amended from time to time, the UK Bribery Act 2010, and sec. 299 et sqq., sec. 331 et sqq. German Criminal Code, the German Act on Combating European Bribery, and the German Act on Combating International Bribery (hereafter collectively “Anti-Corruption Laws”).
16.6 The Customer shall indemnify, defend, and hold harmless DKSH from any and all claims damages, losses, liabilities, costs and expenses (including but not limited to court costs and attorneys' fees) arising out of any claim, inspection, audit, and etc. by regulatory authorities or other third parties and asserted against DKSH due to the Customer's failure to comply with the obligations set forth in this Section 16 and agrees to reimburse DKSH for any and all resulting damages and associated expenses, provided that they are the result of the Customer's breach of duty.
17. DKSH’s Code of Conduct
17.1 The Customer and its officers, directors, employees, and agents shall comply with all provisions of DKSH’s Code of Conduct (available at https://www.dksh.com/global-en/home/about-us/sustainability#policies). Therefore, by placing any order to DKSH and/or by accepting any services from DKSH, the Customer (including its officers, directors, employees, and agents) acknowledges to have taken note of DKSH’s Code of Conduct and commits to comply with it.
17.2 DKSH’s Code of Conduct is subject to updates and/or amendments from time to time and the Customer hereby accepts such updates and/or amendments (as made available at https://www.dksh.com/global-en/home/about-us/sustainability#policies, and/or as otherwise notified by DKSH).
17.3 DKSH may collect information on the Customer (via due diligence, pre-agreed audits or otherwise) to verify its compliance with DKSH’s Code of Conduct, and the Customer agrees to furnish DKSH with or grant DKSH access to such information as reasonably requested by DKSH from time to time. Where DKSH has reason to believe that the Customer is in breach of the obligations set forth in this clause 17, DKSH shall be entitled to immediately terminate the contract without any liability to the Customer.
18. Requirement of written form
18.1 No amendments or additions to these GCS, including this Section 18, or a contract hereunder shall be valid unless made in writing.
18.2 Any statements and notifications issued by the Customer after conclusion of a contract shall not be valid unless made in writing.
19. Severability
Should any individual provision(s) of these GCS be deemed wholly or partially invalid, this shall not affect the validity of the remaining conditions. Any invalid provision shall be replaced by a provision whose economic purpose comes as close as possible to that of the invalid provision.
20. Governing law and venue
20.1 These GCS, any contract hereunder and the business relationship between DKSH and the Customer shall be exclusively governed by German law with the exclusion of the laws on conflict of laws and of the United Nations Convention on Contracts and the International Sale of Goods (CISG) of April 11, 1980.
20.2 If the Customer is merchant, any disputes arising out of or in connection with the contract(s), these GCS, or the business relationship between the Customer and DKSH shall be resolved exclusively before the courts in Hamburg. Notwithstanding the foregoing, DKSH shall also be entitled to start legal proceedings at the Customer’s place of business.
